Lozada v. Weilminster et al

Filing 92

MEMORANDUM AND ORDER granting in part and denying in part 52 Motion for Summary Judgment; granting 88 Motion for Summary Judgment. For the reasons set forth within the attached Memorandum and Order, the Court denies State Defendants' motio n for summary judgment as to Plaintiff's claims for false arrest and excessive force against Trooper Nolan and Trooper Weilminster, Plaintiff's claim for First Amendment retaliation against Trooper Nolan, qualified immunity, and punitive da mages. The Court grants State Defendants' motion for summary judgment as to Plaintiff's malicious prosecution, unlawful seizure, due process, conspiracy and negligence claims against both Defendants, as well as State Defendants' motio n for summary judgment as to Plaintiff's First Amendment retaliation claim against Trooper Weilminster. Fire District Defendants' motion for summary judgment is granted in its entirety. Ordered by Judge Margo K. Brodie on 3/23/2015. (Krause, Aimee)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------MELISSA LOZADA,
Plaintiff,

MEMORANDUM & ORDER
11-CV-2049 (MKB)

v.
CHARLES WEILMINSTER — TROOPER 1287,
CHRISTOPHER NOLAN — TROOPER 5219,
WANTAGH FIRE DISTRICT, COURTNEY
BARANOWSKI, JEFF LINDGREN, and
AMANDA HUTCHISON,
Defendants.
--------------------------------------------------------------MARGO K. BRODIE, United States District Judge:
Plaintiff Melissa Lozada commenced the above-captioned action on April 27, 2011,
against New York State Troopers Charles Weilminster and Christopher Nolan, (collectively,
“State Defendants”), the Wantagh Fire District, and forty-one volunteer firefighters from the
Wantagh Fire District, including Courtney Baranowski,1 Jeff Lindgren and Amanda Hutchison,2
(collectively, “Fire District Defendants”).3 Plaintiff’s Complaint alleges violations of her civil

1

Defendant Courtney Baranowski was initially identified as “Courtney Whitefield” in
the Complaint, and has since changed her last name from either Whitefield or Whitfield to
Baranowski. (See FD Def. Mem. 4.)
2

Defendant Amanda Hutchison was incorrectly identified as “Amanda Hutchinson” in
the Complaint.
3

The other thirty-eight original Defendants entered into a stipulation of discontinuance
executed on March 6, 2013, and filed with this Court on April 3, 2013. (Docket Entry No. 35.)
Despite this fact, the thirty-eight original Defendants joined the Fire District Defendants’ motion
for summary judgment. Those thirty-eight Defendants have been dismissed from this action,
(Docket Entry No. 90), and thus have no basis on which to move before this Court for summary
judgment.

rights guaranteed by the First, Fourth, Fifth and Fourteenth Amendments of the United States
Constitution.4 Specifically, Plaintiff brings claims for (1) violation of her First Amendment right
to freedom of speech; (2) violations of her Fourth Amendment rights caused by (i) use of
excessive force, (ii) false arrest, and (iii) malicious prosecution; (3) violations of her procedural
due process rights protected by the Fifth and Fourteenth Amendments; (4) conspiracy; and (5)
municipal liability pursuant to 42 U.S.C. § 1983. Plaintiff also brings claims for negligence and
respondeat superior liability pursuant to New York state law. State Defendants and Fire District
Defendants separately move for summary judgment.5 For the reasons discussed below, the Court
grants State Defendants’ motion in part and denies it in part, and grants Fire District Defendants’
motion in its entirety.
I.

Background
a.

State Defendants

At the time of the events which are the basis for this action, State Defendants were New
York State Troopers employed by the New York State Police, and were acting both under color
of state law and under color of their authority as New York State Troopers. (State Def. 56.1 ¶ 3;
4

Plaintiff alleges in the Complaint that her claim brought pursuant to 42 U.S.C. § 1983
is also for violations of her rights guaranteed by the same amendments to the Constitution of the
State of New York. (Compl. ¶ 30.) It is not clear to the Court what specific provisions of the
New York State Constitution Plaintiff alleges were violated. None of the parties addressed this
claim on the motion for summary judgment. To the extent Plaintiff attempts to pursue her
Section 1983 action for violations of the New York State Constitution, Section 1983 claims are
not the appropriate vehicle for such claims. See Shakhnes v. Berlin, 689 F.3d 244, 250 (2d Cir.
2012) (“Section 1983 creates a cause of action against any person who, acting under color of
state law, abridges ‘rights, privileges, or immunities secured by the Constitution and laws’ of the
United States.” (quoting 42 U.S.C. § 1983)).
5

In her opposition papers, Plaintiff argues that summary judgment is warranted in her
favor. (Pl. Opp’n Mem. 2.) For the reasons set forth in this Memorandum and Order, to the
extent Plaintiff has moved for summary judgment, her motion is denied.

2

Pl. State 56.1 ¶ 3.6) Neither of the State Defendants was the supervisor of the other, and neither
had trained the other. (State Def. 56.1 ¶ 12; Pl. State 56.1 ¶ 12.)
b.

Fire District Defendants

Baranowski and Hutchison were certified emergency medical technicians (“EMTs”) who
volunteered for the Wantagh Fire District. (FD Def. 56.1 ¶ 15, 82; Pl. FD 56.1 ¶ 15, 82.) At the
time of the events at issue in this action, Baranowski was the senior medical personnel in the Fire
District, and she had taken additional training courses to become “critical care certified.” (FD
Def. 56.1 ¶ 84; Pl. FD 56.1 ¶ 84.) Lindgren was a volunteer fire chief at the time of the incident
that forms the basis for this action. (Tr. of Dep. of Jeff Lindgren, dated Feb. 11, 2013, annexed
to FD Def. Mot. as Ex. J (“Lindgren Dep.”) 7:21–8:14.) As Chief in charge of the scene,
Lindgren was in charge of scene safety and ensuring that the members of the Wantagh Fire
District remained safe, and ensuring that the “aided” — Plaintiff, in this case — received proper
medical attention. (FD Def. 56.1 ¶¶ 44–45; Pl. FD 56.1 ¶¶ 44–45.)
All EMTs at the Wantagh Fire District have regular meetings at which training topics are
discussed, and may have received refresher training about how to properly complete certain
forms, including a New York state-mandated Pre-hospital Care Report (“PCR”), and specifically
the refusal of medical attention portion on the form (“RMA”). (FD Def. 56.1 ¶ 86; Pl. FD 56.1
¶ 86.) According to Defendants, generally, if a patient refuses to sign the RMA portion of the
6

Plaintiff submitted one statement of material facts which responds to both the State
Defendants’ statement of undisputed facts pursuant to Rule 56.1 and the Fire District
Defendants’ statement pursuant to Rule 56.1, and also presents her own counter-statement of
facts. (See Pl. Rule 56.1 Statement in Opp’n to Summary Judgment Mot., Docket Entry No.
88-17.) Each of these three sections of the document contains numbered paragraphs beginning
with number 1. For clarity, the Court refers to each set of numbered paragraphs as follows:
Plaintiff’s responses to the State Defendants will be cited as “Pl. State 56.1,” Plaintiff’s
responses to the Fire District Defendants will be cited as “Pl. FD 56.1” and Plaintiff’s own
counter-statement, to which Defendants object as improper, will be cited as “Pl. Counter 56.1.”
3

PCR, the EMTs do their best to try to get them to sign, but will get a supervisor or police officer
to witness the refusal if the patient both insists and is of sound mind. (FD Def. 56.1 ¶ 29; Tr. of
Dep. of Courtney Baranowski dated Jan. 4, 2013, annexed to FD Def. Mot. as Ex. H
(“Baranowski Dep.”) 28:2–29:5; Tr. of Dep. of Amanda Hutchison dated Feb. 15, 2013, annexed
to FD Def. Mot. as Ex. I (“Hutchison Dep.”) 35:4–36:17; Tr. of Dep. of Jason Jackowitz dated
Feb. 18, 2013, annexed to FD Def. Mot. as Ex. K (“Jackowitz Dep.”) 22:2–24:20, 31:11–32:6;
Lindgren Dep. 59:2–10.) Plaintiff disputes that this is the typical procedure in which fire district
members are trained, arguing that they are trained to “compel a patient, by any means necessary,
to sign the RMA for[m] in order to shield themselves from liability,” and will involve law
enforcement to arrest the patient if she refuses to sign the form. (Pl. FD 56.1 ¶ 29.)
c.

April 28, 2009 incident

On April 28, 2009, at approximately 12:38 AM, Plaintiff was involved in a motor vehicle
accident. (State Def. 56.1 ¶ 8; Pl. State 56.1 ¶ 8; FD Def. 56.1 ¶ 1; Pl. FD 56.1 ¶ 1.) Plaintiff,
who was alone in her vehicle and had been falling asleep while driving, ran her car off of the
roadway and into a guardrail when she failed to navigate an exit ramp at Exit 28 on the
westbound Southern State Parkway. (State Def. 56.1 ¶ 8; Pl. State 56.1 ¶ 8; see also FD Def.
56.1 ¶¶ 2–3.) The impact caused the Plaintiff’s airbag to deploy, and Plaintiff raised her arms
and hands in front of her face to protect herself from injuries resulting from the airbag. (State
Def. 56.1 ¶ 9; Pl. State 56.1 ¶ 9; FD Def. 56.1 ¶ 4; Pl. FD 56.1 ¶ 4.) The inflating airbag left a
burn mark on the inside of Plaintiff’s left elbow. (State Def. 56.1 ¶ 9; Pl. State 56.1 ¶ 9; FD Def.
56.1 ¶ 4; Pl. FD 56.1 ¶ 4.) According to Plaintiff, the airbag did not touch her face or hands, and
Plaintiff was otherwise uninjured. (Pl. Counter 56.1 ¶¶ 14, 16; Tr. of Pl. Dep., dated Oct. 10,
2012, annexed to FD Def. Mot. as Ex. F. (“Pl. Dep.”) 52:3–8.) Plaintiff’s vehicle eventually

4

came to rest with a driver’s side tire touching the guardrail; Plaintiff was initially unable to open
the driver’s side door. (FD Def. 56.1 ¶ 5; Pl. FD 56.1 ¶ 5.) Plaintiff called 911 from her vehicle
to report the accident, and exited her car while on the telephone to ascertain her location and the
extent of the damage to her car. (State Def. 56.1 ¶¶ 10–11; Pl. State 56.1 ¶¶ 10–11; FD Def. 56.1
¶ 6; Pl. FD 56.1 ¶ 6.) At least one other person also called 911 to report the accident. (State Def.
56.1 ¶ 10; Pl. State 56.1 ¶ 10.)
Plaintiff did not know whether the police or the ambulance arrived at the scene of the
accident first, but ultimately the police, ambulance, and tow truck were all present. (FD Def.
56.1 ¶ 8; Pl. FD 56.1 ¶ 8.) Two fire chief vehicles and two engine trucks also arrived at the
scene of the accident. (FD Def. 56.1 ¶ 10; Pl. FD 56.1 ¶ 10.) In total, about eight fire
department members were present. (FD Def. 56.1 ¶ 48; Pl. FD 56.1 ¶ 48.) According to
Plaintiff, except for one bystander who briefly asked if she was injured and left before Plaintiff
telephoned 911, there were no bystanders or other members of the public around during the
events which followed the emergency response. (Pl. Aff. ¶ 4; FD Def. 56.1 ¶ 7 (noting one
bystander); Pl. Dep. 73:3–16 (same).)
i.

State Defendants’ response

In response to a notification that the accident had occurred, State Defendants arrived on
the scene. (State Def. 56.1 ¶ 12; Pl. State 56.1 ¶ 12; see also FD Def. 56.1 ¶ 12.) When State
Defendants arrived on the scene, they spoke with Plaintiff in order to determine what had
happened and whether she was injured. (State Def. 56.1 ¶ 13; Pl. State 56.1 ¶ 13; see also FD
Def. 56.1 ¶ 13.) Both then returned to their car to fill out an accident report. (State Def. 56.1
¶ 13; Pl. State 56.1 ¶ 13; FD Def. 56.1 ¶ 13.)

5

ii.

