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McNeill v. Jordan

United States District Court, E.D. New York

July 11, 2017



          NICHOLAS G. GARAUFIS, United States District Judge.

         Plaintiff Fitzroy McNeill, proceeding pro se, filed this action on May 5, 2014, against New York Police Department ("NYPD") Detectives Jonathan Jordan, John Edgar, and Anthony Chow, NYPD Sergeant William Sommer, Dr. Anthony Gomez, and Registered Nurse Molly Mitchell. (See Compl. (Dkt. 1); Am. Compl. (Dkt. 8).) The action stems from Plaintiffs May 2011 arrest and subsequent hospitalization at Woodhull Medical and Mental Health Center ("Woodhull"). Plaintiff brings claims under 42 U.S.C. § 1983 and state law.

         Defendants filed a fully briefed motion for summary judgment (the "Motion") on May 23, 2016. (Mot. for Summ. J. (Dkt. 93).) On November 15, 2016, the court referred the Motion to Magistrate Judge Steven L. Tiscione for a report and recommendation ("R&R") pursuant to 28 U.S.C. § 636(b)(1)(B) and Federal Rule of Civil Procedure 72(b)(1). (Order Referring Mot. (Dkt. 101).) On February 17, 2017, Judge Tiscione issued an R&R recommending that the Motion be granted in part and denied in part. (R&R (Dkt. 102).) By letter dated April 4, 2017, [1] Plaintiff objected to certain of Judge Tiscione's recommendations, and Defendants filed a memorandum in support of the R&R shortly thereafter. (See Pl. Obj. to R&R ("Obj.") (Dkt. 106); Defs. Resp. to Obj. ("R&R Resp.") (Dkt. 107).) For the reasons stated below, the court ADOPTS IN PART the R&R. Accordingly, Defendant's Motion is GRANTED IN PART AND DENIED IN PART.


         The court assumes familiarity with the facts of the case, and adopts the summary of the relevant factual allegations and record evidence included in the R&R. (See R&R at 2-8.) Stated briefly, several of the defendant police officers arrested Plaintiff in his apartment building for marijuana possession and, after he was injured during his arrest, transported Plaintiff to Woodhull for treatment. Plaintiff and Defendants dispute all but the most basic facts at issue of this encounter, including but not limited to: (1) whether Plaintiff had marijuana in his possession at the time of his arrest; (2) whether Plaintiff was in his apartment or a common area of the apartment building when he was arrested; (3) the specifics of Plaintiff s medical care while at the hospital and thereafter; and (4) which Defendants were involved in Plaintiffs arrest and transport to the hospital. (Compare Defs. Mem. in Supp. of Summ. J. (Dkt. 97) with Pl.Opp'n to Summ. J. (Dkt. 98).)

         Judge Tiscione recommended that the court grant summary judgment on the following claims:

• The unlawful entry, unlawful search and seizure, false arrest, excessive force, and deliberate indifference to medical needs claims against Jordan, on the basis that Plaintiff failed to show that Jordan was personally involved with the events at Plaintiffs residence or Woodhull (R&R at 13-14);
• The use of excessive force claims against Sommer and Edgar, based on Plaintiffs failure to allege any intentional action by those defendants (id at 27-29);
• The malicious prosecution claims against Jordan and Edgar, on the basis that they did not "initiate" Plaintiffs prosecution (id. at 32-35);
• The deliberate indifference to medical needs claims against Chow, Mitchell, and Gomez, based on Plaintiffs failure to allege either that he suffered an objectively serious medical condition or that any of those Defendants were aware of and disregarded that condition (id. at 37-41);
• The conspiracy claim against all Defendants, based on Plaintiffs failure to allege an agreement between any of the Defendants (id. at 41-42); and
• The state-law claims against Jordan, Chow, Gomez, and Mitchell, based on Plaintiffs failure to file his claims within the mandatory commencement period of 1 year and 90 days applicable to New York City employees (id. at 44).

         Judge Tiscione further recommended that the court deny summary judgment on the following claims:

• The unlawful entry claims against Sommer and Edgar, based on Plaintiffs testimony that those officers entered his apartment and the absence of record evidence demonstrating "exigent circumstances" justifying their entry (id. at 17-22);
• The claims of unlawful search and seizure against Sommer and of false arrest against both Sommer and Edgar, based on Plaintiffs deposition testimony that he did not possess or state that he possessed marijuana (id. at 22-26);
• The excessive force claim against Chow, based on Plaintiffs testimony that he was left in handcuffs for five hours, resulting in bruising and swelling that lasted several days (id. at 30-32); and

• Deny summary judgment on the malicious prosecution claim against Sommer on the basis of Plaintiff s testimony regarding the circumstances of his search and arrest and Sommer's role in initiating Plaintiffs prosecution (id at 32-37).


         A. Standard of Review

         A district court reviewing an R&R "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). The court must make "a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." Id. To obtain de novo review, a party "must point out the specific portions of the report and recommendation to which [that party] object[s]." Forsythe v. U.S. Nal'l Labor Relations Bd.. No. 14-CV-3127 (NGG) (LB), 2016 WL 1215319, at *1 (E.D.N.Y. Mar. 23, 2016) f quoting U.S. Flour Corp. v. Certified Bakery. Inc.. No. 10-CV-2522 (JS), 2012 WL 728227, at *2 (E.D.N.Y. Mar. 6, 2012); see also Fed. R. Civ. P. 72(b)(2) ("[A] party may serve and file specific written objections to the [R&R]."). If a party "makes only conclusory or general objections, or simply reiterates his original arguments, the Court reviews the Report and Recommendation only for clear error." Pall Corp. v. Entegris. Inc., 249 F.R.D. 48, 51 (E.D.N.Y. 2008); see also, e.g.. Petrovic v. Comm'r of Soc Sec., No. 15-CV-2194 (KMK) (PED), 2016 WL 6082038, at *1 (S.D.N.Y. Oct. 14, 2016). Portions of an R&R to which a party makes no objection are also reviewed for clear error. See U.S. Flour. 2012 WL 728227, at *2.

         Where a prose party objects to an R&R, "the court reads his objections 'liberally and will interpret them to raise the strongest arguments that they suggest."' Velasquez v. Metro Fuel Oil Corp., 12 F.Supp.3d 387, 397 (E.D.N.Y. 2014) (quoting Burgos v. Hopkins. 14 F.3d 787, 790 (2d Cir. 1994)). However, a court "need not argue a pro se litigant's case nor create a case for the pro se [litigant! which does not exist." Molina v. State of N. Y.. 956 F.Supp. 257, 259 (E.D.N.Y. 1995).

         B. Plaintiffs Objections

         The court finds that Plaintiff has put forward objections to several of the R&R's specific recommendations and therefore performs a de novo review of these sections.[2] Applying de novo review, the court ...

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