Brown v. Starrett City Associates et al

Filing 52

MEMORANDUM AND ORDER: Plaintiff has failed to amend her complaint to identify any of the John Doe defendants; claims against unnamed defendants have been withdrawn. Plaintiff also has withdrawn her claims of malicious prosecution and negligent hirin g, supervision, training, and discipline. A jury trial is demanded. The 36 motion to dismiss is granted with respect to plaintiff's claims against Starrett City Associates under 42 U.S.C. § 1983 for excessive force. It is denied as to all remaining claims. Trial shall be expedited. Ordered by Senior Judge Jack B. Weinstein, on 5/13/2011. (Barrett, C)

FILED
IN CLERK'S OFFICE
U.S. DISTRICT COURT ED.N.Y

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

MAY 18 2011

BROOKLYN OFFICE

ANNETTE BROWN,

MEMORANDUM
AND ORDER

Plaintiff,
09-CV-3282
- against-

/

STARRETT CITY ASSOCIATES, OFFICER
NEWMAN, and JOHN DOES 1-5,
Defendants.

JACK B. WEINSTEIN, Senior United States District Judge:

Plaintiff Annette Brown sued Starrett City Associates ("SCA"), as well as a security
officer, Robert Newman, and John Does it employed, on the following grounds: (1) false arrest
under 42 U.S.C, § 1983 and New York law; (2) malicious prosecution under 42 U.S.c. § 1983
and New York law; (3) excessive force under 42 U.S.C. § 1983; (4) assault and battery under
New York law; and (5) negligent hiring, supervision, training, and failure to discipline under
New York law.
Plaintiff has failed to amend her complaint to identify any of the John Doe defendants;
claims against unnamed defendants have been withdrawn. Plaintiff also has withdrawn her
claims of malicious prosecution and negligent hiring, supervision, training, and discipline.
A jury trial is demanded. Defendants SCA and Newman move for summary judgment.
For the following reasons, the motion is granted in part and denied in part.
I.

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Facts

This case arises from the arrest of plaintiff Brown on July 30, 2008 by defendant
Newman at Spring Creek Towers ("Towers"), a residential housing complex in Brooklyn

