Vassiliou v. City of New York et al
MEMORANDUM & ORDER: Defendants' motion for partial summary judgment 47 is granted in its entirety. ORDER ATTACHED. Ordered by Judge Eric R. Komitee on 1/7/2021. (Guy, Alicia)
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MEMORANDUM & ORDER
-againstTHE CITY OF NEW YORK, POLICE
DETECTIVE PHILIP VACCARINO, POLICE
DETECTIVE VINCENT AGOSTINO, et al.,
ERIC KOMITEE, United States District Judge:
This case concerns allegations of police misconduct in
connection with the arrest of Plaintiff Lambros Vassiliou.
Plaintiff, through counsel, brings thirteen claims under
42 U.S.C. § 1983 and state law against the City of New York and
the six NYPD officers referenced in this Order.
for summary judgment on all claims except for the Section 1983
claim against the two officers involved in Plaintiff’s initial
stop, and his negligence claims against all Defendants.
reasons explained below, Defendants’ motion is granted in full.
The unlawful-stop and negligence claims, however, will proceed.
Plaintiff was searched, arrested, and charged with
prescription-drug-related offenses that were later dismissed.
He alleges that the Defendants violated the Constitution at
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nearly every stage of the process, from the initial traffic stop
to his ultimate prosecution.
The following facts are derived from Plaintiff’s
deposition testimony, unless otherwise noted.
On November 12,
2016, police officers Philip Vaccarino and Jelson Goyco pulled
Plaintiff over as he was driving his two children to his
The purported reason for the stop was that
Plaintiff’s car — one of the four original models of the “KITT
car” used in the 1980s television show Knight Rider — was
“observed [with] temp NYS reg and CA plate on car.”
Pl.’s Ex. D
at 1, ECF No. 54-4 (“Controlled Substance/Marihuana Data
At his deposition, Plaintiff explained that the car
was specially registered as a “movie vehicle” in California, but
not in New York.
Pl.’s Ex. B at 38:9-20, ECF No. 54-2 (“Pl.’s
It bore a “movie plate” on the rear that appeared the
same as a regular California license plate.
Once stopped, the officers witnessed Plaintiff “grab a
pill bottle from on the center armrest and place [it] into [his]
Sheet at 1.
Pl.’s Ex. D, Controlled Substance/Marihuana Data
Plaintiff denies this.
When the officers arrived,
however, they asked Plaintiff to step out of the vehicle, and it
is undisputed that Plaintiff cooperated.
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Plaintiff joined Officer Goyco behind the car, where
Goyco asked him whether he had any guns, heroin, or prescription
pills on him.
Plaintiff replied that he had prescription
medications but nothing else.
When Officer Goyco asked “can I
see them,” Plaintiff replied “sure.”
Pl.’s Ex. B, Pl.’s Dep. at
Plaintiff then reached into his coat pocket and
presented three items, which were all prescribed to him: a
prescription asthma pump, and two pill bottles — one of which
was for suboxone pills (a pain reliever prescribed for
Plaintiff’s recent throat cancer surgery).
pill bottle labeled for suboxone pills, however, contained
twenty-one suboxone strips as well.
Defs’ Ex. J at 1, ECF No.
50-10 (“NYPD Property Clerk Invoice”); but see Defs’ Ex. D,
Controlled Substance/Marihuana Data Sheet at 1 (stating that
this pill bottle was “unlabeled”).
buprenorphine, which is a controlled substance.
not present a prescription for the suboxone strips, though he
contends that the officers did not ask for one.
Pl.’s Rule 56.1
Statement at 4-5, ECF No. 53.
These pill bottles led to Plaintiff’s arrest.
Plaintiff handed the pill bottles to Officer Goyco, Goyco opened
each bottle and then returned them to Plaintiff, who placed the
medications back in his coat pocket.
Pl.’s Ex. B., Pl.’s Dep.
When asked, Plaintiff told Officer Goyco that the
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medicines were his, as the name on the labels indicated.
After an exchange with Officer Vaccarino, Officer Goyco
then reached into Plaintiff’s pocket, removed the pill bottles,
and arrested him — all without explanation.
After handcuffing him, the officers contacted their
supervisor, Sergeant Paul Farella, to relay the circumstances of
Two unmarked vehicles — a police van and a sedan —
containing Officers Farella, Leonid Shatkin, Vincent
Setteducato, Vincent Agostino, and Michael Fahmy (not a
Defendant), arrived moments later.
¶ 26, ECF No. 53.
Pl.’s Rule 56.1 Statement at
Sergeant Farella, as the supervising officer,
approved the arrest when he arrived.
Some of these officers “antagoniz[ed]” Plaintiff after
he was handcuffed.
Pl.’s Ex. B, Pl.’s Dep. at 62:21-25.
Plaintiff’s ex-wife picked up his children, one officer told
Plaintiff, “[W]e are taking your car, man.
We’re gonna have
some f--king fun with that.”; another officer replied, “No, I’m
going to drive it.
I’m going to drive it.”
Before departing, Plaintiff observed the police
officers “going through [his] car with no permit.”
According to Plaintiff, his “abuse” continued after
the officers placed him in the back of the police van.
¶ 51, ECF No. 31.
Its rear compartment, where Plaintiff sat,
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contained two long benches on either side.
Dep. at 65:17-24.
Pl.’s Ex. B, Pl.’s
The officers placed Plaintiff on one of the
benches and fastened his seatbelt.
This seatbelt, Plaintiff
claims, was merely for “cosmetics.”
loosely across the bench with “no tension” to restrain him.
With his hands cuffed behind his back and no
restraints to his front, Plaintiff claims Officers Setteducato
(driver) and Shatkin (passenger) gave him a “rough ride.”
did so for approximately three hours.
however, that this timeline is standard procedure — namely, that
it is “common” to complete a scheduled patrol even after
detaining someone in their vehicle, even for three or more
hours, and that there was no “specific reason” why this happened
to Plaintiff in particular.
Defs’ Ex. G at 21:22-25; 44:23-
45:19, ECF No. 50-7 (“Setteducato Dep.”).
Plaintiff reported medical issues early in the ride.
The first was his blood pressure.
He told Officers Setteducato
and Shatkin that he needed his “blood pressure medicine” in
light of a heart attack he had suffered two years earlier.
Pl.’s Ex. B, Pl.’s Dep. at 71:6-25 (telling the officers, “I
need my blood pressure medicine or I’m going to pop because I
had a heart attack in 2014,” and that he could “run the risk of
having a stroke”).
The officers complied with his request.
They stopped their patrol to retrieve Plaintiff’s blood pressure
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medicine (amlodipine) from Sergeant Farella and then
administered the pills to Plaintiff before continuing on.
This is when the officers began driving “really,
Shortly after arresting
another suspect, Officer Setteducato activated the van’s sirens
and turned suddenly to pull someone else over.
Although Officer Setteducato told him to “hang on,” Plaintiff
He struck the right side of his face, neck,
and shoulder; he had trouble getting back up, and rolled
helplessly for five to ten minutes.
Id. 75:23-56:2; 77:18-23;
All told, Plaintiff fell two more times.
After one fall, he told the officers, as he did
“multiple times that night,” that “something’s not right.”
But they “talk[ed] him out of going to seek medical
The officers booked him at the 121st Precinct, where
they took his photograph.
Id. 80:3-13; 83:3-6.
show no visible injuries to his head or neck.
ECF No. 50-9 (“NYPD Mugshot Pedigree”).
