The opinion of the court was delivered by: Hon. Harold Baer, Jr., District Judge
On July 25, 2006, Plaintiff Ramon De Antonio Smart was arrested and detained by officers of the New York Police Department ("NYPD"). That incident forms the basis of Plaintiff's complaint, filed pro se, which alleges claims of false arrest, malicious prosecution, and violations of the First, Sixth, Eighth and Fourteenth Amendments to the Constitution, all in violation of 42 U.S.C. §1983 ("Section 1983"). Defendants now move for summary judgment pursuant to Fed. R. Civ. P. 56. For the following reasons, Defendants' motion is GRANTED IN PART and DENIED IN PART.
At approximately 1:00 in the morning on July 25, 2006, Ramon De Antonio Smart double-parked his 2000 BMW in front of his mother-in-law's house on O'Brien Avenue in the Bronx. (Pl.'s 56.1 Stmt. ¶ 1.) O'Brien Avenue is a two-way, public street and Smart crossed the street's centerline to stop alongside parked cars facing the opposite direction. (Transcript of Ramon Smart Deposition, 11/6/2008, ("Smart Depo. Tr.") at 145:16-25.) With the car running and the headlights and hazard lights on, Smart waited for his wife on the front steps the house. (Id. at 147:4-7, 22-24.) Then, a police car pulled up next to Smart's car and parked behind it.*fn1
(Id. at 149:1-6; 151:7-9.) The police officers, Defendants Matthews and Filizzola, exited their vehicle and Matthews attempted to open the driver's-side door of Smart's car. (Id. at 152:12- 14.) Smart stood up and asked the officers if there was a problem. (Id. at 152:15-16.) Matthews asked whether Smart owned the double-parked BMW and Smart acknowledged the car was his. (Id. at 155:13-15.) Smart complied with Matthews' request to come down off the steps and turn the car off. (Id. at 156:5-12.)
Matthews then demanded the keys to Smart's car, but Smart refused to hand them over, maintaining that he had done nothing wrong. (Id. at 159:5-7.) Instead, Smart offered to provide Matthews with his license, registration, and proof of insurance. (Id. at 159:5-7.) Smart alleges that Matthews then twice lunged at him in failed attempts to snatch the car keys, first from Smart's hand and then from his pocket. (Id.at 159:13-25; 160:1-25.) Smart maintains that he jumped back, turned around, and called out to his wife, who had appeared on the front steps, telling her to go get her step-father. (Id. at 161:7-9.) Smart contends that at this point Matthews grabbed his shirt and Smart started to run towards the house, running past his wife with both Matthews and Filizzola in pursuit. (Id. at 162: 21-25.)
In contrast to Smart's account, in the Criminal Complaint filed later in the Bronx Supreme Court, Officer Filizzola stated that Smart struck him in the left side of the head before running into the house. (Declaration of Philip Frank dated 1/23/09 ("Frank Decl.") Ex. H.) It is undisputed that the officers followed Smart into the home and that in the hallway a physical altercation ensued during which Smart grabbed onto a stairway banister and refused to let go. (Smart Depo Tr. at 176:13-20; Frank Decl. Ex. H.) It is also undisputed that during the struggle Matthews sprayed pepper spray into Smart's face. (See Declaration of Ramon Smart, dated 3/2/09, Ex. 8 ("CCRB Interview of Matthews"); Ex. 9 ("CCRB Interview of Filizzola.")) Smart contends that the officers kicked and punched him while he was holding onto the banister, and that Matthews placed him in a chokehold. (Pl.'s 56.1 Stmnt. ¶8.)
Smart admits that after his hands were pried off the banister by his father-in-law, he lay on top of them to prevent the officers from handcuffing him. (Smart Depo. Tr. at 177:22-25.) But Smart maintains that at no time did he raise his hands or attempt to strike the officers, and maintains that after he was handcuffed the officers dragged him out the front door of the home by his legs, slamming his face into the right side of the concrete wall of the front steps. (Pl.'s 56.1 Stmt. ¶8.) The officers, for their part, contend that before he was restrained Smart flailed and twisted, tried to bite Matthews, escaped out the front door and then pushed Matthews, causing him to fall down the front steps and injure his leg. (See CCRB Interview of Matthews.) Matthews was treated at the Jacobi Medical Center for injuries to his leg. (Id.)
