CASTRO v. COUNTY OF NASSAU

.Y., 554 N.Y.S.2d 502, 505 (App. Div. 1990) (internal citations omitted); see also Lowth v. Town of Cheektowaga, 82 F.3d 563, 573 (2d Cir. 1996) ("In most cases, the lack of probable cause — while not dispositive — tends to show that the accuser did not believe in the guilt of the accused, and malice may be inferred from the lack of probable cause." (internal quotation omitted)); Mesiti v. Wegman, 763 N.Y.S.2d 67, 70 (App. Div. 2003) ("[T]he jury was able to `infer the existence of actual malice from the fact that there was no probable cause to initiate the proceeding.'" (quoting Martin v. City of Albany, 364 N.E.2d 1304, 1307 (N.Y. 1977))).

As set out more fully above, in connection with the probable cause analyses on both the false arrest and malicious prosecution claims, there was ample basis for DeGasperis to arrest plaintiff, and plaintiff has not identified any exculpatory information that emerged either before or after his arrest. Indeed, the record reflects that, if anything, DeGasperis took a cautious approach to the investigation, waiting to arrest plaintiff until he was able to obtain a sworn statement from a person who positively identified plaintiff as the caller. Under these circumstances, no reasonable jury would find the actual malice element is met because there is no evidence that DeGasperis was motivated by "something other than a desire to see the ends of justice served." As such, plaintiff's § 1983 and state-law malicious prosecution claims fail.

As noted above, the analysis for a New York state malicious prosecution claim is identical to the analysis for a malicious prosecution claim under § 1983. Boyd v. City of N.Y., 336 F.3d 72, 75 (2d Cir. 2003).

(3) Qualified Immunity

DeGasperis also contends that even if probable cause did not exist for plaintiff's arrest, he is nonetheless entitled to qualified immunity on the malicious prosecution and false arrest claims. The Court agrees.

The doctrine of qualified immunity shields government officials from civil liability if 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). As the Second Circuit has noted, "[t]his doctrine is said to be justified in part by the risk that the `fear of personal monetary liability and harassing litigation will unduly inhibit officials in the discharge of their duties.'" McClellan v. Smith, 439 F.3d 137, 147 (2d Cir. 2006) (quoting Thomas v. Roach, 165 F.3d 137, 142 (2d Cir. 1999)). Thus, qualified immunity is not merely a defense but rather is also "an entitlement not to stand trial or face the other burdens of litigation." Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). Accordingly, the availability of qualified immunity should be decided by a court "at the earliest possible stage in litigation." Hunter v. Bryant, 502 U.S. 224, 227 (1991).

Relevant to this case, an arresting officer is entitled to qualified immunity on claims of false arrest and malicious prosecution if either: (a) it was objectively reasonable for the officer to believe that probable cause existed, or (b) officers of reasonable competence could disagree on whether the probable cause test was met. Walczyk v. Rio, 496 F.3d 139, 163 (2d Cir. 2007); Posr v. Court Officer Shield No. 207, 180 F.3d 409, 416 (2d Cir. 1999) (quoting Golino v. City of New Haven, 950 F.2d 864, 870 (2d Cir. 1991)). The issue of "reasonableness" for purposes of probable cause is distinct from the issue of "reasonableness" for purposes of qualified immunity. See Kerman v. City of N.Y., 374 F.3d 93, 116 (2d Cir. 2004); see also Anderson v. Creighton, 483 U.S. 635, 641 (1987) ("It simply does not follow immediately from the conclusion that it was firmly established that warrantless searches not supported by probable cause and exigent circumstances violate the Fourth Amendment that [the] search was objectively legally unreasonable.")). In Anderson, the Supreme Court held that "it is inevitable that law enforcement officials will in some cases reasonably but mistakenly conclude that probable cause is present, and we have indicated that in such cases those officials — like other officials who act in ways they reasonably believe to be lawful — should not be held personally liable." 483 U.S. at 641.

The Second Circuit has defined this standard, which is often referred to as "arguable probable cause," as follows:

Arguable probable cause exists when a reasonable police officer in the same circumstances and possessing the same knowledge as the officer in question could have reasonably believed that probable cause existed in the light of well established law.

Cerrone v. Brown, 246 F.3d 194, 203 (2d Cir. 2001) (quotations and citations omitted) (emphasis in original). Moreover, under this standard, "an `arresting officer is entitled to qualified immunity as a matter of law if the undisputed facts and all permissible inferences favorable to the plaintiff show . . . that officers of reasonable competence could disagree on whether the probable cause test was met.'" McClellan v. Smith, 439 F.3d 137, 147-48 (2d Cir. 2006) (quoting Robison v. Via, 821 F.2d 913, 921 (2d Cir. 1987)).

Here, again, multiple witnesses told Detective DeGasperis that, based on hearing the 911 tape, they believed with varying degrees of certainty that plaintiff was the person who made the bomb threat. One of these witnesses, Chamblee, said she was absolutely certain that plaintiff was the caller and signed a sworn statement to that effect. Cf. Leone v. Fisher, No. 3:05 CV 521 (CFD), 2007 WL 2874777, at *5 (D. Conn. Sept. 28, 2007) (finding police officer had arguable probable cause to arrest plaintiff for making a threatening phone call to a school where officer had a sworn statement from recipient of the call and was aware of contents of the call), aff'd 312 F. App'x 408, 409 (2d Cir. 2008) ("The school principal . . . told [the officer] about a threatening voice mail message from [plaintiff] that . . . a teacher at the school . . . had received. . . . In a signed, sworn statement, [the teacher] confirmed that she was the recipient of [plaintiff's] threatening voice mail message. Although it is unclear from the record whether [the officer] listened to a recording of the voice mail message, she did review a transcript of the message that had been transcribed by a school secretary. These facts, including the contents of the message, supported [the officer's] reasonable belief that there was probable cause to arrest [plaintiff]."). Under these circumstances, DeGasperis certainly could have reasonably believed that probable cause existed to arrest plaintiff. Thus, even if DeGasperis did not have actual probable cause to arrest plaintiff, there are no triable issues of fact as to whether he had arguable probable cause. Accordingly, DeGasperis is entitled to qualified immunity on the false arrest and malicious prosecution claims.

b. Nassau County

Plaintiff also attempts to hold Nassau County liable on his false arrest and malicious prosecution claims.

