EDGARDO RAMOS, District Judge.
On June 5, 2016, Richard Ramirez ("Ramirez" or "Plaintiff") brought this lawsuit against Police Officer Dwight Powell ("Powell"), Police Officer James Burke ("Burke"), Sergeant Noel Gutierrez ("Gutierrez"), and the City of New York (the "City") (collectively, "Defendants"). See Doc. 1. Ramirez brought several claims relating to his detention by police officers in the early morning of October 23, 2015, which lasted for approximately 40-45 minutes. Id.; see also Plaintiff's Affirmative Rule 56.1 Statement in Opposition to Defendants' Motion for Summary Judgment ("Pl.'s Add'l 56.1") (Doc. 63) ¶¶ 36, 64. Ramirez now moves for partial summary judgment based on a five minute portion of his detention, and Defendants move for summary judgment on all claims. See Docs. 43, 52. Ramirez also moves for leave to amend his complaint to add an additional claim for Monnell liability based on the City's alleged procedure regarding warrant checks. See Doc. 46. For the following reasons, Ramirez's motions are GRANTED and Defendants' motion is GRANTED in part and DENIED in part.
On October 22, 2015, Ramirez visited his friend Gabriel Mercado ("Mercado") for Mercado's birthday. Pl.'s Add'l 56.1 ¶ 1. As a gift, Ramirez brought Mercado a black jacket identical to the one he was wearing. Id. ¶ 2. After having a drink with Mercado, Ramirez left at approximately 1:00 a.m. on October 23, 2015. Id. ¶¶ 4-5. Ramirez walked back to his apartment approximately twenty-five blocks away and realized that he was accidentally wearing Mercado's new jacket and not his own. Id. ¶¶ 5-6. Ramirez walked all the way back to Mercado's and hailed a cab home around 2:00 a.m. after making the exchange. Id. ¶¶ 7-9.
After Ramirez arrived at home and paid the taxi driver, he attempted to exit the car but felt the door push back on him. Id. ¶ 11. Three men—Defendants Burke, Powell, and Gutierrez—were surrounding the car, flashing lights into Ramirez's face. Id. ¶ 12. Unbeknownst to Ramirez at the time, they were police officers wearing plain clothes who were assigned to the 33
When the officers first encountered Ramirez, he was sweating profusely, which he explained by saying that he had just walked sixty blocks. Defendants' Rule 56.1 Statement in Support of Defendants' Motion for Summary Judgment ("Defs.' 56.1") (Doc. 55) ¶¶ 1-2. Officer Burke asked the driver if Ramirez had paid his fare, and the driver replied that he had. Pl.'s Add'l 56.1 ¶ 15. Ramirez told the officers that he lived in the building the taxi was parked in front of and asked to be allowed to leave. Id. ¶ 23. In response, Sergeant Gutierrez told Ramirez to "shut the [expletive] up." Id. ¶ 24.
Fearful of being shot, Ramirez turned on the interior light in the taxi and raised his hands. Id. ¶ 32. In fact, Ramirez kept his hands up throughout the entirety of the encounter, including after the officers asked him why he didn't put his hands down. Defs.' 56.1 ¶ 3; Plaintiff's Responsive Rule 56.1 Statement in Opposition to Defendants' Motion for Summary Judgment ("Pl.'s Opp. 56.1") (Doc. 62) ¶ 3. Officer Powell then ordered Ramirez out of the car. Pl.'s Add'l 56.1 ¶ 34. Ramirez asked Officer Powell to open the door for him, and exited the taxi when Officer Powell complied with his request. Id. ¶¶ 35-36. By the time Ramirez exited the car, he had already been detained for twenty minutes. Id.
Outside the car, Officer Powell used his chest to push Ramirez against the car. Defs.' 56.1 ¶ 7. The officers the ordered Ramirez to turn around and so he could be frisked. Pl.'s Add'l 56.1 ¶ 39. Ramirez initially said that he did not consent to the search, but upon observing Sergeant Gutierrez reach for his gun and hearing Officer Powell and Sergeant Gutierrez say, "turn the [expletive] around," he complied. Id. ¶¶ 40-42. Officer Powell then frisked Ramirez and in the process of doing so, groped Ramirez's chest and genital area. Id. ¶¶ 43, 45.
