The opinion of the court was delivered by: Sandra L. Townes United States District Judge
TOWNES, United States District Judge
Caffele Morgan ("Plaintiff") brings this action under 42 U.S.C. § 1983 for violation of his Fourth, Fifth, and Fourteenth Amendment rights arising from his arrest after a disturbance at a movie theater on October 13, 2002. Plaintiff claims that police officers violated his rights by arresting him without probable cause, using excessive force against him, not reading him his Miranda rights, denying him medical attention, denying him the use of the bathroom, and maliciously prosecuting him. He also brings pendent state law claims of false arrest, false imprisonment, assault and battery, negligence, and malicious prosecution against the police officers and other private parties associated with the events of that day. All Defendants now move for summary judgment pursuant to Federal Rule of Civil Procedure 56. For the following reasons, Defendants' motion is granted in part and denied in part.
On October 13, 2002, at approximately 3:08 p.m., Nassau County police officers were called to the Sunrise Cineplex movie theater in Valley Stream, New York. Pl. Nassau County's ("N.C.") Ex. 1, N.C. Police Dep't Dispatch Printout. Several individuals had called 911 reporting a disturbance at the Cineplex, and some indicated that one person had a knife and had suffered head injuries. Id. By the time the first officer, defendant Officer Gasper Arbisi, arrived on the scene, the disturbance had subsided. Arbisi Dep. 19. Arbisi found Plaintiff sitting curbside in front of the theater with a head injury. Id. at 24, 42.
Plaintiff recounts that, on that day, he was on his way home from a flea market located behind the Cineplex with his girlfriend, Anna Mae Legister, when he was flagged down and invited into the Cineplex by defendant Raymond Smith, a security guard at the theater. Pl. Dep. 26. Initially, a friendly conversation ensued between Plaintiff, Smith and the head of security at the Cineplex, Keith English. Id. at 46-47, 55; English Aff. ¶¶ 5-6. At some point, the conversation turned heated between Plaintiff and Smith. Id. English tried to diffuse the verbal argument by telling Plaintiff to leave the theater and instructing Smith to return to his post. English Aff. ¶ 6. Plaintiff proceeded to leave, but was continuously taunted by Smith, who ignored repeated instructions to return to his post by English. Id. at ¶¶ 7-8. After Plaintiff had made his way outside the Cineplex, Smith lunged at Plaintiff, swung his fist at Plaintiff, punched him, grabbed him by the collar, and then pushed Plaintiff against the outdoor window of the movie theater. Pl. Dep. 59, 61-63. English and Legister attempted to separate and pull Smith from Plaintiff, while another security guard, defendant Gonzalo Arzon, held Plaintiff's arms. Id. at 63-64. Unprovoked, Smith then drew his night stick and struck Plaintiff on the head with sufficient force to render him unconscious. English Aff. ¶ 9-10; Pl. Aff. ¶ 5. As Plaintiff regained consciousness and staggered toward his car, he observed Smith coming toward him again. Pl. Dep. 70, 73. Plaintiff grabbed onto Smith around his neck in an attempt to immobilize him. Id. Smith then fell on top of Plaintiff causing his head to hit the ground. Id. at 74.
Eventually, some witnesses to the disturbance assisted in getting Smith off Plaintiff and helping Plaintiff from the ground. Id. at 75.
Unsurprisingly, defendant Smith has a different version of events on that day. According to a supporting deposition given to the police on the scene, Smith relates that he and Plaintiff were involved in a verbal altercation, when Plaintiff said, "I should cut you." N.C. Defs. Ex. E, Smith Supp. Dep. Smith responded, "you're not going to cut anyone" and walked away. Id. Arzon then warned Smith to look out and Plaintiff came at Smith swinging his fist but missing. Id. Smith then pulled out his night stick to defend himself as Plaintiff brandished a red-handled box cutter and extended the blade. Id. As Arzon attempted to grab Plaintiff's arm, Smith grabbed Plaintiff's neck and then hit him with his night stick. Id. Smith then tried to contain Plaintiff, but was punched in the face by Plaintiff in the process. Id. After the Cineplex's manager broke up the fight, Plaintiff again charged and tackled Smith until Arzon threatened to mace Plaintiff. Id. In this deposition, Smith stated that he wanted Plaintiff arrested. Id.
