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finding that even if police officers' initial stop was unlawful, "once the [contraband] was revealed . . . there existed probable cause" to believe the plaintiff committed a crime
Summary of this case from Garcia v. City of N.Y.Opinion
00 Civ. 8311 (LAK) (GWG)
February 25, 2002
REPORT AND RECOMMENDATION
On October 31, 2000, James McDermott filed this action pro se alleging various claims arising out of his arrest and prosecution for possession of an open container of alcohol. The complaint names as defendants the City of New York; the New York Police Department (NYPD); Rudolph Giuliani, Mayor of New York City; Howard Safir, Police Commissioner for the NYPD; Joseph P. Dunne, Department Chief of the NYPD; Police Officer William Hart; Sergeant "Jane Doe"; and Police Officer "John Doe." Defendants have moved to dismiss the complaint in part pursuant to Federal Rule of Civil Procedure Rule 12(b)(6) for failure to state a claim upon which relief can be granted.
Facts
For purposes of the motion to dismiss, all facts in the complaint are assumed to be true.
On the evening of September 18, 1999, while walking north on Seventh Avenue, McDermott stopped at a store on Seventh Avenue and 23rd Street and purchased "a beverage in a can wrapped with a brown paper bag for the purpose of keeping the identity of the beverage private with respect to all curious observers." Complaint ¶ 29; see also id. ¶¶ 25, 26, 30. He turned west on 23rd Street and walked towards Eighth Avenue. See id. ¶ 31. McDermott stopped to read items posted on a movie theater ticket box located on 23rd Street. See id. ¶¶ 31, 32.
As McDermott started to walk away from the ticket box, "he heard the loud voice of Jane Doe a NYPD sergeant sitting in a Precinct Sector Car with two males also uniformed NYPD officers." Id. ¶ 32. Officer John Doe was driving the sector car. See id. ¶ 23. While sitting in the car, Sergeant Doe was waving her arm and "ordered plaintiff to stop walking and to approach her sector car." Id. ¶ 33. Sergeant Doe then ordered Officer Hart "to view whatever plaintiff had in the plain brown paper bag." Id. ¶ 34. McDermott told the officer, "its [sic] only a soda." Id. ¶ 35. Sergeant Doe told Officer Hart, "ask him to let you see it," and when Officer Hart asked, McDermott refused by saying, "due to the right of privacy I would be perfectly correct in denying the request and in fact I prefer to do so." Id. ¶¶ 36, 37.
Officer Hart told Sergeant Doe, "we can't see it because it's private." Id. ¶ 38. Sergeant Doe then came out of the car and said, "you're under arrest," to McDermott and "put him under arrest" to Officer Hart. Id. ¶ 38. McDermott "requested a confirmation from the sergeant as to whether or not he was really under arrest." Id. ¶ 39. Sergeant Doe informed McDermott that he was "really under arrest"; McDermott stated he would not resist the arrest and then surrendered the brown paper bag to Officer Hart. Id. ¶ 40. Officer Hart took the brown paper bag, looked inside, and said, "it's a beer." Id. ¶ 41. Sergeant Doe said, "give that bag to me," and "put the handcuffs on him." Id. ¶ 42. Officer Hart put handcuffs on McDermott while Sergeant Doe emptied the can into the street. Id. ¶ 43. The Property Clerk's invoice attached to McDermott's Complaint indicates that the officers recovered an "Empty 16 oz. Can of Budweiser" and "1 Brown Paper Bag" from McDermott. Id. ¶ 46; Complaint's first exhibit (unnumbered).
McDermott was transported to the 10th Precinct where he was detained in a jail cell. Id. ¶ 45. McDermott was "prohibited from the use of a toilet after numerous requests causing plaintiff to urinate on the jail cell wall to relieve his very painful condition." Id. ¶ 47. McDermott is "a septuagenarian" and has problems with his prostate. See id. ¶¶ 48, 49. Officer Hart brought rags, soap, and a pail of water and ordered McDermott to clean up the urine on the ground. See id. ¶ 50.
McDermott was taken from the cell between 7:00 and 9:00 p.m. to have his photograph and fingerprints taken at the station, but McDermott refused to cooperate. See id. ¶ 51. McDermott was then taken from the cell to be transported to Central Booking for arraignment. Id. ¶ 52. While waiting to be transported, Sergeant Doe "offered to release the plaintiff but only if he would accept a summons." Id. ¶ 53. McDermott demanded he be released but refused to accept a summons. Id. ¶ 54.
