The opinion of the court was delivered by: Joseph F. Bianco, District Judge
Pro se plaintiff Clint Davenport ("Davenport") brings this action against the County of Suffolk ("the County"), the Suffolk County Police Department ("SCPD") and Suffolk County Police Officer Daniel Feigenbaum ("Officer Feigenbaum") (collectively, "defendants"), alleging violations of his civil rights under 42 U.S.C. § 1983 and pendent state law claims arising from his arrest in connection with an automobile stop in Wyandanch, New York, on June 4, 1996, for driving while impaired by drugs and criminal possession of marijuana. On August 14, 2000, defendants moved for summary judgment as to plaintiff's false arrest claims. On February 6, 2001, in a Memorandum and Order issued by the Honorable Joanna Seybert, defendants' motion was (1) granted as to the unlawful arrest claim, as it related to the arrest for driving while under the influence of drugs, and (2) denied as to the unlawful arrest claim, as it related to the arrest for possession of marijuana.
On May 5, 2006, defendants renewed their motion for summary judgment as to the remaining false arrest claim, based upon the United States Supreme Court's subsequent decision in Devenpeck v. Alford, 543 U.S. 146 (2004), which clarified the applicable standard for false arrest claims under Section 1983. Defendants also moved for summary judgment as to Davenport's unreasonable search and seizure claim. Davenport cross-moved to amend his complaint to add the following: (1) a malicious prosecution claim; and (2) excessive force and battery claims arising from the alleged banging of his head on the police car by Officer Feigenbaum during the arrest. For the reasons stated below, defendants' motion for summary judgment is (1) granted as to the false arrest claim based upon the possession of marijuana charge, and (2) denied as to the unreasonable search and seizure claim. In addition, Davenport's motion to amend his complaint is granted as to the excessive force claim and denied without prejudice as to the malicious prosecution claim.
Prior to 1996, Davenport was an attorney admitted to practice in the State of New York. (See Defendants' Rule 56.1 Statement of Material Facts ("Defs.' 56.1"), ¶ 1.) According to defendants, on June 4, 1996, while operating a 1984 Datsun on Lake Avenue in Wyandanch, New York, Davenport was not wearing a seat belt, was driving the wrong way on the road, failed to stop at a stop sign, and failed to signal before making a right turn onto Straight Path. (See Defs.' 56.1, ¶¶ 2-3.) Suffolk County Police Officers Feigenbaum and James Moran ("Moran") pulled over Davenport's car and discovered that Davenport was in possession of a bag of marijuana. (Defs.' 56.1, ¶¶ 4-5.) The officers then arrested Davenport for the following offenses: driving while impaired by drugs, in violation of New York Vehicle and Traffic Law ("VTL") §1192(4); criminal possession of marijuana, in violation of New York Penal Law § 221.05; and violations of VTL §§ 1163, 1229-C & 1172. Davenport was transported to the Suffolk County Police Department's First Precinct, where he refused three requests to permit his blood to be tested for drug intoxication as required by VTL § 1194(2). (Defs.' 56.1, ¶ 5.)
On November 15, 1996, a hearing was held before Administrative Law Judge Siegel ("ALJ Siegel") of the New York State Department of Motor Vehicles, pursuant to VTL § 1194(2)(c). (Defs.' 56.1, ¶ 8.) After a hearing, ALJ Seigel found that the officers had probable cause to arrest Davenport for violating VTL § 1192 and concluded that Davenport had improperly refused to submit to an intoxication test as required under VTL § 1194. (Defs.' 56.1, ¶ 9 & Ex. A.)
On January 24, 1997, Davenport gave a written statement to the Suffolk County Police Department's Internal Affairs Bureau, in which he stated that during his arrest on June 4, 1996, a bag of marijuana was found by the police in his pocket. (Defs.' 56.1, ¶¶ 10-11 & Ex. B.) In addition, on October 25, 1999, Davenport filed a document entitled "Discovery Response" in this action, in which he stated that "a bag of marijuana was removed from [his] pocket" after the officers stopped him. (Defs.' 56.1, ¶ 12 & Ex. C.) According to the felony complaint against plaintiff, the marijuana was not removed from Davenport's pocket; rather, the bag of marijuana fell onto the street when the plaintiff put his hand into his pocket to withdraw his license. (Pl.'s Br., Ex. 1.)