Under Monell v. Department of Social Services, 436 U.S. 658 (1978), a municipal entity may be held liable under § 1983 where a plaintiff demonstrates that the constitutional violation complained of was caused by a municipal "policy or custom." Monell, 436 U.S. at 694-95; Patterson v. County of Oneida, 375 F.3d 206, 226 (2d Cir. 2004) (citing Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 733-36 (1989) and Monell, 436 U.S. at 692-94). "The policy or custom need not be memorialized in a specific rule or regulation." Kern v. City of Rochester, 93 F.3d 38, 44 (2d Cir. 1996) (citing Sorlucco v. N.Y. City Police Dep't, 971 F.2d 864, 870 (2d Cir. 1992)). A policy, custom, or practice of the municipal entity may be inferred where "`the municipality so failed to train its employees as to display a deliberate indifference to the constitutional rights of those within its jurisdiction.'" Patterson, 375 F.3d at 226 (quoting Kern, 93 F.3d at 44). However, a municipal entity may only be held liable where the entity itself commits a wrong; "a municipality cannot be held liable under § 1983 on a respondeat superior theory." Monell, 436 U.S. at 691.

Here, as set out above, DeGasperis is entitled to summary judgment on plaintiff's false arrest and malicious prosecution claims. Accordingly, there is no underlying constitutional violation on these claims, and thus, they cannot be the basis of a Monell claim. Additionally, even if there was an underlying constitutional violation, plaintiff has produced no evidence of a municipal policy or custom. Instead, he simply asserts, without citing to any evidence, that "the facts suggest a custom, pattern or practice of officers failing to adequately investigate an allegation before making an arrest, thereby causing violations of [an] individual's civil rights." (Pl.'s Mem. of Law at 24.) This conclusory allegation does not allow plaintiff's Monell claim to survive summary judgment. Accordingly, the County is entitled to summary judgment on the Monell claim.

It appears plaintiff only asserts a Monell claim with respect to his false arrest and malicious prosecution claims, not his excessive force claim. ( See Pl.'s Mem. of Law at 23-24.) In any event, there is no evidence from which a rational jury could find that Nassau County had a policy or custom of placing unreasonably tight handcuffs on an arrestee, nor is there any other basis for a Monell claim based upon the alleged excessive force in this case. Therefore, even if asserted as to the alleged excessive force, any such Monell claim would not survive summary judgment.

c. School-District Defendants (1) State Action

As a threshold matter, the School-District Defendants contend that they cannot be liable under § 1983 for plaintiff's arrest and prosecution because they were not acting under color of state law. As set forth below, the Court agrees.

Plaintiff does not argue that the School-District Defendants are state actors simply because they work for a public school district. ( See Pl.'s Mem. of Law at 3-9.) He argues, instead, that the School-District Defendants acted under color of state law (1) because they were willful participants in joint activity with DeGasperis and (2) because they conspired with DeGasperis to deprive plaintiff of his civil rights. ( See id.)

Plaintiff is correct that a private actor may be considered to be acting under the color of state law for purposes of § 1983 if the private actor was "`a willful participant in joint activity with the State or its agents.'" See Ciambriello v. County of Nassau, 292 F.3d 307, 324 (2d Cir. 2002) (quoting Adickes v. S.H. Kress Co., 398 U.S. 144, 152 (1970)). However, the provision of information to or summoning of police officers, even if that information is false or results in the officers taking affirmative action, is not sufficient to constitute joint action with state actors for purposes of § 1983. See Ginsberg v. Healey Car Truck Leasing, Inc., 189 F.3d 268, 272 (2d Cir. 1999) ("Healey's provision of background information to a police officer does not by itself make Healey a joint participant in state action under section 1983. . . . Officer Fitzgerald's active role in attempting to resolve the dispute after Healey requested police assistance in preventing further disturbance also does not, without more, establish that Healey acted under color of law." (citations omitted)); Drayton v. Toys `R' Us Inc., 645 F. Supp. 2d 149, 163 (S.D.N.Y. 2009) ("`[F]urnishing information to the police does not by itself make someone a joint participant in state action under Section 1983." (quoting Valez v. City of N.Y., No. 08 Civ. 3875, 2008 WL 5329974, at *3 (S.D.N.Y. Dec. 16, 2008)). Similarly, if a police officer's actions are due to the officer's own initiative, rather than the directive of a private party, the private party will not be deemed a state actor. See Shapiro v. City of Glen Cove, 236 F. App'x 645, 647 (2d Cir. 2007) ("No evidence supports Shapiro's contention that Weiss-Horvath acted jointly with the Glen Cove defendants to deprive her of her constitutional rights, and ample evidence shows that the Glen Cove officials who searched her house exercised independent judgment rather than acting at Weiss-Horvath's direction."); Serbalik v. Gray, 27 F. Supp. 2d 127, 131-32 (N.D.N.Y. 1998) ("`[A] private party does not act under color of state law when she merely elicits but does not join in an exercise of official state authority.'" (quoting Auster Oil Gas, Inc. v. Stream, 764 F.2d 381, 388 (5th Cir. 1985))).

Additionally, plaintiff is correct that a private party may act under color of state law when the private party "conspires with a state official to violate the plaintiff's constitutional rights. . . ." Fisk v. Letterman, 401 F. Supp. 2d 362, 378 (S.D.N.Y. 2005), Report and Recommendation adopted in relevant part, 401 F. Supp. 2d 362 (S.D.N.Y. 2005). To establish a § 1983 conspiracy, plaintiff must produce evidence of (1) an agreement between the private party and state actors, (2) concerted acts to inflict an unconstitutional injury, and (3) an overt act in furtherance of the goal. See Carmody v. City of N.Y., No. 05-CV-8084 (HB), 2006 U.S. Dist. LEXIS 25308, at *16 (S.D.N.Y. May 11, 2006) (citing Ciambriello v. County of Nassau, 292 F.3d 307, 324-25 (2d Cir. 2002)).

With these standards in mind, the Court turns to analyze the evidence with respect to each of the School-District Defendants.

