Schoolcraft v. The City Of New York et al

Filing 343

SUPPLEMENTAL MEMORANDUM OF LAW in Support re: 297 MOTION for Summary Judgment . . Document filed by Christopher Broschart(Tax Id. 915354 in his official capacity), Christopher Broschart(Tax Id. 915354 Individually), Timothy Caughey(Tax Id. 885374 Individually), Timothy Caughey(Tax Id. 885374 in his official capacity), Kurt Duncan(Shield No. 2483, Individually), Kurt Duncan(Shield No. 2483 in his official capacity), William Gough(Tax Id. 919124, Individually), William Gough(Tax Id. 919124, in his Official Capacity), Elise Hanlon(in her official capacity as a lieutenant with the New York City Fire Department), Elise Hanlon(individually), Shantel James(Shield No. 3004 in his official capacity), Shantel James(Shield No. 3004 Individually), Theodore Lauterborn(Tax Id. 897840 in his official capacity), Theodore Lauterborn(Tax Id. 897840, Individually), Michael Marino, Michael Marino, Gerald Nelson(Assistant Chief Patrol Borough Brooklyn North, Tax Id. 912370 in his official capacity), Gerald Nelson(Assistant Chief Patrol Borough Brooklyn North, Tax Id. 912370, Individually), Frederick Sawyer(Shield No. 2576 in his official capacity), Frederick Sawyer(Shield No. 2576, Individually), The City Of New York, Timothy Trainer(Tax Id. 899922, in his Official Capacity), Timothy Trainer(Tax Id. 899922, Individually). (Shaffer, Ryan)

10-CV-6005 (RWS)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

ADRIAN SCHOOLCRAFT,
Plaintiff,
-againstTHE CITY OF NEW YORK, et al.,
Defendants.

REVISED MEMORANDUM OF LAW IN
SUPPORT OF
CITY DEFENDANTS’ MOTION FOR
PARTIAL SUMMARY JUDGMENT

ZACHARY W. CARTER

Corporation Counsel of the City of New York
Attorney for Defendants
100 Church Street
New York, N.Y. 10007
Of Counsel: Ryan G. Shaffer
Tel: [phone]
Matter #: 2010-033074

TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ...........................................................................................................v
PRELIMINARY STATEMENT .................................................................................................... 1
ARGUMENT
POINT I
PLAINTIFF’S UNLAWFUL SEARCH AND
ENTRY ClAIMS FAIL............................................................................... 1
A. Plaintiff’s Unlawful Search and Entry Claims
Against Defendants Marino, Lauterborn,
Gough, Duncan, Broschart, and Hanlon Fail as
a Matter of Law. .................................................................................. 1
B. Plaintiff Has Not Alleged That Defendants
Wilson, Wall, O’Hare, Trainor, Hanley,
Nelson, Caughey, Sawyer and James
Unlawfully Searched and/or Seized Him. ........................................... 5
POINT II
PLAINTIFF’S FALSE ARREST AND FALSE
IMPRISONMENT CLAIMS FAIL PURSUANT
TO NEW YORK’S MENTAL HEALTH AND
HYGIENE LAW ......................................................................................... 6
POINT III
PLAINTIFF’S FIRST AMENDMENT CLAIM
SHOULD BE DISMISSED. ..................................................................... 10
A. Plaintiff Does Not Have an Interest Protected
by the First Amendment. ................................................................... 11
B. City Defendants’ Actions Were Not Motivated
By Plaintiff’s Speech. ........................................................................ 11
C. Plaintiff’s First Amendment Right Was Not
Chilled................................................................................................ 13
D. Defendant Timothy Trainor Must Be
Dismissed........................................................................................... 15

Page
POINT IV
LACK OF PERSONAL INVOLVEMENT. ............................................. 15
A. Defendants Trainor, Nelson, Caughey,
Lauterborn and Hanlon ...................................................................... 15
B. Defendant Gerald Nelson .................................................................. 15
C. Defendant Timothy Caughey. ............................................................ 16
POINT V
PLAINTIFF CANNOT DEMONSTRATE A
CONSPIRACY SUFFICIENT TO SURVIVE
SUMMARY JUDGMENT. ...................................................................... 18
A. The Intra-Corporate Conspiracy Doctrine Bars
Liability for Any Conspiracy Amongst
Members of the NYPD. ..................................................................... 18
B. There is No Evidence Of a Conspiracy
Between City Defendants and Individuals
Outside of the NYPD. ........................................................................ 19
POINT VI
INTENTIONAL INFLICTION OF EMOTIONAL
DISTRESS CANNOT SUCCEED WHERE THE
UNDERLYING CLAIMS FALL WITHIN
TRADITIONAL TORT LIABILITY. ...................................................... 21
POINT VII
COMMON LAW NEGLIGENCE AGAINST A
MUNICIPALITY MAY ONLY STAND WHERE
A PLAINTIFF ALLEGES THAT A DEFENDANT
ACTED OUTSIDE THE SCOPE OF HIS
EMPLOYMENT. ...................................................................................... 22

- ii -

Page
POINT VIII
PLAINTIFF’S CLAIM OF NELIGENT
DISCLOSURE OF IAB COMPLAINTS FAILS AS
A MATTER OF LAW. ............................................................................. 23
A. Plaintiff’s Claim of Negligent Disclosure Is
Barred by Public Policy. .................................................................... 24
1.

Negligent Investigation Is Not a Valid
Cause of Action. ..........................................................................24

2.

Plaintiff Cannot Transmogrify an
Intentional Tort Into One of Negligence. ....................................24

B. IAB Did Not Owe Plaintiff a Duty of
Confidentiality. .................................................................................. 25
C. Plaintiff’s Claim of Negligent Disclosure Fails
Because the Disclosure Was Made to an
Individual with a Right to That Information...................................... 28
POINT IX
PLAINTIFF CANNOT ASSERT A CLAIM FOR
MALICIOUS ABUSE OF PROCESS BECAUSE
HE WAS NOT HELD PURSUANT TO LEGAL
PROCESS. ................................................................................................ 29
POINT X
PLAINTIFF CANNOT SURVIVE SUMMARY
JUDGMENT ON ANY OF HIS THEORIES OF
MUNICIPAL LIABILITY........................................................................ 30
A. Plaintiff Has Not Alleged Conduct By the
Official Policy Maker. ....................................................................... 32
B. Plaintiff’s Claim of an Unlawful Practice Fails
Because He Has Not Alleged and Cannot Show
Conduct Sufficient to Demonstrate a “Custom
or Usage” Indicating Acquiescence. .................................................. 33
1.

Plaintiff’s Claims of Intimidation and
Threats of Retaliation and Intentionally
Leaking IAB Complaints Fail. ....................................................33
- iii -

Page
2.

Contemporaneous Conduct Cannot
Establish a Pattern of Violations to Put the
City on Notice. ............................................................................36

3.

Plaintiff Fails To Establish A Causal
Connection. .................................................................................37

C. Plaintiff Cannot Demonstrate Deliberate
Indifference. ....................................................................................... 38
1.

Plaintiff Cannot Demonstrate Deliberate
Indifference to Disciplining Supervisors. ...................................39

2.

Plaintiff Has Not Brought Claims Against
Any Policy Makers. .....................................................................43

3.

Failure to Train...........................................................................44

D. Plaintiff Must Establish a Violation of His
Constitutional Rights to Assert Municipal
Liability.............................................................................................. 46
1.

Plaintiff Has Not Alleged a Valid First
Amendment Claim for Retaliation. .............................................46

2.

Plaintiff’s Claims of An Alleged Quota
Fail. .............................................................................................46

POINT XI
PLAINTIFF IS NOT ENTITLED TO
DECLARATORY OR INJUNCTIVE RELIEF. ...................................... 48
CONCLUSION ............................................................................................................................. 50

- iv -

TABLE OF AUTHORITIES
Cases

Pages

Akins v. Glens Falls City Sch. Dist.,
53 N.Y.2d 325 (N.Y. 1981) ................................................................................................ 25-26
Alfaro v. Wal-Mart Stores, Inc.,
210 F.3d 111 (2d Cir. 2000)..................................................................................................... 25
Allen v. City of New York,
No. 03-CV-2829 (KMW) (GWG),
2007 U.S. Dist. LEXIS 15 (S.D.N.Y. Jan. 3, 2007)................................................................. 32
Ameduri v. Vill. of Frankfort,
2014 U.S. Dist. LEXIS 44564 (N.D.N.Y. Mar. 31, 2014)................................................. 42, 43
Amnesty Am. v. Town of W. Hartford,
361 F.3d 113 (2d Cir. 2004)......................................................................................... 38, 40, 44
Anderson v. Creighton,
483 U.S. 635 (1987) ................................................................................................................... 4
Anemone v. Metropolitan Transp. Auth.,
05-CV-3170 (LAP), 2008 U.S. Dist. LEXIS 36091 (S.D.N.Y. May 2, 2008),
aff’d, 629 F.3d 97 (2d Cir. 2011) ....................................................................................... 11, 13
Anthony v. City of New York,
339 F.3d 129 (2d Cir. 2003)................................................................................................. 4, 16
A.X.M.S. Corp. v. Friedman,
948 F. Supp. 2d 319 (S.D.N.Y. 2013)...................................................................................... 49
Batista v. Rodriguez,
702 F.2d 393 (2d Cir. 1983)..................................................................................................... 40
Bayne v. Provost,
04-CV-44, 2005 U.S. Dist. LEXIS 40889 (N.D.N.Y Aug. 4, 2005),
quoting Monday, 118 F.3d at 1102 (6th Cir. 1997) ................................................................... 8
Bd. Of Cnty. Comm’rs of Bryan Cnty. v. Brown,
520 U.S. 397 (1997) ..................................................................................................... 38, 39, 40
Bennett v. Goord,
343 F.3d 133 (2d Cir. 2003)..................................................................................................... 12
Blue v. Koren,
72 F.3d 1075 (2d Cir. 1995)..................................................................................................... 12
-v-

Cases

Pages

Board of Educ. v. Farmingdale Classroom Teachers Assn.,
38 N.Y.2d 397 (N.Y. 1975) ..................................................................................................... 29
Bond v.United States,
529 U.S. 334 (2000) ................................................................................................................... 2
Brigham City v. Stuart,
547 U.S. 398 (2006) ............................................................................................................... 1, 5
Brown v. City of New York,
13-CV-1018 (KBF), 2014 U.S. Dist. LEXIS 83513 (S.D.N.Y. June 18, 2014) ...................... 11
Brown v. Pritchard,
09-CV-214S (HBS), 2011 U.S. Dist. LEXIS 72486 (W.D.N.Y. July 6, 2011) ....................... 42
Carnesi v. City of N.Y.,
98-CV-4899 (LMM), 2001 U.S. Dist. LEXIS 14561 (S.D.N.Y. 2001) .................................. 33
City of Canton v. Harris,
489 U.S. 378 (1989) ......................................................................................... 31, 38, 42, 44, 45
City of Los Angeles v. Heller,
475 U.S. 796 (1986) ................................................................................................................. 46
City of Oklahoma v. Tuttle,
471 U.S. 808 (1985) ........................................................................................................... 33, 44
City of St. Louis v. Praprotnik,
485 U.S. 112 (1985) ................................................................................................................. 33
Cobb v. Pozzi,
363 F.3d 89 (2d Cir. 2004)....................................................................................................... 13
Coffey v. City of New York,
49 A.D.3d 449 (1st Dep’t 2008) .............................................................................................. 22
Colodney v. Continuum Health Partners, Inc.,
03-CV-7276 (DLC), 2004 U.S. Dist. Lexis 6606 (S.D.N.Y. Apr. 15, 2004) .................... 22, 23
Colombo v. O’Connell,
310 F.3d 115 (2d Cir. 2002)..................................................................................................... 14
Combustible Equip. Assoc.,
838 F.2d 35 (2d Cir. 1988)....................................................................................................... 48

- vi -

Cases

Pages

Connell v. Signoracci,
153 F.3d 74 (2d Cir. 1998)....................................................................................................... 10
Connick v. Thompson,
131 S. Ct. 1350 (2011) ........................................................................................... 37, 39, 44, 45
Conte v. County of Nassau,
06-CV-4746 (JFB)(ETB), 2010 U.S. Dist. LEXIS 104815 (E.D.N.Y. Sept. 30, 2010) .......... 13
Cook v. Sheldon,
41 F.3d 73 (2d Cir. 1994)................................................................................................... 29, 30
Cuevas v. City of New York,
No. 07-CV-4169 (LAP), 2009 U.S. Dist. LEXIS 114984 (S.D.N.Y. Dec. 7, 2009) ............... 37
Cuffy v. New York,
69 N.Y.2d 255 (N.Y. 1987) ............................................................................................... 26, 27
Curiano v. Suozzi,
63 N.Y.2d 113 (N.Y. 1984) ............................................................................................... 29, 30
Curley v. Village of Suffern,
268 F.3d 65 (2d Cir. 2001)............................................................................... 10, 11, 13, 14, 15
Danielak v. City of New York,
No. 02-CV-2349 (KAM), 2005 U.S. Dist. LEXIS 40901 (E.D.N.Y. Sept. 26, 2005) ............ 18
Daniels v. Murphy,
2013 U.S. Dist. LEXIS 19059 (D. Conn. Feb. 12, 2013) ....................................................... 49
Davis v. City of New York,
228 F. Supp. 2d 327 (S.D.N.Y. 2002).......................................................................... 34, 35, 36
Demaine v. Samuels,
29 F. App’x 671 (2d Cir. 2002) ............................................................................................... 26
Dettelis v. City of Buffalo,
3 F. Supp. 2d 341 ..................................................................................................................... 34
Devenpeck v. Alford,
543 U.S. 146 (2004) ................................................................................................................... 7
Dorn v. Maffei,
386 F. Supp. 2d 479 (S.D.N.Y. 2005)...................................................................................... 21

- vii -

Cases

Pages

Doyle v. Coombe,
No. 97-2680, 1998 U.S. App. LEXIS 20261 (2d Cir. June 12, 1998) ....................................... 5
Dunk v. Brower,
11-CV-4564 (ER), 2013 U.S. Dist. LEXIS 160667 (S.D.N.Y. Nov. 7, 2013) .................. 12, 13
Dwares v. City of New York,
985 F.2d 94 (2d Cir. 1993)....................................................................................................... 45
Edwards v. City of New York,
03-CV-9407, 2005 U.S. Dist. LEXIS 34376 (S.D.N.Y. Dec. 19, 2005) ................................. 34
EEOC v. Die Fliedermaus L.L.C.,
77 F. Supp. 2d 460 (S.D.N.Y.1999)......................................................................................... 21
Ehrens v. Lutheran Church,
385 F.3d 232 (2d Cir. 2004)..................................................................................................... 22
Eifert v. Bush,
27 A.D.2d 950 (N.Y. App. Divi. 2d Dept. 1967),
aff’d , 22 N.Y.2d 681 (1968) ................................................................................................... 23
Escalera v. Lunn,
361 F. 3d 737 (2d Cir. 2004)...................................................................................................... 9
Escobar v. City of New York,
765 F. Supp. 2d 415 (E.D.N.Y. 2011) ..................................................................................... 34
Floyd v. City of New York ........................................................................................................... 14
Forest City Daly Housing, Inc. v. Town of North Hempstead,
175 F.3d 144 (2d Cir. 1999).................................................................................................... 49
Frisenda v. Village of Malverne,
775 F. Supp. 2d 486 (E.D.N.Y. 2011) ..................................................................................... 11
Gangadeen v. City of New York,
654 F. Supp. 2d 169 (S.D.N.Y. 2009)...................................................................................... 46
Georgia v. Randolph,
547 U.S. 103 (2006) ................................................................................................................... 2
Giaccio v. City of New York,
308 Fed. Appx. 470 (2d Cir. 2009) .......................................................................................... 34

