Lluberes et al v. City of Troy et al

Filing 76

MEMORANDUM-DECISION and ORDER granting in part and denying in part 60 Motion for Summary Judgment; denying 62 Motion for Summary Judgment. ORDERED that plaintiffs' 62 motion for summary judgment is DENIED in its entirety. It is further ORDERED that defendants' 60 motion for summary judgment is GRANTED in part and DENIED in part. ORDERED that all claims against Anderson, Castle, Dean, Hoffman, Pirro, Negron, Evangelista, Salvatore, Sarris, Tutunjian, Troy PD, John and Jane Doe defendants, and individual defendants in their official capacities be dismissed from this action. ORDERED that Gillette's trial will proceed as scheduled on 4/28/2014 at 9:30 a.m. Upon the conclusion of that trial, the Court will set a dat e for Llubere's trial. Signed by Magistrate Judge Christian F. Hummel on 3/21/2014. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O) (dpk)

Staley v. Mika, Not Reported in F.Supp.2d (2010)

2010 WL 3907824
Only the Westlaw citation is currently available.
United States District Court,
N.D. New York.
Angela STALEY, as Administrator of the
Estate of Dennis Ferguson, Deceased, Plaintiff,
v.
Jan MIKA, sued individually and in his capacity
as a City of Albany Police Officer; “John
Doe”, sued Individually and in his capacity
as a Captain of the City of Albany Police
Department; and City of Albany, Defendants.
No. 1:08–CV–0305 (GTS/
RFT). | Sept. 29, 2010.
Attorneys and Law Firms
Harding & Moore, Esqs., James P. Harding, Esq., of Counsel,
Kew Gardens, NY, for Plaintiff.
Hon. John J. Reilly, Corporation Counsel for the City
of Albany, Andrew H. Wood, Esq., Assistant Corporation
Counsel, of Counsel, Albany, NY, for Defendants.
Opinion
DECISION and ORDER
Hon. GLENN T. SUDDABY, District Judge.
*1 Currently before the Court in this civil rights action filed
by Angela Staley, as Administrator of the Estate of Dennis
Ferguson, deceased (“Plaintiff”), is a motion for summary
judgment filed by Jan Mika, John Doe, and the City of Albany
(“Defendants”). (Dkt. No. 29, Attach.2.) For the reasons set
forth below, Defendants' motion is granted in part and denied
in part.

I. RELEVANT BACKGROUND
A. Plaintiff's Claims
Generally, liberally construed, Plaintiff's Amended
Complaint alleges that, on January 11, 2007, in Albany, New
York, Dennis Ferguson's civil rights were violated when he
was stopped and taken into physical custody by Defendant
Mika, an Albany Police Officer. (See generally Dkt. No.

17 [Plf.'s Am. Compl.].) More specifically, Plaintiff alleges
that Ferguson was wrongfully arrested by Defendant Mika
and that, during his arrest, he was subject to excessive force
by Defendant Mika, who caused him to suffer physical,
psychological and emotional injuries. (Id.) Based on these
factual allegations, Plaintiff's Amended Complaint asserts the
following claims, pursuant to 42 U.S.C. § 1983:(1) a claim
of excessive force against Defendant Mika; (2) a claim of
false arrest against Defendant Mika; (3) a claim of false
imprisonment against Defendant Mika; 1 and (4) a claim
of municipal liability against the City of Albany. 2 (Id.)
Familiarity with the remaining factual allegations supporting
these claims in Plaintiff's Amended Complaint is assumed
in this Decision and Order, which is intended primarily for
review by the parties. (Id.)

B. Undisputed Material Facts
In her opposition to Defendants' motion for summary
judgment, Plaintiff failed to submit a Statement of Material
Facts in accordance with Local Rule 7.1 of the Local Rules of
Practice for this Court (which requires, inter alia, numbered
paragraphs detailing the material facts as to which it is
contended that there exists a genuine issue, with “specific
citation[s] to the record where the factual issue arises”). (Dkt.
No. 36.) Instead, Plaintiff submitted a Rule 7.1 Statement
that (1) fails to admit or deny any of Defendants' factual
assertions, and (2) makes a stream of conclusory statements,
unsupported by any record citations. Ordinarily, all material
facts set forth in a movant's Rule 7.1 Statement are deemed
admitted unless specifically controverted by the opposing
party. See N.D.N.Y. L.R. 7.1(a)(3); Prive v. Johnson, 04–
CV–1024, 2010 WL 3338810, at *2 (N.D.N.Y. Aug. 23,
2010) (Suddaby, J.) [collecting cases]. However, the Court
need not, and will not, turn a blind eye to any fact that is
clearly in dispute. Burgess v. County of Rensselaer, 03–CV–
0652, 2006 WL 3729750, at *1 (N.D.N.Y. Dec. 18, 2006)
(McCurn, J.). As a result, only the properly supported facts
contained in Defendant's Local Rule 7.1 Statement, which are
not clearly in dispute, shall be accepted as true for purposes
of the pending motion. With these points of law in mind, the
following is a general summary of material facts. (Dkt. No.
29, Attach. 1 [Defs.' Rule 7.1 Statement] .)
*2 On January 11, 2007, between 4:30 p.m. and 5:30
p.m., 3 Defendant Mika was traveling by himself in a marked
Albany Police Department vehicle, wearing an Albany Police
Department uniform, when he saw Ferguson interact with
the driver of a car in front of 1 Lincoln Square in the City

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Staley v. Mika, Not Reported in F.Supp.2d (2010)

of Albany. 4 After the car pulled away, Defendant Mika
called out to Ferguson, 5 and Ferguson stopped to speak with
Defendant Mika. After a verbal exchange between Defendant
6

Mika and Ferguson, a scuffle took place. As a result of
the scuffle, Ferguson could not walk. Defendant Mika called
for backup and Ferguson was transported by ambulance
to Albany Medical Center. 7 Ferguson was arrested for
obstruction of governmental administration and criminal
possession of a controlled substance.
Familiarity with the remaining undisputed material facts of
this action, as well as the disputed material facts, as set forth
in the parties' Rule 7.1 Statement and Rule 7.1 Response, is
assumed in this Decision and Order, which (again) is intended
primarily for review by the parties. (Id.)

