The opinion of the court was delivered by: Joseph F. Bianco, District Judge
Plaintiff Jermaine Sutton brings this action, alleging claims for violations of his civil rights under 42 U.S.C. § 1983. Specifically, plaintiff alleges claims of false arrest and imprisonment, malicious prosecution, illegal search and seizure and excessive force against defendants Detective George Duguid ("Detective Duguid"), Detective Benero*fn1 ("Detective Benero"), Detective Carter ("Detective Carter"), Police Officer Alicea*fn2 ("Officer Alicea") and Police Officer Moreno ("Officer Moreno"), arising out of an incident that occurred in September 2003, whereby plaintiff was arrested on charges of Assault, Resisting Arrest, Harassment in the Second Degree and Disorderly Conduct.*fn3
Defendants now move for summary judgment pursuant to Federal Rule of Civil Procedure 56 on all claims except for plaintiff's claim of excessive force. Plaintiff cross-moves for summary judgment on all claims, including plaintiff's claim of excessive force, and seeks to amend his complaint to add a claim of illegal strip search. For the reasons that follow, defendants' motion is granted in part and denied in part and plaintiff's motion is denied in its entirety.
The facts described below are taken from the parties' deposition, declarations, affidavits, exhibits and respective Local Rule 56.1 statements of facts. Upon consideration of a motion for summary judgment, the Court shall construe the facts in the light most favorable to the non-moving party. See Capobianco v. City of New York, 422 F.3d 47, 50 (2d Cir. 2001).
On the evening of September 13, 2003, Detectives Duguid, Benero, and Carter, and Officers Alicea and Moreno were on assignment in the vicinity of 164-01 Foch Boulevard, Queens County, New York, investigating criminal activity, including narcotics sales. (Defs.' 56.1 ¶ 1.)*fn4 Detective Carter and Officer Moreno were in the area, in an undercover capacity, when they observed two individuals, standing next to a vehicle, who appeared to be engaged in narcotics activity. (Defs.' Ex. C at 144-45.) Detective Carter gave a description of the car, which had its engine running, to his field team, and alerted the field team to "freeze" the car and the individuals around the car. (Defs. 56.1 ¶ 3.)
In the late evening of September 13, 2003, plaintiff visited the apartment of his friend, Terrence Peck ("Peck"), located at 163-11 Foch Boulevard, Queens County, New York, to watch a televised boxing match. (Id. ¶ 4.) Peck's apartment is located next to the building in which plaintiff's mother resides. (Id. ¶ 5.) According to both parties, illegal drugs are frequently sold in that neighborhood. (Id. ¶ 6.) There were approximately fifteen to twenty people present at Peck's apartment watching the boxing match. (Id. ¶ 7.)
After the boxing match ended, plaintiff left the apartment with several individuals, including his friend, Ronell Kelly ("Kelly"). (Id. ¶ 8.) In addition to Kelly, Zakia Washington and Jodi McMillan ("McMillan") were standing in plaintiff's immediate vicinity while he stood outside the building following the boxing match. (Id. ¶ 9.) While standing outside the apartment building, "a big commotion broke out," which involved Kelly. (Id. ¶ 10.) Plaintiff heard Kelly say something to the effect of, "what the [expletive] is going on, what the [expletive] is you doing." (Id. ¶ 11.) As soon as the commotion broke out, plaintiff tried to "get away" from it. (Id. ¶ 13.) Plaintiff alleges he did not know that the individuals involved in the commotion were police officers. (Id. ¶ 14.)
As plaintiff tried to get away from the commotion, he felt Detective Benero grab his arm. (Id. ¶ 15; Pl.'s 56.1 ¶ 10.) Plaintiff turned, saw a man clutching his arm, and stated, "yo, get up off me." (Defs.' 56.1 ¶ 16.) Detective Duguid approached plaintiff shortly thereafter to assist Detective Benero. (Pl.'s Ex. 12 at 35.) It is undisputed that Detective Benero did not verbally announce himself as a police officer, but, according to Detective Benero, the officers had their shields out when they exited their vehicle. (Pl.'s Ex. 13 at 124, 132.) Detective Duguid, on the other hand, testified to the grand jury that when he excited the vehicle, he had announced that he was a police officer. (Pl.'s Ex. 25 at 9.) However, at plaintiff's criminal trial, Detective Duguid could not recall whether he had announced himself as an officer. (Pl.'s Ex. 12 at 62.)
Plaintiff alleges that he did not know that the individuals were police officers. (Defs. 56.1 ¶ 14.) Specifically, plaintiff testified in his deposition that when the individual grabbed his arm plaintiff
[D]idn't know what [the individual] was trying to do. He didn't say nothing, nothing didn't come out of his mouth, he didn't mention nothing, say nothing or nothing . . . . [N]othing didn't come out of his mouth, nothing, not a word, not a peep. No police, nothing, yo, come here, let me talk to you, ain't nothing come out of his mouth.
(Pl.'s Ex. 20 at 70.) Furthermore, during plaintiff's criminal trial, plaintiff testified that the officers did not have any badges displayed (Pl.'s Ex. 19 at 303), and that the individuals did not say anything to him at all. (Id. at 312, 326.) McMillan also testified at plaintiff's criminal trial and stated that the individual who grabbed plaintiff did not have any visible identification on him. (Pl.'s Ex. 18 at 251.)
Plaintiff admits that he began to resist immediately when the officers made contact with him. (Id. ¶ 17.) Plaintiff broke free from the officers' grip and "kept pushing the individuals['] arms away from him." (Id. ¶ 18.) According to plaintiff, he succeeded in freeing himself and then stepped back to the sidewalk, at which point he felt the officers "jump on [his] back . . . punch [him], [and] kick [him]." (Pl.'s Dep. at 81; Pl.'s 56.1 ¶ 14.) During the struggle, plaintiff bit Detective Duguid. (Id. ¶ 22.) Detective Duguid struck plaintiff once on the right side of the head. (Pl.'s Ex. 25 at 7; Defs.' Reply 56.1 ¶ 16.) During the course of the arrest, plaintiff refused to give up his arms to be handcuffed. (Defs.' 56.1 ¶ 21.)
Plaintiff was arrested on charges of Assault, Resisting Arrest, Harassment in the Second Degree, and Disorderly Conduct. (Id. ¶ 23.) He was handcuffed and taken to the 113th Precinct. (Pl.'s 56.1 ¶ 17.)
Plaintiff received medical attention at the precinct and was then taken to Mary Immaculate Hospital. (Pl.'s Dep. at 120-21.) Plaintiff alleges that he was handcuffed to the hospital bed for at least two days. (Pl.'s Dep. at 104.)
Around the same time of plaintiff's arrest, Officer Alicea seized Kelly, who was standing near the car and who had been identified by a police surveillance team as a possible narcotics dealer. (Pl.'s 56.1 ¶ 7.) Kelly was arrested on charges of Possession of Marijuana in the Fifth Degree, Disorderly Conduct and Resisting Arrest. (Defs.' 56.1 ¶ 26.)
Plaintiff was indicted on November 6, 2003. (Defs.' 56.1 ¶ 24.) The charge of Resisting Arrest was later dismissed by the criminal court because the court found that "this count was never charged in the Grand Jury." (Id. ¶ 25.) Following a bench trial in Queens County Supreme Court, plaintiff was found not guilty ...