Pinter v. The City of New York et al
Filing
103
OPINION AND ORDER re: 67 MOTION for Summary Judgment, filed by Robert Pinter, 83 SECOND MOTION to Dismiss, filed by New York City Undercover Police Officer # 3044, Jessica Sterling, Anthony Izzo, Michael Madison, James Tuller, Raymond Kelly, Bria n Conroy, Raymond Diaz, Shari C. Hyman, Sandra Dailey, New York City Undercover Police Officer #31107, New York City Undercover Police Offier # 3044, Joseph Esposito, The City of New York, Michael Bloomberg, Michael Michilena, Captain "Joe" Braille.... For the foregoing reasons, Pinter's motion to disregard Monell is denied. Defendants' motion for summary judgment is granted in part and denied in part. Pinter may proceed on his false arrest, malicious prosecution, excessive f orce, and abuse of process claims against the City under Monell. Pinter may proceed on his excessive force claim against the individual NYPD personnel in the van. Pinter's state law abuse of process claim is dismissed. Hyman is dismissed from th e litigation based on absolute immunity. All remaining individual defendants are also dismissed. The Clerk of Court is directed to close the parties' motion [Dkt. No. 67, 83]. A conference is scheduled for October 31, 2013 at 4:30 p.m. (Status Conference set for 10/31/2013 at 04:30 PM before Judge Shira A. Scheindlin.) (Signed by Judge Shira A. Scheindlin on 10/10/2013) (ja)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
I u/) 01/Q '-~ROBERT PINTER,
Plaintiff,
OPINION AND ORDER
- against
09 Civ. 7841 (SAS)
THE CITY OF NEW YORK, et al.,
Defendants.
----------------------------------------------------------
)(
SHIRA A. SCHEINDLIN, U.S.D.J.:
I.
INTRODUCTION
On October 10, 2008, detectives from the Manhattan South Vice
Enforcement Squad of the New York City Police Department ("NYPD") arrested
Robert Pinter for prostitution, following an encounter between Pinter and
Undercover Officer ("UC") 31107 at the Blue Door Video Store ("Blue Door").
Following twenty-three hours of post-arrest detention and thirty-six sleepless
hours, Pinter pled guilty to a non-criminal violation of disorderly conduct in
exchange for a conditional discharge. 1 Several months after his arrest, Pinter filed
Pinter now alleges that the NYPD entrapped him and other gay men
under similar circumstances.
!!
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an unopposed motion to vacate his conviction and dismiss the accusatory
instrument.
The District Attorney’s Office of New York County (“DANY”) did
not oppose Pinter’s motion, explaining:
It is unlikely that [Pinter] went to the location of the
occurrence with the intent to solicit money for sex, as
supported by his age (52 upon arrest), lack of prior record
for prostitution-related offenses, and overall law-abiding
history. Furthermore, the People recently dismissed three
pending cases with circumstances similar to those of the
case at bar because the People concluded that it would be
difficult to prove the guilt of defendants in those cases
beyond a reasonable doubt at trial.2
The state criminal court granted Pinter’s motion.
Pinter’s arrests and others like it led to protests by activists who
charged that the NYPD was targeting gay men and that the arrests were a result of
entrapment. On February 11, 2009, Pinter and other activists met with local
officials including City Council Speaker Christine Quinn. Later, activists met with
Senator Thomas Duane and then-District Attorney Robert Morgenthau. Pinter
alleges that these efforts led the NYPD to enact temporary reforms that have since
2
Pinter v. City of New York (“Pinter I”), 710 F. Supp. 2d 408, 412
(S.D.N.Y. 2010), rev’d, 448 Fed. App’x 99 (2d Cir. 2011), cert. denied, 133 S.Ct.
191 (2012) (“Pinter II”) (quoting Assistant District Attorney Gregory LeDonne’s
Affirmation and Response to Defendant Pinter’s Motion to Vacate Conviction,
People v. Pinter, No. 2008NY075734 ¶ 5).
2
been reversed.3
In a Second Amended Complaint filed on October 19, 2010, Pinter
brings sixteen federal and state claims against the City of New York, the Mayor,
and a number of NYPD officials, supervisors, and officers.4 Pinter’s claims may
be categorized as follows: (i) false arrest and unlawful stop in violation of state law
and the Fourth and Fourteenth Amendments;5 (ii) discriminatory treatment based
on Pinter’s sexual orientation in violation of state law and the First and Fourteenth
Amendments;6 (iii) malicious prosecution in violation of state law and the Fourth
Amendment;7 (iv) malicious abuse of process in violation of state law and the
3
See id. at 417; Plaintiff’s Response and Counter Rule 56.1 Statement
to the Collective Defendant Parties’ Rule 56.1 Statement (“Pl. 56.1”) ¶ 43.
4
See Second Amended Complaint (“Compl.”) at 1, ¶¶ 147–199.
5
See id. ¶¶ 147–152 (first and second causes of action). Pinter also
alleges entrapment, see id., but as the Second Circuit noted, “‘[w]hile entrapment
may be a proper defense in a criminal action, a police officer’s participation in
such activity does not constitute a constitutional violation.’” Pinter II, 448 Fed.
App’x at 105 n.5 (quoting DiBlasio v. City of New York, 102 F.3d 654, 656–57 (2d
Cir. 1996) (quotation marks omitted)).
6
See Compl. ¶¶ 153–158 (third and fourth causes of action); Plaintiff’s
Memorandum in Response and Opposition to the Collective City Defendant
Parties’ Motion for Judgment on Some of the Plaintiff’s Claims and in Support of
the Plaintiff’s Multiple Claims (“Pl. Opp.”) at 1–2.
7
See Compl. ¶¶ 159–164 (fifth and sixth causes of action).
3
Fourteenth Amendment;8 (v) unreasonable detention and excessive force based on
Pinter’s prolonged handcuffing in violation of state law and the Fourth and
Fourteenth Amendments;9 and (vi) denial of Pinter’s right to associate with the
Blue Door in violation of state law and the First and Fourteenth Amendments.10
Pinter brings all of these claims against the City, but does not specify which claims
are brought against which individual defendants.11
8
See id. ¶¶ 165–171 (seventh and eighth causes of action).
9
See id. ¶¶ 172–177 (ninth and tenth causes of action); Pl. Opp. at 1–2.
10
See Compl. ¶¶ 178–183 (eleventh and twelfth causes of action).
11
The caption of the Second Amended Complaint names the following
defendants: THE CITY OF NEW YORK, a municipal entity; NEW YORK CITY
UNDERCOVER POLICE OFFICER # 31107; NEW YORK CITY POLICE
OFFICERS “JOHN DOES,” individually and in their official capacities; NEW
YORK CITY POLICE COMMISSIONER RAYMOND KELLY, individually and
in his official capacity, NEW YORK CITY MAYOR MICHAEL BLOOMBERG,
individually and in his official capacity; JAMES TULLER, the then Commanding
Officer of Patrol Borough Manhattan South on October 10, 2008, individually and
in his official capacity; CAPTAIN “JOE” BRAILLE, Commander of the Vice
Squad of Patrol Borough Manhattan South, individually and in his official
capacity; CHIEF ANTHONY IZZO, Commander of the Organized Crime Bureau
of the New York City Police Department, individually and in his official capacity;
CHIEF JOSEPH ESPOSITO, individually and in his official capacity; BRIAN
CONROY, individually and in his official capacity as Deputy Chief of
the New York City Police Department’s Vice Enforcement Division; SHARI C.
HYMAN, individually and in her official capacity as Director of the New York
City Mayor’s Office of Special Enforcement; DETECTIVE JESSICA STERLING,
Shield # 6132, individually and in her official capacity; SERGEANT MICHAEL
MADISON, Shield # 4321, individually and in his official capacity; DETECTIVE
MICHAEL MICHILENA, Shield # 1409, individually and in his official capacity;
4
All of the claims of federal constitutional violations are brought
pursuant to Section 1983 of Title 42 of the United States Code (“Section 1983”),
which creates “‘a species of tort liability’” for, among other things, certain
violations of constitutional rights.12 Pinter alleges that the City is liable under
Section 1983 for the alleged constitutional violations because they resulted from
the City’s policies and customs, as required by Monell.13 Pinter also alleges that
the City is vicariously liable for the alleged state law violations under respondeat
superior, and directly liable based on the City’s negligence.14
DETECTIVE SANDRA DAILEY, Shield # 1069, individually and in her official
capacity; and NEW YORK CITY UNDERCOVER POLICE OFFICER # 3044,
individually and in his official capacity. See id. at 1.
12
Heck v. Humphrey, 512 U.S. 477, 483 (1994) (quoting Memphis
Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 305 (1986)). See, e.g., Compl. ¶ 148.
13
See Compl. ¶¶ 184–186 (thirteenth cause of action); Monell v. New
York City Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978) (establishing the
standards under 42 U.S.C. § 1983 for municipal liability for constitutional torts by
employees).
14
See Compl. ¶¶ 187–199 (fourteenth through sixteenth causes of
action). See also Pl. Opp. at 1–2 (listing claims). Pinter argues in opposition to the
City’s motion for summary judgment that UC 31107’s alleged fabrication of
evidence violated Pinter’s rights under the Fourteenth Amendment. See id. at 5–6;
Plaintiff’s Memorandum Respecting the Plaintiff’s Municipal Liability Claims
(“Pl. Mem.”) at 1 n.1. Because this newly raised fabrication-based due process
claim does not appear in the Second Amended Complaint, it has not been properly
pleaded, and need not be considered. See Fed. R. Civ. P. 8(a) (“A pleading that
states a claim for relief must contain . . . a short and plain statement of the claim
showing that the pleader is entitled to relief . . . .”).
5
Shortly before the filing of the Second Amended Complaint, this
Court denied, in part, defendants’ motion for summary judgment on the issue of
qualified immunity based on the allegations in the First Amended Complaint and
Pinter’s deposition.15 This Court held that the officers lacked probable cause to
arrest Pinter for prostitution for the same reasons that DANY chose not to oppose
Pinter’s motion to vacate, and for other reasons explained at length in Pinter I.
On November 18, 2011, the Second Circuit reversed, holding that the
individual defendants were entitled to qualified immunity from Pinter’s false arrest
and malicious prosecution claims. The Second Circuit concluded that “the officers
had arguable probable cause to arrest Pinter” for prostitution.16 Thus, “defendants
acted reasonably — that is, not incompetently or in knowing violation of the law
. . . — in arresting Pinter for a violation of New York Penal Law § 230.00.”17
The Second Circuit also held that “Pinter’s Monell claims are
derivative of his claims against the individual defendants, and therefore any claims
dismissed as against the individual defendants must also be dismissed as against
15
Pinter I, 710 F. Supp. 2d at 412 n.11, 425.
