Fleming v. Grosvenor et al
Filing
100
OPINION AND ORDER: Defendants' 92 Motion for Summary Judgment is granted in its entirety. Because defendants are otherwise entitled to Summary Judgment on all claims, the Court need not address their remaining, alternative arguments for the dismissal of the case. The Clerk of the Court is directed to enter judgment accordingly. SO ORDERED by Judge Allyne R. Ross, on 7/6/2012. C/mailed by Chambers to pro se Plaintiff. (Forwarded for Judgment.) (Latka-Mucha, Wieslawa)
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fiLED t~~ti
IN CLERK'S OFPICE lA1
u.s. DlStR.1C1' COURT E.D.N.Y.
*
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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)(
MICHAEL FLEMING,
Plaintiff,
Jut·, 9 2012
*
BROOKLYN OFFICE
08-CV-3074 (ARR) (LB)
NOT FOR ELECTRONIC
OR PRINT PUBLICATION
-againstOPINION AND ORDER
JOHN B. MATTINGLY, Commissioner, Administration for:
Children's Services; MTONYA FLECHER, Child
Protective Specialist, Administration for Children's
Services; MICHELLE MULLINS, ECSlUnit 576,
)(
Administration for Children's Services; DANNY
HERNANDEZ, Police Officer; RONALD LIAUT AUD,
Police Officer; GEORGE A. FLORES, Administration for
Children's Services; JEFFREY AUGUSTIN, Police Officer;
LENO ISABEL, Police Officer; EON THOMPSON, Police
Officer; KEECHIPETRONILLA SIMMON-EDUGHE,
Agent, Administration for Children's Services; ANNETTE
SPELLEN, Agent, Administration for Children's Services;
LISA POLLANAIS, Agent, Administration for Children's
Services; NEW YORK CITY; DETECTIVE TOSI, Police
Officer; SERGEANT MURPHY, Police Officer,
Defendants.
ROSS, United States District Judge:
Michael Fleming ("plaintiff') brings this pro se action pursuant to 42 U.S.C. § 1983
against the City of New York, the Commissioner and several employees of the New York City
Administration for Children's Services ("ACS"), and numerous officers of the New York City
Police Department ("NYPC"). Plaintiff seeks to hold defendants liable for alleged violations of
his federal constitutional rights during searches of his Brooklyn residence on July 16 and 17,
2008, and his arrest on August 13,2008. Defendants have moved for summary judgment. For
the reasons explained below, their motion is granted.
BACKGROUND)
In March 2008, P.S. 3 contacted the New York State Central Registry to report that
plaintiffs nine-year-old daughter had, thus far in the school year, missed twenty-three days of
school and arrived late seventy-four times without reasonable excuse. Defs.' Local Rule 56.1
Statement of Material Facts ("56.1 Stmt.") ~ 1. This information was conveyed to ACS Child
Protective Specialist Mtonya Fletcher, who corroborated the absences with the school and
learned that the school's efforts to speak with the child's parents had been unsuccessful. As part
of her investigation, Ms. Fletcher also learned that plaintiff s three other children similarly had
an excessive number oflate arrivals to school. Id. ~~ 1-3. On March 25,2008, Ms. Fletcher
went to plaintiffs residence at 257 Putnam Avenue in Brooklyn, New York (the "Putnam
Avenue residence"), to see the children and speak with their parents, but she was advised by
plaintiff that she should "sue" him if ACS wanted to see the family. Id. ~~4-5. Ms. Fletcher
thereafter attempted to speak to plaintiff s children at their schools on several later dates,
including March 31, April 10, April 16, and June 17, 2008. Id.
~
7. She also returned to the
Putnam Avenue residence on June 25 and July 8, 2008, and left notices of attempts to engage
when no one responded to her knocks. Id.
~
12. Over the same time period, she left telephone
messages for plaintiff and the children's mother, none of which were returned. Id.
~~
10-11.
On April 30, 2008, in the middle of Ms. Fletcher's failed attempts to speak with the
family, ACS filed petitions alleging child neglect as to plaintiffs four children. Id.
~
6. In an
addendum attached to each of the four petitions, Ms. Fletcher laid out the children's school
attendance problems and the unsuccessful attempts that had been made to engage the parents,
I Unless otherwise noted, the parties do not contest the following facts. Plaintiff has failed to submit any response
or documents in opposition to defendants' motion for summary judgment, and the allegations of his complaint are
largely conclusory or unclear. As such, the facts are principally drawn from Defendants' Local Rule 56.1 Statement
of Material Facts and the documents submitted in support thereof.
