Greene et al v. The City of New York et al

Filing 58

MEMORANDUM & ORDER, For the foregoing reasons, Defendants' (Dkt. 46) motion for summary judgment is GRANTED IN PART and DENIED IN PART. The following claims survive summary judgment: the 42 U.S.C. § 1983 claims for the (1) unlawful search o f 377 MacDonough Street, (2) the false arrest of Blacksun Greene, and (3) the excessive force used against Anthony Greene; and the state-law claims for the (4) assault and battery of Blacksun and (5) assault and battery of Anthony. The state claims s urvive against both the Officer Defendants and the City under respondeat superior. The court DIRECTS the parties to contact the chambers of Magistrate Judge Cheryl L. Pollak to schedule a conference regarding the next steps in this case. So Ordered by Judge Nicholas G. Garaufis on 8/5/2019. (Lee, Tiffeny)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-X

ANTHONY GREENE, MONIFA GREENE,KWANE
GREENE,YASIN GREENE,MESSIAH GREENE,and
BLACKSUN GREENE,

MEMORANDUM & ORDER

15-CV-6436(NGG)
(CLP)

Plaintiffs,

-against-

THE CITY OF NEW YORK,SERGEANT EREK
POWERS,POLICE OFFICER MARK XYLAS,
POLICE OFFICER RYAN GALVIN,POLICE
OFFICER ROMANDO JULIEN,and POLICE OFFICER
VAUGHAN ETTIENNE,
Defendants.
-X

NICHOLAS G. GARAUFIS,United States District Judge.

Six Plaintiffs, who are immediate family members,^ bring this action pursuant to 42
U.S.C. § 1983 and various New York State laws against six Defendants: five New York City

Police Department('NYPD")officers^ (the "Officer Defendants") and the City of New York
(the "City"). (Am. Compl.) Plaintiffs' claims arise out of an encounter with the officers that

began with the execution of an arrest warrant for Yasin Greene and led to all five male Plaintiffs
being arrested, with crhninal charges being brought and then dismissed against four ofthem.
(Am. Compl.

1-51.) Plaintiffs bring Fourth Amendment claims for unlawful entry and search

oftheir home;false arrest and imprisonment; malicious prosecution; and excessive force; as well
as state tort claims for assault and battery; negligent retention, training, and hiring; intentional

* Plaintiffs include Anthony and Monifa Greene and their sons Kwane,Yasin, Messiah, and Blacksun.
(Am. Compl.(Dkt. 17) 7-14.)

^ They are: Sergeant Erik Powers, Officer Mark Xylas, Officer Ryan Galvin, Officer Romando Julien, and Officer
Vaughan Ettienne. (Am. Compl. at 1.) Plaintiffs' original complaint named the NYPD as a defendant(Compl.
(Dkt. 1)), but Plaintiffs omitted it fi-om their amended complaint(Am. Compl).
1

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infliction ofemotional distress; and libel and slander. (Am. Compl.

52-111.) Further,

Plaintiffs contend that the constitutional violations they suffered were the result of municipal

customs and procedures, such that the DOE is liable under Monell v. Department of Soc. Servs.,
436 U.S. 658(1978).

Defendants now move for summary judgment on each ofPlaintiffs' claims. (Mot. for
Summ. J.("Mot.")(Dkt. 46).) For the following reasons. Defendants' motion is GRANTED IN
PART and DENIED IN PART.

I.

BACKGROUND

A.

Factual Allegations

The court constructs the following statement offacts from the parties' Local Rule 56.1
statements and the admissible evidence they submitted. fSee Defs. R. 56.1 Statement("Defs.

56.1")(Dkt. 47); Pis. Response Pursuant to Local R. 56.1 ("Pis. 56.1")(Dkt. 51).) All evidence
is construed in the light most favorable to the non-moving party with "all reasonable inferences"
drawn in its favor. ING Bank N.V. v. MA^ Temara.IMP No. 9333929. 892 F.3d 511,518

(2d Cir. 2018)(intemal quotations and citation omitted).
On August 29,2014, Defendant OfScer Galvin arrested an individual who is not a party

to this litigation. (Defs. 56.1 If 4.)^ The individual(whom Defendants describe as a confidential
source)informed the Officer Defendants that illegal firearms were being sold out of377

MacDonough Street("377 MacDonough")in Brooklyn, New York.'* (Id If 5.) When the Officer
Defendants searched a law-enforcement database for 377 MacDonough,they found an

^ The court cites to paragraphs ofDefendants' Local Rule 56.1 statement only where Plaintiffs do not dispute the
assertions therein, unless odierwise noted.

E.D.N.Y. Civ. R. 56.1(c).

^ Plaintiffs dispute Defendants' claim that the source identified Anthony Greene by name. (Pis. 56.1 ^ 5.)
2

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outstanding New York City Criminal Court warrant for the arrest of a"Ya Greene."^ (Defs. 56.1
m 7-9,11.) Plaintiffs argue that Yasin Greene could not have been identified from the warrant
because it did not list his full name or his race; however,it did list his correct date of birth and

approximate height and weight. (Compare id ^ 10, with Pis. 56.1 H 10.)
The Officer Defendants arrived at 377 MacDonough to execute the arrest warrant and

follow up on the confidential tip. (Defs. 56.1 UK 14-15.) There are two doors to the house: an
outer metal door and an inner wooden door. The outer door opens to a hallway, while the inner

door opens directly into the home. (Dep. of Anthony Greene("A. Greene Dep.")(Dkt. 49-6) at
21:22-22:4.) The outer door was unlocked on the day ofthe incident, but it is unclear whether
the inner door was locked. (See id. at 23:24-24:20.) All six Plaintiffs were inside the house

when one ofthe officers knocked. (Defs. 56.1 KK 18-19.) Anthony Greene, who was closest to

the door, asked:"Who is it?" (Id K 18.) According to Plaintiffs, the officers then forcibly

entered the house, breaking the lock mechanism on the inner door in the process.^ (A. Greene
Dep. at 23:11-24:8.)

Once the officers were inside the inner door,they grabbed Anthony Greene and asked
which Plaintiff was"Ya" Greene. (Defs. 56.1 K 27; Pis. 56.1 K 27.) Yasin Greene identified

himselfto the officers. (Defs. 56.1 K 28.) The officers placed him in handcuffs and displayed
their warrant, at which point Messiah Greene began filming the incident on a cell phone.

(Id KK 26,29-30; Pis. 56.1 KK 26, 29; see generallv Video (Dkt. 57).) Monifa Greene touched
Yasin Greene's wrist for several seconds and said to the Officer Defendants,"You're not taking

^ The warrant stemmed from an unrelated incident and alleged disorderly conduct, a violation. (See Warrant of
Arrest for Ya Greene(Dkt. 49-3).) See N.Y. Penal Law § 240.20.

^ Plaintiff Anthony Greene alleged the door was broken in his deposition testimony. (A. Greene Dep. 23:11-21.)
Plaintiffs also submitted photos ofthe doorframe, but they were taken more than three years after the incident. (See
Photograph of Door Exterior(Dkt. 53-23); Photograph ofDoor Interior(Dkt. 53-24).)

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my son." (Video at 00:28-00:30; Pis, 56.1

37-39.) Next,the officers escorted Yasin Greene

outside and into an unmarked police car down the block. (Defs. 56.1

31-32.) Other than

being handcuffed and escorted, Yasin Greene had no physical contact with the officers and

sustained no injuries. (Id

33-35.) The other five Plaintiffs stepped into the yard^ outside of

the house as the officers escorted Yasin Greene. (Pis. 56.1

36.)

According to Plaintiffs, the Officer Defendants then crowded Monifa Greene to prevent

her from further touching Yasin Greene, and then at least two ofthem shoved her while she was
standing at least 12 feet away from Yasin Greene. (Defs. 56.1 HI 41-43; Pis. 56.1

41-43.) She

claims no physical injuries. (Defs. 56.1 K 44.)

While Officers Xylas and Galvin led Yasin Greene to the vehicle. Officers Julien and
Ettienne remained in the yard. (Pis. 56.1 KK 47,49.) An officer instructed Plaintiffs not to leave

the yard. (Defs. 56.1 K 47.) Messiah Greene repeatedly insisted that the officers get out of his
yard. (Video at 1:03-l:19.) Officer Julien refused to do so, saying,"Put me out." (Id; Dep. of
Officer Julien (Dkt. 49-13) at 52.) Once Yasin was inside the vehicle, Kwane and Messiah
Greene left the yard and approached the vehicle. (Defs. 56.1 f 52.) Officer Xylas stepped in
front of Kwane Greene and told him to "cross the fucking street." (Id UK 51, 54,56; Pis. 56.1

K 54.) Kwane Greene did not cross the street, stating that he would not do so because he w^
"going to the store," and then approached within a couple offeet ofthe vehicle. (Defs. 56.1

KK 57,61.) When Kwane Greene attempted to pass by Officer Xylas, Officer Xylas shoved him
against a car and placed him under arrest with the assistance of Officer Julien by pulling Kwane

' yard is a small space outside ofPlaintiffs' three-family house, a few feet wide, separated from the sidewalk by
The
a metal gate. (See Video at 00:45.)

