333 F.Supp.2d 184

United States District Court,

S.D. New York.

Mark WEBSTER, Lana Mills, Annette Mills, Delroy McKenzie, Plaintiffs,

v.

THE CITY OF NEW YORK, et al., Defendants.

No. 03 CIV. 0524(RWS).

Aug. 27, 2004.
*188 Cardinale Hueston & Marinelli, Brooklyn, NY (Richard J. Cardinale, of Counsel), for Plaintiffs.

Honorable Michael A. Cardozo, Corporation Counsel of the City of New York, New York City (Sheryl A. Bruzzese, Assistant Corporation Counsel, of Counsel), for Defendants.


OPINION


SWEET, District Judge.

Defendants the City of New York (the "City"), Police Commissioner Ray Kelly ("Kelly"), former Police Commissioners Bernard Kerik ("Kerik") and Howard Safir ("Safir"), Police Officer Davie Rodriguez ("Rodriguez"), Sergeant Michael Murphy ("Murphy"), Police Officer Scott Velasquez ("Velasquez"), Police Officer Andrew Bershad ("Bershad"), Police Officer Wayne Davis ("Davis"), Police Officer Cornelius O'Keefe ("O'Keefe"), Police Officer Jeffrey Sattali ("Sattali"), Police Officer Wilfredo Cortes ("Cortes"), Police Officer Clifton Clarke ("Clarke"), Police Officer Ezra Moore ("Moore"), and Police Officer Carlos Lewis ("Lewis") (collectively, "Defendants") FN1 have moved for partial summary judgment pursuant to Rule 56(c) of the Federal Rules of Civil Procedure seeking the dismissal of certain of the claims of plaintiffs Annette Mills ("Mills"), Mark Webster ("Webster"), and Delroy McKenzie ("McKenzie") (collectively, "Plaintiffs"). For the reasons set forth below, Defendants' motion for partial summary judgment is granted in part and denied in part.
FN1. Kelly, Kerik and Safir were not named in Defendants' notice of motion, although correspondence submitted to the Court simultaneous with the motion indicates that Kelly, Kerik and Safir are among those seeking partial summary judgment here. Police Officer Bernard, the only remaining defendant, is not so named.


Prior Proceedings

Plaintiffs, along with a fourth plaintiff, Lana Mills ("Lana"),FN2 commenced this action on January 23, 2003, pursuant to 42 U.S.C. § 1983, alleging, inter alia, deprivations of their First, Fourth, and Fourteenth Amendment rights with regard to an incident that occurred on August 31, 2002, when officers from the 67th Precinct entered Mills' home and arrested Lana, McKenzie and Webster. An amended complaint was filed on June 9, 2003, discovery proceeded, and Defendants filed the instant motion on January 8, 2004. Following briefing by the parties, the motion was deemed submitted without oral argument on February 18, 2004.
FN2. The claims brought by Lana Mills were dismissed with prejudice by a stipulation and order of settlement and dismissal filed on January 8, 2004.

The Facts

The facts are set forth based upon the parties' Local Civil Rule 56.1 statements and supporting materials, and are undisputed except as noted below. They do not constitute findings of fact by the Court.

Mills is the sole owner of 542 East 48th Street, Brooklyn, New York (the "Mills residence"). Lana is her daughter.

*189 On August 30, 2002, Mills had a party at the Mills residence, and Mills, alone, invited a "good 50 people" to the party. (Declaration of Sheryl A. Bruzzese, dated Jan. 7, 2004 ("Bruzzese Decl."), Exh. D, at 124.) Mills told her guests to arrive before midnight. Mills was serving alcoholic beverages at the party.

Webster did not know Mills or Lana prior to August 30, 2002, and was hired by Mills to serve as a Disc Jockey ("DJ") at the August 30, 2002 function. Webster arrived at the Mills residence at approximately 8:00 p.m. Webster used professional DJ equipment at the August 30, 2002 party, the same type of DJ equipment used at night clubs. Webster invited some of his friends to Mills' party.