Defs’ Ex. I at 1,
that the Defendants ignored another request for medical
assistance at this precinct, though his testimony on this point
Id. 88:20-89:19; but see id. 82:2-9 (when
asked whether he requested medical attention at the 121st
Precinct, Plaintiff stated that he “requested medical attention
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in the van and then I requested medical attention again when we
stopped at the [second precinct]”); id. 91:11-14 (testifying
that the second time he asked for help was “after I tipped over
[in the van], after they gave me the medication at the 121st
Plaintiff’s pleadings and testimony are somewhat
vague as to the nature of these requests, but he asserted that
he was concerned about his blood pressure and the injuries he
sustained in the van.
After “at least two hours” at the first station, the
same officers drove him to the second — the 120th Precinct, where
he would stay overnight.
On that drive, one of
the officers resumed the conversation about Plaintiff’s KITT
He asked questions about it, such as how much it would
cost to buy, before leaving Plaintiff at the next stationhouse.
Plaintiff testified that he made another request for
medical assistance, though his deposition testimony is
inconsistent regarding when he did so.
See id. 82:2-6 (he
“requested medical assistance” “in the van” and “again” “at the
120[th Precinct]”); id. 91:15-19 (he requested medical assistance
“on the way to the 120th Precinct”); id. 90:8-10 (he requested
medical assistance “when we were in the 120, but not in the
He did not testify as to what medical assistance he
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After Defendants left him at the 120th Precinct
overnight, he told an unidentified person there that he
“d[idn’t] feel well” and wanted “medical attention,” but again
Plaintiff acknowledges, though,
that he did not tell his lawyer about any medical issues when
they spoke the next morning.
Plaintiff was arraigned around noon the next day.
was charged under N.Y. Penal Law Section 220.03 (Criminal
possession of a controlled substance in the seventh degree) 1 and
N.Y. Public Health Law Section 3345 (Possession of controlled
substances by ultimate users [outside] original container). 2
Officer Vaccarino transmitted the arrest paperwork to the
Richmond County District Attorney’s Office.
Pl.’s Ex. F, ECF
No. 54-6 (“Misdemeanor Complaint and Supporting Deposition”).
The judge released Plaintiff on his own recognizance; all
charges were later dropped on motion of the prosecution.
Section 220.03 provides that
possession of a controlled substance
knowingly and unlawfully possesses a
possession of a controlled substance
“[a] person is guilty
in the seventh degree
in the seventh degree
when he or she
. . . Criminal
is a Class A
Section 3345 provides that:
Except for the purpose of current use . . . it shall be unlawful for an
ultimate user of controlled substances to possess such substance
outside of the original container in which it was dispensed. Violation
of this provision shall be an offense punishable by a fine of not more
than fifty dollars.
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Ex. N, ECF No. 54-14 (“Criminal Court Certificate of
Plaintiff reported that the aftermath of his arrest
was severe, both medically and emotionally.
applied for an order of protection.
He lost custody of his
children, and their relationship has never recovered.
medical consequences, he claims, were also “unbearable.”
Ex. B, Pl.’s Dep. at 113:17-21.
But the medical evidence is
somewhat less clear.
According to Plaintiff, the impact he sustained in the
back of the van caused serious complications that surfaced over
a year later.
When he got home, he noticed
swelling in his shoulder, neck, and back.
days later, he visited a walk-in orthopedic clinic.
Following x-rays, the doctors noted he had a “right
shoulder injury[,] possibly a rotator cuff tear and right wrist
Defs’ Ex. A at 2, ECF No. 50-1 (“November 17, 2016
They did not prescribe medication, but gave
him a “carpal tunnel brace for his wrist,” and suggested “some
therapy for the shoulder.”
This is the only diagnosis in
After this, Plaintiff stated that he received
physical therapy sessions from his girlfriend (who had some
training in physical therapy).
Pl.’s Ex. B, Pl.’s Dep. at
Then, roughly eighteen months later, he was rushed
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to the hospital because he “couldn’t move [his] left side.”
According to Plaintiff, doctors at the Mount Sinai
Hospital found that his spinal discs had shifted, which required
Plaintiff testified that these
doctors offered him no “guarantees” that he would “survive this
operation,” id. 106:11-21, but he did not produce any medical
records related to this procedure.
After surgery, Plaintiff
regained “partial use” of his left side, but he still suffers
persistent pain, restrictions on his mobility, and loss of other
Id. 106:22-107:7; 113:2-114:14.
He has not,
however, presented medical or expert testimony regarding the
cause of these problems.
At his deposition, he testified that
the injuries from the van are responsible. 3
Summary judgment is appropriate when “the movant shows
that there is no genuine dispute as to any material fact” and
that he “is entitled to judgment as a matter of law.”
Civ. P. 56(a).
A material fact is one that “can affect the
outcome under the applicable substantive law.”
Henderson, 89 F.3d 75, 79 (2d Cir. 1996).
A genuine dispute is
one that can “reasonably be resolved in favor of either party.”
At his deposition, Plaintiff acknowledged that he was hit by a car in
the “knees” over ten years earlier (in 2008) but recalled no other relevant
injuries. Id. 110:2-112:16.
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Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).
performing this analysis, the Court must resolve all ambiguities
and draw all inferences in favor of the non-moving party.
v. Prudential Residential Servs., Ltd. P’ship, 22 F.3d 1219,
1223 (2d Cir. 1994).
“If, in this generous light, a material
issue is found to exist, summary judgment is improper.”
Nationwide Life Ins. Co. v. Bankers Leasing Ass'n, 182 F.3d 157,
160 (2d Cir. 1999).
The moving party may establish that there is no
genuine dispute “by showing that little or no evidence may be
found in support of the nonmoving party’s case.”
Gallo, 22 F.3d
at 1223-24 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325
If the moving party meets this burden, the non-moving
party “must come forward with specific facts showing that there
is a genuine issue for trial.”
68, 73 (2d Cir. 1998).
LaBounty v. Coughlin, 137 F.3d
However, the non-moving party “must do
more than simply show that there is some metaphysical doubt as
to the material facts, and may not rely on conclusory
allegations or unsubstantiated speculation.”
Brown v. Eli Lilly
& Co., 654 F.3d 347, 358 (2d Cir. 2011) (internal citations and
If “no rational finder of fact could find
in favor of the nonmoving party because the evidence to support
its case is so slight, summary judgment must be granted.”
(internal quotations omitted).
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Defendants move for summary judgment on all of
Plaintiff’s claims 4 except his challenge to the legality of the
initial traffic stop and claims for negligence.
the Court has no reason to decide, at this stage, whether the
initial traffic stop was lawful.
The only question at this
point is whether Plaintiff’s claims that arose after the stop
survive summary judgment.
The City’s Liability
Because Plaintiff brings each of his Section 1983
claims against the City, the Court first considers whether
municipal liability attaches here.
Governing precedent affords
municipalities certain protections from Section 1983 liability,
notwithstanding the merits of the underlying claims.
reasons explained below, this protective standard prevents
Plaintiff from pressing his claims against the City.
The Supreme Court has imposed a series of requirements
for establishing municipal liability under Section 1983.
Monell v. Dep’t of Soc. Servs. of N.Y.C., 436 U.S. 658, 694-95
(1978), “a local government may not be sued under [Section] 1983
for an injury inflicted solely by its employees or agents.”
4 Plaintiff brings claims under Section 1983 for false arrest, malicious
prosecution, malicious abuse of process, unlawful search, excessive force,
and deliberate indifference to medical needs; he also brings various statelaw tort claims.
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“Instead, it is when execution of a government’s policy or
custom, whether made by its lawmakers or by those whose edicts
or acts may fairly be said to represent official policy,
inflicts the injury that the government as an entity is
responsible under [Section] 1983.”
Id. at 694.
Plaintiff attempts to satisfy Monell by alleging that
New York City maintained a “custom or policy” of, among other
things, “falsely stopping, frisking and arresting individuals,”
and “using excessive and unjustified force.”
