Schoolcraft v. The City Of New York et al

Filing 411

REPLY 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), Elise Hanlon(in her official capacity as a lieutenant with the New York City Fire Department), Elise Hanlon(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.

REPLY 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, Room 3-212
New York, N.Y. 10007
Of Counsel: Ryan G. Shaffer
Alan H. Scheiner
Tel: [phone]
Matter #: 2010-033074

TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ......................................................................................................... iv
PRELIMINARY STATEMENT .................................................................................................... 1
POINT I
THE ENTRY AND SEARCH OF PLAINTIFF’S
APARTMENT WAS LAWFUL AND BASED UPON
EXIGENT CIRCUMSTANCES............................................................................. 1
POINT II
PLAINTIFF HAS ADDUCED EVIDENCE SUFFICIENT
TO SUPPORT ANY CLAIMS AGAINST DEFENDANTS
TRAINOR, SAWYER, JAMES, NELSON, OR
CAUGHEY. ............................................................................................................ 5
A.

Captain Trainor ........................................................................................... 6

B.

Sergeants Sawyer and James ...................................................................... 6

C.

Chief Nelson ............................................................................................... 7

D.

Lieutenant Caughey .................................................................................... 7

POINT III
IT WAS REASONABLE FOR THE DEFENDANTS TO
BELIEVE THAT PLAINTIFF WAS EMOTIONALLY
DISTURBED. ......................................................................................................... 8
POINT IV
PLAINTIFF’S FIRST AMENDMENT CLAIM SHOULD
BE DISMISSED. .................................................................................................. 11
A.

Changes in Law Require Grant of Qualified
Immunity ................................................................................................... 11

B.

Plaintiff’s Internal Speech is not Protected. .............................................. 13

C.

There was No Intent to Restrain Plaintiff’s Speech. ................................. 19

D.

Plaintiff Cannot Establish the Chilling Effect Required to State a
Claim…………………………………….……………………………...…22

Page
POINT V
PLAINTIFF HAS NOT ESTABLISHED THAT
CERTAIN DEFENDANTS WERE PERSONALLY
INVOLVED. ......................................................................................................... 24
A.

Captain Lauterborn ................................................................................... 24

B.

Captain Trainor, Chief Nelson, and Lieutenant
Caughey. ................................................................................................... 25

POINT VI
PLAINTIFF
CANNOT
DEMONSTRATE
A
CONSPIRACY SUFFICIENT TO SURVIVE SUMMARY
JUDGMENT. ........................................................................................................ 26
A.

There is no exception to the intra-corporate
conspiracy doctrine where, as here, the coconspirators with the same employer were all acting
within the scope of employment. .............................................................. 26

B.

There is no evidence of an agreement between City
employees or NYPD officers and others to violate
Schoolcraft’s constitutional rights. ........................................................... 30

POINT VII
INTENTIONAL INFLICTION OF EMOTIONAL
DISTRESS CANNOT SUCCEED WHERE THE
UNDERLYING CLAIMS FALL WITHIN
TRADITIONAL TORT LIABILITY. .................................................................. 32
POINT VIII
THE CLAIM FOR NEGLIGENT HIRING AND
RETENTION AGAINST THE CITY MUST BE
DISMISSED BECAUSE THE PLAINTIFF CONTENDS
THAT THE INDIVIDUAL DEFENDANTS ACTED
WITHIN THE SCOPE OF THEIR EMPLOYMENT. ......................................... 34
POINT IX
PLAINTIFF CANNOT ASSERT A CLAIM FOR
MALICIOUS ABUSE OF PROCESS BECAUSE HE
WAS NOT HELD PURSUANT TO LEGAL PROCESS. ................................... 35
- ii -

Page
POINT X
PLAINTIFF
CANNOT
SURVIVE
SUMMARY
JUDGMENT ON ANY OF HIS THEORIES OF
MUNICIPAL LIABILITY.................................................................................... 36
A.

The defective expert testimony of Silverman and
Eterno should not be
considered by the Court on
this motion. ............................................................................................... 37

B.

The purported evidence of specific instances of
retaliation are insufficient to establish a custom and
practice or deliberate indifference. ........................................................... 38

C.

Plaintiff has failed to proffer evidence of deliberate
indifference. .............................................................................................. 43

CONCLUSION ............................................................................................................................. 45

- iii -

TABLE OF AUTHORITIES
Cases

Pages

Alali v. DeBara,
2008 U.S. Dist. LEXIS 86760 (S.D.N.Y. Oct. 24, 2008) .................................................. 24, 25
Alroy v. City of New York Law Dep’t,
2014 U.S. Dist. LEXIS 164114 (S.D.N.Y. Nov. 24, 2014) ..................................................... 36
Amnesty Am. v. Town of W. Hartford
361 F.3d 113, 129 (2d Cir. 2004)............................................................................................. 43
Anderson v. Creighton,
483 U.S. 635 (1987) ................................................................................................................. 12
Anemone v. Metro. Trans. Auth.,
629 F.3d 97 (2d Cir. 2011)....................................................................................................... 15
Anemone v. Metropolitan Transp. Auth.,
419 F. Supp. 2d 602 (S.D.N.Y. 2006)...................................................................................... 27
Anthony v. City of New York,
339 F.3d 129 (2d Cir. 2003)....................................................................................................... 7
Aretakis v. Durivage,
2009 U.S. Dist. LEXIS 7781 (N.D.N.Y Feb. 3, 2009) ............................................................ 33
Barclay v. Michalsky,
368 Fed. App'x 266 (2d Cir. 2010) .......................................................................................... 15
Barry v. New York City Police Dep’t,
01 cv 10627 (CBM), 2004 U.S. Dist. LEXIS 5951 (S.D.N.Y. Apr. 6, 2004) ................... 42, 43
Blount v. Swiderski,
2006 U.S. Dist. LEXIS 82889 (E.D.N.Y. Nov. 14, 2006) ....................................................... 30
Blue v. Koren,
72 F.3d 1075 (2d Cir. 1995)..................................................................................................... 19
Bond v. Board of Educ.,
97 CV1337, 1999 U.S. Dist. LEXIS 3164 (E.D.N.Y. Mar. 17, 1999) .................................... 29
Bradway v. Gonzales,
26 F.3d 313 (2d Cir. 1994)....................................................................................................... 12
Brady v. County of Suffolk,
657 F. Supp. 2d 331 (E.D.N.Y. 2009) ..................................................................................... 15

-iv-

Cases

Pages

Brigham City v. Stuart,
547 U.S. 398 (2006) ................................................................................................................... 5
Butler v. City of Batavia,
545 F. Supp. 2d 289 (W.D.N.Y. 2008),
aff’d, 323 F. App’x 21 (2d Cir. 2009)...................................................................................... 20
Carter v. Inc. Vill. of Ocean Beach,
415 Fed. Appx. 290 (2d Cir. 2011) .......................................................................................... 15
Chamberlain v. City of White Plains,
986 F. Supp. 2d 363 (S.D.N.Y. 2013)..................................................................................... 34
Chillemi v. Town of Southampton,
943 F. Supp. 2d 365, 2013 WL 1876443 (E.D.N.Y. 2013) ..................................................... 27
Chevron Corp. v. Donziger,
974 F. Supp. 2d 362, 1560-62 (S.D.N.Y. 2014) ...................................................................... 39
City of Canton, Ohio v. Harris,
489 U.S. 378, 391 (1989) ......................................................................................................... 43
Cobb v. Pozzi,
363 F.3d 89 (2d Cir. 2004)....................................................................................................... 20
Connick v. Thompson,
131 S. Ct. 1350, 1361 (2011) .................................................................................................... 44
Cook v. Sheldon,
41 F.3d 73 (2d Cir. 1994)................................................................................................... 35, 36
Copperweld Corp. v. Independence Tube Corp.,
467 Y,S, 752 (1984) ................................................................................................................. 30
Cuellar v. Love,
2014 U.S. Dist. LEXIS 51622, (S.D.N.Y. Apr. 11, 2014)....................................................... 33
D’Olimpio v. Crisafi,
718 F. Supp. 2d 340 (S.D.N.Y. 2010)...................................................................................... 15
Dawson v. Cnty. of Westchester,
373 F.3d 265 (2d Cir. 2004)..................................................................................................... 20
Deal v. Seneca Cnty.,
No. 07 Civ. 6497 (MAT), 2012 U.S. Dist. LEXIS 705, 2012 WL 13661
(W.D.N.Y. Jan. 4, 2012) .......................................................................................................... 20
-v-

Cases

Pages

Dilworth v. Goldberg,
914 F. Supp. 2d 433 (S.D.N.Y. 2012)..................................................................................... 29
Dorn v. Maffei,
386 F. Supp. 2d 479 (S.D.N.Y. 2005)...................................................................................... 32
Dorsett-Felicelli, Inc. v. County of Clinton,
371 F. Supp. 2d 183 (N.D.N.Y 2005) ...................................................................................... 20
Dunk v. Brower,
2013 U.S. Dist. LEXIS 160667 (S.D.N.Y. Nov. 7, 2013) ....................................................... 20
Dunlop v. City of New York,
2008 U.S. Dist. LEXIS 38250 (S.D.N.Y. May 6, 2008)......................................................... 30
Economic Opportunity Comm’n of Nassau Cnty., Inc. v. Cnty. of Nassau,
106 F. Supp. 2d 433 (E.D.N.Y. 2000) ..................................................................................... 20
Esmont v. City of New York,
371 F. Supp. 2d 202 (E.D.N.Y. 2005) ..................................................................................... 25
Gagliardi v. Village of Pawling,
18 F.3d 188 (2d Cir. 1994)....................................................................................................... 19
Garcetti v. Ceballos,
547 U.S. 410 (2006) ...................................................................................................... 13, 14, 19
Golphin v. City of New York,
09-CV-1015, 2011 U.S. Dist. LEXIS 106272 (S.D.N.Y. Sept. 19, 2011)................................. 7
Gonzalez v. City of Schenectady, 728 F.3d 149, 154 (2d Cir. 2013). ………………………. …12
Green v. Mattingly,
585 F.3d 97 (2d Cir. 2009)....................................................................................................... 35
Healy v. City of New York Dep’t of Sanitation,
286 F. App’x 744 (2d Cir. 2008) ............................................................................................. 15
Hagan v. City of New York,
No. 13 Civ. 1108 (JPO), 2014 U.S. Dist. LEXIS 113847, (S.D.N.Y. August 15, 2014) ........ 18
Herrmann v. Moore,
576 F.2d 453 (2d Cir. N.Y. 1978) ...................................................................................... 26, 27
Hill v. City of New York,
03 CV 1283 (ARR), 2005 U.S. Dist. LEXIS 38926 (E.D.N.Y. Dec. 30, 2005) ...................... 29
- vi -

Cases

Pages

Howell v. New York Post., Inc.,
81 N.Y.2d at 125 ...................................................................................................................... 33
Hunter v. Bryant,
502 U.S. 224 (1991) ................................................................................................................. 12
Hygh v. Jacobs,
961 F.2d 359 (2nd Cir. 1992) .................................................................................................... 37
In re Rezulin Prods. Liab. Lit.
309 F. Supp. 2d 531…………………………………………………………………............. 37
Jeffes v Barnes, 208 F.3d 39, 61 (2nd Cir. 2000)……………………………………………….40
Johnson v. Myers,
10-CV-1964 (JS)(WDW), 2014 U.S. Dist. LEXIS 84379 (E.D.N.Y. June 16, 2014)............. 10
Katt v. City of New York,
151 F. Supp. 2d 313 (S.D.N.Y. 2001),
aff’d, 60 Fed. Appx. 357 (2d Cir. 2003) .................................................................................. 38
Kerman v. City of New York,
261 F.3d 229 (2d Cir. 2001)........................................................................................ 8, 9,10, 23
Kramer v. City of New York,
No. 04 cv 106, 2004 U.S. Dist. LEXIS 21914 (S.D.N.Y. Nov. 1, 2004) ................................ 34
Kumho Tire v. Carmichael,
526 U.S. 137 (1999) ................................................................................................................. 37
Lane v. Franks,
134 S. Ct. 2369 (2014) ........................................................................................... 13, 14, 16, 18
Lemmo v. McKoy,
08-CV-4264, 2011 U.S. Dist. LEXIS 23075 (E.D.N.Y. Mar. 8, 2011) ..................................... 6
Lippe v. Bairnco Corp.,
288 B.R. 678 (S.D.N.Y. 2003)................................................................................................. 37
Malley v. Briggs,
475 U.S. 335 (1986) ................................................................................................................. 13
Matthews v. City of New York,
2015 U.S. App. LEXIS 3016 (2nd Cir. Feb. 26, 2015) .................. 11, 12,13, 14, 15, 16, 17, 18

