Marquez v. The Town of Dewitt et al

Filing 25

MEMORANDUM-DECISION AND ORDER: The Court hereby ORDERS that Defendants' # 18 Motion for Summary Judgment is GRANTED in part and DENIED in part as noted herein. The Court further ORDERS that counsel shall participate in a telephone conference on April 22, 2015, at 9:30 a.m. to schedule a trial in this matter. The Court will provide counsel with the dial-in instructions prior to the conference. Signed by Senior Judge Frederick J. Scullin, Jr. on 1/28/2015. (nmk)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_______________________________________________
JOHANNA MARQUEZ,
Plaintiff,
v.

5:11-CV-750
(FJS/DEP)

TOWN OF DEWITT; RICHARD KOVALSKY,
individually and as a police officer of the Town of DeWitt;
MIKE PUMA, individually and as a police officer of the
Town of DeWitt; BRENTON WHITE, individually and as
a police officer of the Town of DeWitt; EUGENE G.
CONWAY, individually and as the Chief of Police of the
Town of DeWitt; JOHN AND JANE DOES 1-10,
individually and as police officers of the Town of DeWitt,
Defendants.
_______________________________________________
APPEARANCES

OF COUNSEL

OFFICE OF JOSE E. PEREZ
120 East Washington Street – Suite 925
Syracuse, New York 13202
Attorneys for Plaintiff

JOSE E. PEREZ, ESQ.

OFFICE OF FRANK W. MILLER
6575 Kirkville Road
East Syracuse, New York 13057
Attorneys for Defendants

FRANK W. MILLER, ESQ.
BRYAN N. GEORGIADY, ESQ.

SCULLIN, Senior Judge

MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
Plaintiff brings this action alleging various claims against Defendants for discrimination,
assault, false imprisonment, malicious prosecution, gross negligence, and “purposeful
nonfeasance,” as well as various related state-law and constitutional claims.
Plaintiff originally filed her complaint on July 1, 2011, in the United States District Court for
the Northern District of New York. In her Complaint, Plaintiff seeks compensatory damages in
an amount to be proven at trial, punitive and exemplary damages against each Defendant, costs
of suit, reasonable attorney’s fees pursuant to 42 U.S.C. § 1983 and as otherwise authorized by
statute or law, that the Court assume pendent jurisdiction over the state-law claims, pre- and
post-judgment interest as permitted by law, a jury trial, and such other relief as the Court may
deem proper.
In her Complaint, Plaintiff alleges that Defendant Kovalsky, a court security officer (“CSO”)
of the Town of DeWitt Court, 1 targeted her and her sister for discrimination due to their race
when they were sitting in the gallery of the Town of DeWitt Courthouse. Plaintiff claims that
Defendant Kovalsky wrongfully ordered her to exit the courtroom and then used excessive force
while ejecting her from the courtroom. Plaintiff further asserts that Defendant Puma, another
CSO, assisted Defendant Kovalsky in using excessive force to arrest her. Plaintiff contends that
Defendants Puma and Kovalsky then conspired with Defendant Brenton White, an officer of the
Town of DeWitt Police Department, to have Plaintiff falsely charged with multiple crimes and

1

Throughout her filings, Plaintiff alleges without citation that Defendants Kovalsky and Puma
are Town of DeWitt police officers.
2

sent to the Onondaga County Justice Center (“OCJC”). Plaintiff asserts that she remained in jail
for two weeks, during which time she suffered various constitutional violations. Finally,
Plaintiff contends that
the Town of Dewitt is legally responsible for the incident, injuries
and damages . . . and that each of the Defendants directly and
proximately caused Plaintiff’s injuries and damages by reason of
their negligence, intentional acts or conduct, breach of duty,
negligent supervision, management or control, violation of
constitutional rights, or by reason of other personal, vicarious or
imputed negligence, fault, or breach of duty, whether based on
agency, employment, control, whether severally or jointly, or
whether based on any other act or omission.
See Complaint at ¶ 29.
Based upon these allegations, Plaintiff asserts eight causes of action:
(1)

Defendants infringed and conspired to infringe Plaintiff’s Fourth, Eighth, and
Fourteenth Amendment rights to be free from unreasonable searches and seizures,
deprivation of liberty without due process of law, cruel and unusual punishment,
false arrest and imprisonment.

(2)

Defendants infringed Plaintiff’s Fourth and Fourteenth Amendment rights to be
free from unreasonable and excessive force. 2

(3)

Defendants infringed Plaintiff’s Fourth, Eighth, and Fourteenth Amendment
rights to be free from false arrest and imprisonment. 3

(4)

Defendants infringed Plaintiff’s “rights, privileges and immunities” under 42
U.S.C. §§ 1981, 1983, 1985(3), and 1986 as well as the Fourth, Eighth, and
Fourteenth Amendments to a timely court appearance, assignment of counsel or
opportunity to retain counsel, and proper medical care.

