PAMELA K. CHEN, District Judge:
Pending before the Court is the motion for partial summary judgment of the Defendant City of New York ("City") and the individual police officer defendants ("Individual Defendants") (collectively, "Defendants"). Plaintiff, a New York City police officer, brought suit alleging claims arising from an incident at his home in which he was arrested and detained while off-duty by Defendants. Defendants presently move to dismiss all of Plaintiff's claims with the exception of Plaintiff's excessive force, and related state law assault and battery, claims, which Defendants admit pose a disputed issue of material fact concerning the force used. (Dkt. 58 at 2 n. 1.) For the reasons set forth below, Defendants' motion is granted in part, and denied in part.
On August 21, 2010, Plaintiff, a police officer in the New York City Police Department ("NYPD"), held a 21st birthday party for his daughter at his home beginning around 5:30 p.m. (Dkt. 56 ("Def. St.") ¶¶ 7-11.)
At approximately 12:30 a.m. that night, an argument erupted outside Plaintiff's home between a party guest and an unknown man. (Def. St. ¶ 19.) The unidentified man brandished a gun during the argument, after which approximately 10 to 15 other individuals arrived with bats and other weapons. (Def. St. ¶ 20; Dkt. 57-4 at 69.) Several people at the party called 911 to report the man with the gun. (Def. St. ¶ 21; Dkt. 60-2 (Ex. 5A1) at 1.)
Plaintiff went outside and interceded in the argument. He successfully diffused the situation by directing the individuals with the weapons away from his home and down the street. (Def. St. ¶ 22; Dkt. 57-4 at 68-69.) Plaintiff followed them down the street to ensure that they were gone from the area. (Def. St. ¶ 22; Dkt. 57-4 at 68-69.) Plaintiff then returned to his house to find the party guests "more or less in the street." (Dkt. 57-4 at 69.)
At approximately 1:30 a.m., Officer John Czulada and Sergeant Stanley MacNear
After the officers were on the scene, Tiffanie Johnson, Plaintiff's niece, "stuck her head out [] the [front] door" and yelled to Plaintiff, "they are fighting" because two individuals had started fighting inside the house. (Def. St. ¶¶ 24-25; Dkt. 57-4 at 72; Dkt. 60-3 (Ex. 12) at 30; Dkt. 57-5 at 32.)
When Sergeant MacNear arrived at the scene, bystanders approached him and reported that "there had been a fight and there was a man that had a gun." (Dkt. 60-2 (Ex. 11D) at ECF 68.) Officer Czulada also believed that the officers were responding to a call about a man with a gun. (Dkt. 60-2 at ECF 62.)
The scene inside the house was chaotic after the police entered.
The parties dispute whether Plaintiff identified himself as a police officer to the responding officers, resisted arrest, or fought with the responding officers. Whereas Defendants argue that Plaintiff failed to identify himself as a police officer (Dkt. 58 at 9-10), Plaintiff maintains that he announced several times that he was a member of the NYPD before, during, and after the altercation. (See Dkt. 57-4 at 96.)
Once at the station house, Plaintiff was placed in the youth officer's room, fell to the floor, and noticed that his hand was injured and bleeding. (Def. St. ¶¶ 31-33.) Officers called an ambulance and Plaintiff was taken to Booth Memorial Hospital in Queens, New York. (Def. St. ¶ 33.) Following treatment, Plaintiff was returned to the precinct and instructed to remain at the precinct by officers from the NYPD's Internal Affairs Bureau ("Internal Affairs") and Investigations Division. (Def. St. ¶ 34.) That day, Internal Affairs placed Plaintiff on modified duty and his service weapon was confiscated. (Def. St. ¶ 35.)
Following an investigation, Internal Affairs recommended that Plaintiff be charged with "failing to identify himself as a police officer, making physical contact with a uniformed member of the service[,] and resisting being placed in handcuffs." (Def. St. ¶ 37.) Internal Affairs also censured Defendants Czulada and Jesus Tellado for failing to comply with departmental arrest procedures. (Def. St. ¶ 38.) Plaintiff "rejected" the charges, which remain the subject of an ongoing internal NYPD trial. (Def. St. ¶ 39.)