- viii -

Cases

Pages

Girard v. 94th St. & Fifth Ave. Corp.,
530 F.2d 66 (2d Cir. 1976)....................................................................................................... 18
Golino v. City of New Haven,
950 F. 2d 864 (2d Cir. 1991).................................................................................................... 10
Golphin v. City of New York,
09-CV-1015 (BSJ), 2011 U.S. Dist. LEXIS 106272 (S.D.N.Y. Sept. 19, 2011) .................... 16
Gooden v. Howard County,
954 F.2d 960 (4th Cir. 1992) ..................................................................................................... 6
Government Employees Ins. Co. v. Saco,
No. 12-CV-5633 (NGG/MDG), 2014 U.S. Dist. LEXIS 20919
(E.D.N.Y. Feb. 18, 2014) ......................................................................................................... 48
Graham v. Connor,
490 U.S. 386 (1989) ................................................................................................................... 2
Green v. City of New York,
465 F.3d 65 (2d Cir. 2006)....................................................................................................... 35
Green v. Mattingly,
585 F.3d 97 (2d Cir. 2009)....................................................................................................... 30
Hayes v. Perotta,
751 F. Supp. 2d 597 (S.D.N.Y. 2010)................................................................................. 33-34
Hill v. City of New York,
03-CV-1283 (ARR), 2005 U.S. Dist. LEXIS 38926 (E.D.N.Y. Dec. 29, 2005) ..................... 40
Hoffman v. County of Delaware,
41 F. Supp. 2d 195 (N.D.N.Y. 1999),
aff’d, 205 F.3d 1323 (2d Cir. 2000)) ......................................................................................... 8
Hoffman v. Nassau County Police Dep’t,
No. 06-CV-1947 (SJF) (AKT),
2008 U.S. Dist. LEXIS 35377 (E.D.N.Y. Apr. 30, 2008) ....................................................... 18
Howard v. Town of Bethel,
481 F. Supp. 2d 295 (S.D.N.Y. 2007)................................................................................ 10, 14
Illinois v. Andreas,
463 U.S. 765 (1983) ................................................................................................................... 7

- ix -

Cases

Pages

Jenkins v. City of New York,
91-CV-3539 (RLC), 1992 U.S. Dist. LEXIS 8279 (S.D.N.Y. Jun. 15, 1992)................... 24, 25
Karoon v. New York City Transit Authority,
241 A.D.2d 323 (N.Y. App. Div. 1st Dept. 1997) ................................................................... 23
Keeney v. City of New London,
196 F. Supp. 2d 190 (D. Conn. 2002) ........................................................................................ 1
Kerman v. City of New York,
261 F.3d 229 (2d Cir. 2001)................................................................................................... 6, 8
Koch v. Town of Brattleboro,
287 F.3d 162 (2d Cir. 2002).................................................................................................... 4-5
Latino Officers Ass’n v. Safir,
170 F.3d 167 (2d Cir. 1999)..................................................................................................... 14
Lee v. Sandberg,
136 F.3d 94 (2d Cir. 1997)......................................................................................................... 7
Lennon v. Miller,
66 F.3d 416 (2d Cir. 1995)......................................................................................................... 4
Locurto v. Safir,
264 F.3d 154 (2d Cir. 2001)..................................................................................................... 28
Mahan v. City of New York,
00-CV-6645 (DGT), 2005 U.S. Dist. LEXIS 14322 (E.D.N.Y. July 19, 2005) ................ 40, 41
Marcel v. City of New York,
88-CV-7017 (LLS), 1990 U.S. Dist. LEXIS 4094 (S.D.N.Y. Apr. 11, 1990).................... 41-42
Martinez v. City of New York,
No. 06-CV-5671 (WHP), 2008 U.S. Dist. LEXIS 49203 (S.D.N.Y. June 27, 2008) .............. 46
Martinez v. Golding,
499 F .Supp. 2d 561 (S.D.N.Y. 2007)........................................................................................ 7
Martinez v. Muentes,
340 Fed. Appx. 700 (2d Cir. July 27, 2009) ............................................................................ 46
Maryland v. Pringle,
540 U.S. 366, 124 S. Ct. 795, 157 L. Ed. 2d 769 (2003) ........................................................... 7

-x-

Cases

Pages

McLean v. New York,
12 N.Y.3d 194 (N.Y. 2009) ..................................................................................................... 26
Mercado v. City of New York,
08-CV-2855 (BSJ)(HP), 2011 U.S. Dist. LEXIS 140430 (S.D.N.Y. Dec. 5, 2011) ............... 32
Michigan v. Fisher,
558 U.S. 45 (2009) ..................................................................................................................... 3
Michigan v. Tyler,
436 U.S. 499 (1978) ................................................................................................................... 2
Mincey v. Arizona,
437 U.S. 385 .............................................................................................................................. 2
Mitchell v. Cty. of Nassau,
05- CV-4957 (SJF)(WDW), 2007 U.S. Dist. LEXIS 38711 (E.D.N.Y. May 24, 2007) ......... 24
Monday v. Oullette,
118 F.3d 1099 (6th Cir. 1997) ................................................................................................... 6
Monell v. City of New York, et al.,
436 U.S. 658 (1978) ............................. 31, 32, 34, 35, 37, 38, 39, 40, 41, 42, 43, 45, 46, 47, 48
Moore v. City of New York,
219 F. Supp. 2d 335 (E.D.N.Y. 2002) ..................................................................................... 21
Naccaratto v. Scarselli,
124 F. Supp. 2d 36 (N.D.N.Y. 2000) ................................................................................. 21, 25
National Congress for Puerto Rican Rights v. City of New York,
75 F. Supp.2d 154 (S.D.N.Y. 1999)......................................................................................... 19
Nassau County Emple. “L” v. County of Nassau,
345 F. Supp. 2d 293 (E.D.N.Y. 2004) ..................................................................................... 17
Neroni v. Coccoma,
No. 3:13-CV-1340 (GLS/DEP), 2014 U.S. Dist. LEXIS 76547
(N.D.N.Y. June 5, 2014) .......................................................................................................... 48
Newton v. City of New York,
681 F. Supp. 2d 473 (S.D.N.Y. 2010)...................................................................................... 22
Ognibene v. Parkes,
671 F.3d 174 (2d Cir. 2012)...................................................................................................... 49

- xi -

Cases

Pages

Osterhoudt v. City of New York,
10-CV-3173 (RJD)(RML), 2012 U.S. Dist. LEXIS 139700 (E.D.N.Y. Sept. 27, 2012) ........ 42
Pacheco v. City of New York, et al.,
234 F.R.D. 53 (E.D.N.Y. 2006) ............................................................................................... 42
Pangburn v. Culbertson,
200 F.3d 65 (2d Cir. 1999)....................................................................................................... 18
Patterson v. County of Oneida,
375 F.3d 206 (2d Cir. 2004)........................................................................................................?
Pembaur v. City of Cincinnati,
475 U.S. 469 (1986) ........................................................................................................... 32, 44
Perez v. City of New York,
97-CV-2915, 1999 U.S. Dist. LEXIS 21137 (E.D.N.Y. Nov. 16, 1999)................................. 19
Petway v. City of New York,
12-CV-279 (ARR)(LB), 2014 U.S. Dist. LEXIS 28361 (E.D.N.Y. Mar. 4, 2014) ................. 13
Posr v. Court Officer Shield,
No. 207, 180 F.3d 409 (2d Cir. 1999)........................................................................................ 7
Powell v. Gardner,
891 F.2d 1039 (2d Cir. 1989)................................................................................................... 40
Pulka v. Edelman,
40 N.Y.2d 781 (N.Y. 1976) ..................................................................................................... 26
Rahman v. Philip,
92-CV-5349 (SHS), 1995 U.S. Dist. LEXIS 17018 (S.D.N.Y. Nov. 15, 1995) ...................... 20
Rasmussen v. City of New York,
766 F. Supp. 2d 399 (E.D.N.Y. 2011) ............................................................................... 21, 42
Reynolds v. Giuliani,
506 F.3d 183 (2d Cir. 2007)............................................................................................... 38, 43
Ricciuti
124 F. 3d .................................................................................................................................... 9
Rini v. Zwirn,
886 F. Supp. 270 (E.D.N.Y. 1995) .......................................................................................... 17

- xii -

Cases

Pages

Rodriguez v. City of New York,
11-CV-515 (ALC)(GWG), Slip Op. at 10 (S.D.N.Y. Mar. 15, 2013) ..................................... 41
Root v. Gauper,
438 F.2d 361 (8th Cir. 1971) ..................................................................................................... 1
Rosen v. Arden Hill Hosp.,
163 Misc.2d 70 (N.Y. Sup. Ct. 1993) ...................................................................................... 28
Rubio v. Cty. of Suffolk,
01-CV-1806 (TCP), 2007 U.S. Dist. LEXIS 75344 (E.D.N.Y. Oct. 9, 2007)......................... 44
Russ v. State Employees Federal Credit Union (SEFCU),
298 A.D.2d 791 (N.Y. App. Div. 2002) .................................................................................. 24
Russo v. City of Cincinnati,
953 F.2d 1036 (6th Cir. 1992) ................................................................................................... 5
Saldana v. Port Chester,
09-CV-6268 (SCR)(GAY), 2010 U.S. Dist. LEXIS 142099 (S.D.N.Y. July 21, 2010) ......... 21
Samuelson v. Laporte Community Sch. Corp.,
526 F.3d 1046 (7th Cir. 2008) ................................................................................................. 11
San Fillipo v. U.S. Trust Co. of New York, Inc.,
737 F.2d 246 (2d Cir. 1984),
cert. denied, 470 U.S. 1035 (1985) .................................................................................... 17, 20
Sanchez v. Thompson,
No. 07-CV-0531 (JFB)(WDW),
2007 U.S. Dist. LEXIS 94085 (E.D.N.Y. Dec. 26, 2007) ..........................................................?
Sanchez v. Town of Greece,
98-CV-6433, 2004 U.S. Dist. LEXIS 29357 (W.D.N.Y. Sept. 1, 2004) ............................. 6, 10
Santiago v. Campisi,
91 F. Supp. 2d 655 (S.D.N.Y. 2000)........................................................................................ 34
Sarus v. Rotundo,
831 F.2d 397 (2d Cir. 1987)..................................................................................................... 31
Savino v. City of New York,
331 F.3d 63 (2d Cir. 2003)......................................................................................................... 7
Schmidt v. Bishop,
779 F. Supp. 321 (S.D.N.Y. 1991) .......................................................................................... 24
- xiii -

Cases

Pages

Schoolcraft v. City of New York,
10-CV-6005 (RWS), 2012 U.S. Dist. LEXIS 128557 (S.D.N.Y. Sept. 7, 2012) ........ 10, 11, 12
Sealey v. Giltner,
116 F.3d 47 (2d Cir. 1997)......................................................................................................... 5
Searles v. Pompilio,
652 F. Supp. 2d 432 (S.D.N.Y. 2009)...................................................................................... 40
Segal v. City of New York,
459 F.3d 207 (2d Cir. 2006)..................................................................................................... 46
Sforza v. City of New York,
07 Civ. 6122 (DLC), 2009 US Dist. LEXIS 27358 (S.D.N.Y. Mar. 31, 2009) ....................... 30
Shmueli v. City of New York,
03-CV-1195 (PAC), 2007 U.S. Dist. LEXIS 42012 (S.D.N.Y. June 7, 2007) ........................ 30
Simms v. City of New York,
480 Fed. Appx. 627 (2d Cir. 2012) .......................................................................................... 41
Sommer v. Dixon,
709 F.2d 173 (2d Cir.),
cert. denied, 464 U.S. 857 (1983) ............................................................................................ 20
Sorlucco v. New York City Police Dep’t,
971 F.2d 864 (2d Cir. 1992)......................................................................................... 33, 34, 38
Stokes v. City of New York,
05-CV-0007 (JFB)(MDG), 2007 U.S. Dist. LEXIS 32787 (E.D.N.Y. May 3, 2007) ............. 22
Sun Min Lee v. J.B. Hunt Transp., Inc.,
308 F. Supp. 2d 310 (S.D.N.Y. 1994)...................................................................................... 23
Sykes v. James,
13 F.3d 515 (2d Cir. 1993)..........................................................................................................?
Texas v. Lesage,
528 U.S. 18 (1999) ................................................................................................................... 12
Thomas v. Roach,
165 F.3d 137 (2d Cir. 1999)..................................................................................................... 41
Tierney v. Davidson,
133 F.3d 189 (2d Cir. 1998)....................................................................................................... 1

- xiv -

Cases

Pages

Triano v. Harrison,
895 F.Supp.2d 526 (S.D.N.Y. 2012)........................................................................................ 45
United States v. Ashburn,
11-CR-303 (NGG), 2014 U.S. Dist. LEXIS 62656 (E.D.N.Y. May 5, 2014) ........................... 3
United States v. Klump,
536 F.3d 113 (2d Cir. 2008)....................................................................................................... 2
United States v. MacDonald,
916 F.2d 766 (2d Cir. 1990)....................................................................................................... 2
United States v. Quattrone,
402 F.3d 304 (2d Cir. 2005)..................................................................................................... 10
United States v. Simmons,
661 F.3d 151 (2d Cir. 2011)....................................................................................................... 2
Vallen v. Connelly,
99-CV-9947 (SAS), 2004 U.S. Dist. LEXIS 4490 (S.D.N.Y. March 19, 2004) ............. 6, 8, 10
Vann v. City of New York,
72 F.3d 1040 (2d Cir. 1995)......................................................................................... 40, 41, 42
Vippolis v. Vill. of Haverstraw,
768 F.2d 40 (2d Cir. 1985)....................................................................................................... 37
Ward v. Thomas,
207 F.3d 114 (2d Cir. 2000) .................................................................................................... 48
Walker v. City of New York,
974 F.2d 293 (2d Cir. 1992),
cert. denied, 507 U.S. 961 (1993) ...................................................................................... 39, 45
Walker v. Goord ,
98-CV-5217 (DC), 2000 U.S. Dist. LEXIS 3501 (S.D.N.Y. Mar. 21, 2000) .......................... 19
Wayne v. United States,
318 F.2d 205 (D.C. Cir 1963) .................................................................................................... 2
Webb v. Ashburn,
96-CV-0324 (SAS), 1997 U.S. Dist. LEXIS 2848 (S.D.N.Y. Mar. 13, 1997) ........................ 19
Weyant v. Okst,
101 F.3d 845 (2d Cir. 1996)....................................................................................................... 6

- xv -

Cases

Pages

Whren v. United States,
517 U.S. 806 (1996) ................................................................................................................... 2
Williams v. City of New York,
12-CV-8518 (RJS), 2014 U.S. Dist. LEXIS 49837 (S.D.N.Y. Mar. 26, 2014) ....................... 11
Williams v. Smith,
781 F.2d 319 (2d Cir. 1986)................................................................................................. 5, 15
Yang Feng Zhao v. New York,
656 F.Supp.2d 375 (S.D.N.Y. 2009)........................................................................................ 41
Young,
160 F.3d at 904 ........................................................................................................................ 39
Zahra v. Town of Southold,
48 F.3d 674 (2d Cir. 1995)................................................................................................. 38, 41
Zieper v. Metzinger,
474 F.3d 60 (2d Cir. 2007)....................................................................................................... 10
Statutes
42 U.S.C. §1983 .................................................. 5, 6, 15, 18, 25, 29, 30, 31, 32, 34, 41, 45, 46, 48
Fed. R. Civ. P. 56 ...................................................................................................................... 1, 50
Local Civ. R. 56.1 ............................. 1, 3, 4, 8, 9, 12, 13, 14, 15, 16, 17, 27, 29, 37, 43, 46, 47, 49
MHL § 9.41 ................................................................................................................... 6, 7, 8, 9, 10
N.Y.C Charter § 434(b) ................................................................................................................. 32
New York State Public Officers’ Law §87(2) .............................................................................. 50
New York State Public Officers’ Law §87(2)(b) .......................................................................... 50
Rule 12 .......................................................................................................................................... 42

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PRELIMINARY STATEMENT
City Defendants respectfully submit this revised memorandum of law in support of their
motion for partial summary judgment pursuant to Fed. R. Civ. P. 56. City Defendants
respectfully refer the Court to City Defendants’ Statement of Undisputed Facts Pursuant to Local
Civil Rule 56.1 at (hereinafter “56.1”) for the background facts for their motion.
ARGUMENT
POINT I
PLAINTIFF’S UNLAWFUL SEARCH AND
ENTRY CLAIMS FAIL.
A.

Plaintiff’s Unlawful Search and Entry Claims Against Defendants Marino,
Lauterborn, Gough, Duncan, Broschart, and Hanlon Fail as a Matter of
Law.

