The opinion of the court was delivered by: Andrew J. Peck, Magistrate Judge
Pro se plaintiff Eddie Cotto brings this action pursuant to 42 U.S.C. § 1983, alleging false arrest, excessive force and malicious prosecution. (Dkt. No. 4: Am. Compl.; Dkt. No. 33: 2d Am. Compl.)
Presently before the Court is defendants' summary judgment motion. (Dkt. No. 39: Defs. Notice of Motion, Defs. Rule 56.1 Stmt., Defs. Rule 56.2 Stmt., Francolla Aff.; Dkt. No. 40: Defs. Br.; Dkt. No. 45: Defs. Reply Br.) Cotto has opposed the motion. (Dkt. No. 46: Cotto Opp. Br.) The parties have consented to decision of this case by a Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Dkt. No. 26.)
For the reasons set forth below, defendants' summary judgment motion is GRANTED.
Plaintiff Eddie Cotto was arrested on February 3, 2004. (Dkt. No. 39: Defs. Rule 56.1 Stmt. ¶ 6; Dkt. No. 4: Am. Compl. ¶¶ 4, 17, 22; Dkt. No. 33: 2d Am. Compl. ¶ 1.)*fn1 At 12:30 p.m. that day, Cotto was eating lunch at a Chinese restaurant at 1759 Lexington Avenue in Manhattan when an undercover detective approached Cotto and Artis Steward -- who sat next to Cotto -- to ask Steward if he "was working for 'some manteca' (Spanish for heroin)." (Defs. Rule 56.1 Stmt. ¶¶ 7, 9; Am. Compl. ¶¶ 17, 22 & Ex. E: Undercover's Trial Testimony ["Tr."] at 40-41, 99; Dkt. No. 46: Cotto Opp. Br. at 5 ¶ 11.) The undercover believed Cotto was Steward's "boss." (Am. Compl. Ex. E: Undercover Tr. at 41, 124-25.) As the undercover waited for Steward to reply, Cotto "made a 'nod' gesture." (Defs. Rule 56.1 Stmt. ¶ 10; Am. Compl. ¶¶ 17, 22 & Ex. E: Undercover Tr. at 99-102.) Steward told the undercover to "come outside with" him, and they went to 1760 Lexington Avenue. (Defs. Rule 56.1 Stmt. ¶ 11; Am. Compl. ¶¶ 18, 22 & Ex. E: Undercover Tr. at 102, 105, 124.) Steward told the undercover, "'[t]hat's my boss in there.'" (Am. Compl. Ex. E: Undercover Tr. at 124-25.) Cotto remained in the restaurant, eating. (Am. Compl. ¶¶ 18, 22.)
Steward and the undercover went upstairs to the eleventh floor, where the undercover gave Steward prerecorded buy money and Steward gave the undercover five glassine envelopes containing heroin. (Defs. Rule 56.1 Stmt. ¶¶ 12-13; Am. Compl. ¶¶ 18-19 & Ex. E: Undercover Tr. at 50-52, 105-06.) When the undercover got out of the elevator in the building's lobby, he saw Cotto. (Defs. Rule 56.1 Stmt. ¶ 14; Am. Compl. ¶ 19 & Ex. E: Undercover Tr. at 52-53, 106-07.) Cotto lived in that building. (See Am. Compl. ¶¶ 6, 22; 2d Am. Compl. ¶ 2.) Cotto contends that he was "returning to his residence at 1760 Lexington Avenue." (Am. Compl. ¶ 22.) The undercover asked Steward if he could talk to Steward's boss, meaning Cotto, and Steward replied, "no, no, no just talk to me." (Defs. Rule 56.1 Stmt. ¶ 15; Am. Compl. ¶ 20 & Ex. E: Undercover Tr. at 108-09.) As the undercover held the elevator door open in the lobby, Cotto said, "yo, yo, slim, let that elevator door go." (Defs. Rule 56.1 Stmt. ¶ 16; Am. Compl. ¶ 20 & Ex. E: Undercover Tr. at 109.) Cotto contends that the undercover "assumed that [Cotto] was talking to him," but that the undercover "confuse[d] [Cotto's] statement as if it had been directed to him." (Defs. Rule 56.1 Stmt. ¶¶ 17-18; Am. Compl. ¶¶ 20, 22.)