16
Pinter II, 448 Fed. App’x at 100 n.1, 105 n.6.
17
Id. at 105.
6
the City.”18 Accordingly, the Second Circuit ordered that this Court “shall not
permit the plaintiff to pursue Monell claims derived from either the false arrest or
malicious prosecution claims.”19 As discussed below, the Second Circuit’s
reasoning in Pinter II appears to conflict with the holding in its more recent
published opinion in Askins v. Doe No. 1.20
Defendants now move for summary judgment on Pinter’s remaining
claims.21 For the reasons stated below, defendants’ motion is granted in part and
denied in part.
Pinter has also filed a motion, requesting that the Court “find that, as a
matter of fact and law, the Defendant City of New York is the ‘real party in
interest’ in this litigation” and is vicariously liable under respondeat superior for
18
Id. at 106 (citing City of Los Angeles v. Heller, 475 U.S. 796, 799
(1986) (“[I]f [the police officer] inflicted no constitutional injury on respondent, it
is inconceivable that [the city] could be liable to respondent.”); Escalera v. Lunn,
361 F.3d 737, 748–49 (2d Cir. 2004)).
19
Id.
20
No. 12 Civ. 0877, __ F.3d __, 2013 WL 4488698 (2d Cir. Aug. 23,
2013).
21
See Defendants’ Memorandum of Law in Support of Defendants’
Motion for Summary Judgment Pursuant to Rule 56 (“Def. Mem.”); Defendants’
Memorandum of Law in Reply and in Further Support for Defendants’ Motion for
Summary Judgment (“Def. Reply”).
7
injuries caused by its employees.22 Although Pinter’s argument is not always easy
to discern, it appears that Pinter is requesting that this Court disregard Monell and
encourage the Second Circuit and the Supreme Court to overturn it.23 Because
Monell remains good law and this Court is bound by Second Circuit and Supreme
Court precedent, Pinter’s motion is denied.
II.
LEGAL STANDARD ON A MOTION FOR SUMMARY JUDGMENT
Summary judgment is appropriate “only where, construing all the
evidence in the light most favorable to the non-movant and drawing all reasonable
22
Pl. Mem. at 1.
23
See, e.g., id. at 17–18. Pinter correctly notes that questions have been
raised about the accuracy of Monell’s analysis of Section 1983. See, e.g., Vodak v.
City of Chicago, 639 F.3d 738, 747 (7th Cir. 2011) (Posner, J.) (noting that
“scholars agree” Monell is based on “historical misreadings”); Board of Cnty.
Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397, 431–37 (1997)
(Breyer, J., dissenting, joined by Stevens and Ginsburg, JJ.) (criticizing the
“original reasoning” of Monell and questioning “the continued viability of
Monell’s distinction between vicarious municipal liability and municipal liability
based upon policy and custom”); id. at 430 (Souter, J., dissenting, joined by Breyer
and Stevens, JJ.) (questioning whether there may be “sufficient reason to unsettle
the precedent of Monell”); Oklahoma City v. Tuttle, 471 U.S. 808, 834–44 (1985)
(Stevens, J., dissenting) (criticizing Monell’s historical analysis and calling for the
elimination “from this class of civil-rights litigation the time consuming ‘policy’
issues that Monell gratuitously engrafted onto [Section 1983]”). If it were within
the province of a federal district court to question Supreme Court precedent based
on indications of dissension, I might be inclined to do so in this case. But this
Court’s task is to apply Supreme Court and Second Circuit law as it stands. As a
result, I am constrained to apply Monell and its progeny, although I add my voice
to the chorus of those who would encourage the Supreme Court to revisit Monell’s
analysis.
8
inferences in that party’s favor, there is ‘no genuine issue as to any material fact
and . . . the movant is entitled to judgment as a matter of law.’”24 “A fact is
material if it might affect the outcome of the suit under the governing law, and an
issue of fact is genuine if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.”25
“[T]he moving party has the burden of showing that no genuine issue
of material fact exists and that the undisputed facts entitle him to judgment as a
matter of law.”26 “When the burden of proof at trial would fall on the non-moving
party, it ordinarily is sufficient for the movant to point to a lack of evidence to go
to the trier of fact on an essential element of the non[-]movant’s claim.”27 The
burden then “shifts to the non[-]moving party to present specific evidence showing
a genuine dispute.”28 This requires “‘more than simply show[ing] that there is
24
Rivera v. Rochester Genesee Reg’l Transp. Auth., 702 F.3d 685, 692
(2d Cir. 2012) (quoting Fed. R. Civ. P. 56(c)) (other quotations omitted).
25
Windsor v. United States, 699 F.3d 169, 192 (2d Cir. 2012), aff’d, 133
S. Ct. 2675 (2013) (quotations and alterations omitted).
26
Coollick v. Hughes, 699 F.3d 211, 219 (2d Cir. 2012) (citations
omitted).
27
Jaramillo v. Weyerhaeuser Co., 536 F.3d 140, 145 (2d Cir. 2008).
28
Id.
9
some metaphysical doubt as to the material facts,’”29 and the non-moving party
cannot “rely on conclusory allegations or unsubstantiated speculation.”30
In deciding a motion for summary judgment, “[t]he role of the court is
not to resolve disputed issues of fact but to assess whether there are any factual
issues to be tried.”31 “‘Credibility determinations, the weighing of the evidence,
and the drawing of legitimate inferences from the facts are jury functions, not those
of a judge.’”32
III.
DISCUSSION
A.
False Arrest and Malicious Prosecution Claims
1.
Pinter II and Askins
The Second Circuit held in Pinter II that the individual defendants are
entitled to qualified immunity from Pinter’s false arrest and malicious prosecution
claims because even according to Pinter’s allegations, “the officers had arguable
29
Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir. 2011) (quoting
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)).
30
Id.
31
Cuff ex rel. B.C. v. Valley Cent. Sch. Dist., 677 F.3d 109, 119 (2d Cir.
2012).
32
Redd v. New York Div. of Parole, 678 F.3d 166, 174 (2d Cir. 2012)
(quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000)).
10
probable cause to arrest Pinter” for prostitution.33 The Second Circuit left open the
question, however, of whether the individual defendants had actual probable
cause.34 “Probable cause exists when, based on the totality of circumstances, the
officer has ‘knowledge of, or reasonably trustworthy information as to, facts and
circumstances that are sufficient to warrant a person of reasonable caution in the
belief that an offense has been or is being committed by the person to be
arrested.’”35
Under New York Penal Law § 230.00, “[a] person is guilty of
prostitution when such person engages or agrees or offers to engage in sexual
conduct with another person in return for a fee.” In People v. A.S., a state trial
court stated that “acts of agreement showing defendant’s intent to consummate an
33
Pinter II, 448 Fed. App’x at 100 n.1, 105 n.6 (emphasis added).
34
See id. at 105 n.6 (noting “our finding that the officers had arguable
probable cause to arrest Pinter”). I emphasize that the Second Circuit’s comment
that “defendants acted reasonably,” id. at 105, does not decide the question of
whether Pinter’s arrest was constitutionally reasonable under the Fourth
Amendment in the sense of being supported by probable cause. If it did, there
would be no distinction between arguable and actual probable cause. See also
Walczyk v. Rio, 496 F.3d 139, 168 (2d Cir. 2007) (Sotomayor, J., concurring)
(criticizing the arguable probable cause inquiry as an “imprecise” bifurcation of
qualified immunity analysis, whose result is to give litigants a “second bite at the
immunity apple.”).
35
Finigan v. Marshall, 574 F.3d 57, 62 (2d Cir. 2009) (quoting Zellner
v. Summerlin, 494 F.3d 344, 368 (2d Cir. 2007)).
11
act of prostitution” include “taking a step toward committing the act” such as
“accepting the consideration or accompanying the undercover officer to a place
where the sexual act might occur.”36 In another case, People v. A.M., a state trial
court confronted a set of facts with obvious similarities to the present case.37 A
thirty-five year old gay man with no criminal record, who had apparently never
been arrested before, was charged with prostitution after he allegedly agreed to
engage in a sex act for a fee with a male undercover police officer.38 In dismissing
the information as facially insufficient, the court noted:
Christopher Street and the Westside Highway, where this incident
is alleged to have occurred, has long been known as a place where
gay men are able to meet and socialize. The danger exists that an
encounter in which an individual is simply making contact with
another, perhaps for the purposes of consensual sex, may, due to
the ambiguities attendant to such encounters, be misconstrued or
misunderstood by a police officer to be a prostitution offense.39
The court also noted that “[w]ords or acts of the defendant which provide a reliable
basis to believe that the defendant actually entered into and accepted the terms of
[an agreement to exchange sex for a fee]” include “whether the defendant said
36
685 N.Y.S.2d 573, 574 (Crim. Ct. N.Y. Co. 1998).
37
No. 2001CN 001284, 2001 WL 1117455 (Crim. Ct. N.Y. Co. July 31,
2001).
38
See id. at *1.
39
Id. at *4.
12
something indicating he would exchange sex for remuneration, whether he
discussed fees, whether he suggested a location for the act, whether he nodded his
head or made some other affirmative gesture, or whether he accepted money.”40
A reasonable jury could accept Pinter’s version of events as described
in his deposition, which has already been summarized at length in Pinter I. In
brief: On October 10, 2008, Pinter, a 52-year-old white gay male with no prior
history of prostitution-related offenses, stopped at the Blue Door. The separate
adult section in the store primarily sells gay pornography videos and sex toys.
There are other areas of the store in which gay men sometimes engage in sexual
activity, alone or with each other.41
While Pinter was browsing the adult videos, a thirty year old Asian
40
Id. (citing Matter of Marco M., 551 N.Y.S.2d 204 (1st Dep’t 1990)).
In a later case, the trial court noted that in People v. A.M., dismissal was justified
because “neither the complaint nor the VDF contains any statements whatsoever
allegedly made by Defendant. Here, [by contrast], the VDF indicates that
Defendant allegedly stated, ‘Yes it’s $175 for me to give you head, and you have
to wear a condom.’” People v. Rodas, 910 N.Y.S.2d 407, 407 n.2 (Crim. Ct. N.Y.
Co. 2010).
41
See, e.g., Deposition of Plaintiff Robert Pinter (“Pinter Dep.”) at
91–94. Excerpts from Pinter’s deposition appear at Ex. 16 to 7/16/13 Declaration
of James Meyerson, Counsel for Plaintiff, in Response and Opposition to the
Collective Defendant Parties’ Motion and in Support of the Plaintiff’s Remaining
Multiple Claims (“Meyerson Decl.”); Ex. A to 6/20/13 Declaration of Dara Olds,
Counsel for Defendants, in Support of Motion for Summary Judgment (“Olds
Decl.”); Exs. A1–A9 to 1/26/10 Declaration of James I. Meyerson in Opposition to
Defendants’ First Motion for Summary Judgment.
