The opinion of the court was delivered by: THOMAS McAVOY, District Judge
MEMORANDUM DECISION and ORDER
Plaintiff Scott W. Lasher ("Plaintiff") commenced the instant
action pursuant to 42 U.S.C. § 1983 and 1988, asserting claims
of excessive force, false arrest, unlawful imprisonment,
malicious abuse of process, denial of prompt medical care,
assault and battery, and violations of his Fourth and Fourteenth
Amendment rights, arising out of his arrest on January 20, 2002.
Presently before the Court are motions for summary judgment
submitted pursuant to FED. R. CIV. P. 56 by Defendant Kenneth
Hill and Defendants City of Schenectady, Edward Ritz, Dan Kane,
Yoni Moskow, and Robert W. Glasser seeking dismissal of the
Complaint in its entirety.
On January 20, 2002, Plaintiff and Damien Schon ("Schon") were
at a bar in downtown Schenectady. Also present at the bar were
Defendants Kenneth Hill ("Hill") and Edward Ritz ("Ritz"). At all
times relevant hereto, Hill and Ritz were off-duty, non-uniformed
police officers for the Defendant City of Schenectady ("the
City"). While at the bar, Plaintiff and Ritz consumed alcohol.
Hill stated that he may have drank alcoholic beverages, but does
not recall what he consumed.
Plaintiff and Schon left the bar when it closed at 4:00 a.m.
They entered Plaintiff's Honda sport utility vehicle, drove out
of the parking lot and proceeded past the bar. At the same time,
Hill and Ritz also left the bar and entered Hill's vehicle. As
they began to exit the parking lot, Michael Parisi, the bar
owner, ran towards them. He told Hill and Ritz that a gunshot
emerged from a vehicle as it passed by the bar. Parisi pointed to
Plaintiff's passing vehicle as the source of the shot.*fn1 Hill and Ritz then
exited the lot and began to follow Plaintiff's vehicle.
Parisi also reported the incident by telephone to the
Schenectady Police Department, describing the vehicle as a red
Blazer (sports utility vehicle). An employee of the bar also
called in a report that a "drive-by" shooting had occurred and
identified the vehicle as a red Blazer or red Rodeo.
After being followed for several blocks, Plaintiff stopped his
vehicle at an intersection near Schenectady Police Department
Headquarters. Hill stopped four to five car lengths behind
Plaintiff and remained in his vehicle with Ritz. Plaintiff and
Schon then exited their vehicle. Plaintiff put his hand in his
jacket in a manner indicating that he had a weapon.*fn2
Plaintiff and Schon then returned to their vehicle and drove
away. Hill ran into the police station to report the incident.
Ritz moved into the driver's seat of Hill's vehicle and continued
to follow Plaintiff's vehicle. He eventually stopped to use a pay
phone to contact police dispatch. After five to ten minutes at
the police station, Hill learned that Plaintiff's vehicle had
been located. He and Officer Thomas Kelly left to go to the
At approximately 4:45 a.m., uniformed officers apprehended
Plaintiff and Schon as they were walking on a sidewalk. Officer
Thomas Harrigan ("Harrigan") instructed Plaintiff to get down on the ground. Harrigan then handcuffed Plaintiff and
helped him to stand up.*fn3 Next, Harrigan and Defendant
Schenectady Police Officer Dan Kane ("Kane") escorted Plaintiff
to a police car operated by Officer Phillip Feldhaus ("Feldhaus")
and Defendant Schenectady Police Officer Yoni Moskow ("Moskow").
Plaintiff asserts that on the way to the car, a non-uniformed man
approached him, asked "[r]emember me?", and then punched him in
the face, causing him to bleed profusely. Plaintiff was then
seated in the police car where his nose continued to bleed. No
ambulance was called to the scene.
Officers Hill and Ritz were the only persons employed by the
City of Schenectady Police Department who were not in uniform on
the night in question and who were present at some point in time
at the location where Plaintiff was arrested. Hill contends that
when he arrived at the scene with Officer Kelly, Sergeant Peters
asked him to identify Plaintiff and advised him that Plaintiff
was in the back of a police car. Hill states that he walked to
the police car operated by Feldhaus and Moskow and identified
Plaintiff. Feldhaus and Moskow state that they never saw Hill
approach the car.
Ritz asserts that he stayed at the location of the payphone
until uniformed officers arrived and reported the arrest. He
states that he then drove Hill's vehicle to the scene and
remained in the vehicle while he identified Plaintiff. He
contends he did not exit the vehicle at any time while Plaintiff
Plaintiff, who stands 5'11", states that the man who punched
him was taller than he. According to a Schenectady Police
Department Personal Information Sheet, Ritz is 5'8" tall. Hill
states that he is 5'10" tall, however at a deposition held in a
previous action, he testified that he was 6' tall. At the time Plaintiff was punched, he was
not walking at his full height, but was "bent over" from the
handcuffs connecting his wrists from the rear.
