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Michael Outerbridge v. P.O. Jorge Tobon

July 3, 2012

MICHAEL OUTERBRIDGE, PLAINTIFF,
v.
P.O. JORGE TOBON, SHIELD # 9637, DET. ANGUS MCKENZIE, SHIELD # 06284, P.O. KEITH KNIGHT, SHIELD # 2711, DET. SHANNON BROOKS, SHIELD : # 03463, THE CITY OF NEW YORK, DEFENDANTS.



The opinion of the court was delivered by: Kevin Nathaniel Fox United States Magistrate Judge

REPORT AND RECOMMENDATION

TO THE HONORABLE RICHARD J. SULLIVAN, UNITED STATES DISTRICT JUDGE

INTRODUCTION

On May 5, 2011, Michael Outerbridge ("Outerbridge"), proceeding pro se, commenced this action for damages, pursuant to 42 U.S.C. § 1983, alleging that the defendants violated his constitutional rights when they assaulted him, causing injuries. Before the Court is the defendants' motion to dismiss the complaint, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. The plaintiff opposes the motion.

PLAINTIFF'S ALLEGATIONS

Outerbridge alleges that, on September 29, 2007, he was walking on the street when he was approached by an undercover police officer who asked him where drugs could be purchased. Outerbridge asserts that he told the undercover police officer that he did not know and to leave him alone. According to Outerbridge, the undercover police officer "insisted I do know where to buy drugs and continued to harass me to buy drugs for him." Outerbridge asserts that he told the undercover police officer again to leave him alone, but the undercover police officer followed Outerbridge to the corner of 127th Street and Fifth Avenue, in Manhattan, where four plain clothes officers exited vehicles and began assaulting him. Outerbridge recalls that he was knocked to the ground, stomped and kicked in the face, head and chest. Outerbridge asserts that none of the plain clothes officers identified himself as a police officer and no officer read "any [M]iranda warnings to me while placing me under arrest." After the arrest, Outerbridge asserts, he was taken to a police precinct, but was denied medical treatment until he was admitted to the Rikers Island jail facility. There, he "decided against taking the psychological [m]edications because of the harmful and hazardous side effects," and he was given "Ibuprof[e]n 600 mg." Outerbridge maintains that he "requested to be taken to the hospital," but his request was denied. According to Outerbridge, he suffered "swelling to his face and [his] ribcage after being stomped, punched, kicked and beaten" by the defendants and he suffered memory loss and mental anguish. Outerbridge alleges that he was: (1) assaulted brutally and maliciously; (2) "unlawfully arrested and falsely imprisoned"; (3) denied medical treatment; and (3) prosecuted maliciously.

MOTION TO DISMISS Defendants' Contentions

The defendants assert that the plaintiff's claim for false arrest and false imprisonment is barred by the statute of limitations because the "plaintiff was arraigned on September 30, 2007, three days after his allegedly false arrest," and "the statute of limitations expired on or about September 30, 2010." The defendants contend that the plaintiff's claim for unlawful use of force is also barred by the statute of limitations because it "accrued when he was allegedly beaten by officers during his arrest on September 29, 2007," which means that the time to bring this claim "expired on September 27, 2010." According to the defendants, the "plaintiff claims that he was denied medical treatment until he was transferred to Rikers Island on September 30, 2007. Accordingly, any deliberate indifference claim expired on September 30, 2010." The defendants maintain that the plaintiff failed to establish the elements of a claim for malicious prosecution, namely, that "there was no probable cause for the criminal charge" and the defendants acted maliciously. They contend that plaintiff was indicted on felony charges, and the indictment creates the presumption of probable cause. The charges against plaintiff were dismissed on speedy trial grounds, not because the Grand Jury indictment was reviewed by a judge and dismissed due to lack of evidence. There is nothing to suggest that the indictment was procured by "fraud, perjury, the suppression of evidence, or other police conduct taken in bad faith." Moreover, plaintiff cannot point to any facts suggesting that defendants acted with malice.

In the "Statement of Facts" section of their memorandum of law, page 3, the defendants assert that, subsequent to the alleged assault on September 29, 2007, a grand jury indicted plaintiff "on charges of criminal possession of a controlled substance in the third degree and resisting arrest," and, "[a]fter numerous adjournments, the charges against plaintiff were dismissed on speedy trial grounds." In a footnote on page 3 of their memorandum of law, the defendants state: "On or about August 3, 2011, plaintiff provided this office with a '160.50' release, permitting the unsealing and examination of his criminal file. A copy of the file was mailed to plaintiff on December 9, 2011, and is annexed hereto as Exhibit A." However, no "Exhibit A" or any affidavit was filed in support of the defendants' motion, as required by Local Civil Rule 7.1 of this court.

Plaintiff's Contentions

Outerbridge opposes the defendants' motion by an affirmation, dated March 7, 2012, Docket Entry No. 45, in which he states that the three-page document attached to his affirmation, from the Criminal Court of the City of New York, County of New York, entitled "FELONY ADA CHEEKS," noting Police Officer Jorge Tobon's statement about the offenses committed by "Barry Randolph" and Outerbridge, shows that the defendants "are not forthcoming." Additionally, Outerbridge requested permission to file his April 10, 2012 supplemental affirmation, Docket Entry No. 48, in which he contends that "the prosecutor delayed" his case and to which is attached a Certificate of Disposition Dismissal, dated May 13, 2011, from the New York State Supreme Court, New York County, for case number "04934N-2007," against Outerbridge.

Defendants' Reply

The defendants contend that "[i]n his Opposition, plaintiff merely attached a copy of the felony complaint that was filed against him. Plaintiff does not provide any commentary on the complaint, or state how he believes that the complaint, dated ...


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