Opinion
CV-03 1961 (CPS).
February 10, 2005
MEMORANDUM AND ORDER
Plaintiffs Arlene Bartlett and Yohan Bartlett, an infant by their mother and natural guardian Arlene Bartlett bring this action pursuant to 42 U.S.C. § 1983 against defendants City of New York ("City"), Probation officers Elliot Hearsh, Bruce Rudowitz, Jeannine Iorio, and unidentified New York City Probation officers, agents and employees, alleging civil rights violations and state law claims arising from the execution of an arrest warrant on January 23, 2002. Specifically, plaintiffs claim false arrest, unlawful entry, unlawful seizure and detention, illegal search and seizure, invasion of privacy, excessive force, and destruction of property. In addition, plaintiffs allege that defendants failed to observe an affirmative duty to intervene, and that the City of New York has a policy and practice of failing to train and discipline probation officers. Plaintiffs finally state pendant state law claims for assault and battery, false arrest and imprisonment, trespass and unlawful search, negligent trespass, detention and confinement, and negligent hiring, retention and training of the individual officers. Plaintiffs seek compensatory and punitive damages, as well as attorneys' fees.
Defendants presently move for summary judgment with respect to all claims against them pursuant to Rule 56 of the Federal Rules of Civil Procedure. In accordance with Local Civil Rule 56.1 of the Local Rules of the United States District Courts for the Southern and Eastern Districts of New York ("Local Rule 56.1), defendants have submitted a statement of undisputed facts along with their motion papers. Plaintiffs have not submitted any papers in opposition to this motion. For the reasons stated herein, the motion for summary judgment is granted.
BACKGROUND
The following facts are drawn from the parties' pleadings, depositions, answers to interrogatories, and admissions on file, together with the submissions in connection with the present motion.
Local Rule 56.1
Pursuant to Local Rule 56.1(a), defendants submitted a Statement of Undisputed Facts. Under Local Rule 56.1(b), as amended on February 26, 2004, "[t]he papers opposing a motion for summary judgment shall included a correspondingly numbered paragraph responding to each numbered paragraph in the statement of the moving party, and if necessary, additional paragraphs containing a separate, short and concise statement of the material facts as to which it is contended that there exists a genuine material fact to be tried." Local Rule 56.1(b); see also S.E.C. v. Roor, 2004 WL 1933578, at *2, n. 5 (S.D.N.Y. 2004). In this case, plaintiffs have not submitted any such counter-statement of disputed facts. Plaintiffs have not, in fact, submitted any papers in response to the present motion. Consequently, the undisputed material facts in defendants' 56.1 Statement are deemed admitted to the extent that the evidence cited therein supports the propositions stated. Rule 56.1(c); Giannullo v. City of New York, 332 F.3d 139, 140 (2d Cir. 2003).
Facts
On January 23, 2002, at about 10:00 AM, Probation Officers Elliot Hearsh, Bruce Rudowitz and Jeanine Iorio executed an arrest warrant at 1933 Union Street, Apt. 5-C in Brooklyn, NY, which they believed to be Alexander Dunbar's residence. Defendant Probation Officers were in possession of an arrest warrant for Alexander Dunbar for violating the terms of his probation, which was issued on December 18, 2001. ( See Warrant, Def. Ex. B). The address listed on the warrant was 1933 Union Street, Apt. 5-C, Brooklyn, NY. Mr. Dunbar was previously arrested at that same address for violating his probation. ( See Boruna Memo, Def. Ex. C). Arlene Bartlett and her children had moved into the apartment approximately four months prior to the events giving rise to the present action. ( See id.).
On the morning of January 23, 2002, the defendants spoke to the superintendent of the building, who identified Dunbar as "possibly" a resident of apartment 5-C. ( See Hearsh Memo, Def. Ex. D). Officers also noticed that the family name "Dunbar" was listed for Apartment 5-C on the building directory ( Id.). The building directory was located by the mailboxes near the entrance to the building. (Deposition of Yohan Bartlett at 14). The officers went to Apartment 5-C, knocked on the door, and identified themselves as the "police." After several minutes of knocking, Arlene Bartlett responded "hold on." (Deposition of Arlene Bartlett at 31). Apparently, Arlene Bartlett went to use the bathroom, and the officers continued to knock on the door. ( Id.) Arlene Bartlett then told the officer a second time to "hold on" and that she "was coming." ( Id. at 32; Deposition of Yohan Bartlett at 19). Arlene Bartlett is a Muslim, and she kept the officers waiting for additional time while she got fully dressed. (Deposition of Arlene Bartlett at 32). During this time, the officers continued to knock on the door, and Arlene Bartlett alleges that they informed her that "if [she] didn't open the door, they were going to break in." ( Id.).
