Bey v. U.S. Marshal Joseph R. Guccione et al
Filing
111
MEMORANDUM AND ORDER denying 87 Motion for Summary Judgment: For the reasons stated above, the defendants' motion for summary judgment (Doc. No. 87) is denied. (Signed by Magistrate Judge James C. Francis on 5/26/2015) Copies Mailed By Chambers. (tn)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
- - - - - - - - - - - - - - - - - -:
DR. SHAMSUDDIN A. ABDUL-HAKIM BEY, :
:
Plaintiff,
:
:
- against :
:
CHIEF ANTHONY IAQUINTO, SENIOR
:
INSPECTOR ANDREW PRZEDPELSKI,
:
SPECIAL DEPUTY U.S. MARSHAL LOU
:
PENA, and JONATHAN REID,
:
:
Defendants.
:
- - - - - - - - - - - - - - - - - -:
JAMES C. FRANCIS IV
UNITED STATES MAGISTRATE JUDGE
12 Civ. 5875 (JCF)
MEMORANDUM
AND ORDER
The plaintiff, Dr. Shamsuddin A. Abdul-Hakim Bey, brings this
action pursuant to Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388 (1970), against the defendants,
Chief
Anthony
Iaquinto,
Senior
Inspector
Andrew
Przedpelski,
Special Deputy U.S. Marshal Lou Pena, and Jonathan Reid, based on
an encounter in the lobby of his apartment building on March 14,
2012. The plaintiff alleges that the defendants unlawfully stopped
and searched him at gunpoint in violation of his Fourth Amendment
rights. The defendants now move for summary judgment under Rule 56
of the Federal Rules of Civil Procedure, on the grounds that they
had reasonable suspicion to search the plaintiff, or in the
alternative, that they are entitled to qualified immunity. For the
reasons that follow, the defendants’ motion is denied.
1
Background
A.
Incident on March 14, 20121
On March 14, 2012, the defendants were participating in an
operation
conducted
by
the
U.S.
Marshals
Service’s
New
York
1
Dr. Bey has submitted a statement in response to the
defendants’ statement of material undisputed facts, as required by
Rule 56.1 of the Local Rules of the United States District Courts
for the Southern and Eastern Districts of New York (“Local Civil
Rules”), see infra at 11-13.
Dr. Bey’s submission consists of
handwritten annotations on the defendants’ Rule 56.1 statement, and
does not clearly respond to each asserted fact.
(Plaintiff’s
Statement of Material Undisputed Facts (“Pl. 56.1”), attached as
part of Statement of Material Disputed Facts and Answer for Motion
to Deny the Summary Judgment (Doc. No. 101) (“Pl. Statement”) and
as part of Exh. 1 to Pl. Statement). In opposing the defendants’
motion, the plaintiff has also submitted a copy of the defendants’
memorandum of law supporting the instant motion with handwritten
annotations contesting many of the arguments (One Chief Exhibit for
Trial (“Pl. Opp. Memo.”), attached as part of Exh. 1, and Exhs. 2
& 3 to Pl. Statement); a notarized affidavit that attaches incident
reports written by the building’s security guard, a diagram, a
description of the incident, and notes on the defendants’ sworn
declarations (Doc. No. 99) (Affidavit and Motion to Deny Summary
Judgment (“Bey Aff.”)); and a notarized statement of facts (Doc.
No. 102).
Because Dr. Bey is proceeding pro se, I have reviewed the
record and also taken into consideration the unsworn statements in
his opposition papers on the assumption that he would have
testified to these statements, which are substantially similar to
or overlap with those in his notarized submissions.
See, e.g.
Geldzahler v. New York Medical College, 746 F. Supp. 2d 618, 620
n.1 (S.D.N.Y. 2010). My independent review of the record revealed
evidence that contradicts some of the facts asserted in the
defendants’ Local Civil Rule 56.1 Statement. Therefore, the facts
recited below are culled from the defendants’ statement, the
plaintiff’s submissions, and the record.
2
Regional Task Force (the “Task Force”) to apprehend an individual
located at 1600 Sedgwick Avenue in the Bronx.
(Defendants’
Statement of Material Undisputed Facts (“Def. 56.1”), ¶ 1).
Chief
Iaquinto and Senior Inspector Przedpelski are employees of the U.S.