Officer Powell next asked for Ramirez's identification. Id. ¶ 50. Ramirez complied. Id. ¶ 51. Officer Powell gave the identification to Officer Burke, who ran a warrant check, which took approximately five minutes but returned no arrest warrants for Ramirez. Id. ¶¶ 54, 58-59.
When asked at his deposition why he ran a warrant check, Officer Powell stated that it was "procedure." Id. ¶ 56. After the warrant check, the officers got in their car, and Officer Powell told Ramirez, "Next time stop disrespecting us and next time you won't get treated like that." Id. ¶ 63. Ramirez asked for the officers' names, which they refused to provide. Id. ¶ 68. Ramirez also asked for the precinct in which the officers worked, and they incorrectly stated that they worked at the 23
The officers later testified that they found Ramirez to be "belligerent." See Declaration of Cyrus Joubin dated March 19, 2018 (Doc. 61) Ex. C ("Gutierrez Dep.") at 81:11-14; see also id. at 94:24-25 ("He was being loud, causing a scene."); Ex. D ("Powell Dep.") at 109:22-23 ("He was yelling. Um, being combative."), 110:5-6 ("He started cursing, acting rambunctious."), 153:15-16 ("I would say [Ramirez was being] more like disrespectful."). According to Sergeant Gutierrez, Ramirez kept saying that he was not obligated to show the officers anything, which he knew because he used to be an auxiliary police officer. Gutierrez Dep. at 81:11-14; see also Powell Dep. at 109:6-9. Officer Powell's decision to frisk Ramirez stemmed from the fact that he perceived Ramirez's behavior to be non-compliant and combative. Powell Dep. at 110:14-24 ("I proceeded to frisk him for my safety, just to make sure . . . that he did not have any weapons on him. Because like I said, uh, he was very un-compliant, very combative . . . in the manner that he was acting. I wanted to make sure that he did not have any weapons that could harm me or the guys that I was with.").
On June 5, 2016, Ramirez filed the instant complaint. He raised seven claims under Section 1983: (1) deprivation of federal civil rights, (2) illegal seizure, (3) illegal search, (4) First Amendment retaliation, (5) failure to intervene, (6) excessive force, and (7) Monell liability. See Compl. ¶¶ 62-87.
Summary judgment is only appropriate where the "materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, [and] other materials" show "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a)-(c). "An issue of fact is `genuine' if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Senno v. Elmsford Union Free Sch. Dist., 812 F.Supp.2d 454, 467 (S.D.N.Y. 2011) (citing SCR Joint Venture L.P. v. Warshawsky, 559 F.3d 133, 137 (2d Cir. 2009)). A fact is "material" if it might affect the outcome of the litigation under the governing law. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986).
The party moving for summary judgment is first responsible for demonstrating the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); see also Atl. Mut. Ins. Co. v. CSX Lines, L.L.C., 432 F.3d 428, 433 (2d Cir. 2005). If the moving party meets its burden, "the nonmoving party must come forward with admissible evidence sufficient to raise a genuine issue of fact for trial in order to avoid summary judgment." Saenger v. Montefiore Medical Center, 706 F.Supp.2d 494, 504 (S.D.N.Y. 2010) (quoting Jaramillo v. Weyerhaeuser Co., 536 F.3d 140, 145 (2d Cir. 2008)).
In deciding a motion for summary judgment, the Court must "`construe the facts in the light most favorable to the non-moving party and must resolve all ambiguities and draw all reasonable inferences against the movant.'" Brod v. Omya, Inc., 653 F.3d 156, 164 (2d Cir. 2011) (quoting Williams v. R.H. Donnelley, Corp., 368 F.3d 123, 126 (2d Cir. 2004)). However, a motion for summary judgment cannot be defeated on the basis of conclusory assertions, speculation, or unsupported alternative explanations of facts. Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 310 (2d Cir. 2008); see also Senno, 812 F. Supp. 2d at 467 (citing Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998)). The non-moving party must do more than show that there is "some metaphysical doubt as to the material facts." McClellan v. Smith, 439 F.3d 137, 144 (2d Cir. 2006) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). To defeat a motion for summary judgment, "the non-moving party must set forth significant, probative evidence on which a reasonable fact-finder could decide in its favor." Senno, 812 F. Supp. 2d at 467-68 (citing Anderson, 477 U.S. at 256-57).