Defendants are entitled to summary judgment on Plaintiff’s unlawful search and entry
claims against defendants Marino, Lauterborn, Gough, Duncan, Broschart and Hanlon because
the entry into Plaintiff’s home was justified by exigent circumstances. Police officers “may enter
a dwelling without a warrant to render emergency aid and assistance to a person whom they
reasonably believe to be in distress and in need of that assistance.” Tierney v. Davidson, 133
F.3d 189, 196 (2d Cir. 1998) (quoting Root v. Gauper, 438 F.2d 361, 364 (8th Cir. 1971)); see
also Keeney v. City of New London, 196 F. Supp. 2d 190, 196-97 (D. Conn. 2002) (applying
Tierney standard). One such exigency which may justify a warrantless entry is the need to
“render emergency aid and assistance to a person whom [officers] reasonably believe to be in
distress and in need of that assistance.” Tierney, 133 F.3d at 196.
The Supreme Court has reiterated its position that “the need to assist persons who are
seriously injured or threatened with such injury” is one circumstance that justifies a warrantless
entry to a private home. Brigham City v. Stuart, 547 U.S. 398, 403 (2006). “[T]he need to

protect or preserve life or avoid serious injury is justification for what would be otherwise illegal
absent an exigency or emergency.” Mincey v. Arizona 437 U.S. 385, 392, (quoting Wayne v.
United States, 318 F.2d 205, 212 (D.C. Cir 1963) (Burger, J.)); see also Michigan v. Tyler, 436
U.S. 499, 509 (1978). Accordingly, law enforcement officers may enter a home without a
warrant to render emergency assistance to an injured occupant or to protect an occupant from
imminent injury. Mincey, 437 U.S. at 392; see also Georgia v. Randolph, 547 U.S. 103, 118
(2006) (“It would be silly to suggest that the police would commit a tort by entering . . . to
determine whether violence (or threat of violence) has just occurred or is about to (or soon will)
occur”).
The test to determine exigent circumstances” is an objective one that turns on . . . the
totality of circumstances confronting law enforcement agents in the particular case.” United
States v. MacDonald, 916 F.2d 766, 769 (2d Cir. 1990) (en banc). More specifically, the
question is whether “‘the facts, as they appeared at the moment of entry, would lead a
reasonable, experienced officer, to believe that there was an urgent need to render aid or take
action.’” United States v. Simmons, 661 F.3d 151, 157 (2d Cir. 2011) (quoting United States v.
Klump, 536 F.3d 113, 117-18 (2d Cir. 2008)). The officer’s subjective motivation is irrelevant.
See Bond v.United States, 529 U.S. 334, 338, n. 2 (2000) (“The parties properly agree that the
subjective intent of the law enforcement officer is irrelevant in determining whether that officer’s
actions violate the Fourth Amendment . . . ; the issue is not his state of mind, but the objective
effect of his actions”); Whren v. United States, 517 U.S. 806, 813 (1996) (“[W]e have been
unwilling to entertain Fourth Amendment challenges based on the actual motivations of
individual officers”); Graham v. Connor, 490 U.S. 386, 397 (1989) (“[O]ur prior cases make

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clear” that “the subjective motivations of the individual officers . . . ha[ve] no bearing on
whether a particular seizure is ‘unreasonable’ under the Fourth Amendment”).
Officers do not need ironclad proof of “a likely serious, life-threatening” injury to invoke
the emergency aid exception. Michigan v. Fisher, 558 U.S. 45, 49 (2009). Moreover, where an
officer believes emergency aid is required, at least one Court has held that an individual’s failure
to respond to an officer’s knock on their door is relevant to a determination of whether the entry
was objectively reasonable. United States v. Ashburn, 11-CR-303 (NGG), 2014 U.S. Dist.
LEXIS 62656, *16 (E.D.N.Y. May 5, 2014).
Here, the entry and “search” of Plaintiff’s apartment was reasonable based upon the
circumstances known to the officers at the time of the entry. First, Plaintiff left work abruptly
and without permission on October 31, 2009, reporting that he was sick. (See 56.1 at ¶¶23-25).
Thereafter, Captain Lauterborn spoke with department psychologist Dr. Catherine LamsteinReiss because he was concerned about Plaintiff’s wellbeing. (56.1 at ¶¶26-27). Dr. LamsteinReiss told Captain Lauterborn that she had evaluated Plaintiff’s mental health prior to October
31, 2009, and that Captain Lauterborn “absolutely needed” to find Plaintiff and “make sure that
he was ok”. (56.1 at ¶30). Captain Lauterborn, Deputy Inspector Mauriello, and Lieutenant
Broschart also knew that Plaintiff had previously had his gun taken away. (56.1 at ¶39).
In response Lieuteant Christopher Broschart, Captain Lauterborn and a patrol sergeant
and police officer from the 104th precinct went to Plaintiff’s home at 82-60 80th Place in
Glendale Queens. (56.1 at ¶31). Lieutenant Broschart and Captain Lauterborn knocked on
Plaintiff’s door for several hours but Plaintiff never answered. (56.1 at ¶¶32-33). Dr. LamsteinReiss tried calling Plaintiff’s cell phone which he also did not answer. (56.1 at ¶¶34-35).
Moreover, Plaintiff’s landlord heard him moving around inside of the apartment, but

-3-

subsequently heard no movement. (56.1 at ¶36). Lieutenant Broschart remained outside of
Plaintiff’s apartment for approximately four hours and never saw or heard Plaintiff. (56.1 at ¶37).
It does not matter here--even if the defendants’ subjective motivations could be so neatly
unraveled--whether the officers entered Plaintiff’s home in retaliation for Plaintiff’s reports to
the Internal Affairs Bureau and the Quality Assurance Division because the belief was
objectively reasonable and they were told by a mental health professional – Dr. Lamstein-Reiss –
that Plaintiff had to be located and his wellbeing ensured. Accordingly, Plaintiff’s unlawful entry
and search claims must be dismissed in their entirety.
Alternatively, defendants are entitled to qualified immunity for entering Plaintiff’s home
absent a warrant. “Whether an official protected by qualified immunity may be held personally
liable for an allegedly unlawful official action generally turns on the objective legal
reasonableness of the action … assessed in light of the legal rules that were clearly established at
the time it was taken.” Anderson v. Creighton, 483 U.S. 635, 639 (1987) (internal quotation
marks and citation omitted). Even where the Plaintiff’s federal rights and the scope of the
official’s permissible conduct are clearly established, the qualified immunity defense protects a
government actor if it was ‘objectively reasonable’ for him to believe that his actions were
lawful at the time of the challenged act. Anthony v. City of New York, 339 F.3d 129 (2d Cir.
2003) (internal quotation marks and citations omitted). “Qualified immunity serves to protect
police from liability and suit when they are required to make on-the-spot judgments in tense
circumstances,” and officers are entitled to the defense unless the officers’ judgment was so
flawed that no reasonable officer would have made a similar choice. Lennon v. Miller, 66 F.3d
416, 424-25 (2d Cir. 1995). As such, since it was objectively reasonable for the defendants to
believe that exigent circumstances existed, qualified immunity is appropriate. See e.g., Koch v.

-4-

Town of Brattleboro, 287 F.3d 162, 169 (2d Cir. 2002) (qualified immunity is appropriately
applied on a Fourth Amendment unreasonable search and seizure claim where a government
officer believes there were exigent circumstances present); see also Brigham City v. Stuart, 547
U.S. 398, 403 (2006) (finding that police may enter a home without a warrant when they have an
objectively reasonable basis for believing that an occupant is seriously injured or imminently
threatened with such injury); Russo v. City of Cincinnati, 953 F.2d 1036, 1043-44 (6th Cir.
1992) (warrantless entry was justified by officer’s reasonable belief that resident was in danger
of committing suicide and noting the court’s inability to find “a single case indicating that an
officer’s attempt to rescue what that officer believes to be a suicidal person does not constitute
exigent circumstances”). Here, it is clear that the defendants had a reasonable belief that Plaintiff
might cause harm to himself or others and in fact were told that they must locate him and ensure
his wellbeing. Accordingly, even if they were mistaken, they are entitled to qualified immunity.
B.

Plaintiff Has Not Alleged That Defendants Wilson, Wall, O’Hare, Trainor,
Hanley, Nelson, Caughey, Sawyer and James Unlawfully Searched and/or
Seized Him.

It is well established that Section 1983 imposes liability only upon a defendant who
personally subjects, or causes to be subjected any person to the deprivation of any federal right.
Accordingly, “personal involvement of defendants in alleged constitutional deprivations is a
prerequisite to an award of damages under § 1983.” Williams v. Smith, 781 F.2d 319, 323 (2d
Cir. 1986) (citation omitted); Doyle v. Coombe, No. 97-2680, 1998 U.S. App. LEXIS 20261, at
*3 (2d Cir. June 12, 1998); Sealey v. Giltner, 116 F.3d 47, 51 (2d Cir. 1997). Plaintiff has not
alleged in the Third Amended Complaint, and there is no evidence in the record, that Timothy
Trainor, Gerald Nelson, Timothy Caughey, Frederick Sawyer or Shantel James had any personal

-5-

involvement with regard to Plaintiff’s claims of unlawful search and seizure. 1 (Plaintiff’s Third
Amended Complaint, annexed as Exhibit A to the Declaration of Suzanna Publicker Mettham
dated December 22, 2014 at ¶¶ 153-174). Therefore, any claims against these individuals under §
1983 unlawful search and seizure must be dismissed.
POINT II
PLAINTIFF’S FALSE ARREST AND FALSE
IMPRISONMENT CLAIMS FAIL PURSUANT
TO NEW YORK’S MENTAL HEALTH AND
HYGIENE LAW.
Plaintiff’s false arrest and false imprisonment claims against defendants Marino,
Lauterborn, Gough, Sawyer, Duncan, Broschart, James, Caughey, and Hanlon fail because there
was probable cause to seize Plaintiff pursuant to New York State’s Mental Health and Hygiene
Law (hereinafter “MHL”). Seizures under a state’s mental hygiene or mental health laws apply
the concepts of “probable cause” that have arisen in criminal Fourth Amendment seizure cases.
See Kerman v. City of New York, 261 F.3d 229, 235 (2d Cir. 2001); Monday v. Oullette, 118
F.3d 1099, 1102 (6th Cir. 1997); Gooden v. Howard County, 954 F.2d 960, 964 (4th Cir. 1992);
Vallen v. Connelly, 99-CV-9947 (SAS), 2004 U.S. Dist. LEXIS 4490, at *23 (S.D.N.Y. March
19, 2004); Sanchez v. Town of Greece, 98-CV-6433, 2004 U.S. Dist. LEXIS 29357, at *8-13
(W.D.N.Y. Sept. 1, 2004). Because the existence of probable cause to arrest an individual is a
complete defense to both federal and state law claims for false arrest and false imprisonment, the
critical question in this case is whether the defendants possessed probable cause to conclude that
Plaintiff was acting in a manner that would justify a MHL § 9.41 seizure. Weyant v. Okst, 101
F.3d 845, 852 (2d Cir. 1996), Sanchez, 2004 U.S. Dist. LEXIS 29357, at *8-13 (“Here, the

1

City defendants submit this revised motion for summary judgment in response to the Court’s decision permitting
plaintiff to file a third amended complaint.

-6-

defendant officers had sufficient probable cause to believe that Sanchez might be mentally ill and
that he should be arrested pursuant to New York’s Mental Hygiene Law [§ 9.41].”).
Accordingly, the analysis of Plaintiff’s false arrest turns on whether the officers had probable
cause to detain him based on the information that he was emotionally disturbed.
The existence of probable cause for detention can be determined as a matter of law “if
there is no dispute as to the pertinent events and the knowledge of the officers....” Martinez v.
Golding, 499 F .Supp. 2d 561, 567 (S.D.N.Y. 2007) (internal citation omitted). In the criminal
context, probable cause exists when officers “have knowledge or reasonably trustworthy
information of facts and circumstances that are sufficient to warrant a person of reasonable
caution in the belief that the person to be arrested has committed or is committing a crime.” Posr
v. Court Officer Shield No. 207, 180 F.3d 409, 414 (2d Cir. 1999). “Whether probable cause
exists depends upon the reasonable conclusion to be drawn from the facts known to the arresting
officer at the time of the arrest.” Devenpeck v. Alford, 543 U.S. 146, (2004) (citing Maryland v.
Pringle, 540 U.S. 366, 371, 124 S. Ct. 795, 157 L. Ed. 2d 769 (2003). The probable cause inquiry
is an objective one and the subjective beliefs or motivations of the arresting officer are irrelevant.
Devenpeck, 125 S.Ct. at 593-94. Police officers may rely upon information gained from other
officers in making their probable cause assessment, see Savino v. City of N.Y., 331 F.3d 63, 74
(2d Cir. 2003) (“The collective knowledge doctrine provides that, for the purpose of determining
whether an arresting officer had probable cause to arrest, “‘where law enforcement authorities
are cooperating in an investigation, … the knowledge of one is presumed shared by all.’”)
(quoting Illinois v. Andreas, 463 U.S. 765, 772 n. 5, (1983)), and on information gained from
witnesses or private citizens. Lee v. Sandberg, 136 F.3d 94, 103 (2d Cir. 1997).

-7-

The facts and circumstances known to the defendants at the time they made the decision
to confine Plaintiff were sufficient to warrant a person of reasonable caution in the belief that a
seizure was legally justified under MHL § 9.41. While the statute ostensibly requires two
separate factual conclusions: (1) that the person appears to be mentally ill, and (2) that the person
is conducting himself in a manner which is likely to result in serious harm to himself or others,
see MHL § 9.41, the two inquires essentially become one in situations such as the one at hand.
As the Second Circuit has held, “police officers are often forced to make on the spot judgments
about a person’s mental health and should be entitled to reasonable leeway in those situations.”
Kerman, 261 F.3d at 241.
By analogy, the question here is whether the facts and circumstances known to the
defendants at the time they decided to take Plaintiff into custody were sufficient to warrant a
person of reasonable caution in the belief that Plaintiff might be “mentally ill and [] conducting
himself in a manner [] likely to result in serious harm to” himself as those terms are defined by
the MHL. See Bayne v. Provost, 04-CV-44, 2005 U.S. Dist. LEXIS 40889 (N.D.N.Y Aug. 4,
2005) quoting Monday, 118 F.3d at 1102 (6th Cir. 1997); Vallen 2004 U.S. Dist. LEXIS 4490, at
*27 (“Where there is a totality of circumstances pointing to a ‘probability or substantial chance
of dangerous behavior, not [even] an actual showing of such behavior,’ courts have not hesitated
in upholding emergency pick-up orders.”) (citing Hoffman v. County of Delaware, 41 F. Supp.
2d 195, 209 (N.D.N.Y. 1999), aff’d, 205 F.3d 1323 (2d Cir. 2000)). The answer is yes.
Here, all of the circumstances presented to the defendants required them to make just
such an “on the spot” judgment call. Prior to October 31, 2009 Plaintiff had his gun and shield
removed as a result of being placed on restricted duty following a consultation with New York
City Police Department Psychologist Dr. Catherine Lamstein-Reiss. (56.1 at ¶¶18-20).

