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United States District Court, S.D. New York

April 16, 2004.

BRIAN GILL, Plaintiff, -against- THE CITY OF NEW YORK, OFFICER PETER QUINN, DETECTIVE GERARD GARDINER, OFFICER JAMES MELENDEZ, OFFICER RAVI JAMINDAR, sued individually and in their official capacities, Defendants

The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge


Defendants the City of New York (the "City"), Detective Gerard Gardiner ("Gardiner"), Officer James Melendez ("Melendez") and Officer Ravi Jamindar ("Jamindar") (collectively the "Defendants"), have moved pursuant to Fed.R.Civ.P. 56(c) to dismiss the complaint of plaintiff Brian Gill ("Gill") brought pursuant to 42 U.S.C. § 1983 alleging violations of the Fourth, Fifth, Sixth and Fourteenth Amendments to the United States Constitution and the laws of the State of New York.*fn1 For the reasons set forth below, the motion is granted in part and denied in part.

Our manners have been corrupted by communication with the saints.
Henry David Thoreau, Walden "Economy," (1854).

  In this instance, St. Patrick's Day 2002 produced a celebration of imbibition ending in a fight between members of two competing cults, the New York City Police Department, and the New York City Fire Department. This action arose out of that confrontation.

 Prior Proceedings Gill filed his complaint on December 24, 2002. Issue was joined, discovery undertaken, and an amended complaint was filed on July 14, 2003, alleging deliberate indifference to serious medical needs, punishment without due process, denial of equal protection, infringement of the Fifth Amendment right against self-incrimination, and false arrest. Additional claims for malicious prosecution, an unduly suggestive line-up, abuse of process, deprivation of Sixth Amendment rights, a claim against the City based on Monell v. Dep't of Social Servs., 436 U.S. 658 (1978), a claim of negligent hiring and retention of incompetent employees, and a claim that Quinn was acting within the scope of his employment were withdrawn following the filing of the instant motion.

  The Defendants' motion was heard and marked fully submitted on November 26, 2003.

 The Facts

  The parties have submitted statements pursuant to Local Civil Rule 56.1 from which the following statement of facts is drawn. The facts are undisputed except as noted.

  The St. Patrick's Day parade in Manhattan was held on March 16, 2002. Gill, a member of the New York City Fire Department, and a resident of Staten Island, initially intended to watch the parade but instead visited three bars in Manhattan, ending up for the second time at Connolly's at 47th Street and Madison Avenue where he intended to meet his friends Glenn Van Pelt ("Van Pelt") and Duane Snell ("Snell"). In this process Gill consumed an amount of beer. The quantity of his consumption is in dispute.

  Quinn, an off-duty police officer who was in kilts, and Snell exchanged words inside Connolly's and were asked to leave by the bouncer Alfred Collins ("Collins"). Outside, a fight began, the origination of which is in dispute, and when Gill arrived by taxi about 10:30 P.M. he saw a group of men attacking Van Pelt, who was prone. Gill joined the fray to assist Van Pelt and was punched and hit by a man wearing a kilt and by another man with a moustache wearing glasses. According to Gill, Quinn and Snell were fighting, the fighting stopped, Quinn and the men attacking Van Pelt went up the block, and then returned to attack Gill, Van Pelt and Snell. The details of the fight and its origins are in dispute.

  Melendez, Jamindar and Gardiner arrived at the scene as did an ambulance. Quinn was taken to Bellevue Hospital. According to Gill, he asked for medical assistance, entered an ambulance, and then was ordered out of the ambulance and was told he had to go to the police station to fill out a statement. According to the Defendants, Gill voluntarily left the ambulance. Gill and Van Pelt were taken to the Midtown North Precinct, voluntarily according to the Defendants, by direction of the officers according to Gill. Gill and Van Pelt were not handcuffed, and Gill believed he was going to Midtown North to make a complaint.

  According to Gill, after arrival at Midtown North he was standing in a hallway and requested medical assistance and to go to a hospital and was told that he was not under arrest and that an ambulance was coming. Gill made telephone calls to friends. Whether he mentioned his request for medical assistance is disputed.

  Gardiner investigated the incident that night and was told that the bouncer had identified Van Pelt and Gill as the perpetrators of the incident. At some point Gill was told he was not free to leave and at some time thereafter was placed in the squad cell with Van Pelt. At approximately 12:20 A.M. Gardiner took statements from two witnesses, a husband and wife from California, Diana DeRosa ("DeRosa") and Brian Burkhalter ("Burkhalter"), who described the beating received by Gill and the injuries received by the wearer of the kilt.