McDermott was taken to Central Booking, but was not admitted because he is a diabetic with high blood pressure; he was then transported by the NYPD to Bellevue Medical Center where he was given medication for his condition. See id. ¶¶ 57, 58. He was given medication "comparable to what he was taking" but without a warning that it was "much stronger than what he was taking at present." Id. ¶ 58. Around midnight, McDermott was taken back to Central Booking. See id. ¶ 59.
At Central Booking, McDermott was again asked to submit to fingerprinting and photographs. See id. ¶ 71. This time he agreed to the request and then was transferred to the Criminal Court building. See id. ¶¶ 71, 72. There, he met with a Legal Aid attorney. See id. ¶¶ 73. McDermott was arraigned and pled not guilty to the open-container charge. See id. ¶¶ 73, 74. At a subsequent court appearance, on October 25, 1999, the prosecution moved to dismiss the charge on the ground that it could not be proven beyond a reasonable doubt, although the presiding judge ordered that it be dismissed on speedy trial grounds. See id. ¶¶ 76, 77.
McDermott believes he was in custody for approximately twenty-seven hours following his arrest on September 19, 1999. See id. ¶ 74. During that time, he was fed "four to five bologna sandwiches with four to five one-half pints of milk in about sixteen (16) hours." Id. ¶ 69. Also, McDermott stated that "eight (8) hours after receiving the medication from Belview [sic] Hospital for tachycardia (pulse beats over 100) Plaintiff was fighting off the symptom of bradycardia (pulse beats less than 60) fearing that should he fall asleep his pulse rate would drop below 60 bpm." Id. ¶ 70.
McDermott's complaint alleges a cause of action under 42 U.S.C. § 1983 in which he asserts that he was deprived of the following constitutional rights:
a. Freedom from invasion of privacy without probable cause;
b. Freedom from deprivation of liberty without due process of law;
c. Freedom from being falsely arrested;
d. Freedom from the use of excessive and unreasonable force;
e. Freedom from summary punishment.
Complaint, ¶ 82. He also alleges a number of separate causes of action for violation of the "Exclusionary Rule," id. ¶¶ 85-89; assault, id. ¶¶ 90-92; battery, id. ¶¶ 93-95; false imprisonment, id. ¶¶ 96-99; false arrest, id. ¶¶ 100-102; and malicious prosecution, id. ¶¶ 103-106.
On April 30, 2001, the defendants moved to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted. On June 25, 2001, McDermott submitted a "Notice of Motion" in opposition to the defendants' motion, including an affirmation and a memorandum of law, and on July 9, 2001, defendants submitted a memorandum of law in reply. Following oral argument on July 23, 2001, the Court ordered the parties to further brief the issue of the validity of treatment of McDermott at the time of the initial stop, with particular emphasis on the officer's statement to McDermott that he was under arrest and his order to surrender the wrapped can (hereinafter, the "stop claim"). The defendants submitted a letter on August 3, 2001, on this topic and McDermott responded on August 13, 2001.
Following an additional conference, the defendants on January 18, 2002, submitted a motion for partial summary judgment solely on the stop claim. McDermott responded by a "Notice of Motion in Opposition" dated January 21, 2002, including an affirmation and a memorandum of law. On January 31, 2002, the defendants wrote to the Court stating that McDermott's submission had "raised facts that would create a question of fact as to plaintiff's claim that he was unlawfully stopped." The defendants stated that they therefore "cannot proceed with their motion for summary judgment." The defendants also requested that the matter be set down "for further proceedings as to the unlawful 'stop' claim only."
In a February 20, 2002, telephone conference, the defendants' attorney clarified that they were withdrawing their motion to dismiss as to the stop claim on behalf of all defendants and as to all grounds.
Given defendants' request, the defendants' motion for partial summary judgment has been deemed withdrawn. In addition, the Court will not consider the motion to dismiss to the extent it seeks to dismiss or otherwise challenge the "stop claim."
