The opinion of the court was delivered by: Matsumoto, United States District Judge:
NOT FOR PRINT OR ELECTRONIC PUBLICATION MEMORANDUM AND ORDER
On January 29, 2009, Eleggua Osun Elufe ("plaintiff") commenced this pro se action against defendants Lieutenant Aylward, Lieutenant Colon, Sergeant Brogan, Sergeant Harrison, Detective Palamara, Police Officer Reilly, Police Officer Simley, and Police Officer McCauley ("defendants"), alleging violations of his civil rights pursuant to 42 U.S.C. § 1983 and state law claims of assault and battery. Defendants now move for summary judgment pursuant to Fed. R. Civ. P. 56. For the reasons set forth below, defendants' motion is granted.
On January 29, 2009, plaintiff commenced this pro se action pursuant to 42 U.S.C. § 1983 against Police Officer Reilly and unnamed police officers, alleging claims of false arrest, malicious prosecution, excessive force, and denial of medical attention under the Fourth and Eighth Amendments to the United States Constitution, and assault and battery under New York state law. Plaintiff filed an amended complaint on August 17, 2009, adding as defendants Lieutenant Aylward, Lieutenant Colon, Sergeant Brogan, Sergeant Harrison, Detective Palamara, Police Officer Simley, and Police Officer McCauley. Discovery followed.
Defendants filed the pending motion on August 13, 2010. Defendants move for summary judgment pursuant to Fed. R. Civ. P. 56 on the grounds that: (1) plaintiff's false arrest and malicious prosecution claims are barred pursuant to the United States Supreme Court's decision in Heck v. Humphrey, 512 U.S. 477 (1994); (2) the amount of force used was de minimis and reasonable and insufficient to sustain a claim for excessive force under § 1983; (3) the undisputed record establishes that plaintiff did not sustain an objectively serious or urgent injury, and neither sought nor was denied medical attention; (4) plaintiff fails to allege that defendants were personally involved in the alleged excessive force used against him and the undisputed record establishes that defendants were not personally involved; (5) plaintiff fails to state a claim for supervisory liability;
(6) defendants are entitled to qualified immunity; and (7) to the extent that plaintiff alleges state law claims, they should be dismissed because plaintiff failed to comply with the New York General Municipal Law § 50-e pre-requisite to file a notice of claim. As required by the Local Civil Rules of this district, defendants served and filed a Rule 56.1 statement of undisputed facts ("R. 56.1 Stmt.") a Rule 56.2 notice to a pro se litigant. Plaintiff opposes defendants' motion for summary judgment.
II.Undisputed Material Facts*fn1
The undisputed material facts, as set forth in the current record and the defendants' Rule 56.1 statement and exhibits referenced therein, are as follows. On August 28, 2008, plaintiff was involved in a knife fight with another individual, Mr. Williams, in Brooklyn, New York. (R. 56.1 Stmt. ¶ 1.) New York City police officers arrived at the scene and arrested plaintiff. (R. 56.1 Stmt. ¶ 3.) Subsequent to plaintiff's arrest, the officers took photographs of plaintiff's face and body, which showed no visible injuries to plaintiff. (R. 56.1 Stmt. ¶ 4.) Plaintiff was examined by a medical professional prior to his arraignment on August 28, 2008 (R. 56.1 Stmt. ¶ 5), and two days later when he was admitted to Rikers Island (R. 56.1 Stmt. ¶ 6), during which examinations physical injuries were neither reported by plaintiff nor noted by the examining medical provider. Two months later, on October 30, 2008, plaintiff was again examined by a medical professional and again denied any health problems or complaints. (R. 56.1 Stmt. ¶ 8.) On December 26, 2008, four months after his arrest, plaintiff was given another health screening and, for the first time, complained of shoulder pain. (R. 56.1 Stmt.¶ 9.) Plaintiff offered alternate theories for the cause of his shoulder injury that did not relate to his arrest four months earlier: that it was caused by an "accident on the street" and that his shoulder "snapped." (R. 56.1 Stmt.¶ 10.) The New York State Department of Correctional Services diagnosed plaintiff with a possible joint disease, but found no fractures or dislocations in plaintiff's shoulder. (R. 56.1 Stmt. ¶ 11.) Plaintiff received physical therapy for several months, which ended in May 2009. (R. 56.1 Stmt.¶ 12.) The record does not indicate that plaintiff has received any other treatment for his shoulder injury since that time. (Id.)
Plaintiff pled guilty to Robbery in the Third Degree and Criminal Possession of a Weapon in the Third Degree on September 4, 2008. (R. 56.1 Stmt. ¶ 13.) Plaintiff is currently incarcerated at Sing Sing Correctional Facility.(R. 56.1 Stmt. ¶ 15.)
