Anderson v. Incorporated Village of Hempstead et al

Filing 79

MEMORANDUM & ORDER granting 71 Motion for Summary Judgment; For the stated reasons, Defendants' motion for summary judgment is GRANTED, Plaintiff's Section 1983 claims are DISMISSED, and Plaintiff's New York State law claims are DISMISSED WITHOUT PREJUDICE. The Clerk of the Court is directed to enter judgment accordingly and mark this case CLOSED. So Ordered by Judge Joanna Seybert on 1/28/2022. C/ECF (Valle, Christine)

Case 2:15-cv-01485-JS-SIL Document 79 Filed 01/28/22 Page 1 of 15 PageID #: 1146

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-----------------------------------X
JARRETTE ANDERSON,
Plaintiff,

MEMORANDUM & ORDER
15-CV-1485(JS)(SIL)

-againstINCORPORATED VILLAGE OF HEMPSTEAD,
VILLAGE
OF
HEMPSTEAD
POLICE
DEPARTMENT, VILLAGE OF HEMPSTEAD
POLICE OFFICERS JOHN AND JANE DOES
“1-10”, in their individual and
official capacity,

Defendants.
-----------------------------------X
APPEARANCES
For Plaintiff:
Frederick K. Brewington, Esq.
Albert Darnell Manuel, III, Esq.
Law Offices of Frederick K. Brewington
556 Peninsula Boulevard
Hempstead, New York 11550
For Defendants:

Andrew Kenneth Preston, Esq.
Bee Ready Fishbein Hatter & Donovan LLP
170 Old Country Road
Mineola, New York 11501

SEYBERT, District Judge:
On

March

20,

2015,

plaintiff

Jarrette

Anderson

(“Plaintiff”) commenced this action pursuant to 42 U.S.C. § 1983
(“Section 1983”) and New York State law against the Incorporated
Village of Hempstead (the “Village”); the Village of Hempstead
Police Department; and John and Jane Does #1-10 (collectively,
“Defendants”).

Pending before the Court is Defendants’ motion for

summary judgment.

(Mot., ECF No. 71; Support Memo, ECF No. 71-2;

1

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Opp’n, ECF No. 76; Reply, ECF No. 77.)

For the following reasons,

Defendants’ motion is GRANTED.
BACKGROUND
I.

Facts
The

following

facts,

unless

otherwise

noted,

are

undisputed. 1
A.

The Arrest
This case arises out of Plaintiff’s arrest on December

22, 2013.

Plaintiff spent the evening of December 22, 2013 at a

friend’s apartment on South Franklin Street in the Village. (Defs.
56.1 Stmt. ¶ 20.)

At around 11:00 p.m. that night, Plaintiff and

his friends, Lamar Laws and Daquan Godely, left the apartment and
got into Godely’s car, which was parked nearby.

(Id. ¶¶ 21-22.)

Unless otherwise indicated, the facts are taken from Defendants’
Rule 56.1 Statement (Defendants’ Rule 56.1 Statement of Material
Facts (“Defs. 56.1 Stmt.”), ECF No. 71-1), and Plaintiff’s Rule
56.1
Counterstatement
of
Material
Facts
(Plaintiff’s
Counterstatement of Material Facts (“Pl. 56.1 Counterstmt.”), ECF
No. 76-1). Unless otherwise stated, a standalone citation to a
Rule 56.1 Statement or Counterstatement denotes that either the
parties agree or the Court has determined that the underlying
factual allegation(s) is (are) undisputed. Citation to a party’s
Rule 56.1 Statement or Counterstatement incorporates by reference
the document(s) cited therein.
1

Defendants’ exhibits, which are attached to the Declaration of
Andrew K. Preston (see ECF No. 71-3), are identified by letters.
For ease of citation, the Court will simply cite to the lettered
exhibits.
Plaintiff’s exhibits, which are attached to the
Declaration of Albert D. Manuel, III (see ECF No. 76-2), are
similarly identified by letters. Again, for ease of citation, the
Court will simply cite to the lettered or numbered exhibits.
2

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Plaintiff

sat

behind

the

front

passenger

seat.

(Pl.

56.1

Counterstmt. ¶ 1.)
As Plaintiff, Laws, and Godely sat in Godely’s parked
car, three plainclothes Village police officers, including Officer
Cousins, approached the car in an unmarked vehicle, allegedly
because one of the officers smelled marijuana.

(Defs. 56.1 Stmt.

¶ 23; Officer Cousins Depo. Tr. at 41:4-8, Ex. E.)

