Forde v. City of New York et al
MEMORANDUM AND ORDER granting in part and denying in part 21 Motion for Summary Judgment: For the reasons stated in the attached Memorandum and Order, defendants' motion for summary judgment is granted as to plaintiffs claim for municipal li ability, but denied in all other respects. This matter is recommitted to Chief Magistrate Judge Steven M. Gold for continued pretrial supervision, including the preparation of a Joint Pre-Trial Order and any settlement discussions as appropriate. Ordered by Judge Roslynn R. Mauskopf on 2/12/2014. (Mauskopf, Roslynn)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MEMORANDUM & ORDER
12-CV-1547 (RRM) (SMG)
- against THE CITY OF NEW YORK; P.O. GREGORY
WAITHE, Shield No. 13367, individually and in
his official capacity; and JOHN DOE #1–10,
individually and in their official capacity (the name
John Doe being fictitious, as the true names are
ROSLYNN R. MAUSKOPF, United States District Judge.
Plaintiff Julius Forde commenced this action on March 29, 2012, alleging false arrest and
municipal liability under 42 U.S.C. § 1983, as well as state law claims for assault, battery, false
arrest, false imprisonment, intentional infliction of emotional distress, and negligent hiring,
training, supervision, and retention of certain police officers. (See Compl. (Doc. No. 1).) All of
these claims arise from plaintiff’s alleged failure to wear a seatbelt, which led to a traffic stop
and a confrontation with the police. On June 27, 2013, defendants moved for summary
judgment. (See Doc. No. 21.) For the reasons explained below, the motion is granted in part and
denied in part. First, however, the Court briefly recounts the relevant known facts.1
At this stage the evidence of the nonmovant “is to be believed” and the Court must draw all “justifiable” or
reasonable inferences in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)
(citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158–59 (1970)); see also Brosseau v. Haugen, 543 U.S. 194, 195
n.2 (2004). Accordingly, the Court recounts the facts in the light most favorable to plaintiff, drawing all reasonable
inferences in his favor. See Abramson v. Pataki, 278 F.3d 93, 101 (2d Cir. 2002). The Court declines defendants’
invitation to strike plaintiff’s Local Rule 56.1(b) statement, (see Defs.’ Reply (Doc. No. 29) at 4–5), and notes that,
even were it to do so, “the truth-finding functions of the judicial process” would still necessitate an inquiry into the
bases for defendants’ assertions. Marin v. JPMorgan Chase Bank, N.A., No. 10-CV-2216 (BSJ) (DCF), 2012 WL
4039844, at * 2 n.2 (S.D.N.Y. Sept. 12, 2012) (citing Giannullo v. City of New York, 322 F.3d 139, 143 n.5 (2d Cir.
Late in the morning on November 29, 2011, plaintiff was driving his Mercury Grand
Marquis down Avenue M, a two-way street in Brooklyn. While traversing the intersection of
Avenue M and 94th Street, he passed defendant Waithe, a uniformed officer in an unmarked
police car, who was traveling in the opposite direction. Plaintiff continued on for about half a
block, but Officer Waithe made a U-turn and began following plaintiff’s vehicle. Plaintiff then
made a left turn and pulled into the driveway of his friend’s home. Soon after, Officer Waithe
pulled into the driveway behind plaintiff’s car. Officer Waithe exited his vehicle and ordered
plaintiff to return to his car, but plaintiff did not comply. At some point, Officer Waithe called in
other uniformed officers and plaintiff was placed under arrest; charged with failing to wear a
seatbelt while operating a motor vehicle, disorderly conduct for making unreasonable noise,
obstructing governmental administration, and resisting arrest; taken to the station house for the
69th precinct; and held in custody until his arraignment the next day.2 All charges were
dismissed at arraignment.
In sum and substance, those are the facts on which the parties agree. The rest of what
happened that day is unclear, as the parties’ accounts diverge significantly. According to
plaintiff, he was wearing his seatbelt at all times and did not commit any traffic infractions.
Moreover, although he noticed Officer Waithe’s unmarked car prior to pulling into the driveway,
plaintiff says he was unaware that the car was a police vehicle – or that it was following him –
until after he exited his car and saw the unmarked vehicle, lights flashing, parked behind him.