The officers then entered the apartment. The manner of this entry is disputed. Defendants contend that no force was used to enter the apartment. (56.1 Statement ¶ 15, n. 1). Arlene Bartlett, however, states in her deposition that "they knocked the door down," which caused damage to the door. (Deposition of Arlene Bartlett at 32). As they entered, the officers stated, "police, we have a warrant." ( Id. at 35). When the officers entered the apartment, Arlene Bartlett put her hands up to prevent them from entering the apartment. (56.1 Statement ¶ 17; Deposition of Arlene Bartlett at 35). Arlene Bartlett does not usually permit visitors to pass beyond a certain point in her apartment while wearing shoes, and she did not want the officers to come all the way into her apartment with their shoes on. (Deposition of Arlene Bartlett at 35, 16-22). Arlene Bartlett was apparently "ticked off" and "yelling" at the officers. ( Id. at 32; Deposition of Yohan Bartlett at 21). Arlene Bartlett then made physical contact with Officer Hearsh. Her "hands touched his body." (56.1 Statement ¶ 20). Officer Hearsh warned Arlene Bartlett "not to touch [him]" and that if she touched him she would be arrested. (Deposition of Arlene Bartlett at 35). Officer Hearsh then took hold of Arlene Bartlett's wrist and pulled her arm behind her back.
Upon hearing the noise, Arlene Bartlett's 17-year old son, Yohan, who had been asleep, entered the living room. ( Id. at 39). Officers Rudowtiz and Iorio were still standing in the doorway or right outside the apartment at this time, but at some point they too entered the apartment. (56.1 Statement at ¶ 24; Deposition of Yohan Bartlett at 23). Arlene Bartlett asked to see the warrant, which the officers showed her, although she contends that "they blocked it . . [so she] didn't get to see anything." (Deposition of Arlene Bartlett at 36). When the Officers asked her about the suspect, Alexander Dunbar, she stated that she didn't know any Dunbar and that they had made a mistake. ( Id.). The female officer (Officer Iorio) also showed Yohan a copy of the warrant. Upon looking at it, Yohan informed her that "they [Dunbar] don't live here anymore." (Deposition of Yohan Bartlett at 22). Then, Arlene Bartlett told Yohan to "get the light bill." Yohan showed a copy of a Verizon bill to Officer Iorio. (Deposition of Yohan Bartlett at 32). Officer Hearsh then let go of Arlene Bartlett's arm. It is not clear how long Arlene Bartlett was held in this position by Officer Hearsh. She was held this way for approximately five minutes. (Deposition of Arlene Bartlett at 43).
Then Officer Hearsh, followed by Yohan Bartlett, walked though the apartment. He looked in Arlene Bartlett's bedroom, the bedroom closet, "peeked in" the other bedroom, the bathroom, and then returned to the living room. (Deposition of Yohan Bartlett at 36-37). While looking in the bedroom and bedroom closet he asked "Who's in here?" ( Id. at 36). After walking through the apartment, the officers left. Yohan Bartlett was not touched or threatened at any time by the officers while they were in the apartment. Except for alleged damage to the door, no other damage occurred. (Deposition of Yohan Bartlett at 40). After the officers left, plaintiffs could not get the door open until the superintendent came and opened it.
DISCUSSION Jurisdiction
This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331, which authorizes jurisdiction over civil action arising under federal law, 28 U.S.C. § 1343, which authorizes jurisdiction over actions rising under 42 U.S.C. § 1983, and principles of pendant jurisdiction over state law claims.
Summary Judgment Standard
Summary judgment is appropriate "[w]hen the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Rule 56 of the Federal Rules of Civil Procedure provides for summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "An issue of fact is genuine it the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Electrical Inspectors, Inc. v. Village of East Hills, 320 F.3d 110, 117 (2d Cir. 2003). A fact is material when it "might affect the outcome of the suit under the governing law." Id.