Compl. ¶ 101.
This is an exceptionally broad allegation, and “[w]hen a
plaintiff tries to fall within Monell by defining the alleged
‘custom or policy’ as broadly as plaintiff ha[s] here, he
takes an almost impossible burden upon himself.”
City of New York, 766 F. Supp. 2d 399, 408 (E.D.N.Y. 2011).
Plaintiff attempts to meet this burden in three ways: first, he
claims these practices are “so persistent and widespread that
[they] constitute a custom through which constructive notice
is imposed upon policymakers”; second, he argues that the City
failed to “properly train or supervise” its police officers; and
third, he claims Sergeant Farella is a “municipal official
with decision-making authority” whose approval of the actions in
this case bound the City.
See generally Moran v. Cnty. of
Suffolk, No. 11-CV-3704, 2015 WL 1321685, at *9 (E.D.N.Y. Mar.
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24, 2015) (listing the bases for Monell liability).
arguments are without merit.
Plaintiff has not successfully produced evidence that
the alleged misconduct is “sufficiently widespread and
persistent to support a finding that they constituted a custom,
policy, or usage.”
Matusick v. Erie Cnty. Water Auth., 757 F.3d
31, 62 (2d Cir. 2014).
The only evidence Plaintiff presents is
a list of federal and state lawsuits filed against the
individual Defendants in recent years.
See Pl.’s Ex. R, ECF No.
54-18 (“Printouts from https://capstat.nyc/officer”).
document provides no supporting detail about the nature of those
lawsuits, or whether constitutional violations were determined
to have occurred. 5
Because the record does not “show that there
[was] any violation of constitutional rights” in these actions,
“there is no evidence of the predicate fact underlying the
alleged custom and policy.”
Rasmussen, 766 F. Supp. 2d at 409
5 Indeed, this document is so bare that the Court cannot even locate
many of the referenced cases, given the absence of docket numbers. Those
that the Court was able to find, however, involved no finding of liability
against the named Defendants. See Pandiani v. City of New York, 15-CV-6346,
2019 WL 5703909 (E.D.N.Y. Nov. 5, 2019) (dismissing for failure to
prosecute); Smith v. City of New York, No. 14-CV-9069, 2016 WL 5793410
(S.D.N.Y. Sept. 30, 2016) (granting defendants’ motion for summary judgment
on false-arrest claim); Cortes v. City of New York, 148 F. Supp. 3d 248
(E.D.N.Y. 2015) (granting partial summary judgment in favor of defendants
before case settled); Walker v. City of New York, No. 14-CV-0808, 2015 WL
4254026 (S.D.N.Y. July 14, 2015) (dismissing certain claims before case
settled); Pluma v. City of New York, 13-CV-2017, 2016 WL 1312087 (S.D.N.Y.
Mar. 31, 2016) (dismissing federal claims and subsequently declining
supplemental jurisdiction over remaining state-law claims); but see Burgess
v. City of New York, No. 15-CV-5525, 2018 WL 1581971 (E.D.N.Y. Mar. 29, 2018)
(denying partial summary judgment; case is pending trial).
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(noting that “[p]laintiffs seem to proceed on the assumption
that if a complaint, whether administrative or by way of a civil
action, is filed against an officer, it follows ipso facto that
he is guilty of a constitutional violation”); Collins v. City of
New York, 923 F. Supp. 2d 462, 479 (E.D.N.Y. 2013) (holding that
a “litany of other police-misconduct cases” discussed in the
plaintiff's complaint “[were] insufficient to make a plausible
case for Monell liability” because they either were irrelevant
to the misconduct alleged, post-dated such misconduct, or
“involve[d] something less (settlements without admissions of
liability and unproven allegations) than evidence of
misconduct”); see also Forte v. City of New York, No. 16-CV-560,
2018 WL 4681610, at *10 (S.D.N.Y. Sept. 28, 2018) (dismissing
Monell claim based on lawsuits filed against municipality, and
collecting cases finding the same).
Plaintiff’s claim for failure to supervise and
discipline fails for similar reasons.
“It is well established
that a plaintiff may [allege Monell claims] by showing that [the
City] was deliberately indifferent to the training, supervision,
or discipline of its employees.”
Abreu v. City of New York, 657
F. Supp. 2d 357, 360 (E.D.N.Y. 2009).
To assert this claim,
however, Plaintiff must show that “the need for more or better
supervision to protect against constitutional violations was
Vann v. City of New York, 72 F.3d 1040, 1049 (2d Cir.
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Although an “obvious need may be demonstrated through
proof of repeated complaints of civil rights violations,” id.,
Plaintiff presents “no evidence as to the municipality’s
response to any prior incident of misconduct,” Selvaggio v.
Patterson, 93 F. Supp. 3d 54, 79 (E.D.N.Y. 2015), let alone that
the City made “no meaningful attempt . . . to investigate or to
forestall further incidents.”
Vann, 72 F.3d at 1049.
Plaintiff’s failure-to-train claim, which presents an
alternative route to establishing “deliberate indifference,” is
also without merit.
“[T]he inadequacy of police training may
serve as a basis for [Section] 1983 liability only where the
failure to train amounts to deliberate indifference to the
rights of persons with whom the police come into contact.”
of Canton v. Harris, 489 U.S. 378, 390 (1989).
claim fails because “[i]t is impossible to prevail” on such a
theory “without any evidence as to . . . how the training was
conducted, how better or different training could have prevented
the challenged conduct, or how a hypothetically well-trained
officer would have acted under the circumstances.”
v. Town of W. Hartford, 361 F.3d 113, 130 (2d Cir. 2004)
(internal quotations omitted).
Plaintiff has adduced no such
Finally, the claim that Sergeant Farella is a
policymaking official under Monell and its progeny is incorrect
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as a matter of law.
“Municipal liability attaches only where
the decisionmaker possesses final authority to establish
municipal policy with respect to the action ordered.”
v. City of Cincinnati, 475 U.S. 469, 481 (1986).
sergeant, even if the ranking officer on a matter, is not a
McKeefry v. Town of Bedford, No 18-CV-10386,
2019 WL 6498312, at *5 (S.D.N.Y. Dec. 2, 2019); Green v. City of
Mt. Vernon, 96 F. Supp. 3d 263, 303 (S.D.N.Y. 2015) (identifying
“no basis” to conclude that police sergeant had “final
policymaking authority with respect to how . . . police officers
were to carry out searches”).
The case on which Plaintiff
relies is inapposite because it involved a county sheriff and
other legal and evidentiary factors absent here.
See Jeffes v.
Barnes, 208 F.3d 49, 62-64 (2d Cir. 2000) (finding genuine
dispute as to whether county sheriff was policymaking official
based on evidence regarding his privileges and state-law
designations of authority).
Plaintiff’s only remaining Section 1983 claims are
against the individual police officers.
Under Supreme Court and
Second Circuit precedent, police officers are afforded broad
legal protection by the doctrine of qualified immunity, which
“protects government officials from suit if their conduct does
not violate clearly established statutory or constitutional
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rights of which a reasonable person would have known.”
v. City of Schenectady, 728 F.3d 149, 154 (2d Cir. 2013)
(internal quotations omitted).
“This is a doctrine that seeks
to balance the twin facts that civil actions for damages may
offer the only realistic avenue for vindication of
constitutional guarantees, and that such suits nevertheless can
entail substantial social costs, including the risk that fear of
personal monetary liability and harassing litigation will unduly
inhibit officials in the discharge of their duties.”