Detectives Pabon and Ramos arrested Cotto. (Am. Compl. ¶¶ 7-8, 20.) The officers did not find any drugs or pre-recorded buy money on Cotto. (Am. Compl. ¶¶ 8, 20 & Ex. E: Undercover Tr. at 112-13; Am. Compl. Ex. G: Ramos Tr. at 226.) On February 6, 2004, a grand jury indicted Cotto for third degree criminal sale of a controlled substance. (Defs. Rule 56.1 Stmt. ¶ 19; Dkt. No. 39: Francolla Aff. Ex. C: Indictment.) On January 31, 2005, Cotto was tried and found not guilty. (Dkt. No. 4: Am. Compl. ¶ 20 & Ex. A: Certificate of Disposition Acquittal.)
Cotto's Federal § 1983 Complaint
On or about May 6, 2007, Cotto filed his present § 1983 complaint, alleging false arrest, excessive force and malicious prosecution. (Dkt. No. 2: Compl.) Cotto filed an amended complaint on October 1, 2007 (Dkt. No. 4: Am. Compl.; Dkt. No. 39: Defs. Rule 56.1 Stmt. ¶ 2) and a second amended complaint on or about February 7, 2008 (Dkt. No. 33: 2d Am. Compl.; see also Dkt. No. 23: 2/5/08 Order).
Cotto alleged that Detective Pabon, Detective Ramos, Sgt. Harrington and the undercover officer falsely arrested and imprisoned Cotto in violation of the Fourth Amendment. (2d Am. Compl. at 4 Wherefore ¶¶ 1-2.) Cotto also asserted a claim for malicious prosecution. (2d Am. Compl. at 4 Wherefore ¶ 4.) Cotto further alleged that in the course of arresting Cotto, Detective Pabon "pushed [Cotto] into a wall of the building therein causeing [sic] injury to his lower back area and injurring [sic] his spine which to date [Cotto] still suffers from." (2d Am. Compl. at 3 ¶ 7.) At his April 3, 2008 deposition, however, Cotto replied "[n]o" when asked whether he ever had any physical contact with Detective Pabon, Detective Ramos or Sgt. Harrington in connection with his 2004 arrest. (Defs. Rule 56.1 Stmt. ¶¶ 29-31; Dkt. No. 39: Francolla Aff. Ex. D: Cotto Dep. at 183.) Facts Regarding the Statute of Limitations: Cotto's Attempts to Obtain Counsel
Cotto claims that in January 2005 he retained Christopher D. Galiardo, Esq. to represent him to bring a § 1983 action. (Dkt. No. 39: Defs. Rule 56.1 Stmt. ¶ 20; Dkt. No. 4: Am. Compl. ¶ 2.) Cotto concedes, however, that Galiardo sent him a letter on November 30, 2006, indicating that Galiardo's firm, Myers & Galiardo, would not represent Cotto. (Defs. Rule 56.1 Stmt. ¶ 21; Am. Compl. ¶ 2 & Ex. C: 11/30/06 Galiardo Ltr.)*fn2 Cotto maintains that he did not receive Galiardo's November 30, 2006 letter until Cotto's wife forwarded it to him on or about February 15, 2007. (Am. Compl. ¶ 2; Defs. Rule 56.1 Stmt. ¶ 22.) Cotto attributes this delay to a circuitous delivery: Galiardo sent the letter to Cotto's mother, who deposited it in Cotto's wife's mailbox, but she was traveling from early December until around February 15, 2007. (Am. Compl. ¶ 2 & Ex. D: 9/20/07 Aff. of Darlene Vines, Cotto's wife.) Prior to receiving the November 30, 2006 letter, Cotto never contacted Galiardo to explain that he was incarcerated (for another crime), and did not provide Galiardo with his prison address. (Defs. Rule 56.1 Stmt. ¶ 23; Dkt. No. 39: Francolla Aff. Ex. D: Cotto Dep. at 213.)
Cotto's wife "returned [home] on or around the 15th day of February, 2007, which was when she forwarded the 11/30/-06 [sic] letter" to Cotto. (Am. Compl. ¶ 2; Defs. Rule 56.1 Stmt. ¶ 22.) Cotto claims that he immediately contacted Galiardo after receiving the letter. (Am. Compl. ¶ 2.) On February 28, 2007, Galiardo reiterated, by letter, that he would not represent Cotto in this action. (Am. Compl. ¶ 2 & Ex. B: 2/28/07 Galiardo Ltr.; Defs. Rule 56.1 Stmt. ¶ 24.) Galiardo again advised Cotto that his firm had not filed a complaint on Cotto's behalf, and that as they had previously advised Cotto, "[g]enerally, in Federal Court there is a three (3) year SOL [Statute of Limitations] for false arrest/malicious prosecution claims which may be tolled (extended) by the time a claimant remained in custody following an arrest awaiting trial." (Am. Compl. ¶ 2 & Ex. B: 2/28/07 Galiardo Ltr.; Defs. Rule 56.1 Stmt. ¶¶ 24-25.)