Defendant Arzon's supporting deposition reveals a slightly different set of facts. He overheard a verbal exchange between Plaintiff and Smith and then saw Plaintiff swing at Smith but miss. N.C. Defs. Ex. E, Arzon Supp. Dep. Plaintiff then pulled out a box cutter, extended its blade, and pointed it toward Smith. Id. At some point, Plaintiff gave the box cutter to Legister, who concealed it in her waistband. Id. Legister initially refused to give the box cutter to Arzon, but she handed it over when Arzon placed his hand on his weapon. Id. Arzon next saw Plaintiff slam Smith to the ground causing his head to hit the cement and then place Smith in a headlock. Id. Arzon threatened to mace Plaintiff until he released Smith. Id.
At this point, the ambulance and police began to arrive. Defendant Officer Frederick Renganeschi, another officer who arrived on scene, spoke to both Smith and Arzon and took supporting depositions from each of them. Renganeschi Dep. 15. Renganeschi observed that Smith had an injury to his head. Id. at 23. According to Renganeschi, he also spoke to Plaintiff while he was being treated in the back of the ambulance, and Plaintiff admitted he had a box cutter. Id. at 16. While Renganeschi maintains that Plaintiff was not under arrest while they were speaking in the back of the ambulance, he stated that he made the decision to arrest Plaintiff based on his assessment of the crime scene and interviews of eyewitnesses including the security guards and Plaintiff. Id. at 17. Renganeschi determined that Plaintiff was not at the movie theater to see a movie but to confront Smith and that Plaintiff was the aggressor, taking the first swing. Id. at 43.
At some point, Officer Arbisi placed handcuffs on Plaintiff, effecting his arrest. Arbisi 49. Plaintiff was taken via ambulance to the emergency room at Franklin General Hospital for his head injuries. Pl. Dep. 82. At the hospital, he was examined by a doctor and given a CAT scan and stitches on his head. Id. at 82-84. He was later transported to the police precinct and charged with Third Degree Assault, Second Degree Menacing, and Fourth Degree Possession of a Dangerous Weapon. Id. at 146; N.C. Defs. Ex. G, N.C. Police Dep't Crime Report. After being processed at the precinct, Plaintiff was released on bail at 12:19 a.m. on October 14, 2002. N.C. Defs. Ex I, N.C. Police Dep't Appearance Ticket. A criminal prosecution commenced against Plaintiff, which was eventually dismissed pursuant to New York Criminal Procedure Law § 170.30(1)(f) ("There exists some other jurisdictional or legal impediment to conviction of the defendant for the offense charged"). Pl. N.C. Ex. 2, Certificate of Disposition.
Plaintiff initiated the instant action on October 8, 2003, against two sets of defendants:
(1) Nassau County, the Nassau County Police Department, and Officers Reganeschi, Leach, and Arbisi and other unnamed officers ("Defendant Officers") (hereinafter collectively known as the "Nassau County Defendants"); and (2) Sunrise Cinemas and its owner, National Amusements, Inc., Raymond Smith, Gonzalo Arzon, and their employer, S.E.B Services of New York ("S.E.B.") (hereinafter collectively the "Non-Nassau County Defendants"). On September 27, 2006, the Nassau County Defendants moved for summary judgment. One day later, the Non-Nassau County Defendants followed suit. The Court now turns to these motions.