(5)

Defendants discriminated against Plaintiff because of her race.

(6)

Defendants Eugene J. Conway and Town of DeWitt infringed Plaintiff’s “rights,
privileges, and immunities” under 42 U.S.C. § 1983 and the Fourth, Eighth, and
Fourteenth Amendments by negligently training police officers, negligently

2

This claim appears to be wholly redundant of portions of Plaintiff’s first claim.

3

This claim also appears to be wholly redundant of portions of Plaintiff’s first claim.
3

supervising police officers, and disregarding previous allegations of police
brutality.
(7)

Defendants violated Plaintiff’s rights under the laws of the State of New York by
committing the following against Plaintiff: assault, false imprisonment, malicious
prosecution, negligence, discrimination, gross negligence, and purposeful
nonfeasance.

(8)

Defendant Town of DeWitt is liable to Plaintiff for Defendant police officers’
actions pursuant to New York State General Municipal Law § 50-j, and the theory
of respondeat superior.

Currently before the Court is Defendants’ motion for partial summary judgment, seeking
dismissal of Plaintiff’s conspiracy claim, Plaintiff’s other claims against Defendants Brenton
White, John and Jane Does 1-10, Conway, and the Town of DeWitt; and Plaintiff’s claims
arising from her time at the OCJC.

III. DISCUSSION
A.

Plaintiff’s conspiracy claim
1. Standard of review
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, “[t]he court shall grant

summary judgment 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). At the
summary judgment stage, the court's role is to determine “whether there is the need for a trial—
whether, in other words, there are any genuine factual issues that properly can be resolved only
by a finder of fact because they may reasonably be resolved in favor of either party.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). In making this determination, the court must
view the evidence in the record and draw all reasonable inferences in the light most favorable to
the non-moving party. See Consol. Risk Servs., Inc. v. Auto. Dealers WC Self Ins. Trust, No.
1:06–CV–871, 2010 WL 2735701, *3 (N.D.N.Y. July 9, 2010) (citation omitted).
4

Summary judgment is appropriate if the party that bears the burden of proof at trial fails
to establish an essential element of its case. See Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). Moreover, “the mere existence of some alleged factual dispute between the parties will
not defeat an otherwise properly supported motion for summary judgment; the requirement is
that there be no genuine issue of material fact.” Anderson, 477 U.S. at 247–48. Thus,
“[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).

2. Plaintiff’s conspiracy claim
There are four elements of a conspiracy to violate civil rights under § 1985(3). See
United Bhd. of Carpenters & Joiners of Am., Local 610, AFL-CIO v. Scott, 463 U.S. 825, 828-29
(1983). The first element of that claim is simply “a conspiracy.” See id. A conspiracy need not
consist of an explicit agreement between the alleged conspirators, but a plaintiff “must allege,
with at least some degree of particularity, overt acts which defendants engaged in which were
reasonably related to the promotion of the claimed conspiracy.” Thomas v. Roach, 165 F.3d 137,
147 (2d Cir. 1999).
Here, Plaintiff alleges that Defendant Puma joined Defendant Kovalsky in arresting her
after Defendant Kovalsky had targeted her for ejection from the courtroom and begun removing
her. She does not allege, however, that Defendant Puma heard Defendant Kovalsky make the
statement, “this is what I have to do to Hispanic people,” a statement she describes as occurring
prior to Defendant Puma’s arrival to assist. She does not allege that Defendant Puma would
have responded differently to the situation if Defendant Kovalsky had been ejecting a white
person from the courtroom.

5

Plaintiff also alleges that Defendants Kovalsky and Puma agreed with Defendant White
to bring charges against Plaintiff. However, Plaintiff does not allege that Defendant White could
have or should have known that these charges were false, as Plaintiff alleges, or that Defendant
White could have or should have known that Defendant Kovalsky or Defendant Puma had
targeted Plaintiff because of her race. Plaintiff has not disputed Defendants’ claims that the
police station is located in a separate wing of the DeWitt Town Hall from the courtroom, that
Defendant White was summoned to the courtroom from the police station after the altercation
between Plaintiff and Defendants Kovalsky and Puma was underway, that Plaintiff was already
in handcuffs in the lobby when Defendant White encountered her, and that Defendant White
decided to charge Plaintiff after Defendants Kovalsky and Puma provided sworn statements that
Plaintiff had caused a disturbance in the courtroom and resisted arrest.
In summary, Plaintiff has not alleged any explicit or implicit communication between
Defendant Kovalsky and any other person that could suggest an agreement to discriminate
against Plaintiff. Plaintiff has likewise not alleged that anyone other than Defendant Kovalsky
would have acted differently if she were white. Accordingly, the Court grants Defendants’
motion for summary judgment with respect to those aspects of Plaintiff’s first cause of action
that allege a conspiracy to violate her civil rights in violation of 42 U.S.C. § 1985(3).