The party seeking summary judgment has the burden of demonstrating that no genuine issue of material fact exists, Apex Oil Co. v. DiMauro, 822 F.2d 246, 252 (2d Cir. 1987). "Upon a defendant's motion for summary judgment supported by proof of facts entitling the movant to dismissal, . . . [the non-moving party] must set forth specific facts showing there is a genuine issue of material fact for trial." Wyler v. United States, 725 F.2d 156, 160 (2d Cir. 1983). A nonmoving party cannot "rest on the allegations contained in his complaint in opposition to a properly supported summary judgment motion made against him." First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 289 (1968); see also Park Ave. Tower Assoc v. City of New York, 746 F.2d 135, 141 (2d Cir. 1984). Although all facts and inferences therefrom are to be construed in the light most favorable to the non-moving party, the non-moving party must produce more than a scintilla of admissible evidence that supports the pleadings. First Nat'l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 289-90 (1968); Niagara Mohawk Power Corp. v. Jones Chem. Inc., 315 F.3d 171, 175 (2d Cir. 2003). The trial court's function in deciding such a motion is not to weigh the evidence or resolve issues of fact, but to decide instead whether, after resolving all ambiguities and drawing all inferences in favor of the non-moving party, there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986); Pinto v. Allstate Ins. Co., 221 F.3d 394, 398 (2d Cir. 2000).
Plaintiff's Failure to Respond
At the outset, the Court takes note of plaintiffs' failure to respond to the motion. Plaintiffs failed to file any affidavits or sworn statements in opposition to the motion, nor have plaintiffs filed a 56.1 statement. Plaintiffs also have not requested additional discovery under Rule 56(f), which they could have done if they thought defendants' summary judgment motion was premature. See e.g. Scott v. Memorial Sloan-Kettering Cancer Center, 190 F.Supp.2d 590, 595 (S.D.N.Y. 2002). Accordingly, I cannot "view the allegations set forth in plaintiff's complaint as evidence to be considered on summary judgment." Id.
However, plaintiffs' failure to respond to defendants' motion does not mean that defendants automatically prevail. See e.g. Addickes v. S.H. Kress Co., 398 U.S. 144, 160 (1970) (holding that if the party moving for summary judgment fails to meet its burden, summary judgment will be denied even if the non-moving party fails to respond); Giannullo, 322 F.3d at 140 (noting that non-moving party's failure to comply with Local Rule 56.1 "does not absolve the party seeking summary judgment of the burden of showing that it is entitled to judgment as a matter of law.") The moving party must "nevertheless offer facts supporting its Rule 56.1 Statement, and must satisfy the movant's Rule 56 burden." Smith v. Principi, 2004 WL 1857582, at *1, n. 1 (S.D.N.Y. 2004); see also Vermont Teddy Bear Co., Inc. v. 1-800 BEARGRAM Co., 373 F.3d 241, 242 (2d Cir. 2004) ("Even when a motion for summary judgment is unopposed, the district court is not relieved of its duty to decide whether the movant is entitled to judgment as a matter of law.").
Section 1983
Plaintiffs seek to recover under 42 U.S.C. § 1983. To establish liability under Section 1983, plaintiffs must show that (1) the defendant acted under the color of state law, and that (2) as a result of the defendant's actions, the plaintiff suffered a deprivation of rights secured by the Constitution and laws of the United States. Lehman v. Kornblau, 134 F.Supp. 2d 281, 287 (E.D.N.Y. 2001); Annis v. County of Westchester, 136 F.3d 239, 245 (2d Cir. 1998); Eagleston v. Guido, 41 F.3d 865, 872 (2d Cir. 1994). The statute creates no substantive rights but "provides remedies for deprivations of rights established elsewhere." Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985) (plurality opinion). In this case, the first element is undisputed, because the actions giving rise to plaintiffs' claims were committed by the probation officer defendants in the course of duty. See Daniels v. Williams, 474 U.S. 327 (1986) (finding that a public employee acts under color of state law while acting in his official capacity or while exercising his responsibilities pursuant to state law). The following discussion focuses on the second element.