Parmley, 465 F.3d 46, 55 (2d Cir. 2006) (internal quotations
To determine whether the doctrine applies, a court
must assess: “(1) whether [a] plaintiff has shown facts making
out [a] violation of a constitutional right; (2) if so, whether
that right was ‘clearly established’; and (3) even if the right
was ‘clearly established,’ whether it was ‘objectively
reasonable’ for the officer to believe the conduct at issue was
Gonzalez, 728 F.3d at 154.
reasonableness test is met — and the defendant is entitled to
qualified immunity — if officers of reasonable competence could
disagree on the legality of the defendant’s actions.”
v. N.Y.C. Transit Auth., 215 F.3d 208, 216 (2d Cir. 2000)
(internal quotations omitted).
This standard protects “all but
the plainly incompetent or those who knowingly violate the law.”
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Malley v. Briggs, 475 U.S. 335, 341 (1986).
individual Defendants have invoked qualified immunity for each
of Plaintiff’s Section 1983 claims, the Court reviews the merits
of each claim through this lens.
To succeed on a claim for false arrest under Section
1983, a plaintiff must prove that: “(1) the defendant intended
to confine the plaintiff; (2) the plaintiff was conscious of the
confinement; (3) the plaintiff did not consent to the
confinement; and (4) the confinement was not otherwise
Bernard v. United States, 25 F.3d 98, 102 (2d Cir.
1994) (setting forth the elements of false arrest under state
law); see also Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996)
(stating that a false-arrest claim under Section 1983 is
“substantially the same as a claim for false arrest under New
Probable cause is a “complete defense” to claims of
See Covington v. City of New York, 171 F.3d 117,
122 (2d Cir. 1999).
Probable cause exists “when the arresting
officer has knowledge or reasonably trustworthy information
sufficient to warrant a person of reasonable caution in the
belief that an offense has been committed by the person to be
Singer v. Fulton Cnty. Sheriff, 63 F.3d 110, 119 (2d
Cir. 1995) (internal quotations omitted).
Probable cause does
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not require “hard certainties” but instead “requires only facts
establishing the kind of fair probability on which a reasonable
and prudent person, as opposed to a legal technician, would
Figueroa v. Mazza, 825 F.3d 89, 99 (2d Cir. 2016)
(internal quotations omitted).
“[W]here there is no dispute as
to what facts were relied on to demonstrate probable cause, the
existence of probable cause is a question of law for the court.”
Walczyk v. Rio, 496 F.3d 139, 157 (2d Cir. 2007).
arresting officer will . . . be entitled to qualified immunity
from a suit for damages if he can establish that there was
arguable probable cause to arrest.”
Escalera v. Lunn, 361 F.3d
737, 743 (2d Cir. 2004) (internal quotations omitted).
Although Plaintiff was arrested for a technical
violation, it was not unreasonable to conclude — indeed, it was
likely correct — that Plaintiff’s actions violated the literal
terms of Section 3345 of the New York Public Health Law.
section provides that “[e]xcept for the purpose of current use
by the person . . . for whom such substance was prescribed or
dispensed, it shall be unlawful for an ultimate user of
controlled substances to possess such substance outside of the
original container in which it was dispensed.”
N.Y. Pub. Health
Case 1:18-cv-00779-EK-VMS Document 62 Filed 01/07/21 Page 21 of 44 PageID #: 866
L. § 3345. 6
Multiple courts in this Circuit have found probable
cause — or “arguable probable cause,” in the qualified immunity
analysis — in similar circumstances.
See, e.g., Cortes v. City
of New York, 148 F. Supp. 3d 248, 254 (E.D.N.Y. 2015) (“It
cannot be denied that plaintiff literally violated the language
of Public Health Law [Section] 3345 — a person cannot possess a
controlled substance outside of its prescription container.”);
see also Salvador v. City of New York, 15-CV-5164, 2016 WL
2939166, at *6 (S.D.N.Y. May 19, 2016) (probable cause — “or at
least arguable probable cause” — existed even though pills were
in a bag next to the original container and arrestee claimed he
had a valid prescription); Deanda v. Hicks, 137 F. Supp. 3d 543,
570-71 (S.D.N.Y. 2015) (finding probable cause “arguably”
existed where plaintiff carried prescription pills in an
unmarked bottle while driving to return the pills to her
Where, as here, Plaintiff carried controlled
substances — the twenty-one suboxone strips — in a pill bottle
labeled for a different prescription drug — suboxone pills — it
was at least arguable that probable cause existed for his
This defeats Plaintiff’s false-arrest claim.
6 Plaintiff was also charged with violating Section 220.03 of the New
York Penal Law — forbidding the “knowing and unlawful possess[ion] of a
controlled substance.” N.Y. Penal L. § 220.03. Section 220.03 “effectively
‘piggy-backs’ on [S]ection 3345 by taking its ‘unlawful[ness]’ element from
that statute.” Cortes v. City of New York, 148 F. Supp. 3d 248, 253
Case 1:18-cv-00779-EK-VMS Document 62 Filed 01/07/21 Page 22 of 44 PageID #: 867
Plaintiff argues that he is entitled to damages
because “each act” taken by the Defendants after his allegedly
improper traffic stop was unlawful, including the search that
led to the discovery of the suboxone strips.
to Summary Judgment at 10-11, ECF No. 52 (“Opp.”).
essentially a fruit-of-the-poisonous tree argument, and that
doctrine has no applicability in the Section 1983 context.
Jenkins v. City of New York, 478 F.3d 76, 91 n.16 (2d Cir. 2007)
(in an action for damages under Section 1983, “the fruit of the
poisonous tree doctrine cannot be invoked”).
things, this means that “[v]ictims of unreasonable searches or
seizures” cannot press Section 1983 claims for “injuries that
result from the discovery of incriminating evidence and
consequent criminal prosecution.”
Townes v. City of New York,
176 F.3d 138, 148 (2d Cir. 1999); see also Arroyo v. City of New
York, 683 F. App’x 73, 75 (2d Cir. 2017) (summary order) (the
fact that incriminating evidence “was later suppressed does not
preclude a determination that there was arguable probable cause
for the arrest”); Matthews v. City of New York, 889 F. Supp. 2d
418, 434 (E.D.N.Y. 2012) (for Section 1983 claims, evidence
seized “pursuant to [an] allegedly unlawful traffic stop and
search may” nevertheless “provide probable cause” for purposes
of a false-arrest claim).
Accordingly, the Court dismisses
Plaintiff’s claim for false arrest.
Case 1:18-cv-00779-EK-VMS Document 62 Filed 01/07/21 Page 23 of 44 PageID #: 868
To prevail on a claim for malicious prosecution, a
plaintiff must show that “(1) the defendant commenced or
continued a criminal proceeding against the plaintiff; (2) the
proceeding terminated in plaintiff’s favor; (3) there was no
probable cause for the criminal proceeding; and (4) defendants
initiated the criminal proceeding out of actual malice.”
v. Fitzpatrick, 250 F. Supp. 2d 153, 154 (E.D.N.Y. 2003).
a false arrest claim, ‘the existence of probable cause is a
complete defense to a claim of malicious prosecution in New
Johnson v. City of New York, 18-CV-6256, 2020 WL
2732068, at *5 (E.D.N.Y. May 26, 2020) (quoting Savino v. City
of New York, 331 F.3d 63, 72 (2d Cir. 2003)).
determination of probable cause in the context of malicious
prosecution is essentially the same as for false arrest, except
that a claim for malicious prosecution must be evaluated in
light of the facts known or believed at the time the prosecution
is initiated, rather than at the time of arrest.”
Brown v. City
of New York, 12-CV-3146, 2014 WL 5089748, at *8 (S.D.N.Y. Sept.
30, 2014) (cleaned up).
Accordingly, “once probable cause to
arrest has been established, claims of malicious prosecution
survive only if, between the arrest and the initiation of the
prosecution, the groundless nature of the charge is made
apparent by the discovery of some intervening fact.”