- vii -

Cases

Pages

McAardle v. Tronetti,
961 F.2d 1083 (3d Cir. 1992)................................................................................................... 36
McEvoy v. Spencer,
49 F. Supp. 2d 224 (S.D.N.Y. 1999)........................................................................................ 29
Naccaratto v. Scarselli,
124 F. Supp. 2d 36 (N.D.N.Y. 2000) ....................................................................................... 32
People v. James,
2001 N.Y. Misc. LEXIS 392 (N.Y. Sup. Ct. May 21, 2001)..................................................... 6
Randle v. Alexander,
960 F. Supp. 2d 457 (S.D.N.Y. 2013)...................................................................................... 27
Rasmussen v. City of New York,
766 F. Supp. 2d 399 (E.D.N.Y. 2011) ..................................................................................... 32
Reich v. Lopez,
13-CV-5307 (JPO), 2014 U.S. Dist. LEXIS 115079 (S.D.N.Y. August 18, 2014) ................. 28
Rini v. Zirwin ................................................................................................................................ 28
Rivers v. Towers, Perrin, Forster & Crosby, Inc.,
2009 U.S. Dist. LEXIS 26301 (E.D.N.Y. Mar. 27, 2009) ....................................................... 33
Rowley v. City of New York,
2005 U.S. Dist. LEXIS 22241 (S.D.N.Y. Sept. 29, 2005) ....................................................... 34
Saldana v. Port Chester,
09-CV-6268 (SCR) (GAY), 2010 U.S. Dist. LEXIS 142099 (S.D.N.Y. July 21, 2010) ........ 32
Schoolcraft v. City of New York,
10-CV-6005, 2012 U.S. Dist. LEXIS 128557
(S.D.N.Y. Sept. 7, 2012) ...................................................................... 12, 13, 14, 17, 19, 20, 21
Scott v. United States,
436 U.S. 128 (1978) ................................................................................................................... 5
Southwick Clothing LLC v. GFT (USA) Corp.,
2004 U.S. Dist. LEXIS 25336, 2004 WL 2914093 (S.D.N.Y. Dec. 15, 2004) ................. 24, 25
Sun Min Lee v. J.B. Hunt Transp., Inc.,
308 F. Supp. 2d 310 (S.D.N.Y. 2004)...................................................................................... 35

- viii -

Cases

Pages

Tomlins v. Vill. of Wappinger Falls Zoning Bd. of Appeals,
812 F. Supp. 2d 357 (S.D.N.Y. 2011)...................................................................................... 19
Usavage v. Port Auth. of N.Y. & N.J.,
932 F. Supp. 2d 575 (S.D.N.Y. 2013)........................................................................................ 7
Vippolis v. Vill. of Haverstraw,
768 F.2d 40 (2d Cir. 1985)....................................................................................................... 40
Washington v. Cnty. of Rockland,
373 F.3d 310 (2d Cir. 2004)..................................................................................................... 20
Weintraub v. Board of Education,
593 F.3d 196 (2d Cir. 2010)............................................................................................... 14, 17
White v. City of N.Y.,
12 Civ. 7156 (ER), 2014 U.S. Dist. LEXIS 123255 (S.D.N.Y. Sept. 3, 2014) ....................... 27
Williams v. Town of Greenburgh,
535 F.3d 71 (2d Cir. 2008)................................................................................................. 23, 24
Wilton Reassurance Life Ins. Co. v. Smith,
2015 U.S. Dist. LEXIS 18437 (E.D.N.Y. Jan. 21, 2015) ........................................................ 20
Yeadon v. New York Transit Authority,
719 F. Supp. 204 (S.D.N.Y. 1989) .................................................................................... 28, 29
Zieper v. Metzinger,
474 F.3d 60 (2d Cir. 2007)....................................................................................................... 24
Statutes
Fed. R. Civ. P. 56 .......................................................................................................................... 46
C.P.L.R. § 1983....................................................................................................... 6, 24, 26, 41, 45
Fed. R. Civ. P. 56.1 ......................................................................................... 13, 14, 16, 19, 21, 22
Fed. R. Evid.403 and 404(b) ......................................................................................................... 44
Fed. R. Evid. 702 ........................................................................................................................... 37
Patrol Guide § 207-21 ................................................................................................................... 17
Rule 402 ........................................................................................................................................ 37
Rule 403 .................................................................................................................................. 37, 42
- ix -

Cases

Pages

-x-

REPLY MEMORANDUM OF LAW IN
FURTHER
SUPPORT
OF
CITY
DEFENDANTS’ MOTION FOR PARTIAL
SUMMARY JUDGMENT
PRELIMINARY STATEMENT
City defendants respectfully submit this memorandum of law in reply to plaintiff’s
opposition to the City defendants’ motion for partial summary judgment. For the reasons stated
herein, plaintiff fails to controvert the positions set forth in defendants’ moving papers, and
accordingly the City defendants’ motion should be granted in its entirety.

Based on the

arguments stated herein as well as in City Defendants’ original moving papers, and the
accompanying declarations, exhibits and statement pursuant to Local Rule 56.1, it is respectfully
submitted that City defendants are entitled to judgment as a matter of law with respect to the
claims addressed herein.
POINT I
THE ENTRY AND SEARCH OF PLAINTIFF’S
APARTMENT WAS LAWFUL AND BASED
UPON EXIGENT CIRCUMSTANCES.
Plaintiff argues that exigent circumstances did not exist on October 31, 2009 by
intentionally selecting portions of Dr. Catherine Lamstein’s deposition testimony while
otherwise ignoring the relevant portions. The crux of plaintiff’s opposition is that Dr. Lamstein
never told Captain Lauterborn to find plaintiff and ensure his safety, but instead testified at her
deposition about a previously unexpressed personal opinion. Notably, plaintiff does not dispute
that if Dr. Lamstein told any of the defendants that they had to find plaintiff, then exigent
circumstances existed.
Instead, he posits that the statements weren’t made, because he knows full well that if
they were, his claims would fail as a matter of law.

First, Dr. Lamstein has clarified and explained that her testimony regarding the directive
to find plaintiff was not an unexpressed thought, but a statement that she actually made to
Captain Lauterborn on October 31, 2009. See Affidavit of Dr. Catherine Lamstein, annexed to
the Supplemental Declaration of Ryan G. Shaffer as Exhibit A (hereinafter Shaffer Supplemental
Decl.). It is clear that plaintiff is attempting to benefit from the fact that he never allowed or
asked Dr. Lamstein to explain her testimony about the directive to find plaintiff. Nonetheless, Dr.
Lamstein’s affidavit puts any doubt to rest. Accordingly, plaintiff’s unlawful entry claim fails as
a matter of law because exigent circumstances clearly existed at the time of entry on October 31,
2009 based upon Lamstein’s directive to Captain Lauterborn.
Second, even if the Court is not inclined to credit Dr. Lamstein’s affidavit, a complete
reading of her deposition – as opposed to plaintiff’s selective citations – shows unequivocally
that she told Captain Lauterborn that plaintiff’s safety was a concern and that he must be located.
Plaintiff’s opposition, and his own motion for summary judgment disingenuously ignores Dr.
Lamstein’s statements that the October 27, 2009 evaluation was meaningless to her assessment
of plaintiff’s mental health on October 31, 2009. See Exhibit B to the Shaffer Supplemental
Decl. Lamstein Dep. p.334:7-13.
Notably, plaintiff’s opposition and own summary judgment motion ignore the majority of
Dr. Lamstein’s testimony which clearly indicates that exigent circumstances existed and justified
the entry into plaintiff’s home. Specifically, plaintiff ignores the fact that: 1) Dr. Lamstein left
him a voicemail explaining “everyone [was] just concerned for his safety and they want[ed] to
make sure everyone [was] okay”; 2) Lauterborn and the defendants knew that they couldn’t go
into plaintiff’s apartment just because they wanted to; 3) Lauterborn and the defendants needed
to know how concerned they should be about plaintiff’s safety given that plaintiff went AWOL,

-2-

and wasn’t answering his phone, or the door to his apartment, even though it appeared that he
was home. Id. at p. 328:25-331:15
Moreover, plaintiff ignores Dr. Lamstein’s lengthy discussion of how his behavior on
October 31, 2009 was a cause for concern. Specifically Lamstein testified at her deposition that
although plaintiff had never previously expressed thoughts of suicide he had also “never went
AWOL before, and acted the way he was acting on 10/31/09” and; “If something happened after
and led him to be so upset that he left work without permission an hour before the end of his
tour, said he had stomach pains, et cetera. Then I am unable to say with any reasonable amount
of certainty that he is not at risk for suicidal ideation under present circumstances.” Id. at
p.339:20-340:17 emphasis added. Lamstein continued, “[Plaintiff’s] reporting on 10/31/09 that
he had stomach pains severe enough to warrant leaving work before end of tour without
permission suggests either the symptoms never did go away or they reoccurred on 10/31/09 due
to his being really upset about something.” Id. at p340:18-341:14. Lamstein even expressed
skepticism that plaintiff’s behavior was due to medical issues and not psychological concerns,
stating “it is also possible that there was medical cause for the stomach pain, but the angry
manner in which he left work suggests a psychological cause.” Id. at p. 341:14-18.
Rather than stop at his disingenuous interpretation of Dr. Lamstein’s clear and
unambiguous testimony, plaintiff asks the Court to rely upon the absence of Dr. Lamstein’s
statements in various documents as proof that she never told the defendants to find plaintiff and
ensure his safety. First, plaintiff states that Dr. Lamstein’s own notes do not mention the need to
locate plaintiff. However, as set forth above, Dr. Lamstein’s deposition testimony contained a
complete recitation of her notes which plaintiff chose to cherry pick from in support of his
opposition. Dr. Lamstein’s complete notes and recitation of the same during her deposition,

-3-

noted above, clearly indicate that Lauterborn was told to find plaintiff and be concerned for his
wellbeing.
Next, plaintiff posits that because Lauterborn did not testify about the specifics of his
conversation with Lamstein during his own deposition, that no concern or need to find plaintiff
was ever conveyed to him. But this contention is without force because during plaintiffs’
counsel’s deposition of Lauterborn, he never asked about the substance of Lauterborn’s
conversation with Lamstein. Instead, Lauterborn was asked about a single sentence in a report
prepared by him on October 31, 2009. See PMX 6, Plaintiff’s Opposition (“Pl. Opp”) at 5.
Plaintiff also asks the Court to rely upon that report as further evidence that Lamstein never
conveyed a need to locate plaintiff. However, the entire report contains only one sentence about
the discussion between Lauterborn and Lamstein, and it is clear from Lamstein’s testimony and
notes that the conversation consisted of far more than one sentence worth of information.
Finally, plaintiff asks the Court to find that the conversation between Lauterborn and
Lamstein contained no mention of a need to find plaintiff and ensure his safety because when
Lauterborn spoke to the Internal Affairs Bureau he could not recall the substance of the
conversation. However, it is clear from Lauterborn’s testimony that he remembered speaking
with a doctor about Schoolcraft. That he could not recall the substance of that conversation is by
no means evidence that the conversation or its details did not occur as Lamstein testified.
Accordingly, plaintiff is grasping at straws in order to create a dispute of fact where none exists.
In fact, it is abundantly clear that plaintiff is aware that this single fact is fatal to his claim that
his apartment was unlawfully entered.
As an additional matter, plaintiff also misconstrues the overwhelming case law declaring
the defendants’ subjective motivation for entering plaintiff’s apartment irrelevant. The Supreme

-4-

Court has repeatedly held that an “officer’s subjective motivation is irrelevant” to a
determination of whether exigent circumstances exist. Brigham City v. Stuart, 547 U.S. 398, 404
(2006) (citing Scott v. United States, 436 U.S. 128, 138 (1978)). In Stuart the Court held that
even if an officer’s motives could be so neatly unraveled – whether they entered a home to make
an arrest and gather evidence or to render aid is irrelevant so long as it was objectively
reasonable to believe that exigent circumstances existed. The “facts” cited by plaintiff in his
own motion for summary judgment and in his opposition to City defendants’ motion for
summary judgment – namely that the defendants were engaged in a campaign of retaliation
against him – point solely to the officers’ subjective reason for entering the apartment. None of
the facts cited by plaintiff undercut the objective reasonableness of City defendants’ actions.
As set forth above, because Dr. Lamstein conveyed her concern for plaintiff’s safety it
was reasonable for the defendants to adhere to her belief that they should and must locate him to
ensure his wellbeing. At a minimum, defendants are entitled to dismissal on the basis of
qualified immunity for a claim based on the apartment entry, since there was at least an arguable
basis for exigent circumstances. See City Defendant’s Memorandum of Law in Support (“City
Mem.”) at 4.
As such, City defendants’ motion to dismiss plaintiff’s unlawful entry claim must be
dismissed.
POINT II
PLAINTIFF HAS ADDUCED EVIDENCE
SUFFICIENT TO SUPPORT ANY CLAIMS
AGAINST
DEFENDANTS
TRAINOR,
SAWYER, JAMES, NELSON, OR CAUGHEY.
Plaintiff’s opposition attempts to clarify his pleadings and set forth claims against
defendants Trainor, Sawyer, James, Nelson, and Caughey. However, for the reasons set forth

-5-

herein, there can be no claims against those defendants any summary judgment must be granted
in their favor.
A.