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Greene's arms behind his back. (Id

63-68.) Kwane Greene suffered soreness in his right arm

that lasted for a day, but did not seek medical treatment. (Id fl 69-70.)
Messiah Greene observed Kwane Greene and Officer Xylas arguing. (Id ^ 76.) Messiah
Greene ran toward the two ofthem and continued recording the incident. (Id ^ 84; Pis. 56.1

^ 84; Video at 1:20-l:32.) In doing so, Messiah Greene approached within three-to-five feet of
Kwane Greene and inserted himself between Officer Xylas and Kwane Greene. (Defs. 56.1

1[ 85.) Sergeant Powers claims to have believed that Messiah Greene was attempting to interfere
with Kwane Greene's incipient arrest. (Id K 88.) Sergeant Powers then grabbed Messiah Greene

firom behind, placed him in a chokehold, kicked his legs out, and slammed him to the ground.
(Id H 87; Pis. 56.1 H 87.) Messiah dropped the cell phone with which he had been recording.
(Video at 1:35-l:40.) He suffered back pain, but did not seek medical treatment. (Defs. 56.1
111190-91.)

As Sergeant Powers handcuffed one of Messiah Greene's wrists, Anthony Greene

approached them and took hold of Messiah Greene's shoulders before the sergeant could

handcuffthe other wrist.^ (Id Hf 93-95.) Anthony Greene asked why Messiah Greene was
being arrested. (Id If 98.) Sergeant Powers claims that he believed that Anthony Greene was

attempting to interfere with Messiah Greene's arrest. (Id If 100.) While the Officer Defendants
assert that Anthony Greene's conduct made it difficult for Sergeant Powers to arrest Messiah
Greene, Plaintiffs counter that Messiah Greene weighed only 120 poxmds and the Officer

Defendants (except for Sergeant Powers) weighed around 250 pounds, and Plaintiffs add that the
arrest occurred without incident. fComnare id UK 99,101, with Pis. 56.1 Hlf 99-100.) Per

® Plaintiffs purport to dispute this version of events, but do not provide any evidence that calls this account into
question, and Messiah Greene's deposition testimony corroborates that one of his wrists was not handcuffed when
Anthony Greene took hold of him. (Dep. of Messiah Greene(Dkt. 49-8) at 47:7-21.)

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Plaintiffs, Anthony Greene backed away from Messiah Greene voluntarily when asked to do.

(Pis. 56.1 ^ 101.) The Officer Defendants then finished handcuffing Messiah Greene. (Defs.
56.1 H 104.)

What happened next is heavily disputed. The Officer Defendants claim that when

Sergeant Powers and Officer Xylas attempted to arrest Anthony Greene, he failed to comply with
their instructions and, weighing 300 pounds, was too large to subdue. (Id,

105-10.)

According to the Officer Defendants, when they were unable to handcuff Anthony Greene,

Sergeant Powers gave Anthony multiple verbal warnings and then tased him. Qd ^^111-12,

117.) After the first charge. Defendants say Anthony Greene fell to the ground with two officers
holding his arms. (Id

118-20.) But the officers were still unable to subdue him. (Id UK 121-

22.) In order to place Anthony Greene in handcuffs. Sergeant Powers tased him two more times,
and the officers were finally able to pull his hands behind his back. (Id

123-24.) Apart from

three cycles ofthe taser, the officers say they used no force against Anthony Greene and called
an ambulance for him immediately. (Id

125-26.)

Plaintiffs tell the story differently. According to them, Anthony Greene was talking to
another officer with his arms outstretched and palms facing out in a "surrender" gesture when
Defendant Powers tased him without warning. (Pis. 56.1

105, 112.) Plaintiffs note that

Anthony Greene had been diagnosed with a number of medical conditions, including heart
disease and diabetes, before the date ofthe incident. (Id ^ 107.) Further, Plaintiffs contend that
the Officer Defendants threw him to the ground after he was tased (Pis. 56.1 ^ 118), and no
officer held Anthony Greene as he fell to the ground(id K i 19). While Anthony Greene

convulsed on the ground. Plaintiffs say Sergeant Powers deployed the taser two more times
before attempting to handcuff him. (Id f 121.) Next,Plaintiffs allege, Anthony Greene was

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placed in a police car to await the ambulance and was pressed against the seat while the taser
barbs were still embedded in his back,thereby bending the barbs aad requiring medical

professionals to dig them out later. (Id. H 125.) When he foimd himselfunable to move,either
because ofthe repeated shocks or his medical condition, an officer slammed the car door on his
legs, causing bruising. (IdJ In addition to the aforementioned injuries. Plaintiffs claim Anthony
Greene sustained a diabetic ulcer on his foot as a result of being shackled to a hospital bed for
nine days. (Id.)

While the Officer Defendants were handcuffing Anthony Greene, Blacksun Greene

approached Sergeant Powers to ask why this was happening. (Defs. 56.1

128-29.) When

Blacksun Greene, who was fifteen at the time, came within arms' reach of Sergeant Powers,the

sergeant struck him in the head with his hand, knocking him to the ground, and then handcuffed
and arrested him. (Id ft 130-31; Pis. 56.1 HI 129, 133.) Plaintiffs insist that Blacksun Greene
was only trying to bring Anthony Greene his heart medication, while Defendants aver that
Blacksun Greene had been yelling at the officers. fComnare Defs. 56.1 If 129, with Pis. 56.1

If 130.) Afterward, Blacksun Greene did not seek medical treatment for any injury. (Defs. 56.1
in 132, 134.)

After Yasin, Kwane,Messiah, Anthony, and Blacksun Greene were taken away. Officer

Ettienne, Officer Xylas, and Sergeant Powers searched 377 MacDonough Street. (Id 1141.)
Defendants contend that Monifa Greene signed an unconditional Consent to Search Form

(Consent to Search Form (Dkt. 49-14)) after being told that the officers had received a tip about
illegal fureanns at 377 MacDonough. (Defs. 56.1 H 135-40.) Plaintiffs counter that as soon as
Anthony Greene was tased, the officers conducted an initial search ofthe house without

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permission while they kept Monifa Greene outside.^ (Pis. 56.1 H 135.) Per Plaintiffs, only after
the initial search yielded a sjoringe (for Anthony Greene's insulin) and a marijuana cigarette did

the officers present Monifa Greene with the Consent to Search Form, and they never mentioned a
tip about an illegal firearm. (Id.) Regardless, it is undisputed that the officers obtained the
signed Consent to Search Form from Monifa Greene. (Defs. 56.1

139-42.)

The officers then searched Anthony and Monifa Greene's bedroom. (Defs. 56.1 ^ 142.)
Plaintiffs claim that the officers entered the bedroom while Monifa Greene was getting dressed

and refused to leave while she was changing. (Pis. 56.1 ^ 142.) There was a safe in the
bedroom. (See Defs. 56.1 ^ 144.) The officers called Anthony Greene to ask where the key to

the safe was; he offered suggestions as to places where it might be, but the officers could not find
it. (Pis. 56.11[1[ 143.) The officers then cracked the safe using a hammer they found in the house

and discovered an unlicensed firearm and 115 rounds ofammunition.^® (Defs. 56.1
146-150; Pis. 56.1

142-44,

143.) Anthony Greene later admitted that he received the firearm from his

father-in-law, did not have a license for it, and had stored it and the ammunition in that safe. (Defs.
1111155-58.)

After these August 29,2014 arrests, charges were brought against Kwane, Anthony,
Yasin, and Messiah Greene. (Defs. 56.1 UK 159-166.) Defendant Xylas issued Kwane Greene a

summons to appear in New York County Criminal Court for disorderly conduct, which alleged
that he had been "yelling and screaming" and trying to push past Officer Xylas while Yasin
Greene was being arrested. (Defs. 56.1 HH 160,162; Criniinal Complaint(Dkt. 49-17)at 1-2.)

^ It should be noted that Monifa's father and uncle were upstairs in the house during the incident. (Dep. of Monifa
Greene(Dkt. 49-10) at 33.)

Anthony Greene had received die firearm from his father-in-law. (Defs. 56.1 H 155.)
8

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On his court date, Kwane mistakenly went to the wrong court and had still not answered the

summons as ofthe filing ofthe instant motion. (Defs. 56.1

162-64.)'

On August 30, 2014, Anthony Greene was charged with four offenses relating to his

conduct during the incident and his possession ofthe unlicensed firearm. Qd K 165.) On March
27,2015,these charges were dismissed pursuant to speedy-trial laws. (Id ^ 166.)
Yasin Greene was also initially charged with criminal possession of a weapon in the

second degree for his father's firearm, obstruction of governmental administration, and resisting
arrest, but the Kings County District Attorney declined to prosecute. (Kings County Declined
Prosecution Form (Dkt. 53-15).)

Blacksun Greene, who was ajuvenile at the time, was held at the precinct and released
several hours later without charge. (Pis. 56.1
B.

131-32.)

