United States District Court, E.D. New York
ORDER ADOPTING REPORT AND RECOMMENDATION
PAMELA K. CHEN, District Judge.
Plaintiff Dean Hanniford commenced this action against the above-captioned Defendants, alleging federal claims based on false arrest, malicious prosecution, excessive force, cruel and unusual punishment, and First Amendment retaliation, and a State law claim alleging respondeat superior liability of Defendant City of New York. (Dkt. 1.) On January 27, 2014, Plaintiff moved for partial summary judgment as to his false arrest and malicious prosecution claims (Dkts. 41-43, 45-46), and Defendants moved for summary judgment as to all of Plaintiff's federal claims. (Dkts. 32-35.) On April 30, 2014, pursuant to Rule 72(b) of the Federal Rules of Civil Procedure, the Court referred the parties' motions to the Honorable Steven M. Gold.
On December 23, 2014, Judge Gold issued a Report and Recommendation ("Report"), in which he recommended that both parties' summary judgment motions be denied, except as to Defendant's motion relating to Plaintiff's claims for cruel and unusual punishment (Sixth Cause of Action) and First Amendment retaliation (Seventh and Eighth Causes of Action), which Judge Gold recommended be dismissed. (Dkt. 50.) Following an extension of time granted by the Court, Defendants timely filed their objections to the Report on January 16, 2015. (Dkt. 52 (Defendant's Memorandum of Law in Support of Their Objections ("Def's Objs.")).) Plaintiff filed his memorandum in opposition to Defendants' objections and in support of the Report on January 30, 2015. (Dkt. 53.)
Applying a de novo review standard of review,  the Court adopts the Report in its entirety. The Court finds, for the reasons set forth in Judge Gold's well-reasoned decision, that there are genuinely disputed issues of material fact regarding: (1) the existence of probable cause to arrest Plaintiff both in connection with the August 5, 2009 robbery and the August 27, 2009 robbery conspiracy and criminal weapons possession; and (2) whether the Defendant-Officers used excessive force in arresting Plaintiff. (Dkt. 50 at 7-13.) The Court also adopts Judge Gold's recommendation and reasoning regarding the dismissal of Plaintiff's retaliation and cruel and unusual punishment claims. (Id. at 13-15.) Accordingly, the parties' respective motions for summary judgment with regard to Plaintiff's false arrest, malicious prosecution and excessive force claims are denied; and Defendants' motion with regard to Plaintiff's retaliation and cruel and unusual punishment is granted, and those claims are dismissed.
The Court writes briefly to address three issues raised by Defendants in their objections that were not explicitly addressed by Judge Gold in his decision. The resolution of these issues, however, does not affect the Court's adoption of the Report.
I. Presumption of Probable Cause Based on Indictment
Defendants argue that, with respect to Plaintiff's malicious prosecution claim, Judge Gold "failed to consider" the presumption of probable cause created by Plaintiff's indictment for criminal weapons possession on August 27, 2009. (Def's Objs. at 9-11 (citing Savino v. City of New York, 331 F.3d 63, 72 (2d Cir. 2003)); Dkt. 34 (Memorandum of Law in Support of Defendants' Motion for Summary Judgment) at 14-15.) While such a presumption was created in this case,  that "presumption is rebuttable, and may be overcome by evidence establishing that the police witnesses have not made a complete and full statement of facts... that they have misrepresented or falsified evidence... or otherwise acted in bad faith.'" McClellan, 439 F.3d at 146 (quoting Boyd v. City of New York, 336 F.3d 72, 76 (2d Cir. 2003) (citations omitted)); see Manganiello, 612 F.3d at 162 (probable cause presumption created by indictment is rebuttable by evidence that the indictment was obtained by "fraud, perjury, the suppression of evidence or other police conduct undertaken in bad faith") (quoting Colon v. City of New York, 60 N.Y.2d 78, 83 (1983) (internal quotations omitted)).
