McCarthy v. Roosevelt Union Free School District et al

Filing 56

ORDER granting 28 Motion for Summary Judgment; granting in part and denying in part 33 Motion for Summary Judgment. For the reasons set forth herein, the Court grants the School Defendants' motion for summary judgment in its entirety and d ismisses the County Defendants' cross-claim. The County Defendants' motion for summary judgment is granted in part and denied in part. The following claims will proceed to trial: (1) false arrest under Section 1983 against Officers Stassi a nd Amodeo, and (2) false imprisonment under New York law against all of the County Defendants. Finally, the Clerk of the Court is directed to terminate Nassau County Police Department and Matthew Field as defendants in this case. SO ORDERED. Ordered by Judge Joseph F. Bianco on 9/19/2017. (Zbrozek, Alex)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
№ 15-CV-01468 (JFB) (SIL)

SUSAN MCCARTHY,
Plaintiff,

VERSUS
ROOSEVELT UNION FREE SCHOOL DISTRICT, ET AL.,
Defendants.
MEMORANDUM AND ORDER
September 19, 2017

JOSEPH F. BIANCO, District Judge:
Susan
McCarthy (“McCarthy” or
“plaintiff”) is an elementary school teacher.
On May 28, 2014, while classes were in
session, school officials allege, and McCarthy
disputes, that she threatened to kill herself.
School officials excused her for the
remainder of the day and informed local
police officers, who hospitalized McCarthy
against her will for a psychiatric evaluation.
McCarthy then initiated this action against
two groups of defendants. The first group is
composed of Roosevelt Union Free School
District (the “District”), Superintendent Dr.
Deborah Wortham, Principal Clyde Braswell,
and Assistant Principal Edith Higgins
(collectively, the “School Defendants”). The
second group is composed of Nassau County
and police officers Joseph Stassi and

Monique Amodeo (collectively, the “County
Defendants”). 1 McCarthy asserts sixteen
claims under state law and federal law,
ranging from discrimination to false arrest
and false imprisonment. Essentially, she
alleges that Officers Stassi and Amodeo
hospitalized her without probable cause and
that the School Defendants encouraged the
officers because she is white and in her
sixties.
Pending before the Court are motions for
1

The Clerk of the Court is directed to terminate the
Nassau County Police Department and medic Matthew
Field as defendants. First, the Police Department is a
non-suable entity because it is an “administrative arm,”
which does “not have a legal identity separate and
apart from the municipality.” Rose v. Cnty. of Nassau,
904 F. Supp. 2d 244, 247 (E.D.N.Y. 2012). Second, at
oral argument, McCarthy’s lawyer agreed to dismiss
Field from the case.

summary judgment filed
Defendants (ECF No. 33)
Defendants (ECF No. 28).
filed cross-claims against
indemnity.

by the County
and the School
They previously
each other for

Unless otherwise noted, these facts are
undisputed or uncontroverted by admissible
evidence. The Court construes the facts in
the light most favorable to the non-moving
party, and it draws all inferences in her favor.
Capobianco v. City of New York, 422 F.3d
47, 50 n.1 (2d Cir. 2005).

For the reasons set forth below, the
County Defendants’ motion is granted in part
and denied in part. Specifically, summary
judgment is unwarranted on the false arrest
and false imprisonment claims. Viewing the
facts in a light most favorable to McCarthy, a
reasonable jury could find that Officers Stassi
and Amodeo lacked probable cause to detain
and hospitalize her.

During the 2013-14 school year, Susan
McCarthy was a first-grade teacher at
Washington Rose Elementary School. (Pl.’s
56.1 Counterstmt. ¶¶ 50, 55.) She claims that
newly appointed school officials targeted her
because of her age and race. (Id. ¶¶ 55–62.)
She is white and in her sixties, and Principal
Braswell and Assistant Principal Higgins are
both black. (Id. ¶¶ 49, 54.) Plaintiff alleges,
for example, that she received constant
criticism and was assigned an overwhelming
number of students. This environment caused
her “great stress,” and she “felt sick every
night.” (Id. ¶¶ 61–63.)

However, the Court grants the School
Defendants’ motion in its entirety. As for the
discrimination claims, there is no evidence in
the record from which a rational jury could
find that any of the School Defendants’
actions in this case were motivated by
discrimination. In fact, at oral argument,
McCarthy’s lawyer acknowledged that he
could point to no such evidence in the record.
With respect to the false arrest claims,
McCarthy failed to present evidence that the
School Defendants were present at the
“arrest” or that they instigated the officers’
actions. For similar reasons, the Court grants
summary judgment on the County
Defendants’ cross-claim for indemnity
against the School Defendants.
I.

