LISA MARGARET SMITH, United States Magistrate Judge.
Plaintiffs Amey Cooper and Gregory Smith commenced this action against Defendants City of New Rochelle, Detective Michael O'Rourke, Detective John Pastore, Police Officers John Doe Numbers 1-5, Police Officer Jane Doe, and Detective John Doe, asserting federal claims for unreasonable search and seizure, false arrest, malicious prosecution, excessive force, conspiracy under 42 U.S.C. § 1985, violations of the right to procedural and substantive due process, violation of the right to equal protection, violation of Plaintiffs' Sixth Amendment right to be informed of the accusations against them, and Monell liability, and state law claims for unlawful stop, detention, interrogation, and search.
The following facts relevant to the disposition of the motion are undisputed unless otherwise noted.
On November 1, 2008, Smith woke up and walked from Mount Vernon to the Bronx to get breakfast at McDonald's. Defendants' Statement of Undisputed Material Facts Pursuant to Local Civil Rule 56.1 ("Defs.' 56.1") (Docket #21) ¶ 54. After leaving McDonald's, Smith ran into "Rude Boy," a drug dealer, and purchased two bags of marijuana from him. Id. ¶¶ 55-58, Smith then went to his deceased father's apartment in New Rochelle to clean it out and spent a few hours there. Id. ¶¶ 59-60; see Radi Decl. (Docket #20) Ex. L at 73-74. Smith left his father's apartment building around 8:30 p.m. Defs.' 56.1 ¶ 61.
Cooper's mother lived in the same apartment building as Smith's father, and Cooper
That night, Detectives O'Rourke and Pastore were conducting surveillance in the area of Horton Avenue and Brook Street in New Rochelle, which was an area known for drug activity. Id. ¶¶ 86-87. While in the area, O'Rourke got a call on his cell phone from a confidential informant. Id. ¶ 88. The confidential informant was registered to O'Rourke and had provided O'Rourke information in the past. Id. ¶¶ 89, 91. Pastore also knew the confidential informant. Id. ¶ 90. O'Rourke had used this confidential informant more than ten times in the past and had paid the informant each time with New Rochelle Police Department ("NRPD") money. Id. 1192. The confidential informant called O'Rourke whenever he had information. Id. ¶ 93. The confidential informant, who only spoke to O'Rourke, said that a man named Gregory Smith purchased and was in possession of crack cocaine at Horton Avenue. Id. ¶¶ 95-96. The confidential informant told O'Rourke that Smith was entering a Jeep. Id. ¶ 97. O'Rourke and Pastore knew Smith's name and face before November 1, 2008, because they had seen him many times in known drug locations throughout their careers. Id. ¶ 101. O'Rourke and Pastore observed Smith walking on Horton Avenue and getting into the front passenger seat of a Jeep Grand Cherokee at the corner of Horton Avenue and Brook Street. Id. ¶ 1.02. O'Rourke, who was driving, followed the Jeep from Brook Street to Lincoln Avenue. Id. ¶ 103-104. O'Rourke and Pastore never lost sight of the Jeep and after a few minutes, pulled it over at Lincoln and Oakdale Avenues. Id. ¶¶ 105-106. O'Rourke stopped the vehicle because the confidential informant told him that Smith was in possession of narcotics. Id. ¶ 107. O'Rourke later paid the confidential informant for the information that he provided on November 1, 2008. Id. ¶ 109.
After stopping Cooper's vehicle, O'Rourke and Pastore approached, wearing their shields around their necks, and identified themselves as police officers. Id. ¶¶ 110-111. Smith recognized O'Rourke and Pastore. Id. ¶ 112. O'Rourke advised Cooper that she did not do anything wrong. Id. ¶ 114. O'Rourke
According to Defendants, O'Rourke approached Smith's side of the vehicle, and Pastore approached Cooper's side of the vehicle. Radi Decl. Ex. N at 30; Radi Decl. Ex. 0 at 81-82. O'Rourke told Smith that he was conducting a drug investigation and asked Smith whether he was in possession of any drugs. Defs.' 56.3 ¶¶ 118-119. Defendants contend that Smith replied, "I have some weed in my pocket," and then removed two plastic bags of marijuana from his shirt pocket and handed them to O'Rourke. Id. ¶¶ 120-121. At that point in time, O'Rourke rear handcuffed Smith and told him that he was under arrest. Id. ¶ 122. Once Smith was placed under arrest, O'Rourke searched him. Id. ¶ 123.