Marshals Service; and Mr. Reid, an employee of the New York County
District Attorney’s Office, was serving as a member of the Task
Force, as was Special Deputy Pena, an employee of the New York City
Police Department.
(Def. 56.1, ¶¶ 2-6).
After the operation had
concluded, Chief Iaquinto and Senior Inspector Przedpelski entered
an elevator on an upper floor of the building to return to the
lobby.
(Def. 56.1, ¶ 7).
They contend that after they had
descended one or two floors, the plaintiff got onto the elevator
with them, giving them the opportunity to observe him at close
range. (Def. 56.1, ¶ 9).
Chief Iaquinto and Senior Inspector
Przedpelski assert that they noticed Dr. Bey turn his body away
from them, put his hands in the pockets of his sweatpants and move
them around, and repeatedly adjust his pants, which appeared to be
sliding down.
(Def. 56.1, ¶¶ 10-15).
Chief Iaquinto also asserts
that he observed “a bulge” and “something brown” in the plaintiff’s
pocket.
(Def. 56.1, ¶ 17).
Based on these observations, these
defendants state that they formed the impression that Dr. Bey was
attempting
to
conceal
something
(Def.
56.1,
¶¶
13-14),
and
suspected that he might have a gun in his pocket (Def. 56.1, ¶ 17).
3
Dr. Bey acknowledges that there were two men in the elevator
he took to the lobby that day.
(Excerpts of Deposition of Dr.
Shamsuddin A. Abdul-Hakim Bey dated Oct. 30, 2014 (“Bey Dep. 1”),
attached as Exh. A to Declaration of Andrew E. Krause dated Dec.
30, 2014 (“Krause Decl.”), at 92).
However, he denies that he
turned his body away from the other occupants of the elevator (Bey
Dep. 1 at 97) or that he adjusted his pants (Excerpts of Deposition
of Dr. Shamsuddin A. Abdul-Hakim Bey dated Oct. 30, 2014 (“Bey Dep.
2”), attached as Exh. A to Supplemental Declaration of Andrew E.
Krause dated March 27, 2015 (“Krause Supp. Decl.”), at 98-99).
Upon reaching the ground floor, Chief Iaquinto and Senior
Inspector Przedpelski assert that they exited the elevator, as did
the plaintiff, and went outside to meet Special Deputy Pena and Mr.
Reid.
(Def. 56.1, ¶¶ 19-20).
The defendants state that they
continued to observe Dr. Bey through the glass doors of the lobby,
that he was facing outside and looking at the defendants, and that
he continued to adjust something in his pants.
(Def. 56.1, ¶¶ 21,
23-24). During this interaction, the defendants contend that Chief
Iaquinto communicated to the others his belief that the plaintiff
had a gun in his pants.
(Def. 56.1, ¶ 22).
then
building,
re-entered
“nonaggressive
the
manner,”
informed
4
They state that they
approached
him
that
Dr.
they
Bey
were
in
a
police
officers, and instructed him to get on the ground.
25-26).
(Def. 56.1, ¶¶
The plaintiff complied, following which the defendants
conducted a search of his pockets, which yielded only a large
number of papers and business cards and a wallet.
(Def. 56.1, ¶¶
26-28).
Dr. Bey concedes that he had hundreds of business cards and a
wallet in his pockets, and that he complied with the officers’
directive to get on the ground.
7, 12).
(Bey Dep. 1 at 88-89; Bey Aff. at
However, he disputes the other facts asserted by the
defendants. The plaintiff contends that when he reached the lobby,
he saw three U.S. Marhsals with their guns drawn, who rushed
towards
him
elevator.
within
two
to
three
(Bey Dep. 1 at 100-01).
seconds
of
his
exiting
the
He describes one of them as
Special Deputy Pena, whose name he came to know later, one as being
Caucasian, and the third as having a dark complexion.
at 101-02).
(Bey Dep. 1
The plaintiff clearly states that the stop and
subsequent search occurred “immediately,” a mere “instant” after he
reached the lobby.
(Bey Aff. at 5, 10, 12, 14; Pl. Opp. Memo. at
4, 5, 10, 13, 14).2
Dr. Bey also maintains that the defendants had
2
For the sake of clarity, I will refer to the pages in the
plaintiff’s submissions opposing the motion for summary judgment as
numbered by the Case Management/Electronic Case Filing (CM/ECF)
system, with the exception of his Memorandum of Law, for which I
utilize the original page numbers.