  At approximately 10:30 A.M. the next morning, Gardiner gave Gill his Miranda warning and provided him with a worksheet for him to sign indicating that he had been advised of and understood his rights, and that he was willing to answer questions. Shortly after Gill signed the worksheet, he gave both an oral and a written statement to Gardiner.

  Gardiner interviewed the bouncer Collins shortly after 2:00 P.M. Collins had observed the beginning of the dispute between two males and a male wearing a kilt. The bouncer asked the group to move on, which they did, and he did not observe what happened among the men until he saw the kilt-wearer on the ground being pummeled by the other two males, later identified as Gill and Van Pelt.

  Whether or not Gill requested medical assistance after being placed in the holding cell is in dispute. Gill fell asleep according to the Defendants, or became unconscious and vomited blood, according to Gill. Whether or not he was visited by E.M.S. officers and whether or not he refused treatment are matters in dispute.

  According to Gill, Robert Cohen, his attorney, called the precinct sometime between 12:00 A.M. and 6:00 A.M. on March 17, 2002, asked to speak with Gill, and told the police that they were not permitted to interrogate or take a statement from Gill without Cohen being present. Gill was taken to 100 Centre Street for arraignment and was examined by an officer of the E.M.S. Gill was charged with assault in the third degree which charges were dismissed on June 26, 2002. On March 18, Gill went to Staten Island University Hospital North for treatment. The extent of the injuries of Gill and Quinn are in dispute.

  The Defendants contend that the facts establish probable cause to arrest Gill. Gill contends he was arrested because he was involved in an altercation with Quinn, an off-duty police officer.

 Standard for Summary Judgment

  Summary judgment is granted only if there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Silver v. City Univ., 947 F.2d 1021, 1022 (2d Cir. 1991); see generally 11 James Wm. Moore, et al., Moore's Federal Practice § 56.11 (3d ed. 1997 & Supp. 2004). The court will not try issues of fact on a motion for summary judgment, but, rather, will determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).

  "The party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists and that the undisputed facts establish her right to judgment as a matter of law." Rodriguez v. City of New York, 72 F.3d 1051, 1060-61 (2d Cir. 1995). In determining whether a genuine issue of material fact exists, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Gibbs-Alfano v. Burton, 281 F.3d 12, 18 (2d Cir. 2002). Thus, "[s]ummary judgment may be granted if, upon reviewing the evidence in the light most favorable to the non-movant, the court determines that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law." Richardson v. Selsky, 5 F.3d 616, 621 (2d Cir. 1993).

  A material fact is one that would "affect the outcome of the suit under the governing law," and a dispute about a genuine issue of material fact occurs if the evidence is such that "a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248; R.B. Ventures, Ltd. v. Shane, 112 F.3d 54, 57 (2d Cir. 1997). The Court is "to grant summary judgment where the nonmovant's evidence is merely colorable, conclusory, speculative or not significantly probative." Schwimmer v. Kaladjian, 988 F. Supp. 631, 638 (S.D.N.Y. 1997) (citing Anderson, 477 U.S. at 249-50).

 The Deliberate Indifference Claim Survives

  According to Gill, Quinn and a group of men who acted in concert with him beat Gill who became unconscious, covered in blood, and suffered, among other things, multiple lacerations, swelling to his face and head, a broken nose, a chipped tooth, a concussion, and dizziness and nausea, although he was not the aggressor during the incident at issue in this case.

  After Gill regained consciousness at the scene, a police officer told him to get up. Gill requested an ambulance. He was then ordered out of the ambulance by Melendez, Jamindar and Gardiner and prevented from returning to the ambulance and his request to go to the hospital was denied. Melendez and Jamindar took Gill to the Manhattan North Precinct where he again requested that he be immediately taken to a hospital for medical treatment. At the Precinct, Gill was told that an ambulance was coming.

  After Gill was placed in the squad cell, he became unconscious and vomited blood. No request was made by Melendez, Jamindar or Gardiner for medical care, and they contend that Gill either refused care or did not ask for it. Plaintiff's Exhibits 8 & 9.