Fourth Amendment Claims
Plaintiffs make several claims relating to the entry and search of their apartment. Specifically, plaintiffs claim that the defendants violated their Fourth Amendment rights by false arrest, unlawful entry, unlawful seizure and detention, use of excessive force, illegal search and seizure, invasion of privacy, and destruction of property. (Complaint at 5). Defendants argue that they are entitled to summary judgment as to these claims because the defendants were acting pursuant to a valid arrest warrant. (Def. Memo at 5).
Unlawful Entry and Search Claims
It should be noted first that plaintiffs do not challenge the validity of the arrest warrant. Generally, the police do not need a search warrant to enter a suspect's home when they have an arrest warrant for the suspect. United States of America v. Lauter, 57 F.3d 212, 214 (2d. Cir 1995) (citing Payton v. New York, 445 U.S. 573, 603 (1980)). "An arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within." Payton, 445 U.S. at 603 (1980). "Agents may enter a suspect's residence, or what they have reason to believe is his residence, in order to effectuate an arrest warrant where reasonable belief exists that the suspect is present." Id. (citing United States v. Terry, 702 F.2d 299, 319 (2d Cir.) Cert denied, 461 U.S. 931 (1983)). Thus officers who enter a dwelling in order to execute a valid arrest warrant need only a "reasonable belief that the suspect resides at the place to be entered to execute an arrest warrant," and a reasonable belief that "the suspect is present." Lauter, 57 F.3d at 215; see also United States v. Lovelock, 170 F.3d 339, 343 (2d Cir. 1999). This "reasonable belief" standard is less stringent than a probable cause standard. See Lauter, 57 F.3d at 215; see also United States v. Manley, 632 F.2d 978, 983 (2d Cir. 1980) ("the `reasonable belief' standard . . . may require less justification than the more familiar probable cause standard"). "So long as the authorities have a reasonable belief that a suspect will be found at a given residence, it is not necessary that the belief also be correct." Anderson v. U.S., 107 F.Supp. 2d 191, 196 (E.D.N.Y. 2000) (citing Lovelock, 170 F.3d at 342).
I conclude that defendants possessed the requisite reasonable belief that Mr. Dunbar resided in the apartment and that he was present. The arrest warrant, which was issued one month prior to the disputed entry, listed 1933 Union Street, Apt. 5-C, Brooklyn, New York as the address where Mr. Dunbar could be found. (See Warrant, Ex. B). Moreover, the fact that it was a probation warrant further supports the belief that the listed address was accurate. See Lovelock, 170 F.3d at 344 (noting "probation warrants . . . commonly showed current addresses when issued" and "that probationers are required to report to their probation officers any change of residence").
In addition, upon entering the apartment building, the officers spoke with the superintendent of the building who identified Mr. Dunbar as "possibly" a resident living in 5-C. They also observed that the name "Dunbar" listed on the building directory for Apartment 5-C. (Hearsh Memo, Ex. D). Finally, Mr. Dunbar had been previously arrested at this address for violating his probation. Given the "totality of information" they possessed, defendants had a reasonable belief that Mr. Dunbar resided in the apartment. Lovelock, 170 F.3d at 344 ("Though Lovelock attempts to segment, isolate and minimize each item of evidence . . . the totality of the information possessed by the officers" led to their reasonable belief).
In determining whether defendants had a reasonable belief that the subject of an arrest warrant was present in his residence at the time of the entry, "courts must be sensitive to common sense factors indicating a resident's presence." Valdez v. McPheters, 172 F.3d 1220, 1226 (10th Cir. 1999). "Direct surveillance or the actual viewing of the suspect on the premises is not required" prior to entry. Id. at 1226; see also United States v. Magluta, 44 F.3d 1530, 1535-1538 (11th Cir. 1995). In this case, the officers heard voices and sounds of occupants inside the apartment, and received a response of "hold on." See e.g. United States v. Route, 104 F.3d 59, 63 (5th Cir. 1997) (reasonable belief where officers heard television inside the house and observed a car in the driveway). These constitute common sense factors indicating the resident's presence.