Case 1:18-cv-00779-EK-VMS Document 62 Filed 01/07/21 Page 24 of 44 PageID #: 869
Tobon, 529 F. App’x 36, 38 (2d Cir. 2013) (summary order)
Because probable cause at least arguably existed for
the initial arrest and Plaintiff points to no “intervening fact”
that emerged thereafter, his claim for malicious prosecution
must be dismissed as a matter of law.
Malicious Abuse of Process
“[A] malicious-abuse-of-process claim lies against a
defendant who (1) employs regularly issued legal process to
compel performance or forbearance of some act, (2) with intent
to do harm without excuse or justification, and (3) in order to
obtain a collateral objective that is outside the legitimate
ends of the process.”
Savino, 331 F.3d at 69-70 (cleaned up).
Although “[t]he torts of malicious prosecution and abuse of
process are closely allied,” Cook v. Sheldon, 41 F.3d 73, 80 (2d
Cir. 1994), the difference between them
is that in a malicious prosecution claim the process is
issued in bad faith and without probable cause, but the
defendant intends to bring about the ordinary result of the
process, while in an abuse of process claim, the issuance
of process may be regular, valid, and lawful, but the
person using the process is interested in only
accomplishing some improper purpose that is collateral to
the object of the process and which offends the spirit of
the legal proceeding itself.
14 N.Y. PRAC., NEW YORK LAW
TORTS § 1:86.
While the existence of probable cause is not a
complete defense to claims of malicious abuse of process,
Case 1:18-cv-00779-EK-VMS Document 62 Filed 01/07/21 Page 25 of 44 PageID #: 870
Plaintiff’s claim nevertheless fails because he identifies no
“collateral objective that is outside the legitimate ends of the
process” that the Defendants sought to gain by commencing legal
Savino, 331 F.3d at 70.
Though parts of the record
suggest that the officers were motivated by a desire to engage
with Plaintiff’s “Knight Rider” car, he does not allege as much
in support of his abuse-of-process claim.
And even if this
desire motivated the initial stop and arrest, there is no
evidence that the officers facilitated his subsequent
prosecution for this purpose.
Id. at 77-78.
For these reasons,
Plaintiff’s malicious-abuse-of-process claim must be dismissed.
Plaintiff claims that the Defendants conducted an
unlawful search of his person and car.
It is undisputed that
the Defendants performed these searches without a warrant and
without Plaintiff’s consent.
Searches like these “are per se
unreasonable under the Fourth Amendment — subject only to a few
specifically established and well-delineated exceptions.”
v. United States, 389 U.S. 347, 357 (1967).
immunity shields police officers who conduct warrantless
searches so long as they could “reasonably have believed that
the search” fit within an exception to the warrant requirement.
Anderson v. Creighton, 483 U.S. 635, 641 (1987).
exceptions to the warrant requirement is a search incident to a
Case 1:18-cv-00779-EK-VMS Document 62 Filed 01/07/21 Page 26 of 44 PageID #: 871
Arizona v. Gant, 556 U.S. 332, 338 (2009).
Given the Defendants’ qualified immunity, the only question is
whether it was reasonable for them to believe the warrantless
searches fell within the search-incident-to-arrest doctrine.
The warrantless search of Plaintiff’s person satisfies
this reasonableness standard.
Although Officer Goyco reached
into Plaintiff’s pocket to retrieve the pill bottles without
Plaintiff’s consent, this occurred only after Plaintiff had
voluntarily handed him the pill bottles and Officer Goyco saw
suboxone strips in the container labeled for suboxone pills.
Pl.’s Ex. B, Pl.’s Dep. at 52:12-19 (Plaintiff testified that
when Officer Goyco first asked if he could “see” Plaintiff’s
prescription medications, Plaintiff replied “sure” and then
“reached in [his own] pocket [and] presented [his] medication”).
At that point, probable cause arguably existed to arrest
Plaintiff for the reasons explained above. 7
Because of this, the
law permitted Officer Goyco to conduct a “search incident” to
7 Plaintiff does not argue that Officer Goyco’s act of opening the pill
bottles constituted an unreasonable search under the Fourth Amendment, even
after Plaintiff voluntarily produced them. See Compl. ¶ 17 (two officers
“entered Plaintiff’s motor vehicle and conducted an unwarranted search of the
interior of said vehicle”); id. ¶ 18 (after Officer Goyco “thrust his hand
into Plaintiff’s jacket,” the officers “proceeded to improperly and illegally
search Plaintiff’s motor vehicle, again without probable cause or consent”);
Opp. at 3 (same); id. at 10 (“There was no probable cause for . . .
conducting the subject search of the plaintiff or his vehicle . . . .”); id.
at 11 (“The search of the plaintiff’s person and vehicle were unlawful as was
the stop that resulted in that search.”). Therefore the Court does not
address that issue.
Case 1:18-cv-00779-EK-VMS Document 62 Filed 01/07/21 Page 27 of 44 PageID #: 872
United States v. Robinson, 414 U.S. 218, 235
The law is clear that such searches “require no
This exception to the warrant
requirement applies even if the search occurred moments before
Officer Goyco initiated the arrest, as Plaintiff’s deposition
testimony might suggest; where an officer “clearly ha[s]
probable cause” to arrest a suspect, a search “incident to” that
arrest may shortly precede the arrest, as well as follow it.
See Rawlings v. Kentucky, 448 U.S. 98, 111 (1980) (“Where the
formal arrest followed quickly on the heels of the challenged
search of petitioner’s person, we do not believe it particularly
important that the search preceded the arrest rather than vice
Likewise, the Defendants were not “plainly
incompetent” in concluding that the warrantless search of
Plaintiff’s car was lawful.
Malley, 475 U.S. at 341.
Court precedent permits police officers to conduct warrantless
searches of vehicles in certain situations.
Arizona v. Gant, the Court “adopted a new, two-part rule under
which an automobile search incident to a recent occupant’s
arrest is constitutional (1) if the arrestee is within reaching
distance of the vehicle during the search, or (2) if the police
have reason to believe that the vehicle contains ‘evidence
relevant to the crime of arrest.’”
Davis v. United States, 564
Case 1:18-cv-00779-EK-VMS Document 62 Filed 01/07/21 Page 28 of 44 PageID #: 873
U.S. 229, 234-35 (2011).
This exception to the warrant
requirement exists “even after the arrestee has been secured and
cannot access the interior of the vehicle.”
Cooper v. City of
New Rochelle, 925 F. Supp. 2d 588, 611 (S.D.N.Y. 2013).
While there is no dispute that the first prong of Gant
(access to the vehicle) is inapplicable, “officers of reasonable
competence could disagree” as to whether the second exception
Malley, 475 U.S. at 341.
Indeed, some courts
have opined that arrests for drug offenses automatically allow
officers to search the arrestee’s vehicle so long as the
arrestee recently occupied it. 8
See Thornton v. United States,
541 U.S. 615, 632 (2004) (Scalia, J., concurring) (following an
arrest for a drug offense, it is “reasonable [for police
officers] to believe that further contraband or similar evidence
relevant to the crime for which [the arrestee] had been arrested
might be found in the vehicle from which he had just alighted
and which was still within his vicinity at the time of arrest”);
United States v. Mitchell, No. 16-10112, 2017 WL 552732, at *9
(D. Kan. Feb. 10, 2017) (after finding drugs in the defendant’s
It bears noting that the search of Plaintiff’s coat pocket also
revealed he had concealed a bottle of Xanax — a second substance — when
handing his medications to Officer Goyco for inspection. Pl.’s Ex. L at 3,
ECF No. 54-12 (“NYPD Prisoner Property Receipt”) (listing thirty alprazolam
tablets); Pl.’s Ex. F, Misdemeanor Complaint and Supporting Deposition at 2
(stating that Plaintiff possessed “buprenorphine,” “naloxone,” and
“alprazolam,” with the latter found through a “search incident to lawful
arrest in coat pocket”); Pl.’s Ex. B, Pl.’s Dep. at 99:4-15 (acknowledging
that he was in possession of prescription Xanax that day).