  At one point, some paramedics who were at the precinct on a different matter stopped by Gill's cell while he was unconscious. The Defendants did not allow the paramedics to enter Gill's cell in order to treat or wake Gill. Plaintiff's Rule 56.1 Statement ¶¶ 38-40. The Supreme Court has recognized that a prison official violates the Eighth Amendment by the "deliberate indifference to a substantial risk of serious harm to an inmate." Farmer v. Brennan, 511 U.S. 825, 828 (1996). Although the Eighth Amendment does not apply until conviction, under the Due Process Clause, "an unconvicted detainee's rights are at least as great as those of a convicted prisoner." Weyant v. Okst, 101 F.3d 845, 856 (2d Cir. 1996) (citing City of Revere v. Massachusetts General Hospital, 463 U.S. 239, 244 (1983)). Accordingly, "the official custodian of a pretrial detainee may be found liable for violating the detainee's due process rights if the official denied treatment needed to remedy a serious medical condition and did so because of his deliberate indifference to that need." Id.; see, e.g., Koehl v. Dalsheim, 85 F.3d 86, 88 (2d Cir. 1996) (inmate's need for prescription eyeglasses constituted a serious medical condition where, as a result of not having glasses, the inmate suffered headaches, his vision deteriorated, and he was impaired in daily activities); Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998) ("A prisoner who nicks himself shaving obviously does not have a constitutional right to cosmetic surgery. But if prison officials deliberately ignore the fact that a prisoner has a five-inch gash on his cheek that is becoming infected, the failure to provide appropriate treatment might well violate the Eighth Amendment.").

  The appearance of paramedics at Gill's cell, if it occurred, does not satisfy their constitutional obligation to provide plaintiff with prompt and adequate medical care. See Winters v. City of New York, 98 Civ. 4686, 2000 U.S. Dist. LEXIS 3740, *18 (S.D.N.Y. Mar. 23, 2000) (fact that plaintiff received some medical care does not necessarily preclude him from establishing that defendants displayed deliberate indifference to his serious medical needs).

  According to Gill, he was forced to sign a statement that falsely stated that he refused medical care. He objected to signing the statement and told Defendants that he was never given medical attention and never told the paramedics to leave his cell.

  On a motion for summary judgment, the court must resolve all ambiguities and draw all factual inferences in favor of the non-movant. Bennett v. Goord, 343 F.3d 133, 137 (2d Cir. 2003), and summary judgment on Gill's medical care claim cannot be achieved by attacking plaintiff's credibility. See Mickle v. Morin, 297 F.3d 114, 120 (2d Cir. 2002) ("Credibility determinations, the weighing of evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge") (internal quotation marks and citations omitted). On the record before the Court, summary judgment is inappropriate as to Gill's claim of deliberate indifference to serious medical needs.

 The False Arrest Claim Survives Except for 42 U.S.C. § 1983's requirement that the tort be committed under color of state law, the elements of a federal and state claim of false arrest are substantially identical. Covington v. City of New York, 171 F.3d 117, 121 (2d Cir. 1999); Weyant, 101 F.3d at 852; Raysor v. Port Authority of New York and New Jersey, 768 F.2d 34, 39-40 (2d Cir. 1985). In order to prove false arrest, a plaintiff must show that (1) the officer intended to confine the plaintiff; (2) the plaintiff was conscious of the confinement and did not consent to it; and (3) the confinement was not otherwise privileged. Lowth v. Town of Cheektowaga, 82 F.3d 563, 569 (2d Cir. 1996). A confinement is "otherwise privileged" where there was probable cause to make the arrest. Id.

  "[W]hen an arrest is made without a warrant, the officer has acted outside the scope of the legal process and therefore a rebuttable presumption arises that such an arrest is unlawful. The defendant has the burden of raising and proving the affirmative defense of probable cause." Curry v. City of Syracuse, 316 F.3d 324, 335 (2d Cir. 2003) (quoting Rodriguez v. City of New York, 149 Misc.2d 295, 296, 563 N.Y.S.2d 1004, 1005 (N.Y.Sup.Ct. 1990)). "Probable cause is `a complete defense to a cause of action for false arrest.'" Id. (quoting Feinberg v. Saks & Co., 56 N.Y.2d 206, 210, 436 N.E.2d 1279, 1280, 451 N.Y.S.2d 677, 678 (1982)). The subjective good faith of the officer regarding the reasonableness of the arrest "does not shield an officer from tort liability for an unlawful arrest, though it may mitigate damages." Raysor, 768 F.2d at 40 (citing Broughton v. State, 37 N.Y.2d 451, 458-59, 373 N.Y.S.2d 87, 95, 335 N.E.2d 310, 315 (1975); Smith v. County of Nassau, 34 N.Y.2d 18, 23-24, 355 N.Y.S.2d 349, 353, 311 N.E.2d 489, 492-93 (1974)).