In contrast, Plaintiffs contend that O'Rourke approached Cooper's side of the vehicle, and Pastore approached Smith's side of the vehicle. Radi Decl. Ex. L at 148-149; Radi Deck Ex. M at 42-43; Radi Deck Ex. R at 18-19; Radi Decl. Ex. S at 14. O'Rourke asked Cooper for her driver's license, registration, and insurance before asking Smith his name and asking him to exit the vehicle. Radi Deck Ex. L at 148; Radi Deck Ex. M at 42-43; Radi Decl. Ex. R at 20; Radi Decl. Ex. S at 14. According to Smith, once he stepped out of the vehicle, Pastore started searching in his pockets and pulled out cigars and the marijuana, at which point in time he was rear handcuffed and walked to the back of the vehicle. Radi Decl. Ex. L at 150-151.
O'Rourke then asked Cooper if he could search the seat in the vehicle where Smith had been sitting, and Cooper said he could. Defs.' 56.1 ¶¶ 124-125. According to Cooper, she first asked O'Rourke whether he needed a search warrant, and O'Rourke replied no. Radi Deck Ex. M at 54; Radi Decl. Ex. S at 18. O'Rourke searched the areas of the vehicle around Smith's seat. Defs.' 56.1 ¶ 126.
According to Defendants, O'Rourke observed Smith trying to open what turned out to be two small plastic bags of crack cocaine behind his back. Id. ¶ 129.
According to Smith, while O'Rourke was searching and questioning him, O'Rourke got frustrated because Smith was not answering his questions and punched Smith in the mouth. Radi Deck Ex. L at 153, 155, 157. O'Rourke then pushed Smith down onto the hood of the vehicle, with his forearm under Smith's neck, choking him. Id. at 157-58; see Radi Decl. Ex. M at 56-57. Smith's mouth was bleeding. Radi Deck Ex. L at 166-67; Radi Deck Ex. M at 56. Pastore and O'Rourke then lifted Smith up off the hood of the vehicle and placed Smith face down on the ground, and O'Rourke placed his foot on Smith's back. Radi Deck Ex. L at 158, 162. According to Smith, he was on the ground until other, unidentified police officers arrived, picked him up, and walked him to a marked police vehicle. Id. at 163. O'Rourke denies choking, striking, punching, or kicking Smith. Defs.' 56.1 ¶ 1.38. Cooper did not see O'Rourke punch Smith, id. ¶ 1.39, and Pastore did not see O'Rourke punch or choke Smith, Id. ¶ 140.
Police backup arrived on the scene, and Smith was transported to police headquarters by NRPD patrol officers. Id. ¶ 148. Smith denies that he had any cocaine in his possession. Radi Deck Ex. L at 153; Radi Deck Ex. R at 27.
According to Defendants, after Smith left the scene, O'Rourke asked Cooper whether he could search her vehicle, and Cooper did not object. Defs.' 56.1 ¶ 157. O'Rourke claims that he alone searched the entire interior of Cooper's vehicle. Radi Decl. Ex. 0 at 1.28, 131; see Radi Decl. Ex. N at 55 (Pastore testified at his deposition that only O'Rourke searched the vehicle). According to Cooper, Pastore had ordered her back into her vehicle during Smith's arrest, Radi Decl. Ex. M at 58-59, but then soon after an unidentified uniform police officer came to Cooper's window and ordered her to give him the keys to the vehicle; Cooper stated that she thought the key "was still sticking out of the ignition." Id. at 59. Cooper testified at her deposition that O'Rourke then ordered her to give him her cell phone, get out of the vehicle, and put her hands on the hood and stay there. Id. at 60. Cooper was then asked by a "short Hispanic detective" her name, her age, and where she worked. Id. O'Rourke then returned and told Cooper that her Jeep was going to be impounded and that she could be charged with loitering. Id. at 61-62. An unidentified uniform female police officer arrived and searched Cooper's person, wallet, and pocketbook, and no contraband was recovered. Defs.' 56.1 ¶¶ 153-155.
According to Cooper, O'Rourke directed at least four unidentified police officers to conduct the search of her vehicle. Radi Decl. Ex. M at 63. The officers removed Cooper's property from the vehicle and put it out on the street and the curb. Id. According to Cooper, O'Rourke insisted that the officers continue searching her vehicle even after they asked to stop because they were not finding any illegal contraband. Id. at 64. It is undisputed that no contraband was found in Cooper's vehicle. Defs.' 56.1 ¶ 158. In the trunk, however, O'Rourke found a brand new Dewalt power saw. Id. ¶ 162. Defendants contend that Cooper told them she was not sure to whom the saw belonged, so they took it and logged it for safekeeping so that they could determine the saw's owner. Id. ¶¶ 163-165. According to Cooper, she told O'Rourke that the saw belonged to' Smith. Radi Decl. Ex. M at 65. The saw was the only item seized from. Cooper's vehicle. Defs.' 56.1 ¶ 166.