(a) Hugo

There is evidence that assistant principal Hugo met with the police at Great Neck North the day after the bomb threat, listened to the tape, and told the police that she was 70 percent certain that the voice on the tape was plaintiff's. ( See Hugo Dep. 10:9-13:25.) There is no evidence, however, that she had any further involvement with the police investigation. ( See id. 16:19-21.) Thus, Ms. Hugo's role was simply to provide information — that is, an identification — to the police. Accordingly, as a matter of law, she was not willfully engaged in joint activity with the police, nor is there evidence that she engaged in any conspiracy.

(b) Chamblee

Similarly, defendant Colleen Chamblee listened to the tape on January 25, 2005, identified plaintiff as the caller, and provided a sworn statement to the police. There is no evidence that she was otherwise involved with the investigation. Therefore, as a matter of law, Chamblee was not a willful participant in joint activity, nor did she act under color of state law as part of a § 1983 conspiracy.

(c) Kaplan, Sabatelli, and Cappelletti

In the days following the bomb threat, Principal Kaplan and Director of Security Cappelletti listened to the 911 tape and told Detective DeGasperis that they believed, but were not completely certain, that plaintiff was the caller. Again, this is clearly insufficient, as a matter of law, to establish that these defendants were acting under color of state law.

After this initial interaction, as set out more fully in the background section of this Memorandum and Order, (1) Sabatelli (and possibly Kaplan) interviewed Castro; (2) Cappelletti and Kaplan then spoke separately with DeGasperis about the interview; and (3) it is reasonable to infer that at least one of them determined that Chamblee would be likely to be able to identify the voice on the tape and procured her attendance at the meeting with DeGasperis.

Even viewing this evidence in a light most favorable to plaintiff, it does not raise genuine issues of disputed fact as to whether these defendants acted under color of state of law, and no rational jury could conclude that the state action requirement has been met as it relates to the School-District Defendants. Although plaintiff asserts that defendants' cooperation with the police in the context of supplying the information makes them state actors, "`general allegations of cooperation between private individuals and specific state agents . . . do not make out a claim of action taken under color of state law.'" Drayton, 645 F. Supp. 2d at 163 (quoting Puglisi v. Underhill Park Taxpayer Assoc., 947 F. Supp. 673, 706 (S.D.N.Y. 1996)).

Moreover, the employees of an organization do not become state actors simply because they conducted an internal investigation of wrongdoing and told the police about the results of that investigation. For example, in Roche v. John Hancock Mutual Life Insurance Co., 81 F.3d 249 (1st Cir. 1996), a plaintiff brought a § 1983 false arrest and malicious prosecution case against his former employer. The employee had been arrested for making threatening phone calls to company officials. The employee's arrest came after the company conducted an internal investigation into the phone calls and then contacted authorities stating that the plaintiff was the likely suspect. The First Circuit rejected the plaintiff's argument that the company was a state actor for § 1983 purposes. 81 F.3d at 253-54. It noted that, after being contacted by the company, the police "independently exercised reasonable professional judgment" in applying for an arrest warrant, a neutral magistrate issued the warrant, "the police dictated the time, place, and manner of the arrest," and the district attorney's office framed the charges and directed the prosecution. 81 F.3d at 254.

Courts in this circuit have employed a similar rule in the context of investigations and detentions of shoplifters by store-security guards. The general rule is that the guards are not acting under color of state law. An exception exists, however, when the police arrest an alleged shoplifter "solely based on the security guard's request, without making an `independent investigation' of the matter." See, e.g., Fletcher v. Walmart Stores, Inc., No. 05 Civ. 1859 (WHP), 2006 WL 2521187, at *3 (S.D.N.Y. Aug. 28, 2006); accord Guiducci v. Kohl's Dep't Stores, 320 F. Supp. 2d 35, 37 (E.D.N.Y. 2004) (collecting cases and dismissing § 1983 case brought against store-security guards based on guards' detention, interrogation, and strip search of suspected shoplifters).

Similarly, here, whatever the extent of any internal investigation by Kaplan, Sabatelli, and Cappelletti, and whatever efforts they made to contact DeGasperis, there is no evidence from which a jury could find that DeGasperis failed to exercise his own professional judgment in conducting the investigation and in ultimately deciding to arrest plaintiff. Although school-district officials initially identified plaintiff as a suspect on December 9, DeGasperis made additional trips to the school and conducted additional interviews before arresting plaintiff. Furthermore, after interviewing Chamblee at the school on January 25, 2005, DeGasperis had Chamblee come to the Sixth Precinct where she actually signed the supporting deposition. (Chamblee Dep. 50:21-25.) In short, the only conclusion that a rational jury could draw from this record is that DeGasperis conducted his own investigation on the incident and did not simply rely on the school officials' assertion that they believed Castro was the caller.

The police also, as in Roche, dictated the "time, place, and manner" of plaintiff's arrest. The day after Chamblee signed the supporting deposition, DeGasperis and another detective went back to the school and waited for Castro in Sabatelli's office. Sabatelli testified that, after he summoned Castro, "the two detectives were standing and . . . proceeded to . . . I guess arrest him. . . . I believe the detectives told him what the reason was for his arrest and they . . . handcuffed him behind his back and took him out of my office." (Sabatelli Dep. 46:14-25.) Nothing in Sabatelli's testimony (or in the other evidence in the record) indicates that he was involved in deciding to arrest plaintiff or in placing plaintiff under arrest.

Given these uncontroverted facts, no rational jury could conclude that these defendants were willfully engaged in joint activity with DeGasperis, and, thus, they cannot be liable under § 1983 for plaintiff's arrest and prosecution. Furthermore, there is no evidence that these defendants made any agreement with DeGasperis to deprive plaintiff of his constitutional rights, and, thus, there can be no § 1983 conspiracy claim against them. Therefore, they were not acting under color of state law in connection with plaintiff's arrest and prosecution. Moreover, even if they were somehow acting under color of state law, there was no underlying constitutional violation because, as discussed above, probable cause existed for plaintiff's arrest and prosecution.

Accordingly, the Court grants the School-District Defendants' motion for summary judgment on plaintiff's § 1983 false arrest and malicious prosecution claims.

Plaintiff does not assert any state-law claims against the School-District Defendants.

2. Excessive Force

Plaintiff also contends that Detective DeGasperis violated his constitutional rights by placing unreasonably tight handcuffs on him during his arrest. ( See Am. Compl. ¶ 19.) DeGasperis seeks summary judgment on this claim. However, as discussed below, the Court concludes that there are disputed issues of material fact that preclude summary judgment on this issue.

