United States District Court, S.D. New York
MARY M. TARDIF, Plaintiff
CITY OF NEW YORK, NEW YORK CITY POLICE DEPARTMENT, INSPECTOR JOHN O'CONNELL, DEPUTY INSPECTOR EDWARD WINSKI, POLICE OFFICER JAMES MCNAMARA, POLICE OFFICER ALENA AMINOVA, POLICE OFFICER KENDAL CREER, POLICE OFFICER MARSHA RUMBLE, POLICE OFFICER FELIX SCHMIDT, DEPUTY INSPECTOR DANIEL MULLIGAN, SERGEANT THOMAS MCMANUS, AND JOHN DOE NYPD OFFICERS ##1-9, Defendants.
OPINION AND ORDER
M. WOOD United States District Judge
reviewed de novo Magistrate Judge Fox's thorough
and fairly-reasoned Report and Recommendation
("R&R") that the Defendants' Motion for
Summary Judgment be granted in part and denied in part. I
adopt the R&R in part, as indicated below. I analyze each
of Plaintiff s claims in the order in which they were
presented in her Third Amended Complaint.
False Arrest in Violation of the Fourth Amendment against
Inspector O'Connell and Officer Aminova
brings this § 1983 claim in connection with her April
16, 2012 arrest following her participation in an Occupy Wall
Street protest. Defendants argue throughout their moving
papers that the individual defendants are entitled to
qualified immunity for the alleged false arrest, and for each
other claim Plaintiff brings.
immunity shields government officials from liability for
civil damages as a result of their performance of
discretionary functions. Harlow v. Fitzgerald, 457
U.S. 800, 817-18 (1982). Government actors performing
discretionary functions are "shielded from liability for
civil damages insofar as their conduct does not violate
clearly established statutory or constitutional rights of
which a reasonable person would have known."
Id. at 818. Even where the plaintiffs federal rights
and the scope of the official's permissible conduct are
clearly established, the qualified immunity defense protects
a government actor if it was "objectively
reasonable" for him to believe that his actions were
lawful at the time of the challenged act. Anderson v.
Creighton, 483 U.S. 635, 641 (1987). The objective
reasonableness test is met-and the defendant is entitled to
immunity-if "officers of reasonable competence could
disagree" on the legality of the defendant's
actions. Malley v. Briggs, 475 U.S. 335, 341 (1989).
See also Lennon v. Miller, 66 F.3d416, 420(2dCir.
order to establish a § 1983 claim of false arrest,
Plaintiff must prove that her arrest was not otherwise
justified, or not the result of valid probable cause.
Savino v. City of New York, 331 F.3d 63, 75 (2d Cir.
2003). Plaintiff was arrested on April 16, 2012 for
disorderly conduct and making unreasonable noise in violation
of New York State Penal Law § 240.20(2). On the date of
the arrest, the NYPD Quality of Life 3-1-1 call center
received numerous complaints of disturbance, loud screaming,
and other noise from the site of an Occupy Wall Street
protest in which Plaintiff was in attendance. R&R at
21-23. Police officers at the scene proceeded to arrest
Plaintiff after observing her producing unreasonable noise.
Id. Plaintiff contends that Magistrate Judge Fox
relied on inadmissible evidence, namely, the 3-1-1 call logs,
in recommending summary judgment in favor of Defendants on
Plaintiffs false arrest claim. Pi's. Obj. to R&R at
14. The Court finds this issue to be immaterial. The call
logs can be considered not for their truth, but for their
effect on the officers in forming a determination of probable
cause to arrest. See Fed. R. Evid. 801. Irrespective
of whether the 3-1-1 call logs should have been considered,
Magistrate Judge Fox indicates that enough other evidence
existed to constitute probable cause for Plaintiffs arrest.
R&R at 20-25. Probable cause "is a complete defense
to an action for false arrest, whether that action is brought
under state law or under § 1983." Weyant v.
Okst, 101 F.3d 845, 852 (2d Cir. 1996).
Court thus adopts Magistrate Judge Fox's recommendation
that summary judgment be granted in favor of Officers
O'Connell and Aminova on Plaintiffs § 1983 false
Use of Force in Violation of the Fourth Amendment Against
Inspector O'Connell, Officer Rumble, Deputy Inspector
Mulligan, Sergeant Thomas McManus and John Does ##1-5 and
also brings a federal § 1983 claim for excessive use of
force in connection with her March 17, March 21, and April
16, 2012 arrests, all of which followed her participation in
Occupy Wall Street protests. Plaintiff notes in her
memorandum of law in opposition to Defendants' motion for
summary judgment that she will no longer pursue use of
force-based claims against Officer Rumble, Deputy Inspector
Mulligan, or Inspector O'Connell. Pi's. Opp'n. at
5. The Court thus dismisses Plaintiffs excessive force claim
against Officer Rumble, Deputy Inspector Mulligan and
Defendants note throughout their moving papers,
"personal involvement of defendants in alleged
constitutional deprivations is a prerequisite to an award of
damages under § 1983." McKinnon v.
Patterson, 568 F.2d 930, 934 (2d Cir. 1977). Plaintiff
continues to allege that John Does ##1-5 and 8-9 were
directly involved in her arrest and the use of excessive
force against her.
after extensive fact discovery and the filing of three
amended complaints, Plaintiff is still unable to identify the
John Doe officers. Where a plaintiff has had ample time to
identify a Doe defendant and still has not done so, a
plaintiff cannot continue to maintain a suit against the John
Doe defendant(s). Cowardv. Town & Vill. of
Harrison, 665 F.Supp.2d 281, 301 (S.D.N.Y. 2009) (Karas,
J.). See also Watkins v. Doe, 2006 WL 648022, at *3
(S.D.N.Y. Mar. 14, 2006) (Castel, J.) (dismissing without
prejudice claims against "Doe" defendants where
"despite having the full opportunity to conduct
discovery, plaintiff has not yet identified and served
[those] defendants"). The Court thus dismisses
Plaintiffs excessive force claims against John Doe defendants
only remaining defendant against whom Plaintiff brings a
§ 1983 excessive force claim is Officer McManus. The
Court does find a genuine dispute of material fact as to
whether Officer McManus's use of force against Plaintiff
in effectuating her March 21, 2012 arrest was so unreasonable
as to abrogate his entitlement to qualified immunity.
According to the factual record, Defendant McManus pushed
Plaintiff off of her crutches and onto the ground. 56.1
¶ 540, Ex. 23, Ex. 33 ¶ 261, 264-8. Because a
reasonable jury could find that Defendant McManus's use
of force on the Plaintiff was "objectively unreasonable
in light of the facts and circumstances confronting [him],
" Caravahlo v. City of New York, 2016 WL
1274575 at *9 (quoting Graham v. Connor, 490 U.S.
386, 397 (1989) (Castel, J.)), the Court declines to
dismisses Plaintiffs excessive force claim against Sergeant
McManus. It thus declines to fully adopt Magistrate Judge
Fox's recommendation that summary judgment on Plaintiffs
claim of excessive force be granted in favor of all
Deliberate Indifference to a Medical Condition in Violation
of the Fourteenth Amendment Against Officer Rumble and
claim of deliberate indifference to her medical condition
stems from an alleged repeated failure of Defendants to
respond to and treat Plaintiffs epilepsy while in police
custody. The Court finds a genuine dispute of material fact
as to whether Defendants' conduct was reasonable during
Plaintiffs March 17-18, 2012 and April 16, 2012 terms of
custody. Officers failed to respond to repeated requests by
Plaintiff for her seizure medication, which her doctor had
directed her to take at specific times. After ...