According to Cooper, after O'Rourke searched the trunk, he went to the front of the vehicle where Cooper was standing and told her that he was going to impound the car because they found crack in it.
After arriving at police headquarters, Smith was read his Miranda rights. Id. ¶ 190. Sergeant Fagan booked Smith on the charges of tampering with physical evidence, criminal possession of a controlled substance in the seventh degree, unlawful possession of marijuana, and harassment. Id. ¶ 191. Smith was notified of the charges against him, told when he needed to appear in court, and issued an appearance ticket. Id. ¶ 192. Smith was bailed out for $750 and released from police custody. Id. ¶ 193. The crack cocaine and marijuana were entered into evidence, and the saw was vouchered into property. Id. ¶¶ 194-195. Laboratory tests confirmed that the two bags of white powder that O'Rourke recovered from Smith held crack cocaine. Id. ¶ 196.
O'Rourke subsequently went to the prosecutor's office to file charges against Smith. Id. ¶ 197. O'Rourke provided all of the information to the prosecutor; Pastore did not provide any information. Id. ¶¶ 198-199. Smith was charged in a misdemeanor information, which O'Rourke signed as the complaining witness, with obstructing governmental administration in the second degree, criminal possession of a controlled substance in the seventh degree, resisting arrest, and unlawful possession of marijuana. Id. ¶¶ 202-203. Pastore did not participate in drafting the complaint against Smith. Id. ¶ 204. Smith pled not guilty to the charges and requested Mapp, Dunaway, and Huntley hearings. Id. ¶ 205; see Radi Decl. Ex. K. The prosecutor decided not to proceed with the case against Smith based on concerns about producing and potentially damaging the confidential informant, and on March 11, 2009, the case was dismissed. Defs.' 56.1 ¶¶ 206-207.
Under Rule 56, summary judgment should be granted "if the movant shows 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): see also Celotex Corp. v. Catrett, 477 U.S. 317, 320-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
Local Civ. R. 56.1(a). A dispute about a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A trial judge may, therefore, grant
Under Local Rule 56.1(b), the papers opposing a motion for summary judgment shall include a correspondingly numbered paragraph responding to each numbered paragraph in the statement of the moving party, and if necessary, additional paragraphs containing a separate, short, and concise statement of additional material facts as to which it is contended that there exists a genuine issue to be tried. Local Civ. R. 56.1(b). Summary judgment may be granted only "[i]f after discovery, the nonmoving party `has failed to make a sufficient showing on an essential element of [its] case with respect to which [it] has the burden of proof.'" Berger v. United States, 87 F.3d 60, 65 (2d Cir.1996) (quoting Celotex, 477 U.S. at 323, 106 S.Ct. 2548) (alteration in original). If the party opposing summary judgment does not respond to the motion, the court may "grant summary judgment if the motion and supporting materials — including the facts considered undisputed — show that the movant is entitled to it." FED.R.CIV.P. 56(e)(3). However, even where the nonmoving party fails to respond to a motion for summary judgment, the court
D.H. Blair & Co. v. Gottdiener, 462 F.3d 95, 110 (2d Cir.2006) (quoting Vt. Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir.2004)) (emphasis in original).
Moreover, a court should "constru[e] the evidence in the light most favorable to the nonmoving party and draw[] all reasonable inferences in its favor." Mount Vernon Fire Ins. Co. v. Belize NY, Inc., 277 F.3d 232, 236 (2d Cir.2002); Farias v. Instructional Sys., Inc., 259 F.3d 91, 97 (2d Cir.2001); Quinn v. Green Tree Credit Corp., 159 F.3d 759, 764 (2d Cir.1998); see also Anderson, 477 U.S. at 261 n. 2, 106 S.Ct. 2505. Thus, "[o]nly when no reasonable trier of fact could find in favor of the nonmoving party should summary judgment be granted." Cruden v. Bank of New York, 957 F.2d 961, 975 (2d Cir.1992) (quoting H.L. Hayden Co. v. Siemens Med. Sys. Inc., 879 F.2d 1005, 1011 (2d Cir.1989)).