DISCUSSION
Law Governing Motions to Dismiss
On a defendant's motion to dismiss under Fed.R.Civ.P. 12(b)(6), all allegations contained in the plaintiff's complaint are taken as true and all inferences are drawn in the plaintiff's favor. See Papasan v. Allain, 478 U.S. 265, 283 (1986); IUE-AFL CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1058 (2d Cir. 1993), cert. denied, 513 U.S. 822 (1994); Hertz Corp. v. City of New York, 1 F.3d 121, 125 (2d Cir. 1993), cert. denied, 510 U.S. 1111 (1994). Dismissal is appropriate only if "'it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim[s] which would entitle him to relief.'" Tarshis v. Riese Org., 211 F.3d 30, 35 (2d Cir. 2000) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). In deciding a Rule 12(b)(6) motion, a court can only consider those matters contained in the complaint, the documents attached to the complaint, and matters of which a court takes judicial notice. See Valmonte v. Bane, 18 F.3d 992, 998 (2d Cir. 1994); Kramer v. Warner, Inc., 937 F.2d 767, 773 (2d Cir. 1991); CIBC Bank and Trust Co. (Cayman) Ltd. v. Banco Cent. do Brasil, 886 F. Supp. 1105, 1108 (S.D.N.Y. 1995).
Moreover, when considering motions to dismiss the claims of a plaintiff proceeding pro se, pleadings must be construed liberally. See, e.g., Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (a pro se complaint may not be dismissed under Rule 12(b)(6) unless "'it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'") (quoting Conley, 355 U.S. at 45-46); Lerman v. Board of Elections, 232 F.3d 135, 140 (2d Cir. 2000), cert. denied, 121 S. Ct. 2520 (2001); Flaherty v. Lang, 199 F.3d 607, 612 (2d Cir. 1999). This is especially true when dealing with a civil rights complaint. See id.; Tarshis, 211 F.3d at 35.
Law Governing Claims Under 42 U.S.C. § 1983
McDermott alleges a violation of his civil rights under 42 U.S.C. § 1983 on the grounds that the defendants violated his "freedom from invasion of privacy without probable cause," "freedom from deprivation of liberty without due process of law," "freedom from being falsely arrested," "freedom from the use of excessive and unreasonable force," and "freedom from summary punishment." Complaint ¶ 82.
Section 1983 states that
[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
To state a claim under 42 U.S.C. § 1983, a plaintiff "must allege (1) that the conduct complained of was committed by a person acting under color of state law, and (2) that such conduct deprived the plaintiff of a right, privilege, or immunity secured by the Constitution or laws of the United States." Dwyer v. Regan, 777 F.2d 825, 828 (2d Cir. 1985), modified, 793 F.2d 457 (1986); see also Gomez v. Toledo, 446 U.S. 635, 640 (1980); Finley v. Giacobbe, 79 F.3d 1285, 1296 (2d Cir. 1996). Section 1983 does not in and of itself create any substantive rights; rather the plaintiff must demonstrate a violation of an independent federal constitutional or statutory right. See Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 617-18 (1979).
A claim brought under § 1983 must set forth specific allegations and not merely make conclusory statements. See, e.g., Martin v. New York State Dep't of Mental Hygiene, 588 F.2d 371, 372 (2d Cir. 1978) ("a complaint consisting of nothing more than naked assertions, and setting forth no facts upon which a court could find a violation of the Civil Rights Acts, fails to state a claim under Rule 12(b)(6)"); accord Kern v. City of Rochester, 93 F.3d 38, 44 (2d Cir. 1996) ("'A conclusory allegation . . . without evidentiary support or allegations of particularized incidents, does not state a valid claim.'") (quoting Butler v. Castro, 896 F.2d 698, 700 (2d Cir. 1990)), cert. denied, 520 U.S. 1155 (1997); Julian v. New York City Transit Auth., 857 F. Supp. 242, 249 (E.D.N.Y. 1994) (claim brought under § 1983 must set forth "highly specific allegations and not merely conclusory allegations"), aff'd, 52 F.3d 312 (1995).
As described below, McDermott has identified a number of constitutional provisions that he asserts were violated by the defendants based on the acts described in the complaint. There is no dispute that the defendants were acting under color of law.
Fourth Amendment, False Arrest, Exclusionary Rule and Malicious Prosecution Claims
The bulk of McDermott's claims revolve around his arrest and subsequent prosecution on the Open Container charge. Thus he asserts that he was the victim of "Invasion of Privacy Without Probable Cause"; that his liberty was curtailed "without due process of law," that he was "falsely arrested"; that the "Exclusionary Rule" was violated; and that he was the subject of a malicious prosecution. See Complaint, ¶ 82(a), (b), (c); ¶ 86. These claims all derive from McDermott's allegation that he was improperly arrested on 23rd Street by Officer Hart for the Open Container violation and subsequently prosecuted in Criminal Court.
