Dunham v. City of N.Y.

JERMAINE DUNHAM, Plaintiff, v. CITY OF NEW YORK, ET AL., Defendants.

11-cv-01223 (ALC)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

March 10, 2021

OPINION & ORDER

ANDREW L. CARTER, JR., District Judge:

Plaintiff Jermaine Dunham (hereinafter, "Plaintiff" or "Mr. Dunham") brings this action under 42 U.S.C. § 1983 against the City of New York, and Police Officers Lamar Oliver and Philip Lobello (collectively, "Defendants"). Plaintiff alleges multiple violations of his federal constitutional rights including the use of excessive force, malicious prosecution and deliberate indifference by Officers Oliver and Lobello. Plaintiff also asserts claims of municipal liability against the City of New York.

Defendants filed a motion for summary judgment as to all of Plaintiff's claims. Plaintiff filed a motion to seal certain submissions made in connection with the summary judgment motion. For the reasons set forth below, Plaintiff's motion to seal is GRANTED, and Defendants' motion for summary judgment is GRANTED in part and DENIED in part.¹

PROCEDURAL HISTORY

Plaintiff initiated this action pro se on February 16, 2011.² ECF No. 2. Mr. Dunham filed an Amended Complaint on October 4, 2011. ECF No. 12.³ The case was reassigned from Judge Naomi Reice Buchwald to this Court on January 12, 2012. ECF No. 16. The case was then referred to Magistrate Judge Henry B. Pitman for General Pretrial. ECF No. 18. Defendants filed an answer to the Amended Complaint on February 13, 2012. ECF No. 20. David Segal appeared on behalf of Mr. Dunham on November 14, 2013. ECF No. 45. This Court granted Plaintiff leave to file a Second Amended Complaint to add § 1983 claims against new defendants. ECF No. 52. However, no Second Amended Complaint was ever filed. ECF Nos. 54, 79. A status conference was scheduled by Judge Pitman for March 20, 2015 but did not proceed as Judge Pitman learned that Plaintiff's attorney had been suspended from the practice of law for a year. ECF No. 66. Mr. Dunham subsequently requested pro bono counsel to represent him and the Court denied his request without prejudice. ECF Nos. 70-71. On March 13, 2018 Judge Pitman granted Plaintiff leave to file a Third Amended Complaint to add a § 1983 malicious prosecution claim against existing Defendants. ECF No. 79. On March 29, 2018, Plaintiff filed a Third Amended Complaint. ECF No. 80.⁴ On May 4, 2018, the Court adopted Judge Pitman's report and recommendation dismissing Plaintiff's Third Amended Complaint to the extent it did not complywith Judge Pitman's order. ECF No. 84. On August 8, 2018, the Court directed the Clerk of Court to seek pro bono counsel to represent Plaintiff for the limited purpose of conducting discovery. ECF No. 86. On October 26 and October 29, 2018 Maxwell Brown and Jason Kornmehl of Sullivan & Cromwell LLP filed notices of limited appearance, respectively. ECF Nos. 87, 88.⁵ Fact discovery was scheduled to be completed by April 8, 2019, however, that deadline was extended to August 1, 2019 due to continuing discovery disputes. ECF Nos. 89, 98, 103. On October 2, 2019, this case was reassigned from Magistrate Judge Pitman to Magistrate Judge Sarah L. Cave. On October 28, 2019, Judge Cave granted Plaintiff leave to file a Fourth Amended Complaint ("FAC") to add Monell claims against the City of New York, which Plaintiff filed on November 1, 2019. ECF Nos. 117-119. Defendants answered the FAC on November 20, 2019. ECF No. 122. On December 10, 2019, Defendants filed a letter motion to stay and bifurcate Monell discovery pending Defendants' motion for summary judgment. ECF No. 124. On February 11, 2020, the Court granted the letter motion and also granted Defendants leave to file a motion for summary judgment. ECF No. 139. Defendants filed a motion for summary judgment and supporting memorandum of law on April 3, 2020 ("Defs.' Mot."). ECF Nos. 144, 147. Plaintiff filed a motion to seal and an opposition to Defendants' motion for summary judgment on June 10, 2020 ("Pl. Opp."). ECF Nos. 156-57. Defendants filed a reply on July 13, 2020 ("Defs.' Reply"). ECF No. 164. Defendants' motion for summary judgment is deemed fully briefed. After careful consideration, Defendants' motion for summary judgment is hereby GRANTED in part and DENIED in part.

BACKGROUND

The circumstances giving rise to this case are largely disputed. See Pl.'s Resp. Defs.' R. 56.1 Stmt. ("Pl.'s 56.1 Resp.").

A. Undisputed Facts Before Plaintiff's Arrest

It is undisputed that on February 14, 2008, Plaintiff took the subway to go to a Valentine's Day party a few blocks away from Freeman Station in the Bronx. Id. ¶¶ 4-6, 12-13. After a few hours, Plaintiff left the party by himself but became lost on the way back to the subway station. Id. ¶¶ 14-17. That same night, Officer Lobello was assigned to canine patrol covering Manhattan and the Bronx on the 10:00 p.m. to 6:35 a.m. tour. Id. ¶ 29. Officer Lobello responded to Freeman Street and Chisolm Street after receiving a radio call regarding the search for the perpetrator of an armed robbery of a taxicab. Id. ¶¶ 30-31. Officer Oliver was assigned to crime patrol with the anti-crime unit that night and was eventually also directed to respond to the area in connection with the robbery. Id. ¶¶ 69-70.