The Court notes at the outset that Plaintiffs have consented to dismissal of (i) any equal protection claims, (ii) any Sixth Amendment claims, (iii) all conspiracy claims, and (iv) any claims by Smith for denial of medical treatment. See Declaration in Opposition (Docket #28) ¶ 2. In addition, Plaintiffs have failed to oppose Defendants' motion insofar as it seeks the dismissal of Plaintiffs' Monell claims
"Local Rule 56.1 states that the moving party's 56.1 statement will be deemed to be admitted unless controverted, Rule 56.1(c), and requires that such denials be supported by a specific citation to admissible evidence, Rule 56.1(d). Accordingly, any of the [Defendants'] Rule 56.1 Statements that [Plaintiffs] do not specifically deny — with citations to supporting evidence — are deemed admitted for purposes of [Defendants'] summary judgment motion." Ezagui v. City of New York, 726 F.Supp.2d 275, 285 n. 8 (S.D.N.Y.2010) (internal quotation marks and citations omitted); see AFL Fresh & Frozen Fruits & Vegetables, Inc. v. DeMar Food Serv. Inc., No. 06 Civ. 2142, 2007 WL 4302514, at *4 (S.D.N.Y. Dec. 7, 2007) ("unsupported denials, without more, cannot create disputes of material fact"). "A nonmovant cannot raise a material issue of fact by denying statements which the moving party contends are undisputed for lack of knowledge and information in part because discovery allows the party opposing summary judgment to obtain the facts necessary to determine whether it must admit or deny them." AFL Fresh & Frozen Fruits & Vegetables, 2007 WL 4302514, at *4 (internal quotation marks and citation omitted); see Ezagui, 726 F.Supp.2d at 285 n. 8 (deeming statements
Lastly, the Court notes that with respect to the critical paragraphs related to "Smith's Arrest," Pls.' 56.1 ¶¶ 110-152, and "The Search of Cooper's Vehicle," id. ¶¶ 153-170, Plaintiffs fail to provide specific responses to each of the paragraphs set forth in Defendants' Local Rule 56.1 Statement, as required by Local Rule 56.1(b). Rather, with respect to those paragraphs, Plaintiffs provide a combined general response to Defendants' statements of fact, albeit with citations to record evidence. "A district court has broad discretion to determine whether to overlook a party's failure to comply with local court rules." Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 73 (2d Cir.2001) (citations omitted). Therefore, with respect to those paragraphs, the Court has taken into account the record evidence to which Plaintiffs cite and considered whether it raises issues of material fact but has otherwise deemed admitted those facts in Defendants' Local Rule 56.1 Statement to which Plaintiffs have failed to respond specifically.
Defendants make several arguments in support of their motion for summary judgment on Plaintiffs' remaining claims against them. The Court addresses these arguments below.
As the Second Circuit has explained,
United States v. Swindle, 407 F.3d 562, 566 (2d Cir.2005). "Reasonable suspicion
In this case, Defendants set forth the following facts in their Local Rule 56.1 Statement with regard to the confidential informant: that on November 1, 2008, they were conducting surveillance in the area of Horton Avenue and Brook Street in New Rochelle; that the area was known for drug activity; that while in the area, O'Rourke received a call on his cell phone from a past proven reliable confidential informant; that the confidential informant was registered to O'Rourke and that Pastore knew the confidential informant; that O'Rourke had received information from this confidential informant in the past and had used this informant more than ten times in the past, personally paying him each time with NRPD money; that the confidential informant called O'Rourke whenever he had information; and that Pastore was present when O'Rourke received the call from the confidential informant but did not speak to the informant. Defs.' 56.1 ¶¶ 86-95.
Defendants set forth the following additional facts with regard to the confidential informant's tip: that the confidential informant said that a male named Gregory Smith purchased and was in possession of crack cocaine at Horton Avenue
Plaintiffs respond to numerous of these factual allegations by "deny[ing] knowledge or information sufficient to form a belief as to the[ir] truth." Pls.' 56.1 ¶¶ 86-95, 99-107. Thus, these factual allegations are deemed admitted. See AFL Fresh & Frozen Fruits & Vegetables, 2007 WL 4302514, at *4 ("A nonmovant cannot raise a material issue of fact by denying statements which the moving party contends are undisputed for lack of knowledge and information in part because discovery allows the party opposing summary judgment to obtain the facts necessary to determine whether it must admit or deny them.") (internal quotation marks and citation omitted); Ezagui, 726 F.Supp.2d at 285 n. 8 (deeming statements in moving party's Rule 56.1 statement admitted where opposing party responded with assertions that it denied knowledge and information sufficient to form a belief as to the truth of the allegations). In addition, Plaintiffs contest some of these allegations on the ground that they are not supported by evidence in admissible form. Pls.' 56.1 ¶¶ 96-98, 101-103, 106. However, Plaintiffs' challenge to any statements based on Defendants' Exhibit T, the police report regarding Smith's arrest, see Pls.' 56.1 ¶¶ 96, 97, 101-103, 106, fails because "a police report ... [is] admissible as an exception to the hearsay rule either as a business record under Rule 803(6), Fed. R.Evid., or a public record under 803(8), Fed.R.Evid." Goldstein v. Laurent, No. 09 Civ. 2437, 2011 WL 3586447, at *4 (S.D.N.Y. Aug. 2, 2011) (citations omitted); see Rodriguez v. Modern Handling Equip. of N.J., Inc., 604 F.Supp.2d 612, 623 (S.D.N.Y.2009) (police report found admissible as a public record under Fed.R.Evid. 803(8)).
