Pooler v. Hempstead Police Dep't

• Decision Date: 14 September 2012
• Docket Number: No. 10–CV–0482 (JFB)(ARL).,10–CV–0482 (JFB)(ARL).
• Parties: Keith POOLER, Plaintiff, v. HEMPSTEAD POLICE DEPARTMENT, P.O. Karol Barnes, P.O. Anthony Almanzar, Kathleen Rice, State of New York, Nassau County Sheriff's Department, Defendants.
• Court: U.S. District Court — Eastern District of New York

897 F.Supp.2d 12

Keith POOLER, Plaintiff,

v.HEMPSTEAD POLICE DEPARTMENT, P.O. Karol Barnes, P.O. Anthony Almanzar, Kathleen Rice, State of New York, Nassau County Sheriff's Department, Defendants.

No. 10–CV–0482 (JFB)(ARL).

United States District Court,

E.D. New York.

Sept. 14, 2012.

Keith Pooler, pro se.

Pablo A. Fernandez of the Nassau County Attorney's Office, Mineola, NY, for the County defendants.

Keith Michael Corbett of Harris Beach PLLC, New York, NY, for the Village defendants.

MEMORANDUM AND ORDER

JOSEPH F. BIANCO, District Judge.

Pro se plaintiff Keith Pooler (“Pooler” or “plaintiff”) brings this action pursuant to 42 U.S.C. § 1983¹ (“ Section 1983”) against the Hempstead Police Department, P.O. Karol Barnes (“Barnes”), P.O. Anthony Almanzar (“Almanzar”),² District Attorney Kathleen Rice (“DA Rice”), the State of New York (“New York”) ³ and the Nassau County Sheriff's Department ⁴ (“Nassau County”) (collectively the “defendants”). Construing plaintiff's complaint liberally, plaintiff brings his claims against DA Rice and Nassau County (the “County defendants”) for false arrest, malicious prosecution, and violation of his due process rights, ⁵ and his claims against the Hempstead Police Department, ⁶ Barnes, and Almanzar (the “Village defendants”) for false arrest and excessive force.

The County defendants and the Village defendants separately moved for summary judgment. For the reasons set forth below, the Village defendants' motion for summary judgment is granted in part and denied in part. Specifically, the Court denies the Village defendants' motion as it relates to plaintiff's claim against Almanzar and Barnes for use of excessive force when plaintiff was arrested. The Village defendants' motion is granted on all other claims. Additionally, the Court grants the County defendants' motion in its entirety.

I. Background

A. Factual Background

The Court has taken the facts set forth below from the parties' affidavits and exhibits, and from the defendants' Rule 56.1 Statement of Facts.⁷ Upon consideration of a motion for summary judgment, the Court shall construe the facts in the light most favorable to the non-moving party. See Capobianco v. City of New York, 422 F.3d 47, 50 (2d Cir.2005). Unless otherwise noted, where a party's 56.1 Statement is cited, that fact is undisputed or the opposing party has pointed to no evidence in the record to contradict it.⁸

Plaintiff is an inmate serving a definite term of nine years at Southport Correctional Facility, located at Pine City, New York. (County Defs.' 56.1 ¶ 1.) On June 4, 2009, at approximately 2:46 a.m., in front of 58 Main Street, Hempstead, New York, plaintiff approached Jose Alvarez (“Alvarez”) and intentionally punched him in the face causing serious pain and injury and stole sixty dollars. (Id. ¶ 4.) Alvarez described the man as a black male approximately “40 years old, 5FT 10 inch tall, 230 LBS, wearing dark clothing.” ( See Pl.'s 56.1 ¶ 4; Pl.'s Ex. C, Alvarez's Supporting Declaration dated June 4, 2009.)

At approximately 1:30 a.m. on June 13, 2009, Alvarez was driving his taxi in front of Main Street, Hempstead, New York when he observed plaintiff. (County Defs.' 56.1 ¶ 5.) Alvarez followed the plaintiff, telephoned the Hempstead Police Department, and remained on the phone with the 911 operator as he followed plaintiff. ( Id.) The officers arrived when plaintiff was near the corner of West Columbia Street and Main Street, Hempstead, New York. ( Id.) Alvarez identified plaintiff as the person who assaulted and robbed him on June 4, 2009. ( Id. ¶ 6.) Officer Almanzar attempted to stop plaintiff and plaintiff fled. ( Id. ¶ 7.) Pooler alleges that Almanzar and Barnes, who participated in the Arrest both maced him during the arrest. ( See Pl.'s 56.1 ¶ 17; Pl.'s Ex. P.) However, Barnes and Almanzar assert that “[t]he plaintiff was not punched, kicked or assaulted in anyway.” ( See Village Defs.' Amended 56.1 ¶ 6.)