On May 28, 2014, Principal Braswell
called a meeting with the first-grade teachers
and informed McCarthy that a troubled
student was rejoining her class. (Id. ¶ 70.)
When plaintiff challenged the decision,
Principal Braswell scolded McCarthy and
told her that she was ostracizing the child.
(Id. ¶ 71.) That interaction caused McCarthy
to leave the meeting and cry in the hallway,
and when a substitute teacher tried to comfort
her, McCarthy screamed at full volume. (Id. ¶
72; Cnty.’s 56.1 Stmt. ¶¶ 9, 14, 16, 23.) She
testified that she suffered a “full blown panic
attack” and experienced a migraine and chest
pains. (Pl.’s Dep. at 23.) The migraine was so
painful that plaintiff felt like she was going to
die. (Cnty. 50-h Hr’g at 23–24.) A co-worker
then retrieved a wheelchair and escorted
McCarthy to the nurse’s office. (50-h Hr’g at

BACKGROUND

A. Facts
The following facts are taken from the
parties’ 56.1 statements and their exhibits.2
2

Citations to the record are as follows: the School
Defendants’ 50-h hearing (ECF No. 31-2); Clyde
Braswell’s deposition (ECF No. 31-9); Officer Joseph
Stassi’s deposition (ECF No. 31-3); the County
Defendants’ 56.1 statement (ECF No. 34); Officer
Stassi’s case summary report (ECF No. 35-3); the
County Defendants’ 50-h hearing (ECF No. 35-4);

Susan McCarthy’s deposition (ECF No. 35-5); Edith
Higgins’s deposition (ECF No. 35-6); Officer Monique
Amodeo’s deposition (ECF No. 36); and Susan
McCarthy’s 56.1 counterstatement (ECF No. 43).

2

24; Pl.’s 56.1 Counterstmt. ¶ 74.)

After arriving at the school, the Officers
spoke with Principal Braswell, Assistant
Principal Higgins, the school psychologist,
and an unnamed friend of McCarthy’s.
(Amodeo Dep. at 48.) Assistant Principal
Higgins, for instance, told them that
McCarthy was “very upset and out of
control.” (Stassi Dep. at 33.) According to
Assistant Principal Higgins, she also
described McCarthy as a “lovely lady” with a
playful demeanor, and Assistant Principal
Higgins explained that McCarthy was not
dangerous nor threatening. (Higgins Dep. at
124–25, 127–28.) However, the Officers state
that Assistant Principal Higgins never
informed them that McCarthy was calm.
(Stassi Dep. at 34, 58; Amodeo Dep. at 34–
35, 44–45.)

The parties dispute what happened after
McCarthy’s arrival at the nurse’s office.
Assistant Principal Higgins claims that in the
nurse’s office, McCarthy said, “Oh, I just
want to kill myself.” (Higgins Dep. at 87.)
McCarthy asserts that this statement was
never made; instead, she contends that
Higgins asked plaintiff if she would “hurt
herself” and McCarthy said, “[O]f course,
not.” (Pl.’s 56.1 Counterstmt. ¶ 78.)
However, the parties agree that McCarthy
discussed her history of depression and panic
attacks (Cnty.’s 56.1 Stmt. ¶ 20), and that she
recounted a previous joke where she
threatened to jump out of the window on the
ground floor (Pl.’s 56.1 Counterstmt. ¶¶ 80,
85). After a short while, McCarthy left the
school premises and went to her sister’s
home. (Id. ¶¶ 86, 88.)

After receiving McCarthy’s sister’s
address from a school teacher, the Officers
traveled to the sister’s home. (Higgins Dep. at
126.) Upon arrival, they spoke with the sister,
who invited them into her house to interview
McCarthy; as the Officers discussed the
events with McCarthy, she became more and
more agitated, and the Officers state that she
corroborated the fact that she threatened to
kill herself. (Stassi Dep. at 64–65.)
McCarthy, however, disputes that she made
such a threat. (See Pl.’s Counterstmt. 56.1
Stmt. ¶¶ 78–81.) Based on the Officers’
assessment, an ambulance was called to
transport McCarthy to a local hospital; the
ambulance arrived around 2:45 p.m., and
McCarthy stayed at the hospital for several
hours. (Pl.’s 56.1 Counterstmt. ¶ 135.)

According to the School Defendants,
Assistant Principal Higgins informed
Principal Braswell about McCarthy’s threat,
and as a result, he notified his supervisor, Dr.
Marnie Hazelton. (School Defs.’ 56.1 Stmt.
¶¶ 59–60.) Three hours later, Dr. Hazelton
instructed Principal Braswell to contact law
enforcement. 3 (Braswell Dep. at 33–34, 37,
61–63.) Then, on Principal Braswell’s
instructions, Assistant Principal Higgins
called the County’s school resource officers:
Officers Monique Amodeo and Joseph Stassi
(the “Officers”), who act as liaisons between
the school district and the police department.
(Higgins Dep. at 151; Cnty.’s 56.1 Stmt.
¶¶ 2–4.) Over the phone, Assistant Principal
Higgins told them that a teacher said, “Oh, I
feel like killing myself.” (Higgins Dep. at
118.)

