The opinion of the court was delivered by: Scullin, Senior Judge
MEMORANDUM-DECISION AND ORDER
Currently before the Court is Defendant City of Troy's ("Troy") motion for summary judgment on both its cross-claim and Plaintiff's claims. See Dkt. No. 38-1. Also pending is Defendant Troy Housing Authority ("THA"),*fn1 Defendant Jason C. Stocklas ("Stocklas"), and Defendant Matthew D. McLaughlin's ("McLaughlin") motion for summary judgment with respect to Plaintiff's claims and co-Defendant Troy's cross-claim for indemnification/contribution. See Dkt. No. 36-1.
Defendant Troy argues that it is entitled to summary judgment because Plaintiff has failed to demonstrate that material questions of fact exist regarding the claims that he has asserted against it and because Defendant THA has failed to show that Defendant Troy may be held accountable for Defendant Stocklas' off-duty actions. See Dkt. No. 59.
Defendant THA asserts that it is entitled to summary judgment because (1) there is no evidence establishing municipal liability pursuant to 28 U.S.C. § 1983; (2) Plaintiff has failed to establish an equal protection claim because he failed to show that he was treated differently than other similarly situated individuals; (3) Plaintiff is collaterally estopped from asserting that his arrest lacked probable cause; (4) the evidence does not support a finding that Defendant THA failed to provide Plaintiff with prompt medical treatment; (5) any force used was not excessive; (6) Plaintiff's conspiracy claim asserts only bare and conclusory allegations; and (7) Plaintiff's negligence claim is based on his arrest; and, therefore, it is a malicious prosecution cause of action and not one for negligence.
On the evening of March 28, 2006, at approximately 8:00 p.m., Defendant Stocklas pulled over Plaintiff. At the time of the stop, Defendant Stocklas was on duty as a peace officer for Defendant THA, for whom he worked part time. After pulling to the side of the road, Defendant Stocklas approached Plaintiff's vehicle and identified himself as both a THA officer and a Troy Police Officer. See Affidavit of Michael C. Conway sworn to January 4, 2010 ("Conway Aff."), at Exhibit "B," at 33. Defendant Stocklas informed Plaintiff that he had stopped him because he was operating after dark without his headlights on and also because his vehicle had an illegal window tint. See id. at 27.
Initially, Plaintiff was hesitant to provide Defendant Stocklas with identification, but eventually he produced his New York State Driver's License. See Affidavit of Stephen J. Rehfuss dated November 10, 2009 ("Rehfuss Aff."), at Exhibit "N," at 55, 58-59. After obtaining the license, Defendant Stocklas returned to his THA vehicle. Remembering that he also had his employment identification card, which identified him as a Capital District Transportation Authority bus driver, Plaintiff exited his vehicle and proceeded to walk towards Defendant Stocklas' vehicle, while shouting that he had his employee identification. See id. at 63.
At this point, Defendant McLaughlin arrived on the scene and, upon seeing Plaintiff walking towards Defendant Stocklas' vehicle, twice commanded Plaintiff to return to his vehicle.
See id. at 68. Plaintiff contends that, as he was walking back to his vehicle as commanded, Defendant McLaughlin sprayed him in the back of the head with pepper spray and then slammed him into the front of his car. See id. at 71-72, 73. As Defendant McLaughlin was attempting to handcuff Plaintiff, Plaintiff informed him that he was unable to put his arm behind his back because he recently had surgery performed on his shoulder. See id. at 72. At this point, Defendant McLaughlin kneed Plaintiff in the back and "snapped" his arm behind his back and handcuffed him. See id.
After being taken into custody, Plaintiff was transported to the Troy
Police Department, where he was held and processed.*fn2
When asked if he wanted medical attention, Plaintiff declined
and opted to be arraigned as soon as possible. At the time of
arraignment, Plaintiff was advised that he was being charged with
three misdemeanor counts. See Affidavit of Alphonso Dukes sworn to
January 2, 2010 ("Dukes Aff."), at Exhibit "C." In two of the counts,
Defendant Stocklas identified himself as a Troy Police Officer. See id.
Following arraignment, Plaintiff was transported to the Rensselaer County Jail, where he was held for more than two days. Plaintiff asserts that he was denied access to a physician and the opportunity to take pain medication during this time. Upon release, Plaintiff sought medical attention for his shoulder injury and eventually underwent surgery.
Subsequently, Plaintiff was acquitted of all of the criminal charges arising out of the incident in question. See Rehfuss Aff. at Exhibit "L" (providing that all charges against Plaintiff were dismissed pursuant to New York Criminal Procedure Law § 160.50 -- a dismissal in the interests of justice).*fn3 On May 5, 2008, Plaintiff commenced the present action to redress the deprivation by Defendants of rights, privileges and immunities secured to Plaintiff by the First, Fourth and Fourteenth Amendments to the Constitution of the United States of America with the intent to deny Plaintiff his civil rights, all of which arise under Federal Law, particularly Title 42 U.S.C. Sections 1983 and 1988, and the Constitution, Laws and Statutes of the United States and the State of New York.
In its answer, Defendant Troy asserted a cross-claim against Defendant THA for indemnification, alleging that Defendant Troy had no involvement with the alleged unconstitutional conduct.
A court may grant a motion for summary judgment only if the court determines that there is no genuine issue of material fact to be tried and that the facts as to which there is no such issue warrant judgment for the movant as a matter of law. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36 (2d Cir. 1994) (citations omitted). When analyzing a summary judgment motion, the court "'cannot try issues of fact; it can only determine whether there are issues to be tried.'" Id. at 36 (quotation and other citation omitted). In assessing the record to determine whether any such issues of material fact exist, the court is required to resolve all ambiguities and draw all reasonable inferences in favor of the nonmoving party. See id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 2513-14, 91 L. Ed. 2d 202 (1986)) (other citations omitted).
