Evans v. Solomon

Decision Date19 January 2010
Docket NumberNo. 06-CV-3284 (SLT)(LB).,06-CV-3284 (SLT)(LB).
Citation681 F. Supp.2d 233
PartiesJamal EVANS, Plaintiff, v. Clyde SOLOMON and United States of America, Defendants.
CourtU.S. District Court — Eastern District of New York

Jamal Evans, Plainfield, NJ, pro se.

Catherine Mary Mirabile, United States Attorneys Office, Brooklyn, NY, for Defendants.


TOWNES, District Judge:

Pro se plaintiff, Jamal R. Evans, ("Plaintiff") brings this action under Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) ("Bivens") and the Federal Torts Claims Act, 28 U.S.C. §§ 1346, 2671 et seq. ("FTCA"). Plaintiff asserts claims for false arrest, unreasonable search and seizure, and excessive force against Clyde Solomon, a police officer with the United States Park Police, and the United States (collectively "Defendants"). In Plaintiffs motion papers, he further maintains claims for malicious prosecution and malicious abuse of process. Defendants now move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure on all claims. For the following reasons, Defendants' motion is granted in part and denied in part.


On July 23, 2003, Plaintiff, a loss prevention manager at a major department store, was driving to work from his home in Brooklyn, New York. Defs. Rule 56.1 Stmt. ¶ 5. At approximately 3:00 p.m. on that day, while going eastbound on Avenue N in Brooklyn, Plaintiff observed a white car traveling in close proximity to his vehicle. The white vehicle continued to closely follow Plaintiffs car even after he had to cut diagonally across Kings Highway on Avenue N. Ex. L, Evans Dep. 87:12-18. Plaintiff felt threatened by the tailgating car because he feared the driver could be someone he had had arrested as part of his job as a loss prevention manager. Id. at 88:11-20. Unbeknownst to Plaintiff, the white vehicle was an official U.S. Park Police vehicle driven by U.S. Park Police Sgt. Clyde Solomon. At the time, Sgt. Solomon was assigned to the U.S. Park Police New York Field Office, which encompasses Brooklyn, Queens, Staten Island, Manhattan, and New Jersey. Defs. Rule 56.1 Stmt. ¶ 7. On July 23, 2003, Sgt. Solomon was on-duty, assigned to Brooklyn, and on patrol by himself, near Avenue N and Nostrand Avenue. Id. at ¶ 10.

As the two vehicles approached the intersection of Avenue N and East 35th Street, Plaintiff made a decision to "lose" the white car. Ex. E, Evans Dep. 105:1-5. Plaintiff "decided to make an aggressive move to get away from this white car." Ex. B., Evans Dep. 5:1-2. Both vehicles were in the left lane of Avenue N when Plaintiff shifted to the right lane on Avenue N as he was approaching the traffic light at Avenue N and East 35th Street. In crossing lanes, Plaintiff believes that the front of his car may have crossed a solid double line. Ex. E, Evans Dep. 106:10-12. Plaintiff then drove slowly toward the traffic light, intending to give the driver of the white vehicle the impression that he was stopping at the light. Id. at 106:XX-XX-XXX:1-4. At the intersection when the light was yellow, Plaintiffs foot was on the brake but his vehicle did not stop. Pl. Rule 56.1 Stmt. ¶ 42. Plaintiff made a right turn onto East 35th Street, at approximately 10-15 miles per hour without using his blinker. Defs. Rule 56.1 Stmt. ¶ 43; Ex. E, Evans Dep. 108:17-20.

When Plaintiff made the right onto East 35th Street, it was his intention for the white vehicle to be governed by the red light and to not be able to proceed through the intersection. Ex. E., Evans Dep. 120:9-14. Plaintiff stated that he made his right turn as the "light went from yellow to red." Id. at 97:19-20; see also Ex. B, Evans Dep. 5:3-4 ("As the yellow light went off, I took off through the light."). Later, when asked if he knew the color of the traffic light as he made his right turn, Plaintiff testified, "No, I couldn't see the light. Let me correct that. When I turned, the light had just shut off from being yellow. So it was—no, I can't even say I saw it shut off. I saw it yellow and then I turned." Ex. E, Evans Dep. 109:14-19. At the very least, Plaintiff admitted, "I have no doubt in my mind that Sergeant Solomon looked up and saw a red light because that's what it was designed to do, to get him off my rear of the bumper." Ex. B, Evans Dep. 5:4-7.

