Rera v. Gualtieri et al
MEMORANDUM & ORDER granting 32 Motion for Summary Judgment; Defendants' motion for partial summary judgment (Docket Entry 32) is GRANTED and Plaintiff's false arrest claim is DISMISSED WITH PREJUDICE. As set forth above, if Plaintiff wi shes to pursue his excessive force claim, he must file an Amended Pre-Trial Order within ten (10) days of the date of this Memorandum and Order. In addition, Plaintiff shall ensure that any exhibits and/or witnesses related to the excessive force c laim are identified in the Amended Pre-Trial Order. If Plaintiff files an Amended Pre-Trial Order, Defendants are invited to file an additional summary judgment motion seeking dismissal of that claim within thirty (30) days of the date Plaintiff fil es an Amended Pre-Trial Order. Should Plaintiff fail to file an Amended Pre- Trial Order as directed, his excessive force claim will be dismissed with prejudice and the case will be closed. So Ordered by Judge Joanna Seybert on 2/14/2017. C/ECF (Valle, Christine)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MEMORANDUM & ORDER
LAWRENCE GUALTIERI, individually and
as a Detective of the Suffolk County
New York Police Department, ERIC
STOVALL, individually and as a
Detective of the Suffolk County New
York Police Department, and COUNTY
OF SUFFOLK, N.Y.,
Arthur V. Graseck, Jr., Esq.
95 Meredith Lane
Oakdale, NY 11769
Arlene S. Zwilling, Esq.
Suffolk County Attorney
H. Lee Dennison Building-Fifth Floor
100 Veterans Memorial Highway
P.O. Box 6100
Hauppauge, NY 11788
SEYBERT, District Judge:
This case involves claims of false arrest and excessive
force by Derrick Rera (“Plaintiff”) against Lawrence Gualtieri
(“Detective Gualtieri”), Eric Stovall (“Detective Stovall”) and
Currently pending before the Court is Defendants’ motion for
(Defs.’ Mot., Docket Entry 32.)
following reasons, Defendants’ motion is GRANTED.1
On November 17, 2007, Joseph Sofo (“Sofo”) reported to
the Suffolk County Police Department that his home in Shirley, New
York was burglarized and windows in the rear of the home were
damaged. (Defs.’ 56.1 Stmt., Docket Entry 30-1, ¶ 1.) Thereafter,
two Suffolk County detectives went to Sofo’s home to investigate
and collected fingerprints.3
(Defs.’ 56.1 Stmt. ¶ 2.)
Almost four years later, in November 2011, Plaintiff was
(Defs.’ 56.1 Stmt. ¶ 3.)
A Suffolk County Evidence
Specialist subsequently determined that Plaintiff’s thumbprint
matched a fingerprint collected during the investigation of the
As discussed infra, the Court construes Defendants’ motion as a
motion for partial summary judgment on Plaintiff’s false arrest
The following material facts are drawn from Defendants’ Local
Civil Rule 56.1 Statement and Plaintiff’s Local Civil Rule 56.1
Counterstatement. Any relevant factual disputes are noted. All
internal quotation marks and citations have been omitted.
Although not specified in the parties’ Local Rule 56.1
Statements or exhibits, the parties appear to agree that at
least some of the fingerprints were collected from a window
through which the burglar(s) entered the home. (See Defs.’ Br.,
Docket Entry 32-4, at 5; Pl.’s Aff. in Opp., Docket Entry 33,
¶¶ 15, 28.)
burglary at Sofo’s home. (Defs.’ 56.1 Stmt. ¶ 4; Identification
December 26, 2011, Detective Gualtieri notified Sofo that the
fingerprints belonged to Plaintiff and showed him a picture of
(Defs.’ 56.1 Stmt. ¶ 5.)
permission to enter his home.
Sofo provided a statement
(Defs.’ 56.1 Stmt. ¶ 5.)
day, at 11:53 a.m., Detective Gualtieri and Detective Stovall (the
precinct for processing.
(Defs.’ 56.1 Stmt. ¶ 6.)
On the way to the precinct, the Detectives drove past
Sofo’s home and asked Plaintiff if he recognized it.
Stmt. ¶ 7.)
Plaintiff explained that he had installed windows at
Sofo’s home in the past.