Plaintiffs also challenge statements based on Defendants' Exhibit U, a copy of an Assistant District Attorney's handwritten notes, found in the Westchester County District Attorney's file in Smith's criminal case. See Pls.' 56.1 ¶¶ 96, 98; Defs.' 56.1 ¶ 96 ("The informant stated that a male by the name of Gregory Smith purchased and was in possession of crack cocaine at Horton Avenue. (Ex. N at p. 22; Ex. O at pp. 45, 59; Ex. T; Ex. U.)") & ¶ 98 ("The informant described Smith and the Jeep. (Ex. U.)."). Plaintiffs contend that this document does not fall within the business records exception to the hearsay rule, see Pls.' Sur-Reply Mem. of Law (Docket #38) at 7, and in any event, it contains double hearsay. Id. The Court agrees that an unidentified Assistant District Attorney's notes of statements made presumably by O'Rourke concerning statements made by the confidential informant,
The undisputed facts thus establish that Defendants were justified in relying on the confidential informant's tip. Plaintiffs in no way challenge the veracity or reliability of the informant, one whom O'Rourke had used more than ten times in the past and paid with NRPD money and who called O'Rourke when he had information. In this case, it is undisputed that while Defendants were conducting surveillance in an area known for drug activity, the informant notified O'Rourke not only that Smith had purchased and was in possession of crack cocaine at Horton Avenue, but that Smith was entering a Jeep. Meanwhile, even though O'Rourke was not required to corroborate his informant's tip, see Elmore, 482 F.3d at 181 ("Where the informant is known from past practice to be reliable, ... no corroboration will be required to support reasonable suspicion."), Defendants were able to independently corroborate the informant's statements since they knew both Smith's name and what he looked like, and upon receiving the tip, they were able to observe for themselves Smith walking on Horton Avenue and entering a Jeep at the corner of Horton Avenue and Brook Street. Considering the totality of the circumstances, the confidential informant's tip gave rise to reasonable suspicion to stop Cooper's vehicle.
Accordingly, Defendants are entitled to summary judgment on Plaintiffs' § 1983 claims based on the stop of Cooper's vehicle.
With respect to the initial search of Smith's person, however, the Court finds that there are genuine issues of material fact precluding a grant of summary judgment. Under Defendants' version of events, after Defendants stopped Cooper's vehicle, O'Rourke approached Smith's side of the vehicle, and Pastore approached Cooper's side of the vehicle. After O'Rourke asked Smith his name, and Smith identified himself, Smith exited the vehicle in response to O'Rourke's request. Defendants contend that O'Rourke told Smith that he was conducting a drug investigation and asked Smith whether he was in possession of any drugs, to which Smith replied, "I have some weed in my pocket," and then removed two plastic bags of marijuana from his shirt pocket and handed them to O'Rourke. At that point in time, O'Rourke rear handcuffed Smith and told him that he was under arrest.
Under Plaintiffs' version of events, however, O'Rourke approached Cooper's side of the vehicle, and Pastore approached Smith's side of the vehicle. O'Rourke asked Cooper for her driver's license, registration, and insurance before asking Smith his name and asking him to exit the
As explained by the Second Circuit,
United States v. Colon, 250 F.3d 130, 134 (2d Cir.2001).
"As part of a Terry stop, an officer may conduct a pat-down frisk in which he [or she] may conduct a `carefully limited search of the outer clothing ... in an attempt to discover weapons.'" Allen v. N.Y.C. Police Dep't, No. 07 Civ. 8682, 2010 WL 1790429, at *7 (S.D.N.Y. May 5, 2010) (quoting Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). Construing the evidence in the light most favorable to Plaintiffs and resolving all factual disputes in their favor, Pastore's immediate search of Smith's pockets once Smith exited the vehicle, without first doing a pat-down of the pockets to see whether they contained weapons, exceeded the permissible scope of a Terry stop. Id. (citing Sibron v. New York, 392 U.S. 40, 65, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968) (holding that where an officer made no "limited exploration for arms" and simply thrust his hand into the defendant's pocket, the search exceeded the scope of Terry)).