Procedural History

Plaintiffs commenced this action on November 10,2015,initially bringing nine counts on

behalfof all Plaintiffs and including the NYPD as a Defendant. (Compl.) Plaintiffs later
amended their complaint,removing the NYPD as a defendant and revising several oftheir
claims. (Am. Compl.) On April 19, 2018,in anticipation ofDefendants' summary-judgment
motion. Plaintiffs withdrew a false-arrest claim as to Yasin Greene and malicious-prosecution
and libel-and-slander claims as to all Plaintiffs except Anthony Greene and Kwane Greene. (See

PI. Apr. 19, 2018 Letter(Dkt. 36).) At that point in the litigation, Plaintiffs maintained five sets
offederal and six sets ofstate claims. (Am.Compl.

52-111.)

On July 16, 2018,Defendants filled the instant motion for summary judgment on all
claims. (Mot.) In their opposition brief. Plaintiffs appear to have abandoned three oftheir
claims:(1)federal and state malicious prosecution ofKwane Greene,(2)excessive force as to
Yasin Greene, and (3)libel and slander. (Pis. Mem.in Opp'nto Mot.for Summ. J.("Opp'n")

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(Dkt. 52);
^Reply in Supp. of Mot. for Snmm. J.("Reply")(Dkt. 54)at 7, 8,14(pointing out
that Plaintiffs failed to defend these three claims).) A "partial opposition" to summaryjudgment

"may imply an abandonment ofsome claims or defenses." Jackson v. Federal Exp.. 766 F.3d
189,196(2d Cir. 2014). Absent evidence to the contrary, the court treats these claims as
abandoned.

id ("Generally ... a partial response reflects a decision by a party's attorney to

pursue some claims or defenses and to abandon others."). That leaves Plaintiffs with five sets of
federal claims and five sets of state claims.

Plaintiffs' federal claims, pursuant to 42 U.S.C. § 1983, are as follows: against the
Officer Defendants,(1)unlawful entry and search of377 MacDonough;(2)false arrest of
Kwane, Messiah, Anthony, and Blacksun Greene, and false imprisonment of Monifa Greene;

(3)malicious prosecution ofAnthony Greene; and (4)excessive force as to aU Plaintiffs but Yasin
Greene. Against the City, Plaintiffs bring(5)aMonell claim for § 1983 liability. (See Am. Compl.
KH 51-73; Opp'n at 11-31.)
Plaintiffs' New York state-law claims are as follows: Against the Officer Defendants,

Plaintiffs allege (1)assault and battery of all Plaintiffs,(2) malicious prosecution ofAnthony
Greene, and(3)intentional infliction ofemotional distress as to all Plaintiffs. (See Am.Compl.

84-104; Opp'n at 31-35.) Against the City, Plaintiffs(4)allege negligent retention, training,
and hiring ofthe officers and(5)seek to hold the City liable for the Officer Defendants' alleged
torts under a theory ofrespondeat superior. (See Am.Compl.
II.

74-83, 105-111.)

LEGAL STANDARD

The court will grant summary judgment if Defendants can show "that there is no genuine

dispute as to any material fact" and that they are "entitled to judgment as a matter oflaw." Fed.
R. Civ. P. 56(a). A "genuine" dispute exists "ifthe evidence is such that a reasonable jury could
return a verdict for the nonmoving party." Roberts v. Azize. 767 F. App'x 196, 197(2d Cir.
10

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2019)(citing Anderson v. Liberty Lobby. Inc., 477 U.S. 242,248(1986)). But"a party's

affidavit may not create an issue offact by 'contradicting the affiant's previous deposition
testimony.'" Maxwell v. Citv ofNew York. 380 F.3d 106, 109(2d Cir. 2014) Cquoting Haves v.
New York Citv Dep't of Corr.. 84 F.3d 614,619(2d Cir. 1996).

In evaluating Defendants' motion,the court views the evidence in the light most

favorable to the Plaintiffs, drawing all inferences and resolving all ambiguities in their favor.
Amnestv Am.,361 F.3d at 122. However,Plaintiffs "may not rely on conclusory allegations or

imsubstantiated speculation" in their opposition. Nickev v. Carboine.682 F. App'x 78,79(2d
Cir. 2017)(summary order)(quoting Scotto v. Almenas. 143 F.3d 105,114(2d Cir. 1998)).
Defendants need not offer evidence to show there is no genuine dispute of material fact

on all ofPlaintiffs' claims. Instead, where Plaintiffs bear the burden of proof at trial. Defendants

may prevail on summaryjudgment by showing that the opposing party "fails to make a showing
sufficient to establish the existence of an element essential to that party's case." Celotex Corp. v.
Catrett. 477 U.S. 317, 322-23(1986).
m.

DISCUSSION

A.

42 U.S.C.§ 1983 Claims
1.

Unlawful Entry and Search

a.

Unlawful entry

Plaintiffs argue that the Officer Defendants' entry into 377 MacDonough violated the
Fourth Amendment. The court grants Defendants summary judgment on this claim for the
following reasons.
i.

Legal Standard

"Generally, the police do not need a search warrant to enter a suspect's home when they
have an arrest warrant for the suspect." United States v. Lauter. 57 F.3d 212,214(2d Cir. 1995)
11

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(citations omitted). "As the Supreme Court has observed, once an arrest -warrant for a particular
suspect has issued,'it is constitutionally reasonable to require him to open his doors to the
officers ofthe law.'" Id.(quoting Pa-yton v. New York. 445 U.S. 573,602-03). "Agents may

enter a suspect's residence, or what they have reason to believe is his residence, in order to
effectuate an arrest warrant where a reasonable belief exists that the suspect is present." Id.

(citations omitted).

Assuming officers lawfully enter a dwelling,their actions are constitutionally limited.
While it is true that "officers may occasionally have to 'damage property in order to perform

their duty'... unnecessarily destructive behavior may rise to the level of violating the Fourth
Amendment." Fieueroa v. KrolL No. 98-CV-0837(GBD),2004 WL 2924492, at *5(S.D.N.Y.

Dec. 16, 2004)fquoting Dalia v. United States. 441 U.S. 238,258(1979)(citations omitted)).
However,force that is necessary to effect a lawful arrest, and which damages property, does not
violate the Fourth Amendment.

Jackson ex rel. Jackson v. Suffolk Countv. 87 F. Supp. 3d

386,401 (E.D.N.Y. 2015)("[P]laintiff must establish...that more than ordinary disanray and
damage incident to the execution ofthe warrant or search occurred."(citations and quotation
marks omitted)).
ii.

Application

As Plaintiffs concede(Opp'n at 12),it was objectively reasonable for the Officer
Defendants to believe, based on their database search using a tip fiom a confidential informant,

that"Ya Greene" lived at 377 MacDonough. (See Defs. 56.1

5,7-9,11.) Thus,the Officer

Defendants did not violate the Fourth Amendment by entering the dwelling. S^ Lauter. 57 F.3d
at 214.

12

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Additionally, contrary to Plaintiffs' argument(Opp'n at 11-15), the manner in which the
Officer Defendants entered the house did not violate the Fourth Amendment. Plaintiffs' argument

is predicated on the damage that the Officer Defendants did to their inner door's lock
mechanism. (See Opp'n at 11-15.) This damage does not meet the threshold of"unnecessarily
destructive behavior" that is necessary to support a claim ofunlawful entry. (See Photograph of
Door Exterior(Dkt. 53-23)(showing mdiiimal damage to the lock mechanism ofPlaintiffs' iimer
door); Photograph of Door Interior (Dkt. 53-24)(same).) S^ Figueroa. 2004 WL 2924492, at
*5; see also Jackson ex rel. Jackson. 87 F. Supp. 3d at 401 ("plaintiff must establish...that

more than ordinary disarray and damage incident to the execution ofthe warrant" occurred).
Thus, Defendants are entitled to summaryjudgment.
Plaintiffs also take issue with the duration for which the officers remained in the yard,

claiming that this constituted an unlawful entry ofthe curtilage ofthe house. (Opp'n at 13-14.)
This argument fails for two reasons that are made clear by the video Messiah Greene recorded.
(See Video.) First, the yard constitutes "[t]he route which any visitor to [377 MacDonough]
would use" to enter and exit Plaintiffs' residence. (See Video at 00:44-00:50.) See United States

V. Reves. 283 F.3d 446,465(2d Cir. 2002). The Officer Defendants were in the yard for a
"legitimate reason": to complete their arrest of Yasin Greene. See Reves. 283 F.3d at 465.
Therefore,the yard "is not private in the Fourth Amendment sense." Id Second,the officers
remained in the yard for only a few seconds—^the amount oftime necessary to lead Yasin Greene

to the vehicle. (See Video at 00:42-00:48 (during which Yasin Greene was led through the yard
and out the front gate).) Two ofthe Officer Defendants blocked some ofthe Plaintiffs from
leaving the yard as Yasin was led away(Reply at 2), but Plaintiffs cite no authority for the

13

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proposition that briefly blocking people from exiting their property to prevent them from
interfering with a lawful arrest constitutes an unlawful entry.

