White v. City of New York et al

Filing 43

ORDER: For the reasons stated herein, Defendants' motion for summary judgment is granted in its entirety. The Clerk of the Court is respectfully directed to enter judgment and close the case accordingly. Ordered by Judge Pamela K. Chen on 3/29/2018. (Hess, Alexandra)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------------------------x
DARREN WHITE,
Plaintiff,
-against-

MEMORANDUM & ORDER
15-CV-3321(PKC)(RER)

THE CITY OF NEW YORK, DETECTIVE
WILLIAM J. SCHIERLE (SHIELD NO. 1491),
and DETECTIVE SHELDON FRANKLYN
(TAX REGISTRATION NO. 933786),
Defendants.
-------------------------------------------------------x
PAMELA K. CHEN, United States District Judge:
Plaintiff Darren White filed this action, pursuant to 42 U.S.C. § 1983 (“Section 1983”) and
New York common law, seeking damages based on his arrests on April 18 and 20, 2013, and
subsequent detention and prosecution. (Dkt. 1.) Before the Court is Defendants’ motion for
summary judgment. (Dkt. 32.) For the reasons set forth herein, the Court grants Defendants’
motion in its entirety.
BACKGROUND
Relevant Facts 1

I.

On April 17, 2013, Plaintiff’s half-brother, Dorel Lias, was arrested for possession of a
stolen phone. (Defs.’ 56.1, Dkt. 33, ¶ 1.) Lias was taken to the New York City Police Department
(“NYPD”) Brooklyn Robbery Squad office, where he was questioned by Defendant Detective
William Schierle (“Det. Schierle”). (Id. at ¶ 2.) Early the following morning, Lias provided Det.

1

Unless otherwise noted, a standalone citation to Defendants’ 56.1 Statement denotes that
this Court has deemed the underlying factual allegation undisputed. Any citations to Defendants’
56.1 Statement incorporates by reference the documents cited therein. Where relevant, however,
the Court may cite directly to the underlying document.

Schierle with a written statement (Declaration of Jeff Henle (“Henle Decl.”), Dkt. 37, ¶ 4) stating,
inter alia, that on February 13, 2013, Plaintiff gave Lias the phone for which Lias was arrested.
Lias told the officers that Plaintiff had gotten the phone from a robbery of a Radio Shack in which
Plaintiff had participated earlier that day. 2 (Defs.’ 56.1 ¶ 4; Dkt. 34-9, at ECF 3 2.) Lias also
identified Plaintiff in a wanted poster that had been created from surveillance video of a robbery
of a Radio Shack in Queens on November 13, 2012. (Deposition of William Schierle (“Schierle
Dep.”), Dkt. 34-2, at 15:02-08 4; Dkt. 34-10.) Lias signed an ATF consent form authorizing the
officers to search Plaintiff’s apartment at 360 Dumont Avenue in Brooklyn. (Defs.’ 56.1 ¶ 6; Dkt.
34-11.) 5
The same day, April 18, 2013, Det. Schierle and several non-party officers went to
Plaintiff’s apartment. While the officers did not have a search or arrest warrant, Schierle knew
that there was an outstanding warrant for Plaintiff’s arrest in connection with a series of robberies.
(Schierle Dep., 16:7-17:6; 17:13-19; 37:8-15.) According to Schierle, Plaintiff’s sister let them
into the apartment (id. at 28:9-29:2), and Plaintiff signed a consent form authorizing the officers
to search the apartment for contraband (Dkt. 34-12). Plaintiff, however, claims that when the
officers arrived at his apartment, they “started kicking” Plaintiff’s door in and “there was a gun

2

Lias also said that Plaintiff had asked Lias to participate in the February 13, 2013 Radio
Shack robbery hours before it occurred, but that Lias had declined. According to Lias, immediately
after the robbery, Plaintiff returned to Plaintiff’s apartment at 360 Dumont Avenue in Brooklyn,
where Lias was, with a sack of stolen phones, and gave one to Lias. (Dkt. 34-9, at ECF 2.)
3

“ECF” refers to the pagination generated by the CM/ECF system, and not the document’s
internal pagination.
4

All citations to deposition transcripts refer to the internal pagination and line numbers.