Once Officer Lobello received a description, he conducted a canvas by driving around the area trying to locate the suspects, accompanied by his police dog Rocco. Id. ¶ 33. Shortly after Officer Lobello began his search for the armed robbers, he saw Plaintiff walking. Id. ¶ 35. Plaintiff waved at Officer Lobello's approaching vehicle while Plaintiff walked in the middle of the street. Id. ¶ 36. After stopping his vehicle, Officer Lobello could not hear Plaintiff since Rocco was barking, so he exited the vehicle. Id. ¶ 38. Once Officer Lobello exited the vehicle, he asked Plaintiff for his identification and the location from where Plaintiff had been coming. Id. ¶ 45. Plaintiff told Officer Lobello that he had been coming from a party and that he was lost and was trying to find his way to a train station. Id. ¶¶ 46-47. Officer Lobello told Plaintiff to back up and place his hands against the wall of a van. Id. ¶ 48. After this point Plaintiff's andDefendants' version of events are largely disputed, so the Court will lay them out separately for ease of reference and understanding.

B. Disputed Facts During and Immediately After Plaintiff's Arrest

1. Plaintiff's Version of Events

According to Plaintiff, as he reached for his identification, Officer Lobello let the police dog out of the car. Id. ¶ 50. After Officer Lobello handed Plaintiff back his identification and Mr. Dunham put it away, Plaintiff believed he was free to leave. Id. ¶ 51. As Plaintiff "proceeded to turn," Officer Lobello pushed his hand against Mr. Dunham's chest to stop him from leaving. Id. ¶ 52. When Officer Lobello placed his hand on Plaintiff's chest, he felt "something like a gun," though he did not know if it was actually a gun. Id. ¶ 53; Zangrilli Decl., Ex. G, Lobello Dep. at 169:17-169:24 ("Lobello Dep."). According to Plaintiff, after Officer Lobello touched his chest, he immediately released Rocco to attack him, without giving him any warning. Pl.'s 56.1 Resp. ¶¶ 54, 58, 59. The police dog immediately bit into Plaintiff's arm and dragged him down to the street. Id. ¶¶ 55, 61, 63. After being bit by Rocco, Plaintiff was lying in the street and did not resist Officer Lobello. Id. ¶¶ 56, 64. Rocco continued biting Plaintiff on his head and neck even though he was not resisting. Id. ¶¶ 57, 63.

Over the course of approximately two minutes of biting Plaintiff, the police dog's teeth punctured Plaintiff's coat and clothing and penetrated his flesh underneath, ripped out pieces of his hair and caused a laceration on his neck. Id. ¶ 63. Officer Lobello only removed Rocco long after it was apparent that Plaintiff was on the ground and subdued, though Mr. Dunham does not recall being handcuffed. Id. ¶¶ 64, 67.

After Rocco stopped biting Plaintiff, Officers Lobello and Oliver continued their investigation and did not provide Plaintiff with first aid treatment or inquire about his injuries, even though they had both received training in first aid and observed Plaintiff actively bleedingin the street. Id. ¶¶ 104, 106, 108.⁶ Officer Lobello did not remember calling EMS for Plaintiff.⁷ Id. ¶ 105; Lobello Dep. at 192:18-192:24. While Plaintiff was at the hospital, Officer Oliver brought the victim of the robbery to identify Plaintiff as the perpetrator of the armed robbery. Pl.'s 56.1 Resp. ¶ 86. This was the first time Plaintiff saw the victim of the robbery. Id.

2. Defendants' Version of Events

According to Defendants, while Officer Lobello interacted with Plaintiff, Rocco was barking in the front seat of the vehicle. Defs.' R. 56.1 Stmt. ¶ 50. Plaintiff attempted to leave the scene and walk past him at which point Officer Lobello placed his hand on his chest to prevent him from leaving the scene. Id. ¶¶ 51-52. Officer Lobello felt a hard object he believed to be a gun. Id. ¶ 53. Officer Lobello believed Plaintiff was trying to escape and pushed him onto the hood of his police car and grabbed his right arm. Id. ¶¶ 54-55. As Officer Lobello and Plaintiff "grappled," Plaintiff began reaching towards the area where Officer Lobello had felt the gun. Id. ¶ 57. As Officer Lobello and Plaintiff struggled, Officer Lobello told Plaintiff to stop and gave him several warnings that he would let his police dog out of the vehicle. Id. ¶ 58. As they continued to struggle, Officer Lobello brought Plaintiff to the ground and opened the car door to let Rocco out. Id. ¶ 61. As Plaintiff was going to the ground, Officer Lobello saw a key fall from Plaintiff's person. Id. ¶ 62.

When Officer Lobello opened the door to let Rocco out, Plaintiff's head was right next to where Rocco exited the vehicle and Rocco bit Plaintiff on the head, then on the neck and then on his arm. Id. ¶ 63. Officer Lobello was...