5
their guns pointed at him for the duration of the search and
seizure.
(Bey Dep. 1 at 101; Bey Aff. at 7, 12, 16).
In contrast,
Jose Suarez, a former security officer for 1600 Sedgwick Avenue who
was also in the lobby during the encounter, testified that none of
the officers had their guns drawn during their interaction with the
plaintiff.
(Memorandum of Law of Defendants Anthony Iaquinto,
Andrew Przedpelski, Lou Pena, and Jonathan Reid in Support of Their
Motion for Summary Judgment (“Def. Memo.”) at 5; Excerpts of
Deposition of Jose O. Suarez dated Nov. 13, 2014 (“Suarez Dep. 1”),
attached as Exh. B to Krause Decl., at 36).
Mr. Suarez testified that, prior to the investigatory stop at
issue, he observed Dr. Bey standing in the lobby, facing the
elevators with his back to the door leading outside.
(Suarez Dep.
1 at 33-34; Incident Report dated March 14, 2012 (“Incident
Report”), attached as Exh. C to Krause Decl., at 1).
He had no
knowledge as to how the plaintiff arrived in the lobby, or whether
there were other people riding in the elevator with Dr. Bey prior
to the incident.
(Excerpts of Deposition of Jose O. Suarez dated
Nov. 13, 2014 (“Suarez Dep. 2”), attached as Exh. B to Krause Supp.
Decl., at 75; Suarez Dep. 1 at 33).
The incident report written by
Mr. Suarez on the day of the encounter recounted that Dr. Bey “was
awaiting the elevator in lobby area when U.S. Marshals scram [sic]
out for [the plaintiff] to drop to the ground.”
6
(Incident Report
at 1).
However, Mr. Suarez testified that when he first noticed
Dr. Bey, “he was already with” the law enforcement officers;
additionally, he also stated that he in fact observed four officers
walking up to Dr. Bey.
(Suarez Dep. 1 at 34-35).
Approximately
fifteen minutes before the incident occurred, Mr. Suarez saw all
four of the involved officers “waiting around” in the lobby of the
building.
(Suarez Dep. 1 at 40).
Although Mr. Suarez recalled
being only a “few feet” from the parties during their encounter and
being able to see clearly (Suarez Dep. 1 at 39), he also explained
that his location prevented him from hearing the conversation
between the parties (Suarez Dep. 1 at 41-42).
Following the search, the defendants told the plaintiff that
they had perceived the wallet in his pocket to be a gun.
56.1, ¶ 30; Bey Aff. at 7).
(Def
Dr. Bey asked them for their names and
badge numbers; only Special Deputy Pena responded by providing his
last name.
B.
(Def. 56.1, ¶31; Bey Aff at 8-9; Incident Report at 2).
Procedural History
Dr. Bey commenced the instant action on July 30, 2012, naming
as defendants Stacia Hylton, Director of the U.S. Marshals Service,
former U.S. Marshal Joseph R. Guccione, former New York City Police
Commissioner Ray Kelly, former Mayor Michael Bloomberg, the City of
New York, and three John Doe U.S. Marshals. In September 2012, the
Honorable Paul A. Engelmayer, U.S.D.J., dismissed Commissioner
7
Kelly, Mayor Bloomberg, and the City of New York as defendants due
to the plaintiff’s failure to allege that they had direct or
indirect involvement in the underlying incident.
(Order dated
Sept. 4, 2012 at 3). The plaintiff filed an amended complaint, and
with leave filed a second amended complaint on February 27, 2013,
adding Grenadier Realty Corporation as a defendant.
Amended Complaint).
(Second
Judge Engelmayer then granted the defendants’
motion to dismiss as to Grenadier Realty, Marshal Guccione, and
Director Hylton, and ordered the government to ascertain the
identities
of
the
three
remaining
John
Doe
communicate this information to the plaintiff.
dated Dec. 16, 2013 at 15).
defendants
and
(Opinion & Order
On February 6, 2014, Judge Engelmayer
ordered that the operative complaint be amended to replace the John
Does with the four individuals identified by the government, namely
Chief Iaquinto, Senior Inspector Przedpelski, Special Deputy Pena,
and Mr. Reid.
