Yusuf et al v. City of New York et al
Filing
152
MEMORANDUM & ORDER: Defendants' motion for summary judgment 133 is DENIED as to Yusuf's federal and state-law claims for unreasonable search against Officer Cabrera, as well as his related respondeat superior claim against the City for unreasonable search. Defendants' motion is GRANTED as to Plaintiffs' remaining federal and state-law claims. ORDER ATTACHED. Ordered by Judge Eric R. Komitee on 2/9/2022. (Guy, Alicia)
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------x
ISSIAH YUSUF, LASANDRA YARBROUGH,
YULIANA YARBROUGH, and B.T.
YARBROUGH,
MEMORANDUM & ORDER
15-CV-5545(EK)(ST)
Plaintiffs,
-againstCITY OF NEW YORK, Officers ERIC
CABRERA, KEITH DIPRESSO, and NICHOLAS
RIPA, et al.
Defendants.
------------------------------------x
ERIC KOMITEE, United States District Judge:
This case arises out of a sequence of actions by the
New York City Police Department that, according to the
Plaintiffs, occurred during an “ongoing campaign of harassment”
by the NYPD against Issiah Yusuf and his family.
Complaint (“SAC”) ¶ 21, ECF No. 57.
Second Amended
Three events are
principally at issue: Yusuf’s March 2015 arrest for public
consumption of alcohol and trespassing; the NYPD’s April 2015
search of the home of Yusuf’s mother, Lasandra Yarbrough; and
Yusuf’s July 2015 arrest on robbery charges.
Plaintiffs bring claims under 42 U.S.C. § 1983 and
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New York law.1
Yusuf contends that during the March 2015
incident he was subject to an illegal stop and search, excessive
force, and falsely arrested.
Lasandra Yarbrough (Yusuf’s
mother), Yuliana Yarbrough (her daughter), and B.T. Yarbrough
(her minor son) contend that during the April 2015 search of
Lasandra’s home, they were falsely arrested and subject to abuse
of process; Yuliana and Lasandra also bring excessive force
claims.
Lastly, Yusuf sues for malicious prosecution and the
denial of the right to a fair trial in connection with his July
2015 arrest for robbery.
The remaining defendants are Officers
Eric Cabrera, Keith DiPresso, and Nicholas Ripa of the New York
City Police Department, several unnamed officers, and the City
of New York.2
Defendants now move for summary judgment on all
claims.
For the reasons below, Defendants’ motion is denied as
1
The operative complaint — the Second Amended Complaint, or SAC — named
several causes of action but did not specify which Plaintiffs asserted which
claims against which Defendants. At the Court’s request, Plaintiffs filed
(and then revised) a chart setting out that information. See ECF No. 151
(revised chart).
2
At the time Plaintiffs filed their Second Amended Complaint, the named
individual defendants were Police Officers Nicholas Testani, Anthony Byrd,
Andy Mitchell, Jonathan Ringel, Richard Demartino, Keith Dipresso, William
Glynn, Eric Cabrera, and Neil Casey. As of the date of this order, the
remaining named individual defendants are Officers Cabrera, Ripa, and
DiPresso.
2
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to Yusuf’s claims for unreasonable search, but granted as to the
rest of Plaintiffs’ claims.
Background3
As noted, the events in question transpired on three
different dates.
Viewed in the light most favorable to
Plaintiffs — the non-moving parties — the facts are as follows.
A.
Event One: Yusuf’s March 13 Arrest For Trespassing
On the evening of March 13, 2015, Yusuf entered the
lobby of a building in the Hammel Houses, a public housing
project in the Rockaways.
Pl. 56.1 ¶¶ 1, 5.
Hammel Houses, but not in that building.
3:13-14, ECF No. 136-2.
Yusuf lived in the
Id. ¶ 10; 50-h Tr.
He recognized some men who were
drinking in the lobby and stopped to talk to them.
¶ 4.
Pl. 56.1
The men had cups in their hands, and there was a brown
bottle on the floor.
Id. ¶ 3.
Officer Cabrera and a partner were on patrol in the
housing project; when they drove by the building in question,
Cabrera noticed three individuals standing outside the lobby.
3 The facts in this order are drawn from the parties’ submissions in
connection with the motion for summary judgment, including Defendants’ Local
Rule 56.1 Statement (“Def. 56.1” (ECF No. 140-2)), and Plaintiffs’ opposition
to this statement (“Pl. 56.1” (ECF No. 127)). The facts are viewed in the
light most favorable to Plaintiffs; factual assertions from Defendants’ 56.1
statement are not disputed unless otherwise noted. Citations to a party’s
Rule 56.1 Statement should be read to incorporate the documents cited
therein. For convenience, Defendants’ supporting memorandum of law will be
referred to as “Def. Br.” (ECF No. 134) and Plaintiffs’ opposition submission
as “Pl. Opp.” (ECF No. 126).
3
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Id. ¶ 5.
Cabrera made a U-turn and drove back to the building,
where the individuals were now inside the lobby.
One of them was holding the building door open.
Id. ¶¶ 6–7.
Id. ¶ 12.
There were “no trespassing” and “no loitering” signs posted in
the lobby.
Id. ¶ 11.
Yusuf and Cabrera both acknowledge some familiarity
with the other.
Yusuf knew who Cabrera was from “seeing [him]
around the neighborhood,” see Dep. of Issiah Yusuf (“Yusuf
Dep.”) 65:19–23, ECF No. 136-3; Cabrera also recognized Yusuf,
and knew he did not live in that building.
Def. 56.1 ¶ 10.
The parties agree that some individuals in the lobby
were drinking, but disagree about whether Yusuf was.
Officer
Cabrera testified that as he circled back in the patrol car, he
saw Yusuf “holding” and “chugging” a bottle.
Id. ¶¶ 7, 9; Dep.
of Eric Cabrera (“Cabrera Dep.”) 51:6-7, 57:19-22, ECF No. 1366.
According to Yusuf, the other men were drinking but he was
not.
Pl. 56.1 ¶¶ 2, 7.
He says the brown bottle was on the
floor, and that he did not know its contents.
Id. ¶ 3; 50-h Tr.
12:7-15, ECF No. 136-2.4
4
The Court can consider 50-h hearing testimony on a motion for summary
judgment. E.g., Fontanez v. Skepple, No. 12-CV-1582, 2013 WL 842600, at *3
(S.D.N.Y. Mar. 6, 2013), aff’d, 563 F. App’x 847 (2d Cir. 2014). Under
Section 50-h, “[w]herever a notice of claim is filed against a city, . . .
the city . . . shall have the right to demand an examination of the claimant
relative to the occurrence and extent of the injuries or damages for which
claim is made.” N.Y. Gen. Mun. Law § 50-h.
4
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Officer Cabrera and his partner got out of their car
and approached the building.
Pl. 56.1 ¶ 13.
Cabrera had his
shield out, id. ¶ 14, but neither he nor his partner was in
uniform.
Yusuf Dep. 62:7-8.
As they approached, the individual
standing in the doorway of the building saw Cabrera and “took
off up the stairs.”
Id. 51:24-25.
¶ 18; Cabrera gave chase.
Yusuf followed, Pl. 56.1
Id. ¶ 19.
In his deposition
testimony, Cabrera acknowledged some uncertainty over whether
Yusuf saw him approach: Yusuf “wasn’t facing outside towards
[Cabrera], he was facing inside . . . towards the elevator and
staircase.”
Cabrera Dep. 51:19-23.
[Yusuf’s] side.”
Cabrera was “looking at his
Id. 52:4.
Viewed in the light most favorable to Yusuf, the
record thus leaves open the possibility that Yusuf did not know
it was the police approaching when he fled.
Yusuf’s own
testimony on this question, however, has varied.
At a 2015
hearing pursuant to New York General Municipal Law § 50-h (“50-h
Hearing”), Yusuf testified that he “didn’t know it was the
police, but they ran – somebody said that they were about to
start shooting, so I ran upstairs in the building.”
(emphasis added).
Pl. ¶ 16
At his deposition in this case, he testified
that he “heard voices of someone telling me to come here” and
“ran because I didn’t know the voice” and because “of some of
the activities that goes on in that neighborhood.”
5
Yusuf Dep.
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50:17-51:20 (emphasis added).
Cabrera, for his part, testified
that he did not say anything to Yusuf or the other individuals
at this time.
Cabrera Dep. 63:1-8.
Regardless, Cabrera gave chase.
As he entered the
lobby, he heard glass shattering in the stairwell, and when he
opened the stairwell door, he saw broken glass with a Hennessy
label.
Pl. 56.1 ¶¶ 20-21.
