United States District Court, S.D. New York
MEMORANDUM OPINION AND ORDER
NELSON S. ROMAN, District Judge.
Plaintiff Christopher Cuellar ("Plaintiff') commenced the instant action against the City of White Plains ("City"), White Plains Police Officers Maurice Love ("Love") and Domenico Ruggiero ("Ruggiero") (collectively "Defendants"), and unidentified John Doe police officers ("the Does"), under 42 U.S.C. §§ 1983 and 1988 alleging a violation of his Federal and State rights to be free from unreasonable seizures, and alleging related state law claims. Specifically, Plaintiffs complaint alleges (1) a federal false arrest and excessive force claim against Love, Ruggiero, and the Does; (2) federal and state false arrest and failure to intervene claims against Love, Ruggiero, and the Does; (3) a federal excessive force, failure to intervene, and conspiracy to use excessive force claim against Love, Ruggiero, and the Does; (4) a Monell claim against the City for (i) exhibiting deliberate indifference to violations of constitutional rights, (ii) failing to properly screen, hire, train, supervise, and discipline police officers, and (iii) authorizing and ratifying a police code of silence; (5) a state negligent hiring, training, and supervision claim against the City; (6) a state "assault and battery" claim against Love, Ruggiero, and the Does; and (7) a state intentional infliction of emotional distress claim against Love, Ruggiero, and the Does.
Defendants now move, pursuant to Federal Rule of Civil Procedure 56, for partial summary judgment, asserting that there is no genuine dispute of material fact and that they are entitled to judgment as a matter of law. Defendants aver that there was probable cause to arrest Plaintiff because he pled guilty to disorderly conduct; there is no admissible evidence that Love participated in the alleged excessive use of force; Love did not have a reasonable opportunity to intervene; the failure to intervene claim against Ruggiero merges with the excessive force claim; officers of the same corporate entity acting within the scope of their employment cannot legally conspire together; there is no evidence of a municipal policy, custom, or practice that allows constitutional violations; there is no evidence demonstrating the City's negligence in hiring, training, or supervising officers; there is no evidence that Plaintiff feared imminent bodily contact; there is no evidence Love caused Plaintiff's injuries; the intentional infliction of emotional distress claim cannot be used as a substitute for other available tort theories; and there is no evidence of severe emotional distress or extreme and outrageous conduct. Defendants assert further that the three-year statute of limitations for § 1983 actions has run for claims against the Does. For the following reasons, Defendants' motion is granted in part and denied in part.
I. THE FACTS
The facts are gleaned from the parties' 56.1 statements,  affidavits, and exhibits submitted with this motion and the pleadings, and are not in dispute except where noted.
Love, an African American man, was hired by the White Plains Police Department ("WPPD") in 2007. He spent twenty weeks at the Westchester County Police Academy, followed by five weeks being trained by the WPPD in-house. Love spent the next ten to twelve weeks assigned to field training officers learning how calls were handled and paperwork was done. He then joined the Neighborhood Conditions Unit for the remainder of his first year on the force, where he was trained to handle violations of open container laws, public urination, and similar violations. After the first year, he was assigned to a regular single-officer patrol car. This assignment has continued at least through February 2013.
Ruggiero, a white man, testified he served as a state court security officer from approximately 1998 through the end of 2005. He was hired by the WPPD and re-attended the police academy from January through May 2006, studying, among other topics, law, policies, procedures, tactics, use of firearms, and receiving vehicle training. There was also training regarding the use of force to effect arrests when individuals were resisting. Ruggiero, like Love, received additional in-house training by the WPPD and was assigned to the Neighborhood Conditions Unit prior to assuming duties on regular patrol.
In addition to regular patrol assignments, the WPPD would hire "anywhere up to four police officers" to work the so-called bar overtime patrol ("Bar Patrol") on certain nights. (Pl.'s Ex. D ("Ruggiero Dep.") 29:14-20.) The Bar Patrol focused its activities on one block of Mamaroneck Avenue in White Plains, New York, between Post Road and Maple Avenue, where there is a high concentration of bars. According to Ruggiero's deposition, there would be four officers and one sergeant working each Bar Patrol night, with two officers patrolling the east sidewalk and the other two patrolling the west sidewalk. Officers would sometimes walk through certain bars, if ordered to do so. The sergeant would stay on the street and maintain radio communication with the officers, advising them of situations that needed to be handled. The Bar Patrol shift generally ran from about midnight through 4:30 a.m. Ruggiero testified that sometimes only two or three officers worked Bar Patrol, but that there would never be just one officer patrolling the sidewalk by himself. Love and Ruggiero were assigned to the Bar Patrol on June 27, 2010.
