Dingle et al v. City of New York et al
MEMORANDUM & ORDER: The defendants' motion for summary judgement is denied with respect to plaintiffs' fair trial, false arrest, and state negligence claims. The motion is granted on all remaining claims. Lt. Joseph Barone's entitlement to qualified immunity cannot be resolved prior to trial, given the many factual disputes that persist between the parties. SO Ordered by Judge Raymond J. Dearie on 4/12/2018. (Ramesar, Thameera)
IN CLERK'S OFF!
US DISTRICT CO
RICT COURT E.D.N.Y
APR 1 2 201B
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
SHINE DINGLE AND DWAYNE HICKS,
MEMORANDUM & ORDER
14 CV 7316(RJD)
- against THE CITY OF NEW YORK,THE NEW YORK
CITY POLICE DEPARTMENT,NEW YORK CITY
POLICE OFFICER LT. JOSEPH BARONE and
POLICE OFFICERS JOHN DOE #1 through #10,
the names being fictitious and presently unknown, in their
individual and official capacities as employees of the
City of New York Police Department,
Plaintiffs Shine Dingle and Dwayne Hicks bring numerous claims against the| City of
New York,the New York City Police Department, Lt. Joseph Barone, and John Doe Officers 1-
10. Plaintiffs make claims offalse arrest, illegal imprisonment, municipal liability, negligent
hiring, negligent training and supervision, assault, battery, excessive force, malicious
prosecution, improper conditions ofconfinement, deliberate indifference to medical peeds,
denial ofa fair trial, negligence, and violations of the Fourth, Sixth, Eighth, and Fouiteenth
Amendments of the U.S. Constitution. Plaintiffs' claims arise out of circumstances surrounding a
search of Mr. Hicks's apartment and related arrests for violation of New York Penal Law
§ 220.50(3), Criminally Using Drug Paraphernalia in the Second Degree.
Defendants now move for summary judgment. The Court denies summary judgement on
the claims of denial ofthe right to a fair trial due to fabrication ofevidence, false arrfst, and
negligence. Defendants' motion is granted as to all remaining claims.
On September 30,2013, Judge Neil Firetog of The Supreme Court ofthe State of New
York authorized a search warrant to search 390 Sutter Avenue, Apt. 5g, Mr. Hicks' apartment.
The warrant was based on information from a confidential informant, which provided probable
cause for believing that a 9 mm.semi-automatic pistol, ammunition, and records relaing to
residency,(constituting evidence of violations of state penal law), could be found there. The
warrant authorized officers to search all rooms and storage areas, including safes, capinets,
desks, closets, etc., in which such items could be stored or concealed.
On the moming of October 2, members ofthe NYPD arrived at 390 Sutter A'v^e. to
execute the search warrant. At approximately 6:00 AM,officers observed Mr. Hicks leaving the
building; some report seeing him with Ms. Dingle as well, while others only recall seeing Mr.
Hicks. Lichterman Deck, Ex. C("Kaylish Dep.") at 79, Ex. E("Arroyo Dep.") at 19,ECF No.
41. According to Mr. Hicks and Ms. Dingle, they exited the building together and made their
way to his vehicle. Lichterman Deck,Ex. F ("Dingle Dep.") at 63-64, Ex. G("Hicks Dep.")at
35. Moments later, Mr. Hicks walked to a nearby store to buy a soda for Ms. Dingle
waited in the car. Hicks Dep. at 37. Officers approached Mr. Hicks and told him to slop;' instead,
he took off running and police were not able to catch him. After this encounter, the onicers
questioned Ms. Dingle, who was still in the car. One ofthe officers who spoke with Ms. Dingle
was Lt. Joseph Barone. The parties dispute the details of police interaction with Ms. Dingle. Ms
Dingle only recalls telling the officers that she did not live at 390 Sutter Ave. PI. 56.^ H 15, ECF
No.45. Defendants report that she told them that she was Mr. Hicks' girlfnend and that she had
• It is disputed whether the officers announced themselves as police and drew their guns. Officers con :end that they
did announce themselves and did not draw their guns. Hicks reports that they did not announce themselves and did
draw their guns, causing him to flee in fear for his life.
been in the apartment overnight. The parties do not dispute that Ms. Dingle was handcuffed,
searched and detained. Id at U 16. Ms. Dingle also alleges that the officers searched ttie contents
of her purse and phone, and that officers used threatening language when questioning her about
Hicks. Id. at 1| 17.