Captain Trainor
Although plaintiff admits that there are no claims against defendant Trainor for unlawful

search and seizure, he argues that Captain Trainor is liable for harassment in violation of the
First Amendment. However, as set forth in Point IV herein, plaintiff’s First Amendment claims
must be dismissed. As such summary judgment must be granted in Captain Trainor’s favor.
B.

Sergeants Sawyer and James
The entirety of plaintiff’s claims against Sergeants Sawyer and James relate to plaintiff’s

allegation that he was handcuffed by them to a gurney between his arrival at Jamaica Hospital
Medical Center on October 31, 2009 and the early morning hours of November 1, 2009. Plaintiff
ostensibly claims that this conduct amounts to excessive force in violation of §1983, and assault
and battery under New York State Law.
As set forth herein, and in City defendants’ initial memorandum of law, plaintiff was
properly taken into custody as an emotionally disturbed person pursuant to New York State’s
Mental Hygiene Law. Accordingly, handcuffing plaintiff, both at his apartment, and in the
hospital is an appropriate safety measure since the entire reason for taking plaintiff to the
hospital in the first place was that he posed a potential threat to himself. See People v. James
2001 N.Y. Misc. LEXIS 392, at n.4 (N.Y. Sup. Ct. May 21, 2001).
Moreover, plaintiff has presented no evidence, other than testimony that he was
temporarily uncomfortable and potentially bruised, that he suffered any harm as a result of being
handcuffed by any of the defendants. It is clear that “[i]njuries held to be de minimis for purposes
of defeating excessive force claims include short-term pain, swelling, and bruising . . . brief
numbness from tight handcuffing . . . [and] claims of minor discomfort from tight
-6-

handcuffing[.]”

Lemmo v. McKoy, 08-CV-4264, 2011 U.S. Dist. LEXIS 23075, at *5

(E.D.N.Y. Mar. 8, 2011) (collecting cases) (internal citations omitted).

By contrast, only

handcuffing that causes “intense pain and long-lasting injury . . . falls far from the hazy border
between excessive and acceptable force.” Usavage v. Port Auth. of N.Y. & N.J., 932 F. Supp. 2d
575, 598 (S.D.N.Y. 2013).
Accordingly, because plaintiff’s handcuffing was justifiable, and only caused minor
discomfort his claims against defendants Sawyer and James must be dismissed.
C.

Chief Nelson
Although plaintiff challenges City defendants’ contention that Chief Nelson did not

authorize any of Chief Marino’s actions on October 31, 2009, his opposition does nothing to
challenge the fact that Nelson is shielded from liability for reasonably relying upon information
from his fellow officers. See, e.g., Anthony v. City of New York, 339 F.3d 129, 138 (2d Cir.
2003). Moreover, plaintiff ignores that Nelson is shielded by qualified immunity even if other
officers were mistaken or dishonest, provided that he reasonably relied on their statements if he
in fact acted upon 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). Accordingly, summary judgment
must be granted in Chief Nelson’s favor.
D.

Lieutenant Caughey
Plaintiff also fails to controvert any of City defendants’ reasons for requesting summary

judgment in favor of Lieutenant Caughey. Instead he simply restates actions taken by Caughey
which City defendants have already addressed in their original memorandum of law.
Accordingly, summary judgment must be granted in Lieutenant Caughey’s favor.

-7-

POINT III
IT
WAS
REASONABLE
FOR
THE
DEFENDANTS
TO
BELIEVE
THAT
PLAINTIFF
WAS
EMOTIONALLY
DISTURBED.
As set forth in City defendants’ original memorandum of law, plaintiff’s false arrest and
false imprisonment claims fail because there was probable cause to seize plaintiff pursuant to
New York State’s Mental Health and Hygiene Law (hereinafter “MHL”). Moreover, even if the
Court were to find that probable cause to remove plaintiff to Jamaica Hospital did not exist, the
defendants are entitled to qualified immunity because it was objectively reasonable for them to
believe that plaintiff was emotionally disturbed.
Plaintiff argues alternatively that there are either issues of fact precluding summary
judgment or undisputed facts that establish plaintiff is entitled to summary judgment on this
claim. Plaintiff’s opposition relies primarily upon two Second Circuit decisions, Weyant v.
Okst, and Kerman v. City of New York, which are both distinguishable from this matter.
First, plaintiff posits that Weyant establishes that summary judgment cannot be granted
on a false arrest or false imprisonment claim when there is a dispute of fact “as to the nature of
the plaintiff’s conduct.” Pl. Opp. at 14. Plaintiff’s reliance upon Weyant is misplaced, because
here there are no disputes of fact about plaintiff’s conduct on October 31, 2009.

Instead

plaintiff’s dispute concerns the relevancy of each act or behavior exhibited by plaintiff. Indeed,
plaintiff does not dispute that he inter alia: 1) left work early; 2) had been placed on restricted
duty following an evaluation by NYPD psychological services; 3) refused to open his door for
hours after returning home; 4) had elevated blood pressure; 5) claimed to be suffering from
stomach pains; and 6) initially agreed to go to the hospital but then retreated back into his
apartment when he was told he wouldn’t be taken to the hospital of his choosing. Plaintiff

-8-

instead argues that those facts, and many others – most importantly Dr. Lamstein’s belief that
plaintiff might be a danger to himself – are not a sufficient basis for declaring the defendants’
actions reasonable. Plaintiff contends that those facts, combined with the fact that plaintiff had
been reporting what he believed to be misconduct by his supervisors, render the decision to
remove plaintiff for a mental health evaluation as unreasonable.
It is clear, however, that any officer, presented with the information known on October
31, 2009, and confronted with the behavior exhibited by plaintiff, would believe it was necessary
to have a doctor evaluate plaintiff’s mental health. In fact, Dr. Lamstein specifically told Captain
Lauterborn that the way plaintiff was acting was cause for concern and led her to believe that
plaintiff might be at risk for suicidal behavior. See Exhibit B to the Shaffer Supplemental Decl.
at p.340:2-17.
Similarly, plaintiff’s reliance upon Kerman is also misplaced. The Kerman Court found
that the defendants’ decision to remove plaintiff to a hospital for a mental health evaluation was
inappropriate because they ignored information available to them. Specifically, the defendants in
Kerman had an opportunity to consult with a mental health professional familiar with the
plaintiff’s health and refused to do so, instead hanging up on that doctor. 261 F.3d 229, 233 (2d
Cir. 2001). Indeed, the defendants here continually tried to obtain information about plaintiff’s
mental health, and when they did so, were told by a mental health professional that it was
imperative to locate plaintiff to ensure his safety. Supra at 2-6. It cannot be said that the
defendants in this matter ignored information in the same manner that the officers in Kerman did.
Instead, it is clear that the officers evaluated the need to remove plaintiff to the hospital
based upon a totality of the circumstances and in conjunction with an NYPD psychologist. It is
clear that even Dr. Lamstein, a trained mental health professional, felt that plaintiff’s actions

-9-

throughout the day on October 31, 2009, were so unusual as to render her 3 day old evaluation of
his mental status irrelevant. Supra at 2-3. In fact, she testified that because her prior evaluation
was insufficient and plaintiff’s new behavior so concerning, she was unable to say with certainty
that plaintiff was safe. See Exhibit B to the Shaffer Supplemental Decl. at p.340:14-17.
Finally, plaintiff contends that a question of fact exists concerning whether plaintiff’s
behavior was sufficiently erratic such that a mental health evaluation was required, or if plaintiff
was just being foolishly stubborn. Plaintiff’s position in this regard is based entirely upon the
holding of Tsesarskaya v. City of New York, 728 F.3d 149 (2nd Cir. 2013). In Tsesarskaya, like
Kerman and unlike this case, the defendants never consulted with a mental health provider. Id. at
451-52. Instead they interpreted the plaintiff’s behavior on their own without the assistance of a
doctor who had treated plaintiff. Here, because the defendants consulted with Dr. Lamstein who
interpreted plaintiff’s unusual behavior as a cause for concern about his safety, the decision to
remove plaintiff to a hospital as an emotionally disturbed person was based upon probable cause.
At best plaintiff can say that he disagrees with the defendants’ assessment. But even if
the Court were to find that there is a dispute about whether the facts were sufficient for the
officers to treat plaintiff as an EDP, at a minimum the individual defendants are entitled to
qualified immunity because probable cause was, at the very least, arguable. See Johnson v.
Myers, 10-CV-1964 (JS)(WDW), 2014 U.S. Dist. LEXIS 84379, *31-35 (E.D.N.Y. June 16,
2014) (granting qualified immunity to defendant police officer who removed plaintiff for a
mental health evaluation because plaintiff was uncooperative and had displayed unusual
behavior in the past).
Accordingly, plaintiff’s false arrest and imprisonment claims must be dismissed.

- 10 -

POINT IV
PLAINTIFF’S FIRST AMENDMENT CLAIM
SHOULD BE DISMISSED.
In opposition to City defendants’ motion for summary judgment dismissing his First
Amendment claims, plaintiff argues that: (1) his conduct prior to his public statements is
protected speech; (2) he need not have suffered an actual chilling effect to his speech because he
was subject to involuntary confinement; and (3) although there is no evidence that defendants
knew or believed that plaintiff intended any public speech, a motive to chill his public speech
may be imparted to the defendants. For the reasons set forth herein plaintiff’s First Amendment
claims must be dismissed.
A.

Changes in Law Require That the Court Grant Qualified Immunity to
Defendants.
As an initial matter, although the Second Circuit’s recent decision in Matthews v. City of

New York changed the law in this Circuit by giving First Amendment protection to some
internal police department complaints, it does not save plaintiff’s First Amendment claim. 2015
U.S. App. LEXIS 3016 (2nd Cir. Feb. 26, 2015). As set forth below, plaintiff’s IAB complaints
(including those referred to QAD) are distinguishable from the complaints in Matthews because
they were made pursuant to an official internal procedure and concerned plaintiff’s official
duties. Id. at *13-14, *18-19. Moreover, even under Matthews, plaintiff’s administrative appeal
of his performance evaluation – the only speech of which the defendants could have been aware
on October 31, 2009 – remains unprotected by the First Amendment because the appeal was
unquestionably made pursuant to plaintiff’s official duties using a procedure available only to
police officers.
The qualified immunity defense requires a three-step determination: “(1) whether
plaintiff has shown facts making out violation of a constitutional right; (2) if so, whether that
- 11 -

right was ‘clearly established’; and (3) even if the right was ‘clearly established,’ whether it was
‘objectively reasonable’ for the officer to believe the conduct at issue was lawful.” Gonzalez v.
City of Schenectady, 728 F.3d 149, 154 (2d Cir. 2013). Should the court find that the first step is
satisfied and the plaintiff’s internal complaints are now protected by the First Amendment, then
the change in the law engendered by Matthews is the classic case for the application of the
defense of qualified immunity. This Court had previously held Schoolcraft’s IAB complaints
unprotected by the First Amendment. Schoolcraft v. City of New York, 10-CV-6005 (RWS),
2012 U.S. Dist. LEXIS 128557, at 15-16 (S.D.N.Y. Sept. 7, 2012) (Schoolcraft II). Obviously
then, if those complaints are now protected by the First Amendment (which defendants do not
concede), plaintiff’s right was not “clearly established” and no “reasonable officer” could have
known of it over five years ago.
Should the Court find that the scope of First Amendment protection has enlarged, then
the defense of Qualified Immunity applies because the “contours” of First Amendment
protection have changed: “[t]he right the official is alleged to have violated must have been
“clearly established” in a more particularized, and hence more relevant, sense: The contours of
the right must be sufficiently clear that a reasonable official would understand that what he is
doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987)); see also Bradway
v. Gonzales, 26 F.3d 313, 317-18 (2d Cir. 1994) (the “doctrine of qualified immunity shields
public officials performing discretionary functions from civil liability insofar as their conduct
does not violate clearly established statutory or constitutional rights of which a reasonable person
would have known”) (internal citations and quotations omitted); Hunter v. Bryant, 502 U.S. 224,
229 (1991) (“The qualified immunity standard ‘gives ample room for mistaken judgments’ by
protecting ‘all but the plainly incompetent or those who knowingly violate the law.’”)(per

- 12 -

curiam) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). Indeed, plaintiff argues that as a
result of Lane v. Franks, 134 S. Ct. 2369 (2014), there was a “change in the law” even before
Matthews, narrowing the scope of government employee speech that is exempted from First
Amendment protection. Accordingly, qualified immunity on plaintiff’s First Amendment Claim
must be granted.
B.

