REPORT AND RECOMMENDATION
TO THE HONORABLE KIMBA M. WOOD, U.S.D.J.:
Defendants have moved for summary judgment dismissing the claims of pro se plaintiff Eugene Smith ("Smith") in this action commenced pursuant to 42 U.S.C. § 1983. Liberally: construed,*fn1 Smith's Complaint principally charges that members of the Yonkers Police Department (the "YPD" or the "Department") violated his constitutional rights by subjecting him to excessive force involving the use of a police dog during his arrest.
It is undisputed that Smith was arrested after being found hiding in the basement of a home he admitted to burglarizing. According to Smith, the police dog that located him in the basement was released by a police officer unjustifiably and without warning, and then attacked him "viciously," causing him serious injuries. Smith challenges the officer's alleged failure to warn him that the dog was being released, the actual release of the dog, and/or the alleged failure of the police to control the dog after it attacked him. Smith further asserts that members of the YPD were inadequately trained, supervised, and disciplined in connection with the use of police dogs, and that his injuries therefore arose from constitutionally deficient "policies, customs, and practices" of the Department. Smith seeks monetary relief, as well as an order enjoining the defendants from engaging in the alleged unlawful "activities."
For the reasons stated below, I respectfully recommend that the defendants' motion for summary judgment be granted.
A. Events Preceding Smith's Arrest
Smith does not dispute defendants' account of the events that preceded his being found by a police dog in the basement of a residence that he was in the process of burglarizing. On November 28, 2000, several officers of the YPD Anti-Crime Unit were patrolling an area of Southeastern Yonkers where there had been a recent rash of burglaries. ( See Defendants' Memorandum of Law in Support of Motion for Summary Judgment filed Nov. 14, 2003 ("Def. Mem.") (Dkt. 33) at 2; Affirmation in Support by Brendan James Mayer, Esq. filed Nov. 14, 2003 ("Mayer Aff.") (Dkt. 34) Ex. A.) Among those officers were defendants R. Faivre ("Faivre"), J. Penzo ("Penzo"), Michael DiCaprio ("DiCaprio"), and K. Olson ("Olson"). ( See id.)*fn2
While on patrol, Officers Faivre, Penzo and DiCaprio observed a black male, later identified as Smith, wearing a brown leather jacket and carrying a backpack, standing on the corner "looking around." (Mayer Aff. Ex. A.) Smith began to walk in and out of the backyards of residences in the area. ( Id. ) Some of the officers followed Smith on foot to continue surveillance, while other officers followed in unmarked police vehicles. ( Id.) Smith continued in and out of the backyards of several houses on different avenues in the area, with the officers watching. (Def. Mem. at 2-3; Mayer Aff. Ex. K.)
Finally, Smith walked to the rear of a home located at 55 Crestmont Avenue (the "residence") and failed to emerge. (Def. Mem. at 3; Mayer Aff. Ex. A.) Officers then proceeded to the rear of this residence. ( Id.) There they observed an open window on the ground floor, a screen placed nearby that appeared to have come from the window, and, also on the ground near the window, the brown leather jacket that Smith had been wearing. ( Id.)
The officers surrounded the residence. (Mayer Aff. Ex. A.) Officer DiCaprio saw Smith inside the residence and made eye contact with him. (Def. Mem. at 4; Mayer Aff. Ex. J ("Smith Dep.") at 46-48; Affidavit/Affirmation in Opposition by Eugene C. Smith sworn to Dec. 22, 2003 ("Pl. Aff.") ¶¶ 11,18.) Smith then went and hid in a basement crawlspace. (Def. Mem. at 4; Smith Dep. at 52-54; Pl. Aff. ¶ 19.) The police called two Emergency Services Unit ("ESU") trucks and a K-9 unit to assist. (Def. Mem. at 4; Mayer Aff. Exs. A, C, L.)*fn3 Once these units arrived, and having received information that there may have been firearms in the home, several officers, including ESU officers, K-9 team Officer Potanovic, and his K-9 partner Chas (the dog), entered the residence. (Def. Mem. at 4-5; Mayer Aff. Exs. A, C, L; Pl. Aff. ¶ 21.)