C. Defendants' Motion
Generally, in support of their motion for summary judgment,
Defendants argue as follows: (1) Plaintiff's claim of excessive
force should be dismissed because the amount of force used
by Defendant Mika was reasonable under the circumstances;
(2) Plaintiff's claim for false arrest should be dismissed
because the arrest was based on probable cause; (3) Defendant
Mika is protected from liability as a matter of law by the
doctrine of qualified immunity; and (4) Plaintiff's municipal
liability claim against the City of Albany should be dismissed
because she has failed to adduce any admissible evidence
from which a rational factfinder could conclude that Ferguson
was deprived of his constitutional rights as a result of a custom
or policy implemented by Defendant City of Albany. (See
generally Dkt. No. 29, Attach. 2 [Defs.' Memo. of Law].)
In her response to Defendants' motion for summary judgment,
Plaintiff argues as follows: (1) she has adduced admissible
record evidence from which a rational factfinder could
conclude that Ferguson was subjected to excessive force; (2)
Defendant Mika's stop, search, and seizure/arrest of Ferguson
was without reasonable suspicion or probable cause; (3)
Defendant Mika is not entitled to qualified immunity because
his actions in the stop, search, and seizure/arrest of Ferguson
were not objectively reasonable; and (4) because Defendant
Mika was acting within the scope of his employment as
a police officer with the City of Albany during the time
in question, the City of Albany is liable under a theory
of respondeat superior. (See generally Dkt. No. 38 [Plf.'s
Response Memo. of Law].)

II. RELEVANT LEGAL STANDARDS
A. Legal Standard Governing Motions for Summary
Judgment
Under Fed.R.Civ.P. 56, summary judgment is warranted if
“the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law.”
Fed.R.Civ.P. 56(c). In determining whether a genuine issue
of material fact exists, the Court must resolve all ambiguities
and draw all reasonable inferences against the moving party.
In addition, “[the moving party] bears the initial responsibility
of informing the district court of the basis for its motion,
and identifying those portions of the ... [record] which it
believes demonstrate[s] the absence of any genuine issue of
material fact.” Celotex v. Catrett, 477 U .S. 317, 323–24
(1986). However, when the moving party has met this initial
responsibility, the nonmoving party must come forward with
“specific facts showing a genuine issue [of material fact] for
trial.” Fed.R.Civ.P. 56(e)(2).
*3 As for the materiality requirement, a dispute of fact is
“material” if it “might affect the outcome of the suit under
the governing law.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). “Factual disputes that are irrelevant or
unnecessary will not be counted.” Anderson, 477 U.S. at 248
[citation omitted].
As for the genuineness requirement, a dispute of fact is
“genuine” if “the [record] evidence is such that a reasonable
jury could return a verdict for the novmoving party.”
Id. As a result, “[c]onclusory allegations, conjecture and
speculation ... are insufficient to create a genuine issue of
fact.” Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir.1998)
[citation omitted; emphasis added]; see also Fed.R.Civ.P.
56(e)(2). 8 Similarly, inadmissible hearsay is insufficient
to create a genuine issue of fact, “absent a showing that
admissible evidence will be available at trial.” Burlington
Coat Factory Warehouse Corp. v. Esprit De Corp., 769
F.2d 919, 924 (2d Cir.1985) [citations omitted]. Moreover,
“an affidavit ... that, by omission or addition, contradicts
the affiant's previous deposition testimony” is insufficient to
create a genuine issue of fact. Hayes v. New York City Dept.
of Corr., 84 F.3d 614, 619 (2d Cir.1996) [citations omitted].
Finally, as this Court has previously observed, “It is well
established that issues of credibility are almost never to be
resolved by a court on a motion for summary judgment.”

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Staley v. Mika, Not Reported in F.Supp.2d (2010)

Cruz v. Church, 05–CV–1067, 2008 WL 4891165, at *4
& n. 6 (N.D.N.Y. Nov. 10, 2008) (Suddaby, J.) [emphasis
in original; collecting cases]. However, “there is a narrow
exception to this well-established rule.” Cruz, 2008 WL
4891165, at *4 [citation omitted]. In Jeffreys v. City of
New York, 426 F.3d 549 (2d Cir.2005), the Second Circuit
explained that this narrow exception is for testimony by a
non-movant that possesses the following two characteristics:
(1) it constitutes almost the exclusive basis for a disputed
issue of fact in the case (or, expressed differently, it is largely
unsubstantiated by any other direct evidence); and (2) it is
so lacking in credibility (because the testimony is incomplete
and/or replete with inconsistencies and improbabilities) that,
even after drawing all inferences in the light most favorable
to the non-movant, no reasonable jury could find for the nonmovant. Cruz, 2008 WL 4891165, at *4 & n. 7 [collecting
cases]. “Again, it must be remembered that the circumstances
giving rise to this exception are rare.' “ Id. & n. 7 [collecting
cases].

v. Connor, 490 U.S. 386, 397 [1989] ). Although “[n]ot
every push or shove, even if it may later seem unnecessary
in the peace of a judge's chambers, violates the Fourth
Amendment,” Graham, 490 U.S. at 396 (internal quotation
marks and citation omitted), the Second Circuit has permitted
a plaintiff's claim to survive summary judgment where record
evidence was adduced reasonably establishing that, during
the course of an arrest, “a police officer twisted her arm,
‘yanked’ her, and threw her up against a car, causing only
bruising.” Maxwell, 380 F.3d at 108 (citing Robison v. Via,
821 F.2d 913, 924–25 [2d Cir.1987] ).