On or about June 17, 2014, following her
hospitalization, McCarthy received a letter
from Dr. Deborah Wortham, the school
superintendent notifying plaintiff that she
needed to undergo an examination to
determine whether she was mentally fit for
work. (Pl.’s 56.1 Counterstmt. ¶ 149.)
McCarthy passed the assessment and returned

3

The parties largely agree on when the events took
place. The incident occurred between 9:30 a.m. and
10:45 a.m., and Officers Amodeo and Stassi were
notified around 1:30 p.m. (Compare Case Summ.
Report at 3 with Pl.’s 56.1 Counterstmt. ¶¶ 88, 93.)

3

materials; or (B) showing that the
materials cited do not establish the
absence or presence of a genuine
dispute, or that an adverse party
cannot produce admissible evidence
to support the fact.

to work as a first-grade teacher for the 2014–
15 school year. (Id. ¶¶ 153–55.)
B. Procedural History
McCarthy filed this lawsuit on March 20,
2015. (ECF No. 1.) The County Defendants
and the School Defendants each moved for
summary judgment on November 7, 2016.
(ECF Nos. 28, 33.) McCarthy submitted her
opposition on January 17, 2017. (ECF Nos.
44, 47.) The School Defendants replied on
February 3, 2017 (ECF No. 52), and the
County Defendants replied on February 10,
2017 (ECF No. 53). The Court heard oral
argument on April 13, 2017 (ECF No. 55)
and has fully considered the parties’
submissions.
II.

Fed. R. Civ. P. 56(c)(1). The court “‘is not to
weigh the evidence but is instead required to
view the evidence in the light most favorable
to the party opposing summary judgment, to
draw all reasonable inferences in favor of that
party,
and
to
eschew
credibility
assessments.’” Amnesty Am. v. Town of W.
Hartford, 361 F.3d 113, 122 (2d Cir. 2004)
(quoting Weyant v. Okst, 101 F.3d 845, 854
(2d Cir. 1996)); see also Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)
(summary judgment is unwarranted if “the
evidence is such that a reasonable jury could
return a verdict for the nonmoving party”).

STANDARD OF REVIEW

The standard for summary judgment is
well-settled. Pursuant to Federal Rule of
Civil Procedure 56(a), a court may grant a
motion for summary judgment only if “the
movant shows that 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 Gonzalez v. City of
Schenectady, 728 F.3d 149, 154 (2d Cir.
2013). The moving party bears the burden of
showing that it is entitled to summary
judgment. See Huminski v. Corsones, 396
F.3d 53, 69 (2d Cir. 2005). Rule 56(c)(1)
provides that a

Once the moving party has met its
burden, the opposing party “‘must do more
than simply show that there is some
metaphysical doubt as to the material
facts . . . . [T]he nonmoving party must come
forward with specific facts showing that there
is a genuine issue for trial.’” Caldarola v.
Calabrese, 298 F.3d 156, 160 (2d Cir. 2002)
(alteration and emphasis in original) (quoting
Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586-87 (1986)). As the
Supreme Court stated in Anderson, “[i]f the
evidence is merely colorable, or is not
significantly probative, summary judgment
may be granted.” 477 U.S. at 249-50
(citations omitted).
Indeed, “the mere
existence of some alleged factual dispute
between the parties alone will not defeat an
otherwise properly supported motion for
summary judgment.” Id. at 247-48 (emphasis
in original). Thus, the nonmoving party may
not rest upon mere conclusory allegations or
denials but must set forth “‘concrete
particulars’” showing that a trial is needed.

party asserting that a fact cannot be or
is genuinely disputed must support the
assertion by: (A) citing to particular
parts of materials in the record,
including depositions, documents,
electronically stored information,
affidavits or declarations, stipulations
(including those made for purposes of
the motion only), admissions,
interrogatory answers, or other
4

R.G. Grp., Inc. v. Horn & Hardart Co., 751
F.2d 69, 77 (2d Cir. 1984) (quoting SEC v.
Research Automation Corp., 585 F.2d 31, 33
(2d Cir. 1978)).
Accordingly, it is
insufficient for a party opposing summary
judgment “‘merely to assert a conclusion
without supplying supporting arguments or
facts.’” BellSouth Telecomms., Inc. v. W.R.
Grace & Co.-Conn., 77 F.3d 603, 615 (2d
Cir. 1996) (quoting Research Automation
Corp., 585 F.2d at 33).
III.

and (6) intentional infliction of emotional
distress. 6 See Simon v. City of New York, No.
14-CV-8391 (JMF), 2017 WL 57860, at *5
(S.D.N.Y. Jan. 5, 2017) (taking a similar
approach); Soliman v. City of New York, No.
15-CV-5310 (PKC) (RER), 2017 WL
1229730, at *10 n.12 (E.D.N.Y. Mar. 31,
2017) (same). “[T]he Fourth Amendment
provides the source for a claim under Section
1983 premised upon an allegedly false
arrest,” Jackson v. Suffolk Cnty., 87 F. Supp.
3d 386, 399 (E.D.N.Y. 2015), and McCarthy
has failed to present any evidence how her