Nonetheless, "summary judgment may not be granted simply because the court believes that the plaintiff will be unable to meet his or her burden of persuasion at trial. There must either be a lack of evidence in support of the plaintiff's position or the evidence must be so overwhelmingly tilted in one direction that any contrary finding would constitute clear error." Danzer v. Norden Systems, Inc., 151 F.3d 50, 54 (2d Cir. 1998) (internal citations omitted).
Rule 15 of the Federal Rules of Civil Procedure allows a party to amend its complaint pursuant to the other party's written consent or the court's leave. Fed. R. Civ. P. 15. Under Section 15(a)(2), a "court should freely give leave [to amend] when justice so requires." Fed. R. Civ. P. 15. Motions to amend are ultimately within the discretion of the district court judge, Foman v. Davis, 371 U.S. 178, 182 (1962), who may deny leave to amend for "good reason, including futility, bad faith, undue delay, or undue prejudice to the opposing party." Holmes v. Grubman, 568 F.3d 329, 334 (2d Cir. 2009) (internal quotation marks omitted) (quoting McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir. 2007)). In Loreley Financing (Jersey) No. 3 Ltd. v. Wells Fargo Sec., LLC, the Second Circuit reaffirmed that the "liberal spirit" of Federal Rule of Civil Procedure 15 embodies a "strong preference for resolving disputes on the merits." 797 F.3d 160, 190-91 (2d Cir. 2015) (quoting Williams v. Citigroup Inc., 659 F.3d 208, 212-13 (2d Cir. 2011)).
An amendment to a pleading is futile if the proposed claim would not withstand a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). Dougherty v. North Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 88 (2d Cir. 2002) (citing Ricciuti v. N.Y.C. Transit Auth., 941 F.2d 119, 123 (2d Cir. 1991)). To withstand a motion to dismiss, the plaintiff must allege sufficient facts that, when accepted as true, state "a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The party opposing the motion to amend bears the burden of proving the claim's futility. See, e.g., Allison v. Clos-ette Too, L.L.C., 14 Civ. 1618 (LAK) (JCF), 2015 WL 136102 at *2 (S.D.N.Y. Jan. 9, 2015). The Second Circuit has held that leave to amend may be denied on the basis of futility when it is "beyond doubt that the plaintiff can prove no set of facts in support of his amended claims." Pangburn v. Culbertson, 200 F.3d 65, 71 (2d Cir. 1999) (citation and internal quotation marks omitted).
Ramirez argues that he is entitled to partial summary judgement on his second and fifth claims, for illegal seizure under Section 1983 and failure to intervene, based on the warrant check that was conducted by Officer Burke and observed by Sergeant Gutierrez and Officer Powell. See Memorandum of Law in Support of Plaintiff's Motion for Partial Summary Judgment ("Pl.'s Mem.") (Doc. 45), at 1, 8. According to Ramirez, whether his interaction with the officers is viewed through the lens of a traffic stop or a Terry stop, the officers' actions were plainly unconstitutional. Id. at 6.
135 S.Ct. 1609, 1614 (2015) (internal citations and quotations omitted). During a stop, an officer's permissible activities include "determining whether to issue a traffic ticket . . ., checking the driver's license, determining whether there are outstanding warrants against the driver, and inspecting the automobile's registration and proof of insurance." Id. at 1615. But while that type of conduct, which promotes "highway and officer safety," is permissible regardless of the duration of the traffic stop, police conduct that investigates "crime in general or drug trafficking in particular" must be supported by "reasonable suspicion of criminal activity" when it prolongs the stop. Id. at 1616.