B. Legal Standards Governing Plaintiff's Claims
Because the parties to this action have demonstrated, in their
memoranda of law, an accurate understanding of the relevant
points of law contained in the legal standards governing
Plaintiff's claims in this action, the Court will not recite, in
their entirety, those legal standards in this Decision and Order,
which (again) is intended primarily for review by the parties.
(Dkt. No. 29, Attach. 2 [Defs.' Memo. of Law]; Dkt. No. 38
[Plf.'s Response Memo. of Law].)

Ferguson smiled, laughed and replied, “I did 22 days”; 9 (5)
Defendant Mika then said, “[P]ut your hands up. Let me check

III. ANALYSIS
A. Plaintiff's Claim of Excessive Force
*4 As stated above in Part I.C. of this Decision and Order,
Defendants seek the dismissal of Plaintiff's excessive force
claim because (1) she has failed to adduce admissible record
evidence from which a rational factfinder could conclude that
Ferguson was subjected to excessive force during his arrest,
and (2) Defendant Mika is protected from liability as a matter
of law by the doctrine of qualified immunity.
Based on the current record, the Court rejects Defendants'
first argument. A “[p]olice officer's application of force
is excessive, in violation of the Fourth Amendment, if
it is objectively unreasonable ‘in light of the facts and
circumstances confronting them, without regard to their
underlying intent or motivation.’ “ Maxwell v. City of New
York, 380 F.3d 106, 108 (2d Cir.2004) (quoting Graham

In his General Municipal Law § 50–h hearing (“50–h
hearing”), Ferguson testified as follows: (1) on January 11,
2007, he was dropped off in front of 1 Lincoln Square by his
friend so that he could go to a store called “Mike's” on nearby
Morton Avenue to get some items for his girlfriend and; (2)
after exiting his friend's vehicle, he heard a vehicle pull up
and someone say to him, “Slim”; (3) he turned around and
saw Defendant Mika, who exited his vehicle, came up onto
the sidewalk, and said, “How'd you get out so quick?”; (4)

you.”; (6) Ferguson put his hands up as far as he could; 10
(7) Defendant Mika searched Ferguson's person, his wallet,
his front pocket and his hood; (8) after searching Ferguson
and not finding anything, Defendant Mika told him to open
his mouth, which he did; (9) when Defendant Mika found
nothing in Ferguson's mouth, Defendant Mika grabbed the
raised hood of his sweatshirt and flipped him over; 11 (10)
Ferguson fell to the ground, landing on his left hip; (11)
Defendant Mika then hit Ferguson on the back of the head
with his right hand; (12) Ferguson said to Defendant Mika,
“[M]y leg is broken. We don't have to keep going through
this”; (13) Defendant Mika looked back, saw Ferguson's leg
at an awkward angle, and made a comment that indicated he
was frustrated; 12 (14) Defendant Mika then placed handcuffs
on Ferguson and called for back-up; (15) two police cars and
the fire department arrived; (16) Ferguson was placed on a
stretcher, and subsequently transported to Albany Medical
Center; and (17) he underwent surgery to correct a broken
femur. (Dkt.Nos.33, 34.)
*5 Based on this testimony, the Court concludes that
Plaintiff has adduced sufficient evidence from which a
rational factfinder could conclude that Defendant Mika used
excessive force when he arrested Ferguson. 13

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Staley v. Mika, Not Reported in F.Supp.2d (2010)

Furthermore, the Court rejects Defendants' second argument,
i.e., his argument that Defendant Mika is protected from
liability as a matter of law by the doctrine of qualified
immunity. “Under federal law, a police officer is entitled to
qualified immunity where (1) his conduct does not violate
clearly established statutory or constitutional rights of which
a reasonable person would have known, or (2) it was
objectively reasonable for him to believe that his actions were
lawful at the time of the challenged act.” Jenkins v. City of
New York, 478 F.3d 76, 87 (2d Cir.2007) [internal quotations
and other citations omitted].
Here, there is no rational dispute as to whether the right to be
free from the use of excessive force was “clearly established”
at the time Defendant Mika arrested Ferguson. See, e.g.,
Mickle v. Morin, 297 F.3d 114, 122 (2d Cir.2002) (noting
that it is “well established that the use of excessive force
in the course of an arrest is constitutionally prohibited”).
Therefore, Plaintiff's Section 1983 excessive force claim
turns on whether it was objectively reasonable for Defendant
Mika to use the amount of force that he used.
With regard to that issue, the Second Circuit has made
clear that, “[w]here the circumstances are in dispute, and
contrasting accounts present factual issues as to the degree of
force actually employed and its reasonableness, a defendant
is not entitled to judgment as a matter of law on a
defense of qualified immunity.” Mickle, 297 F.3d at 122
(internal citations and quotation marks omitted). Based on the
conflict between the account of events presented by Plaintiff
(described above) and the account of events presented by
Defendant Mika (described below, in Part I.B. of this
Decision and Order), the Court concludes it is simply not
possible to determine whether Defendant Mika reasonably
believed that his force was not excessive. Thomas v. Roach,
165 F.3d 137, 144 (2d Cir.1999). 14
For these reasons, Plaintiff's excessive force claim survives
Defendants' motion for summary judgment.