(Defs.’ 56.1 Stmt. ¶ 7.)
investigated Plaintiff’s claim and learned that Sofo’s mother, now
deceased, resided at the home when the windows were installed, and
as a result, Sofo did not recognize Plaintiff.
They also learned that Sofo did not know that Plaintiff was
hired to install windows at the residence.
(Defs.’ 56.1 Stmt.
(Defs.’ 56.1 Stmt.
After the Detectives confirmed this information, Plaintiff
(Defs.’ 56.1 Stmt. ¶ 9.)
A Prisoner Activity Log
form indicates that he was released at 12:20 p.m., and Defendants
The Court will use the pagination assigned by the Electronic
Case Filing System when referring to the exhibits.
(Defs.’ 56.1 Stmt. ¶¶ 9, 10; Prisoner Activity Log, Ex. H, Docket
Entry 31, at 23.)
Plaintiff alleges that he was in custody for
(Pl.’s 56.1 Counterstmt. ¶ 10.)
approximately ninety minutes.5
Plaintiff commenced this lawsuit on May 19, 2014 against
(Compl., Docket Entry 1.) Defendants filed their Answer on June 6,
(Answer, Docket Entry 5.)
On November 10, 2014, Plaintiff
filed a motion to amend the Complaint and on January 4, 2015, filed
a proposed Amended Complaint.
Compl., Docket Entry 14.)
(Pl.’s Mot., Docket Entry 11; Am.
Plaintiff’s motion to amend was granted
by Magistrate Judge A. Kathleen Tomlinson on July 6, 2015. (Order,
Docket Entry 21.)
The Amended Complaint substitutes Detective Stovall for
Detective John Doe and alleges that the Detectives “unlawfully
arrested [Plaintiff] and subjected him to and/or failed to protect
him from excessive force.”
(Am. Compl. ¶ 1.)
Plaintiff asserts claims for false arrest and excessive force under
42 U.S.C. § 1983.
(Am. Compl. ¶¶ 19-23.)
Plaintiff contends that
Plaintiff’s 56.1 Counterstatement fails to either admit or deny
paragraphs one through nine of Defendant’s 56.1 Statement.
(Pl.’s 56.1 Counterstmt., Docket Entry 30-2.) Accordingly, the
foregoing facts are deemed admitted. See Local Civil Rule
the Detectives arrested him without probable cause and “appl[ied]
handcuffs excessively tightly to [P]laintiff’s wrists” which was
“exacerbated by the conduct” of the Detective who drove the police
car at an “excessive rate of speed.”
(Am. Compl. ¶¶ 8, 10, 15.)
Plaintiff claims that the alleged mistreatment “was consistent
with an institutionalized practice” of the County and that the
(Am. Compl. ¶ 17-18.)
Plaintiff alleges that he
sustained “bruises to the wrists, detention or incarceration for
about three (3) hours, loss of time from his usual activities,
fright, emotional distress, shock to the nerves and nervous system
(Am. Compl. ¶ 16.)
He seeks compensatory and
(Am. Compl. at 5.)
On July 7, 2016, Defendants filed a motion for summary
(Defs.’ Mot., Docket Entry 32.)
Plaintiff filed an
affidavit in opposition to Defendants’ motion on August 1, 2016.6
(See Pl.’s Aff. in Opp.)
demonstrates that there is “no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.”
The Court notes that Plaintiff failed to submit a memorandum of
law in opposition to Defendants’ motion.
FED. R. CIV. P. 56(a).
A genuine factual issue exists where “the
evidence is such that a reasonable jury could return a verdict for
the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed 2d 202 (1986).
determining whether an award of summary judgment is appropriate,
the Court considers the “pleadings, deposition testimony, answers
to interrogatories and admissions on file, together with any other
firsthand information including but not limited to affidavits.
Nnebe v. Daus, 644 F.3d 147, 156 (2d Cir. 2011).
The movant bears the burden of establishing that there
are no genuine issues of material fact.
Gallo v. Prudential
Residential Servs., L.P., 22 F.3d 1219, 1223 (2d Cir. 1994).
the movant makes such a showing, the non-movant must proffer
specific facts demonstrating “a genuine issue for trial.”
v. Buonnadonna Shoprite LLC, No. 06-CV-5191, 2009 WL 3150431, at
*4 (E.D.N.Y. Sept. 25, 2009) (internal quotation marks and citation
Conclusory allegations or denials will not defeat
However, in reviewing the summary judgment
record, “‘the court is required to resolve all ambiguities and
draw all permissible factual inferences in favor of the party
against whom summary judgment is sought.’”