5

Although Defendants state that Lias told the officers that he (Lias) lived with Plaintiff at
the Dumont Avenue apartment (Defs.’ Br., at ECF 12), nothing in the record supports that
statement.
2

placed into [his] face” (Deposition of Darren White (“White Dep.”), Dkt. 37-1, at 63:6-16), and
that he signed the consent form—which he claims he did not read—because he was “afraid” (White
Dep., Dkt. 34-4, 68:14-25).
During the search of Plaintiff’s apartment, Plaintiff told Det. Schierle that he had an air
rifle that was stored in a shoebox in the living room, and “gave it” to the officers. (Id. at 74:2375:9.) Because Plaintiff did not have a license for the air rifle, the officers took him into custody
and brought him to the NYPD Robbery Squad office in Brooklyn. (Id. at 75:10-13; 81:21-82:23.)
After arriving there, Plaintiff was advised of his Miranda rights, which he waived by signing a
rights waiver form. (Defs.’ 56.1 ¶ 12; Henle Decl. ¶¶ 11-12.) However, Plaintiff asserts that he
did not knowingly or voluntarily sign the waiver, but did so under duress. (Henle Decl. ¶¶ 1112.) 6
On April 19, 2013, Defendant Detective Sheldon Franklyn (“Det. Franklyn”) learned that
Plaintiff was in custody, and went to the Brooklyn Robbery Squad office to question Plaintiff about
a pattern of burglaries Det. Franklyn had been investigating. (Defs.’ 56.1 ¶ 13.) During the
interview, Plaintiff signed a confession admitting his involvement in the November 13, 2012 Radio
Shack robbery in Queens. (Dkt. 34-7, at ECF 2-3; Defs.’ 56.1 ¶¶ 14-15.)

According to

Defendants, Plaintiff also identified himself in, and then signed, a photograph that appears to be
from surveillance footage of the November 2012 robbery. (Defs.’ 56.1 ¶¶ 16-17; Henle Decl. ¶
15; compare Dkt. 34-10 (Wanted Poster) with Dkt. 34-14 (photograph signed by Plaintiff).)
Plaintiff does not dispute that he signed the photograph, but asserts that he “would have signed
anything, including a photograph, so that his interrogation would be concluded.” (Pl.’s 56.1, Dkt.

6

Plaintiff raises this claim for the first time in his Rule 56.1 Statement.
3

25, at ¶ 16.) 7
Plaintiff was then taken to Brooklyn Central Booking, and arraigned in Kings Criminal
Court the following day, April 20, 2013, on a single misdemeanor charge for possession of an
illegal air rifle in violation of New York City Administrative Code § 10-131(b). (Dkts. 34-15, 3416.) At arraignment, Plaintiff was released on his own recognizance. However, because there was
an outstanding investigation card indicating that Plaintiff was wanted by the Queens Robbery
Squad in connection with the November 2012 Queens Radio Shack robbery, Det. Franklyn arrested
Plaintiff. (Deposition of Sheldon Franklyn (“Franklyn Dep.”), Dkt. 34-3, 14:6-15:7.) 8
On April 21, 2013, Plaintiff was interviewed by members of the Queens County District
Attorney’s Office (“QCDA”), where he made additional inculpatory statements regarding the
November 2012 robbery. (Defs.’ Br. at 25; QCDA April 21, 2013 Video, Dkt. 34-8.) Following
the interview, Det. Franklyn signed a felony complaint charging Plaintiff with Robbery in the First
and Second Degree. (Dkt. 34-17.)
The air rifle charge was eventually dismissed on July 8, 2014 on speedy trial grounds,
pursuant to § 30.30 of the New York Criminal Procedure Law. (See Dkt. 34-18, at ECF 2.) A few
weeks later, the Queens robbery charges were also dismissed, although the specific basis for
dismissal is not evident from the record. (Dkt. 34-19, at ECF 2-3.)
On September 10, 2014, Plaintiff was indicted in this Court in connection with Hobbs Act
robbery charges. (Defs.’ 56.1 ¶ 30.) On April 3, 2015, Plaintiff pled guilty to Hobbs Act robbery

7

Plaintiff also raises this claim for the first time in his Rule 56.1 Statement.