The parties

dispute whether the officers identified themselves as police.
(Compare Pl. 56.1 Counterstmt. ¶¶ 2-6, and Pl. Depo. Tr. at 38:913, 39:3-8, Ex. D; with Officer Cousins Depo. Tr. at 46:12-16.)
Nevertheless, it is undisputed that Plaintiff got out of the car
and fled from the officers, with Officer Cousins giving chase.
(Defs. 56.1 Stmt. ¶¶ 23-25.)

According to Plaintiff, he fled

because a “threatening stranger,” Officer Cousins, had drawn his
weapon.

(Pl. 56.1 Counterstmt. ¶ 6.)

Officer Cousins testified

that he pulled his firearm because Plaintiff, upon exiting the
vehicle, “immediately grabbed his waistband with both hands” in
such a way that Officer Cousins “perceived that he had a gun.”
(Officer Cousins Depo. Tr. at 46:9-13, 47:16-21, 50:24-51:8-10.)
The

parties

generally

dispute

Officer Cousins overtook Plaintiff.

what

happened

after

According to Defendants,

Plaintiff drew a gun from his waistband and turned to shoot Officer
Cousins as soon as the latter tried to pull Plaintiff to the
ground.

(Defs. 56.1 Stmt. ¶ 26.)
3

Officer Cousins fired one shot

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in response, striking Plaintiff in the neck.
summarized

infra,

this

version

of

events

is

(Id. ¶ 27.)
corroborated

As
by

Plaintiff’s subsequent plea allocution in the state court criminal
prosecution

resulting

from

the

December

22,

2013

incident.

Conversely, Plaintiff disputes having a gun the night of the
altercation, let alone drawing it with the intent to shoot Officer
Cousins.

(Pl. 56.1 Counterstmt. ¶ 7.)

Rather, Plaintiff asserts

that he “fell to the ground during the chase,” at which time
Officer Cousins shot him.
B.

(Id. ¶ 9.)

State Court Criminal Proceedings
As a result of the December 22, 2013 incident, Plaintiff

was indicted and pleaded guilty to the following: (1) two counts
of criminal possession of a controlled substance in the fifth
degree; (2) two counts of criminal possession of a controlled
substance
possession

in
of

the
a

seventh
weapon

degree;
in

the

(3) two
second

counts
degree;

of

criminal

(4) criminal

possession of a weapon in the fourth degree; (5) menacing a police
officer; (6) criminal possession of a controlled substance in the
fourth degree; and (7) resisting arrest.
see also Plea Allocution, Ex. C.)

(Defs. 56.1 Stmt. ¶ 28;

Significantly, at his plea

allocution held on November 10, 2015, Plaintiff testified that on
the night of December 22, 2013, he knowingly “[p]ossessed a loaded
weapon” without a permit (Plea Allocution at 9:5-15), and that he
attempted to point the loaded firearm at Officer Cousins, whom he
4

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knew to be a police officer at that time (id. at 10:5-13).

He

further admitted to resisting Officer Cousins when the latter
attempted to place him under arrest.
Plaintiff

admitted

to

possessing

incident.

(Id. at 9:24-10:4.)

(Id. at 10:14-17.)

cocaine

at

the

time

Last,
of

the

Plaintiff has since been released

from prison.
II.

Procedure
Plaintiff

asserting

initiated

violations

of

this

his

action

Fourth,

on

March

Fifth,

and

20,

2015,

Fourteenth

Amendment constitutional rights under Section 1983, as well as
several New York State law claims.

Specifically, the Complaint

asserts the following causes of action pursuant to Section 1983:
(1) false

arrest,

malicious

prosecution,

unreasonable

and

excessive use of force, and abuse of process; (2) conspiracy to
deprive Plaintiff of equal protection; (3) failure to intervene;
and (4) “Municipal Violations.”

(Compl., ECF No. 1, ¶¶ 42-81.)

Plaintiff further asserts the following claims under New York State
law: (1) assault and battery; (2) false imprisonment; (3) false
arrest;

(4) abuse

emotional

of

distress;

process;
and

(5) intentional

(6) negligence.

(Id.

infliction
¶¶

of

82-115.)

Plaintiff asserts these claims against the Village, the Village of
Hempstead Police Department, and Doe Defendants.
On September 3, 2015, Plaintiff requested a stay of this
action pending resolution of Plaintiff’s underlying state court
5

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criminal proceeding. (ECF No. 15.) On January 27, 2016, Plaintiff
provided a status report in which he advised that he had pleaded
guilty to “numerous felony matters with which he was charged” in
the underlying criminal matter.

(ECF No. 16.)

As a result,

Plaintiff advised that he would “move forward with the excessive
force claim” here.

