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Sash v. United States

December 15, 2009

ELIOT S. SASH, PLAINTIFF,
v.
THE UNITED STATES OF AMERICA, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Andrew J. Peck, United States Magistrate Judge

OPINION AND ORDER

Pro se plaintiff Eliot S. Sash brings this action pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999 (1971), alleging that:

(1) individual defendants United States Probation Officers Dave Mulcahy and Kevin Mulcahy used excessive force while arresting Sash in violation of his Fourth Amendment rights; and (2) individual defendants Deputy Chief Probation Officer James Blackford and Supervising Probation Officer Peter Merrigan failed to properly train and supervise their subordinates, failed to implement systems that could have prevented the alleged constitutional violation, allowed a policy that violated Sash's rights and "deliberately and maliciously refus[ed] to prevent" the alleged violations of his constitutional rights. (Dkt. No. 17: 2d Am. Compl. ¶¶ 4-8.)*fn1 Sash also asserts a claim against the United States pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq., for the actions of its employees. (2d Am. Compl. ¶ 2.) Sash seeks monetary damages. (2d Am. Compl. ¶¶ 2, 9.)

Defendants move for summary judgment as to the Bivens claims, arguing that:

(1) supervisory defendants Blackford and Merrigan are not liable because they had no personal involvement in the use of force during Sash's arrest and because there is no Bivens cause of action for supervisory liability; (2) all individual defendants are entitled to summary judgment because the Court need not credit Sash's unsupported allegations which, even if true, do not rise to the level of a constitutional violation. (Dkt. No. 23: Notice of Motion; Dkt. No. 24: Defs. Br. at 9-18.)

The parties have consented to disposition of this case by a Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Dkt. No. 10: § 636(c) Consent Form; see also Dkt. No. 11: 3/19/09 Hearing Tr. at 16-17.)

For the reasons set forth below, defendants' summary judgment motion (Dkt. No. 23) is GRANTED as to defendants Blackford and Merrigan, and DENIED as to defendants Dave Mulcahy and Kevin Mulcahy. Trial is scheduled to begin January 6, 2010 at 9:00 a.m.

FACTS

Background

On September 30, 2003, Sash pled guilty in the United States District Court for the Southern District of New York to charges that he produced and sold counterfeit law enforcement badges. See United States v. Sash, 396 F.3d 515, 518 (2d Cir. 2005).*fn2 Sash was sentenced to twenty-seven months imprisonment and two years and nine months of supervised release. United States v. Sash, 396 F.3d at 520, 525. (See Bober Aff. Ex. D: United States v. Sash, 02 Cr. 1519, 8/17/05 Amended Judgment.) In addition to the standard conditions of supervised release, the sentencing court imposed the following special condition:

The [defendant] shall not possess any law-enforcement equipment, such as New York Police Department shields and badges, that he is not authorized to possess. Nor shall he possess any raw materials, inventory, or badge components that could be used to manufacture law-enforcement equipment that he is not authorized to manufacture. (8/17/05 Amended Judgment at p. 4.)

Upon release from prison, Sash was placed under the supervision of United States Probation Officer Janice Fink. (Dkt. No 26: Blackford Aff. ¶ 3.) In early March 2006, during an unannounced visit to Sash's New Jersey home, Officer Fink observed items that appeared to be prohibited by the special conditions of Sash's supervised release. (Blackford Aff. ¶ 5.) On March 6, 2006, probation officers, including defendant James Blackford, searched Sash's home and found "a large number of prohibited law-enforcement-related items," including police uniforms and law enforcement badges. (Blackford Aff. ¶ 6.) Sash was not at home at the time of the search. (Bober Aff. Ex. F: Garldand-Sash Dep. at 16, 20; Blackford Aff. ¶ 7; Dkt. No. 17: 2d Am. Compl. ¶ 19.)