Here, Plaintiff put forth evidence that at least two Defendant-Officers, Detectives Roscoe McClenan and Ralph Sherlock, testified in the grand jury that a gun was recovered from Plaintiff on August 27, 2009. The existence of a factual dispute about whether Plaintiff possessed the gun seized on August 27, 2009 gives rise to a corresponding factual dispute about whether Detectives McClenan and Sherlock lied in the grand jury when they testified that the gun was recovered from Plaintiff. Similarly, because probable cause that Plaintiff possessed the gun is a disputed material fact, the element of "actual malice" also becomes an issue of disputed material fact. Sankar v. City of New York, 867 F.Supp.2d 297, 312 (E.D.N.Y. 2012) ("Where, as here, the Court find[s] an issue of material fact as to probable cause, the element of malice also becomes an issue of material fact as well.'") (quoting Boyd, 336 F.3d at 78)); see Manganiello, 612 F.3d at 162 ("actual malice" is an element of a malicious prosecution claim under New York law). Accordingly, the presumption of probable cause created by Plaintiff's indictment for criminal weapons possession is insufficient to establish probable cause for purposes of summary judgment because of the disputed facts about the conduct of the Defendant-Officers during the grand jury proceedings. See Manganiello, 612 F.3d at 162 (jury's finding that defendant-officer knowingly engaged in misconduct before the grand jury overcame the presumption of probable cause).
II. Excessive Force Based on the Handcuffing of Plaintiff
Defendants argue that Plaintiff's excessive force claim fails to the extent that it is based on the allegation that Plaintiff was handcuffed too tightly. (Def's Objs. at 11-13.) In recommending that Plaintiff's excessive force claim should survive summary judgment, Judge Gold did not focus or rely on Plaintiff's handcuffing allegation. Rather, Judge Gold's decision was based on Plaintiff's claims that he was thrown out of his car and that the Defendant-Officers had their feet on his neck, back, and head for approximately five minutes for no apparent purpose. (Dkt. 50 at 12-13.) In order to resolve any ambiguity on this issue, the Court now expressly finds that Plaintiff has failed to demonstrate a material factual dispute about whether he was subjected to excessive force based on being handcuffed too tightly.
"Courts apply a separate standard to claims for excessive force in the use of handcuffs." Sachs v. Cantwell, No. 10 Civ. 1663, 2012 WL 3822220, at *14 (S.D.N.Y. Sept. 4, 2012). Courts recognize that, on the one hand, law enforcement officers must be able to apply handcuffs "tight enough to prevent the arrestee's hands from slipping out, " Esmont v. City of New York, 371 F.Supp.2d 202, 214-15 (E.D.N.Y. 2005), but that, on the other hand, "overly tight handcuffing can constitute excessive force." Lynch ex rel. Lynch v. City of Mount Vernon, 567 F.Supp.2d 459, 468 (S.D.N.Y. 2008) (citing, inter alia, Kerman v. City of New York, 261 F.3d 229, 239-40 (2d Cir. 2001)).
In determing whether handcuffing amounts to excessive force, the Court considers (1) whether the handcuffs were too tight; (2) whether the defendant-officers ignored the plaintiffarrestee's complaints about the handcuffs being too tight; and (3) the degree of injury caused by the handcuffing. See Lynch, 567 F.Supp.2d at 468; Esmont, 371 F.Supp.2d at 215. Evidence of injury is important. See Usavage v. Port Authority of New York and New Jersey, 932 F.Supp.2d 575, 592 (S.D.N.Y. 2013) ("The injury requirement is particularly important'.") (quoting Sachs, 2012 WL 3822220, at *14). Courts in this Circuit generally agree that handcuffing does not amount to excessive force "unless it causes some injury beyond temporary discomfort." Lynch, 567 F.Supp.2d at 468 (citing cases).
Here, other than claiming that he was handcuffed too tightly, Plaintiff has failed to offer evidence establishing any of the other excessive force criteria in connection with his handcuffing by the Defendant-Officers. Plaintiff does not allege or prove that he complained to Defendants about the handcuffs being too tight. Nor does he offer evidence of injury beyond self-reports that he was "handcuffed too tightly, " that his hand "felt funny, " and that the "cuffs cut deep into his skin[, ] and his hand was swollen from the handcuffs." (Dkt. 47 (Plaintiff's Memorandum of Law in Opposition to Defendants' Summary Judgment Motion) at 4 (citing Hanniford's Deposition Transcript ("Hanniford Tr.") at 111, 112, 129, 141-142).) Notably, Plaintiff did not seek medical treatment for any injuries to his hands. (Dkt. 47 at 4 ("Other than consulting with the nurse during admissions, [Plaintiff] did not seek further medical treatment while at Rikers Island.") (citing Hanniford Tr. at 142).) See, e.g., Usavage, 932 F.Supp.2d at 592 (noting that "[t]he most ...