Having found that there are genuine issues of material fact regarding the lawfulness of the initial search of Smith's person, the Court considers whether Defendants are entitled to qualified immunity with respect to this claim. "Qualified immunity protects officials from liability for civil damages as long as `their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Gilles v. Repicky, 511 F.3d 239, 243 (2d Cir.2007) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). "A right is clearly established if (1) the law is defined with reasonable clarity, (2) the Supreme Court or the Second Circuit has recognized the right, and (3) a reasonable defendant [would] have understood from the existing law that [his or her] conduct was unlawful." Allen v. New York City Dep't of Corr., No. 06 Civ. 7205, 2010 WL 1644943, at *15 (S.D.N.Y. Mar. 17, 2010) (internal quotation marks and citations omitted), adopted by, 2010 WL 1631404 (S.D.N.Y. Apr. 19, 2010). "A public official is thus entitled to qualified immunity if (1) his [or her] conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known, or (2) it was objectively reasonable for him [or her] to believe that his [or her] actions were lawful at the time of the challenged act." Id. (internal quotation marks and citations omitted). "Since qualified immunity is as an affirmative defense, defendants `bear the burden of showing that the challenged act was objectively reasonable in light of the law existing at that time.'" Id. (quoting Varrone v. Bilotti, 123 F.3d 75, 78 (2d Cir.1997)). "An officer's belief that his [or her] action does
The law regarding the permissible scope of a Terry stop was clearly established at the time of the incident in question, and accepting Plaintiffs' version of the facts, it was not objectively reasonable for Defendants to believe that they could immediately search Smith's pockets following a stop supported only by reasonable suspicion. Thus, because there are genuine issues of material fact regarding what transpired upon Smith's exit from Cooper's vehicle,
"The common law tort of false arrest is a species of false imprisonment, an action derived from the ancient common-law action of trespass [that] protects the personal interest of freedom from restraint of movement." Singer v. Fulton County Sheriff, 63 F.3d 110, 118 (2d Cir. 1995) (internal quotation marks and citation omitted). "Under New York law, a plaintiff claiming false arrest must show, inter alia, that the defendant intentionally confined him [or her] without his [or her] consent and without justification." Weyant v. Okst, 101 F.3d 845, 852 (2d Cir.1996) (citation omitted). A claim for false arrest
Probable cause to arrest exists "when the arresting officer has knowledge or reasonably trustworthy information sufficient to warrant a person of reasonable caution in the belief that an offense has been committed by the person to be arrested." Singer, 63 F.3d at 119 (internal quotation marks and citation omitted). "Whether or not an officer had probable cause to make an arrest is a question of what the officer knew at the time of the arrest and whether she or he was reasonable in relying on that knowledge." Coyle v. Coyle, 354 F.Supp.2d 207, 211 (E.D.N.Y.) (internal quotation marks and citation omitted), aff'd, 153 Fed.Appx. 10 (2d Cir.2005).
Probable cause need not be "predicated upon the offense invoked by the arresting officer, or even upon an offense `closely related' to the offense invoked by the arresting officer," but only on whether probable cause existed for the arrest. Jaegly v. Couch, 439 F.3d 149, 153-54 (2d Cir.2006). A "plaintiff is not entitled to damages under § 1983 for false arrest so long as the arrest itself was supported by probable cause, regardless of whether probable cause supported any individual charge identified by the arresting officer at the time of arrest." Id. at 154.
In this case, it is undisputed that after stopping Cooper's vehicle, Defendants recovered marijuana from Smith's person, which gave rise to probable cause to arrest Smith. See Townes v. City of New York, 176 F.3d 138, 149 (2d Cir.1999) (even if there was no probable cause for a stop and search, there was probable cause to arrest the plaintiff upon the discovery of handguns in part because "the fruit of the poisonous tree doctrine is not available to assist a § 1983 claimant"). Although the parties dispute whether it was O'Rourke or Pastore who recovered the marijuana, compare Defs.' 56.1 ¶ 121 with Radi Decl. Ex. L at 151, that is irrelevant to the determination of whether Smith's arrest was supported by probable cause. Therefore, summary judgment is granted to Defendants on Smith's false arrest claim.
"In order to prevail on a § 1983 claim against a state actor for malicious prosecution, a plaintiff must show a violation of his [or her] rights under the Fourth Amendment and must establish the elements of a malicious prosecution claim under state law." Manganiello v. City of New York, 612 F.3d 149, 160-61 (2d Cir. 2010) (citations omitted). "In New York, a plaintiff alleging malicious prosecution must show: (1) the defendant commenced a criminal proceeding against him [or her]; (2) the proceeding ended in the plaintiffs
In this case, Smith's claim for malicious prosecution fails because there was probable cause to arrest Smith, and there is no evidence whatsoever that O'Rourke subsequently learned of facts that would negate his determination of probable cause. Accordingly, Defendants are granted summary judgment on Smith's malicious prosecution claim.
