Landy v. Irizarry

• Citation: 884 F. Supp. 788
• Decision Date: 05 April 1995
• Docket Number: No. 92 Civ. 6045 (KMW).,92 Civ. 6045 (KMW).
• Parties: Dan LANDY, Plaintiff, v. Don IRIZARRY, Daniel Lafferty, and Sam Chimon, Defendants.
• Court: U.S. District Court — Southern District of New York

884 F. Supp. 788

Dan LANDY, Plaintiff, v. Don IRIZARRY, Daniel Lafferty, and Sam Chimon, Defendants.

No. 92 Civ. 6045 (KMW).

United States District Court, S.D. New York.

April 5, 1995.

COPYRIGHT MATERIAL OMITTED

Don Landy, Ossining, NY, pro se.

Peter D. Winebrake, Asst. Corp. Counsel, Paul A. Crotty, Corp. Counsel, New York City, for defendants.

ORDER

KIMBA M. WOOD, District Judge.

Defendants Irizarry and Lafferty have filed a motion for summary judgment in this § 1983 action, and plaintiff has filed a cross-motion for summary judgment. Defendant Chimon has not been served with process and has not answered or otherwise appeared. In a Report and Recommendation ("Report") dated July 27, 1994, Magistrate Judge Katz recommended that plaintiff's cross-motion be denied, that defendants' motion be granted, and that the complaint be dismissed without prejudice as to defendant Chimon. Plaintiff filed objections on September 7, 1994.

After a de novo review of the Report and plaintiff's objections, I adopt the Report in its entirety. The complaint is hereby dismissed without prejudice as to defendant Chimon.

SO ORDERED.

REPORT AND RECOMMENDATION

KATZ, United States Magistrate Judge.

This Section 1983 action was referred to me for all pretrial purposes, including dispositive motions. Plaintiff pro se claims that he was unlawfully arrested, that excessive force was used in the course of his arrest, and that he was denied necessary medical treatment for injuries he suffered during the arrest. Plaintiff seeks damages for his physical injuries and the pain and suffering alleged to have resulted from denial of medical treatment. (Complaint ¶ V.) Defendants Irizarry and Lafferty have filed a Motion for Summary Judgment and Plaintiff has filed a Cross-Motion for Summary Judgment.¹ Defendant Chimon has never been served with process and has not answered or otherwise appeared in the action. For the reasons set forth below, I recommend that Plaintiff's Cross-Motion be denied and Defendants' Motion be granted, and that the Complaint be dismissed without prejudice as to Defendant Chimon.

BACKGROUND

This action arises out of events surrounding Plaintiff's arrest on October 26, 1990. In the early evening of that day, Plaintiff entered an apartment building at 120 West 70th Street, New York, New York. (Pl.'s Dep. at 58.)² There he encountered a resident, Elise Cohen, on an upper floor. (Pl.'s Dep. at 65-66.) Ms. Cohen started screaming loudly for help, and Plaintiff descended the staircase. (Pl.'s Dep. at 65-66; Irizarry Decl. ¶ 2.) The screams alerted several tenants who opened their doors to see what was afoot. (Pl.'s Dep. at 66; Irizarry Decl. ¶ 2.) One of these tenants was off-duty New York City Police Lieutenant Dorian Irizarry. Lieutenant Irizarry saw Plaintiff walking down the stairs, and he asked Plaintiff what was going on. (Id.) Plaintiff replied, "I don't know." (Id.) Irizarry then asked Plaintiff to wait a minute, to which Plaintiff reacted by "trotting" to the door. (Pl.'s Dep. at 67, 78; Irizarry Decl. ¶ 2.) Irizarry contends that he then yelled, "Police, don't move." (Irizarry Decl. ¶ 3.) Plaintiff claims that Irizarry did not identify himself as an officer until later.³ Irizarry also claims that two tenants came running down the stairs and said words to the effect of "stop him, he attacked Elise."⁴ (Irizarry Decl. ¶ 3.) Irizarry then attempted physically to restrain Plaintiff from leaving the building. Irizarry claims he tried to block the door; Plaintiff claims Irizarry grabbed him from behind. (Pl.'s Dep. at 78-79, 81; Irizarry Decl. ¶ 3.)

A struggle ensued, spilling out onto the sidewalk. (Pl.'s Dep. at 83-89; Irizarry Decl. ¶ 5.) At least one of the other tenants came to help Irizarry in the struggle.⁵ According to Plaintiff, Irizarry was trying to handcuff him as they struggled on the ground. Irizarry told him he was going to jail. (Pl.'s Dep. at 88, 148-149.)

During the struggle, Irizarry noticed that Plaintiff had what appeared to be a gun. (Pl.'s Dep. at 116; Irizarry Decl. ¶ 5.) Plaintiff concedes that he was in possession of a knife shaped like a gun. (Pl.'s Dep. at 116.) After seeing this weapon, Irizarry told the other person(s) to get off of Plaintiff; when they complied, Plaintiff started to get up. (Pl.'s Dep. at 83, 85-88; Irizarry Decl. ¶ 5.)