B.

Plaintiff’s malicious prosecution claim
Defendants and Plaintiff did not address this issue in their filings, but the Court grants

Defendants’ motion for summary judgment on Plaintiff’s malicious prosecution claim for failure
to state a cause of action upon which relief may be granted. In order to state a claim for the tort
of malicious prosecution under New York State law, a plaintiff must prove “’(1) the initiation or
continuation of a criminal proceeding against plaintiff; (2) termination of the proceeding in
6

plaintiff's favor; (3) lack of probable cause for commencing the proceeding; and (4) actual malice
as a motivation for defendant's actions.’” Murphy v. Lynn, 118 F.3d 938, 947 (2d Cir. 1997)
(quoting Russell v. Smith, 68 F.3d 33, 36 (2d Cir. 1995)) (citing Broughton v. State, 37 N.Y.2d
451, 458, 373 N.Y.S.2d 87, 95, 335 N.E.2d 310 (N.Y.) cert. denied, 423 U.S. 929, 96 S. Ct. 277,
46 L. Ed. 2d 257 (1975)). Here, Plaintiff has not alleged the second element, that proceedings
were terminated in her favor. Accordingly, the Court grants Defendant’s motion for summary
judgment on Plaintiff’s malicious prosecution claim against all Defendants.

C.

Plaintiff’s claims against Defendant White
A police officer has sufficient probable cause to escape liability for false arrest where he

has “’knowledge or reasonably trustworthy information of facts and circumstances that are
sufficient to warrant a person of reasonable caution in the belief that the person to be arrested has
committed or is committing a crime.’” Dickerson v. Napolitano, 604 F.3d 732, 751 (2d Cir.
2010) (quotation omitted). New York law also provides that a defendant may defeat a claim for
malicious prosecution where the defendant had probable cause, to wit: “’the knowledge of facts,
actual or apparent, strong enough to justify a reasonable man in the belief that he has lawful
grounds for prosecuting the defendant in the manner complained of.’” Rounseville v. Zahl, 13
F.3d 625, 629 (2d Cir. 1994) (quotation and other citation omitted).
Here, Defendant White clearly had probable cause to arrest and charge Plaintiff. An
eyewitness, Defendant Kovalsky, reported to Defendant White that Plaintiff had disrupted
courtroom proceedings and resisted arrest. Defendant Kovalsky and another eyewitness,
Defendant Puma, signed sworn affidavits alleging that Plaintiff had committed actions that
would satisfy all of the elements of the crimes of second degree criminal contempt, second
degree obstruction of governmental administration, and resisting arrest. Defendant White
7

completed the Misdemeanor Information charging Plaintiff with the aforementioned offenses
based upon the two eyewitnesses’ affidavits.
Plaintiff has not alleged any facts to indicate that Defendant White should have doubted
the truthfulness of these eyewitness accounts, and thereby believed that no probable cause
existed for Plaintiff’s arrest of prosecution. Plaintiff has likewise alleged no facts to indicate that
Defendant White took any other wrongful action. Accordingly, the Court grants Defendants’
motion for summary judgment on all claims against Defendant White.

D.

Plaintiff’s claims against Defendants John and Jane Does 1-10
Plaintiff does not oppose Defendants’ motion to dismiss the unnamed police officers

from the suit for lack of sufficiently specific allegations. Accordingly, this Court dismisses John
and Jane Does 1-10 from Plaintiff’s suit.

E.

Plaintiff’s supervisory liability claim against Defendant Conway
The Second Circuit has articulated five theories under which a plaintiff may hold a

supervisory defendant responsible for constitutional violations. See Colon v. Coughlin, 58 F.3d
865, 873 (2d Cir. 1995). However, the Court of Appeals has declined to extend that liability to
officials where a plaintiff “sets forth no facts in [the plaintiff’s] own knowledge that relate to [the
defendant] . . . nothing that would support a claim that [the defendant] knew or should have
known of the events of which [the plaintiff] complains.” Id. at 873-74. In a case where a
plaintiff sued the Commissioner of the New York Department of Correctional Services, alleging
failure to supervise corrections officers at one facility, the court held that “[t]he bare fact that
[Defendant Superintendent] occupies a high position in the New York prison hierarchy is
insufficient to sustain [the plaintiff’s] claim.” Id. at 874 (citations and footnote omitted).

8

Here, Plaintiff has failed to allege or argue any reason why Defendant Conway knew or
should have known about the actions of Defendants Kovalsky and Puma. She has also failed to
allege any supervisory relationship between Defendant Conway and the CSOs or to provide any
authority or argument why the Court should presume that such a relationship existed or should
have existed. Accordingly, the Court grants Defendants’ motion for summary judgment as to
Plaintiff’s supervisory liability claim against Defendant Conway.

