Todd v. New York City Health and Hospital Corporation et al

Filing 267

MEMORANDUM AND ORDER: For the reasons stated in the attached memorandum and order, Park City Defendants' 228 229 motion for summary judgment is GRANTED and the § 1981 claim against them is dismissed. City Defendants' motion 233 243 for summary judgment is GRANTED in part and DENIED in part and the § 1983 claim for warrantless entry is dismissed. The § 1983 claim for unreasonable seizure remains. The Clerk of Court is respectfully directed to mail a copy of this memorandum and order to the pro se litigant. Ordered by Judge LaShann DeArcy Hall on 3/31/2021. (Williams, Erica)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MAXINE A. TODD,
Plaintiff,
v.
NEW YORK CITY HEALTH AND HOSPITALS
CORPORATION, OFFICE OF LEGAL AFFAIRS;
CLAIMS DIVISION; EMILY STONE, AS EXECUTOR
OF DIANE STONE’S ESTATE; DEEP LOHIA, MD,
LIC # 268559; NNAMDI ODIAH MD, LIC # 260378;
ALEX DOMPREH, NP; LILY ZOU, RN; MANUELA
LORICO, RN; JOHN DOE, RN; PARK CITY 3 & 4
APARTMENTS, INC.; LOUIS KRAMBERG, PRES.
OF CO-OP BOARD; CHANDRA JAIN, CO-OP MGR.;
P.O. BERLINGERIO, SHIELD #2501; P.O.
MARCELLA VCLAK, SHIELD # 951423;
FRANCISCO BALDANZA, NYC FIRE DEPT EMT,

MEMORANDUM AND ORDER
16-CV-2124 (LDH)(LB)

Defendants.
LASHANN DEARCY HALL, United States District Judge:
Plaintiff Maxine A. Todd, proceeding pro se, brings the instant action against Park City 3
& 4 Apartments, Inc., Louis Kramberg, and Chandra Jain (together, “Park City Defendants”),
asserting claims for selective apartment inspections under 42 U.S.C. § 1981; and Sergeant
Gianfranco Berlingerio, Officer Marcella Vlack, and Emergency Medical Technician (“EMT”)
Francesco Baldanza (together, “City Defendants”) asserting claims for unlawful entry and
unreasonable seizure under 42 U.S.C. § 1983. Defendants move pursuant to Rule 56 of the
Federal Rules of Civil Procedure for summary judgment to dismiss the amended complaint in its
entirety.

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UNDISPUTED FACTS1
Plaintiff owns shares allocated to Apartment 4k in Park City 3 & 4 Apartments, Inc
(“Park City”), a cooperative apartment building complex. (Pl.’s Park City 56.1 Statement Opp’n
(“Pl.’s Park City 56.1 Opp’n”) ¶ 1, ECF No. 211 at 9-20.2) According to Plaintiff, she is one of
the few Black individuals who owns, rents, or resides at Park City. (Id. ¶ 8.)
All Park City residents are subject to certain inspections, such as those required to ensure
compliance with local laws concerning smoke detectors, carbon monoxide detectors, lead-based
paint hazards, bed bugs, and allergen hazards such as mold. (A.G. Chancellor III Decl. Supp.
56.1 Statement (“Chancellor Decl.”), Ex. 3 ¶ 7, ECF No. 195-2.) According to Plaintiff, her
apartment was subject to special inspections that other residents were not subjected to. (Pl.’s
Park City 56.1 Opp’n ¶ 4.) For example, building employees entered her apartment for annual
inspections to test her smoke detector and carbon monoxide detector between 2007 and 2009.
(Chancellor Decl., Ex 1 at 22:16–23:22, ECF No 195-2.) Plaintiff never heard or saw
inspections happening in her white neighbors’ apartments after her inspections occurred, even
though all apartments on her floor share a small vestibule. (Pl.’s Park City 56.1 Opp’n ¶ 4.)
On July 23, 2013, at approximately 11:28 a.m., an individual called 911 and reported that
there was a “water leak in [Plaintiff’s apartment],” that “the tenant is a mentally disturbed person
refusing to open door,” that there were no weapons, and that the tenant was “not violent.”
(Decastro Decl. Supp. City Defs’ Mot. Summ. J. (“Decastro Decl.”), Ex. E at D000010, ECF
200-5.) A few minutes later, Officers Vlack and Berlingerio received a radio run indicating that
an emotionally disturbed person had “barricaded” herself in her apartment and was refusing to