A police officer's use of force is excessive in violation of the Fourth Amendment "if it is objectively unreasonable `in light of the facts and circumstances confronting [him], without regard to [his] underlying intent or motivation.'" Maxwell v. City of N.Y., 380 F.3d 106, 108 (2d Cir. 2004) (quoting Graham v. Connor, 490 U.S. 386, 397 (1989)). More specifically, "[d]etermining whether the force used to effect a particular seizure is `reasonable' under the Fourth Amendment requires a careful balancing of the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake." Graham, 490 U.S. at 396 (citations and internal quotations omitted).

"Frequently, a reasonable arrest involves handcuffing the suspect, and to be effective handcuffs must be tight enough to prevent the arrestee's hands from slipping out." Esmont v. City of N.Y., 371 F. Supp. 2d 202, 214 (E.D.N.Y. 2005) (citing Cavazos v. Voorhies, 00-CV-7929 (RAG), 2002 WL 31017492, at *3 (N.D. Ill. Sept. 5, 2002)). To determine whether handcuffing of an arrestee is reasonable, the handcuffing must be viewed "in light of the minimal amount of force necessary to maintain custody of [the arrestee]." Esmont, 371 F. Supp. 2d at 215. "[I]n evaluating the reasonableness of handcuffing, a Court is to consider evidence that: 1) the handcuffs were unreasonably tight; 2) the defendants ignored the arrestee's pleas that the handcuffs were too tight; and 3) the degree of injury to the wrists." Id. (citing Burchett v. Kiefer, 310 F.3d 937, 944-45 (6th Cir. 2002) (additional citation omitted)).

Applying that standard here, triable issues of fact exist as to the reasonableness of DeGasperis's handcuffing of plaintiff. There is evidence that the first two factors are met. At his deposition, plaintiff testified that he told DeGasperis that the handcuffs were too tight and that DeGasperis did not respond. (Pl.'s Dep. 66:4-12.) With respect to the third factor, plaintiff testified at his deposition that the handcuffs left imprints on his wrists and caused his wrists to become "red and sore." ( Id. 71:9-20.) Although the Court recognizes that a plaintiff who suffers only de minimis injuries may not be able to survive summary judgment on an excessive force claim, "the Second [C]ircuit has indicated that a very minimal injury is sufficient to trigger potential liability" for excessive force. Yang Feng Zhao v. City of N.Y., 656 F. Supp. 2d 375, 390 (S.D.N.Y. 2009) (recommending denial of summary judgment on excessive force claim based on allegation that detective pressed plaintiff's head against a table and plaintiff's testimony that this resulted in pain for "about an hour"), Report and Recommendation adopted, 656 F. Supp. 2d 375 (S.D.N.Y. 2009); Sforza v. City of N.Y., No. 07 Civ. 6122 (DLC), 2009 WL 857496, at *15 (S.D.N.Y. Mar. 31, 2009) ("[P]laintiff need not demonstrate serious injury to prevail in an excessive force claim; bruising and other nonpermanent injuries are sufficient."). And, here, the record is unclear as to the intensity and duration of plaintiff's soreness or discomfort. Viewing the facts in the light most favorable to Castro and resolving all factual ambiguities in his favor — as the Court must on DeGasperis's motion for summary judgment — a rational jury could find that the soreness Castro claims to have experienced was sufficiently severe to be a cognizable injury under § 1983. Thus, summary judgment is not appropriate on this record. Cf, e.g., Sforza, 2009 WL 857496, at *15 (denying summary judgment on excessive force claim where granting summary judgment would have "require[d] that inferences be inappropriately drawn in the [defendant's] favor"); Lucky v. City of N.Y., No. 03 Civ. 1983 (DLC), 2004 WL 2088557, at *7 (S.D.N.Y. Sept. 20, 2004) ("While Lucky's injuries appear de minimis, his statements that he was shoved in the police car in a manner that injured his shoulder and that the handcuffs were placed so as to leave red marks on his wrists raise material issues of fact not addressed by the defendants. Summary judgment is therefore inappropriate on Lucky's claim for excessive force."); accord Lyons v. City of Xenia, 417 F.3d 565, 575-76 (6th Cir. 2005) ("The Fourth Amendment, it is true, prohibits unduly tight handcuffing in the course of an arrest. And this general principle, it is also true, was `clearly established' under Sixth Circuit case law at the time of Lyons' arrest. Not all

allegations of tight handcuffing, however, amount to excessive force. In order to reach a jury on this, the plaintiff must allege some physical injury from the handcuffing and must show that officers ignored plaintiff's complaints that the handcuffs were too tight." (citations omitted)); Kopec v. Tate, 361 F.3d 772, 777 (3d Cir. 2004) (finding summary judgment and qualified immunity unwarranted where plaintiff asserted that officer placed handcuffs on him that were excessively tight and failed for ten minutes to loosen them despite repeated requests); see also Robison v. Via, 821 F.2d 913, 924 (2d Cir. 1987) (explaining, in reversing district court's grant of summary judgment on excessive force claim, that plaintiff's failure to seek medical treatment was "not fatal" to her claim and that focus of inquiry should be reasonableness of force under the circumstances).

As noted above, the Court recognizes that de minimis injuries, from which a rational jury could not find excessive force, cannot survive summary judgment. See, e.g., Lynch v. City of Mount Vernon, 567 F. Supp. 2d 459, 468-69 (S.D.N.Y. 2008) ("There is a consensus among courts in this circuit that tight handcuffing does not constitute excessive force unless it causes some injury beyond temporary discomfort." (collecting cases)). The Court notes that, in a number of the cases cited by Lynch for this proposition, the plaintiffs apparently alleged no injury at all from the handcuffs, only that the handcuffs were too tight. See Drummond v. Castro, 522 F. Supp. 2d 667, 679 (S.D.N.Y. 2007) ("Here, Plaintiff alleges that during his arrest he was handcuffed tightly, but he does not allege any injury from the handcuffing or other circumstances of the arrest."); Grant v. City of N.Y., 500 F. Supp. 2d 211, 217 (S.D.N.Y. 2007) ("Plaintiff has neither alleged nor introduced any facts which suggest that she was in any way physically harmed as a result of being placed in handcuffs by Officer Murria."). Although it is clear that some type of injury is required to prevail on a § 1983 excessive force claim, plaintiff in the instant case has submitted sworn testimony that the handcuffs were too tight, that his request that the handcuffs be loosened was ignored, and that he sustained an injury. Given the current record, there is no basis for the Court conclude that the injury was so de minimis that it must fail as a matter of law, and, thus, summary judgment is unwarranted.