(Order dated Feb. 6, 2014 at 2).
Subsequently, both
parties consented to my jurisdiction for all purposes pursuant to
28 U.S.C. § 636(c). (Consent to Jurisdiction dated July 31, 2014).
Discussion
A.
Summary Judgment
1.
Legal Standard
Under Rule 56 of the Federal Rules of Civil Procedure, a court
will grant summary judgment if “the movant shows there is no
8
genuine issue of material fact and the movant is entitled to
judgment as a matter of law.”
Fed. R. Civ. P. 56(c); accord
Celotex Corp. v. Catrett, 477 U.S. 317, 322-323 (1986); Marvel
Characters, Inc. v. Simon, 310 F.3d 280, 285-286 (2d Cir. 2002).
The moving party bears the initial burden of identifying “the
absence of a genuine issue of material fact.” Celotex, 477 U.S. at
323.
The opposing party then must cite specific parts of the
record, such as depositions, documents, affidavits or declarations,
and admissions, to demonstrate the existence of a genuine issue for
trial.
Fed. R. Civ. P. 56(c); see also Celotex, 477 U.S. at 324.
Only facts that could affect the outcome of the suit under the
governing substantive law are deemed “material.”
Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Holtz v. Rockefeller
& Co., Inc., 258 F.3d 62, 69 (2d Cir. 2001). Additionally, the
court’s review of the record is limited to facts that would be
admissible at trial.
Cir. 1997).
See Raskin v. Wyatt Co., 125 F.3d 55, 66 (2d
Where the non-moving party fails to make “a showing
sufficient to establish the existence of an element essential to
that party’s case, and on which that party will bear the burden of
proof at trial,” summary judgment must be granted.
Celotex, 477
U.S. at 322.
In assessing the record to determine whether there is a
genuine issue of material fact for trial, the court must view all
9
facts
in
the
light
most
favorable
to
the
non-moving
party.
Anderson, 477 U.S. at 255 (“The evidence of the non-movant is to be
believed, and all justifiable inferences are to be drawn in his
favor.”); accord Holcomb v. Iona College, 521 F.3d 130, 132 (2d
Cir. 2008).
Nonetheless, the court must inquire whether “there is
sufficient evidence favoring the nonmoving party for a jury to
return a verdict for that party,” and may grant summary judgment
where the non-movant’s evidence is “merely colorable” or not
significantly probative.
citations omitted).
Anderson, 477 U.S. at 249-50 (internal
In opposing a motion for summary judgment, a
party “may not rely on mere speculation or conjecture as to the
true nature of the facts”, as “conclusory allegations or denials
cannot by themselves create a genuine issue of material fact where
. . . none would otherwise exist.”
Hicks v. Baines, 593 F.3d 159,
166 (2d Cir. 2010) (alteration in original) (internal quotation
marks omitted); see also Matsushita Electric Industrial Co. v.
Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (non-moving party
“must do more than simply show that there is some metaphysical
doubt as to the material facts”); Podell v. Citicorp Diners Club,
Inc., 112 F.3d 98, 101 (2d Cir. 1997) (non-movant “must bring
forward some affirmative indication that his version of relevant
events
is
However,
not
fanciful”
“[a]ssessments
(internal
of
quotation
credibility
10
and
marks
omitted)).
choices
between
conflicting versions of the events are matters for the jury, not
for the court on summary judgment.”
426
F.3d
549,
553
(2d
Cir.
Jeffreys v. City of New York,
2005)
(internal
quotation
marks
omitted).
In the instant case, I am mindful that Dr. Bey is a pro se
litigant
whose
submissions
must
be
construed
strongest arguments that they suggest.”
to
“raise
the
Triestman v. Federal
Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal
quotation marks omitted).
Nevertheless, this liberality “does not
relieve [the] plaintiff of his duty to meet the requirements
necessary to defeat a motion for summary judgment.”
Jorgensen v.
Epic/Sony Records, 351 F.3d 46, 50 (2d Cir. 2003) (internal
quotation marks omitted).
2.
Local Civil Rule 56.1
The Local Civil Rules require a party moving for summary
judgment to annex to its motion a “separate, short and concise
statement, in numbered paragraphs, of the material facts as to
which [it] contends there is no genuine issue to be tried.”