F.

Plaintiff’s Monell claim against Defendant Town of DeWitt
Plaintiff is unable to sustain a Monell claim against Defendant Town of DeWitt because

she has not alleged sufficient facts to establish a claim of a discriminatory policy or practice.
She relies on a theory of deliberate indifference, but her allegations fail to address the second
element of a deliberate indifference claim: that “the situation [in which employees will often find
themselves] either presents the employee with a difficult choice of the sort that training or
supervision will make less difficult or that there is a history of employees mishandling the
situation.” Walker v. City of New York, 974 F.2d 293, 297 (2d Cir. 1992). A “difficult choice”
includes the decision of “[w]hether to use deadly force in apprehending a fleeing suspect . . .
because the use of more than the application of common sense is required.” Id. In other
situations, the proper choice might be clear, but it might become difficult where “the employee
has powerful incentives to make the wrong choice.” Id.
Here, there is no allegation in Plaintiff’s pleadings that CSOs in the Town of DeWitt are
likely to confront difficult choices involving civil rights while they supervise visitors in the
courtroom gallery. There is no allegation that the officers in such a situation would have to use
anything more than their common sense in deciding whether to remove individuals from the
gallery. There is also no allegation that the training CSOs receive in the New York State court
9

system is so inadequate that Defendant Town of DeWitt should augment it with additional
training. Furthermore, Plaintiff has not alleged that any powerful incentives exist to make CSOs’
decision-making process in the courtroom more difficult.
Likewise, Plaintiff has not alleged any facts to indicate that there is a history of civil
rights violations among the named Defendants or in Defendant Town of DeWitt’s courtroom.
She has not alleged that Defendants Kovalsky or Puma had ever violated anyone’s civil rights
prior to June 22, 2010. The deposition pages she cites do not mention any prior incident
involving the officers, any prior accusation against the officers, or any prior evidence of the
officers’ allegedly discriminatory tendency.
Finally, Plaintiff’s allegations could be reasonably described as a “single, detached
incident of misconduct by a few non-policy level officers, [which] in no way suggests a
deliberate choice by municipal policymakers to turn a blind eye to unconstitutional conduct.”
See Abreu v. City of New York, 657 F. Supp. 2d 357, 361 (E.D.N.Y. 2009) (citations omitted).
Accordingly, the Court grant’s Defendants’ motion for summary judgment as to Plaintiff’s claim
for Monell liability against Defendant Town of DeWitt.

G.

Plaintiff’s state-law negligence claim against Defendant Conway
Under New York law, the first element of a claim for negligent hiring, retention, or

supervision requires a plaintiff to show “that the tortfeasor and the defendant were in an
employee-employer relationship[.]” See Ehrens v. Lutheran Church, 385 F.3d 232, 235 (2d Cir.
2004) (citation omitted). Here, Plaintiff has pled no allegation or argument to indicate that
Defendants Kovalsky or Puma were in an employer-employee relationship with Defendant
Conway. Plaintiff has not explicitly challenged any of Defendants’ arguments or allegations that
Defendants Kovalsky and Puma worked directly for the Town Court justices, and not the Police
10

Department. Accordingly, the Court grants Defendants’ motion for summary judgment as to
Plaintiff’s negligence claim against Defendant Conway.

H.

Plaintiff’s negligence claim against Defendant Town of DeWitt
Under New York law, the second element of a claim for negligent hiring, retention, or

supervision requires a plaintiff to show “that 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[.]” Ehrens, 385 F.3d at 235 (quotation omitted) (emphasis added). Here, Plaintiff
has introduced no evidence that Defendant Town of DeWitt knew or should have known that
Defendants Kovalsky or Puma had a propensity for any of the conduct of which Plaintiff
complains. Plaintiff argues that her Notice of Claim “informed” Defendant Town of DeWitt
about Kovalsky and Puma’s alleged violations. This notification obviously could not have
happened until after the occurrence of Plaintiff’s alleged injuries, which fails the Ehrens test for
“prior” notice.
Plaintiff’s alternative argument on this subject, that Defendant Town of DeWitt’s alleged
policy or custom of failure to train its officers caused Plaintiff’s constitutional violations, is a
matter for Monell liability, which the Court has addressed in Part F, supra. Accordingly, the
Court grants Defendants’ motion for summary judgment as to Plaintiff’s negligence claim
against Defendant Town of DeWitt.

I.