Fire District Defendants’ response

Members of the Wantagh Fire District and a tow truck operator also responded to the
scene following the 911 calls from Plaintiff and another individual. (State Def. 56.1 ¶ 14; Pl.
State 56.1 ¶ 14.) Volunteer Fire Chiefs Lindgren and Jackowitz both received the call and
reported directly to the scene in their “chief vehicles.” (FD Def. 56.1 ¶ 14; Pl. FD 56.1 ¶ 14.)
Volunteer EMTs and firefighters, including Baranowski and Hutchison, received the alarm call
on their pagers and proceeded to the scene of the accident in an ambulance. (FD Def. 56.1
¶¶ 15–18; Pl. FD 56.1 ¶¶ 15–18.) When the ambulance parked at the scene, Baranowski and
Hutchison took the basic gear and basic life support (“BLS”) equipment from the ambulance and
approached Plaintiff’s vehicle. (FD Def. 56.1 ¶¶ 18–19; Pl. FD 56.1 ¶¶ 18–19.) They saw
Plaintiff sitting in the front passenger seat of her vehicle with the door open and the dome light
on. (FD Def. 56.1 ¶ 19; Pl. FD 56.1 ¶ 19.)
According to Fire District Defendants, at this point, Baranowski and Hutchison tried to
perform a preliminary patient assessment by asking Plaintiff her name, birthdate, address, social
security number and past medical history, but Plaintiff initially refused to provide any
information, indicating at first that she did not have or did not know the answer to the questions.
(Baranowski Dep. 187:3–188:22.) To Baranowski, Plaintiff at first appeared confused, though
calm. (Baranowski Dep. 78:4–20.) Hutchison perceived that Plaintiff was not speaking
normally, but noted that she was not slurring her words either. (Hutchison Dep. 139:4–13.)
Soon after, around the time when Hutchison asked Plaintiff for her social security number,
Plaintiff started to raise her voice and became belligerent, questioning why they needed this
information. (Baranowski Dep. 76:19–79:16; Hutchison Dep. 82:4–82:22, 136:9–145:7.) The
EMTs noticed a sweet odor, possibility indicative of alcohol or of a diabetic crisis, on Plaintiff’s

6

breath, and perceived that Plaintiff’s pupils were dilated.7 (Baranowski Dep. 109:9–24, 231:14–
232:6; Hutchison Dep. 145:13–17; see also State Def. 56.1 ¶ 18.) The EMTs became concerned
that they could not assess Plaintiff’s physical or mental status and could not determine “what was
wrong with her,” why she initially appeared confused and agitated, if she was suffering from a
head injury or had some other medical problem.8 (Hutchison Dep. 148:3–149:6.) Hutchison
looked to Baranowski, the higher medical authority on scene, for assistance. (Hutchison Dep.
141:15–142:12.) Baranowski, feeling there was something wrong with Plaintiff’s demeanor,
recommended to Plaintiff that they take her to the hospital. (Baranowski Dep. 79:9–16,
90:24−91:11; see also State Def. 56.1 ¶ 16.) Plaintiff refused to go to the hospital, refused
further medical examination, and told them “don’t fucking touch me.” (Baranowski Dep.
78:14−80:16, 184:25–188:14; see also State Def. 56.1 ¶ 17.) Baranowski asked Plaintiff to sign
the back of a PCR, which contained an RMA — a place to sign when a patient refuses medical
attention. (Baranowski Dep. 79:17–80:16) Plaintiff continued to curse at Baranowski, and told
her that Baranowski could not make her sign anything. (Baranowski Dep. 49:11–50:3,
79:17−80:2.) Baranowski and Hutchison continued to be concerned that Plaintiff was acting
“fidgety,” that she could not sit still and was belligerent, cursing, and yelling for no apparent
reason. (Baranowski Dep. 90:24–94:15; Hutchison Dep. 97:5–98:15.) Lindgren, who was
standing further away from Plaintiff’s vehicle during this exchange, heard Plaintiff yelling and
cursing, became concerned for Baranowski’s safety because Plaintiff was acting abnormally, and
7

Plaintiff highlights that though the EMTs remember Plaintiff’s pupils were dilated, they
could not remember that Plaintiff’s eyes were blue. (Baranowski Dep. 123:22–24, 232:7–9;
Hutchison Dep. 99:13–15.)
8

Less than twenty-four hours before the incident, Plaintiff had taken her first dose of
Lexapro, which had been prescribed to her by a doctor. (State Def. 56.1 ¶ 19; Pl. State 56.1
¶ 19.) The parties disagree as to what affect, if any, this may have had on Plaintiff.
7

pulled Baranowski away from Plaintiff. (Lindgren Dep. 53:15–55:14.)
Plaintiff asserts that when the EMTs first arrived, she was alert, calm and coherent. (Pl.
Counter 56.1 ¶ 27; Baranowski Dep. 78:3–16; Tr. of Dep. of Christopher Nolan dated Dec. 18,
2012, annexed to FD Def. Mot. as Ex. L (“Nolan Dep.”), 58:18–21; Tr. of Dep. of Charles
Weilminster dated Dec. 19, 2012, annexed to FD Def. Mot. as Ex. M (“Weilminster Dep.”),
31:3–5 (“She was normal.”).) She told the EMTs that she felt fine and did not need to go to the
hospital, and was more concerned about what would happen to her vehicle and about contacting
her mother to come pick her up. (Pl. Aff. ¶ 5, annexed to Pl. Counter 56.1 as Ex. 3.) Plaintiff
agrees that she was directed to sign a medical release form or be taken to the hospital against her
will, but asserts that she was not inclined to do so without understanding the purpose of the form
or why she needed to sign it. (Pl. Aff. ¶¶ 6–7.) She argues that on her refusal, the emergency
responders raised their voices to her. (Pl. Counter 56.1 ¶ 34; Hutchison Dep. 184:3–7 (admitting
that she may have raised her voice to Plaintiff “[m]aybe toward the end . . . when I started to get
frustrated.”).)
It is undisputed that Plaintiff refused medical attention from the Wantagh Fire District
members at the scene of the accident. (State Def. 56.1 ¶ 34; Pl. State 56.1 ¶ 34.) Plaintiff was
asked to sign the RMA, and was told that she either had to sign the form or go to a hospital. (FD
Def. 56.1 ¶ 30; Pl. FD 56.1 ¶ 30.) Plaintiff refused to sign the form. (FD Def. 56.1 ¶ 31; Pl. FD
56.1 ¶ 31.) Plaintiff did not recall how many times she was asked to sign the form. (FD Def.
56.1 ¶ 36; Pl. FD 56.1 ¶ 36.) Sometime after Plaintiff refused to sign the form, Lindgren advised
the fire department personnel that they could start packing up to leave the scene. (FD Def. 56.1
¶ 49; Pl. FD 56.1 ¶ 49.)

8

iii. Plaintiff’s arrest
Shortly after the Plaintiff refused to sign the form, Plaintiff requested to speak to the
police and a member of the Wantagh Fire District approached the patrol car where the State
Troopers were located. (State Def. 56.1 ¶ 20; Pl. State 56.1 ¶ 20; FD Def. 56.1 ¶ 38; Pl. FD 56.1
¶ 38.) Plaintiff overheard one of the State Troopers, who she believed to be Trooper Nolan, say
that she did not have to sign the medical release form. (FD Def. 56.1 ¶ 56; Pl. FD 56.1 ¶ 56.)
Plaintiff did not overhear any other part of the conversation between the fire department
personnel and the Troopers. (FD Def. 56.1 ¶ 57; Pl. FD 56.1 ¶ 57.)
According to Defendants, Lindgren approached State Defendants, who had returned to
their vehicle and closed the doors, and requested assistance with Plaintiff, including assistance in
ascertaining her signature on the RMA.9 (Baranowski Dep. 36:9–36:22, 79:9–80:16,
266:23−267:4; Lindgren Dep. 175:15–176:25; Nolan Dep. 59:8–60:5; Weilminster Dep.
40:21−43:17.) The Fire District personnel informed State Defendants that Plaintiff had been
yelling, cursing, and acting irrationally. (Lindgren Dep. 175:15–176:25; Nolan Dep. 61:22–62:8,
69:21–71:20) Trooper Nolan exited his vehicle, heard Plaintiff screaming and using profane and
aggressive language, and approached Plaintiff. (Nolan Dep. 74:4–10, 98:5–100:9; Weilminster
Dep. 43:18–44:5.) Trooper Nolan eventually returned to where Fire District Defendants were
standing and suggested to the fire department persons that he would witness Plaintiff’s refusal to

9

Nolan could not recall if the EMTs or fire department personnel asked him to get
Plaintiff to sign the medical form. (Nolan Dep. 97:7–13, 100:10–12.) Baranowski recalled
asking him to do so, and recalled that Trooper Nolan approached Plaintiff with the form and
returned to the Fire District personnel “maybe a minute and a half, two minutes later” to inform
them that she refused to sign the RMA. (Baranowski Dep. 36:14–37:8, 80:9–16.)

9

sign if she did not want to sign the form, and the Fire District accepted that.10 (Nolan Dep.
101:4–21; Baranowski Dep. 37:2–8, 80:9–16; Lindgren Dep. 176:23–25.)
Defendants contend that Trooper Nolan approached Plaintiff, at which point she began
screaming “fuck you” and other obscenities at him. (Nolan Dep. 87:11–22; Lindgren Dep.
129:7–130:20.) Nolan repeatedly warned Plaintiff that if she did not calm down she would be
arrested, but she continued to yell obscenities. (Nolan Dep. 87:23–88:11, 112:21–115:16,
120:5–16; see also FD Def. 56.1 ¶¶ 60–63; State Def. 56.1 ¶¶ 23–24.) Nolan arrested Plaintiff
for disorderly conduct and handcuffed her. (Nolan Dep. 115:12–116:22; see also FD Def. 56.1
¶¶ 63–64; Pl. Counter 56.1 ¶ 46.) According to Defendants, while Trooper Nolan was
attempting to handcuff her, Plaintiff dropped to her knees and lay down on the ground with her
hands underneath her body in an attempt to avoid being handcuffed. (Nolan Dep. 116:6–22,
117:15–19.) Trooper Weilminster, observing Plaintiff’s actions, came over from the State Police
vehicle to assist Nolan in handcuffing Plaintiff’s hands behind her back. (Nolan Dep.
118:15−119:3; Weilminster Dep. 47:17–23; see also Pl. Counter 56.1 ¶ 40.)
Plaintiff contends that a Trooper, the same one she overheard say she did not have to sign
the form, came over to her and informed Plaintiff that she could either sign the form or face
arrest. (Pl. Aff. ¶ 9.) Plaintiff telephoned her mother from the front seat of her car. (Pl. Aff.
¶ 10.) At that point, the Trooper grabbed Plaintiff out of her vehicle and either caused her to fall,
pushed her, or “slammed” her onto the grass, causing her to hit her head. (Pl. Aff. ¶ 11; Pl. Dep.
108:11–113:10.) Plaintiff alleges that this caused injuries to her arms and knees, as well. (Pl.
Aff. ¶ 11; Pl. Dep. 112:3–19.) Plaintiff began to cry, but asserts that she did not yell profanities
10

Nolan did not know what the Fire District Defendants’ policy was regarding the RMA,
but suggested this to them on his own. (Nolan Dep. 101:6–102:12.)

10

to anyone, or use obscene language or gestures.11 (Pl. Aff. ¶¶ 12–13, 19.)
iv. Plaintiff’s transportation to the police barracks
After State Defendants handcuffed Plaintiff, they escorted Plaintiff to their patrol car and
seated her in the rear of the vehicle on the passenger side. (State Def. 56.1 ¶ 27; Pl. State 56.1 ¶
27.) When Lindgren observed that Plaintiff was handcuffed and in police custody, he started to
release members of the fire department from the scene. (FD Def. 56.1 ¶ 65; Pl. FD 56.1 ¶ 65.)
Plaintiff remained in handcuffs for approximately five minutes, at which time Plaintiff requested
removal of the handcuffs and one of the State Defendants removed them. (State Def. 56.1 ¶ 28;
Pl. State 56.1 ¶ 28.) Plaintiff then told State Defendants that she wanted to speak with a police
supervisor. (State Def. 56.1 ¶ 29; Pl. State 56.1 ¶ 29.) Trooper Nolan called the State Police
barracks and notified personnel that Plaintiff had requested to speak with a supervisor. (State
Def. 56.1 ¶ 30; Pl. State 56.1 ¶ 30.)
Several minutes later, New York State Police Sergeant David Schneck arrived at the
scene, in response to Trooper Nolan’s request for a supervisor. (State Def. 56.1 ¶ 31; Pl. State
56.1 ¶ 31.) Plaintiff informed Sergeant Schneck that she wanted to lodge a complaint against the
Trooper that pulled her out of her car. (Pl. Aff. ¶ 14.) Sergeant Schneck transported Plaintiff to
the police barracks, located in Farmingdale, in the front seat of his car. (State Def. 56.1 ¶ 32; Pl.
State 56.1 ¶ 32.) At the barracks, Sergeant Schneck photographed Plaintiff and gave her a

11

Plaintiff submits that her mother was still on the telephone with Plaintiff when
Trooper Nolan pulled her out of the car and pinned her to the ground. She asserts that her
mother heard “a commotion” and heard Plaintiff yell that she would sign the paper. However,
Plaintiff has not submitted a deposition transcript, declaration, or affidavit from her mother, nor
done anything more than baldly state that her mother would testify to these facts at trial. (See Pl.
Counter 56.1 ¶ 43.) Plaintiff has failed to produce any evidence of her mother’s testimony which
would be admissible at trial. Therefore, the testimony of Plaintiff’s mother is not before the
Court and has no bearing on the instant motion.
11

complaint form to complete. (State Def. 56.1 ¶ 32; Pl. State 56.1 ¶ 32.) Plaintiff alleges that he
also informed her that she was being charged with disorderly conduct. (Pl. Aff. ¶ 15.) Plaintiff
filled out, but did not sign, the complaint form. The parties dispute the reason as to why Plaintiff
did not sign the complaint. (State Def. 56.1 ¶ 32; Pl. State 56.1 ¶ 32.) In her affidavit in
opposition to the instant motion, Plaintiff alleges that Sergeant Schneck did not permit Plaintiff
to finalize the complaint against the Trooper because “he said he had to investigate the matter
further.” (Pl. Aff. ¶ 16). In her deposition and in the hearing following Plaintiff’s filing of a
notice of claim against the Wantagh Fire District, pursuant to New York General Municipal Law
section 50-h, Plaintiff testified that she did not sign the complaint because she was waiting for
her sister, who is also her counsel, to arrive. (Pl. Dep. 156:8–157:2; Tr. of Hrg. Pursuant to Sec.
50-h, dated Dec. 17, 2009, annexed to FD Def. Mot. as Ex. E (“50-h Tr.”) 55:20–56:4,
68:15−69:14.) Sergeant Schneck also recalls Plaintiff refusing to sign the complaint, though she
was given the opportunity to do so. (Tr. of Schneck Dep., annexed to Decl. of Dorothy Nese in
Support of State Def. Mot. for Summary Judgment (“Nese Decl.”) as Ex. J (“Schneck Dep.”)
116:23–117:15.)
At some point, Sergeant Schneck called the East Farmingdale Fire Department to the
police station, where Plaintiff again refused medical attention. (State Def. 56.1 ¶ 34; Pl. State
56.1 ¶ 34.) In the meantime, Trooper Nolan had returned to the police barracks in Farmingdale.
(State Def. 56.1 ¶ 33; Pl. State 56.1 ¶ 33.) There, he processed Plaintiff’s arrest paperwork,
charging her with disorderly conduct. (State Def. 56.1 ¶ 33; Pl. State 56.1 ¶ 33.) Plaintiff was
presented with a desk appearance ticket and released into the custody of her family. (State Def.
56.1 ¶ 33; Pl. State 56.1 ¶ 33.)

