Davis v. The City of New York et al

Filing 77

MEMORANDUM and ORDER: Defendants motion 74 for summary judgment is GRANTED as to Daviss Monell claim and his failure to intervene claim against Officers Lloyd and John/Jane Does 1-10. Defendants motion is DENIED in all other respects. Daviss motion 69 for summary judgment is DENIED. Ordered by Judge Frederic Block on 9/28/2017. (Innelli, Michael)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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ANDRE DAVIS,
Plaintiff,

MEMORANDUM & ORDER
15-cv-4684 (FB) (RER)

-againstTHE CITY OF NEW YORK, POLICE
OFFICERS JOHN/JANE DOE(S) #s 1-10,
POLICE OFFICER JOHN DOE from the
75th Precinct identified by Badge #27236,
POLICE OFFICER TERRANCE LLOYD,
Shield #10760, KRISTEN SCHAFFER,
Defendants.
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Appearances:
For the Plaintiffs:
DAVID A. ZELMAN
612 Eastern Parkway
Brooklyn, New York 11225

For the Defendant:
ELISSA PAULETTE FUDIM
Corporation Counsel of The City of
New York
100 Church Street
New York, New York 10007

BLOCK, Senior District Judge:
Andre Davis (“Davis”) sued the City of New York, John/Jane Doe Officers 1-10,
Officers Terrance Lloyd and Oscar Ramos, and Sergeant Kristin Schafer (collectively
“Defendants”) under 42 U.S.C. § 1983 for false arrest, excessive force, failure to
intervene, and excessive pre-arraignment detention and under state law for assault and
battery and respondeat superior. Defendants answered the Amended Complaint on

June 17, 2016, and now move for summary judgment. Davis opposes the motion and
moves for partial summary judgment on his false arrest claim. For the reasons discussed
below, the Defendants’ motion is granted in part and denied in part and Davis’s motion
is denied in its entirety.
I.
The parties submitted evidence, including deposition testimony, of the following
facts, which, unless otherwise noted, are not in dispute.
At 3:42 p.m. on March 25, 2015, Officers Lloyd and Ramos stopped Davis and
a man later identified as Cassie Fernandez (“Fernandez”) for questioning after a 911
caller reported the theft of a side mirror from his uncle’s car. During his conversation
with Officer Lloyd, Davis began to make a video recording with his cell phone. A
group of unidentified officers who were patrolling the area stopped to assist Officer
Lloyd. One of them attempted to take Davis’s phone, and a struggle ensued. Officer
Lloyd testified that Davis was swinging his phone in a violent manner and screaming,
“You better not fucking touch me, there will be a problem.” Def.’s Fudim Decl. Ex.
1 at 20:18-21:9. However, Davis testified that he was calmly filming the interaction.
See Pl.’s Zelman Decl. Ex. B at 33:13-34:13.
A video, which was submitted by the parties and reviewed by the Court, shows
one of the officers shoving Davis against a store-front security gate and another hitting
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Davis’s hand against the gate and twisting his arm. Def.’s Fudim Decl. Ex. 15. Davis
testified that his arm “felt like it was about to snap.” Id. Ex. 6 (Davis Dep.) at 40:540:12. Davis further testified that, after the officers took his phone and placed him in
handcuffs, they punched and kicked him; however, Officers Lloyd and Ramos deny
doing so.
The 911 caller appeared for a show-up identification but stated that Davis was
not one of the men who had stolen the mirror. The officers put Davis in the back of a
squad car. Davis told them that he wanted to go to the hospital because his arm was
bleeding and he felt like it was broken. Officer Lloyd testified that, while Davis was
in the squad car, he “was quoting God, he was quoting the scriptures from the Bible,
[and saying] that he didn’t want to live anymore and he wanted to kill himself,” causing
Officer Lloyd to believe that Davis was emotionally disturbed. See Def. Fudim Decl.
Ex. 1 at 28:14-29:21. However, Davis denies making suicidal statements. See Pl.’s
Zelman Decl. Ex. H ¶¶ 4. An ambulance arrived and took Davis to the hospital, where
he remained in handcuffs for an additional 45 minutes.
Davis was diagnosed with musculoskeletal pain, prescribed two medications, and
instructed to follow up with an orthopedist. He was not treated or evaluated for any
psychiatric conditions. He was released from the hospital at 7:45 p.m. and was not
charged with any crime. Davis testified that he continued to experience slight pain in