Plaintiff’s claims arising from harms Plaintiff allegedly sustained at the OCJC
Plaintiff has affirmed that she decided not to pursue a claim against Onondaga County

and the OCJC because her attorney cannot participate in such a lawsuit due to a conflict of
interest, and she has decided not to hire a different attorney. Plaintiff argues that Defendants can
11

be held responsible for the harms she allegedly suffered at the OCJC because Defendants could
reasonably have foreseen that their unlawful arrest would lead to Plaintiff’s detention there for
several days.
1. With regard to Defendant Conway
The Second Circuit has held that “’foreseeability and causation . . . are issues generally
and more suitably entrusted to fact finder adjudication[.]’” Lombard v. Booz-Allen & Hamilton,
Inc., 280 F.3d 209, 216 (2d Cir. 2002) (quotation omitted). However, a court may rule as a
matter of law on foreseeability and causation where the claim rests upon “’independent
intervening acts which operate upon but do not flow from the original negligence[.]’” Martin v.
City of New York, 793 F. Supp. 2d 583, 586 (E.D.N.Y. 2011) (quoting Derdiarian v. Felix
Contracting Corp., 51 N.Y.2d 308, 315, 434 N.Y.S.2d 166, 170, 414 N.E.2d 666, 670 (1980)).
The Second Circuit has also held that the intervening exercise of judgment by an
independent decision maker breaks the chain of causation between a law enforcement defendant
and a plaintiff’s eventual harm “in the absence of evidence that the police officer misled or
pressured the official who could be expected to exercise independent judgment.” Townes v. City
of New York, 176 F.3d 138, 147 (2d Cir. 1999) (citations omitted).
Here, Plaintiff has made no allegation to suggest that Defendant Conway or any member
of the Police Department knew or should have known that the arrest and charging of Plaintiff
was unlawful or improper. For the reasons listed in Part C, supra, Defendant Conway’s
employee, Defendant White, had probable cause to arrest and charge Plaintiff based on the
statements and sworn affidavits of Defendants Kovalsky and Puma.
Similarly, Plaintiff has made no allegation to suggest that Defendant Conway or any of
his employees knew or should have known that constitutional violations had occurred, were

12

occurring, or would occur at the OCJC. Plaintiff does not dispute Defendants’ assertions that the
OCJC is managed by members and agents of the Onondaga County Sheriff’s Department, that an
arraigning judge issued a securing order remanding Plaintiff to the OCJC, that the DeWitt Police
Department does not have any authority over the treatment a detainee receives in OCJC custody,
that it is the Sheriff’s responsibility to transport detainees back to court for a future court date,
and that the DeWitt Police Department has never been aware of any information suggesting that
the OCJC is not capable of protecting a detainee’s constitutional rights, nor has it ever been
aware of any information suggesting that the Justice Center habitually violates detainees’
constitutional rights.
Accordingly, the Court grants Defendants’ motion for summary judgment as to Plaintiff’s
claims against Defendant Conway regarding harms Plaintiff allegedly suffered at the OCJC.

2. With regard to Defendants Kovalsky and Puma
A reasonable jury might find that Defendants Kovalsky and Puma were responsible for
Plaintiff’s incarceration at the OCJC if it were to find that these Defendants made false
statements about Plaintiff to Defendant White, thus precipitating Plaintiff’s arrest, charge, and
detention. As the Second Circuit explained in Townes, the independent exercise of judgment by
another decision-maker breaks the chain of causation between a defendant and a plaintiff’s harm
“in the absence of evidence that the police officer misled or pressured the official who could be
expected to exercise independent judgment.” 176 F.3d at 147 (citations omitted); see also White
v. Frank, 855 F.2d 956, 962 (2d Cir. 1988) (stating that “the public prosecutor's role in a criminal
prosecution will not necessarily shield a complaining witness from subsequent civil liability
where the witness's testimony is knowingly and maliciously false” (citations omitted)). Here,

13

Plaintiff has alleged that Defendants Kovalsky and Puma made statements that could have
misled Defendant White and the arraigning judge. If this allegation is true, Defendants Kovalsky
and Puma may be held liable for the fact that Plaintiff was ultimately incarcerated.
However, Defendants Kovalsky and Puma cannot be held liable for the unconstitutional
conditions that Plaintiff alleges she endured at the OCJC. Where an arresting officer passes
custody of a detainee to a detention facility, the responsibility for subsequent unforeseeable harm
to the detainee passes as well. See Martin, 793 F. Supp. 2d at 587-88. This principle applies
where the subsequent harm in detention “is not a likely consequence of arrest.” Id. at 588. Here,
Plaintiff alleges that she was subject to several constitutional violations while in the custody of
the OCJC. Plaintiff does not allege that these violations are a “likely consequence” of arrests in
the Town of DeWitt or in Onondaga County.
Detention in a corrections facility is a likely consequence of arrest, but unconstitutional
maltreatment within such a facility is not. Accordingly, the Court grants Defendants’ motion for
summary judgment as to Plaintiff’s claims against Defendants Kovalsky and Puma regarding the
harms she allegedly suffered after her remand to the OCJC.