Case 1:18-cv-00779-EK-VMS Document 62 Filed 01/07/21 Page 29 of 44 PageID #: 874
pocket following a traffic stop, it was “reasonable to believe
evidence relevant to the possession of a controlled substance
crime might be found in the vehicle”); United States v. Stone,
No. 1:08-CR-32-R, 2009 WL 2447926, at *3 (W.D. Ky. Aug. 7, 2009)
(“It is reasonable for an officer to believe that a person
lawfully arrested for a drug offense may have further contraband
or similar evidence relevant to the crime in the vehicle from
which he just exited.”).
And courts in this Circuit have
extended qualified immunity to officers who conduct vehicle
searches without any concrete reason to believe contraband would
be found in the car.
See Quiles v. City of New York, No. 15-CV-
1055, 2016 WL 6084078, at *9-*10 (S.D.N.Y. Oct. 12, 2016)
(finding “arguable probable cause” existed to search vehicle
where arrestee reported he had “hypodermic needles in his
possession” and “was on his way to a drug detoxification
program,” even though officers had not seen any contraband in
Given these precedents, it cannot be said that no
reasonable officer could have believed the search of Plaintiff’s
car was lawful, including the search of the “glove compartment
and center console.”
Compl. ¶ 17.
For the same reasons as in Plaintiff’s false-arrest
and malicious-prosecution claims, the alleged illegality of the
initial stop is of no moment here.
Cf. Baksh v. City of New
York, 15-CV-7065, 2018 WL 1701940, at *6 (E.D.N.Y. Mar. 31,
Case 1:18-cv-00779-EK-VMS Document 62 Filed 01/07/21 Page 30 of 44 PageID #: 875
2018) (claim that “search was unlawful because it followed an
allegedly unlawful traffic stop” “relies on a ‘fruit of the
poisonous tree’ theory that is not cognizable under [Section]
Defendants’ motion is therefore granted with respect to
these warrantless searches.
Plaintiff claims his “rough ride” to the precinct
constituted excessive force.
To survive summary judgment on an
excessive force claim, a plaintiff must demonstrate the force
used in the arrest was “excessive” under the Fourth Amendment.
See Smith v. P.O. Canine Dog Chas, No. 02 6240, 2004 WL 2202564,
at *13 (S.D.N.Y. Sept. 28, 2004).
Police officers’ application
of force is excessive under the Fourth Amendment “if it is
objectively unreasonable in light of the facts and circumstances
confronting them, without regard to their underlying intent or
Maxwell v. City of New York, 380 F.3d 106, 108 (2d
Cir. 2004) (internal quotations omitted).
Here, Plaintiff contends that the excessive force
arose from the officers’ “negligent, wanton and
intentional fail[ure] to prevent . . . the excessive use of
force and brutality,” Compl. ¶¶ 89-90, by driving “aggressively”
without providing a functional seatbelt.
alleges that he “was tossed about for an unreasonably long
period of time and transported in an unsafe manner that was
Case 1:18-cv-00779-EK-VMS Document 62 Filed 01/07/21 Page 31 of 44 PageID #: 876
carried out either intentionally or negligently.”
Id. ¶ 16.
The van “was continuously and roughly/violently driven” for a
total of “roughly [three] hours,” id. ¶ 32, and he was kept in
the van for an “excessive length of time and without any
justification,” id. ¶ 33; the van ride reflected “mishandling”
on the part of the officers, id. ¶ 51; he “was physically
abused” during that time, id. ¶ 91; and he “was inadequately
secured” and “tossed about violently,” Opp. at 2.
deposition, Plaintiff testified that the officers drove
“aggressively,” and at some points “really, really
aggressively,” Pl.’s Ex. B, Pl.’s Dep. at 73:22-74:4; he also
stated that the seatbelt in the van was merely for “cosmetics,”
providing “no tension,” id. 66:19-22, and that the officers
“busted a fast U-turn,” which sent him “flying,” id. 74:2075:12.
Because Defendants have invoked qualified immunity,
the critical question is whether they should reasonably have
known that their conduct in the van violated “clearly
established” constitutional law.
“[W]hile both the excessive
force inquiry and the qualified immunity inquiry ask whether the
officer’s actions were ‘objectively reasonable,’ the qualified
immunity inquiry goes on to ask whether any constitutional
violation was clearly established.”
Jackson v. Tellado, 236 F.
Supp. 3d 636, 661 (E.D.N.Y. 2017).
“The dispositive question is
Case 1:18-cv-00779-EK-VMS Document 62 Filed 01/07/21 Page 32 of 44 PageID #: 877
whether the violative nature of particular conduct is clearly
established . . . in light of the specific context of the case.”
Mullenix v. Luna, 577 U.S. 7, 12 (2015) (internal quotations
Though this standard does not require “a case
directly on point,” “existing precedent must have placed the
statutory or constitutional question beyond debate.”
This standard poses a challenge here, given the
scarcity of cases addressing excessive-force claims in this
Plaintiff points to no precedent that clearly forbids
Defendants’ conduct, and this Court is aware of none.
anything, the law in this Circuit tends to support the
conclusion that Defendants’ conduct was lawful.
establishes that there is no constitutional right to “nonnegligent driving by government employees,” Carrasquillo v. City
of New York, 324 F. Supp. 2d 428, 436 (S.D.N.Y. 2004)
(dismissing claim based on car accident), or even to a seatbelt,
Jabbar v. Fischer, 683 F.3d 54, 58 (2d Cir. 2012) (regarding
Relying on these precedents, another judge in this
District recently dismissed a (somewhat) similar excessive-force
claim on the grounds that it did not raise constitutional
issues, but rather sounded in negligence.
See Lopez v. City of
New York, 15-CV-7292, 2018 WL 2744705, at *8 (E.D.N.Y. June 7,
2018) (plaintiff alleged that police officers used excessive
Case 1:18-cv-00779-EK-VMS Document 62 Filed 01/07/21 Page 33 of 44 PageID #: 878
force by rapidly accelerating their police van without first
buckling her seatbelt).
Given the similarities between these cases and the one
at bar, it cannot be said that a reasonable officer in
Defendants’ position would have known that they were violating
clearly established law.
Plaintiff does not assert that the
officers drove at excessive speeds or engaged in any specific
And he speculated that the reason for
Defendants’ “aggressive” driving was that they were pursuing
other suspects, rather than endeavoring to cause injury.
Ex. B, Pl.’s Dep. at 87:8-12 (explaining that he “tipped over”
“because [the officers] were trying, I guess, . . . to catch
other people”); see also Defs’ Ex. A, November 17, 2016 Medical
Records at 2 (Plaintiff reported that “four days ago he was
arrested . . . and placed in the back of [a] police car” where
the drivers were “chasing after several perpetrators” and that
“as a result he was tumbling back and forth in the back of the
This suggests the officers were performing ordinary
police duties, which undermines the inference that reasonable
officers would have known their actions were unlawful.
And though the initial ride was long, Plaintiff does
not dispute the Defendants’ assertion that these officers
“typically” continue their scheduled patrol even after detaining
arrestees in their vehicle for similar lengths of time.
Case 1:18-cv-00779-EK-VMS Document 62 Filed 01/07/21 Page 34 of 44 PageID #: 879
Ex. G, Setteducato Dep. at 21:22-25 (“[T]ypically we stay out
with the van until we are done conducting enforcement . . . .”);
id. 45:5-19 (stating that there was no “specific reason” why
Plaintiff remained in the van and explaining, “That’s just how
We go out.