(Id.)

For reasons that the parties do not explain, 2 Plaintiff
never amended his Complaint to drop his additional claims under
Section 1983 and New York State law.

Rather, on May 20, 2019,

after the parties had completed discovery, Plaintiff sought leave
to amend the Complaint to name Officer Cousins as a defendant.
(See ECF Nos. 51, 52.)

Following briefing regarding Plaintiff’s

motion to amend the Complaint, Magistrate Judge Locke issued an
order on March 2, 2020 denying Plaintiff’s request on the ground
that it was “futile due to its untimeliness.”

(Mar. 2, 2020 Order

at 7, ECF No. 55.) Accordingly, there are no individual defendants
in this action.

At Plaintiff’s deposition, it appears the parties arrived at an
understanding that Plaintiff would not be withdrawing the other
causes of action. (Pl. Depo. Tr. at 5:2-6:2.)
2

6

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DISCUSSION
I.

Legal Standard
Summary

judgment

is

appropriate

where

there

is

“no

genuine dispute as to any material fact and the movant is entitled
FED. R. CIV. P. 56(a).

to judgment as a matter of law.”

“Material

facts are those which might affect the outcome of the suit under
the governing law, and a dispute is genuine if the evidence is
such

that

a

reasonable

nonmoving party.”

jury

could

return

a

verdict

for

the

Wagner v. Chiari & Ilecki, LLP, 973 F.3d 154,

164 (2d Cir. 2020) (quoting Coppola v. Bear Stearns & Co., 499
F.3d 144, 148 (2d Cir. 2007)) (internal quotation marks omitted).
The movant bears the burden of establishing that there are no
genuine issues of material fact for trial.

Gallo v. Prudential

Residential Servs., L.P., 22 F.3d 1219, 1223 (2d Cir. 1994).

“In

moving for summary judgment against a party who will bear the
ultimate burden of proof at trial,” as Plaintiff does here, “the
movant may satisfy this burden by pointing to an absence of
evidence to support an essential element of the nonmoving party’s
claim.”

Gummo v. Village of Depew, 75 F.3d 98, 107 (2d Cir. 1996)

(citing Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986)).
On a motion for summary judgment 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.”
7

Nnebe v. Daus, 644 F.3d

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147, 156 (2d Cir. 2011).

In reviewing the 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

No.

Tech.

Inc.,

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)).

When drawing inferences from

evidence in the record in favor of the non-moving party, however,
a court should not accord the non-moving party the benefit of
“unreasonable inferences, or inferences at war with undisputed
facts.”

Berk v. St. Vincent’s Hosp. & Med. Ctr., 380 F. Supp. 2d

334, 342 (S.D.N.Y. 2005) (quoting County of Suffolk v. Long Island
Lighting Co., 907 F.2d 1295, 1318 (2d Cir. 1990)).
II.

Analysis
A.

Section 1983
Plaintiff’s

reasons.

Section

1983

claims

fail

for

several

First, there are not any named individual defendants in

this action as a result of Plaintiff’s unsuccessful attempt to
amend his Complaint to add Officer Cousins.

And it is well

established that Plaintiff cannot pursue his Section 1983 claims
for false arrest; malicious prosecution; excessive use of force;
abuse

of

process;

conspiracy

to

deprive

Plaintiff

of

equal

protection; and failure to intervene against the Village Police
Department generally or against the Village itself on a respondeat
8

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superior

theory

dismissed.

of

liability.

Thus,

these

claims

must

be

Further, while Plaintiff can pursue his Monell claim

against the Village, there is no competent evidence in the record
from which the Court may find that the alleged constitutional torts
were caused by a Village policy or custom, an essential element to
Plaintiff’s claim.
1.

Applicable Law

Section 1983 provides a civil claim for damages against
any person who, acting under color of state law, deprives another
of

any

rights,

privileges,

or

immunities

secured

Constitution or the laws of the United States.

by

the

See 42 U.S.C.

§ 1983; Cornejo v. Bell, 592 F.3d 121, 127 (2d Cir. 2010).

“The

purpose of § 1983 is to deter state actors from using the badge of
their

authority

guaranteed

to

rights

deterrence fails.”

deprive

and

to

individuals

provide

relief

of

their

to

victims

federally
if

such

Wyatt v. Cole, 504 U.S. 158, 161 (1992).

Further, it is well established that a municipality such as the
Village cannot be held liable under Section 1983 on a respondeat
superior theory.

See Monell v. Dep’t of Soc. Servs., 436 U.S.

658, 691 (1978); Roe v. City of Waterbury, 542 F.3d 31, 36 (2d
Cir. 2008).