8

Det. Franklyn activated the investigation card on April 19, 2013 after “Plaintiff made
statements that he was involved in the [November 2012] robbery[.]” (Franklyn Dep., 13:17-14:3.)
However, Det. Franklyn had to wait until the following day to arrest Plaintiff because Plaintiff was
already being processed in Brooklyn on the air rifle charge. (Id. at 14:15-24.)
4

conspiracy. (See id.; Dkt. 34-20, at ¶ 1.)
II.

Relevant Procedural History
Plaintiff commenced this action on June 8, 2015. (Dkt. 1.) On December 6, 2015,

Plaintiff withdrew his claims for malicious abuse of process, unreasonable detention, abuse of
authority, harassment, Monell, conspiracy, and intentional infliction of emotional distress, leaving
only his federal claims under Section 1983. (Dkt. 27.) The only claims remaining in this action
as to the Individual Defendants are: (1) false arrest; (2) malicious prosecution; and (3) violation
of due process under the Fifth and Sixth Amendments, for each of the two arrests. 9 Plaintiff also
alleges violations of New York state law as to the City on a theory of respondeat superior. (Dkt.
1 at ¶¶ 40-41.) On June 23, 2017, Defendants moved for summary judgment on all of Plaintiff’s
remaining claims. (Dkt. 32.)
LEGAL STANDARD
Summary judgment may be granted only where there is no genuine issue as to any material
fact and the moving party is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(c).
In ruling on a motion for summary judgment, a court must resolve all ambiguities and draw all
factual inferences in favor of the nonmoving party. McClellan v. Smith, 439 F.3d 137, 144 (2d
Cir. 2006). “To grant the motion, the court must determine that there is no genuine issue of
material fact to be tried.” Id. (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986)). A
genuine factual issue exists where 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).
The initial burden of “establishing the absence of any genuine issue of material fact” rests

9

In the Complaint, Plaintiff also alleged violations of the First Amendment. (Dkt. 1, at ¶
1.) However, since Plaintiff does not address this claim in his brief, the Court also considers it
withdrawn.
5

with the moving party. Zalaski v. City of Bridgeport Police Dep’t, 613 F.3d 336, 340 (2d Cir.
2010). Once this burden is met, however, the burden shifts to the nonmoving party to put forward
some evidence establishing the existence of a question of fact that must be resolved at trial. Spinelli
v. City of N.Y., 579 F.3d 160, 166-67 (2d Cir. 2009); see also Celotex Corp., 477 U.S. at 322-23.
A mere “scintilla of evidence” in support of the nonmoving party is insufficient; “there must be
evidence on which the jury could reasonably find for the [non-movant].” Hayut v. State Univ. of
N.Y., 352 F.3d 733, 743 (2d Cir. 2003) (quotation omitted; alterations in original). In other words,
“[t]he nonmoving party must come forward with specific facts showing that there is a genuine
issue for trial.” Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir. 2002) (quotation omitted). In
determining whether a genuine issue of fact exists, the court must resolve all ambiguities and draw
all reasonable inferences against the moving party. Major League Baseball Props., Inc. v. Salvino,
Inc., 542 F.3d 290, 309 (2d Cir. 2008). However, “the mere existence of some alleged factual
dispute between the parties will not defeat an otherwise properly supported motion for summary
judgment.” Anderson, 477 U.S. at 247-48. “[What] is required [from a nonmoving party] is that
sufficient evidence supporting the claimed factual dispute be shown to require a jury or judge to
resolve the parties’ differing versions of the truth at trial.” First Nat’l Bank of Ariz. v. Cities Serv.
Co., 391 U.S. 253, 288-89 (1968). “Credibility assessments, choices between conflicting versions
of the events, and the weighing of evidence are matters for the jury, not for the court on a motion
for summary judgment.” Fischl v. Armitage, 128 F.3d 50, 55 (2d Cir. 1997).
DISCUSSION
I.