Plaintiff sustained a broken hand as a result of the party incident and arrest. (Dkt. 57-4 at 35.) During his subsequent rehabilitation and recovery, Plaintiff continued to work on modified duty. (Dkt. 57-4 at 33.) In approximately December 2010, an NYPD doctor examined Plaintiff and cleared him to return to full duty. (Dkt. 57-4 at 36.) Although unclear from the record, it appears that Plaintiff remains employed with the NYPD as a police officer on modified duty pending the resolution of his departmental trial. (See Dkt. 57-4 at 52.)
Plaintiff initiated this action on June 24, 2011. (Dkt. 1.) Plaintiff's amended complaint (Dkt. 30) alleges a litany of state and federal claims as set forth below:
Counts 1, 2, 14, and 15 allege racial employment discrimination under 42 U.S.C. §§ 1981 and 1983, and New York State and City human rights laws.
Count 3 alleges abuse of authority under 42 U.S.C. § 1983.
Counts 4-11 are brought under the Fourth Amendment and allege illegal search of Plaintiff's home, illegal search and seizure of his person, false arrest, unlawful detention, malicious prosecution, and excessive force.
Counts 16-23 allege New York State law claims for negligence, assault and battery, false arrest, false imprisonment, and intentional infliction of emotional distress.
"Summary judgment is appropriate where there are no genuine disputes concerning any material facts, and where the moving party is entitled to judgment as a matter of law." Harvis Trien & Beck, P.C. v. Fed. Home Loan Mortgage Corp. (In re Blackwood Assocs., L.P.), 153 F.3d 61, 67 (2d Cir.1998) (citing Fed. R. Civ. Proc. 56(c)); see also Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
"The burden of showing the absence of any genuine dispute as to a material fact rests on the party seeking summary judgment." McLee v. Chrysler Corp., 109 F.3d 130, 134 (2d Cir.1997); see also Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). "In assessing the record to determine whether there is a genuine issue to be tried as to any material fact, the court is required to resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought." McLee, 109 F.3d at 134.
"Although the moving party bears the initial burden of establishing that there are no genuine issues of material fact, once such a showing is made, the non-movant must `set forth specific facts showing that there is a genuine issue for trial.'" Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir.2000) (quoting Anderson, 477 U.S. at 256, 106 S.Ct. 2505). "Mere conclusory allegations or denials will not suffice," Williams v. Smith, 781 F.2d 319, 323 (2d Cir.1986), and a plaintiff opposing summary judgment must offer "some hard evidence showing that its version of the events is not wholly fanciful." Miner v. Clinton Cnty., New York, 541 F.3d 464, 471 (2d Cir.2008). It is within this framework that the Court addresses the present summary judgment motion.
Plaintiff alleges racial employment discrimination under United States Code Title 42 Sections 1981 and 1983, the New York State Human Rights Law ("NYSHRL") § 296, and the New York City Administrative Code § 8-107 ("NYCHRL"). Discrimination claims under Sections 1981 and 1983 share "[m]ost of the core substantive standards that apply to claims of discriminatory conduct in violation of Title VII[.]"
Discrimination claims brought pursuant to Title VII, as well as Sections 1981 and 1983 and the NYSHRL, all are evaluated according to the three-step burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).
There is no dispute between the parties as to the first two prongs: Plaintiff, a black male, belongs to a protected class, and Defendants do not contend that Plaintiff is not qualified to serve as an NYPD police officer. However, the parties dispute whether the third and fourth prongs have been, or can be, satisfied.
"A plaintiff sustains an adverse employment action if he or she endures a `materially adverse change' in the terms and conditions of employment." Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir.2000) (citing Richardson v. New York State Dep't of Correctional Serv., 180 F.3d 426, 446 (2d Cir.1999)). To establish an adverse employment action, plaintiff must present evidence that the employment action deprived plaintiff of some "tangible job benefits such as compensation, terms, conditions, or privileges of employment." Alfano v. Costello, 294 F.3d 365, 373 (2d Cir.2002) (internal quotations omitted). Any change in the terms of employment, however, must be "more disruptive than a mere inconvenience or an alteration of job responsibilities" to constitute an adverse employment action. Sanders v. New York City Human Res. Admin., 361 F.3d 749, 755 (2d Cir.2004) (citing Terry v. Ashcroft, 336 F.3d 128, 138 (2d Cir.2003). Some examples of materially adverse changes in employment include "termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices ... unique to a particular situation.") Ashcroft, 336 F.3d at 138 (citing Galabya, 202 F.3d at 640).