  "An officer has probable cause to arrest when in possession of facts sufficient to warrant a prudent person to believe that the suspect had committed or was committing an offense." Ricciuti v. N.Y.C. Transit Authority, 124 F.3d 123, 128 (2d Cir. 1997) (citing Gerstein v. Pugh, 420 U.S. 103, 111 (1975)). The facts to be considered are those "available to the officer at the time of the arrest." Id. Further, "it is well-established that a law enforcement official has probable cause to arrest if he received information from some person, normally the putative victim or eyewitness." Martinez v. Simonetti, 202 F.3d 625, 634 (2d Cir. 2000) (quoting Miloslavsky v. AES Eng'g Soc'y, 808 F. Supp. 351, 355 (S.D.N.Y. 1992), aff'd 993 F.2d 1534 (2d Cir. 1993)).

  In determining whether there is probable cause to make an arrest, an officer is required to examine "the totality of the circumstances." Bernard v. United States, 25 F.3d 98, 102 (2d Cir. 1994) (quoting Illinois v. Gates, 462 U.S. 213, 230, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). The totality of the circumstances includes exculpatory information available to the officer at the time of the arrest. See Kuehl v. Burtis, 173 F.3d 646, 650 (8th Cir. 1999) (cited with approval in Kerman v. City of New York, 261 F.3d 229, 241 (2d Cir. 2001)). However, "[o]nce a police officer has a reasonable basis for believing there is probable cause, he is not required to explore and eliminate every theoretically plausible claim of innocence before making an arrest." Ricciuti, 124 F.3d at 128 (citing Baker v. McCollan, 443 U.S. 137, 145-46 (1979)).

  For purposes of a false arrest claim, a formal arrest is not required. As explained by the Second Circuit in Posr v. Doherty,

The Fourth Amendment, of course, does not by its terms proscribe false arrests; it proscribes "unreasonable . . . seizures." An arrest, however, is a seizure, indeed it is the "quintessential seizure of the person." California v. Hodari D., 499 U.S. 621, 113 L.Ed.2d 690, 111 So. Ct. 1547, 1549 (1991). The standard test for what constitutes a seizure was first articulated by Justice Stewart in United States v. Mendenhall, 446 U.S. 544, 551-57, 64 L.Ed.2d 497, 100 S.Ct. 1870 (1980), and adopted by the full Court in INS v. Delgado, 466 U.S. 210, 215, 80 L.Ed.2d 247, 104 S.Ct. 1758 (1984). The police can be said to have seized an individual "only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." Mendenhall, 446 U.S. at 554. We have held that when an officer "even briefly detains an individual and restrains that persons right to walk away, he has effected a seizure and the limitations of the Fourth Amendment become applicable." United States v. Moreno, 897 F.2d 26, 30 (2d Cir.), cert. denied, 497 U.S. 1009, 111 L.Ed.2d 760, 110 S.Ct. 3250 (1990) (citing United States v. Seagram, 732 F.2d 25, 28 (2d Cir. 1984)).
944 F.2d 91, 97 (2d Cir. 1991); see also People v. Hicks, 68 N.Y.2d 234, 238, 508 N.Y.S.2d 163, 166, 500 N.E.2d 861 (1986) ("Even without a technical formal arrest, a suspect's detention may in fact be the equivalent of an arrest, requiring probable cause"); Posr, 944 F.2d at 97 ("We believe that the district court, in requiring that before an arrest can be actionable it must be formal and accompanied by detention until presentation to a judicial officer, took an unduly restrictive view of what constitutes an arrest"). Therefore, despite Gill's testimony that it was after his lineup "when they arrested me," Gill Deposition at 78, his arrest may have been earlier if a reasonable person would not have felt free to leave under the circumstances.

  There is a factual dispute concerning the information received from Gill, the time at which he was placed in the squad cell, the information given by the three witnesses, and the reason for Gill's detention. Consequently, there is a factual issue as to whether or not probable cause existed for the arrest.