Sheet Metal Workers’
Nat’l Pension Fund v. Vadaris Tech. Inc., No. 13-CV-5286, 2015 WL
6449420, at *2 (E.D.N.Y. Oct. 23, 2015) (quoting McLee v. Chrysler
Corp., 109 F.3d 130, 134 (2d Cir. 1997)).
Excessive Force Claim
As a preliminary matter, the Court must address the
viability of Plaintiff’s excessive force claim.
point out that Plaintiff “previously withdrew his § 1983 excessive
force claim,” they fail to indicate the basis for this contention.7
(Defs.’ Br. at 1 n.1.)
In previous correspondence to the Court,
Defendants alleged that Plaintiff abandoned his excessive force
claim because it was not included in the Pre-Trial Order.
Ltr., Docket Entry 29, at 1.)
Defendants are correct that the
Pre-Trial Order does not include an excessive force claim.
Trial Order, Docket Entry 25, ¶ 4.)
However, Plaintiff argues
that “he did not intentionally abandon his excessive force claim”
and states that “he intends to move to correct any portion of the
Pre-trial Order which may indicate he did not wish to pursue his
excessive force claim.”
(Pl.’s Aff. in Opp. ¶ 2.)
The Pre-Trial Order “controls the course of the action
unless the court modifies it” and may be amended “only to prevent
FED. R. CIV. P. 16(d)-(e).
district court has significant discretion in determining how to
apply this directive.”
Helena Assocs., LLC v. EFCO Corp., No. 06-
CV-0861, 2009 WL 2355811, at *2 (S.D.N.Y. July 29, 2009).
determine if an amendment should be permitted, the district court
Relying only on their waiver argument, Defendants do not
address the merits of Plaintiff’s excessive force claim.
should consider: “‘(1) the prejudice or surprise in fact to the
opposing party; (2) the ability of the party to cure the prejudice;
(3) the extent of disruption of the orderly and efficient trial of
the case; and (4) the bad faith or willfulness of the non-compliant
Potthast v. Metro-North R.R. Co., 400 F.3d 143, 153 (2d
Cir. 2005) (quoting Rapco, Inc. v. Comm’r, 85 F.3d 950, 953 (2d
In addition to the prejudice to the opposing party,
See Potthast, 400 F.3d at 153.
Finally, the court
should balance “‘the need for doing justice on the merits between
the parties (in spite of errors and oversights of their attorneys)
against the need for maintaining orderly and efficient procedural
Eberle v. Town of Southampton, 305 F.R.D. 32, 34
(E.D.N.Y. 2015) (quoting Laguna v. Am. Export Isbrandtsen Lines,
Inc., 439 F.2d 97, 101 (2d Cir. 1971)).
Notwithstanding Plaintiff’s unexplained failure to move
to amend the Pre-Trial Order, the Court exercises its discretion
and sua sponte GRANTS leave to amend the Pre-Trial Order to add
the excessive force claim.
Plaintiff asserted an excessive force
claim in the Complaint and Amended Complaint, and the Court
presumes that the parties engaged in discovery relating to this
Additionally, the amendment will not occur on the eve of
trial as no trial date has been set for this matter.
v. Blackman Plumbing Supply, Inc., 11-CV-3655, 2016 WL 1273237, at
*6 (E.D.N.Y. Mar. 31, 2016) (“[T]he Court must consider whether
the amendment is sought in the midst of trial or on the eve of
trial.”) (quoting Eberle, 305 F.R.D. at 34) (internal quotation
In light of these considerations, the Court finds
that Defendants will not be prejudiced by the amendment. Moreover,
there is no indication that Plaintiff omitted the claim from the
Pre-Trial Order in bad faith.
If Plaintiff wishes to pursue this claim, he must file
an Amended Pre-Trial Order within ten (10) days of the date of
this Memorandum and Order.
To the extent Plaintiff files an
Should Plaintiff fail to file an Amended Pre-Trial Order
as directed, his excessive force claim will be deemed abandoned
and dismissed with prejudice.
III. False Arrest Claim8
Defendants argue that Plaintiff’s claim for false arrest
must fail because the Detectives had probable cause to arrest him.