Officer Hearsh's quick walk through the apartment does not constitute an unlawful search "as police had the right, based on the authority of the arrest warrant, to search anywhere in the house that [the suspect] might have been found . . ." Marland v. Buie, 494 U.S. 325, 330 (1990). The deposition testimony of Yohan Bartlett suggests that Officer Hearsh's search was cursory and limited to places in the house where the suspect might be found, such as the two bedrooms, the bathroom and the bedroom closet. Also, Yohan Bartlett's description of Officer Hearsh's statements during the search, such as "who's in here," suggest that he was, in fact, searching for the suspect pursuant to a valid arrest warrant. Williams v. Collins, 1996 WL 748354, at *3 (E.D.N.Y. 1996) (finding the search of a bedroom pursuant to the in-home arrest of a parole violator to be unconstitutional because the arresting officer stated he was looking for "weapons and drugs," which the court found to be "qualitatively different than a search for a person.") The officers "vacated the premises shortly after the conclusion of the search and they did not unreasonably prolong the search after they determined that they had entered the wrong apartment." Lewis v. City of Mount Vernon, 984 F.Supp. 748, 756 (finding no evidence that officers unreasonably continued to search after they knew they were in the wrong apartment). Accordingly, defendants are entitled to summary judgment as to these claims.
Unlawful Destruction of Property
Plaintiffs allege that defendants' forced entry into the apartment constituted unlawful destruction of property. Defendants argue that even accepting plaintiffs' allegations as true, they are still entitled to summary judgment because their actions satisfy 18 U.S.C. § 3109, which sets forth the circumstances under which an officer may lawfully break into a house to execute an warrant.
"It is well recognized that officers executing search warrants on occasion must damage property in order to perform their duty." Cody v. Mello, 59 F.3d 13, 16 (2d Cir. 1995) (citing Dalia v. United States, 441 U.S. 238, 258 (1979)). "Congress has made specific provisions for use of force in certain instances to gain entrance to locked premises or interior rooms." Id.; see also 18 U.S.C. § 3109. "Before any due process liability can be imposed for property damage occurring in a lawful search, it must be established that the police acted unreasonably or maliciously in bringing about the damage." Cody, 59 F.3d at 16; see also Stone v. Agnos, 960 F.2d 893, 895-96 (9th Cir. 1992).
Section 3109 permits an officer to "break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute search warrant, if, after notice of his authority and purpose, he is refused admittance . . ." 18 U.S.C. § 3109 (2004). Although on its face, the statutory language covers only the execution of a search warrant, it has been held to apply to a "valid arrest pursuant to an arrest warrant in a residence," as is the case here. United States v. Alejandro, 368 F.3d 130, 133 (2d Cir. 2004); see also United States v. Reyes, 922 F.Supp. 818, 823 (S.D.N.Y. 1996) (citing Sabbath v. United States, 391 U.S. 585, 588 (1968)). Furthermore, this statute is applicable to the conduct of state actors, since "the federal statutory and constitutional standard is the same . . ." United States v. Tinsdale, 195 F.3d 70, 73 (2d Cir. 1999) (citing United States v. Ramirez, 523 U.S. 65 (1998)).
In any event, plaintiffs do not argue that the New York standard is more stringent than the federal one. The New York statute governing forced entries pursuant to an arrest warrant is similar to the federal statute: "If the officer is authorized to enter premises without giving notice of his authority and purpose, or if after giving such notice he is not admitted, he may enter such premises, and by a breaking if necessary." N.Y.C.P.L. § 120.80 (5) (2004).
Moreover, the requirement that officers "be refused admittance before forcing an entry does not require an affirmative refusal, but is satisfied when the circumstances permit the agents to reasonably infer that they have been refused admittance." United States v. Reyes, 922 F.Supp. 818, 823 (S.D.N.Y. 1996); United States v. Bonner, 874 F.2d 822, 824 (D.C. Cir. 1989); see also United States v. James, 528 F.2d 999, 1017 (5th Cir.) ("Failure to respond within a reasonable time is tantamount to refusal. A reasonable time is ordinarily very brief."), cert. denied, 429 U.S. 959 (1976). "In making such judgments, courts employ a highly contextual analysis, examining all the circumstances of the case, to determine whether the record establishes the existence of a constructive refusal." Bonner, 874 F.2d at 824.
