MEMORANDUM OPINION AND ORDER
Plaintiff Jamel "Abdula" Allen brings suit against the City of New York ("City"), Captain Sakellardis, and Correction Officers Crespo, Merced, and Reyes (collectively, "defendants"), alleging violations of his constitutional rights pursuant to 42 U.S.C. § 1983. Allen claims that, while being held in custody at Rikers Island, he was assaulted by corrections officers and then falsely arrested and maliciously prosecuted in connection with the incident, all in violation of his constitutional rights. On December 5, 2005, defendants moved for summary judgment on all of Allen's claims in his Second Amended Complaint. On September 29, 2006, Magistrate Judge Debra Freeman issued a Report and Recommendation (the "Report") recommending that defendants' motion for summary judgment be granted as to defendants Sakellardis, Crespo, Reyes, and the City of New York, and that all of Allen's claims against these defendants be dismissed. As to defendant Merced, the Report recommends that the motion for summary judgment be granted as to Allen's § 1983 claim predicated on false arrest, but denied as to the § 1983 claims predicated on the use of excessive force and malicious prosecution. Finally, the Report recommends that the Court decline to reach any state law assault claim not pleaded in this action, and, to the extent that Allen may have attempted to plead a due process or retaliation claim, that the Court dismiss any such claim on summary judgment, as to all defendants. Allen filed timely objections to the Report ("Objection"); the Court has received no objections from defendants. For the reasons set forth below, the Court denies defendants' motion for summary judgment on Allen's failure-to-intervene claim against Sakellardis and Crespo but otherwise adopts the Report in its entirety.
The facts underlying Allen's claims are extensively outlined in the Report, familiarity with which is assumed, and which is attached to this Opinion for ease of reference.
The district court adopts a magistrate judge's report and recommendation when no clear error appears on the face of the record. See Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985). However, the court is required to make a de novo determination of those portions of a report to which objection is made, 28 U.S.C. § 636(b)(1)(C), by reviewing "the Report, the record, applicable legal authorities, along with Plaintiff's and Defendant's objections and replies." Badhan v. Lab. Corp. of Am., 234 F. Supp. 2d 313, 316 (S.D.N.Y. 2002). The court may then accept, reject, or modify in whole or in part recommendations of the Magistrate Judge. See Nelson, 618 F. Supp. at 1189. If, however, the party "makes only conclusory or general objections, or simply reiterates his original arguments, the Court reviews the Report and Recommendation only for clear error." Sanchez v. Dankert, No. 03 Civ. 2276 (LTS), 2004 U.S. Dist. LEXIS 3716, 2004 WL 439502, at *1 (S.D.N.Y. Mar. 9, 2004); accord Johnson v. City Univ. of New York, No. 00 CV 4964 (WK), 2003 U.S. Dist. LEXIS 10615, 2003 WL 21435469, at *1 (S.D.N.Y. June 19, 2003); Greene v. WCI Holdings Corp., 956 F. Supp. 509, 513 (S.D.N.Y. 1997). "If no objections are filed, or where objections are merely perfunctory responses, argued in an attempt to engage the district court in a rehashing of the same arguments set forth in the original petition, reviewing courts should review a report and recommendation for clear error." Edwards v. Fischer, 414 F. Supp. 2d 342, 346--47 (S.D.N.Y. 2006) (internal quotation marks and citations omitted).
Summary judgment is appropriate 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). In a motion for summary judgment, the Court must view the facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The moving party bears the burden of demonstrating that no genuine issue of fact exists for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 331 (1986). Once the moving party succeeds in this showing, the burden shifts to the nonmoving party to demonstrate that an issue of material fact does exist. Id. In order to defeat a motion for summary judgment, the nonmoving party "must do more than show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586. The nonmoving party "must come forward with 'specific facts showing that there is a genuine issue for trial.'" Id. at 587 (quoting Fed. R. Civ. P. 56(c)).
For the most part, Allen's objections merely reiterate the arguments made in his opposition to summary judgment, and his only evidence to support the objections are the exhibits to his opposition. He objects to the recommendation that his excessive force claim against defendants Sakellardis, Crespo, and Reyes be dismissed, arguing once again that their use of force to pull him into the dormitory while he physically resisted constituted cruel and unusual punishment in violation of the Eighth Amendment. With respect to his claim against the City, Allen concedes that he has failed to demonstrate the existence of a municipal practice or "policy that was the moving force of the constitutional violation[s]" alleged in his Second Amended Complaint, a prerequisite to holding the City liable under § 1983 for the individual defendants' actions, see Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691, 694 (1978), but he renews his application for additional discovery to develop this claim. To the extent that these arguments "engage the district court in a rehashing of the same arguments" made in Allen's opposition to the motion for summary judgment, the appropriate standard of review is clear error. Edwards, 414 F. Supp. 2d at 346--47.