Cotto's complaint alleges that Galiardo "completely or in part misrepresented, misinformed and/or deceived" Cotto. (Am. Compl. ¶ 2.) However, when asked at his deposition whether the Galiardo firm or anyone else made any misrepresentations or misinformed or deceived him regarding the filing of his lawsuit, Cotto replied "[n]o." (Defs. Rule 56.1 Stmt. ¶¶ 26-27; Francolla Aff. Ex. D: Cotto Dep. at 225-26.)
Cotto claims that to prepare his pro se complaint, he applied to obtain assistance from the correctional facility's law library, but that due to the library's "waiting period" and "very limited schedual" [sic], it took Cotto "at least ten (10) weeks to do research, type the complaint and complete all the necessary forms." (Am. Compl. ¶ 3.)
I. SUMMARY JUDGMENT STANDARD
Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment shall "be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); see also, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10 (1986); Lang v. Retirement Living Pub. Co., 949 F.2d 576, 580 (2d Cir. 1991).
The burden of showing that no genuine factual dispute exists rests on the party seeking summary judgment. See, e.g., Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608 (1970); Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36 (2d Cir. 1994); Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1223 (2d Cir. 1994). The movant may discharge this burden by demonstrating to the Court that there is an absence of evidence to support the non-moving party's case on an issue on which the non-movant has the burden of proof. See, e.g., Celotex Corp. v. Catrett, 477 U.S. at 323, 106 S.Ct. at 2552-53.
To defeat a summary judgment motion, the non-moving party must do "more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356 (1986). Instead, the non-moving party must "set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e); accord, e.g., Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. at 587, 106 S.Ct. at 1356; Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000) (At summary judgment, "[t]he time has come . . . 'to put up or shut up.'") (citations omitted), cert. denied, 540 U.S. 811, 124 S.Ct. 53 (2003).
In evaluating the record to determine whether there is a genuine issue as to any material fact, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. at 255, 106 S.Ct. at 2513.*fn3
The Court draws all inferences in favor of the nonmoving party only after determining that such inferences are reasonable, considering all the evidence presented. See, e.g., Apex Oil Co. v. DiMauro, 822 F.2d 246, 252 (2d Cir.), cert. denied, 484 U.S. 977, 108 S.Ct. 489 (1987). "If, as to the issue on which summary judgment is sought, there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party, summary judgment is improper." Chambers v. TRM Copy Ctrs. Corp., 43 F.3d at 37.
In considering a motion for summary judgment, the Court is not to resolve contested issues of fact, but rather is to determine whether there exists any disputed issue of material fact. See, e.g., Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 58 (2d Cir. 1987); Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986), cert. denied, 480 U.S. 932, 107 S.Ct. 1570 (1987). To evaluate a fact's materiality, the substantive law determines which facts are critical and which facts are irrelevant. See, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. at 248, 106 S.Ct. at 2510. While "disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment[,] [f]actual disputes that are irrelevant or unnecessary will not be counted." Id. at 248, 106 S.Ct. at 2510 (citations omitted); see also, e.g., Knight v. U.S. Fire Ins. Co., 804 F.2d at 11-12.
"The Court recognizes that it must 'must extend extra consideration' to pro se plaintiffs" and that "pro se parties are to be given special latitude on summary judgment motions." Salahuddin v. Coughlin, 999 F. Supp. 526, 535 (S.D.N.Y. 1998) (Peck, M.J.) (citations & internal quotations omitted); see, e.g., McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (a pro se party's pleadings should be read liberally and interpreted "'to raise the strongest arguments that they suggest'").*fn4 "Nevertheless, proceeding pro se does not otherwise relieve a litigant from the usual requirements of summary judgment, and a pro se party's 'bald assertion,' unsupported by evidence, is not sufficient to overcome a motion for summary judgment." Cole v. Artuz, 93 Civ. 5981, 1999 WL 983876 at *3 (S.D.N.Y. Oct. 28, 1999) (citing cases).*fn5
II. DEFENDANTS' SUMMARY JUDGMENT MOTION IS GRANTED AS TO COTTO'S FALSE ARREST CLAIM, ON ...