  Although the Defendants deny that Gill was arrested at the scene of the fight, they argue that probable cause to arrest him at the scene existed because, based on the police officers' "personal observations of plaintiff alone," there was probable cause to believe that Gill "had been involved in an assault." Defendants' Reply Mem. at 7. Gill's visible injuries may have led to the inference that he had been beaten, but they are not evidence that he had perpetrated an assault. Defendants also assert that DeRosa and Burkhalter identified Gill as an individual they observed fighting in front of Connolly's. Defendants' Rule 56.1 Statement ¶ 43. However, in Gardiner's notes of the interview with DeRosa and Burkhalter,*fn2 which took place at approximately 12:20 A.M. on March 17, 2002, neither witness actually observed Gill fighting. DeRosa and Burkhalter report that they saw Gill and two others with Quinn, and then "shortly thereafter," they saw Quinn "bloodied and on the ground." Def.'s Exhibit L. Gardiner specifically notes that "[t]hey were not witness to how [Quinn] incurred his injuries." Id. Defendants also argue that Gill's written statement, taken at 10:30 A.M. on March 17, 2002, is an acknowledgment of his criminal conduct. Gill, however, never unequivocally states that he perpetrated an assault. See Def.'s Exhibit H. Gill does state: "I tried to collect myself as I began to defend myself more guys started hitting me." Id. Construing all inferences in favor of Gill, his statement does not acknowledge any participation in criminal conduct.

  It was not until at 2:05 P.M. on March 17, 2002, when Gill was identified by Collins in his interview with Gardiner,*fn3 that Defendants obtained probable cause to arrest Gill. Jamindar acknowledged when Gill was brought to the precinct, the entire incident was still "being investigated." Gill maintains that he was thus detained without probable cause because at that point no one, including the police, had identified him as a perpetrator.

  In addition, because "[t]he issue of precisely when an arrest takes place is a question of fact," Posr, 944 F.2d at 99, and because there is a factual issue as to the timing of his detention and the facts available to Gardiner, Gill's false arrest claim survives the Defendants' motion for summary judgment.

 Defendants' Defense of Qualified Immunity is not Established on This Motion

  The doctrine of qualified immunity shields government officials from suits for damages arising from performance of their discretionary functions when, applying an objective standard, "their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The Court must first inquire whether a "constitutional right would have been violated were the allegations established." Saucier v. Katz, 533 U.S. 194, 201 (2001). Then, "if a violation could me made out on a favorable view of the parties' submissions, the next sequential step is to ask whether the right was clearly established." Id. This determination "must be undertaken in light of the specific context of the case, not as a broad general proposition . . ." Id. Moreover,

even if the contours of the plaintiff's federal rights and the official's permissible actions were clearly delineated at the time of the acts complained of, the defendant may enjoy qualified immunity if it was objectively reasonable for him to believe that his acts did not violate those rights.
Robison v. Via, 821 F.2d 913, 921 (2d Cir. 1987).

  It has been found that Gill's claims for false arrest survive the Defendants' motion for summary judgment. A police officer is entitled to qualified immunity for a claim of false arrest and imprisonment if "either (a) it was objectively reasonable for the officer to believe that probable cause existed, or (b) officers of reasonable competence could disagree on whether the probable cause test was met." Lennon v. Miller, 66 F.3d 416, 424 (2d Cir. 1995) (quoting Wachtler v. County of Herkimer, 35 F.3d 77, 80 (2d Cir. 1994)).

  A court should not grant qualified immunity where, as here, there are factual disputes as to the underlying events. See, e.g., Oliveira v. Mayer, 23 F.3d 642, 649 (2d Cir. 1994) ("Though immunity ordinarily should be decided by the court, that is true only in those cases where the facts concerning the availability of the defense are undisputed; otherwise, jury consideration is normally required." (internal quotation marks and citations omitted); Mickle, 297 F.3d at 122 (where the circumstances are in dispute, a defendant is not entitled to judgment as a matter of law on a defense of qualified immunity); McKelvie v. Cooper, 190 F.3d 58, 63 (2d Cir. 1999) ("Where, as here, there are facts in dispute that are material to a determination of reasonableness, summary judgment on qualified immunity grounds is not appropriate"); Robinson v. Via, 821 F.2d 913, 924 (2d Cir. 1987) (same); Thomas v. Roach, 165 F.3d 137, 143 (2d Cir. 1999) (same).

