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Hernandez v. City of New York

United States District Court, S.D. New York

March 24, 2017



          LAURA TAYLOR SWAIN United States District Judge

         Pro se Plaintiff Angel Hernandez (“Hernandez” or “Plaintiff”), currently incarcerated at the Coxsackie Correctional Facility, brings this action against the City of New York (the “City”), the New York City Police Department (the “NYPD”), Sergeant Charles Rodriguez (“Rodriguez”), Police Officer Randy Torres (“Torres”), Police Officer Vincent Pomponio (“Pomponio”) and Detective Susan Barbato (“Barbato”) alleging, inter alia, that he was subject to excessive force, labeled as a sex offender when he was taken into custody and before he was indicted for any such crime, and had false statements attributed to him. Defendants have moved for partial summary judgment, construing Plaintiff's complaint as asserting claims of false arrest, malicious prosecution and excessive use of force pursuant to 42 U.S.C. § 1983 (“Section 1983”). Defendants Torres and Barbato seek summary judgment dismissing Plaintiff's claims of false arrest and malicious prosecution. The NYPD seeks dismissal of the claims against it because it is not a suable entity, and the City seeks dismissal of Plaintiff's claims against it as insufficient to support municipal liability for the alleged police misconduct. Defendants further argue that the claims against Defendants Pomponio and Rodriguez should be dismissed for lack of proper service of process. The Court has jurisdiction of this action pursuant to 28 U.S.C. § 1331.

         The Court has reviewed the parties' submissions carefully and, for the reasons set forth below, all of Plaintiff's claims other than the excessive force claim are dismissed as against all Defendants, all claims are dismissed as against the NYPD and the City, all claims against Defendant Barbato are dismissed, and the motion to dismiss claims against Defendants Pomponio and Rodriguez for lack of service is denied as moot.


         The following facts are material to this motion practice and are undisputed unless otherwise indicated. On February 26, 2013, Hernandez, while in police custody, was involved in a physical altercation with Pomponio, Torres and Rodriguez. (See Defs. 56.1 St. ¶ 2; Am. Compl. at 4.) Following the altercation, Hernandez was arrested and charged with Rape in the First Degree, Sexual Abuse, Assault in the Second Degree, and Strangulation. (See Defs. 56.1 St. ¶ 3.) On December 5, 2013, Hernandez pleaded guilty to Attempted Rape in the First Degree, Assault in the Second Degree, and Aggravated Sexual Abuse in the Second Degree, in New York County Supreme Court. (See id. ¶ 4; Certificate of Disposition (docket entry no 84-3).) He was sentenced principally to 14 years of imprisonment. (Certificate of Disposition.)

         On December 27, 2013, Hernandez filed the instant suit, principally claiming police brutality in connection with the physical altercation on February 26, 2013, and naming Torres, Barbato, Pomponio and Rodriguez as Defendants. On October 24, 2014, Plaintiff filed an Amended Complaint, adding the NYPD and the City as Defendants. (See Am. Compl., Docket Entry No. 36, at ECF p. 1.) Hernandez alleges that Pomponio, Torres and Rodriguez punched and kicked him, that Barbato “lied on her report that I said things I know I didn't say about my case” and that the precinct “had me on computer as sex offender without me being indicted yet.” (See id. at ECF p. 4.) In the Amended Complaint, Hernandez seeks $160, 000 in damages for “pain and suffering” as a result of “beating the cops gave me” and “for putting me on the sex offender status in the system without even being indicted yet my life was in danger.” (Id.)