It is undisputed that Plaintiff was placed on modified duty following the party incident at his home. This constitutes an adverse employment action. See, e.g., Payne v. New York City Police Dep't, 863 F.Supp.2d 169, 180-81 (E.D.N.Y.2012) (finding placement on modified duty was adverse employment action); Henderson v. City of New York, 818 F.Supp.2d 573, 579 n. 4 (E.D.N.Y.2011) (same). Accordingly, Plaintiff has established that he suffered an adverse employment action.
Plaintiff also must show that he was placed on modified duty under circumstances giving rise to an inference of racially discriminatory intent. See, e.g., Vaughn v. City of New York, 06-CV-6547 (ILG), 2010 WL 2076926, at *9 (E.D.N.Y. May 24, 2010) (citing Paulino v. New York Printing Pressman's Union, Local Two, 301 Fed.Appx. 34, 37 (2d Cir.2008) (summary
Here, Plaintiff admits that he has no direct or tangible evidence of discrimination. (Def. St. ¶ 41; Dkt. 57-4 at 123-24.)
Plaintiff also argues that Defendants' discriminatory intent can be inferred based on disparate treatment. Plaintiff claims that, because he was an employee in "Good Standing," he should not have been treated as he was during the party incident and thereafter. (Dkt. 60-19 at 4.) Plaintiff also claims that Defendants Tellado, MacNear, and other police supervisors should have referred the matter to the Office of Equal Employment Opportunity for investigation. (Dkt. 60-19 at 4.) Based on these assertions, Plaintiff argues that he was treated differently than similarly situated individuals outside his protected class, thereby permitting an inference of racial discrimination. See Graham, 230 F.3d at 39-40.
Plaintiff, however, fails to identify any similarly situated employees who were not comparably disciplined for substantially the same conduct that Plaintiff engaged in, or was accused of engaging in, by the NYPD. Instead, Plaintiff argues that he was discriminated against because, while he sustained injuries and was placed on modified duty, "not one police officer [was] held accountable for their outrageous conduct." (Dkt. 60-19 at 5.)
To establish disparate treatment, a plaintiff must demonstrate that he was treated materially differently than similarly situated colleagues outside his protected class.
Under this test, the proper similarly situated comparator in this case would be an off-duty police officer not in Plaintiff's protected class who was accused of the same misconduct, i.e. failing to identify himself as a police officer, assaulting an officer, and resisting arrest, but who was not placed on modified duty pending his or her investigation. The proper comparator to Plaintiff is not the Individual Defendants, who were on-duty officers responding to a report of a man with a gun at a house. Plaintiff simply fails to identify an appropriately comparable officer who received more favorable treatment by the NYPD. Consequently, Plaintiff offers no evidence to support a finding of disparate treatment from which discriminatory intent could be inferred.
"NYCHRL claims must be analyzed separately and independently from federal and state discrimination claims." Mihalik, 715 F.3d at 113 (citing Hernandez v. Kaisman, 103 A.D.3d 106, 113, 957 N.Y.S.2d 53 (1st Dep't 2012)). Although for many years the NYCHRL was deemed to mirror federal and state anti-discrimination statutes, the New York City Council passed the Local Civil Rights Restoration Act of 2005, which made clear that an independent analysis of a Plaintiff's claims under the NYCHRL was required. Id. at 108-109. Accordingly, "claims under the [NYCHRL] must be given `an independent liberal construction.'" Loeffler v. Staten Island Univ. Hosp., 582 F.3d 268, 278 (2d Cir.2009) (quoting Williams v. N.Y. City Hous. Auth., 61 A.D.3d 62, 66, 872 N.Y.S.2d 27 (1st Dep't 2009)). Pursuant to that liberal construction, a NYCHRL plaintiff need not establish that he sustained an adverse employment action. Noel v. BNY-Mellon Corp., 514 Fed.Appx. 9, 11 (2d Cir.2013) (summary order). Under the NYCHRL, a plaintiff need only show "differential treatment — that []he is treated `less well' — because of a discriminatory intent." Mihalik, 715 F.3d at 110. However, the NYCHRL is not a "`general civility code'," and a plaintiff "still bears the burden of showing that the conduct is caused by a discriminatory motive." Id. at 110 (citing Williams v. N.Y. City Hous. Auth., 61 A.D.3d 62, 79-80, 872 N.Y.S.2d 27 (1st Dep't 2009)).