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who had refused access to the children and hung up the telephone when ACS called. Decl. of
Mtonya Fletcher ("Fletcher Decl."), Ex. A at D00048, D00052, D00056, D00060. The
addendum stated that the Fleming parents "fail to exercise a minimum degree of care in
providing their children with adequate education" in accordance with New York law. Id.
ACS's filing of the petitions commenced proceedings in Kings County Family Court
("Family Court"), in the consolidated case of Matter of Fleming Children v. Michael Fleming et
aI., No. NN-68970900/08. 56.1 Stmt. ~ 14. At a July 16,2008 hearing in the case, ACS applied
for and received an Order on Application for Access to Children and/or Home ("Entry Order").
Id. ~ 14. The Entry Order contained the court's findings that there was probable cause to believe
that abused or neglected children may be located at the Putnam Avenue premises. Fletcher
Decl., Ex. C. It ordered that the Fleming children's parents "permit the child protective
investigator to enter the home immediately at any hour in order to determine whether an abused
or neglected child or children are present and to conduct a home study to evaluate the home
environment of the children." Id. It further provided that the ACS caseworker accompanied by
police "shall enter the home of [plaintiff] to investigate possible safety concerns regarding the
children." Id. Plaintiff was present at the hearing and objected the Family Court's jurisdiction.
Id., Ex. D.
On the same day of the hearing, at approximately 5:35 p.m., Ms. Fletcher and two other
ACS employees went to the Putnam Avenue residence with a copy of the Entry Order. 56.1
Stmt. ~ 15. Plaintiffs mother was present at the home but did not open the door, and the ACS
employees left. Id. ~~ 16-19. At approximately 9:50 p.m. that night, ACS Child Protective
Specialist Michelle Mullings returned to the premises, where she was met by several police
officers. Id. ~~ 20-21. While they were outside the residence, plaintiff arrived from the street.
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Id. ~~ 22-24. Plaintiff was shown a copy of the Entry Order but refused to allow anyone to enter.
Id. ~ 25. Plaintiff stated that his children had not lived at the residence for "months" but refused
to share their current location. Id. ~ 26. Plaintiff eventually agreed to allow Ms. Mullings and
the officers into the premises' upstairs unit,2 which Ms. Mullings observed was in terrible
condition and would have posed a hazard to children, had they been present. Id. ~~ 27-33.
Following this visual search, Ms. Mullings and the officers left. Id. ~ 34.
On the morning of July 17,2008, ACS directed its employees to return to the Putnam
Avenue premises "to see if the children are now home." Id. ~ 35; Decl. of Counsel in Support of
Defs.' Mot. for Summary Judgment, Ex. Bat 000158. At approximately 10:40 a.m., three ACS
employees arrived at the residence, where they found a Con Edison employee in the front yard
who indicated that he had a scheduled appointment to read the meter. 56.1 Stmt. ~ 36-38. The
ACS employees knocked on the door and windows of the premises, and a woman identifying
herself as "Sherise" answered the door. Id.
~~
39-40, 43. The ACS workers explained that they
had an Entry Order and that their purpose was to observe the children. Id.
refused to allow them to enter unless they called the police. Id.
~~
~
41. The woman
42, 44. The police were
called, two police officers arrived on the scene, and Sherise permitted them to enter. Id.
47. The residence was dirty and in poor condition. Id.
~~
~~
45-
48-52. One of the individuals in the
house said it was being renovated, and the inhabitants refused to let ACS take pictures. Id.
~~
48,52. A woman identifying herself as the children's grandmother ordered the ACS employees
and police officers to leave the residence, which they did. Id.
~
53.
On August 12,2008, Detective John Tosi of the Brooklyn North Warrant Squad received
a Warrant of Arrest, issued by the Family Court on August 7,2008, directing, inter alia, that
Plaintiff asserts that he initially refused to grant the officers pennission to search the residence without a warrant
but relented when they threatened to arrest him ifhe failed to comply with their demand to search the premises.
Third Am. Compl. ~~ 45-46.