Later that morning, after returning to his Manhattan office, Blackford telephoned Sash. (See Bober Aff. Ex. B: Sash Dep. at 35-37, 43; Blackford Aff. ¶ 8; 2d Am. Compl. ¶¶ 20-21.) Sash was in lower Manhattan, not far from the Probation Department office, working as an actor on a movie set. (Garland-Sash Dep. at 20; 2d Am. Compl. ¶ 19 & n.1.) Sash agreed to report to the Probation Department office after completing his work for the day. (Sash Dep. at 37; Bober Aff. Ex. E: Blackford Dep. at 64; Blackford Aff. ¶ 8.) Sash spoke with Blackford twice more that afternoon, at 1:10 p.m. and 1:25 p.m., reiterating that he would report to the Probation Department office when he was finished work. (Sash Dep. at 35-37.) After more time had passed and Sash still had not reported, Blackford consulted with defendant Peter Merrigan (see Bober Aff. Ex. G: Merrigan Dep. at 38) and decided that Sash should be arrested due to a concern that he would not surrender voluntarily. (Blackford Aff. ¶ 10.) Officer Timothy Murphy and defendants Merrigan, Dave Mulcahy and Kevin Mulcahy were dispatched to the movie set to arrest Sash. (Blackford Aff. ¶ 10.)

Sash's Arrest

Sash was arrested at the corner of Front and Beekman Streets in lower Manhattan. (Dkt. No. 25: Bober Aff. Ex. B: Sash Dep. at 51.) Sash and another actor, Shawn Alexander, were walking towards the "holding area" where he would sign his daily work voucher. (Sash Dep. at 52; Bober Aff. Ex. H: Alexander Dep. at 43; Dkt. No. 17: 2d Am. Compl. ¶ 22.) As Sash approached the corner, a car came "screeching up" and three men jumped out. (Sash Dep. at 51.) According to Sash, the three men, later identified as Probation Officers Murphy, Dave Mulcahy and Kevin Mulcahy,*fn3 did not identify themselves as law enforcement officers, nor were they wearing any identification. (Sash Dep. at 51-53.) In contrast, Dave Mulcahy and Kevin Mulcahy testified that when they approached Sash, they did identify themselves. (Bober Aff. Ex. I: Dave Mulcahy Dep. at 16; Bober Aff. Ex. J: Kevin Mulcahy Dep. at 8.) According to Sash, Dave and Kevin Mulcahy rushed up to Sash and tackled him to the ground. (Sash Dep. at 51-52; 2d Am. Compl. ¶ 23.)*fn4 Sash admits that he was held on the ground for five seconds "at the most." (Sash Dep. at 55.) According to Sash, the Mulcahys picked Sash up and threw him against a metal gate. (Sash Dep. at 53, 55, 58.)*fn5 Sash demanded: "'[W]ho are you and what do you want?'" (2d Am. Compl. ¶ 23; see Sash Dep. at 55.) According to Sash, he was told that they were probation officers and that they "had to make sure [they] got [him]." (2d Am. Compl. ¶ 23.) Sash was handcuffed, his pockets were emptied, and he was placed in the backseat of the officers' car. (2d Am. Compl. ¶ 24; Sash Dep. at 55.) Sash admits that the entire encounter lasted "30 seconds at the most." (Sash Dep. at 55.) According to Sash, in the car he felt pain in his back and neck. (Sash Dep. at 55-56.)

Officer Murphy loosened Sash's handcuffs to "take the pressure off." (Sash Dep. at 58.) According to Sash, he asked defendant Dave Mulcahy: "'Why did you have to tackle me? I told Blackford I was coming in,'" and Mulcahy responded: "'We had orders that we had to get you.'" (Sash Dep. at 59.)

Sash was taken to the federal courthouse at 500 Pearl Street to be arraigned for violation of his supervised release. (Sash Dep. at 57; 2d Am. Compl. ¶ 25.) At the courthouse, Sash began to have chest pains. (Sash Dep. at 70-71; 2d Am. Compl. ¶ 25.) Sash took a nitroclycerine pill, but the United States Marshals noted that he looked ill and refused to take custody of him until he was cleared by a medical professional. (Sash Dep. 71-74; 2d Am. Compl. ¶¶ 26-27.) Sash was taken to NYU Downtown Hospital and admitted overnight. (See Bober Aff. Ex. M: NYU Downtown Hosp. Med. Records; 2d Am. Compl. ¶ 27.) He was released the next morning (March 7, 2006), transported back to the courthouse, and arraigned for violation of his supervised release. (See 2d Am. Compl. ¶ 29.)

On April 4, 2006, Judge Casey held a supervised release revocation hearing. United States v. Sash, 444 F. Supp. 2d 224, 225 (S.D.N.Y. 2006). On August 2, 2006, Judge Casey concluded that there was "overwhelming evidence" that Sash had violated his supervised release. Id. at 228.

ANALYSIS

I. GOVERNING LEGAL ...


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