The officers knew that persons were inside the apartment and the timing of the warrant's execution was at 10 A.M., a time when it is reasonable to assume that the occupants are awake. See Bonner, 874 F.2d at 824 (noting that "under these circumstances, the possibility that those within did not hear or would not respond promptly (if desiring to respond) is slight indeed."). Moreover, according to Arlene Bartlett's deposition testimony, she heard the officers knock on the door and announce themselves as the "police." Although Arlene Bartlett eventually responded "hold on," she still did not open the door for several minutes, during which the officers continued knocking. (Deposition of Arlene Bartlett at 31). See e.g. United States v. DeLutis, 722 F.2d 902, 909 (1st Cir. 1983) (finding that after announcement, "generally, a wait of 20 seconds is deemed adequate before the officers may force entry"); United States v. Davis, 617 F.2d 677, 695 (D.C. Cir. 1979) (entrance after 15-30 seconds). Moreover, while the officers continued to knock and wait, Arlene Bartlett was moving about the apartment — going to and from the bathroom, and getting dressed. Officers hearing the activity inside the apartment could have reasonably believed that the suspect they were trying to apprehend was trying to flee. Bonner, 874 F.2d at 825-26 (noting that "officers heard sounds consistent with refused admittance and destruction of the object of the search."). Thus, defendants' use of force in entering the apartment was reasonable. Accordingly, defendants are entitled to summary judgment as to this claim.
False Arrest, Unlawful Detention, Excessive Force
Plaintiffs also contend that defendants falsely arrested Arlene Bartlett, unlawfully detained her, and used excessive force when Officer Hearsh grabbed her wrist and twisted her arm behind her back. There is no evidence in the record that Arlene Bartlett was ever formally placed under arrest. It is also undisputed that she was never handcuffed by the defendants.
In Michigan v. Summers, 452 U.S. 692, 705 (1981), the Supreme Court held that a search warrant for a house "implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted." See also Rivera v. United States, 928 F.2d 592, 606 (2d Cir. 1991) ("[P]olice have authority to detain occupants of premises while an authorized search is in progress, regardless of individualized suspicion"). The "risk of harm to both the police and the occupants is minimized if the officers routinely exercise unquestioned command of the situation." Michigan, 452 U.S. at 705. The detention of the occupants must be limited, however, and must be "substantially less intrusive" than an arrest." Id. at 702 "Thus a detention under the present circumstances is constitutional so long as the means used to effectuate it are as minimally intrusive as possible to achieve the end of securing the home, preventing flight from the premises and ensuring the safety of officers and occupants." United States v. Pichardo, 1992 WL 249964, at *5 (citing Michigan, 452 U.S. at 702-03). Courts have applied the Michigan v. Summers analysis to cases in which the detention occurred pursuant to officers' enforcement of a valid arrest warrant. See e.g. Pichardo, 1992 WL at *5; Anderson, 107 F.Supp.2d at 197 (finding that plaintiff was detained for a reasonable period of time while the arrest warrant was being executed and the premises secured). The circumstances surrounding the detention must be viewed "through the eyes of a reasonable and cautious police officer on the scene guided by his experience and training." United States v. Barlin, 686 F.2d 81, 87 (2d Cir. 1982).
However, even if lawfully detained, a person has a constitutional right to be free from the use of excessive force. Graham v. Connor, 490 U.S. 386, 394 (1989). "All claims that law enforcement officers have used excessive force . . . in the course of an arrest, investigatory stop, or other `seizure' of a free citizen should be analyzed under the Fourth Amendment that its `reasonableness' standard." Lennon v. Miller, 66 F.3d 416, 425 (2d Cir. 1995) (quoting Graham, 490 U.S. at 395). In assessing whether the force used was reasonable, a court must take into account "totality of circumstances faced by the officer on the scene," Lennon, 66 F.3d at 425, including the fact that "the officer may have been required to make a split-second decision." Lowth v. Town of Cheektowaga, 82 F.3d 563, 574 (2d Cir. 1996). "Not every push or shove, even if it may later seem unnecessary in this peace of a judge's chambers, violated the Fourth Amendment." Graham, 490 U.S. at 396.