DISCUSSION

McCarthy raises several claims against all
defendants: (1) false arrest under Section
1983,
(2)
procedural
due
process,
(3) substantive due process, (4) due process
liberty interest, (5) unreasonable search and
seizure in violation of the Fourth
Amendment, (6) conspiracy under Section
1983, (7) assault under New York law,
(8) false imprisonment under New York law,
(9) intentional infliction of emotional distress
under New York law, and (10) violation of
the Mental Hygiene Law. 4

vicarious liability against municipalities. See Sankar v.
City of New York, 867 F. Supp. 2d 297, 313 (E.D.N.Y.
2012). Accordingly, the Court treats these as two
separate claims.
6

McCarthy’s intentional infliction of emotional
distress (“IIED”) claim “fails as a matter of law
because it overlaps with traditional tort theories of
liability,” namely, her false imprisonment claim. See
Frederique v. Cnty. of Nassau, 168 F. Supp. 3d 455,
483 (E.D.N.Y. 2016); Crews v. Cnty. of Nassau, 996 F.
Supp. 2d 186, 214 (E.D.N.Y. 2014) (“Here, the facts
supporting plaintiff's IIED claim are the very same
facts that support his claims for malicious prosecution,
as well as assault and battery. Consequently,
defendants are entitled to summary judgment on the
IIED claim.”). It is true that McCarthy alleges
emotional distress and professional damage, see
Schoolcraft v. City of New York, 103 F. Supp. 3d 465,
521 (S.D.N.Y. 2015), but she repeats these allegations
verbatim under her false imprisonment claim,
(compare Compl. ¶ 154, with id. ¶ 158). In any event,
no rational juror could find that either the County or
the School Defendants engaged in “extreme or
outrageous” conduct sufficient to establish IIED
liability. See Mejia v. City of New York, 119 F. Supp.
2d 232, 278 (E.D.N.Y. 2000) (“Evidence of lack of
probable cause that would support a claim
for false arrest or malicious prosecution, however, is
not sufficient to support an IIED claim, unless there is
also evidence that the arrest or prosecution was
accompanied by “extreme and outrageous conduct,
which so transcends the bounds of decency as to be
regarded as atrocious and intolerable in a civilized
society.” (citing Murphy v. Cnty. of Nassau, 609
N.Y.S.2d 940, 942 (App. Div. 2d Dep’t 1994)
(denying summary judgment on false arrest and
malicious prosecution claims, but granting summary
judgment on IIED claim)).

The centerpiece of her case is the
involuntary hospitalization—that is, her
allegedly false arrest. As a threshold matter,
several claims are duplicative and will be
construed as one claim for false arrest under
Count V: (1) procedural due process,
(2) substantive due process, (3) due process
liberty interest, (4) unreasonable search and
seizure, (5) false arrest under Section 1983, 5
4
As detailed below, McCarthy also asserts negligence
claims against the County Defendants and
discrimination claims against the School Defendants.
5

The Court recognizes that false arrest and false
imprisonment claims are “synonymous” for purposes
of the legal analysis. See Posr v. Doherty, 944 F.2d
91, 96 (2d Cir. 1991). However, McCarthy filed her
false arrest claim under Section 1983 and her false
imprisonment claim under New York law. Unlike
Section 1983, New York law permits theories of

5

1983, a false arrest claim derives from the
Fourth Amendment’s prohibition against
unreasonable searches and seizures. Jaegly v.
Couch, 439 F.3d 149, 151 (2d Cir. 2006). As
a threshold matter, it is undisputed that
McCarthy was “seized” within the meaning
of the Fourth Amendment. Glass v. Mayas,
984 F.2d 55, 58 (2d Cir. 1993) (stating that an
involuntary hospitalization is tantamount to
an arrest).

additional claims differ in any way. (See, e.g.,
Pl.’s Dep. at 117–18 (describing her
involuntary
hospitalization
as
false
imprisonment and a loss of liberty).) Second,
no independent cause of action exists under
the Mental Hygiene Law except claims over
the confidentiality of medical records, which
is not at issue here. Dunkelberger v.
Dunkelberger, No. 14–CV–3877 (KMK),
2015 WL 5730605, at *22 n.13 (S.D.N.Y.
Sept. 30, 2015).

To withstand summary judgment on a
false arrest claim, McCarthy needs to show a
genuine issue of material fact on four
elements: “‘(1) the defendant intended to
confine [her], (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.’”
Jocks v. Tavernier, 316 F.3d 128, 134–35 (2d
Cir. 2003) (quoting Broughton v. State, 37
N.Y.2d 451, 456 (1975)). The fourth element
is the only one in dispute for purposes of the
motion. With respect to this element, New
York law provides that a police officer “may
take into custody any person who appears to
be mentally ill and is conducting himself or
herself in a manner which is likely to result in
serious harm to the person or others.” N.Y.
Mental Hyg. Law § 9.41.

The Court will first consider the County
Defendants’ motion for summary judgment,
addressing the federal law claims and the
state law claims in turn.
A. The County Defendants
1. Federal Law Claims
Under federal law, the remaining claims
are for false arrest and conspiracy under
Section 1983.
a. False Arrest
McCarthy argues that (1) the Officers
lacked probable cause to transport her to a
hospital, and (2) the Officers are not entitled
to qualified immunity. For the reasons set
forth below, the Court finds that there are
material issues of disputed fact that preclude
summary judgment on the Section 1983 false
arrest claim as to the County Defendants,
including the issue of qualified immunity.