Accordingly, the Court denies DeGasperis summary judgment on plaintiff's § 1983 excessive force claim and his state-law assault and battery claims.

The Court also denies the motion for summary judgment on the related state-law claims because the same standard applies to those claims. See Kramer v. City of N.Y., No. 04-CV-0106 (HB), 2004 WL 2429811, at *11 (S.D.N.Y. Nov. 1, 2004) ("In the context of state officers performing their lawful duties, New York State law regarding assault and battery parallels the federal laws regarding excessive force."). Additionally, the Court notes that DeGaseperis does not assert in his moving papers that he is entitled to qualified immunity on plaintiff's excessive force claims ( see County Defs.' Mem. of Law at 13-14) and does not address the excessive force claims in his reply brief. Even if qualified immunity were asserted on this claim, the disputed issues of fact outlined above would also preclude summary judgment on that ground at this juncture. See, e.g., Calamia v. City of N.Y., 879 F.2d 1025, 1036 (2d Cir. 1989) ("The right of an individual not to be subjected to excessive force has long been clearly established."); accord Palmer v. Sanderson, 9 F.3d 1433, 1436 (9th Cir. 1993) (denying qualified immunity where plaintiff "claim[ed] that [officer] fastened [plaintiff's] handcuffs so tightly around his wrist that they caused [plaintiff] pain and left bruises that lasted for several weeks").

3. First Amendment Retaliation

Plaintiff also alleges that the School-District Defendants violated his First Amendment rights. Specifically, he contends that he "repeatedly complained to principal Bernard Kaplan that the school administration was too lax in enforcing the school parking rules." He contends that the School-District Defendants retaliated against him for making these complaints by claiming that he was the person who made the December 2004 bomb threat.

To establish a First Amendment retaliation claim under § 1983, plaintiff must establish that (1) the speech at issue was protected; (2) he suffered an adverse employment action; and (3) there was a causal connection between the protected speech and the adverse employment action. Washington v. County of Rockland, 373 F.3d 310, 320 (2d Cir. 2004). The School-District Defendants do not dispute that plaintiff suffered an adverse employment action, nor do they dispute that they are state actors for purposes of this § 1983 claim. They do assert, however, that the First Amendment does not protect the speech at issue and that there is no causal connection between the speech and the adverse employment action. As set forth below, the Court agrees. There is no evidence to support this claim, and summary judgment is warranted.

a. Protected Speech

Courts employ a two-part test to determine whether a public employee engaged in protected speech. First, the court asks "whether the employee spoke as a citizen on a matter of public concern." Garcetti v. Ceballos, 547 U.S. 410, 418 (2006). "If the answer [to this question] is no, the employee has no First Amendment cause of action based on his or her employer's reaction to the speech." Id. However, "[i]f the answer is yes," then the court must examine whether the employer "had an adequate justification for treating the employee differently from any other member of the general public." Id.

The School-District Defendants assert that the standards for First Amendment retaliation claims involving public employees apply here; plaintiff does not, and could not, dispute the applicability of that standard. It is well settled that, even though he was a contract employee, the standards for public employees also apply to individuals who work as contractors for government agencies. See, e.g., Rockland Vending Corp. v. Creen, No. 07-cv-6268 (KMK), 2009 WL 2407658, at *11 (S.D.N.Y. Aug. 4, 2009); Ansell v. D'Alesio, 485 F. Supp. 2d 80, 84 (D. Conn. 2007) ("Numerous courts, including the Supreme Court, have concluded that for purposes of retaliation claims brought under the First Amendment, there is no legal distinction between independent contractors with pre-existing contracts . . . and full-time employees.").

Here, the First Amendment does not protect plaintiff's speech because he was not speaking "as a citizen on a matter of public concern." This standard itself contains two separate requirements — namely, (1) that the employee speak as a citizen, and (2) that the employee speak on a matter of public concern. If either of these requirements is not met, then plaintiff's First Amendment retaliation claim must fail as a matter of law. See Sousa v. Roque, 578 F.3d 164, 170 (2d Cir. 2009). With respect to the first part of this standard — whether the employee was speaking as a "citizen" — the Supreme Court in Garcetti explained that "when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes." 547 U.S. at 421; Weintraub v. Bd. of Ed. of City Sch. Dist. of City of N.Y., 593 F.3d 196, 201 (2d Cir. 2010). Determining whether an employee spoke "pursuant to" his official duties requires a "practical" inquiry in which no one factor is necessarily dispositive. See Weintraub, 593 F.3d at 202. Some factors the Court may consider include the plaintiff's job description; the persons to whom the speech was directed; and whether the speech resulted from special knowledge gained through the plaintiff's employment. Caraccilo v. Vill. of Seneca Falls, 582 F. Supp. 2d 390, 405 (W.D.N.Y. 2008). Additionally, the Second Circuit has recently held that "speech can be `pursuant to' a public employee's official job duties even though it is not required by, or included in the employee's job description, or in response to a request by the employer." Weintraub, 593 F.3d at 203 (finding that teacher's filing of union grievance was done pursuant to official duties and therefore not protected by the First Amendment because grievance related to plaintiff's concerns about his ability to maintain discipline in the classroom). In sum, "[a]lthough there is no simple checklist or formula by which to determine whether the employee was speaking as a private citizen or as a public employee . . . the cases distinguish between speech that is the kind of activity engaged in by citizens who do not work for the government and activities undertaken in the course of performing one's job." Caraccilo, 582 F. Supp. 2d at 410 (quotation marks and citation omitted).