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v.

Plaintiff’s hospitalization

After leaving the police station, Plaintiff went to Franklin Hospital with her brother,
where she presented herself in the emergency room complaining of “bruises and possible head
contusion due to police brutality,” and injury to her wrists and right elbow. (State Def. 56.1
¶ 34; Pl. State 56.1 ¶ 34.) The emergency room records also reflect that Plaintiff complained that
the police “grabbed her.” (Emergency Department Triage, annexed to Nese Decl. as Ex. L.)
Plaintiff was discharged and did not receive any further treatment for injuries she allegedly
sustained as a result of the April 28, 2009 incident. (State Def. 56.1 ¶ 36; Pl. State 56.1 ¶ 36.)
d.

Reports filed subsequent to April 28, 2009

Fire District Defendants were required to complete and submit a PCR following the April
28, 2009 incident. The PCR includes boxes for the patient’s pedigree information, agency codes,
date and time of the alarm, and for subjective and objective assessments of the treatment
rendered to the patient. (FD Def. 56.1 ¶ 77; Pl. FD 56.1 ¶ 77.) Hutchison began to complete the
pedigree section of the PCR report at the scene on April 28, 2009. (FD Def. 56.1 ¶ 67; Pl. FD
56.1 ¶ 67.) Baranowski completed the report in the back of the ambulance and at the fire station,
after which it was faxed to dispatch and put into a slot at the station “to be sent to New York
State as required.” (FD Def. 56.1 ¶¶ 67–68; Pl. FD 56.1 ¶¶ 67–68.)
e.

Disorderly conduct charges

Ultimately, the charge of disorderly conduct under N.Y. Penal Law section 240.20 was
dismissed on motion of Plaintiff’s attorney. (State Def. 56.1 ¶ 33; Pl. State 56.1 ¶ 33.) The
District Court, Nassau County, First District Criminal Term, found the factual allegations
supporting the charge of disorderly conduct, as written, were “facially insufficient” to establish
that there was probable cause to arrest Plaintiff for disorderly conduct. (See People v. Lozada,

13

Index No. 2009NA011994 (Dist. Ct. Sept. 2, 2009), annexed to Pl. Counter 56.1 as Ex. 4.).
Plaintiff was required to appear in court “[a]bout three times” to have the charges dismissed.
(50-h Tr. 58:24–59:4.)
II. Discussion
a.

Standard of Review

Summary judgment is proper only when, construing the evidence in the light most
favorable to the non-movant, “there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Bronzini v. Classic
Sec., LLC, 558 F. App’x 89, 89 (2d Cir. 2014); Kwan v. Andalex Grp. LLC, 737 F.3d 834, 843
(2d Cir. 2013); Kwong v. Bloomberg, 723 F.3d 160, 164–65 (2d Cir. 2013); Redd v. N.Y. Div. of
Parole, 678 F.3d 166, 173 (2d Cir. 2012). The role of the court is not “to weigh the evidence
and determine the truth of the matter but to determine whether there is a genuine issue for trial.”
Redd, 678 F.3d at 173–74 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)).
A genuine issue of fact exists when there is sufficient “evidence on which the jury could
reasonably find for the plaintiff.” Anderson, 477 U.S. at 252. The “mere existence of a scintilla
of evidence” is not sufficient to defeat summary judgment; “there must be evidence on which the
jury could reasonably find for the plaintiff.” Id. The court’s function is to decide “whether, after
resolving all ambiguities and drawing all inferences in favor of the non-moving party, a rational
juror could find in favor of that party.” Pinto v. Allstate Ins. Co., 221 F.3d 394, 398 (2d Cir.
2000).
b.

Section 1983 Fourth Amendment claims

Plaintiff has alleged four separate claims arising from violations of her Fourth
Amendment rights against all Defendants: (1) false arrest, (2) excessive force, (3) malicious

14

prosecution, and (4) unlawful seizure.12 The Court discusses each claim individually below.
i.

False arrest

In assessing Fourth Amendment claims of false arrest brought under Section 1983, courts
generally look to the law of the state in which the arrest is alleged to have occurred. Russo v.
City of Bridgeport, 479 F.3d 196, 203 (2d Cir. 2007). To prevail on a false arrest claim under
New York law, a plaintiff has to prove that: “(1) the defendant intended to confine the plaintiff,
(2) the plaintiff was conscious of the confinement, (3) the plaintiff did not consent to the
confinement and (4) the confinement was not otherwise privileged.” Singer v. Fulton Cnty.
Sheriff, 63 F.3d 110, 118 (2d Cir. 1995) (alteration and internal quotation marks omitted)
(quoting Broughton v. State, 37 N.Y.2d 451, 456 (1975)); see also Ackerson v. City of White
Plains, 702 F.3d 15, 19 (2d Cir. 2012) (outlining the elements of false arrest claims). “The
existence of probable cause to arrest constitutes justification and ‘is a complete defense to an
action for false arrest.’” Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996) (quoting Bernard v.
United States, 25 F.3d 98, 102 (2d Cir. 1994)); see also Ackerson, 702 F.3d at 19–20 (citing
Weyant, 101 F.3d at 852, for probable cause analysis). “A police officer has probable cause for
an arrest when he has ‘knowledge or reasonably trustworthy information of facts and
circumstances that are sufficient to warrant a person of reasonable caution in the belief that the
person to be arrested has committed or is committing a crime[.]’” Swartz v. Insogna, 704 F.3d
105, 111 (2d Cir. 2013) (quoting Weyant, 101 F.3d at 852); Gonzalez v. City of Schenectady, 728
F.3d 149, 155 (2d Cir. 2013) (same). Such knowledge or information can be based on
information provided by an eyewitness, unless the circumstances would raise a doubt as to the

12

Plaintiff does not raise parallel state law tort claims for any of the alleged violations.

15

eyewitness’ veracity. Curley v. Vill. of Suffern, 268 F.3d 65, 70 (2d Cir. 2001) (citing Singer, 63
F.3d at 119). The question is whether the facts known to the arresting officer, at the time of the
arrest, objectively provided probable cause to support the arrest. Gonzalez, 728 F.3d at 155.
1.

State Defendants

It is undisputed that both Trooper Nolan and Trooper Weilminster were involved in
arresting Plaintiff and handcuffing her, that she was aware of their actions, and that she did not
consent to them. Thus, whether State Defendants are liable for false arrest turns on whether the
confinement was privileged, that is, whether they had probable cause to arrest Plaintiff.
State Defendants argue that they had probable cause to arrest Plaintiff, which is
justification for the arrest and a complete defense to an action for false arrest. (State Def. Mem.
21.) State Defendants contend that the information provided to them by the Wantagh Fire
Department members was sufficient to provide State Defendants with probable cause to arrest
Plaintiff for disorderly conduct. (State Def. Reply Mem. 2–3.) State Defendants further assert
that “Plaintiff cannot prove that the State Defendants lacked probable cause to arrest and
prosecute her . . . .” (State Def. Reply Mem. 3.) For the following reasons, the Court finds that
genuine issues of fact exist and a reasonable jury could find that State Defendants lacked
probable cause to arrest Plaintiff.
Under New York Law, a person is guilty of the violation of disorderly conduct when:
with intent to cause public inconvenience, annoyance or alarm, or
recklessly creating a risk thereof: 1. He engages in fighting or in
violent, tumultuous or threatening behavior; or 2. He makes
unreasonable noise; or 3. In a public place, he uses abusive or
obscene language, or makes an obscene gesture; or 4. Without
lawful authority, he disturbs any lawful assembly or meeting of
persons; or 5. He obstructs vehicular or pedestrian traffic; or 6. He
congregates with other persons in a public place and refuses to
comply with a lawful order of the police to disperse; or 7. He
creates a hazardous or physically offensive condition by any act
16

which serves no legitimate purpose.
N.Y. Penal Law § 240.20. The Second Circuit has held “that probable cause for a disorderly
conduct violation under N.Y. Penal Law [section] 240.20 exists only where a reasonable person
in the officer’s circumstances would have believed that the person to be arrested acted ‘with
intent to cause public inconvenience, annoyance or alarm or with recklessness as to a risk
thereof.’” McClellan v. City of Rensselaer, 395 F. App’x 717, 718 (2d Cir. 2010) (quoting
Provost v. City of Newburgh, 262 F.3d 146, 157 (2d Cir. 2001)) (internal quotation marks
omitted); see also Swartz, 704 F.3d at 111 (“‘The disorderly conduct statute at issue here does
not circumscribe pure speech directed at an individual. Rather, it is directed at words and
utterances coupled with an intent to create a risk of public disorder . . .’” (quoting People v.
Tichenor, 89 N.Y.2d 769, 775 (1997))). “To demonstrate the existence of probable cause for
disorderly conduct as a matter of law, [the defendant] was required to show that no reasonable
jury could have failed to find such a reasonable belief.” McClellan, 395 F. App’x at 718 (citing
Provost, 262 F.3d at 157); Jaegly v. Couch, 439 F.3d 149, 154 (2d Cir. 2006) (“[P]robable cause
‘depends upon the reasonable conclusion to be drawn from the facts known to the arresting
officer at the time of the arrest,’ and [] the probable cause inquiry is objective rather than
subjective.” (quoting Devenpeck v. Alford, 543 U.S. 146, 152–53 (2004))).
The existence of probable cause turns on what information State Defendants had at the
time of Plaintiff’s arrest. The record reflects two conflicting versions of Plaintiff’s behavior at
the scene. Defendants contend that Plaintiff was behaving in a belligerent manner, making
unreasonable noise and using obscene language. Plaintiff contends that she was not, and points
to both her own and Defendants’ testimony which indicates that Plaintiff was “calm” and
“normal” at points throughout her short interaction with the State Troopers and Wantagh Fire

17

District members. Even accepting as fact the testimony that Fire District members told the
Troopers that Plaintiff was using obscene language and being very loud, Trooper Nolan
thereafter had an opportunity to observe Plaintiff, and, by her account, she was at that point very
calm. Furthermore, there is insufficient evidence in the record to conclude as a matter of law
that the information provided to the State Troopers would necessarily support a finding that
Plaintiff intended to create a risk of public disturbance. Drawing all reasonable inferences in
favor of the non–moving party, there is a genuine issue of fact as to whether State Defendants
had probable cause to arrest Plaintiff. Lowth v. Town of Cheektowaga, 82 F.3d 563, 569 (2d Cir.
1996) (“Probable cause exists when there are ‘facts and circumstances sufficient to warrant a
prudent man that the [suspect] had committed or was committing an offense.’” (alteration in
original) (quoting Gerstein v. Pugh, 420 U.S. 103, 111 (1975)). Though State Defendants’
version of events is corroborated by others at the scene, namely the Fire District Defendants, it is
not the Court’s province at summary judgment to determine credibility of the various witnesses.
Jeffreys v. City of New York, 426 F.3d 549, 553–54 (2d Cir. 2005) (“Assessments of credibility
and choices between conflicting versions of the events are matters for the jury, not for the court
on summary judgment.” (quoting Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir. 1996)));
Graham v. City of New York, 928 F. Supp. 2d 610, 617 (E.D.N.Y. 2013) (collecting cases).
Accordingly, the Court finds that a genuine issue of fact exists as to whether State Defendants
had probable cause to arrest Plaintiff for the disorderly conduct violation. State Defendant’s
motion for summary judgment as to Plaintiff’s false arrest claim is denied.
2.