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formerly known as Starrett City. At the time, Brown was forty-eight years old and lived in an
apartment in the Towers, along with three foster children, several relatives, and the family of a
friend. Brown Dep. 5,27-30,57, Apr. 6,2010. Defendant SCA operates the Towers and its
private security force, a Department of Public Safety (DPS). Def.'s Rule 56.1 Stmt. 2-3;
Newman Dep. 8, Apr. 27, 2010. DPS is composed of security officers, employed by SCA, who
carry weapons and handcuffs and have legal authority to make arrests and charge suspects with
crimes. Def.'s Rule 56.1 Stmt. 2; Newman Dep. 17. Newman is a DPS officer. Id
At 8:20 on the evening of Brown's arrest, Newman and a number of other officers,
including Officer Joanne Phillips, responded to a call concerning a "disorderly group" in a public
area at the complex. Newman Dep. 38,41-42; Phillips Dep. 14, 17, Apr. 27, 2010. When they
arrived at the scene, they encountered a group of fifteen to twenty-five teenagers surrounding a
young man, Glen Harper, and a teenage girl, D.M., who were arguing. Newman Dep. 42;
Phillips Dep. 17; Brown Dep. 45. At the time, Harper and his family were living in Brown's
apartment. Brown Dep. 57. Newman alleged that he saw "a little bit of pushing and shoving"
between D.M. and Harper. Newman Dep. 42. Phillips witnessed "[y]elling, fighting, [and]
screaming." Phillips Dep. 19. She stated that D.M. and another young woman were fighting
Harper, who was trying to escape, id; D.M. was "cursing [and] swinging." Id at 21. Brown
was present but not involved in the fight between D.M. and Harper. Newman Dep. 42-43;
Phillips Dep. 20.
Witnesses offer conflicting accounts of what happened next. The officers claim that they
commanded the group to disperse and announced that those who failed to do so would be
arrested. Newman Dep. 48--50; Phillips Dep. 21-22. Some left, but the argument continued.
Newman Dep. 49; Phillips Dep. 22. On Newman's order, D.M. and Harper were arrested.
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Phillips Dep. 22-23, 25. D.M. reportedly "scream[ed], yell[ed]," and tried to pull away as the
officers attempted to handcuff her. [d. at 26.
The officers contend that Brown approached D.M. after she was handcuffed, grabbed the
girl's upper arm, and tried to pull her away from the officers. Newman Dep. 51-52; Phillips
Dep. 32-33 (describing Brown "charging" toward D.M. while Phillips was holding her). Brown
allegedly cursed, screamed, and demanded that D.M. be released. Newman Dep. 54; Phillips
Dep. 32, 41. Newman claims that he told Brown to let D.M. go but that she refused to do so.
Newman Dep. 54-55. Newman then ordered that Brown be taken into custody; the officers
handcuffed her and informed her that she was under arrest for disorderly conduct. Newman Dep.
56; Phillips Dep. 32.
Brown offers a very different account--essentially that she "touched" D.M. only to adjust
the girl's shirt:
I was walking on the walkway ... when I heard [D.M.,] who
called out to me and asked that I adjust her shirt.
When I turned to see D.M., I noted that she was being held
in custody by defendant Newman, who held her by the left arm,
both hands cuffed behind her back, and walking towards my
direction. D.M.'s shirt was pulled down, exposing her [breast],
and she asked me ... to fix her shirt.
Defendant Newman and D.M. walked over to where I was
standing. I touched D.M.'s shirt only, by pulling her shirt up. In
so doing, I did not touch D.M. anywhere else nor did ... I touch
Defendant Newman. I did not interfere with Newman's arrest of
D.M.
At no time prior to my arrest did Officer Newman or any
other officer give me an order to disperse, or any other order.
At no point prior to my arrest did I charge at D .M.
At no point prior to my arrest ... did I grab D.M. by the
arm, or by any part of her body.
At no point prior to my arrest did I try to pull D.M. away
from Officer Newman or any officer.

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At no point prior to my arrest did I speak with Officer
Newman or any other officer.
Brown Aff. 1-2, Mar. 28, 2011 (numeration omitted). Accord Brown Dep. 47--48, 53-54; D.M.
Aff. 1, Apr. 4, 2011; Hendricks Aff. 1-2, Apr. 4, 2011.
Phillips testified that she did not recall seeing D.M.'s breast or undergarments exposed.
Phillips Dep. 24.
Brown's account of the events, given in a deposition, reflects numerous inconsistencies.
Compare Brown Dep. 47 (stating that when Brown first saw D.M. on the evening of June 30,

2008, the girl was already handcuffed and in Newman's custody), with id. at 56 (stating that
when Brown entered the common area, she saw Newman "running to grab" D.M.); compare id.
at 46 (stating that when Brown first saw D.M., she "wasn't nowhere near" the girl, who was
"[o]n the opposite side of the sidewalk"), with id. at 47 (stating that when Brown first saw D.M.
she was close enough to reach out and touch her); compare id. at 45,47 (stating that when
Brown arrived on the scene, she saw Harper on a bench and that D.M. was already in handcuffs
when first she saw her), with id. at 51 (stating that Harper and D.M. were arrested "at the same
time"); compare id. at 53 (stating that Newman was the only officer Brown saw before she was
arrested), with id. at 52 (indicating that she saw Newman with three other officers before she was
arrested).
Aubrey Hendricks, plaintiffs foster son, Brown Dep. 5, claims that Brown told the
officers after her arrest that "she had bad wrists and to be careful with the handcuffs." Hendricks
Aff. 2. Following her arrest, Brown was walked by the officers to a patrol car, driven to a nearby
DPS station house, and seated in an office. Newman Dep. 58. Brown testified that during this
period, she remained handcuffed for half an hour. Brown Dep. 62. She complained to Newman