Cabrera ran up the stairs to the
third floor, where he saw Yusuf exit the stairwell and turn into
the first apartment on the right.
62:9–11.
Id. ¶¶ 23-24; Cabrera Dep.
Yusuf tried to close the apartment door, but Cabrera
put his foot in the door and pushed himself inside.
Pl. 56.1
¶ 25.
Inside the apartment, Officer Cabrera handcuffed Yusuf
and another individual “for safety reasons” and took them out
into the hallway.
Cabrera Dep. 65:20-22, 66:16-19.
Cabrera
then searched Yusuf to “ma[k]e sure he didn’t have anything on
him.”
Id. 68:3-12.
Cabrera searched from the “ankles up” –
“[e]verything from head to toe” – including inside Yusuf’s
waistband, his pant and coat pockets, and underneath his shirt
and sweater.
Id. 69:14-70:24.
He testified that when he
searched Yusuf, he smelled alcohol on his breath.
6
Def.
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56.1 ¶ 29; Cabrera Dep. 66:5-11.5
At that point, however,
Cabrera did not intend to arrest Yusuf for a crime: he testified
that “at the time, it was just going to be a summons” for
alcohol.
Cabrera Dep. 57:13-16.
The search yielded no weapons
or contraband.
Cabrera then spoke with the “owner / resident” of the
apartment, Emma Baker, while on the third floor.
Pl. 56.1 ¶ 31.
According to Defendants, Ms. Baker informed Officer Cabrera that
Yusuf was friends with her son, but that she had not given him
permission to come into her apartment.
Def. 56.1 ¶ 33 (first
citing Cabrera Dep. 67:3-6 (Cabrera testifies that “the lady”
living in the apartment said “she knew them, but she never gave
them permission to come inside the apartment”); and then citing
id. 71:7-10 (“She stated to me that she does know them.
friends with her son.
They’re
But like I said, she said she never gave
them permission to come in the apartment.”)).
Yusuf testified that he was indeed invited to the
building in question to play video games with Ms. Baker’s son,
Hareem Dempster.
Pl. 56.1 at 21, ¶ 2; Yusuf Dep. 57:24-58:5.
Yusuf also testified, at his 50-h hearing, that he heard Ms.
5 Plaintiffs’ 56.1 Counterstatement indicates that Cabrera’s assertion
is “[n]ot disputed.” Pl. 56.1 ¶ 29. At oral argument, counsel explained
that Plaintiffs do not dispute that Cabrera testified that he smelled alcohol
on Yusuf, but they do dispute that Yusuf drank. See Oral Argument Tr. 68:2469:4, ECF No. 148.
7
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Baker tell the officers: “if they’re coming here with my son,
they’re not doing anything wrong.”
Pl. 56.1 ¶ 32.
At his
deposition, however, Yusuf conceded that an officer — he could
not recall which — spoke with Ms. Baker out of his earshot for a
period.
Yusuf Dep. 68:22-25 (Yusuf testifies that saw Ms. Baker
“talking to an officer.
I don’t remember which officer she was
talking to.”); id. at 69:15-70:2 (Yusuf acknowledges again that
he saw an officer speaking with Ms. Baker, but doesn’t recall
which officer); see also id. at 69:22–24 (Q: were you able to
hear what they were talking about?
A: No.).
Yusuf did not
recall how long the officer’s conversation with Ms. Baker
lasted.
Id. at 69:25-70:2.
Officer Cabrera and Sergeant Casey arrested Yusuf for
Criminal Trespass in the Third Degree (a misdemeanor) and Public
Consumption of Alcohol (an administrative code violation).
56.1 ¶ 34.
Pl.
After Yusuf was handcuffed, he “told one of the
officers, I don’t remember which one, that they [the cuffs] were
too tight,” but the officer said nothing in response.
Yusuf
Dep. 68:16–19.
Pl. 56.1
¶ 38.
Yusuf sustained no physical injuries.
Later, Officer Cabrera attempted on multiple occasions to
obtain a sworn statement from Ms. Baker, but no one answered the
door.
Id. ¶ 36.
The District Attorney’s Office declined to
prosecute, and Yusuf was released from Central Booking.
¶ 37.
8
Id.
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B.
Event Two: April 17 Execution of Search Warrant
Nearly a month later, a Queens County criminal court
issued a “no knock” warrant authorizing entry into Yusuf’s
mother’s apartment on Rockaway Beach Boulevard to search for
marijuana.
Pl. 56.1 ¶ 39; Search Warrant, ECF No. 136-12; Dep.
of Lasandra Yarbrough (“Lasandra Dep.”) 65:1-66:6, ECF No. 1284.
On the morning of April 17, the NYPD’s Emergency Services
Unit executed the search.
Pl. 56.1 ¶ 44.
Lasandra was home
with her children, including Yuliana (then age fifteen), and her
four-year-old boy, B.T.
Id. at 21, ¶¶ 5, 7.
Yusuf was not
present, and Officer Cabrera played no role in this incident.
According to Plaintiffs, officers pointed guns at
Lasandra and the children.
Id.
One of “the first officers who
entered” placed Lasandra in handcuffs in the living room.
56.1 ¶ 45.
An unidentified officer stood on Yuliana’s bed,
tightly handcuffed her, and pulled her from the bed.
at 22, ¶¶ 8-10.
tight.
Def.
Id. ¶ 9.
Pl. 56.1
Yuliana complained that the handcuffs were too
Yuliana testified: “[the officer] told me to
give him a minute, and will have someone loosen them, or he will
do it.”
Dep. of Yuliana Yarbrough (“Yuliana Dep.”) 27:7-20, ECF
No. 128-5.
The officer loosened Yuliana’s handcuffs when he
brought her into the living room.
Id.
Another officer brought
B.T. into the living room but did not handcuff him.
¶ 47.
9
Pl. 56.1
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Officer Keith DiPresso participated in the search,
though he had no role in the investigation leading to the
warrant’s issuance.
When DiPresso entered the apartment, he
proceeded directly to the back bedroom, where non-party Brian
Thomas was already handcuffed.
marijuana on the nightstand.
civilian in that room.
Id. ¶¶ 48–50.
Id. ¶ 49.
Id. ¶ 50.
DiPresso found
Thomas was the only
DiPresso and the other
officers then proceeded to the bedroom of non-party Aziz
Yarbrough, where DiPresso found more marijuana.
Id. ¶¶ 52-53.
The officers placed Thomas and Aziz Yarbrough under arrest.
¶ 54.
DiPresso did not interact with any of the Plaintiffs
during the search.
C.
Id.
Id. ¶ 56.
Event Three: Yusuf’s July 19 Arrest on Robbery Charges
On the evening of July 18, a man named Jose Nieves was
operating a “dollar van” in Queens when several individuals
stopped the van and robbed him of a gold chain and money.
56.1 ¶¶ 57-58.
Pl.
Defendant Ripa and non-party Sergeant Knight
interviewed Nieves the next day.
Id. ¶ 59.
Nieves identified
the four individuals he believed had robbed him, including
Yusuf, and showed Officer Ripa social-media photos of them on
his phone.
Id. ¶¶ 63–64.
Ripa prepared a “complaint report”
listing Yusuf as a suspect, and Yusuf was arrested on July 19 by
a non-party officer.
Id. ¶¶ 66-67.
After his arrest, Yusuf
told Ripa that he did not commit the robbery.
10
Id. ¶ 69.
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In his claims against Ripa, Yusuf points to some
discrepancies between the reports prepared in connection with
the arrest.
In the complaint report, Ripa wrote that “known
apprehended perp Unique Wooden” struck Nieves in the face and
took his gold chain.
13.
Omniform Complaint Report 2, ECF No. 136-
The arrest report, also prepared by Ripa the day of Yusuf’s
arrest, states that Yusuf, “acting in concert with three
others,” punched Nieves repeatedly in the face and took his
jewelry and money.
Omniform Arrest Report 2, ECF No. 128-15.
Assistant District Attorney Gregory Lasak subsequently
interviewed Nieves by phone.
Report 6, ECF No. 136-15.
Pl. 56.1 ¶ 75; Intake Bureau Crime
Lasak completed an Intake Bureau
Crime Report based on the information Nieves provided; the
report stated that Yusuf attempted to gain entry to Nieves’s van
through the passenger door and motioned to his waistband area
while threatening Nieves, and that other individuals, including
Unique Wooden, “repeatedly punch[ed]” Nieves.
Crime Report 3.
Intake Bureau
A criminal complaint, drafted by ADA Lasak and
signed by Officer Ripa, issued on July 19.