3. With regard to Defendant Town of DeWitt
Even if a jury found that Plaintiff’s incarceration was the result of a § 1983 violation that
Defendants Kovalsky and Puma committed, it could not hold Defendant Town of DeWitt liable
for such a violation for the reasons set forth in Part L, infra. Therefore, the Court grants
Defendants’ motion for summary judgment as to Plaintiff’s claims against Defendant Town of
DeWitt regarding the harms she allegedly suffered after her remand to the OCJC.

14

J.

Plaintiff’s remaining state law claims, with the exception of the state law assault
claims against Defendants Kovalsky and Puma
1. Plaintiff’s false arrest and false imprisonment claims
There is no private right of action under the New York State Constitution where remedies

are available under § 1983. See Krug v. Cnty. of Rennselaer, 559 F. Supp. 2d 223, 248
(N.D.N.Y. 2008) (quotation omitted). The equal protection provisions in the New York State
Constitution are analogous to the United States Constitution’s Equal Protection Clause. See
Hayut v. State Univ. of New York, 352 F.3d 733, 754 (2d Cir. 2003) (citing Brown v. State, 89
N.Y.2d 172, 190, 652 N.Y.S.2d 223, 674 N.E.2d 1129 (1996) (stating that “[Article I, section 11
of the New York State Constitution] was intended to afford coverage as broad as that provided
by the Fourteenth Amendment to the United States Constitution” (citation omitted)). Section
1983’s false arrest and malicious prosecution provisions are also substantially the same as the
corresponding New York law provisions. See Boyd v. City of New York, 336 F.3d 72, 75 (2d
Cir. 2003) (citation omitted). In New York, false arrest and false imprisonment are one and the
same. See Hershey v. Goldstein, 938 F. Supp. 2d 491, 515 (S.D.N.Y. Apr. 9, 2013) (citation
omitted). Therefore, Plaintiff’s claims for discrimination, false imprisonment, and malicious
prosecution are sufficiently encompassed in her § 1983 claims and cannot be the basis of an
independent state-law claim. Accordingly, the Court grants Defendants’ motion for summary
judgment with regard to these claims.

2. Plaintiff’s gross negligence claim
Gross negligence and deliberate indifference are closely related concepts. See Doe v.
New York City Dep’t of Soc. Servs., 649 F.2d 134, 143 (2d Cir. 1981). Although they are not
literally coextensive, because the former is a type of conduct and the latter is a state of mind,
15

gross negligence creates a strong presumption of deliberate indifference. See id. Deliberate
indifference is the standard by which a municipality’s liability for failure to supervise its
employee is determined under § 1983. See Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 453
(5th Cir. 1994). Therefore, Plaintiff’s claim for gross negligence is also sufficiently
encompassed in her § 1983 claim and cannot be the basis of an independent state-law claim.
Accordingly, the Court grants Defendants’ motion for summary judgment with regard to this
claim.

3. Plaintiff’s purposeful nonfeasance claim
Purposeful nonfeasance is not an independent tort but serves as a basis of liability for an
intentional tort if a defendant owes a plaintiff a duty to act. See 86 C.J.S. Torts § 2 (2014);
Bonner v. Coughlin, 545 F.2d 565, 568-69 (7th Cir. 1976). Therefore, Plaintiff cannot bring an
independent claim against Defendants for purposeful nonfeasance. Accordingly, the Court
grants Defendants’ motion for summary judgment with regard to this claim.

4. Negligence
Under New York law, “false arrest, false imprisonment and unconstitutional search (or its
attendant torts, assault and battery) are not acts of negligence, and [a] plaintiff cannot recover for
them under general principles of negligence law.” Sarnicola v. Cnty. of Westchester, 229 F.
Supp. 2d 259, 277 (S.D.N.Y. 2002) (citations omitted); see also Delaney v. City of Albany, No.
1:08-cv-788, 2010 WL 4740185, *2 (N.D.N.Y. Nov. 16, 2010) (quotation omitted). Therefore,
Plaintiff cannot bring a state-law claim against Defendants for negligence arising from her
allegedly false arrest, imprisonment, and unconstitutional search by Defendants Kovalsky, Puma,

16

and White. Accordingly, the Court grants Defendants’ motion for summary judgment with
respect to these claims.

5. Summary
Based on the foregoing, the Court grants Defendants’ motion for summary judgment with
respect to all of Plaintiff’s remaining state-law claims, with the exception of her assault claims
against Defendants Kovalsky, Puma, and the Town of DeWitt.

K.