A. Plaintiff's claims against the individual Defendants
1. Search and seizure, false arrest and unlawful imprisonment
Defendants assert that the doctrine of collateral estoppel bars Plaintiff's unlawful search and seizure, false arrest, and unlawful imprisonment claims. See Dkt. No. 36-1 at 11.*fn4
The Second Circuit has clearly established that federal law applies in determining the preclusive effect of a federal judgment, while "New York law [applies] in determining the preclusive effect of a New York State court judgment[.]" Marvel Characters, Inc. v. Simon, 310 F.3d 280, 286 (2d Cir. 2002) (citations omitted). Although application of either would frequently lead to the same result, "these two bodies of law do appear to diverge in some particulars[.]" Indus. Risk Insurers v. Port Auth. of N.Y. & N.J., 493 F.3d 283, 288 (2d Cir. 2007) (citation omitted).
In Schwartz v. Pub. Adm'r of Cnty. of Bronx, 24 N.Y.2d 65 (1969), the New York Court of Appeals stated that a litigant may invoke the doctrine of collateral estoppel where there is an "identity of issue which has necessarily been decided in the prior action and is decisive of the present action," so long as the party against whom preclusion is asserted had a "full and fair opportunity to contest the decision now said to be controlling." Id. at 71. Accordingly, a party may invoke collateral estoppel to preclude a party from raising an issue "'(1) identical to an issue already decided (2) in a previous proceeding in which that party had a full and fair opportunity to litigate' . . . [and (3) that is] 'decisive [in] the present action.'" Curry v. City of Syracuse, 316 F.3d 324, 331 (2d Cir. 2003) (quotations and footnote omitted).
"The party seeking the benefit of collateral estoppel has the burden of demonstrating the identity of the issues . . . whereas the party attempting to defeat its application has the burden of establishing the absence of a full and fair opportunity to litigate the issue in the prior action[.]" Kaufman v. Eli Lilly & Co., 65 N.Y.2d 449, 456 (1985) (citations omitted).
In determining whether a party had a full and fair opportunity to litigate the issue, the New York Court of Appeals has instructed that "the various elements which make up the realities of litigation," should be explored, including "the size of the claim, the forum of the prior litigation, the use of initiative, the extent of the litigation, the competence and experience of counsel, the availability of new evidence, indications of a compromise verdict, differences in the applicable law and foreseeability of future litigation."
Kosakow v. New Rochelle Radiology Assocs., P.C., 274 F.3d 706, 734 (2d Cir. 2001) (quoting Schwartz, 24 N.Y.2d at 72, 298 N.Y.S.2d at 961, 246 N.E.2d 725). Further, an issue is decisive of the present action "if it would prove or disprove, without more, an essential element of any of the claims set forth in the complaint." Curry, 316 F.3d at 332.
In the present matter, collateral estoppel does not operate to bar any of Plaintiff's claims because he was not provided with a "full and fair opportunity to contest the decision now said to be controlling." Schwartz, 24 N.Y.2d at 71. Specifically, although the Troy City Court found that Defendant Stocklas and Defendant McLaughlin had probable cause to stop and then arrest Plaintiff, he was not provided with an opportunity to appeal that decision because the criminal charges were later dismissed. See Dkt. No. 36-5 at Exhibit "L"; see also Rivera v. Metakes, 216 F.3d 1073, 2000 WL 777954, *1 (2d Cir. June 15, 2000) (holding that, "[u]nder New York law, facts determined in a pretrial hearing cannot be given preclusive effect against a defendant subsequently acquitted of the charges or against whom the charges have been dismissed" (citations omitted)).
Accordingly, the Court denies Defendants' motion for summary judgment on this ground.*fn5
2. Plaintiff's equal protection claim
Ordinarily, "[t]o state a claim for an equal protection violation, [the plaintiff] must allege that a government actor intentionally discriminated against [him] on the basis of race, national origin or gender." Hayden v. Cnty. of Nassau, 180 F.3d 42, 48 (2d Cir. 1999). The plaintiff must allege that he was "'selectively treated'" as "'compared with others similarly situated'" based on "'impermissible considerations'" such as race or with the "'intent to inhibit or punish the exercise of constitutional rights[.]'" Giordano v. City of N.Y., 274 F.3d 740, 750-51 (2d Cir. 2001) (quotation omitted).
In this case, Plaintiff has not established differential treatment that resulted from intentional and unlawful discrimination. In neither his complaint nor his response to Defendants' interrogatories does Plaintiff allege or offer evidence to demonstrate that Defendants treated him differently from the way that they treated other similarly situated individuals. See Dkt. No. 1; see also Rehfuss Aff. at Exhibit "K," at ¶¶ 11-12. Further, in his response to Defendant THA's motion for summary judgment, Plaintiff fails to address Defendant THA's assertion that the Court should dismiss his equal protection cause of action; and, thus, the Court concludes that Plaintiff has abandoned this claim. See Rohn Padmore, Inc. v. LC Play, Inc., 679 F. Supp. 2d 454, 459 (S.D.N.Y. 2010) (holding that, "'[w]here one party fails to respond to an opposing party's argument that its claim must be dismissed, courts may exercise their discretion and deem the claim abandoned'" (quotation omitted)).
Accordingly, the Court grants Defendants' motion for summary judgment with respect to Plaintiff's equal ...