Smart was arrested, taken to the 43rd Precinct, and shortly thereafter was transported to Jacobi Medical Center where he was treated for abrasions and bruises. (Pl.'s 56.1 Stmt. ¶12.) Smart maintains that at the hospital, his eyes continued to burn from the pepper spraybut the unidentified officer assigned to him did not permit his eyes to be flushed and refused to remove the handcuffs to allow Smart to be x-rayed. (Smart Depo. Tr. 187:8-9; 188:3-7; 189:9-16). Sometime between 8:30 and 9:00 a.m., Smart was transported back to the 43rd Precinct and placed in a holding cell. (Pl.'s 56.1 Stmt. ¶17.) Smart claims that he was held in the cell for more than fourteen hours without food, water or access to a restroom or a telephone and that he did not eat until approximately 1:30 a.m. on July 26, approximately 24 hours after his arrest, when he was taken to McDonald's as he was transported first to the 40th Precinct and then to Central Booking in the Bronx. (Id.; Smart Depo. Tr. 193:1-22.)
On July 26, 2006, Smart was arraigned on criminal charges of assault, resisting arrest, obstructing governmental administration, and harassment. (Frank Decl. Ex. H.) Smart appeared twice before the Bronx County Supreme Court before the charges against him were dismissed on January 24, 2007. (Pl.'s 56.1 Stmt. ¶21.) On May 21, 2008, the Court Clerk of the Supreme Court issued a Certificate of Disposition, which stated that pursuant to N.Y. CRIM. PRO. LAW §160.60 the dismissal deemed the arrest and prosecution "a nullity" and, pursuant to N.Y. CRIM. PRO. LAW §160.50(1C), the official record of the case was sealed. (Smart Decl. Ex. 23.)
On the night of his arrest the police also impounded Smart's BMW and provided him with a voucher that indicated the vehicle was taken into custody "for arrest evidence."*fn2 (Smart Decl. Ex. 24.) After the charges against him were dismissed, Smart obtained a District Attorney's Release for the vehicle, dated January 30, 2007. (Id.) Smart contends that shortly thereafter he made several phone calls to retrieve his car and "faxed his license, title, bill of sale, district attorney's release and a certificate of disposition to the NYPD Legal Bureau," but they refused to release his vehicle unless he paid $2,000.*fn3 (Pl.'s 56.1 ¶23.) A February 15, 2007 memorandum prepared by the NYPD's Vehicle Seizure Unit indicates that Smart had been offered a $2,000 settlement based on "[t]he underlying crimes, the value of the vehicle, and the defendant's criminal history." (Smart Decl. Ex. 25.) Although he acknowledges receipt of a letter from the NYPD that indicated he would be able to retrieve his car for $2,000, Smart contends that he was never informed of his right to a retention hearing. (Pl.'s 56.1 ¶23.) A May 5, 2008 memorandum recommended that NYPD Property Clerk dispose of Smart's vehicle because no formal demand had been timely filed. (Smart Decl. Ex. 25.) On July 29, 2008, the Smart's BMW was sold at a police auction for $3,800.00. (Smart Decl. Ex. 26).
On March 19, 2007, Smart was remanded to federal custody for an unrelated offense to which he later pled guilty. (Am. Compl. ¶66; Frank Decl. Ex. Q; see 06-cr-919 (RMB).) A criminal judgment dated January 29, 2009 ordered Smart to pay restitution to two banks and two taxing authorities and forfeit to the United States his interest in, among other things, the BMW.
A court will not grant a motion for summary judgment pursuant to Fed. R. Civ. P. 56 unless it determines that there is no genuine issue of material fact and the undisputed facts are sufficient to warrant judgment as a matter of law. Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v. Liberty Lobby Inc., 477 U.S. 242, 250 (1986). The Court must construe the evidence in the light most favorable to the nonmoving party, drawing all inferences in that party's favor." Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005). "Assessments of credibility and choices between conflicting versions of the events are matters for the jury, not for the court on summary judgment." Jeffreys, 426 at 554-55 (quoting Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir. 1996)). However, "the mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Anderson, 477 U.S. at 252.*fn4
A. Claims Arising under Section 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). To establish liability 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 conduct deprived the plaintiff of a right guaranteed under the Constitution of the United States." Snider v. Dylag, 188 F.3d 51, 53 (2d Cir. 1999) (citation omitted).
B. Liability of Defendants Zaroff and Piazza
"'It is well settled in this Circuit that personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.'" Farrell v. Burke, 449 F.3d 470, 484 (2d Cir. 2006) (quoting Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994)). Defendants Zaroff and Piazza were not among the officers who responded to the incident that led to Smart's arrest or otherwise involved in the commencement of criminal proceedings against him or impounding and auctioning his vehicle. (See Smart Decl., Exs. 13, 15, 20.) Consequently, Smart cannot establish that Zaroff or Piazza were personally involved in the events that give rise to his claims of false arrest, malicious prosecution, excessive force, or procedural due process violations and Defendants' motion for summary judgment with respect to such claims as asserted against Zaroff and Piazza is GRANTED.
Zaroff and Piazza were, however, the desk sergeants on duty at the 43rd Precinct where Smart was detained following his arrest. (Id. at Ex. 20.) Their potential liability for claims arising out of Smart's detention at ...