13
male undercover officer, UC 31107,42 made eye contact with him and they smiled
at each other. UC 31107 approached Pinter and began flirting with him and
complimenting his looks. UC 31107 asked, “[W]hat do you like to do?” Because
they were standing in the adult video section of a store apparently known as a
destination for gay sex, Pinter reasonably interpreted UC 31107 to be asking not
about Pinter’s favorite hobbies, but about the kinds of sexual activities that Pinter
enjoyed. Pinter said that he enjoyed — and was good at — oral sex. UC 31107
replied that he enjoyed oral sex as well, but was nervous about engaging in any
such activity in the video store.
UC 31107 then informed Pinter that his car was parked nearby —
with the implication that the car might be a suitable location for the two to engage
in oral sex. Pinter led the way to the exit, with UC 31107 following right behind.
At this point there had been no mention whatsoever of an exchange of money for
sex (i.e. prostitution).
At the door but before leaving the store, UC 31107 said to Pinter: “I
want to pay you $50 to suck your dick.” Caught off guard by the unprompted offer
of money, Pinter said nothing. As the strangeness of the situation sunk in, Pinter
decided that there was no possibility of “engaging in anything” with UC 31107.
42
See Report and Analysis Prepared for Vice Division Chief Defendant
Brian Conroy (“Conroy Report”), Ex. 14 to Meyerson Decl., at 2–3.
14
Because Pinter’s apartment was in the same direction as UC 31107’s car, however,
Pinter and UC 31107 continued to walk in the same direction. The two engaged in
playful sexual banter. UC 31107 never tried to confirm that Pinter had agreed to
accept the money, which UC 31107 could have easily done. After about a hundred
feet, Pinter was arrested for prostitution.43
Drawing all reasonable inferences in favor of Pinter, a jury could find
that Pinter’s arrest was not based on probable cause. This is not to question the
Second Circuit’s conclusion that “UC 31107 could have reasonably believed that
Pinter had agreed to be compensated in exchange for allowing UC 31107 to act on
his desire to perform oral sex on Pinter.”44 Rather, the facts of this case, viewed in
the light most favorable to Pinter, illustrate the distinction between arguable
probable cause and actual probable cause.
On the one hand, applying the standard for qualified immunity as
settled by the Second Circuit’s Summary Order, it would be inaccurate to say that
UC 31107 was “‘plainly incompetent’” or must have “‘knowingly violate[d] the
law’” in concluding that Pinter had agreed to engage in prostitution.45 Because UC
43
See Pinter Dep. at 94–127.
44
Pinter II, 448 Fed. App’x at 104.
45
See id. at 103 (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).
15
31107 had arguable probable cause for an arrest, he is entitled to qualified
immunity. “[O]fficers require this protection to shield them from undue
interference with their duties and from potentially disabling threats of liability.”46
On the other hand, declaring Pinter’s arrest — according to his
version of events — to be based on actual probable cause would dilute the Fourth
Amendment’s protection of individual liberty from unreasonable government
intrusion. An officer does not have probable cause to believe a person is a
prostitute simply because the person remained silent after being inexplicably
offered a fee for what he expected to be consensual, gratuitous sex.47 To allow the
police to arrest such a person for prostitution — moments later, and without so
much as an attempt at confirmation — would invite abuses.
There are countless reasons why someone who is not a prostitute
might fail to immediately, vocally reject an inexplicable offer of gratuitous money
for a consensual sexual act. Pinter’s account of his arrest illustrates some of the
46
Harlow v. Fitzgerald, 457 U.S. 800, 806 (1982). Accord Askins, 2013
WL 4488698, at *4 (“The doctrine that confers qualified immunity on individual
state or municipal actors is designed to ensure that the persons carrying out
governmental responsibilities will perform their duties boldly and energetically
without having to worry that their actions, which they reasonably believed to be
lawful at the time, will later subject them to liability on the basis of subsequently
developed legal doctrine.”).
47
Like the trial court in People v. A.M., I use the phrase “consensual
sex” as shorthand for “consensual sex not in return for a fee.”
16
most obvious reasons: wariness and confusion. Given the oddity of UC 31107’s
unprompted request, someone in Pinter’s situation might well fail to perceive the
offer of money as a form of solicitation for prostitution, and might instead simply
wonder what UC 31107 was thinking: does he have a practice of offering money
for consensual sex? Does it give him some thrill? Indeed, if the NYPD began
sending attractive young female officers into heterosexual dance clubs where they
flirted with older men, asked them what they liked to do sexually, invited them to
go nearby to have a sexual encounter — and on the way out, asked whether they
would accept $50 to have oral sex performed on them — no doubt a good number
of straight men would be too bewildered by this surreal turn of events to recognize
that, legally speaking, they were being asked to prostitute themselves. Pinter has
provided sufficient evidence for a reasonable jury to find that the NYPD’s
undercover officers – who offered fees for sex – succeeded in obtaining agreement,
or at least silence, not only from Pinter but from a number of gay men who are not
prostitutes.48
When a method of identifying prostitutes predictably results in the
frequent arrest of non-prostitutes, and this repeated violation of liberty could be
48
See, e.g., Conroy Report. I also note that a person who — unlike
Pinter — still wished to proceed with the consensual sexual act, even after being
offered an unnecessary fee, might decide to remain silent, carry out the act, and
then refuse the fee after the completion of the act.
17
avoided through a minimal application of caution, such as by asking a simple
follow-up question,49 then the reasonableness of the method under the Fourth
Amendment is doubtful. At the very least, the method should not be immunized
from judicial scrutiny by holding that the resulting arrests are as a rule based on
probable cause.
Because a reasonable jury could find that UC 31107 lacked probable
cause for Pinter’s arrest, Pinter could establish at trial that he was subject to a
violation of his constitutional right to be free from unreasonable seizure under the
Fourth Amendment. This conclusion leads to a dilemma. The Second Circuit held
in its Summary Order that “Pinter’s Monell claims are derivative of his claims
against the individual defendants, and therefore any claims dismissed as against the
individual defendants must also be dismissed as against the City.”50 Accordingly,
49
See Pinter II, 448 Fed. App’x at 105 (noting that “UC 31107 could
have been more explicit in ascertaining whether Pinter was truly relying on
financial remuneration in return for allowing the undercover officer to perform oral
sex on him”); Pinter I, 710 F. Supp. 2d at 429-430 (“An officer of reasonable
caution in these circumstances would have asked a follow-up question when faced
with Pinter's silence about whether he meant to accept the money [given that]
probable cause did not yet exist for Pinter's arrest. . .”) (quotations omitted).
50
Pinter II, 448 Fed. App’x at 106 (citing Heller, 475 U.S. at 799 (“[I]f
[the police officer] inflicted no constitutional injury on respondent, it is
inconceivable that [the city] could be liable to respondent.”); Escalera, 361 F.3d at
748–49). Escalera, however, does not hold that a Monell claim based on an
alleged constitutional tort must be dismissed if the officer who carried out the
alleged tort is entitled to qualified immunity. See Escalera, 361 F.3d at 748–49
18
the Second Circuit ordered that this Court “shall not permit the plaintiff to pursue
Monell claims derived from either the false arrest or malicious prosecution
claims.”51
In a subsequent, published opinion, Askins v. Doe No. 1, however, the
Second Circuit held that “the entitlement of . . . individual municipal actors to
qualified immunity because at the time of their actions there was no clear law or
precedent warning them that their conduct would violate federal law is . . .
irrelevant to the liability of the municipality.”52 “Municipalities are held liable if
they adopt customs or policies that violate federal law and result in tortious
violation of a plaintiff’s rights, regardless of whether it was clear at the time of the
adoption of the policy or at the time of the tortious conduct that such conduct
would violate the plaintiff’s rights.”53 “To rule, as the district court did, that the
City of New York escapes liability for the tortious conduct of its police officers
(granting qualified immunity to the commissioner of a corrections department
based on finding an insufficient basis for inferring the existence of an
unconstitutional departmental policy or practice of filing false charges against
corrections officers).
51
Pinter II, 448 Fed. App’x at 106.
52
Askins, 2013 WL 4488698, at *4 (“‘[M]unicipalities have no
immunity from damages for liability flowing from their constitutional violations.’”
Id. (quoting Lore v. City of Syracuse, 670 F.3d 127, 164 (2d Cir. 2012))).
53
Id. (citing Owen v. City of Independence, 445 U.S. 622, 657 (1980)).
19
because the individual officers are entitled to qualified immunity would effectively
extend the defense of qualified immunity to municipalities, contravening the
Supreme Court’s holding in Owen.”54
Askins conflicts with Pinter II. The latter holds that where a plaintiff
has suffered a constitutional tort at the hands of an officer who is entitled to
qualified immunity, the City is immune from a Monell claim based on the tort; the
former holds the opposite. Indeed, the Second Circuit’s criticisms of the district
court’s holding in Askins appear to apply with equal force to Pinter II:
In dismissing Askins’s claim against the City, the district court
relied on the proposition “that the City cannot be liable under
Monell where Plaintiff cannot establish a violation of his
constitutional rights.” The court explained: “All of the alleged
constitutional violations in this case are either time-barred or
barred by the doctrine of qualified immunity. Therefore, it cannot
be said that any allegedly illegal City policy caused Plaintiff a
constitutional remediable injury, and no Monell claim lies against
the City.” This conclusion reflects a misunderstanding of the
relationship between the liability of individual actors and
municipal liability for purposes of Monell. The court was entirely
correct in stating that the City “cannot be liable under Monell
where Plaintiff cannot establish a violation of his constitutional
rights.” . . . .
It does not follow, however, that the plaintiff must obtain
a judgment against the individual tortfeasors in order to establish
the liability of the municipality. It suffices to plead and prove
against the municipality that municipal actors committed the tort
against the plaintiff and that the tort resulted from a policy or
custom of the municipality. In fact, the plaintiff need not sue the
54
Id.
20
individual tortfeasors at all, but may proceed solely against the
municipality.55
Defendants attempt to reconcile the holdings of Askins and Pinter II
by arguing that Pinter II held not only that the arresting officers had arguable
probable cause, but that they had actual probable cause, and thus that Pinter
suffered no constitutional injury.56 Defendants’ interpretation is not plausible. If
the Second Circuit had intended to make a holding that the arresting officers had
probable cause — a holding with significant implications for the Fourth
Amendment — it would have done so explicitly, rather than through a debatable
inference. In addition, the Second Circuit would have analyzed probable cause,
not arguable probable cause, and would not have used the redundant qualifier
“arguable” when characterizing its holding.57
55
Id. at *3–4 (citations omitted).