After Plaintiffs turn onto East 35th Street, he made a left on Flatlands Avenue and then made a right onto East 36th Street. Defs. Rule 56.1 Stmt. ¶ 48. Sgt. Solomon followed Plaintiffs car, pulled him over on East 36th Street between Flatlands Avenue and Avenue P, exited his vehicle and walked over to Plaintiffs passenger side. Id. at ¶ 58. At this point, Plaintiff observed the "Park Police" insignia on the white vehicle and Sgt. Solomon's police uniform. Id. at ¶ 62. Sgt. Solomon advised Plaintiff that he had gone through a red light and Plaintiff denied running the light. Id. at ¶¶ 64-65. Sgt. Solomon asked for Plaintiffs license and registration, but Plaintiff did not comply with the request. Id. at ¶ 69-70. Instead, Plaintiff questioned Sgt. Solomon as to whether he had the authority to stop Plaintiff and issue him a traffic violation. Id. at ¶ 71. Sgt. Solomon then attempted to explain his authority to Plaintiff and identified himself as a federal law enforcement officer. Id. at ¶ 72. Sgt. Solomon then asked Plaintiff to get out of his vehicle. Id. at ¶ 73. When Sgt. Solomon asked Plaintiff exit his vehicle, Plaintiff verbally inquired as to why Sgt. Solomon was asking him to get out of his car. PI. Rule 56.1 Stmt. ¶ 74. Plaintiff called 911 and requested the New York Police Department ("NYPD") to arrive on scene. Ex. M, Evans Letter to Bean 2 (July 23, 2003).

Sgt. Solomon went back to his vehicle and pulled in front of Plaintiff's vehicle at an angle to prevent Plaintiff from leaving the scene. Defs. Rule 56.1 Stmt. ¶ 76. At this point, Sgt. Solomon again requested Plaintiffs license and registration, stating "Are you going to give me your license and registration?" Id. at ¶ 79. Plaintiff responded that he would give Sgt. Solomon his license upon the NYPD's arrival. Ex. M, Evans Letter 2. He wanted the NYPD to determine whether or not he had to give Sgt. Solomon his license and registration. Defs. Rule 56.1 Stmt. ¶ 82.

At that point, Sgt. Solomon communicated through his U.S. Park Police radio system that he had someone resisting and needed additional units. Id. at ¶ 89. Officer Damiano Parlanti, a K9 officer with the U.S. Park Police, responded to Sgt. Solomon's call. Id. at ¶ 90. When Officer Parlanti arrived on the scene, Sgt. Solomon asked Plaintiff for a third time to produce his license and registration. Id. at ¶ 97. Plaintiff still did not produce his license and registration. Id. at ¶ 98. Sgt. Solomon then warned Plaintiff, "Do you realize that we could arrest?" Ex. E, Evans Dep. 173:15-17. Sgt. Solomon then grabbed Plaintiffs right wrist, turned it behind his back, and pushed Plaintiff up against his vehicle. Defs. Rule 56.1 Stmt. ¶ 101. Plaintiffs body was pinned against his vehicle with his left hand between his body and the car and his right wrist was held behind his back by Sgt. Solomon. Id. at ¶ 102. The officers applied pressure on him to keep him against the vehicle and when Plaintiff attempted to turn his head to ask a question, Sgt. Solomon twisted his arm harder to get Plaintiff to stay straight. Defs. & Pl. Rule 56.1 Stmt. ¶¶ 104-05. With Plaintiff pinned up against his vehicle, Sgt. Solomon pulled Plaintiffs wallet out of his pants pocket and obtained Plaintiffs driver's license from his wallet. Defs. Rule 56.1 Stmt. ¶ 107. Sgt. Solomon then released Plaintiff.

Plaintiff was "very upset" after the search for his wallet and began pacing back and forth the length of his vehicle, adjacent to the lane of traffic on East 36th Street. Ex. E, Evans Dep., 190:16-22, 191:9-15, 194:15-18. Plaintiff stated in a loud voice, "What, where are we, in Communist Russia? Is this a Communist country? Did I suddenly become part of a Communist country?" Defs. Rule 56.1 Stmt. ¶ 115. Sgt. Solomon turned to Plaintiff and stated, "Stand still." Ex. E, Evans Dep. at 194:20-21. Plaintiff stopped immediately, but later, after some words, he rolled his eyes and turned around toward his car. Id. at 195:18, 197:2-5. At that point, Sgt. Solomon and Parlanti handcuffed Plaintiff and told him, "We're handcuffing you for your own safety." Id. at 202: 19-25. They placed Plaintiff into Sgt. Solomon's vehicle.

Sgt. Solomon left the scene for approximately 10 to 15 minutes with Plaintiff handcuffed in the backseat of Solomon's vehicle. Defs. Rule 56.1 Stmt. ¶¶ 139-40. When Sgt. Solomon returned to the scene, he directed Officer Parlanti to unhandcuff Plaintiff. Id. at ¶ 140. Sgt. Solomon then issued Plaintiff three summonses: (1) failure to obey a red signal; (2) disorderly conduct; and (3) failure to obey a lawful order. Id. at ¶ 150. Plaintiff signed one of the three summonses. Id. at ¶ 149. Plaintiff eventually pleaded guilty to the failure to obey a red light violation and paid a $100.00 fine. Ex. K, Certificate of Disposition. The other summonses were dismissed. Id.

Plaintiff commenced this suit on July 7, 2006, against Sgt. Solomon and the United States, alleging claims under Bivens and the FTCA. Defendants moved for summary judgment on September 11, 2008 on all claims. The Court now considers the instant motion.

I. Summary Judgment Standard

Summary judgment is appropriate only when "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). When evaluating a motion for summary judgment, "the court must view the evidence in the light most favorable to the party against whom summary judgment is sought and must draw all reasonable inferences...

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