Fire District Defendants

Fire District Defendants argue that because they are non-police actors, the Plaintiff must
show that they took an active role in Plaintiff’s arrest, “such as giving advice and encouragement

18

or importuning the authorities to act, and that the defendant intended that the plaintiff be
confined.” (FD Def. Mem. 11–12.) Fire District Defendants also argue that Plaintiff failed to
show that Baranowski, Hutchison or Lindgren instigated her arrest or persuaded the State
Troopers to arrest her. (FD Def. Mem. 12–13; FD Def. Reply Mem. 19.) They contend that the
evidence shows they did nothing more than request the assistance of the Troopers. (FD Def.
Mem. 12.) Plaintiff argues that Fire District Defendants instigated her arrest, and that State
Defendants would not have placed her under arrest had Fire District Defendants not requested
their assistance in obtaining the signature on the RMA form. (Pl. Opp’n Mem. 18.) She further
argues that the Fire District Defendants and State Defendants conspired to bring about her arrest,
and the events that followed. (Id.)
The first prong of a false arrest claim, intent to confine, may be shown by evidence that a
defendant either (a) actually confined or intended to confine a plaintiff himself, or (b)
“affirmatively procured or instigated the plaintiff’s arrest.” King v. Crossland Sav. Bank, 111
F.3d 251, 256 (2d Cir. 1997) (citations omitted). To show instigation, a plaintiff must show that
a defendant did more than simply provide information to the police. Id. at 257; see also Kraft v.
City of New York, 696 F. Supp. 2d 403, 422 (S.D.N.Y. 2010) (“[A] complainant, by merely
seeking police assistance or furnishing information to law enforcement authorities who are then
free to exercise their own judgment as to whether an arrest should be made and criminal charges
filed, will not be held liable for false arrest or malicious prosecution.”) aff’d, 441 F. App’x 24
(2d Cir. 2011). “Under New York law, ‘[o]ne who wrongfully accuses another of criminal
conduct and induces or procures that person’s arrest may be liable for false arrest.’” Croft v.
Greenhope Servs. for Women, Inc., No. 13-CV-2996, 2013 WL 6642677, at *5 (S.D.N.Y. Dec.
17, 2013) (alterations in original) (quoting Dunn v. City of Syracuse, 443 N.Y.S.2d 463, 464

19

(App. Div. 1981)) (citing Vernes v. Phillips, 266 N.Y. 298 (1935)); see also Hill v. Melvin, No.
05-CV-6645, 2006 WL 1749520, at *11 (S.D.N.Y. June 27, 2006) aff’d, 323 F. App’x 61 (2d
Cir. 2009).
Plaintiff relies heavily on the “secretive conversation” between Fire District Defendants
and State Defendants. (Pl. Opp’n Mem. 18.) However, Plaintiff’s speculation about what Fire
District Defendants said to State Defendants is insufficient to create a genuine issue of fact about
what information Fire District Defendants provided State Defendants, and whether or not they
can be said to have “instigated” or “procured” Plaintiff’s arrest. Even assuming Plaintiff was
calm and was not yelling or gesticulating, and Fire District Defendants still told State Defendants
that Plaintiff was behaving irrationally, yelling and cursing, (see Lingdren Dep. 175:15–176:25;
Nolan Dep. 61:23–62:8), the inaccurate information provided to the State Troopers cannot be
said to have “instigated” Plaintiff’s arrest. As discussed above, Trooper Nolan had the
opportunity to observe Plaintiff and make his own determination as to whether her behavior
warranted arrest.
Plaintiff also argues that Fire District Defendants were acting “in concert” with State
Defendants to violate her rights. (Pl. Opp’n Mem. 18.) She argues that their secretive
conversation, only one part of which she heard, creates a genuine issue as to whether Fire
District Defendants and State Defendants conspired to have her falsely arrested. (Pl. Opp’n
Mem. 18.) Fire District Defendants contend that Plaintiff has failed to establish a conspiracy
between State Defendants and any of Fire District Defendants which would give rise to liability
for her arrest. (FD Def. Mem. 13–14.) Fire District Defendants argue that Baranowski and
Hutchison were merely performing their duties as NYS-certified EMTs and were in good faith
attempting to either assess Plaintiff’s mental and physical status, or to determine whether she

20

needed to be transported to a hospital. (FD Def. Mem. 14.) Fire District Defendants further
contend that when Plaintiff repeatedly refused to sign the form and “started yelling,” Chief
Lindgren instructed all of the Fire District personnel to stay away from Plaintiff. (FD Def. Mem.
15.) They contend that the most any of the individual Fire District Defendants did was inform
the State Troopers that Plaintiff was acting erratically and yelling at the EMTs. (FD Def. Mem.
15.)
“To prove a § 1983 conspiracy, a plaintiff must show: (1) an agreement between two or
more state actors or between a state actor and a private entity; (2) to act in concert to inflict an
unconstitutional injury; and (3) an overt act done in furtherance of that goal causing damages.”
Pangburn v. Culbertson, 200 F.3d 65, 72 (2d Cir. 1999); see also Young v. Cnty. of Fulton, 160
F.3d 899, 904 (2d Cir. 1998); Singer, 63 F.3d at 119. Put differently, a third party may be liable
for conspiracy to violate constitutional rights when he or she “‘is a willful participant in joint
activity with the State or its agents.’” Ciambriello v. Cnty. of Nassau, 292 F.3d 307, 324 (2d Cir.
2002) (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 152 (1970)).
The only evidence before the Court shows that the conversation between the State
Troopers and any Fire District member is that Lindgren and/or Baranowski (1) obtained the
attention of the State Troopers, who were sitting in their vehicle with closed doors and windows,
(2) informed them that Plaintiff was yelling, screaming, and being belligerent, (3) indicated that
Plaintiff did not want to be touched, (4) asked for help because Plaintiff was behaving
irrationally, and (5) may have asked the Troopers for assistance in obtaining a signature on the
RMA. (Lindgren Dep. 175:2–176:25; Baranowski Dep. 80:3–16; Nolan Dep. 71:11–23;
Weilminster Dep. 40:21–43:17.) Plaintiff admits that she “couldn’t hear anything that they
said,” and “all I know is that the police officer who seemed to be on my side now turned against

21

me and threatened to arrest me if I didn’t abide by what they were asking.” (Pl. Dep. 233:7–17.)
Plaintiff has not shown sufficient evidence that could lead a reasonable jury to conclude
that Defendants agreed to “act in concert to inflict an unconstitutional injury,” and thus cannot
hold Fire District Defendants liable under a theory of conspiracy liability. See Pangburn, 200
F.3d at 72. Plaintiff’s own unsubstantiated speculation and allegations do not support finding a
genuine issue of material fact as to the alleged conspiracy. See Scotto v. Almenas, 143 F.3d 105,
114–15 (2d Cir. 1998) (finding allegations that a communications took place insufficient to show
conspiracy, noting that “the non-moving party may not rely on conclusory allegations or
unsubstantiated speculation”) (citations omitted); see also Gallop v. Cheney, 642 F.3d 364, 369
(2d Cir. 2011) (upholding dismissal of complaint that contained only “conclusory, vague, or
general allegations of conspiracy to deprive a person of constitutional rights” noting it “fail[ed]
to plausibly allege the existence of a conspiracy among the defendants”); Carrillos v. Inc. Vill. of
Hempstead, --- F. Supp. 3d ---, ---, 2015 WL 728244, at *6 (E.D.N.Y. Feb. 20, 2015) (“[T]he
summoning of police officers or the provision of information to police officers, even if that
information is false or results in the officers taking affirmative action, is not sufficient to
constitute joint action with state actors for purposes of Section 1983.” (citing Ginsberg v. Healey
Car & Truck Leading, Inc., 189 F.3d 268, 272 (2d Cir. 1999))).
Fire District Defendants’ motion for summary judgment as to Plaintiff’s false arrest claim
is granted.
ii.

Excessive force

“The Fourth Amendment prohibits the use of unreasonable and therefore excessive force
by a police officer” in the course of an arrest. Tracy v. Freshwater, 623 F.3d. 90, 96 (2d Cir.
2010) (citing Graham v. Connor, 490 U.S. 386, 395 (1989)). Because the Fourth Amendment’s

22

test of reasonableness is one of “objective reasonableness,” the inquiry is fact specific and
requires a balancing of various factors. Id.; see also Wims v. N.Y.C. Police Dep’t, No. 10-CV6128, 2011 WL 2946369, at *4 (S.D.N.Y. July 20, 2011) (“When excessive force is alleged, a
court must determine ‘whether the officers’ actions are ‘objectively reasonable’ in light of the
facts and circumstances confronting them, without regard to their underlying intent or
motivation.’” (quoting Graham, 490 U.S. at 397)). “Not every push or shove, even if it may
later seem unnecessary in the peace of a judge’s chambers, violates the Fourth Amendment.”
Tracy, 623 F.3d at 96 (citing Graham, 490 U.S. at 397). A court considers the totality of the
circumstances when determining whether excessive force was used against a plaintiff. Tracy,
623 F.3d at 96. When determining whether an officer’s actions constitute excessive force, a
court considers: “(1) the nature and severity of the crime leading to the arrest, (2) whether the
suspect poses an immediate threat to the safety of the officer or others, and (3) whether the
suspect was actively resisting arrest or attempting to evade arrest by flight.” Tracy, 623 F.3d at
96 (citations omitted); see also Nimkoff v. Dollhausen, 751 F. Supp. 2d 455, 463 (E.D.N.Y.
2010) (“[T]he fact finder must consider the totality of the circumstances, including ‘the crime
committed, its severity, the threat of danger to the officer and society, and whether the suspect is
resisting or attempting to evade arrest.’” (citations omitted)). Viewing the facts in the light most
favorable to Plaintiff, the Court finds that a reasonable jury could find that excessive force was
used against Plaintiff by State Defendants.
1.

State Defendants

State Defendants claim that Plaintiff cannot maintain an excessive force claim because
removing Plaintiff from her vehicle was de minimis force, State Defendants used no more force
than necessary to handcuff her, and they removed the handcuffs as soon as Plaintiff requested

23

they be removed.13 (State Def. Mem. 17.) Defendants argue that the use of handcuffs was
appropriate given the circumstances, particularly because the handcuffing of arrestees is standard
procedure and the handcuffs were removed after approximately five minutes, as soon as Plaintiff
requested they be removed. (State Def. Reply Mem. 6.) State Defendants also argue that the
photographs taken at the State Police barracks shortly after the incident show no injuries, and
merely minor reddening of the skin on her wrists and insider her elbow, which Plaintiff had
described as resulting from contact with the air bag during the impact. (State Def. Mem. 17.)
Viewing the facts in the light most favorable to Plaintiff, Plaintiff has established a genuine issue
of fact as to whether Trooper Nolan used excessive force in removing her from her car and
handcuffing her. See Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 123–24 (2d Cir. 2004)
(noting that the Second Circuit has found that “allegations that police yanked arrestee out of a
car, threw her against it, and pinned her arm behind her back were sufficient to withstand
summary judgment” (citing Robison v. Via, 821 F.2d 913, 923–24 (2d Cir. 1987)).
According to Plaintiff, she was sitting peacefully in her car, attempting to make a
telephone call, when Trooper Nolan approached her. Trooper Nolan grabbed her, dragged her
from her vehicle, pushed her to the ground, and, with the assistance of Trooper Weilminster,
handcuffed her behind her back. (Pl. Aff. ¶ 11; Pl. Dep. 108:11–113:10.) Viewing the facts in
13

State Defendants allege that Trooper Nolan “clearly had probable cause to arrest
Plaintiff,” making the minimal force exercised to remove Plaintiff from her car reasonable, and
the use of handcuffs reasonable. (State Def. Reply Mem. 4.) However, as discussed above,
whether State Defendants had probable cause to arrest Plaintiff is an issue properly determined
by a jury. Furthermore, even assuming State Defendants had probable cause to arrest Plaintiff,
the use of force and handcuffs, though it may be standard procedure, is not per se acceptable.
Soares v Connecticut, 8 F.3d 917, 921 (2d Cir. 1993) (rejecting the adoption of “a per se rule that
the use of handcuffs in effecting an arrest is always reasonable”); see also Arum v. Miller, 331 F.
Supp. 2d 99, 110 (E.D.N.Y. 2004) (“Although placing handcuffs on an individual being arrested
is generally reasonable, that act is not per se reasonable.”).