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his foot and back and headaches for a year after incident.
II.
“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 of law.” Fed. R. Civ. P. 56(a). An issue of fact is genuine 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). Although “[t]he evidence of the
non-movant is to be believed, and all justifiable inferences are to be drawn in his
favor,” Anderson, 477 U.S. at 255, “[t]he non-moving party may not rely on conclusory
allegations or unsubstantiated speculation,” Scotto v. Almenas, 143 F.3d 105, 114 (2d
Cir.1998).
A. False Arrest
Genuine disputes of material fact preclude summary judgment to either party on
Davis’s false arrest claim.
The parties dispute what Officers Lloyd and Ramos knew at the time they
stopped Davis, and, thus, whether the stop was supported by a reasonable suspicion that
he was involved in a crime. See Adams v. Williams, 407 U.S. 143, 145-46 (1972)
(citing Terry v. Ohio, 392 U.S. 1, 21-22, 23 (1968)) (stating that a brief stop of a
“suspicious individual” may be reasonable “in light of the facts known to the officer at
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the time”). Defendants argue that they had probable cause to handcuff and detain Davis
for disorderly conduct under N.Y. Penal Law 240.20(1) for violently swinging his
phone at the officers.1 See Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996) (stating
that probable cause is a defense to a false arrest claim, defining probable cause).
However, the parties dispute whether Davis swung his phone or was violent, and,
contrary to Defendants’ assertions, the video does not resolve the dispute because Davis
was partially obstructed from the camera’s view. Finally, Defendants argue that the
officers were authorized to detain Davis and transport him to the hospital under New
York Mental Hygiene Law § 9.412 based on the suicidal comments he made while
sitting in the back of the police car, but Davis denies making any such statements.
Both parties’ motions for summary judgment as to Davis’s false arrest claim are

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N.Y. Penal Law 240.20 provides:

A person is guilty of disorderly conduct when, with intent to cause public inconvenience,
annoyance or alarm, or recklessly creating a risk thereof:
1. He engages in fighting or in violent, tumultuous or threatening behavior; or
2. He makes unreasonable noise; or
3. In a public place, he uses abusive or obscene language, or makes an obscene gesture; or
4. Without lawful authority, he disturbs any lawful assembly or meeting of persons; or
5. He obstructs vehicular or pedestrian traffic; or
6. He congregates with other persons in a public place and refuses to comply with a lawful
order of the police to disperse; or
7. He creates a hazardous or physically offensive condition by any act which serves no
legitimate purpose.
Disorderly conduct is a violation.
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N.Y. Mental Hygiene Law § provides that “Any . . . police officer who is a member of
the state police or of an authorized police department or force or of a sheriff’s department may
take into custody any person who appears to be mentally ill and is conducting himself or herself
in a manner which is likely to result in serious harm to the person or others.”
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therefore denied.
B. Excessive Force
Genuine disputes of fact preclude summary judgment on Davis’s excessive force
claim. The parties dispute the amount of force applied, and— again— the video does
not resolve the dispute. See Brown v. City of New York, 798 F.3d 94, 100 (2d Cir.
2015) (quoting Graham v. Connor, 490 U.S. 386, 395 (1989)) (stating that whether the
amount of force used is excessive is analyzed under the Fourth Amendment’s
“reasonableness standard”). Davis testified that he was punched and kicked after he
was handcuffed, but the first video ends immediately after he was placed in handcuffs.
The second starts some time later. The video is therefore not inconsistent with Davis’s
testimony. And the amount of force the video does show is significant.
The parties also dispute whether Davis posed any threat to the safety of the
officers. See id. (listing factors relevant to reasonableness, including whether the
suspect poses an immediate threat to the safety of the officers or others). Officer Lloyd
testified that Davis was violently waving his phone and that he had spoken threatening
words, but Davis stated that he was calm before the officers applied force.
These disputed issues preclude summary judgment on Davis’s excessive force
claim.
C. Failure to Intervene
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Summary judgment on Davis’s failure to intervene claim is appropriate as to
some Defendants but not others.
It is undisputed that Sergeant Schaffer was supervising Officers Lloyd and
Ramos and that she arrived on the scene while Davis was sitting handcuffed in the back
of a squad car. And Officer Ramos was questioning Fernandez a few feet away while
Davis was struggling with the other officers present and while he was being
handcuffed. Considering that summary judgment is improper on Davis’s excessive
force and false arrest claims, these facts raise a genuine dispute as to whether Sergeant
Schaffer failed to intervene in Davis’s false arrest and whether Officer Ramos failed to
intervene in the use of excessive force by the other officers on the scene. See Anderson
v. Branen, 17 F.3d 552, 557 (2d Cir. 1994) (“It is widely recognized that all law
enforcement officials have an affirmative duty to intervene to protect the constitutional
rights of citizens from infringement by other law enforcement officers in their
presence.”). However, Davis has not alleged, much less established, any facts showing
that the other officers failed to intervene to prevent constitutional violations by their
fellow officers.
Similarly, Davis has submitted no evidence in support of his claim under Monell
v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 694-95 (1978), that his
constitutional injuries were the result of an official policy or custom of the City. His
vague and conclusory allegations are insufficient to overcome summary judgment. See
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Sullivan v. City of New York, 690 Fed. App’x 63, 67 (2d Cir. 2017) (citing Ying Jing
Gan v. City of New York, 996 F.2d 522, 532 (2d Cir. 1993)) (holding that conclusory
allegations are insufficient to defeat a motion for summary judgment dismissing a
Monell claim).
Summary judgment is therefore granted to Defendants on Davis’s Monell claim
and to Officers Lloyd and John/Jane Does 1-10 on Davis’s claim for failure to
intervene. Davis’s failure to intervene claim against Officer Ramos and Sergeant
Schaffer may proceed.
D. Excessive Detention
Under the Fourth Amendment, a detention of more than 48 hours without a
probable cause hearing is presumptively unreasonable.