Plaintiff’s Internal Speech is not Protected.
Plaintiff’s internal complaints remain unprotected by the First Amendment, even under

Matthews. In Schoolcraft II, this Court held that under Garcetti v. Ceballos plaintiff’s First
Amendment claim requires him to establish that the speech at issue was made as a “private
citizen” rather than as part of his official duties. 547 U.S. 410, 418 (2006). Plaintiff believes
this means that any and all of the defendants’ conduct after his suspension is actionable under the
First Amendment. This is not the law, or the Court’s holding. The Garcetti test depends upon
plaintiff’s speech, not the defendants’ conduct. As the Court held, it is only plaintiff’s “alleged
intent to speak out to the media and public at large . . . that is not pursuant to [his] official duties
and, as such, is protected by the First Amendment.” 2014 U.S. Dist LEXIS 128557, at *17.
Plaintiff admits that he did not even form the intent to speak to the press until after October 31,
2009. Pl. Opp. at 25; Exhibit B to the Declaration of Suzanna Mettham (“Mettham Decl.”) at
265:3-18.
Here, plaintiff points to various instances of expression all of which relate to his official
duties: (i) he objected to his performance evaluation and initiated an administrative appeal of the
evaluation, alleging that he was subjected to improper quotas for police activity; 1 (ii) his

1

Plaintiff suggests that his low performance evaluation was an instance of retaliation for not
meeting performance targets in levels of policing activity. See Exhibit C to the Shaffer
Supplemental Decl. at 262:21-263:3; Exhibit D to the Shaffer Supplemental Decl.; Exhibit E to
- 13 -

attorney, referred by the police union, sent a letter to Deputy Inspector Mauriello complaining
about his employment evaluation and alleging that quotas for arrests and summonses caused his
low evaluation; (ii) he complained by memo to IAB that two supervisors in his own precinct
removed material from one of the supervisor’s personnel folders; (iii) he reported to IAB and
QAD that Deputy Inspector Mauriello was causing the improper downgrading and discarding of
complaints of serious crimes and pressuring officers to make arrests and issue summonses, and
that he was required to sign a training log although he did not receive adequate training; (iv) he
made notations reflecting his observations and communications with IAB and QAD in his
department-issued memo book. See Plaintiff’s Statement of Undisputed Facts Pursuant to Fed.
R. Civ. P. 56.1 in support of his own motion for partial summary judgment (“Pl. 56.1”) at ¶¶ 13,
20, 22, 25, 38, 40-42; Exhibit I to the Shaffer Supplemental Decl.
Even under Matthews, the activities cited by plaintiff are not protected by the First
Amendment because they relate to plaintiff’s official duties. Under Garcetti and Lane v. Franks,
134 S. Ct. 2369 (2014), when a government employee speaks pursuant to his or her official
duties – for example by making complaints within his or her agency about misconduct or
working conditions – the employee does not speak as a “private citizen” and therefore has no
First Amendment protection for such complaints.
The Second Circuit held in Weintraub v. Board of Education, that an employee speaks
pursuant to their official duties when their complaints – like plaintiff’s here – are “‘part-andparcel’ of his concerns about his ability to properly execute his duties.” 593 F.3d 196, 203 (2d
Cir. 2010) (finding that teacher complaining and filing union grievance about a failure to
discipline a student in his class spoke pursuant to official duties) (quotations and citations
the Shaffer Supplemental Decl. As this Court previously held, Schoolcraft’s alleged refusal to
make arrests was not speech protected by the First Amendment. Schoolcraft II, at 29-30.
- 14 -

omitted). The Second Circuit also held that when police officers, “reported what they believed
to be misconduct by a supervisor up the chain of command” which “they knew of only by virtue
of their jobs as police officers and which they reported as ‘part-and-parcel of [their] concerns
about [their] ability to properly execute [their] duties,’ then they were not engaging in
constitutionally protected speech at any relevant time and cannot make out a First Amendment
claim.” Carter v. Inc. Vill. of Ocean Beach, 415 Fed. Appx. 290, 293 (2d Cir. 2011); see also
D’Olimpio v. Crisafi, 718 F. Supp. 2d 340, 353-354 (S.D.N.Y. 2010) (where officer complained
of other officer’s “violating suspects’ rights and [] not performing his job properly, and by
implication . . . interfering with [his] ability to perform his own duties” then the complaints were
“directly or indirectly, ‘part-and-parcel of his concerns’ about his ability to ‘properly execute his
duties’” and not protected by the First Amendment); Barclay v. Michalsky, 368 Fed. App'x 266
(2d Cir. 2010) (speech unprotected where nurse reported abuse and other nurses sleeping on the
job because she testified that this was her “job” and a work rule required employees to report
violence against patients and employees not working).Thus, prior to Matthews it was well settled
that public employee’s reports of misconduct affecting his or her employment, through
appropriate workplace channels, are not protected by the First Amendment. See also Anemone v.
Metro. Trans. Auth., 629 F.3d 97, 116 (2d Cir. 2011) (communications between former Security
Director for the Metropolitan Transportation Authority (“MTA”) and the District Attorney’s office
concerning MTA “was clearly pursuant to [plaintiff’s] official duties” and the plaintiff had “regularly
interacted with [DAs] and viewed cooperating with these offices as among his duties.”); Healy v.
City of New York Dep’t of Sanitation, 286 F. App’x 744, 746 (2d Cir. 2008) (holding that it was
expressly “within the scope” of Department of Sanitation employee’s duties to report to his
supervisor corruption discovered while performing a routine inventory check); Brady v. County of

- 15 -

Suffolk, 657 F. Supp. 2d 331, 348 (E.D.N.Y. 2009) (Bianco, J) (a police traffic officer complained
internally about corruption, specifically that he was instructed not to issue summonses to off-duty
law enforcement personnel and those with Police Benevolent Association cards).
On the other hand, in Lane v. Franks the Supreme Court held that “the mere fact that a
citizen’s speech concerns information acquired by virtue of his public employment does not
transform that speech into employee—rather than citizen—speech.” 134 S. Ct. 2369 at 2379
(2014). Nonetheless Lane does not help plaintiff because his speech was within his own agency,
for the purported purpose of correcting conditions of his own employment, and used channels
made available by the NYPD to officers for that purpose.
In Matthews, the Second Circuit focused on the nature and subject-matter of the officer’s
complaints and their “relationship” to the officer’s job responsibilities. 2015 U.S. App. LEXIS
at *13. The court held that an officer’s complaints about a quota policy to the commanding
officer of his precinct were protected by the First Amendment, stating: “[W]hen a public
employee whose duties do not involve formulating, implementing or providing feedback on a
policy that implicates matters of public concern, engages in speech concerning that policy, and
does so in a manner in which ordinary citizens would be expected to engage, he or she speaks as
a citizen, not as a public employee.” Id. at *15.
However, plaintiff’s speech in the instant matter was of a different character. Unlike
Matthews’ complaints, plaintiff’s speech generally concerned his own work: his own complaint
reports; his own training; his own employee evaluation; his own arrests and summons rates; and
the conduct of supervisors within his own precinct. The eleven 81st Precinct complaints that
plaintiff claimed were downgraded or discarded were, in all but possibly two cases, complaints
that Schoolcraft was personally involved in taking or handling at the 81st precinct. See PMX 16,

- 16 -

D000517-32. 2 Likewise, plaintiff’s complaints about being forced to sign a training log for
training he did not receive, and for receiving a bad evaluation for not meeting an alleged quota
for summonses and arrests, clearly concerned his own duties.
Matthews also focused on the presence of a “civilian analogue” to the means of speech
used by the officer to find that his complaints were protected by the First Amendment. Because
Matthews did not “follow internal grievance procedures,” such as the teacher in Weintraub, “but
rather went directly to the Precinct commanders, with whom he did not have regular interactions
and who had an open door to community comments and complaints,” his speech was comparable
to that of a private citizen. Matthews 2015 U.S. App. LEXIS at *19. But here, plaintiff did use
“internal procedures.” Id. at *17.

In appealing his evaluation, plaintiff availed himself of

administrative procedures unavailable to a member of the public. See City defendants’ 56.1
Statement (“City 56.1”) ¶¶ 9. 10; Pl. 56.1 ¶¶ 13, 14. Plaintiff’s IAB complaints (some referred to
QAD) were made pursuant to Patrol Guide § 207-21, 3 which the Second Circuit acknowledged
was an “internal procedure.” Matthews 2015 U.S. LEXIS at *17. Plaintiff himself testified that
he felt he was documenting misconduct pursuant to his official duties as a police officer. See
Exhibit C to the Shaffer Supplemental Decl. at 112:13-19. 4 Other witnesses confirmed the
2

Plaintiff relies on D000517-32 in opposing summary judgment, Pl. 56.1 ¶ 129, and accordingly
defendants may rely upon it for the purposes of this motion. However, by relying upon it
defendants do not concede its accuracy or admissibility at trial.
3

As this Court previously noted, Patrol Guide § 207-21 states: “All members of the service have
an absolute duty to report any corruption or other misconduct, or allegation of corruption or other
misconduct, of which they become aware.” Schoolcraft II, at *17.
4

In Matthews, the Second Circuit stated in dicta that PG 207-21 alone would not render an
internal complaint subject to the official duty exemption from the First Amendment, but it did
not hold the provision irrelevant. Id. Rather, the undisputed facts in Matthews showed that PG
207-21 did not require a report of the “quota system” in that case, because no specific instances
of misconduct were reported. 2015 U.S. LEXIS at *16. There is no such evidence here, and
several specific instances of purported misconduct were reported by plaintiff.
- 17 -

affirmative obligation of police officers to report misconduct. Mauriello Deposition Transcript
annexed to the Shaffer Supplemental Decl. as Exhibit F at 23:17-24:23; Ferrara Deposition
Transcript annexed to the Smith Opp. Decl. as POX 39 at 73:18-20. Unlike Matthews, there is
no evidence in this case that Schoolcraft’s reports, were they accurate, went beyond the duties
required of him as an NYPD officer. See Matthews, 2015 U.S. App. LEXIS at *13-17.
The district court authorities cited by plaintiff are likewise distinguishable. In Hagan v.
City of New York, the court found on a motion to dismiss, that when the plaintiff complained
outside of her own agency about employment discrimination, the speech was protected by the
First Amendment. No. 13 Civ. 1108 (JPO), 2014 U.S. Dist. LEXIS 113847, *62 (S.D.N.Y.
August 15, 2014). As to complaints within the plaintiff’s agency, the court concluded that on a
motion to dismiss, relying on Lane v. Franks it could not presume that internal complaints were
“actually expected or permitted . . . in practice.” Id., at *67-68. But here, after discovery,
despite plaintiff’s unsupported assertions about a “Blue Wall of Silence,” plaintiff cannot
contend on this record that internal complaints to IAB did not in practice actually occur and lead
to corrective action. See infra at Point X. 5
Likewise, Griffin v. City of New York held that if plaintiff could show that internal
reporting was not a de facto part of his duties, or that the matter reported on did not concern his
own job performance, then First Amendment protection would apply. Id. (“[N]either officer was
assigned to the case in which the victim interview was botched. In short, McCarthy’s alleged
misconduct did not directly interfere with plaintiff's ability to perform his assigned duties as a police
officer.”) As noted above, the misconduct reported by plaintiff here directly concerned his own
5

Plaintiff himself made several internal complaints, some leading to NYPD action (PMX 15),
and plaintiff proffers evidence of complaints by others, including testimony (albeit hearsay) that
several commanding officers were reported-on and disciplined for conduct similar to that alleged
by plaintiff (“fudging numbers”). Pl. Opp. at 75-79; POX 39 at 224:6-19, 226:6.
- 18 -

work.6 Accordingly, prior to plaintiff’s statements to the press, his speech was made pursuant to his
official duties and not protected by the First Amendment. At the very least, the aforementioned
developments and changes in the relevant case law are exactly the type that require the dismissal
of plaintiff’s First Amendment claim under the doctrine of qualified immunity.
C.

There was No Intent to Restrain Plaintiff’s Speech.
Plaintiff has no cause of action under the First Amendment because he cannot establish the

required intent to restrict his speech.
circumstances is flawed.

His assertion that the intent can be inferred from the

Plaintiff’s argument that intent may be presumed is far from the law.

