Kleinfeldt v. City of New York et al

Filing 61

MEMORANDUM AND ORDER denying 37 Motion for Summary Judgment. Ordered by Judge I. Leo Glasser on 3/16/2021. (Kessler, Stanley)

Case 1:17-cv-04323-ILG-VMS Document 61 Filed 03/16/21 Page 1 of 5 PageID #: 691

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
WILLIAM KLEINFELDT,
MEMORANDUM & ORDER
17-CV-4323 (ILG) (JO)

Plaintiff,
v.
THE CITY OF NEW YORK, NEW YORK
CITY POLICE DEPARTMENT, PO YLKA
MORALES, PO HUGO ORTEGA, UC 217,
UC 52, SERGEANT ERIC FRANCIS,
Defendants.
GLASSER, Senior United States District Judge:

Plaintiff William Kleinfeldt brings this Section 1983 action against the City of New York
and its police officers for the use of excessive force and malicious prosecution. (Compl. ¶¶ 18–
43). 1
Pending before the Court is Defendants’ motion for summary judgment. For the reasons
stated below, the motion is DENIED.
BACKGROUND
The following facts are undisputed unless otherwise noted. On April 21, 2015, Defendants
conducted a “buy and bust” operation near the public housing building located at 108 Christopher
Avenue, Brooklyn, New York. 2 (ECF No. 47 ¶¶ 1–6). An undercover officer (“UC”) engaged one
Plaintiff has previously withdrawn his federal claims for false arrest and Monell liability, his
federal malicious prosecution claim against defendant Morales, and his state law claims for false
arrest and excessive force.
2
A “buy and bust” operation is a law enforcement scheme, wherein an undercover officer engages
in narcotic related transactions to purchase drugs and the individual selling the narcotics is
subsequently arrested. (ECF No. 38 ¶ 4). Undercover officers that participate in “buy and bust”
operations are designated as either the “primary” or the “ghost”; generally, the “primary” officer
is the officer trying to purchase the drugs while the “ghost” officer is supposed to monitor the
primary officer’s actions and relay the observations to the team. (Id. ¶ 5).
1

1

Case 1:17-cv-04323-ILG-VMS Document 61 Filed 03/16/21 Page 2 of 5 PageID #: 692

Lorna Emaengua to buy crack cocaine for him using pre-recorded money. (Id. ¶ 7). Emaengua
then entered the building lobby to make the buy. (Id. ¶ 22). The undercover officer waited outside
and, according to his deposition testimony, observed the lobby through the outer door window.
(Id. ¶¶ 24–25). He testified that he witnessed a transaction between Plaintiff and Emaengua, which
Plaintiff denies. (ECF No. 47 ¶ 28–30). Emaengua then left the lobby and allegedly showed the
drugs to the undercover officer. (Id. ¶¶ 38–42).
The parties dispute what happened next. The undercover officer testified that Plaintiff and
another individual left the lobby, followed him, pushed him, and Plaintiff said “I am going to blow
your fucking head off. Where’s the fucking money?” (Id. ¶¶ 45–48). He also testified that he felt
an object which he believed might be a gun “poking and prodding him.” (Id. ¶¶ 49–50). Plaintiff
denies the undercover officer’s entire account of that event. (ECF No. 47 ¶¶ 45 –56).
The undercover officer then informed Detectives Ylka Morales and Hugo Ortega, who
were waiting nearby in an unmarked police vehicle, that he was the target of an attempted robbery.
(Id. ¶¶ 56, 60–62).
Detectives Morales and Ortega then approached the lobby where Plaintiff threatened to
“spray” them. 3 (Id. ¶¶ 61–65). Detective Ortega identified himself as a police officer, punched
Plaintiff in the stomach, and forced him to the ground. (Id. ¶¶ 80–84). The video recording of that
event plainly reveals that Plaintiff had his hands in the air when Detective Ortega punched him.
(ECF No. 39 Ex. H, 11:09:35–11:09:40). Plaintiff also testified that Detective Morales then
approached him and kicked him twice in the face, which was not captured on the video. (Id. ¶ 179).

