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August 6, 2004.

THE CITY OF NEW YORK, NEW YORK CITY POLICE DEPARTMENT, NEW YORK CITY POLICE COMMISSIONER, NEW YORK CITY POLICE OFFICER GILKES, NEW YORK CITY POLICE OFFICER TORRES, AND NEW YORK CITY POLICE OFFICER "JOHN DOES" 1-10, the name being fictitious, the person intended being a police officer involved in an incident on December 4, 2001, Defendants.

The opinion of the court was delivered by: SHIRA SCHEINDLIN, District Judge



  Berton Gaskins brings this action against New York City Police Officers Foster Gilkes and Eric Torres, the New York City Police Department, and the City of New York (collectively "the City"), alleging false arrest, malicious prosecution, excessive force and failure to intervene, in violation of his constitutional rights under 42 U.S.C. ยง 1983 and New York state law. Gaskins seeks damages for the physical injuries he sustained when arrested on narcotics charges by Officers Gilkes and Torres on December 4, 2001. The City now moves for summary judgment, arguing that (1) there was probable cause for Gaskins' arrest and prosecution; (2) Officer Gilkes cannot be held liable for failing to intervene because Officer Gilkes did not see Officer Torres use force; and (3) the officers are entitled to qualified immunity. For the following reasons, summary judgment is granted in part and denied in part.


  On the afternoon of December 4, 2001, Gaskins walked out of a grocery store on the corner of West 141st Street and Broadway.*fn1 As he exited the store, Gaskins was approached by a man who said "Papi, come here, I got it for you right here," and threw his arm around Gaskins' neck.*fn2 Gaskins believed that the man was trying to sell him drugs.*fn3

  Officer Gilkes, who was driving a police car also occupied by Officer Torres, observed this interaction, and believed that a drug transaction was taking place.*fn4 Officer Gilkes pulled up behind Gaskins in the police car as Gaskins was crossing 141st Street.*fn5 When the stranger who had approached Gaskins saw the police car, he appeared nervous and told Gaskins to "go ahead, keep walking, walk, just keep going."*fn6 As Gaskins continued to cross the street, the officers stopped the car.*fn7 Officer Gilkes thought he saw Gaskins drop a clear plastic bag that contained a white substance.*fn8

  Officer Gilkes walked over to the area where he had seen the clear plastic bag.*fn9 When Officer Torres directed Gaskins to come towards him, Gaskins said "that's not mine, I'm not going over there."*fn10 Gaskins admits that he thought that the bag contained drugs.*fn11 It was later confirmed that the bag in fact contained 29.7 grams of heroin.*fn12

  Gaskins testified that Officer Torres grabbed him in order to bring him over to Officer Gilkes. According to Gaskins, Officer Torres struck his right leg with his baton, which caused Gaskins to stumble, and then struck his left leg, which brought Gaskins to the ground. Officer Torres applied pressure to the backs of Gaskins' knees, flipped Gaskins over, and jumped on the front of his knees.*fn13

  Officer Gilkes testified that he never saw Officer Torres use any force on Gaskins.*fn14 However, Gaskins testified that he could see Officer Gilkes while he was on the ground, and he believed that Officer Gilkes could also see him.*fn15 Gaskins further testified that he was "screaming, crying, asking what's going on" while being assaulted by Officer Torres, and that the assault lasted long enough for a crowd to gather.*fn16

  Gaskins was charged with criminal possession of a controlled substance and resisting arrest.*fn17 Gaskins testified that Judge Claire Weinberg noticed his physical condition at his arraignment in Criminal Court in New York on December 5, 2001, and ordered an ambulance to take him to the hospital.*fn18 On October 7, 2002, the court granted the District Attorney's motion to dismiss the charges brought against Gaskins.*fn19


  A. Summary Judgment Standard

  Summary judgment is appropriate if the evidence of record "show[s] that there is no genuine issue for trial as to any material fact and that the moving party is entitled to judgment as a matter of law."*fn20 "An issue of fact is genuine `if the evidence is such that a jury could return a verdict for the nonmoving party.'"*fn21 "A fact is material for these purposes if it `might affect the outcome of the suit under the governing law.'"*fn22 The court's task is not to "weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial."*fn23

  The movant has the burden of demonstrating that no genuine issue of material fact exists.*fn24 In turn, to defeat a motion for summary judgment, the non-moving party must raise a genuine issue of material fact. To do so, it "must do more than simply show that there is some metaphysical doubt as to the material facts,"*fn25 and it must "come forward with `specific facts showing that there is a genuine issue for trial.'"*fn26 In determining whether a genuine issue of material fact exists, the court must construe the evidence in the light most favorable to the non-moving party and draw all inferences in that party's ...

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