McKenzie arrived at the Mills residence at or about midnight on August 31, 2002. He did not know Mills or Lana prior to that date, and Mills did not invite McKenzie to come to her home on August 31, 2002.

Members of the New York City Police Department ("NYPD") arrived at the Mills residence between 12:30 a.m. and 1:00 a.m. on August 31, 2002. Civilians were standing in the front of the house, in the driveway, and in the backyard at the time the police arrived. People were drinking alcoholic beverages before the police arrived, and at the time the police arrived, three individuals were drinking beer in the driveway of the Mills residence.

Initially, there was only one police car on the scene. There were at least twenty guests present at the time of the incident. McKenzie observed two officers come into the yard and tell the DJ to lower the music, and Webster either lowered the music or turned the music off. McKenzie observed another three officers in front of the house.

A member of the NYPD told Mills to "keep the music down." (Bruzzese Decl., Exh. D, at 150, 152-53.) The officer who told Mills to keep the music down was, in her estimation, "nice" to her. (Bruzzese Decl., Exh. D, at 152.)

People that Mills did not know were in front of the Mills residence. An individual was drinking beer in the middle of the driveway leading to Mills' backyard. McKenzie overheard officers tell the individual in the driveway, in substance, that he can't drink in the driveway. Webster claims that he subsequently questioned the officers whether they could issue someone a summons for drinking an alcoholic beverage on private property. Webster asserts that after he asked them this question, the officers, acting in concert, stated in substance "Who are you the fucking judge? Now, you are going to be locked up instead of him." ( See Bruzzese Decl., Exh. H, at 198-203.) Webster alleges that Murphy had his ticket book in his hand at that time.

Defendants assert that Bershad did not punch, kick, hit, or mace Webster. Plaintiffs dispute this assertion and state that Bershad, acting in concert with several other of Defendants, forcefully threw Webster against a fence, forcefully bumped into Webster's chest with his chest, grabbed Webster's shirt, slammed the metal cuffs on him, yanked his arms, handcuffed him excessively tight, and yanked him and tossed him around by the tight cuffs. Because of the yanking and the excessively tight handcuffs, Plaintiffs assert that Webster had marks on his wrists for two months and later a scar. To this day, Webster suffers from tingling and numbness to his wrists because of the tight cuffs, according to Plaintiffs.

Defendants assert that Webster kept walking when the officers attempted to put *190 his hands behind his back, although Plaintiffs dispute this assertion.

At the time of Webster's arrest, there were no more than five officers in front of the Mills residence. The only force Mills and McKenzie observed the officers utilize on Webster was to push him up against the fence and try to get his hands behind his back to handcuff him. Neither Mills nor McKenzie observed a police officer punch Webster, strike him with an open hand, or mace him. McKenzie did not observe Webster hit the ground at any time or observe officers slam him into a gate. Mills did not observe the police officers handcuff Webster.

Mills alleges that at the time Rodriguez attempted to handcuff Lana, Rodriguez pushed Mills out of the way. When Rodriguez allegedly pushed Mills, according to Mills "it really didn't hurt" her, although she felt "[i]nstant pain." (Bruzzese Decl., Exh. D, at 179-80.) When asked if she felt any pain as a result of the alleged push, Mills stated that "[i]t wasn't a big deal, really." (Bruzzese Decl., Exh. D, at 180.)

Mills alleges that Rodriguez shoved her once or twice. She did not fall as a result of allegedly being pushed by Rodriguez. Every time Rodriguez allegedly pushed Mills out of the way, she stood back up. Rodriguez did not say anything to Mills when he was attempting to handcuff Lana. McKenzie did not observe any of the officers touch Mills.

