12-3604-cv

Phelan v. Sullivan



### UNITED STATES COURT OF APPEALS 1



### FOR THE SECOND CIRCUIT 2

3



### SUMMARY ORDER 4

5

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A 6

SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY 7

FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN 8

CITING A SUMMAR Y ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE 9

EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC D ATABASE (WITH THE NOTATION 10

“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY 11

PARTY NOT REPRESENTED BY COUNSEL. 12

13

At a stated term of the United States Cou rt of Appeals for the Second Circuit, held at the 14

Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 15

17 th day of September, two thousand thirteen. 16

17

PRESENT: G UIDO C ALABRESI

, 18

D EBRA A NN L IVINGSTON

, 19

D ENNY C HIN

, 20

Circuit Judges. 21

_____________________________________ 22

23

K ENNETH J. P HELAN

, 24

25

Plaintiff-Appellant

, 26

27

v. 12-3604-cv 28

29

30

31

C HUCK S ULLIVA N , N.Y.S. Senior Investigator, indivi dually and in his official capacity, M ICHAEL 32

R EINOHL

, N.Y.S.P. Investigator, individually and in his official capacity, E RIC L EONARD

, N.Y.S.P. 33

Investigator, individually and i n his official capacity, A N N K OSTECKI

, N.Y.S.P. Investigator, 34

individually and in her official capacity, J IM C ONWAY

, N.Y.S.P. Investigator, individual ly and in 35

his official capacity, M ATTHEW R ENNERMAN

, N.Y.S.P. Investigator, individually and in his official 36

capacity, H ARRY C ORB ITT

, Superintendent of N.Y.S. Police Department, individually and in his 37

official capacity, N ICK G EORGEADIS , N.Y.S.P. Investigator, individua lly and in his official capacity, 38

39

Defendants-Appellees, 40

41

N ICOLE L ICHVA , N.Y.S.P. Investigator, individually and in her official capacity, L YNDA K. 42

R YMANOWSKI , N.Y.S.P. Investigator, individually and in her official capacity, R OBERT G AVIN , a 43reporter at the Times Union, individually and in his official capacity, T. T YLER , Senior Editor for 1

the Times Union, individually and in her official capacity, a/k/a T ENA T YLER , R. S MITH , individually 2

and in his official capacity, a/k/a R EX S MITH , D EAN D ELNEGRO

, U.S. Immigration Agent, 3

individually and in his official capacity, J UDGE W AGNER , Albany City Court Judge, individually and 4

in official capacity, C ITY OF A LBANY , C HRISTINA C ALABRESE , Assistant District Attorney, 5

individually and in her official capacity, 6

7

Defendants

. 8

9

_____________________________________ 10

11

FOR PLAINTIFF-APPELLANT: Kenneth J. Phelan, pro se , Marcy, NY. 12

13

FOR DEFENDANTS-APPELLEES: Kate H. Nepveu, Assist ant Solicitor General 14

(Of Counsel) (Denise A. Hartman, Assistant 15

So licitor General (Of Counsel), Barbara D. 16

Underwood, Solicitor General, on the brief ), 17

for Eric T. Schneiderman, Attorney General, 18

Office of the Attorney General, Albany, NY. 19

20

Appeal from a judgment of the United States District Court for the Northern District of New 21

York (Hurd, J .). 22

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, A DJUDGED, AND 23

DECREED that Plaintiff-Appellant’s motion to strike is DENIED

, and the judgment of the district 24

court is AFFIRMED IN PART, VACATED IN PART

, and the matter is REMANDED for further 25

proceedings. 26

Plaintif f-Appellant Kenneth J. Phelan (“Phelan”), proceeding p ro se

, appeals from a 27

Memorandum Decision and Order of the United States District Court for the Northern District of 28

New York (Hurd, J. ), e ntered August 28, 2012, granting Defenda nts-Appellees’ motion for summary 29

judgment and denying Phelan’s cross-motion for summ ary judgment. Phelan asserts claims pursuant 30

to 4 2 U.S.C. § 1983 for alleged viola tions of his Fourth Amendment rights against false arrest, 31

excessive force, and illegal seizure of property arising from a July 17, 2008 arrest. Phelan also 32