Even under the NYCHRL's liberal construction, Plaintiff has failed to submit any evidence other than his generalized "gut feeling" regarding discrimination. Plaintiff has submitted no evidence
Defendants do not move for summary judgment with respect to Plaintiff's abuse of authority claim. Accordingly, it is not dismissed.
Plaintiff claims that Defendants committed an "illegal search of the residence" in violation of the Fourth Amendment when they entered his home without a warrant. (Dkt. 30 at 25.)
The Fourth Amendment provides:
U.S. CONST. amend IV. A warrant is not required in all situations, however. Under the exigent circumstances exception, warrantless entry into a dwelling is permitted where "the exigencies of the situation make the needs of law enforcement so compelling that [a] warrantless search is objectively reasonable under the Fourth Amendment." Mincey v. Arizona, 437 U.S. 385, 394, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978) (internal quotation marks omitted). Whether exigent circumstances existed at the time of the warrantless entry is evaluated on an objective basis, and "must be applied by reference to the circumstances then confronting the officer, including the need for a prompt assessment of sometimes ambiguous information concerning potentially serious consequences." Tierney v. Davidson, 133 F.3d 189, 196-97 (2d Cir. 1998) (citation omitted). The Supreme Court has identified numerous exigencies that may justify a warrantless entry into a home. Pertinent here is the "emergency aid" exception, which allows "officers [to] enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury." Kentucky v. King, ___ U.S. ___, 131 S.Ct. 1849, 1856, 179 L.Ed.2d 865 (2011) (citing Brigham City v. Stuart, 547 U.S. 398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006)); Kerman v. City of New York, 261 F.3d 229, 235 (2d Cir.2001) ("police officers may enter a dwelling without a warrant to render ... assistance to a person whom they reasonably believe to be in distress") (citation omitted). Courts are particularly sensitive to domestic situations, recognizing "the combustible nature of domestic disputes, and have accorded great latitude to an officer's belief that warrantless entry was justified by exigent circumstances when the officer had substantial reason to believe that one of the parties to the dispute
An analysis of pertinent case law is instructive. In Anthony v. City of New York, 339 F.3d 129, 135-136 (2d Cir.2003), which involved an unlawful entry claim, police officers responded to a 911 call in which the caller reported an ongoing attack on her by her husband, and that the husband had in his possession a knife, a gun, and other unknown weapons. Id. at 133.
In Brigham City, police officers responded to a call regarding a loud party at a home at about 3 a.m. 547 U.S. at 400-01, 126 S.Ct. 1943. Upon arriving at the home, the officers heard shouting, observed two juveniles drinking alcohol in the backyard of the house, and saw through a screen door an altercation taking place in the kitchen. Id. at 401, 126 S.Ct. 1943. Inside, several adults were attempting to restrain a juvenile, who broke free and hit one of the adults in the face. Id. As the altercation continued to escalate, one of the officers opened the screen door, announced his presence, and entered the kitchen. Id. When the partygoers noticed the police officer's presence, the altercation ceased. Id. Two individuals at the party were arrested, charged, and convicted of corruption of a minor. On appeal, they challenged the admission of evidence obtained after the officers entered the home on the basis of the warrantless entry. Id. The Supreme Court held that the officer's entry into the home fell under the exigent circumstances exception to the Fourth Amendment's warrant requirement. Id. at 407, 126 S.Ct. 1943. The Court reasoned that "[o]ne exigency obviating the requirement of a warrant is the need to assist persons who are seriously injured or threatened with such injury." Id. at 403, 126 S.Ct. 1943. The Court found the officers' entry into the home to be "plainly reasonable under the circumstances" because the officers were responding to an early morning call regarding a loud party, and they observed a violent altercation and minors consuming alcohol. Id. at 406, 126 S.Ct. 1943.
The present case is similar to the circumstances of both Anthony and Brigham City. Defendants arrived at Plaintiff's residence in response to a 911 call from that address reporting a man with a gun. (Def. St. ¶¶ 21, 23.) Upon arrival at the scene, Defendants heard Plaintiff's niece yell, "they are fighting." The officers also heard screams and shouting from inside the home. (Dkt. 60-2 at ECF 70.) At least one of the responding officers, Officer Czulada, "heard a commotion going on inside [the] house, people were calling for help, screaming." (Dkt. 60-2 at ECF 62.) Sergeant MacNear likewise heard screaming and yelling coming from within the house, and was told about a fight. (Dkt. 60-5 at ECF 4).