The following facts are taken from the parties’ statements of material facts pursuant to Local Rule 56.1 and
annexed affidavits and exhibits. Unless otherwise noted, the facts are undisputed.
2
Pagination refers to the page numbers assigned by the Court’s ECF system.
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grant the Fire Department of the City of New York (“FDNY”) access. (City Defs.’ Rule 56.1
Statement Mat. Facts (“City Defs.’ 56.1”) ¶¶ 9-10, ECF No. 199.) When Officers Vlack and
Berlingerio arrived on the fourth floor of Plaintiff’s apartment building, they were met by FDNY
firefighters and an individual who identified himself as the building’s superintendent. (Id. ¶¶
12–13.) At some point, EMT Baldanza was also dispatched to Plaintiff’s apartment building.
(See id. ¶ 16–17.) The superintendent informed Officers Vlack and Berlingerio that there was a
condition inside the building that required accessing Plaintiff’s apartment in order to address a
potential fire hazard, and Plaintiff was refusing access to her apartment. (Id. ¶ 14.) At some
point, Plaintiff opened the door to her apartment and allowed Officers Vlack and Berlingerio to
enter. (Id. ¶ 20.) Plaintiff states that she was “happy” that New York City Police Department
(“NYPD”) officers entered her home. (Pl.’s Opp’n City Defs.’ 56.1 (“Pl.’s City Defs.’ 56.1
Opp’n”) ¶ 21, ECF No. 248 at 30-46.)
City Defendants’ version of what happened after City Defendants entered the apartment
is largely disputed by Plaintiff.3 City Defendants state that Plaintiff appeared frail or
malnourished, disheveled, ungroomed, and agitated, and that her apartment appeared dusty and
unkept. (City Defs.’ 56.1 ¶¶ 22–23.) Plaintiff was “fixated” on the officers, and stared at Officer
Vlack with “wide protruding eyes and pursed lips.” (Id. ¶ 23.) Plaintiff stated several times,
“I’m going to get you.” (Id. ¶ 29.) At some point, Plaintiff positioned herself within the