-8-

Moreover, upon their arrival the defendants were informed that Plaintiff was suffering from
abdominal pain, nausea, dizziness, and chest pains. (56.1 at ¶44). In fact, Plaintiff’s blood
pressure was so high that EMTs considered the situation to be an emergency that required
medical attention at a hospital. (56.1 at ¶¶48-50).
The choice was either to: (a) accept Plaintiff’s refusal to address his abdominal pain,
blood pressure issues, and nausea, leave him alone in his apartment, and risk that he would die or
suffer serious harm as a result; or (b) persist in an attempt to “convince” Plaintiff to voluntarily
get on the gurney in order to transport him to a hospital for a medical treatment and, if necessary,
take him into custody against his will. Indeed, even accepting that Plaintiff was faking his illness,
defendants were nevertheless presented with an ostensibly genuine concern for Plaintiff’s safety
by trained emergency medical technicians who persisted that Plaintiff’s medical condition was
an emergency situation. (56.1 at ¶¶44-50). Based upon these facts, there was a reasonable basis
to conclude that Plaintiff was in immediate need of medical attention. The defendants were not
required to obtain a qualified mental health opinion before seizing Plaintiff under MHL § 9.41.
See Ricciuti, 124 F.3d at 128. However, the fact that Plaintiff was admitted to Jamaica Hospital
Medical Center for approximately six days pursuant to the MHL can only serve to indicate the
reasonableness of the defendants decision to remove Plaintiff from his apartment out of concern
for his wellbeing. (56.1 at ¶51).
Assuming arguendo that actual probable cause did not exist to take Plaintiff into custody
under MHL § 9.41, the defendants are entitled to qualified immunity because there was arguable
probable cause. See Escalera v. Lunn, 361 F. 3d 737, 743 (2d Cir. 2004). “Arguable probable
cause exists ‘if either (a) it was objectively reasonable for the officer to believe that probable
cause existed, or (b) officers of reasonable competence could disagree on whether the probable

-9-

cause test was met.’” Id. (quoting Golino v. City of New Haven, 950 F. 2d 864, 870 (2d Cir.
1991)). Given all the facts presented here, and giving the defendants the reasonable leeway they
are entitled to in making assessments of other people’s mental states, officers of reasonable
competence could disagree whether they were justified in seizing Plaintiff pursuant to MHL §
9.41 to ensure his safety through a metal health evaluation. See Sanchez, 2004 U.S. Dist. LEXIS
29357, at *4; Vallen, 2004 U.S. Dist. LEXIS 4490, at *30-33. Accordingly, the defendants are
entitled to qualified immunity and Plaintiff’s false arrest and false imprisonment claims must be
dismissed.
POINT III
PLAINTIFF’S FIRST AMENDMENT CLAIM
SHOULD BE DISMISSED.
The First Amendment may be violated by a “chilling effect” of governmental action short
of a direct prohibition against speech. 2 Zieper v. Metzinger, 474 F.3d 60, 65 (2d Cir. 2007). To
establish a “chilling effect” claim, Plaintiff must establish that: (1) his speech is protected by the
First Amendment; (2) that defendants’ motivation was to suppress Plaintiff’s speech; and (3) that
defendants’ actions effectively chilled the exercise of Plaintiff’s First Amendment rights. 3 Curley
v. Village of Suffern, 268 F.3d 65, 73 (2d Cir. 2001) (citing Connell v. Signoracci, 153 F.3d 74,
79 (2d Cir. 1998); accord Howard v. Town of Bethel, 481 F. Supp. 2d 295, 309 (S.D.N.Y. 2007).
Moreover, to prevail against the City, Plaintiff must show that a municipal custom or policy was

2

This Court previously rejected Plaintiff’s attempts to plead a First Amendment claim based on incidents occurring
prior to his suspension on October 31, 2009. See Schoolcraft, 2012 U.S. Dist. LEXIS 128557 at *11-13.

3

Despite his lofty nomenclature, Plaintiff is not advancing a true “prior restraint” claim. See, e.g., United States v.
Quattrone, 402 F.3d 304, 309 (2d Cir. 2005)(“A ‘prior restraint’ on speech is a law, regulation or judicial order that
suppresses speech – or provides for its suppression at the discretion of government officials – on the basis of the
speech’s content and in advance of its actual expression.”). Rather, his claim is more akin to the “chilling effect”
claims advanced in cases like Curley and Connell, in which the Plaintiffs asserted that retaliatory governmental
action affected the exercise of their First Amendment rights.

- 10 -

the moving force behind the alleged violation. E.g., Williams v. City of New York, 12-CV-8518
(RJS), 2014 U.S. Dist. LEXIS 49837, *35-37 (S.D.N.Y. Mar. 26, 2014).
A.

Plaintiff Does Not Have an Interest Protected by the First Amendment.

As Your Honor previously indicated in Schoolcraft v. City of New York, 10-CV-6005
(RWS), 2012 U.S. Dist. LEXIS 128557 (S.D.N.Y. Sept. 7, 2012), for Plaintiff to have a viable
prior restraint claim, he must establish that he is speaking as a citizen rather than as a
government employee. 2012 U.S. Dist. LEXIS 128557 at 15-16; see also Samuelson v. Laporte
Community Sch. Corp., 526 F.3d 1046, 1052 (7th Cir. 2008) (“For the restriction to qualify as a
prior restraint, the employee must have an interest in the speech as a citizen commenting upon a
matter of public concern.”). As a suspended (rather than terminated) police officer, Plaintiff
nevertheless remained a sworn law enforcement officer and therefore was not speaking “as a
citizen”. 4 See Anemone v. Metropolitan Transp. Auth., 05-CV-3170 (LAP), 2008 U.S. Dist.
LEXIS 36091, *47 (S.D.N.Y. May 2, 2008) (holding that Plaintiff’s post-suspension speech
could not form the basis of a First Amendment claim, stating “[w]hile [Plaintiff] was technically
suspended when he spoke before the State Assembly, he nevertheless was acting pursuant to his
‘official duties’ relating to security”), aff’d, 629 F.3d 97 (2d Cir. 2011).
B.

City Defendants’ Actions Were Not Motivated By Plaintiff’s Speech.

To survive a summary judgment motion, Plaintiff must provide specific proof of
improper motivation on the part of the defendant officers. Curley, 268 F.3d at 73; Brown v. City
of New York, 13-CV-1018 (KBF), 2014 U.S. Dist. LEXIS 83513, *27-28 (S.D.N.Y. June 18,
2014). “Evidence of improper motive ‘may include expressions by the officials regarding their
state of mind, circumstances suggesting in a substantial fashion that the Plaintiff has been
4

The fact that Plaintiff was at his home when portions of the alleged harassment occurred, Schoolcraft, 2012 U.S.
Dist. LEXIS 128557 at *15-16, should not dictate whether his speech was as a citizen or as a public employee.
Frisenda v. Village of Malverne, 775 F. Supp. 2d 486, 509 (E.D.N.Y. 2011).

- 11 -

singled out, or the highly unusual nature of the actions taken.’” Dunk v. Brower, 11-CV-4564
(ER), 2013 U.S. Dist. LEXIS 160667, *25 (S.D.N.Y. Nov. 7, 2013) (quoting Blue v. Koren, 72
F.3d 1075, 1083-84 (2d Cir. 1995)). In this case, there were no expressions of an improper
motive by any NYPD official. 5 See Schoolcraft, 2012 U.S. Dist. LEXIS 128557 at *21; (56.1 at
¶¶66, 68). In the absence of such direct evidence, Plaintiffs circumstantial evidence of a
retaliatory motive, see Schoolcraft, 2012 U.S. Dist. LEXIS 128557, at *22-23, must be
“sufficiently compelling”. Bennett v. Goord, 343 F.3d 133, 138-139 (2d Cir. 2003). It is not.
Plaintiff may not rely on any circumstances occurring before February 2010. It is illogical
to conclude that any defendant could have harbored an intent to prevent Plaintiff from going to
the media with his allegations before his allegations became public in The Daily News on
February 1, 2010 (56.1 at ¶72), and before even Plaintiff himself decided (after his October 31,
2009 involuntary commitment) to go to the media. (56.1 at ¶¶73, 75). Plaintiff can point to no
evidence indicating that any defendant suspected Plaintiff would speak publicly before that time.
(56.1 at ¶¶73-75). In any event, even assuming such circumstances could be relied upon,
Plaintiff was neither singled out nor treated differently with respect to his internal complaints or
performance evaluation. Blue, 72 F.3d at 1083-84. Plaintiff would have been subjected to the
same disciplinary action even in the absence of any purportedly impermissible motive. Texas v.
Lesage, 528 U.S. 18, 21 (1999).
Plaintiff provides no basis for City Defendants’ allegedly improper motives other than his
own supposition or hearsay statements that he was isolated from his fellow officers, (56.1 at
¶11), a victim of a conspiracy to falsely portray him as psychologically unbalanced, (56.1 at

5

Plaintiff would have the court believe that one or more defendants invaded his home and drove hundreds of miles
to his upstate New York home in an effort to silence him without once in any way indicating what they expected
Plaintiff to do or not do as a result. (56.1 at ¶¶66, 68).

- 12 -

¶12), and/or “menaced” with an intent to silence him. 6 (56.1 at ¶61). See Anemone, 629 F.3d at
117 (summary judgment appropriate where reasonable jury would find that employer would have
treated Plaintiff’s in the same manner based on his workplace behavior, which occurred wellbefore any allegedly protected conduct).
With respect to alleged circumstances occurring after February 1, 2010, again, Plaintiff
cannot provide proof of any improper motive beyond his own personal assumption that any
officer present at his house was there to silence him. 7 Because Plaintiff opened the door only
once to accept an NYPD delivery, (56.1 at ¶65), only Plaintiff’s imagination serves to ascribe an
intent to silence him to those outside his door. 8 Such conclusory assertions are not sufficient to
support a motivation to deprive a person of his First Amendment rights. See Dunk, 2013 U.S.
Dist. LEXIS 160667 at 26 (quoting Cobb v. Pozzi, 363 F.3d 89, 198 (2d Cir. 2004)); Conte v.
County of Nassau, 06-CV-4746 (JFB)(ETB), 2010 U.S. Dist. LEXIS 104815, *83-85 (E.D.N.Y.
Sept. 30, 2010), and cases cited therein.
C.

Plaintiff’s First Amendment Right Was Not Chilled.

Where a party cannot show a change in his allegedly protected First Amendment activity,
he cannot show the requisite chilling of his First Amendment right to free speech. E.g., Curley,
268 F.3d at 73. The record is devoid of any instance where Plaintiff’s First Amendment rights
were actually restrained or chilled. To the contrary, the record is replete with instances where
6

Furthermore, Plaintiff cannot rely on his involuntary confinement as evidence of an improper motive because
probable cause existed for such confinement, as discussed infra. See, e.g., Petway v. City of New York, 12-CV-279
(ARR)(LB), 2014 U.S. Dist. LEXIS 28361 * 31-32 (E.D.N.Y. Mar. 4, 2014), and cases cited therein.
7

Plaintiff states that officers visited his home in upstate New York about six times from December 2009 through
2010, but not thereafter. (56.1 at ¶63). But Plaintiff is vague regarding who was there and what they said to
constitute an alleged attempt to deprive him of his First Amendment rights. (56.1 at ¶¶64, 66, 68). Furthermore,
when Plaintiff speaks in terms of City Defendants’ intent to silence him, he refers to their alleged intent to prevent
him from pursuing his internal complaints rather than speaking publicly. (56.1 at ¶69).
8

The motivation for the visitation recounted by Plaintiff in fact was to serve him with charges and specifications and
to inform him that if he returned to work, he would be placed back on the payroll, not to “silence him”. (56.1 at
¶67).

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Plaintiff exercised his First Amendment freedoms throughout NYPD’s alleged campaign to
intimidate and harass him. (56.1 at ¶76) (Daily News reporter contacted Plaintiff within a month
after Plaintiff’s suspension); (56.1 at ¶77) (Plaintiff corresponded with reporters and attorneys
via e-mail for “a couple years” beginning in 2010); (56.1 at ¶78) (Plaintiff spoke numerous times
with The Daily News, This American Life and The Village Voice in late 2009 and/or early 2010);
(56.1 at ¶79) (Plaintiff wrote a summary of his Jamaica Hospital confinement and provided that
summary to The Village Voice, The Daily News and his various attorneys); (56.1 at ¶80)
(Plaintiff began communicating with and provided his audio recordings to Village Voice reporter
Graham Rayman – author of “The NYPD Tapes” series – in early 2010 and continued to
communicate with him through the summer of 2012); (56.1 at ¶81) (Plaintiff gave copies of
recordings to Rayman and Plaintiff’s attorneys); (56.1 at ¶84) (Plaintiff had given “six or seven”
interviews to the media as of October 2012); (56.1 at ¶82) (Plaintiff gave all of his recordings to
his attorneys); (56.1 at ¶¶85-90) (Plaintiff contacted several elected officials, the Queens DA, the
U.S. Department of Justice and Plaintiffs’ counsel in Floyd v. City of New York, for whom
Plaintiff provided supporting affidavits). In fact, Plaintiff not only admits that none of the
defendants succeeded in dissuading him from speaking to the media, but he asserts their actions
actually “encouraged” him to do so. (56.1 at ¶¶91-92).
In sum, Plaintiff cannot even assert an unactionable “subjective chill,” see, e.g., Latino
Officers Ass’n v. Safir, 170 F.3d 167, 170 (2d Cir. 1999), let alone an actual restraint on his First
Amendment rights. See Colombo v. O’Connell, 310 F.3d 115, 117 (2d Cir. 2002); Curley, 268
F.3d at 73, and cases cited therein; Howard, 481 F. Supp. 2d at 309.

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D.

Defendant Timothy Trainor Must Be Dismissed.

Plaintiff’s only cause of action against defendant Timothy Trainor, is based on Plaintiff’s
First Amendment claims. (Exhibit A at ¶¶ 215-220, 245-261). Therefore, to the extent the Court
dismisses Plaintiff’s First Amendment claims, defendant Trainor must be dismissed as a
defendant. Regardless, Plaintiff has failed to adduce any specific evidence whatsoever that
defendant Trainor had any improper motivation to impair Plaintiff’s exercise of his First
Amendment rights. See, Curley, 268 F.3d at 73.
POINT IV
LACK OF PERSONAL INVOLVEMENT.
As discussed above in Point I(B), Section 1983 imposes liability only upon a defendant
who personally subjects, or causes to be subjected any person to the deprivation of any federal
right. See, e.g., Williams, 781 F.2d at 323.
A.

Defendants Trainor, Nelson, Caughey, Lauterborn and Hanlon

Plaintiff has not alleged that defendants Trainor, Nelson, Caughey, Lauterborn or Hanlon
had any personal involvement with regard to Plaintiff’s claims of excessive force and assault and
battery. (56.1 at ¶55) (force inside his apartment alleged only against defendants Broschart,
Marino, Gough, and Duncan); (56.1 at ¶56) (force inside hospital alleged only against defendants
Sawyer and James). Therefore, any claims against these individuals for § 1983 excessive force
and state law assault and battery should be dismissed with prejudice.
B.

Defendant Gerald Nelson

Plaintiff’s only claims against Gerald Nelson are that “[a]t all relevant times on October
31, 2009, defendant CHIEF GERALD NELSON was aware of defendant MARINO’s actions
and in fact, expressly authorized defendant MARINO to unlawfully enter Plaintiff’s residence,
remove Plaintiff against his will, and involuntarily confine Plaintiff in a psychiatric ward.” (56.1
- 15 -

at ¶57). However, no evidence has been discovered that Gerald Nelson in fact was aware of, or
authorized, Chief Marino’s actions on October 31, 2009 beyond Plaintiff’s suppositions. (56.1 at
¶58). Further, to the extent defendant Nelson was told information from other officers on the
scene and reacted in response to that information, he is shielded from liability for reasonably
relying upon information from his fellow officer. See, e.g., Anthony v. City of New York, 339
F.3d 129, 138 (2d Cir. 2003). Nelson is shielded by qualified immunity even if other officers
were mistaken or dishonest, provided that he reasonably relied on their statements. See Golphin
v. City of New York, 09-CV-1015 (BSJ), 2011 U.S. Dist. LEXIS 106272, *5-6 (S.D.N.Y. Sept.
19, 2011). As there is no evidence indicating defendant Nelson’s personal involvement in any of
Plaintiff’s claimed constitutional violations, he should be dismissed as a party.
C.

Defendant Timothy Caughey.