At approximately 5:06 a.m., Feldhaus and Moskow left with
Plaintiff in custody. Paramedics with the Schenectady Fire
Department arrived at the police station to treat Plaintiff's
injuries at 6:37 a.m. At 4:10 p.m., after he had been released
from custody, Plaintiff received treatment for his injuries at
the hospital. His medical records indicate that he suffered a
"nasal fracture with deformity and obstruction." Plaintiff also
complained of a chipped lower front tooth and wrist pain.
Plaintiff was eventually charged by Defendant Robert W. Glasser
("Glasser"), a detective with the Schenectady City Police
Department, for violating New York Penal Law § 120.20, reckless
endangerment in the second degree, for attempting to assault Hill
and Ritz with a handgun. The matter was adjourned in
contemplation of dismissal pursuant to N.Y. CRIM. PROC. § 170.55
Plaintiff commenced the instant action contending that
Defendants violated his constitutional rights under the Fourth
and Fourteenth Amendments and that he was subject to excessive
force, false arrest, unlawful imprisonment, malicious abuse of
process, denial of prompt medical care, and assault and battery.
Defendants now move to dismiss the Complaint in its entirety
pursuant to FED. R. CIV. P. 56. III. STANDARD OF REVIEW
Federal Rule of Civil Procedure 56 provides that summary
judgment is proper when "the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law." FED. R. CIV. P. 56(c); Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). In applying this standard,
courts must "`resolve all ambiguities, and credit all factual
inferences that could rationally be drawn, in favor of the party
opposing summary judgment.'" Brown v. Henderson, 257 F.3d 246,
251 (2d Cir. 2001) (quoting Cifra v. General Electric Co.,
252 F.3d 205, 216 (2d Cir. 2001)). Once the moving party meets its
initial burden by demonstrating that no material fact exists for
trial, the nonmovant "must do more than simply show that there is
some metaphysical doubt as to the material facts." Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)
(citations omitted). Rather, the nonmovant "must come forth with
evidence sufficient to allow a reasonable jury to find in her
favor." Brown, 257 F.3d at 251 (citation omitted). Bald
assertions or conjecture unsupported by evidence are insufficient
to overcome a motion for summary judgment. Carey v. Crescenzi,
923 F.2d 18, 21 (2d Cir. 1991); Western World Ins. Co. v. Stack
Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990). IV. DISCUSSION
a. False Arrest, Unlawful Search and Seizure, Malicious Abuse
of Process, and Unlawful Imprisonment
Plaintiff asserts claims for false arrest, unlawful search and
seizure, malicious abuse of process, and unlawful imprisonment.
The existence of probable cause is a complete defense to each of
these claims. See Weyant v. Okst, 101 F.3d 845, 852-53 (2d
Cir. 1996) (false arrest under New York State and federal law,
unlawful search and seizure, unlawful imprisonment); Cook v.
Sheldon, 41 F.3d 73, 80 (2d Cir. 1994) (malicious abuse of
process); Berman v. Silver, Forrester, & Schisano, 156 A.D.2d 624,
625 (2d Dep't 1989).
Whether probable cause exists is based upon the totality of the
circumstances. Marshall v. Sullivan, 105 F.3d 47, 54 (2d Cir.
1996) (citing Illinois v. Gates, 462 U.S. 213, 231-33 (1983)).
It exists when an officer has "knowledge or reasonably
trustworthy information of facts and circumstances that are
sufficient to warrant a person of reasonable caution in the
belief that the person to be arrested has committed or is
committing a crime." Provost v. City of Newburgh, 262 F.3d 146,
157 (2d Cir. 2001). "It is well-established that a law
enforcement official has probable cause to arrest if he received
his information from some person, normally the putative victim or
eyewitness." Martinez v. Simonetti, 202 F.3d 625, 634 (2d Cir.
2000) (quoting Miroslavsky 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)).
Probable cause can also exist "even where it is based on mistaken
information, so long as the arresting officer acted reasonably
and in good faith in relying on that information." Bernard v.
United States, 25 F.3d 98, 102 (2d Cir. 1994) (citing Colon v.
City of New York, 60 N.Y.2d 78, 468 N.Y.S.2d 453,
455 N.E.2d 1248 (N.Y. 1983)). In the present case, Hill and Ritz had probable cause to
believe that Plaintiff committed a crime. As they were leaving
the parking lot at the bar, bar owner Michael Parisi ran towards
them and reported that a gunshot had been fired from a passing
vehicle. Parisi identified Plaintiff's vehicle as the source of
the gunshot. Plaintiff contends that Schon threw a billiard ball
from Plaintiff's vehicle, and that Parisi mistook the sound of
the ball striking an outside wall of ...