Civil Rule 56.1(a).
Local
The party opposing summary judgment must
submit, along with its opposition, a statement responding to each
of the proposed undisputed facts.
Local Civil Rule 56.1(b).
Each
numbered paragraph in the moving party’s Rule 56.1 statement will
be
deemed
admitted
unless
controverted
11
by
the
non-movant’s
corresponding statement.
Local Civil Rule 56.1(c).
District courts, however, have “broad discretion to determine
whether to overlook a party’s failure to comply with local court
rules.”
Holtz, 258 F.3d
at 73.
Even where the non-moving party
has received notice pursuant to Local Civil Rule 56.2 regarding the
requirements for opposing summary judgment, a court may “conduct an
assiduous review of the record to determine if there is any
evidentiary support for [the non-movant’s] assertions of fact that
do not cite to evidence and to determine if there are any other
material issues of fact.”
Geldzahler, 746 F. Supp. 2d at 620 n.1
(internal quotation marks omitted).
Where the court’s independent review of the record yields
evidence contrary to an assertion in the movant’s Rule 56.1
statement, the court may reject that assertion.
at 73-74.
Holtz, 258 F.3d
Conversely, where the movant’s statement of undisputed
facts is not contradicted by the court’s review or by the nonmovant, the party’s assertions will be “deemed admitted” for the
purposes of the summary judgment motion.
Giannullo v. City of New
York, 322 F.3d 139, 140 (2d Cir. 2003); accord Chitoiu v. UNUM
Provident Corp., No. 05 Civ. 8119, 2007 WL 1988406, at *1 n.1
(S.D.N.Y. July 6, 2007) (granting summary judgment against pro se
plaintiff who failed to respond to defendant’s Rule 56.1 statement
of facts).
12
Here, the defendants have complied with the requirements of
Local Civil Rule 56.1, including providing the plaintiff with the
requisite notice regarding how to oppose a motion for summary
judgment.
As mentioned above, see supra n.1, Dr. Bey’s opposition
is at times difficult to decipher and does not consistently follow
the specifications of Local Civil Rule 56.1.
Nonetheless, because
Dr. Bey is a pro se litigant, and because he does not rely solely
on his pleadings in opposing the defendants’ motion, I have
“assiduously reviewed” the record and determined that there is some
evidentiary support for a number of the plaintiff’s assertions.
B.
Unlawful Search and Seizure
The
defendants
argue
that
their
stop
and
frisk
of
the
plaintiff was proper as it was based on their reasonable suspicion,
arising out of their observations, that Dr. Bey was in possession
of a weapon.
(Def. Memo. at 12-13).
The Supreme Court has held that “the police can stop and
briefly detain a person for investigative purposes if the officer
has a reasonable suspicion supported by articulable facts that
criminal activity ‘may be afoot,’ even if the officer lacks
probable cause.”
(quoting
Terry
United States v. Solokow, 490 U.S. 1, 7 (1989)
v.
Ohio,
392
U.S.
1,
27
(1968)).
The
Fourth
Amendment “right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and
13
seizures,” U.S. Const. amend IV, is not infringed where police
officers,
having
identified
themselves
as
law
enforcement,
undertake a limited search based on their objectively reasonable
belief that a person presents a safety concern. Terry, 392 U.S. at
27-29.
Thus, to legally proceed from a stop to a frisk, a police
officer must “reasonably suspect that the person stopped is armed
and dangerous.”
The
Fourth
Arizona v. Johnson, 555 U.S. 323, 326-27 (2009).
Amendment
requires,
however,
that
an
officer
“articulate something more than an inchoate and unparticularized
suspicion or hunch” in justifying a Terry stop.
at 7 (internal quotation marks omitted).
Solokow, 490 U.S.
In other words, there
must be “‘some objective manifestation that the person stopped is,
or is about to be, engaged in criminal activity.’”
United States
v. Muhammad, 463 F.3d 115, 121 (2d Cir. 2006) (quoting United
States v. Cortez, 449 U.S. 411, 417 (1981)).
In determining
whether an officer had reasonable suspicion at the time of the
investigative stop, courts must look at the “totality of the
circumstances” that gave rise to the stop.
121.