Rather, plaintiff must prove that defendants’ conduct “was motivated by or substantially caused by
[Plaintiff’s] exercise of free speech.” Tomlins v. Vill. of Wappinger Falls Zoning Bd. of Appeals,
812 F. Supp. 2d 357, 371 (S.D.N.Y. 2011) (quoting Gagliardi v. Village of Pawling, 18 F.3d 188,
194 (2d Cir. 1994)).

Plaintiff’s proof is missing the key requirement that defendants know of

plaintiff’s protected activity.
“Specific proof of improper motivation is required in order for plaintiff to survive summary
judgment on a First Amendment retaliation claim.” Curley, 268 F.3d at 73 (citing Blue v. Koren, 72
F.3d 1075, 1082-83 (2d Cir. 1995)). “[A] plaintiff may not rely on conclusory assertions of

6

Plaintiff suggests that statements to his supervisors after he was “suspended” in his apartment
were protected by the First Amendment, and that he was punished for them. Schoolcraft was not
suspended in his apartment, although he was told that he would eventually be suspended. PMX
11 at 11:16-12:11. The Court in Schoolcraft II found the suspension relevant to the question of
whether Schoolcraft spoke as a private citizen (not whether he was, in fact, a public employee),
but his suspension is not dispositive of the issue. A full-time employee, still subject to the rules
and order of his agency, cannot be deemed a private citizen for all purposes as a matter of law.
See City Mem. at 11. Rather, the Court held that the suspension combined with plaintiff’s
absence from the NYPD’s jurisdiction (at his residence upstate), allowed for his speech to the
press to be deemed that of a private citizen. Schoolcraft II, at 16, 23-24. Moreover, plaintiff’s
statements to his supervisors at his apartment concerned his health and whether or not he would
go to the hospital or the precinct, hardly matters of public concern as required for a First
Amendment claim. Garcetti, 547 U.S. at 410.
- 19 -

retaliatory motive to satisfy the causal link,” and must produce “some tangible proof to demonstrate
that [his] version of what occurred was not imaginary.” Cobb v. Pozzi, 363 F.3d 89, 108 (2d Cir.
2004) (citation omitted).

The mere existence of “a scintilla of evidence” in support of the

nonmovant’s position is insufficient; there must be evidence on which the jury could reasonably find
for him. See Dawson v. Cnty. of Westchester, 373 F.3d 265, 272 (2d Cir. 2004) (citation omitted);
accord Dunk v. Brower, 2013 U.S. Dist. LEXIS 160667, 24-26 (S.D.N.Y. Nov. 7, 2013) .
As set forth in Dunk v. Brower, “[t]o prove a causal connection [with the protected
speech], the plaintiff must demonstrate that the individuals who engaged in retaliation had
knowledge of the protected conduct.” 2013 U.S. Dist. LEXIS 160667, 29 (S.D.N.Y. Nov. 7,
2013)(quoting Deal v. Seneca Cnty., No. 07 Civ. 6497 (MAT), 2012 U.S. Dist. LEXIS 705, 2012
WL 13661 (W.D.N.Y. Jan. 4, 2012); see also Washington v. Cnty. of Rockland, 373 F.3d 310,
321 (2d Cir. 2004). To be sure, as this Court observed in Schoolcraft II, at 12, the required intent
can sometimes be inferred from circumstances. Most commonly, “[c]ircumstantial evidence of
retaliation may be found when defendants are aware that plaintiff has engaged in protected
speech and defendants’ challenged behavior closely follows that protected speech,” presuming
defendants are aware of the speech. Butler v. City of Batavia, 545 F. Supp. 2d 289, 293
(W.D.N.Y. 2008) aff’d, 323 F. App’x 21 (2d Cir. 2009) (citing Economic Opportunity Comm’n
of Nassau Cnty., Inc. v. Cnty. of Nassau, 106 F. Supp. 2d 433, 437 (E.D.N.Y. 2000)); DorsettFelicelli, Inc. v. County of Clinton, 371 F. Supp. 2d 183, 192 (N.D.N.Y 2005) (relying on
allegation that retaliatory action followed soon after protected filing).
Plaintiff claims – without citation to any evidence (because there is none) – that his
complaints to IAB and QAD were “common knowledge” within the 81st Precinct. Pl. 56.1 ¶44.
Wilton Reassurance Life Ins. Co. v. Smith, 2015 U.S. Dist. LEXIS 18437 (E.D.N.Y. Jan. 21,

- 20 -

2015) (“Rule 56(c)(1) explains that a party’s factual positions on summary judgment must be
supported by citations “to particular parts of materials in the record, including depositions,
documents, electronically stored information, affidavits or declarations, stipulations (including
those made for purposes of the motion only), admissions, interrogatory answers, or other
materials.”). The Court must disregard that claim because there is no evidence that any officer at
plaintiff’s apartment on October 31, 2008 knew the substance of his purported communications
with QAD and IAB. The Court should therefore disregard Schoolcraft’s allegations that he was
retaliated against for his complaints to IAB and QAD on October 31, 2009 or at any time
beforehand as plaintiff’s basis for establishing this motive is nothing more than conjecture.
Nonetheless, plaintiff attempts to ginny up an improper motive by arguing that the
required intent to restrain speech – which he admits had not yet occurred nor was even intended
– can be inferred from the totality of the circumstances. Although this Court held that plaintiff’s
allegations of intent were sufficient, he has reached the point of having to provide evidence of
same and has failed to do so. Schoolcraft II, at 22. 7
Indeed, plaintiff’s own testimony belies his claim that there was intent to restrain his
speech. Plaintiff claims that the alleged retaliation was driven by his internal complaints, not
statements to the press.

56.1 ¶69.

Indisputably, plaintiff’s administrative appeal of his

performance evaluation – the only thing defendants did know about – was not protected by the
First Amendment. Moreover, as set forth above defendants are entitled to qualified immunity on
any allegations based upon plaintiff’s internal complaints.

7

In addition, the probable cause or arguable probable cause for concluding that Schoolcraft was
an EDP is sufficient to dismiss any First Amendment claim for that conduct. See Dunk v.
Brower, 2013 U.S. Dist. LEXIS 160667, at 25.
- 21 -

Plaintiff does not even pretend to know when the defendants first came to believe that he
might make disclosures to the press. See Exhibit B to the Mettham Decl. at 265:19-25. Plaintiff
does not allege that defendants made statements to him or each other indicating an attempt to
stop him from speaking to the press. Nor does plaintiff provide any evidence that he made
statements to defendants indicating a threat or intent to speak to the press. Thus, there is simply
no evidence that the defendants harbored any belief that plaintiff would speak to the press until
February 1, 2010, when the first article was published citing him as a source. See Exhibit M to
the Mettham Decl.
Additionally, there is no evidence that the visits to plaintiff’s home in Johnstown, New
York, were intended to stop him from speaking to the press. In fact, there was only one police
visit to plaintiff’s home after the February 1, 2010 publication, on February 3, 2010 – for the
purpose of serving a notice of restoration to active duty to Schoolcraft (56.1 ¶67).
D.

Plaintiff Cannot Establish the Chilling Effect Required to State a Claim.
In order to proceed with his claim for “prior restraint” (Third Amended Complaint “TAC” ¶

247), plaintiff must proffer evidence that he suffered an actual chilling effect to his speech from the
defendants’ actions, and he cannot do so.
The Court previously held that plaintiff had sufficiently met the pleading standards.
However, at the summary judgment stage plaintiff must provide actual evidence which he has not
done. Plaintiff never asserts that hi speech was chilled, or that he would have gone to the press
sooner had the defendants’ done nothing. Pl. Opp. at 27-28. Indeed, plaintiff admits that his
speech was actually encouraged by the defendants’ actions. See Plf. 56.1 at ¶¶91-92. Plaintiff’s
testimony proves the opposite of a chill: that he may never have gone to the press had defendants
done nothing. Plaintiff testified that as of October 31, 2009, “I don't believe it ever crossed my mind,
going outside the department,” and he “still believed that . . . once I brought the evidence forward,
- 22 -

that the department would have to resolve the issues of misconduct in the 81st Precinct. And it
would be handled inside -- inside the department.” Exhibit B to the Mettham Decl. at 265:3-10.
Nonetheless, by February 2, 2010 plaintiff was the subject of a published article and
communicated with the press with wild abandon. Supra at 13.; 56.1 ¶¶ 76-81. The only reasonable
inference is that, rather than chilling his speech, the defendants’ instigated it, and the speech would
not have occurred without the defendants’ conduct.
Thus, there can be no inference that Schoolcraft suffered the “actual chill” that is required to
set forth a prior restraint claim, regardless of the nature of the defendants’ conduct. Plaintiff’s
reliance on Kerman v. City of New York, 261 F.3d 229 (2d Cir. 2001) is misplaced, because in that
retaliation claim –not a prior restraint claim as Schoolcraft purports to bring here – there was no
evidence, proving the absence of a chill. Rather, Kerman concerned a one-time interaction with no
opportunity for further speech. There the plaintiff alleged that “the police violated his First
Amendment rights by taking him to Bellevue Hospital in retaliation for his derogatory remarks to
the police and his threats to sue them.” Id. at 242. In Kerman, there is no evidence from which to
judge the existence of a chilling effect; indeed, the question was nearly meaningless. In contrast,
here there is much evidence, and all of it points to the absence of a chill.
Since Kerman, the Second Circuit has clarified that “plaintiffs who allege a violation of their
right to free speech” must prove that “(1) defendants silenced him or (2) defendants actions had some
actual, non-speculative chilling effect on his speech.” Williams v. Town of Greenburgh, 535 F.3d
71, 78 (2d Cir. 2008). Likewise, as with plaintiff, when there is evidence that the protected conduct
continued after the alleged retaliatory act (or even in response to the retaliatory act), a plaintiff cannot
establish a chilling effect. Id. (Because plaintiff petitioned for readmission after his allegedly

- 23 -

retaliatory expulsion from a community center, complaining of defendants’ conduct, he could not
establish a chilling effect). 8
Accordingly, Schoolcraft’s First Amendment claim should be dismissed.
POINT V
PLAINTIFF HAS NOT ESTABLISHED THAT
CERTAIN
DEFENDANTS
WERE
PERSONALLY INVOLVED.
As set forth in City defendants’ original memorandum, 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. For the reasons set forth
herein, and in City defendants’ original motion papers, certain claims brought by plaintiff must
be dismissed for lack of personal involvement.
A.

Captain Lauterborn
Plaintiff’s claims against Captain Lauterborn for excessive force, assault, and battery

must be dismissed because he has belatedly alleged that Captain Lauterborn was personally
involved in the use of force upon plaintiff inside of the apartment on October 31, 2009. Plaintiff

8

Plaintiff’s reliance on Zieper v. Metzinger, 474 F.3d 60 (2d Cir. 2007) is misplaced, because
there the defendant FBI agents asked the plaintiff to take down an internet file and he did so; in
contrast here there is no evidence whatsoever that the defendants asked plaintiff to refrain from
speech or even that he did so. Some courts do hold that where a plaintiff asserts a First
Amendment workplace retaliation claim, adverse employment action may substitute for an actual
chilling effect. Greenburgh, 535 F.3d at 76. However, in the instant matter plaintiff makes no
First Amendment claim for retaliation by adverse employment action. TAC ¶¶ 245-261. Even if
plaintiff wished to pursue such a claim, after three amendments to his complaint, it is too late to
change it yet again, on the eve of trial and in the midst of summary judgment motions. Alali v.
DeBara, 2008 U.S. Dist. LEXIS 86760, *3 n.6 (S.D.N.Y. Oct. 24, 2008). See also Southwick
Clothing LLC v. GFT (USA) Corp., 2004 U.S. Dist. LEXIS 25336, at *6 (S.D.N.Y. Dec. 15,
2004) (“A complaint cannot be amended merely by raising new facts and theories in plaintiffs’
opposition papers, and hence such new allegations and claims should not be considered in
resolving the motion.”) Moreover, Schoolcraft was entitled to contest the adverse employment
actions through administrative procedures provided to him by law and his public employee union
contract; he declined to do so. See City 56.1 ¶ 67.
- 24 -

does not dispute that his complaint is devoid of any specific allegation that Lauterborn used force
against him. Instead he points out that there is evidence in the record that Lauterborn was
involved. However, courts will not consider, on a motion for summary judgment, allegations that
were not pled in the complaint and raised for the first time in opposition to a motion for summary
judgment. Alali v. DeBara, 2008 U.S. Dist. LEXIS 86760, *3 n.6 (S.D.N.Y. Oct. 24, 2008). See
also Southwick Clothing LLC v. GFT (USA) Corp., 2004 U.S. Dist. LEXIS 25336, 2004 WL
2914093, at *6 (S.D.N.Y. Dec. 15, 2004) (“A complaint cannot be amended merely by raising
new facts and theories in plaintiffs’ opposition papers, and hence such new allegations and
claims should not be considered in resolving the motion.”). Accordingly, plaintiff’s excessive
force, assault, and battery claims against Lauterborn must be dismissed for lack of personal
involvement.
Nonetheless, if the Court is inclined to consider plaintiff’s untimely allegation of force
against Captain Lauterborn, it is clear that the claim still must be dismissed because there was
probable cause to remove plaintiff to the hospital for a mental health evaluation. See Esmont v.
City of New York, 371 F. Supp. 2d 202, 214 (E.D.N.Y. 2005) (“Frequently, a reasonable arrest
involves handcuffing the suspect, and to be effective handcuffs must be tight enough to prevent
the arrestee’s hands from slipping out.”). Because it is only alleged that Capt. Lauterborn
assisted in handcuffing plaintiff, and the reason for handcuffing plaintiff was clearly permissible,
plaintiff’s claims against Capt. Lauterborn for excessive force, assault, and battery must be
dismissed.
B.