Here, there is no question that plaintiff was speaking pursuant to his official duties when he spoke to defendant Kaplan regarding his concerns about parking regulations. Plaintiff essentially admits as much in the declaration he submitted in opposition to summary judgment. In paragraph 3, he asserts that he "repeatedly complained to Principal Bernard Kaplan that the school administration was too lax in enforcing school parking rules." In the very next paragraph, he explains that "[t]he students double parked, and parked illegally, and it was one of my responsibilities to enforce school parking regulations." (Pl.'s Decl. ¶ 4 (emphasis added).) Thus, by plaintiff's own admission, his speech was related to — indeed, at the core of — his duties as a school security guard whose specific responsibilities involved the enforcement of parking regulations. Moreover, the speech was directed to Kaplan, the school's principal, who was responsible for the school's overall operation, including its safety and security. Thus, plaintiff directed his complaints up the operational chain of command. This fact further underscores that plaintiff was speaking in his role as a security guard — and not as a citizen — when complaining about conditions in the parking lots. See Thompson v. District of Columbia, 530 F.3d 914, 916 (D.C. Cir. 2008) ("Ordinarily, employees who make recommendations to their supervisors on subjects directly related to their jobs are carrying out their official duties and thus receive no First Amendment protection."); Davis v. McKinney, 518 F.3d 304, 313 (5th Cir. 2008) ("Cases from other circuits are consistent in holding that when a public employee raises complaints or concerns up the chain of command at his workplace about his job duties, that speech is undertaken in the course of performing his job" (collecting cases)). Additionally, there is no evidence plaintiff spoke to anyone outside the school regarding the parking issues. This further indicates that plaintiff was not speaking as a "citizen" when he made the complaints. See, e.g., Healy v. City of N.Y. Dep't of Sanitation, 286 F. App'x. 744, 746 (2d Cir. 2008) (affirming summary judgment for defendant and holding that report of corruption was made within scope of official duties where, inter alia, the plaintiff uncovered the corruption while performing an assigned task and there was no evidence of external communications).

Plaintiff also testified at his deposition that his "specific duties and responsibilities" concerned "enforcing the parking of the students, making sure they parked in their designated lots and not in the teachers' lots." (Pl.'s Dep. 25:20-26:8.)

(Kaplan Dep. 6:8-14 ("I am in charge of everything that goes on. You know, the buck stops at the principal's office. I am in charge of security, safety, [and] the educational program. I am responsible for everything that happens in the high school.").) Although plaintiff was technically employed by a private contractor, it is undisputed that school-district officials, including Kaplan, supervised his day-to-day work. ( See Pl.'s Dep. 30:15-18; 43:24-46:4.).

In sum, given the uncontroverted facts in this record, plaintiff was clearly speaking pursuant to his official duties. As such, he was not speaking as a citizen, and, regardless of whether the parking issues were a "matter of public concern," the First Amendment does not protect his speech. Therefore, his retaliation claim fails as a matter of law.

See, e.g., Caraccilo, 582 F. Supp. 2d at 410 (finding, on a motion for summary judgment, that although speech at issue related to a matter of public concern, it "was made . . . pursuant to [plaintiff's] job duties, rather than `as a citizen' . . . [and s]uch speech is not constitutionally protected"); Mulcahey v. Mulrenan, No. 06 Civ. 4371 (LBS), 2008 WL 110949, at *7 n. 2 (S.D.N.Y. Jan. 3, 2008) ("Because this Court finds that the plaintiff did not speak as a citizen but rather pursuant to his official duties, we need not address the remaining elements of plaintiff's prima facie claim.").

b. Causal Connection

Plaintiff's retaliation claim also fails, in the alternative, because he has not shown the requisite causal connection between his speech and any adverse employment action.

Plaintiff must demonstrate that his speech was "a substantial motivating factor" in any adverse employment action. Washington, 373 F.3d at 321. This causal connection can be demonstrated by plaintiff "indirectly `by showing that the protected activity was followed by adverse treatment in employment, or directly by evidence of retaliatory animus.'" Cobb v. Pozzi, 363 F.3d 89, 108 (2d Cir. 2003) (quoting Morris v. Lindau, 196 F.3d 102, 110 (2d Cir. 1999)). However, "a plaintiff may not rely on conclusory assertions of retaliatory motive to satisfy the causal link. Instead he must produce `some tangible proof to demonstrate that his version of what occurred was not imaginary.'" Cobb, 363 F.3d at 108 (quoting Morris, 196 F.3d at 111 (alteration and internal citation omitted)).

Additionally, "[i]n this Circuit, an inference of causation is defeated (1) if the allegedly retaliatory [action] took place at a temporal remove from the protected activity; or (2) if there was an intervening causal event that occurred between the protected activity and the allegedly retaliatory [action]." Tasadfoy v. Ruggiero, 365 F. Supp. 2d 542, 551 (S.D.N.Y. 2005) (citation omitted).

Here, plaintiff has failed to produce any proof of a causal connection between his speech and the School-District Defendants telling police that they believed that he was the 911 caller. The only evidence that the speech even occurred is a statement in plaintiff's declaration that he "repeatedly complained" to defendant Kaplan. There is no indication of the temporal proximity between plaintiff's complaints and defendants' actions in response to the bomb threat nor is there evidence of retaliatory motive. Additionally, there is an "intervening causal event" between the speech at issue and the School-District Defendants identifying plaintiff to the police. That event is the School-District Defendants hearing a voice on the tape and perceiving it to be plaintiff's. There is no evidence that the School-District Defendants did not honestly believe plaintiff was the caller. Thus, given this record, no rational jury could conclude that the required causal connection existed. Therefore, in the alternative, plaintiff's First Amendment retaliation claim fails for this additional reason.

Additionally, the Court notes that plaintiff asserts that he complained only to Kaplan about parking. He does not cite to any evidence suggesting that the other School-District Defendants knew about his complaints. Thus, plaintiff's retaliation claim against these defendants would fail for the additional reason that there is no evidence that they were personally involved in any constitutional violation, which is an essential element of any § 1983 claim against an individual. Gronowski v. Spencer, 424 F.3d 285, 293 (2d Cir. 2005) ("Before § 1983 damages are awarded, a plaintiff must show by a preponderance of the evidence that the defendant was personally involved — that is, he directly participated — in the alleged constitutional deprivations."). Similarly, to the extent plaintiff brings any First Amendment claim against DeGasperis, any such claim would fail for similar reasons.

In sum, the undisputed facts demonstrate that plaintiff did not engage in protected speech, nor is there evidence of a causal connection between plaintiff's speech and his becoming a suspect in the bomb threat investigation. Accordingly, summary judgment is warranted on this claim in favor of the School-District Defendants.

