United States District Court, S.D. New York
OPINION AND ORDER
GABRIEL W. GORENSTEIN, Magistrate Judge.
Plaintiff Michael Watts brought a pro se complaint against the City of New York, Detective Jose Higa, and Detective James Santana, alleging violations of his constitutional rights. Defendants have moved for summary judgment. The parties consented to having this matter decided by a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). For the following reasons, defendants' motion for summary judgment is granted in part and denied in part.
The following summary of the facts is based on Watts's sworn pleadings, see Complaint under the Civil Rights Act, 42 U.S.C. § 1983 (Prisoner Complaint), filed Aug. 8, 2014 (Docket # 2) ("Compl."); Amend [sic] Complaint # 2, filed Feb. 27, 2014 (Docket # 28) ("FAC"); Amended Complaint under the Civil Rights Act, 42 U.S.C. § 1983 (Prisoner Complaint), filed Mar. 13, 2014 (Docket # 33) ("SAC"); the declaration of Shawntay Major, see Declaration of Shawntay Major, filed Feb. 27, 2015 (Docket # 88) ("Major Decl."); and Watts's deposition testimony, see Deposition of Michael Watts, dated Sept. 26, 2014 (annexed in part as Ex. H to Cooper Decl.) ("Watts Dep."). We also cite to evidence submitted by defendants where not contradicted by Watts's evidence.
On January 11, 2013, Judge Anthony Ferrara of the Criminal Court of the City of New York signed a search warrant to search Watts's residence, located at 405 Throop Avenue in Brooklyn. See Search Warrant, dated Jan. 11, 2013 (annexed as Ex. D to Cooper Decl.) ("Search Warrant"). The search warrant arose from an investigation involving a confidential informant, who had bought crack cocaine from Watts on two occasions. See Affidavit in Support of Search Warrant, dated Jan. 11, 2013 (annexed as Ex. E to Cooper Decl.), ¶¶ 5-9.
At approximately 4:00 a.m. on January 17, 2013, officers of the New York City Police Department executed the search warrant. See SAC at 2-3; FAC at 4. Among the officers present were Detectives Higa and Santana. See Search Warrant Plan Pre-Execution (annexed as Ex. F to Cooper Decl.) ("Tactical Plan"). At this time, it was still dark out, the lights were off in Watts's room, and the curtains were drawn. Watts Dep. at 32-34.
Watts's first memory upon waking up the morning of January 17, 2013, was of LaQuita Lewis, an acquaintance who was in the room with Watts, telling him that someone was trying to break into the house. Id. at 31. Watts admits to being "pretty knocked out" at the time, noting that he might have done cocaine the night before. Id. at 25-26. Watts felt "groggy, " like he was still dreaming, and he was "not waking up fast enough." Id. at 34. Watts saw LaQuita Lewis run through the door going towards the living room. Id. at 31. While Watts was still in bed, one of the officers struck Watts in the head three or four times. Id .; SAC at 3. After he was hit, Watts fell back on the bed. Watts Dep. at 38. An officer told Watts to put his hands behind his back. Id . Watts complied, and was then handcuffed. Id . During the execution of the search warrant, and following Watts's arrest, the police recovered several grams of crack cocaine in Watts's room. Id. at 67-68; Arrest Report - K13605169 (annexed as Ex. G to Cooper Decl.), at DEF 1.