Defendants tell a different story. In their version, Officer Waithe passed plaintiff at the
During his deposition, Officer Waithe stated that he ultimately placed plaintiff under arrest “[a]fter I [had] asked
him numerous times to get back in his vehicle” because plaintiff “didn’t produce ID . . . [and] was also yelling,
screaming, cursing and . . . just being uncompliant with anything [Officer Waithe] asked him to do.” (Pl.’s Decl. in
Opp’n to Mot., Ex. B (Doc. No. 26-2), at 25–26 (ECF Pagination).)
intersection, saw that plaintiff was not wearing a seatbelt, and immediately gave chase with
lights ablaze. Defendants insist that plaintiff noticed the flashing lights of Officer Waithe’s
vehicle but stubbornly refused to stop until he had pulled into the driveway.
The parties also dispute the facts surrounding plaintiff’s actual arrest. Both parties agree
that that plaintiff was ultimately arrested after numerous additional officers arrived at the scene.
However, defendants describe an encounter in which plaintiff screamed, cursed, and physically
resisted arrest to the point that three officers were required to hold plaintiff as he was being
handcuffed. Plaintiff emphatically denies putting up any resistance. He maintains that he merely
pleaded with the officers to tell him why he was being ordered back into his vehicle and arrested
– questions defendants concede were never answered until plaintiff was in custody at the station
Summary judgment may be granted when the pleadings, depositions, interrogatories,
admissions, and affidavits demonstrate that there are no genuine issues of material fact in dispute
and that one party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986). A genuine issue of material fact exists “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 (1986). Summary judgment may also be
appropriate “if the nonmovant fails to make a showing sufficient to establish the existence of an
element essential to [his or her] case” where “the nonmoving party bears the burden of proof at
trial.” Nebraska v. Wyoming, 507 U.S. 584, 590 (1993) (quoting Celotex, 477 U.S. at 322)
(internal quotation marks omitted). To defeat a motion for summary judgment, the nonmoving
party must offer “concrete evidence from which a reasonable juror could return a verdict in his
[or her] favor,” Anderson, 477 U.S. at 256, beyond “conclusory allegations or unsubstantiated
speculation.” Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998).
At bottom, plaintiff’s claims all flow from his alleged false arrest and thus rise or fall on
whether the officers had probable cause for that arrest. See Jaegly v. Couch, 439 F.3d 149, 151–
52 (2d Cir. 2006) (citing Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996)) (“Under New York
law, the existence of probable cause is an absolute defense to a false arrest claim.”). “[W]here
there is a dispute as to the pertinent events,” the question of “whether an arresting officer had
probable cause is predominantly factual in nature . . . [and] the existence vel non of probable
cause is to be decided by the jury.” Murphy v. Lynn, 118 F.3d 938, 947 (2d Cir. 1997). This is
especially true where a “plaintiff denies doing the very things that would have created probable
cause for his arrest.” Brown v. City of New York, No. 08-CV-5095 (FB) (MDG), 2013 WL
1338785, at *3 (E.D.N.Y. Apr. 1, 2013), recons. denied, 2013 WL 5329356 (E.D.N.Y. Sept. 20,
Viewing the evidence in the light most favorable to plaintiff and drawing all reasonable
inferences in his favor, genuine factual disputes preclude summary judgment in this case. See
Allen v. Cuomo, 100 F.3d 253, 258 (2d Cir. 1996) (citing Anderson, 477 U.S. at 247–48). The
parties have adduced conflicting evidence on several material issues, including: whether Officer
Waithe witnessed plaintiff driving without a seatbelt; when Officer Waithe attempted to pull
plaintiff over;3 whether the circumstances justified Officer Waithe’s order that plaintiff return to
his vehicle;4 whether plaintiff became belligerent during the encounter with the officers;5
(Compare, e.g., Pl.’s Decl. in Opp’n to Mot., Ex A (Doc. No. 26-1) at 18–20 (ECF Pagination), with Defs.’ Decl.
in Supp. of Mot., Ex. D (Doc. No. 23-4) at 7, 9–10, 18 (ECF Pagination).) This dispute is material, of course,
because defendants rely on plaintiff’s alleged failures to wear a seatbelt and to pull over immediately as
justifications for Officer Waithe’s subsequent actions.
(See supra note 3.) This dispute matters because defendants cite plaintiff’s failure to comply with a lawful police
order as one occurrence providing probable cause for his arrest.
whether plaintiff committed actions that obstructed governmental administration;6 and whether
plaintiff resisted arrest.7 Resolving these conflicts requires deciding whose version of events to
credit, and “[i]t is well established that such ‘[c]redibility assessments, choices between
conflicting versions of the events, and  weighing of evidence are matters for the jury, not for [a]
court on a motion for summary judgment.’” Curry v. City of Syracuse, 316 F.3d 324, 333 (2d
Cir. 2003) (quoting Fischl v. Armitage, 128 F.3d 50, 55–56 (2d Cir. 1997)). Summary judgment
is therefore inappropriate.