To state a claim under New York common law or Section 1983 for false arrest or imprisonment,
[the] plaintiff must demonstrate that defendant intended to confine him, he was conscious of the confinement, he did not consent to the confinement, and the confinement was not otherwise privileged. See Singer v. Fulton County Sheriff, 63 F.3d 110, 118 (2d Cir.1995). An arrest made on probable cause is privileged, and probable cause exists "when the arresting officer has knowledge or reasonably trustworthy information sufficient to warrant a person of reasonable caution in the belief that an offense has been committed by the person to be arrested." Id. at 119 (internal quotation marks omitted).
Shain v. Ellison, 273 F.3d 56, 67-68 (2d Cir. 2001). "The existence of probable cause to arrest constitutes justification and 'is a complete defense to an action for false arrest,' whether that action is brought under state law or under § 1983." Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996) (quoting Bernard v. United States, 25 F.3d 98, 102 (2d Cir. 1994)). Similarly, a plaintiff must show the absence of probable cause to make out a claim of malicious prosecution. See, e.g., Bonide Prods., Inc. v. Cahill, 223 F.3d 141, 145 (2d Cir. 2000) (in malicious prosecution claim, plaintiff must show no probable cause for the criminal proceeding) (citing Posr v. Doherty, 944 F.2d 91, 100 (2d Cir.1991)). Probable cause exists "when an officer has 'knowledge or reasonable trustworthy information sufficient to warrant a person of reasonable caution in the belief that an offense has been committed by the person to be arrested.'" Curley v. Village of Suffern, 268 F.3d 65, 69-70 (2d Cir. 2001) (quoting Martinez v. Simonetti, 202 F.3d 625, 634 (2d Cir. 2000)). Thus, in order to prevail on his claims, McDermott's arrest and subsequent prosecution would have to have been lacking in probable cause.
As noted, the defendants are not at this time moving with respect to the unlawful stop claim. The Court thus leaves untouched for the moment any claim being made by McDermott for the period between the time he was first spoken to by Sergeant Doe, Complaint ¶ 33, up until the moment he handed over the can of beer after being told he was under arrest, whereupon the can's wrapper was removed and its contents poured onto the sidewalk, Complaint ¶¶ 40-43. Accordingly, McDermott's detention for this period — described by Mr. McDermott in a telephone conference as lasting a matter of "seconds" — remains to be litigated in this case.
Once the can of beer was revealed to the officers, however, there existed probable cause to believe that McDermott had violated New York City Administrative Code § 10-125. This statute provides that: "No person shall . . . possess, with intent to drink or consume, an open container containing an alcoholic beverage in any public place except at a block party, feast or similar function for which a permit has been obtained." Id. § 10-125(b). The statute contains a presumption that "[p]ossession of an open container containing an alcoholic beverage by any person shall create a rebuttable presumption that such person did intend to consume the contents thereof in violation of this section." Id. § 10-125(c). This statute has been enforced by the New York courts, see, e.g., People v. Bothwell, 261 A.D.2d 232, 690 N.Y.S.2d 231 (1st Dep't 1999), and a similarly-worded statute has been held constitutional. See People v. Elhage, 147 A.D.2d 911, 537 N.Y.S.2d 375 (4th Dep't 1989). New York Courts have recognized that where probable cause exists to arrest someone in violation of an Open Container statute, an officer may do so. People v. Pantusco, 107 A.D.2d 854, 484 N.Y.S.2d 321 (3d Dep't 1985). While McDermott complains generally about City's decision to enforce the Open Container law, he offers no constitutional basis for questioning the validity of the Open Container statute itself and the Court is aware of none.
The full text of the provision (excluding a final, misnumbered subsection not relevant to this case) is as follows:
§ 10-125. Consumption of alcohol on streets prohibited.
a. Definitions. Whenever used in this section, the following terms are defined as follows:
1. Alcoholic beverage. Any liquid intended for human consumption containing more than one-half of one percent (.005) of alcohol by volume.