We do enforcement for a period of time.
The prisoner van is a secure location to hold the prisoners
until we’re done, and they’re transported to the precinct for
processing” — and confirming that it is “common to keep a
prisoner in the back of the van for more than three hours”).
This, too, supports the conclusion that reasonable police
officers would not have believed the van ride was unlawful.
For these reasons, Plaintiff’s excessive-force claim
cannot surmount the Defendants’ qualified-immunity defense.
noted above, the law of qualified immunity, as handed down by
the Supreme Court, protects “all but the plainly incompetent or
those who knowingly violate the law.”
Malley, 475 U.S. at 341.
In this case, the record establishes that the officers’ conduct
fell into neither of these categories.
Defendants’ motion is
therefore granted as to Plaintiff’s excessive-force claim.
Deliberate Indifference to Medical Needs
Plaintiff’s deposition testimony regarding the number
of times he raised medical concerns — and what he told the
Case 1:18-cv-00779-EK-VMS Document 62 Filed 01/07/21 Page 35 of 44 PageID #: 880
officers — is muddled at best. 9
Reading his testimony “in the
light most favorable to the party against which summary judgment
is contemplated,” NetJets Aviation, Inc. v. LHC Commc’ns, LLC,
537 F.3d 168, 178 (2d Cir. 2008), the Court assumes that
Plaintiff expressed concern about his medical wellbeing multiple
times that night.
Defendants, it is assumed, ignored each of
these statements, except his initial request for blood pressure
medication in the van.
The Court also assumes that Plaintiff,
when making each statement, was concerned about his van injuries
or blood pressure, not his “heart issues,” “throat cancer,”
“anxiety,” or “back injury,” Compl. ¶ 47, because he alludes to
these other conditions only obliquely, if at all, in his
Pl.’s Ex. B, Pl.’s Dep. at 90:20-91:5 (the source of
his concern was his “blood pressure,” because he “didn’t have
access to [his] medication,” and “the [van] injury”).
9 Plaintiff claims that he asked for medical attention “a total of three
times in the care of [Defendants]” and “once in the care of whoever” was
present at the second precinct where he stayed overnight. Pl.’s Ex. B, Pl.’s
Dep. at 88:14-17. First, he requested “blood pressure medicine” in the car
(which Defendants provided), id. 71:6-25; 89:11-19; second, he told
Defendants “something’s not right” and that he “d[idn’t] feel right” after
falling in the van, id. 77:12-78:6; 78:16-21; but see id. 91:11-14 (“the
second time” he asked for medical assistance “was after I tipped over, after
they gave me the medication at the 121st Precinct”); third, he requested
unspecified medical assistance either at the first precinct, id. 88:20-89:9
(requesting medical assistance “at the 121”), en route to the second
precinct, id. 91:15-19 (“the third time” he asked for medical assistance “was
on the way to the 120th Precinct”), or after arriving at the second precinct,
id. 90:8-10 (requesting assistance “when we were in the 120, but not in the
van”); and finally, he “yelled out” to an unidentified person at the second
precinct, “Could I please have some medical attention? I don’t feel well,”
Case 1:18-cv-00779-EK-VMS Document 62 Filed 01/07/21 Page 36 of 44 PageID #: 881
the Court assumes these conditions were the source of
Plaintiff’s concerns, the record does not clearly demonstrate
that he communicated this fact to the officers on any occasion
on which they ignored him.
Instead, his statements were more
Id. 78:3-8 (he told the officers “multiple times that
night” that “something’s not right.
I don’t feel right.”); id.
90:12-14 (telling unidentified officer at the second precinct,
“Could I please have some medical attention? I don’t feel
“A pretrial detainee may establish a [Section] 1983
claim for allegedly unconstitutional conditions of confinement
by showing that the officers acted with deliberate indifference
to the challenged conditions” under the Fourteenth Amendment.
Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir. 2017).
that a pretrial detainee must satisfy two prongs to state a
claim: “an ‘objective prong’ showing that the challenged
conditions were sufficiently serious to constitute objective
deprivations of the right to due process, and a ‘subjective
prong’ . . .
showing that the officer acted with at least
deliberate indifference to the challenged conditions.”
(noting that a detainee’s rights under due process are “at least
as great as the Eighth Amendment protections available to a
Case 1:18-cv-00779-EK-VMS Document 62 Filed 01/07/21 Page 37 of 44 PageID #: 882
With respect to medical ailments specifically, “a
pretrial-detainee plaintiff must show that she had a serious
medical condition and that it was met with deliberate
Dollard v. City of New York, 408 F. Supp. 3d
231, 236 (E.D.N.Y. 2019) (internal quotations omitted).
inquiry requires the court to examine how the offending conduct
is inadequate and what harm, if any, the inadequacy has caused
or will cause the prisoner.”
Salahuddin v. Goord, 467 F. 3d
263, 280 (2d Cir. 2006).
Plaintiff’s injuries from the van do not satisfy the
first, “objective” prong of this test.
“[I]f the unreasonable
medical care is a failure to provide any treatment for an
inmate’s medical condition, courts examine whether the inmate’s
medical condition is sufficiently serious.”
contemplates a “condition of urgency, one that may produce
death, degeneration, or extreme pain,” Hathaway v. Coughlin, 37
F.3d 63, 66 (2d Cir. 1994), though a plaintiff need not
“demonstrate that he or she experiences pain that is at the
limit of human ability to bear,” or that “his or her condition
will degenerate into a life-threatening one” without treatment.
Brock v. Wright, 315 F.3d 158, 163 (2d Cir. 2003).
only diagnosis on the record is a “right shoulder injury[,]
possibly a rotator cuff tear and right wrist sprain.”
A, November 17, 2016 Medical Records at 2.
The doctors gave
Case 1:18-cv-00779-EK-VMS Document 62 Filed 01/07/21 Page 38 of 44 PageID #: 883
Plaintiff a “carpal tunnel brace” for his wrist and suggested
physical therapy for his shoulder, but prescribed no medication.
These injuries do not meet the definition of a “condition
See Scalpi v. Town of E. Fishkill, 14-CV-2126,
2016 WL 858916, at *10 n.13 (S.D.N.Y. Feb. 29, 2016) (a “tear or
sprain” in the shoulder is not a “sufficiently serious” injury);
Alster v. Goord, 745 F. Supp. 2d 317, 337 (S.D.N.Y. 2010)
(injury to plaintiff’s arm was not “sufficiently serious”
because there were no “fractures or dislocation”); Covington v.
Westchester Cnty. Dep’t of Corr., No. 06-CV-5369, 2010 WL
572125, at *7 (S.D.N.Y. Jan. 25, 2010) (“muscle sprains” are not
“sufficiently serious”). 10
As for Plaintiff’s request for assistance with his
blood pressure, these pleas were not met with deliberate
Deliberate indifference requires a showing that
the Defendants “acted intentionally to impose the alleged
condition, or recklessly failed to act with reasonable care to
Although Plaintiff claims these injuries caused serious complications
later on, he does not squarely allege that immediate intervention would have
changed this outcome. See, e.g., Sereika v. Patel, 411 F. Supp. 2d 397, 406
(S.D.N.Y. 2006) (denying summary judgment where plaintiff alleged that delay
in treating shoulder injury caused serious impediments and pain later). Even
if Plaintiff made this argument, he submits no medical evidence tying his
later injuries to the original inadequacy in treatment. Cf. Spiegel v.