Plaintiff’s claims against Defendant Town of DeWitt pursuant to New York General
Municipal Law § 50-j
Section 50-j of the New York General Municipal Law provides that a municipality
shall assume the liability to the extent that it shall save harmless[] any
duly appointed police officer of such municipality, authority or agency for
any negligent act or tort complained of, provided such police officer, at the time of the
negligent act or tort complained of, was acting in the performance of his
duties and within the scope of his employment.

N.Y. Gen. Mun. Law § 50-j(1) (McKinney 2014).
The New York Criminal Procedure Law defines a “peace officer” as “a person listed in
section 2.10 of [Chapter 11-A].” N.Y. Crim. Proc. Law § 1.20(33) (McKinney 2013). Section
2.10 of the cited chapter includes among the people listed as peace officers “[u]niformed court
officers of the unified court system.” Id. at § 2.10(21)(a). Immediately after defining “peace
officer,” the Criminal Procedure Law goes on to list the twenty-two types of officials whom the
law defines as “police officers.” See id. at §§ 1.20(34)(a)-(v). No CSOs or other court officials
are listed among the police officers. See id.
Plaintiff argues that Defendants Kovalsky and Puma were police officers under § 50-j.
She argues that “General Municipal Law does not have anything to do with New York State

17

Criminal Procedure Law. . . . [A] cursory review of NY General Municipal Law reveals that
there is no definition differentiating peace and police officers.” See Dkt. No. 23 at 27. Plaintiff
asserts that §§ 50-m and 50-n of the General Municipal Law use the terms “peace officer” and
“police officer” interchangeably with the language “whether any such officers . . . .” See id.
Plaintiff’s first cited statute, § 50-m of the General Municipal Law, is a provision
allowing Suffolk County to act on local authority to “provide for the defense of any civil action
or proceeding brought against a duly appointed police or peace officer, as defined in section 1.20
of the criminal procedure law, employed by the county of Suffolk . . . .” See N.Y. Gen. Mun.
Law § 50-m(1). This provision, if it has any application outside of Suffolk county, would
undermine both of Plaintiff’s arguments. In the first place, it is a provision of the General
Municipal Law that defers to definitions listed in the Criminal Procedure Law. It indicates a
general relationship of language between the two bodies of law, as well as the Municipal Law’s
acknowledgment of sections of the Criminal Procedure Law where peace officers and police
officers are separately defined. Second, this passage indicates that “police” and “peace officers”
are not synonymous. Otherwise, listing them both would be redundant.
Plaintiff’s second cited statute, § 50-n, similarly allows for the provision of local defense
for “a duly appointed peace officer, sheriff, under-sheriff or deputy sheriff of the county of
Nassau. . . .” See N.Y. Gen. Mun. Law § 50-n. Like the preceding section, § 50-n does not
suggest that peace officers and police officers are synonymous under the laws of New York
State.
Here, Defendants Kovalsky and Puma were uniformed CSOs employed by the New York
State Unified Court System. Defendants Kovalsky and Puma were not Town of DeWitt police
officers. Given Plaintiff’s lack of meritorious claims against any Defendants who are or were

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police officers, the Court grants Defendants’ motion for summary judgment with regard to all of
Plaintiff’s claims under § 50-j.

I.

Plaintiff’s respondeat superior § 1983 claims and assault claims against Defendant
Town of DeWitt
Plaintiff cannot bring a § 1983 claim against Defendant Town of DeWitt or any other

entity under a respondeat superior theory. Section 1983 will not support such a claim. See Polk
Cnty. v. Dodson, 454 U.S. 312, 325 (1981) (citation omitted).
As for Plaintiff’s assault cause of action, such a claim may be brought under a theory of
respondeat superior. See 34 A.L.R.2d 372 (Originally published in 1954). However,
respondeat superior claims are only valid against the employer of an employee or servant who
commits the alleged tort, not against a party who has engaged an independent contractor. See
Berg v. Parsons, 156 N.Y. 109, 112-13 (1898). New York law allows a court to determine, as a
matter of law, that a worker was an independent contractor and not an employee where “the
arrangement between [the hiring party] and [worker] was so altogether lacking in those marks
which ordinarily characterize the relationship of employer and employee that [the worker] must
be deemed, as a matter of law, to have been an independent contractor.” In re Morton, 284 N.Y.
167, 173 (1940).
Defendants argue that Defendant Town of DeWitt cannot be liable for Defendant
Kovalsky’s and Puma’s alleged assault under the respondeat superior theory because they were
independent contractors. Defendants cite a decision of the New York State Appellate Division,
First Department, for the assertion that “[t]he mere retention of general supervisory powers over
the acts of the independent contractor will not impose liability[.]” Wright v. Esplanade Gardens,
150 A.D.2d 197, 198 (1st Dep’t 1989) (citation omitted).