In sum,the court agrees with Defendants that the manner in which the officers entered
the home,as well as the duration oftheir stay, were reasonable. No reasonable jury could find
that Defendants entered unlawfully by executing the arrest warrant.

b.

Unlawful search of377 MacDonough

Plaintiffs also contend that the Officer Defendants' search of377 MacDonough, which

involved them breaking into a safe and finding the unlicensed firearm therein, violated the
Fourth Amendment. As set forth below,the court denies Defendants summary judgment on this

claim because there is a material dispute as to whether the officers obtained consent to search the
house only after an initial, nonconsensual search.
i.

Legal Standard

"The Fourth Amendment generally reqxures police to secure a warrant before conducting
a search." United States v. Younis. No. lO-CR-813(JFK),2011 WL 1485134, at *3(S.D.N.Y.

2011)(quoting Maryland v. Dvsom 527 U.S. 465,466(1999)(per curiam)). "However,'one of
the specifically established exceptions to the requirements of both a warrant and probable cause
is a search that is conducted pursuant to consent.'" Id.(quoting Schneckloth v. Bustamonte,412
U.S. 218,219(1973)).

The question whether a consent to a search was in fact voluntary or
was the product of duress or coercion, express or implied, is a
question of fact to be determined from the totality of all the
circumstances. In this circuit, the test is an objective one—^whether
the agents had a reasonable basis for believing that there was valid
consent to the search. In applying this test, it is appropriate to
consider the particularities of the situation that is presented in any
given case and the possibly vulnerable subjective state ofthe person
who consents. Other relevant factors are whether the defendant was

in custody and in handcuffs, whether there was a show of force,
14

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whether the agents told the defendant that a search warrant would
be obtained, whether the defendant had knowledge of the right to
refuse consent, and whether the defendant previously had refused to
consent.

Id. at *4(citation omitted).

ii.

Application

Here,it is undisputed that Monifa Greene consented to the portion ofthe officers' search
that yielded the unhcensed firearm and ammunition. (Defs. 56.1

139-42.) The validity of her

signature on the Consent to Search Form has not been challenged. What is at issue is

(1) whether Monifa Greene's consent was truly voluntary when she signed the form, and

(2) whether the officers conducted a nonconsensual sweep of the house before asking Monifa
Greene to sign the form.
As to the first issue of Monifa Greene's consent. Plaintiffs have adduced no colorable

evidence that Monifa Greene was under duress when she signed the form. None ofthe factors
articulated in Younis tends toward duress here: the officers made no show of physical force in

asking Monifa Greene to sign the form, and it is undisputed that she was aware ofthe nature of
the form(L^,that if she did not sign the form she would be refusing to consent to a search). The
subjective fears Plaintiffs identify, including Monifa Greene's concerns that the food she had
been cooking was burning and that she was less than prepared to have left the house in the first

place (see, e.g., Opp'n at 15-16), do not speak to whether the officers "had a reasonable basis for
believing that there was valid consent," Younis. 10 F. Supp. 2d at 384. Notably, Plaintiffs have
not claimed that Monifa Greene communicated any ofthese fears to the officers when they asked

her to sign the form. (See Pis. 56.1

135-40.) Thus,the Officer Defendants had a reasonable

basis for believing her consent was volimtary.

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Less easily resolved is Plaintiffs' claim that several ofthe officers conducted an initial,
nonconsensual sweep of377 MacDonough before obtaining Monifa Greene's consent. By
Plaintiffs' accoxmt,the officers swept through the entire house, recovering a syringe (for

Anthony Greene's insulin) and a marijuana cigarette, and only then offered Monifa Greene the
form to sign. (Pis. 56.1 K 135.) Defendants' only response is that "Plaintiffs cannot survive
summary judgment solely on the basis of Monifa Greene's self-serving deposition testimony that
the officers searched 377 MacDonough Street prior to her signing the Consent to Search Form."

(See Reply at 3.) But Defendants have it backwards. At the summaryjudgment stage, it is their
burden to produce evidence that there is no genuine dispute of material fact, or to point to an
absence ofevidence in the record; they have done neither. In contrast, Monifa Greene offered
consistent testimony both after the incident and accompanying Plaintiffs' opposition to summary

judgment. (See Dep. of Monifa Greene(Dkt. 49-10)at 124-25; Decl. of Monifa Greene(Dkt.
53-2)

28-30.) Thus,there is an issue offact as to whether the officers obtained the signed

Consent to Search Form before or after sweeping the house.

Neither side has addressed the possibility that any initial search ofthe house would be
incidental to the arrests of Yasin, Kwane, Messiah, Anthony, and Blacksun Greene, and therefore

privileged. In any case, such a search "may only include the arrestee's person and the area
within his immediate control... mean[ing]the area from within which he might gain possession
of a weapon or destructible evidence." Arizona v. Gant. 556 U.S. 332,339(2009)(quotation
marks omitted). Because the house does not fall into either ofthose categories, it was not subject
to a search incident to arrest.

Plaintiffs have demonstrated that there is a genuine issue of material fact surrounding a

possible initial search of the home before Monifa Greene signed the Consent to Search Form. If

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this is the case, then the search was both warrantless and nonconsensual. Therefore, Plaintiffs'

claim of unlawful search survives summary judgment.
2.

False Arrest/Imprisonment

All Plaintiffs apart from Yasin Greene bring claims offalse arrest or false imprisonment.
The court grants summary judgment for Defendants on all but one ofthese claims. There was at

least arguable probable cause to arrest Kwane, Messiah, and Anthony Greene for obstmction of
governmental administration, and Monifa Greene was neither arrested nor imprisoned.
However,Defendants nowhere allege that Blacksun Greene engaged in physical interference,

and some physical action is necessary to satisfy the elements ofthe crime for which he was
arrested.

a.

False arrest

"A § 1983 claim for false arrest...is substantially the same as a claim for false arrest
under New York law." Wevant v. Okst 101 F.3d 845, 852(2d Cir. 1996). The state standard

for false arrest requires "that:'(1)the defendants intended to confine the plaintiff,(2)the plaintiff
was conscious ofthe confinement,(3)the plaintiff did not consent to the confinement, and (4)

the confinement was not otherwise privileged.'" Sethi v. Nassau County, No. 1 l-CV-6380

(SJF),2014 WL 2526620, at *3(E.D.N.Y. June 3, 2014)(alterations adopted)(quoting Jocks v.
Tavemier.316 F.3d 128, 134-35(2d Cir. 2003)). Such "privileged" confinement arises if

probable cause to arrest exists, meaning the arresting officer had sufficient knowledge or
information "to warrant a person ofreasonable caution in the belief that the person to be arrested
ha[d] committed a crime." See Stansburv v. Wertman.721 F.3d 84,89(2d Cir. 2013). In that
case, a false arrest claim cannot succeed. See Jenkins v. Citv ofNew York.478 F.3d 76,84(2d

Cir. 2007)("The existence of probable cause to arrest... is a complete defense to an action for
false arrest.")(quotation marks omitted).
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Further, an arresting officer may claim qualified immunity from suit on a claim of

damages for false arrest even absent probable cause,"if he can establish that there was 'arguable

probable cause' to arrest." Escalera v. Lunn. 361 F.Sd 737, 743(2d Cir. 2004). Arguable
probable cause, and therefore the officer's qualified immunity,"exists 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." Id.
(quotation marks omitted).

Defendants respond to Plaintiffs' claims offalse arrest by asserting that there was

probable cause to arrest Kwane, Messiah, Anthony,and Blacksun Greene for obstruction of

governmental administration in the second degree("OGA"),N.Y. Penal Law § 195.05. This
supposed probable cause derives fi*om each Plaintiffs interference with a previous arrest: Kwane
Greene with Yasin Greene's arrest, Messiah Greene with Kwane Greene's, Anthony Greene with

Messiah Greene's, and Blacksun Greene with Anthony Greene's. Defendants also claim

qualified immunity for the Officer Defendants under a theory ofarguable probable cause to
arrest for OGA. fSee Mem.at 11-14.) In response. Plaintiffs generally dispute that there was

sufficient probable cause to arrest Anthony Greene and his sons, on the basis that no single
Plaintiffs actions during the incident constituted interference with any other Plaintiffs arrest.
(See Opp'n at 17-19.)

To satisfy the elements of OGA,a Class A misdemeanor,"an individual must prevent or

attempt to prevent a public official firom performing a lawfiil official function by interfering with
that function." Kass v. Citv ofNew York.864 F.3d 200,209(2d Cir. 2017), cert, denied, 138

S. Ct. 487(2017);^N.Y. Penal Law § 195.05. Such interference "must be... physical,"

beyond mere yelling. Basinski v. Citv ofNew York. 706 F. App'x 693,697(2d Cir. 2017).

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However,physical interference can include "inappropriate and disruptive conduct at the scene of
the performance of an official function even ifthere is no physical force involved." Kass, 864
F.3d at 209-10(citation and quotation marks omitted). This requirement "is satisfied when an
individual intmdes himself into, or gets in the way of, an ongoing police activity," such as a
lawful arrest. Id at 210(alterations adopted)(citations omitted).
i.