B. Plaintiff's Claims of False Arrest and False
Imprisonment
As stated above in Part I.C. of this Decision and Order,
Defendants seek the dismissal of Plaintiff's false arrest and
false imprisonment claims because (1) Plaintiff has failed
to adduce admissible record evidence from which a rational
factfinder could conclude that Ferguson was falsely arrested
and falsely imprisoned, and (2) Defendant Mika is protected

from liability as a matter of law by the doctrine of qualified
immunity.
Based on the current record, the Court rejects Defendants'
first argument. “To establish a claim for false arrest or false
imprisonment under 42 U.S.C. § 1983, a plaintiff must show
that ‘the defendant intentionally confined him without his
consent and without justification.’ “ McMillan v. City of New
York, 03–CV–0626, 2009 WL 261478, at *7 (E.D.N.Y. Feb.
4, 2009) (quoting, inter alia, Escalera v. Lunn, 361 F.3d 737,
743 [2d Cir.2004] ). “The existence of probable cause to
arrest constitutes justification and ‘is a complete defense to an
action for false arrest,’ whether that action is brought under
state law or under § 1983.” Weyant v. Okst, 101 F.3d 845, 852
(2d Cir.1996) (internal citations omitted); see also Broughton
v. State, 37 N.Y.2d 451, 456–57 (N.Y.1975) (noting that a
plaintiff will prevail on a claim of false arrest under New York
law if he can show that the arrest was not privileged, i.e., not
based on probable cause). 15 “[P]robable cause to arrest exists
when the officers have 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.” Weyant, 101 F.3d at 852. In addition, “a claim for
false arrest turns only on whether probable cause existed to
arrest a defendant[;] ... it is not relevant whether probable
cause existed with respect to each individual charge, or,
indeed, any charge actually invoked by the arresting officer
at the time of arrest.” Jaegly v. Couch, 439 F.3d 149, 154
(2d Cir.2006). “Stated differently, when faced with a claim
for false arrest,” this Court must “focus on the validity of the
arrest and not on the validity of each charge.” Jaegly, 439
F.3d at 154.
*6 Here, Ferguson was arrested for obstructing
governmental administration and criminal possession of a
controlled substance, seventh degree. Under New York
Penal Law § 195.05, “A person is guilty of obstructing
governmental administration when he intentionally obstructs,
impairs or perverts the administration of law or other
governmental function or prevents or attempts to prevent a
public servant from performing an official function, by means
of intimidation, physical force or interference ....“ Under New
York Penal Law § 220.03, “A person is guilty of criminal
possession of a controlled substance in the seventh degree
when he knowingly and unlawfully possesses a controlled
substance.”

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Staley v. Mika, Not Reported in F.Supp.2d (2010)

For the sake of brevity, the Court will not repeat Ferguson's
account of events, as summarized above in Part I.A. of this
Decision and Order. The Court will note only that the account
of events offered by Ferguson is in stark contrast to the
account of events offered by Defendant Mika.
Specifically, in his deposition, Defendant Mika testified as
follows: (1) on January 11, 2007, while sitting in his patrol
vehicle, he observed a man standing in the street, and leaning
into the passenger window of a sedan that was blocking
traffic; (2) he observed the man and the driver of the vehicle
interact and shake hands inside the vehicle; (3) then he
observed the man pull his head out of the passenger side
window and straighten up, at which point he identified
the man as Ferguson; (4) after the vehicle drove away,
Defendant Mika stopped and exited his patrol vehicle in an
effort to speak to Ferguson; 16 (5) after seeing his patrol
vehicle, Ferguson began to walk in the opposite direction;
(6) Defendant Mika called out to Ferguson to come over
and talk to him; (7) however, Ferguson continued to walk
away; (8) moreover, while Ferguson was walking away, it
appeared to Defendant Mika that Ferguson had in his hand
some type of narcotic; 17 (9) again, Defendant Mika called
out for Ferguson to come over and talk to him; 18 (10)
however, Ferguson put his hand in his pocket and continued
to walk away; (11) Defendant Mika became concerned
that Ferguson may have had some type of weapon; (12)
when Ferguson finally stopped, Defendant Mika attempted
to engage Ferguson in a conversation; (13) Ferguson began
mumbling and was unable to speak to him; (14) Defendant
Mika called for back-up after it appeared to him that Ferguson
had contraband in his mouth; (15) because Ferguson could
not speak clearly, Defendant Mika tried to shine his flashlight
into Ferguson's mouth; (16) however, as Defendant Mika did
so, Ferguson pushed him away; (17) after being pushed by
Ferguson, Defendant Mika took hold of Ferguson's sweatshirt
and pulled him forward in an attempt to prevent him from
swallowing any contraband; (18) after Defendant Mika took
hold of Ferguson's sweatshirt, Ferguson fell to the ground;
(19) after Ferguson fell to the ground, Defendant Mika
perceived Ferguson to be in pain and called for EMS to come
to the scene; and (20) Defendant Mika then secured Ferguson
by placing handcuffs on him. (Dkt. No. 29, Attach. 1. [Defs.'
Rule 7.1 Statement] [citing Dkt. No. 29, Attach. 9].)
*7 Under the circumstances, it is impossible to determine
whether Defendant Mika had probable cause to search and/
or arrest Ferguson because several material facts are still
in dispute. For example, among the conflicting portions of