### 2challenges the district court’s decision not to recuse itself a nd the denial of his motion to appoint 1

counsel. Finally, Phelan moves this Court to strike Defendants-Appellees’ allegedly defamatory 2

statements in their brief to this Court. We assume the parties’ familiarity with the underlying facts, 3

the procedural history of the case, and the issues on appeal. 4

This Court reviews orders granting summary judgment de novo

, construing the evidence in 5

the light most favorable to th e nonmoving party. T racy v. Freshwater

, 623 F.3d 90, 95 (2d Cir. 6

2010). “Summary judgment is warranted only where ‘t here is no genuine issue as to any material 7

fact and

. . . the movant is entitled to judgment as a matter of law.’” I d. (quoting Fed. R. Civ. P. 8

56(a)). The Court is required to resolve all ambiguities and draw all inferences in favor of the 9

nonmoving party but “[t]he mere existence of a scintilla of evidence in support of the plaintiff’s 10

position will be insufficient; there must be evidence on which the jury could reasonably find for the 11

plaintiff.” Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 252 (1986) (emphasis added). 12

Phelan first argues that the district court erred in granting Defendants-Appellees’ motion for 13

summary judgment as to his § 1983 claim for false arrest. A false arrest claim is defeated by the 14

plaintiff’s conviction for the offense for which he was arrested. C ameron v. Fogarty

, 806 F.2d 380, 15

387 (2d Cir. 1986) (stating “the common-law rule, equally applicable to actions asserting false arrest 16

. . . was and is that the plaintiff can under no circ umstances recover if he was convicted of the 17

offense for which he was arrested” and then incorporating that common-law principle into § 1983 18

claims for false arrest); see Southerland v. City of New York , 681 F.3d 122, 125 (2d Cir. 2012) 19

(citing Cameron ); Weyant v. Okst , 101 F.3d 845, 852 (2d Cir. 1996) (“If, following the arrest, the 20

plaintiff was convicted of the charges against hi m, that conviction normally would be conclusive 21

evidence of probable cause. But this is so only if the conviction survives appeal.” (internal 22



### 3quotation marks and citations omitted)). Phelan was ultimately convicted—and his conviction 1

upheld on appeal—for the crimes for which he was arrested on July 17, 2008. Given Phelan’s 2

ultimate conviction for the offense for which he was “f alsely” arrested, we affirm the district court’s 3

grant of summary judgment as to this claim. 4

Phelan next argues that the district court erred in dismissing his § 1983 claims alleging 5

Fourth Amendment violations for unlawful search a nd seizure. As the district court noted, Phelan 6

already had a full and fair opportunity to litigate his search and seizure claim at the initial 7

suppression hearing and on appeal to the New York Appellate Division. 1 The Appellate Division 8

determined that the record “fail[ed] to reveal any likelihood of success of a challenge to the 9

admissibility of [Phelan’s] statements to the po lice or the evidence seized from his residence 10

pursuant to the search warrant.” People v. Phelan , 82 A.D.3d 1279, 1282 (3d Dep’t 2011). “Under 11

28 U.S.C. § 1738 a federal court mu st, in according full faith and cr edit, give to a State court 12

judgment the same preclusive effect as would be given to the judgment under the law of the State 13

in which the judgment was rendered.” Johnson v. Watkins , 101 F.3d 792, 794 (2d Cir. 1996). New 14

York’s collateral estoppel doctrine “bars a party from relitigating in a subsequent proceeding an 15

issue clearly raised in a prior proceeding and d ecided against that party where the party to be 16

precluded had a full and fair opportunity to contest the prior determination.” Id. (quoting Weiss v. 17

Manfredi , 639 N.E.2d 1122, 1123 (N.Y. 1994)). Given that Phelan already had the opportunity to 18

1 Phelan’s counsel withdrew suppression motions at the end of the Mapp/Huntley hearing,

see Phelan v. Sheahan , No. 9:11-cv-00416, 2013 WL 149476, at *8 (N.D.N.Y. Jan. 14, 2013). The

New York Appellate Division concluded that withdrawing these motions did not amount to

ineffective assistance of counsel. People v. Phelan , 82 A.D.3d 1279, 1282 (3d Dep’t 2011). The

New York Court of Appeals denied Phelan leave to appeal on June 13, 2011. People v. Phelan , 17

N.Y.3d 799 (2011).



