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Feurtado v. City of New York

October 4, 2004


The opinion of the court was delivered by: Gabriel W. Gorenstein, United States Magistrate Judge


Pro se plaintiff Elijah Feurtado commenced this action under 42 U.S.C. § 1983 seeking relief for civil rights violations stemming from his arrest on May 29, 2001. The defendants, Police Officer Sean Kelleher and the City of New York have moved for partial summary judgment. The parties have consented to the disposition of this matter by a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). For the following reasons, the defendants' motion for partial summary judgment is granted.


A. The Complaint

Feurtado's complaint alleges that on May 29, 2001 he was "wrongfully detained... and eventually arrested" by Officer Kelleher. Complaint, filed February 20, 2003 (Docket #1), ¶¶ 1, 7. Feurtado's complaint further alleges that despite compliance with Officer Kelleher's instructions, Officer Kelleher "handcuffed [him] viciously, beat and kicked... and otherwise abused [him]." Complaint ¶¶ 8, 9.

Feurtado has asserted claims solely under 42 U.S.C. § 1983. He alleges that he was subjected to "unreasonable force, unlawful detention, punishment without due process, unconstitutional conditions of confinement, [and] deprivations of [his] right to observe and exercise [his] religious practices." Complaint at 1. He also asserts that he "received injuries about [his] body and was humiliated." Id. Feurtado cites the First, Fourth, Sixth and Fourteenth Amendments to the United States Constitution as bases for his claims. See id.

B. The Evidence Submitted on the Summary Judgment Motion

Feurtado did not submit opposition papers to the defendants' motion for summary judgment. The following facts are thus taken from the defendants' Statement Pursuant to Local Civ. R. 56.1, each paragraph of which contains citations to evidence in the record, including arrest reports and a Criminal Court affidavit. See Statement of Undisputed Facts Pursuant to Local Civil Rule 56.1, dated May 7, 2004 (Docket #17) ("Def. Statement").

On May 29, 2001, at approximately 11:00 a.m., while patrolling in the vicinity of 52nd Street and Avenue U in Brooklyn, New York, Police Officer Sean Kelleher observed Feurtado block traffic when he let out passengers without pulling to the curb. See Def. Statement ¶¶ 2, 3. After stopping Feurtado in an attempt to issue him a summons for the traffic violations, Officer Kelleher ran a warrant check, which revealed two active warrants for Feurtado's arrest. See id. ¶ 4. Officer Kelleher informed Feurtado that the warrants had been issued, see id. ¶ 8, and requested that Feurtado exit the van, see id. ¶ 5. When Feurtado did not, Officer Kelleher attempted to handcuff him and a struggle ensued. See id. Feurtado was thereupon arrested for obstructing governmental administration, resisting arrest, violations of the vehicle and traffic laws, and obstructing traffic. See id. ¶ 9. The District Attorney's Office eventually charged Feurtado with resisting arrest. See id. ¶ 10. On May 30, 2001, Feurtado pled guilty to the offense of disorderly conduct and was sentenced to time served. See id. ¶ 11.

C. Procedural History

The complaint in this matter was filed on February 20, 2003, listing as the only named defendants the City of New York and Police Officer Sean Kelleher. See Complaint at 1.

After several extensions of fact discovery, the Court set a schedule under which any dispositive pre-trial motions were required to be served by May 7, 2004, with any opposition papers to such a motion due by May 28, 2004. See Order, filed March 4, 2004 (Docket #14), at 2.

The defendants timely filed the instant motion for summary judgment pursuant to Fed. R. Civ. P. 56. See Notice of Motion, filed May 7, 2004 (Docket #16) (Notice of Motion), at 1. The motion included a statement pursuant to Local Civil Rule 56.1 listing the undisputed material facts. See Def. Statement. The motion also included the notice required by Local Civ. R. 56.2 warning Feurtado of the consequences of a failure to respond. See Local Civil Rule 56.2 Notice to Pro Se Litigant Opposing Motion for Summary Judgment, filed May 7, 2004 (Docket #18) at 1. The notice reminded Feurtado that any failure to submit opposition papers would mean that the facts stated in the defendants' statement pursuant to Rule 56.1 would be "deem[ed] true." Id. at 2. In addition, it warned Feurtado that "SOME OF THE CLAIMS YOU ASSERT IN YOUR COMPLAINT MAY BE DISMISSED WITHOUT A TRIAL IF YOU DO NOT RESPOND TO THIS MOTION by filing your own papers as required by Rule 56(e)." Id. at 1 (capitalization in the original).

The defendants' Notice of Motion repeated the Court's deadline for the filing of Feurtado's papers. See Notice of Motion at 1 (" PLEASE TAKE FURTHER NOTICE that plaintiff's opposition papers, if any, are required to be served upon the undersigned on or before May 28, 2004") (capitalization and emphasis in the original). Feurtado filed no opposition papers on May 28, 2004, however; nor did he request that the deadline be extended. Subsequently, the defendants wrote to the Court noting that Feurtado had failed to respond and asking that the motion be deemed fully submitted - a request that the Court granted. See Memorandum Endorsement, filed June 15, 2004 (Docket ...

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