It is unclear what, if any, causes of action are being asserted against Timothy Caughey
based on Plaintiff’s Third Amended Complaint (“SAC”). The only references to Caughey are his
presence at an appeal meeting (Exhibit A at ¶69), that he issued Plaintiff a written reprimand in
March 2009 (Exhibit A at ¶¶90-92), that Plaintiff believed he had helped destroy documents
relating to a non-party police officer (Exhibit A at ¶¶122-124), that he issued a memorandum
asking officers to forward calls from IAB to him (Exhibit A at ¶¶132-134), that he confiscated
and then returned Plaintiff’s memo book on the date of incident (Exhibit A at ¶¶139-142), and
that Plaintiff feared that Caughey may place his “safety in jeopardy” (Exhibit A at ¶¶143-148).
However, based on the extensive discovery conducted in this matter, it is clear that Caughey had
no personal involvement in any of the claimed misconduct. In fact, when asked directly at his
deposition what his claims were against Caughey, Plaintiff asserted “the fear and intimidation he
created, from his behavior,” in reference to actions inside the Precinct stationhouse that day, not
any actions that occurred at Plaintiff’s residence. (56.1 at ¶59). While Plaintiff claims that
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Caughey’s behavior was “menacing, and intimidating and threatening,” he does not allege that
he believed Caughey would actually use his weapon against him, and does not claim that
Caughey ever used any force against Plaintiff. (56.1 at ¶62) (“no, he never touched me”). As
such, Plaintiff’s bald claims relating to “fear and intimidation” are not actionable.
Plaintiff also asserts that he “believed” that Caughey was “involved with what Sergeant
James was telling the hospital, in order to have me locked away. I believe that’s a strong
possibility.” (56.1 at ¶52). To the extent this could be construed as a claim against Caughey for
Conspiracy, it nonetheless fails as it is well-established in the Second Circuit that vague and
conclusory allegations of conspiracy are insufficient to withstand dismissal, either in a motion to
dismiss or on summary judgment. See e.g. San Fillipo v. U.S. Trust Co. of New York, Inc., 737
F.2d 246, 256 (2d Cir.), cert. denied, 470 U.S. 1035 (1985) (affirming a dismissal of conspiracy
complaint where allegations were vague and unsupported by a description of particular overt
act). Here, there is no evidence that Caughey and James had any discussions about Adrian
Schoolcraft on October 31, 2009. (56.1 at ¶53). In fact, James does not even know Caughey.
(56.1 at ¶54).
Moreover, under the intra-corporate conspiracy doctrine, as discussed in depth infra,
officers, agents, and employees of a single corporate entity are legally incapable of conspiring
together. E.g., Nassau County Emple. “L” v. County of Nassau, 345 F. Supp. 2d 293, 304-05
(E.D.N.Y. 2004). This is particularly so where the officers and employees are alleged to be
acting within the scope of their employment.” Rini v. Zwirn, 886 F. Supp. 270, 291 (E.D.N.Y.
1995). Accordingly, Plaintiff’s hunch on a mere “possibility” that Caughey was involved in the
decision to have Plaintiff committed cannot withstand summary judgment.

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POINT V
PLAINTIFF CANNOT DEMONSTRATE A
CONSPIRACY SUFFICIENT TO SURVIVE
SUMMARY JUDGMENT.
According to Plaintiff, “Defendants conspired and acted in concert to do whatever was
necessary, lawful or not, to cause the arrest, imprisonment, and involuntary confinement of
Plaintiff ADRIAN SCHOOLCRAFT” when they “(a) manufactured false evidence; (b)
unlawfully entered Plaintiff’s home; (c) illegally seized Plaintiff’s property; (d) verbally and
physically threatened Plaintiff in an attempt to silence him; (e) stalked and menaced Plaintiff at
his home; and (b) pressured, bribed, coerced and induced individuals to have Plaintiff
involuntarily confined to hospital treatment without his consent or any other lawful basis for
doing so.” (Exhibit A at ¶291). However, in order to prove a § 1983 conspiracy, a Plaintiff must
show: (1) an agreement between two or more state actors or between a state actor and a private
entity; (2) to act in concert to inflict an unconstitutional injury; and (3) an overt act done in
furtherance of that goal, causing damages. Pangburn v. Culbertson, 200 F.3d 65, 72 (2d Cir.
1999). Plaintiff cannot demonstrate a conspiracy between members of the NYPD or between
members of the NYPD and other actors sufficient to survive summary judgment.
A.

The Intra-Corporate Conspiracy Doctrine Bars Liability for Any Conspiracy
Amongst Members of the NYPD.

The intra-corporate conspiracy doctrine generally bars liability when the alleged
conspirators work for the same organization. See Hoffman v. Nassau County Police Dep’t, No.
06-CV-1947 (SJF)(AKT), 2008 U.S. Dist. LEXIS 35377, *15 (E.D.N.Y. Apr. 30, 2008) (citing
Girard v. 94th St. & Fifth Ave. Corp., 530 F.2d 66, 71 (2d Cir. 1976)); Danielak v. City of New
York, No. 02-CV-2349 (KAM), 2005 U.S. Dist. LEXIS 40901, *43-44 (E.D.N.Y. Sept. 26,
2005) (“[T]he intra-corporate conspiracy doctrine bars Plaintiff’s conspiracy claims because all

- 18 -

of the individual defendants were employees of the New York City Police Department, and were
acting within the scope of their employment as police officers when they arrested Plaintiff.”).
Therefore, to the extent that Plaintiff alleges a conspiracy amongst and between members of the
NYPD, such a claim must fail.
B.

There is No Evidence Of a Conspiracy Between City Defendants and
Individuals Outside of the NYPD.

To the extent that Plaintiff alleges a conspiracy between members of the NYPD and the
FDNY, and/or members of the NYPD and employees of the Jamaica Hospital Medical Center,
Plaintiff’s conspiracy claim nonetheless fails because there is no evidence, aside from Plaintiff’s
own conclusory and self-serving statements, to suggest that there was any agreement between
any defendants to act in concert to inflict an unconstitutional injury.
The essential element of a conspiracy claim is an agreement to deprive a Plaintiff of his
constitutional rights because without a “meeting of the minds, the independent acts of two or
more wrongdoers do not amount to conspiracy.” National Congress for Puerto Rican Rights v.
City of New York, 75 F. Supp.2d 154, 168 (S.D.N.Y. 1999); see also, Walker v. Goord , 98-CV5217 (DC), 2000 U.S. Dist. LEXIS 3501, *24 (S.D.N.Y. Mar. 21, 2000) (“Plaintiff must prove
that defendants acted in a willful manner, culminating in an agreement, understanding or meeting
of the minds, that violated [his] rights, privileges, or immunities secured by the Constitution or
federal courts”); Perez v. City of New York, 97-CV-2915, 1999 U.S. Dist. LEXIS 21137, *11
(E.D.N.Y. Nov. 16, 1999) (recognizing that an essential element of a claim of conspiracy is an
agreement among co-conspirators to violate Plaintiff’s constitutional rights); Webb v. Ashburn,
96-CV-0324 (SAS), 1997 U.S. Dist. LEXIS 2848, *14 (S.D.N.Y. Mar. 13, 1997) (“[w]ithout
such an agreement, individual acts of misconduct do not amount to conspiracy”).

- 19 -

It is well-established in the Second Circuit that vague and conclusory allegations of
conspiracy are insufficient to withstand dismissal, either in a motion to dismiss or on summary
judgment. See e.g. Rahman v. Philip, 92-CV-5349 (SHS), 1995 U.S. Dist. LEXIS 17018, *6-7
(S.D.N.Y. Nov. 15, 1995) (dismissing conspiracy claim against Correction Officer on summary
judgment on the grounds that Plaintiff failed to come forward with “facts from which the
existence of a conspiracy may be inferred”); San Fillipo v. U.S. Trust Co. of New York, Inc., 737
F.2d 246, 256 (2d Cir. 1984), cert. denied, 470 U.S. 1035 (1985) (affirming a dismissal of
conspiracy complaint where allegations were vague and unsupported by a description of
particular overt act); Sommer v. Dixon, 709 F.2d 173, 175 (2d Cir.), cert. denied, 464 U.S. 857
(1983) (“a complaint containing only conclusory, vague, or general allegations of conspiracy to
deprive a person, of constitutional rights cannot withstand a motion to dismiss”).
Plaintiff’s Third Amended Complaint contains only conclusory allegations against City
Defendants, and Plaintiff cannot point to any facts which tend to show that there was a specific
agreement between them and any other individuals to violate Plaintiff’s constitutional rights or
that any acts were committed in furtherance of an alleged conspiracy. Plaintiff’s Third Amended
Complaint is entirely devoid of any allegations regarding when or where an agreement was
made, the nature of such an agreement, or the specific acts performed in furtherance of this
alleged agreement, and the record does not support Plaintiff’s conclusory allegations. Similarly,
other than the conclusory allegations in the Third Amended Complaint, Plaintiff has not adduced
any evidence in discovery necessary to create a genuine issue of material fact.
No evidence in the record suggests any agreement, express or tacit, between or among the
City Defendants, FDNY, and Jamaica Hospital Medical Center. As such, they were not willfully

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engaged in joint activity, nor is there any indication that they participated in a conspiracy.
Accordingly, Plaintiff’s wholly conclusory conspiracy claim cannot survive summary judgment
POINT VI
INTENTIONAL
INFLICTION
OF
EMOTIONAL
DISTRESS
CANNOT
SUCCEED WHERE THE UNDERLYING
CLAIMS FALL WITHIN TRADITIONAL
TORT LIABILITY.
Plaintiff’s cause of action for Intentional Infliction of Emotional Distress (“IIED”) is a
claim of last resort, meaning that if Plaintiff can recover damages on any one of his other claims,
then he cannot also recover damages for IIED. See Moore v. City of New York, 219 F. Supp. 2d
335, 339 (E.D.N.Y. 2002) (quoting EEOC v. Die Fliedermaus L.L.C., 77 F. Supp. 2d 460, 472
(S.D.N.Y.1999)) “In other words, claims of intentional and negligent infliction of emotional
distress cannot coexist with claims of excessive force, assault, and battery.” Saldana v. Port
Chester, 09-CV-6268 (SCR)(GAY), 2010 U.S. Dist. LEXIS 142099, *13 (S.D.N.Y. July 21,
2010) (citing Dorn v. Maffei, 386 F. Supp. 2d 479, 486 n.5 (S.D.N.Y. 2005); Naccaratto v.
Scarselli, 124 F. Supp. 2d 36, 44-45 (N.D.N.Y. 2000)); see also, Rasmussen v. City of New
York, 766 F. Supp. 2d 399, 415 (E.D.N.Y. 2011) (“an intentional infliction claim is a gap-filling
cause of action meant to address those few areas of outrageous anti-social behavior not addressed
under any other cause of action.”). Because Plaintiff can recover based upon claims of unlawful
search and seizure and/or excessive force, Plaintiff cannot also maintain a claim for IIED and
summary judgment must be granted for City Defendants.

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POINT VII
COMMON LAW NEGLIGENCE AGAINST A
MUNICIPALITY
MAY
ONLY
STAND
WHERE A PLAINTIFF ALLEGES THAT A
DEFENDANT ACTED OUTSIDE THE SCOPE
OF HIS EMPLOYMENT.
Plaintiff’s claim for relief under a theory of common law negligence asserting the City of
New York was negligent in its hiring, training, supervising and retention of its agents, servants
and employees cannot stand. (Exhibit A at ¶346-358). Under New York law, to state a claim for
negligent hiring and retention, Plaintiff must show, in addition to the standard elements of
negligence, that: “(1) that the tort-feasor and the defendant were in an employee-employer
relationship; (2) 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; and, (3) that the tort was
committed on the employer’s premises or with the employer’s chattels.” Ehrens v. Lutheran
Church, 385 F.3d 232, 235 (2d Cir. 2004) (internal citations and quotation marks omitted); see
also Coffey v. City of New York, 49 A.D.3d 449, 450-451 (1st Dep’t 2008) (“Recovery on a
negligent hiring or retention theory requires a showing that the employer was on notice of the
relevant tortious propensities of the wrongdoing employee”).
Such a claim cannot be sustained, however, when the defendant acts within the scope of
her employment. Newton v. City of New York, 681 F. Supp. 2d 473, 488 (S.D.N.Y. 2010);
Stokes v. City of New York, 05-CV-0007 (JFB)(MDG), 2007 U.S. Dist. LEXIS 32787, *53-54
(E.D.N.Y. May 3, 2007); Colodney v. Continuum Health Partners, Inc., 03-CV-7276 (DLC),
2004 U.S. Dist. LEXIS 6606, *27-28 (S.D.N.Y. Apr. 15, 2004). It has long been held that:
Generally, where an employee is acting within the scope of his or her
employment, thereby rendering the employer liable for any damages
caused by the employee’s negligence under a theory of respondeat
superior, no claim may proceed against the employer for negligent hiring
or retention . . . this is because if the employee was not negligent, there is
- 22 -

no basis for imposing liability on the employer, and if the employee is
negligent, the employer must pay the judgment regardless of the
reasonableness of the hiring or retention or the adequacy of the training.
Sun Min Lee v. J.B. Hunt Transp., Inc., 308 F. Supp. 2d 310, 312 (S.D.N.Y. 1994)
(quoting Karoon v. New York City Transit Authority, 241 A.D.2d 323, 324 (N.Y. App. Div. 1st
Dept. 1997)); see also Eifert v. Bush, 27 A.D.2d 950 (N.Y. App. Divi. 2d Dept. 1967), aff’d 22
N.Y.2d 681 (1968). In fact, this Court has held that “[a] claim for negligent hiring or supervision
can only proceed against an employer for an employee acting outside the scope of her
employment.” Colodney v. Continuum Health Partners, Inc., 03-CV-7276 (DLC), 2004 U.S.
Dist. Lexis 6606, *27 (S.D.N.Y. Apr. 15, 2004) (internal citations omitted). Here, Plaintiff
specifically alleges that the City Defendants in this matter were acting within the scope of their
employment. (Exhibit A at ¶¶11-12). This is legally inconsistent and improper. Moreover, the
City admits that the defendant officers were acting within the scope and course of their
employment on the date of the alleged incident. Therefore, Plaintiff’s claims against the City of
New York for negligent hiring and retention must be dismissed as a matter of law.
POINT VIII
PLAINTIFF’S
CLAIM
OF
NELIGENT
DISCLOSURE OF IAB COMPLAINTS FAILS
AS A MATTER OF LAW.
Plaintiff interposes a claim against the City of New York based on allegations that it was
“negligent and careless when it repeatedly allowed allegedly confidential IAB complaints
regarding supervisory personnel to be ‘leaked’ to the very same officials of who were the
subjects of the complaints.” (Exhibit A at ¶¶359-361). Plaintiff’s claim fails because such a
claim is barred by New York State public policy, Plaintiff cannot establish that a duty was owed
to him by IAB, and because any disclosure, if made, was given to an individual with a right to
that information.
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A.

Plaintiff’s Claim of Negligent Disclosure Is Barred by Public Policy.

Plaintiff’s claim based on the IAB’s disclosure of confidential information is both
explicitly and implicitly barred by New York policy, based on the bar against claims for
negligent investigation and the policy against the transmogrification of torts.
1. Negligent Investigation Is Not a Valid Cause of Action.
Plaintiff’s claims are little more than an attempt to evade the bar on claims for negligent
investigation as New York State does not permit causes of action based on negligent
investigation or prosecution. See Russ v. State Employees Federal Credit Union (SEFCU), 298
A.D.2d 791, 793 (N.Y. App. Div. 2002) (“a claim for negligent training in investigative
procedures is akin to a claim for negligent investigation or prosecution, which is not actionable
in New York”); see also, Jenkins v. City of New York, 91-CV-3539 (RLC), 1992 U.S. Dist.
LEXIS 8279, *23-24 (S.D.N.Y. Jun. 15, 1992). Plaintiff is alleging that the IAB, while in the
process of investigating his complaint, was negligent. Plaintiff has clearly pleaded a negligent
investigation, regardless of his phraseology. Because such a tort is not permitted under New
York State Law, summary judgment must be granted for City Defendants on this claim.
2. Plaintiff Cannot Transmogrify an Intentional Tort Into One of Negligence.
Even if Plaintiff were successful in distinguishing his claim from that of a negligent
investigation, this claim is duplicative of intentional torts already alleged by Plaintiff, and is in
violation of New York State’s policy against the transmogrification of torts. See Schmidt v.
Bishop, 779 F. Supp. 321, 324-25 (S.D.N.Y. 1991) (dismissing negligence claim by Plaintiff
who alleged that her priest sexually abused her by stating “New York Courts have rejected
uniformly such attempts to transmogrify intentional torts into negligence.”); Mitchell v. Cty. of
Nassau, 05- CV-4957 (SJF)(WDW), 2007 U.S. Dist. LEXIS 38711, *42-43 (E.D.N.Y. May 24,
2007) (“Plaintiff’s creative attempt to describe her negligence claim as one for . . . negligent
- 24 -

maintenance of equipment and negligent hiring and supervision, cannot circumvent [the] public
policy of the State of New York.”); Jenkins v. City of New York, 91-CV-3539 (RLC), 1992 U.S.
Dist. LEXIS 8279, *23-24 (S.D.N.Y. June 15, 1992) (dismissing negligence claims described as
negligent investigation, negligent training and negligent supervision, on the basis of New York’s
public policy prohibiting causes of action for negligent prosecution or investigation).
Plaintiff alleges that he was retaliated against by his superiors because of the allegedly
negligent disclosure. However, elsewhere in the Third Amended Complaint, he also asserts
independent, intentional causes of action against the City Defendants for this same retaliation.
(Exhibit A at ¶¶ 2, 160, 301-312). This is precisely the sort of transmogrification of torts from
intentional to negligent causes of action that New York State law bars.
Moreover, it is well settled that where a Plaintiff pleads facts that support claims of
intentional torts, the same set of facts cannot also support a claim of negligence. See, e.g.,
Naccaratto, 124 F. Supp. 2d at 45 (“[W]hen a Plaintiff brings excessive force and assault claims
which are premised upon a defendant’s allegedly intentional conduct, a negligence claim with
respect to the same conduct will not lie.”). Thus, there is no good faith basis to proceed with a
purported claim of negligence claim against the City of New York for failure to keep IAB
complaints confidential where Plaintiff has alleged the same conduct as an intentional tort under
42 U.S.C. § 1983.
B.