### 4litigate whether personal property was seized in violation of his Fourth Amendment rights in the 1

suppression hearing, where he was represented by counsel, and on appeal to the New York Appellate 2

Division, we agree with the district court that Phelan is collaterally estopped from raising these 3

claims in federal court. 4

However, the district court erred in dismissing Phelan’s excessive force claim. This Court 5

analyzes claims of excessive force arising in the context of an arrest under the Fourth Amendment’s 6

objective reasonableness test, paying “careful attention to the facts and circumstances of each 7

particular case, including the severity of the crime at issue, whether the suspect poses an immediate 8

threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting 9

to evade arrest by flight.” Graham v. Connor , 490 U.S. 386, 396 (1989). Here, the district court 10

concluded that Phelan’s injuries were de minimis

, finding that Phelan did not allege any specific 11

injury or allege that he sought medical treatment, and that the force used was reasonable to 12

effectuate his arrest. The district court also stated that, at most, Phelan alleged that “[Defendants13

Appellees] broke down the door to [Phelan’s] apartment without warning, tackled him to the ground, 14

placed their feet and knees on his back, twisted his arms behind his back, and handcuffed him.” A 15

review of the record indicates, however, that in his cross-motion for summary judgme nt, Phelan 16

alleged that several of the Defendants-Appellees punched, kicked, and beat him while effecting his 17

arrest, and that Defendants-Appellees’ actions nearly broke his arm. 18

Neither the Defendants-Appellees nor the district court addressed these additional 19

allegations, even though our case law provides that liability may exist where an officer “gratuitously 20

inflict[s] pain in a manner that [is] not a reasonable response to the circumstances.” S ee Amnesty 21

Am. v. Town of West Hartford , 361 F.3d 113, 124 (2d Cir. 2004). Our Court has concluded that 22



### 5summary judg ment was not appropriate, moreover, where the plaintiff alleged that a defendant 1

“pushed” her against a car door, “yanked” her out, “threw [her] up against the fender,” and “twisted 2

[her] arm behind [her] back,” and that she had suffered bruises lasting several weeks. S ee Robison 3

v. Via

, 821 F.2d 913, 923-24 (2d Cir. 1987). The Robison court further noted that, although the 4

plaintiff had not sought medical treatment for her injuries, this failure was not fatal to her claim. S ee 5

id. at 924. On the record before us, we conclude that it was error to rule as a matter of law that 6

Appellant’s injuries were de minimis

, and that summary judgment on this claim was inappropriate. 7

We note also that the record contains conflicting evidence as to whether Phelan was in proximity 8

to two knives, a fact that could also be relevant to the reasonableness of the force used against him. 9

We conclude that the district court did not err in failing to recuse itself, as Phelan’s 10

allegations of bias appear to rest solely on disa greements with prior decisions of the assigned judge; 11

“judicial rulings alone almost never constitute a valid basis for a bias or partiality motion.” Liteky 12

v. United States , 510 U.S. 540, 555 (1994). The district court also properly denied Phelan’s motion 13

for appointment of counsel after concluding that Ph elan had not demonstrated that his claims were 14

likely to succeed on the merits. Cooper v. A. Sargenti Co. , 877 F.2d 170, 172 (2d Cir. 1989) (per 15

curiam) (stating that motions for appointment of counsel should be reviewed for “likely merit” so 16

courts do not appoint pro bono counsel “for a mer itless case that no lawyer would take were the 17

plaintiff not indigent”); see Ferrelli v. River Manor Health Care Ctr. , 323 F.3d 196, 204 (2d Cir. 18

2003) (citing Cooper ). 19

Finally, we deny Phelan’s motion to strike, as Defendants-Appellees’ allegedly defamatory 20

statements accurately reflect their interpretati on of the facts underlying the case, and Phelan’s 21

objections are primarily disagreements with whet her the account of the facts on which Defendants22

Appellees have chosen to rely is correct. 23



### 6Accordingly, the motion to strike is DENIED , and we AFFIRM the judgment of the district 1

court in part, and VACATE and REMAND the excessive force claim for further proceedings. 2

3

FOR THE COURT: 4

Catherine O’Hagan Wolfe, Clerk 1



### 7