Pl. 56.1 ¶ 78.
complaint repeated the allegations that Yusuf tried to enter
Nieves’s van through the passenger door and motioned to his
waistband while threatening Nieves.
Id.
The day after Yusuf’s arrest, Nieves came to the
precinct and informed Ripa that he wanted to withdraw his
11
The
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complaint and specifically stated that Yusuf was not present
during the robbery.
16.
Id. ¶ 70; Letter from Nieves, ECF No. 128-
In private, Nieves told Ripa he had been threatened and was
afraid.
Pl. 56.1 ¶ 72.
Ripa informed the District Attorney’s
office that Nieves came into the precinct appearing visibly
shaken and wanted to withdraw his complaint.
Id. ¶ 74.
In an effort to shore up the case, Officer Ripa
obtained two surveillance videos taken near the scene.
¶ 90.
Id.
The first was from a convenience store across the street
from Nieves’s van; it showed Yusuf getting into a car and
leaving the scene at 7:44 p.m.
Id. ¶ 99.
The second was an
NYPD surveillance video from a nearby bus stop, which captured
the robbery from a distance at 7:54 p.m.
Id. ¶ 100.
Neither
video clearly showed Yusuf’s participation in the robbery or
where he went between 7:44 and 7:54.
Ripa sent both videos to ADA Tara DiGregorio, a
prosecutor assigned to the case.
Id. ¶ 90.
As discussed below,
the record does not reveal the exact dates on which Ripa
received the videos and sent them to DiGregorio.
On July 28,
however, after DiGregorio had viewed the videos, she decided to
drop the charges while the case was still pending before the
grand jury.
Id. ¶¶ 102–03.
DiGregorio testified that she
concluded the state had insufficient evidence to convict.
Dep.
of Tara DiGregorio (“DiGregorio Dep.”) 24:6-10, ECF No. 136-9.
12
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Procedural History
Plaintiffs initiated this action in 2015 against the
City, various named officers, and ten John and Jane Doe
defendants.
They subsequently amended the complaint twice.
The
second amended complaint – the one that is currently operative –
alleged thirteen claims arising from three separate events:
(1) Yusuf’s arrest on March 13; (2) the search of Lasandra
Yabrough’s home on April 17; and (3) Yusuf’s arrest on July 19
in connection with the Nieves robbery.
SAC ¶¶ 63–119.
Plaintiffs have since abandoned several claims.6
At
oral argument on the summary judgment motion, the Court called
for greater specificity regarding which of the remaining claims
were asserted against which defendants, in light of the
operative complaint’s lack of specificity.
Plaintiffs responded
with a chart indicating the following:
6 At the parties’ request, the Court entered a stipulation of dismissal
as to Count Nine (negligent hiring, training, and retention against the
City), Count Ten (intentional infliction of emotional distress), Count Eleven
(negligent infliction of emotional distress), and Count Twelve (failure to
intervene). Stipulation & Order of Partial Dismissal, ECF No. 119.
Later, during briefing and oral argument on Defendants’ summaryjudgment motion, Plaintiffs moved to dismiss more claims. See Pl. Opp. 27;
Oral Argument Tr. 148:11-13, 47:11-48:1, ECF No. 148. These claims may be
“dismissed at the plaintiff's request only by court order.” Fed. R. Civ. P.
41(a)(2). I hereby dismiss all claims that Plaintiffs did not include in
their chart of remaining claims.
13
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In connection with the March 13 arrest, Yusuf alleges
Section 1983 and state-law false arrest,7 unreasonable stop
and search, and excessive force claims against Officer
Cabrera, and the same state-law claims against the City.
In connection with the April 17 search of their home, the
three Yarbroughs allege Section 1983 false arrest and abuse
of process against Officer DiPresso; Yuliana alleges
Section 1983 excessive force against DiPresso; and Lasandra
alleges state-law false arrest and abuse of process claims
against DiPresso and the City, as well as an assault and
battery against just the City.8
In connection with the July 19 arrest, Yusuf alleges
Section 1983 malicious prosecution and denial of the right
to a fair trial against Officer Ripa.9
7
In each place that Plaintiffs’ chart includes a false arrest claim,
Plaintiffs write “false arrest/unreasonable detention.” ECF No. 151. To the
extent Plaintiffs are attempting to pursue unreasonable detention claims,
those claims are dismissed because Plaintiffs never asserted such claims in
their complaint.
8
The chart states that Lasandra Yarbrough brings a state-law claim for
“excessive force,” but the SAC refers to it as “state law assault and
battery.” Compare ECF No. 151, with SAC ¶¶ 83–86. I will refer to this
claim as an assault and battery claim.
9 ECF No. 151 (revised chart).
The chart includes no allegations
against the remaining Doe defendants. For that reason, and because the
remaining Jane or John Doe defendants have not been identified even after the
close of discovery, any claims previously levied against them are now
dismissed. See Keesh v. Artuz, No. 97–CV–8417, 2008 WL 3166654, at *2
(S.D.N.Y. Aug. 6, 2008) (“Even after discovery, plaintiff has failed to
identify the ‘John Doe’ and ‘Jane Doe’ defendants. Accordingly, the complaint
against them must be dismissed.”); cf. Warren v. Goord, 476 F. Supp.2d 407,
14
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Summary Judgment Standard
Summary judgment is appropriate if the record
demonstrates 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).
“A fact is material for these
purposes if it might affect the outcome of the suit under the
governing law.
An issue of fact is genuine if the evidence is
such that a reasonable jury could return a verdict for the
nonmoving party.”
Lovejoy–Wilson v. NOCO Motor Fuel, Inc., 263
F.3d 208, 212 (2d Cir. 2001).10
The movant has the burden of demonstrating the absence
of a question of material fact.
Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 256 (1986).
If the movant carries its
burden, “the nonmoving party must come forward with admissible
evidence sufficient to raise a genuine issue of fact for trial
in order to avoid summary judgment.”
Co., 536 F.3d 140, 145 (2d Cir. 2008).
Jaramillo v. Weyerhaeuser
If the non-moving party
fails to do so, summary judgment will be granted.
Entry of
summary judgment is appropriate “against a party who fails to
make a showing sufficient to establish the existence of an
413–14 (S.D.N.Y.2007) (“[T]he Court will not dismiss the claim against John
Doe until plaintiff has had sufficient discovery to name the defendant.”).
10
Unless otherwise noted, when quoting judicial decisions this order
accepts all alterations and omits all citations, footnotes, and internal
quotation marks.
15
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element essential to that party’s case, and on which that party
will bear the burden of proof at trial.”
Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986).
Discussion
A.
Event One: Yusuf’s Arrest on March 13
Yusuf makes four sets of claims (each under federal
and state law) against Officer Cabrera in relation to his
March 13 arrest: (1) unreasonable stop; (2) unreasonable search;
(3) false arrest; and (4) excessive force.
Yusuf also alleges
that the City is vicariously liable for the state-law claims.
1.
Unreasonable Stop
Yusuf argues, first, that Cabrera lacked reasonable
suspicion when he stopped, handcuffed, and searched him on the
third floor.
Yusuf alleges “unreasonable stop and search” as
one cause of action.
See SAC ¶¶ 63-64.
But the type of
suspicion required to justify the stop differs from that
required to justify the search, as discussed below.
For that
reason, I discuss the stop in this section and the search in the
next.
Cabrera had the reasonable suspicion required to
justify the stop of Yusuf on the third floor.
“[A]n officer
may, consistent with the Fourth Amendment, conduct a brief,
investigatory stop when the officer has a reasonable,
articulable suspicion that criminal activity is afoot.”
16
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Illinois v. Wardlow, 528 U.S. 119, 123 (2000).11
“While
‘reasonable suspicion’ is a less demanding standard than
probable cause and requires a showing considerably less than
preponderance of the evidence, the Fourth Amendment requires at
least a minimal level of objective justification for making the
stop.”
Id.
“‘Reasonable suspicion’ is a rather lenient test,”
and a court “must consider the totality of the circumstances” in
making its assessment.
United States v. Sanders, 208 F.3d 204,
at *1 (2d Cir. 2000) (unpublished summary order).
Here, several factors contributed to Officer Cabrera’s
reasonable suspicion that criminal activity — specifically
trespassing — was afoot.
in the building.
Cabrera knew that Yusuf did not live
Pl. 56.1 ¶ 10.
“propping the door” open.
He saw someone in the doorway,
Id. ¶ 12; Cabrera Dep. 50:1-4.
There
were “no trespassing” and “no loitering” signs posted in the
lobby.
Id. ¶ 11.
And Yusuf and the other individuals ran up
the stairs as the officers approached.
Id. ¶ 18.