Kwane Greene

There was arguable probable cause to arrest Kwane Greene for OGA. If Kwane Greene

physically obstmcted Yasin Greene's lawful arrest,^^ there was probable cause to arrest him for
OGA,and Plaintiffs' claim fails as a matter oflaw. It is undisputed that Kwane Greene was

following Yasin Greene as the latter was being arrested; that Kwane Greene did not cross the

street, despite Officer Xylas's request that he do so; and that he falsely told Officer Xylas that the
reason he did not cross the street was that"he was going to the store." (Defs. 56.1

51, 54, 56.)

The video ofthe incident makes clear that, as OJfiicer Xylas moves away from Kwane Greene,

Kwane Greene tried to pass Officer Xylas and approach the car where Yasin Greene was being
held, even after Officer Xylas made clear that he should not do so. (Video at 1:32; s^ Reply at
4-5; Video Screenshot(Dkt. 55-3).) In sum,there was arguable probable cause that Kwane

Greene was "intrud[ing] himselfinto, or get[ting] in the way of, an ongoing police activity."
Kass,864 F.3d at 210. As it has been interpreted by the Second Circuit,the OGA statute gives

police officers extremely broad discretion to make arrests in these circumstances. See Kass. 864
F.3d at 209-10(stating that OGA extends to "inappropriate and dismptive conduct... even if

"Plaintiffs have abandoned their claim offalse arrest as to Yasin Greene, and have therefore conceded that his
arrest was lawful. (See Opp'n.)
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there is no physical force involved," and includes situations where an individual intrudes himself
into, or gets in the way of, an ongoing police activity"(quotation marks and alterations omitted).)
Plaintiffs' arguments are unavailing. They address only the allegations against Kwane
Greene for disorderly conduct; however,the probable cause that Defendants point to concerns

Kwane Greene's arrest for OGA. (See Opp'n at 17.) Probable cause to arrest an individual
defeats a false arrest claim regardless ofthe offense to which the probable cause relates. Jaeglv
V. Couch.439 F.3d 149, 154(2d Cir. 2006). Further, contrary to Plaintiff's contention(s^ id),

physical contact is not required in order to "interfere" within the meaning ofNew York OGA.
See Kass,864 F.3d at 209-10. Thus, Kwane Greene's false arrest claim fails.
ii.

Messiah Greene

Additionally,there was arguable probable cause to arrest Messiah Greene for OGA.
Plaintiffs concede that Messiah Greene approached within feet ofKwane Greene while the
officers confronted Kwane Greene, and that Messiah Greene passed by Officer Julien to do so.

(Defs. 56.1 nil 52,85; Pis. 56.1

52, 85.) The video makes clear that Messiah Greene ignored

orders not to leave the yard and inserted himself directly between Officer Xylas and Kwane
Greene. (Video at 1:20-l:38.) Contrary to Plaintiffs contention(Opp'n at 18), it does not
matter whether the Officer Defendants had actually begim the process of arresting Kwane

Greene or were merely talking to him, because OGA does not require a lawftil arrest to be taking

place; it only requires that a public official be "performing a lawful official function" with which
the defendant interferes. See Kass, 864 F.3d at 209-10. Police officers have very broad

discretion to make arrests under the OGA statute.

id.(stating that OGA extends to

"inappropriate and disruptive conduct... even if there is no physical force involved," and
includes situations where an individual intrudes himselfinto, or gets in the way of, an ongoing

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police activity"(citations and quotation marks omitted)). While the court has concerns about the
way in which the Officer Defendants exercised their discretion in this instance, it is clear that the
arrest of Messiah Greene was arguably within that discretion. The officers are therefore entitled to
qualified immunity on Messiah Greene's claim offalse arrest.
iii.

Anthony Greene

There was also arguable probable cause to arrest Anthony Greene for OGA. The
evidence indicates that when Anthony Greene grabbed Messiah Greene's shoulders while only
one of Messiah's arms was handcuffed, he made it more difficult for Sergeant Powers to arrest

Messiah. (Mem. at 13.) This was arguably an attempt to interfere with an arrest, which is

sufficient to satisfy the elements of OGA. See N.Y.Penal Law § 195.05. To the extent that
Plaintiffs argue that the Officer Defendants used excessive force in arresting Anthony(Opp'n at
19), that does not bear on the false-arrest analysis.
iv.

Blacksun Greene

There was not arguable probable cause to arrest Blacksun Greene for OGA. Defendants

rely primarily on the fact that Blacksun Greene came "within arm's reach of Sergeant Powers"
while the latter was arresting Anthony Greene. tSee Reply at 6.) But Defendants have not alleged

that Blacksun Greene placed himself between Sergeant Powers and Anthony Greene, or that he
had physical contact of any kind with either individual. Physical contact is not a necessary
element of OGA,but there "must be a physical interference." Basinski. 706 F. App'x at 697

(quotation marks omitted). Indeed, courts in this circuit have denied summary-judgment motions
arising fi om OGA arrests where there was a dispute as to whether a plaintiff"placed himself
:
physically between the police and the other person." Fana v. Citv of New York. No. 15-CV8114(PGG),2018 WL 1581680, at *9-10(S.D.N.Y. Mar. 27,2018)(alterations adopted)

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(quotation marks omittedk see Charles v. City ofNew York. No. 12-CV-6180,2017 WL
530460, at *1 (E.D.N.Y. Feb. 8, 2017)(denying summary judgment where the plaintiff

videotaped an arrest while asking questions); Dowling v. City ofNew York. No. 1 l-CV-4954

(NGG),2013 WL 5502867, at *1 (E.D.N.Y. Sept. 30,2013)(denying summary judgment where
the plaintiff asked questions "ten feet away from the search").

Similarly, Blacksun Greene has been accused of nothing more than approaching the
arresting officer and screaming at him. Defendants state plainly that Blacksun Greene
"interfere[d]"(Defs. 56.1 at 20), but unlike with Anthony Greene,they do not allege that
Blacksun Greene in any way "prevented the officers"from arresting anyone or even "caused it to
take a while" for the officers to effect an arrest(id

99,101). Therefore, there was not even

arguable probable cause to arrest Blacksun Greene for OGA. Blacksun Greene may have voiced
his opinion about Anthony Greene's arrest, but he did not interfere with it. Defendants are
therefore not entitled to summary judgment on Blacksun Greene's false-arrest claim.
b.

False imprisonment

Monifa Greene brings a claim offalse imprisonment. CSee Opp'n at 19-21.) "False

arrest is a species offalse imprisonment, so both claims are subject to the same legal analysis."
Harsroves v. Citv ofNew York.411 F. App'x 378,382 n.3 (2d Cir. 2011)(citation and

quotation marks omitted). Where there has been no formal arrest, a plaintiff must show that a
police officer,"by means of physical force or show ofauthority,terminate[d] or restrain[ed] his
freedom of movement." Brendlin v. California, 551 U.S. 249,254(2007)(citations and

quotation marks omitted)). In assessing this, a court must consider whether,"in view of all of
the circumstances surrounding the incident, a reasonable person would have believed that he was
not free to leave." Brendlin. 551 U.S. at 255 (citation and quotation marks omitted).

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Plaintiffs argue that Monifa Greene was seized because she did not wish to leave her
hoxise unattended while the Officer Defendants searched it. (Opp'n at 19-21.) She does not cite,

and the court is not aware of, any authority for the proposition that this can constitute a Fourth
Amendment seizure. Thus, Defendants are entitled to summaryjudgment on her claim.
3.

Malicious Prosecution

Anthony Greene brings claims of malicious prosecution based on four charges levied
against him:(1)OGA, resisting arrest, (3)criminal possession ofa firearm, and(4)
(2)

criminal possession ofa weapon in the fourth degree.^"^ (Defs. 56.1 ^ 165;s^ Mem. at 16.) All
charges were dismissed for speedy-trial reasons. (Defs. 56.1 H 166.) Defendants argue that there
was probable cause to prosecute Anthony Greene, so his malicious prosecution claims fail as a
matter oflaw. (Mem. at 16-18.) For the following reasons, the court agrees and grants
Defendants summaryjudgment on these claims.

"The elements of a malicious prosecution claim imder section 1983 are derived firom
applicable state law." Swartz v. Insogna. 704 F.3d 105, 111 (2d Cir. 2013). These elements are:

"(1)commencement of a criminal proceeding,(2)favorable termination ofthe proceeding,(3)
lack ofprobable cause, and(4)institution ofthe proceedings with actual malice." Id at 111-12.
In addition to the state-law elements,"to be actionable under section 1983 there must be a post-

arraignment seizure." Id. at 112.

'2N.Y. Penal Law § 205.30.
13 N.Y. Penal Law § 265.01-b(l).
N.Y. Penal Law § 265.01(1).
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Although Plaintiffs have indisputably established the first two elements, they have
failed to show that there is a material dispute as to the third element, probable cause, with

respect to any ofthe crimes with which Anthony Greene was charged.
a. Obstruction ofgovernmental administration

As explained above. Defendants are entitled to summaryjudgment on Anthony Greene's
false arrest claim because there was probable cause to arrest him for OGA. Anthony Greene's

malicious-prosecution claim as to that charge therefore also fails as a matter oflaw.