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plaintiff be arrested and that he and his children be brought before the Family Court. Id. ~~ 54,
56. The NYPD's Warrant Database indicated that the Family Court had also issued an arrest
warrant for the children's mother. Id. ~ 57. With his partner, Sergeant Annemarie Murphy,
Detective Tosi conducted an investigation into the warrant and learned from the Warrant
Database that plaintiff had an outstanding criminal warrant on a charge of aggravated unlicensed
operation of a motor vehicle in third degree. Id. ~~ 58, 60-61. An ACS caseworker informed
the officers that the children's mother might be at a particular address in Manhattan, which they
visited on August 13,2008. Id. ~~ 59,62. While the officers were at the address, plaintiff
arrived on the scene. He refused to open the door to the apartment or disclose the location of his
children. Id. ~ 65. The officers contacted the Family Court and verified that the proceeding
involving plaintiffs children was stilI active and that the court still wanted plaintiff to be brought
before the court. rd. ~ 67. The officers then arrested plaintiff and brought him to the Family
Court. Id. ~~ 68-70. When plaintiffs Family Court appearance concluded, the officers again
placed plaintiff in handcuffs and brought him to the Kings County Criminal Court, where
plaintiff was brought before a judge on the aggravated unlicensed operation of a motor vehicle
charge, indicated that he did not wish to plead guilty, and was remanded to Rikers Island in the
custody of the Department of Corrections. Id.
~~
DISCUSSION
The court liberally construes plaintiff s pro se complaint to assert § 1983 claims for
unlawful search and false arrest under the Fourth and Fourteenth Amendments of the
Constitution. Although plaintiff does not make explicit reference to state law in his operative
complaint, the court shall construe his complaint broadly to allege the analogous state law claims
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of false arrest and false imprisonment. Defendants have moved for summary judgment on the
grounds, inter alia, that defendants lawfully searched the Putnam Avenue premises and lawfully
arrested plaintiff. As explained below, defendants are entitled to summary judgment.
I.
Standard of Review
"The court shall grant summary jUdgment 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 oflaw." Fed.
R. Civ. P. 56(a). The function of the court is not to resolve disputed issues but to determine
whether there is a genuine issue to be tried. See Anderson v. Liberty Lobby. Inc., 477 U.S. 242,
249 (1986). "While genuineness runs to whether disputed factual issues can reasonably be
resolved in favor of either party, materiality runs to whether the dispute matters, i.e., whether it
concerns facts that can affect the outcome under the applicable substantive law." McPherson v.
Coombe, 174 F.3d 276,280 (2d Cir. 1999) (quoting Graham v. Henderson, 89 F.3d 75, 79 (2d
Cir. 1996) (internal quotation marks and ellipses omitted)).
In assessing whether summary judgment is appropriate, the court considers "the
pleadings, depositions, answers to interrogatories and admissions on file, together with any other
firsthand information including but not limited to affidavits." Nnebe v. Daus, 644 F.3d 147, 156
(2d Cir. 2011) (quoting In re Bennett Funding Grp., Inc., 336 F.3d 94, 99 (2d Cir. 2003) (internal
quotation marks omitted)); see Celotex Corp. v. Catrett, 477 U.S. 317,322-23 (1986). The
moving party carries the burden of proving that there is no genuine dispute respecting any
Plaintiffs operative complaint also alleges, in conclusory fashion, violations of Article 1, Section 10 and the First,
Fifth, and Sixth Amendments of the Constitution. Because the facts as alleged provide no grounds for relief under
those provisions, these claims are dismissed and require no further discussion. Plaintiffs purported claims brought
pursuant to 18 U.S.C. §§ 241 and 242 are also dismissed, as those federal criminal statutes provide no private right
of action. See Lavien Sales v. N.Y. City Transit Authority/Manhattan, No. 08 Civ. 3420, 2011 U.S. Dist. LEXIS
99048, at *21-22 (S.D.N.Y. Aug. 26, 2011). The court also dismisses for failure to state a claim any other state law
causes of action that plaintiff may seek to bring. Although he generally alleges that he and his children were
harassed by an ACS caseworker who attempted to speak with them in person and by telephone, his assertions in this
regard fall short of asserting any valid claim under New York law.
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material fact and "may obtain summary judgment by showing that little or no evidence may be
found in support of the nonmoving party's case." Gallo v. Prudential Residential Servs., 22 F.3d
1219, 1223 (2d Cir. 1994). Once this burden is met, in order to avoid the entry of summary
judgment against it, the non-moving party "must come forward with specific facts showing that
there is a genuine issue for trial." LaBounty v. Coughlin, 137 F.3d 68, 73 (2d Cir. 1998). In
reviewing the record before it, "the court is required resolve all ambiguities and draw all
permissible factual inferences in favor of the party against whom summary judgment is sought."