Plaintiff’s 56.1 statement disputes many of Defendant’s statements of fact, but does not cite to admissible
evidence. Rather, Plaintiff’s version of events is contained in an affidavit she attached to her opposition papers to
City Defendants’ motion. (Aff. Pl. Todd. Opp. Mot. Summ J. (“Todd Aff.”), ECF No. 248 at 49-60.) City
Defendants urge the Court to deem most of their facts admitted because Plaintiff failed to cite to admissible
evidence in the record in her 56.1 statement in contravention of the local rules. (City Defs.’ Mem. L. Supp. Mot.
Summ. J. (“City Defs.’ Mem.”) 3–5, ECF No. 244.) However, “a district court has broad discretion to determine
whether to overlook a party’s failure to comply with local court rules” and may exercise that discretion, on behalf of
a pro se party, to go beyond the evidence cited in the Rule 56.1 statements and “conduct an assiduous review of the
record.” Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir. 2001). Accordingly, notwithstanding Plaintiff’s
noncompliance with Local Civil Rule 56.1(b), the Court has exercised it discretion and considered all admissible
evidence in support of Plaintiff’s contentions.
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apartment such as to prevent anyone from moving further inside to inspect for hazards. (Id. ¶
28.) At some later point, Plaintiff attempted to barricade herself in the bathroom. (Id. ¶ 37.)
Plaintiff became combative when she was informed she would need to be taken to the hospital
for an evaluation. (Id. ¶ 40.) At some point, Office Vlack handcuffed Plaintiff, after which point
Plaintiff became verbally and physically abusive towards EMT Baldanza. (Id. ¶¶ 41–42.)
According to Plaintiff, her apartment was “spotless,” she was wearing clean clothes, she
was not malnourished, and she had clean, combed hair. (Aff. Pl. Todd. Opp. Mot. Summ J.,
(“Todd Aff.”) ¶¶ 5(ii)-(iii), 6(iii), ECF No. 248 at 50-53.) Plaintiff disputes that she stared at or
threatened Officer Vlack. (Id. ¶¶ 5(iv)-(v).) Moreover, Plaintiff states that she was not
combative or physically abusive towards EMT Baldanza. (Id. ¶¶ 6(v), 7(vi).) Plaintiff further
asserts that she did not attempt to barricade herself in her apartment. (Id. ¶ 7(vi).)
It is undisputed that at some point Plaintiff was escorted out of her apartment to an
ambulance and transported to the hospital by EMT Baldanza and Officer Vlack. (City Defs.’
56.1 ¶¶ 43, 46.) City Defendants state, and Plaintiff disputes, that during the ride to the hospital,
Plaintiff continued to state she was going to “get” Officer Vlack and continued to stare at her.
(Id. ¶¶ 44, 47.)
STANDARD OF REVIEW
Summary judgment must be granted when there is “no genuine dispute as to any material
fact and the movant[s] are entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see
also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986). A genuine dispute of
material fact exists “if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson, 477 U.S. at 248. The movants bear the initial burden of
demonstrating the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477
U.S. 317, 330–31 (1986); Feingold v. New York, 366 F.3d 138, 148 (2d Cir. 2004). Where the
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non-movant bears the burden of proof at trial, the movants’ initial burden at summary judgment
can be met by pointing to a lack of evidence supporting the non-movant’s claim. Celotex Corp.,
477 U.S. at 325. Once the movants meet their initial burden, the non-movant may defeat
summary judgment only by producing evidence of specific facts that raise a genuine issue for
trial. See Fed. R. Civ. P. 56(e); see also Anderson, 477 U.S. at 250; Davis v. New York, 316 F.3d
93, 100 (2d Cir. 2002). The Court is to believe the evidence of the non-movant and draw all
justifiable inferences in his favor, Anderson, 477 U.S. at 255, but the non-movant must still do
more than merely assert conclusions that are unsupported by arguments or facts. Bellsouth
Telecomms., Inc. v. W.R. Grace & Co., 77 F.3d 603, 615 (2d Cir. 1996).
“It is well established that the submissions of a pro se litigant must be construed liberally
and interpreted to raise the strongest arguments that they suggest,” Triestman v. Fed. Bureau of
Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation marks and emphasis omitted),
including when facing a summary judgment motion, Jorgensen v. Epic/Sony Records, 351 F.3d
46, 50 (2d Cir. 2003). Nevertheless, the “application of this different standard does not relieve
plaintiff of his duty to meet the requirements necessary to defeat a motion for summary
judgment.” Id. at 50 (internal quotation marks omitted).
DISCUSSION
I.

Park City Defendants
Section 1981 provides:
All persons within the jurisdiction of the United States shall have the same right in
every State and Territory to make and enforce contracts, to sue, be parties, give
evidence, and to the full and equal benefit of all laws and proceedings for the
security of persons and property as is enjoyed by white citizens, and shall be subject
to like punishment, pains, penalties, taxes, licenses, and exactions of every kind,
and to no other.

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42 U.S.C. § 1981(a). In order to establish a § 1981 violation, a plaintiff must show that (1) the
defendant discriminated against her on the basis of race; (2) that the discrimination was
intentional; and (3) that the discrimination was a substantial or motivating factor for the
defendants’ actions. Tolbert v. Queens Coll., 242 F.3d 58, 69 (2d Cir. 2001) (internal citations
and quotations omitted). Park City Defendants argue that Plaintiff has failed to adduce any
evidence that she was discriminated against with respect to apartment inspections due to her
race. (Park City Defs.’ Mem. L. Supp. Mot. Summ. J. (“Park City Defs.’ Mem.”) 5–7, ECF No.
229.) The Court agrees.
Plaintiff maintains that she was subject to special inspections, or more frequent
inspections than white residents. (Pl.’s Park City 56.1 Opp’n ¶ 4.) In support of her claim,
Plaintiff states that she never heard or saw inspections happening in her three white neighbors’
apartments after inspections of her apartment occurred. (Id.) However, Plaintiff has adduced no
other evidence to support her claim. Plaintiff could have, for example, adduced deposition
testimony or other sworn statements from neighbors attesting to the fact that they were not
subject to home inspections. Likewise, Plaintiff could have provided documentary evidence
from the cooperative’s management company setting out when and at which apartment
inspections were conducted. Plaintiff did not. Ultimately, Plaintiff’s contention that she was
subject to selective inspections is wholly speculative. Neither speculation nor conclusory
statements are sufficient to defeat a motion for summary judgment. McPherson v. New York
City Dep’t of Educ., 457 F.3d 211 n.4 (2d Cir. 2006); (“[S]peculation alone is insufficient to
defeat a motion for summary judgment.”); Davis v. New York, 316 F.3d 93, 100 (2d Cir. 2002)
(“[R]eliance upon conclusory statements or mere allegations is not sufficient to defeat

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a summary judgment motion.”). On these grounds, Park City Defendants are entitled to
summary judgment on Plaintiff’s § 1981 claim.
II.