Swartz.

704 F.3d at 111-12(stating that a lack of probable cause is an element of a malicious-prosecution
claim). Nonetheless, because unlike with false arrest,"a finding ofprobable cause to arrest as to

one charge does not necessarily defeat a claim of malicious prosecution as to other criminal
charges," D'Aagelo v. Kirschner. 288 F. App'x 724,726(2d Cir. 2008), the court will discuss the
other crimes with which Anthony Greene was charged.
h. Resisting arrest

Plaintiffs fail to respond to Defendants' argument that there was probable cause to charge

Anthony Greene with resisting arrest, fCompare Mem. at 16-17, with Opp'n at 21-22.) The
court therefore grants Defendants summary judgment on this issue.

Jackson, 766 F.3d at 196

(discussing partial abandonment ofclaims at the summary judgment stage),
c. Weapons charges

Finally,the court finds that Defendants are entitled to summaryjudgment on Anthony
Greene's claims of malicious prosecution as to the weapons charges(criminal possession ofa
firearm and criminal possession ofa weapon in the fourth degree). Plaintiffs attempt to dispute

There is no dispute that Anthony Greene was charged, and under New York law,"dismissals for lack oftimely
prosecution should generally be considered, for purposes of a claim of malicious prosecution, a termination
favorable to the accused." See Murphv v. Lynn. 118 F.Sd 938,950(2d Cir. 1997). Moreover,"[m]alice may be
inferred ... from the absence of probable cause." Dufort v. Citv ofNew York. 874 F.3d 338,353(2d Cir. 2017)
(quotation marks omitted).
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probable cause by pointing out that Anthony Greene was arrested before the officers uncovered
the unlicensed firearm in his bedroom safe. (Opp'n at 23.) However,"[t]he existence or

nonexistence of probable cause in a malicious prosecution suit... is determined, at the earliest,
as ofthe time prosecution is commenced." Rothstein v. Carriere. 373 F.3d 275,292(2d Cir. 2004).

Consequently, it is immaterial that the officers were unaware ofthe firearm's existence when
Anthony Greene was arrested.

Plaintiffs now dispute that Anthony Greene constructively possessed the firearm. (Opp'n
at 22-23.) However,Anthony Greene admitted the safe was his when he aided the officers in

attempting to find the key. (Anthony Greene Dep. at 186:25-187:15.) And Plaintiffs have made
no attempt to controvert Defendants' assertions in their 56.1 statement that the firearm belonged
to Anthony Greene. (Compare Defs. 56.1

genuine dispute of material fact).)

155-58, with Pis. 56.1 UK 155-58(conceding no

E.D.N.Y. Civ. R. 56.1(c)(Defendants' factual allegations

"will be deemed to be admitted ...unless specifically controverted by a correspondingly

numbered paragraph"). Because there is no material dispute as to Anthony Greene's ownership
ofthe firearm. Defendants are entitled to summary judgment on his claim of malicious
prosecution.
4.

Excessive Force

All Plaintiffs apart firom Yasin Greene bring claims of excessive force. Defendants assert

qualified immunity and argue that, on the whole. Plaintiffs suffered only de minimis injuries.
The court grants Defendants summary judgment as to Monifa, Kwane, Messiah, and Blacksun
Greene, but denies summary judgment as to Anthony Greene's claim.

"[A] claims that law enforcement officers have used excessive force ...in the course of
11
an arrest, investigatory stop, or other 'seizure' ofa free citizen should be analyzed under the
Fourth Amendment and its 'reasonableness' standard." Graham v. Connor.490 U.S. 386, 395
25

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(1989)(emphasis omitted). When evaluating a Fourth Amendment claim of excessive force,
courts in this Circuit "consider the severity ofthe crime at issue, whether the suspect poses an

immediate threat to the safety ofthe officers or others, and whether he is actively resisting arrest

or attempting to evade arrest by flight." Terebesi v. Torreso. 764 F.3d 217,231 (2d Cir. 2014)
(citation and quotation marks omitted). Both the force used and the injury suffered must be more
than de minimis to constitute excessive force. For example,"as a matter oflaw, tight

handcuffing does not constitute excessive force unless it causes injuries beyond pain and

bruising." Soliman v. Citv ofNew York. No. 15-CV-5310(PKC),2017 WL 1229730, at *16
(E.D.N.Y. Mar. 31,2017)(quotation marks omitted)(emphasis omitted). In general,"the lack of
a continuing injury beyond temporary discomfort is fatal to an excessive force claim." Milo v.

Citv ofNew York. 59 F. Supp. 3d 513, 522(E.D.N.Y. 2014)(quotation marks and alterations
omitted).

a. Monifa, Kwane, and Messiah Greene
Three ofthe Plaintiffs, Monifa, Kwane,and Messiah Greene, allege either no injuries at

all or merely de minimis injuries. Their claims of excessive force fail as a matter oflaw.

Monifa Greene alleges no injuries arising out of her encounter with the officers, and

Plaintiffs have admitted she experienced no "pain or injury as a result of allegedly being
pushed." (Compare Defs. 56,1 H 44, with Pis. 56.1 H 44.) Courts have granted summary
judgment on excessive force for more severe claims. Absent even a de minimis assertion of

injury or use offorce. Defendants are entitled to summaryjudgment. See Milo.59 F. Supp. 3d at
522("Injuries held to be de minimis for purposes of defeating excessive force claims include
short-term pain, swelling, and bruising, briefnumbness from tight handcuffing,[and] claims of

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minor discomfort from tight handcuffing.")(citing Lemmo v. McKov.No.08-CV-4264(RID),
2011 WL 843974, at *5 (E.D.N.Y. Mar. 8,2011)).
Plaintiffs tie Kwane Greene's and Messiah Greene's excessive force claims to their false

arrest claims. rSee Opp'n at 24(claiming excessive force because "there are issues offact
sxirrounding whether Kwane [and Messiah] actually interfer[ed],"

committed OGA).) As

discussed above, however,the court finds that arguable probable cause existed with respect to
their arrests. Further, as Defendants note(Reply at 9-10), Kwane Greene and Messiah Greene

allege only de minimis injuries,^^ which cannot sustain a Fourth Amendment excessive force
claim. See Gutierrez v. City ofNew York. No. 13-CV-3502(JGK),2015 WL 5559498, at *8;

see also Drummond v. Castro. 522 F. Supp. 667,679(S.D.N.Y. 2007)("[A] de minimis use of
force will rarely suffice to state a constitutional claim."(quoting Romano v. Howarth,998 F.2d
101,105(2d Cir. 1993))). Because Plaintiffs' and Defendants' differing versions of events do

not "present factual issues as to the degree offorce actually employed and its reasonableness"
with respect to Kwane and Messiah Greene,there are no "facts in dispute that are material to a
determination ofreasonableness." See Mills v. Feneer. 216 F. App'x 7,9(2d Cir. 2006). Thus,
summaryjudgment is appropriate.
b. Blacksun Greene

Blacksun Greene, unlike Kwane and Messiah Greene, does not tie his excessive force

claim to his false arrest claim. (See Opp'n at 26("[ajssuming areuendo that the Defendant

Officers had probable cause to arrest Blacksun"). Therefore, the validity or invalidity of
Blacksun Greene's arrest is not dispositive here. However,Blacksun fails to materially dispute

Officer Xylas shoved Kwane Greene against a car and Kwane Greene suffered soreness in his right arm that lasted
for a day, but did not seek medical treatment. (Defs. 56.1 63-70.) Sergeant Powers placed Messiah Greene in a
chokehold, kicked his legs out, and slammed him to the ground. (Defs. 56.1 ^ 87; Pis. 56.1 ^ 87.) He suffered back
pain, but did not seek medical treatment. (Defs. 56.1 90-91.)
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Defendants' assertion that Blacksun Greene suffered no physical injuries. (Compare Defs. 56.1 K
133, with Pis. 56.1 ^ 133.) Failure to allege anything beyond de minimis injuries is fatal to an
excessive force claim.

