United States District Court, E.D. New York
MEMORANDUM AND ORDER
L. TOWNES United States District Judge.
Moises Vargas, Jr. ("Plaintiff) brings this action
against defendant City of New York ("Defendant" or
"City"), principally alleging false arrest in
connection with an altercation that occurred on May 17, 2012,
and deliberate indifference to serious medical needs arising
from that altercation. Defendant now moves for summary
judgment, arguing that Plaintiff cannot establish a basis for
municipal liability and lacks the evidence to make out false
arrest, deliberate indifference, and other claims against any
individual defendants. For the reasons stated below,
Defendant's motion is granted.
as otherwise indicated, the following facts are either
undisputed or drawn from a transcript of Plaintiff s July 23,
2014, deposition ("Plaintiff s Deposition"), which
is attached to the Declaration of Omar J. Siddiqi in Support
of Defendant's Motion for Summary Judgment (the
"Siddiqi Declaration") as Exhibit A. Plaintiff was
born in Puerto Rico in 1964 and attended high school in the
Bronx. (Plaintiffs Deposition, pp. 8-9). He completed
eleventh grade, but dropped out of school after the first of
his two daughters was born. (Id., pp. 8-11). Over
the next 25 years or so, he worked in various capacities: as
a handyman, in a YMCA, as a steel mechanic, and in the film
industry. (Id., p. 9).
2007, Plaintiff was working as a supervisor on a contruction
project, overseeing twenty workers involved in building a
Walgreeens pharmacy on Staten Island. (Id., pp. 22,
60). One day, while leaving a deli where he had just had
lunch, he was struck by a car and thrown 20 to 25 feet.
(Id.). According to Plaintiff, MRIs taken after this
accident revealed eight herniated discs: four in his upper
spine and four in his lower back. (Id., pp. 21, 23).
worked intermittently for a few more months before he stopped
working altogether in the Winter of 2007. (Id., pp.
60-61). Plaintiff was unemployed thereafter, with the
exception of a four-to-six month period in 2010 or 2011
during which he was employed by a film production company to
supervise workers. (Id., pp. 59, 61-62). Plaintiff
was on public assistance at the time of his July 2014
deposition and testified that he had been on public
assistance for the preceding five or six years.
(Id., p. 10).
May 17, 2012, Incident
was not working on May 17, 2012, when he received a call from
Maria Lindo, a friend who lived at 212 Heberton Avenue in
Staten Island. (Id., pp. 31, 50). She asked that
Plaintiff come to her house because she wanted to ensure that
work on her flooring was being done properly. (Id.).
Plaintiff agreed to do so and drove to her house, arriving
sometime late in the morning. (Id., pp. 32-33;
Defendant's Local Rule 56.1 Statement of Undisputed Facts
("Defendant's 56.1 Statement"), ¶ 1;
Response to Rule 56.1 Statement ("Plaintiffs 56.1
Statement"), ¶ 1).
cane, Plaintiff walked from his van to the steps of
Lindo's house, where he proceeded to sit down.
(Plaintiffs Deposition, pp. 30, 32). Lindo invited him
inside, but Plaintiff declined, saying that he did not
"feel like going up." (Id., p. 32). Lindo
then left to take her dog for a walk, telling Plaintiff that
the handyman was expected to arrive momentarily.
(Id.). She did not tell Plaintiff who the handyman
was, but expressed the expectation that Plaintiff would know
him because he had "seen him around."
fifteen minutes after Plaintiff arrived at Lindo's house,
another man drove up in a small car. (Id., pp.