In this case, Arlene Bartlett used her hands in an attempt to prevent the officers from walking into the apartment, yelled at the officers, was "ticked off," because she believed the officers would search her apartment while wearing their shoes. (Deposition of Arlene Bartlett at 32, 4; 35, 16-22). Arlene Bartlett made physical contact with Officer Hearsh prior to his taking her arm and putting it behind her back. Given the totality of circumstances, including Arlene Bartlett's attempts to prevent officers' entry into her home and her physical contact with Officer Hearsh, as well as the fact that she was not handcuffed and her detention lasted no more than a few minutes, I find that the detention of Arlene Bartlett was reasonable and minimally intrusive, and that the force used by Officer Hearsh was not unreasonable. See e.g. Pichardo, 1992 WL at *5; see also Florida v. Royer, 460 U.S. 491, 500 (1983). Accordingly, defendants are entitled to summary judgment as to these claims.
Plaintiffs further allege that defendants are liable for having failed to intervene to prevent the alleged constitutional violations. "It is axiomatic that if it was objectively reasonable for plaintiff[s] to have undertaken the very conduct that they are claimed to have failed to prevent, that failure too must have been objectively reasonable." Paulino v. U.S., 1996 WL 457303, at *5 (S.D.N.Y. 1996). Consequently, defendants are entitled to summary judgment on the claim of failure to intervene.
Plaintiffs are presumably referring to the failure of Officers Iorio and Rudowitz to intervene during Officer Hearsh's allegedly unconstitutional actions.
Qualified Immunity
Finally, even supposing the defendant probation officers had not been entitled to summary judgment on the underlying constitutional claims, they are nonetheless entitled to summary judgment on qualified immunity grounds. The qualified immunity doctrine shields "government officials performing discretionary functions . . . from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); X-Men Security, Inc. V. Pataki, 196 F.3d 56, 65-65 (2d Cir. 1999).
The question of qualified immunity is independent from the merits of the underlying action and must be examined independently of the underlying claims. See Saucier 533 U.S. at 207 (2001); Washington Square Post No. 1212 v. Maduro, 907 F.2d 1288, 1292 (2d Cir. 1990) ( citing Mitchell v. Forsyth, 472 U.S. 511, 527-28). Moreover, because "the entitlement is an immunity from suit rather than a mere defense to liability," Mitchell, 472 at 526, the Supreme Court has "repeatedly stressed the importance of resolving immunity questions at the earliest possible stage in litigation." Saucier, 533 U.S. at 201 (noting that "to deny summary judgment any time a material issue of fact remains [on the underlying constitutional claim] could undermine the goal of qualified immunity . . . to permit the resolution of many insubstantial claims on summary judgment"); see also Hunter, 502 U.S. at 227 (1991).
A government official sued in his individual capacity is entitled to qualified immunity in any of three circumstances: "(1) if the conduct attributed to him is not prohibited by federal law . . .; or (2) where that conduct is so prohibited, if the plaintiff's right not to be subjected to such conduct by the defendant was not clearly established at the time of the conduct . . .; or (3) if the defendant's action was objective[ly] legal[ly] reasonable . . . in light of the legal rules that were clearly established at the time it was taken." X-Men Security, Inc., 196 F.3d at 65-66; Harlow, 459 U.S. at 817-819. The "qualified immunity standard gives ample room for mistaken judgments by protecting all but the plainly incompetent or those who knowingly violate the law." Hunter v. Bryant, 502 U.S. 224, 229 (1991).
The rights at issue in this case to be free from false arrest, unlawful entry, unlawful seizure and detention, illegal search and seizure, invasion of privacy, excessive force, and destruction of property — were clearly established at the time of the incident. However, the "objective reasonableness" test is met, and defendants are entitled to qualified immunity if "reasonably competent officials could disagree" as to whether the conduct at issue would violate clearly established rights. Malley v. Briggs, 475 U.S. 335, 341 (1986); Cartier v. Lussier, 955 F.2d 841, 846 (2d Cir. 1992); Lennon v. Miller, 66 F.3d 416, 420 (2d Cir. 1995). For reasons discussed in the previous sections, it was, at the very least, "objectively reasonable" for the defendant officers to believe that their conduct was lawful at the time of the challenged acts. See Lennon, 66 F.3d at 420. That is, "a rational jury could not find that the officer's judgment was so flawed that no reasonable officer would have made a similar choice." Id., at 424-25. Accordingly, defendant probation officers are entitled to qualified immunity and summary judgment on this ground as well.