Unprovoked
flight from the police “is certainly suggestive of wrongdoing
and can be treated as suspicious behavior that factors into the
11
Because “[s]earch and seizure rights under the New York State and
United States constitutions are . . . largely coextensive,” the Court
analyzes Yusuf’s federal and state-law claims together. See Febres v. City
of New York, 238 F.R.D. 377, 392 (S.D.N.Y. 2006); see also People v. Johnson,
488 N.E.2d 439, 406 (1985) (”[T]he proscription against unlawful searches and
seizures contained in N.Y. Constitution, article I, § 12 conforms with that
found in the 4th Amendment, and . . . this identity of language supports a
policy of uniformity between State and Federal courts.”).
17
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totality of the circumstances.”
District of Columbia v. Wesby,
138 S. Ct. 577, 587 (2018); see also United States v. Davenport,
303 F. App’x 42, 44 (2d Cir. 2008) (suspect’s flight after
officer approached him contributed to reasonable suspicion).
Finally, Cabrera saw Yusuf run hurriedly into an apartment that
he knew was not Yusuf’s.
He did not know whose apartment it was
or what Yusuf and his friend were doing there.
Thus, once
Cabrera caught up to Yusuf, it was reasonable for him to conduct
a brief investigatory stop.
Because Officer Cabrera had a reasonable basis to
conclude that Yusuf was committing or had committed a criminal
offense — trespass — Cabrera was justified in making the Terry
stop that Yusuf challenges.
2.
Unreasonable Search
Yusuf testified that outside Ms. Baker’s apartment,
Cabrera “pushed [him] against the wall and started searching”
him.
Yusuf Dep. 22:16-17.
As described by Cabrera, he searched
Yusuf “from head to toe,” including inside his waistband, pant
and coat pockets, and underneath his shirt and sweater.
Cabrera
Dep. 69:14-70:24.
To conduct a pat-down during a Terry stop, the officer
must have more than a reasonable basis to believe that a crime
has been committed:
he must also have a reasonable basis to
believe the person stopped is armed and dangerous.
18
See United
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States v. Bailey, 743 F.3d 322, 332 (2d Cir. 2014) (citing
Arizona v. Johnson, 555 U.S. 323, 326-27 (2009)).
“The Supreme
Court has emphasized that the goal of the frisk is not to
discover evidence of crime, but to help law enforcement
ascertain whether a suspect has a weapon which might be used to
harm the officer or others nearby.”
United States v. Weaver, 9
F.4th 129, 140 (2d Cir. 2021).
The Defendants have not established — or even argued,
really — that Cabrera had a reasonable basis to think Yusuf was
armed and dangerous.
Cabrera says that when he conducted the
Terry stop, he suspected Yusuf of trespassing and public
consumption; neither is the kind of conduct that would logically
be expected to involve the use or possession of a firearm.
More
generally, Cabrera simply has not, at this point, proffered the
“specific and articulable facts” that the Supreme Court says are
necessary to satisfy Johnson’s “reasonable basis” test.
Cabrera
testified that, “for safety reasons,” he handcuffed Yusuf and
“made sure he didn’t have anything on him.”
12.12
Cabrera Dep. 68:8-
But the only “safety reasons” Cabrera identified were that
12 The testimony suggests that Cabrera handcuffed Yusuf prior to the
search that Yusuf argues was conducted without reasonable suspicion. Yusuf
does not contend that the handcuffing transformed the stop into a full-blown
arrest. Cf. Grice v. McVeigh, 873 F.3d 162, 167 (2d Cir. 2017) (“In general,
to determine whether a Terry stop is so intrusive as to become an arrest, we
look to: the amount of force used by police, the need for such force, and the
extent to which the individual’s freedom of movement was restrained, and in
particular such factors as the number of agents involved, whether the target
19
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he knew Yusuf did not live in that apartment, he did not know
whose apartment it was, and “[t]here could possibly be a gun at
the apartment.”
See id. at 65:4-22.
It is settled law that “a
police officer, faced with the possibility of danger, has a
right to take reasonable steps to protect himself and an
obligation to ensure the safety of innocent bystanders,
regardless of whether probable cause to arrest exists.”
v. McVeigh, 873 F.3d 162, 167 (2d Cir. 2017).
Grice
But he must have
a reasonable belief that some danger exists, as noted above.
See United States v. Alexander, 907 F.2d 269, 272 (2d Cir. 1990)
(“The officer need not be absolutely certain that the individual
is armed; the issue is whether a reasonably prudent man in the
circumstances would be warranted in the belief that his safety
or that of others was in danger.” (quoting Terry v. Ohio, 392
U.S. 1, 27 (1968)).
Cabrera’s statement that there “could
possibly” have been a gun in the apartment does not meet that
standard.
Cabrera Dep. 65:20-21.13
of the stop was suspected of being armed, the duration of the stop, and the
physical treatment of the suspect, including whether or not handcuffs were
used.”).
13
Though not dispositive here, it bears mentioning that Cabrera
testified he was searching Yusuf not only for guns, but also for
“contraband . . . [l]ike drugs.” Id. at 72:17-21; see also id. at 72:22-23
(“Q: And why were you searching for drugs? A: These kids like smoke weed . .
. .”). The Supreme Court, however, has been clear that the “purpose of this
limited [Terry] search is not to discover evidence of crime . . . . Rather,
a protective search — permitted without a warrant and on the basis of
reasonable suspicion less than probable cause — must be strictly ‘limited to
that which is necessary for the discovery of weapons which might be used to
20
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And the search was not justified as a search incident
to arrest.
A search incident to arrest may occur prior to the
formal arrest, so long as the officer has probable cause.
See
e.g., United States v. Wilson, 94 F. App’x 14, 17 (2d Cir. 2004)
(“Once probable cause was established, it is irrelevant whether
the officers’ searches of Wilson occurred prior or subsequent to
his arrest.”).
But Cabrera has not established that he had
probable cause to arrest at this point for trespass.
The cases
assessing probable cause for trespass arrests typically require
the officer to do something to establish that the suspect is on
the premises without a resident’s invitation.
See, e.g.,
Mitchell v. City of New York, 841 F.3d 72, 78 (2d Cir. 2016)
(“[O]fficers must have probable cause to believe that a person
does not have permission to be where she is before they arrest
her for trespass.”).
searched Yusuf.14
And Cabrera had not done so when he
Cabrera cannot assert probable cause to arrest
Yusuf for public consumption at this stage because there is a
dispute of fact, as noted above, regarding whether Yusuf was
drinking at all.
Yusuf’s unreasonable search claims — federal
and state — will proceed.
harm the officer or others nearby.’” Minnesota v. Dickerson, 508 U.S. 366,
373 (1993) (quoting Terry, 392 U.S. at 26)).
14 The probable-cause determination is objective, not subjective, and
thus Cabrera’s personal view is not at issue. Still, Cabrera testified that
he did not believe he had probable cause to arrest Yusuf for trespass at this
point. Cabrera Dep. 67:19-24.
21
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It is worth noting that even if Yusuf succeeds on
these claims at trial, he is alleging only a momentary
violation:
As I conclude below, Cabrera established probable
cause to arrest Yusuf (and search him incident to arrest)
moments later, when he obtained evidence that Yusuf did not have
permission to be in the building.
But there is no de minimis
exception to an officer’s liability for an unreasonable Terry
stop or search.
356 (2015).
E.g., Rodriguez v. United States, 575 U.S. 348,
Accordingly, Defendants’ motion for summary
judgment is denied on Yusuf’s unreasonable search claims.
3.
False Arrest
Yusuf next argues that the officers lacked probable
cause to arrest him for either trespass or public consumption.
To prevail on a false arrest claim under New York law, 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.”
Singer v. Fulton Cnty. Sheriff, 63 F.3d 110, 119
(2d Cir. 1995).
The elements of a false arrest claim under
Section 1983 are “substantially the same.”
Ackerson v. City of
White Plains, 702 F.3d 15, 19 (2d Cir. 2012) (per curiam).
It
is the fourth element that is disputed here, as the existence of
probable cause is a “complete defense” to claims of false
22
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arrest.
Covington v. City of New York, 171 F.3d 117, 122 (2d
Cir. 1999).
Even without probable cause, “an arresting officer
will . . . be entitled to qualified immunity from a suit for
damages if he can establish that there was arguable probable
cause to arrest.”
2004).
Escalera v. Lunn, 361 F.3d 737, 743 (2d Cir.
“A police officer has arguable probable cause 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.”
Figueroa v. Mazza, 825 F.3d 89, 100 (2d Cir. 2016).
The
question is “not whether the officer should have acted as he
did,” but rather “whether any reasonable officer, out of the
wide range of reasonable people who enforce the laws in this
country, could have determined that” probable cause existed.
