     12-3604-cv
     Phelan v. Sullivan



 1                              UNITED STATES COURT OF APPEALS
 2                                  FOR THE SECOND CIRCUIT
 3
 4                                           SUMMARY ORDER
 5
 6   RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
 7   SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
 8   FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
 9   CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
10   EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
11   “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
12   PARTY NOT REPRESENTED BY COUNSEL.
13
14          At a stated term of the United States Court of Appeals for the Second Circuit, held at the
15   Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
16   17th day of September, two thousand thirteen.
17
18   PRESENT:    GUIDO CALABRESI,
19               DEBRA ANN LIVINGSTON,
20               DENNY CHIN,
21                                 Circuit Judges.
22   _____________________________________
23
24   KENNETH J. PHELAN,
25
26                             Plaintiff-Appellant,
27
28                        v.                                              12-3604-cv
29
30
31
32   CHUCK SULLIVAN, N.Y.S. Senior Investigator, individually and in his official capacity, MICHAEL
33   REINOHL, N.Y.S.P. Investigator, individually and in his official capacity, ERIC LEONARD, N.Y.S.P.
34   Investigator, individually and in his official capacity, ANN KOSTECKI, N.Y.S.P. Investigator,
35   individually and in her official capacity, JIM CONWAY, N.Y.S.P. Investigator, individually and in
36   his official capacity, MATTHEW RENNERMAN, N.Y.S.P. Investigator, individually and in his official
37   capacity, HARRY CORBITT, Superintendent of N.Y.S. Police Department, individually and in his
38   official capacity, NICK GEORGEADIS, N.Y.S.P. Investigator, individually and in his official capacity,
39
40                             Defendants-Appellees,
41
42   NICOLE LICHVA, N.Y.S.P. Investigator, individually and in her official capacity, LYNDA K.
43   RYMANOWSKI, N.Y.S.P. Investigator, individually and in her official capacity, ROBERT GAVIN, a
 1   reporter at the Times Union, individually and in his official capacity, T. TYLER, Senior Editor for
 2   the Times Union, individually and in her official capacity, a/k/a TENA TYLER, R. SMITH, individually
 3   and in his official capacity, a/k/a REX SMITH, DEAN DELNEGRO, U.S. Immigration Agent,
 4   individually and in his official capacity, JUDGE WAGNER, Albany City Court Judge, individually and
 5   in official capacity, CITY OF ALBANY, CHRISTINA CALABRESE, Assistant District Attorney,
 6   individually and in her official capacity,
 7
 8                          Defendants.
 9
10   _____________________________________
11
12   FOR PLAINTIFF-APPELLANT:                             Kenneth J. Phelan, pro se, Marcy, NY.
13
14   FOR DEFENDANTS-APPELLEES:                            Kate H. Nepveu, Assistant Solicitor General
15                                                        (Of Counsel) (Denise A. Hartman, Assistant
16                                                        Solicitor General (Of Counsel), Barbara D.
17                                                        Underwood, Solicitor General, on the brief),
18                                                        for Eric T. Schneiderman, Attorney General,
19                                                        Office of the Attorney General, Albany, NY.
20

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

22   York (Hurd, J.).

23          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

24   DECREED that Plaintiff-Appellant’s motion to strike is DENIED, and the judgment of the district

25   court is AFFIRMED IN PART, VACATED IN PART, and the matter is REMANDED for further

26   proceedings.

27          Plaintiff-Appellant Kenneth J. Phelan (“Phelan”), proceeding pro se, appeals from a

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

29   New York (Hurd, J.), entered August 28, 2012, granting Defendants-Appellees’ motion for summary

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

31   to 42 U.S.C. § 1983 for alleged violations of his Fourth Amendment rights against false arrest,

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

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

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

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

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

 5          This Court reviews orders granting summary judgment de novo, construing the evidence in

 6   the light most favorable to the nonmoving party. Tracy v. Freshwater, 623 F.3d 90, 95 (2d Cir.

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

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

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

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

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

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

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

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

15   plaintiff’s conviction for the offense for which he was arrested. Cameron v. Fogarty, 806 F.2d 380,

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

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

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

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

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

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

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


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

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

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

 4   grant of summary judgment as to this claim.

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

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

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

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

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

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

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

12   28 U.S.C. § 1738 a federal court must, in according full faith and credit, give to a State court

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

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

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

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

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

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



            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).

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

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

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

 4   claims in federal court.

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

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

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

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

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

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

11   concluded that Phelan’s injuries were de minimis, finding that Phelan did not allege any specific

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

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

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

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

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

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

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

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

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

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

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


                                                        5
 1   summary judgment was not appropriate, moreover, where the plaintiff alleged that a defendant

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

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

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

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

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

 7   Appellant’s injuries were de minimis, and that summary judgment on this claim was inappropriate.

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

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

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

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

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

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

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

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

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

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

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

19   2003) (citing Cooper).

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

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

22   objections are primarily disagreements with whether the account of the facts on which Defendants-

23   Appellees have chosen to rely is correct.

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

2   court in part, and VACATE and REMAND the excessive force claim for further proceedings.
3
4                                             FOR THE COURT:
1                                             Catherine O’Hagan Wolfe, Clerk




                                                 7