2. Public place. A place to which the public or a substantial group of persons has access including, but not limited to, any highway, street, road, sidewalk, parking area, shopping area, place of amusement, playground, park or beach located within the city except that the definition of a public place shall not include those premises duly licensed for the sale and consumption of alcoholic beverages on the premises or within their own private property. Such public place shall also include the interior of any stationary motor vehicle which is on any highway, street, road, parking area, shopping area, playground, park or beach located within the city.
b. No person shall drink or consume an alcoholic beverage, or possess, with intent to drink or consume, an open container containing an alcoholic beverage in any public place except at a block party, feast or similar function for which a permit has been obtained.
c. Possession of an open container containing an alcoholic beverage by any person shall create a rebuttable presumption that such person did intend to consume the contents thereof in violation of this section.
d. Nothing in this section shall be deemed to prohibit the consumption of an alcoholic beverage in any duly licensed establishment whose certificate of occupancy extends upon a street.
e. Any person who shall be found to have violated any of the provisions of this section shall be punished by a fine of not more than twenty-five dollars ($25) or imprisonment of up to five (5) days, or both, or pursuant to the provisions of the family court act of the state of New York where applicable.
Under the Fourth Amendment, a warrantless arrest is constitutionally valid if the arresting officers had probable cause to make the arrest at the time of the arrest. See Beck v. Ohio, 379 U.S. 89, 91 (1964); see also Gerstein v. Pugh, 420 U.S. 103, 111-12 (1974) (probable cause defined as "circumstances 'sufficient to warrant a prudent man in believing that the (suspect) had committed or was committing an offense.'"); Brinegar v. United States, 338 U.S. 160, 165 (1949) (warrantless search valid if probable cause exists). Under New York law, a police officer may arrest an individual when the officer has probable cause to believe that the individual has committed a petty offense, including a violation, in his presence and in his geographical area of employment. See New York Criminal Procedure Law ¶ 140.10(2)(a); § 1.20(39). In the context of the Open Container law, a police officer is authorized to arrest a person if it was reasonable for that officer to believe a defendant was holding an open container of alcohol with the intent to drink it in public. See People v. Bothwell, 261 A.D.2d at 234; cf. United States v. Fernandez-Antonia, 278 F.3d 150, 162 (2d Cir. 2002) ("when interpreting state statutes federal courts defer to state courts' interpretation of their own statutes") (citing cases).
Here, there is no question that once the can of beer was taken from McDermott, and its contents emptied to the ground, there was probable cause to believe that McDermott had violated this statute. The carrying of an open can of beer by itself creates sufficient probable cause under the terms of the statute. While the case against McDermott was ultimately dismissed after the prosecution indicated that it could not prove its case beyond a reasonable doubt, Complaint ¶ 76, that does not affect the validity of the arrest itself. As the Second Circuit has noted, "[b]efore making an arrest, if the arresting officer has probable cause, he need not also believe with certainty that the arrestee will be successfully prosecuted." Curley v. Village of Suffern, 268 F.3d at 70 (citing Krause v. Bennett, 887 F.2d 362, 372 (2d Cir. 1989)).
It is of no moment that McDermott does not explicitly admit in his complaint that the object the officers took from him was in fact a can of beer. This is because it is the plaintiff's burden to allege the absence of probable cause. See, e.g., Shain v. Ellison, 273 F.3d at 67-68 (in false arrest claim, plaintiff must show arrest was not privileged); Bonide Prods., Inc. v. Cahill, 223 F.3d at 145(for malicious prosecution claim, plaintiff must show prosecution was without probable cause).
The facts of this case are almost identical to those in Townes v. City of New York, 176 F.3d 138 (2d Cir.), cert. denied, 528 U.S. 964 (1999). In Townes, the plaintiff was the victim of an improper search in a taxi that revealed contraband (handguns), resulting in his arrest, pre-trial detention and ultimate conviction. In a suit under section 1983, the plaintiff sought damages for his detention and conviction based on the illegal search. The Second Circuit rejected plaintiff's claim stating as follows:
We conclude that constitutional tort liability under § 1983 is limited to "the kind of injury that the [constitutional right at issue] was designed to prevent." [John C. Jeffries, Jr., Damages for Constitutional Violations: The Relation of Risk to Injury in Constitutional Torts, 75 Va. L. Rev. 1461, 1475 (1989).] Victims of unreasonable searches or seizures may recover damages directly related to the invasion of their privacy — including (where appropriate) damages for physical injury, property damage, injury to reputation, etc.; but such victims cannot be compensated for injuries that result from the discovery of incriminating evidence and consequent criminal prosecution. See id. In this manner, "the penalty for the violation is . . . likely to be at least roughly proportionate to the wrong done by the violator." Joseph L. Hoffmann William J. Stuntz, Habeas After the Revolution, 1993 Sup.Ct. Rev. 65, 87.