Id.
As the Supreme Court has repeatedly recognized, “qualified
immunity protects all but the plainly incompetent or those who
knowingly violate the law.”
1867 (2017).
Ziglar v. Abbasi, 137 S. Ct. 1843,
Still, the burden of proving the affirmative
defense of qualified immunity rests with the defendant.
Gomez
v. Toledo, 446 U.S. 635, 640-41 (1980).
Even viewing the facts in the light most favorable to
Yusuf, the false-arrest claims must be dismissed because Cabrera
had probable cause — and certainly “arguable” probable cause —
23
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to believe that Yusuf was trespassing, once he spoke to the
“owner / resident” of the apartment and she denied knowledge
that Yusuf was invited.
New York Penal Law Section 140.10
provides that a person “is guilty of criminal trespass in the
third degree when he knowingly enters or remains unlawfully in a
building or upon real property . . . (e) where the building is
used as a public housing project in violation of conspicuously
posted rules or regulations governing entry and use thereof.”
N.Y. Penal Law § 140.10(e).
And “probable cause requires only a
probability or substantial chance of criminal activity, not an
actual showing of such activity.”
United States v. Bakhtiari,
913 F.2d 1053, 1062 (2d Cir. 1990) (quoting Illinois v. Gates,
462 U.S. 213, 244 n.13 (1983)).
Cabrera had probable cause to arrest Yusuf for
trespass after speaking to Ms. Baker.
As noted above, Cabrera
knew the following before his communication with Ms. Baker: he
had observed Yusuf in the lobby of a building that he knew was
not Yusuf’s.
Pl. 56.1 ¶ 10.
posted in the lobby.
There were “no trespassing” signs
Id. ¶ 11.
When Cabrera approached, Yusuf
and his cohort fled, id. ¶ 18; this flight is significant, even
if it is not dispositive.15
15
“Headlong flight — wherever it occurs — is the consummate act of
evasion: It is not necessarily indicative of wrongdoing, but it is certainly
suggestive of such.” Wardlow, 528 U.S. at 124. And it is irrelevant that
24
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Even after witnessing this sequence, however, Cabrera
engaged in further inquiry before making the full arrest.
He
testified that Ms. Baker told him that she “didn’t give Yusuf
permission to be in her apartment,” even if she knew him as her
son’s friend.
Cabrera Dep. 76:20-77:4.
Critically, Yusuf does
not deny that this conversation occurred; nor could he, given
both parties’ acknowledgment that Cabrera spoke with Ms. Baker
for some period of time — Yusuf does not recall how long — out
of Yusuf’s earshot.
Pl. 56.1 ¶ 30 (not disputing that while
Yusuf was still in the hallway, “Officer Cabrera went back into
the apartment to speak with” Ms. Baker); Yusuf Dep. 69:22-24 (Q:
Were you able to hear what they were talking about?
These facts protect Cabrera from suit.
A: No.).
See Jackson v.
City of White Plains, No. 05-CV-0491, 2015 WL 4739762, at *5
(S.D.N.Y. Aug. 7, 2015) (“Courts in this District and in the
State of New York have found probable cause to arrest an
individual for trespassing in a public housing project when
police confirm with a resident of the building that the
suspected trespasser does not live there.”); cf. Davis v. City
of New York, 902 F. Supp. 2d 405, 413-14 (S.D.N.Y. 2012)
(officer had probable cause to arrest where he was “aware of the
Yusuf claims not to have known it was the police he was fleeing from: for
qualified-immunity purposes, the analysis is limited to the facts known by
the arresting officer at the time of the arrest. Jaegly v. Couch, 439 F.3d
149, 153 (2d Cir. 2006).
25
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following facts: (1) Osorio had been in the lobby of the
building, (2) Osorio was not a resident of the building, (3)
Osorio said he had been in apartment 5C, and (4) the current
occupant of 5C said that Osorio had not been there”).
Yusuf did testify at his 50-h hearing that he heard
the officers ask Ms. Baker, “do you want them here,” and that
she replied, “if they’re coming here with my son, they’re not
doing anything wrong.”
50-h Tr. 28:17-25, ECF No. 128-9.
Taking this assertion as true (as we must), it is still not
incompatible with Cabrera’s testimony.
A layman’s observation
that someone is “not doing anything wrong” is not the same thing
as a statement that the person was invited onto a given
premises.
More importantly, the statement that Yusuf attributes
to Ms. Baker’s was conditional — “if they’re coming here with my
son” — and the record gives no indication that the condition was
satisfied (let alone that Cabrera knew it was).
Specifically,
there is no indication that Ms. Baker’s son, Hareem Dempster,
was anywhere among the cohort gathered in the lobby.16
Under the
circumstances, it would have been a reach for Cabrera to believe
16
If anything, the record suggests otherwise. See 50-h Hearing Tr.
11:22-13:24 (Yusuf “recognized” the men in the lobby but did not know if they
lived in the building; Yusuf told them he was there visiting his friend, Mr.
Dempster, who they “[p]robably” knew); Yusuf Dep. 52:20-53:6 (testifying that
Yusuf and Mr. Ponder ran up the stairs to Mr. Dempster’s apartment); Cabrera
Dep. 59:8-9, 64:13–21 (Cabrera chased Yusuf and another individual up the
stairs; “as soon as [he] pushed [him]self in,” he saw Yusuf and Ponder with
“their hands up” and “sweating”).
26
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that Yusuf had been invited to stand in the lobby by a non-party
to that gathering who happened to be three floors up.
See,
e.g., Jackson, 2015 WL 4739762, at *6 (finding no constitutional
violation — and declining even to reach the question of
qualified immunity — where defendant officers “verified that
Plaintiff was neither a resident nor a visitor of the building
before [they] placed Plaintiff under arrest for criminal
trespass”).17
One might question the wisdom of a law that
criminalizes mere presence in the lobby of a public-housing
tenant’s neighboring apartment building.18
But for purposes of
the instant constitutional (and qualified-immunity) analysis,
the Court must of course take the criminal code as it actually
existed.
On this law and the undisputed facts of this case,
Cabrera had probable cause (and, therefore, arguable probable
cause) to believe that Yusuf was trespassing.
17
In Jackson, the court granted summary judgment to the defendants
despite the “Plaintiff essentially contend[ing] that everyone is lying.” Id.
The court held that the plaintiff’s “self-serving statements, absent any
supporting direct or circumstantial evidence,” were insufficient to defeat
the motion. Id.
18
As courts have recognized, however, there are important interests on
both sides of this question. “Prohibiting trespass and loitering on NYCHA
property by uninvited strangers is understandably important to many
residents: the buildings are their homes. The Legislature has reasonably
determined that, for the safety and well-being of NYCHA residents, access to
the buildings should be restricted to residents and their invited guests.”
Davis, 902 F. Supp. 2d at 421.
27
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Given that conclusion, I need not reach the question
of probable cause for the public-consumption arrest.
“[W]hen
faced with a claim for false arrest, we focus on the validity of
the arrest, and not on the validity of each charge.”
Jaegly v.
Couch, 439 F.3d 149, 154 (2d Cir. 2006) (“Because the arresting
officer in this case had probable cause to arrest Jaegly for the
charged crime of second degree harassment, however, we need not
consider whether probable cause existed for an uncharged
crime.”); see also Tompkins v. City of New York, 50 F. Supp. 3d
426, 433 (S.D.N.Y. 2014) (“As long as there was probable cause
to arrest the plaintiff for any offense . . . a false arrest
claim will fail.”).
4.
Excessive Force Against Yusuf
Police use of force is “excessive, in violation of the
Fourth Amendment, if it is objectively unreasonable in light of
the facts and circumstances confronting them, without regard to
their underlying intent or motivation.”
York, 380 F.3d 106, 108 (2d Cir. 2004).19
Maxwell v. City of New
Yusuf claims that the
officers used excessive force when they handcuffed him too
tightly, but he cannot identify the officer who handcuffed him.
19
The state-law equivalent of a federal excessive force claim is for
assault and battery. “Except for § 1983’s requirement that the tort be
committed under color of state law, the essential elements of excessive force
and state law assault and battery claims are substantially identical.” E.g.,
Humphrey v. Landers, 344 F. App’x 686, 688 (2d Cir. 2009). The Court thus
analyzes Yusuf’s excessive force and assault and battery claims as one.
28
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See Yusuf Dep. 68:18-19, 69:7-21.
He thus alleges that Officer
Cabrera – the only defendant named this claim – is liable, at
the least, for failing to intervene.
ECF No. 148.