37-38, 50; Defendant's 56.1 Statement, ¶ 2;
Plaintiffs 56.1 Statement, ¶ 2). The man was white,
about 50 years old and, according to Plaintiff, "looked
like an addict but a clean addict." (Plaintiffs
Deposition, p. 34). Plaintiff claims that he knew the
man-later identified as Frank Papapietro-was not the
handyman, (id., p. 33), although it is unclear
precisely why. Plaintiff initially testified that he knew the
man was not the handyman because he had "never seen him
before." (Id., p. 33). Plaintiff later
testified to the contrary, stating that he "had seen him
around the neighborhood" in "back corners where
people cop drugs, " and had seen him steal power tools
and other things from people's garages. (Id.,
pp. 37, 41-42, 51).
confronted Papapietro, asking either what he was doing there
or what he wanted. (Id., pp. 33, 38, 50). It is
unclear whether Papapietro answered. Plaintiff initially
testified that Papapietro said he was "just looking
around, " prompting Plaintiff to ask "for
what?" (Id., p. 33). Later, Plaintiff testified
that the man did not answer at all. (Id., pp.
Plaintiffs testimony was inconsistent with regards to whether
Papapietro responded verbally, he testified unequivocally
that Papapietro responded physically seconds after Plaintiff
first confronted him. According to Plaintiff, the man
surprised him with a punch to the right temple, causing him
to drop his cane. (Id., pp. 33, 42-43). The man then
attempted to strike Plaintiff with a pipe, which he had
concealed behind his back. (Id., pp. 38-39, 43).
Plaintiff not only frustrated that attempt, but managed to
knock the man down and to wrest control of the pipe from him
in the process. (Id., pp. 34, 39, 43). Plaintiff
claims that he did not swing the pipe at his assailant, but
threw it as far away as he could. (Id., pp. 39-40).
Indeed, Plaintiff claims that he could not recall
intentionally striking the assailant at any time, though he
may have hit him with his head or elbow in the course of the
struggle. (Id., pp. 39-40, 43).
then fell and the two men rolled on the ground.
(Id., p. 43). Papapietro eventually regained his
feet, but Plaintiff had a problem standing up.
(Id.). Papapiero then tackled Plaintiff, sending him
flying three to five feet backwards. (Id., pp. 43,
58-59). Plaintiff landed flat on his back on a concrete
driveway and "was immobilized, " with "no
strength at all." (Id., pp. 40, 52). Although
his adversary "could have done anything" to him at
that point, onlookers immediately broke up the fight.
(Id., p. 40).
then crawled to his cell phone and called 911. (Id.,
pp. 40, 52-53). The police responded "very fast, "
arriving less than two minutes after the fight started.
(Id., p. 44). Soon, there were 20 officers on the
scene-all, or mostly, young and mostly white. (Id.).
Nonetheless, Plaintiff remained on the phone until an
unmarked, black car arrived, four to five minutes later.
(Id., pp. 45, 55). At his deposition, Plaintiff
claimed that he could not recall what he said during that
call because he was in pain, agitated, and "emotionally
distraught." (Id., p. 53). However, he
testified that he did not tell the 911 operator that he
needed medical assistance "because ... the black car
came and I hung up." (Id., p. 55).
claims that he asked officers at the scene for medical
treatment. According to Plaintiff, he asked for medical
treatment immediately when the officers arrived and
approached him. (Id., p. 54). Plaintiff could not
recall exactly what he said, but claims that he indicated
that he had "a bad back" or "a condition,
" was in pain, and needed to go to the hospital or to
see a doctor. (Id., p. 55). He may have also asked
them to call an ambulance, but he received no assistance.
(Id., p. 55).
the uniformed officers handcuffed Papapietro. (Id.,
p. 34). Thereafter, two plainclothes officers who arrived in
the black car spoke to Papapietro. (Id., pp. 46-47).
Plaintiff could not describe these officers, except to say
that they were in their mid- to late-40s and were
"white, real white." (Id., p. 45).
does not know exactly what Papapietro told the plainclothes
officers. (Plaintiffs 56.1 Statement, ¶ 8). Following
this conversation, however, the police took the handcuffs off
Papapietro and handcuffed Plaintiff instead. (Plaintiffs
Deposition, pp. 34, 46-47). The police did not say anything
to Plaintiff, other than to inform him that he was under
arrest. (Id., pp. 47-48). Plaintiff claims that he
did not struggle while being handcuffed and that none of the
officers punched, hit, or kicked him. (Id.;
Defendant's 56.1 Statement, ¶ 12; Plaintiffs 56.1
Statement, ¶ 12). Yet, according to Plaintiff, the
police placed him in a police car by picking him up off the
ground and tossing him face-first into the back seat.