City Defendants
A.

Warrantless Entry

“[W]arrantless entries into the home are presumptively unreasonable.” United States v.
Fields, 113 F.3d 313, 322 (2d Cir. 1997). However, “[u]nder the Fourth Amendment’s consent
exception, warrantless entry . . . [is] permissible if the authorities have obtained the voluntary
consent of a person authorized to grant such consent.” United States v. Guerrero, 813 F.3d 462,
467 (2d Cir. 2016) (citation and quotation omitted). City Defendants argue that it cannot be
genuinely disputed that Plaintiff consented to their entry into her apartment. (Mem. L. Supp.
City Defs.’ Mot. Summ. J. (“City Defs.’ Mem.”) 5, ECF No. 244.) The Court agrees.
In her opposition to City Defendants’ 56.1 statement, Plaintiff “generally opposes” the
fact she opened her apartment door and allowed Officer’s Vlack and Berlingerio to enter. (Pl.’s
City Defs.’ 56.1 Opp’n ¶ 20.) However, Plaintiff’s position is contradicted by the facts in the
record. In an affidavit previously filed by Plaintiff, she affirmed “I opened my door,” to the City
Defendants and I was “happy to see them.” (Decastro Decl., Ex. H at 12 ; Pl.’s City Defs. 56.1 ¶
21.) Plaintiff also previously affirmed “the fact is on 7/23/2013 [] I allowed City Defendants
into my home.” (Decastro Decl., Ex. H at 18.) In other words, the evidence supports a finding
that Plaintiff consented to City Defendants’ entry into her apartment. Accordingly, there is no
genuine dispute of material fact as to whether Plaintiff consented to entry into her home and
defendants are entitled to summary judgment on Plaintiff’s warrantless entry claim.
B.

Unreasonable Seizure

The Fourth Amendment protects against unreasonable searches and seizures, including
where the seizure is due to an individual’s mental illness. Myers v. Patterson, 819 F.3d 625, 632
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(2d Cir. 2016) (“[Fourth Amendment] protection adheres whether the seizure is for purposes of
law enforcement or due to an individual's mental illness.”). To handcuff and detain an individual
for mental health reasons, an officer must have “probable cause to believe that the person
presented a risk of harm to [her]self or others.” Id. (quoting Kerman v. City of New York, 261
F.3d 229, 237 (2d Cir. 2001)); see also Green v. City of New York, 465 F.3d 65, 83 (2d Cir.
2006) (“[I]n order to constitutionally seize a person to transport him to a hospital, the person
must be dangerous, presumably to himself or others); N.Y. Mental Hyg. Law § 9.41 (“Any . . .
police officer . . . may take into custody any person who appears to be mentally ill and is
conducting herself in a manner which is likely to result in serious harm to the person or others.”).
For a mental health seizure, the law requires only “a probability or substantial chance of
dangerous behavior, not an actual showing of such behavior.” Bryant v. Steele, 462 F. Supp. 3d
249, 260 (E.D.N.Y. 2020); Mizrahi v. City of New York, No. 15-CV-6084, 2018 WL 3848917, at
*20 (E.D.N.Y. Aug. 13, 2018) (collecting cases). To determine whether probable cause existed
to justify a mental health seizure, courts must look to “the specific observations and information
available” at the time of the seizure. Myers, 819 F.3d at 633. City Defendants argue that given
the facts and circumstances at the time of the arrest, there was probable cause to believe that
Plaintiff was conducting herself in a manner likely to result in serious harm to herself or others.
(City Defs.’ Mem. 8–11.) The Court disagrees.
Critically, the “harm to self or others” standard is not met by evidence suggesting merely
that the person is emotionally disturbed, mentally unwell, paranoid, or espousing conspiracy
theories. See Myers, 819 F.3d at 634 (“A person may be annoyed, uncooperative, and irrational
without presenting a danger to herself or of violence to others.”); Bryant, 2020 WL 2797606, at
*9 (E.D.N.Y. May 22, 2020) (denying summary judgment on probable cause grounds where it