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and a supervisor that the cuffs were too tight. Brown Dep. 62. She alleges that Newman and the
supervisor "didn't respond to what [she] was saying," but she concedes that Phillips released the
left handcuff. Id. at 63. No evidence is offered indicating how much time elapsed between her
complaint and the opening of the left handcuff.
Paramedics were called. Brown Dep. 65. Brown was released when they arrived.
Brown Dep. 51,64. Both her hands were swollen; the paramedics gave her an ice pack to treat
the swelling. Hendricks Aff. 2.
Plaintiff was given a desk appearance ticket for disorderly conduct, with a court date
some two months later. Brown Dep. 64-65. The citation was prepared by Officer Lang, also
present at the scene. Phillips Dep. 17,39. It stated, "Deft. attempted to cause public alarm in
public place and refused to comply with a lawful order by refusing to disperse by making
obscene gesture." Def.'s Am. Mot. Summ. 1. Ex. G 2 (criminal citation for Annette Brown, July
30,2008).
After plaintiff's release from the DPS station, she was treated at Kings County Hospital
Center, being admitted the day of the arrest and treated the next day. PI.'s Opp. Summ. J. Ex. 4
9 ("Kings County Records"). But see Phillips Dep. 51 (stating that Brown declined an offer to
be taken to a hospital). Paperwork prepared by a nurse reported that Brown was under mild
distress and indicated tenderness, pain, and swelling in the hands. Kings County Records 7. A
physician reported a possible contusion, id. at 10, and that Brown reported "severe" pain in the
hands. Id. at 9. No swelling or tenderness was reported by the doctor. Id. at 9. Brown was
given an injection of ketorolac tromethamine, a pain medication, and a prescription for
ibuprofen. /d. at 3, 12.

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On July 21, 2010, Brown underwent hand surgery for carpal tunnel syndrome at
Brookdale Hospital in Brooklyn. Pl.'s Opp. Summ. J. Ex. 51 (report of medical examination by
Paul Kleinman, M.D.). She offers a medical report provided by a physician, not her own, based
on a physical examination and a review of medical records. Id The report, dated August 30,
2010, states that Brown's "bilateral carpal tunnel syndrome was preexisting" but that "it could
have been exacerbated on the right [side] by the incident on 7/30/2008." Id at 3.
Without a trial, Brown's disorderly conduct charge was dismissed on April 9, 2009. Pl.'s
Opp. Summ. J. Ex. 6 (Criminal Court of the City of New York Cert. of Disposition No. 24567).
Brown stated that no officer attended a hearing regarding the charge. Brown Dep. 83.
II.

Law
A.

Summary Judgment

Summary judgment is appropriate 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); see Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986); Powell v. Nat 'I Bd ofMed

Exam'rs, 364 F.3d 79, 84 (2d Cir. 2004). Dismissal is warranted when, after construing the
evidence in the light most favorable to the nonmoving party and drawing all reasonable
inferences in its favor, there is no genuine issue as to any material fact. Fed. R. Civ. P. 56(a); see

Anderson, 477 U.S. at 247-50,255; Sledge v. Kooi, 556 F.3d 137, 140 (2d Cir. 2009).
The burden rests on the moving party to demonstrate the absence of a genuine dispute of
any material fact. Celotex v. Catrett, 477 U.S. 317, 323 (1986); Goenaga v. March ofDimes

Birth Defects Found, 51 F.3d 14, 18 (2d Cir. 1995). lfthe moving party appears to meet this
burden, the opposing party must produce evidence that raises a material question of fact to defeat
the motion. See Fed. R. Civ. P. 56(e). "Mere conclusory allegations, speculation, or conjecture"

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will not suffice. Cifarelli v. Vill. of Babylon, 93 F.3d 47, 51 (2d Cir. 1996); see also Delaware &
Hudson Ry. v. Canso!. Rail Corp., 902 F.2d 174, 178 (2d Cir. 1990).

B.