At approximately 2:26 a.m. on June 13, 2009, plaintiff was charged and processed for the commission of Robbery in the Second Degree under Penal Law § 160.10–2A and, at approximately 7:15 a.m., plaintiff was transferred to the Hempstead Police Department headquarters, located at 1490 Franklin Avenue, Mineola, New York, for additional processing. (County Def.'s 56.1 ¶ 8–9.) On the Police Department “Physical Condition of Defendant Questionnaire,” plaintiff indicated that his “back hurt” and that he “fell down” and the desk officer remarks indicate that “Subject Appears fit, request to see doctor for back pain.” (Pl.'s Ex. G Physical Condition of Defendant Questionnaire dated June 13, 2009.) Plaintiff alleges that he was dropped on his lower back with handcuffs, which caused severe pain and that, when he requested to see a doctor, he was brought to N.C.M.C. (Pl.'s 56.1 Statement ¶ 8.)

On June 29, 2009, the Grand Jury returned an indictment charging plaintiff with Robbery in the Second Degree, in violation of Section 160.10–2A of the New York State Penal Law, Robbery in the Third Degree in violation of Section 160.05 of the New York Penal Law, and Assault in the Third Degree in violation of Section 120.00–1 of the New York Penal Law. (County Def.'s 56.1 ¶ 10.) On January 20, 2010, plaintiff was found guilty of Robbery in the Second Degree and Assault in the Third Degree after a jury trial. ( Id. ¶ 11.)

B. Procedural History

Plaintiff commenced this action on February 3, 2010 and moved for leave to proceed in forma pauperis. The Court granted plaintiff's motion to proceed in forma pauperis on February 5, 2010. This case was consolidated with plaintiff's case filed under docket number 10–cv–1497 on April 28, 2010, 2010 WL 1816757. On May 21, 2010, plaintiff's case filed under docket number 10–cv–2282 was consolidated with this action.

On June 23, 2010, defendant New York State requested a pre-motion conference. A conference was held on July 8, 2010, and plaintiff withdrew his claims as to New York State.

By letters dated October 10, 2011, the County defendants and the Village defendants requested a pre-motion conference in anticipation of their motions for summary judgment. By Order dated October 13, 2011, the Court waived the pre-motion conference requirement and set a briefing schedule. On November 14, 2011, the County defendants filed their motion for summary judgment. The Village defendantsalso filed their motion for summary judgment on November 14, 2011. Plaintiff filed his opposition to the motions on December 12, 2012.⁹ The County defendants filed their reply on December 20, 2011, and the Village defendants filed their reply on December 28, 2012. The plaintiff submitted a rebuttal to defendants' replies on January 6, 2011. ¹⁰ The Court has fully considered the submissions of the parties.

II. Standard of Review

The standards for summary judgment are well settled. Pursuant to Federal Rule of Civil Procedure 56(a), a court may only grant a motion for summary judgment if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The moving party bears the burden of showing that he or she is entitled to summary judgment. Huminski v. Corsones, 396 F.3d 53, 69 (2d Cir.2005). “A party asserting that a fact cannot be or is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1). The court “is not to weigh the evidence but is instead required to view the evidence in the light most favorable to the party opposing summary judgment, to draw all reasonable inferences in favor of that party, and to eschew credibility assessments.” Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 122 (2d Cir.2004) (quoting Weyant v. Okst, 101 F.3d 845, 854 (2d Cir.1996)); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (summary judgment is unwarranted if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party”).

Once the moving party has met its burden, the opposing party “ ‘must do more than simply show that there is some metaphysical doubt as to the material facts .... [T]he nonmoving party must come forward with specific facts showing that there is a genuine issue for trial.’ ” Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir.2002) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (emphasis in original)). As the Supreme Court stated in Anderson, “[i]f the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249–50, 106 S.Ct. 2505 (citations omitted). Indeed, “the mere existence of some alleged factual dispute between the parties” alone will not defeat a properly supported motion for summary judgment. Id. at 247–48, 106 S.Ct. 2505 (emphasis in original). Thus, the nonmoving party may not rest upon mere conclusory allegations or denials but must set forth “ ‘concrete particulars' ” showing that a trial is needed. R.G. Group, Inc. v. Horn & Hardart Co., 751 F.2d 69, 77 (2d Cir.1984) (quoting SEC v. Research Automation Corp., 585 F.2d 31, 33 (2d Cir.1978)). Accordingly, it is insufficient for a party opposing summary judgment “ ‘merely to assert a conclusion without supplying supporting arguments or facts.’ ” BellSouth Telecomms., Inc. v. W.R. Grace & Co., 77 F.3d 603, 615 (2d Cir.1996) (quoting Research Automation Corp., 585 F.2d at 33).

III. Discussion

To prevail on a...