Oral Arg. Tr. 73:17-22,
A police officer may be held liable for his
failure to intervene if he observes a fellow officer using
excessive force and has sufficient time to act to prevent it.
Figueroa, 825 F.3d at 106.
“Liability attaches on the theory
that the officer, by failing to intervene, becomes a tacit
collaborator in the illegality.”
Id.
In evaluating an excessive force claim arising out of
the use of handcuffs, “a court must consider (1) whether the
handcuffs were unreasonably tight, (2) whether the defendants
ignored the plaintiff’s pleas that the handcuffs were too tight;
and (3) the degree of injury to the wrists.”
Higginbotham v.
City of New York, 105 F. Supp. 3d 369, 377 (S.D.N.Y. 2015).
“The injury requirement is particularly important.”
Rolkiewicz
v. City of New York, 442 F. Supp. 3d 627, 638 (S.D.N.Y. 2020).
“In fact, there is a consensus among courts in this circuit that
tight handcuffing does not constitute excessive force unless it
causes some injury beyond temporary discomfort.”
Id. (citing
Lynch ex rel. Lynch v. City of Mount Vernon, 567 F. Supp. 2d
459, 468 (S.D.N.Y. 2008)).
“These injuries need not be severe
or permanent, but must be more than merely de minimis.”
Id.;
cf. Saheed v. City of New York, No. 17-CV-1813, 2020 WL 1644006,
29
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at *15 (S.D.N.Y. Apr. 2, 2020) (plaintiff’s wrist injuries were
more than de minimis where ambulance and emergency room records
showed that he complained of pain, he continued to complain of
pain at least seventeen days later, and his doctor ordered an xray and prescribed ibuprofen for continued pain).20
Yusuf alleges no injury from the handcuffs and has
adduced no evidence of injury.
Pl. 56.1 ¶ 38.
His excessive
force claim thus fails as a matter of law, as does his argument
that Cabrera failed to intervene.
Accordingly, summary judgment
is granted as to Yusuf’s excessive force claims.
5.
Respondeat Superior Claims
Yusuf also alleges state-law respondeat superior
claims against the City for unlawful stop and search, false
arrest, and excessive force.
“Unlike cases brought under
§ 1983, municipalities may be liable for the common law torts,
20 Plaintiffs argues that under Cugini v. City of New York, 941 F.3d 604
(2d Cir. 2019), a plaintiff is no longer required to show an injury to claim
excessive force based on handcuffing. Id. at 613; see Pl.’s Opp. 24; see
also Oral Argument Tr. 49:13-50:6, ECF No. 148. This Court does not read
Cugini as providing an alternative to the injury requirement. In Cugini, the
Second Circuit held that a plaintiff “need not always establish that she
alerted an officer to the fact that her handcuffs were too tight or causing
pain.” 941 F.3d at 613. (emphasis added). Rather, “the question is more
broadly whether an officer reasonably should have known during handcuffing
that his use of force was excessive,” which a plaintiff can show “if either
the unreasonableness of the force used was apparent under the circumstances,
or the plaintiff signaled her distress, verbally or otherwise, such that a
reasonable officer would have been aware of her pain, or both.” Id. The
Second Circuit did not address the injury requirement at all. Moreover,
Defendants have highlighted ample post-Cugini case law continuing to require
an injury that is more than de minimis.
30
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like false arrest . . . , committed by their employees under the
doctrine of respondeat superior.”
Biswas v. City of New York,
973 F. Supp. 2d 504, 539 (S.D.N.Y. 2013).
“If the plaintiff is
able to establish any of his pendent state law claims, he can
recover against the City of New York under the common law
doctrine of respondeat superior.”
Anderson v. City of New York,
817 F. Supp. 2d 77, 99 (E.D.N.Y. 2011).
Because Yusuf fails as a matter of law to establish
individual liability against Officer Cabrera for unreasonable
stop, false arrest, and assault and battery, he cannot establish
respondeat superior liability for those claims.
E.g., Velez v.
City of New York, 730 F.3d 128, 137 (2d. Cir. 2013) (noting that
if an employee was not liable, “there is no basis for imposing
[respondeat superior] liability on the employer”); Morales v.
City of New York, 59 F. Supp. 3d 573, 583 (S.D.N.Y. 2014)
(“[B]ecause Plaintiff has not demonstrated any basis for
liability on the part of any of the City’s agents or employees,
her respondeat superior claim also fails.”).
Those claims
against the City are dismissed.
The City can be held liable for Yusuf’s surviving
unreasonable search claim, however.
E.g., Triolo v. Nassau
County., — F.4d —, No. 19- 4107-cv, 2022 WL 186567, at *8 (2d
Cir. Jan. 21, 2022) (quoting Jones v. State of New York, 307
N.E.2d 236, 237 (1973) (“A long line of cases has held the State
31
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or municipalities liable for the actions of their police
officers in the line of duty.”)); Hawthorne ex rel. Hawthorne v.
County of Putnam, 492 F. Supp. 3d 281, 305 (S.D.N.Y. 2020)
(dismissing all but “Plaintiff's respondeat superior claim
against Putnam County based on [individual defendant officers’]
alleged unreasonable . . . search”); see also Ackerson, 702 F.3d
at 22 (defendant officer’s liability for false-arrest claim
under New York law created liability for the city defendant
“under a theory of respondeat superior”).
Summary judgment is
therefore denied as to Yusuf’s state-law unreasonable search
claim against the City.
B.
Event Two: April 17 Execution of Search Warrant
The Yarbroughs make several claims arising from the
April 17 search of their home:
all three allege federal abuse
of process and false arrest against Officer DiPresso; Yuliana
also asserts a federal excessive-force claim against DiPresso;
and Lasandra brings state-law claims for false arrest and abuse
of process against DiPresso and the City, plus state-law assault
and battery against just the City.
1.
Abuse of Process
The Yarbroughs allege that defendant DiPresso engaged
in malicious abuse of process, in violation of Section 1983 and
state law, when he searched their home because the “warrant
issued for the search . . . was a pretextual search warrant
32
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issued in order to harass, arrest, or otherwise harm Mr. Yusuf.”
Pl. Opp. 21.
Courts look to state law for the elements of a Section
1983 claim alleging malicious abuse of process.
Sheldon, 41 F.3d 73, 80 (2d Cir. 1994).
Cook v.
Under New York law, a
plaintiff must show that the defendant: “(1) employ[ed]
regularly issued legal process to compel performance or
forbearance of some act (2) with intent to do harm without
excuse or justification, and (3) in order to obtain a collateral
objective that is outside the legitimate ends of the process.”
Savino v. City of New York, 331 F.3d 63, 76 (2d Cir. 2003).
Under the third element, “[a] malicious motive alone does not
give rise to a cause of action for abuse of process.”
Hernandez
v. United States, 939 F.3d 191, 204 (2d Cir. 2019) (quoting
Savino, 331 F.3d at 76).
Rather, a plaintiff must prove that
the defendant acted with “an improper purpose - that is, ‘he
must claim that the defendant aimed to achieve a collateral
purpose beyond or in addition to his criminal prosecution.’”
Douglas v. City of New York, 595 F. Supp. 2d 333, 344 (S.D.N.Y.
2009) (quoting Savino, 331 F.3d at 76); see also Hoyos v. City of
New York, 999 F. Supp. 2d 375, 391 (E.D.N.Y. 2013) (“A malicious
abuse of process claim thus requires an ulterior purpose such as
the infliction of economic harm, extortion, blackmail, or
retribution.”).
33
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Here, Plaintiffs have produced no evidence that
DiPresso sought or executed the search warrant in pursuit of a
“collateral purpose.”
In fact, it is undisputed DiPresso played
no role in seeking the “legal process” about which Plaintiffs
complain.
He was instructed to assist with the search, but
played no role in the investigation leading to the issuance of
the search warrant.
Pl. 56.1 at 21, ¶ 4 (citing DiPresso Dep.
45:7-16); see, e.g., Bender v. City of New York, No. 09-CV-3286,
2011 WL 4344203, at *8 (S.D.N.Y. Sept. 14, 2011) (dismissing
abuse of process claim against defendant who “only alleged to
have participated in the search of Plaintiff's apartment”
because there was no allegation that he “played any role in
obtaining any ‘legal process’ to use against her”).
The Yarbroughs contend that the officers’ interest in
Yusuf’s whereabouts during the search – asking Lasandra,
“where’s your son” – demonstrates collateral purpose because the
officers were executing a search warrant, not an arrest warrant.
Oral Arg. Tr. 51:19-23; Lasandra Dep. 79:1-19.