Milo. 59 F. Supp. 3d at 522. Based on the undisputed facts, there is

no dispute "as to the degree offorce actually employed and its reasonableness." See Mills, 216

F. App'x at 9. The officers are therefore entitled to qualified immunity for force used against
Blacksun Greene. See id.

c. Anthony Greene

Defendants maintain they are entitled to judgment as a matter oflaw for Sergeant

Powers's repeated use ofthe taser on Anthony Greene. (Mem. at 22-24.) Anthony Greene was

arrested for interfering with Messiah Greene's arrest, and according to Defendants,the use of
force necessary to place Anthony in handcuffs was justified. (Id.) When the first use ofthe taser
was ineffective, per Defendants, it was reasonable to deploy it two more times. (Reply at 11-12.)
Plaintiffs respond that Anthony Greene's calm demeanor made the first use ofthe taser
objectively unreasonable. Additionally, they dispute Defendants' assertion that the sergeant

tased Anthony Greene for a second and third time only after attempting to place him in handcuffs
a second time. Instead, Plaintiffs say Anthony Greene was repeatedly shocked on the ground as
he convulsed and clutched his heart, and was only then handcuffed. (Pis. 56.1 ^ 122.)
"Because whether force is excessive tums on its reasonableness," in the Second Circuit,

"summaryjudgment on qualified immunity grounds is not appropriate when there are facts in
dispute that are material to a determination ofreasonableness." Mills.216 F. App'x at 8-9

(alterations adopted)(citation and quotation marks omitted). Regardless of whether the initial
use ofthe taser was reasonable (and there is certainly conflicting testimony on whether any

instruction was given before Anthony Greene was tased (see Pis. 56.1

28

121-22)), there is a

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material dispute as to whether the Defendant Officers even attempted to handcuff Anthony
Greene before repeatedly shocking him again. The parties' disagreement is enough to overcome

the officer's qualified immunity and preclude summary judgment for Defendants on Anthony
Greene's excessive force claim.
5.

Monell Liability

Plaintiffs seek to hold the City vicariously liable under Monell for all alleged

constitutional violations by the officers. fSee Opp'n at 26-31.) Specifically, they aver that the
municipal policies tolerated by the City led to the violations they suffered. (Id.) Defendants

counter that because Monell requires a pattern of constitutional violations of which the City was
aware, the lack ofevidence in the record of actual violations of constitutional rights entitles them

to judgment as a matter oflaw. (Reply at 12-14.) For the follovring reasons,the court finds that
Defendants are entitled to summaryjudgment on this issue.

a.

Legal Standard

"[T]o establish municipal liability under § 1983, a plaintiff must prove that 'action

pursuant to official municipal policy' caused the alleged constitutional injury." Cash v. County
ofErie. 654 F.3d 324,333(2d Cir. 2011)(quoting Connick v. Thompson. 563 U.S. 51,60

(2011)). The Supreme Court has recognized that failure by a city to train or supervise its
employees can create Monell liability. Connick. 563 U.S. at 61. For failure to train, a "pattern
of similar constitutional violations by untrained employees is ordinarily necessary to demonstrate

deliberate indifference," id at 62(emphasis added), and the Second Circuit has applied the
pattern requirement in the context offailure to supervise as well. Cash.654 F.3d at 336. "A

plaintiff cannot point to contemporaneous or subsequent violations to establish a pattern"; only

past violations are sufficient. See Greene v. Citv ofNew York. 742 F. App'x 532,536-37(2d
Cir. 2018)(quotation marks omitted). "Plaintiffs must prove in the end that the state defendants'
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inadequate supervision actually caused or was the moving force behind the alleged violations."
Revnolds v. Giuliani. 506 F.3d 183,193(2d Cir. 2007).

b.

Application

As an initial matter, the City may only be held liable under Monell for actual

constitutional violations committed by the Officer Defendants. "Monell does not provide a

separate cause ofaction." Segal v. Citv ofNew York.459 F.3d 207,219(2d Cir. 2006).
Instead,"it extends liability to a municipal organization where that organization's failure to train,

or the pohcies or customs that it has sanctioned,led to an independent constitutional violation." Id.
In this case, the only § 1983 claims proceeding past summary judgment are those for(1)
unlawful search,(2)false arrest of Blacksun Greene, and(3)excessive force used against
Anthony Greene. Plaintiffs' filings attempt to establish a pattern of constitutional violations only
as to excessive force by the officers(Am. Compl. at 9)and the NYPD's policy of handcuffing
and foot shackling hospitalized detainees(Opp'n at 28-30). Although Plaintiffs state a claim of
excessive force sufficient to survive summaryjudgment. Plaintiffs did not plead or set forth

factual matter supporting the existence of a constitutional violation by the NYPD as to its

handcuffing policy. Thus,the only issue before the court is whether the city may be held liable
for Anthony Greene's excessive force claim.

Plaintiffs rely on Vann v. Citv ofNew York.72 F.3d 1040(2d Cir. 1995),for the

proposition that Monell liability may be established where the City was "alerted to the possibility
of excessive force" by its officers. (See Opp'n at 27.) They cite to other federal lawsuits filed
against these officers and a news article discussing Officer Ettienne's social media presence.

(Id.) In Vann. however,the City was aware of an "extensive history of disciplinary and other
remedial measures taken against" the defendant officer.

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Mahan v. Citv ofNew York. No.

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OO-CV-6645,2005 WL 1677524, at *6(E.D.N.Y. July 19,2005)(discussing Vam). The

lawsuits cited here, and the City's failure to discipline the officers in connection with those suits,
are insufficient for Plaintiffs to survive summary judgment. Offourteen lawsuits, thirteen were

settled without admission ofliability^' and one was dismissed with prejudice.^^ Nine ofthe
fourteen were filed after the date ofthe incident involving the Greenes, and therefore do not bear

on the question of whether the City was properly on notice ofthe officers' behavior. Among the
five pre-incident lawsuits,the only Defendants implicated are Officer Xylas (twice). Sergeant
Powers(twice), and Officer Galvin (thrice). Officers Julien and Ettienne had not been sued
before the incident. Therefore, to the extent that Plaintiffs' theory of Monell liability is based on

the City's alleged indifference to repeated lawsuits filed against the officers, Defendants are
entitled to summary judgment. The handful of allegations over a number of years, all of which
settled with no admission ofliability, are insufficient to prove a pattern of violations. Cf Jenkins
V. CitvofNewYork.No. 15-CV-5889,2019 WL 2367060, at *5-6(E.D.N.Y. June 5,2019)

(seven pre-incident lawsuits all against the same defendant, alongside significant disciplinary
history, were sufficient to create a triable issue of material fact).

Accordingly,summary judgment for Defendants is appropriate on Plaintiffs' Monell
claims.

Braxton v. Citv ofNew York. No. 16-CV-5164(E.D.N.Y. filed Sept. 16,2016); Abram v. City ofNew York,No.

16-CV-5682(S.D.N.Y. filed July 15, 2016); Fulmore v. Citv ofNew York.No. 16-CV-904(E.D.N.Y. filed Feb. 23,
2016); Whitney v. Citv ofNew York. No. 15-CV-5176(E.D.N.Y. filed Sept. 6,2015); Clark v. Ettienne. No. 15CV-4961 (E.D.N.Y. filed Aug. 24,2015); Connor v. Citv ofNew York. No. 15-CV-2590(E.D.N.Y. filed May 6,
2015); Baines v. Citv ofNew York. No. 15-CV-1472(E.D.N.Y. filed Mar.20, 2015); Julien v. Citv ofNew York,
No. 14-CV-9942(S.D.N.Y. Dec. 17,2014); Jones v. Galvin. No. 14-CV-4095(E.D.N.Y. filed July 1,2014); Rouse
V. Citv ofNew York. No. 13-CV-5984(E.D.N.Y. filed Oct. 29, 2013); Ziesler v. Citv ofNew York. No. 13-CV-l 17
(E.D.N.Y. filed Jan. 8, 2013); Miller v. Citv ofNew York. No. 1 l-CV-5036(E.D.N.Y. filed Oct. 17,2011); Faine v.
Citv ofNew York. No. 1 l-CV-3299(E.D.N.Y. filed July 8,2011).
18 King V. Citv ofNew York. No. 15-CV-497(E.D.N.Y. filed Feb. 2,2015).
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B.

State Law Claims

In addition to their § 1983 claims. Plaintiffs maintain five sets ofNew York state-law

claims against the Defendants arising from the same incident. (Am. Compl.

74-111.)

Defendants argue that they are entitled to qualified immunity and the New York State doctrine of

governmental immunity. (Mem. at 29-30.) As set forth below,the court finds that Defendants
are entitled to summary judgment on all ofthe state claims, except for Anthony and Blacksun
Greene's assault and battery claims.
1.

Assault and Battery

This court applies New York law to analyze Plaintiffs' state claims. In New York,

assault requires "proofofphysical conduct placing the plaintiff in imminent apprehension of
harmful contact," Butler v. Magnet Sports & Bnt. Lounge. Inc.. 23 N.Y.S.3d 299,301 (N.Y.

App. Div. 2016), while battery requires offensive "bodily contact...[and]intent to make the
contact without the plaintiffs consent," Relf v. Citv of Trov. 94 N.Y.S.3d 672,677(N.Y. App.

Div. 2019). When police officers exercise force, there are scenarios in which the elements of
these torts are satisfied as a matter oflaw. For example,"where an arrest is unlawful and
without consent,the use offorce in an arrest must give rise to a claim for assault and battery."

