Washington v. Flaherty
Filing
35
MEMORANDUM OPINION AND ORDER re: 21 MOTION for Summary Judgment . filed by Dan Flaherty. For the foregoing reasons, Defendant's motion for summary judgment is denied as to Plaintiff's federal and state law false arrest and im prisonment claims, and is granted in all other respects. This Memorandum Order resolves docket entry no. 21. The Final Pretrial Conference in this case is adjourned to July 24, 2015, at 11:00 a.m. in Courtroom 12D. The parties are directed to meet pr omptly with Magistrate Judge Freeman for settlement purposes, and to confer with each other and make submissions in advance of the Final Pretrial Conference as required by the Pretrial Scheduling Order (docket entry no. 14). SO ORDERED. (Signed by Judge Laura Taylor Swain on 5/27/2015) (ajs)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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TROY WASHINGTON,
Plaintiff,
-v-
No. 13CV8839-LTS-DCF
PEACE OFFICER DANIEL FLAHERTY,
Defendant.
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MEMORANDUM OPINION AND ORDER
Plaintiff Troy Washington (“Plaintiff”) brings this action against defendant Peace
Officer Daniel Flaherty (“Defendant”), asserting federal constitutional claims pursuant to 42
U.S.C. section 1983 and state common law claims of false arrest and false imprisonment.
Defendant is a State Peace Officer with the Roosevelt Island Operating Corporation of the State
of New York (“RIOC”). The Court has jurisdiction of this action pursuant to 28 U.S.C. sections
1331 and 1367. Defendant has moved for summary judgment in his favor on all claims.
The Court has carefully reviewed the submissions of the parties. For the
following reasons, Defendant’s motion for summary judgment is granted in part and denied in
part.
BACKGROUND
Plaintiff’s remaining claims1 arise from his arrest by Defendant on December 12,
1
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In his Complaint, Plaintiff asserted claims for malicious prosecution, excessive use
of force, and negligent infliction of emotional harm. In his response to Defendant’s
motion for summary judgment, Plaintiff abandoned his claims other than those for
“False Arrest and Imprisonment under both New York and Federal law.” (Opp. Mem.
at 2.) Summary judgment dismissing Plaintiff’s abandoned claims will therefore be
granted.
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2013, and his detention in connection with that arrest. The fact and location of the arrest are
undisputed; the parties’ accounts of the circumstances and their own conduct differ in material
respects. In short, Defendant, relying on his own affirmation and deposition testimony, and
inferences drawn from the deposition testimony of an individual (Justus Burgos) whom Plaintiff
identified as a person likely to have discoverable information that Plaintiff may use to support
his claims, alleges that he approached Plaintiff and a group of companions outside of a deli on
Roosevelt Island after receiving a telephone complaint of excessive noise. According to
Defendant, he observed members of the group blocking the sidewalk and/or the deli entrance and
making loud noise, and that he observed Plaintiff speaking loudly. Defendant alleges that other
members of the group dispersed upon his instruction to do so, but that Plaintiff spoke back
loudly and said that he would not move until he had used his cell phone, whereupon Defendant
turned him around to cuff him, Plaintiff obstructed the effort by locking his arms against his
chest, and Defendant eventually arrested him and placed him into handcuffs.
In his deposition testimony, Plaintiff alleged that he and his companions, who had
been playing basketball at a local school, were neither making excessive noise nor blocking the
sidewalk. Plaintiff denies yelling at Defendant and trying to use his cell phone. According to
Plaintiff, he and his companions had not been outside of the deli for long enough for anyone to
have telephoned in a complaint about them, and Defendant began to push Plaintiff and
commenced arresting him only very shortly after instructing the group to disperse, although
Plaintiff had said that he and his companions would leave right away.
It is undisputed that Plaintiff was taken to the Roosevelt Island security office,
and thereafter to the 114th Precinct and to Manhattan Central Booking, where he was held
overnight, and was then arraigned on charges of disorderly conduct, resisting arrest, and
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obstructing governmental administration. It is also undisputed that, at a hearing the following
month, the charges were adjourned in contemplation of dismissal.
It is undisputed that there is no record in the Roosevelt Island security force
incident log of a noise complaint regarding Plaintiff’s group prior to Defendant’s encounter with
the group.
DISCUSSION
Summary judgment is to be granted “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). “[S]ummary judgment will not lie if the dispute about a material fact is
‘genuine,’ that is, if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court
performs the “threshold inquiry” as to whether “there are any genuine factual issues that
properly can be resolved only by a finder of fact because they may reasonably be resolved in
favor of either party.” Anderson, 477 U.S. at 250. “[A]ll ambiguities must be resolved and all
inferences drawn in favor of the party against whom summary judgment is sought.” Gallo v.
Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1223 (2d Cir. 1994).
Defendant asserts that the undisputed facts show that he had probable cause to
arrest Plaintiff. “Probable cause to arrest exists when the officers have knowledge of, or
reasonably trustworthy information as to, facts and circumstances that are sufficient to warrant a
person of reasonable caution in the belief that an offense has been or is being committed by the
person to be arrested.” Zellner v. Summerlin, 494 F.3d 344, 368 (2d Cir. 2007). “[S]ummary
judgment dismissing a plaintiff’s false arrest claim is appropriate if the undisputed facts indicate
that the arresting officer’s probable cause determination was objectively reasonable.” Jenkins v.
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City of New York, 478 F.3d 76, 88 (2d Cir. 2007). “If, however, on the undisputed facts the
officer would be unreasonable in concluding probable cause existed, or if the officer's
reasonableness depends on material issues of fact, then summary judgment is inappropriate for
both New York and federal false arrest claims.” Id.2 See also Searles v. Pompilio, 652 F. Supp.