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was undisputed that plaintiff called the police and claimed that “unknown Haitians and
Jamaicans” were threatening to kill him, that unknown people were surveilling him, and that he
had multiple firearms); Greenaway v. County of Nassau, 97 F. Supp. 3d 225, 234 (E.D.N.Y.
2015) (finding that defendants “fail[ed] to show that engaging in ‘bizarre and unreasonable’
behavior, including stripping naked and rubbing paint on oneself inside one’s own residence, is
‘likely to result in serious harm to the person or others,’” even though plaintiff made “gestures
that some officers interpreted as ‘threatening’” (quoting N.Y. Mental Hyg. Law § 9.41); Guan v.
City of New York, No. 18-CV-2417, 2020 WL 6688855, at *10 (S.D.N.Y. Sept. 18, 2020)
(denying summary judgment on probable cause grounds where defendants provided evidence
that plaintiff was mentally unstable, but provided no evidence that plaintiff manifested homicidal
or other violent behavior placing others at risk of serious physical harm). With this foundational
principle in mind, the Court turns to the facts here.
Plaintiff disputes City Defendants’ accounts of what transpired in her apartment, and has
attached a sworn affidavit with her account of the events. (See Todd Aff.) That alone is enough
to create a triable issue of fact. However, even if the Court accepts City Defendants’ account
(which is not the standard on summary judgment), it is insufficient to warrant a grant of
summary judgment. See Greenaway, 97 F. Supp. 3d at 234 (E.D.N.Y. 2015) (employing same
analytical approach).
To start, Defendants make much of Plaintiff’s “repeated threats.” (City Defs.’ Mem. 10.)
According to Officer Vlack, Plaintiff stated several times “I’m going to get you,” which, coupled
with Plaintiff’s stares and wide-eyed expressions, caused Officer Vlack to fear for her safety.
(Decastro Decl., Ex F. ¶¶ 20-21, 23, 29, ECF No. 200-6.) However there is no evidence that
Plaintiff had any access to anything that could be used as a weapon or physically threatened

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Officer Vlack in any way. See 97 F. Supp. 3d at 234 (finding no probable cause even though
plaintiff made “gestures that some officers interpreted as ‘threatening’”). Moreover, Plaintiff
was separately described as extremely frail or malnourished by Officer Berlingerio, (Decastro
Decl., Ex. G ¶ 14, ECF No. 200-7), calling into question whether Plaintiff’s “stares” and vague
potential threats support a finding of probable cause to believe that she presented a risk of harm
to others.
Next, EMT Baldanza stated that “at some point while the plaintiff was restrained she
became verbally and physically abusive towards me.” (Decastro Decl., Ex. L ¶ 26, ECF No.
200-12.) There are no other facts or statements by EMT Baldanza about the abuse nor any other
evidence in the record regarding this abuse. What did Plaintiff say? What was she doing that
was “physically abusive,” particularly given that she was already handcuffed? Was she
physically threatening before the handcuffs were placed on her or only afterwards?
Finally, City Defendants’ evidence regarding the fire hazard is wholly insufficient to
support their motion for summary judgment. City Defendants argue that they were concerned
for Plaintiff’s safety because of “the fact that plaintiff continued to deny maintenance workers
and emergency crews access to her bathroom, where the leak creating the fire hazard was
located.” (City Defs.’ Mem. 9.) This “fact” is not actually supported by the record. The
individual who called 911 reported that there was a “water leak” in Plaintiff’s apartment.
(Decastro Decl., Ex. E at D000010.) The superintendent of the building informed a police
officer that a condition inside the building required accessing Plaintiff’s apartment in order to
address a “potential fire hazard,” and Plaintiff was refusing access to her apartment. (Pl.’s City
Defs.’ 56.1 Opp’n ¶ 14.) There is no evidence that law enforcement had any information about a