Schulmann, 604 F.3d 72, 81 (2d Cir. 2010) (plaintiff’s testimony that his
medical condition prevented him from losing weight was insufficient to
withstand a motion for summary judgment in the absence of “competent medical
evidence confirming that connection”); see also Fuller v. Lantz, 549 F. App’x
18, 21 (2d Cir. 2013) (summary order) (affirming summary judgment on
deliberate-indifference claim where medical diagnosis was supported only by
“lay statements” in affidavits).
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mitigate the risk that the condition posed,” even though they
“knew, or should have known, that the condition posed an
excessive risk to health or safety.”
See Darnell, 849 F.3d at
The record shows that Plaintiff requested his blood
pressure medication only once, and Defendants administered it
when he did.
The record does not indicate that he asked for his
medication again, or that he otherwise alerted Defendants to
concerns about his blood pressure (or any other specific medical
Plaintiff’s deposition testimony also
appears to acknowledge that the Defendants actually administered
a second round of blood pressure medication at the first
Pl.’s Ex. B, Pl.’s Dep. at 91:11-14 (testifying that
the second time he asked for help was “after I tipped over [in
the van], after they gave me the medication at the 121st
Because there is no evidence that the Defendants
knew Plaintiff wanted his blood pressure medicine when they
ignored his pleas, they were not deliberately indifferent to
this medical need.
Cf. Araujo v. City of New York, No. 08-CV-
3715, 2010 WL 1049583, at *8 (E.D.N.Y. Mar. 19, 2010)
(dismissing deliberate-indifference claim because plaintiff did
not “request immediate emergency care” or “inform” any
officials “that he had a serious medical condition”); Graham v.
Coughlin, No. 86-CV-163, 2000 WL 1473723, at *5 (S.D.N.Y. Sept.
Case 1:18-cv-00779-EK-VMS Document 62 Filed 01/07/21 Page 40 of 44 PageID #: 885
29, 2000) (same, because plaintiff “did not alert defendants to
any health problems”).
Even assuming the Defendants ignored one or more
additional requests for blood pressure medication, “[b]oth the
Second Circuit and numerous district courts within it have found
that missing a single dose or even several doses of medicine is
generally not actionable, even where the effect of missing a
single dose is far more severe than plaintiff claims to have
Constantino v. DiStefano, No. 18-CV-5730,
2020 WL 353094, at *5 (E.D.N.Y. Jan. 21, 2020).
of blood pressure medication for less than twenty hours 11 does
not violate the Constitution — at least where, as here, no
lasting health consequences arose.
Compare Bumpus v. Canfield,
495 F. Supp. 2d 316, 322 (W.D.N.Y. 2007) (dismissing deliberateindifference claim based on “a delay of several days in
dispensing plaintiff’s hypertension medication” absent evidence
that “the delay gave rise to a significant risk of serious
harm”); Torres v. Trombly, 421 F. Supp. 2d 527, 532-33 (D. Conn.
2006) (prison nurse’s failure to administer hypertension
medicine for one day did not cause plaintiff to suffer a serious
11 Plaintiff was arrested at approximately 5:00 p.m., Pl.’s Ex. G at 1,
ECF No. 54-7 (“Post-Tactical Plan”), and released the next day after his
12:34 p.m. arraignment, Defs’ Ex. N at 1, ECF No. 50-14 (“NYPD Online
Prisoner Arraignment Form”). This is less than twenty hours in custody. He
received medication at some point before arriving to the first precinct
around 8:10 p.m. See Pl.’s Ex. G, Post-Tactical Plan at 1.
Case 1:18-cv-00779-EK-VMS Document 62 Filed 01/07/21 Page 41 of 44 PageID #: 886
medical condition), with Lozada v. City of New York, No. 12-CV0038, 2013 WL 3934998, at *6 (E.D.N.Y. July 29, 2013) (plaintiff
sufficiently pled deliberate indifference where van drivers
ignored detainee’s repeated requests to use the restroom for his
high blood pressure, laughed and mocked him, and then stopped
the van to use the bathroom themselves, for a total of four
hours before plaintiff wound up in the emergency room).
Plaintiff’s claim for deliberate indifference to medical needs
Because Plaintiff’s only remaining Section 1983 claim
is for the initial stop, the Court must determine whether this
claim will proceed against some or all the named officers.
Section 1983 claims may proceed only against those who are
“personal[ly] involv[ed]” in the underlying violation.
v. Smith, 21 F.3d 496, 501 (2d Cir. 1994).
officers were involved at different stages of the process — the
stop and arrest, the van ride, and the prosecution.
There is no
evidence that anyone besides Officers Vaccarino and Goyco
“direct[ly] participat[ed]” in the initial stop, Black v.
Coughlin, 76 F.3d 72, 74 (2d Cir. 1996), or knew about it
beforehand, cf. Demosthene v. City of New York, No. 14-CV-816,
2018 WL 10072931, at *6 (E.D.N.Y. July 20, 2018) (“A failure-tointervene claim requires that a defendant had a reasonable
Case 1:18-cv-00779-EK-VMS Document 62 Filed 01/07/21 Page 42 of 44 PageID #: 887
opportunity to prevent the harm.”).
Although Sergeant Farella
was their supervisor, Plaintiff presents no evidence that he
either “created a policy or custom under which unconstitutional
practices occurred” or “was grossly negligent in supervising”
Colon v. Coughlin, 58 F.3d 868, 873 (2d Cir.
1995) (listing bases for establishing personal involvement of
“supervisory defendant[s]” under Section 1983).
Defendants’ motion is granted with respect to all individual
Defendants save Officers Vaccarino and Goyco, because only they
had the requisite degree of involvement in the initial stop.
Plaintiff also asserts several state-law claims, none
of which are accompanied by sufficient record evidence to
survive summary judgment.
His civil assault and battery claims
arising from the van ride fail because he cites no evidence that
Defendants “intentional[ly] plac[ed]” him “in fear of imminent
harmful or offensive contact” (assault) or that they made
“intentional wrongful physical contact” with him “without his
(2d Cir. 2006).
Green v. City of New York, 465 F.3d 65, 86
Plaintiff’s claim for negligent hiring and
training against the City fails because he presents insufficient
evidence that “the [City] knew or should have known of the
employee’s propensity for the conduct which caused the injury,”
Bouche v. City of Mt. Vernon, No. 11-CV-5246, 2012 WL 987592, at
Case 1:18-cv-00779-EK-VMS Document 62 Filed 01/07/21 Page 43 of 44 PageID #: 888
*9 (S.D.N.Y. Mar. 23, 2012), or that the Defendants were “acting
outside the scope of [their] employment,” see Jacquez ex rel.
Pub. Adm’r of Bronx Cnty. v. City of New York, No. 10-CV-2881,
2014 WL 2696567, at *7 (S.D.N.Y. June 9, 2014).
As for his
infliction of emotional distress claims, “because the
complained-of conduct here falls within the scope of claims of
unreasonable search and seizure, false arrest, and malicious
prosecution, a cause of action for [intentional infliction of
emotional distress] or [negligent infliction of emotional
distress] is unavailing.”
Cabrera v. City of New York, No. 16-
CV-1098, 2017 WL 6040011, at *11 (S.D.N.Y. Dec. 4, 2017).
Because Defendants do not seek summary judgment on
Plaintiff’s claims for negligence or the initial traffic stop at
this stage, the Court does not pass on them.
Defendants remain in this action, either in defense of
Plaintiff’s remaining Section 1983 claim for the initial stop
(Officers Vaccarino and Goyco), or his negligence claims (all
Case 1:18-cv-00779-EK-VMS Document 62 Filed 01/07/21 Page 44 of 44 PageID #: 889
For the reasons set forth above, Defendants’ motion
for partial summary judgment is granted in its entirety.
/s Eric Komitee__________________
United States District Judge
January 7, 2021
Brooklyn, New York
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