Ramirez argues that because the warrant check occurred after the frisk was complete, "the investigation of the traffic infraction had ended, and there was no reason to believe Plaintiff had committed or was committing any crime." Pl.'s Mem. at 6. Defendants argue that "running a routine warrant search is considered part of the officers' safety precautions and not a `dragnet' for potential criminal activity." Memorandum of Law in Support of Defendants' Motion for Summary Judgment and in Opposition to Plaintiff's Motion for Partial Summary Judgment and to Amend ("Defs.' Mem.") (Doc. 53), at 4. The Court disagrees. Even if running a warrant check on a passenger may, in some circumstances, be considered a safety precaution,
Further, police officers have "an affirmative duty to intercede on the behalf of a citizen whose constitutional rights are being violated in his presence by other officers." O'Neill v. Krzeminski, 839 F.2d 9, 11 (2d Cir. 1988). In each case, the question is "whether a defendant had a realistic chance to intercede," which turns on "such factors as the number of officers present, their relative placement, the environment in which they acted, the nature of the assault, and a dozen other considerations. Among these considerations, of course, the assault's duration will always be relevant and will frequently assume great importance." Figueroa v. Mazza, 825 F.3d 89, 107 (2d Cir. 2016). Here, Ramirez put forward evidence that while Officer Burke conducted the warrant check, both other officers knew what was happening and did not intervene. Officer Powell asked Ramirez for his identification and then handed it to Officer Burke, who returned to the officers' car to conduct the warrant check while Officer Powell and Sergeant Gutierrez remained standing next to Ramirez. Pl.'s Add'l 56.1 ¶¶ 50-54, 57. Sergeant Gutierrez testified in his deposition that he knew Officer Burke was conducting a warrant check. Id. ¶ 55. The warrant check lasted for approximately five minutes. Id. ¶ 58. In other words, there was ample opportunity for either Sergeant Gutierrez or Officer Powell to stop the warrant check.
The Court therefore GRANTS summary judgment in favor of Ramirez for his illegal search and seizure and failure to intervene claims to the extent that they relate to the warrant check and DENIES Defendants' motion for summary judgment for the same claims.
Ramirez also seeks to amend his complaint to include a claim for Monnell liability based on the alleged policy or procedure of the City of New York to unconstitutionally prolong traffic stops by running warrant checks on the occupants. See Doc. 46.
Defendants move for summary judgment on Ramirez's remaining search and seizure claims, arguing that the officers are entitled to qualified immunity because "reasonable officers could disagree [about] whether there was reasonable suspicion to stop and search" Ramirez given: (1) the time at which the stop occurred; (2) the fact that Ramirez refused to put his hands down and refused to open the door of the cab; (3) the fact that Ramirez was sweating profusely and his explanation for his appearance; and (4) the fact that he was holding a vaporizer pen in his hand. Defs.' Mem. at 8. Ramirez argues that these facts are cherry-picked from the record and that none of those facts would lead a reasonable officer to suspect that Ramirez was armed, as required to conduct a frisk. Memorandum of Law in Opposition to Defendants' Motion for Partial Summary Judgment ("Pl.'s Opp. Mem.") (Doc. 64), at 6.
"Reasonable suspicion requires more than an inarticulate hunch. The suspicion must derive from specific and articulable facts which, taken together with rational inferences from those facts, provide detaining officers with a particularized and objective basis for suspecting wrongdoing." United States v. Santillan, ___ F.3d ___, 2018 WL 4038032, at *4 (2d Cir. Aug. 24, `) (internal citations and quotation marks omitted). A court weighing a detaining officer's decision to detain an individual should "view the totality of the circumstances through the eyes of a reasonable and cautious officer on the scene, whose insights are necessarily guided by the officer's experience and training." Id.
Preliminarily, the Court notes that it is at a loss to see how two of the Defendants' proffered bases to stop and search Ramirez, even in combination with the others, could possibly contribute to a reasonable inference that wrongdoing was afoot. First, it is completely unremarkable today—and it was in October 2015—for a New Yorker to be headed home in a taxi at 2:00 a.m. Second, the fact that Ramirez was holding a vaporizer pen is no more incriminating than if he had been holding a cigarette or a lighter.
