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Tardif v. City of New York

United States District Court, S.D. New York

March 22, 2017

MARY M. TARDIF, Plaintiff
v.
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

          KIMBA M. WOOD United States District Judge

         I have 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.

         1. False Arrest in Violation of the Fourth Amendment against Inspector O'Connell and Officer Aminova

         Plaintiff 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.

         Qualified 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. 1995).

         In 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).

         The 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 arrest claim.

         2. 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 8-9.

         Plaintiff 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 Inspector O'Connell.

         As 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.

         However, 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 ##1-9.

         The 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 defendants.

         3. Deliberate Indifference to a Medical Condition in Violation of the Fourteenth Amendment Against Officer Rumble and Officer Schmidt

         Plaintiffs 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 ...


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