IAB Did Not Owe Plaintiff a Duty of Confidentiality.

To state a claim for negligence under New York law, a Plaintiff must plausibly allege
three elements: “(1) the existence of a duty on defendant’s part as to Plaintiff; (2) a breach of this
duty; and (3) injury to the Plaintiff as a result thereof.” Alfaro v. Wal-Mart Stores, Inc., 210 F.3d
111, 114 (2d Cir. 2000) (quoting Akins v. Glens Falls City Sch. Dist., 53 N.Y.2d 325, 333 (N.Y.

- 25 -

1981)). In the absence of a duty, there is no breach, and without a breach, there is no liability.
Pulka v. Edelman, 40 N.Y.2d 781, 782 (N.Y. 1976).
In order for the City of New York to owe Plaintiff a duty of confidentiality, the City and
Plaintiff must first have a “special relationship.” McLean v. New York, 12 N.Y.3d 194, 199
(N.Y. 2009). There are four requirements for the establishment of a special relationship with a
municipal entity: “(1) an assumption by the municipality, through promises or actions, of an
affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the
municipality’s agents that inaction could lead to harm; (3) some form of direct contact between
the municipality’s agents and the injured party; and (4) that party’s justifiable reliance on the
municipality’s affirmative undertaking.” Cuffy v. New York, 69 N.Y.2d 255, 260 (N.Y. 1987)
(citations omitted).
To the extent Plaintiff’s argument is premised on the notion that IAB undertakes such a
duty for all complaining witnesses, Plaintiff is mistaken. IAB exists “to discipline officers within
the department.” Demaine v. Samuels, 29 F. App’x 671, 675 (2d Cir. 2002). It is the purpose and
duty of the IAB to act in the interests of justice and the City of New York, and it should not be
imputed now with the duty to protect the confidentiality of every complainant with whom it
communicates. While maintaining the confidentiality of sources may be a mechanism by which
it achieves its goal, Plaintiff has presented no evidence that supports the assumption that a
conversation with an investigator, absent some clear indication, will be kept confidential.
However, to the extent that Plaintiff’s argument is premised on the notion that IAB
explicitly undertook a duty to act on behalf of him personally, Plaintiff can provide no evidence
to support this allegation. Plaintiff cannot establish that there was a special relationship because
he explicitly told NYPD investigators with whom he spoke that he did not want to be anonymous

- 26 -

and that he was not concerned with confidentiality. (56.1 at ¶93) (Plaintiff: “there’s no
confidentiality, there’s no -- I’m -- I’m not being anonymous at all.”). As such, Plaintiff cannot
demonstrate that the City assumed any duty to protect his confidentiality.
Further, there is no evidence that Plaintiff justifiably relied on any affirmative
undertaking. Without an explicit assurance by members of the IAB that they would maintain his
confidentiality, any reliance that his name would remain confidential would not be justifiable. In
fact, to establish the individual’s justifiable reliance, Plaintiff must show that the municipality’s
actions “lulled the injured party into a false sense of security and has thereby induced him either
to relax his own vigilance or to forego other available avenues of protection.” Cuffy, 69 N.Y.2d
at 261. Plaintiff has not demonstrated how his reliance on IAB confidentiality either induced him
to relax his own vigilance or to forego other avenues of “protection.”
Finally, even if Plaintiff had requested and been assured of his anonymity, there is
similarly no evidence that the municipality’s agents had any knowledge that inaction could lead
to harm. To this point, Plaintiff has not produced a single item of evidence regarding the claimed
“notice” of this issue allegedly provided by the cases of Frank Pallestro and/or Adhyl Polanco.
Even if he had, Plaintiff has not presented evidence of which member of IAB allegedly breached
his confidentiality, nor whether that individual had any reason to know that Plaintiff would be
put in harm’s way by the alleged breach by way of the claimed experiences of Frank Pallestro
and/or Adhyl Polanco.
As a result of the foregoing there was no special relationship between Plaintiff and the
City, and the City did not owe Plaintiff any duty of confidentiality.

- 27 -

C.

Plaintiff’s Claim of Negligent Disclosure Fails Because the Disclosure Was
Made to an Individual with a Right to That Information.

Even had there been a special relationship between Plaintiff and the City and a duty owed
on the part of the IAB to Plaintiff, Plaintiff’s claim for “negligent disclosure” nonetheless fails as
a matter of law. Where negligent disclosure of confidential information is concerned, a
disclosure made to a party who had a right to the information cannot form the basis of a claim.
C.f., Rosen v. Arden Hill Hosp., 163 Misc.2d 70, 71 (N.Y. Sup. Ct. 1993) (summary judgment
proper where confidential information was disclosed to someone with a “right to full and
complete disclosure” of the records). The Court in Rosen explained that “any alleged procedural
negligence on the part of defendant or its employees cannot result in liability since the recipient
of the information received no more than what she was entitled to under the law.” Id.
When IAB pursues charges against an officer that may lead to termination, that officer
has due process rights, including a full adversarial hearing and the right to face their accuser.
See, e.g., Locurto v. Safir, 264 F.3d 154, 171 (2d Cir. 2001) (“when such a public employee is
terminated, procedural due process is satisfied if the government provides notice and a limited
opportunity to be heard prior to termination, so long as a full adversarial hearing is provided
afterwards”). The complaint specifically identifies defendant Caughey as the individual that IAB
contacted; he is the only person with whom IAB is accused of trying to discuss the merits of
Plaintiff’s accusations. (Exhibit A at ¶ 135). He is also the individual whom Plaintiff accused of
misconduct, and, should he have been brought up on charges and specifications, he is the one
who would have had a right to the information Plaintiff provided that had led to his termination.
Similarly, though not expressly stated in his Third Amended Complaint, Plaintiff alleges that
defendant Mauriello was advised of the allegations of crime complaint manipulation that were
made against him by Plaintiff. Because defendant Mauriello was brought up on charges and

- 28 -

specifications with regard to that alleged misconduct, he had a right to the information Plaintiff
provided in advance of any Departmental trial. (56.1 at ¶97). As a result, the information
allegedly disclosed, even if confidential, is not capable of forming the basis of a claim under
New York State law.
POINT IX
PLAINTIFF CANNOT ASSERT A CLAIM
FOR MALICIOUS ABUSE OF PROCESS
BECAUSE HE WAS NOT HELD PURSUANT
TO LEGAL PROCESS.
Plaintiff asserts a claim of malicious abuse of process claiming that City Defendants
“issued and/or commenced legal process to place Plaintiff ADRIAN SCHOOLCRAFT under
false arrest and imprisonment and to have him involuntarily committed to JHMC” and that they
did so “in order to obtain the collateral objective of preventing Plaintiff from appealing his
performance evaluation… [and to] preven[t] Plaintiff from disclosing the aforementioned
evidence of NYPD misconduct and corruption Plaintiff had been collecting and documenting.”
(Exhibit A at ¶¶266-269). The elements of a claim under Section 1983 for malicious abuse of
process are derived from state law. Cook v. Sheldon, 41 F.3d 73, 80 (2d Cir. 1994). Under New
York law, an abuse of process claim has three essential elements: (1) regularly issued process,
either civil or criminal, (2) an intent to do harm without excuse or justification, and (3) use of the
process in a perverted manner to obtain a collateral objective. Curiano v. Suozzi, 63 N.Y.2d 113,
116 (N.Y. 1984) (quoting Board of Educ. v. Farmingdale Classroom Teachers Assn., 38 N.Y.2d
397 (N.Y. 1975). However, Plaintiff cannot succeed on this claim as he was not held pursuant to
criminal legal process. 9

9

Plaintiff’s Third Amended Complaint makes clear that he is claiming malicious abuse of process for his “arrest” –
indicating that he believes he was held pursuant to unlawful criminal legal process. However, even if he had alleged
that he was held pursuant to unlawful civil legal process, such a claim could not survive a summary judgment

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Plaintiff does not allege that he was formally arrested, and processed through the system,
resulting in a formal arrest and prosecution. Thus, Plaintiff seems to allege that the act of taking
him from his home in handcuffs to the Jamaica Hospital Medical Center acts as a type of
warrantless arrest. However, Plaintiff is nonetheless foreclosed in his claim as a warrantless
arrest is not considered legal process. See, e.g., Sforza v. City of New York, 07 Civ. 6122
(DLC), 2009 US Dist. LEXIS 27358, *47 (S.D.N.Y. Mar. 31, 2009) (dismissing malicious abuse
of process claim because Plaintiff’s warrantless arrest “did not involve legal process.”); Shmueli
v. City of New York, 03-CV-1195 (PAC), 2007 U.S. Dist. LEXIS 42012, at *31 (S.D.N.Y. June
7, 2007) (arrest without a warrant is not effected “pursuant to a legal process”). Thus, Plaintiff’s
claim for malicious abuse of process based on criminal legal process relating to his claimed
arrest must be dismissed.
POINT X
PLAINTIFF CANNOT SURVIVE SUMMARY
JUDGMENT ON ANY OF HIS THEORIES OF
MUNICIPAL LIABILITY.
Plaintiff alleges a single, yet convoluted, claim for municipal liability, which can be
summarized as a claim that the City has unconstitutional customs and policies of (1)
intimidating, threatening, and retaliating against police officers when said police officers
challenge unlawful NYPD quota policies and/or attempt to disclose instances of “NYPD
corruption and police misconduct, fraud and breaches of the public trust,” (2) intentionally
“leaking” officers’ IAB complaints, (3) deliberate indifference to the proper training,
supervision, and discipline of supervisors, “policy making officials,” and members of the
Internal Affairs Bureau (“IAB”), despite allegations of illegal and/or unconstitutional conduct,
motion. Only criminal abuse of process is cognizable under Section 1983 because civil abuse of process does not
amount to a deprivation of rights. Green v. Mattingly, 585 F.3d 97, 104 (2d Cir. 2009)(“‘section 1983 liability . . .
may not be predicated on a claim of malicious abuse of’ . . . civil process,”)(quoting Cook, 41 F.3d at 79-80).

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and (4) a quota system for NYPD officers, which includes a policy of awarding incentives to
officers who meet or exceed the stop, summons, or arrest quotas and a policy of punishing
officers who fail to meet the quotas. (Exhibit A at ¶303). Plaintiff asserts that these policies
and/or practices resulted in (1) the denial of his liberty without due process of law, (2) an
unlawful seizure and arrest not based upon probable cause, (3) excessive force imposed upon
him, (4) summary punishment, (5) denial of his equal protection under the law, and (6) denial of
his right to free speech. (Exhibit A at ¶312).
To state a claim for municipal liability, a Plaintiff must allege plausibly one of four
different types of violations: (A) the official responsible for establishing policy, with respect to
the subject matter in question to the specific action, caused the alleged violation of the Plaintiff’s
rights; (B) the existence of an unlawful practice by subordinate officials so permanent and well
settled to constitute “custom or usage,” with proof that this practice was so manifest as to imply
the acquiescence of policy-making officials; (C) a failure to train or supervise that amounts to
“deliberate indifference” to the rights of those with whom the municipality’s employees interact;
or (D) the existence of a formal policy, officially promulgated or adopted by a municipality. 10
Further, according to Monell and its progeny, in order to hold a municipality liable as a
“person” within the meaning of §1983, a Plaintiff must demonstrate that a policy or custom of
the City caused the deprivation of the injured Plaintiff’s federal or constitutional rights. See, e.g.,
Monell v. City of New York, et al., 436 U.S. 658, 690-91 (1978); City of Canton v. Harris, 489
U.S. 378 (1989); Sarus v. Rotundo, 831 F.2d 397, 400 (2d Cir. 1987). “To establish Monell
liability, the causal link must be strong; that is, the policy must be the ‘moving force’ behind a

10

Plaintiff has not alleged the existence of a “formal policy, officially promulgated or adopted by a municipality,”
and thus, cannot proceed under the first of the four different theories of municipal liability. Monell, 436 U.S. at 690.

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constitutional violation.” Mercado v. City of New York, 08-CV-2855 (BSJ)(HP), 2011 U.S. Dist.
LEXIS 140430, at *23 (S.D.N.Y. Dec. 5, 2011) (quoting Monell, 436 U.S. at 691, 694).
As discussed below, Plaintiff has not plausibly alleged any of the four theories of Monell
liability, and further cannot demonstrate through any admissible evidence that even if a violation
of his constitutional rights occurred, that it was caused by a municipal policy or practice.
A.

Plaintiff Has Not Alleged Conduct By the Official Policy Maker.

Under the first theory of municipal liability, Plaintiff must allege that the official
responsible for establishing policy, with respect to the subject matter in question to the specific
action, caused the alleged violation of the Plaintiff’s rights. See Pembaur v. City of Cincinnati,
475 U.S. 469, 483-84 (1986) (plurality opinion). To demonstrate that a municipal employee is a
policy maker, he must be shown to have “final decision-making authority over the challenged
act” as a matter of State Law. See Pembaur, 475 U.S. at 481 (policymaking authority may be
“granted directly by a legislative enactment or may be delegated by an official who possesses
such authority”). “Section 434(b) of the New York City Charter provides that ‘[t]he
commissioner shall be the chief executive officer of the police force. He shall be chargeable with
and responsible for the execution of all laws and the rules and regulations of the department.’”
Allen v. City of New York, No. 03-CV-2829 (KMW)(GWG), 2007 U.S. Dist. LEXIS 15, *59
(S.D.N.Y. Jan. 3, 2007) (concluding that the Assistant Chief was not the final policymaker for
delaying the arraignment of arrestees); N.Y.C Charter § 434(b). Plaintiff has not brought claims
against former Commissioner Raymond W. Kelly, and cannot demonstrate that under New York
State law, any of the City Defendants had “final policymaking authority” to implement the
purported policies complained of by Plaintiff. Accordingly, Plaintiff has not carried his burden to
show as a matter of law that any of the City Defendants involved in the alleged violations had

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any policymaking authority, and thus Plaintiff cannot succeed on the first theory of municipal
liability.
B.

Plaintiff’s Claim of an Unlawful Practice Fails Because He Has Not Alleged
and Cannot Show Conduct Sufficient to Demonstrate a “Custom or Usage”
Indicating Acquiescence.