testimony are the following: (1) Defendant Mika testified that
Ferguson stood in the street, leaning into the passenger side
window of a car, while Ferguson testified that as soon as he
exited the vehicle Defendant Mika pulled up; (2) Defendant
Mika testified that Ferguson walked away from him when
he repeatedly called out to Ferguson to stop, while Ferguson
testified that he complied with Defendant Mika's first request
to speak with him; (3) Defendant Mika testified that Ferguson
put his hands in his pockets before approaching Defendant
Mika, while Ferguson testified that he held his hands up in the
air; (4) Defendant Mika testified that he attempted to shine
a flashlight in Ferguson's mouth, while Ferguson testified
that Defendant Mika never attempted to shine a flashlight
in his mouth; (5) Defendant Mika testified that he grabbed
Ferguson's sweatshirt because he had been pushed away
by Ferguson, and that Ferguson fell to the ground because
their legs became entangled, while Ferguson testified that
Defendant Mika grabbed his sweatshirt because Defendant
Mika found nothing in his mouth, and that he fell to the
ground because Defendant Mika flipped him over; and (6)
Defendant Mika testified that Ferguson had crack cocaine in
his mouth, which he swallowed, while Ferguson testified that
he had gum in his mouth.
As a result, this Court cannot find, as a matter of
law, that Defendant Mika had probable cause to arrest
Ferguson for obstructing governmental administration and/or
criminal possession of a controlled substance. See Potenza
v. Gonzales, 07–CV–0225, 2010 WL 2680236, at *2–6
(N.D.N.Y. July 1, 2010) (Mordue, C.J.) (holding the court
could not conclude as a matter of law that an officer
had probable cause to arrest an individual where there
were numerous disputed facts); Searless v. Pompillo, 652
F.Supp.2d 432, 439 (S.D.N.Y.2009) (same); Esmont v. City
of New York, 371 F.Supp.2d 202, 210 (E.D.N.Y.2005)
(“Probable cause to arrest for a violation of § 195.05
may be predicated on, amongst other things, obstructing a
lawful search. Resisting an illegal search does not, however,
constitute a violation of the statute.”). 19
Furthermore, based on the current record, the Court
rejects Defendants' second argument i.e., his argument that
Defendant Mika is protected from liability as a matter of law
by the doctrine of qualified immunity. As explained above
in Part I.A. of this Decision and Order, a police officer is
entitled to qualified immunity where (1) his conduct does not
violate clearly established statutory or constitutional rights
of which a reasonable person would have known, or (2) it
was objectively reasonable for him to believe that his actions

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were lawful at the time of the challenged act. Here, there is
no rational dispute as to whether the right to be free from
arrest without probable cause was “clearly established” at
the time of Ferguson's arrest. Therefore, Plaintiff's Section
1983 false arrest claim turns on whether the probable cause
determination of Defendant Mika was objectively reasonable.
*8 “An officer's determination is objectively reasonable if
there was ‘arguable’ probable cause at the time of arrest—
that is, if ‘officers of reasonable competence could disagree
on whether the probable cause test was met.’ “ Jenkins, 478
F.3d at 87 [internal quotations and other citations omitted].
“[U]nder both New York and federal law, summary judgment
dismissing a plaintiff's ... claim is [not] appropriate if ...
on the undisputed facts the officer would be unreasonable
in concluding probable cause existed, or if the officer's
reasonableness depends on material issues of fact ....“ Jenkins,
478 F.3d at 88; see also Zellner v. Summerlin, 494 F.3d
344, 377 (2d Cir.2007) (if there is no probable cause to
believe that the plaintiff broke the law, a subsequent arrest is
unreasonable).
As observed by the Southern District of New York, “courts
have upheld the constitutionality of searches of a suspect's
mouth when the suspect has been properly detained under
the Fourth Amendment.” Singleton v. City of Newburgh,
1 F.Supp.2d 306, 313 (S.D.N.Y.1998) (noting that “[t]he
pertinent inquiry is whether the intrusion was reasonable
under the circumstances”) (collecting cases). As a result,
Defendant Mika is entitled to qualified immunity as a matter
of law only if it was objectively reasonable for him to
conclude that he had probable cause to search Ferguson's
mouth under the circumstances.
Here, despite the fact that Defendant Mika testified that
various indicia of criminal activity existed before he searched
Plaintiff's mouth, it is also undisputed that (1) Defendant
Mika did not know the identity of the driver of the
vehicle with whom Ferguson was interacting, (2) Defendant
Mika did not see money exchanged between Ferguson
and the driver of the vehicle, and (3) Defendant Mika
was not aware of Ferguson's drug-related criminal history
when he stopped Ferguson. 20 In addition, the following
facts remain in dispute: (1) whether Ferguson continued
to walk away from Defendant Mika after Defendant Mika
repeatedly called for him, or whether Ferguson approached
Defendant Mika immediately after being summoned; (2)
whether Defendant Ferguson searched Ferguson's person
before asking Ferguson to open his mouth; 21 (3) whether

Ferguson allowed Defendant Mika to search his mouth; 22
(4) whether Ferguson pushed Defendant Mika before being
arrested; and (5) whether Defendant Mika saw crack cocaine
or merely gum in Ferguson's mouth. Based on this record
evidence, even assuming that Defendant Mika had the right
to stop Ferguson and inquire about Ferguson's exchange with
the driver of a vehicle, the Court is unable to conclude, as a
matter of law, that it was objectively reasonable for Defendant
Mika to attempt to search Ferguson's mouth.
For these reasons, Plaintiff's false arrest and false
imprisonment claims survive Defendants' motion for
summary judgment.

C. Plaintiff's Municipal Liability Claim
*9 As stated above in Part I.C. of this Decision and Order,
Defendants seek the dismissal of Plaintiff's municipal liability
claim because Plaintiff has failed to adduce any admissible
evidence from which a rational factfinder could conclude that
Ferguson was deprived of his constitutional rights as a result
of a custom or policy implemented by Defendant City of
Albany.
Based on the current record, the Court accepts Defendants'
argument. Plaintiff adduces no record evidence that
Defendant Mika's actions were carried out in execution of
a governmental policy or custom. 23 Instead, in support
of her municipal liability claim, Plaintiff relies solely on
the theory of respondeat superior. 24 However, municipal
liability “cannot result from a theory of respondeat superior;
rather, it can be imposed only if the acts in question were
carried out in ‘execution of a government's policy or custom.’
“ Thomas v. Roach, 165 F.3d 137, 145 (2d Cir.1999) (quoting
Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690 [1978] ).
For these reasons, Plaintiff's claim against the City of Albany
is dismissed.