False Arrest

Under New York law, a person is falsely arrested if: '''(1) the defendant intended to
confine [the plaintiff], (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not
consent to the confmement and (4) the confmement was not otherwise privileged. ,,, Curry v.
City ofSyracuse, 316 F.3d 324, 335 (2d Cir. 2003) (quoting Weyant v. Okst, 101 F.3d 845, 853
(2d Cir. 1996)). The elements of a false arrest claim under 42 U.S.C. § 1983 are substantially the
same. Jenkins v. City ofNew York, 478 F.3d 76,84 (2d Cir. 2007). Accord Singer v. Fulton
Cnty. Sheriff, 63 F.3d 110, 118 (2d Cir. 1995).
Probable cause to arrest is a complete defense to a false arrest claim, whether brought
under state law or Section 1983. Jenkins, 478 F.3d at 83 (quoting Weyant, 101 F.3d at 852). See
also Virginia v. Moore, 553 U.S. 164, 171 (2008) ("In a long line of cases, [the Supreme Court
has] said that when an officer has probable cause to believe a person committed even a minor
crime in his presence, the balancing of private and public interests is not in doubt. The arrest is
constitutionally reasonable.").

C.

Excessive Force; Assault and Battery

Excessive force claims brought under Section 1983 require that force be exerted under
the color of state law. Humphrey v. Landers, 344 Fed. Appx. 686, 688 (2d Cir. 2009) (citing
Posr v. Doherty, 944 F.2d 91, 94-95 (2d Cir. 1991)). Otherwise, an excessive force claim under
Section 1983 is '''substantially identical'" to an assault and battery claim under New York law.
Id Under New York law, "[a]n 'assault' is an intentional placing of another person in fear of

imminent harmful or offensive contact. A 'battery' is an intentional wrongful physical contact
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with another person without consent." United Nat'l Ins. Co. v. Waterfront N Y Realty Corp.,
994 F.2d lOS, 108 (2d Cir. 1993) (citing, inter alia, Hernandez v. Lattimore, 612 F.2d 61, 67 (2d
Cir. 1979)). "[W]here there has been a lawful arrest, intentional contact with the arrested person
does not constitute assault and battery, provided [the] force is reasonable." Cunningham v.

United States, 472 F. Supp. 2d 366 (E.O.N.Y. 2007) (citing Lorensen v. State, 249 A.O.2d 762
(3d Oep't 1998); Wyllie v. Dist. Atty., Cnty. ofKings, 2 A.O.3d 714 (2d Oep't 1996)).
Reasonability of force exerted in handcuffing an arrestee is determined by the
circumstances.
[T]he right to make an arrest accompanies with it the right to use
some degree of physical coercion. Frequently, a reasonable arrest
involves handcuffing the suspect, and to be effective handcuffs
must be tight enough to prevent the arrestee's hands from slipping
out. Placing handcuffs on an arrestee tight enough to cause nerve
damage may, however, constitute excessive force in violation of
the Fourth Amendment. The reasonableness ofthe handcuffing of
an arrestee must be determined in light of the minimal amount of
force necessary to maintain custody .... In addition, in evaluating
the reasonableness of handcuffing, a Court is to consider evidence
that: I) the handcuffs were unreasonably tight; 2) the defendants
ignored the arrestee's pleas that the handcuffs were too tight; and
3) the degree of injury to the wrists.

Esmont v. City of New York, 371 F. Supp. 2d 202, 214-15 (E.O.N.Y. 2005).
D.

Disorderly Conduct and Obstruction

A person is guilty of disorderly conduct under New York when, "in a public place, [she]
uses abusive or obscene language, or makes an obscene gesture"; "congregates with other persons
in a public place and refuses to comply with a lawful order of the police to disperse"; or "creates a
hazardous ... condition by any act which serves no legitimate purpose." N.Y.P.L. § 240.20.
The essence of disorderly conduct is "conduct which involves an intent or risk that a
breach of the peace will occur." People v. Delhall, 131 A.O.2d 870, 870 (2d Oep't 1987) (citing,
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inter alia, People v. Bakolas, 59 N.Y.2d 51, 54 (N.Y. 1983)). "In detennining whether probable
cause exists to arrest a person for disorderly conduct ... the circumstances must indicate that the
arresting officer was 'justified in concluding that [the J defendant was intentionally or recklessly
creating a substantial risk that public inconvenience, annoyance or alann would occur[.J ",

Delhall, 131 A.D.2d at 870 (citing N.Y.P.L. § 240.20; People v. Shapiro, 96 A.D.2d 626,627 (3d
Dep't 1983)).
Related in this case is the crime of obstruction of government administration in the
second degree, defined as "intentionally obstruct[ingJ, impair[ingJ or obstruct[ingJ ... the
administration of law ... or attempt[ingJ to prevent a public servant from perfonning an official
function, by means of ... physical force or interference, or by means of any independently
unlawful act[.J" N.Y.P. L. § 195.05.