Townes, 176 F.3d at 148. Based on this conclusion, Townes denied the plaintiff any chance to recovery for damages "relating to his conviction and incarceration." Id. at 149. In addition, the plaintiff was barred from recovering "compensatory damages for his arrest and pre-arraignment detention." Id. The Court noted that while the defendants in Townes lacked probable cause to stop and search the plaintiff, they "certainly had probable cause to arrest him upon discovery of the handguns" in the taxi. Id. The Court held that "[t]he lack of probable cause to stop and search does not vitiate the probable cause to arrest, because (among other reasons) the fruit of the poisonous tree doctrine is not available to assist a § 1983 claimant." Id.
What was left of plaintiff's claim in Townes is precisely what is left here: "the brief invasion of privacy related to the seizure and initial search of his person." Id. Townes conceded he was seeking no damages relating to his initial search and seizure — a concession that does not exist in the present case — and accordingly the entire complaint was dismissed.
This case is controlled by Townes. Because there existed probable cause to effectuate McDermott's arrest, pre-trial detention and prosecution, all of his claims relating to these events must be dismissed.
"Summary Punishment"
McDermott alleges that he was denied his right to be free from "summary punishment." Complaint, ¶ 82(e). To the extent McDermott is challenging the police's right to effectuate a custodial arrest for the Open Container offense, the argument is rejected. In Atwater v. City of Lago Vista, 532 U.S. 318 (2001), the Supreme Court held that the police may properly arrest an individual for a violation of a misdemeanor statute that carried only a fine and no potential for a term of imprisonment. Here, while New York law characterizes the Open Container offense as a violation and not a misdemeanor, an individual charged with this offense may be imprisoned for up to five days. Administrative Code § 10-125(e). Because under Atwater an arrest for an offense that carries only a fine is proper, a fortiori an arrest for an offense that includes the potential for a term of imprisonment must also pass constitutional muster.
Excessive Force
McDermott asserts claims for "excessive force," "assault," and "battery." Complaint, ¶¶ 81(d), 90-92, 93-95. The Supreme Court has held that:
all claims that law enforcement officers have used excessive force — deadly or not — in the course of an arrest, investigatory stop, or other "seizure" of a free citizen should be analyzed under the Fourth Amendment and its "reasonableness" standard. . . . Our Fourth Amendment jurisprudence has long recognized that the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it.
Graham v. Connor, 490 U.S. 386, 395-96 (1989) (citing Terry v. Ohio, 392 U.S. 1, 22-27 (1968)). The Court has also noted that "'Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers,' violates the Fourth Amendment." Graham, 490 U.S. at 396 (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.), cert. denied, 414 U.S. 1033 (1973)). Whether a particular use of force is reasonable "must be judged from the perspective of a reasonable officer on the scene." Id. The Court noted that "[t]he calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation." Id. at 396-97. Thus, in evaluating the reasonableness of an officer's use of force, a court should consider the specific circumstances of the case, such as "the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest . . . ." Id. at 396; accord Sullivan v. Gagnier, 225 F.3d 161, 165 (2d Cir. 2000).