Muhammad, 463 F.3d at
However, “only ‘the facts available to the officer at the
moment of the seizure’” may be evaluated.
U.S. at 21-22).
Id. (quoting Terry, 392
Although the standard for reasonable suspicion is
an objective one, Muhammad, 463 F.3d at 121, officers are permitted
to “draw on their own experience and specialized training to make
14
inferences from and deductions about the cumulative information
available to them,” United States v. Arvizu, 534 U.S. 266, 273
(2002).
C.
Reasonable Suspicion
The defendants in the instant case point to several facts
supporting their assertion that they reasonably suspected Dr. Bey
of possessing a weapon.
According to the defendants, Chief
Iaquinto and Special Deputy Pena observed the plaintiff in the
elevator angling his body away from them, and putting his hands in
his
pants
pockets
and
moving
them
around
--
behavior
that
“suggested he was attempting to conceal something.” (Def. Memo. at
12).
Additionally,
Dr.
Bey’s
repeated
adjustments
of
his
sweatpants, which appeared to be sliding down, and Chief Iaquinto’s
observations of a bulge and something brown in Dr. Bey’s pocket,
led Chief Iaquinto to believe that the plaintiff might have a
revolver.
(Def. Memo. at 12).
At the outset, the plaintiff disputes doing anything to invite
suspicion while in the elevator, with the exception of having full
pockets and possibly having his hands in his pockets.
at 97-98; Bey Dep. 2 at 99).
(Bey Dep. 1
Furthermore, Dr. Bey’s account of the
timeline of events undermines the defendants’ claim that they had
a
sufficient
opportunity
stopping the plaintiff.
to
form
reasonable
suspicion
before
The plaintiff asserts that three men
15
approached him from the direction of the lobby instantly -- less
than three seconds -- after he exited the elevator.
(Bey Dep. 1 at
100-01; Bey Aff. at 5, 10, 12, 14; Pl. Opp. Memo at 4, 5, 10, 13,
14).
The defendants argue, in a footnote, that Dr. Bey’s assertion
regarding the timing of the incident is “entirely implausible”
because it is directly contradicted by the defendants and Mr.
Suarez, is inconsistent with the plaintiff’s testimony about being
in
the
elevator
with
Chief
Iaquinto
and
Senior
Inspector
Przedpelski, and “improbably suggests that Defendants approached
and detained Plaintiff without ever having seen him before.” (Def.
Memo. at 13 n.3). The plaintiff’s assertion that the stop occurred
immediately after he exited the elevator does indeed suggest that
the defendants stopped him before they had observed him and formed
reasonable suspicion about his possession of a gun; however, this
is not an inherently “improbable” claim.
At summary judgment, the
fact that all four of the defendants challenge Dr. Bey’s account of
the timing of the stop cannot be considered proof that they are
correct and he is in error; instead, the defendants’ argument
indicates the existence of a genuine issue of material fact that
precludes summary judgment.
As for inconsistencies in Dr. Bey’s
testimony, my review of the record reveals that he has only
specifically acknowledged riding in the elevator with two Caucasian
16
men, but does not concede that they were the same individuals who
stopped and searched him.
100; Pl. Opp. Memo. at 3).
(Bey Dep. 1 at 92-93; Bey Dep. 2 at 99In regard to Mr. Suarez’s testimony,
some portions of it support the plaintiff’s version of the facts
and others support the defendants’ version; more to the point, his
testimony is not particularly illuminating, suffering as it does
from internal inconsistencies that confuse the order of events and
the location of the parties prior to the incident.3
“[I]t is undoubtedly the duty of district courts not to weigh
the credibility of the parties at the summary judgment stage,”
except in the rare circumstance that the moving party demonstrates
that “there is no evidence in the record upon which a reasonable
factfinder
could
base
a
Jeffreys, 426 F.3d at 554.
verdict
in
the
plaintiff’s
favor.”
Here, we do not have merely a “bald
assertion” by the plaintiff that is “completely unsupported by
evidence.”