Claims Against the City of New York
Plaintiffs allege that the City of New York violated their rights under the First, Fourth, Ninth and Fourteenth Amendments. Specifically, plaintiffs allege that the City of New York failed to "adequately discipline, train, supervise, or otherwise direct probation officers concerning the rights of citizens, thereby causing the defendants in this case" to engage in unlawful conduct. (Compl. at 12).
A plaintiff who seeks to hold a municipality liable for damages under Section 1983 must prove that the municipality was, in the language of the statute, the "person who . . . subject[ed], or caus[ed] [plaintiff] to be subjected" to the deprivation of her constitutional rights. Vippolis v. Village of Haverstraw, 768 F.2d 40, 44 (2d Cir. 1985), cert. denied, 480 U.S. 916 (1987); see also Monell v. Department of Social Services, 436 U.S. 658, 690-91 (1978). Namely, the plaintiff must "first, prove the existence of a municipal policy or custom in order to show that the municipality took some action that cause his injuries beyond merely employing the misbehaving officers[s]" and "second, plaintiff must establish a causal connection — an `affirmative link' — between the policy and the deprivation of his constitutional rights." Id., (citing Oklahoma City v. Tuttle, 471 U.S. 808, 824, n. 8).
In City of Canton v. Harris, 489 U.S. 378 (1989), the Supreme Court addressed the dimensions of municipal liability for failure to train or supervise. "A claim of inadequate training will trigger municipal liability only where the failure to train amounts to deliberate indifference to the rights of those with whom municipal employees will come into contact." Walker v. City of New York, 974 F.2d 293, 297 (2d Cir. 1992); Canton, 489 U.S. at 388. To establish deliberate indifference, a plaintiff must make a three-part showing: (1) "the employer knows `to a moral certainty' that her employees will confront a given situation;" (2) "the situation either present[ed] the employee with a difficult choice of the sort that training or supervision will make less difficult or that there is a history of employees mishandling the situation;" (3) "the wrong choice by the city employee will frequently cause the deprivation of a citizen's constitutional rights." Walker, 974 F.2d at 297-98.
Here, plaintiffs have made no showing that would support a finding of deliberate indifference. Plaintiffs offer only conclusory allegations that the City failed to properly train, supervise and discipline probation officers. As the Supreme Court concluded in Tuttle, proof of a single incident is not sufficient to establish either that the municipality has a policy of inadequate training of police officers or that such a policy caused the plaintiff's injury. See Vippolis, 768 F.2d at 44; Tuttle, 471 U.S. at 821-22. Accordingly, defendant City of New York is entitled to summary judgment as to all 1983 claims.
Plaintiffs' claims against "unidentified probation officers" who supervised the defendants are also dismissed. In this Circuit, "personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983." McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir. 1977), cert. denied, 434 U.S. 1087 (1978). "Thus, unless an individual is named as a defendant in the complaint, no § 1983 liability may be imposed upon such nonparty, based upon such person's conduct." New Creation Fellowship of Buffalo v. Town of Cheektowaga, 2004 WL 1498190 (W.D.N.Y. 2004); see also Hendrickson v. United States Attorney General, 1994 WL 23069 (S.D.N.Y. 2004) (civil rights complaint must allege facts against "named individuals.")
State Law Claims
Having dismissed plaintiffs' underlying federal claims, I also dismiss plaintiffs' remaining state law claims of assault and battery, false arrest and imprisonment, trespass and unlawful search, negligent trespass, detention and confinement, and Defendant City of New York's negligent hiring, retention and training. See Lemmon, 66 F.3d at 426; United Mine Workers of America v. Gibbs, 383 U.S. 715, 726 (1996) ("[I]f the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well."); Grondahl v. Merritt Harris, Inc., 964 F.2d 1290, 1294 (2d Cir. 1992) (same); Carnegie-Mellon, 484 U.S. 343, 350 n. 7 (1988) (when "all federal-law claims are eliminated before trial, the balance of factors to be considered under pendant jurisdiction doctrine-judicial economy, convenience, fairness, and comity — will point toward declining to exercise jurisdiction over the remaining state-law claims.")CONCLUSION
For the aforementioned reasons, defendants' motion for summary judgment is granted. The clerk is directed to enter judgment in favor of defendants and dismiss the complaint in its entirety and to mail a copy of this opinion to counsel for all parties.
SO ORDERED.