  Gill has also "adequately pled a claim for deliberate indifference [to serious medical needs.] Because defendants could not have been deliberately indifferent and objectively reasonable at the same time . . . defendants are not entitled to qualified immunity based on the existing record." Hallett v. New York State Dep't of Correctional Servs., 109 F. Supp.2d 190, 202 (S.D.N.Y. 2000) (citing Hathaway v. Coughlin, 37 F.3d 63, 69 (2d Cir. 1994)).

  Accordingly, the Defendants' request for qualified immunity as to Gill's claims for false arrest and deliberate indifference to serious medical needs is denied at this juncture.

 The Equal Protection Claim is Dismissed with Leave to Replead

  For the first time in his opposition brief, Gill alleges that the Defendants deprived him of his right to equal protection under the law by taking their brother officer, defendant Quinn, from the scene of the incident directly to the hospital where he received prompt medical care, while Gill, whose injuries were allegedly more severe than Quinn's, was taken to the police station and deprived of medical care overnight. The Amended Complaint does not allege that Quinn was taken to the hospital and does not include a claim against the Defendants based on a violation of equal protection. The only possible reference to an equal protection violation is the listing of the Fourteenth Amendment among the constitutional provisions the Defendants are alleged to have violated.

  "Because a failure to assert a claim until the last minute will inevitably prejudice the defendant, courts in this District have consistently ruled that *it is inappropriate to raise new claims for the first time in submissions in opposition to summary judgment.'" Beckman v. U.S. Postal Service, 79 F. Supp.2d 394, 407 (S.D.N.Y. 2000) (quoting Bonnie & Co. Fashions, Inc. v. Bankers Trust Co., 170 F.R.D. Ill, 119 (S.D.N.Y. 1997)); see also Caribbean Wholesales & Serv. Corp. v. U.S. JVC Corp., 963 F. Supp. 1342, 1359 (S.D.N.Y. 1997) ("[Plaintiff] in effect is apparently attempting to add a claim never addressed, or even hinted at, in the complaint. Such a step is inappropriate at the summary judgment stage, after the close of discovery, without the Court's leave, and in a brief in opposition to a motion."). "Accordingly, this Court will not consider claims not pleaded in the Complaint." Id. at 408 (citing Yerdon v. Henry, 91 F.3d 370, 370 (2d Cir. 1996)). However, Gill is granted to leave to amend the complaint.

 The Fifth Amendment Claim is Dismissed

  Gill alleges that his Fifth Amendment right against self-incrimination was violated by the Defendants. "[A] § 1983 action may exist under the Fifth Amendment self-incrimination clause if coercion was applied to obtain a waiver of the plaintiffs' rights against self-incrimination and/or to obtain inculpatory statements, and the statements thereby obtained were used against the plaintiffs in a criminal proceeding." DeShawn E. by Charlotte E. v. Safir, 156 F.3d 340, 346 (2d Cir. 1998) (citing Weaver v. Brenner, 40 F.3d 527, 535 (2d Cir. 1994)). The warnings laid out by the Supreme Court in Miranda v. Arizona, 384 U.S. 436 (1966) are a "procedural safeguard designed to protect a person's right against self-incrimination." Id. (citing New York v. Quarles, 467 U.S. 649, 654 (1984)). However, as Miranda warnings are only "suggested," Michigan v. Tucker, 417 U.S. 433, 444 (1974), the "key inquiry for Fifth Amendment purposes is whether the statement introduced in a judicial proceeding was obtained, not by failure to read a defendant the Miranda warnings, but by coercion — an inquiry determined by the totality of the circumstances." DeShawn E., 156 F.3d at 346 (citations omitted). Gill alleges that while he was in police custody in the early hours of March 17, 2002, his criminal counsel, Robert Cohen ("Cohen"), telephoned the precinct between the hours of 12:00 A.M. and 6:00 A.M. and told the officers with whom he spoke not to speak to Gill or to obtain a statement from him. Cohen called the precinct after being informed by Kathleen Gill, the plaintiff's mother, who retained Cohen to represent the plaintiff. Despite Cohen's request, Gardiner took an oral and written statement from Gill at 10:30 A.M. Defendants argue that none of the defendant officers received the call, nor were they informed that Cohen had made such a directive.