“Rather, municipalities may be liable [under Section

1983] only where ‘execution of a government’s policy or custom’
causes constitutional violations.”

Buari v. City of New York, No.

18-CV-12299, 2021 WL 1198371, at *21 (S.D.N.Y. Mar. 30, 2021)
9

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(quoting

Monell,

436

U.S.

at

694).

“To

prevail

against

a

municipality in a Section 1983 action, a plaintiff must plead and
prove

three

elements:

(1) an

official

policy

or

custom

that

(2) caused the plaintiff to be subjected to (3) a denial of a
constitutional right.”

Kogut v. County of Nassau, No. 06-CV-6695,

2009 WL 5033937 (E.D.N.Y. Dec. 11, 2009) (citing Hartline v. Gallo,
546 F.3d 95, 103 (2d Cir. 2008)).
2.

Application

First, there are no individually named defendants in
this action, because Plaintiff failed to timely amend his complaint
to add Officer Cousins as a defendant.

(See Mar. 2, 2020 Order.)

Just as Judge Locke found, at this juncture, Plaintiff cannot amend
his complaint to add individual officer defendants, such as Officer
Cousins, because his Section 1983 claims, which are governed by a
three-year statute of limitations, would be time barred.

(Id. at

7-8); see also Pugh v. Casimir, No. 18-CV-7350, 2021 WL 4463103,
at *7 (E.D.N.Y. Sept. 29, 2021) (“A plaintiff may not amend the
complaint or alter his theory of liability in a memorandum of law
in opposition to summary judgment.” (citing Lyman v. CSX Transp.,
Inc., 364 F. App’x 699, 701 (2d Cir. 2010))); Polite v. Town of
Clarkstown, 198 F.R.D. 610, 612 (S.D.N.Y. 2001) (denying the
plaintiffs’ motion to amend their Section 1983 complaint to add
individual

defendants

where

claims

against

the

individual

defendants would be time-barred, even where the plaintiff “was
10

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required to name an individual as a defendant”).

For that reason,

Plaintiff’s Section 1983 claims against the Doe Defendants are
dismissed as time barred.

Gleeson v. County of Nassau, No. 15-

CV-6487, 2019 WL 4754326, at *12 (E.D.N.Y. Sept. 30, 2019). 3
Further,

the

Court

cannot

hold

the

Village

liable

pursuant to Section 1983 under a respondeat superior theory.
Connick v. Thompson, 563 U.S. 51, 60 (2011) (holding under Section
1983, local governments are responsible for “their own illegal
acts,” and are “not vicariously liable under [Section] 1983 for
their

employees’

actions.”

(citations

omitted)

(emphasis

in

original)); see also Merriweather v. City of New York, No. 12-CV5258, 2015 WL 57399, at *3 (S.D.N.Y. Jan. 5, 2015) (holding that,
upon dismissal of the only individual defendant, “Plaintiff’s only
remaining claims as to the City are a federal claim for a violation
of his constitutional rights by a municipal policy and his state
law claims”).

As such, Plaintiff can proceed under Monell by

Even assuming Plaintiff could pursue his Section 1983 claims,
the Court seriously doubts he could survive summary judgment on
any of them in light of his guilty plea in the underlying criminal
matter. See Routier v. O’Hara, No. 08-CV-02666, 2013 WL 3777100,
at *7–8 (E.D.N.Y. July 17, 2013) (finding the Section 1983
plaintiff was collaterally estopped from denying facts to which he
admitted during a state plea allocution, including that he
“knowingly possessed a loaded firearm, that being a pistol, with
the intent to use it unlawfully against another” the night of the
incident).
3

11

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showing that a Village policy caused the constitutional violations
at issue in this case.
A plaintiff can establish the policy requirement in
several

ways,

but

here,

“[b]eyond

the

alleged

facts

of

this

particular case, [P]laintiff[] ha[s] presented neither argument
nor a single piece of evidence regarding the existence of a custom
or policy in” the Village.

Raphael v. County of Nassau, 387 F.

Supp. 2d 127, 131 (E.D.N.Y. 2005).

There is an absence of evidence

in the record from which the Court could find that Officer Cousin’s
conduct the night of the incident was caused by the deliberate
indifference of Village policymakers as to proper training or
supervision of their subordinates, let alone that it formed part
of a persistent and widespread de facto custom at the Village.

In

fact, there is no competent evidence regarding anything beyond the
factual

underpinnings

of

Plaintiff’s

arrest.