Concurrent with officers questioning Ms. Dingle, other officers executed the search
warrant in the apartment. Though the warrant permitted a search ofthe whole apartm snt, the
officers searched only the living room and Mr. Hicks' bedroom. Mr. Hicks' niece, Shakema
Destin, was present in the apartment during the search. Lichterman Deck,Ex. J ("Destin Dep.")
at 27-34. Ms. Destin was handcuffed and detained in the living room,facing away ffcm the areas
searched. Id at 30. Though she could not see the search taking place, she could hear the conduct
and the voices ofthe officers. Id at 42-43. At one point during the search, Ms. Destin explained
to the officers that there was an urn in the room and that the officers should be carefu . Zenon
Deck, Ex. 1 at 49,ECF No.46. Mr. Hicks claims that when the NYPD searched his apartment
they broke the um, which had been in his bedroom,and that the officers walked throi gh the
ashes, leaving footprints in his father's remains. Ms. Destin also reports that she saw he
aftermath of the search when the officers left, including: destruction of the um,a tumsd mattress,
clothes thrown about, CDs strewn on the floor, and drawers left open. Id at 67. Defer dants
dispute her description. Specifically, Captain Sean Sharkey reports that when he realized the
clock was an um,he carefully placed it in a part of the room where it would not be dajmaged.
Lichterman Deck, Ex. K("Sharkey Dep.") at 51.
According to the arrest report, marijuana and dmg paraphemalia were found ih Mr.
Hicks' bedroom. Hicks disputes this, and instead suggests that the marijuana was plar ted and
used by the NYPD to justify his arrest. Mr. Hicks provides his own swom testimony,^ong with
that of Ms. Dingle and his niece, Ms. Destin, to support his claim that evidence was planted.
Further, Mr. Hicks offers specific reasons why he would not have kept contraband in the
apartment: Hicks' brother(who was subject to weapons arrest while living there). Hicks' mother,
(whose health issues and living situation were an object of concern for Hicks), and Hicks'
contention that he was regularly subject to illegal searches and harassment by police. PI. Opp'n.
Mem.at 9. Anticipating such searches, and out of concern for the health and comfort of his
mother. Hicks maintains that he kept contraband out of the house. The officers who conducted
the search give varying reports and have inconsistent memories as to when,if at 2dl, tliey might
have seen such marijuana in the apartment. There are no photographs from the search or ofthe
contraband in the record.
Prior to completion ofthe search, Ms. Dingle was herself arrested. Officers fojrced her to
drive around the neighborhood with them for 30 minutes or an hour in pursuit of Mr. dicks,
Officers then took her to the precinct at approximately 9:00 AM,where she was held
3:00 PM. During that time, officers used Ms. Dingle's cell phone to contact Mr. Hickj, who was
hiding at a friend's house, and tried to induce him to surrender in exchange for her release
Officers reportedly told Mr. Hicks that because he "did some bullshit" and ran fi*om tliem, they
"did some bullshit back to him" and took Ms. Dingle. PI. 56.1
18; Zenon Deck,Ex. 11 at 114.
Ms. Dingle was issued a desk appearance ticket("DAT")and released after several hours.
Later in the day, Mr. Hicks turned himself in at the precinct and was arrested for
possession of marijuana that was found in his bedroom. He was also issued a DAT and released
after two or three hours. The DATs for both Hicks and Dingle were for violation of Nbw York
Penal Law § 220.50(3), Criminally Using Drug Paraphernalia in the Second Degree, rot for
possession of marijuana. When Dingle and Hicks appeared for their arraignment, they were
informed that the District Attorney had declined to prosecute, and that all charges were dropped.
The Court will grant summary judgement"where the facts and the law will re isonably
support only one conclusion." O'Hara v. Weeks Marine. Inc.. 294 F.3d 55,64(2d Cir. 2002).
Summary Judgement is appropriate if"the evidence, viewed in the light most favorable to the
party against whom it was entered, demonstrates that there are no genuine issues of material fact
and that the judgment is warranted as a matter oflaw." Delanev v. Bank of Am.Com ,766 F.3d
163,167(2d Cir. 2014)(citation omitted); see also Fed. R. Civ. P. 56(a). In making tlis
determination, the Court is "limited to discerning whether there are any genuine issue s of
material fact to be tried, not to deciding them." Gallo v. Prudential Residential Servs., Ltd.
p'ship. 22 F.3d 1219,1224(2d Cir. 1994)."On a motion for summary judgment,the court must
resolve all ambiguities and draw all permissible factual inferences in favor ofthe party against
whom summary judgement is sought." Dufort v. Citv ofNew York,874 F.3d 338,347(2d Cir.
2017)(internal quotations omitted).