But the interest
in Yusuf’s whereabouts is not the kind of “collateral purpose”
that an abuse-of-process claim requires — namely, a “collateral
advantage or corresponding detriment to the plaintiff which is
outside the legitimate ends of the process.”
TADCO Const. Corp.
v. Dormitory Auth. of New York, 700 F. Supp. 2d 253, 271 (2010)
(emphasis added).
On the contrary, inquiring about the target
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of an investigation is very much within the legitimate ends of
the investigative process that leads law enforcement to obtain a
search warrant.
And here, DiPresso testified that prior to
executing the warrant, he was informed that Yusuf was the
subject of the investigation.
DiPresso Dep. 44:2-45:16.21
This
justified DiPresso’s interest in Yusuf’s whereabouts; indeed, it
would be surprising, under the circumstances, for the officers
not to have asked if Yusuf was on the premises.
In the end, Plaintiffs cite no case supporting the
contention that officers evidence an improper or “collateral”
objective simply by inquiring into the whereabouts of a suspect
during the execution of a search warrant.
Plaintiffs allege no
more than that the officers “employed legal process . . . for
the purpose,” that is, searching the home, “for which the law
created it.”
Hoyos, 999 F. Supp. 2d at 391.
Decisions identifying improper or “collateral”
objectives are readily distinguishable.
For example, in
Hernandez v. Wells, No. 01-CV-4376, 2003 WL 22771982 (S.D.N.Y.
Nov. 24, 2003), the plaintiff alleged that the defendant, a
corrections officer, fabricated assault charges to save his own
job.
Id. at *9.
21
issued.
The defendant had been previously disciplined
No party produced the supporting affidavit upon which the warrant was
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for misconduct and warned that he would be fired if he violated
rules or regulations in the future.
Id.
Explaining that this
“purpose would be an improper collateral objective because
safeguarding one’s own employment lies outside the legitimate
goal of criminal process,” the court allowed the plaintiff’s
malicious abuse of process claim to proceed.
Id.; see also
VanZandt v. Fish & Wildlife Serv., 524 F. Supp. 2d 239, 246
(W.D.N.Y. 2007) (plaintiffs stated a claim for malicious abuse
of process by alleging that defendants’ “collateral objective”
in obtaining a search warrant was to steal plaintiffs’
property); TADCO Constr., 700 F. Supp. 2d at 272 (on a motion to
dismiss, plaintiffs adequately alleged that defendants acted for
the “improper purpose” of obtaining advantage over plaintiffs in
contract disputes).
Because Plaintiffs cannot meet the third element for
abuse of process against DiPresso, summary judgment is granted
on this claim.
2.
False Arrest
The Yarbroughs’ false arrest claims fail because —
among other reasons — the officers were justified in briefly
detaining Plaintiffs while they searched the home.
“An
officer’s authority to detain incident to a search is
categorical; it does not depend on the ‘quantum of proof
justifying detention or the extent of the intrusion to be
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imposed by the seizure.’”
Meuhler v. Mena, 544 U.S. 93, 98
(2005); see also Summers, 452 U.S. at 703 (police have the
authority to detain occupants of a premises while an authorized
search is being conducted).
This defeats the fourth element of
a false-arrest claim under both federal and state law.
See
Ackerson, 702 F.3d at 19 (for false arrest claim under Section
1983 and New York law, a plaintiff must prove that “the
confinement was not otherwise privileged”).
In addition, Plaintiffs present no evidence that
DiPresso, the only Defendant present at the scene, personally
confined, or intended to confine, any Plaintiff.
On the
contrary, the record reveals no dispute that DiPresso walked
directly to the back bedroom of the apartment upon entry, where
Brian Thomas was already handcuffed, and then to Aziz
Yarbrough’s room.
Pl. 56.1 ¶¶ 48–53.
In the meantime, other
(unidentified) officers handcuffed Lasandra and Yuliana.
56.1 ¶ 45; Pl. 56.1 at 22, ¶¶ 8-10.
Def.
Plaintiffs thus fail to
meet the first requirement for false-arrest – “inten[t] to
confine [the plaintiff].”
Ackerson, 702 F.3d at 19.
They also
fail to establish the “personal involvement” of any defendant,
as required for a Section 1983 claim.
496, 501 (2d Cir. 1994).
Wright v. Smith, 21 F.3d
Summary judgment is therefore granted
as to Plaintiffs’ false arrest claims against DiPresso.
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3.
Section 1983 Excessive Force
Plaintiffs likewise fail to show DiPresso’s personal
involvement in Yuliana’s excessive force claim.
“A police
officer is personally involved in the use of excessive force if
he either (1) directly participates in an assault; or (2) was
present during the assault, but did not intervene on behalf of
the victim even though he had a reasonable opportunity to do
so.”
Corley v. Shahid, 89 F. Supp. 3d 518, 523 (E.D.N.Y. 2015)
(emphasis omitted).
Mere presence at the scene is insufficient;
the plaintiff must proffer evidence that the officer “had either
awareness of excessive force being used or an opportunity to
prevent it.”
Id.
DiPresso did not place the handcuffs on
Yuliana or interact with her at all in the apartment, and there
is no evidence that he ever stepped into her bedroom.
An
unidentified officer handcuffed Yuliana in her room, and it was
to that officer that she “complained immediately” that the
handcuffs were too tight.
Pl. 56.1, at 22, ¶ 8-10.
The officer
who handcuffed Yuliana told her to “give him a minute,” and that
he or another officer would loosen them.
Yuliana Dep. 27:7-20.
That officer then loosened Yuliana’s handcuffs in the living
room.
Id.
Because there is no evidence that DiPresso was
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present while Yuliana was handcuffed, or heard this exchange,
Plaintiffs cannot establish that he failed to intervene.
Moreover, Yuliana fails to show any injury arising
from the incident.
As with Yusuf’s excessive force claim
against Cabrera, she alleges no injury beyond temporary
discomfort.
See Lynch, 567 F. Supp. 2d at 468.
Thus, even if
DiPresso had been involved, Yuliana’s momentary wait for an
adjustment of her handcuffs would not serve as the basis of
liability.
Summary judgment is granted as to Plaintiffs’
federal excessive force claim against DiPresso.
4.
Respondeat Superior Claims
Finally, Lasandra brings state-law claims for false
arrest, abuse of process, and assault and battery against the
City based on respondeat superior liability.
Because the
Yarbroughs fail to establish liability against any agent or
employee of the City, however, the City cannot be held liable.
See Velez, 730 F.3d at 137.
against DiPresso.
As discussed, they have no claim
And while “there is no requirement that
respondeat superior liability be predicated on the conduct of an
individual who is named as a defendant in the suit,” Tardif v.
City of New York, 344 F. Supp. 3d 579, 592 (S.D.N.Y. 2018),
Plaintiffs fail to satisfy the requirements for overcoming
summary judgment against any other officer present during the
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incident.
Lasandra’s claims against the City are therefore
dismissed.
C.
Event Three: Yusuf’s Arrest on July 19
In relation to his July 19 arrest arising from the
robbery of Nieves’s dollar van, Yusuf brings Section 1983 claims
for malicious prosecution and the denial of a fair trial against
Officer Ripa.
1.
Malicious Prosecution
To prevail on a claim for malicious prosecution under
Section 1983, a plaintiff must show “that (1) the defendant
either commenced or continued a criminal proceeding against the
plaintiff; (2) the proceeding terminated in plaintiff’s favor;
(3) that there was no probable cause for the criminal
proceeding; and (4) that the criminal proceeding was initiated
out of actual malice.”
141, 145 (2d Cir. 2000).
Bonide Prods., Inc. v. Cahill, 223 F.3d
“A successful claim against a police
officer also requires some showing that the defendant distorted
the process by which [the] plaintiff was brought to trial.”
Breeden v. City of New York, No. 09-CV-4995, 2014 WL 173249, at
*10 (E.D.N.Y. Jan. 13, 2014).
Yusuf’s claim fails, first and foremost, because he
presents no evidence of actual malice.
He relies primarily on
(1) Officer Ripa’s alleged delay in sending the bus stop video
to ADA DiGregorio, and (2) the fact that the case was not
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dismissed until several days after Nieves’s retraction.
Opp. 27-28.
Pl.
The exact length of the alleged delay, though
unknown, was not long.
Ripa testified that he requested the
NYPD bus stop video “a couple of days after the incident.”
Dep. 142:19-23.
Ripa
Though he could not recall how many days
exactly, it was “between two and 10 days after the incident.”
Id. at 143:8-9.
¶ 57.
The incident occurred on July 18.
Pl. 56.1
ADA DiGregorio recalled that she received the bus stop
video from Ripa on July 22 or 23.