This

dooms

Plaintiff’s Monell claim, because, as the Supreme Court has made
clear,

an

isolated

instance

of

unconstitutional

conduct

by

individual officers, even if proven, is not sufficient to impose
municipal liability.

City of Oklahoma City v. Tuttle, 471 U.S.

808, 823–24 (1985); see also Greenaway v. County of Nassau, 97 F.
Supp. 3d 225, 237 (E.D.N.Y. 2015).

“Proof of a single incident of

unconstitutional activity is not sufficient to impose liability
under Monell, unless proof of the incident includes proof that it
was caused by an existing, unconstitutional municipal policy,
12

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which

policy

can

be

attributed

Tuttle, 471 U.S. at 823–24.

to

a

municipal

policymaker.”

Here, there is no evidence in the

record from which the Court can infer any proof regarding a policy
attributable to a Village policymaker.
In response, Plaintiff argues that “there are numerous
cases where Hempstead police continue to use excessive force and
shoot civilians,” and that “juries have found that the Municipality
is

responsible

properly

for

the

supervise,

and

officials.”

pattern
the

and

practice,

failure

(Opp’n at 13-14.)

to

the

properly

failure
train

to

these

To the contrary, having reviewed

each of the cited cases, about which Plaintiff provides no detail,
the Court notes that not one resulted in a jury finding of Monell
liability as to the Village.
decisions,

the

Honorable

In fact, in one of the cited

Judge

Spatt

granted

the

defendants

summary judgement on the plaintiff’s Monell claim for reasons that
apply with equal force here:
In this case, the Plaintiff has offered no
evidence in his opposition papers to suggest
that any unconstitutional custom and/or policy
exists.
Rather, the Plaintiff seems to
contend that based on the alleged actions of
Holley and Officer Washington in this case, an
inference should be drawn that the Village
condoned such behavior by its police officers
by failing to adequately train them.
These
allegations are unsupported by any evidence in
the summary judgment record before the Court
beyond that evidence that concerns the
Plaintiff’s own case.

13

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Pittman v. Incorporated Village of Hempstead, 49 F. Supp. 3d 307,
319 (E.D.N.Y. 2014).
Accordingly, Defendants motion for summary judgment as
to Plaintiff’s Section 1983 claims is GRANTED, and those claims
are DISMISSED.
B.

New York State Law Claims
In addition to his Section 1983 claims, Plaintiff also

asserts the following claims under New York State law: (1) assault
and battery; (2) false imprisonment; (3) false arrest; (4) abuse
of process; (5) intentional infliction of emotional distress; and
(6) negligence.

The

Court

declines

to

exercise

supplemental

jurisdiction over these claims, which are hereby dismissed without
prejudice.
Federal courts “have supplemental jurisdiction over all
other claims that are so related to claims [over which the court
has] original jurisdiction that they form part of the same case or
controversy.”

28 U.S.C. § 1367(a).

Put otherwise, “[t]he state

and federal claims must derive from a common nucleus of operative
fact.”
(1966).

United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 725
In

deciding

whether

to

exercise

supplemental

jurisdiction, a district court should balance the “values of
judicial economy, convenience, fairness, and comity.”
Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988).

Carnegie–

“In general,

where the federal claims are dismissed before trial, the state
14

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claims should be dismissed as well.”

Delaney v. Bank of America

Corp., 766 F.3d 163, 170 (2d Cir. 2014).

Here, having dismissed

Plaintiff’s federal claims, the Court finds the factors of economy,
convenience, fairness, and comity do not support the exercise of
supplemental jurisdiction over Plaintiff’s New York State law
claims.
Accordingly, Plaintiff’s New York State law claims are
DISMISSED WITHOUT PREJUDICE. 4
CONCLUSION
For the stated reasons, Defendants’ motion for summary
judgment

is

GRANTED,

Plaintiff’s

Section

1983

claims

are

DISMISSED, and Plaintiff’s New York State law claims are DISMISSED
WITHOUT PREJUDICE.

The Clerk of the Court is directed to enter

judgment accordingly and mark this case CLOSED.
SO ORDERED.

/s/ JOANNA SEYBERT__________
Joanna Seybert, U.S.D.J.
Dated: January 28 , 2022
Central Islip, New York
Plaintiff also maintains claims against the Village of Hempstead
Police Department. However, it is well established that Plaintiff
cannot maintain claims against the Village of Hempstead Police
Department because it is an administrative arm that does not have
a legal identity separate and distinct from the Village. Pooler
v. Hempstead Police Dep’t, 897 F. Supp. 2d 12, 21 (E.D.N.Y. 2012).
Accordingly, Plaintiff’s claims against the Village Police
Department are DISMISSED.
4

15