E.

Corporate Liability under Section 1983

When a private corporation operates a private police force, it is subject to liability under
42 U.S.C. § 1983 as ifit were a municipality. See Rodriguez v. Smithfield Packing Co., Inc., 338
F.3d 348 (4th Cir. 2003). Under Section 1983, such an entity can be held liable for tortious acts
of its employees perfonned in accordance with official policies and established customs.

Williams v. City o/White Plains, 718 F. Supp. 2d 374, 381 (S.D.N.Y. 2010) (citing Monell v.
Dep't a/Social Servs. o/the City a/New York, 436 U.S. 658, 690 (1978). Section 1983 does not
provide for vicarious liability for employees' torts. Williams, 718 F. Supp. 2d at 381 (citing

Monell, 436 U.S. at 691).

F.

Vicarious Liability

Under New York law, defendants may be liable for "common law torts, like false arrest
and malicious prosecution, committed by their employees under the doctrine of respondeat

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superior." L.B. v. Town o/Chester, 232 F. Supp. 2d 227, 239 (S.D.N.Y. 2002). Under that
doctrine, employers are vicariously liable for intentional torts committed "in furtherance of the
employer's business and within the scope of employment." N.X v. Cabrini Med. Ctr., 765
N.E.2d 844, 847 (N.Y. 2002) (citing Riviello v. Waldron, 391 N.E.2d 1278 (N.Y. 1979)).

III.

Application of Law to Facts
A.

False Arrest

Material facts concerning the arrest of the plaintiff are in dispute. Taking the available
evidence in the light most favorable to the non-moving party, the only fact supporting probable
cause is that Brown made some physical contact with the body or clothing of a handcuffed
arrestee, D .M. This fact alone, if established, does not support a finding that the officers had
probable cause to believe that Brown was engaging in disorderly conduct, obstruction of a lawful
arrest, or any other crime.
Answers to the relevant questions-whether Brown defied a lawful order to disperse,
whether she approached the officers, whether she shouted and cursed, and whether she attempted
to pull D.M. away--depend on whose testimony is credited and on how inconsistencies within
Brown's account of the events are perceived. Given the lack of clarity as to the facts, summary
judgment is not warranted as to plaintiffs false arrest claim.

B.

Excessive Force; Assault and Battery

Sufficient conflicting evidence exists from which a jury could reasonably find that
Newman used excessive force in handcuffing plaintiff, in violation of 42 U.S.C. § 1983. Such a
finding might be sustained based on the allegations that (1) Newman knew Brown had "bad
wrists," (2) the handcuffs were excessively tight, (3) Newman ignored her complaints, (4) she
was handcuffed for two hours, and (5) she was injured as a result.
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These facts, if shown, would also substantiate a claim for assault and battery under New
York law.

C.

Corporate Liability under Section 1983

Plaintiff points to no evidence indicating that any allegedly tortious act in this case was
committed in accordance with an established policy or custom of SCA. Accordingly, no claims
may go forward against SCA under Section 1983. A claim for excessive force may go forward
against Newman individually, as stated above.

D.

Vicarious Liability

SCA may be vicariously liable for the common law torts of false arrest or assault and
battery. It would need to be shown that the torts were committed by Newman in furtherance of
SCA's interests and within the scope of his employment. Claims against SCA for these state law
claims may therefore proceed.

IV.

Conclusion
The motion to dismiss is granted with respect to plaintiffs claims against SCA under 42

U.S.C. § 1983 for excessive force. It is denied as to all remaining claims.
Trial shall be expedited.
SO ORDERED.
!

~f;~~

~B. Weinstein
Senior United States District Judge

Date: May 13,2011
Brooklyn, New York

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