Cty. of Riverside v.

McLaughlin, 500 U.S. 44, 56-57 (1991). A delay of less than 48 hours may be
unconstitutional if the plaintiff can prove that it was unreasonable. As the Supreme
Court held in McLaughlin:
Examples of unreasonable delay are delays for the purpose of gathering
additional evidence to justify the arrest, a delay motivated by ill will against the
arrested individual, or delay for delay’s sake. In evaluating whether the delay in
a particular case is unreasonable, however, courts must allow a substantial
degree of flexibility. Courts cannot ignore the often unavoidable delays in
transporting arrested persons from one facility to another, handling late-night
bookings where no magistrate is readily available, obtaining the presence of an
arresting officer who may be busy processing other suspects or securing the
premises of an arrest, and other practical realities.

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Id. Davis was detained for approximately four hours without a probable cause hearing.
Defendants offer various reasons for their delay in either making a probable cause
determination or releasing Davis, including that the officers were deciding whether to
charge him with disorderly conduct and that they were concerned for his safety based
on signs that he was emotionally disturbed. Davis disputes each of these factual
contentions. The purpose of the Defendants’ delay and, thus, whether he was detained
for an unreasonable period are questions for the jury. Summary judgment on Davis’s
excessive detention claim is denied.
E. State Law Claims
Defendants argue that Davis’s state law claims for assault and battery and
respondeat superior liability should be dismissed because the officers’ use of force was
privileged. An unlawful arrest is not privileged. See Johnson v. Suffolk Cty. Police
Dep’t, 245 A.D.2d 340, 341 (1997). As discussed above, genuine disputes of fact exist
as to whether Davis’s arrest was lawful. Summary judgment on the basis that
Defendants’ use of force was privileged is therefore inappropriate.3

III.

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Defendants also argue that Davis’s state law claims should be dismissed under N.Y.
Gen. Mun. Law § 50-h, which requires a plaintiff to comply with the City’s timely request for a
hearing before commencing suit. N.Y. Gen. Mun. Law § 50-h(5). In a bench ruling, the Court
denied summary judgment on this basis without prejudice to renewal at trial, if appropriate.
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For the foregoing reasons, Defendants’ motion for summary judgment is
GRANTED as to Davis’s Monell claim and his failure to intervene claim against
Officers Lloyd and John/Jane Does 1-10. Defendants’ motion is DENIED in all
other respects. Davis’s motion for summary judgment is DENIED.
SO ORDERED
/S/ Frederic Block______
FREDERIC BLOCK
Senior United States District Judge
Brooklyn, New York
September 28, 2017

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