24

the light most favorable to Plaintiff, whether Trooper Nolan even had probable cause to arrest
her is questionable, and there is no indication that she was trying to resist arrest. Plaintiff visited
the hospital following her departure from the police barracks, and complained of injuries
including bruised wrists. (Pl. Dep. 196:12–197:10, 201:13–19.) She also testified that she
informed the hospital staff that she had sustained an injury to hear head and knees. (Pl. Dep.
194:6–197:10.) A reasonable jury could find that no force was warranted, and that forcibly
removing Plaintiff from her car and handcuffing her was excessive force. See, e.g., Robison, 821
F.2d at 923–24 (holding that forcibly removing nonviolent plaintiff from her car could be
excessive force); Lemmo v. City of New York, No. 08-CV-2641, 2011 WL 4592785, at *8
(E.D.N.Y. Sept. 30, 2011) (holding that tightening “handcuffs . . . to their maximum, for
apparently gratuitous reasons” along with kneeing the plaintiff in his back could be excessive
force); Hamilton v. City of New York, No. 07-CV-3633, 2009 WL 2226105, at *9 (E.D.N.Y. July
23, 2009) (holding that “purposely tripp[ing] [the plaintiff] while he was being escorted, in
handcuffs, . . . causing him to fall to the floor and cut his face” could be excessive force);
Davenport v. Cnty. of Suffolk, No. 99-CV-3088, 2007 WL 608125, at *11 (E.D.N.Y. Feb. 23,
2007) (holding that an officer intentionally hitting the plaintiff’s head into the top of the police
car as the plaintiff was being placed in the police car could be excessive force); see also Maxwell
v. City of New York, 380 F.3d 106, 109–10 (2d Cir.) (reversing the district court’s entry of
summary judgment against a plaintiff who had suffered only “minor scrapes, bumps or bruises
[that] potentially could occur, often unintended, during any arrest,” pain, and post-concussive
syndrome, as a result of police officer allegedly shoving her, causing her to hit her head)
supplemented, 108 F. App’x 10 (2d Cir. 2004).
State Defendants are liable for excessive force as long as the force used exceeded the

25

force needed given the totality of the circumstances. Weather v. City of Mount Vernon, No. 08CV-192, 2011 WL 1046165, at *11 (S.D.N.Y. Mar. 22, 2011) (“Under the law, police are not
permitted to use any degree of force in all instances — in some circumstances, no use of force is
reasonable because none is required.”), aff’d, 474 F. App’x 821 (2d Cir. 2012). While the Court
acknowledges that in certain cases the alleged unconstitutional act and injury can be de minimis
and may not rise to the level of excessive force, intentional or “gratuitous” force may be
excessive under the circumstances, even if the only injury is minimal. Davenport, 2007 WL
608125, at *11; see also Amnesty Am., 361 F.3d at 123–24 (distinguishing the kind of force that
can be used when arresting nonviolent suspects passively resisting arrest); De Michele v. City of
New York, No. 09-CV-9334, 2012 WL 4354763, at *13–14 (S.D.N.Y. Sept. 24, 2012) (“To
determine whether the handcuffing of an arrestee was reasonable, the handcuffing must be
viewed ‘in light of the minimal amount of force necessary to maintain custody of [the arrestee].’”
(alteration in original) (citations omitted)). The fact that Plaintiff may not have sustained serious
injuries or been subject to long-lasting harm is not dispositive. See Hayes v. N.Y.C. Police Dep’t,
212 F. App’x 60, 62 (2d Cir. 2007) (“[W]e have permitted claims to survive summary judgment
where the only injury alleged is bruising.”) (citations omitted); Hayes v. Cnty. of Sullivan, 853 F.
Supp. 2d 400, 432 (S.D.N.Y. 2012) (“Plaintiff need not show ‘permanent or severe’ injuries to
maintain an excessive force claim,” minor injuries may be sufficient. (quoting Robison, 821 F.2d
at 924)); Lemmo, 2011 WL 4592785, at *8 (noting that a reasonable “jury may consider the lack
of serious injury as evidence that the implemented force was not excessive;” and still conclude
that any force used under the circumstances was inappropriate under the circumstances (internal
quotation marks and citations omitted)).
Under the totality of the circumstances, viewing the facts in the light most favorable to

26

Plaintiff, a reasonable jury could find that the force used by State Defendants was excessive.
According to Plaintiff, she was sitting peacefully in her car and not attempting to resist arrest,
when Trooper Nolan grabbed her and handcuffed her, and Trooper Weilminster ran over to assist
in putting the handcuffs on. While Trooper Nolan pulled Plaintiff from her car, both State
Defendants placed handcuffs on her, and Plaintiff testified that both held her to the ground while
handcuffing her and escorted her back to the police car. (50-h Tr. 48:15–49:5; Pl. Dep.
118:3−12.) While it is undisputed that Plaintiff’s handcuffs were removed as soon as she
requested them to be, complaining that they were too tight, there are sufficient disputes as to the
other facts surrounding her arrest, removal from her car, and handcuffing. These persistent
disputes of fact make summary judgment on Plaintiff’s excessive force claim inappropriate.
Lemmo, 2011 WL 4592785, at *8 (holding that under the totality of the circumstances, plaintiff’s
claim that his handcuffs were tightened along with related physical force was enough to create a
question of fact for the jury); Arum v. Miller, 331 F. Supp. 2d 99, 110 (E.D.N.Y. 2004) (denying
the defendant’s summary judgment motion on an excessive force claim for handcuffing where
there were disputes of fact as to whether handcuffing was warranted where the plaintiff was only
arrested for “minor violations”); Gonzalez v. City of New York, No. 98-CV-3084, 2000 WL
516682, at *4 (E.D.N.Y. Mar. 7, 2000) (holding that the “plaintiff, who was undisputedly not
resisting arrest, was dragged to the front of the police car, slammed against the hood of the
vehicle and forcibly handcuffed . . . [and] placed in very tight handcuffs” even though they were
“quickly adjusted,” raised an issue of fact for the jury whether the force used against him was
excessive).
The Court denies State Defendants’ motion for summary judgment as to Plaintiff’s
excessive force claim.

27

2.

Fire District Defendants

Fire District Defendants argue that there is no evidence that Hutchison, Baranowski or
Lindgren encouraged and requested State Defendants to apply intimidation or force to Plaintiff.
(FD Def. Reply Mem. 18.) Plaintiff contends that they “played an active role in threatening her,
involving the police to threaten her, and then conspiring to have Plaintiff transported against her
will or arrested,” and they “encouraged and requested that the State Defendants apply
intimidation or force to the Plaintiff . . . .” (Pl. Opp’n Mem. 17.)
For the reasons discussed above, Plaintiff has failed to present evidence to support her
speculation regarding what Fire District Defendants discussed with State Defendants and
otherwise has not shown sufficient facts to support her theory of conspiracy. “Allegations which
are nothing more than broad, simple, and conclusory statements are insufficient to state a claim
under § 1983.” Younger v. City of New York, 480 F. Supp. 2d 723, 733 (S.D.N.Y. 2007)
(quoting Alfaro Motors, Inc. v. Ward, 814 F.2d 883, 887 (2d Cir. 1987) (internal quotation marks
and alteration omitted)) (dismissing excessive force claim against defendants not alleged to have
participated in an arrest and assault). Furthermore, Plaintiff has not alleged the personal
involvement of any of Fire District Defendants in the circumstances on which she bases her
excessive force claims. Grullon v. City of New Haven, 720 F.3d 133, 138 (2d Cir. 2013) (“It is
well settled that, in order to establish a defendant’s individual liability in a suit brought under
§ 1983, a plaintiff must show, inter alia, the defendant’s personal involvement in the alleged
constitutional deprivation.” (citations omitted)).
Fire District Defendants’ motion for summary judgment as to Plaintiff’s excessive force
claim is granted.

28

iii. Malicious prosecution
Plaintiff asserts a malicious prosecution claim based on the issuance of a desk appearance
ticket for disorderly conduct, which she argues was issued because she filed a complaint against
Troopers Nolan and Weilminster. (Pl. Opp’n Mem. 19) Under New York law, the elements of a
malicious prosecution claim are “(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.”
Morris v. Silvestre, --- F. App’x ---, ---, 2015 WL 1061124, at *1 (2d Cir. Mar. 12, 2015)
(quoting Manganiello v. City of New York, 612 F.3d 149, 161 (2d Cir. 2010)) (internal quotation
marks omitted); see also Lewis v. City of New York, 591 F. App’x 21, 22 (2d Cir. 2015) (stating
the elements of a malicious prosecution claim under New York law); Cameron v. City of New
York, 598 F.3d 50, 63 (2d Cir. 2010) (same); Murphy v. Lynn, 118 F.3d 938, 947 (2d Cir. 1997)
(same); Adams v. City of New York, 993 F. Supp. 2d 306, 325 (E.D.N.Y. 2014) (same). In
addition, a plaintiff must show a “sufficient post-arraignment liberty restraint to implicate the
plaintiff’s Fourth Amendment rights.” Rutigliano v. City of New York, 326 F. App’x 5, 8–9
(2d Cir. 2009) (quoting Rohman v. N.Y.C. Transit Auth., 215 F.3d 208, 215 (2d Cir. 2000)).
1.

State Defendants

State Defendants argue that they had probable cause to arrest Plaintiff, which is
justification for Plaintiff’s prosecution. (State Def. Mem. 21.) The Court has addressed this
issue above, in Part II.b.i.1 of this Memorandum and Order, and will not do so again here. State
Defendants further contend that the dismissal of the disorderly conduct charges against Plaintiff
were not “terminated in her favor” as required to sustain a malicious prosecution claim. (State
Def. Mem. 22–23.)

29

To state a claim for malicious prosecution, a plaintiff must “demonstrate a final
termination of the criminal proceeding in her favor, or at least ‘not inconsistent with [her]
innocence.’” Okoi v. El Al Israel Airlines, 378 F. App’x 9, 11 (2d Cir. 2010) (alteration in
original) (quoting Smith–Hunter v. Harvey, 95 N.Y.2d 191, 196 (2000)). Dismissals based on
legal insufficiency generally do not satisfy the favorable termination element. See Breen v.
Garrison, 169 F.3d 152, 153 (2d Cir. 1999) (“The charge subsequently was dismissed for facial
insufficiency pursuant to section 170.30 of New York’s Criminal Procedure Law. Because this
was not a decision on the merits, an essential element of a cause of action for malicious
prosecution, the district court did not err in dismissing [plaintiff’s] claim of malicious
prosecution.”); Gem Fin. Serv., Inc. v. City of New York, No. 13-CV-1686, 2014 WL 1010408, at
*10 (E.D.N.Y. 2014) (collecting cases). This is, in part, because a dismissal for legal
insufficiency lacks the requisite finality to constitute a termination. See Smith-Hunter v. Harvey,
95 N.Y.2d 191, 197 (2000) (“[A] plaintiff in a malicious prosecution action must show, as a
threshold matter, that the criminal proceeding was finally terminated. Indeed, it is well settled
that any disposition of the criminal action which does not terminate it but permits it to be
renewed . . . cannot serve as a foundation for the [malicious prosecution] action.” (alterations in
original) (citation and internal quotation marks omitted)); McGee v. Doe, 568 F. App’x 32,
39−40 (2d Cir. 2014) (discussing MacFawn v. Kresler, 88 N.Y.2d 859 (1996), in light of SmithHunter and concluding that dismissal was not final because facts did not show “the formal
abandonment of the proceedings by the public prosecutor” (quoting Smith-Hunter, 95 N.Y.2d at
198)).
The Order issued by the Queens County Criminal Court shows that the court dismissed
the accusatory instrument alleging a violation of N.Y. Penal Law section 240.20 for facial

30

insufficiency. (See People v. Lozada, Index No. 2009NA011994 (Dist. Ct. Sept. 2, 2009),
annexed to Pl. Counter 56.1 as Ex. 4.) The court concluded that the accusatory instrument
lacked factual allegations supporting one element of the alleged violation, namely, that “there is
no indication that the [Plaintiff’s] act carried public ramification as the nature and number of
those attracted to the incident is not articulated . . . .” and thus dismissed the instrument pursuant
to New York Criminal Procedure Law section 170.30(1)(a). (Id.) This alone is insufficient to
show that the charge was finally terminated in her favor.14 McGee, 568 F. App’x at 39
(upholding dismissal of Section 1983 malicious prosecution claim, finding charge dismissed as
facially insufficient under New York Criminal Procedure Law section 170.30(1)(a) had not
terminated in plaintiff’s favor as required by New York law) (citing Breen, 169 F.3d at 153 and
MacFawn v. Kresler, 88 N.Y.2d 859 (1996)) as amended (July 2, 2014). The Court grants State
Defendants’ motion for summary judgment as to Plaintiff’s malicious prosecution claim.
2.