B. The Release of the Police Dog and Smith's Arrest
Smith states that, upon observing "50 to 60" officers with their weapons drawn, directly outside the window of the residence he had entered, he ran and hid out of fear for his life. (Pl. Aff. ¶¶ 17-21.) According to Smith, the police then, without warning and without first providing him with a chance to surrender, released the police dog into the basement to attack him. ( Id. ¶¶ 13, 21, 23.) Smith further alleges that the police allowed the dog to attack him for 20 minutes, before stopping the attack. ( Id. ¶¶ 14, 24.) Although defendants assert that it was Smith who attacked the dog (Def. Mem. at 5), Smith contends that, to the extent he did so, it was in self-defense (Pl. Aff. ¶ 14.) Smith alleges that, upon being bitten, he suffered puncture wounds that were so deep they reached the bone, and that he also suffered severe tissue tears, lacerations, and torn ligaments to his left forearm and right ankle. (Complaint filed June 24, 2002*fn4 ("Compl.") (Dkt. 2) ¶ 11; Pl. Aff. Ex. A (color photographs taken after the incident showing Smith's injuries).)
Defendants contend that Smith was evading police and resisting arrest by hiding in the basement crawlspace. (Def. Mem. at 4, 6.) They further assert that the additional ESU and K-9 units that were called to the scene were necessary, based on received information that there might be weapons present and that Smith therefore posed an immediate threat. ( Id. at 4, 16.) Defendants assert that, with this information in mind, the K-9 Unit Officer, Officer Potanovic, entered the house and gave the appropriate K-9 warning.*fn5 ( Id. at 4-5; Potanovic Aff. ¶¶ 8-9.) After purportedly waiting two minutes for a response and receiving none, Officer Potanovic states that he released Chas into the first and second floors of the home. (Def. Mem. at 4-5.) Finally, according to defendants, Officer Potanovic opened the basement door, gave another warning, again waited for approximately two minutes, and, receiving no response, released the dog into the basement where Smith was hiding. ( Id. at 5; Potanovic Aff. ¶¶ 10-11.) The crawl space where Smith was hiding was dark, ran approximately 25 feet back and was three feet high. (Def. Mem. at 16; Smith Dep. at 52-54, 57.)
Defendants contend that, when Officer Potanovic advanced, he found Smith "twisting Chas' snout and kicking Chas in the ribs." (Def. Mem. at 5.) Defendants assert that the officer recalled Chas as soon as the dog could break free from Smith's grip. ( Id.; Potanovic Aff. ¶¶ 13-14.) Defendants further assert that the dog only bit Smith in self-defense, when it was kicked. ( Id. at 5.) According to defendants, Smith's injuries were puncture wounds that did not require stitches or staples, while the dog, for its part, suffered a laceration to its mouth and contusions to its rib cage. ( Id. at 6; Potanovic Aff. ¶ 16.) Defendants suggest that Smith's supposedly "erratic behavior" and treatment of the dog may be explained, at least in part, "by the fact that he was high on crack cocaine" at the time. ( Id. at 5; see also Smith Dep. at 49-50 (admitting that he was under the influence of crack cocaine at the time of the incident).)
Smith was placed under arrest at the scene (Def. Mem. at 5), and was transported to the emergency room of St. Joseph's Hospital in Yonkers for treatment ( id. at 6; Pl. Aff. ¶ 15.) He was charged with burglary in the second degree, to which he later pleaded guilty. (Def. Mem. at 7-9; Pl. Aff. ¶ 9.)