D. Plaintiff's False Arrest Claim Against Defendant
John Doe
On March 14, 2008, Ferguson filed his original Complaint in
this action, in which he named the following as Defendants:
Jan Mika, individually and in his capacity as a City of Albany
Police Officer; “John Doe,” individually and in his capacity
as a Captain of the City of Albany Police Department; and
the City of Albany. 25 (Dkt. No. 1.) On March 31, 2008,
Ferguson's attorney filed notice with the Court regarding the

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death of his client. (Dkt. No. 4.) On November 5, 2008, the
Court received notice that Angela Staley would be acting as
the administrator of the estate of Ferguson. (Dkt. No. 16.) On
December 17, 2008, Plaintiff filed her Amended Complaint,
which asserts claims against the same three Defendants. (Dkt.
No. 17.) Nonetheless, to date, Plaintiff has made no effort to
identify Defendant “John Doe.” Moreover, the deadline to file
a Second Amended Complaint has long since passed, having
expired on October 23, 2009. (Dkt. No. 22 [Uniform Pretrial
Scheduling Order].)
Rule 41 of the Federal Rules of Civil Procedure permits the
Court to sua sponte dismiss an action for failure to prosecute.
Fed.R.Civ.P. 41(b). 26 The Second Circuit has held that it
is within the trial judge's sound discretion to dismiss for
want of prosecution. 27 Furthermore, the Second Circuit
has identified five factors that it considers when reviewing
a district court's order to dismiss an action for failure to
prosecute under Fed.R.Civ.P. 41(b):

[1] the duration of the plaintiff's failures, [2] whether
plaintiff had received notice that further delays would
result in dismissal, [3] whether the defendant is likely to be
prejudiced by further delay, [4] whether the district judge
has taken care to strike the balance between alleviating
court calendar congestion and protecting a party's right to
due process and a fair chance to be heard and [5] whether
the judge has adequately assessed the efficacy of lesser

Court has considered all less-drastic sanctions and finds them
to be inadequate or inappropriate under the circumstances.
The Court notes that judges of this District have repeatedly
reached the same conclusion in analogous cases. See, e.g.,
Brown v. Middaugh, 41 F.Supp.2d 172, 195 (N.D.N.Y.1999)
(Munson, J.) (dismissing plaintiff's claim against John Doe
defendants for failure to prosecute where plaintiff's case was
pending for over two years, plaintiff had not identified the
“John Doe” defendants, and the time period to amend his
complaint had passed) (citing N.D.N.Y. L.R. 41.2 [a] );
Clayton v. City of Kingston, 44 F.Supp.2d 177, 182–83
(N.D.N.Y.1999) (McAvoy, C.J.) (dismissing plaintiff's claim
against “John Doe” defendants for failure to prosecute where
plaintiff's case was pending for over two years, plaintiff had
not identified the “John Doe” defendants, and the time period
to amend his complaint had passed).
In the alternative, the Court finds that Plaintiff's claim against
the John Doe Defendant should be dismissed on the ground
that Plaintiff has violated Fed.R.Civ.P. 4(m), because she has
not offered “good cause” for her failure to enable the Marshals
Service to effect service on that Defendant. 34 The Court
notes that, under Fed.R.Civ.P. 4(m), the Court need not issue
such an order only upon motion of defense counsel but may
do so sua sponte. See Fed. R. Civ. 4(m) (“[T]he Court, upon
motion or on its own initiative after notice to the plaintiff,
shall dismiss the action without prejudice as to that defendant
or direct that service be effected within a specified time.”).

sanctions. 28
*10 As a general rule, no single one of these five factors is

For these reasons, the Court sua sponte dismisses Plaintiff's

dispositive. 29

claims against Defendant John Doe. 35

Here, the Court finds that these five factors weigh in favor
of dismissal. Specifically, the Court finds that the duration
of Plaintiff's failure is some eleven months, i.e., from the
expiration of the motion-to-amend deadline on October 23,

ACCORDINGLY, it is

2009. 30 The Court finds that Plaintiff—who is represented
by counsel—has received adequate notice that this failure to
name and/or serve the John Doe Defendant would result in
dismissal. 31 The Court finds that the John Doe Defendant,
who has not ever been served or afforded the opportunity to
conduct discovery in this matter, is likely to be prejudiced by
a further delay. 32 The Court finds that the need to alleviate
congestion on the Court's docket outweighs Plaintiff's right to
receive a further chance to be heard with regard to her claim
against the John Doe Defendant in this matter. 33 Finally, the

ORDERED that Defendants' motion for summary judgment
(Dkt. No. 29) is GRANTED with regard to the following
claims:
1. Plaintiff's municipal liability claim against the City of
Albany; and
2. Plaintiff's false arrest claim against John Doe; and it is
further
*11 ORDERED that Defendants' motion for summary
judgment is DENIED with regard to the following claims:
1. Plaintiff's excessive force claim against Defendant Mika;
and

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2. Plaintiff's false arrest and false imprisonment claims
against Defendant Mika; and it is further
ORDERED that the City of Albany and John Doe are
DISMISSED as Defendants in this action; and it is further
ORDERED that counsel are directed to appear on
NOVEMBER 4, 2010 at 2:00 p.m. in chambers for a pretrial

conference, at which counsel are directed to appear with
settlement authority, and in the event that the case does not
settle, trial will be scheduled at that time. Plaintiff is further
directed to forward a written settlement demand to defendants
no later than October 15, 2010, and the parties are directed
to engage in meaningful settlement negotiations prior to the
11/4/10 conference.