Section 1983
To state a claim under § 1983, a plaintiff must plausibly allege “(1) that the defendants

deprived him of a right ‘secured by the Constitution or laws of the United States’; and (2) that they

6

did so ‘under color of state law.’” Giordano v. City of New York, 274 F.3d 740, 750 (2d Cir. 2001)
(quoting Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999)). Here, Plaintiff alleges,
with respect to both arrests: (1) false arrest, in violation of the Fourth and Fourteenth Amendments;
(2) malicious prosecution, in violation of the Fifth and Fourteenth Amendments; and (3) a violation
of the Due Process Clause of the Fifth and Sixth Amendments. 10
A.

False Arrest and Unlawful Imprisonment

Plaintiff alleges false arrest as to both the April 18 and 20, 2013 arrests. (Dkt. 1, at ¶¶ 1222.) “A § 1983 claim for false arrest [or false imprisonment] 11, resting on the Fourth Amendment
right of an individual to be free from unreasonable seizures, including arrest without probable
cause, is substantially the same as a claim for false arrest under New York law.” Weyant v. Okst,
101 F.3d 845, 852 (2d Cir. 1996) (internal citations omitted); see also Jenkins v. City of N.Y., 478
F.3d 76, 84 (2d Cir. 2007) (citing Weyant, 101 F.3d at 852). To prevail on a claim of false arrest
or unlawful imprisonment, a plaintiff must prove that “(1) the defendant intended to confine the
plaintiff, (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not consent to the
confinement, and (4) the confinement was not otherwise privileged.” Savino v. City of N.Y., 331
F.3d 63, 75 (2d Cir. 2003) (internal quotation marks and citation omitted). “‘[T]he existence of
probable cause’ for an arrest ‘is an absolute defense to a false arrest claim.’” Dancy v. McGinley,
843 F.3d 93, 107 (2d Cir. 2016) (quoting Jaegly v. Couch, 439 F.3d 149, 152 (2d Cir. 2006)); see
also John v. Lewis, No. 15-CV-5346 (PKC), 2017 WL 1208428, at *6 (E.D.N.Y. Mar. 31, 2017)

10

The Court notes that Plaintiff did not assert a claim for unlawful search in his Complaint
(Dkt. 1) and to the extent he attempts to do in his opposition to summary judgment, this claim is
waived, for the reasons discussed infra.
11

Under New York law, false arrest and false imprisonment are “synonymous.”
Posr v. Doherty, 944 F.2d 91, 96 (2d Cir. 1991); see also Singer v. Fulton Cnty. Sheriff, 63 F.3d
110, 118 (2d Cir. 1995).
7

(same).
There is no dispute that the Individual Defendants intended to confine Plaintiff, that
Plaintiff was conscious of the confinement, and that he did not consent to the confinement. Thus,
the only factual issues that could be in dispute are whether probable cause existed to arrest
Plaintiff on April 18, 2013 and on April 20, 2013. Probable cause exists when an officer has
“knowledge or reasonably trustworthy information of facts and circumstances that are sufficient
to warrant a person of reasonable caution in the belief that the person to be arrested has committed
or is committing a crime.” Gonzalez v. City of Schenectady, 728 F.3d 149, 155 (2d Cir. 2013)
(emphasis in original) (quoting Weyant, 101 F.3d at 852); see also Dancy, 843 F.3d at 107.
Defendants assert that, as of April 18, 2013, there was probable cause to arrest Plaintiff for
both the air rifle charge on April 18, 2013 and the robbery charge on April 20, 2013. (Defs.’ Br.
at ECF 17, 19-21.) Defendants further argue that even if Det. Franklyn did not have probable
cause to arrest Plaintiff on the robbery charge as of April 18, 2013, he did have the necessary
probable cause by the time Plaintiff was arrested on that charge on April 20, 2013. (Id. at ECF
21.) Plaintiff asserts that there was no probable cause at any time for either arrest. The Court
addresses the two arrests in turn.
1.

