The opinion of the court was delivered by: Trager, J
James Hamilton ("plaintiff") brings this consolidated action against the City of New York, the New York City Police Department ("NYPD"), the Police Commissioner, Sergeant Brian Byrnes*fn1 ("Sergeant Byrnes"), Officer Carla Guy-Lewis*fn2 ("Officer GuyLewis") and two unnamed male NYPD officers (collectively referred to as "defendants"), alleging: (1) discrimination in violation of 42 U.S.C. § 1981 and the Thirteenth Amendment; (2) false arrest, excessive force and failure to intervene in violation of 42 U.S.C. § 1983 and the Fourteenth Amendment; and (3) various state common law tort claims, all arising from his allegedly unlawful arrest on September 12, 2004. Defendants move for summary judgment pursuant to Federal Rule of Civil Procedure 56(c) on all of plaintiff's claims. For the below reasons, defendants' motion in the case with docket number CV-07-3633 is granted in part and denied in part. Defendants' motion in the case with docket number CV-07-3825 is granted in full.
In 1988, plaintiff plead guilty to robbery in the first degree and received a sentence of six to twelve years. Deposition of James Hamilton ("Hamilton Dep.") at 50. Plaintiff was released on parole in 1995 after having served seven years of his sentence. Id. at 51,53. On being released, plaintiff agreed to abide by certain conditions of parole. See Declaration of Dara L. Weiss in Support of Mot. for Summ J. ("Weiss Decl."), Ex. B.*fn3 One of the conditions of his parole required that he remain at a specific authorized residence, known to his parole officer, between the hours of 10 p.m. and 7 a.m.*fn4 Id.; Hamilton Dep. at 55. Plaintiff was, therefore, required to inform his parole officer if he either wanted to stay out past his curfew or stay at a different residence. Id. at 55-56.
In January 2004, plaintiff moved in with Celeste Jennings, his girlfriend and the mother of two of his children.*fn5 Hamilton Dep. at 16, 20-21; Deposition of Celeste Jennings ("Jennings Dep.") at 7-8, 11. Jennings lived in an apartment located at 108 Northfolk Street in Manhattan. Jennings Dep. at 7. Although plaintiff informed his parole officer of the residence change, he would frequently spend the night at his mother's apartment in Brooklyn without first telling his parole officer. Hamilton Dep. at 64-65, 68-69.
On Saturday September 11, 2004, after arriving at Jennings' apartment from work, plaintiff and Jennings got into an argument. Id. at 81. The argument escalated, and Jennings asked plaintiff to leave. Id. at 81-82. When plaintiff refused, she dialed 911 for assistance. Id.; Jennings Dep. at 14. Two officers responded to the call, arriving at the apartment sometime after 8:00 p.m. Hamilton Dep. at 82. Jennings told the officers that she wanted plaintiff out of the apartment. Weiss Decl., Ex. F.
Plaintiff explained to one of the officers that he had been living in the apartment for the last eight months. Hamilton Dep. at 83. He also informed the officer that he could not leave the apartment without first notifying his parole officer, with whom he would be unable to get in contact with until Monday. Id. Plaintiff presented the officer with a health insurance card displaying his address as 108 Northfolk Street. Id. The officers told Jennings that there was nothing they could do to force plaintiff out of the apartment, where he apparently resided. Id. at 85-86.
Prior to leaving, the officers advised plaintiff that it was in his best interest to leave the apartment voluntarily, which plaintiff promised to do. Id. at 86. Shortly thereafter, plaintiff left the residence to attend a friend's party. Id. Plaintiff stayed at the party until 3:30 a.m. Id. at 87. He then went to have breakfast with another friend.*fn6 Id.