"[A]n automobile may be searched incident to the arrest of an occupant even after the arrestee has been secured and cannot access the interior of the vehicle as long as `it is reasonable to believe that evidence of the offense of arrest might be found in the vehicle.'" United States v. Gonzalez, 441 Fed.Appx. 31, 34 (2d Cir.2011) (quoting Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 1714, 173 L.Ed.2d 485 (2009)). Furthermore, "[u]nder the `automobile exception' to the Fourth Amendment warrant requirement, police may conduct a warrantless search of a readily mobile motor vehicle if probable cause exists to believe the vehicle contains contraband or other evidence of a crime." United States v. Gaskin, 364 F.3d 438, 456 (2d Cir.2004) (citations omitted). "Probable cause in this context does not demand certainty but only a fair probability that contraband or evidence of a crime will be found." Gonzalez, 441 Fed.Appx. at 34 (internal quotation marks and citation omitted).
In this case, O'Rourke had received a tip from his confidential informant that Smith, who was entering Cooper's vehicle, had just purchased and was in possession of crack cocaine. After stopping Cooper's vehicle, Defendants recovered marijuana from Smith's person. At that point, Smith was placed under arrest. According to Defendants, O'Rourke then struggled with Smith in an attempt to recover the plastic bags of crack cocaine that Smith had behind his back. According to Smith, he did not have any crack cocaine in his possession. Under either scenario, it was reasonable for Defendants to believe both that Smith might have hidden either additional drugs or the crack cocaine itself in Cooper's vehicle and that there was a "fair probability" that such drugs would be found through a search of the vehicle. Thus, the search of the vehicle was lawful even if, as Plaintiffs state in
The fact that Cooper was ordered out of her vehicle for the purposes of the search does not give rise to a Fourth Amendment violation. See Mollica v. Volker, 229 F.3d 366, 369 (2d Cir.2000) ("[I]f a stop is lawful, passengers and drivers have no Fourth Amendment interest in not being ordered out of the stopped vehicle.") (citing Maryland v. Wilson, 519 U.S. 408, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997); Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977)). Furthermore, to the extent that Cooper argues that during the entire incident she "was in police custody and was not free to leave the scene," Pls.' Mem. of Law in Opp. at 17, any detention incident to the lawful search of her vehicle cannot give rise to a Fourth Amendment violation. Cf. Hicks v. City of Buffalo, 124 Fed.Appx. 20, 24 (2d Cir.2004) (Noting, in upholding the grant of summary judgment on the plaintiffs' false arrest claim, "there is no evidence that any plaintiff was confined or subject to any form of restraint beyond that permissibly associated with the lawful search of the premises. See Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981)."). Insofar as Cooper complains about threatening or abusive comments made by O'Rourke during the search, such comments are not actionable. See, e.g., Calderon v. Wheeler, No. 9:06-CV-0963, 2009 WL 2252241, at *13 (N.D.N.Y. July 28, 2009) ("42 U.S.C. § 1983 is not designed to rectify harassment or verbal abuse.") (citation omitted); Keyes v. City of Albany, 594 F.Supp. 1147, 1155 (N.D.N.Y.1984) ("[T]he use of vile and abusive language, no matter how abhorrent or reprehensible, cannot form the basis for a § 1983 claim,") (citations omitted). Finally, to the extent that Cooper challenges the search of her person, such search was attributed to an "unidentified female officer." Pls.' 56.1 at p. 8. Since, as noted in footnote 9, supra, the Court dismisses Plaintiffs' claims against the John and Jane Doe Defendants, any such claim is hereby dismissed.
The first and second causes of action in Plaintiffs' Complaint include procedural due process claims on behalf of Cooper and Smith. The seventh, and final, cause of action is for a violation of Plaintiffs' "substantive due process right to personal security." Compl. ¶ 82. In Plaintiffs' brief in opposition to the motion, they characterize their due process claims as being based on (i) the stop of Cooper's vehicle, and (ii) Smith's arrest. See Pls.' Mem. of Law in Opp. at 17.
As both Plaintiffs and Defendants acknowledge, "Due process is violated where officers act in bad faith and make an arrest without probable cause." Sheikh v. City of New York Police Dep't, nos. 03-CV-6326, 05-CV-4718, 2008 WL 5146645, at *8 (E.D.N.Y. Dec. 5, 2008). Accordingly, in light of the Court's finding that there was probable cause for Smith's arrest, his due process claims fail. See id. ("Where, as here, probable cause has been clearly established, there can be no claim for denial of either the procedural or substantive right to due process.") (internal quotation marks and citation omitted). In addition, both Cooper's and Smith's due process claims must be dismissed as duplicative of their Fourth Amendment claims
Defendants move for summary judgment on all of Plaintiffs' claims except for Smith's § 1983 excessive force claim against O'Rourke. See Mem. of Law in Supp. (Docket #22) at 1 n. 1. Thus, this claim will proceed to trial. However, the claim is dismissed as against Pastore based not only on Plaintiffs' abandonment of the claim, as explained at pages 600-01, supra, but also on Plaintiffs' admissions that Pastore "did not punch or choke plaintiff Smith" and "did not use excessive force against plaintiffs." Radi Decl. Ex. E ¶¶ 4-5; Radi Decl. Ex. F ¶¶ 4-5; see Fed. R.Civ.P. 36(b) ("A matter admitted under this rule is conclusively established unless the court, on motion, permits the admission to be withdrawn or amended.").