Geldzahler, 746 F. Supp. 2d at 620 n.1 (internal
3
At his deposition, Mr. Suarez made all of the following
statements: that he did not see the plaintiff arriving in the
lobby; that he did not have any knowledge about the occupants of
the elevator; that fifteen minutes prior to the incident he
observed all four defendants in the lobby; that when he first
noticed Dr. Bey he was already with the defendants, but also that
he saw the plaintiff standing in the lobby facing the elevators
prior to the incident; that he witnessed the defendants approaching
the plaintiff; and that he was too far away to hear the plaintiff
and the defendants, despite describing their conversation in his
incident report. (Suarez Dep. 1 at 33-35, 40-42; Suarez Dep. 2 at
75; Incident Report at 1-2).
17
quotation marks omitted).
Although Dr. Bey relies almost entirely
on his own testimony, he has been consistent in his allegations
regarding the events leading up to his seizure by the defendants,
and merely claims that the defendants lacked an opportunity to form
reasonable suspicion (regarding his non-existent weapon) before
they forcibly stopped and frisked him.
Cf. Jeffreys, 426 F.3d at
554 (summary judgment appropriate where plaintiff who accused
officers of pushing him out of window had repeatedly confessed to
jumping, could not identify any characteristics of officers who
allegedly
attacked
him,
and
relied
exclusively
on
his
own
contradictory and incomplete testimony); see also Matheson v.
Kitchen, 515 F. App’x 21, 23 (2d Cir. 2013) (finding district court
exceeded its discretion by disregarding plaintiff’s testimony at
summary
judgment
Jeffreys).
stage
where
facts
not
as
“extreme”
as
in
Here, Dr. Bey does not allege facts so incredible that
“no reasonable [person] would undertake the suspension of disbelief
necessary to give credit to the allegations.”
Jeffreys, 426 F.3d
at 551.
Taking the evidence in the light most favorable to the
plaintiff, I find that the record indicates the existence of a
genuine issue of material fact. The pertinent question is whether,
accepting the plaintiff’s version of the facts, a reasonable jury
could find in his favor on his Fourth Amendment claim.
18
See Holtz,
258 F.3d at 69. In answering this question, the issue of precisely
when the defendants approached the plaintiff in the lobby is
relevant to whether the “facts available to [them]” when they
seized
Dr.
suspicion.
Bey
provided
them
with
the
Muhammad, 463 F.3d at 121.
requisite
reasonable
For the purposes of
adjudicating the defendants’ motion for summary judgment, I must
assume that a jury would credit Dr. Bey’s testimony regarding his
conduct while in the elevator and the timing of when the defendants
stopped him, and reject all contrary evidence. See, e.g. Daniel v.
T&M Protection Resources LLC, No. 13 Civ. 4384, 2015 WL 728175, at
*9 (S.D.N.Y. Feb. 19, 2015).
If the plaintiff’s testimony is so
credited, the jury could find that his actions in the elevator were
insufficient to create reasonable suspicion, or that none of the
defendants were even in the elevator with Dr. Bey and thus had no
objective basis for stopping him at all.4
presented
a
genuine
issue
of
material
Accordingly, Dr. Bey has
fact
and
inappropriate to dismiss his claim at this stage.
it
would
be
See Weyant v.
Okst, 101 F.3d 845, 852 (2d Cir. 1996) (noting that probable cause
4
Mr. Suarez’s testimony could also support the latter factual
finding: he stated in his deposition that he saw the four law
enforcement officers involved in the stop “just waiting around” in
the lobby a mere fifteen minutes before the encounter. (Suarez
Dep. 1 at 40). A jury could reasonably believe this testimony and
consequently find incredible Chief Iaquinto’s and Senior Inspector
Przedpelski’s claims of being upstairs and descending to the lobby
in Dr. Bey’s elevator. (Def. 56.1, ¶¶ 7-9).
19
may only be determined “as a matter of law if there is no dispute
as to the pertinent events and the knowledge of the officers”).
D.
Qualified Immunity
The defendants argue that even if I decline to dismiss the
plaintiff’s constitutional claim on the merits, they are entitled
to summary judgment on the basis of qualified immunity.
(Def.
Memo. at 16-17).
Qualified immunity “shields government officials from civil
liability for civil damages as a result of their performance of
discretionary functions, and serves to protect government officials
from the burdens of costly, but insubstantial, lawsuits.”
Lennon
v. Miller, 66 F.3d 416, 420 (2d Cir. 1995) (citing Harlow v.
Fitzgerald, 457 U.S. 800, 817-18 (1982)).