Footnotes

1
2
3
4

5
6

7
8
9
10
11
12
13

The Court construes Plaintiff's claim of “unlawful search and seizure of his person” to be a claim for false imprisonment.
As discussed in more detail below in Part III.C. of this Decision and Order, the Court notes that municipal liability cannot result
from a theory of respondeat superior.
(Compare Dkt. No. 33, Attach. 3, at 13 [Ferguson's 50–h hearing] with Dkt. No. 29, Attach. 1, at ¶ 7.)
In his 50–h hearing, Ferguson testified that he was getting out of a car to go to Mike's on Morton. Ferguson further testified that the
driver of the car, Adam Asheber, let him out of the car and then drove away to park. In his deposition, Defendant Mika testified that
1 Lincoln Square is known to be “narcotics prone” and he saw Ferguson standing in the street, leaning into the passenger window
of a car, blocking traffic. Defendant Mika further testified that, after the driver and Ferguson shook hands and interacted, Ferguson
removed his upper body from the passenger side window, and the vehicle drove away. (Compare Dkt. No. 33, Attach. 3, at 13
[Ferguson's 50–h hearing] and Dkt. No. 33, Attach. 4, at 1 [Ferguson's 50–h hearing] with Dkt. No. 29, Attach. 1, at ¶ 6–10.)
In his 50–h hearing, Ferguson testified that Defendant Mika called out to him, “Slim,” and stated, “I want to check you.” In his
deposition, Defendant Mika testified that he called to Ferguson to come over and talk to him. (Compare Dkt. No. 33, Attach. 4, at
1–3 [Ferguson's 50–h hearing] with Dkt. No. 29, Attach. 1, at ¶ 13.)
In his 50–h hearing, Ferguson testified that Defendant Mika “checked” him and found nothing. Ferguson testified that Defendant
Mika then told him to open his mouth, which he did, and that Defendant Mika, despite finding nothing in his mouth, then grabbed his
hood and flipped him over, causing him to land on his left side. In his deposition, Defendant Mika testified that he believed Ferguson
was involved in a drug transaction when he called out to Ferguson, and that Ferguson placed his hands in his pocket and walked away
from Defendant Mika when Defendant Mika called him, causing concern that Ferguson may have been in possession of some type
of weapon. Defendant Mika further testified that he attempted to engage Ferguson in a conversation, but Ferguson was mumbling
and unable to speak, which led him to believe Ferguson had contraband in his mouth. Defendant Mika testified that, as a result of
this belief, he pointed his flashlight toward Ferguson's mouth, but Ferguson pushed him away. Defendant Mika testified that he then
grabbed hold of Ferguson's sweatshirt and pulled Ferguson forward in an attempt to prevent him from swallowing any contraband
that may have been in his mouth. Defendant Mika further testified that, after taking hold of Ferguson's sweatshirt, Ferguson fell to
the ground. (Compare Dkt. No. 33, Attach. 4, at 3, 9 [Ferguson's 50–h hearing] with Dkt. No. 29, Attach. 1, at ¶ 16–18, 20–27.)
At Albany Medical Center, it was determined that Ferguson suffered from a fracture to his left femur.
As the Supreme Court has famously explained, “[the nonmoving party] must do more than simply show that there is some
metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585–86 (1986)
[citations omitted].
In October 2006, Ferguson was arrested by Defendant Mika and a State Trooper for trespassing at 3 Lincoln Square. (Dkt. No.
33, Attach. 4, at 13–14 [Ferguson's 50–h hearing].) Ferguson plead guilty and was sentenced to up to 30 days. (Id.) After 22 days,
Ferguson was released. (Id.)
In his 50–h hearing, Ferguson testified that he suffered from chronic myelogenous leukemia and had no muscle in his upper body.
(Dkt. No. 33, Attach. 3, at 10; Dkt. No. 34, Attach. 4, at 17 [Ferguson's 50–h hearing].)
Ferguson testified that he had his hood on, and that Defendant Mika grabbed the front of the hood with his right hand. (Dkt. No.
33, Attach. 4, at 9–10 [Ferguson's 50–h hearing].)
In his 50–h hearing, Ferguson testified that Defendant Mika stated, “oh shit” when he looked back and saw Ferguson's leg. (Dkt.
No. 33, Attach. 4, at 12 [Ferguson's 50–h hearing].)
The Court notes that, because Ferguson's testimony is not incomplete or internally contradictory, grounds do not exist to disregard it
as incredible (which is an extreme remedy reserved for narrow circumstances). See Jeffreys v. City of New York, 426 F.3d 549, 554–
55 (2d Cir.2005) (setting forth applicable standard for when to disregard testimony on motion for summary judgment).