In sum, there is no genuine dispute that exigent circumstances justified Defendants' warrantless entry into the home.
Plaintiff claims he was falsely arrested as a result of the party incident. (Dkt. 60-19 at 8-9.)
In typical false arrest cases, "[t]he existence of probable cause to arrest constitutes justification and `is a complete defense to an action for false arrest,' whether that action is brought under state law or under § 1983." Jenkins v. City of New York, 478 F.3d 76, 84 (2d Cir.2007) (citing Weyant, 101 F.3d at 852). "[P]robable cause to arrest exists when the officers have knowledge or reasonably trustworthy information of facts and circumstances that are sufficient to warrant a person of reasonable caution in the belief that the person to be arrested has committed or is committing a crime." Id.
Here, there is a genuine issue of fact with respect to whether there was probable cause to arrest and detain Plaintiff. Defendants assert that the arresting officers had probable cause to believe that Plaintiff had failed to identify himself as a police officer, had assaulted police officers, and had resisted arrest. (Dkt. 58 at 10; Dkt. 60-3 (Ex. C) at ECF 55-56 (Officer Czulada testifying that Plaintiff did not identify himself and punched him multiple times); Dkt. 57-4 at 96.) However, Plaintiff testified that he identified himself as a police officer numerous times prior to being arrested and that he did not strike police officers or resist arrest. (See, e.g., Dkt. 60-19 at 8; Dkt. 60-3 at ECF 10, ECF 17.)
Furthermore, even if it were undisputed that Plaintiff resisted arrest by fighting with the officers, an arrest on this charge is only lawful if the arrest that prompted the resistance was itself lawful. See Murphy v. Lynn, 118 F.3d 938, 948 (2d Cir. 1997) (citing Weyant, 101 F.3d at 855) ("[A]s a matter of law, an arrest for resisting arrest is not lawful unless the arrest that was supposedly resisted was itself
Perhaps tellingly, Defendants make no argument that there was probable cause to arrest Plaintiff. (Dkt. 58 at 9-10.) Rather, Defendants argue that they were entitled to arrest Plaintiff without probable cause because Plaintiff, as a police officer, has a diminished expectation of privacy and freedom as compared to a civilian. (See Dkt. 58 at 9 (citing Davis v. City of New York, 2007 WL 2973695, at *6 (E.D.N.Y. Sept. 28, 2007)) ("Plaintiff, as a police officer, is not entitled to the same privacy rights as the average citizen.").) Thus, Defendants argue they were entitled to "take" Plaintiff to the precinct "so that the incident could be investigated." (Dkt. 58 at 10.) Defendants further assert that "Plaintiff was not processed as an arrest, but [was] informed by Investigations Division personnel and members of the Internal Affairs Bureau to wait at the Precinct." (Dkt. 58 at 10.)
This argument, however, conveniently elides the circumstances of the arrest and detention. While, under the reasoning of Gonzalez v. City of New York, 2000 WL 1678036 (S.D.N.Y. Nov. 8, 2000), aff'd 38 Fed.Appx. 62 (2d Cir.2002) (summary order), Defendants may be entitled to arrest and detain one of their officers to determine his or her fitness, id. at 64, here, there is a factual dispute as to whether Defendants knew or believed that Plaintiff was an officer at the time they arrested him. See supra at 21.
Accordingly, Defendants are denied summary judgment as to Plaintiff's false arrest claim (consolidated Counts 5, 6, 7, 9, 21, and 22).
Although false arrest and unlawful detention claims generally may be considered together, see, e.g., Little v. City of New York, 487 F.Supp.2d 426, 437 (S.D.N.Y. 2007) ("False arrest is simply an unlawful detention or confinement brought about by means of an arrest rather than in some other way and is in all other respects synonymous with false imprisonment,") the two claims have grown to be distinct in the Second Circuit, under certain circumstances. See Russo v. City of Bridgeport, 479 F.3d 196 (2d Cir.2007). In Russo, the Second Circuit recognized a separate claim of "unreasonably prolonged detention," the elements of which are (i) the plaintiff was incarcerated for an unreasonable length of time; (ii) the defendant, by expending reasonable cost and effort, could have conclusively established the plaintiff's innocence; (iii) the defendant failed to do so; and (iv) the defendant unlawfully detained the plaintiff, either intentionally or with deliberate
Plaintiff does not set out a Russo claim because Russo has been narrowly construed to involve situations where a law enforcement official has mishandled or suppressed readily available exculpatory evidence, which resulted in the plaintiff's unreasonably long incarceration. See Thompson, 603 F.Supp.2d at 656; Russo, 479 F.3d at 205. To the extent that Plaintiff sets forth a claim under an unreasonable detention theory, that claim fails because Plaintiff does not allege either that he was detained for an unreasonable length of time or that there was exculpatory evidence available to the officers that they withheld or failed to obtain. See Russo, 479 F.3d at 205.