Fire District Defendants

Fire District Defendants argue that the facts unequivocally establish that Baranowski,
14

Plaintiff has done nothing more than present conclusory arguments, without citations
to controlling or persuasive authority, that the dismissal constituted a termination in her favor.
Under New York law, there are two ways to establish a favorable termination: (1) an
adjudication on the merits, or (2) an act of withdrawal or abandonment on the part of the
prosecuting authority. See Morgan v. Nassau Cnty., No. 03-CV-5109, 2009 WL 2882823, at *8
(E.D.N.Y. 2009) (quoting O’Brien v. Alexander, 101 F.3d 1479, 1486 (2d Cir. 1996)). Here, as
in McGee, “there was no indication that the dismissal of the action against [Plaintiff], and the
failure by the prosecution to re-file the claim, constituted a formal abandonment of the charges.”
See McGee v. Doe, 568 F. App’x 32, 40 (2d Cir. 2014) as amended (July 2, 2014). In this action,
there is no act or action on the part of the government to similarly support the conclusion that the
charges against Plaintiff were formally and finally abandoned. Cf. Stampf v. Long Island R. Co.,
761 F.3d 192, 201 (2d Cir. 2014) (finding that under New York law, issuance of formal
declination of prosecution may suffice to establish termination in the plaintiff’s favor even if the
prosecutor could theoretically reinstate charges). Thus, in the particular circumstances presented
here, there is no evidence in the record to indicate that the dismissal was a final termination in
Plaintiff’s favor, and it is therefore proper to grant summary judgment as to Plaintiff’s claim for
malicious prosecution.
31

Hutchison and Lindgren did not in any way initiate judicial proceedings against Plaintiff and did
not direct the State Trooper to arrest Plaintiff or otherwise initiate the proceedings against her.
(FD Def. Mem. 17.) Plaintiff argues that Fire District Defendants sought the assistance of the
State Troopers for the specific purpose of orchestrating her arrest, and arguing that if it was not
for their request, Plaintiff would not have been arrested or charged. (Pl. Opp’n Mem. 20.) For
the reasons discussed above, the Court grants summary judgment to Fire District Defendants as
to Plaintiff’s malicious prosecution claim.
iv. Unlawful seizure
Plaintiff argues that the same alleged actions which give rise to Plaintiff’s claim for false
arrest also support a claim for unlawful seizure of her person. (Pl. Opp’n Mem. 17.) A Section
“1983 claim for false arrest derives from [a plaintiff’s] Fourth Amendment right to remain free
from unreasonable seizures, which includes the right to remain free from arrest absent probable
cause.” Jaegly, 439 F.3d at 151 (citing Weyant, 101 F.3d at 852). Because Plaintiff does not
allege a search or seizure beyond the actions supporting her false arrest claim, Plaintiff’s
unlawful seizure claim is subsumed by her other Fourth Amendment claims, analyzed above.
See Lastra v. Barnes & Noble Bookstore, No. 11-CV-2173, 2012 WL 12876, at *5 (S.D.N.Y.
Jan. 3, 2012) (noting three causes of action for unlawful seizure, unlawful detainment and
unlawful imprisonment have the same elements as each other and as claims for false arrest and
false imprisonment) (citing Copeland v. N .Y. City Police Dep’t, 97-CV-4224, 1998 WL 799169,
*2 (S.D.N.Y. Nov. 13, 1998)) aff’d, 523 F. App’x 32 (2d Cir. 2013).
c.

Section 1983 First Amendment retaliation

Plaintiff argues that she was arrested for refusing to sign the RMA portion of the form, in
violation of her First Amendment right to refuse to provide personal information as well as the

32

right to refuse to sign the paperwork. (Pl. Opp’n Mem. 12–13.) Plaintiff also argues that even if
the Defendants’ version of events were true, Plaintiff had a First Amendment right to yell
profanities on a public highway in the middle of the night. (Pl. Opp’n Mem. 13.)
To prevail on a First Amendment retaliation claim, a plaintiff must show: (1) she has a
right protected by the First Amendment; (2) the defendant’s actions were motivated or
substantially caused by her exercise of that right; and (3) the defendant’s actions caused her
injury. Dorsett v. Cnty. of Nassau, 732 F.3d 157, 160 (2d Cir. 2013) (citing Curley, 268 F.3d at
73); see also Prince v. Cnty. of Nassau, 563 F. App’x 13, 17 (2d Cir. 2014) (quoting Dorsett, 732
F.3d at 160, for First Amendment retaliation standard, noting that Dorsett clarified former
standard); Crichlow v. Fischer, No. 12-CV-7774, 2015 WL 678725, at *4 (S.D.N.Y. Feb. 17,
2015) (quoting Dorsett, 732 F.3d at 160, for standard, noting “a plaintiff must show ‘either that
his speech has been adversely affected by the government retaliation or that he has suffered some
other concrete harm’”).
i.

State Defendants
1.

Motivation

State Defendants concede that Plaintiff had a right under the First Amendment to refuse
to sign the RMA form as requested by Fire District Defendants. (State Def. Mem. 11.) State
Defendants argue, however, that Plaintiff’s argument fails on the second prong of the test
because State Defendants had probable cause to arrest and charge Plaintiff with the crime of
Disorderly Conduct, a violation of New York Penal Law section 240.20. (Id. 11–14.) State
Defendants’ argue that their perception of Plaintiff’s behavior, which is corroborated by the
testimony of Fire District Defendants, including her screaming and using obscenities and refusal
to comply with Trooper Nolan’s admonition to stop her behavior or face arrest, gave State

33

Defendants probable cause to arrest Plaintiff. (Id. 13–14.) State Defendants further argue that
“[s]pecific proof of improper motivation is required” to survive summary judgment on a First
Amendment retaliation claim, and that Plaintiff’s “only support for her baseless claim is” the
bare allegation that State Defendants maliciously and intentionally set out to deprive her of a
constitutional right. (State Def. Mem. 14.) State Defendants also argue that a “reduc[tion] to
pure speculation,” is not an adequate basis for a First Amendment animus claim. (State Def.
Reply Mem. 5 (quoting Haus v. City of New York, 2011 U.S. Dist. LEXIS 155735, at *76
(S.D.N.Y. Aug. 31, 2011) (Report & Recommendation).)
“Specific proof of improper motivation is required in order for plaintiff to survive
summary judgment on a First Amendment retaliation claim.” Curley, 268 F.3d at 73 (citing Blue
v. Koren, 72 F.3d 1075, 1082–83 (2d Cir. 1995)); Prince, 563 F. App’x at 17 (finding that
plaintiff did not raise a genuine issue of material fact as to whether defendants were motivated by
retaliatory animus rather than a good-faith desire to enforce certain licensed premise codes).
“[T]he particularized evidence of improper motive may include expressions by the officials
involved regarding their state of mind, circumstances suggesting in a substantial fashion that the
plaintiff has been singled out, or the highly unusual nature of the actions taken.” Bartels v. Inc.
Vill. of Lloyd, 751 F. Supp. 2d 387, 399 (E.D.N.Y. 2010) (quoting Blue, 72 F.3d at 1084)
(internal quotation marks omitted). To survive summary judgment, a plaintiff need only
demonstrate that the speech was a substantial or motivating factor in an adverse decision taken
by the defendant. Royal Crown Day Care LLC v. Dep’t of Health & Mental Hyg. of City of N.Y.,
746 F.3d 538, 544 (2d Cir. 2014) (citing Beechwood Restorative Care Ctr. v. Leeds, 436 F.3d
147, 152 (2d Cir. 2006)). If both proper and improper motivations were behind defendants’
conduct, the action may be upheld if it would have been taken based on proper reasons alone.

34

See Santulli v. Russello, 519 F. App’x 706, 709 (2d Cir. 2013) (citing Graham v. Henderson, 89
F.3d 75, 79 (2d Cir. 1996)).
Plaintiff has raised a genuine issue of material fact as to whether the Trooper Nolan was
motivated by improper retaliatory animus, rather than a good-faith desire to enforce the
disorderly conduct law.15 According to her affidavit and testimony, Plaintiff was sitting calmly
in her car, calmly refused to sign the RMA form, and was instructed by Trooper Nolan that she
needed to sign the form or she would face arrest. (Pl. Aff. ¶¶ 9–13; Pl. Dep. 101:25–104:24,
107:17–108:20.) She contends that she was not yelling or shouting obscenities at any time
leading up to her arrest. Viewing the facts in the light most favorable to Plaintiff, a reasonable
jury could infer from the circumstances that Trooper Nolan was motivated to arrest her because
she refused to sign the form. See Bartels, 751 F. Supp. 2d at 399 (finding that plaintiff had
raised issues of fact as to police officers’ motive based on circumstantial evidence, including
statements of officers made in response to plaintiff’s protected conduct).
However, Plaintiff has not made any showing as to Trooper Weilminster’s motivation,
and Trooper Weilminster testified that he merely ran over to assist Trooper Nolan when he
noticed him struggling. (Nolan Dep. 116:6–22, 118:15–119:3; Weilminster Dep. 47:17–23; see
also Pl. Counter 56.1 ¶ 40.) There are insufficient facts to sustain a finding that Weilminster was
motivated by retaliatory animus.

15

Plaintiff argues that she is entitled to judgment as a matter of law on the point of
whether Defendants had probable cause to arrest her because her desk appearance ticket for
disorderly conduct was dismissed for facial insufficiency. (Pl. Opp’n Mem. 13.) The facts
presented before the Court are different from the facts presented on the desk appearance ticket,
and the facts as presented here show that there is a genuine issue of material fact as to whether
State Defendants had probable cause to arrest Plaintiff.

35

2.

Injury

State Defendants further argue that even if they lacked probable cause to arrest Plaintiff
and they were motivated by Plaintiff’s exercise of her First Amendment rights, the circumstances
show that their actions did not chill Plaintiff’s exercise of those rights, because Plaintiff never
signed the RMA form. (State Def. Mem. 14.) Plaintiff argues that her speech was chilled
because, upon her arrest, she yelled that she would sign the form, which was “the intended result
for all of the [D]efendants.” (Pl. Opp’n Mem. 14.)
The Second Circuit has recently clarified that Plaintiff’s speech need not be chilled to
satisfy the third prong of the test. To prevail on the third prong of the test, a plaintiff must show
either that her speech was adversely affected by defendant’s actions, or that she has suffered
some other concrete harm. Dorsett, 732 F.3d at 160 (“Chilled speech is not the sine qua non of a
First Amendment claim.”); Zherka v. Amicone, 634 F.3d 642, 646 (2d Cir. 2011) (“Where
chilling is not alleged, other forms of tangible harm will satisfy the injury requirement, since
‘standing is no issue whenever the plaintiff has clearly alleged a concrete harm independent of
First Amendment chilling.’” (quoting Gill v. Pidlypchak, 389 F.3d 379, 383 (2d Cir. 2004)));
Glacken v. Inc. Vill. of Freeport, No. 09-CV-4832, 2014 WL 1836143, at *7 (E.D.N.Y. May 8,
2014) (“[A] plaintiff has standing [on a First Amendment Retaliation claim] if he can show
either that his speech has been adversely affected by the government retaliation or that he has
suffered some other concrete harm.” (quoting Prince, 2014 WL 145379, at *3 (internal quotation
marks omitted))). “[A] criminal prosecution is a sufficient form of concrete harm for purposes of
a First Amendment retaliation claim.” Norton v. Town of Brookhaven, No. 13-CV-3520, 2014
WL 4700250, at *3 (E.D.N.Y. Sept. 18, 2014) (citations omitted); see also Brink v. Muscente,
No. 11-CV-4306, 2013 WL 5366371, at *8 (S.D.N.Y. Sept. 25, 2013) (“It is well-settled that the

36

First Amendment ‘prohibits government officials from subjecting an individual to retaliatory
actions, including criminal prosecutions, for speaking out.’” (quoting Hartman v. Moore, 547
U.S. 250, 256 (2006)).
Plaintiff has presented evidence, in the form of her testimony, which could support a
finding that Trooper Nolan arrested her for, and charged her with, disorderly conduct because
she refused to sign the RMA form. Plaintiff testified that Trooper Nolan told her she could sign
the form or face arrest, (Pl. Aff. ¶ 9; Pl. Dep. 101:25–104:24, 107:17–108:20), and the evidence
indicates that Trooper Nolan did arrest her and processed her paperwork for the disorderly
conduct charge, (State Def. 56.1 ¶ 33; Pl. State 56.1 ¶ 33). Accordingly, the Court finds that
Plaintiff has created a question of fact as to whether she has sustained an injury that was causally
connected to her exercise of First Amendment rights. See Norton, 2014 WL 4700250, at *4
(reinstating dismissed claim of First Amendment retaliation when allegations showed defendants
prosecuted plaintiff for town code violations closely following protected activity); see also
Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 91 (2d Cir. 2002)
(alleging retaliatory revocation of building permit); Gagliardi v. Vill. of Pawling, 18 F.3d 188,
195 (2d Cir. 1994) (alleging retaliatory failure to enforce zoning laws).
For the foregoing reasons, the Court grants State Defendants’ motion for summary
judgment as to Plaintiff’s First Amendment retaliation claim against Trooper Weilminster, but
denies the motion as to Plaintiff’s First Amendment retaliation claim against Trooper Nolan.
ii.

Fire District Defendants

Fire District Defendants argue that based on a totality of the circumstances, including
Plaintiff’s confused, erratic and agitated behavior and the fact that completion of the form was
mandated by New York State, “it cannot be said that chilling the Plaintiff’s purported protected

37

speech or conduct” was a substantial or motivating factor of the EMTs actions. (FD Def. Mem.
10) Fire District Defendants also argue that the evidence shows that the EMTs were attempting
to execute their duties to assess a patient and provide care in good faith, but upon multiple
refusals of medical attention and refusal to sign the form by Plaintiff, they had the State Trooper
witness her refusal to sign the form, and the EMTs and other fire district members packed up and
went back to the station. (FD Def. Reply Mem. 17.)
Plaintiff has not presented evidence that would create a genuine issue of material fact as
to the motivation of Fire District Defendants’ actions toward her. Plaintiff’s only evidence as to
Fire District Defendants’ motivation is their repeated request that she sign the form, their
communication with the State Troopers, and the fact that she overheard one of the State Troopers
say that Plaintiff did not have to sign the medical release form. While the evidence may suggest
that Fire District Defendants hoped to persuade Plaintiff to sign the form, there is nothing to
suggest that they intended to suppress her ultimate right to refuse to sign, or were otherwise
involved in orchestrating her subsequent arrest. Thus, the Court grants Fire District Defendants’
motion for summary judgment as to Plaintiff’s First Amendment retaliation claim.
d.

Section 1983 due process claims
i.