56
See 9/4/13 Letter from Dara Olds to the Court, at 1–2 (arguing that the
Second Circuit dismissed Pinter’s false arrest and malicious prosecution claims
based on finding “that plaintiff suffered no constitutional injury,” and thus that “the
Circuit’s decision in Pinter is in harmony with, rather than at odds with, the Askins
decision”). See also Defendants’ Memorandum of Law in Opposition to Plaintiff’s
Motion for Summary Judgment (“Def. Opp.”) at 5 (arguing that the Second
Circuit’s “analysis of the facts appears to suggest very strongly that the Defendants
had probable cause”).
57
See Pinter II, 448 Fed. App’x at 105 n.6 (characterizing the opinion as
“finding that the officers had arguable probable cause to arrest Pinter” (emphasis
added)).
21
Because of the conflict between Pinter II and Askins, this Court
cannot proceed without violating one of the two Second Circuit authorities. Either
this Court must disregard the law of the case as articulated in the Pinter II, as well
as the explicit directions with which Pinter II concludes, or this Court must
disregard Askins. While this Court is extremely wary of failing to comply with an
explicit directive of the Second Circuit, it is equally wary of failing to adhere to a
subsequent and more authoritative statement of Second Circuit law. Askins is a
published opinion that extensively analyzed this issue, while the unpublished
decision in Pinter II has no precedential effect beyond this immediate case.58
Because Askins provides a thorough, binding, directly on-point analysis that
conflicts with the unpublished decision in Pinter II, I follow Askins and conclude
that the Second Circuit’s grant of qualified immunity to the individual defendants
does not bar Pinter from bringing Monell claims against the City that derive from
his arrest having lacked probable cause.59 In particular, the Second Circuit’s
58
See Second Circuit Local Rule 32.1.1(a).
59
To the extent that this approach lies in tension with the law of the case
doctrine, I note that this doctrine is not absolute. “Under the law of the case
doctrine, a decision on an issue made at one stage of a case becomes binding
precedent to be followed in subsequent stages of the same litigation.” In re PCH
Assocs., 949 F.2d 585, 592 (2d Cir. 1991). While courts should “not depart from
the law of the case absent cogent or compelling reasons,” Pescatore v. Pan Am.
World Airways, Inc., 97 F.3d 1, 8 (2d Cir. 1996), one such reason may be “an
intervening change of controlling law.” Virgin Atl. Airways, Ltd. v. National
22
qualified immunity finding does not by itself bar Pinter’s false arrest and malicious
prosecution claims against the City.
2.
Monell Liability Based on False Arrest
“[D]eliberate indifference may be inferred where ‘the need for more
or better supervision to protect against constitutional violations was obvious,’ but
the policymaker ‘fail[ed] to make meaningful efforts to address the risk of harm to
plaintiffs[.]’”60 A reasonable jury could find based on the record evidence that the
City had a custom of carrying out arrests like Pinter’s, and that the City was
deliberately indifferent to the obvious risk of arresting gay men for prostitution
without probable cause. As noted above, DANY agreed to the dismissal of
Pinter’s case in part because “‘the People recently dismissed three pending cases
with circumstances similar to those of the case at bar.’”61 Pinter offers evidence
that could support a finding that the NYPD engaged in a pattern of arresting gay
Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992). Accord In re Nassau Cnty.
Strip Search Cases, No. 99 Civ. 2844, 2013 WL 3805659, at *3 (E.D.N.Y. July 18,
2013).
60
Cash v. County of Erie, 654 F.3d 324, 334 (2d Cir. 2011), cert.
denied, 132 S. Ct. 1741 (2012) (quoting Vann v. City of New York, 72 F.3d 1040,
1049 (2d Cir. 1995); Reynolds v. Giuliani, 506 F.3d 183, 192 (2d Cir. 2007)).
61
Gregory LeDonne, Assistant District Attorney, Affirmation and
Response to Defendant’s Motion to Vacate Conviction, Ex. 11 to Meyerson Decl.,
¶ 5.
23
men without probable cause for prostitution at video stores, and especially at the
Blue Door.62
Pinter also cites numerous excerpts from depositions and other
evidence tending to show that the NYPD failed to train undercover officers to
avoid arresting gay men for prostitution without probable cause based on a
misunderstanding of the circumstances.63 For example, the Chief of the NYPD’s
Organized Crime Control Bureau told the NYPD’s Internal Affairs Bureau (“IAB”)
that he was unaware of prostitution arrests being made at video stores targeted for
nuisance abatement,64 but that once he learned of these arrests, he “didn’t think the
arrests were proper,” although he believed they were legal. He stated that “if he
62
See, e.g., Conroy Report at 4 (listing the prostitution arrests at the
Blue Door of several men in their forties and fifties with no prior criminal record,
all resolved by the defendants pleading guilty to the non-criminal violation of
disorderly conduct).
63
See generally Pl. 56.1 ¶¶ 45–59.
64
Pinter has argued that his arrest was caused by the City’s desire to
commence civil nuisance abatement actions against video stores and other
businesses frequented by members of the lesbian, gay, bisexual, and transgender
communities. According to Pinter, he was arrested because the City needed to
obtain prostitution arrests at the Blue Door in order to begin its nuisance abatement
litigation, and the City was not concerned about whether the arrests resulted in
convictions. See Pinter I, 710 F. Supp. 2d at 411, 418; Pl. 56.1 at 1–2 & nn. 2, 6;
Pl. 56.1 ¶¶ 63–74. “Nuisance abatement proceedings address continuous public
health, criminal, or unlawful conditions at a premises, not the isolated criminal
activities of any individual.” Pinter I, 710 F. Supp. at 416.
24
would have known about the arrests and the policy he would never have allowed it
to happen.”65
Similarly, a sergeant formerly assigned to Manhattan South Vice told
investigators at IAB that practices he believed to be proper when he was assigned
there, he now believed “could possibly be construed as entrapment.”66 He stated
that “it was not standard operating procedure for undercovers to ask for sex for
money,”67 and that “he could have benefitted from additional[] training . . . , but the
topic of additional training was never addressed.”68 Indeed, the sergeant’s
“knowledge of vice enforcement was gained through hands on experience and not
Department training.”69 He never instructed his officers regarding “the verbal
threshold they could not cross during an operation that would constitute
entrapment,” and “to his knowledge, no member of MS Vice ever conferred with
the Legal Bureau.”70
65
Internal Affairs Bureau, Group 41, Investigating Officer’s Report
(“IAB Report”), Ex. 12 to Meyerson Decl., at 18.
66
Id. at 9.
67
Id. at 8.
68
Id. at 9.
69
Id.
70
Id. at 8.
25
Likewise, a representative of the NYPD Legal Bureau told IAB that
“[t]here are no Department standards regarding entrapment. The Department
prefers to avoid entrapment but it is not a set policy.”71 Although entrapment itself
does not give rise to civil liability, a reasonable jury could find that there is an
obvious risk that officers who are not trained to avoid entrapment in the context of
prostitution arrests like Pinter’s will also carry out arrests without probable cause,
as a reasonable jury could find UC 31107 did at least in Pinter’s case, and perhaps
also in cases of other men at the Blue Door. A reasonable jury could find that the
NYPD failed to make meaningful efforts to address these obvious risks.
3.
Monell Liability Based on Malicious Prosecution
“Section 1983 liability may . . . be anchored in a claim for malicious
prosecution, as this tort ‘typically implicates constitutional rights secured by the
fourteenth amendment, such as deprivation of liberty.’”72
Though section 1983 provides the federal claim, we borrow the
elements of the underlying malicious prosecution tort from state
law. In New York, a plaintiff alleging malicious prosecution must
show: (1) the defendant commenced a criminal proceeding against
him; (2) the proceeding ended in the plaintiff’s favor; (3) the
defendant did not have probable cause to believe the plaintiff was
guilty of the crime charged; and (4) the defendant acted with
71
Id. at 16.
72
Cook v. Sheldon, 41 F.3d 73, 79 (2d Cir. 1994) (quoting Easton v.
Sundram, 947 F.2d 1011, 1017 (2d Cir. 1991)).
26
actual malice.73
“Under New York law, malice does not have to be actual spite or
hatred, but means only ‘that the defendant must have commenced the criminal
proceeding due to a wrong or improper motive, something other than a desire to
see the ends of justice served.’”74 Nevertheless, no reasonable jury could find
based on the record evidence that UC 31107 or the other officers who participated
in Pinter’s arrest did so with actual malice. Rather than offering direct evidence of
an improper motive, Pinter argues that malice may be inferred from the absence of
probable cause.75 He cites Lowth, which states that “the lack of probable cause —
while not dispositive — tends to show that the accuser did not believe in the guilt
of the accused, and malice may be inferred from the lack of probable cause.”76 In
this case, however, the inferential leap from a lack of probable cause to a lack of
belief in the guilt of the accused, much less to malice, would be improper. There is
no evidence that UC 31107 or the other officers did not believe Pinter was guilty of
prostitution. The Second Circuit’s holding that UC 31107 had at the very least
73
Id. (citiations omitted).
74
Lowth v. Town of Cheektowaga, 82 F.3d 563, 573 (2d Cir. 1996)
(quoting Nardelli v. Stamberg, 44 N.Y.2d 500, 502–03 (1978)).
75
See Pl. Opp. at 20 n.26.
76
Lowth, 82 F.3d at 573.
27
arguable probable cause and behaved objectively reasonably further undermines
the inference that a lack of probable cause can support a finding of malice.
Pinter’s malicious prosecution claim against the City, on the other
hand, raises genuine issues of material fact. A reasonable jury could find that the
City was deliberately indifferent to the obvious risk of false arrests like Pinter’s, as
discussed above. A reasonable jury could also find that the City abused the
criminal process for illegitimate ends by carrying out prostitution arrests not in
order to obtain convictions but in order to improve its position in nuisance
abatement negotiations, as discussed below. This scenario provides sufficient
support for the conclusion that Pinter’s arrest resulted from a municipal custom of
commencing criminal proceedings such as his not with a desire to see the ends of
justice served, but based on the improper motive of seeking leverage in nuisance
abatement negotiations. This conclusion would be sufficient to establish “actual
malice” in the limited sense required for a malicious prosecution claim.77
77
See Engel v. CBS, Inc., 93 N.Y. 2d 195, 204 (1999) (stating that the
actual malice requirement is satisfied by a showing that the action was motivated
by “a purpose other than the adjudication of a claim”); Putnam v. County of
Steuben, 876 N.Y.S.2d 819, 821 (4th Dep’t 2009) (“In establishing the element of
actual malice, a plaintiff need not demonstrate the defendant’s intent to do him or
her personal harm, but need only show a reckless or grossly negligent disregard for
his or her rights.” (quotation omitted)). Of course, if the jury were to find that
Pinter’s arrest was based on probable cause, then Pinter’s malicious prosecution
claim would fail.