While Watts was being arrested, and after he was handcuffed, a police officer, identified by Watts as Higa, "took [Watts's] money and keys out of [his] pants pockets." SAC at 3; Watts Dep. at 38-39. The set of "[t]hree or four keys" included keys to Watts's house and car. Id. at 52. Instead of "invo[icing] vouchering or returning" the items to Watts, Higa gave them to an individual named Tabitha Lewis. SAC at 3; see Watts Dep. at 42. Watts did not give authorization for Tabitha Lewis to receive the keys. FAC at 4. While a set of three keys belonging to Watts was vouchered by the New York City Police Department, see NYPD PETS Property Clerk Invoice No. 3000169511, dated Jan. 17, 2013 (annexed as Ex. L to Cooper Decl.), a detective, described as being approximately 6'3" or 6'4" and weighing between 300 lbs. and 350 lbs., apparently told Watts that he "gave them to [Watts's] wife, " Watts Dep. at 52-53. This led to Watts's household property and car being stolen. FAC at 4. The theft of property from his house occurred before he arrived at the precinct. Watts Dep. at 14, 45; Major Decl. at 1. The only people who would have had keys to Watts's house or car were Watts and Shawntay Major. Watts Dep. at 15, 42-43. Major did not take the property. See Watts Dep. at 42-43; Major Decl. at 1. Major surmises that Watts's house was robbed by Tabitha Lewis and her sons. Major Decl. at 1. Later, an individual identified as "GG" - the girlfriend of one of Tabitha Lewis's sons - was caught with Watts's stolen car. SAC at 3; see also Major Decl. at 2 ("[T]he girl that got caught driving [Watts's] car when it got stolen was Tabitha's son's girlfriend."). The last time Watts saw the set of keys was when they were removed from his pants pocket by a police officer. Watts Dep. at 58.
At approximately 3:06 p.m. on January 17, 2013, Watts was transported from the 79th Precinct to Manhattan Central Booking. See OLPA (annexed as Ex. N to Cooper Decl.), at DEF 5; FAC at 4. At about 12:45 a.m. on January 18, 2013, Watts was transported to New York Downtown Hospital for medical treatment. Medical Treatment of Prisoner Form, dated Jan. 17, 2013 (annexed as Ex. P to Cooper Decl.). Watts was escorted by Police Officer Kenya Bolden of the Fifth Precinct. Id . Watts was admitted to the hospital at approximately 1:10 a.m., where he complained of swelling to the left side of his head and to his left ear. New York Downtown Hospital Documents Report (annexed as Ex. I to Cooper Decl.) ("Hospital Report"), at DEF 134; Watts Dep. at 61. Watts reported that he had had a headache for two hours, with ear pain and dizziness. Hospital Report at DEF 134-35. The medical records show that Watts had "mild ecchymosis on L ear external auricular area" with mild hematoma in his auricular cartilage, as well as "mild tenderness on [his] temporal area without swelling no hematoma no deformity." Id. at DEF 135. Watts reported that "while [he was] getting arrested by police officer, he got hit once on his L side of head/ear." Id. at DEF 134-35. Watts was discharged at 10:40 a.m. on January 19, 2013. Id. at DEF 134. Upon his discharge, Watts was provided with an "Exitcare® Patient Information" instruction form for a "Bruise (Contusion, Hematoma)." New York Downtown Hospital Exitcare® Patient Information (annexed as Ex. A to SAC); New York Downtown Hospital Exitcare® Patient Information Discharge Instruction Summary (annexed as Ex. B to SAC).
On January 19, 2013, Watts underwent a new admission examination at the Manhattan Detention Center Clinic. See NYC Health Correctional Health Services Records, dated Jan. 19, 2013 (annexed as Ex. J to Cooper Decl.), at DEF 270-74. He was observed to have swelling at the earlobe and reported pain. Id. at DEF 270. Watts was seen again on January 31, 2013, at the Brooklyn Detention Center Clinic to follow up on his left ear pain. Id. at DEF 264-65. Watts reported some soreness and redness, but said that the swelling had improved. Id. at DEF 264. At his deposition, Watts testified that the swelling to the left side of his head lasted "[a]bout a week or two. About a week." Watts Dep. at 65. Watts still complains of headaches and memory loss as a result of being hit. Id. at 62-65. He has not sought medical treatment for his injury since his visit to New York Downtown Hospital. Id. at 64-65.