April 18, 2013 Brooklyn Air Rifle Arrest

Defendants argue that there was probable cause to arrest Plaintiff on April 18, 2013 because
Det. Schierle had direct knowledge that Plaintiff had violated Section 10-131(b)(1) of the New
York City Administrative Code, when an air rifle was found at Plaintiff’s apartment during the
search that day and Plaintiff admitted that he had no permit for it. (Id. at ECF 19.) A violation of
Section 10-131(b)(1) is a misdemeanor punishable by “a fine of not more than fifty dollars, or by
imprisonment not exceeding thirty days, or by both.” N.Y.C. Admin. Code § 10-131(f).

8

The evidence cited by Defendants is plainly sufficient to establish probable cause to arrest
Plaintiff for violating Section 10-131(b)(1). Plaintiff’s contrary argument appears to be premised
on his contention that the evidence was only discovered after what he is now alleging was an
unlawful entry into and search of his apartment. However, as Defendants correctly argue, “even
if the search of Plaintiff’s apartment was improper under the Fourth Amendment, that would not
negate the existence of probable cause[,] because it is well settled that the fruit of the poisonous
tree doctrine cannot be invoked to support a section 1983 claim[.]” (Defs.’ Reply Br., Dkt. 40, at
ECF 2 (quoting Jenkins, 478 F.3d at 91 n.16 (2d Cir. 2007) (internal quotation marks and citations
omitted)). Indeed, “the Second Circuit has clearly rejected . . . attempt[s] to recover damages
under § 1983 based on the fruits of the poisonous tree doctrine.” Gannon v. City of New York,
917 F. Supp. 2d 241, 243 (S.D.N.Y. 2013) (citing Townes v. City of New York, 176 F.3d 138 (2d
Cir. 1999)). Here, regardless of any factual dispute over whether the search of Plaintiff’s apartment
was lawful, the Court may consider the discovery of the air rifle in Plaintiff’s apartment and his
admission about not having the required permit for the rifle in finding, as a matter of law, that
probable cause supported Plaintiff’s April 18, 2013 arrest for violating N.Y.C. Admin. Code § 10131(b). Thus, Det. Schierle is entitled to summary judgment on Plaintiff’s April 18, 2013 false
arrest claim. 12 See, e.g., Kidd v. City of New York, 13-cv-97(ILG)(CLP), 2015 WL 5007940 at *1
n.2, *3 (E.D.NY. 2015) (official who found illegal air rifle in plaintiff’s home had probable cause
to issue him a summons, giving them “a complete defense to [plaintiff’s] claims for false arrest,
malicious prosecution, and abuse of process”); Murchison-Allman v. City of New York, 14-cv2160(ALC), 2016 WL 1322445 at *3 (S.D.N.Y. Mar. 31, 2016) (probable cause existed to arrest

12

The Court construes Plaintiff’s April 18, 2013 false arrest claim to be directed at Det.
Schierle only, since there is no evidence that Det. Franklyn was involved in any way in that arrest,
and any such claim against Det. Franklyn would fail for that reason.
9

Plaintiff for possession of ammunition in violation of N.Y.C. Admin. Code § 10-131(i)(3)); Gill
v. City of New York, 15-cv-5513(ARR)(LB), 2017 WL 1097080, at *8 (E.D.N.Y. Mar. 23, 2017)
(summary judgment granted on false arrest where there was “probable cause to arrest plaintiff for
a violation of the [N.Y.C.] Administrative Code”).
2.