Plaintiff is a resident of Cortlandt Manor, New York. On the evening of June 26, 2010, Plaintiff, his girlfriend Ashley Domicini ("Ashley"), and two other friends, Anthony Fortuna and Jamie Godal, met at Plaintiff's house. Plaintiff drank one or two bud lights at his house before he and his friends left around 10:30 p.m. They first drove to pick up another friend, Cindy Yee, and then continued on to Mamaroneck Avenue in White Plains.
Plaintiff and his friends entered an establishment called the Brazen Fox on the eastern side of Mamaroneck Avenue at approximately 11:15 p.m. Plaintiff testified that he drank one beer there. After about 45 minutes, the group left the Brazen Fox and entered an adjacent bar called the Porter House. Plaintiff testified that he drank two beers at the Porter House and stayed there about 60 or 90 minutes, into the early morning hours of June 27, 2010. Plaintiff, Jamie Godal, and Anthony Fortuna then left the Porter House through the back door and entered the back door of a third establishment, Elements. At the time, Ashley was in the Porter House restroom and Cindy Yee went to find her. The group planned to meet back up on the sidewalk on the eastern side of Mamaroneck Avenue.
When Plaintiff arrived on the sidewalk, he initially could not find Ashley. He soon saw her walking alone southbound along the sidewalk. He ran up to Ashley, who seemed very upset with him, grabbed her, turned her around, and asked what was wrong. Plaintiff placed his hands on Ashley's shoulders. Love and Ruggiero testified that Plaintiff also backed Ashley into the doorway of a store. Plaintiff testified that she was already facing him with her back to the doorway. Ashley wanted Plaintiff to get off her, which, according to Plaintiff, was not a new occurrence. Love then warned Plaintiff to get his hands off Ashley. Plaintiff complied, and Ashley continued walking south down Mamaroneck Avenue along the eastern sidewalk.
Ruggiero testified that he and Love monitored Plaintiff for a while but soon resumed their general patrol, believing Plaintiff and Ashley had separated. However, Ruggiero and Love were soon advised that a man was pushing a woman around inside the Chase Bank. The officers walked to the bank, and Love observed Plaintiff and Ashley arguing near the bank. Love and Ruggiero testified that Love warned Plaintiff a second time, directing him to leave Ashley alone and let her go home. Plaintiff, without citation to any evidence, argues that there was no second warning. Ashley crossed to the western side of Mamaroneck Avenue to get a taxi. The officers, again believing there would be no further issues, walked back toward their patrol car which was near the Porter House. About three minutes later, Plaintiff joined Ashley across the street, where he had observed two men speaking with Ashley. An altercation with Love and Ruggiero ensued.
Defendants aver that the altercation happened as follows. Love and Ruggiero became aware of an incident on the western sidewalk of Mamaroneck Avenue after Plaintiff pushed one of the men on the shoulder. Love and Ruggiero observed Plaintiff grab someone with his hands. Love approached Plaintiff and told him he was under arrest, but Plaintiff began walking toward an alley leading to where his friend parked. Plaintiff told Love he was just going to go home, and the struggle to arrest Plaintiff commenced. Plaintiff grabbed Ruggiero's arms and was pushing Ruggiero backwards while Love grabbed one of Plaintiff's legs. An unidentified person grabbed Plaintiff's other leg until they were able to get Plaintiff on the ground. Then Love attempted to handcuff Plaintiff, but he tucked his hands beneath his body. Love and Ruggiero were eventually able to get Plaintiff's hands out from under his body and handcuff him. They then brought Plaintiff to his feet and walked him to the police car.
Plaintiff asserts the following. He placed a hand on one man's shoulder in a friendly manner. Love yelled "hey" or "hey you" at him, but never said he was under arrest. (Pl.'s Ex. B ("Pl. Dep.") 53:21-23.) Plaintiff asserts in his Rule 56.1 counterstatement that he was handcuffed before telling Love he was just going to go home, and that he was tackled and cuffed without warning. He asserts he was handcuffed without resistance but was nonetheless taken to the ground. Ruggiero called Plaintiff derogatory names such as "faggot" and "pussy." (Pl. 50-h 38:6-7.) Plaintiff testified to being held face down on the ground for about three minutes. At some point during those three minutes, Ruggiero allegedly took Plaintiff's head and smashed his face to the ground and asked Plaintiff how he liked it. Ruggiero and Love then helped Plaintiff to his feet and walked him to the police car. On the way there, Ruggiero was telling Plaintiff he was Ruggiero's bitch and it made Plaintiff "feel as if [he] was on a leash like a dog." (Pl. Dep. 78:15-22.) Ruggiero leaned Plaintiff on his stomach against the car and then slammed Plaintiff to the ground. Plaintiff's "whole front area" came into contact with the ground, but he denied that his face struck the ground again. (Pl. Dep. 83:22-84:4.)