As the County Defendants correctly
argue, probable cause is a complete defense
to a false arrest claim. See Heller v. Bedford
Cent. Sch. Dist., 144 F. Supp. 3d 596, 622
(S.D.N.Y. 2015) (collecting cases). In
analyzing this defense, the Court evaluates
“the totality of the facts and circumstances
alleged to have been known to officers at the
time of plaintiff’s mental health arrest.” Id. at
623.

Section 1983 prohibits “the deprivation of
any rights, privileges, or immunities secured
by the Constitution and laws” by a person
acting under the color of state law. 42 U.S.C.
§ 1983. But Section 1983 does not create
substantive rights; instead, it provides a
procedure to vindicate rights established
elsewhere. Patterson v. Cnty. of Oneida, 375
F.3d 206, 225 (2d Cir. 2004). Under Section

The Officers assert that they hospitalized
McCarthy because her actions and statements
corroborated what they learned from school
officials—namely, that she threatened to hurt
6

jury could find that Officers Stassi and
Amodeo ignored Assistant Principal Higgins’
statements about McCarthy being calm and
effectively made a decision to arrest her upon
arrival at the sister’s house. This evidence,
together with McCarthy’s account (including
that she never threatened to kill herself when
the officers arrived at her residence) and the
three-hour gap between the school incident
and the Officers’ in-person evaluation,
creates material issues of disputed fact as to
whether there was arguable probable cause
and precludes summary judgment on the
issue of qualified immunity. Thus, summary
judgment is denied on the false arrest claim
against Officers Stassi and Amodeo. 7
However, summary judgment is granted for
the County because “a municipal defendant
cannot be held vicariously liable under
§ 1983 on a respondeat superior theory.”

herself. (Amodeo Dep. at 68–69; Stassi Dep.
at 65, 84.) However, if a reasonable jury
accepted McCarthy’s version of events, it
could conclude that the Officers lacked
probable cause because she never threatened
to kill herself and was acting properly at her
residence, and the Officers ignored Assistant
Principal Higgins’ statements that McCarthy
was calm at the school. In other words, there
are genuine issues of fact as to whether, at the
time of her detention and hospitalization,
McCarthy appeared mentally ill and whether
she conducted herself in a manner likely to
result in serious harm to herself or someone
else. See N.Y. Mental Hyg. Law § 9.41.
The County Defendants argue that, even if
the Officers lacked probable cause, they are
entitled to qualified immunity. As the
Supreme Court recently affirmed, “[q]ualified
immunity attaches when an official’s conduct
‘does not violate clearly established statutory
or constitutional rights of which a reasonable
person would have known.’” White v. Pauly,
137 S. Ct. 548, 551 (2017) (per curiam)
(quoting Mullenix v. Luna, 136 S. Ct. 305,
308 (2015) (per curiam)). Even if a police
officer lacked probable cause, he is still
“entitled to qualified immunity so long as
‘arguable probable cause’ was present when
the arrest was made.” Figueroa v. Mazza, 825
F.3d 89, 100 (2d Cir. 2016) (quoting Zalaski
v. City of Hartford, 723 F.3d 382, 390 (2d
Cir. 2013)). “A police officer has arguable
probable cause ‘if either (a) it was objectively
reasonable for the officer to believe that
probable cause existed, or (b) officers of
reasonable competence could disagree on
whether the probable cause test was met.’” Id.

7

However, the Officers may raise the qualified
immunity issue with the Court at trial. In other words,
in order to determine the availability of the qualified
immunity defense in this case at trial, the Court is
prepared to follow the procedures set forth by the
Second Circuit in Zellner v. Summerlin, 494 F.3d 344,
367-68 (2d Cir. 2007). Specifically, although “the
ultimate question of whether it was objectively
reasonable for [defendants] to believe that [their]
conduct did not violate a clearly established right, i.e.,
whether officers of reasonable competence could
disagree as to the lawfulness of such conduct, is to be
decided by the court,” id. at 367, the jury must first
“resolve[] any disputed facts that are material to the
qualified immunity issue,” id. at 368. Further, “[t]o
the extent that a particular finding of fact is essential to
a determination by the court that the defendant is
entitled to qualified immunity, it is the responsibility
of the defendant to request that the jury be asked the
pertinent question.” Id. (citations omitted) (noting that
“if the defendant does not make such a request, he is
not entitled to have the court, in lieu of the jury, make
the needed factual finding”). In particular, “‘the jury
should decide these issues on special interrogatories.’”
Id. (quoting Warren v. Dwyer, 906 F.2d 70, 76 (2d Cir.
1990)). Once the jury has determined these factual
issues, the Court will—if necessary—afford
defendants an additional opportunity to renew their
motion with respect to qualified immunity.