         On January 19, 2016, Defendants filed a motion for partial summary judgment. Plaintiff has filed several papers in opposition. On February 28, 2016, Plaintiff filed affirmations and a letter in opposition to the summary judgment motion, in which he alleges that the arresting officers beat him while he was handcuffed but states, among other things, that “I never stated that I was falsely arrested. I never stated that it wasn't me that committed the crime. I plead guilty to the crime . . . My issue is that one of the officers took statements from me while I was on O.D. of PCP when I committed the crime without a lawyer even present.” (See Docket Entry No. 94, at ECF pp. 3, 4.) Plaintiff further states that “I don't ever remember talking to Officer Barbato and those statement were used against me . . . if she got a statement from me it was done illegally and I find that to be a malicious act on her part. She knew I had no lawyer present.” (Id. at ECF p. 4.) He asserts that the statements were “used against me in my case and probably got me a lot more time than I should [have] received.” (Id.) On March 9, 2016, Plaintiff filed a second set of opposition papers, in which he principally complains that certain discovery has not been provided to him and asserts that the allegedly false statement made by Barbato “pro[bably] got me an extra . . . 5 years when judge read it.” (See Docket Entry No. 104, at ECF p. 5.) On April 29, 2016, Plaintiff filed another set of opposition papers, in which he principally reiterates his contentions that Barbato wrote a statement containing things he did not say, that he did not have a lawyer present when he allegedly made those statements, and that he “was on overdose of PCP of Angel Dust and these people took advantage of the situation.” (See Docket Entry No. 113, at ECF p. 8.) In a further October 12, 2016, filing, he argued that the case should not be dismissed for lack of proper service. (See Docket Entry No. 122.)

         Barbato and Torres were served on April 15 and April 17, 2014, respectively; service was attempted unsuccessfully on Pomponio, and Rodriguez was not served prior to the initiation of this motion practice. (See Docket Entry Nos. 13-14, 16.) Both Pomponio and Rodriguez were properly served on June 1, 2016, following a court ordered extension. (See Docket Entry No. 106.)


         Summary judgment is appropriate when, construing the evidence in the light most favorable to the non-moving party, 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(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A fact is considered material if “it might affect the outcome of the suit under the governing law, ” and a dispute of fact is genuine where “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Rojas v. Roman Catholic Diocese of Rochester, 660 F.3d 98, 104 (2d Cir. 2011) (internal quotation marks and citation omitted). The opposing party bears the burden of establishing a genuine issue of fact by “citing to particular parts of materials in the record.” Fed.R.Civ.P. 56(c)(1); see also Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009). In determining whether there are genuine issues of material fact, the Court is “required to resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought.” Johnson v. Killian, 680 F.3d 234, 236 (2d Cir. 2012) (internal quotation marks and citation omitted).

         The submissions of a pro se plaintiff are to be read liberally and interpreted to raise the strongest arguments they suggest. Brownell v. Krom, 446 F.3d 305, 310 (2d Cir. 2006) (citation omitted). At the same time, the Court cannot read into pro se submissions claims that are not “consistent” with a pro se litigant's allegations and pro se status does not exempt a party from compliance with relevant rules of procedural and substantive law. See Triestman v. Federal Bureau of Prisons, 470 F.3d 471, 477 (2d Cir. 2006) (internal quotation marks and citation omitted). Here, Plaintiff has not responded directly to any of Defendant's legal arguments, but has submitted three sets of opposition papers in which he proffers additional facts and generally argues that Defendants' conduct was wrongful.

         Claims Against Torres and Barbato

         Torres and Barbato move for partial summary judgment with respect to Plaintiff's claims for false arrest and malicious prosecution on the basis that his convictions establish probable cause for the arrest and prosecution, and that his Section 1983 claims are precluded by those convictions, which have not been overturned. Because the only allegations regarding conduct by Barbato relate to statements, rather than the excessive force incident, Defendants seek the dismissal of all claims against her. (Def. Mem., Docket Entry No. 84, at ECF p. 12.) They do not seek dismissal of Plaintiff's excessive force claim against Defendant Torres, who is alleged to have participated in beating and kicking Plaintiff.

         Probable cause to arrest is a complete defense to an action for false arrest under Section 1983. Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1994) (internal quotation marks and citation omitted). In general, probable cause exists when officers “have knowledge or reasonably trustworthy information of facts and circumstances that are sufficient to warrant a person of reasonable caution in the belief that the person to be arrested has committed or is committing a crime.” Weyant, 101 F.3d at 852 (internal quotation marks and citation omitted). The Second Circuit has adopted the common-law rule, applicable to actions asserting false arrest or malicious prosecution, that the plaintiff “can under no circumstances recover if he was convicted of the offense for which he was arrested.” Cameron v. Fogarty, 806 F.2d 380, 387 (2d Cir. 1986) (internal quotation marks omitted). In other words, “[w]here a plaintiff has been convicted of the offense for which he was arrested, we have in effect accepted the fact of that conviction as conclusive evidence of the good ...

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