I.Summary Judgment Standard
A court may grant summary judgment only "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 a judgment as a matter of law." Fed. R. Civ. P. 56(c). The moving party carries the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In deciding a motion for summary judgment, the court's function is not to resolve disputed issues of fact, but only to determine whether there is a genuine issue to be tried. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The court must construe the facts in the light most favorable to the nonmoving party and all reasonable inferences and ambiguities must be resolved against the moving party. Flanigan v. Gen. Elec. Co., 242 F.3d 78, 83 (2d Cir. 2001).
Nevertheless, the nonmoving party cannot rely "merely on allegations or denials" but must instead "set out specific facts showing a genuine issue for trial." Fed. R. Civ. P. 56(e); see also Nat'l Westminster Bank USA v. Ross, 676 F. Supp. 48, 51 (S.D.N.Y. 1987) ("Speculation, conclusory allegations, and mere denials are not enough to raise genuine issues of fact."); Harlen Assocs. v. Inc. Vill. of Mineola, 273 F.3d 494, 499 (2d Cir. 2001) ("[M]ere speculation and conjecture is [sic] insufficient to preclude the granting of the motion.").
Nor can the nonmoving party rest only on the pleadings. Celotex, 477 U.S. at 324 (Rule 56(e) "requires the nonmoving party to go beyond the pleadings"); Davis v. New York, 316 F.3d 93, 100 (2d Cir. 2002). Instead, each statement of material fact by the movant or opponent must be followed by citation to evidence which would be admissible, as required by Fed. R. Civ. P. 56(e) and Local Civil Rule 56.1(d). Moreover, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson, 477 U.S. at 247-48 (emphasis in original). No genuine issue of material fact exists "unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, . . . or is not significantly probative, . . . summary judgment may be granted." Id. at 249-50 (internal citations omitted).
a.Malicious Prosecution Claim
Defendants first argue that plaintiff's malicious prosecution claim is barred as a matter of law under Heck v. Humphrey, 512 U.S. 477 (1994), because his conviction has not been invalidated by an administrative board, state court, or in a federal habeas corpus proceeding. (ECF No. 67, Defendants' Memorandum of Law in Support of Their Motion for Summary Judgment ("Defs. Mem."), at 4-6.) Plaintiff does not address this procedural argument in his opposition; rather, he argues on the merits that the malicious prosecution claim "does not require a plaintiff to prove that the defendant was motivated by spite or hatred, but that he initiated the criminal proceeding due to a wrong or improper motive." (ECF No. 68, Plaintiff's Motion for Opposition of Defendants' Motion for Summary Judgment, ("Pl. Mem."), at 6.) The court finds that plaintiff's claim for malicious prosecution is barred by the doctrine set forth in Heck v. Humphrey.
In Heck v. Humphrey, the Supreme Court held that "a § 1983 cause of action for damages attributable to an unconstitutional conviction or sentence does not accrue until the conviction or sentence has been invalidated." 512 U.S. at 489-90. Thus, a plaintiff who seeks to "recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid . . . must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus." Id. at 486-87. Accordingly, "the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated." Id. at 487.
The Second Circuit has consistently held that claims for malicious prosecution are barred by Heck v. Humphrey if the conviction or sentence has not been invalidated. See, e.g., Lynch v. Suffolk Cty. Police Dep't, Inc., 348 F. App'x 672, 674 (2d Cir. 2009) (affirming dismissal of plaintiff's claims for malicious prosecution because plaintiff "concede[d] that his felony convictions have never been 'invalidated' by a court or other proper authority"); Murphy v. Lynn, 118 F.3d 938, 947 (2d Cir. 1997) (holding that in order to establish a claim for malicious prosecution under § 1983, a plaintiff must show that the prosecution ended in his favor). Here, plaintiff pled guilty to Robbery in the Third Degree and Criminal Possession of a Weapon in the Third Degree. (R. 56.1 Stmt. ¶ 13.) Plaintiff has not alleged nor presented any evidence that his conviction has been invalidated. Accordingly, summary judgment is granted as to plaintiff's claim for malicious prosecution pursuant to Heck v. Humphrey.
Defendants similarly move for summary judgment on plaintiff's false arrest claim on the ground that it, too, is barred by Heck v. Humphrey. (ECF No. 67, Defs. Mem., at 4-6.) The court agrees. In addition to Heck v. Humphrey, the court grants summary judgment as to plaintiff's false arrest claim on the ground that ...