Accordingly, Defendants' motion for summary judgment is granted with respect to Plaintiff's "unlawful detention" claim (Count 8), which the Court construes as a claim separate from his false arrest claim, as to which summary judgment was denied.
Plaintiff, in his opposition to the motion, admits that he cannot maintain a claim for malicious prosecution and voluntarily withdraws the claim. (Dkt. 60-19 at 9.) That claim (Count 11) accordingly is dismissed.
Defendants move for summary judgment with respect to Officer D'Onofrio on the basis that he was not involved in the incident giving rise to this action. (Dkt. 58 at 11-12.) "It is well settled in [the Second Circuit] that personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under 42 U.S.C. § 1983." Farrell v. Burke, 449 F.3d 470, 484 (2d Cir.2006). Plaintiff sets forth no factual basis to show that Officer D'Onofrio can be held liable under Section 1983 for his involvement in the alleged conduct giving rise to Plaintiff's lawsuit. Plaintiff acknowledges that personal involvement is a necessary element of a cause of action against individual police officers. (Dkt. 60-19 at 9.) The only basis Plaintiff sets forth for maintaining D'Onofrio as a defendant in this case is that (1) he entered Plaintiff's home, (2) he "unlawfully subdued Non-Party Witness Taimar Bonaparte leading to his and Non-Party Witnesses Marcus Johnson and Derrick Collins's arrests being dismissed," and (3) "[Officer] D'Onofrio was present throughout the whole incident including plaintiff's assault yet, never tried to intervene or control the situation." (Dkt. 60-19 at 9.) Defendants maintain that Officer D'Onofrio's "only involvement that night was to help Sergeant MacNear place an individual under arrest" and that Officer D'Onofrio "never even saw Plaintiff that night." (Def. St. ¶¶ 27, 28; Dkt. 58 at 11.) Plaintiff sets forth no evidence to dispute this testimony. Indeed, the exhibits cited by Plaintiff in this regard are inapposite to Plaintiff's point. If anything, Plaintiff's evidence supports Officer D'Onofrio's contention that he did not see Plaintiff that night and was not involved in his arrest. (See Dkt. 60-16 (Ex. 33) (transcript of
To the extent that Plaintiff contends that Officer D'Onofrio may be held liable for his failure to intervene in Plaintiff's arrest (Dkt. 60-19 at 9-10), this claim also fails. A law enforcement official may be held liable for an alleged Section 1983 violation if the officer "observes or has reason to know that: (1) excessive force is being used; (2) that a citizen has been unjustifiably arrested; or (3) that any constitutional violation has been committed by a law enforcement officer." Smith v. P.O. Canine Dog Chase, 2004 WL 2202564, at *9 (S.D.N.Y. Sept. 28, 2004) (Report & Recommendation) (citing Anderson v. Branen, 17 F.3d 552, 557 (2d Cir.1994) (itself citing O'Neill v. Krzeminski, 839 F.2d 9, 11-12 (2d Cir.1988))). To establish that Officer D'Onofrio failed to intervene, Plaintiff also must show that the officer had "a realistic opportunity to intervene to prevent the harm from occurring" but failed to do so. See Cerbelli v. City of New York, 2008 WL 4449634, at *11 (E.D.N.Y. Oct. 1, 2008) (citing cases).
Plaintiff sets forth no evidence to show that Officer D'Onofrio had the opportunity to intervene but failed to prevent the deprivation of Plaintiff's rights.
Accordingly, all claims against Officer D'Onofrio are dismissed with prejudice.
Plaintiff asserts New York State law claims of assault, battery and intentional infliction of emotional distress ("IIED") against the City and Individual Defendants. (Dkt. 30 at 48-53; Dkt. 60-19 at 13.) Defendants argue that Plaintiff failed to serve a proper notice of claim upon the Individual Defendants as required by New York State law. (Dkt. 58 at 15; Dkt. 59 at 8.) Plaintiff acknowledges that his notice of claim was deficient, but maintains that the defective notice of claim may be cured. (Dkt. 60 at 11-12.)
