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
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employment were withdrawn following the filing of the instant motion.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
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
"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
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
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
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
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.
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
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
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 . . ."
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
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
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
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
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
It is so ordered.