In his Complaint, Smith alleges that, as a result of the use of excessive force during his arrest, he suffered severe physical injury. (Compl. ¶¶ 11-12, 15.) It appears that Smith may also be alleging claims for, inter alia, false arrest, false imprisonment, and malicious prosecution. ( Id. ¶ 16; Def. Mem. at 12.) He seeks injunctive relief, as well as $10,000,000 in punitive damages. (Compl. ¶¶ 23, 26)
On October 25, 2002, defendants answered the Complaint. (Dkt.15.) Subsequently, on November 21, 2003, defendants moved for summary judgment, pursuant to Federal Rule of Civil Procedure 56(c), on the grounds that: (1) the Complaint fails to state any claim upon which relief can be granted; (2) the individual defendants are entitled to qualified immunity; and (3) Smith cannot establish the existence of any municipal policy or custom, or lack of training or supervision, which caused the alleged deprivation of Smith's constitutional rights. (Def. Mem. at 1.)
On December 22, 2002, Smith submitted his opposition to defendants' summary judgment motion, asserting that his claims should not be summarily dismissed because genuine issues of material fact exist regarding the circumstances surrounding the incident. (Pl. Aff. ¶¶ 53-56.)
I. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate where "there is no genuine issue as to any material fact and... the moving party is entitled to a judgment as a matter of law," Fed. R. Civ. P. 56(c), i.e., "[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); accord Quinn v. Green Tree Credit Corp., 159 F.3d 759, 765 (2d Cir. 1998). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The burden rests on the moving party to demonstrate the absence of a genuine issue of material fact, Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986), and the Court must view the record in the light most favorable to the non-movant by resolving all ambiguities and drawing all reasonable inferences in favor of that party, Matsushita, 475 U.S. at 587-88; see also Tomka v. Seiler Corp., 66 F.3d 1295, 1304 (2d Cir. 1995). Where, however, the non-movant has no evidentiary support for an essential element on which it bears the burden of proof, summary judgment is warranted. Celotex, 477 U.S. at 322-23; Silver v. City Univ. of New York, 947 F.2d 1021, 1022 (2d Cir. 1991); see also Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995) ("In moving for summary judgment against a party who will bear the ultimate burden of proof at trial, the movant's burden will be satisfied if he can point to an absence of evidence to support an essential element of the nonmoving party's claim.").
Further, where, as here, the party opposing summary judgment is proceeding pro se, the
Court must read his papers liberally and interpret them "to raise the strongest arguments that they
suggest." McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (internal quotation marks
and citation omitted). Even a pro se plaintiff, however, cannot withstand a motion for summary
judgment by relying merely on the allegations of a complaint. See Champion v. Artuz,
76 F.3d 483, 485 (2d Cir. 1996). Rather, when confronted with evidence of facts that would
support judgment in the defendant's favor as a matter of law, the plaintiff must come forward
with evidence in admissible form that is capable of refuting those facts.
See Fed. R. Civ. P. 56(e); see also Jermosen v. Coughlin, 877 F. Supp. 864, 867 (S.D.N.Y. 1999)
( pro se plaintiffs must make proper evidentiary showing in order to defeat summary judgment).
II. THE K-9 DOG'S LACK OF CAPACITY TO BE SUED
Defendants have moved for summary judgment on all claims against Chas, the dog, because 42 U.S.C. § 1983 does not, as a matter of law, permit suits against animals. (Def. Mem. at 11.) Section 1983 states that any "person" who, under color of law, deprives a United States citizen of his or her Constitutional rights, will be liable for his or her actions. A police dog is not a "person" for these purposes. See, e.g., Fitzgerald v. McKenna, 95 Civ. 9075 (DAB) (HBP), 1996 WL 715531, at *7 (S.D.N.Y. Dec. 11, 1996) (the court, on its own motion, denied an attempt to maintain a Section 1983 action against "K-9 Dog Stan" because "animals lack capacity to be sued"); see also Dye v. Wargo, 253 F.3d 296, 299 (7th Cir. 2001) (finding that the word "person" under Section 1983 includes "corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals...," but not dogs, and noting the array of problems that would result were the court to hold otherwise) (quoting 1 U.S.C. §1). Thus, a dog is an inappropriate party in this case, and I respectfully recommend that summary judgment be granted as against Chas on all claims.
With respect to the remainder of the named defendants - various police officers and the YPD Commissioner - Smith seeks both monetary and injunctive relief, and he has named all of these defendants in both their official and individual capacities. These defendants, however, are ...