2d 432, 440 (S.D.N.Y. 2009) (denying defendant police officer’s motion for summary judgment
because material issues of fact prevented the court from ruling as a matter of law that defendant
had probable cause to arrest plaintiff).
Defendant also asserts a qualified immunity defense on the ground that Defendant
had arguable probable cause to arrest Plaintiff. “Under federal law, a police officer is entitled to
qualified immunity where (1) his conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known, or (2) it was objectively
reasonable for him to believe that his actions were lawful at the time of the challenged act.”
Jenkins, 478 F.3d at 87 (internal citations and quotation marks omitted). Thus, even if the
undisputed material facts do not demonstrate that the arresting officer had probable cause to
make the arrest, the Court may nonetheless find that the officer is entitled to qualified immunity
if he can establish that the undisputed material facts demonstrate that the officer had “arguable
probable cause” to arrest the plaintiff. See Escalera v. Lunn, 361 F.3d 737, 743 (2d Cir. 2004).3
2
In Jenkins v. City of New York, 478 F.3d 76 (2d. Cir. 2007), the Second Circuit, in
vacating the portion of the district court’s judgment dismissing plaintiff’s pre-lineup
false arrest claim, found that the district court had improperly construed a material
disputed fact in favor of defendants when conducting its probable cause analysis
with respect to the pre-lineup false arrest claim. “On the defendants’ motion for
summary judgment, the district court was obligated to construe this factual
ambiguity in Jenkins’ favor.” Id. at 89.
3
“Arguable probable cause exists ‘if either (a) it was objectively reasonable for the
officer to believe that probable cause existed, or (b) officers of reasonable
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“Although a conclusion that the defendant official’s conduct was objectively reasonable as a
matter of law may be appropriate where there is no dispute as to the material historical
facts . . . if there is such a dispute, the factual questions must be resolved by the factfinder.”
Kerman v. City of New York, 374 F.3d 93, 109 (2d Cir. 2004) (collection of cases).
Here, Defendant does not dispute that there is a clearly established right of
protection against false imprisonment, but he contends that there was at least arguable probable
cause to arrest Plaintiff. (Deft. Mot. at 13).
Genuine disputes as to issues of material fact, however, preclude the grant of
summary judgment in Defendant’s favor on the basis of probable cause, whether on the merits or
on qualified immunity grounds. Plaintiff’s account of the events leading up to the arrest and the
circumstances of the arrest differs from Defendant’s as to the timetable, whether Plaintiff or any
other member of his group was making excessive noise or acting in a disruptive manner, and as
to Plaintiff’s statements and actions in response to Defendant’s instruction to disperse.
Defendant’s effort to find preclusive corroboration of his account in Burgos’ testimony fails
because Defendant’s reading of Burgos’ account is based on inferences rather than specific
testimony as to material matters, including whether Plaintiff sought to delay Defendant by using
a cell phone, and because Plaintiff is not bound in any event by Burgos’ testimony. Plaintiff
complied with the initial disclosure requirement imposed by the Federal Rules of Civil
Procedure when he identified Burgos as a potential witness. He did not adopt Burgos’ testimony
in so doing. Cf. Fed. R. Evid. 607 (“Any party, including the party that called the witness, may
attack the witness’s credibility.”). Even the question of whether there was, or could have been,
competence could disagree on whether the probable cause test was met.’” Escalera,
361 F.3d 737, 743 (2d Cir. 2004) (quoting Golino v. City of New Haven, 950 F.2d
864, 870 (2d Cir. 1991)).
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an advance third-party noise complaint is disputed; the only evidence of such a complaint
consists of Defendant’s own statement. Taking Plaintiff’s account as true and drawing all
inferences in his favor, as the Court must do in determining whether summary judgment is
warranted, a rational finder of fact could determine that Defendant lacked even arguable
probable cause to arrest Plaintiff.1
CONCLUSION
For the foregoing reasons, Defendant’s motion for summary judgment is denied
as to Plaintiff’s federal and state law false arrest and imprisonment claims, and is granted in all
other respects.
This Memorandum Order resolves docket entry no. 21.
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Denial of Defendant’s motion is appropriate for the further reason that Defendant’s
Local Rule 56.1 Statement of Material Facts on Motion for Summary Judgment is
deficient, as it fails to follow each statement by citation to evidence which would be
admissible, pursuant to Local Civil Rule 56.1(d). This deficiency is an independent
reason to deny Defendant’s motion in its entirety. See, e.g., Suares v. Cityscape
Tours, Inc., No. 14CV1561, 2015 WL 921754 (2d Cir. Mar. 5, 2015) (affirming
district court’s denial of plaintiff’s motion for summary judgment for failure to
comply with Local Rule 56.1, specifically for failure to provide citation to evidence
as required by Rule 56.1(d)); Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir.
2001) (“A district court has broad discretion to determine whether to overlook a
party’s failure to comply with local court rules”).
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The Final Pretrial Conference in this case is adjourned to July 24, 2015, at 11:00
a.m. in Courtroom 12D. The parties are directed to meet promptly with Magistrate Judge
Freeman for settlement purposes, and to confer with each other and make submissions in
advance of the Final Pretrial Conference as required by the Pretrial Scheduling Order (docket
entry no. 14).
SO ORDERED.
Dated: New York, New York
May 27, 2015
/s/ Laura Taylor Swain
LAURA TAYLOR SWAIN
United States District Judge
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