B. Section 1985 Claim

Plaintiff also alleges a conspiracy to deprive him of his civil rights, in violation of 42 U.S.C. § 1985(3). Defendants argue that there is no evidence of a conspiracy, nor is there evidence that any conspiracy was motivated by class-based discriminatory animus, which is a required element for claims under § 1985. The Court agrees.

Section 1985(3) prohibits conspiracies by two or more persons that interfere with and injure any person's civil rights. More specifically, the four elements of a § 1985(3) claim are:

(1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of equal protection of the laws, or of equal privileges and immunities under the laws; (3) an act in furtherance of the conspiracy; (4) whereby a person is either injured in his person or property or deprived of any right of a citizen of the United States.

Mian v. Donaldson, Lufkin Jenrette Secs., Corp., 7 F.3d 1085, 1087 (2d Cir. 1993) (internal citation omitted). "Furthermore, the conspiracy must also be motivated by `some racial or perhaps otherwise class-based, invidious discriminatory animus behind the conspirators' action.'" Id. (quoting United Bhd. of Carpenters, Local 610 v. Scott, 463 U.S. 825, 828-29 (1983)).

Here, no reasonable jury could find that defendants engaged in a civil-rights conspiracy. First, as discussed more fully in connection with plaintiff's § 1983 claim, there is no evidence from which a jury could find that any of the School-District Defendants conspired with defendant DeGasperis. Moreover, plaintiff offers no evidence of any agreement among any of the School-District Defendants. See generally Rivera v. Goord, 119 F. Supp. 2d 327, 345 (S.D.N.Y. 2000) (explaining that "[t]he mere use of the word `conspiracy,' without more, does not state a claim under § 1985").

Additionally, although not raised by defendants, the intra-corporate conspiracy doctrine would bar any conspiracy between the School-District Defendants. Under this doctrine, which the Second Circuit has applied in § 1985(3) cases, "there can be no conspiracy if the conspiratorial conduct challenged is essentially a `single act by a single corporation acting exclusively through its own directors, officers, and employees, each acting within the scope of his employment.'" Tucker v. N.Y. City, No. 05 Civ. 2804 (GEL), 2008 WL 4450271, at *11 (S.D.N.Y. Sept. 30, 2008) (quoting Hermann v. Moore, 576 F.2d 453, 459 (2d Cir. 1978) (granting summary judgment on § 1985(3) claim where "[e]very defendant in this action was employed by the DOE and was acting in his or her capacity as a DOE employee in connection with the alleged conspiracy"); accord Little v. City of N.Y., 487 F. Supp. 2d 426, 442 (S.D.N.Y. 2007) (granting summary judgment on § 1985(3) claim where "[p]laintiff allege[d] that police officers conspired with each other to violate his rights . . ., but all the police officers — including Officers Strong and Blain — [were] part of a single corporate entity, the City of New York."). Here, by definition, the School-District Defendants all worked for the Great Neck School District, a single entity. As such, the intra-corporate conspiracy doctrine would apply. Cf. Steipen v. Schaubert, No. 08CV487A, 2010 WL 1875763, at *6 (W.D.N.Y. Feb. 23, 2010) (recommending summary judgment be granted to defendant school-board members on § 1985(3) claim based on intra-corporate conspiracy doctrine), Report and Recommendation adopted, 2010 WL 1875769 (W.D.N.Y. May 11, 2010); see also Hull v. Cuyahoga Valley Joint Vocational Sch. Dist. Bd. of Educ., 926 F.2d 505, 509-10 (6th Cir. 1991).

Second, there is no evidence from which a reasonable jury could find discriminatory animus. As evidence of such animus, plaintiff relies heavily on the fact that (1) he is a Hispanic American, and that (2) two defendants — Kaplan and Sabatelli — made references during their depositions to the fact that plaintiff had a Hispanic accent and that the 911 caller had a Hispanic accent. ( See Pl.'s Opp. Mem. of Law at 9 (citing Pl.'s 56.1 ¶¶ 34-35).)

Plaintiff's reliance on Kaplan's and Sabatelli's deposition testimony is misplaced. In Kaplan's case, he testified, in the context of describing DeGasperis playing the 911 tape and him then determining that the tape sounded like plaintiff, that plaintiff had a "certain kind of accent that is very distinctive." (Kaplan Dep. 31:4-5.) Plaintiff's counsel followed up by asking "[w]hat is distinctive about his accent?" Kaplan replied,

In our community, first of all, we have a small Spanish population, a few Spanish really, and his — his tone and — umm — his decadence [sic] of the way he speaks is very distinctive of him. . . . [T]hat's why when I heard the voice, I knew the voice.

(Kaplan Dep. 31:8-14.) Even viewing this statement in a light most favorable to plaintiff, the only conclusion a rational jury could draw from it is that Kaplan identified plaintiff's voice on the tape based in part on plaintiff's accent. No rational trier of fact could conclude from this statement that, as plaintiff argues, he "was singled out as the anonymous caller because he was one of the few Hispanics working at the school." (Pl.'s Opp. Mem. of Law at 9.)

Sabatelli's testimony is also not probative of discriminatory animus. Plaintiff's counsel asked Sabatelli to "describe Mr. Castro's accent." Sabatelli responded "Umm. Perhaps a Hispanic accent." Plaintiff's counsel then asked Sabatelli to describe the "type of an accent" that the 911 caller had. Sabatelli responded "Hispanic." (Sabatelli Dep. 33:18-24.) This testimony does not even suggest that plaintiff's accent played a role in Sabatelli's eventual identification of plaintiff as the 911 caller. In sum, based on this record, no rational trier of fact could find that discriminatory animus motivated any of the defendants.

As noted above, Sabatelli was initally unable to identify plaintiff as the caller. After hearing the tape again, he became "painfully certain" that plaintiff had made the bomb threat. (Sabatelli Dep. 44:23-45:6.)

In sum, because there is no evidence of either a conspiracy or discriminatory animus, plaintiff's § 1985(3) claim fails to survive summary judgment.

C. State-Law Claims

Plaintiff has brought a number of state-law claims against the County Defendants. As discussed above, the same analysis that applies to plaintiff's § 1983 false arrest and malicious prosecution claims also applies to plaintiff's state-law false arrest and malicious prosecution claims. Similarly, the same analysis that applies to plaintiff's § 1983 excessive force claim also applies to plaintiff's state-law assault and battery claims.