In light of the evidence, a reasonable jury
could conclude that the Officers’ assessment
of McCarthy was objectively unreasonable,
and that no officer of reasonable competence
could find otherwise. Viewing the facts in a
light most favorable to McCarthy, a rational
7

Kraft v. City of New York, 696 F. Supp. 2d
403, 417 (S.D.N.Y. 2010). 8

Elaborating on that standard, the Second
Circuit requires “more than ‘conclusory,
vague or general allegations of conspiracy to
deprive a person of constitutional rights.’” Ali
v. Connick, 136 F. Supp. 3d 270, 282
(E.D.N.Y. 2015) (quoting Boddie v.
Schnieder, 105 F.3d 857, 862 (2d Cir. 1997)).

b. Conspiracy
On a Section 1983 conspiracy claim, 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). 9

The conspiracy claim is barred by the
intracorporate conspiracy doctrine, which
provides “that the officers, agents and
employees of a single corporate or municipal
entity, each acting within the scope of his
employment, are legally incapable of
conspiring together.” Henneberger v. Cnty. of
Nassau, 465 F. Supp. 2d 176, 196 (E.D.N.Y.
2006). Although the Second Circuit “has not
yet determined its applicability to Section
1983 conspiracy claims,” district courts have
applied the doctrine in this context. See, e.g.,
Hicks v. City of New York, 232 F. Supp. 3d
480, 497 (S.D.N.Y. 2017). This Court also
has concluded that this doctrine applies to
Section
1983
claims.
Here,
the
uncontroverted evidence indicates that the
Officers acted independently and without
direction from the School Defendants.
(Amodeo Dep. at 67–68; Stassi Dep. at 86–
87.) Because the Officers are employees of a
single municipal entity and acted within the
scope of their employment, the intracorporate
conspiracy doctrine applies. 10

8

The parties briefed arguments for a municipal
liability claim under Section 1983, but that cause of
action is missing from the complaint. See Monell v.
Dep’t of Soc. Servs. of City of New York, 436 U.S. 658
(1978). Only two claims were filed under Section
1983: false arrest and conspiracy. The closest analogue
is a negligent hiring, training, and supervision claim
under New York State law. In any event, a municipal
liability claim would not survive summary judgment.
“To state a Monell claim for official or municipal
violation of constitutional rights, a plaintiff must
adequately plead an official policy or custom that
resulted in the violation alleged.” Arroyo v. City of
New York, 683 F. App’x 73, 75 (2d Cir. 2017)
(summary order). In the instant case, the record
contains no evidence of a municipal-wide policy or
custom, let alone one linked to the Officers’ actions.
See Jones v. Town of East Haven, 691 F.3d 72, 81 (2d
Cir. 2012) (“[I]solated acts . . . by non-policymaking
municipal employees are generally not sufficient to
demonstrate a municipal custom, policy, or usage that
would justify municipal liability.”). To the extent
McCarthy argues a failure to train theory of municipal
liability under Section 1983, there is insufficient
evidence in the record from which a rational jury could
find that any lack of training caused the alleged
constitutional violation in this case. Thus, summary
judgment is warranted on any municipal liability claim
brought under Section 1983.

one under Section 1985(3), McCarthy failed to present
evidence of discriminatory treatment. Thomas v.
Roach, 165 F.3d 137, 146 (2d Cir. 1999) (requiring
“some racial or perhaps otherwise class-based,
invidious discriminatory animus behind the
conspirators’ actions” under Section 1985(3)) (citation
omitted).

9

In her opposition briefs, McCarthy construed her
conspiracy claim under Section 1985(3), but the
complaint asserts the cause of action under Section
1983. This revision lacks any force because “[a]
summary judgment opposition brief is not a substitute
for a timely motion to amend the complaint.”
Maharishi Hardy Blechman Ltd. v. Abercrombie &
Fitch Co., 292 F. Supp. 2d 535, 544 (S.D.N.Y. 2003).
In any event, even if the Court construed the claim as

10

To the extent McCarthy argues that a conspiracy
existed between the Officers and the School
Defendants, the Court concludes that, even construing
the evidence most favorably to plaintiff, no rational
jury could find such a conspiracy existed in this case
because, as discussed infra, there is no evidence that
the School Defendants encouraged the arrest or

8

Accordingly, the Court grants summary
judgment on the Section 1983 conspiracy
claim against the County Defendants.

Musanti, No. 14-cv-8976 (KBF), 2017 WL
253486, at *5 (S.D.N.Y. Jan. 20, 2017)
(citation omitted). “Although a plaintiff need
not prove actual contact, she must allege
some physical menace against her body.” Id.

2. State Law Claims

The record lacks any evidence that the
Officers intended to inflict harm or to arouse
the specter of harm. First, the only alleged
physical contact came between McCarthy and
Officer Stassi, who escorted McCarthy to the
ambulance with “his hand on [her] elbow” in
a “gentlemanly” fashion. (Cnty. 50-h Hr’g at
54–55.) Second, McCarthy describes the
threat of harm as the “emotional upsetment
[sic] of being locked in the psychiatric unit.”
(Cnty. 50-h Hr’g at 71; Pl.’s Dep. at 118.)
Based on these allegations, no rational juror
could find that the Officers acted in a
threatening or menacing matter sufficient to
establish liability for assault. See Green v.
City of New York, 465 F.3d 65, 86 (2d Cir.
2006) (affirming dismissal of assault claim
because there were no allegations that “an
officer acted in a way that placed [the
plaintiff] ‘in fear of imminent harmful or
offensive conduct’”).