Rucks V. Citv ofNew York,96 F. Supp. 3d 138, 152-53(S.D.N.Y. 2015)(emphasis in original);
see Sulkowska v. Citv of New York, 129 F. Supp. 2d 274,294(S.D.N.Y. 2001)(collecting

cases). The same is true for valid excessive force claims:"Except for § 1983's requirement that
the tort be committed under color ofstate law,the essential elements of excessive force and state

law assault and battery claims are substantially identical." Humphrev v. Landers,344 F. App'x

686,688(2d Cir. 2009)(alterations adopted). Therefore, under New York law,if Plaintiffs have

The court may exercise supplementaljurisdiction over any state-law claims that"form part ofthe same case or
controversy" as Plaintiffe' federal claims. See 28 U.S.C. § 1367(a).
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stated valid claims offalse arrest(which Blacksim Greene has) or excessive force (which

Anthony Greene has), they also state claims for state law assault and battery.

Graham v.

Citv ofNew York. 928 F. Supp. 2d 610,625(E.D.N.Y. 2013)("Since there are questions offact

regarding [the plaintiff's] excessive force claim,there are also questions offact regarding [the
plaintiffs] state law assault and battery claims against Defendant[s].").
Neither form ofimmxinity claimed by Defendants operates to shield the officers firom

liability. The officers are not entitled to qualified immunity for the same reasons that the defense
was unavailable to them on Blacksun Greene's false arrest claim and Anthony Greene's

excessive force claim. Specifically, the absence ofeven arguable probable cause to arrest
Blacksun Greene for OGA,as well as the "facts in dispute that are material to a determination of
reasonableness" ofthe force used against Anthony Greene, preclude a grant of qualified

immunity.

Mills. 216 F. App'x at 8-9. Nor can Defendants avail themselves ofNew York

State governmental immunity. (See Mem. at 29-30.) In New York,the doctrine of

governmental immunity "precludes liability for a mere error ofjudgment," provided "the action
taken actually resulted from discretionary decision-making" by a municipal officer. Valdez v.
Citv ofNew York. 960 N.E.2d 356, 364(N.Y. 2011)(citations and quotation marks omitted).

Governmental immunity applies "[w]hen a negligence claim is asserted against a municipality or

its employees," Velez v. Citv ofNew York. 730 F.3d 128,134(2d Cir. 2013)(citing Valdez,960
N.E.2d at 361), but does not shield officers from allegations of assault and battery, which are
intentional torts. See, e.g.. Bower v. Citv of Lockport. 982 N.Y.S.2d 621,624-25(N.Y. App.

Div. 2014)(analyzing government immunity with regard only to negligence claims and not to
assault and battery claims).

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In sum, because there is a material dispute as to whether there was probable cause to
arrest Blacksun Greene, xmder New York law Blacksxm's assault and battery claim must survive
summary judgment,
2.

Malicious Prosecution

Anthony Greene brings a state-law malicious prosecution claim. For malicious
prosecution,"the analysis ofthe state and the federal claims is identical." Bovd v. Citv ofNew

York,336 F.3d 72,75(2d Cir. 2003).^® To make out a malicious-prosecution claim. Plaintiffs
must show a lack of probable cause. Because the court granted Defendants summary judgment
on Anthony Greene's federal claim based on presence ofprobable cause, it does the same with
respect to Anthony Greene's state malicious-prosecution claim.
3.

Intentional Infliction of Emotional Distress

The elements ofintentional infliction of emotional distress ("IIED") are: "(i) extreme and
outrageous conduct;(ii) intent to cause, or disregard of a substantial probability ofcausing,
severe emotional distress;(iii) a causal connection between the conduct and injury; and

(iv)severe emotional distress." Chanko v. American Broad. Cos.. 49N.B.3d 1171, 1178(N.Y.
2016). As with assault and battery, because the conduct alleged is intentional (rather than merely

negligent). Defendants are not entitled to state governmental immunity.
Plaintiffs' IIED claims fail. The claims are premised almost entirely on affidavits, newly
submitted, claiming that each and every member ofthe Greene family fears to encounter police

officers as a result ofthis incident. (See Opp'n at 32-33.) But Plaintiffs themselves admit that
IIED "is a theory of recovery that is to be invoked only as a last resort," and one that requires

Plaintiffs contend that "the elements of malicious prosecution under New York State law are actually less stringent
than" those under § 1983. (Opp'n at 32.) They presumably refer to the Second Circuit's post-arraignment seizure
requirement that is imposed on top ofthe state-law elements. Swartz. 704 F.3d at 112. That requirement is not
disputed as to Anthony's claim, however, and is therefore not relevant. (See Opp'n at 21-23.)
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behavior "beyond all possible bounds of decency." (Id. at 32 & n.8.) From all available
evidence, the officers' conduct failed to rise to the high level ofindecent behavior required to
state a claim. Compare J.H. v. Bratton. 248 F. Supp. 3d 401,416(E.D.N.Y. 2017)(finding that

the plaintiff stated a claim for IIED where officers "forced Plaintiffto remove her headscarf...
despite Plaintiffs repeated objections on religious grounds, and then made sarcastic and
demeaning comments about her physical features"), with Doe v. Citv of New York. No. 18-CV670(ARR),2018 WL 3824133, at *10(E.D.N.Y. Aug.9,2018)(dismissing IIED claim where
officers "pressured, bullied,threatened and intimidated" plaintiffto prevent her jfrom reporting a
sexual assault,"[ejven assuming that these statements were lies").

Finally, Plaintiffs' claim also fails because "the conduct complained offalls well within
the ambit of other traditional tort liability." Turlev v. ISG Lackawanna Inc.. 774 F.3d 140,157

(2d Cir. 2014)(explaining that New York courts tend to exclude IIED claims where other tort
causes of action exist).
4.

Negligent Retention. Training, and Hiring

Plaintiff also brings a claim against the City for negligent retention, training, and hiring.
(Am. Compl.

74-83.) The elements of negligent retention, training, and hiring are:
(1) that the tort-feasor and the defendant were in an employeeemployer relationship,(2) that the employer knew or should have
known of the employee's propensity for the conduct which caused
the injury prior to the injury's occurrence, and (3)that the tort was
committed on the employer's premises or with the employer's
chattels.

Ehrens v. Lutheran Church. 385 F.3d 232, 235(2d Cir. 2004)(citations and quotation marks

omitted). Plaintiffs adduce no evidence tending to show that the City "knew or should have
known" ofthe officers' alleged tendency to commit constitutional violations apart firom the

"plethora of civil rights actions commenced against them"(Opp'n at 33). As the court explained
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above with respect to Plaintiffs' Monell claims, the five cases brought before the incident in
question, over a four-year span, against only three ofthe Officer Defendants, are insufficient to
have put the city on notice.
In any case,"[gjenerally, where an employee is acting within the scope of his or her

employment,thereby rendering the employer liable for any damages caused by the employee's

negligence under a theory ofresnondeat superior, no claim may proceed against the employer for
negligent hiring or retention." Karoon v. New York Citv Transit Auth.. 659 N.Y.S.2d 27, 29

(N.Y. App. Div. 1997). Here,there is no material dispute as to whether Defendants were acting
within the scope oftheir employment. Defendants are therefore entitled to summary judgment
on this claim.

5.

Resnondeat Superior Liability

Lastly, Plaintiffs seek to hold the City liable for the Officer Defendants' alleged
intentional torts under a theory ofrespondeat superior. But"there can be no imposition of
vicarious liability in the absence of underlying liability." Rateau v. Citv of New York,No. 06CV-4751,2009 WL 3148765, at *15(E.D.N.Y. Sept. 29, 2009). Therefore, Plaintiffs'

respondeat superior claims fail with respect to all state claims for which Defendants have been
granted summary judgment—^that is, all state claims apart from assault and battery as to
Blacksun and Anthony Greene.

On the assault and battery claims, there is no reason why the parallel respondeat superior

claims should not proceed past summary judgment. Defendants do not address Plaintiffs'
assertions ofresnondeat superior liability in their summary judgment motion. (See Mem. at 26.)
They have not argued that the officers were acting outside the scope oftheir employment or that
their actions were not reasonably foreseeable, which are two exceptions to vicarious liability.
See Danko v. Forest Lake Camp.Inc.. 882 N.Y.S.2d 280,281-82(N.Y. App. Div. 2009).
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Accordingly, Plaintiffs' state-law claims that demonstrate triable issues of fact (assault and
battery as to Blacksun and Anthony Greene) should proceed against both the Officer Defendants
and, under a theory of respondeat superior, against the City.

IV.

CONCLUSION
For the foregoing reasons, Defendants' (Dkt. 46) motion for summary judgment is

GRANTED IN PART and DENIED IN PART. The following claims survive summary
judgment: the 42 U.S.C. § 1983 claims for the (1) unlawful search of377 MacDonough Street,
(2) the false arrest ofBlacksun Greene, and (3) the excessive force used against Anthony Greene;
and the state-law claims for the (4) assault and battery of Blacksun and (5) assault and battery of
Anthony. The state claims survive against both the Officer Defendants and the City under
respondeat superior. The court DIRECTS the parties to contact the chambers of Magistrate
Judge Cheryl L. Pollak to schedule a conference regarding the next steps in this case.
SO ORDERED.

s/Nicholas G. Garaufis
Dated: Brooklyn, New York
August S, 2019

United States District Judge

37