McLee v. Chrysler Corp., 109 F.3d 130, 134 (2d Cir. 1997) (citing Anderson, 477 U.S. at 255).
II.
Unlawful Search
Under the Fourth Amendment, individuals are protected against unreasonable searches
and seizures. See U.S. Const. Amend. IV. In the case of a home, reasonableness requires that
the search be conducted pursuant to a warrant or meet one of the few exceptions to the warrant
requirement. See Kyllo v. United States, 533, U.S. 27, 31 (2001) ("[W]ith few exceptions, the
question of whether a warrantless search of a home is reasonable and hence constitutional must
be answered no."); Payton v. New York, 445 U.S. 573, 585 (1980) ("[P]hysical entry of the
home is the chief evil against which the wording of the Fourth Amendment is directed."). "In
child-abuse investigations, a Family Court order is equivalent to a search warrant for Fourth
Amendment purposes." Southerland v. City of New York, No. 07-4449-cv (L), 07-4450-cv
(CON), 2011 U.S. App. LEXIS 26291 (2d Cir. N.Y. June 10,2011), at *41 n.15 (citing
Nicholson v. Scoppetta, 344 F.3d 154, 176 (2d Cir. 2003); Tenenbaum v. Williams, 193 F.3d
581,602 (2d Cir. 1999)).
Defendants are entitled to summary judgment on plaintiff s unlawful search claims.
Although, as plaintiff asserts in his complaint, defendants' searches of the Putnam Avenue
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premises were not undertaken pursuant to a warrant, they were done so on the authority of the
Entry Order. For the purposes of this inquiry, that order was the equivalent of a warrant and
provided a constitutional basis for the searches. Plaintiff s unlawful search claims therefore fail
as a matter of law.
To the degree that it is possible to construe plaintiffs complaint as alleging a lack of
probable cause to justify a search of plaintiffs home, it is clear from the record that the Entry
Order was supported by probable cause. Section 1034(2) of New York's Family Court Act
provides the evidentiary standard that must be met to justify issuance of such an order. That
provision required ACS, in seeking the order, to demonstrate that there was "probable cause to
believe that an abused or neglected child may be found on the premises." N.Y. Fam. Ct. Act §
1034(2)(b)(i) (2008). ACS did so by submitting evidence of the children's school attendance
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problems and plaintiffs repeated resistance to the ACS investigation, evidence that plaintiff
does not contest. In its order, the Family Court also properly verified that ACS had advised the
children's parents that it might seek a court order to gain access to the children and home. See
id. As such, the statutory predicates for a probable cause finding were properly established. 5
In light of the court's conclusion that plaintiffs residence was lawfully searched, the
court necessarily also holds that the defendants who searched those premises are entitled to
qualified immunity with regard to this claim. "The doctrine of qualified immunity protects
4 The New York Family Court Act defines as a "Neglected child" a child who, inter alia, has been harmed or is in
danger of being harmed because of a parent's failure to "exercise a minimum degree of care ... in supplying the
child with adequate ... education." N. Y. Fam. Ct. Act § 1012(t)(i)(A).
5 That the children were not found on the subject premises during the search on the evening of July 16, 2008 does
not cast doubt on continued existence of probable cause for the search undertaken the following morning. The Entry
Order remained valid on July 17,2008, and the initial visit had done nothing to mitigate ACS's reasonable belief
that neglected children might be found on the premises. Although plaintiff claimed during ACS's initial visit that
the children no longer lived at the home, such an evasive response was consistent with plaintiff's previous resistance
to the ACS investigation, and plaintiff did not reveal where the children had gone or provide information capable of
independently confirming his assertion that they had moved. Cf. Southerland, 2011 U.S. App. LEXIS 26291 at *4344 (determining that an officer had reason to know that a child was not on the premises based, inter alia, on a thirdparty guidance counselor'S statement to that effect).
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government officials 'from liability for civil damages insofar as their conduct does not violate
clearly established statutory or constitutional rights of which a reasonable person would have
known. '" Pearson v. Callahan, 555 U.S. 223,231 (2009) (quoting Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982)). The searches of plaintiffs residence were conducted pursuant to a
facially-valid order that was the functional equivalent of a search warrant and stated that "[t]here
is probable cause to believe that abused or neglected children may be located on the premises."
Fletcher Decl., Ex. C at D00451. The issuance of the Entry Order "create [d] a presumption that
it was objectively reasonable for the [defendants] to believe that the search was supported by
probable cause' so as to render [them] qualifiedly immune from liability." Southerland,2011
U.S. App. LEXIS 2691, at *48 (quoting Martinez v. City of Schenectady, 115 F.3d 111, 115 (2d
Cir. 1997)). Plaintiff has adduced no evidence to overcome this presumption. See id.