Davenport commenced this action on June 1, 1999, alleging unlawful arrest and unlawful search and seizure in violation of his civil rights pursuant to 42 U.S.C. § 1983.*fn1 Davenport's complaint also appeared to assert pendent state law claims for intentional and/or negligent infliction of emotional distress.
Specifically, Davenport alleges that, while driving his car on or about June 4, 1996, he was unlawfully pulled over by Officer Feigenbaum. (Amended Complaint ("Am. Compl."), ¶¶ 10-11.) Davenport further alleges that, upon stopping his car, he was "forcibly removed" from his vehicle, "forcibly searched," "arrested," and "forcibly handcuffed and physically placed into the police vehicle" without legal cause or justification. (Am. Compl., ¶¶ 13-15.) According to the complaint, he was thereafter wrongfully "charged [sic] detained, deprived of his liberty against his will, and forcibly imprisoned" at the police precinct for ten hours. (Am. Compl., ¶ 16.) Davenport alleges that, as a result of these violations of his civil rights under Section 1983, he "has been damaged, and has been caused to suffer humiliation, ridicule, disgrace, and embarrassment, and has sustained substantial expense, and significant physical, emotional, and mental anguish, including substantial attorney fee's [sic]." (Am. Compl., ¶ 33.)
On August 14, 2000, defendants moved for summary judgment as to the false arrest claims. In his opposition to that motion, Davenport sought leave to amend his complaint to add claims for malicious prosecution, violations of his right to equal protection, and violations of his right to substantive and procedural due process. On February 6, 2001, Judge Seybert granted the defendants' motion for summary judgment as to the unlawful arrest claim inasmuch as it related to Davenport's arrest for driving while under the influence of drugs, and denied defendants' motion for summary judgment as to the unlawful arrest claim inasmuch as it related to Davenport's arrest for possession of marijuana. Judge Seybert granted Davenport's cross-motion to amend his complaint to add claims under the Equal Protection Clause and the Due Process Clause. Plaintiff's cross-motion to amend his complaint to add a malicious prosecution claim was denied without prejudice, pending termination of Davenport's criminal prosecution.
On February 16, 2006, the case was transferred to the undersigned. On May 5, 2006, defendants renewed their motion for summary judgment to dismiss plaintiff's remaining false arrest claim, based upon the Supreme Court's 2004 decision in Devenpeck. Defendants also moved for summary judgment as to Davenport's unreasonable search and seizure claim.*fn2 On July 5, 2006, Davenport cross-moved to amend his complaint to add malicious prosecution, excessive force and battery claims. Oral argument was held before this Court on February 9, 2007.
Pursuant to Federal Rule of Civil Procedure 56(c), a court may not grant a motion for summary judgment unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); Globecon Group, LLC v. Hartford Fire Ins. Co., 434 F.3d 165, 170 (2d Cir. 2006). The moving party bears the burden of showing that he or she is entitled to summary judgment. See Huminski v. Corsones, 396 F.3d 53, 69 (2d Cir. 2005). The court "is not to weigh the evidence but is instead required to view the evidence in the light most favorable to the party opposing summary judgment, to draw all reasonable inferences in favor of that party, and to eschew credibility assessments." Amnesty America v. Town of West Hartford, 361 F.3d 113, 122 (2d Cir. 2004) (citation omitted); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (stating that summary judgment is unwarranted if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party"). Once the moving party has met its burden, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts . . . [T]he nonmoving party must come forward with specific facts showing that there is a genuine issue for trial." Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir. 2002) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)).
A. Claims Arising Under 42 U.S.C. § 1983
Section 1983 "is not itself a source of substantive rights, but a method for vindicating federal rights elsewhere conferred by those parts of the United States Constitution and federal statutes that it describes." Baker v. McCollan, 443 U.S. 137, 145 n.3 (1979). Section 1983 provides as follows:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law . . . 42 U.S.C. § 1983. For claims under Section 1983, a plaintiff must prove that "(1) the challenged conduct was attributable at least in part to a person who was acting under color of state law and (2) the ...