Nor are defendants entitled to summary judgment on qualified immunity grounds. Where
the probable cause underlying an arrest is challenged, “a police officer is immune from such suit
‘if either (a) it was objectively reasonable for the officer to believe that probable cause existed,
or (b) officers of reasonable competence could disagree on whether the probable cause test was
met.’” Sutton v. Duguid, No. 05-CV-1215 (JFB) (JMA), 2007 WL 1456222, *5 (E.D.N.Y. May
16, 2007) (quoting Posr v. Court Officer Shield No. 207, 180 F.3d 409, 416 (2d Cir. 1999)).
Officer Waithe’s conduct would not be shielded by qualified immunity, however, if a jury credits
plaintiff’s version of events and finds that Officer Waite knowingly disregarded plaintiff’s rights.
Cf. Sutton, 2007 WL 1456222, at *9. Although the Court appreciates the fast-paced and
potentially dangerous situations police officers routinely face, the facts presently known do not
definitively establish the reasonableness of Officer Waithe’s actions. See id. at *6–9. As such,
(Compare, e.g., Pl.’s Decl. in Opp’n to Mot., Ex A at 3–10, 18–20, with Defs.’ Decl. in Supp. of Mot., Ex. D at
23–25.) This dispute is germane to any determination of probable cause to arrest for obstruction of governmental
administration and resisting arrest, as well as the reasonableness of Officer Waithe’s conduct.
(See supra note 5.) Whether plaintiff actually resisted in some way is material, as “mere words alone do not
constitute ‘physical force or interference’ such as to support the charge of obstructing governmental administration.”
People v. Case, 365 N.E.2d 872, 875 (N.Y. 1977).
(Id.) Again, this dispute is material because “if plaintiff’s claim that [he] did nothing to resist arrest is true, it
would not be objectively reasonable for the defendants or any reasonable officers in their situation to believe that
probable cause to prosecute plaintiff for that charge existed.” Ostroski v. Town of Southold, 443 F. Supp. 2d 325,
339 (E.D.N.Y. 2006) (emphasis in original).
the disputed factual issues “relevant to the determination of whether it was objectively
reasonable for defendants to believe their alleged acts were lawful . . . preclude summary
judgment on qualified immunity grounds.” Pooler v. Hempstead Police Dep’t, 897 F. Supp. 2d
12, 29 (E.D.N.Y. 2012) (citing Tarver v. City of Edna, 410 F.3d 745, 754 (5th Cir. 2005)).
Summary judgment must also be denied as to plaintiff’s state law claims because plaintiff
complied with the applicable statutory notice procedures.8 No one denies that plaintiff filed a
timely notice of claim; defendants take umbrage solely with the parties named in that notice.9 As
plaintiff points out, “General Municipal Law [section] 50-e makes unauthorized an action against
individuals who have not been named in a notice of claim . . . .” Tannenbaum v. City of New
York, 819 N.Y.S.2d 4, 5 (N.Y. App. Div. 2006) (citation omitted) (emphasis added). Here,
plaintiff’s state law claims are brought against the municipality only.10 In such cases “there is no
requirement that individual defendants be specifically named in the Notice of Claim.”
Chamberlain v. City of White Plains, No. 12-CV-5142 (CS), 2013 WL 6477334, at *22
(S.D.N.Y. Dec. 10, 2013) (citing Goodwin v. Pretorius, 962 N.Y.S.2d 539, 541–46 (N.Y. App.
Curiously, defendants seek dismissal of plaintiff’s state law claims as to “either Officer Sylvester or Officer
Greene.” (Defs.’ Mem. in Supp. (Doc. No. 24) at 19.) Those officers are not named anywhere in the complaint and
the Court has no idea who they are. Defendants also refer to plaintiff’s “Notice of Claim,” supposedly attached as to
the Declaration of Felicia A. Yancey (Doc. No. 23) as “Exhibit L.” (Defs.’ Mem. in Supp. at 19.) As the Court was
provided only with exhibits labeled “A” through “K,” (see Doc. Nos. 23, 30), it assumes that defendants actually
meant to cite their Exhibit I. (See Defs.’ Decl. in Supp. of Mot., Ex. I (Doc. No. 23-9).)
Plaintiff named only the City of New York and John Doe police officers. (See Defs.’ Decl. in Supp. of Mot., Ex.
I.) Although notice of claim requirements are to be strictly construed, Hardy v. New York City Health & Hosp.
