The opinion of the court was delivered by: Laura Taylor Swain, United States District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Richard Thomas ("Plaintiff") asserts federal and state causes of action relating to alleged violations of his civil rights in two separate incidents -- one of which occurred on November 26, 2003, and the other of which occurred on January 23, 2004 -- involving members of the New York City Police Department ("NYPD") in the Bronx, New York.*fn1 The Complaint asserts claims under 42 U.S.C. § § 1983, 1985, 1986 and 1988 alleging violations of Plaintiff's rights under the First, Fourth, Fifth, and Fourteenth Amendments to the Constitution of the United States, as well as various state law claims based on the same factual allegations. Specifically, Plaintiff alleges that he was subjected to false arrest, malicious prosecution, excessive force, and retaliation for the exercise of his First Amendment rights. Plaintiff's claim against defendant Julian Harris has been dismissed pursuant to a stipulation. (Docket no. 41).
This matter now comes before the Court on the motion of the remaining defendants for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure on the false arrest, malicious prosecution, and First Amendment retaliation claims stemming from the November 26, 2003, incident and for summary judgment on the excessive force and First Amendment retaliation claims asserted in connection with the January 23, 2004, incident. Defendants also move for summary judgment on Plaintiff's claim against the City of New York.*fn2
The Court has subject matter jurisdiction of Plaintiff's federal claims pursuant to 28 U.S.C. § § 1331 and 1343, and has supplemental jurisdiction of Plaintiff's related state claims pursuant to 28 U.S.C. §1367.
The Court has considered thoroughly all of the parties' submissions and arguments in connection with the instant motion. For the reasons set forth below, Defendants' motion for summary judgment with respect to the November 26, 2003, incident is granted and Defendants' motion for summary judgment with respect to the January 23, 2004, incident is denied.
The following material facts are undisputed.
On the afternoon of November 26, 2003, Plaintiff walked to the corner of 187th Street and Park Avenue in the Bronx, New York, to make a call on a pay phone. While in the phone booth, Plaintiff picked up a container of alcohol and moved it, to avoid the possibility of the contents spilling onto his suede coat. (Thomas Dep. 9:24, 10:22 - 10:23, Sept. 12, 2005.)
Sergeant Phillips and Officer Fernandez were on patrol in the Bronx that day in a marked police vehicle. From the car, they observed Plaintiff with a container of beer in his hand. (Phillips Dep. 85:24 - 86:12, April 19, 2006.) Sergeant Phillips exited the car and approached Plaintiff while Officer Fernandez waited in the car. (Phillips Dep. 110:18 - 112:11, April 19, 2006.)
Sergeant Phillips asked Plaintiff about the container, specifically asking if the beer belonged to Plaintiff, and requested Plaintiff's identification. (Thomas Dep. 134:10 - 134:23, April 22, 2006.) Another individual, Mr. Wilson, approached and stated that the beer belonged to him and not to Plaintiff. Plaintiff then stated that he had not been drinking and blew his breath on Sergeant Phillips. (Thomas Dep. 140:1 - 140:8, April 22, 2006.)
Sergeant Phillips took Plaintiff's identification back to the police car and, based on information provided by Sergeant Phillips, Officer Fernandez issued Plaintiff a summons for violation of New York City Administrative Code §10-125(b). (Fernandez Dep.75:17 - 78:12, April 19, 2006.) Plaintiff approached the police car and requested the Officers' names, badge numbers and precinct; Plaintiff wrote that information on a piece of paper. (Thomas Dep.158:20 - 159:22, April 22, 2006.)
The summons was dismissed after Plaintiff appeared in summons court and Officer Fernandez did not appear.
On the evening of January 23, 2004, Plaintiff was using a pay phone in a laundromat on Webster Avenue in the Bronx. Officers Newman, Chalen, and Harris entered the laundromat while Plaintiff was on the phone. As Plaintiff was exiting the laundromat, there was an initial exchange between Plaintiff and Officer Newman in which the officer asked Plaintiff if there was a problem. (Thomas Dep. 206:16 - 207:6, April 22, 2006.) The other officers intervened in the exchange, the end result being that Plaintiff was frisked, handcuffed, and transported to the 46th Precinct where he was placed in a holding cell and, after approximately 20 minutes, issued a summons for ...