Allen argues, however, that Sakellardis, Crespo, and Reyes should be held liable for their failure to intervene to prevent or stop the alleged assault by Merced, which Allen claims occurred while he was in handcuffs and was being led from the dormitory to Intake, necessitating de novo review of this aspect of the Report. The Report did not consider a failure-to-intervene claim against Sakellardis, Crespo, or Reyes because the Magistrate Judge concluded that neither Allen's Second Amended Complaint nor his opposition stated such a claim. (Report 20 n.11.) Nevertheless, having generously reviewed the pleadings and briefs in light of Allen's objections, the Court concludes that Allen inartfully attempted to state such a claim, at least with respect to Sakellardis and Crespo. Allen states that, "Capt. Sakellardis was the supervisory in charge of the incident, but let C.O. Merced dictate the situation . . . ." (Opp'n 8.) Allen then describes how Merced banged Allen's head against the wall and states that Sakellardis, Merced, and Crespo "should individually be liable for the actions in this incident." (Id.) Allen also cites Wright v. Smith, in which the Second Circuit held that "a defendant who occupies a supervisory position may be found personally involved in the deprivation of a plaintiff's constitutionally protected liberty" where the supervisory official "was grossly negligent in managing subordinates who caused the unlawful condition or event." 21 F.3d 496, 501 (2d Cir. 1994) (quoting Williams v. Smith, 781 F.2d 319, 323--24 (2d Cir. 1986)). Although Wright is not a duty-to-intervene case, the Court understands Allen to argue that Sakellardis and Crespo should be liable for standing by without intervening when Merced assaulted him. This is not an illogical claim to bring, and a reasonable plaintiff in Allen's position would be expected to raise such a claim. For these reasons, the Court deems Allen's allegations sufficient to raise a claim against Sakellardis and Crespo for failure to intervene. See Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994) ("We read [the pro se party's] supporting papers liberally, and will interpret them to raise the strongest arguments that they suggest."); Graham v. Lewinski, 848 F.2d 342, 344 (2d Cir. 1988) (referring to the "special solicitude" afforded pro se litigants when confronted with motions for summary judgment). Although defendants do not address squarely what happened as Merced led Allen back to Intake, they state that they applied force only to move Allen into the dormitory (Def. Rule 56.1 Statement ¶ 16), implicitly denying that any force was used thereafter. The Court will therefore consider whether summary judgment should be granted for defendants on Allen's failure-to-intervene claim.
"It is widely recognized that all law enforcement officials have an affirmative duty to intervene to protect the constitutional rights of citizens from infringement by other law enforcement officers in their presence." Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994) (citing O'Neill v. Krzeminski, 839 F.2d 9, 11 (2d Cir. 1988). An officer who does not personally inflict the injury at the core of an excessive use of force claim may still be liable under § 1983 where the officer fails to intervene to prevent the harm, in spite of a "realistic opportunity" to do so, O'Neill, 839 F.2d at 11--12, and "observes or has reason to know . . . that excessive force is being used." Anderson, 17 F.3d at 557. "Whether an officer had sufficient time to intercede or was capable of preventing the harm being caused by another officer is an issue of fact for the jury unless, considering all the evidence, a reasonable jury could not possibly conclude otherwise." Id.
Viewing the evidence in the light most favorable to Allen, defendants' motion for summary judgment with respect to Sakellardis and Crespo must be denied. Allen testified that Sakellardis and Crespo accompanied Merced and Allen to Intake.*fn1 (See Allen Dep. 47 ¶¶ 9--15 (Def. Ex. C).) Defendants appear to dispute whether Sakellardis accompanied the other officers, as Crespo's "Use of Force Report" states that Merced and Crespo, but not Sakellardis, escorted Allen to Intake. (See Crespo Use of Force Report 2 (Objections Ex. B, at 12).) It is also unclear from the Allen's description of the incident how long the alleged assault by Merced lasted, although Allen states that "Merced had plaintiff's arm up in a ninety degree angle and began banging the plaintiff's head against the wall outside the dorm 4-Upper, while going down the steps" (Opp'n 8), suggesting multiple bangs to the head as the party walked down the steps to Intake. Thus, a jury could conclude that, because Merced repeatedly banged Allen's head against the wall, there was a reasonable opportunity for Sakellardis and Crespo to intervene on Allen's behalf, if the jury believed that both officers were witnesses to the incident. See, e.g., Sims v. Griener, No. 00 Civ. 2524 (LAP), 2001 U.S. Dist. LEXIS 15527, 2001 WL 1142189, at *5 (S.D.N.Y. Sept. 27, 2001) (finding that evidence was sufficient for jury to find that non-intervening corrections officers had opportunity to intervene on prisoner's behalf when four other officers attacked prisoner); Hickey v. City of New York, No. 01 Civ. 6506 (GEL), 2004 U.S. Dist. LEXIS 23941, 2004 WL 2724079, at *13 (S.D.N.Y. Nov. 29, 2004) (finding sufficient evidence for jury to find that police officer had opportunity to prevent his ...