New York Municipal Law Section 50-e requires a plaintiff to serve notice
This Court cannot grant leave to Plaintiff to cure his deficient notice of claim. First, whether the Court has the authority to extend the time to file a notice of claim is unsettled in this circuit. See Berry v. Village of Millbrook, 815 F.Supp.2d 711, 725 (S.D.N.Y.2011) ("The Second Circuit has not definitively ruled on whether a federal district court may grant a request to extend time to serve the notice of claim.") (citing Corcoran v. N.Y. Power Auth., 202 F.3d 530, 540 (2d Cir.1999)); N.Y. Gen. Mun. Law § 50-e(5) ("All applications under this section shall be made to the supreme court or to the county court.") (emphases added). In the absence of clear authority to do so, district courts in this circuit routinely have found a lack of jurisdiction to consider such an application. See Berry, 815 F.Supp.2d at 725 (collecting cases). The Court finds no basis to depart from this general principle.
Second, and more conclusively, no extension of time to file a late notice of claim may exceed the limitation period for bringing an action against the public corporation. N.Y. Gen. Mun. Law § 50-e(5) ("The extension shall not exceed the time limited [sic] for the commencement of an action by the claimant against the public corporation."). In New York, the limitation period for an intentional tort is one year. N.Y.C.P.L.R. § 215(3). Adding to that limitation period the 90 days within which a plaintiff suing a municipality must file a notice of claim, the limitation period for an intentional tort against a municipality
Accordingly, Plaintiff is unable to cure the deficient notice of claim, and Plaintiff's state law tort claims against the Individual Defendants must be dismissed for failure to state a claim. Even if not procedurally barred, Plaintiff's IIED claim fails on the merits, as discussed below. Furthermore, although Plaintiff provided the requisite notice of his state law tort claims as to the City, as discussed infra, Section X(a), these Monell claims against the City also fail on the merits.
To maintain a claim for IIED under New York law, a plaintiff must prove "(1) extreme and outrageous conduct, (2) intent to cause severe emotional distress, (3) a causal connection between the conduct and the injury, and (4) severe emotional distress." Bender v. City of New York, 78 F.3d 787, 790 (2d Cir.1996); Howell v. N.Y. Post Co., 81 N.Y.2d 115, 121, 596 N.Y.S.2d 350, 612 N.E.2d 699 (1993). New York law sets a high bar for conduct that is "extreme and outrageous" rising to constitute intentional infliction of emotional distress. See Murphy v. Am. Home Prods. Corp., 58 N.Y.2d 293, 303, 461 N.Y.S.2d 232, 448 N.E.2d 86 (1983) ("so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society") (citations and quotation marks omitted). The question of whether the conduct alleged by a plaintiff may rise, as a matter of law, to the level of "extreme and outrageous" conduct is a question left to the district court in the first instance. See Stuto v. Fleishman, 164 F.3d 820, 827 (2d Cir.1999) (affirming dismissal of emotional distress claim, and holding that "[w]hether the conduct alleged may reasonably be regarded as so extreme and outrageous as to permit recovery is a matter for the court to determine in the first instance").
The New York Court of Appeals has cautioned strongly against permitting emotional distress claims where the alleged conduct falls within the ambit of other tort remedies:
First, Plaintiff's IIED claim must be dismissed because it overlaps with his claims of assault, battery, and false arrest. See Leonard v. Reinhardt, 20 A.D.3d 510, 510, 799 N.Y.S.2d 118 (2d Dep't 2005) ("the cause of action alleging intentional infliction of emotional distress should have been dismissed as duplicative of the causes of action alleging malicious prosecution and assault and battery") (citing cases).
Second, the facts contained in the record before the Court do not permit a rational jury to conclude that Defendants' conduct constitutes the type of "extreme and outrageous" conduct necessary to sustain a claim for intentional infliction of emotional distress. Although New York's law of IIED does not proscribe specific types of conduct, the conduct must be so extreme and outrageous as to be utterly intolerable in a civilized community. See Murphy, 58 N.Y.2d at 303, 461 N.Y.S.2d 232, 448 N.E.2d 86. The evidence offered by Plaintiff establishes, at most, that he was arrested by NYPD officers despite having identified himself as an officer, and that he was injured during the arrest. However, Plaintiff offers no evidence to show that the arresting officers acted willfully, or that they intentionally injured him. In sum, Plaintiff has set forth no basis to conclude that the Defendant-officers' conduct was extreme and outrageous as a matter of law.