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purported fire hazard that could reasonably lead them to believe it could harm Plaintiff or others,
i.e., any indication that the water leak might cause any harm to electrical wiring.
Moreover, even assuming a fire hazard, the evidence does not support any argument that
Plaintiff actually prevented law enforcement from accessing the hazard. As discussed, Plaintiff
consented to the officers’ entry into her apartment. City Defendants assert that, at some point,
the “frail” Plaintiff positioned herself within the apartment such as to prevent anyone from
moving further inside to inspect for hazards. (City Defs.’ 56.1 ¶ 28.) Even if that were true, it is
not clear that anyone was actually prevented from accessing any hazard. Moreover, according to
EMT Baldanza, Plaintiff “attempted” to barricade herself in the bathroom. (Id. ¶ 37; Decastro
Decl., Ex. L ¶¶ 22, 27.) But, there is no evidence that she actually barricaded herself in the
bathroom or what the “attempt” entailed. City Defendants’ effort to spin these facts in a
definitive narrative about Plaintiff preventing law enforcement from accessing a known fire
hazard is simply unpersuasive and belied by the, at best, ambiguous record. And, on a motion
for summary judgment, all ambiguities must be resolved in favor of the non-movant. Scotto v.
Almenas, 143 F.3d 105, 114 (2d Cir. 1998).
Against this factual backdrop, City Defendants’ cited caselaw is unhelpful. They almost
exclusively rely on Quon v. Henry, No. 14-CV-9909, 2017 WL 1406279 (S.D.N.Y. Mar. 27,
2017). At first blush, the facts in Quon seem potentially analogous to City Defendants’ account
of events. There, then-District Judge Sullivan found that there was probable cause to detain and
hospitalize the plaintiff because:
(1) Quon barricaded himself in his apartment rather than allow the firefighters in to
inspect a leak, (2) he was dressed only in a pair of briefs despite having ample time
to don clothing after the firefighters announced themselves, (3) he made bizarre and
incoherent remarks both before and after his door was removed, (4) he acted
aggressively and irrationally, (5) he menaced at least two firefighters with a metal
bar, (6) he gave nonresponsive answers to Officer Grant’s standard evaluative
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questions, (7) he appeared to live alone in a dangerously cluttered apartment, and
(8) he told the EMTs that he was stressed and paranoid.
Id. at *8. However, on closer inspection, the facts of Quon could not be more different than the
case at bar. There, the plaintiff had actually barricaded himself in the apartment with a fire
hazard and law enforcement, after attempting to open the door, ultimately were forced to remove
the door from its hinges. Id. at *3. There, the evidence of the fire hazard was well-established—
law enforcement investigated the reported leak in another apartment, saw water flowing down
from the ceiling and into some of the apartment’s electrical wiring, and concluded that the leak
posed a fire hazard. Id. at *2. And, the plaintiff in Quon also acted aggressively and irrationally,
evidenced by him menacing at least two firefighters with a metal bar. Id. at *8. Accordingly, the
evidence there supported a finding that there was a substantial chance of harm to plaintiff or
others. Id. The same cannot be said here. A genuine dispute of material fact remains.
C.

Qualified Immunity

City Defendants argue that they are entitled to qualified immunity on the unreasonable
seizure claim. (City Defs.’ Mem. 14–15.) The Court disagrees.
Qualified immunity shields a government officer from liability under § 1983 “if he had
‘arguable probable cause’ to arrest the plaintiff.” Myers, 819 F.3d at 632 (citation omitted).
“Arguable probable cause 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. at 633 (quoting Escalera v. Lunn, 361 F.3d 737,
743 (2d Cir. 2004)); Mara v. Rilling, 921 F.3d 48, 73 n.16 (2d Cir. 2019).
For the reasons set forth above, there are disputed issues of material fact as to whether
there was arguable probable cause to support the seizure. Namely, there are disputes as to
whether an officer of reasonable competence would have believed that Plaintiff was a likely a
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danger to herself or others given that she had no weapons, there was no evidence of self-harm,
she did not actually barricade herself in with any fire hazard, and evidence that she was
“physically abusive” is ambiguous at best. Accordingly, qualified immunity is not warranted.
CONCLUSION
For the foregoing reasons, Park City Defendants’ motion for summary judgment is
GRANTED and the § 1981 claim against them is dismissed. City Defendants’ motion for
summary judgment is GRANTED in part and DENIED in part and the § 1983 claim for
warrantless entry is dismissed. The § 1983 claim for unreasonable seizure remains.

SO ORDERED.
Dated: Brooklyn, New York
March 31, 2021

/s/ LDH
LASHANN DEARCY HALL
United States District Judge

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