Captain Trainor, Chief Nelson, and Lieutenant Caughey.
As set forth above, plaintiff has not properly alleged any claims against defendants

Trainor, Nelson, or Caughey. Accordingly, summary judgment must be granted in their favor.

- 25 -

POINT VI
PLAINTIFF CANNOT DEMONSTRATE A
CONSPIRACY SUFFICIENT TO SURVIVE
SUMMARY JUDGMENT.
Plaintiff argues that his conspiracy claim should survive summary judgment because: (1)
an intra-corporate conspiracy is permitted among City defendants because they were acting for
personal interests; and (2) there is circumstantial evidence of a conspiracy between the City
employees and the private employees of Jamaica Hospital. These arguments fail because an
intra-corporate conspiracy claim may not lie, where, as here, all defendants are alleged to be
acting in the scope of their employment, and the scope of employment issue is conceded by
defendants. Moreover, there are no facts that would remove the actions of the defendants from
the scope of employment. Despite plaintiff’s laundry list of alleged errors by Jamaica Hospital,
there is no evidence of an agreement by, or even a motive for, Jamaica Hospital to violate
plaintiff’s constitutional rights, the sine qua non of conspiracy under §1983.
A.

There is no exception to the intra-corporate conspiracy doctrine where, as here,
the co-conspirators with the same employer were all acting within the scope of
employment.
Plaintiff’s argument that an exception to the intra-corporate conspiracy doctrine must be

made here fails because all the City defendants were acting within the scope of their
employment.

It is well settled that “there is no conspiracy if the conspiratorial conduct

challenged is essentially a single act by a single corporation acting exclusively through its own
directors, officers, and employees, each acting within the scope of his employment.” Herrmann
v. Moore, 576 F.2d 453, 459 (2d Cir. N.Y. 1978). Plaintiff alleges that all of the defendants were
acting “within the scope of their employment by the City of New York” and “in furtherance of
their employment by the City of New York,” and “under the supervision of said department and

- 26 -

according to their official duties.” TAC ¶¶ 11-16. Defendants do not contest these allegations
and in any event there is no evidence to the contrary.
While a party is entitled to allege claims in the alternative, a plaintiff may not proceed
through summary judgment and on to trial on mutually exclusive contentions, where the
defendant concedes one of the contentions: here, that the defendants acted within the scope of
employment. Arguably plaintiff may withdraw his claims that rely on defendants’ acting within
the scope of employment, but he cannot at this stage try a claim inconsistent with that contention,
which is conceded by defendants. See infra at 33. In any event it is clear that defendants acted
within the scope of employment.
Although there is a personal interest exception to the intra-corporate conspiracy doctrine,
the Second Circuit has never altered its formulation in Herrmann that clearly bars an
intracorporate conspiracy claim where, as here, all the conspirators act within the scope of
employment. See White v. City of N.Y., 12 Civ. 7156 (ER), 2014 U.S. Dist. LEXIS 123255, 46
(S.D.N.Y. Sept. 3, 2014) (agency employees who allegedly acted together within the scope of
employment to issue false disciplinary charges against teacher were covered by intracorporate
conspiracy doctrine) (citing Chillemi v. Town of Southampton, 943 F. Supp. 2d 365, 2013 WL
1876443, at *12 (E.D.N.Y. 2013)); Anemone v. Metropolitan Transp. Auth., 419 F. Supp. 2d
602, 604 (S.D.N.Y. 2006) (dismissing conspiracy claim, finding personal interested exception
“of no use” to plaintiff who alleges both scope of employment and Monell liability); 9 see also
Randle v. Alexander, 960 F. Supp. 2d 457, 475 (S.D.N.Y. 2013) (intracorporate conspiracy
9

And while defendants contest the allegations in Schoolcraft’s Monell claim, there also he
alleges that the defendants acted in conformity with a policy of the City of New York. TAC ¶¶
302-03. Even if these scope of employment is not fatal to the conspiracy claim, the Monell
allegations surely are, and Schoolcraft cannot proceed on both a Monell and intracorporate
conspiracy claim based on the personal interest exception.
- 27 -

doctrine applies to employees acting within the “scope of employment,” and defendant
correction officers who forced inmates to fight each other were acting beyond the “scope of their
responsibilities as prison guards” and therefore not covered by the doctrine).
The case law upon which plaintiff relies in support of his conspiracy claim is not
persuasive. In Reich v. Lopez, the court found that one defendants’ interest in protecting a
bribery scheme from which a defendant allegedly derived “disproportionately great profit,” “as
compared to . . . or at the expense of” his employer, that could support an exception for that
employee to the intracorporate conspiracy doctrine. No. 13-CV-5307 (JPO), 2014 U.S. Dist.
LEXIS 115079, *53 (S.D.N.Y. August 18, 2014). The Reich court did not consider whether the
allegations were consistent with actions within the scope of employment, because the issue was
irrelevant: the employer was not a defendant and scope of employment was apparently not
alleged. Id., at *2-3, *54. In Rini v. Zirwin, the court held that the individual defendants acted
within “the scope of their official duties” for the town, except for one who, although a town
employee, took actions outside the scope of “his duties as an employee of the town,” such as
attending policy meetings that it was not his job to attend.

Id., at 54.

There is nothing

comparable in this case to distinguish the actions of any defendant from their job duties, and
there was no suggestion in Rini v. Zirwin that the defendant’s actions were within the scope of
employment.
Likewise, in Yeadon v. New York Transit Authority, no state law claims or scope of
employment allegations were presented. 719 F. Supp. 204 (S.D.N.Y. 1989). In distinguishing
the intracorporate conspiracy doctrine, the court relied on case law concerning racial
discrimination claims and authority from other circuits, to find that the individual defendants –
alleged to have created false reports inventing complaining witnesses to justify false arrests –

- 28 -

“possessed independent, personal conspiratorial purposes.” 719 F. Supp. at 212. The principal
grounds for Yeadon’s holding – a “multiple acts” exception to the intracorporate conspiracy
doctrine in discrimination cases – has since been rejected in the Southern District. See, e.g.,
Dilworth v. Goldberg, 914 F. Supp. 2d 433, 466-467 (S.D.N.Y. 2012). Lacking any discussion
of the scope of employment, Yeadon is not authority that plaintiff may establish both scope of
employment liability and the personal interest exception at the same time. 10
Plaintiff also incorrectly suggests that the intracorporate conspiracy doctrine does not
apply to dealings between NYPD and FDNY officers. However, as alleged in the SAC, all of the
individual City defendants work for the same municipal corporation – the City of New York, and
their assignment to different agencies is irrelevant for the purposes of the intracorporate
conspiracy doctrine, which applies even to separate corporate entities, such as parents and
subsidiaries. See McEvoy v. Spencer, 49 F. Supp. 2d 224, 226 (S.D.N.Y. 1999) (conspiracy
claim against, inter alia, the Police Commissioner and an assistant Corporation Counsel for the
City of Yonkers was barred, and noting that, although the defendants “work[ed] in different
departments of the City,” that fact was “of no more moment in the municipal context than it

10

In Hill v. City of New York, also cited by plaintiff, the Eastern District court held that the
personal interest exception to the intracorporate conspiracy doctrine applied because the
defendant officer acted “other than in the normal course of [his] corporate duties” and “in his
own personal interest,” to cover up his illegal use of force: ramming a suspect on a stopped
motorcycle with his squad car, in contravention of NYPD rules. No. 03 CV 1283 (ARR), 2005
U.S. Dist. LEXIS 38926, *3 (E.D.N.Y. Dec. 30, 2005). The court relied on another Eastern
District decision, Bond v. Board of Educ., holding to the contrary, that the allegation that
defendants were acting “in the ordinary course of employment” was inconsistent with the private
interest exception. No. 97 CV1337, 1999 U.S. Dist. LEXIS 3164, 6 (E.D.N.Y. Mar. 17, 1999).
While Hill also held, correctly, that a claim for negligent hiring and supervision should be
dismissed because scope of employment was undisputed, the court did not consider an
inconsistency with the personal interest exception, or the holding in Bond. Id. at 36. There is no
evidence of personal interest here that is comparable to the Hill case, and in any event this Court
should not follow its ruling on the issue of intracorporate conspiracy.

- 29 -

would be if the individual defendants worked for the Mainframe and Personnel Divisions of
IBM“); Dunlop v. City of New York, 2008 U.S. Dist. LEXIS 38250, 30 (S.D.N.Y. May 6, 2008)
(finding that separate City agencies were the same entity for the purposes of intracorporate
conspiracy); Copperweld Corp. v. Independence Tube Corp., 467 Y,S, 752, 771 (1984) (applying
doctrine to parents and subsidiaries).

Indeed, the NYPD and FDNY are not even cognizable

juridical entities, thus plaintiff’s conspiracy claim cannot survive on this basis.
B.

There is no evidence of an agreement between City employees or NYPD officers
and others to violate Schoolcraft’s constitutional rights.
Plaintiff argues that, notwithstanding the intracorporate conspiracy doctrine, a conspiracy

claim may proceed against the City defendants and Jamaica Hospital, a private entity. This
argument fails because there is no evidence from which a reasonable jury could infer an
agreement to violate plaintiff’s rights.

While circumstantial evidence may sometimes be

sufficient to prove a conspiracy, the litany of purported errors by the non-NYPD defendants in
their handling of Schoolcraft does not support an inference of an agreement, in part because the
essential element of any agreement is lacking. Unlike the typical conspiracy case where the
motive to conspire (usually financial) may be presumed, plaintiff has not pointed to any motive
for the non-City defendants to enter into a conspiracy to violate Schoolcraft’s rights.
Plaintiff’s claim that two Jamaica Hospital EMTs, plus two Jamaica Hospital doctors, a
nurse, and others (Pl. Opp. at 53-59, TAC ¶292 ) – all agreed to a plot to confine him without
basis – without prior contact with the NYPD defendants, no reason for animus towards
Schoolcraft, and for no apparent benefit to Jamaica Hospital – “strain[s] credulity beyond the
breaking point.” Blount v. Swiderski, 2006 U.S. Dist. LEXIS 82889, 58 (E.D.N.Y. Nov. 14,
2006) (finding that claim of conspiracy to present false testimony based on a conversation
between the defendants and the allegedly false testimony itself is insufficient to raise a triable

- 30 -

issue of fact.) As evidence, plaintiff points to the fact that Jamaica Hospital records reflect
statements by NYPD personnel about him (which is obviously appropriate if the statements were
made); and purported errors by the EMTs: the preference for Jamaica Hospital as the hospital
that two EMTs testified was closer according to the 911 dispatch system (POX 10 annexed to the
Declaration of Nathaniel B. Smith in Opposition to Defendants’ Motion for Partial Summary
Judgment (“Smith Opp. Decl.”) at 107:18-108:10; POX 29 to the Smith Opp. Decl. at 124;720), 11 and which contained a full panoply of hospital services not found at Forest Hills, not just a
psychiatric ward (Hanlon Deposition Transcript at 252:7-253:13 annexed to the

Shaffer

Supplemental Decl. as Exhibit G), and discrepancies between recollection and paperwork about
when the second blood-pressure readings were taken. Whatever the import of the alleged errors
by the medical defendants, they do not support an inference of an agreement with the City
defendants to violate plaintiff’s constitutional rights.