  Gill does not allege that the Defendants failed to inform him of his rights under Miranda v. Arizona, 384 U.S. 436 (1966). It is undisputed that Gardiner administered a Miranda warning to Gill at approximately 10:30 A.M. on March 17, 2002 and provided Gill with a worksheet which acknowledged that he had been advised of and understood his rights. Defendants' Exhibit G. Shortly afterward, Gill provided Gardiner with an oral and written statement. Defendant's Exhibit H. Gill does not allege that he had requested the presence of an attorney at any point while he was in police custody. Gill had access to a cellphone while in custody, but has not alleged that he attempted to contact an attorney, either directly or indirectly. Gill maintains, however, that the statement he made to Gardiner was not given voluntarily because Cohen had already called the precinct and invoked Gill's right to have counsel present at all police interrogations.

  The facts in this case, as alleged by Gill, strongly resemble those in Moran v. Burbine, 475 U.S. 412 (1986), in which the Supreme Court held that the efforts of an attorney to contact a defendant while in police custody did not invalidate the defendant's waiver of the right to remain silent and to the presence of counsel even though the defendant was unaware of the fact that the attorney had called. In Moran, the record showed that "the police administered the required warnings, sought to assure that [defendant] understood his rights, and obtained an express written waiver prior to eliciting" statements. Id. at 420. Further, the defendant did not contest "that he at no point requested the presence of a lawyer." Id. The defendant also "had access to a telephone," although he declined to use it to call an attorney. Id. at 418. Finally, there was no "suggestion that police resorted to physical or psychological pressure to elicit the statements." Id. at 421.

  Under such circumstances, the Court found the telephone call by counsel irrelevant to the question of whether defendant had validly waived his right to remain silent and to be represented by an attorney, holding that Events occurring outside the presence of the suspect and entirely unknown to him surely can have no bearing on the capacity to comprehend and knowingly relinquish a constitutional right.

 Id. at 422; see also U.S. v. Scarpa, 897 F.2d 63, 69 (2d Cir. 1990) (defendant "[h]aving waived his constitutional rights, those rights could not be invoked by a third party or even by an attorney referred by a third party without [defendant's] knowledge."). The rationale for the Court's holding in Moran is that "the privilege against compulsory self-incrimination is . . . a personal one that can only be invoked by the individual whose testimony is being compelled." Id. at 433 n.4.*fn4

  The Court further held that "the level of the police's culpability in failing to inform the [defendant] of the telephone call" had no "bearing on the validity of the waivers." Id. at 423. The Court also declined "to adopt a rule requiring that the police inform a suspect of an attorney's efforts to reach him." Id. at 425. Because the holding of Moran is controlling, Gill may not use his attorney's attempts to contact him as a basis to vitiate the voluntariness of either his Miranda waiver or the statements he gave to Gardiner. Gill has alleged no other basis for the involuntariness of his statements apart from the fact of Cohen's attempts to contact him and to prevent the police from interrogating him. Accordingly, because Gill has not shown that the statement he gave was obtained by coercion, summary judgment is granted for the Defendants on the Fifth Amendment claim.

 The Due Process Claim is Dismissed as Duplicative

  Gill alleges that the Defendants' failure to provide him with medical care during the time that he was in police custody amounts to punishment without due process in violation of the Due Process Clause of the Fourteenth Amendment. However, Gill's claim under the Due Process Clause has already been considered in the context of his claim that the Defendants were deliberately indifferent to his serious medical needs. Because Gill was a pretrial detainee at the time of the alleged events, the Eighth Amendment does not apply to him. Weyant, 101 F.3d at 856. The deliberate indifference claim is therefore considered under the Due Process clause which, as noted above, provides protections to an unconvicted detainee that "are at least as great as those of a convicted prisoner." Id. Indeed, the underlying harm behind the deliberate indifference to the medical needs of both convicted prisoners and pretrial detainees is that they are being punished in violation of the Constitution, even though the actions of the relevant officials are not labeled as such. Gill's separate claims for denial of due process and for deliberate indifference to a serious medical need are therefore identical. Accordingly, the claim for denial of due process is dismissed as duplicative.*fn5


  For the reasons set forth above, Defendants' motion for summary judgment is granted dismissing Gill's claims for denial of equal protection, violation of the Fifth Amendment right against self-incrimination, and for denial of due process. Summary judgment is denied as to the claims for deliberate indifference to serious medical needs and for false arrest. Leave is granted to Gill to amend the complaint.

  It is so ordered.

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