April 20, 2013 Queens Robbery Arrest

Defendants argue that Plaintiff’s second arrest on April 20, 2013 was justified, because at
that point, Det. Franklyn had the information developed by Det. Schierle, as well as Plaintiff’s own
self-identification in the picture taken from surveillance video of the November 13, 2012 Queens
Radio Shack robbery, and Plaintiff’s videotaped and written confessions admitting his
participation in that robbery. (Defs.’ Br., at ECF 22-23, 25.) In particular, Plaintiff’s written
confession was lengthy and detailed. (Dkt. 34-7, at ECF 2-3.) Plaintiff’s confessions alone
provided ample basis for a reasonable officer to believe that probable cause existed to arrest
Plaintiff on April 20, 2013. See Bowman v. v. City of Middletown, 91 F. Supp. 2d 644, 660
(S.D.N.Y. 2000).
Plaintiff’s argument that the involuntariness of his confessions undercuts a finding of
probable cause is unavailing. As previously discussed, it is “well settled that the fruit of the
poisonous tree doctrine cannot be invoked to support a section 1983 claim[.]” Jenkins, 478 F.3d
at 91 n.16. A confession can be used to establish probable cause, even if it is later found to be
inadmissible. Restivo v. Hessemann, 846 F.3d 547, 571 (2d Cir. 2017). To find otherwise, Plaintiff
would need to introduce facts establishing that Defendants were aware that the confession was
false, or that they knew it could not be used to support a prosecution. See Bowman, 91 F. Supp.
2d at 661. Plaintiff cannot make such a showing. Thus, even if Plaintiff did not voluntarily waive
his Miranda rights, and regardless of the veracity of Lias’s identification of Plaintiff and

10

accompanying statements, Plaintiff’s confession on April 19, 2013 gave Det. Franklyn probable
cause to arrest Plaintiff on April 20, 2018 for the November 2012 Queens Radio Shack robbery.
The Court, therefore, grants the Individual Defendants summary judgment with respect
to Plaintiff’s April 20, 2013 false arrest claim. 13
B.

Malicious Prosecution

Plaintiff alleges malicious prosecution stemming from both his April 18 and 20, 2013
arrests.

To prevail on a claim of malicious prosecution, a plaintiff must prove “(i) the

commencement or continuation of a criminal proceeding against [him]; (ii) the termination of the
proceeding in [his] favor; (iii) that there was no probable cause for the proceeding; and (iv) that
the proceeding was instituted with malice.” Mitchell v. City of New York, 841 F.3d 72, 79 (2d Cir.
2016) (internal quotation marks and citations omitted). A malicious prosecution claim under §
1983 further requires that Plaintiff demonstrate “a sufficient post-arraignment liberty restraint to
implicate [his] Fourth Amendment rights.” Rohman v. New York City Transit Auth., 215 F.3d 208,
215 (2d Cir. 2000).
Although Defendants offer several grounds for dismissing Plaintiff’s malicious
prosecution claims (Defs.’ Br. at ECF 24-29), the Court need address only one, namely, that no
jury could find a lack of probable cause for either of the prosecutions. 14 As discussed supra, the
Court has found, as a matter of law, that probable cause existed for both of Plaintiff’s arrests, and

13

In contrast to the April 18, 2013 arrest, the Court construes Plaintiff’s April 20, 2013
false arrest claim as directed toward both of the Individual Defendants.
14

Defendants also argue that Plaintiff cannot establish that: (1) the Queens robbery
prosecution terminated in his favor; (2) he suffered any deprivation of liberty that is attributable to
the Brooklyn air rifle case, because he was already under equal or greater restraints due to the
Queens robbery prosecution, as well as other criminal charges filed later; and (3) that either
prosecution was commenced with actual malice. (Defs.’ Br. at ECF 24.)
11

Plaintiff identifies no post-arrest evidence undermining that probable cause. While “probable
cause can be eliminated by evidence that surfaces after charges are filed,” Bowman, 91 F. Supp.
2d at 660, Plaintiff’s bare statement that there was a “lack of evidence” (White Dep., Dkt. 39-1,
131:19-20) is not enough to create a triable issue of fact. And, as discussed before, the alleged
inadmissibility of the evidence obtained from the search of Plaintiff’s apartment and Plaintiff’s
confession as “fruits of the poisonous tree” cannot support his Section 1983 claim for malicious
prosecution.