Corp., 164 F.3d 789, 793 (2d Cir. 1999), plaintiff described the date, time, and nature of his claims against the
municipality sufficiently to “afford the municipality an adequate opportunity to investigate the claim in a timely and
efficient manner and, where appropriate, to settle claims without the expense and risks of litigation.” Fincher v.
Cnty. of Westchester, 979 F. Supp. 989, 1002 (S.D.N.Y. 1997) (citing Brown v. New York City Transit Auth., 568
N.Y.S.2d 54, 55 (N.Y. App. Div. 1991)). Plaintiff concedes that the notice would be insufficient with regard to
individual officers. (See Pl.’s Mem. in Opp’n (Doc. No. 27) at 21.)
“Unlike cases brought under [section] 1983, municipalities may be liable for the common law torts, like false
arrest and malicious prosecution, committed by their employees under the doctrine of respondeat superior.” Norton
v. Town of Islip, No. 04-CV-3079 (NGG) (WDW), 2013 WL 84896, at *6 (E.D.N.Y. Jan. 7, 2013) (quoting L.B. v.
Town of Chester, 232 F. Supp. 2d 227, 239 (S.D.N.Y. 2002)).
Summary judgment must be granted, however, on plaintiff’s claim for municipal liability.
To succeed on this claim, plaintiff must prove “(1) an official policy or custom that (2) causes
the plaintiff to be subjected to (3) a denial of a constitutional right.” Zahra v. Town of Southold,
48 F.3d 674, 685 (2d Cir. 1995) (citing Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983)).
Plaintiff asserts that Officer Waithe willfully and illegally stopped him in an effort to issue
enough traffic citations to meet a secret department quota. However, “a municipality cannot be
held liable under [section] 1983 on a respondeat superior theory.” Monell v. Dep’t of Soc. Servs.
of City of New York, 436 U.S. 658, 691 (1978). Thus, “[a]bsent a showing of a causal link
between an official policy or custom and the plaintiffs’ injury, Monell prohibits a finding of
liability . . . .” Batista, 702 F.2d at 397 (citing Monell, 436 U.S. at 694 n.58).
Although plaintiff gestures toward several pieces of evidence in support of this claim, he
has failed to show that any official policy or custom was the “moving force” behind the
violations he alleges. Moray v. City of Yonkers, 924 F. Supp. 8, 12 (S.D.N.Y. 1996) (citing
Monell, 436 U.S. at 690–94). Moreover, an isolated instance of unconstitutional conduct, even if
proven, is insufficient to impose municipal liability. See City of St. Louis v. Praprotnik, 485 U.S.
112, 126 (1988); Sankar v. City of New York, 867 F. Supp. 2d 297, 308 (E.D.N.Y. 2012), recons.
denied, 2012 WL 2923236 (E.D.N.Y. July 18, 2012). Plaintiff has also failed to offer sufficient
evidence of any failure to train or supervise the officers here, for he has not shown that the
municipality’s “need to act [wa]s so obvious, and the inadequacy of current practices so likely to
result in a deprivation of federal rights, that the municipality . . . can be found deliberately
indifferent to the need.” Reynolds v. Giuliani, 506 F.3d 183, 192 (2d Cir. 2007) (citing City of
Canton, Ohio v. Harris, 489 U.S. 378, 390 (1989)); see also Jenkins v. City of New York, 478
F.3d 76, 95 (2d Cir. 2007). Thus, summary judgment must be granted as to this claim.
Drawing all reasonable inferences in plaintiff’s favor, as the Court must, defendants have
failed to demonstrate that there are no genuine disputes as to material facts and that they are
entitled to judgment as a matter of law as to the bulk of plaintiff’s claims. See Fed. R. Civ. P.
56(c); Celotex, 477 U.S. at 322. Indeed, sharp factual disagreements exist in this case, the
resolution of which will require credibility judgments and the careful weighing of evidence.
That is what jury trials are for. Plaintiff has failed, however, to meet his burden on the essential
elements of his claim for municipal liability under section 1983. See Nebraska, 507 U.S. at 590.
Accordingly, defendants’ motion for summary judgment is granted as to plaintiff’s claim
for municipal liability (Compl. ¶¶ 31–39), but denied in all other respects.
This matter is recommitted to Chief Magistrate Judge Steven M. Gold for continued
pretrial supervision, including the preparation of a Joint Pre-Trial Order and any settlement
discussions as appropriate.
Roslynn R. Mauskopf
Dated: Brooklyn, New York
February 12, 2014
ROSLYNN R. MAUSKOPF
United States District Judge
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