III.
False Arrest and False Imprisonment
A claim for false arrest, whether brought pursuant to § 1983 or New York law, requires
proof of the same four elements: (1) defendant intentionally confined plaintiff, (2) plaintiff was
conscious of the confinement, (3) plaintiff did not consent to the confinement, and (4) the
confinement was not otherwise privileged. See Jocks v. Tavernier, 316 F.3d 128, 134 (2d Cir.
2003); Harris v. County of Nassau, 581 F.Supp.2d 351, 354-55 (E.D.N.Y. 2008); Broughton v.
State, 37 N.Y.2d 451,456 (1975). If probable cause exists at the time of arrest, the confinement
is privileged. Jocks, 316 F.3d at 135. Thus, the existence of probable cause constitutes a
complete defense to a false arrest claim. Covington v. City of New York, 171 F.3d 117, 122 (2d
Cir. 1999). It also precludes a false imprisonment claim. See Zanghi v. Incorporated ViII. Of
Old Brookville, 752 F.2d 42, 45 (2d Cir. 1985) ("[A] finding of probable cause will defeat [a
New York] state tort claim[] ... for false imprisonment.").
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Probable cause to arrest exists where 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." Martinez v. Simonetti, 202 F.3d 625,
634 (2d Cir. 2000) (citations and internal quotation marks omitted). Evaluating whether or not
there is probable cause for an arrest is an objective inquiry. See Whren v. United States, 517
U.S. 806, 813 (1996) ("[T]he fact that the officer does not have the state of mind which is
hypothecated by the reasons which provide the legal justification for the officer's action does not
invalidate the action taken as long as the circumstances, viewed objectively, justify that action.")
(quoting Scott v. United States, 436 U.S. 128, 138 (1978) (internal quotation marks omitted)).
Where an arrest is made pursuant to a facially valid arrest warrant, the existence of probable
cause is presumed. Martinetti v. Town of New Hartford Police Dep't, 12 Fed. Appx. 29, 32 (2d
Cir. 2001); see Artis v. Liotard, 934 F. Supp. 101, 103 (S.D.N.Y. 1996).
Plaintiff predicates his false arrest and false imprisonment claims on two allegedly
separate arrests: his arrest on August 13,2008, in Manhattan, and his "re-arrest" later that same
day in Brooklyn. Despite plaintiffs allegations to the contrary, the record establishes that
plaintiffs first arrest was made pursuant to a valid arrest warrant issued by the Family Court on
August 7, 2008. Decl, of John Tosi, Ex. A. As such, that arrest is presumed to be privileged;
and there is no evidence of fraud, perjury, or misrepresentation or falsification of evidence
capable of overcoming this presumption. See Artis, 443 U.S. at 103. The record similarly
demonstrates that plaintiffs "re-arrest" was also privileged, as there was probable cause to
restrain plaintiff and bring him before the Kings County Criminal Court. Plaintiff s second
arrest was predicated on the discovery, in the Warrant Database, that plaintiff had an outstanding
criminal warrant for a misdemeanor charge from February 14,2006. "When an officer learns
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from a computer database ... that a person is the subject of an outstanding arrest warrant,
probable cause exists to arrest that person." United States v. Miller, 265 Fed. Appx. 5, 7 (2d Cir.
2008). Because Detective Tosi and Sergeant Murphy had knowledge sufficient to warrant a
person of reasonable caution to believe that plaintiff had committed a crime, plaintiff s false
arrest and false imprisonment claims are properly dismissed. 6
CONCLUSION
For the foregoing reasons, defendants' motion for summary judgment is granted in its
entirety. Because defendants are otherwise entitled to summary judgment on all claims, the court
need not address their remaining, alternative arguments for the dismissal of the case. The Clerk
of the Court is directed to enter judgment accordingly.
SO ORDERED.
S/Judge Ross
Allyne R. RA>ss ~
United Stat~ District),pdge
Dated:
f,
2012
July
Brooklyn, New York
In the alternative, the individual defendant police officers are entitled to summary judgment on the basis of
qualified immunity, as their actions did not violate any of plaintiffs clearly established statutory or constitutional
rights. Pearson, 555 U.S. at 231.
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SERVICE LIST:
Plaintiff:
Michael Fleming
257 Putnam Avenue
Brooklyn, NY 11216
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