The primary issue in this case is plaintiffs' insistence that police planted marijuana during
the search of Mr. Hicks' apartment. We first briefly discuss those claims for which summary
judgment is granted.
The defendants' motion for summary judgement is granted as to the challenge l o the
search, the allegations of excessive force and state law assault and battery, the claims c f
improper conditions of confinement and deliberate indifference to medical needs,the claim of
cruel and unusual punishment, the Monell claim, and the malicious prosecution claim. There is
no evidence in the record to support:(a)a finding that the search warrant was invalid; fb)a
finding that officers used excessive or unreasonable force;(c) a finding ofimproper conditions,
mistreatment, or cruelty during plaintiffs' limited period ofconfinement;(d)a finding of any
nexus between lack of training and misconduct, or any specific custom or policy, for 5urposes of
a Monell claim;(e)a finding that plaintiffs suffered a liberty deprivation sufficient foi' a
malicious prosecution claim. There are no genuine issues of material fact to be tried as to these
claims; summary judgement is granted.
Summary judgement is denied with respect to plaintiffs' fair trial, false arrest, and state
negligence claims. Plaintiffs allegation that police planted marijuana, implicating a p ossible
violation ofthe right to a fair trial through fabrication of evidence, is the focus ofthe majority of
the remaining claims. Construing the evidence in the light most favorable to plaintiffs, material
questions offact persist as to whether officers planted marijuana in the apartment and used that
to form the basis for the arrests. Mr. Hicks provides his own sworn testimony that there was no
contraband in his room and offers sworn corroboration by Ms. Dingle^ and Ms. Destin.
Moreover,some ofthe investigating officers testify that they did not see marijuana duiing or
after the search, and information on the DAT issued to Hicks and Dingle does not shoy a
While defendants suggest that this Court should find Mr. Hicks' allegations of slanted
evidence self-serving and unsupported, such a credibility determination must be left fo r the jury.
See Dufort v. Citv of New York. 874 F.3d 338, 350(2d Cir. 2017)(quoting Anderson /. Libertv
Lobbv. Inc.. 477 U.S. 242, 255(1986)("Credibility determinations, the weighing of th;
2 Defendants point out that Ms. Dingle reported seeing Mr. Hicks with marijuana regularly in his apartm ;nt and that
he smoked habitually. Ms. Dingle also reported that she did not see any marijuana on October 2,2013. C onstruing
the facts in the light most favorable to the plaintiffs, as we must at summary judgement, Ms. Dingle's sworn
statement that she did not see marijuana that morning supports Mr. Hicks' insistence that any marijuana ibund was
planted. It is the job ofthe jury to weigh Ms. Dingle's statements about when she did and did not see maiijuana in
Mr. Hicks' room, and evaluate her credibility. Lichterman Deck, Ex. F("Dingle Dep.")at 56-60,101.
evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of
[when] he is ruling on a motion for summary judgement...."). Regardless of how
persuasive or well-supported this claim may be, that evaluation is the sole province ofthe jury.
With the exception ofthe negligence claim and the claim regarding Ms. Dingle's initial
detention, which stand alone, the surviving claims in this bloated complaint all relate directly to
plaintiffs' claim that the officers planted the contraband found in the apartment. The (ilourt is not
authorized, much less inclined, to accept the defendants' argument that Mr. Hicks be discredited
and the claims be dismissed. With rare exception, credibility is a matter for the jury and the
resolution for these claims must await their evaluation at trial.
Finally, we cannot consider qualified immunity at this summary judgment stage.^ Mr.
Hicks and Ms. Dingle have raised genuine disputes of material fact. These factual questions
require resolution by a jury before the immunity defense is properly addressed.
^ "It is firmly established that a constitutional right exists not to be deprived of liberty on the basis offalse evidence
fabricated by a government officer." Harris v. Citv ofNew York.222 F. Supp. 3d 341,351 (S.D.N.Y. 2016)
(quoting Zahrev v. Coffev. 221 F.3d 342,355(2d Cir. 2000)). Because "fabrication of evidence violate[s] a 'clearly
established constitutional right,'"defendant "officers [are] not entitled to qualified immunity." Gomez v. Citv of
New York. No. 16CV1274NGGLB,2017 WL 1034690, at *8(E.D.N.Y. Mar. 16,2017).
The defendants' motion for summary judgement is denied with respect to plaintiffs' fair
trial, false arrest, and state negligence claims. The motion is granted on all remaining claims. Lt.
Joseph Barone's entitlement to qualified immunity cannot be resolved prior to trial, ^ven the
many factual disputes that persist between the parties.
Dated: Brooklyn, New York
RAYMOND J. imRIE
United StateV©fstrict Judge
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