11

The court should disregard the unauthenticated “Google Map” report of the distance between
Jamaica Hospital and Schoolcraft’s apartment offered by Schoolcraft. First, it is irrelevant to the
state of mind of the EMTs, because they did not consult Google that evening. Second, internet
information is hearsay and Schoolcraft cites no authority (and we are aware of none) that the
Court may take “judicial notice” of Google Maps for the truth of the matters asserted therein.
See Pl. Opp. at 51 n. 146.
- 31 -

POINT VII
INTENTIONAL
INFLICTION
OF
EMOTIONAL
DISTRESS
CANNOT
SUCCEED WHERE THE UNDERLYING
CLAIMS FALL WITHIN TRADITIONAL
TORT LIABILITY.
Plaintiff’s opposition incorrectly states that City defendants are asking that the IIED
claim be dismissed because their conduct is not sufficiently outrageous. Although City
defendants do not concede that their conduct was sufficiently outrageous, the reason City
defendants are arguing that the claim must be dismissed is because “claims of intentional and
negligent infliction of emotional distress cannot co-exist 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.”). Here, plaintiff maintains
several claims, namely excessive force, unlawful search and seizure and New York State Law
causes of assault and battery which undoubtedly preclude an IIED claim.
When he does address City defendants’ actual argument in favor of dismissing the IIED
claim, plaintiff argues that the claim survives because it does not pertain to his false arrest,
assault and battery, unlawful entry, or other claims rooted in the events of October 31, 2009.
Instead he argues that the IIED claims are rooted in the events that took place prior and
subsequent to October 31, 2009, and his unending narrative of an ongoing – albeit unfounded –
conspiracy to retaliate against him. Nonetheless, plaintiff’s argument fails because he has
presented no evidence that he suffered any emotional distress as a result of City defendants’
- 32 -

actions prior to or subsequent to October 31, 2009. Instead the only evidence of any emotional
injury at all are the statements contained within the report of plaintiff’s expert Dr. Roy Lubit.
Dr. Lubit’s report clearly attributes any purported emotional injuries solely to the events of
October 31, 2009. 12
Indeed, where a plaintiff has not shown sufficient evidence of suffering severe emotional
distress he cannot maintain an IIED claim. Cuellar v. Love, 2014 U.S. Dist. LEXIS 51622, **4345, (S.D.N.Y. Apr. 11, 2014). Moreover, the IIED claim must also be dismissed because the
facts from which that claim allegedly arises are the same facts that purportedly give rise to
plaintiff’s myriad other claims. See Rivers v. Towers, Perrin, Forster & Crosby, Inc., 2009 U.S.
Dist. LEXIS 26301 (E.D.N.Y. Mar. 27, 2009). Perhaps most importantly, “ a party should not be
able to argue intentional infliction as an “end run around a failed [] claim,” especially when
defendants acted within their legal rights.” Aretakis v. Durivage, 2009 U.S. Dist. LEXIS 7781
(N.D.N.Y Feb. 3, 2009) citing Howell v. New York Post, Inc., 81 N.Y.2d at 125. Accordingly, it
is clear that to the extent plaintiff could bring an IIED claim at all it is precluded by his other
causes of action.

12

“Mr. Schoolcraft is suffering from post-traumatic stress disorder as a result of the abuse he
suffered at the hands of the police and in the hospital. He feared for his life when the police were
physically abusing him. He has intrusive recollections of the abuse and time in the hospital much
of the time. His view of the world has been adversely affected and he no longer feels justice will
be done or that wrongful behavior will remedied. He avoids talking about what occurred when he
can and avoids NYC as much as he can. He is anxious when in NY if he is alone. He's not
making close connections with people. He says he is in hiding. He is often on edge and has
decreased concentration. He startles more than he used to. He is more irritable than he used to
be.” See PMX 30 annexed to the Declaration of Nathaniel B. Smith in Support of Plaintiff’s
Motion for Partial Summary Judgment (“Smith Decl.”).
- 33 -

POINT VIII
THE CLAIM FOR NEGLIGENT HIRING AND
RETENTION AGAINST THE CITY MUST BE
DISMISSED BECAUSE THE PLAINTIFF
CONTENDS THAT THE INDIVIDUAL
DEFENDANTS ACTED WITHIN THE SCOPE
OF THEIR EMPLOYMENT.
Plaintiff concedes as he must that he: 1) may not prosecute common law negligence
claims against the City for actions by City employees done within the scope of employment; and
2) that he has alleged that all the conduct by City employees was done within the scope of
employment. See P. Opp. at 66. Nevertheless plaintiff asserts that his claims should survive
summary judgment on “alternative” theories because he may plead in the alternative, 13 although
he has never alleged conduct outside the scope of employment.
The rule of New York law precluding negligence claims where scope of employment is
undisputed is not a rule of pleading; it is a rule of substantive law grounded on a concern for
judicial economy, crafted to bar irrelevant and redundant claims. Once scope of employment is
conceded, the negligence claim must fall by the wayside: “[W]here a defendant employer admits
its employees were acting within the scope of their employment, an employer may not be held
liable for negligent hiring, training, and retention as a matter of law.” Rowley v. City of New
York, 2005 U.S. Dist. LEXIS 22241, 37-38 (S.D.N.Y. Sept. 29, 2005); see Kramer v. City of
New York, No. 04 cv 106, 2004 U.S. Dist. LEXIS 21914, *37 (S.D.N.Y. Nov. 1, 2004) (where
City stated that the individual defendants were employed by it on the date in question and acted

13

Plaintiff cites a decision on a Rule 12(b)(6) motion to dismiss, where the complaint alleged
both intentional and negligent torts. Chamberlain v. City of White Plains, 986 F. Supp. 2d 363,
399 (S.D.N.Y. 2013); Plf. Opp. at 66 n. 182. That circumstance is entirely inapposite to a
motion for summary judgment where one of plaintiff’s key contentions – scope of employment –
has been conceded by the defendants, rendering another claim not only inconsistent but
redundant.
- 34 -

within the scope of their employment, “in light of this concession” the negligent training and
supervision claim must be dismissed). That is so because “where an employer has admitted that
the employee acted within the course and scope of employment, evidence of negligent hiring,
training, supervision or retention becomes unnecessary, irrelevant and prejudicial.” Sun Min Lee
v. J.B. Hunt Transp., Inc., 308 F. Supp. 2d 310, 313 (S.D.N.Y. 2004).
In other words, the plaintiff cannot use the negligence claim as an excuse to offer
irrelevant and prejudicial evidence of unrelated purported misconduct. Id.; See TAC ¶¶ 347-358.
Accordingly, the claim for negligent retention and supervision must be dismissed. In any event,
there is no evidence to suggest anything other than conduct within the scope of employment, and
therefore the plaintiff cannot proceed to trial on that theory.
POINT IX
PLAINTIFF CANNOT ASSERT A CLAIM
FOR MALICIOUS ABUSE OF PROCESS
BECAUSE HE WAS NOT HELD PURSUANT
TO LEGAL PROCESS.
Plaintiff’s opposition to City defendants’ motion to dismiss his malicious abuse of
process claim is premised upon a fundamental misunderstanding of: 1) the difference between
criminal and civil process; and 2) what constitutes a liberty interest. As set forth in City
defendants’ original motion papers, only criminal abuse of process is cognizable under Section
1983 and 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 v. Sheldon, 41 F.3d 73, 79-80). In his
opposition plaintiff relies upon Cook, a case in which the plaintiff was arrested and charged with
a crime. Accordingly, unlike plaintiff here, the plaintiff in Cook was subjected to criminal legal
process. Nonetheless, plaintiff posits that the Cook Court held that the underlying consideration

- 35 -

on a malicious abuse of process claim is not whether the process is criminal or civil, but whether
it threatened a liberty interest.
Plaintiff is incorrect. In fact, it is abundantly clear that Section 1983 liability may not be
predicated on a claim of malicious abuse of civil process. See Alroy v. City of New York Law
Dep’t, 2014 U.S. Dist. LEXIS 164114 (S.D.N.Y. Nov. 24, 2014) (citing Cook v. Sheldon, 41
F.3d 73, 79-80 (2d Cir. 1994)).
Even if plaintiff were correct that the focus of the inquiry is whether a liberty interest was
threatened his reliance on McAardle v. Tronetti, in support of that proposition is flawed for at
least two reasons. First, McArdle, a Third Circuit case, deals with Pennsylvania State Law. 961
F.2d 1083, 1084 (3d Cir. 1992). Therefore, because it is clear, according to Cook, that the
elements of this claim derive from New York State law, plaintiff’s reliance on McArdle is
inapposite. Second, and perhaps the most egregious of all of plaintiff’s misstatements and
shortcomings, he fails to inform the Court that the malicious abuse of process claim in McArdle
was dismissed. Accordingly, for all of the reasons stated herein, and in City defendants’ original
motion papers, plaintiff’s malicious abuse of process claim must be dismissed.
POINT X
PLAINTIFF CANNOT SURVIVE SUMMARY
JUDGMENT ON ANY OF HIS THEORIES OF
MUNICIPAL LIABILITY.
Plaintiff contends that he has adduced evidence to support a Monell claim based on a
supposed “persistent and widespread practice” and “deliberate indifference” to constitutional
violations. Pl. Opp. at 73. In support, plaintiff cites: (i) an inadmissible and irrelevant expert
report of Mssrs. Silverman and Eterno, which is no more than a vehicle to repeat hearsay and
outdated reports of prior misconduct that are over 20 years old; (ii) a handful of purportedly
similar incidents; and (iii) the alleged conduct of defendant Mauriello, as to which no policy
- 36 -

maker has been shown to be deliberately indifferent. This evidence is insufficient to support a
Monell claim. 14
A. The Proffered Expert Testimony of Silverman or Eterno Does Not Support
Plaintiff’s Monell Claim.
The expert testimony of Silverman or Eterno does not preclude summary judgment
dismissing plaintiff’s Monell claim because it consists merely of a rendition of outdated
information that is not relevant to this case, and anecdotal, anonymous hearsay. 15
First, both plaintiff and his expert lean heavily on the Mollen Commission report of 1994
to establish that there is a wide-spread culture of retaliation against those officers who complain
about their colleagues: referred to as the “Blue Wall of Silence.” Pl. Opp. at 74; Eterno and
Silverman Report at 8-9 annexed as POX 11 to the Smith Opp. Decl. Indeed, Eterno’s report
goes back even further, to 1972. Id. at 8. Plaintiff also cites to an IAB report based on focus
groups – that is, undocumented hearsay – which is undated and unauthenticated. IAB report at 1

14

In the alternative, should this motion be denied, the City defendants will move to bifurcate
Monell issues as confusing and prejudicial to the conduct of a fair trial on other issues.
15

The City defendants reserve the right to move by motion in limine to preclude all of the
experts’ testimony under Rules 702, 402 and 403. For the purposes of this motion, we address
only whether the testimony is sufficient to support plaintiff’s Monell claim for summary
judgment purposes, regardless of its admissibility, in general, as expert testimony. But as will be
demonstrated in pre-trial motions, if need be, the testimony lacks the basic requirements of
expert testimony under Fed. R. Evid. 702. See Kumho Tire v. Carmichael, 526 U.S. 137, 152
(1999). The testimony would also constitute an improper summation from the witness stand,
subverting the functions of counsel, court and jury. See e.g., Hygh v. Jacobs, 961 F.2d 359, 36364 (2nd Cir. 1992) (police practices expert’s testimony that defendants conduct was “totally
improper” and not “justified” or “warranted” should have been excluded because it “merely
[told] the jury what result to reach”); In re Rezulin Prods. Liab. Lit., 309 F. Supp. 2d 531, 547,
546-50 (S.D.N.Y. 2004) (excluding expert testimony that purported to tell the jury the “real
motives” behind defendants conduct and repeats the facts or opinions stated by other witnesses
or reflected in documents produced in discovery). Lippe v. Bairnco Corp., 288 B.R. 678, 686-88
(S.D.N.Y. 2003) (excluding expert testimony on the motivations of defendants which “carried on
the traditional functions of a lawyer-advocate”)

- 37 -

annexed as POX 38 to the Smith Opp. Decl.; Pl. Opp. at 74. The typewritten, faded report was
commissioned during the first term of Commissioner Kelly, which ended in 1994, and dates from
the first tenure of Police Commissioner Bratton, which ended in 1996. Neither plaintiff nor his
experts have evidence to offer on whether the so-called Blue Wall of Silence was a custom and
practice of the NYPD in 2009, or whether it caused plaintiff’s injuries.
Whatever the conditions over 20 years in the past, they are as a matter of law irrelevant to
the events in 2009 that are at issue in this case. Most of the authorities cited by plaintiff for the
relevance of the Mollen Commission and Blue Wall of Silence date from the 1990s, or do not
concern the City of New York, and are therefore inapposite. See Pl. Opp. at 80-83 nn. 241, 242.
The closest case in time cited by plaintiff concerned sexual harassment, not a quota system or
other police corruption, was decided over 13 years ago, and concerned events occurring in 1992
(two years before the Mollen Commission report). Id.; Katt v. City of New York, 151 F. Supp.
2d 313, 320 (S.D.N.Y. 2001), aff’d, 60 Fed. Appx. 357 (2d Cir. 2003). Moreover, in Katt the socalled “Blue Wall of Silence” evidence was admitted solely to support plaintiff’s subjective fear
of retaliation (to explain why she did not utilize an internal complaint mechanism to report the
sexual harassment), not to show a municipal policy of retaliation. Id., 151 F. Supp. 2d at 358-59.
Accordingly, the Court should disregard the proffered expert testimony in determining
whether summary judgment is appropriate.
B. The Purported Evidence of Specific Instances of Retaliation are Insufficient
to Establish a Custom and Practice.
As the City defendants established in their moving brief, a handful of other incidents does
not establish a policy, and plaintiff has offered no authority to the contrary. City Mem. at 34-35.
The policy of the NYPD, set forth in the Patrol Guide § 202-09, strictly prohibits retaliating
against anyone for reporting misconduct, and states it “will not be tolerated.” Exhibit F to the

- 38 -

Shaffer Supplemental Decl. at 243:8-23. Yet plaintiff persists in pointing to four officers that he
claims had been treated similarly to himself. Even if such evidence were admissible (and it is
not), it is insufficient as a matter of law for Monell liability. Id.; Pl. Opp. 80. 16 That some of
these officers may have the opinion that there is a culture of silence in the NYPD is irrelevant
because it is inadmissible.