Under the second theory of municipal liability, a City may be held liable where the
existence of an unlawful practice by subordinate officials is so permanent and well settled that it
constitutes a “custom or usage,” with proof that this practice was so manifest as to imply the
acquiescence of policy-making officials. See City of St. Louis v. Praprotnik, 485 U.S. 112, 12730 (1985) (plurality opinion); Sorlucco v. New York City Police Dep’t, 971 F.2d 864, 871 (2d
Cir. 1992). Plaintiff cannot maintain such a claim in this matter, as he cannot demonstrate a
pattern of conduct from a handful of unrelated and inadmissible allegations of unconstitutional
conduct by lower level employees. Nor can Plaintiff rely on contemporaneous or subsequent
conduct to establish a pattern of violations that would suffice to put the City on notice. Finally,
Plaintiff cannot demonstrate that any alleged practices were the moving force behind the
constitutional violations alleged herein.
1. Plaintiff’s Claims of Intimidation and Threats of Retaliation and Intentionally
Leaking IAB Complaints Fail.
While the existence of a municipal policy may be inferred from a consistent pattern of
informal acts or omissions by policy makers, a single isolated instance of unconstitutional
conduct by a lower level municipal employee is not sufficient to base a finding of municipal
policy or, therefore, liability. City of Oklahoma v. Tuttle, 471 U.S. 808, 824 (1985); Carnesi v.
City of N.Y., 98-CV-4899 (LMM), 2001 U.S. Dist. LEXIS 14561, at *14-15 (S.D.N.Y. 2001)
(dismissing claim against City where Plaintiff solely made allegations that abuse was “common
and well-known,” which were insufficient to infer municipal policy or custom); Hayes v. Perotta,

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751 F. Supp. 2d 597, 601 (S.D.N.Y. 2010) (a “custom or policy cannot be shown by pointing to a
single instance of unconstitutional conduct by a mere employee of the [government]”); Sorlucco,
971 F.2d at 870 (municipality may not be held liable under § 1983 for isolated unconstitutional
acts of its employees); Santiago v. Campisi, 91 F. Supp. 2d 655, 675-76 (S.D.N.Y. 2000) (“A
single incident of unconstitutional activity is insufficient to infer a custom, policy, or practice as
required by Monell to impose municipal liability.”).
Further, “a handful of isolated incidents insufficient to create a material fact in dispute
about the existence of any [] policy.” Escobar v. City of New York, 765 F. Supp. 2d 415, 420
(E.D.N.Y. 2011); see also Dettelis v. City of Buffalo, 3 F. Supp. 2d 341, 348 (four
unconstitutional strip-searches in addition to the incident in question in seven years failed as a
matter of law to constitute a custom); Edwards v. City of New York, 03-CV-9407, 2005 U.S.
Dist. LEXIS 34376, at *33 (S.D.N.Y. Dec. 19, 2005) (Monell “would be rendered sterile if, as
Plaintiff asserts, mere conclusory allegations of a few isolated incidents ... were sufficient to hold
the municipality liable”); Giaccio v. City of New York, 308 Fed. Appx. 470, 471-72 (2d Cir.
2009) (identification of “at most, only four examples of [alleged practice] . . . falls far short of
establishing a practice that is so ‘persistent or widespread’ as to justify the imposition of
municipal liability”) (citation omitted); Davis v. City of New York, 228 F. Supp. 2d 327, 346
(S.D.N.Y. 2002) (“two incidents of unconstitutional conduct by low-level employees in a city
agency with over 35,000 employees can never provide a reasonable basis for finding a
widespread or well-settled custom.” (emphasis in original). As discussed below, Plaintiff has not
met the burden of demonstrating so widespread, permanent, and well-settled a practice that it
constitutes a “custom or usage” of the City of New York that its existence implies the
acquiescence of policy-making officials.

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Plaintiff’s theories of municipal liability include allegations that the NYPD
“[i]ntimidat[ed] and threaten[ed] police officers with retaliation when said police officers
challenge[d] unlawful NYPD quota policies” and “attempt[ed] to disclose instances of NYPD
corruption and police misconduct, fraud and breaches of the public trust” and “[r]etaliat[ed]
against police officers with suspensions and disciplinary hearings who disclose or attempt to
disclose NYPD corruption and police misconduct.” (Exhibit A at ¶303(iv)-(vi)). In addition to
his previously discussed claim for negligently leaking IAB complaints, Plaintiff also alleges a
theory of liability pursuant to Monell based on officers allegedly intentionally leaking IAB
complaints. (Exhibit A at ¶303(viii)).
Although Plaintiff has not produced any admissible evidence of such misconduct, at best,
Plaintiff has alleged that three other officers, Adhyl Polanco, Frank Pallestro, and Joseph Ferrara
were treated similarly to him and were retaliated against for claimed whistleblowing. (56.1 at
¶99). Even assuming arguendo that these incidents are sufficiently similar to the purported
“pattern” claim, these three incidents alone over a seven year time frame, given the tens of
thousands of police officers employed by the NYPD during that time period, falls short of
alleging “a practice that was so persistent or widespread as to constitute a custom or usage with
the force of law.” Green v. City of New York, 465 F.3d 65, 80 (2d Cir. 2006) (citations and
internal quotes omitted
In Davis v. City of New York, a Plaintiff’s similar Monell claim of a widespread policy
of the NYPD to retaliate against its officers was dismissed on summary judgment despite the fact
that the Plaintiff there produced two witnesses to testify about that claimed policy. Davis, 228
F.Supp.2d at 344. Further, though an NYPD lieutenant who testified in discovery stated that the
police had such a retaliatory policy, his evidence was deemed insufficient as the court felt it

- 35 -

significant that the lieutenant’s testimony was based primarily on anecdotal evidence. Id. Of the
evidence put forward by Plaintiff regarding the three claimed whistleblowers, for at least Officer
Frank Pallestro, Plaintiff has only stated that news reports allege support his belief that Officer
Pallestro claims that he was retaliated against due to a quota policy, but has not presented any
admissible evidence regarding this individual’s claims of retaliation. (56.1 at ¶100). This is
precisely the sort of anecdotal evidence that Davis found to be insufficient.
Not only has Plaintiff failed to present any evidence of a single other instance of
retaliation by suspending and disciplining officers who disclose or attempt to disclose NYPD
corruption and police misconduct, but Plaintiff has not alleged that this same conduct happened
to him. Plaintiff has not and cannot allege that he attended a single disciplinary hearing for
disclosing or attempting to disclose NYPD corruption and police misconduct. The most that
Plaintiff can argue was that he was suspended on October 31, 2009 for refusing to return to the
81st Precinct after being accused of leaving without authorization, and thereafter re-suspended
for refusing to return to work after he was released from JHMC on November 6, 2009. (56.1 at
¶¶70-71). Plaintiff cannot cite to any evidence that any such suspension was the result of his
attempted disclosure of NYPD corruption and police misconduct. Similarly, with regard to
Plaintiff’s claim that IAB intentionally leaked complaints, Plaintiff has not presented any
evidence in discovery that any member of the NYPD intentionally leaked information about his
IAB complaint. (56.1 at ¶95). Further, beyond two allegations relating to Adhyl Polanco and
Frank Pallestro based on media reports mentioned by Plaintiff in his Third Amended Complaint,
Plaintiff has not presented any evidence that any other officers intentionally leaked IAB
complaints. (Exhibit A at ¶¶360-361).
2. Contemporaneous Conduct Cannot Establish a Pattern of Violations to Put
the City on Notice.
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Additionally, with respect to the relevant timeframe, with the exception of Joseph
Ferrara, the allegations of misconduct against other officers claimed by Plaintiff occurred in
September to December 2009, concurrently with the misconduct alleged by Plaintiff. (56.1 at
¶¶103-104). Therefore, such contemporaneous activity could not have provided notice to the
City that more training or supervision was necessary to avoid Plaintiff’s alleged constitutional
deprivation, nor could they have caused City Defendants to believe that they could engage in the
misconduct alleged by Plaintiff without consequence. Cf. Connick v. Thompson, 131 S. Ct.
1350, 1360 n.7 (2011) (“contemporaneous or subsequent conduct cannot establish a pattern of
violations that would provide notice to the city and the opportunity to conform to constitutional
dictates”) (internal quotation omitted).
3. Plaintiff Fails To Establish A Causal Connection.
Importantly, even if Plaintiff were first able to “prove the existence of a municipal policy
or custom in order to show that the municipality took some action that caused him injuries. . . the
Plaintiff must establish a causal connection – an affirmative link – between the policy and the
deprivation of his constitutional rights.” Vippolis v. Vill. of Haverstraw, 768 F.2d 40, 44 (2d Cir.
1985) (internal quotation marks and citation omitted). Therefore, in order to succeed on a
municipal liability claim, Plaintiff must establish that an identified municipal policy or practice
was “the moving force [behind] the constitutional violation.” Monell, 436 U.S. at 694.
Not only does Plaintiff fail to state a policy but he fails to allege facts or produce
evidence from which the Court may infer an actual causal link between the custom or policy and
alleged constitutional violation. See Cuevas v. City of New York, No. 07-CV-4169 (LAP), 2009
U.S. Dist. LEXIS 114984, at *12 (S.D.N.Y. Dec. 7, 2009) (“Baldly asserting that Plaintiff’s
injuries are the result of the City’s policies does not show this Court what the policy is or how
that policy subjected Plaintiff to suffer the denial of a constitutional right”). Plaintiff merely
- 37 -

states conclusory allegations without providing evidence of how such a policy infringed on his
constitutional rights. It is utterly unclear how Plaintiff makes the logical leap from a quota policy
to Plaintiff’s claimed unlawful search and seizure, and claims of excessive force. This is all the
more evident given the fact that Plaintiff has not provided evidence that any police officer other
than Adrian Schoolcraft has been falsely arrested, committed to a psychiatric hospital against his
will, and/or subjected to excessive force. Nor can Plaintiff identify another officer who has even
made the same allegations as Plaintiff herein. As Plaintiff’s boilerplate language and dearth of
evidence is insufficient to demonstrate how a City policy directly caused him harm, summary
judgment for City Defendants should be granted on Plaintiff’s Monell claim based on a theory of
a widespread unconstitutional practice.
C.

Plaintiff Cannot Demonstrate Deliberate Indifference.

The third method by which a Plaintiff can hold a municipality liable is by demonstrating
a failure to train or supervise that amounts to “deliberate indifference” to the rights of those with
whom the municipality’s employees interact. City of Canton, 489 U.S. at 388. “‘[D]eliberate
indifference’ is a stringent standard of fault, requiring proof that a municipal actor disregarded a
known or obvious consequence of his action.” Bd. Of Cnty. Comm’rs of Bryan Cnty. v. Brown,
520 U.S. 397, 410 (1997) (quoting City of Canton, 489 U.S. at 388) (emphasis added).
Some appellate decisions use varying terminology, such as “tacit authorization” or
“constructive acquiescence,” to describe the same concept as deliberate indifference. E.g.,
Reynolds v. Giuliani, 506 F.3d 183, 192 (2d Cir. 2007) (municipal liability appropriate if
policymakers “ha[ve] acquiesced in or tacitly authorized its subordinates’ unlawful actions”);
Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 126 (2d Cir. 2004) (equating “deliberate
indifference” with “acquiescence”); Zahra v. Town of Southold, 48 F.3d 674, 685 (2d Cir. 1995)
(equating “deliberate indifference” with “tacit authorization”); Sorlucco, 971 F.2d at 871
- 38 -

(subordinates’ discriminatory actions can give rise to municipal liability if the “discriminatory
practice [is] so manifest as to imply the constructive acquiescence of senior policy-making
officials”). Whether policymakers are “deliberately indifferent,” or are said to “tacitly authorize”
or “acquiesce” in subordinates’ wrongdoing, the foundation of this state of mind remains the
same: The right in question must be “clearly established” in order for policymakers to “tacitly
authorize” or “acquiesce” in unlawful conduct such that their authorization or acquiescence
amounts to a “policy” decision. See generally Brown, 520 U.S. at 407-8 & 419 (Souter, J.
dissenting); Young, 160 F.3d at 904.
In order to prove a deliberate indifference claim, Plaintiff must show that the City’s
alleged failure to train or supervise proximately caused his injury. See, e.g., Connick, 131 S. Ct.
at 1359-60. But, “[w]here the proper response – to follow one’s oath, not to commit the crime of
perjury, and to avoid prosecuting the innocent – is obvious to all without training or supervision,
then the failure to train or supervise is generally not ‘so likely’ to produce a wrong decision as to
support an inference of deliberate indifference by city policymakers to the need to train or
supervise.” Walker v. City of New York, 974 F.2d 293, 299-300 (2d Cir. 1992), cert. denied, 507
U.S. 961 (1993). For this reason, Plaintiff’s claim based on the City’s alleged failure to train or
supervise supervisory personnel to ensure that they do not unlawfully search and seize a member
of the service, use excessive force, and falsely commit them to a hospital facility, fails as a
matter of law.
1. Plaintiff Cannot Demonstrate Deliberate Indifference to Disciplining
Supervisors.
One of Plaintiff’s theories of Monell liability is that the City “[d]isplay[ed] a deliberate
indifference to disciplining supervisors, despite allegations of illegal and/or unconstitutional
conduct,” which is expanded on later by stating that the “deliberate indifference to proper

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training, supervising and/or disciplining of policy making officials such as defendants MARINO,
NELSON and MAURIELLO constituted explicit and/or tacit approval of their illegal and
unconstitutional conduct.” (Exhibit A at ¶306).
To establish a Monell claim based on a theory of inadequate supervision or discipline,
Plaintiffs must first show that the need for more or better supervision or discipline is so obvious
that a failure to do so could properly be characterized as deliberate indifference. See Brown, 520
U.S. at 410; Vann v. City of New York, 72 F.3d 1040, 1049 (2d Cir. 1995); Powell v. Gardner,
891 F.2d 1039, 1045 (2d Cir. 1989). As such, only “municipal inaction such as the persistent
failure to discipline subordinates who violate civil rights [can] give rise to an inference of an
unlawful municipal policy of ratification of unconstitutional conduct within the meaning of
Monell.” Searles v. Pompilio, 652 F. Supp. 2d 432, 443 (S.D.N.Y. 2009) (quoting Batista v.
Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983) (emphasis added).
The failure to discipline an individual officer is insufficient to establish liability based on
failure-to-discipline. Searles, 652 F. Supp. 2d at 444-45; see also Hill v. City of New York, 03CV-1283 (ARR), 2005 U.S. Dist. LEXIS 38926, *30-31 (E.D.N.Y. Dec. 29, 2005) (alleged
failure of NYPD to take disciplinary or investigatory action against officer who was found by
CCRB to use excessive force and another officer who CCRB concluded “should be further
investigated…suggests, at most, negligent administration or one isolated incident of bureaucratic
inaction” which “does not rise to the level of an actionable violation.”) (citing Amnesty Am., 361
F.3d at 128); Mahan v. City of New York, 00-CV-6645 (DGT), 2005 U.S. Dist. LEXIS 14322,
*14-24 (E.D.N.Y. July 19, 2005) (“Plaintiffs’ evidence of one allegedly inadequate investigation
into one CCRB complaint against one officer does not support the kind of system-wide

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indictment present in [cases where failure to train or discipline theories were allowed to survive
summary judgment].”).
While “deliberate indifference may be inferred if [repeated complaints of civil rights
violations] are followed by no meaningful attempt on the part of the municipality to investigate
or to forestall further incidents,” Vann, 72 F. 3d at 1049, where investigations were done or
attempted and investigators determined that the claims were not justified or were at least not
demonstrated to have validity, Plaintiff cannot sustain his claim. See Yang Feng Zhao v. New
York, 656 F.Supp.2d 375, 397 (S.D.N.Y. 2009); Thomas v. Roach, 165 F.3d 137, 145 (2d Cir.
1999) (Plaintiff failed to meet burden of establishing deliberate indifference where municipality
investigated, but did not substantiate, prior allegations of misconduct against officers); Zahra v.
Town of Southold, 48 F.3d 674, 685 (2d Cir. 1995) (affirming dismissal of § 1983 claim against
municipality where defendant town hired lawyer to investigate complaint, notwithstanding
Plaintiff’s claim that this was merely done for show); Mahan, 2005 U.S. Dist. LEXIS 14322,
*14-24 (summary judgment granted to City on failure to supervise or discipline Monell claim
where NYPD actually investigated the six complaints brought against the defendant officer, even
though they failed to substantiate the allegations).
Similarly, allegations that were not substantiated cannot be used to support a Monell
claim. See, e.g., Simms v. City of New York, 480 Fed. Appx. 627, 630 (2d Cir. 2012) (citation to
prior unsubstantiated lawsuit “does not support an inference that [Plaintiff’s] injuries were
caused by the City’s failure to train its employees.”); Rodriguez v. City of New York, 11-CV515 (ALC)(GWG), Slip Op. at 10 (S.D.N.Y. Mar. 15, 2013) (citation to settled lawsuits to
support Monell claim “are tantamount to unsubstantiated accusations, which are wholly
insufficient to support an inference [of a policy or practice].”) (citing Marcel v. City of New