28
B.
Excessive Force
The Second Amended Complaint alleges that Pinter’s handcuffing
constituted excessive force, and his detention in the police van was unreasonably
long, both in violation of New York law and the Fourth and Fourteenth
Amendments.78 The crux of Pinter’s claim, and the focus of the parties’
submissions, is that his detention in numbingly tight rear handcuffs for three to
four hours in a moving police van was unreasonable and thus violated his rights
under the Fourth Amendment, and that Pinter’s prolonged handcuffing was
pursuant to a custom or policy of the City.79
The Second Circuit
analyzes claims of excessive force arising in the context of an
arrest under the Fourth Amendment’s objective reasonableness
test, paying “careful attention to the facts and circumstances of
each particular case, including the severity of the crime at issue,
whether the suspect poses an immediate threat to the safety of the
officers or others, and whether he is actively resisting arrest or
attempting to evade arrest by flight.”80
“Frequently, a reasonable arrest involves handcuffing the suspect, and
78
See Pl. Opp. at 1–2; Compl. ¶¶ 173, 176.
79
See Pl. Opp. at 1–4; Pl. 56.1 ¶¶ 1–19.
80
Phelan v. Sullivan, No. 12 Civ. 3604, 2013 WL 5183664, at *2 (2d
Cir. Sept. 17, 2013) (quoting Graham v. Connor, 490 U.S. 386, 396 (1989))
(reversing district court’s grant of summary judgment on excessive force claim).
29
to be effective handcuffs must be tight enough to prevent the arrestee’s hands from
slipping out.”81 In addition, “‘[t]here is a consensus among courts in this circuit
that tight handcuffing does not constitute excessive force unless it causes some
injury beyond temporary discomfort.’”82
Nevertheless, “liability may exist where an officer ‘gratuitously
inflict[s] pain in a manner that [is] not a reasonable response to the
circumstances.’”83 The Second Circuit has specifically held that a reasonable jury
could find the following conduct objectively unreasonable under the Fourth
Amendment: pushing an arrestee to the floor and causing him to remain there in a
81
Grant v. City of New York, 500 F. Supp. 2d 211, 217 (S.D.N.Y. 2007).
82
Lozada v. City of New York, No. 12 Civ. 0038, 2013 WL 3934998, at
*5 (E.D.N.Y. July 29, 2013) (quoting Lynch ex rel. Lynch v. City of Mount Vernon,
567 F. Supp. 2d 459, 468 (S.D.N.Y.2008) (collecting cases)). The Second Circuit
has also noted that “there is a general consensus among courts [that] have
addressed the issue that otherwise reasonable force used in handcuffing a suspect
may be unreasonable when used against a suspect whom the officer knows to be
injured,” although “these cases involving handcuffing uniformly concern suspects
who either have visible injuries or are cooperating in their arrests.” Beckles v. City
of New York, 492 Fed. App’x 181, 182 (2d Cir. 2012).
83
Phelan, 2013 WL 5183664, at *2 (quoting Amnesty Am. v. Town of W.
Hartford, 361 F.3d 113, 124 (2d Cir. 2004)). The Second Circuit has “concluded
that summary judgment [on an excessive force claim] was not appropriate . . .
where the plaintiff alleged that a defendant ‘pushed’ her against a car door,
‘yanked’ her out, ‘threw [her] up against the fender,’ and ‘twisted [her] arm behind
[her] back,’ and that she had suffered bruises lasting several weeks,” even though
plaintiff did not seek medical treatment for her injuries.” Id. (quoting Robison v.
Via, 821 F.2d 913, 923–24 (2d Cir. 1987)).
30
painful posture with “unduly tight” handcuffs “for five or six hours.”84
A reasonable jury could find that Pinter experienced pain in his wrists
and numbness in his hands for roughly four hours as a result of the tightness of his
handcuffs, and that the handcuffing resulted in injuries that exceeded temporary
discomfort. Pinter later obtained medical treatment for continuing pain in his
shoulders, arms, wrists, hands, and thumbs caused by the handcuffing.85
Drawing all reasonable inferences in favor of Pinter, a jury could find
that the officers behaved unreasonably under the Fourth Amendment in refusing to
adjust Pinter’s handcuffs after Pinter stated that the handcuffs were becoming
progressively tighter and that his hands were becoming cold and numb, and
requested that the handcuffs be loosened. Initially, Pinter was the only arrestee in
84
Calamia v. City of New York, 879 F.2d 1025, 1035 (2d Cir. 1989).
Accord Beckles v. City of New York, No. 08 Civ. 03687, 2011 WL 722770, at *5
(S.D.N.Y. Feb. 25, 2011), aff’d, 492 Fed. App’x 181 (2d Cir. 2012) (noting that
“proof of an excessively long period of time between restraint and booking” could
“make an otherwise reasonable handcuffing excessive”).
85
See Pl. 56.1 ¶¶ 1–8; Treatment Documents from Dr. Elizabeth A.
Greenberg, D.C., Ex. 7 to Meyerson Decl., at 2. Pinter’s deposition only mentions
cold and numbness in his hands, but a subsequent submission to the Court
mentions “pain and serious discomfort.” Pl. 56.1 ¶ 5. In any case, a reasonable
jury could infer that Pinter experienced pain in his wrists from Pinter’s description
of the tightening handcuffs and from the fact that he later sought treatment for pain
in his hands and wrists. See id. ¶¶ 5, 8 & n.8.
31
the van,86 there was no evidence that he posed any threat or was uncooperative, and
the officers knew or should have known that it might be hours before the handcuffs
would be removed. In addition, Pinter asked the officers to loosen the cuffs, but
they refused. A reasonable jury could find that the officers’ needless refusal to
adjust Pinter’s handcuffs over a prolonged period amounted to the gratuitous
infliction of pain.87
The officers in the van are not entitled to qualified immunity.88 There
is a clearly established constitutional right under the Fourth Amendment to be free
from the use of force “if it is excessive under objective standards of
reasonableness.”89 A reasonable jury could find that the officers acted not only
86
The Supreme Court has held that the need to detain multiple
individuals in an enclosed space “ma[kes] the use of handcuffs all the more
reasonable.” Muehler v. Mena, 544 U.S. 93, 100 (2005).
87
See Amnesty Am., 361 F.3d at 124 (holding that gratuitous infliction of
pain is unreasonable under the Fourth Amendment).
88
I held in Pinter I that “defendants have waived any absolute or
qualified immunity defense as to Pinter’s excessive force and unreasonable
detention claims.” Pinter I, 710 F. Supp. 2d at 434. However, the Second Circuit
directed that “[o]n remand, after such further discovery as may be appropriately
conducted with regard to the remaining claims, the District Court will consider any
further motions from the defendants claiming entitlement to qualified immunity or
judgment on the merits of the abuse of process, discrimination, associational,
excessive force, and unreasonable detention claims.” Pinter II, 448 Fed. App’x at
106.
89
Saucier v. Katz, 533 U.S. 194, 202 (2001).
32
unreasonably, but were “‘plainly incompetent’” or “‘knowingly violate[d] the
law’”90 by gratuitously inflicting pain on Pinter over such an extended period of
time when there is not a shred of evidence that Pinter posed an immediate threat to
their safety, resisted arrest, or attempted to flee.91
Finally, the City is not entitled to summary judgment on Pinter’s
excessive force claim. A reasonable jury could find that the officers in the van
acted in accordance with an unconstitutional policy or custom of the City to leave
arrestees in unduly tight handcuffs for hours at a time in police vans while other
prisoners were collected, without training NYPD officers concerning the proper
use of “double locked” handcuffs or how to respond to complaints regarding pain
caused by handcuffs.92 For example, Manhattan South Vice Commanding Officer
Steven Braille testified that Pinter was treated according to “standard operating
procedure,”93 that the NYPD has no policies or training concerning how to mitigate
the effects of an extended handcuffing,94 and that the NYPD has no policy other
90
Pinter II, 448 Fed. App’x at 103 (quoting Malley, 475 U.S. at 341).
91
See Phelan, 2013 WL 5183664, at *2.
92
See Pl. 56.1 ¶¶ 10–19.
93
Deposition of Manhattan South Vice Commanding Officer Steven
Braille, Ex. 18 to Meyerson Decl., at 154.
94
See id. at 157.
33
than “common sense” regarding when to loosen cuffs in response to a complaint
that they are too tight.95
C.
Unlawful Stop
The Supreme Court has held that under the Fourth Amendment, it is
constitutionally reasonable for the police to “stop and briefly detain a person for
investigative purposes if the officer has a reasonable suspicion supported by
articulable facts that criminal activity ‘may be afoot,’ even if the officer lacks
probable cause.”96 This form of investigative detention is now known as a Terry
stop.97 The test for determining whether a Terry stop is taking place “is whether a
reasonable person would feel free to decline the officers’ requests or otherwise
terminate the encounter.”98
A Terry stop requiring reasonable suspicion may become an arrest
requiring probable cause “if the means of detention are ‘more intrusive than
95
Id. at 158–159.
96
United States v. Swindle, 407 F.3d 562, 566 (2d Cir. 2005) (quoting
United States v. Sokolow, 490 U.S. 1, 7 (1989)) (some quotation marks omitted).
97
See Davis v. City of New York, 902 F. Supp. 2d 405, 411 (S.D.N.Y.
2012) (citing Terry v. Ohio, 392 U.S. 1 (1968)).
98
Florida v. Bostick, 501 U.S. 429, 436 (1991).
34
necessary.’”99
In determining whether an investigatory stop is sufficiently
intrusive to ripen into a de facto arrest, the Second Circuit
considers the “amount of force used by the police, the need for
such force, and the extent to which an individual’s freedom of
movement was restrained, and in particular such factors as the
number of agents involved, whether the target of the stop was
suspected of being armed, the duration of the stop, and the
physical treatment of the suspect, including whether or not
handcuffs were used.”100
“A critical factor in evaluating the intrusiveness of a stop is the length of the
detention.”101 A lengthy detention, however, is not a necessary condition of an
arrest. An investigatory stop may ripen into a de facto arrest if it “continues too
long or becomes unreasonably intrusive.”102 Accordingly, although a Terry stop
may ripen into an arrest, not every arrest arises from a Terry stop.
Pinter argues that prior to his arrest, UC 31107 stopped him “without
reasonable suspicion that the Plaintiff was engaged in any unlawful conduct.”103 In
99
United States v. Tehrani, 49 F.3d 54, 61 (2d Cir. 1995) (quoting
United States v. Perea, 986 F.2d 633, 644 (2d Cir. 1993)).