Mills alleges that Rodriguez then proceeded to drag Lana across the street with just one handcuff. As the officers attempted to arrest Lana, Mills was running behind Lana, screaming, hollering and questioning why the police were arresting her daughter. Lana was, according to Mills, "[s]creaming her head off." (Bruzzese Decl., Exh. D, at 196.) Mills and Lana were screaming so loud that, according to Mills, everybody started running out of the backyard. At the time the officers were attempting to handcuff Lana, people from the backyard came out to the front of the house. Other people were screaming and yelling at the time Lana was arrested. In this midst of all this "confusion," as Mills termed it, she heard the police officers radio for help. (Bruzzese Decl., Exh. D, at 164.)

At the time of Lana's arrest, Mills was, by her own admission, jumping, screaming and calling for everybody's attention. According to Defendants, Mills was following behind the officers who were taking Lana across the street. Plaintiffs assert that Mills was following Rodriguez who was "dragging" Lana across the street by her hair and by one of her arms. (Bruzzese Decl., Exh. D, at 198-99.)

According to Mills, members of the NYPD threw her up against the vehicle face-first to stop her from running behind them. Mills believed these officers were just trying to restrain her. She alleges that her face, hands, chest, and knees made contact with the vehicle, although she tried to block the fall into the vehicle with her hands.

Mills sustained no bruises to her face or knees as a result of hitting the vehicle, and she sustained no injuries as a result of hitting the vehicle. Mills described the pain she experienced as an "instant" pain. (Bruzzese Decl., Exh. D, at 212.) The parties dispute whether Mills felt pain for a few days after the incident. Plaintiffs assert that the pain Mills felt was treated with Motrin and that she experienced emotional distress and trembled for days.

At the time that Mills was allegedly thrown against the car, she was, by her own account, "hysterical" and "screaming [her] head off." (Bruzzese Decl., Exh. D, at 206.) Mills was screaming "You're hurting her. Leave her alone." (Bruzzese *191 Decl., Exh. D, at 209.) She also screamed: "What are you doing to my child? I'm her mother. Tell me what's going on." (Bruzzese Decl., Exh. D, at 206.) Mills' neighbor came out of the house across the street because she heard Mills screaming. Thereafter, Mills rolled over, got off the vehicle, and sat down on the sidewalk. One of the officers then told Mills, in substance, to calm down, as did Mills' neighbor. Mills stated to the officer: "You're a black officer and you see what these other cops are doing to us, and you stood there and said nothing." (Bruzzese Decl., Exh. D, at 207.)

According to Defendants, when Lana was placed in the police vehicle, Mills opened the police vehicle's door and entered the police vehicle of her own volition. Plaintiffs assert that Lana was pulled into the police vehicle by her hair and then the door to the vehicle was closed. Mills thereupon opened the door to see what was being done to Lana, according to Plaintiffs, and saw that Rodriguez had his knee on Lana's chest and that he was still yanking her by the hair.

Thereafter, two police officers pulled Mills out of the police vehicle and closed the door, after which the vehicle left with Lana inside. Mills did not sustain any physical injuries as a result of being pulled out of the police vehicle.

At the same time that police officers were arresting Lana, McKenzie was, by his own admission, "speaking loudly." (Bruzzese Decl., Exh. F, at 92.) He made a comment to officers and made it loud so that they could hear him, stating in substance "Why are you arresting her; she has not done anything wrong." ( See Bruzzese Decl., Exh. F, at 91-92.)

According to Velasquez's sworn statement, he observed McKenzie make a gun gesture with his hand and reach for his waistband. Velasquez then addressed McKenzie, according to Defendants, and McKenzie looked at Velasquez, turned, and ran into the Mills residence. Plaintiffs assert that, in response to McKenzie's comment, one of the police officers stated in substance "Who has got the smart mouth," and then one of Defendants ran toward McKenzie. ( See Bruzzese Decl., Exh. F, at 92-94.) McKenzie ran away, according to Plaintiffs, because he was scared that Defendants were going to beat him like they beat Lana and Webster. At no time, Plaintiffs assert, did McKenzie reach into his waistband as if he were reaching for a gun or gesture as if his hand were a gun.