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14
15
16
17
18
19

20
21
22
23
24
25
26

27
28

29
30

31
32
33

See also Robison, 821 F.2d at 924 (“[T]he parties have provided conflicting accounts as to [who] initiated the use of force, how much
force was used by each, and whether [the arrestee] was reaching toward [a weapon]. Resolution of credibility conflicts and the choice
between these conflicting versions are matters for the jury and [should not be] decided by the district court on summary judgment.”).
“A section 1983 claim for false arrest is substantially the same as a claim for false arrest under New York law.”Jenkins, 478 F.3d
at 84 (citing Weyant, 101 F.3d at 852).
Defendant Mika testified that he recognized the individual standing in the street as Ferguson based on his involvement in Ferguson's
arrest for criminal trespass on October 24, 2006. (Dkt. No. 29, Attach. 9, at 22, 33.)
Defendant Mika testified that, although he was not aware of whether Plaintiff had any prior drug and/or felony convictions, Plaintiff
was in an area considered to be “narcotics-prone.” (Dkt. No. 29, Attach. 9, at 28, 37.)
Defendant Mika testified that he wanted to talk to Ferguson because he believed that Ferguson was involved in a drug transaction.
(Dkt. No. 29, Attach. 9, at 28–29.)
The Court recognizes that “[t]he lack of probable cause to stop and search does not vitiate the probable cause to arrest, because
(among other reasons) the fruit of the poisonous tree doctrine is not available to assist a § 1983 claimant.” Townes v.. City of New
York, 176 F.3d 138, 149 (2d Cir.1999). Thus, even if a search is unlawful, if, during that search, an officer acquires probable cause
to believe that a crime has been or is being committed, a § 1983 claimant's false arrest claim must fail. Townes, 176 F.3d at 149;
see also Davenport v. County of Suffolk, 99–CV–3088, 2007 WL 608125, at *5 (E.D.N.Y. Feb 23, 2007). However, in this case,
Defendant Mika did not recover drugs from Ferguson's person prior to arresting him, and what Ferguson had in his mouth remains
in dispute. Thus, it cannot be said, as a matter of law, that Defendant Mika had probable cause to arrest Ferguson after checking (or
attempting to check) the inside of his mouth.
(Dkt. No. 29, Attach. 9, at 37.)
(Compare Dkt. No. 29, Attach. 9, at 50–51 with Dkt. No. 29, Attach. 11, at 16–18, 24–26.)
(Compare Dkt. No. 29, Attach. 9, at 52–54 with Dkt. No. 29, Attach. 11, at 17.)
The closest the Plaintiff comes is her contention that the City of Albany has an informal policy of “checking” people. (Dkt. No.
29, Attach.13, ¶ 23.)
In fact, Plaintiff has acknowledges in her memorandum of law in opposition to Defendants' motion for summary judgment that
“[t]here were no facts developed which would indicate that the City of Albany has a custom or policy, formal or informal of violating
the civil rights of its citizens which would impose Monell-type liability.” (Dkt. No. 38.)
The Court notes that, on April 2, 2008, Ferguson properly served Defendant “John Doe” at his actual place of business. (Dkt. No. 7.)
Fed.R.Civ.P. 41(b) (providing, in pertinent part, that “[i]f the plaintiff fails to prosecute or to comply with these rules or a court
order, a defendant may move to dismiss the action or any claim against it”); Saylor v. Bastedo, 623 F.2d 230, 238–239 (2d Cir.1980)
(recognizing that, under the language of Fed.R.Civ.P. 41[b], a district court retains the inherent power to dismiss a plaintiff's
complaint, sua sponte, for failure to prosecute) [citations omitted]; accord, Link v. Wabash R.R. Co., 370 U.S. 626, 630 (1962),
Theilmann v. Rutland Hospital, Inc., 455 F.2d 853, 855 (2d Cir.1972); see also N.D.N.Y. L.R. 41.2(a) (“Whenever it appears that the
plaintiff has failed to prosecute an action or proceeding diligently, the assigned judge shall order it dismissed.”) [emphasis added].
See Merker v. Rice, 649 F.2d 171, 173 (2d Cir.1981).
See Shannon v. GE Co., 186 F.3d 186, 193 (2d Cir.1999) (affirming Fed.R.Civ.P. 41[b] dismissal of plaintiff's claims by U.S. District
Court for Northern District of New York based on plaintiff's failure to prosecute the action) [citation and internal quotation marks
omitted]; see also Drake v. Norden Sys., 375 F.3d 248, 254 (2d Cir.2004) (articulating same standard in slightly different form);
accord, Ruzsa v. Rubenstein & Sendy Attys at Law, No. 07–0089, 2008 WL 706693, at *1 (2d Cir. March 17, 2008).
See Nita v. Conn. Dep't of Env. Protection, 16 F.3d 482 (2d Cir.1994).
See Ruzsa v. Rubenstein & Sendy Attys at Law, No. 07–0089, 2008 WL 706693, at *1 (2d Cir. March 17, 2008) (dismissing action,
in part because of plaintiff's seven-month delay during prosecution of action); N.D.N.Y. L.R. 41.2(a) (“In the absence of any order
by the assigned judge or magistrate judge setting any date for any pre-trial proceeding or for trial, the Plaintiff's failure to take action
for four (4) months shall be presumptive evidence of lack of prosecution.”).
This notice has come from the following: (1) Fed.R.Civ.P. 41(b); (2) Local Rule 41.2(a) of the Local Rules of Practice for this Court;
(3) Fed.R.Civ.P. 4(m); (4) Local Rule 4.1(a),(b) of the Local Rules of Practice for this Court; and (5) Local Rule 5.1(f) of the Local
Rules of Practice for this Court.
See, e.g., Geordiadis v. First Boston Corp., 167 F.R.D. 24, 25 (S.D.N.Y.1996) (“The passage of time always threatens difficulty as
memories fade. Given the age of this case, that problem probably is severe already. The additional delay that plaintiff has caused
here can only make matters worse.”).
The Court notes that it is cases like this one that delay the resolution of other cases, and that increase the Second Circuit's average
time for the disposition of civil rights.

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34

35

See Waldo v. Goord, 97–CV–1385, 1998 WL 713809, at *5 (N.D . N.Y. Oct. 1, 1998) (Kahn, J.) (dismissing a claim under Fed.
R. Civ. 4[m] where pro se plaintiff failed to serve John Doe defendants during the year that elapsed between filing of complaint
and issuance of order of dismissal by court); Thomas v. Keane, 99–CV–4302, 2001 WL 410095, at *1, 5 (S.D.N.Y. April 23, 2001)
(dismissing claim under Fed. R. Civ. 4[m] where pro se plaintiff failed to serve John Doe defendants during the year that elapsed
between filing of complaint and issuance of order of dismissal by court).
The Court notes that Plaintiff's claims against Defendant John Doe are dismissed for the alternative reason that Plaintiff has failed
to offer any evidence that Defendant John Doe was involved in Plaintiff's arrest.

End of Document

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