McCarthy asserts state law claims under
the doctrine of supplemental jurisdiction. As
for the County Defendants, she raises claims
for false imprisonment, assault, and
negligence. She also asserts an additional
claim for negligent hiring, training, or
supervision against the County itself.
a. False Imprisonment
As discussed earlier, “the tort of false
arrest is synonymous with that of false
imprisonment.” Posr, 944 F.2d at 96.
However, unlike its federal counterpart, New
York law permits supervisor liability for
municipalities under a theory of respondeat
superior. Sankar, 867 F. Supp. 2d at 313.
“This applies even to discretionary actions by
police officers where, as here, genuine issues
of material fact exist as to whether there was
probable cause for arrest.” See id. Thus, for
the same reasons discussed in the false arrest
analysis, the Court denies summary judgment
on the false imprisonment claim against
Officers Stassi and Amodeo, as well as
Nassau County.

Accordingly, the assault claim does not
withstand summary judgment.
c. Negligence
To survive summary judgment on a
negligence claim, a plaintiff must establish
“(1) the existence of a duty on the
defendant’s part as to the plaintiff; (2) a
breach of that duty; and (3) resultant injury to
the plaintiff.” Field Day, LLC v. Cnty. of
Suffolk, No. 04–CV–2202 (DRH)(WDW),
2005 WL 2445794, at *23 (E.D.N.Y. Sept.
30, 2005). However, here, any “offensive
bodily contact with the plaintiff—if it
occurred at all—was intentional and not
negligent.” Dewitt v. Home Depot U.S.A.,
Inc., No. 10–CV–3319 (KAM), 2012 WL

b. Assault
Under New York law, “an ‘assault’ is an
intentional placing of another person in fear
of imminent harmful or offensive contact.”
United Nat’l Ins. Co. v. Waterfront New York
Realty Corp., 994 F.2d 105, 108 (2d Cir.
1993). “The plaintiff must show that the
defendant intended either to inflict personal
injury or to arouse apprehension of harmful
or offensive bodily contact.” Wright v.
engaged in any type of joint action with the County
Defendants.

9

Defendants’ motion. The Court will first
address plaintiff’s discrimination claims and
then turn to McCarthy’s remaining claims
and the County Defendants’ cross-claim for
indemnity.

4049805, at *11 (E.D.N.Y. Sept. 12, 2012);
see also Dineen v. Stramka, 228 F. Supp. 2d
447, 454 (S.D.N.Y. 2002) (“When a plaintiff
asserts . . . assault claims which are premised
upon a defendant’s allegedly intentional
conduct, a negligence claim with respect to
the same conduct will not lie.”). McCarthy
alleges, for example, that the County
Defendants “intentionally and recklessly”
infringed her rights. (See, e.g., Compl. ¶ 135.)
Thus, her negligence claim fails as a matter of
law, and summary judgment is granted.

1. The Discrimination Claims
McCarthy asserts three discrimination
claims against the School Defendants: (1) age
discrimination under New York State
Executive Law, (2) race discrimination under
New York State Executive Law, and
(3) violation of the Equal Protection Clause
of the Fourteenth Amendment. McCarthy
also asserts two additional claims against the
District itself: (1) age discrimination under
the Age Discrimination in Employment Act,
29 U.S.C. § 621, and (2) race discrimination
under Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. §§ 2000e et seq.

d. Negligent Hiring, Training, or
Supervision
To assert a claim for negligent hiring,
training, or supervision, a plaintiff must
allege negligence with three additional
requirements: “‘(1) the tort-feasor and the
defendant were in an employee-employer
relationship, (2) the employer knew or should
have known of the employee’s propensity for
the conduct which caused the injury prior to
the injury’s occurrence, and (3) that the tort
was committed on the employer’s premises or
with the employer’s chattels.” Soliman, 2017
WL 1229730, at *12 (quoting Ehrens v.
Lutheran Church, 385 F.3d 232, 235 (2d Cir.
2004) (per curiam)). However, where, as
here, “employees were acting within the
scope of their employment, an employer may
not be held liable for negligent hiring,
training, and retention as a matter of law.”
See Rowley v. City of New York, No. 00 Civ.
1793(DAB), 2005 WL 2429514, at *13
(S.D.N.Y. Sept. 30, 2005) (collecting cases).
As is plain from the record, Officers Stassi
and Amodeo acted within the scope of their
employment, and McCarthy concedes as
much. (Compl. ¶ 35.) Thus, the County is
entitled to summary judgment on this claim.