100
United States v. Vargas, 369 F.3d 98, 101 (2d Cir. 2004) (quoting
Perea, 986 F.2d at 645). Accord United States v. Wiggan, No. 12-2393 CR, 2013
WL 3766535, at *3 (2d Cir. Jul. 19, 2013).
101
United States v. Glover, 957 F.2d 1004, 1011 (2d Cir. 1992).
102
Id.
103
Pl. Opp. at 9.
35
order to evaluate this argument, it is necessary to determine when Pinter was
stopped, if at all, prior to his arrest. According to Pinter’s version of events, he
consented to leave the Blue Door with UC 31107, not knowing that UC 31107 was
an undercover officer. UC 31107 offered to pay him $50 to perform oral sex on
him. Confused and suspicious, Pinter silently decided that nothing would happen
between him and UC 31107, but Pinter continued to walk and talk with UC 31107
because UC 31107’s car was in the same direction as Pinter’s apartment. Pinter
has explicitly conceded that as they walked, he felt free to walk away from UC
31107.104 After they had walked for about a minute, two plainclothes officers
rushed toward Pinter, pushed him into a fence and searched his pockets. When
Pinter saw that one of the men had a badge, he “assumed they were putting me
under arrest.”105 Then the officers placed Pinter in handcuffs and escorted him to
their van.106
No reasonable jury could find that an investigative stop took place in
the moments before Pinter was handcuffed and escorted to the police van. When
the two officers rushed toward Pinter, pushed him against a fence, and searched his
104
See Pinter Dep. at 115.
105
Id. at 122.
106
See generally id. at 99–124.
36
pockets — without any self-protective justification for this use of force, and
without any indication that the encounter was investigatory107 — the intrusiveness
of their actions went beyond what was necessary for an investigatory stop.
Because Pinter’s detention, viewed as a Terry stop, would have been unreasonably
intrusive from the start, it was not a Terry stop at all. It was a sudden arrest — as
Pinter reasonably perceived from the moment he saw that one of the men seizing
him had a badge.
Moreover, even if the opening moments of Pinter’s arrest could be
categorized — for the sake of argument — as a Terry stop, the Second Circuit’s
ruling that UC 31107 had arguable probable cause to arrest Pinter for prostitution
forecloses the possibility that the arresting officers might have lacked reasonable
suspicion for a stop. Neither the Supreme Court nor the Second Circuit has
attempted to quantify the precise probability of criminal conduct that is necessary
to justify a Terry stop, but it is clear that “arguable probable cause” is at least as
strong as “reasonable suspicion” with respect to probable criminality. An officer
107
“[W]here an officer has a reasonable basis to think that the person
stopped poses a present physical threat to the officer or others, the Fourth
Amendment permits the officer to take ‘necessary measures . . . to neutralize the
threat’ without converting a reasonable stop into a de facto arrest.” United States
v. Newton, 369 F.3d 659, 674 (2d Cir. 2004) (quoting Terry, 392 U.S. at 24).
Neither side has argued that the arresting officers’ use of force would have been
necessary as self-protective measures in an investigatory stop of Pinter.
37
who has arguable probable cause for an arrest also, by definition, has a sufficient
evidentiary basis to justify a Terry stop.
In sum, drawing all reasonable inferences in Pinter’s favor, Pinter was
free to leave until the moment he was arrested, and at the moment he was arrested,
the arresting officers had sufficient evidence to justify an investigative stop.
Defendants are entitled to summary judgment on Pinter’s claimed Fourth
Amendment violation based on a pre-arrest stop.
D.
Right to Expressive Association
“The United States Constitution affords protection to two distinct
types of association, ‘intimate association’ and ‘expressive association.’”108 The
right to intimate association, which is implied by the Bill of Rights’ protection of
the “fundamental element[s] of personal liberty,” entails that the choice to enter
into and maintain certain intimate, identity-defining human relationships — such
as marriage, parenthood, and cohabitation with family — “must be secured against
undue intrusion by the State.”109 The right to expressive association arises under
the First Amendment, because “‘implicit in the right to engage in activities
108
Sanitation & Recycling Indus., Inc. v. City of New York, 107 F.3d 985,
995–96 (2d Cir. 1997) (citing Roberts v. United States Jaycees, 468 U.S. 609,
617–18 (1984); City of Dallas v. Stanglin, 490 U.S. 19, 23–25 (1989)).
109
Roberts, 468 U.S. at 617–20.
38
protected by the First Amendment’ is ‘a corresponding right to associate with
others in pursuit of a wide variety of political, social, economic, educational,
religious, and cultural ends.’”110 “The First Amendment’s protection of expressive
association is not reserved for advocacy groups. But to come within its ambit, a
group must engage in some form of expression, whether it be public or private.”111
The Second Circuit has made clear that “[t]he Constitution does not recognize a
generalized right of social association. The right [of association] generally will not
apply, for example, to business relationships, chance encounters in dance halls, or
paid rendezvous with escorts.”112
The Second Amended Complaint alleges the violation of Pinter’s
“right ‘to associate’ with the business entities where he desires to do business”
under the First and Fourteenth Amendments and “the laws and Constitution of the
State of New York.”113 In light of the arguments in Pinter’s opposition to summary
judgment, however, Pinter’s right of association claim is more simply stated as a
Section 1983 claim against all defendants, including the City under Monell, based
110
Boy Scouts of Am. v. Dale, 530 U.S. 640, 647 (2000) (quoting
Roberts, 468 U.S. at 622).
111
Id. at 648.
112
Sanitation, 107 F.3d at 996 (citations omitted).
113
Compl. ¶¶ 178–183.
39
on a violation of Pinter’s First Amendment right to expressive association with the
Blue Door.114
The relationship between the Blue Door and its customers falls
outside the ambit of the First Amendment’s protection of expressive association.115
While the videos available at the Blue Door contain expression that is entitled to
First Amendment protection, the sale or renting of expressive materials does not by
itself create an expressive association between the participants in the transaction.
Moreover, Pinter makes clear that his claim “does not revolve around his right to
associate, socially, with any individual or individuals at the Blue Door,” but rather
“is about [his] right to shop at a retail establishment of his choice.”116 Because
114
See Pl. Opp. at 11–12 (citing only First Amendment in opposition to
summary judgment on right of association claim); id. at 13–16 (Monell claim,
including based on First Amendment violations).
115
See In re Grand Jury Subpoena Served upon Crown Video Unlimited,
Inc., 630 F. Supp. 614, 619 (E.D.N.C. 1986) (“While the videotapes involved in
such commercial transactions are a form of speech protected by the first
amendment, the commercial relationship arising from such transactions itself is not
protected as an associational right arising under the first amendment.” (citation
omitted)). See also In re PHE, Inc., 790 F. Supp. 1310, 1317 (W.D. Ky. 1992)
(holding that commercial relationship between seller of “sexually candid
magazines and films” and its customers was not protected as an associational right,
where seller “provided no information suggesting that it has advocated, in tandem
with its clients, any political, economic, religious, or cultural beliefs through their
commercial relationship which would give rise to a recognized protected status
under the first amendment”).
116
Pl. Opp. at 12.
40
Pinter’s claim arises entirely from alleged interference in a non-expressive
commercial relationship, his claim does not assert a violation of the right to
expressive association under the First Amendment and cannot withstand summary
judgment.
E.
Discriminatory Treatment Based on Sexual Orientation
The Equal Protection Clause of the Fourteenth Amendment declares
that “[n]o State shall . . . deny to any person within its jurisdiction the equal
protection of the laws.”117 The Clause “is essentially a direction that all persons
similarly situated should be treated alike.”118 It prohibits intentional discrimination
on the basis of protected classifications such as race and sexual orientation, but not
government action that merely has a disproportionate impact on those classes.119
To prevail on a claim of selective enforcement, plaintiffs in this
Circuit traditionally have been required to show both (1) that they
were treated differently from other similarly situated individuals,
and (2) that such differential treatment was based on
“impermissible considerations such as race, religion, intent to
inhibit or punish the exercise of constitutional rights, or malicious
117
U.S. CONST. amend. XIV § 1.
118
City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439
(1985).
119
See Washington v. Davis, 426 U.S. 229, 239–40 (1976); Windsor, 699
F.3d at 181 (concluding that homosexuality qualifies as a quasi-suspect
classification deserving of heightened scrutiny).
41
or bad faith intent to injure a person.”120
Pinter argues that he was targeted by the police because of his sexual
orientation: “UC 31107 target[ed] the Plaintiff and went up to the Plaintiff simply
because he perceived the Plaintiff to be a gay man and because the Blue Door was
believed to be a location where gay men engaged in prostitution.”121 Pinter does
not identify similarly situated individuals who were treated differently than him.122
As an initial matter, I note that once UC 31107 was assigned the role
of someone seeking a gay male prostitute, the Equal Protection Clause did not
require him to approach straight and gay men in equal proportion. If intentional
120
Harlen Assocs. v. Incorporated Vill. of Mineola, 273 F.3d 494, 499
(2d Cir. 2001) (quoting LaTrieste Rest. & Cabaret v. Village of Port Chester, 40
F.3d 587, 590 (2d Cir. 1994)). Accord Doninger v. Niehoff, 642 F.3d 334, 357 (2d
Cir. 2011).
121
Pl. Opp. at 12.
122
Instead, Pinter offers the following analogy: “assuming that the Blue
Door Video Store had received complaints that African American males were
engaged in drug dealing inside of the establishment, an undercover agent could not
target any African American male inside of the store and without a reasonable
suspicion that the male was engaged in drug dealing.” Id. at 13 n.18. As discussed
above, however, Pinter was not stopped prior to his arrest. See supra Part III.C. In
addition, Pinter’s analogy blurs the line between his Fourth and Fourteenth
Amendment claims. The hypothetical stops of African Americans clearly lack
reasonable suspicion, and thus violate the Fourth Amendment. See Swindle, 407
F.3d at 566. It is less clear whether the hypothetical stops violate the Equal
Protection Clause, because the hypothetical does not clarify whether the officer
intentionally treated African Americans differently than similarly situated nonAfrican Americans. See Washington, 426 U.S. at 239–40.
42
discrimination based on sexual orientation took place in this case, it took place in
the NYPD’s choice to assign undercover officers to solicit gay male prostitutes in
the Blue Door and other Manhattan video stores in the first place. But Pinter has
provided no evidence that the NYPD treated the problem of gay prostitution at
video stores differently than the problem of straight prostitution at similar locations
or businesses. Pinter has provided no comparative evidence to support the
conclusion that the NYPD’s enforcement activity at the Blue Door and other video
stores constituted intentional discrimination against gays.123
Pinter states that “[e]very individual arrested at video stores in the
Manhattan South geographic area for the crime of prostitution . . . [was] male.”124
But the supporting evidence for this assertion only shows that the prostitution
arrests at a number of Manhattan video stores were of males, not that the males
were gay, nor that there were no arrests of female prostitutes at other Manhattan
video stores.125 Indeed, at least one of the documents listing prostitution arrests at
123
See Pl. 56.1 ¶¶ 33–44; Pl. Opp. at 12–13.