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York, 88-CV-7017 (LLS), 1990 U.S. Dist. LEXIS 4094, *23-24 (S.D.N.Y. Apr. 11, 1990));
Osterhoudt v. City of New York, 10-CV-3173 (RJD)(RML), 2012 U.S. Dist. LEXIS 139700, *4
(E.D.N.Y. Sept. 27, 2012) ((while unsubstantiated allegations can be considered when deciding
whether a Monell claim is plausible in the context of a Rule 12 motion, “[m]ere allegations have
little, if any, probative force and by themselves would hardly prevent summary judgment.”);
Brown v. Pritchard, 09-CV-214S (HBS), 2011 U.S. Dist. LEXIS 72486, *19 (W.D.N.Y. July 6,
2011) (“unsubstantiated grievances are only charges not actual findings of abuse that may be the
basis for liability.”); Rasmussen, 766 F. Supp. 2d at 409-10 (granting summary judgment on
Monell claim where proof of policy or practice came from, inter alia, unsubstantiated complaints
and lawsuits). Even when allegations of misconduct are substantiated, if they are not similar to
the allegations in the complaint, they are irrelevant to proving a Monell claim. Pacheco v. City of
New York, et al., 234 F.R.D. 53, 55 (E.D.N.Y. 2006).
In addition, as with failure-to-train and failure to-supervise, a Plaintiff must establish a
sufficient nexus between the municipality’s failure and the Plaintiff’s injury. See Vann, 72 F.3d
at 1051. To succeed on a theory of municipal liability in this type of claim, Plaintiff must prove
more than “but for” causation – i.e., that but for the alleged inadequate supervision or discipline .
. . he would not have been injured. Plaintiff must demonstrate that the municipal “policy” at
issue was the “moving force” behind his injuries. See Ameduri v. Vill. of Frankfort, 2014 U.S.
Dist. LEXIS 44564, *55-66 (N.D.N.Y. Mar. 31, 2014) (citing City of Canton, 489 U.S. at 389).
In the instant matter, Plaintiff offers no facts giving rise to a plausible inference that any
alleged deficiency in the hiring, supervision, or failure to discipline Marino, Mauriello, and
Nelson manifested “deliberate indifference” to Plaintiff’s rights. Instead, Plaintiff lists myriad
allegations against defendants Marino, Mauriello, and Nelson, which have no bearing on the

- 42 -

allegations against the individuals in this matter. To be clear, Plaintiff has alleged that defendant
Marino used excessive force against him, (56.1 at ¶55) and alleges that defendants Marino,
Mauriello, and Nelson all personally engaged in unlawful searches and seizures of Plaintiff.
(Exhibit A at ¶¶153, 163, 169). Notably, however, there have been no substantiated incidents
involving any allegation that any physical force whatsoever was used by Marino in any incident,
and there are no substantiated allegations of unlawful search or seizure, conspiracy, or retaliation
against any of these defendants. (56.1 at ¶¶97-98). Plaintiff instead relies on unsubstantiated
complaints of unrelated misconduct. (Exhibit A at ¶¶227-244). However, as discussed supra, a
list of complaints cannot by itself justify a finding of deliberate indifference as Plaintiff has not
uncovered any evidence that the allegations made against defendants Mauriello, Marino, or
Nelson over the course of their careers were not investigated. Accordingly, deliberate
indifference cannot be inferred from these unsubstantiated or unfounded complaints and there is
simply no plausible claim for Monell liability against the City of New York.
Also fatal to Plaintiff’s claim is that he cannot establish that any alleged failure to
discipline Marino, Mauriello, or Nelson was causally related to any of the injuries set forth in
Plaintiff’s complaint. See Reynolds, 506 F.3d at 192. As evidenced by Plaintiff’s pleading and
the evidence presented in discovery, Marino, Mauriello, and Nelson’s previous misconduct “was
of a different kind and magnitude than the assault alleged in the complaint.” See Ameduri, 2014
U.S. Dist. LEXIS 44564 at *65. Therefore, Plaintiff’s Monell claim against the City of New
York must be dismissed for want of proximate causation. Accordingly, defendant City is entitled
to summary judgment on Plaintiff’s Monell claims predicated on failure to supervise or
discipline.
2. Plaintiff Has Not Brought Claims Against Any Policy Makers.

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Plaintiff claims that the City exercised deliberate indifference to the proper training,
supervision, and discipline of “policy making officials,” (Exhibit A at ¶306) and by doing so,
presumably attempts to claim that “[w]here a final policymaker is the actor, a single action taken
by a municipality is sufficient to expose it to liability.” Rubio v. Cty. of Suffolk, 01-CV-1806
(TCP), 2007 U.S. Dist. LEXIS 75344, *17-18 (E.D.N.Y. Oct. 9, 2007) (citing Pembaur, 475 U.S.
at 480). As discussed supra, none of the City Defendants is a final policymaker. Accordingly,
Plaintiff’s claim that the NYPD exercised deliberate indifference to the proper training,
supervision, and discipline of “policymaking officials,” and any attempt to assert municipal
liability based on the acts of a policymaking official should be dismissed.
3. Failure to Train.
Another of Plaintiff’s theories of municipal liability is the “deliberate indifference to
proper training and supervision of the Internal Affairs Bureau regarding maintaining the
confidentiality of complainants.” (Exhibit A at ¶307). In order to establish a claim based on a
lack of training, Plaintiff must demonstrate the failure to train was so egregious as to demonstrate
a deliberate indifference to his constitutional rights. City of Canton, 489 U.S. at 385. “A
municipality’s culpability for a deprivation of rights is at its most tenuous where a claim turns on
a failure to train.” Connick, 131 S. Ct. at 1359 (citing Oklahoma City v. Tuttle, 471 U.S. at 822823). In order to prove a claim of deliberate indifference, a Plaintiff ultimately must identify “a
specific deficiency in the city’s training program and establish that that deficiency is ‘closely
related to the ultimate injury,’ such that it ‘actually caused’ the constitutional deprivation.’”
Amnesty Am., 361 F.3d at 129 (quoting City of Canton , 489 U.S. at 391). In other words, a
Plaintiff must demonstrate that the municipal employee’s “‘shortcomings . . . resulted from . . . a

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faulty training program’ rather than from negligent implementation of a sound program or other,
unrelated circumstances.” Id. at 129-30 (quoting City of Canton, 489 U.S. at 390-91).
Importantly, the Second Circuit has held that “the simple recitation that there was a
failure to train municipal employees . . . does not suffice to allege that a municipal custom or
policy caused the Plaintiff’s injury in the absence of allegations of fact tending to support, at
least circumstantially, such an inference.” Dwares v. City of New York, 985 F.2d 94, 100 (2d
Cir. 1993); see also Triano v. Harrison, 895 F.Supp.2d 526, 540 (S.D.N.Y. 2012) (“Plaintiff’s
mere claim that the Town failed to train and supervise its police officers is a boilerplate assertion
is insufficient, without more, to state a Monell claim.”). Moreover, the Supreme Court’s decision
in Connick has arguably made the pleading standard even higher for § 1983 Plaintiffs asserting
claims against municipalities. Connick, 131 S. Ct. at 1365 (finding the standard set forth in
Walker insufficient to support municipal liability). 11 Plaintiff’s Third Amended Complaint does
not allege, and subsequent discovery has not revealed, any specific deficiency in the City’s
training that is “closely related to the ultimate injury” suffered by Plaintiff, and discovery has not
produced any indication that members of the service were either not trained report the
misconduct of other officers to their supervisors and/or the IAB, or not trained to maintain
confidentiality. Additionally, as discussed supra, no evidence has been discovered of sufficiently
similar instances of constitutional violations that would put the City on notice of a need to
improve its training. See Connick, 131 S. Ct. at 1360 (four allegations of misconduct within ten
years could not have put policymaker on notice that the training was inadequate).

11

Walker required a Plaintiff alleging deliberate indifference to show: (1) “that a policymaker knows ‘to a moral
certainty’ that her employees will confront a given situation;” (2) “that the situation 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;” and (3) “that the wrong choice by the . . . employee will frequently cause the
deprivation of a citizen’s constitutional rights.” Walker, 974 F.2d at 297-98.

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Plaintiff has not made a showing that the conduct alleged in this action resulted from a
faulty training program, and in fact, Plaintiff’s own police practices expert testified that “the
New York City Police Department is a model police department and its practices are within the
standards of police departments throughout the United States, and certainly New York State.”
(56.1 at ¶105). Accordingly, summary judgment should be granted to defendant City on
Plaintiff’s Section 1983 claim of inadequate training and supervision.
D.

Plaintiff Must Establish a Violation of His Constitutional Rights to Assert
Municipal Liability.

Where a Plaintiff has failed to establish a violation of his constitutional rights, there is no
basis for a claim of municipal liability. City of Los Angeles v. Heller, 475 U.S. 796, 799
(1986)(if Plaintiff cannot show that her constitutional rights were violated by a City actor, then
there cannot be Monell liability); Martinez v. City of New York, No. 06-CV-5671 (WHP), 2008
U.S. Dist. LEXIS 49203, at *12 (S.D.N.Y. June 27, 2008), aff’d Martinez v. Muentes, 340 Fed.
Appx. 700 (2d Cir. July 27, 2009) (“A municipality cannot be liable for acts by its employees
which are not constitutional violations.”).
1. Plaintiff Has Not Alleged a Valid First Amendment Claim for Retaliation.
As discussed supra, Plaintiff has no First Amendment claim against any individual
defendant, accordingly, his Monell claim against the City based on a policy or practice of First
Amendment retaliation must also fail. E.g., Gangadeen v. City of New York, 654 F. Supp. 2d
169, 191 n.17 (S.D.N.Y. 2009) (citing Segal v. City of New York, 459 F.3d 207, 219 (2d Cir.
2006)).
2. Plaintiff’s Claims of An Alleged Quota Fail.
Plaintiff alleges Monell theories of liability based on a Departmental “quota”, including
“creating a quotas system for NYPD subordinate officers requiring the officers to issue a certain

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number of stops arresting or summonses per month and year regardless of probable cause,”
“awarding incentives to officers who meet or exceed the required number of stops, arresting, or
summonses according to NYPD’s quota,” and “punishing officers who fail to meet the required
number of stops, arrests, or summonses established by NYPD’s quota.” (Exhibit A at ¶303).
Plaintiff has not produced any evidence during discovery indicating that there was or is a quota
system requiring officers to issue or make a certain number of stops, arrests, or summonses per
month and year regardless of probable cause. 12 In fact, plaintiff has never issued a summons or
made an arrest without probable cause. (56.1 at ¶106). Similarly, he does not recall the specifics
of any incident where he saw another police officer issue a summons or make an arrest absent
probable cause. (56.1 at ¶107).
Further, even assuming there was a set number of stops, arrests, or summonses that
officers in the NYPD were asked to make/issue per month regardless of probable cause or
reasonable suspicion, there is no evidence of a policy of either punishing officers who failed to
meet that number, 13 or awarding incentives to officers who met or exceeded the number.
Moreover, even accepting Plaintiff’s allegation of a quota as true, Plaintiff cannot show that any
such quota policy caused his claimed constitutional injuries, as he must, or even that it was more
than a single isolated instance of unconstitutional conduct by a lower level municipal employee.
Therefore, City Defendants are entitled to summary judgment on Plaintiff’s Monell claim
against the City based on a quota policy.

12

In fact, Plaintiff testified that he didn’t “recall any specific number,” of summonses that officers were required to
issue, and could not even recall a single incident where a supervisor ordered him to issue a specific number of
summonses. (56.1 at ¶7).
13

Plaintiff could not provide the name of a single other officer that he knew to have been retaliated against in the
same manner that he had been. (56.1 at ¶3) (cannot name another officer who lost overtime for not meeting the
quota); (56.1 at ¶4) (cannot name another officer who lost the ability to request overtime); (56.1 at ¶5) (cannot name
another officer who had to issue certain number of summonses to return to chosen tour); (56.1 at ¶6) (cannot name
another officer who was denied a day off for failing to meet the quota policy).

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POINT XI
PLAINTIFF IS NOT ENTITLED TO
DECLARATORY OR INJUNCTIVE RELIEF.
Plaintiff’s Third Amended Complaint seeks declaratory judgment “in favor of plaintiff
and against each of the defendants, finding that the defendants’ conduct was unlawful, including
without limitation, findings that the claims for relief have been established; that the practices and
policies of the NYPD on quotas for stops, summons and arrests and the manipulation and
downgrading of crime reports are unlawful; that the practices and policies for falsification of
training records are unlawful; and that the NYPD and JHMC records should be expunged to the
extent that those records suggest that plaintiff is (or ever was) emotional disturbed, or suffering
from a mental illness or dangerous to himself or others.” For the reasons set forth below,
plaintiff’s requests should be denied in their entirety.
Declaratory relief is intended to enable parties to adjudicate claims before either side
suffers great damages. See In re Combustible Equip. Assoc., 838 F.2d 35 (2d Cir. 1988).
“[D]eclaratory relief, while equitable in nature, is barred by the Eleventh Amendment ‘when it
would serve to declare only past actions in violation of federal law.’” Neroni v. Coccoma, No.
3:13-CV-1340 (GLS/DEP), 2014 U.S. Dist. LEXIS 76547, at *9 (N.D.N.Y. June 5,
2014) (citation omitted). See Ward v. Thomas, 207 F.3d 114, 119 (2d Cir. 2000) (declaratory
relief inappropriate for past actions because all damages already have accrued); Government
Employees Ins. Co. v. Saco, No. 12-CV-5633 (NGG/MDG), 2014 U.S. Dist. LEXIS 20919, at *7
(E.D.N.Y. Feb. 18, 2014) (“prospective declaratory relief cannot be used ‘solely to adjudicate [a
defendant’s] past conduct’” (citation omitted)). Here, plaintiff seeks to have the past actions of
the defendants declared unlawful and in violation of federal law, namely 42 U.S.C. §1983. As
the requested declaratory relief would violate the Eleventh Amendment, it must be denied.

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To the extent the Court construes plaintiff’s request as one for injunctive relief, it fares no
better. To obtain permanent injunctive relief, the plaintiff must demonstrate that he will suffer
irreparable harm should the injunction be denied as well as actual success on the merits of his
claim. See Ognibene v. Parkes, 671 F.3d 174, 182 (2d Cir. 2012). Irreparable harm requires an
“injury that is neither remote nor speculative, but actual and imminent and that cannot be
remedied by an award of monetary damages.” Daniels v. Murphy, 2013 U.S. Dist. LEXIS 19059,
at *3 (D. Conn. Feb. 12, 2013) (quoting Forest City Daly Housing, Inc. v. Town of North
Hempstead, 175 F.3d 144, 153 (2d Cir. 1999) (internal quotation marks omitted)); A.X.M.S.
Corp. v. Friedman, 948 F. Supp. 2d 319, 336 (S.D.N.Y. 2013). If the “harm can be remedied in
money damages, [that] is the antithesis of irreparable harm, and such a fact requires that the
Court not find an irreparable injury.” Id. (internal quotation marks omitted).
There is absolutely no evidence in the record to show that plaintiff will suffer any harm if
his New York City Police Department’s records are not expunged nor is there any evidence that
Plaintiff has already suffered harm as a result of any information contained within his NYPD
personnel file. To the extent that plaintiff will argue that his future employment possibilities will
be threatened if this information is disclosed to prospective employers, plaintiff has not been
denied any employment possibilities because of his NYPD records and there is no evidence in
the record which suggests otherwise. To be sure, plaintiff claims to have applied for
approximately fifty jobs since October 2009. (56.1 at ¶108). 14 Although none of these jobs were
offered to him, he admits that he has never been given a reason for not being offered
employment. (56.1 at ¶108). Thus, any harm is both remote and speculative. Nonetheless,
assuming plaintiff attempts to seek employment in the future, there are countless safeguards
14

During discovery, defendants requested copies of any job applications submitted by plaintiff. Plaintiff never
provided any and confirmed via affidavit that he was not in possession of any such documents.

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already in place to protect against the disclosure of private and/or sensitive information
including, but not limited to, the New York State Public Officers’ Law §87(2) and H.I.P.A.A. 15
Accordingly, plaintiff’s claims for both declaratory and injunctive relief must be denied as a
matter of law.
CONCLUSION
For the foregoing reasons, City Defendants respectfully request that the Court grant their
motion for summary judgment pursuant to FED. R. CIV. P. 56.
Dated:

New York, New York
January 30, 2014
Respectfully submitted,
ZACHARY W. CARTER
Corporation Counsel of the City of New York
Attorneys for City Defendants
100 Church Street, Room 3-212
New York, New York 10007
[phone]
By:

15

/s
Ryan Shaffer
Senior Counsel

New York State Public Officers’ Law §87(2)(b) protects against the disclosure of information that would
constitute an would constitute an unwarranted invasion of personal privacy. Moreover, H.I.P.A.A. provides federal
protections for individually identifiable health information held by covered entities and their business associates and
gives patients an array of rights with respect to that information.

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