Plaintiff was charged with one count of resisting arrest in violation of New York Penal Law § 205.30 and one count of disorderly conduct in violation of New York Penal Law § 240.20(1). On November 5, 2010, Plaintiff pled guilty to two counts of disorderly conduct in satisfaction of the charges. Before his guilty plea, on or about September 10, 2010, Plaintiff served a notice of claim on the City. On February 24, 2011, the City conducted Plaintiff's 50-h hearing. Plaintiff brought the instant action on May 27, 2011.
II. SUMMARY JUDGMENT STANDARD
Motions for summary judgment are governed by Rule 56 of the Federal Rules of Civil Procedure. "The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The moving party bears the initial burden of demonstrating the absence of any genuine dispute or issue of material fact by pointing to evidence in the record, "including depositions, documents... [and] affidavits or declarations, " Fed.R.Civ.P. 56(c)(1)(A), "which it believes demonstrate[s] the absence of a genuine issue of material fact, " Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party may support an assertion that there is no genuine dispute by "showing... that [the] adverse party cannot produce admissible evidence to support the fact." Fed.R.Civ.P. 56(c)(1)(B).
Once the moving party has fulfilled its preliminary burden, the onus shifts to the nonmoving party to raise the existence of a genuine dispute of material fact. Fed.R.Civ.P. 56(c)(1)(A); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). A genuine dispute of material fact exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248; accord Benn v. Kissane, 510 F.Appx. 34, 36 (2d Cir. 2013); Gen. Star Nat'l Ins. Co. v. Universal Fabricators, Inc., 585 F.3d 662, 669 (2d Cir. 2009); Roe v. City of Waterbury, 542 F.3d 31, 35 (2d Cir. 2008); Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005). Courts must "constru[e] the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in its favor." Fincher v. Depository Trust & Clearing Corp., 604 F.3d 712, 720 (2d Cir. 2010) (quoting Allianz Ins. Co. v. Lerner, 416 F.3d 109, 113 (2d Cir. 2005)). In reviewing the record, "the judge's function is not himself to weigh the evidence and determine the truth of the matter, " Anderson, 477 U.S. at 249; see also Kaytor v. Elec. Boat Corp., 609 F.3d 537, 545 (2d Cir. 2010) ("The function of the district court in considering the motion for summary judgment is not to resolve disputed questions of fact."), nor is it to determine a witness's credibility, Anderson, 477 U.S. at 249. Rather, "the inquiry performed is the threshold inquiry of determining whether there is the need for a trial." Id. at 250. " [S]ummary judgment is ordinarily inappropriate where an individual's intent and state of mind are implicated." Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985); see also ITC Ltd. v. Punchgini, Inc., 482 F.3d 135, 150 (2d Cir. 2007) ("[I]ntent is always a subjective matter of inference and thus rarely amenable to summary judgment." (quoting Saratoga Vichy Spring Co. v. Lehman, 625 F.2d 1037, 1044 (2d Cir. 1980))). However, "[s]tatements that are devoid of any specifics, but replete with conclusions, are insufficient to defeat a properly supported motion for summary judgment." Bickerstaff v. Vassar Coll., 196 F.3d 435, 452 (2d Cir. 1999); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts"); FDIC v. Great Am. Ins. Co., 607 F.3d 288, 292 (2d Cir. 2010) (nonmoving party "may not rely on conclusory allegations or unsubstantiated speculation" (quoting Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998))).
III. CLAIMS AGAINST JOHN DOE DEFENDANTS
As an initial matter, Defendants assert and the Court agrees that all claims alleged against the Does must be dismissed. Claims under 42 U.S.C. § 1983 asserted in New York based on personal injuries, such as Plaintiff's claims premised on excessive force, are subject to a three-year statute of limitations. Hogan v. Fischer, 738 F.3d 509, 517 (2d Cir. 2013) (citing N.Y. C.P.L.R. § 214); Patterson v. Cnty. of Oneida, 375 F.3d 206, 225 (2d Cir. 2004). However, Plaintiff has not sought to replace the Does with named parties. Cf. Hogan, 738 F.3d at 517-19 (analyzing relation back of claims under Federal Rule of Civil Procedure 15(c)(1)(A), (C)). The claims for assault, battery, and intentional infliction of emotional distress against the Does likewise fail, as they are subject to a one-year ...