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In Defendants’ cited case, a plaintiff sued a landowner for personal injuries that he
sustained when the landowner’s contracted security worker struck him with a golf cart. See id.
at 197-98. The First Department reversed the Supreme Court’s grant of summary judgment,
which had been based on a finding that the security service was an independent contractor. See
id. at 198. The court reasoned, citing Morton, 284 N.Y. at 172, that where an employer
“assumes control of the details of the work or some part of it, then . . . the employer may himself
be liable.” See id. (citation omitted) (emphasis added). The court noted that the plaintiff had
submitted deposition testimony by the operations manager of [the
security service] indicating that [the landowner] actually directed
[the security service] to drive golf carts upon the walkways of its
premises, including the specific location of the accident. This, in
itself, may have created an issue of fact as to whether [the
landowner] exercised control and direction.
Id.
Here, Plaintiff has submitted an admission by Defendant Kovalsky that, “I guess the
[Town Court] judge is ultimately the supervisor.” See Kovalsky Depo. at 29. She has also
submitted the following deposition testimony of Defendant Puma:
Q. . . . And when someone is being disruptive in the courtroom, is
there any specific policy you have to follow in order for you to tell
them to stop, or it’s based on your decorum, knowledge and
experience?
A. It’s based on the decorum of the judges that we work with, that
they would like to have quiet and attention.
See Puma Depo. at 48. Plaintiff has also submitted the CSOs’ employment contract, which
includes a section describing the “Scope of Services.” See Puma Contract at ¶ 2. This section
provides the following specific requirements:
a. Arriving at all scheduled Court dates a minimum of thirty (30)
minutes before the commencement of Court for the purposes of
conducting safety checks in parking lots, bathrooms, entrance and
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exitways to the facilities where the Court is located and search for
any and all contraband or weapons that may be stored on the
property;
b. Operate and secure a magnetometer that shall be positioned at the
entranceway to the Courtroom;
c. Search any and all bags and/or boxes that are being brought into
the courtroom and conduct quick wand searches of persons entering the
courtroom if the situation is warranted;
d. Provide security inside and outside of the courtroom; to wit, when
Court is in session, one Officer shall remain in the Courtroom
while the other Officer shall remain stationed at the magnetometer;
e. Upon adjournment of Court, the Officer shall conduct the same
safety check: and/or sweep as was conducted prior to the start of
the scheduled Court date.
See id.
Plaintiff’s submissions have created a sufficiently triable issue of fact to overcome the
low bar that Morton established. Accordingly, the Court denies Defendants’ motion for
summary judgment regarding Plaintiff’s respondeat superior claim against Defendant Town of
DeWitt for assault but grants the motion to dismiss Plaintiff’s respondeat superior claim under §
1983.

IV. CONCLUSION
Having reviewed the entire file in this matter, the parties’ submissions, and the applicable
law, and for the above-stated reasons, the Court hereby
ORDERS that Defendants’ motion for summary judgment, see Dkt. No. 18, is
GRANTED as to
(1) Plaintiff’s conspiracy claims under 42 U.S.C. § 1985(3) in the first and fourth causes
of action against all Defendants;
(2) Plaintiff’s causes of action against Defendant White;
(3) Plaintiff’s causes of action against Defendants John and Jane Does 1-10;

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(4) Plaintiff’s causes of action against Defendant Conway;
(5) Plaintiff’s Monell supervisory claims under 42 U.S.C. § 1983 in the sixth cause of
action against Defendant Town of DeWitt;
(6) Plaintiff’s negligence claim in the sixth cause of action against Defendant Town of
DeWitt;
(7) Plaintiff’s constitutional claims under § 1983 arising from Plaintiff’s incarceration at
the OCJC in the fourth cause of action against all Defendants, with the exception of the claim of
false imprisonment against Defendants Kovalsky and Puma;
(8) Plaintiff’s state law claims in the seventh cause of action against all Defendants, with
the exception of the assault claims against Defendants Kovalsky, Puma, and the Town of
DeWitt;
(9) Plaintiff’s claim under New York General Municipal Law § 50-j in the eighth cause
of action against Defendant Town of DeWitt; and
(10) Plaintiff’s respondeat superior claim arising from the alleged § 1983 violation in the
eighth cause of action against Defendant Town of DeWitt; and the Court further
ORDERS that Defendants’ motion for summary judgment is DENIED with regard to
(1) Plaintiff’s § 1983 claim of false imprisonment against Defendants Kovalsky and
Puma, and
(2) Plaintiff’s state-law assault claims against Defendants Kovalsky, Puma, and the Town
of DeWitt; and the Court further

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ORDERS that counsel shall participate in a telephone conference on April 22, 2015, at
9:30 a.m. to schedule a trial in this matter. The Court will provide counsel with the dial-in
instructions prior to the conference.

IT IS SO ORDERED
Dated: January 28, 2015
Syracuse, New York

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