Having reviewed the record, the Court
concludes that there is no evidence from
which a rational jury could find that the
School Defendants were motivated by any
type of discriminatory intent. At oral
argument, McCarthy’s lawyer conceded that
he could point to no evidence in the record of
discrimination. Thus, the Court grants
summary judgment in the School Defendants’
favor on the discrimination claims. 11
2. The Remaining Claims
The remaining claims against the School
Defendants are for false arrest, false
imprisonment, conspiracy, and assault. 12

11

In light of this conclusion, the Court need not
address whether McCarthy suffered any adverse
employment actions.

B. The School Defendants

12

McCarthy withdrew her claims for negligence and
negligent hiring, training, and supervision against the
School Defendants.

Next, the Court will address the School
10

provided similar testimony:

As for the false arrest and false
imprisonment claims, it is uncontroverted that
the School Defendants were not present when
McCarthy was arrested. When a defendant is
a private actor and not an arresting officer, a
plaintiff must show that the defendant
“instigated” the arrest. King v. Crossland Sav.
Bank, 111 F.3d 251, 255 (2d Cir. 1997).
Accordingly, “‘a plaintiff must show that the
defendant took an active role in the arrest . . .
such as giving advice and encouragement or
importuning the authorities to act, and that
the defendant intended to confine the
plaintiff.’” Vlach v. Staiano, 604 F. App’x 77,
78 (2d Cir. 2015) (summary order) (quoting
Lowmack v. Eckerd Corp., 303 A.D.2d 998,
999 (2003)). However, where, as here,
private actors merely furnished information
leading to an arrest, liability does not attach,
and summary judgment is appropriate. See
Kraft, 696 F. Supp. 2d at 421–22.

Q. Would it be fair to say that
you were going to conduct your
own investigation of the
situation before you and your
partner
made
a
final
determination as to whether or
not Ms. McCarthy needed to go
to the hospital?
A. Yes.
***
Q. Did anyone at the district
ever request that you bring Ms.
McCarthy to the hospital?
A. No, sir.
(Stassi Dep. at 86–87.) Indeed, McCarthy
presented no evidence that the School
Defendants “instigated” the arrest by asking
or encouraging the Officers to act. See King,
111 F.3d at 257 (“When police independently
act to arrest a suspect on information
provided by a party, that party is not liable for
false imprisonment . . . .”). Instead, the
decision to contact the police was made by
Dr. Hazelton, and both Principal Braswell
and Assistant Principal Higgins followed the
chain-of-command. However, there is no
evidence of encouraging an arrest, and the
Officers detained and hospitalized plaintiff
based upon their own interactions with
plaintiff at the residence. The Court, thus,
grants summary judgment on the false arrest
and false imprisonment claims against the
School Defendants.

As illustrated by Officer Amodeo’s sworn
testimony, law enforcement made an
independent determination to arrest plaintiff:
Q. Now, it was your job in
going [to the sister’s house] to
make
an
independent
assessment as to whether or not
[McCarthy] was a threat, right?
A. Yes.
***
Q. So when you arrived at the
residence, was it your intent
that she be transported to the
hospital, without even knowing
what your interaction would
be?

The assault and conspiracy claims against
the School Defendants also cannot survive
summary judgment. The School Defendants
were not personally involved in McCarthy’s
arrest, nor did plaintiff present evidence that
she feared any harmful or offensive contact

A. No.
(Amodeo Dep. at 67–68.) Officer Stassi
11

by the School Defendants. Accordingly,
summary judgment is granted in favor of the
School Defendants on the assault and
conspiracy claims.

***
Plaintiff is represented by Alan E. Wolin,
Wolin & Wolin, Esqs., 420 Jericho Turnpike,
Suite 215, Jericho, New York 11753.
The School Defendants are represented by
Gerald Stephen Smith, Silverman and
Associates, 445 Hamilton Avenue, Suite
1102, White Plains, New York 10601.

3. The County Defendants’ Cross-Claim
Finally, the School Defendants move to
dismiss the County Defendants’ cross-claim
for indemnity.
The Court dismisses the
cross-claim because the uncontroverted
evidence in the record, including the Officers’
own testimony, demonstrates that the Officers
made their own assessment as to whether to
detain and hospitalize McCarthy based upon
their own observations at the residence,
independent of the School Defendants. Thus,
the cross-claim against the School Defendants
must be dismissed.
IV.

The County Defendants are represented by
Liora M. Ben-Sorek, Nassau County
Attorney’s Office, One West Street, Mineola,
New York 11501.

CONCLUSION

For the foregoing reasons, the Court
grants the School Defendants’ motion for
summary judgment in its entirety and
dismisses the County Defendants’ crossclaim. (ECF No. 28.) The County
Defendants’ motion for summary judgment is
granted in part and denied in part. (ECF No.
33.) The following claims will proceed to
trial: (1) false arrest under Section 1983
against Officers Stassi and Amodeo, and (2)
false imprisonment under New York law
against all of the County Defendants. Finally,
the Clerk of the Court is directed to terminate
Nassau County Police Department and
Matthew Field as defendants in this case.
SO ORDERED.

JOSEPH F. BIANCO
United States District Judge
Dated: September 19, 2017
Central Islip, New York
12