On or about January 23, 2013, Watts pled guilty to N.Y. Penal Law § 220.06(1), criminal possession of a controlled substance in the fifth degree, and was sentenced to nine months imprisonment. See New York City Department of Probation Pre-Sentence Investigation Fact Sheet, dated Feb. 15, 2013 (annexed as Ex. S to Cooper Decl.), at DEF 202-03; Watts Dep. at 67.
B. Procedural History
Watts filed his original complaint against two individuals identified as "John Doe" and one individual identified as "Joe." See Compl. at 1-2. Watts filed an amended complaint on February 27, 2014, and a second amended complaint on March 13, 2014, which named the City of New York and Detectives Higa and Santana as defendants. See FAC at 1-3; SAC at 1-2. Liberally construed, Watts's second amended complaint raises the following claims: (1) excessive force, (2) deliberate indifference resulting in delayed medical treatment, and (3) deprivation of property. See SAC at 3. On December 1, 2014, defendants filed a motion for summary judgment. See Notice of Motion. On January 12, 2015, Watts filed a response in opposition to the motion. See Pl. Mem. Defendants filed a reply letter on January 23, 2015. See Def. Reply. In their reply letter, defendants noted that Watts had referred in his opposition papers to statements made by individuals named Shawntay Major and Dana Mitchell, which defendants had never received. Id. at 2 n.1. In response, Watts filed a letter requesting another opportunity to submit these statements. Letter from Michael Watts, filed Feb. 9, 2015 (Docket # 84), at 1. By Order dated February 17, 2015 (Docket # 86), the Court granted Watts's request. Because it appeared that the statements might be delivered to defendants' counsel rather than to the Clerk's Office, the Court ordered defendants to file any such statements they received on ECF. Id . Defendants' counsel informed a law clerk to the undersigned that he had received only the declaration from Shawntay Major, which has been filed, see Major Decl.
II. LAW GOVERNING SUMMARY JUDGMENT MOTIONS
Rule 56(a) of the Federal Rules of Civil Procedure states that summary judgment is appropriate when "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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed.R.Civ.P. 56(c)). A genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
In determining whether a genuine issue of material fact exists, "[t]he evidence of the non-movant is to be believed, " and the court must draw "all justifiable inferences" in favor of the non-moving party. Id. at 255 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970)). Nevertheless, once the moving party has shown that there is no genuine issue as to any material fact and that it is entitled to a judgment as a matter of law, "the nonmoving party must come forward with specific facts showing that there is a genuine issue for trial, '" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56(e)) (emphasis and additional citation omitted), and "may not rely on conclusory allegations or unsubstantiated speculation, " Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998) (citation omitted). In other words, the nonmovant must offer "concrete evidence from which a reasonable juror could return a verdict in his favor." Anderson, 477 U.S. at 256. Where "the nonmoving party bears the burden of proof at trial, summary judgment is warranted if the nonmovant fails to make a showing sufficient to establish the existence of an element essential to [its] case.'" Nebraska v. Wyoming, 507 U.S. 584, 590 (1993) (quoting Celotex, 477 U.S. at 322) (alteration in original). Thus, "[a] defendant moving for summary judgment must prevail if the plaintiff fails to come forward with enough evidence to create a genuine factual issue to be tried with respect to an element essential to its case." Allen v. Cuomo, 100 F.3d 253, 258 (2d Cir. 1996) (citing Anderson, 477 U.S. at 247-48).
Because Watts is proceeding pro se, we construe his papers "liberally and interpret them to raise the strongest arguments that they suggest." E.g., McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (citation and internal quotation marks omitted). Nonetheless, "our application of this different standard does not relieve plaintiff of his duty to meet the requirements necessary to defeat a motion for summary judgment." Jorgensen v. Epic/Sony Records, 351 F.3d 46, 50 (2d Cir. 2003) (citation and internal quotation marks omitted); accord Bennett v. James, 737 F.Supp.2d 219, 226 (S.D.N.Y. 2010) ("Notwithstanding the deference to which a pro se litigant is entitled, as well as the deference accorded to a non-movant on a summary judgment motion, [the non-movant] must produce specific facts to ...