Plaintiff may not prove up a custom and practice sufficiently

pervasive to support Monell liability through the say so of fact witnesses, never disclosed as
experts, who can point to absolutely no independent evidence other than their own subjective
impressions or their own individual cases. Were plaintiff’s approach admissible to prove Monell
liability, every trial involving municipal liability under §1983 would be burdened with otherwise
unrelated lay witnesses testifying as to personal opinions or their experience in unrelated cases.
The end result of such an approach would be a series of mini-trials aimed at assessing the
credibility of these other witnesses. 17
Additionally, there are specific defects in plaintiff’s proffered evidence as well. As an
initial matter, plaintiff conflates the alleged “quota and downgrading system” – which could not
have deprived Schoolcraft of any rights – and the supposed “system of retaliation.” Pl. Opp. at
75. Proof of the quota and downgrading system is not relevant to this case, and certainly not to
Monell issues, since that is not a policy directed at depriving police officers such as Schoolcraft

16

For one of these purported examples, Police Officer Craig Matthews, plaintiff relies upon a
complaint and affidavit filed in separate litigation, and a court decision in that case. Matthews
Complaint and Affidavit annexed as POX42 to the Smith Opp. Decl.; Pl. Opp. at 80. The
affidavit does not speak at all to the issues of retaliation. See POX42 to the Smith Opp. Decl.
The complaint, unsworn and signed only by an attorney, is hearsay, as is the court’s decision
cited by plaintiff. See Chevron Corp. v. Donziger, 974 F. Supp. 2d 362, 605-606 & nn. 1560-62
(S.D.N.Y. 2014) (judicial decisions are hearsay if offered to prove the truth of the matters stated
therein).
17

The City reserves the right to move to exclude the testimony of such witnesses on any and all
grounds, via motion in limine or at trial.
- 39 -

of their constitutional rights. As the City defendants previously established, and Schoolcraft has
not argued otherwise, Monell liability requires a strong and clear causal connection between the
alleged policy and the constitutional violation. Pl. Opp. at 37-38; see Monell, 436 U.S. at 694;
Vippolis v. Vill. of Haverstraw, 768 F.2d 40, 44 (2d Cir. 1985). “Courts must apply rigorous
standards of culpability and causation … to ensure that’ the indirect-causation theory not result
in the municipality’s being ‘held liable solely for the actions of its employee.” Jeffes v Barnes,
208 F.3d 39, 61 (2nd Cir. 2000) (quotations omitted).
The fact that plaintiff made comments and complaints about alleged quotas and
complaint downgrading, does not mean that those policies caused the constitutional violations he
alleges. Rather, plaintiff must prove a policy of engaging in the constitutional violations of
which he complains, that caused the violation in his specific case: principally, allegedly sending
him to the hospital without cause. Therefore, the testimony of others about a practice of quotas
or downgrading complaints is irrelevant to Schoolcraft’s Monell claim, or any part of his claim.
Moreover, Joseph Ferrara – one of the witnesses plaintiff proffered in support of his
Monell claim – did not give the testimony described by plaintiff. Ferrara did not “witness first
hand” any quota, downgrading or retaliation: he admits he never witnessed it and knows of it
only by “talking to people.” Ferrara Transcript at 75:16-25 annexed to the Smith Opp. Decl. as
POX 39.

Thus, Ferrara’s testimony on this supposed practice, including his unsupported

“belie[f]” that it “would be DI Mauriello” giving orders to further investigate complaints, is
speculation, without foundation, and inadmissible. Id. at 77:24-78:19. On the supposed calls
from IAB to the precinct asking for plaintiff (Pl. Opp. at 76), Ferrara offers only hearsay: that he
heard from unidentified others that IAB called to leave a message for plaintiff. POX 39 at
193:10-18; 194:25-195:3. (Contrary to Schoolcraft’s misleading argument, Ferrara emphatically

- 40 -

testified that it was not the practice of IAB to call the precinct. Id. at 194:2-24.) Ferrara’s
supposed testimony of “a policy” of leaking information to commanding officers about
complaints (Plf. Opp. at 76) is likewise nothing of the sort, and consists of hearsay and
speculation. Ferrara heard “people talk” about one commanding officer and speculated “how
does somebody find out about it” if they were not told. Id. at 224:9-19. Ferrara admitted that he
had heard of only one instance (“no, that --- that’s really []it”) and expressly admitted that he
lacked personal knowledge: “I mean I can’t say definitely, you know,” and related hearsay from
his wife about another commanding officer being disciplined, not warned. Id. at 225:3-226:6.:
Ferrara testified that he did not make a complaint of the downgrading system because
“there's a perception in the NYPD to punish people who try to do good stuff sometimes.” Id. at
79:1-10. While this statement may be admissible were Ferrara’s personal intent relevant – which
it is not – his testimony about his own unsupported perceptions, let alone testimony about others’
beliefs, is not admissible to prove a policy or practice of the NYPD. Nor did Ferrara witness any
“retaliation” against plaintiff or anyone (which would be irrelevant to Monell issues in any
event). Pl. Opp. at 75-76. Ferrara testified that sometime “right before” or “two to four weeks”
before February 18, 2010 – after Schoolcraft was already suspended and had moved upstate – he
heard Deputy Inspector Mauriello state that he had received a “heads up” about Schoolcraft.
POX 39 at 219:14-220:25. Contrary to Schoolcraft’s assertion, this is the only comment to the
“effect” that plaintiff was a “rat” that Ferrara recalled. Ferrara Deposition at 202:23-203:8
annexed to the Shaffer Supplemental Decl. as Exhibit H. Indeed, Ferrara admitted that he could
not testify that Mauriello even used the term “rat,” as plaintiff claims. Id. at 207:18-19 (“I wasn't
sure exactly what was said. I wasn't sure if he used the word rat.”) This is hardly an instance of
retaliation, and occurred long after any alleged instances of retaliation towards plaintiff.

- 41 -

Third, plaintiff offers no admissible evidence from Police Officers Polanco or Serrano,
both of whom testified at the trial of another matter about a different precinct: the 40th Precinct in
the Bronx. Pl. Opp. at 77-79. Even if these witnesses were to testify in this case (and there is no
reason to think that they will) 18, their testimony about specific instances of retaliation against
them would be insufficient to establish a department-wide policy as required by Monell (as well
as generally inadmissible in a trial of this matter). Moreover, the actual testimony of these
witnesses is quite limited: Polanco testified to his subjective belief that officers who report
misconduct “are considered rats,” and Serrano testified to his belief that such officers are “called
a rat.” Pl. Opp. at 78.

Even if true and admitted as evidence (and it should not be), this

testimony does not establish a department wide policy of retaliation, let alone a policy of
improper confinement of complainants as EDPs. Individual instances of retaliation, or sweeping,
unsupported assertions by complainants against the City, are no substitute for evidence in the
form of scientifically tested data establishing a practice, or the testimony of policy-makers as to
the actual policy of the department. Accordingly, plaintiff has offered no admissible evidence of
a policy of retaliation in the NYPD as of 2009. 19
Plaintiff’s sole authority that a summary judgment motion to dismiss a Monell claim may
be denied on the basis of “Blue Wall of Silence” evidence is Barry v. New York City Police
Dep’t, 01 cv 10627 (CBM), 2004 U.S. Dist. LEXIS 5951 (S.D.N.Y. Apr. 6, 2004). Pl. Opp. at
18

The transcripts of their testimony at a separate trial are not admissible in this case. Plaintiff in
essence asks the Court to assume that the witnesses would give similar testimony in this case.
19

Moreover, Polanco’s testimony if offered at trial would be severely prejudicial because he
claims to have been declared an EDP in retaliation for complaining about a quota system; as a
purported instance of similar but otherwise irrelevant conduct, this evidence should be
inadmissible under Fed. R. Evid. 403 and 404(b). It would also entail a waste of time, as it
would require a mini-trial on the facts alleged by Polanco, in the midst of the trial of this case. If
necessary, the City defendants reserve the right to address this issue more fully in motions in
limine.
- 42 -

80. Barry is inapposite. First, Barry concerned events occurring in 1999, much closer in time to
the Mollen Commission Report on which it relied. 2004 U.S. Dist. LEXIS 5951, at *4-5, *3940. Second, the witnesses on which the Barry court also relied were personally involved in the
conduct of which the plaintiff complained and in responding to the allegations of misconduct,
and they testified that they were motivated and affected by an alleged policy of retaliation. Id., at
*36-38. While the court in Barry did not suggest that this alone would have been sufficient (and
it is not), plaintiff, by comparison, presents no witnesses who participated in the events here to
testify that the “Blue Wall of Silence” was a policy or a factor in their conduct.
C. Plaintiff has failed to proffer evidence of deliberate indifference.
Plaintiff fails to surmount the high hurdle for proof of deliberate indifference set forth in
the City defendants’ moving brief, or proffer evidence of deliberate indifference by a policy
maker to constitutional violations here. Plaintiff nowhere identifies any policy maker who was
deliberately indifferent, nor any prior conduct of the defendants that came to their attention as to
which they could be indifferent. Nor does plaintiff proffer evidence of training programs that
contained errors or omissions causing the constitutional violations alleged here.

Plaintiff

identifies no defect in training that could be “closely related” as an “actual cause[]” of the
conduct alleged, which is that defendants confined plaintiff for psychiatric treatment without
cause. Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 129 (2d Cir. 2004) (quoting City of
Canton, Ohio v. Harris, 489 U.S. 378, 391 (1989) (affirming summary judgment dismissing
Monell claim because plaintiffs “have neglected to offer any evidence, however, as to the
purported inadequacies in the Town's training program and the causal relationship between those
inadequacies and the alleged constitutional violations”).
Instead, plaintiff resorts to misstating Deputy Inspector Mauriello’s testimony. Plaintiff
suggests that the witness did not know about the concept of the “Blue Wall of Silence,” that
- 43 -

because did not condone the idea of a “Blue Wall of Silence” 20 and did not believe that it was
widespread in the NYPD, then he must have been insufficiently trained in the matter. Pl. Opp. at
82-83. 21 This argument is circular: it posits the existence of the Blue Wall of Silence, assumes
the witness is lying when he says he does not condone it, and then criticizes unspecified training
and unspecified policy makers for the purported ignorance of the witness. In short, plaintiff’s
deliberate indifference argument fails for the same reason as his custom and practice argument:
he fails to proffer sufficient evidence of the practice, or any deficiency in training about it. See
Connick v. Thompson, 131 S. Ct. 1350, 1361 (2011).
Accordingly, plaintiff has not adduced sufficient evidence to support municipal liability
and his claim against the City under Section 1983 should be dismissed.

20

“I don’t believe in the blue wall of silence. If someone does something wrong, you report it,
that’s it.” POX 20 at 245:18-21. Mauriello also testified that he was trained on the police
officer’s duty to report misconduct. Exhibit F to the Shaffer Supplemental Decl. at 23:17-24:23.
21

Schoolcraft again falsely asserts that Ferrara heard Mauriello refer to Schoolcraft as a “rat;” in
fact he could not say that the term was used. Supra at 42. In any event, a single comment is not
evidence of a failure to train or lack of supervision.
- 44 -

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
March 6, 2015
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:

/s
Ryan Shaffer
Alan H. Scheiner
Senior Counsels

- 45 -