To be sure, the fact that Ramirez was uncooperative and sweating profusely provides some support for Defendants' argument that reasonable officers could disagree about whether it was reasonable to detain Ramirez. Cf. Santillan, 2018 WL 4038032, at *5-6 (finding that although it was a "close case," the defendant's nervous appearance and inability to convincingly explain where he had come from supported a reasonable suspicion finding). But those factors must be weighed against other factors in this case, such as the fact that Ramirez repeatedly offered to show the officers his identification in order to prove that he lived in the building where the taxi was stopped and therefore had a legitimate basis to be in the neighborhood. Pl.'s Add'l 56.1 ¶ 26. In addition, Ramirez kept his hands raised, in an apparent effort to demonstrate to the officers that he posed no threat. Id. ¶ 32. The officers disclaimed that there was any smell of marijuana in the taxi, id. ¶ 30, and Officer Powell did not suspect that Ramirez possessed any drugs, id. ¶ 29.
Defendants move for summary judgment on Ramirez's excessive force claim because the only arguable instance of force alleged in Ramirez's complaint was that Officer Powell pushed his chest into Ramirez's and backed Ramirez against the taxi. See Compl. ¶ 33; Defs.' 56.1 ¶ 7. In opposition Ramirez stated, for the first time before this Court, that his theory of excessive force is that Officer Powell's frisk of Ramirez constituted a "sexual groping" and a battery. Pl.'s Opp. Mem. at 11. Ramirez's counsel explained that he shared this theory with Defendants' counsel on October 9, 2017 and that Defendants' pre-motion conference letter regarding the instant motion did not include mention of moving for judgment on the excessive force claim. See Joubin Decl. Ex. 10 (October 9, 2017 e-mail); Doc. 42 (Defendants' pre-motion conference letter). The Court will assume that had Ramirez been aware that Defendants intended to move for summary judgment on this issue, he would have sought leave to amend his allegations to align with his current theory of excessive force. Cf. Pl.'s Opp. Mem. at 13 (stating that Ramirez would have notified the Court of changes to its case theory with respect to the sexual nature of his frisk had he known Defendants would move on the claim).
According to Ramirez's deposition, when Officer Powell frisked him, he did not search common areas in which individuals may store weapons or contraband—he did not, for example, search Ramirez's pockets or socks. See Joubin Decl. Ex. 2 ("Ramirez Dep.") at 78:11-25. Instead, Officer Powell "went straight for [his] chest, [his] stomach area, and [his] groin." Id. Ramirez stated that although the interaction occurred while he was clothed, he felt groped rather than what he would expect to feel during a routine "pat down." Id. at 78:3-10.
Construing the evidence in the light most favorable to Ramirez, the Court finds that Defendants are entitled to summary judgment on the excessive force claim. "Courts in the Second Circuit have consistently held that . . . brief contact with an arrestee's breasts or genital area during a pat-down, without more, is insufficient to violate the Fourth Amendment." Scalpi v. Amorim, No. 14 Civ. 2126 (KMK), 2018 WL 1606002, at 18-19 (S.D.N.Y. Mar. 29, 2018) (collecting cases); see also Wright v. City of Waterbury, No. 07 Civ. 306 (CFD), 2011 WL 1106217, at *7 (D. Conn. Mar. 23, 2011) (finding that even if an officer's "palm cupped [the plaintiff's] groin" during a frisk, that conduct "does not rise to the level of unreasonableness required for a Fourth Amendment violation"). Although the Court does not doubt Ramirez's discomfort during and after the search, the constitution does not prohibit the type of "brief contact" at issue in this dispute. The Court, therefore, GRANTS Defendants' motion for summary judgment on Ramirez's excessive force claim and his claim for failure to intervene with respect to excessive force.