DiGregorio Dep. 133:8-11.
Thus, the most the record reveals is that two or three days
elapsed between Ripa’s obtaining the video and DiGregorio’s
receipt.
And no more than one week elapsed between Ripa’s
review of the video and DiGregorio’s decision to dismiss the
case on July 28.
See Pl. 56.1 ¶ 103.
This short delay, coupled with the lack of any
indication that Ripa intentionally withheld the video from
DiGregorio, cannot serve as the basis of a malice determination.
Nor can the decision to dismiss the case several days after
Nieves’s retraction (on July 20), as this decision belonged to
the prosecutor – not Officer Ripa.
See, e.g., Gilman v. Marsh &
McLennan Cos., 868 F. Supp. 2d 118, 128 (S.D.N.Y. 2012) (“New
York law imposes a presumption that a prosecutor exercises his
own independent judgment in deciding to prosecute a criminal
defendant.”).
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Likewise, there is no evidence that Officer Ripa
“distorted” the process of Yusuf’s criminal proceeding.
The
evidence shows only that Ripa consistently disclosed to
DiGregorio and other prosecutors the information he obtained
with regards to the investigation.
“[A]n officer who does no
more than disclose to a prosecutor all material information
within his knowledge is not deemed to be the initiator of the
proceeding.”
See Breeden, 2014 WL 173249, at *10.
As
discussed, nothing in the record indicates that Ripa
intentionally withheld the bus stop video from DiGregorio or
interfered in any way with DiGregorio’s own decision-making
process.
See Alcantara v. City of New York, 646 F. Supp. 2d
449, 457 (S.D.N.Y. 2009) (“[A] malicious-prosecution claim
cannot stand if the decision made by the prosecutor to bring
criminal charges was independent of any pressure exerted by the
police.” (collecting cases)).
Summary judgment is therefore
granted as to Yusuf’s malicious prosecution claim.
2.
Denial of the Right to a Fair Trial
Claims for the denial of the right to a fair trial
based on fabricated information are restricted to those cases in
which “an (1) investigating official (2) fabricate[d] evidence
(3) that [was] likely to influence a jury’s decision,
(4) forward[ed] that information to prosecutors, and (5) the
plaintiff suffer[ed] a deprivation of liberty as a result.”
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Garnett v. Undercover Officer C0039, 838 F.3d 265, 277 (2d Cir.
2016).22
Unlike a claim for false arrest or malicious
prosecution, “probable cause is no defense to a denial of the
right to a fair trial claim.”
Id. at 278 (explaining that
“probable cause, which is a Fourth Amendment concept, should not
be used to immunize a police officer who violates an arrestee's
non-Fourth Amendment constitutional rights,” such as the right
to due process).
The requirement that the false information be
“likely to influence a jury’s decision” means “that the
allegedly fabricated evidence [must], at the very least, be
material to a viable claim or defense in the criminal case.”
Cunningham v. City of New York, No. 17-CV-5124, 2018 WL 4168964,
at *5 (S.D.N.Y. Aug. 30, 2018).
Yusuf contends that he was deprived of his liberty
when he was strip-searched and then detained for over twentyfour hours, see SAC ¶¶ 54-57, based, at least in part, on the
statement in Ripa’s arrest report that Yusuf “did while acting
in concert with three others punch [Nieves] repeatedly in the
22 “A plaintiff need not have been tried or convicted to assert a fair
trial claim, as the constitutional violation occurs when the false
information is transmitted to prosecutors.” Nnodimele v. Derienzo, No. 13CV-3461, 2016 WL 337751, at *11 (E.D.N.Y. Jan. 27, 2016). Examples of
further deprivations include “the number of court appearances a plaintiff
made postarraignment, constraints such as bail requirements, a period of
incarceration or travel restrictions.” Hanson v. New York City, No. 15-CV1447, 2018 WL 1513632, at *17 (E.D.N.Y. Mar. 27, 2018). Here, Yusuf contends
that the deprivation of liberty consisted of being taken to Rikers Island,
where he was strip-searched and held for over twenty-four hours before he was
able to make bail. SAC ¶¶ 54-57.
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face and remove jewelry and USC from [Nieves].”
(citing Omniform Arrest Report, ECF No. 128-15).
Pl. Opp. 29-30
In his
deposition, Ripa conceded that this statement was erroneous
because Nieves reported that Yusuf was acting in concert with
others while somebody — not necessarily Yusuf — punched him in
the face.
Ripa Dep. 212:16-18.
Yusuf’s claim fails for several reasons.
First, that
this statement in the arrest report lacked evidentiary support
does not, on its own, amount to fabrication.
Yusuf must show
that Ripa knowingly fabricated and forwarded false evidence.
See Ashley v. City of New York, 992 F.3d 128, 143 (2d Cir. 2021)
(the “fabrication element” requires “that the defendant
knowingly make a false statement or omission”); Ricciuti v.
N.Y.C. Transit Auth., 124 F.3d 123, 130 (2d Cir. 1997) (“Like a
prosecutor’s knowing use of false evidence to obtain a tainted
conviction, a police officer’s fabrication and forwarding to
prosecutors of known false evidence works an unacceptable
corruption of the truth-seeking function of the trial
process.”); see also Fabrication, Black’s Law Dictionary (11th
ed. 2019) (“False information invented to deceive others.”).
Here, the other documents prepared by or with the help
of Ripa – none of which state that Yusuf punched Nieves –
suggest that the erroneous statement was due to negligent
phrasing, at most.
Cf. Earle v. City of New York, No. 16-CV44
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171, 2020 WL 1166706, at *5 (E.D.N.Y. Mar. 10, 2020) (genuine
dispute existed as to whether officer “truly ‘fabricated’ the
information in the criminal complaint,” or “whether the
statement was an unintentional error”).
The complaint report,
written by Ripa and entered several hours prior to the arrest
report, states that an individual named Unique Wooden struck
Nieves in the face.
13.
Omniform Complaint Report 2, ECF No. 136-
The DA Intake Bureau Crime Report, written by ADA Lasak
with the help of Ripa, also states that other individuals,
including Wooden, “repeatedly punch[ed]” Nieves, but not that
Yusuf punched him.
136-15.
DA Intake Bureau Crime Report 3, ECF No.
Finally, the criminal complaint contains Ripa’s sworn
testimony that other individuals punched Nieves.
Criminal Complaint 3, ECF No. 136-17.
Queens County
There is simply no
evidence that Ripa fabricated evidence when he wrote the
statement at issue.
Second, even if it were fabricated, Yusuf fails to
show that the statement would have been reasonably likely to
influence a jury’s decision.
As discussed, the statement did
not appear in the complaint or other documents relating to
Yusuf’s prosecution.
And there is no evidence that any
prosecutor relied on the statement, particularly because the
ADAs conducted their own interviews of Nieves and initiated
criminal proceedings against Yusuf based on that information.
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See Pl. 56.1 ¶¶ 76 (ADA Lasak interviewed Nieves before drafting
the DA Intake Bureau Crime Report), ¶¶ 92-93 (ADA DiGregorio
interviewed Nieves and then reviewed videos with Nieves three
days in a row).
Without evidence that the prosecutors relied on
the statement or that it otherwise affected the investigation,
the Court cannot conclude that the statement was material and
likely to influence a jury’s decision.
Finally, for similar reasons, Yusuf cannot meet the
causation element – that is, that he suffered a deprivation of
liberty as a result of this statement in the arrest report.
The
statement did not appear in the complaint or other documents
relating to Yusuf’s prosecution, and there is no evidence
suggesting that he was charged and detained as the result of the
arrest report – as opposed to those other documents.
See e.g.,
Walker v. City of New York, No. 11-CV-0314, 2014 WL 12652345, at
*9 (E.D.N.Y. Sept. 3, 2014), aff’d, 638 F. App’x 29 (2d Cir.
2016) (“Even if the prosecutor received the false reports and
Hennin never corrected the misstatements, there is a complete
absence of evidence that the prosecutor relied on the falsities
when charging Walker.
contrary.”).
Indeed, the evidence is to the
Summary judgment is granted as to Yusuf’s claim
that he was denied the right to a fair trial.
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Conclusion
For the foregoing reasons, Defendants’ motion for
summary judgment is DENIED as to Yusuf’s federal and state-law
claims for unreasonable search against Officer Cabrera, as well
as his related respondeat superior claim against the City for
unreasonable search.
Defendants’ motion is GRANTED as to
Plaintiffs’ remaining federal and state-law claims.
SO ORDERED.
/s/ Eric Komitee__________
ERIC KOMITEE
United States District Judge
Dated:
February 9, 2022
Brooklyn, New York
47
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