(Id., pp. 48-49, 54).
officers then drove Plaintiff to the 120th
Precinct. (Id., p. 49; Defendant's 56.1
Statement, ¶ 11; Plaintiffs 56.1 Statement, ¶ 11).
There, the arresting officer, Craig Spataro, created an
arrest report which charged Plaintiff with assault with
intent to cause physical injury with a weapon, criminal
possession of a weapon in the fourth degree, and menacing in
the third degree. (Plaintiffs Deposition, pp. 45-46;
Defendant's 56.1 Statement, ¶ 10; Plaintiffs 56.1
Statement, ¶ 10). Papapietro was also brought to the
precinct but was not arrested. (Plaintiffs Deposition, pp.
49). Although Plaintiff complained that he was in
"extreme pain" and specifically told the desk
sergeant that he had eight herniated discs, Plaintiff was not
given medical treatment but was told to "shut up."
(Id., pp. 34, 55-56). In contrast, the police called
an ambulance to tend to Papapietro. (Id., pp. 34,
the parties agree that Plaintiff was eventually taken to the
hospital, the parties disagree as to when that occurred.
Defendant has adduced evidence that Plaintiff was transported
to Richmond University Medical Center sometime on May 18,
2012-the day after he was arrested-and was treated there for
a muscle spasm in his back. (See Defendant's
56.1 Statement, ¶ 14). Plaintiff, however, claims that
he was taken to the hospital 40 to 60 hours after he was
arrested, and not on May 18. (Plaintiffs Deposition, p. 19;
Plaintiffs 56.1 Statement, ¶ 14). Indeed, Plaintiff
testified that he was taken to the hospital only after a
non-white court officer noticed that he was limping with
tears in his eyes and said that Plaintiff could not "go
to see the judge like that." (Plaintiffs Deposition, p.
route to the hospital, Plaintiff had a conversation about the
delay in medical treatment with the "white cop" who
escorted him. (Id.). According to Plaintiff, the
I'm the only cop that takes people to see the doctor and
I wasn't in yesterday. If somebody is really hurting they
got nobody to take them to the doctor. That's the way it
is, budgets, talk to the mayor or something, wiseguy.
accounts, Plaintiff did not receive extensive treatment.
Plaintiff testified that he received only "a pill,
" (id.), but did not provide any other details.
According to Defendant, medical records establish that
Plaintiff was given both Flexeril (a muscle relaxant) and an
injection of Toradol I.M. (a nonsteroid anti-inflammatory
drug). (See Defendant's 56.1 Statement,
to Plaintiff, he first appeared before a judge a day or two
after he visited the hospital. (Plaintiffs Deposition, p.
36). The judge appeared to be willing to release Plaintiff on
recognizance until the prosecutor discovered that Plaintiff
had an outstanding warrant, which had been issued in the
Bronx in 1984. (Id.). Plaintiff was then taken to
the Bronx, where bail was originally set at $1, 000 but then
increased to $5, 000 after the prosecutor represented that a
machete had been found at 212 Heberton Avenue.
(Id.). Plaintiff admits that he knew there was a
machete on the property, but claims that he "didn't
know exactly" where the machete was located.
(Id., p. 41). Plaintiff also testified, however,
that he was charged with "a felony because the machete
was involved." (Id., p. 63).
spent nine days in jail on Rikers Island before his relatives
could raise the $5, 000 bail. (Id., pp. 36, 58,
67-68). He then spent the next year and one-half fighting the
charges that were pending against him, appearing in court
approximately once every two months. (Id., p. 64).
On September 5, 2013, after Plaintiff had made "a little
more" than ten appearances, the Criminal Court of the
City of New York, Richmond County, dismissed all ...