Fifth Amendment

Defendants argue that Plaintiff’s claim for denial of due process under the Fifth
Amendment fails as a matter of law because the Fifth Amendment due process clause applies
only to federal officials. (State Def. Mem. 19; State Def. Reply Mem. 6–7; FD Def. Mem. 17;
FD Def. Reply Mem. 20.) “Because the Fifth Amendment applies only to the federal
government, Plaintiff cannot state a claim for deprivation of due process in violation of the Fifth
Amendment where, as here, there are no allegations of federal action.” Cortlandt v. Westchester

38

Cnty., No. 07-CV-1783, 2007 WL 3238674, at *5 (S.D.N.Y. Oct. 31, 2007) (citing Taylor v.
Evans, 72 F. Supp. 2d 298, 305 n.3 (S.D.N.Y. 1999)); see also Cassidy v. Scoppetta, 365 F.
Supp. 2d 283, 286 (E.D.N.Y. 2005) (dismissing Section 1983 claim for Fifth Amendment
violation, noting that “[t]he Fifth Amendment ‘governs the conduct of the federal government
and federal employees, and does not regulate the activities of state officials or state actors’”
(quoting Dawkins v. City of Utica, 1997 WL 176328, *4 (N.D.N.Y. April 4, 1997)). The Court
grants the motions for summary judgment as to Plaintiff’s Fifth Amendment claims.
ii.

Fourteenth Amendment

Plaintiff argues that she suffered multiple deprivations of liberty in violation of the due
process clause of the Fourteenth Amendment, including: (1) being handcuffed; (2) being held at
the police barracks until she was presented with a desk appearance ticket; and (3) being made to
appear in court three times to contest the charges of disorderly conduct. (Pl. Opp’n Mem. 20.)
To the extent Plaintiff’s Fourteenth Amendment claims are based on what she alleges to
be a “brutal attack[],” State Defendants argue that these claims are properly analyzed under the
Fourth and not the Fourteenth Amendment, and thus her Fourteenth Amendment claim should be
dismissed. (State Def. Mem. 20; State Def. Reply Mem. 7.) State Defendants further argue that
Plaintiff “does not cite to any procedural defects in the manner in which she was arrested,
charged or prosecuted.” (State Def. Reply Mem. 7.) Rather, her complaints appear to center
around the manner and circumstances of her arrest, handcuffing and detention. (Id.) Fire
District Defendants argue that there is no evidence that they deprived Plaintiff of life, liberty or
property, and argue that they did not instigate Plaintiff’s arrest or persuade the State Trooper to
arrest her, and did not otherwise have any involvement in any alleged deprivation. (FD Def.
Mem. 18; FD Def. Reply Mem. 20.)

39

Plaintiff’s Fourteenth Amendment due process claims sound in false arrest, malicious
prosecution, and excessive force, and are properly analyzed under the Fourth Amendment.
“Where ‘the Fourth Amendment provides an explicit textual source of constitutional protection
against [a type] of physically intrusive governmental conduct, that Amendment, not the more
generalized notion of substantive due process, must be the guide for analy[sis] . . . . ’” Maliha v.
Faluotico, 286 F. App’x 742, 744 (2d Cir. 2008) (quoting Graham, 490 U.S. at 395) (alterations
in original) (noting claims relating to the defendants’ falsification of documents and exaggerating
claims, which stemmed from the same set of actions as the plaintiff’s Fourth Amendment claims,
“merge[d]” with the Fourth Amendment claims); see also Bryant v. City of New York, 404 F.3d
128, 135 (2d Cir. 2005) (“[W]here a particular Amendment provides an explicit textual source of
constitutional protection against a particular sort of government behavior, that Amendment, not
the more generalized notion of substantive due process, must be the guide for analyzing these
claims.” (quoting Albright v. Oliver, 510 U.S. 266, 275 (1994) (plurality opinion)) (internal
quotation marks and alterations omitted)); De La Cruz v. City of New York, No. 11-CV-8395,
2014 WL 3719164, at *7 (S.D.N.Y. June 26, 2014) (“The allegations put forth in support of
[p]laintiff’s Fourteenth Amendment claim — i.e ., that Plaintiff’s search and arrest were
effectuated without probable cause — are duplicative of those forming the basis of his claim
under the Fourth Amendment, and thus no general substantive due process claim lies.”16 (citing

16

To the extent Plaintiff is also attempting to assert a false arrest claim for holding her
for an unreasonable amount of time while she awaited the issuance of a desk appearance ticket,
Plaintiff has failed to establish (1) the officers required her to wait while they prepared the desk
appearance ticket, and (2) that she was held for an unreasonable amount of time. See Bryant v.
City of New York, 404 F.3d 128, 138 (2d Cir. 2005) (finding that “plaintiffs fall well short of any
showing that the refusal to issue desk appearance tickets to them immediately following their
arrests and processing was objectively unreasonable”). Furthermore, Plaintiff’s testimony
indicates that she requested to go to the barracks, that she remained at the barracks to fill out a
40

Albright, 510 U.S. at 273 and Maliha, 286 F. App’x at 744)); Levantino v. Skala, --- F. Supp. 3d
---, ---, 2014 WL 5537818, at *9 (E.D.N.Y. Nov. 3, 2014) (“Plaintiff’s procedural due process
claim cannot be predicated upon the same factual basis as his Fourth Amendment false arrest and
false imprisonment claims. . . . Therefore, to the extent the Plaintiff seeks to assert a procedural
due process claim based on the same conduct supporting his false arrest and false imprisonment
claims, that request is denied as futile and duplicative.”) The Court grants the motions for
summary judgment as to Plaintiff’s Fourteenth Amendment claims.
e.

Section 1983 conspiracy

As discussed above, Plaintiff’s vague and conclusory allegations do not satisfy the
requirements to establish a conspiracy between Fire District Defendants and State Defendants to
violate her constitutional rights. Furthermore, to the extent Plaintiff attempts to do so, Plaintiff
cannot show that a conspiracy existed between the State Defendants, as no such claim can stand
because the State Troopers were both part of the same entity.17 The Court therefore grants
summary judgment to all Defendants as to Plaintiff’s conspiracy claim.

complaint against State Defendants, and that she further remained there awaiting the arrival of
her family members, not that she was held there pending the issuance of a desk appearance
ticket. (Pl. Dep. 144:19–146:6, 151:18–152:15, 156:11–157:2, 164:9–18.)
17

See Little v. City of New York, 487 F. Supp. 2d 426, 441–42 (S.D.N.Y. 2007) (granting
summary judgment to two police officers alleged to have engaged in conspiracy with one another
under Sections 1983 and 1985, noting that “[u]nder the intracorporate conspiracy doctrine, the
officers, agents, and employees of a single corporate entity, each acting within the scope of her
employment, are legally incapable of conspiring together” (internal quotation marks and citations
omitted)); see also Talley v. Brentwood Union Free Sch. Dist., 728 F. Supp. 2d 226, 233
(E.D.N.Y. 2010) (“Under the intracorporate conspiracy doctrine, officers, agents and employees
of a single corporate or municipal entity, each acting within the scope of his or her employment,
are legally incapable of conspiring together.” (citing Herrmann v. Moore, 576 F.2d 453, 459 (2d
Cir. 1978) (applying intracorporate conspiracy doctrine to Section 1985 conspiracy claim)).
41

f.

Section 1983 qualified immunity

Plaintiff argues that Defendants are not entitled to qualified immunity because their
actions violated well-established constitutional rights, and it was not objectively reasonable for
Defendants to behave as they did. (Pl. Opp’n Mem. 24.) As discussed above, Plaintiff has
presented sufficient facts from which a reasonable jury could find that State Defendants are
liable for her false arrest and excessive force claims and that Trooper Nolan is responsible for her
First Amendment claim. Gilles v. Repicky, 511 F.3d 239, 245 (2d Cir. 2007) (noting that right to
be free from arrest without probable cause is clearly established); Lennon v. Miller, 66 F.3d 416,
423 (2d Cir. 1995) (right to be free from excessive force is clearly established). Nevertheless,
State Defendants could still be immune from the claims if their actions were objectively
reasonable.
“[A] decision dismissing a claim based on qualified immunity at the summary judgment
stage may only be granted when a court finds that an official has met his or her burden
demonstrating that no rational jury could conclude ‘(1) that the official violated a statutory or
constitutional right, and (2) that the right was clearly established at the time of the challenged
conduct.’” Coollick v. Hughes, 699 F.3d 211, 219 (2d Cir. 2012) (quoting Ashcroft v. al-Kidd,
563 U.S. ---, ---, 131 S. Ct. 2074, 2080 (2011)); see also Morris, --- F. App’x at ---, 2015 WL
1061124, at *2 (Qualified immunity “shields government employees acting in their official
capacity from suits for damages under 42 U.S.C. § 1983, unless their conduct violated clearly
established rights of which an objectively reasonable official would have known.” (quoting
Lowth, 82 F.3d at 568–69) (internal quotation marks omitted)); Manganiello, 612 F.3d at 164
(discussing the elements of qualified immunity). Defendants bear the burden of proof to
establish that qualified immunity exists. Jackler v. Byrne, 658 F.3d 225, 242 (2d Cir. 2011).

42

Viewing the facts in the light most favorable to Plaintiff, a reasonable jury could find that State
Defendants are not immune from Plaintiff’s Section 1983 claims for false arrest and excessive
force and that Trooper Nolan is not immune from her First Amendment retaliation claim.
i.

False arrest

State Defendants contend that they are entitled to qualified immunity as to Plaintiff’s
Section 1983 claim for false arrest because the facts, when read in the light most favorable to
Plaintiff, do not show that an objectively reasonable officer in State Defendants’ position would
have known he was violating a clearly established constitutional right. (State Def. Mem. 26.)
State Defendants point to the fact that members of the Wantagh Fire District gave them
information about Plaintiff’s behavior, and they observed Plaintiff’s erratic behavior, which
provided them with probable cause to arrest Plaintiff. State Defendants argue that this shows
that it was objectively reasonable for State Defendants to believe that their actions did not violate
clearly established law. (State Def. Mem. 27; State Def. Reply Mem. 10–12.)
For Fourth Amendment violations including false arrest, “[a]n officer’s determination is
objectively reasonable if there was ‘arguable’ probable cause at the time of the arrest — that is, if
officers of reasonable competence could disagree on whether the probable cause test was met.”
Gonzalez, 728 F.3d at 157 (quoting Jenkins v. City of New York, 478 F.3d 76, 86–87 (2d Cir.
2007)) (internal quotation marks omitted); Morris, --- F. App’x at ---, 2015 WL 1061124, at *2
(“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.” (quoting Escalera v. Lunn, 361 F.3d 737, 743 (2d Cir.
2004)) (false arrest and malicious prosecution).
Based on the testimony, the Fire District members did inform State Defendants that

43

Plaintiff had been yelling obscenities at them on the highway, which may weigh in support of
finding “arguable probable cause.” See Morris, --- F. App’x at ---, 2015 WL 1061124, at *2
(affirming grant of summary judgment on qualified immunity grounds when finding of probable
cause was a “close call because it was supported by little more than the complaint by an
individual whose preexisting, antagonistic relationship with [plaintiff] was known to the
police”). However, given Plaintiff’s testimony that she was calm and quiet when Trooper Nolan
approached her, and her assertion that she was arrested for her refusal to sign the form, a jury
must resolve the factual issues surrounding the arrest before the Court can make a determination
as to whether qualified immunity was warranted as a matter of law. Taking the facts in the light
most favorable to the Plaintiff, a reasonable jury could conclude that Tooper Nolan’s actions
were not objectively reasonable when he arrested and charged Plaintiff with disorderly conduct
because of the fact that she was behaving only in a calm and quiet manner. See Gilles, 511 F.3d
at 247 (“If on the undisputed facts [defendant] unreasonably concluded he had probable cause, or
if disputed material issues of fact precluded a determination of probable cause, then summary
judgment was inappropriate.”); Provost v. City of Newburgh, 262 F.3d 146, 160 (2d Cir. 2001)
(noting defendant would not have been entitled to qualified immunity as a matter of law if a
reasonable jury could find facts inconsistent with the objective reasonableness of defendant’s
arresting plaintiff for disorderly conduct).
ii.

Excessive force and First Amendment claims

State Defendants argue that they are entitled to qualified immunity on Plaintiff’s other
claims. State Defendants insist that the totality of the circumstances, including what they believe
to have been probable cause, coupled with the small amount of force used and short amount of
time Plaintiff was in handcuffs, illustrate the objective reasonableness of their actions. (State

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Def. Mem. 27; State Def. Reply Mem. 10–12.)18
“A grant of qualified immunity allows public officials to be ‘shielded from liability for
civil damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.’” Kennedy v. Lehman,
328 F. App’x 16, 18–19 (2d Cir. 2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982))
(finding summary judgment warranted when First Amendment right in question not clearly
established); Lennon, 66 F.3d at 425 (“[T]the question for the purposes of qualified immunity
[on an excessive force claim] is ‘whether a reasonable officer could have believed that the use of
force alleged was objectively reasonable in light of the circumstances.’” (quoting Rowland v.
Perry, 41 F.3d 167, 173 (4th Cir. 1994))).
Here, Defendants do not dispute that the rights Plaintiff asserts were clearly established,
but rather argue that their actions were objectively reasonable in light of the circumstances.
However, whether Trooper Nolan took any action against Plaintiff in retaliation for her exercise
of a First Amendment right, what force was used when State Defendants arrested Plaintiff, and
whether the amount of force State Defendants used when arresting Plaintiff was excessive, are

18

Fire District Defendants also argue that Baranowski, Hutchison and Lindgren are
entitled to qualified immunity because they all acted in good faith in performing their duties with
respect to the Plaintiff. They argue that each individual Fire District Defendant responded to a
911 call requesting emergency assistance, attempted to discharge their professional duties while
on the scene of an emergency, and attempted to provide proper and appropriate medical care to
Plaintiff. (FD Def. Mem. 22.) Fire District Defendants further argue that their actions reflected
an objectively reasonable belief that their actions were lawful. (FD Def. Mem. 24.) Because the
Court grants summary judgment to Fire District Defendants on all of Plaintiff’s Section 1983
claims, the Court declines to decide whether Fire District Defendants would be entitled to
qualified immunity.