I. Summary Judgment Standard
Summary judgment is appropriate only when "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "[G]enuineness runs to whether disputed factual issues can reasonably be resolved in favor of either party, [while] materiality runs to whether the dispute matters, i.e., whether it concerns facts that can affect the outcome under the applicable substantive law." Mitchell v. Washingtonville Cent. Sch. Dist., 190 F.3d 1, 5 (2d Cir. 1999) (internal quotation marks omitted). The moving party bears the burden of showing that there is no genuine issue of fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). If the movant meets this burden, the non-movant "must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e); W. World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990). The non-movant cannot avoid summary judgment "through mere speculation or conjecture" or "by vaguely asserting the existence of some unspecified disputed material facts." Western World, 922 F.2d at 121 (internal quotation marks omitted).
When evaluating a motion for summary judgment, "[t]he court must view the evidence in the light most favorable to the party against whom summary judgment is sought and must draw all reasonable inferences in his favor." L.B. Foster Co. v. Am. Piles, Inc., 138 F.3d 81, 87 (2d Cir. 1998) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). No genuine triable factual issue exists when the moving party demonstrates, on the basis of the pleadings and submitted evidence, and after drawing all inferences and resolving all ambiguities in favor of the non-movant, that no rational jury could find in the non-movant's favor. Chertkova v. Conn. Gen. Life Ins. Co., 92 F.3d 81, 86 (2d Cir. 1996). "If the evidence [presented by the non-moving party] is merely colorable, or is not significantly probative, summary judgment may be granted." Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998) (internal quotation marks omitted) (alteration in original).
II. Nassau County Defendants' Summary Judgment Motion
Plaintiff brings this action against Nassau County Defendants ("N.C. Defendants") under 42 U.S.C § 1983 for infringement of his Fourth, Fifth, and Fourteenth Amendment rights. He claims that N.C. Defendants violated his rights by arresting him without probable cause, maliciously prosecuting him, using excessive force against him, not reading him his Miranda rights, denying him medical attention, and denying him the use of the bathroom. He also brings pendent state law claims of false arrest, assault and battery, negligence, and malicious prosecution. N.C. Defendants seek summary judgment dismissing all claims. The Court grants N.C. Defendants' motion in part and denies it in part.
The Court first turns its attention to Plaintiff's false arrest cause of action against Defendant Officers. A § 1983 claim for false arrest derives from the right to be free from unreasonable searches and seizures, including the right to be free from arrest absent probable cause. Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996). "Whenever there has been an arrest and imprisonment without a warrant, the officer has acted extra-judicially and the presumption arises that such an arrest and imprisonment are unlawful." Peterson v. County of Nassau, 995 F. Supp. 305, 313 (E.D.N.Y. 1998) (quoting Broughton v. State, 37 N.Y.2d 451, 456 (1975)). Nevertheless, the existence of probable cause gives an officer the privilege to arrest and "is a complete defense to an action for false arrest" under § 1983. Bernard v. United States, 25 F.3d 98, 102 (2d Cir. 1994); see also Weyant, 101 F.3d at 852.
Probable cause to arrest exists when authorities have knowledge or reasonably trustworthy information of facts and circumstances that are sufficient to cause a person of reasonable caution to believe that the person to be arrested has committed or is committing a crime. Weyant, 101 F.3d at 852. It requires only a "probability" or a "substantial chance" that a crime has taken or is taking place. United States v. Bakhtiari, 913 F.2d 1053, 1062 (2d Cir. 1990) (quoting Illinois v. Gates, 462 U.S. 213, 244 n.13 (1983)); cf. United States v. Gaskin, 364 F.3d 438, 457 (2d Cir. 2004) ("The standard does not demand certainty but only a 'fair probability' that contraband or evidence of a crime will be found."). Whether or not there was probable cause to arrest depends on the information available at the time of the arrest, Peterson, 995 F. Supp. at 313, judged against the "totality of the circumstances," Williams v. City of New York, No. 02-CV-3693, 2003 WL 22434151, at *3 (S.D.N.Y. Oct. 23, 2003) (citing Gates, 462 U.S. at 233). The plaintiff bears the burden of demonstrating a lack of probable cause for the arrest. Id. (citing Baker v. McCollan, 443 U.S. 137, 143-46 (1979)).