See DiMascio v. City of Albany, 205 F.3d 1322, 1322 (2d Cir. 2000) (summary

order) (citing Townes and finding that defendants would not be liable for malicious prosecution
damages after independent cause for prosecution occurred); Morgan v. City of New York, No. 12CV-704, 2014 WL 3407714, at *5 n.7 (E.D.N.Y. July 10, 2014). Because Plaintiff cannot prove
the absence of probable cause for his prosecutions on the air rifle and robbery charges, the Court
grants Defendants summary judgment on both malicious prosecution claims.
II.

Substantive Due Process
Plaintiff appears to assert a separate substantive due process claim under the Fourth

Amendment. (Dkt. 1, at ¶ 24.) The nature of this claim, however, is far from clear. To the extent
that Plaintiff attempts to assert a separate “due process” claim based on the same conduct that
underlies his Fourth Amendment claims for false arrest and malicious prosecution, his claim is
dismissed as duplicative. “Where a particular Amendment provides an explicit textual source of
constitutional protection against a particular sort of government behavior, that Amendment, not
the more generalized notion of substantive due process, must be the guide for analyzing these
claims.” Albright v. Oliver, 510 U.S. 266, 273 (1994) (internal quotation marks omitted); see also
Russo v. City of Bridgeport, 479 F.3d 196, 208 (2d Cir. 2007); Creighton v. City of New York, No.
12 CIV. 7454 (PGG), 2017 WL 636415, at *42 (S.D.N.Y. Feb. 14, 2017) (“[W]here a due process

12

claim is based on the same conduct that gave rise to [a] plaintiff’s false arrest and malicious
prosecution claims, the due process claim should be dismissed as both duplicative and merit[
]less.” (citation and quotation marks omitted)).
Furthermore, to the extent Plaintiff is alleging that his due process rights were violated
because he was allegedly coerced into consenting to the search of his apartment on April 18, 2013,
this claim is waived. Plaintiff did not plead an unlawful search claim in his Complaint (see Dkt.
1), and raises it for the first time, if he does at all, in his opposition brief (Pl.’s Br. at ECF 9-10).
It is well-established that “a party generally may not assert a cause of action for the first time in
response to a summary judgment motion.” Design Partners, Inc. v. Five Star Elec. Corp., 2017
WL 818364, at *17 (E.D.N.Y. Mar. 1, 2017) (internal quotation marks and citations omitted); see
also Greenidge v. Allstate Ins. Co., 446 F.3d 356, 361 (2d Cir. 2006); Rojo v. Deutsche Bank, 487
F. App’x 586, 588-89 (2d Cir. 2012) (summary order) (“We have refused to address the merits of
claims raised for the first time at [summary judgment].” (collecting cases)). 15
III.

Common Law Claims
To the extent Plaintiff did not withdraw any common law false arrest and malicious

prosecution claims when he withdrew his other state common law claims, Defendant is granted
summary judgment for the reasons stated above. In addition, Plaintiff’s claim against the City
under a theory of respondeat superior is moot because all of Plaintiff’s common law claims have
been withdrawn or denied on the merits.

15

This analysis applies with equal force to the extent that Plaintiff makes vague allegations
in his opposition brief that his “fifth and sixth amendment rights to counsel were also infringed
upon.” (Pl.’s Br. at ECF 11.) This claim appears nowhere in Plaintiff’s complaint, and is,
therefore, waived.
13

CONCLUSION
For the foregoing reasons, Defendants’ motion for summary judgment is granted in its
entirety. The Clerk of the Court is respectfully directed to enter judgment and close the case
accordingly.
SO ORDERED.
/s/ Pamela K. Chen
Pamela K. Chen
United States District Judge
Dated: March 29, 2018
Brooklyn, New York

14