Next, Defendants argue that they are entitled to summary judgment on Ramirez's claim for first amendment retaliation because he has not demonstrated "that his detention or frisk were motivated by constitutionally protected free speech, as opposed to other factors." Reply Memorandum of Law in Support of Defendants' Motion for Summary Judgment ("Defs.' Reply Mem.") (Doc. 69), at 4.
In opposition, Ramirez points out the fact that he attempted to assert his right not to be frisked, was told to "turn the [expletive] around," and then was searched in a manner that Ramirez found to be humiliating and overly sexual. Pl.'s Opp. Mem. at 10-11. "A plaintiff can establish a causal connection that suggests retaliation by showing that protected activity was close in time to the adverse action." Gogol v. City of New York, No. 15 Civ. 5703 (ER), 2017 WL 3449352, at *9 (S.D.N.Y. Aug. 10, 2017) (quoting Espinal v. Goord, 558 F.3d 119, 129 (2d Cir. 2009)). In Gogol, this Court denied summary judgment on a First Amendment retaliation claim when the evidence suggested that a plaintiff was followed and ultimately arrested by a police officer shortly after she chided him by saying "courtesy and respect" after he refused to answer her questions concerning an ongoing investigation. Id. Here, after detaining Ramirez for an extended period of time and conducting both a frisk and a warrant search, Officer Powell told Ramirez, "Next time stop disrespecting us and next time you won't get treated like that." Pl.'s Add'l 56.1 ¶ 63. Officer Powell's statement at the end of the encounter, coupled with the officers' strong recollections that Ramirez's behavior was disrespectful and combative but not particularly threatening, do support a reasonable inference that the officers' actions could have been "motivated by or substantially caused by" Ramirez's purportedly disrespectful speech and conduct. See Gutierrez Dep. at 81:11-14, 94:24-25; Powell Dep. at 109:22-23, 110:5-24.
Further, although Defendants argue that Ramirez has put forward no evidence of injury as a result of Defendants' actions, the Court finds that the prolonged detention, humiliating frisk, and unnecessary warrant check could constitute injury resulting from Defendants' actions. The Court concludes that there is a genuine issue of material fact with respect to this claim—namely, whether Defendants' actions were motivated by a reasonable suspicion of wrongdoing, by aggravation due to Ramirez's behavior and statements, or for another reason entirely. Summary judgment is therefore DENIED.
However, while Ramirez initially brought a claim for Monell liability based on a failure to train officers not to violate the First Amendment rights of officers, Ramirez concedes that the claim is "not supported by sufficient record evidence." Pl.'s Opp. Mem. at 15. The Court therefore GRANTS Defendants' motion for summary judgment on Ramirez's current claim for Monell liability.
Neither party provides any argument regarding Ramirez's first claim for "deprivation of federal civil rights." That claim alleges that the officers' actions "deprived [Ramirez] of the rights guaranteed to citizens of the United States by the First and Fourth Amendment to the Constitution." See Compl. ¶¶ 62-66. Not only is this claim duplicative of Ramirez's later claims for specific violations of his First and Fourth Amendment rights, "such general allegations, without supporting facts other than a clause incorporating an entire complaint by reference, are insufficient to withstand even a motion to dismiss because they do not give fair notice of what the claim is and the grounds upon which it rests." Washington v. City of New York, 05 Civ. 8884 (LAP), 2009 WL 1585947, at *10 (S.D.N.Y. June 5, 2009) (internal quotation marks omitted). The Court therefore GRANTS summary judgment to Defendants on this claim. Id.; see also Morgan v. City of New York, No. 15 Civ. 3899 (SJ), 2017 WL 6561161, at *3 (E.D.N.Y. Dec. 22, 2017) ("Plaintiff cannot proceed on a generalized theory because more specific constitutional provisions provide an explicit source of constitutional protection for his alleged injuries relating to his claimed false arrest and malicious prosecution.").
For the reasons set forth above, Ramirez's motions are GRANTED and Defendants' motion is GRANTED in part and DENIED in part. Specifically:
The parties are directed to appear for a conference on September 12, 2018 at 3:30 p.m. The Clerk of Court is respectfully directed to terminate the motions, Docs. 43, 46, and 52.
It is SO ORDERED.