At approximately 5:30 a.m., plaintiff left a message on Jennings' answering machine threatening to have the police escort him into the apartment to gather his belongings if she refused to open the door. Id. at 91. Jennings complied, permitting plaintiff to access the apartment. Id. at 91-92. She claims, however, that she had only opened the door to allow plaintiff to gather his belongings. Jennings Dep. at 20-21. When Jennings saw that plaintiff had sat down on her couch, she told plaintiff to leave. Id. at 21. When plaintiff refused, she again called the police. Id. Plaintiff denies that this conversation ever took place, asserting that he fell asleep on the couch not long after having arrived at the apartment. Hamilton Dep. at 92-93. He also alleges that he was unaware that Jennings had telephoned the police. Id. at 97.
Four police officers arrived at Jennings' apartment in response to her 911 call, including Sergeant Byrnes, Officer Scott Ferretti, Officer Guy-Lewis and Officer Mejia Gersen.*fn7
Deposition of Sergeant Brian Byrnes ("Byrnes Dep.") at 13-14, 18. According to Sergeant Byrnes, on arriving in the apartment, Jennings informed him that her boyfriend was violent and that she wanted him out of the apartment. Id. at 26.
At approximately 6:20 a.m., plaintiff was awakened by Sergeant Byrnes, who ordered him to leave the apartment. Hamilton Dep. at 93. Plaintiff, not fully understanding what was happening, told Sergeant Byrnes that he was on parole and presented his health insurance card demonstrating that he resided there. Hamilton Dep. at 95. Plaintiff admitted, however, that he did not pay rent or any of the bills for the apartment. Jennings Dep. at 22. Jennings, who had telephoned plaintiff's mother, handed the cordless phone to plaintiff. Hamilton Dep. at 95-96. Plaintiff's mother told him that he could stay at her house in Brooklyn. Id. at 96. However, plaintiff refused the invitation, telling his mother that if he left the apartment he would be violating the terms of his parole. Id.
At some point, Sergeant Byrnes asked plaintiff to stand up from the couch and place his hands behind his back. Hamilton Dep. at 97. Sergeant Byrnes then handcuffed and escorted plaintiff out of the apartment. Id. at 97. Plaintiff alleges that, as they exited the apartment, Sergeant Byrnes purposely tripped him, causing plaintiff to fall, face-first, to the floor. Id. at 98-99. As a result of the fall, plaintiff suffered a laceration to the right side of his face. Id. at 102-03. Sergeant Byrnes then put his knee on plaintiff's back, lifted him up and walked plaintiff downstairs. Id. at 100. Plaintiff was then placed in a police car and taken to the Seventh Precinct.
Sergeant Byrnes' account is quite different, claiming that he took several additional measures before placing plaintiff under arrest. He denies ever having tripped plaintiff, claiming that the only reason plaintiff was on the ground was because he was resisting arrest. Specifically, Sergeant Byrnes alleges that after receiving plaintiff's initial refusal to exit the apartment, he explained to plaintiff that it was criminal trespass not to comply with the owner's request that he leave. Byrnes Dep. at 31-32. Sergeant Byrnes then brought one of Jennings' sons to another room where he confirmed that plaintiff did not live in the apartment. Id. at 32-33. According to Sergeant Byrnes, he requested that plaintiff leave the apartment several more times, in the hope that he would not have to arrest him, but plaintiff continued to refuse. Id. at 33-34, 36-37. Moreover, Sergeant Byrnes denies that plaintiff told him that he was on parole and that it would be a violation for him to leave the premises. Id. at 41.
According to Sergeant Byrnes, it was only after these numerous unsuccessful attempts that he assisted plaintiff in standing from the couch and escorted him out of the apartment.
Id. at 40-41. He then handed plaintiff over to Officer Feretti whom he asked to handcuff plaintiff. Id. A struggle then ensued between plaintiff and Officer Feretti. Id. at 42. Officer Feretti was able to get plaintiff down on the ground. Id. at 43. Sergeant Byrnes, who came over to assist Officer Feretti in restraining plaintiff, was then either kicked or punched in the left shin. Id. at 44-45. The two officers were ...