N.C. Defendants contend that ample evidence supports the probable cause determination to justify Plaintiff's arrest. According to N.C. Defendants, Officers Renganeschi and Arbisi arrived on scene after the disturbance subsided. At that time, Arbisi observed Plaintiff sitting curbside in front of the theater bleeding from the head and Renganeschi saw that Raymond Smith sustained a head injury. Renganeschi then conducted an investigation which included, among other things, interviewing the theater's security guards, Plaintiff, and Plaintiff's girlfriend, Anna Mae Legister. Renganeschi Dep. 17. Gonzalo Arzon, one of the security guards at the theater, informed Renganeschi that Plaintiff charged Smith and threatened him with a box cutter and that Plaintiff slammed Smith to the ground. Smith told Renganeschi that Plaintiff attacked him, that he used his night stick in self-defense, and that he wanted Plaintiff arrested. Both Smith and Arzon signed supporting depositions, which subjected them to misdemeanor charges for making false charges. See N.C. Defs. Ex. E, Smith and Arzon Supp. Dep. The officers determined that Plaintiff was not present at the movie theater to see a movie and they recovered a box cutter from the scene. Renganeschi spoke to Plaintiff in the ambulance and Plaintiff admitted to having a box cutter. Based on these facts, Renganeschi made the decision to arrest Plaintiff for Third Degree Assault, Second Degree Menacing, and Fourth Degree Possession of a Dangerous Weapon.*fn1 Arbisi effected Renganeschi's decision by placing the handcuffs on Plaintiff while he was being treated in the ambulance.
Plaintiff challenges this version of events and argues that a genuine issue of material fact exists as to whether the officers conducted an investigation prior to his arrest. According to affidavits submitted by Plaintiff and Legister, Arbisi arrested Plaintiff immediately upon his arrival at the Cineplex before the officers could have conducted any meaningful investigation to form probable cause. Plaintiff maintains that such a dispute of fact would preclude summary judgment in this case.
Plaintiff's affidavit conveys that Arbisi grabbed him while he was seated on the sidewalk in front of the movie theater and stated, "Caffele your [sic] under arrest." Pl. Aff. ¶¶11-12. The affidavit states that Arbisi then proceeded to cuff Plaintiff's hands behind his back and walk him to the ambulance. Id. at ¶¶12, 14. Legister's affidavit gives a more fulsome description of events, which, if credited, presents a dispute of fact. She maintains that Arbisi was the first officer on the scene and she was the first person to speak to him. Legister Aff. ¶ 10. Arbisi asked her some "pedigree questions" like her name and what happened. Id. Arbisi then asked her if she knew who the victim and perpetrators were. Id. Legister states in her affidavit:
I responded by saying that the victim was my boyfriend Caffele, but before I could say Caffele's last name, P.O. Arbisi filled it in for me saying[,] is it Caffele Morgan[?] I responded Yes. Then he asked me where Mr. Morgan was[,] I pointed to the sidewalk where Mr. Morgan was seated at the same time I could see that the ambulance technicians had arrived and were talking to or treating Mr. Morgan. To [m]y surprise, P.O. Arbisi, immediately stopped asking me questions and went over to Mr. Morgan, seconds later Mr. Morgan was in handcuffs and being walked to the ambulance.
According to Legister, Arbisi walked directly to Plaintiff, placed handcuffs on him and walked Plaintiff to the ambulance. Id. at ¶ 11. She alleges that she did not see Arbisi speak to any other witnesses that were present and she was the first and only person to speak to him before he arrested Plaintiff. Id. at ¶ 12.