Plaintiff does not raise any state-law claims against the School-District Defendants. ( See Oral Argument Audio FTR at 3:46.)

The remaining state-law claims are claims for "fabricated evidence, harassment, abuse of process, gross negligence, and negligent hiring, supervision, monitoring, and retention of incompetent employees." (Pl.'s Opp. Mem. of Law at 20.)

Plaintiff contends that summary judgment is inappropriate on these claims because the County did not directly address them in its motion papers. The Court disagrees. First, the County has moved for summary judgment on all of plaintiff's claims. ( See, e.g., County Def.'s Reply Mem. of Law at 9 (requesting "an Order granting summary judgment in their favor and dismissing the Amended Complaint . . . in its entirety").) Second, although the factual basis for all the remaining state-law claims is not entirely clear, they all appear to concern alleged improprieties relating to the investigation of the bomb threat and plaintiff's arrest and prosecution. However, the County Defendants have argued that they acted properly in carrying out their investigation and in arresting and prosecuting plaintiff, and the Court has determined that no triable issues of fact exist as to whether DeGasperis had probable cause to arrest and prosecute plaintiff. Simply put, regardless of how plaintiff labels the claims, there are no triable issues of fact related to the propriety of County Defendants' decision to arrest and prosecute plaintiff. Accordingly, the Court grants the County summary judgment on the remaining state-law claims.

( See, e.g., Pl's Opp. Mem. of Law at 21 (citing, in support of abuse of process claim, to portions of Rule 56.1 statement dealing with DeGasperis's investigation of the bomb threat); id. at 22 (asserting that plaintiff's gross negligence claim should survive summary judgment because plaintiff has "rebutted defendants' assertions concerning the legitimacy of his arrest and prosecution"); id. at 22-23 (asserting that Nassau County can still be liable on "theories of negligent hiring, negligent retention, and negligent supervision" because "the total inadequacy of defendants' `investigation' supports the inference that the municipality had a pattern of allowing officers to violate individuals' civil rights. . . .").)

The Court notes, however, because the state-law assault and battery claims against DeGasperis survive summary judgment, the County could still be liable for these claims under a respondeat superior theory. Thus, those state-law claims against DeGasperis and the County survive summary judgment.

See Williams v. City of White Plains, ___ F. Supp. 2d ___, No. 08 CIV 5210-WGY, 2010 WL 2465405, *5 (S.D.N.Y. June 16, 2010) ("Summary judgment is denied as to Sgt. Tiedemann with regard to the section 1983 claim of use of excessive force and the state law claim of assault and battery, and the City of [W]hite Plains, which remains as a respondeat superior defendant should Sgt. Tiedemann be found liable for assault and battery.") ; Webster v. City of N.Y., 333 F. Supp. 2d 184, 207 (S.D.N.Y. 2004) (explaining that, even though court granted city summary judgment on Monell claim, "Plaintiffs' common-law causes of action against the City proceeding on a theory of respondeat superior may proceed" (collecting cases)). See generally Raysor v. Port Authority of N.Y. N.J., 768 F.2d 34, 38 (2d Cir. 1985) (dismissing that § 1983 Monell claim against Port Authority but allowing state-law causes of action against Port Authority to proceed on a respondeat superior theory).

D. County's Cross-Claim for Contribution

The School-District Defendants have also moved for summary judgment on the County's cross-claim against them for indemnification and contribution.

To the extent the County seeks indemnification and contribution on plaintiff's § 1983 claims, they cannot do so as a matter of law. No right to contribution exists under § 1983. See Crews v. County of Nassau, 612 F. Supp. 2d 199, 208 (E.D.N.Y. 2009) (collecting cases). Nor is there a federal right of indemnification under the statute. See Hayden v. Hevesi, No. 05-CV-0294E(SR), 2007 WL 496369, at *4 (W.D.N.Y. Feb. 12, 2007).

Nor can the County obtain indemnification or contribution from the school district on plaintiff's state-law claims. "An action for contribution may be maintained between concurrent, successive, independent, alternative, and even intentional tort-feasors, who have caused the `same injury' to plaintiff." LNC Invs., Inc. v. First Fidelity Bank, Nat. Assoc., 935 F. Supp. 1333, 1346 (S.D.N.Y. 1996) (internal quotations omitted)). Here, the only state-law claims surviving summary judgment deal with DeGasperis's handcuffing of plaintiff. There is no evidence the School-District Defendants played any role in handcuffing plaintiff or in allegedly declining to loosen the handcuffs. Therefore, they are not potential joint tortfeasors with DeGasperis, and any contribution claim must fail.

Unlike contribution, "[i]ndemnity . . . flows from either a contractual or other relationship between the actual wrongdoer and another, such as that of employee and employer, and involves a complete shifting of the loss." Riviello v. Waldron, 391 N.E.2d 1278, 1283 (N.Y. 1979) (internal citations omitted); see also Durable Mfg. Co. v. Goodyear Tire Rubber Co., 992 F. Supp. 657, 660 (S.D.N.Y. 1998) ("[C]ontribution involves joint tortfeasors whereas indemnification involves vicarious liability."). Here, there is no evidence of a "contractual or other relationship" whereby the School-District Defendants are liable for the County Defendants' torts. As such, the claim for indemnity also fails.

IV. CONCLUSION

For the reasons set forth above, the Court grants the School-District Defendants' motion for summary judgment in its entirety. The Court also grants the County Defendants summary judgment on (1) plaintiff's § 1983 claims for false arrest, malicious prosecution, and municipal liability; (2) plaintiff's § 1985(3) conspiracy claim; and (3) plaintiff's state-law causes of action related to those claims. However, the Court denies summary judgment on plaintiff's § 1983 excessive force claim against DeGasperis and on plaintiff's state-law assault and battery claims against DeGasperis and the County. Plaintiff and the County Defendants shall participate in a telephone conference on Wednesday, September 22, 2010 at 4:30 p.m. to set a schedule for submission of a joint pre-trial order. At that time, counsel for the County Defendants shall initiate the call and, once all parties are on the line, contact Chambers at (631) 712 5670.

SO ORDERED.

Central Islip, New York