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Defendants-Appellants New York City Police Officers Nancy Heinz-Faljean ("Officer Heinz-Faljean"), Thomas McCauley ("Sergeant McCauley"), Richard J. Rosa ("Captain Rosa"), and Tosano Simonetti ("Assistant Chief Simonetti") appeal from an order of the United States District Court for the Eastern District of New York (Johnson, J.), denying their motions for summary judgment on qualified immunity grounds. Plaintiff-Appellee John Martinez alleges that the defendants violated his civil rights in connection with an altercation and arrest that resulted in his prosecution, and subsequent acquittal, on charges of assault in the second degree and resisting arrest.

Officer Heinz-Faljean was on the scene when Martinez was badly injured in a brawl with three other officers, and her failure to intervene on his behalf forms the basis of her potential liability. Sergeant McCauley was the patrol supervisor who arrived after the altercation had ended and directed that Martinez be taken to the station house. Captain Rosa was the Duty Captain in charge of conducting a preliminary investigation to decide whether to bring criminal charges against Martinez. Assistant Chief Simonetti was Commanding Officer of the Patrol Bureau, Staten Island. He was called to the station house to confer with Captain Rosa regarding the decision to file the charges against Martinez.

After he was tried and acquitted, Martinez filed a § 1983 action, naming eleven individual police officers as defendants. He also named as defendants the City of New York, the Police Department of the City of New York, and former Police Commissioner Raymond W. Kelly (collectively, the "City-NYPD"). The district court granted summary judgment in favor of the City-NYPD and three of the defendant officers. With respect to the claims of immunity of the four defendants-appellants, the court adopted the Report and Recommendation of Magistrate Judge Gold, who found that there was a genuine issue of material fact as to Officer Heinz-Faljean's awareness of Martinez' beating and the objective reasonableness of Sergeant McCauley's decision to credit the officers' version of events when he arrived at the scene, Captain Rosa's decision at the station house to bring charges against Martinez, and Assistant Chief Simonetti's concurrence with Captain Rosa's decision. The four remaining defendants did not move for summary judgment.

For the reasons that follow, we reverse in part and dismiss in part.


202 F.3d 625 (2000)

John MARTINEZ, Plaintiff-Counter-Defendant-Appellee, v. Tosano SIMONETTI and Richard J. Rosa, Defendants-Appellants, Thomas McCauley, Defendant-Counter-Claimant-Appellant, Nancy Heinz-Faljean, Esq., Defendant-Cross-Claimant-Counter-Claimant-Appellant, Richard Olivo, Defendant-Cross-Claimant, James Fulginiti, William Hyland, Richard Trapanese and Anthony Discala, Defendants-Cross-Claimants-Counter-Claimants, The New York City Police Department, Raymond W. Kelly, Police Commissioner, James Tavares, and Richard Gutch, Defendants, New York City, Defendant-Cross-Defendant.

Docket No. 99-7154.

United States Court of Appeals, Second Circuit.

Argued September 29, 1999.

Decided February 4, 2000.

New York Law School location: File #2777, Box #140