Thus, according to Plaintiff's and Legister's version of events, Arbisi immediately recognized Plaintiff and arrested him prior to any investigation by himself, Renganeschi or the other officers. Challenging the assertion that Plaintiff was arrested in the ambulance after the investigation, these affidavits indicate that Plaintiff was handcuffed before he was treated in the ambulance. Furthermore, these accounts are possible given Officer Arbisi's deposition testimony that he believed that he placed the handcuffs on Plaintiff outside of the ambulance and then walked him to the ambulance. Arbisi Dep. 49-50.*fn2 Although Arbisi does not indicate exactly at what point he handcuffed and arrested Plaintiff, it could be argued that Arbisi's deposition testimony supports Plaintiff's claims that the arrest occurred immediately upon his arrival and thus contradicts N.C. Defendants' assertion that Plaintiff was arrested as he was treated in the ambulance after an investigation. Plaintiff alleges that Arbisi arrested him prior to an investigation in bad faith because of a previous complaint that Plaintiff filed against Arbisi. See Arbisi Dep. 55; Pl. Aff. ¶ 19. Under this scenario, Plaintiff contends, no probable cause existed at the time of his arrest because Arbisi conducted no investigation prior to arresting him. Plaintiff contends that the putative investigation was initiated after his arrest and cannot be used to create probable cause ex post facto.*fn3 This scenario would give rise to a genuine issue for trial because "court[s] look only to the information that the arresting officer had at the time of the arrest." Peterson, 995 F. Supp. at 313.
These affidavits, however, contradict Plaintiff's deposition testimony. Belying the characterization that Arbisi handcuffed Plaintiff on the sidewalk and walked him to the ambulance, Plaintiff, in his deposition testimony, clearly states that Legister and an ambulance technician helped him into the ambulance where he started receiving treatment for his head injury. Pl. Dep. 123-24. Plaintiff recounts that he did not encounter Officer Arbisi until after he was in the ambulance. Id. at 122, 126. According to his deposition testimony, Arbisi placed handcuffs on him at that point.*fn4 Furthermore, Plaintiff again asserts a contradictory version of historical facts in his opposition papers to Non-Nassau County Defendants' motion for summary judgment. In those papers, Plaintiff states that it is "undisputed" that the security guards spoke to the police before Plaintiff's arrest and that the police relied on the information by the security guards to arrest, incarcerate, and prosecute him. Pl.'s Mem. Law. & Affirm. Opp'n Non-Nassau Co. Defs. Mot. Sum. J. 11, 13.
It has long been a cardinal rule in the Second Circuit that "a party may not create an issue of fact by submitting an affidavit in opposition to a summary judgment motion that, by omission or addition, contradicts the affiant's previous deposition testimony." Hayes v. N.Y. City Dep't of Corrs., 84 F.3d 614, 619 (2d Cir. 1996) (citing Perma Res. & Dev. Co. v. Singer Co., 410 F.2d 572, 578 (2d Cir. 1969)). The rule is necessary because "if a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact." Perma Res. & Dev. Co., 410 F.2d at 578. Thus, "factual issues created solely by an affidavit crafted to oppose a summary judgment motion are not 'genuine' issues for trial." Hayes, 84 F.3d at 619 (quoting Perma Res & Dev. Co., 410 F.2d at 578). Nevertheless, the so-called "sham affidavit rule" does not apply where "evidence other than the deponent's subsequent affidavit" contradicts the prior sworn testimony, "for when such other evidence is available, the concern that the proffered issue of fact is a mere 'sham' is alleviated." Palazzo ex rel. Delmage v. Corio, 232 F.3d 38, 43-44 (2d Cir. 2000).
Here, the sham affidavit rule does not apply because Officer Arbisi's deposition testimony is evidence other than the deponent's subsequent affidavit that directly contradicts Plaintiff's deposition testimony that he was first handcuffed inside the ambulance. The fact that an opposing party's testimony bolsters the affidavits and conflicts with Plaintiff's prior deposition sufficiently precludes the Court from disregarding Plaintiff's affidavit. See Sea Trade Co., Ltd. v. FleetBoston Fin. Corp., No. 03-CV-10254, 2008 U.S. Dist. LEXIS 67221, at *57-62 (S.D.N.Y. Sept. 4, 2008) (holding that sham affidavit rule does not ...