Defendants move for summary judgment on the issue of whether Plaintiffs are entitled to punitive damages. "Generally, the issue of whether to award punitive damages is an issue for the jury to decide based on an evaluation of the plaintiffs proof of sufficiently serious misconduct." Picciano v. McLoughlin, 723 F.Supp.2d 491, 506 (N.D.N.Y.2010) (internal quotation marks and citations omitted). Therefore, with respect to those claims that are proceeding to trial — Smith's § 1983 unlawful search claim based on the initial search of his person and Smith's § 1983 excessive force claim against O'Rourke the issue of whether to award punitive damages is to be determined at trial as well. See Emblen v. Port Auth. of New York/New Jersey, No. 00 Civ. 8877, 2002 WL 498634, at *12 (S.D.N.Y. Mar. 29, 2002) ("[B]ecause [plaintiff] has provided sufficient evidence to overcome summary judgment, the Court cannot state as a matter of law that [plaintiff] is not entitled to punitive damages."); Picciano, 723 F.Supp.2d at 506 ("Where the plaintiff has provided sufficient evidence to overcome summary judgment with respect to excessive force, the Court cannot state as a matter of law that the [plaintiff] is not entitled to punitive damages.") (internal quotation marks and citation omitted).
For the above-stated reasons, Defendants' motion for summary judgment (Docket #19) is granted in part and denied in part. The City of New Rochelle, Defendants Pastore and O'Rourke in their official capacities, and the John and Jane Doe Defendants are all dismissed from the action. Since the only claims remaining in the case are brought on behalf of Plaintiff Gregory Smith, Plaintiff Amey Cooper is dismissed from the action as well. The remaining parties are directed to contact the Court to schedule a final pre-trial conference.
Plaintiffs argue in their sur-reply papers that Defendants' reliance on the business records exception to support the admissibility of the police records cited in Captain Kealy's affidavit is "misplaced" because the affidavit does not establish all of the elements required by Fed.R.Evid. 803(6). Pls.' Sur-Reply Mem. of Law at 2-3 (Kealy's affidavit "do[es] not establish that the records were made at or near the time by — or from information transmitted by — someone with knowledge of the statements made therein. Fed.R.Evid. 803(6)(A)."). However, these documents would nonetheless be admissible both under Rule 803(8) as public records, see Goldstein, 2011 WL 3586447, at *4; Rodriguez, 604 F.Supp.2d at 623, and under Rule 902(4)(A), pursuant to which certified copies of public records are deemed self-authenticating. See Fed, R. Evid. 902(4)(A) ("A copy of an official record — or a copy of a document that was recorded or filed in a public office as authorized by law — if the copy is certified as correct by: (A) the custodian or another person authorized to make the certification.").
Likewise, with respect to Radi Decl. Ex. EE, the Request for Evidence Examination and Preliminary Report from the laboratory confirming that the white substance recovered from Smith was cocaine, such exhibit would be admissible under Rule 902(4)(A). The admissibility of the exhibit is supported by the Affidavit of ADA John Carmody (Docket #33-3), which certifies that Radi Deck Ex. EE is a "true and accurate" copy of a record "maintained as part of the Westchester County District Attorney's file in the matter of People v. Gregory Smith, New Rochelle City Court Docket No. 08-2102"; states that it is a record "maintained by [sic] in the regular practice of the DA's Office"; and declares that the affidavit is based upon Carmody's "personal knowledge of the regular activities and operations of the DA's Office as an Assistant District Attorney and Records Access Officer for the DA's Office." Carmody Aff. ¶¶ 3-4, 7. In any event, Plaintiffs only contest the admissibility of Radi Deck Ex. EE on the ground that its factual contents "are neither material or [sic] relevant" to the determination of the motion for summary judgment. Pls.' Sur-Reply Mem. of Law at 5. However, the laboratory results are relevant to the extent that they provided a basis for the charge of criminal possession of a controlled substance in the seventh degree as set forth in the misdemeanor information signed by O'Rourke. See Radi Deck Ex. FF.