(Defs.’ Br. at 3.)
Specifically, they argue that the presence of
Plaintiff’s fingerprint on the window used to gain entry to Sofo’s
The Court will construe the instant motion as a motion for
partial summary judgment on Plaintiff’s false arrest claim. As
set forth supra, Defendants’ motion does not address the merits
of Plaintiff’s excessive force claim. In addition, if Plaintiff
pursues that claim, Defendants may file a second summary
residence along with Sofo’s statement provided the Detectives with
(Defs.’ Br. at 5.)
argue that Detective Gualtieri is entitled to qualified immunity.9
(Defs.’ Br. at 6.)
Under Section 1983 and New York law, “an action for false
arrest requires that the plaintiff show that ‘(1) the defendant
intended to confine him, (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.’”
v. City of White Plains, 702 F.3d 15, 19 (2d. Cir. 2012) (quoting
Broughton v. State of N.Y., 37 N.Y.2d 451, 456, 335 N.E.2d 310,
373 N.Y.S.2d 87 (1975)).
However, the existence of probable cause
is a “‘complete defense to an action for false arrest.’”
v. City of N.Y., 478 F.3d 76, 84 (2d Cir. 2007) (quoting Weyant v.
Okst, 101 F.3d 845, 852 (2d Cir. 1996)).
To determine whether
there was probable cause for the arrest, the court must focus on
whether the “‘facts known by the arresting officer at the time of
Ackerson, 702 F.3d at 19 (quoting Jaegly v. Couch, 439 F.3d 149,
Defendants argue that Detective Gualtieri is entitled to
qualified immunity but make no mention of Detective Stovall.
A false arrest claim under section 1983 “is substantially the
same as a claim for false arrest under New York law.” Harewood
v. Braithwaite, 64 F. Supp. 3d 384, 397 (E.D.N.Y. 2014) (quoting
Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996)).
153 (2d Cir. 2006)).
Specifically, there is probable cause to
sufficient to warrant a person of reasonable caution in the belief
that the person to be arrested has committed or is committing a
Jenkins, 478 F.3d at 84 (quoting Weyant, 101 F.3d at
thumbprint matched a fingerprint collected at Sofo’s home during
Additionally, Detective Gualtieri obtained a sworn statement from
Sofo stating that he did not recognize Plaintiff or give him
permission to enter his home.
(Defs.’ 56.1 Stmt. ¶ 5.)
find that these two facts “objectively provided probable cause to
Ackerson, 702 F.3d at 19 (internal quotation
marks and citations omitted).
Plaintiff appears to argue that it was unreasonable for
the Detectives to rely on Sofo’s statement that Plaintiff did not
have permission to enter the residence because Sofo was not living
in the home.
(Pl.’s Aff. in Opp. ¶¶ 11-15.)
Detectives to rely on his statement.
The Court disagrees.
Moreover, the Court must
Plaintiff only disputes how long he was in police custody,
which is immaterial. (Pl.’s 56.1 Counterstmt. ¶ 10.)
consider the facts known to the Detectives at the time they made
the arrest, see Ackerson, 702 F.3d at 19, and at that time, Sofo
had reported that there was a burglary at his summer home and that
the suspect identified by police did not have permission to be
Based on this information, there was probable cause for
Further, as soon as Plaintiff explained why
his fingerprints appeared on the windows, the Detectives verified
that information and released Plaintiff expeditiously.
Plaintiff’s arrest, Defendants’ motion for summary judgment on
Plaintiff’s false arrest claim is GRANTED.12
Defendants’ motion for partial summary judgment (Docket
DISMISSED WITH PREJUDICE.
As set forth above, if Plaintiff wishes
to pursue his excessive force claim, he must file an Amended PreTrial Order within ten (10) days of the date of this Memorandum
In addition, Plaintiff shall ensure that any exhibits
identified in the Amended Pre-Trial Order.
If Plaintiff files an
Because Plaintiff’s false arrest claim is without merit, it is
unnecessary for the Court to determine whether qualified
additional summary judgment motion seeking dismissal of that claim
within thirty (30) days of the date Plaintiff files an Amended
Should Plaintiff fail to file an Amended Predirected,
dismissed with prejudice and the case will be closed.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
14 , 2017
Central Islip, New York
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