Irizarry then drew his revolver and pointed it at Plaintiff, ordering him to drop his weapon. (Irizarry Decl. ¶ 5.) Plaintiff claims Irizarry "shoved" or "jammed" the revolver into the back of his head. (Complaint ¶ IV.A; Pl.'s Dep. at 149.) Plaintiff grabbed the gun, pushed it away, stood up, and ran down 70th Street toward Broadway, where he turned the corner and entered a taxi. (Pl.'s Dep. at 85-88; Irizarry Decl. ¶¶ 5-6.) Plaintiff acknowledges that while he was running away Irizarry identified himself as a police officer. (Pl.'s Dep. at 149.) Irizarry pursued Plaintiff and ordered the taxi driver not to pull away. (Pl.'s Dep. at 95; Irizarry Decl. ¶ 6.) Irizarry states that he pulled Plaintiff out of the taxi and held him by a phone booth. (Irizarry Decl. ¶ 6.) Plaintiff claims the arrest took place in the taxi. (Pl.'s 3(g) Statement ¶ 6.)

Moments later, New York City Police Officer Daniel Lafferty appeared on the scene. (Pl.'s Dep. at 105; Irizarry Decl. ¶ 6.) After Irizarry told him what had happened, Lafferty took Plaintiff into custody and transported him to the 20th Precinct. (Id.) Later at the stationhouse, Ms. Cohen identified Plaintiff. (Pl.'s Dep. at 105; Irizarry Decl. ¶ 6.)

Plaintiff contends that he received a "hole in the head that wouldn't stop bleeding" from Irizarry "jamming the barrel of his gun behind his left ear." (Complaint ¶ IV.A.) He further claims he was sent to Bellevue Hospital for treatment the day after his arrest. (Pl.'s 3(g) Statement ¶ 7.) Plaintiff also contends that he was kicked by Officer Irizarry during the struggle. (Pl.'s Dep. at 83, 85, 87.) Defendant Irizarry denies that he either hit Plaintiff with his gun or kicked Plaintiff. (Irizarry Decl. ¶ 5.)

Because of his injuries, Plaintiff alleges that he asked police officials to be taken to a hospital for medical treatment, (Complaint ¶ IV), and he was told, at least twice, that he would receive medical care after his arraignment, which would be shortly (Pl.'s Dep. at 144-147). It is not clear when and to whom these requests were made. In his 3(g) Statement, Plaintiff stated Sam Chimon, supposedly a fellow officer with Lafferty at the 20th Precinct, failed to give him medical treatment. None of the other Defendants are specifically identified in the Complaint or Plaintiff's 3(g) Statement in connection with the alleged denial of Plaintiff's request for medical care.

Plaintiff was charged with the crimes of burglary in the first degree, an attempt to commit the crime of kidnapping in the second degree, and criminal possession of a weapon in the third degree (two counts). These charged were dismissed on April 14, 1992, pursuant to New York C.P.L. § 30.30, on the ground that Plaintiff had not been afforded a speedy trial. (Pl.'s Dep. at 24; People v. Landy, No. 13037/90, N.Y.S.Ct., Memorandum Decision (May 20, 1992)).

Plaintiff filed the Complaint in this action on August 11, 1992, naming as defendants Lieutenant Irizarry, Officer Lafferty, and Sam Chimon. Plaintiff claims that Lieutenant Irizarry used excessive force and unlawfully arrested him. Plaintiff also claims that Officer Lafferty conspired with Irizarry to unlawfully arrest him. Plaintiff alleges that Sam Chimon refused him medical treatment.

DISCUSSION

I. Failure to Serve Defendant Chimon

Defendants Lafferty and Irizarry were properly served and acknowledged receipt of the Summons and Complaint on September 25, 1992. Defendant Chimon, however, was not located by the U.S. Marshal's Service, which noted on the Process Receipt and Return that New York City Police Department personnel had no listing of him. In a letter to Plaintiff from the Court, dated September 10, 1992, Plaintiff was advised of the time limit for service, pursuant to then Rule 4(j), Fed.R.Civ.P., and that if service was not effected within the 120-day period, that I would recommend dismissal of the Complaint as to Defendant Chimon. In another letter, dated April 15, 1994, I specifically advised Plaintiff: (1) of his obligation under newly enacted Rule 4(m), Fed.R.Civ.P., to serve the Summons and Complaint within 120 days of the Complaint's filing, which would have been by December 9, 1992; (2) that the docket did not reflect that such service had occurred; and (3) that I would recommend to the district judge (Hon. Kimba M. Wood) that the action be dismissed as to Defendant Chimon if Plaintiff did not show good cause by May 6, 1994 for the failure of service. Plaintiff responded to that letter with an Affidavit, dated May 3, 1994, stating that "Sam Chimon McCio" worked at the 20th Precinct and he had not failed to serve him. Plaintiff attached to his Affidavit an otherwise blank piece of paper containing three photocopied signatures which Plaintiff claims "shows that each defendant knew one another, and knew about the acts that they have committed against the Plaintiff."⁶ Plaintiff did not produce any proof of service of the Summons and Complaint upon Defendant Chimon and the docket does not evidence that service was effected.

Rule 4(m), Fed.R.Civ.P., which took effect on December 1, 1993, retained much of the language of former Rule 4(j), particularly as it relates to a party's having to show "good cause" for the failure to serve the Summons and Complaint within 120 days of filing. However, in contrast to the former rule, it is explicit that where a party does show "good cause" for his failure, the Court must extend the time for service for an appropriate period. If "good cause" is not shown, the Court may either dismiss the action or order that service be effected within a specified period of time.⁷

Where, as in this...