3

Plaintiff does not dispute that “spray” means to shoot a gun at someone. (Id. ¶ 68).
2

Case 1:17-cv-04323-ILG-VMS Document 61 Filed 03/16/21 Page 3 of 5 PageID #: 693

Detective Ortega testified that he recovered one bag of marijuana on which Plaintiff was lying.
(ECF No. 39 Ex. B, 50:25, 51:1-11, 62:19-22).
Plaintiff was later indicted for Criminal Possession of a Controlled Substance in the Third
Degree; Attempted Criminal Sale of a Controlled Substance in the Third Degree; Attempted
Criminal Sale of a Controlled Substance in the Fifth Degree; Attempted Robbery in the First
Degree; Attempted Robbery in the Second Degree; Attempted Robbery in the Third Degree;
Attempted Petit Larceny; Criminal Possession of a Controlled Substance in the Seventh Degree;
Unlawful Possession of Marihuana (violation). (ECF No. 39 Ex. O). On August 28, 2018, all
charges were dismissed following the District Attorney’s discovery of surveillance video of the
incident that cast doubt on the events as described by the police officers. (ECF No. 46 Exs. 9-10).
LEGAL STANDARD
“A motion for summary judgment must be granted if there is no genuine issue as to any
material fact and the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c);
see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). “An issue of fact is genuine if
the evidence is such that a reasonable jury could return a verdict for the nonmoving party. A fact
is material if it might affect the outcome of the suit under the governing law.” Fincher v.
Depository Trust & Clearing Corp., 604 F.3d 712, 720 (2d Cir. 2010) (citations omitted). “In
making this determination, the Court must construe the facts in the light most favorable to the nonmoving party and must resolve all ambiguities and draw all reasonable inferences against the
movant.” Fireman's Fund Ins. Co. v. Great Am. Ins. Co. of New York, 822 F.3d 620, 631 (2d Cir.
2016) (internal quotation marks omitted).
DISCUSSION
I.

Excessive Force

3

Case 1:17-cv-04323-ILG-VMS Document 61 Filed 03/16/21 Page 4 of 5 PageID #: 694

Defendants seek summary judgment on the excessive force claim against Detective Ortega,
for punching plaintiff in the stomach. (Def’s. Mem. 28–31). A police officer violates the Fourth
Amendment “if the amount of force he uses in effectuating an arrest is objectively unreasonable
in light of the facts and circumstances confronting the officer.” Lennox v. Miller, 968 F.3d 150,
155 (2d Cir. 2020) (internal quotation marks and alterations omitted) (citing Graham v. Connor,
490 U.S. 386, 397 (1989)).
The video evidence alluded to above could lead a reasonable jury to conclude that the force
used by Detective Ortega was unreasonable. Similarly, Detective Ortega’s asserted defense of
qualified immunity is not available.
Accordingly, Defendants’ motion for summary judgment is denied with respect to the
excessive force claim against Detective Ortega.
II.

Malicious Prosecution
To succeed with a Section 1983 claim for malicious prosecution, Plaintiff must show: “(1)

the initiation or continuation of a criminal proceeding against plaintiff; (2) termination of the
proceeding in plaintiff's favor; (3) lack of probable cause for commencing the proceeding; and (4)
actual malice as a motivation for defendant’s actions.” Manganiello v. City of New York, 612 F.3d
149, 160–61 (2d Cir. 2010); Lanning v. City of Glens Falls, 908 F.3d 19, 25 (2d Cir. 2018). Each
of these elements are addressed below.
Plaintiff has met the initiation element because a criminal proceeding was commenced, and
he has met the favorable termination element because the case was later dismissed in a manner not
inconsistent with his innocence.
The question of probable cause in this case should be decided by a jury. Any presumption
of probable cause generated by the grand jury’s indictment is negated because police officers

4

Case 1:17-cv-04323-ILG-VMS Document 61 Filed 03/16/21 Page 5 of 5 PageID #: 695

made multiple statements that have been contradicted by surveillance video of the incident. (See
ECF No. 46) These discrepancies contributed to the dismissal of Plaintiff’s prosecution, in part
because they “compromised [the prosecution’s] witnesses.” (Id. at 6). Because malice may be
inferred from the lack of probable cause, the final element should be decided by a jury as well.
Accordingly, Defendants motion for summary judgment is denied with respect to
Plaintiff’s federal and state malicious prosecution claims.
CONCLUSION
For the foregoing reasons, Defendants’ motion for summary judgment is DENIED.

SO ORDERED.
Dated:

Brooklyn, New York
March 16, 2021
/s/
I. Leo Glasser

5

U.S.D.J.