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all questions of fact for the jury to determine.19 Furthermore, given the conflicting versions of
events presented by Plaintiff and State Defendants, it is possible that a reasonable jury could find
facts that are inconsistent with a determination that State Defendants’ actions were objectively
reasonable. See Chepilko v. City of New York, No. 06-CV-5491, 2012 WL 398700, at *8
(E.D.N.Y. Feb. 6, 2012) (“Because, under plaintiff's view of the facts, there was no reason
whatsoever to believe that plaintiff presented any harm justifying his restraint through the use of
handcuffs, defendants . . . are also not entitled to summary judgment on the basis of qualified
immunity.”) Thus, the Court denies State Defendants’ motions for summary judgment on the
grounds of qualified immunity.
g.

Section 1983 municipal liability

Plaintiff argues that the Wantagh Fire District should be held liable for Fire District
Defendants’ violations of her civil rights pursuant to Section 1983 because (1) it established
unwritten procedures and policies that encouraged the alleged violations, (2) individual Fire
District members were specifically trained to engage in the acts which led to the alleged
violations, and (3) the alleged violations were sanctioned by Lindgren, the Fire Chief, whom
Plaintiff alleges to be a policy-maker. (Pl. Opp’n Mem. 22–23.) Fire District Defendants
19

But cf. Lennon v. Miller, 66 F.3d 416, 426 (2d Cir. 1995) (“It was objectively
reasonable for [defendant] to believe that in pulling the plaintiff from the car to effect her arrest,
he was not infringing on her Fourth Amendment rights.”) In Lennon, the Second Circuit
determined that defendant police officers were entitled to summary judgment for an excessive
force claim on qualified immunity grounds when they pulled a plaintiff out of her car and she
sustained a very minor wrist injury. The Court found that “[u]nder the circumstances described
above, no jury could find that it was objectively unreasonable for the officers to believe that the
force used to remove Mrs. Lennon from the car was not excessive.” Id. However, in Lennon,
the undisputed facts showed that the defendant officers were objectively reasonable in believing
they had probable cause to arrest Plaintiff, a conclusion that cannot be reached on the facts of
this case before the Court. Furthermore, Plaintiff in the instant action alleges that she sustained
more than minor wrist injuries, including a head injury.

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contend that Plaintiff has presented nothing but her own conclusory allegations to sustain her
claim that the Wantagh Fire District has established an unwritten policy or custom to protect its
volunteer firefighters from civil liability “by arranging for a potential claimant to be arrested
without probable cause and based on false allegations.” (FD Def. Mem. 19.)
In order to sustain a claim for relief pursuant to Section 1983 against a municipal
defendant, a plaintiff must show the existence of an official policy or custom that caused injury,
and a direct causal connection between that policy or custom and the deprivation of a
constitutional right. Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658, 694–95 (1978)
(“[A] local government may not be sued under § 1983 for an injury inflicted solely by its
employees or agents. Instead, it is when execution of a government’s policy or
custom . . . inflicts the injury that the government as an entity is responsible under § 1983.”); see
Torraco v. Port Auth. of N.Y. & N.J., 615 F.3d 129, 140 (2d Cir. 2010) (“[T]o hold a city liable
under § 1983 for the unconstitutional actions of its employees, a plaintiff is required to plead and
prove three elements: (1) an official policy or custom that (2) causes the plaintiff to be subjected
to (3) a denial of a constitutional right.” (alteration in original) (quoting Wray v. City of New
York, 490 F.3d 189, 195 (2d Cir. 2007))). Monell does not provide an independent separate
cause of action against a municipality; “it extends liability to a municipal organization where that
organization’s failure to train, or the policies or customs that it has sanctioned, led to an
independent constitutional violation.” Segal v. City of New York, 459 F.3d 207, 219 (2d Cir.
2006) (citing Monell, 436 U.S. at 694 and City of Canton v. Harris, 489 U.S. 378 (1989)); see
Askins v. Doe No. 1, 727 F.3d 248, 253 (2d Cir. 2013) (“Establishing the liability of the
municipality requires a showing that the plaintiff suffered a tort in violation of federal law
committed by the municipal actors and, in addition, that their commission of the tort resulted

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from a custom or policy of the municipality.” (citing Monell, 436 U.S. at 690–91 and Jones v.
Town of E. Haven, 691 F.3d 72, 80 (2d Cir. 2012))).
Because the Court has determined that Plaintiff has not shown an underlying
constitutional violation by the individual Fire District Defendants, the Wantagh Fire District
cannot be held liable for a constitutional violation under Monell. Thus, the Court grants Fire
District Defendants’ motion for summary judgment as to municipal liability.
h.

State law negligence

Plaintiff also brings a state law negligence action under New York common law. State
Defendants urge the Court to decline to exercise supplemental jurisdiction over all state law
claims, assuming the dismissal of all federal claims. (State Def. Mem. 28; State Def. Reply
Mem. 12.) Because the Court has not dismissed all of Plaintiff’s federal actions, State
Defendants’ motion cannot succeed on this ground. All Defendants also argue that Plaintiff’s
state law claims fail as a matter of law.
Plaintiff alleges in her complaint that the Defendants were negligent in the performance
of their duties, in training/and or supervision of their employees or agents, which caused a
deprivation of Plaintiff’s constitutional rights. (Compl. ¶¶ 8–9.) Plaintiff also alleges that she
sustained personal injury as a result of such negligence. (Compl. ¶ 40.) Plaintiff argues that
Defendants negligently breached the duty to (1) refrain from infringing on her constitutional
rights, (2) accurately report incidents on official documents, (3) refrain from making false
statements, (4) respect Plaintiff’s “personal and privacy rights,” and (5) respect Plaintiff’s right
to refuse to be examined or to sign a legal document. (Pl. Opp’n Mem. 21.)
To the extent Plaintiff is seeking relief for any alleged constitutional violations, Plaintiff
cannot sustain a negligence claim for deprivation of constitutional rights. See Salim v. Proulx,

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93 F.3d 86, 92 (2d Cir. 1996) (“A claim that a state actor acted negligently does not state a
deprivation of constitutional rights.” (citing Daniels v. Williams, 474 U.S. 327, 328 (1986) and
Davidson v. Cannon, 474 U.S. 344, 348 (1986))); see also Fuller v. Lantz, 549 F. App’x 18, 21
(2d Cir. 2013) (affirming grant of summary judgment on Eighth Amendment claim because
evidence showed only negligence, “which is insufficient to make out a constitutional violation”)
(citing Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir. 1998)). While Plaintiff is generally
permitted to plead different causes of action in the alternative, other District Courts in this
Circuit have held that when a plaintiff’s factual allegations are “only consistent with a theory of
intentional, or perhaps reckless, conduct,” negligence claims must be dismissed. See Eze v. City
Univ. of N.Y. at Brooklyn Coll., No. 11-CV-2454, 2011 WL 6780652, at *6 (E.D.N.Y. Dec. 27,
2011) (collecting cases); see also Antonious v. Muhammad, 673 N.Y.S.2d 158, 159 (App. Div.
1998) (“A plaintiff seeking damages for an injury resulting from a wrongful arrest and detention
‘may not recover under broad general principles of negligence . . . but must proceed by way of
the traditional remedies of false arrest and imprisonment.’” (citing Boose v. City of Rochester,
421 N.Y.S.2d 740, 744)).
Beyond her false arrest, excessive force and First Amendment retaliation claims, Plaintiff
has not shown any evidence that her vague allegations of negligence can survive. As a
preliminary matter, Plaintiff cannot maintain a suit sounding in ordinary negligence against the
individual Fire District Defendants, pursuant to New York State General Municipal Law section
205-b. See Lynch v. Waters, 922 N.Y.S.2d 884, 887 (App. Div. 2011) (“The plain language of
the statute thus reflects the Legislature’s dual purposes in enacting section 205–b: first, to
immunize volunteer firefighters from civil liability for ordinary negligence and, second, to shift
liability for such negligence to the fire districts that employ them.”) (emphasis added).

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Furthermore, as to her allegations of other negligent behavior, Plaintiff has not shown that
Defendants owed a duty to her, breached that duty, or caused her injury other than that addressed
above. See In re World Trade Ctr. Lower Manhattan Disaster Site Litig., 758 F.3d 202, 210 (2d
Cir. 2014) (To establish a prima facie case of negligence under New York law, “a plaintiff must
show ‘(1) the existence of a duty on defendant’s part as to plaintiff; (2) a breach of this duty, and
(3) injury to the plaintiff as a result thereof.’” (quoting Caronia v. Philip Morris USA, Inc., 715
F.3d 417, 428 (2d Cir. 2013))); Jiminez v. Shahid, 922 N.Y.S.2d 123, 124 (App. Div. 2011)
(“The elements of a common-law negligence cause of action are a duty owed by the defendant to
the plaintiff, a breach of that duty, and an injury proximately resulting there from.”).
All Defendants’ motions for summary judgment as to Plaintiff’s negligence claims are
granted.
i.

Punitive Damages

Plaintiff argues that she is entitled to punitive damages as a remedy because Defendants
acted egregiously and willfully, because Defendants acted in accordance with unconstitutional
customs and policies, and because of what Plaintiff alleges to be the “falsification” of incident
reports and deposition testimony relating to the April 28, 2009 incident, which show malice on
the part of Defendants. (Pl. Opp’n Mem. 25.) State Defendants oppose Plaintiff’s claim for
punitive damages. (State Def. Reply Mem. 10.)
Punitive damages are available to a plaintiff bringing a Section 1983 claim who has
shown that defendants acted with “‘reckless or callous disregard for plaintiff’s rights and
intentionally violates federal law.’” Lazaratos v. Ruiz, No. 00-CV-2221, 2003 WL 22283832, at
*7 (S.D.N.Y. Sept. 30, 2003) (quoting Smith v. Wade, 461 U.S. 30, 45, 51 (1983)); see also
Williams v. Cnty. of Nassau, No. 10-CV-4815, 2014 WL 4101545, at *9 (E.D.N.Y. Aug. 18,

50

2014) (“Plaintiff’s account of the arrest and alleged beating raises an issue of material fact as to
violation of his constitutional rights and provides sufficient indication, for summary judgment
purposes, that officers were motivated by the requisite ‘ill will or malice.’”) (quoting Ragin v.
Harry Macklowe Real Estate Co., 6 F.3d 898, 909 (2d Cir. 1993)); Lin v. Cnty. of Monroe, --- F.
Supp. 3d ---, ---, 2014 WL 7202153, at *16 (W.D.N.Y. Dec. 8, 2014) (“Punitive damages are
available in a § 1983 action ‘when the defendant’s conduct is shown to be motivated by evil
motive or intent, or when it involves reckless or callous indifference to the federally protected
rights of others.’” (quoting Lee v. Edwards, 101 F.3d 805, 808 (2d Cir. 1996))). Generally, the
issue of whether defendants’ conduct is sufficiently serious to warrant punitive damages is a
question best left to the jury. Lin, --- F. Supp. 3d at ---, 2014 WL 7202153, at *16 (collecting
cases); Cooper v. City of New Rochelle, 925 F. Supp. 2d 588, 613 (S.D.N.Y. 2013); Picciano v.
McLoughlin, 723 F. Supp. 2d 491, 506 (N.D.N.Y. 2010) (denying motion for summary judgment
as to punitive damages on excessive force claim when there were factual disputes as to whether
plaintiff resisted arrest and the amount of force used to effectuate the arrest). Given the issues of
fact that remain to be resolved by a jury, the Court declines to grant State Defendants’ motion for
summary judgment as to Plaintiff’s claim for punitive damages at this juncture.
III. Conclusion
For the foregoing reasons, the Court denies State Defendants’ motion for summary
judgment as to Plaintiff’s claims for false arrest and excessive force against Trooper Nolan and
Trooper Weilminster, Plaintiff’s claim for First Amendment retaliation against Trooper Nolan,
qualified immunity, and punitive damages. The Court grants State Defendants’ motion for
summary judgment as to Plaintiff’s malicious prosecution, unlawful seizure, due process,
conspiracy and negligence claims against both Defendants, as well as State Defendants’ motion

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for summary judgment as to Plaintiff’s First Amendment retaliation claim against Trooper
Weilminster. Fire District Defendants’ motion for summary judgment is granted in its entirety.
SO ORDERED:

s/ MKB
MARGO K. BRODIE
United States District Judge
Dated: March 23, 2015
Brooklyn, New York

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