Accordingly, Defendants' motion for summary judgment is granted with respect to Plaintiff's claim for intentional infliction of emotional distress against the Individual Defendants.
Plaintiff has alleged constitutional violations by the City, pursuant to Sections 1981 and 1983, on a variety of bases: (1) improper training and discipline of the Individual Defendant officers (Counts 12-13)
Section 1981 claims cannot be asserted against a municipal entity on the basis of vicarious liability. See Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 736, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989) ("we have rejected respondeat superior as a basis for holding a state actor liable under § 1983 for violation of the rights enumerated in § 1981"). Section 1981 liability may only be asserted against a municipal entity pursuant to Section 1983 and only in accordance with the principles established by Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). See Jett, 491 U.S. at 735, 109 S.Ct. 2702 ("We
To "prevail on a claim against a municipality under section 1983 based on acts of a public official, a plaintiff is required to prove: (1) actions taken under color of law; (2) deprivation of a constitutional or statutory right; (3) causation; (4) damages; and (5) that an official policy of the municipality caused the constitutional injury." Roe v. City of Waterbury, 542 F.3d 31, 36 (2d Cir.2008). There must be a "direct causal link between a municipal policy or custom and the alleged constitutional deprivation." City of Canton v. Harris, 489 U.S. 378, 385, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989); see Cash v. Cnty. of Erie, 654 F.3d 324, 333 (2d Cir.2011) (plaintiff asserting Monell claim must prove that action taken pursuant to official municipal policy caused the alleged injury). "Official municipal policy [] includes the decisions of a government's lawmakers, the acts of its policymaking officials, and practices so persistent and widespread as to practically have the force of law." Connick v. Thompson, ___ U.S. ___, 131 S.Ct. 1350, 1359, 179 L.Ed.2d 417 (2011) (citing Monell, 436 U.S. at 691, 98 S.Ct. 2018). "[P]laintiff must demonstrate that, through its deliberate conduct, the municipality was the `moving force' behind the alleged injury." Roe v. City of Waterbury, 542 F.3d at 37 (quoting Board of Cnty. Commis. v. Brown, 520 U.S. 397, 404, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997)).
With respect to his claims of improper training and discipline, false arrest and imprisonment, and IIED, Plaintiff makes no attempt to show that his alleged constitutional injuries relating to these claims were caused by any official municipal policy. Plaintiff points to no evidence of official municipal policy, either as a formally promulgated policy or as a pattern or practice. Nor has Plaintiff proffered any evidence that his constitutional injuries were caused by an official City policy. Furthermore, Plaintiff cannot demonstrate that, even if he was constitutionally injured because of the City's inaction, that such "inaction was the result of `conscious choice' and not `mere negligence.'" Collins v. City of New York, 923 F.Supp.2d 462, 476 (E.D.N.Y.2013) (citing Cash v. County of Erie, 654 F.3d 324, 334 (2d Cir.2011))). Accordingly, Plaintiff's Monell claims against the City set forth in Counts 12-13 and 19-23 are dismissed.
In his opposition to Defendant's motion, Plaintiff, appears to withdraw his claims for negligent hiring, supervision, and retention (Counts 16-18). Plaintiff's opposition contains a heading entitled "Plaintiff cannot establish claims for negligent hiring, supervision and retention," but under that heading, it reads "Plaintiff cannot maintain claims for malicious prosecution [and], therefore, voluntarily withdraws these claims." (See Dkt. 60-19 at 14.) The Court presumes that the heading, as opposed to the text, is correct and that Plaintiff intended to withdraw his Monell claims against the City for negligent hiring, supervision and retention. Furthermore, even if Plaintiff is not withdrawing
For the reasons stated above, Defendants' motion is granted in part and denied in part. Counts 1, 2, 4, 8, 11-20, and 23 are dismissed with prejudice. All counts are dismissed as to Defendant Patrick D'Onofrio with prejudice. Counts 3 and 10 remain. Counts 5, 6, 7, 9, 21, and 22 also remain, but are consolidated into a single count for false arrest.
SO ORDERED.
Id. Plaintiff's NYCHRL claims are addressed fully, infra, at 14.
