United States District Court, E.D. New York
MEMORANDUM & ORDER
NICHOLAS G. GARAUFIS, United States District Judge.
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.
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,  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.
BACKGROUND AND THE REPORT AND RECOMMENDATION
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).)
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
• 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).
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.
• 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
Standard of Review
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.
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).
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. Applying de novo review, the