However, government
officials are protected only “insofar as their conduct does not
violate clearly established statutory or constitutional rights of
which a reasonable person would have known.”
Harlow, 457 U.S. at
818; accord Farid v. Ellen, 593 F.3d 233, 244 (2d Cir. 2010).
An
individual defendant is not entitled to summary judgment on the
issue of qualified immunity if the court determines that (1) the
demonstrated facts “‘make out a violation of a constitutional
right’” and (2) the “‘right at issue was clearly established at the
time of defendant’s alleged misconduct.’”
Winfield v. Trottier,
710 F.3d 49, 53 (2d Cir. 2013) (quoting Pearson v. Callahan, 555
20
U.S. 223, 232 (2009).
The reviewing court must view the evidence
presented in the light most favorable to the plaintiff. See Farid,
593 F.3d at 244. Nevertheless, even where a plaintiff’s rights are
well-defined, and the boundaries of permissible government conduct
clearly established, qualified immunity protects an official “if it
was ‘objectively reasonable’ for him to believe that his actions
were lawful at the time of the challenged act.”
Lennon, 66 F.3d at
416 (quoting Anderson v. Creighton, 483 U.S. 635, 641 (1987)); see
also Winfield, 710 F.3d at 53.
At the time of the defendants’ confrontation with Dr. Bey, it
was clearly established that an investigatory stop unsupported by
reasonable
suspicion
of
criminal
activity
would
constitute
violation of the plaintiff’s Fourth Amendment rights.
a
See, e.g.
Arizona, 555 U.S. at 326 (noting that under Terry, investigatory
stops and subsequent searches comport with Fourth Amendment’s ban
on unreasonable seizures if justified by reasonable suspicion);
United States v. Freeman, 735 F.3d 92, 95-96 (2d Cir. 2013);
McCardle v. Haddad, 131 F.3d 43, 48 (2d Cir. 1997) (observing that
“[i]t is well established that a warrantless search is per se
unreasonable under the Fourth Amendment” but that “[a] limited
search for weapons, without a warrant and without probable cause,
is also permissible in connection with” a Terry stop).
Where an officer asserts qualified immunity as an affirmative
21
defense to an allegation of an unreasonable stop and search, a
court must analyze whether (1) it was objectively reasonable for
the officer to believe that reasonable suspicion existed, or (2)
officers of reasonable competence could disagree on whether the
reasonable suspicion test was met.
Sutton v. Duguid, No. 05 CV
1215, 2007 WL 1456222, at *6 (E.D.N.Y. May 16, 2007) (citing
Jackson v. Sauls, 206 F.3d 1156, 1166 (11th Cir. 2000).
In the instant case, disputed issues of material fact preclude
a finding that the defendants had reasonable suspicion to conduct
an investigatory stop of the plaintiff.
It is clear that “summary
judgment on qualified immunity grounds is not appropriate when
there are facts in dispute that are material to a determination of
reasonableness.” Kerman v. City of New York, 261 F.3d 229, 240 (2d
Cir. 2001) (internal quotation marks and brackets omitted); see
also Curry v. City of Syracuse, 316 F.3d 324, 334 (2d Cir. 2003)
(“Where the circumstances are in dispute . . . a defendant is not
entitled to judgment as a matter of law on a defense of qualified
immunity.” (internal quotation marks omitted)).
summary
judgment
on
the
basis
of
qualified
Here, granting
immunity
“is
inappropriate because the essential factual circumstances leading
up to [the] plaintiff’s stop” and search are disputed.
Petway v.
City of New York, No. 10 CV 1048, 2012 WL 2254246, at *6 (E.D.N.Y.
June 14, 2012).
22
Conclusion
For
the
reasons
stated above,
the
defendants'
motion
summary judgment (Doc. No. 87) is denied.
SO ORDERED.
JAMES C. FRANCIS IV
UNITED STATES MAGISTRATE JUDGE
Dated:
New York, New York
May 26, 2015
Copies mailed this date to:
Dr. Shamsuddin A. Abdul-Hakim Bey
1600 Sedgwick Ave.
Apt. 19-S
Bronx, NY 10453
Andrew E. Krause, Esq.
U.S. Attorney's Office, SDNY
896 Chambers St., 3rd Floor
New York, NY 10007
23
for
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