In his narrative describing what occurred in this matter, McDermott does not specify at what point there occurred anything amounting to the unreasonable use of force to effectuate his arrest and detention. There is nothing in the complaint to suggest that any force used on McDermott was not part of a reasonable process for effectuating an arrest and the subsequent detention of an arrestee pending arraignment. Indeed, McDermott himself alleges that he was handcuffed in front, rather than in back of him, at his own request. Complaint, ¶ 44. The complaint thus fails to make out a claim of improper force. See, e.g., Lennon v. Miller, 66 F.3d 416, 426 (2d Cir. 1995) (no rational jury could find excessive force where officer injured arrestee's wrist when he pulled her hand off the ignition and forcibly removed her from a car, causing her to receive hospital treatment for a broken wrist). Deliberate Indifference to Medical Need
Construing the complaint as liberally as possible, Haines v. Kerner, 404 U.S. at 520-21, McDermott may be asserting a constitutional claim regarding the alleged denial of his opportunity to use bathroom facilities while at the police station. Complaint ¶ 47. The Second Circuit has recognized that "the official custodian of a pretrial detainee may be found liable for violating the detainee's due process rights if the official denied treatment needed to remedy a serious medical condition and did so because of his deliberate indifference to that need." Weyant, 101 F.3d at 856. In this case, however, McDermott was not prevented from urinating in his cell and thus suffered no medical consequences from the lack of bathroom facilities. Indeed, in cases involving convicted prisoners, courts have specifically recognized that the temporary absence of toilet facilities does not violate the Eighth Amendment. See, e.g., Whitted v. Lazerson, 1998 WL 259929, at *2 (S.D.N.Y. May 21, 1998); Odom v. Keane, 1997 WL 576088, at *4-5 (S.D.N.Y Sept. 17, 1997).
McDermott also alleges that he was treated at Bellevue Hospital for a heart condition that caused a high rate of heartbeat and was given medication "comparable to what he was taking" but without a warning that it was "much stronger than what he was taking at present." Complaint ¶ 58. Later, he suffered from an abnormally slow heartbeat and experienced fear that his heart rate would drop below 60 beats per minute if he fell asleep. Id. ¶ 70. These claims regarding his treatment, however, simply do not show a conscious "disregard [for] an excessive risk" to McDermott's safety. Farmer v. Brennan, 511 U.S. 825, 837 (1994). Rather, deliberate indifference — if not involving the unnecessary infliction of pain — means conduct that "shocks the conscience." Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996). At best, McDermott's allegations show negligence, which is insufficient to make out a constitutional violation. See, e.g., Estelle v. Gamble, 429 U.S. 97, 106 (1976) ("Medical malpractice does not become a constitutional violation merely because the victim is a prisoner.").
Claims Against the City of New York
McDermott has asserted a section 1983 claim against the City of New York and has alleged that there is an improper policy of "indiscriminate arrests for impermissible law enforcement" and that the City and other defendants "provided insufficient training regarding the law, law enforcement and police application of the law to the officers and agents of Defendant NYPD." Complaint, ¶¶ 78-79. See generally Monell v. Dep't of Soc. Serv., 436 U.S. 658, 694 (1978) (permitting suit under section 1983 where the "execution of a government's policy or custom . . . inflicts the injury"). McDermott's claim against the defendants (other than the stop claim) must be dismissed because "a municipality cannot be liable for inadequate training or supervision when the officers involved in making an arrest did not violate the plaintiff's constitutional rights." Curley v. Village of Suffern, 268 F.3d at 71; accord Amato v. City of Saratoga Springs, 170 F.3d 311, 320 (2d Cir. 1999) ("if a plaintiff fails to show that a constitutional violation occurred in the suit against the individual official, the corresponding cause of action against the municipality will be mooted since a claim of negligent training is only actionable where some constitutional violation actually occurred") (citing City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986)).
State Law Claims
McDermott's complaint also contains several state law tort claims: assault, Complaint ¶¶ 90-92; battery, id. ¶¶ 93-95; false imprisonment, id. ¶¶ 96-99; false arrest, id. ¶¶ 100-102; and malicious prosecution, id. ¶¶ 103-106. Having determined that all of McDermott's federal claims other than the stop claim should be dismissed, this Court should decline to exercise pendant jurisdiction over the corresponding state law claims. See United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966) (when the federal claims are dismissed the "state claims should be dismissed as well"); In re Merrill Lynch Ltd. P'ships Litig., 154 F.3d 56, 61 (2d Cir. 1998); Lennon v. Miller, 66 F.3d 416, 426 (2d Cir. 1995); Pitchell v. Callan, 13 F.3d 545, 549 (2d Cir.1994).
Conclusion
For the foregoing reasons, McDermott's complaint — other than his claim regarding the allegedly improper stop — should be dismissed pursuant to Federal Rule of Civil Procedure Rule 12(b)(6).
PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have ten (10) days from service of this Report to file any written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Lewis A. Kaplan, 500 Pearl Street, New York, New York 10007, and to the chambers of the undersigned at 40 Centre Street, New York, New York 10007. The failure to file timely objections will result in a waiver of those objections for purposes of appeal. See Thomas v. Arn, 474 U.S. 140 (1985).