Webster noticed that McKenzie "dart[ed]" or "took off running" and observed officers chase him into the backyard of the Mills residence. (Bruzzese Decl., Exh. H, at 314-16, 331-32.) McKenzie ran up the driveway and into the backyard of the Mills residence. McKenzie ran inside the Mills residence. Police officers followed McKenzie inside the Mills residence. According to Defendants, Webster observed the officers who chased McKenzie up the driveway immediately follow McKenzie out the front door of the Mills residence. Plaintiffs assert that Webster observed the officers chase McKenzie inside the Mills residence. The chase did not last longer than two minutes.

McKenzie alleges that the officers picked him up five feet from the ground and "body-slammed" him on the concrete in front of the Mills residence. (Bruzzese Decl., Exh. F, at 97.) Plaintiffs assert that McKenzie was also punched in the ribs, and his head, neck, and back struck the ground. McKenzie, according to Plaintiffs, experienced pain, dizziness, and a loss of consciousness. He went to the hospital for his injuries and was prescribed painkillers. Defendants assert that McKenzie did not sustain any cuts, bruises, abrasions, or *192 scrapes as the result of the purported body-slam to the ground.

McKenzie was handcuffed and placed under arrest. Plaintiffs assert that he was handcuffed excessively tight.

Mills observed officers who appeared to be looking for something shining flashlights in her backyard. She also observed police officers inside her home but did not know what they were doing inside. According to Mills, the police officers did not break, damage, or take anything from inside the Mills residence.

Webster was arrested and charged with resisting arrest and disorderly conduct. Webster accepted an adjournment in contemplation of dismissal and the charges were ultimately dismissed on January 22, 2003.

McKenzie was arrested and charged with assault in the third degree, resisting arrest, and inciting a riot. The charges against McKenzie were dismissed on December 4, 2002 pursuant to the speedy trial provision of New York's Criminal Procedure Law, Section 30.30.

Mills was never arrested by members of the NYPD. On August 31, 2002, Mills, her husband Lancelot Hector ("Hector"), and her daughter Collete ("Collete") went to the courthouse. Mills, her husband, and Collete were not permitted to enter the courthouse due to a separate, unrelated incident involving a New York State Office of Court Administration Court Officer. The New York State Court Officers issued Mills and Collette summonses. None of the Defendants were personally involved in the incident involving Mills, Hector, Collete, and the New York State Court Officer. The incident involving the New York State Court Officer is wholly unrelated to the August 31, 2002 incident at the Mills residence.

The Summary Judgment Standard

Summary judgment is granted only if there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); SCS Communications, Inc. v. Herrick Co., Inc., 360 F.3d 329, 338 (2d Cir.2004); see generally 11 James Wm. Moore, et al., Moore's Federal Practice ¶ 56.11 (3d ed. 1997 & Supp.2004). The court will not try issues of fact on a motion for summary judgment, but, rather, will determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Summary judgment is appropriate where the moving party has shown that "little or no evidence may be found in support of the nonmoving party's case. When no rational jury could find in favor of the nonmoving party because the evidence to support its case is so slight, there is no genuine issue of material fact and a grant of summary judgment is proper." Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1223-24 (2d Cir.1994) (citations omitted). "The party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists and that the undisputed facts establish her right to judgment as a matter of law." Rodriguez v. City of New York, 72 F.3d 1051, 1060-61 (2d Cir.1995).

A material fact is one that would "affect the outcome of the suit under the governing law," and a dispute about a genuine issue of material fact occurs if the evidence is such that "a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S.Ct. 2505; *193 see also R.B. Ventures, Ltd. v. Shane, 112 F.3d 54, 57 (2d Cir.1997). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248, 106 S.Ct. 2505; accord Quarles v. Gen. Motors Corp., 758 F.2d 839, 840 (2d Cir.1985).