124
Pl. 56.1 ¶ 34.
125
See generally Conroy Report. Of course if all the undercovers were
male, then it may be fair to assume that all of the arrestees were gay.
43
video stores describes complaints regarding prostitution by underage females.126
Even assuming that the NYPD was systematically targeting gay prostitution at
certain Manhattan video stores, no reasonable jury could infer from this that the
NYPD was not also systematically targeting straight prostitution elsewhere.
Evidence that the NYPD dedicated some of its resources to combating a criminal
activity that bears an inevitable relation to sexual orientation — such as
prostitution in a locale frequented by gay men — is insufficient in the absence of
comparative evidence to support the conclusion that the NYPD intentionally
discriminated based on sexual orientation.127
126
See id. at 3. In addition, as defendants note, Pinter concedes that “the
arrestees of the enforcement team on the evening of Plaintiffs’ arrest were male
and female, arrested in three different places.” Def. Reply at 4 (citing Pinter Dep.
at 132).
127
I note that the facts of this case are quite different from those in Floyd
v. City of New York, No. 08 Civ. 1034, 2013 WL 4046209 (S.D.N.Y. Aug. 12,
2013), which also dealt with allegations of discrimination by the NYPD. In
particular, Pinter does not allege that the NYPD responded to evidence of gay
prostitution at video stores by directing its officers to target gay men near video
stores for enforcement activity in general — stopping them while not stopping
equally suspicious straight men, arresting them while not arresting straight men
displaying identical behavior, and doing so regardless of whether the stop or arrest
had anything to do with prostitution. If there had been evidence of this kind of
selective enforcement, Pinter would have had a much stronger claim for intentional
discrimination based on sexual orientation. Cf. id. at *7, *72–74 (holding that the
Equal Protection Clause prevents the police from targeting a protected group for
heightened levels of general enforcement activity based on the disproportionate
representation of that group in local crime complaints).
There are any number of scenarios in which the targeting of gays for
44
F.
Malicious Abuse of Criminal Process
“In New York, a malicious abuse of process claim lies against a
defendant who (1) employs regularly issued legal process to compel performance
or forbearance of some act (2) with intent to do harm without excuse or
justification, and (3) in order to obtain a collateral objective that is outside the
legitimate ends of the process.”128 The malicious abuse of criminal process may
give rise to a Section 1983 claim, because the resulting deprivation of liberty is
“‘by definition a denial of procedural due process.’”129
police enforcement activity could result in an equal protection violation. For
example, if an analysis of all NYPD arrests of men for prostitution or solicitation
based on undercover operations revealed that all or nearly all of the men arrested
were gay, while other evidence demonstrated that many men engaged in
prostitution or solicitation were straight, and if the plaintiff could also provide
sufficient evidence of discriminatory intent, then a reasonable jury could conclude
that the NYPD was selectively enforcing the prostitution laws against gay men in
violation of the equal protection clause. Pinter has simply failed to provide
sufficient evidence — and in particular comparative evidence — for a reasonable
jury to find that such a violation took place here.
128
Cook, 41 F.3d at 80 (citing Curiano v. Suozzi, 63 N.Y.2d 113, 116
(1984); Board of Educ. v. Farmingdale Classroom Teachers Ass’n, 38 N.Y.2d 397,
403 (1975)). A classic example of abuse of process can be found in Dishaw v.
Wadleigh, 44 N.Y.S. 207 (1897), which “involved an attorney who assigned claims
to an associate living in another part of the State for the purpose of having the
associate institute proceedings,” so that defendants would find it easier “to pay the
claim than to submit to the discomfort and expense of attending a distant court.”
Farmingdale, 38 N.Y.2d at 402 (discussing Dishaw, 44 N.Y.S. at 207).
129
Cook, 41 F.3d at 80 (quoting Jennings v. Shuman, 567 F.2d 1213,
1220 (3d Cir. 1977)). Traditionally, it has been said that “[w]hile malicious
45
The Second Circuit has held that “to state a claim for abuse of
criminal process, it is not sufficient for a plaintiff to allege that the defendants were
seeking to retaliate against him by pursuing his arrest and prosecution. Instead, he
must claim that they aimed to achieve a collateral purpose beyond or in addition to
prosecution concerns the improper issuance of process, ‘[t]he gist of abuse of
process is the improper use of process after it is regularly issued.’” Id. (quoting 2
COMMITTEE ON PATTERN JURY INSTRUCTIONS, ASSOCIATION OF SUPREME COURT
JUSTICES, NEW YORK PATTERN JURY INSTRUCTIONS § 3:51 at 816 (1968)). Accord
Lopez v. City of New York, 901 F. Supp. 684, 691 (S.D.N.Y. 1995) (“The pursuit of
a collateral objective must occur after the process is issued; the mere act of issuing
process does not give rise to a claim.”); Curiano, 63 N.Y.2d at 117.
However, the meaning of the word “after” in this context is unclear. It
appears to require that the abuser of process first obtain regularly issued process,
and then carry out some independent second act that constitutes the abuse. But the
case law does not reflect this requirement. Often, the regular issuance of process is
the abuse. For example, in Farmingdale, the New York Court of Appeals held that
the following could constitute abuse of process: “subpoenaing, with the intent to
harass and to injure, 87 teachers and refusing to stagger their appearances,” in
order “to inflict economic harm on the school district.” Farmingdale, 38 N.Y.2d at
399, 404. The Farmingdale defendants’ abuse lay in their preparing and issuing
the subpoenas, not in any subsequent act — unless the abuse is arbitrarily defined
not as their issuing of the subpoenas, but as their refusal to reschedule them. The
latter reasoning does not appear in Farmingdale, which treats the refusal to
reschedule merely as evidence of the defendants’ original motive. See id. at 404.
More recently, the New York Court of Appeals questioned whether
the requirement that process be abused “after” it is issued “should be viewed as a
strict and limiting definition of the tort or whether it is merely illustrative.” Parkin
v. Cornell Univ., Inc., 78 N.Y.2d 523, 530 (1991). “Nothing in this Court’s
holdings would seem to preclude an abuse of process claim based on the issuance
of the process itself.” Id. Nevertheless, the Court of Appeals left the question
open, and so it remains. See Widget v. Town of Poughkeepsie, No. 12 Civ. 3459,
2013 WL 1104273, at *8 n.7 (S.D.N.Y. Mar. 18, 2013).
46
his criminal prosecution.”130 In other words, the proper use of legal process based
on an improper or malicious motive such as a desire for retaliation is insufficient to
satisfy the “collateral objective” requirement.131 There must be an abuse of
process, that is, a use of process that has as its direct object the achievement of an
improper and ulterior “purpose or objective.”132 Finally, while the law is not
130
Savino v. City of New York, 331 F.3d 63, 77 (2d Cir. 2003) (emphasis
added). I note that these statements are difficult to reconcile with the holding of
Cook, where the Second Circuit found an actionable abuse of process based on
plaintiff’s allegation that defendants fraudulently arraigned him and then held him
in custody as retribution for legal advice he had given to a third party. See Cook,
41 F.3d at 80 (citing Farmingdale, 38 N.Y.2d at 404, which states: “Where
process is manipulated to achieve some collateral advantage, whether it be
denominated extortion, blackmail or retribution, the tort of abuse of process will be
available to the injured party.”). Accord Abreu v. Romero, 466 Fed. App’x 24, 26
(2d Cir. 2012) (“To make out [an abuse of process claim, the plaintiff] was
required to demonstrate that the defendants employed legal process ‘in order to
obtain a collateral objective that is outside the legitimate ends of the process,’ such
as retribution.” (quoting Cook, 41 F.3d at 80) (emphasis added)).
131
See Savino, 331 F.3d at 77–78 (citing Dean v. Kochendorfer, 237
N.Y. 384 (1924) (distinguishing between improper motive and improper purpose)).
See also Hauser v. Bartow, 273 N.Y. 370, 374 (1937) (finding no abuse of process
because “whatever may have been respondent’s motives, she used the process of
the court for the purpose for which the law created it”).
132
Savino, 331 F.3d at 78. The distinction between a proper use of
process based on a malicious motive, and an improper abuse of process to achieve
a collateral objective, is not always easy to discern. Indeed, when a party employs
process based in part on malice toward an adversary, the party ordinarily seeks to
harm the adversary. This harm is outside the legitimate ends of the process. It is
difficult to see why such harm should not be called, in every case, a “collateral
objective” of the party’s use of process, in satisfaction of the third element of an
abuse of process claim. The distinction between improper motive and improper
47
entirely settled on this point, the weight of authority holds that the presence of
probable cause negates a claim for abuse of criminal process.133
purpose, cited with approval in Savino, is similarly difficult to apply. See id. at 77
(citing Dean, 237 N.Y. at 384). When a party employs regularly issued process
with the improper motive of harming an adversary, the resulting harm could also be
described as “an ulterior purpose or objective” of the party’s use of the process. Id.
at 78.
Rather than attempting to determine whether the use of process was
based on an improper “purpose” or merely an improper “motive,” the canonical
New York case law suggests that it might be more pertinent to inquire whether the
use of process was sufficiently pretextual as to constitute abuse:
Compare Curiano, 63 N.Y.2d at 117 (no abuse of process where
defendant initiated libel action with [secondary] purpose of
punishing free speech and electoral participation and inflicting
expense and burden), and Hauser, 273 N.Y. at 374 (no abuse of
process where the defendant initiated incompetency proceeding
with [secondary] purpose of damaging the alleged incompetent
and enriching herself), with [Farmingdale, 38 N.Y.2d at 404]
(abuse of process where the defendant subpoenaed 87 of school
district’s teachers to testify on the same day with [actual] purpose
of inflicting economic harm on the school district)[, and Dean,
237 N.Y. at 390] (abuse of process where magistrate issued an
arrest warrant for disorderly conduct with [actual] purpose of
bringing arrested person into court for an unrelated disciplinary
rebuke).
Jones v. Maples/Trump, No. 98 Civ. 7132, 2002 WL 287752, at *7 (S.D.N.Y. Feb.
26, 2002), aff’d sub nom. Jones v. Trump, 71 Fed. App’x 873 (2d Cir. 2003).
Accord Chrysler Corp. v. Fedders Corp., 540 F. Supp. 706, 727 (S.D.N.Y. 1982)
(in abuse of process claim, “the plaintiff must . . . be able to show a pretextual use
of seemingly proper process”).
133
See Jones v. J.C. Penny’s Dep’t Stores Inc., 317 Fed. App’x 71, 74
(2d Cir. 2009) (“The conclusion that Jones could not prevail on her claims that the
officers lacked probable cause for her arrest or that they discriminated against her
48
As stated above, a reasonable jury could find that Pinter was arrested
without probable cause. Drawing all reasonable inferences in favor of Pinter, there
is also sufficient evidence in the record for a jury to find that the City had a custom
of arresting gay men for prostitution without probable cause in order to obtain the
collateral objective of commencing nuisance abatement proceedings against video
stores frequented largely, although not entirely, by members of the gay, lesbian,
bisexual, and transgender communities. The use of prostitution arrests for leverage
in negotiations over nuisance abatements, without any apparent interest in
conviction, is not a proper purpose for carrying out a program of prostitution
arrests. In addition, to the extent that the City maintained a custom of carrying out
false arrests, a reasonable jury could infer that the City intended to harm those who
were arrested. The City also knew or should have known that false arrestees like
Pinter would be harmed. Finally, the goal of nuisance abatement does not provide
based on her race required dismissal of her state and federal claims of abuse of
process.”); Sforza v. City of New York, No. 07 Civ. 6122, 2009 WL 857496, at *17
(S.D.N.Y. Mar. 31, 2009) (“While a lack of probable cause is not explicitly an
element of an abuse of process claim, the presence of probable cause negates a
claim for abuse of process, particularly the second element.” (citing Rosen v.
Hanrahan, 768 N.Y.S.2d 818, 819 (2003))). But see Disorbo v. Hoy, 74 Fed.
App’x 101, 103 (2d Cir. 2003) (“[L]iability for abuse of process does not require a
showing of the lack of probable cause.” (citing Shain v. Ellison, 273 F.3d 56, 68
(2d Cir. 2001))). Disorbo’s analysis is questionable. Shain recites the elements of
an abuse of process claim, but does not state that such a claim can succeed despite
the presence of probable cause. See Shain, 273 F.3d at 68.
49
an “excuse” or “justification” in the relevant sense.
In light of the above, a reasonable jury could conclude that the custom
of prostitution arrests that resulted in Pinter’s arrest constituted an abuse of
criminal process.134 Pinter has a triable abuse of process claim under Section 1983
against the City. However, the Second Circuit’s conclusion that the individual
defendants had arguable probable cause forecloses Pinter’s abuse of process claims
against them.135
Pinter also brought an abuse of process claim under state law.
Defendants argue that Pinter’s state law claim for abuse of process is barred
because he failed to file a timely notice of claim.136 Under New York law, a
134
For the purpose of an abuse of criminal process claim, an arrest may
be considered as “regularly issued process.” See Widget, 2013 WL 1104273, at *8
(citing Cook, 41 F.3d at 80; Tadco Constr. Corp. v. Dormitory Auth. of N .Y., 700
F. Supp. 2d 253, 272 (E.D.N.Y. 2010)). I also note that the fact that Pinter’s arrest
may not have been based on probable cause, and thus could be considered
“irregular” criminal process, is not fatal to Pinter’s claim. Cook illustrates that
irregular process — in that case, an arraignment known to be based on an arrest
lacking probable cause — can constitute abuse of criminal process. See Cook, 41
F.3d at 80.
135
See Ketchuck v. Boyer, No. 10 Civ. 870, 2011 WL 5080404, at *8
(N.D.N.Y. Oct. 25, 2011) (holding that “arguable probable cause provides an
objectively reasonable justification for issuing process,” and thus gives rise to
qualified immunity against an abuse of process claim no less than against a false
arrest claim).
136
See Def. Mem. at 16, n. 3.
50
plaintiff in a tort action against a municipality must file a notice of claim “within
ninety days after the claim arises.”137 Pinter filed his notice of claim on August 22,
2009. Defendants assert that a claim for abuse of process arises “at the time that
the process is issued, or at the latest, by the time plaintiff is aware of the abuse.”138
Thus, defendants argue that the claim arose either on October 10, 2008, the date of
Pinter’s arrest, or at the very latest, on February 11, 2009, when Pinter “met with
members of the NYPD in New York City Council Speaker Christine Quinn’s
office.”139 Plaintiff responds that the claim did not accrue “until the relevant
Criminal Court proceedings conclude[d]” with the dismissal of the complaint on
June 22, 2009, rendering his notice of claim timely.140
Under New York law, favorable termination is not an element of the
abuse of process claim and “accrual of a cause of action for abuse of process need
not await the termination of an action in claimant’s favor.”141 “[A] claim for abuse
of process accrues at such time as the criminal process is set in motion,” unless the
plaintiff is unaware, though no fault of his own, of facts supporting the claim, in
137
N.Y. Gen. Mun. L. §§ 50-e and 50-i.
138
Def. Mem. at 16.
139
Id.
140
Pl. Opp. at 24.
141
Cunningham v. New York, 53 N.Y. 851, 853 (1981).
51
which case the cause of action accrues upon discovery.142 Because Pinter was
aware of the underlying facts supporting an abuse of process claim at least as of
February 2009, his state law claim for abuse of process is barred for failure to file a
timely notice of claim.
G.
Shari Hyman
“Those [prosecutorial] acts that are ‘intimately associated with the
judicial phase of the criminal process’ [are] shielded by absolute immunity, but not
‘those aspects of the prosecutor’s responsibility that cast him in the role of an
administrator or investigative officer rather than that of advocate.’”143 In Pinter I, I
provisionally granted defendants’ motion for summary judgment as to plaintiffs’
claims against Shari Hyman, the Director of the Office of Special Enforcement,
which prosecuted the nuisance abatement proceedings against the Blue Door.144 I
noted, however:
Hyman may have . . . been functioning in an investigatory role
when she promulgated and implemented the alleged policy, akin
142
Diamutef v. Morris, 956 F. Supp. 1112, 1118 (S.D.N.Y. 1997).
Accord Singleton v. City of New York, 632 F.2d 185, 192 (2d Cir. 1995) (“The
crucial time for accrual purposes is when the plaintiff becomes aware that he is
suffering from a wrong for which damages may be recovered in a civil action.”).
143
Cornejo v. Bell, 592 F.3d 121, 127 (2d Cir. 2010) (quoting Briscoe v.
LaHue, 460 U.S. 325, 342 (1983)).
144
See Pinter I, 710 F. Supp. 2d at 423–25.
52
to when a prosecutor provides advice to the police during the
investigative phase of a criminal case. If Pinter discovers that
Hyman acted in an investigatory capacity — and such an act was
not “integral” to her advocacy functions — then he may amend
his Complaint accordingly. Should that occur, it will be necessary
for me to revisit the question of whether Hyman is entitled to
absolute immunity.145
Pinter now seeks leave to amend his Complaint to add Hyman as an
individual defendant.146 Defendants object that Pinter should be required to file a
separate motion with this request.147
No separate motion practice is necessary, however, because Pinter has
failed to discover evidence sufficient to justify revisiting this Court’s prior finding
of absolute immunity. The investigatory acts that Hyman allegedly carried out —
a web search for Blue Door and a request for evidence from the NYPD as part of
her initiation of the nuisance abatement action148 — were part of “‘the
organization, evaluation, and marshalling of . . . evidence’” that is integral to her
145
Id. at 425.
146
See Pl. Opp. at 25.
147
See Def. Reply at 9.
148
See Pl. Opp. at 26–27. Pinter also alleges that Hyman called the
Manhattan South Vice on October 10, 2008, the date of Pinter’s arrest, and
requested that they “engage in a prostitution crime related arrest activity” at the
Blue Door. Id. at 27. No evidence cited by Pinter supports this allegation. See Pl.
56.1 ¶ 76; Deposition of Shari Hyman, Ex. 27 to Meyerson Decl., at 180–181.
53
advocacy functions.149 Pinter’s claims against Hyman are dismissed with
prejudice.
H.
Supervisory Liability and Other Individual Defendants
“Because vicarious liability is inapplicable to . . . [Section] 1983 suits,
a plaintiff must [prove] that each Government-official defendant, through the
official’s own individual actions, has violated the Constitution.”150 Pinter’s
opposition to summary judgment offers a conclusory paragraph stating that named
defendants Sergeant Michael Madison, Deputy Chief Brian Conroy, Chief
Anthony Izzo, Chief Joseph Esposito, and Police Commissioner Raymond Kelly
bear supervisory liability — without explaining how any of these individuals
violated Pinter’s rights through their own actions.151 As defendants accurately note
in their reply brief, Pinter’s conclusory paragraph does not show “any
constitutional violation on the part of the [individual supervisory] Defendants,”
including Mayor Bloomberg.152 Nor does Pinter’s Rule 56.1 Counter-Statement
149
Ying Jing Gan v. City of New York, 996 F.2d 522, 528 (2d Cir. 1993)
(quoting Barbera v. Smith, 836 F.2d 96, 100 (2d Cir. 1987)).
150
Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). Accord Bouche v. City of
Mount Vernon, No. 11 Civ. 5246, 2012 WL 987592, at *8 (S.D.N.Y. Mar. 23,
2012).
151
See Pl. Opp. at 27–28.
152
Def. Reply at 10.
54
contain evidence that could support the liability of any of the supervisory
defendants. 153
IV.
CONCLUSION
For the foregoing reasons, Pinter's motion to disregard ~Monell is
denied. Defendants' motion for summary judgment is granted in part and denied
in part. Pinter may proceed on his false arrest, malicious prosecution, excessive
force, and abuse of process claims against the City under Monell. Pinter may
proceed on his excessive force claim against the individual NYPD personnel in the
van. Pinter's state law abuse of process claim is dismissed. Hyman is dismissed
from the litigation based on absolute immunity. All remaining individual
defendants are also dismissed.
The Clerk of the Court is directed to close the parties' motions [Dkt.
Nos. 67, 83]. A conference is scheduled for October 31, 2013 at 4:30 p.m.
Dated:
New York, New York
October 10, 2013
See PI. 56.1. Accord City Defendant's Statement of Undisputed Facts
Pursuant to Local Civil Rule 56.1 ~~ 18-55.
153
55
- Appearances For Plaintiff:
For Defendants:
James I. Meyerson, Esq.
64 Fulton Street, Suite 502
New York, NY 10038
(212) 226-3310
Dara Olds
Senior Counsel
Special Federal Litigation Division
Law Department
City of New York
100 Church Street, Room 3-198
New York, NY 10007
(212) 356-2385
Jeffrey A. Rothman, Esq.
315 Broadway, Suite 200
New York, NY 10007
(212) 227-2980
56
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