Dekuyper v. The City of New York et al

Filing 69

OPINION AND ORDER.....The Monell claim against the City is dismissed. The defendants September 16, 2016 motion for summary judgment is otherwise denied. The claims remaining for trial are: (1) the § 1983 claims against the Individual Defendant s premised on theories of false arrest, use of excessive force, malicious prosecution, abuse of process, and violation of the Fourteenth Amendment; and (2) the § 1983 claim against Esposito premised on the theory of failure to intervene. (Signed by Judge Denise L. Cote on 12/16/2016) (gr)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------- X
:
JOHN SCOTT DEKUYPER,
:
:
Plaintiff,
:
:
-v:
:
THE CITY OF NEW YORK, NEW YORK CITY
:
POLICE DEPARTMENT (“NYPD”) CHIEF OF
:
DEPARTMENT JOSEPH ESPOSITO, NYPD
:
OFFICER PATRICK MULLANE, SHIELD NO.
:
5171, NYPD OFFICER FNU/LNU SHIELD NO. :
867 (believed to be either PEDRO CABAL :
or SHREEGANES MEADE), and NYPD
:
OFFICERS JOHN and JANE DOE #1-5 (The
:
names being fictitious, as the true
:
names and shield numbers are no
:
presently known) in their individually :
and official capacities,
:
:
Defendants.
:
:
-------------------------------------- X

14cv8249 (DLC)
OPINION AND ORDER

APPEARANCES
For the plaintiff:
Gideon Orion Oliver
Gideon Orion Oliver
277 Broadway, Suite 1501
New York, NY 10007
For the defendants:
Amy Robinson
Andrew Joseph Lucas
New York City Law Department
100 Church Street
New York, NY 10007
DENISE COTE, District Judge:
This case concerns a confrontation between plaintiff John
Dekuyper (“Dekuyper”) and officers of the New York City Police

Department (“NYPD”), leading to Dekuyper’s arrest.

The arrest

occurred during an October 15, 2011 protest organized by the
group Occupy Wall Street (“OWS”).

Dekuyper has sued the City of

New York (the “City”) as well as three of the NYPD officers
involved in his arrest: Joseph Esposito (“Esposito”),
Shreeganesh Meade (“Meade”), and Patrick Mullane (“Mullane,”
collectively, the “Individual Defendants”).1

Dekuyper has

brought claims under 42 U.S.C. § 1983 for (1) false arrest, (2)
excessive force, (3) malicious prosecution, (4) abuse of
process, (5) violation of the Fourteenth Amendment, (6) a
failure to intervene claim against Esposito, and (7) a Monell
claim against the City.
judgment.

The defendants have moved for summary

For the reasons that follow, the Monell claim against

the City is dismissed.

The motion is otherwise denied.
Background

The following facts are undisputed unless otherwise noted.
On October 15, 2011, Dekuyper attended an OWS protest that began
in Zuccotti Park in Lower Manhattan and ended in Times Square.
According to Dekuyper, tens of thousands of protesters

Dekuyper initially named a fourth officer, Pedro Cabral
(“Cabral”), as a defendant. The claims against Cabral were
dismissed with prejudice by stipulation entered on July 8, 2016.
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participated in the protest.

Dekuyper arrived at Zuccotti Park

at approximately 8:00 a.m. and arrived in Times Square between
4:00 and 5:00 p.m.
When the protesters arrived in Times Square, NYPD officers
had erected barricades in the vicinity of Seventh Avenue, which
resulted in the protesters being “cordoned in,” at which time
the protesters walked into the street.

A video of the protest

shows a chaotic scene in which a large number of protesters came
into contact with police officers, who were on foot and mounted
on horses.

Some of the protesters attempted to lift the NYPD

barricades or push the barricades towards the police officers.
Dekuyper denies lifting, pushing, or damaging any of the NYPD
barricades.
At approximately 6:00 p.m., Dekuyper was present in the
vicinity of Seventh Avenue and 46th Street.

Esposito, the

highest ranking uniformed officer in the NYPD at that time, was
present in Times Square that day.

The protesters were

successful in breaking and/or bypassing some of the NYPD’s
barricades and entered the roadway of Seventh Avenue.
time, protesters began to clash with police.

At that

The events that

followed, which led up to Dekuyper’s arrest, are disputed.
Esposito testified that Dekuyper had two confrontations

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with the NYPD that day.

According to Esposito, in the first

confrontation, Dekuyper pushed the barricade between him and
Esposito.

Dekuyper also screamed at police, flaring his arms.

Esposito testified that he was concerned that Dekuyper was going
to assault him, and ordered Dekuyper to move back and stop
touching the barricade.

Dekuyper then grabbed Esposito’s shield

and tried to take it from Esposito’s shirt.

Esposito attempted

to arrest Dekuyper at that time, but other protesters pulled
Dekuyper back before Esposito could effectuate the arrest.
Dekuyper denies that this first encounter took place at all, and
testified that he had only one confrontation with the NYPD that
day: the one in which he was arrested.
According to the defendants, Dekuyper had a second
encounter with the NYPD when he made his way back to the police
lines some minutes later.

Dekuyper testified that he yelled at

the police to the effect of “why don’t you move the horses
back?” and may have also said “[f]uck off, stop hitting us.”
According to Dekuyper, an officer in a white shirt -- whom he
now believes to be Esposito -- grabbed him and told him to
depart the area.

Dekuyper responded:

Why don’t you just take down the borders
with the horses and this thing is over?
are supposed to meet the other people on
side of the street and that’s the end of
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and back up
You know, we
the other
it. We have

been marching seven hours without a problem.
According to the defendants, Dekuyper then either struck Meade
–- another NYPD officer present on the scene -- or attempted to
grab his shield.

Esposito then moved toward Dekuyper, grabbed

him, and pulled him in order to place him under arrest.
Dekuyper denies striking Meade or any other police officer,
denies attempting to steal Esposito or Meade’s shield, and
denies that he was ever given any orders by the officers.
A video on this incident shows that Dekuyper flared his
arms generally in the direction of the officers, and possibly
made contact with an officer.

Dekuyper appears to be holding

onto a barrier and the video also shows NYPD officers striking
Dekuyper several times.
Dekuyper was arrested and charged with (1) attempted grand
larceny in the fourth degree, N.Y. Penal Law § 155.30, (2)
obstruction of governmental administration, id. § 195.05, (3)
resisting arrest, id. § 205.30, and (4) disorderly conduct, id.
§ 240.20(1).

Mullane was assigned to process Dekuyper’s arrest

and transported Dekuyper to the police substation, and later to
the Mass Arrest Processing Center at Once Police Plaza.

In

connection with the arrest, Mullane prepared notes and arrest
documents, including a complaint and an “on line booking system

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arrest worksheet,” which stated that Dekuyper attempted to grab
Esposito’s shield, acted “disorderly” and was seen “pushing
through barriers.”

The following day, Dekuyper was arraigned

and released from custody.

The charges were later dismissed.

Dekuyper filed this action on October 15, 2014.

On

September 16, 2016, following the close of discovery, the
defendants filed a motion for summary judgment.

The motion

became fully submitted on December 2.
Discussion
Summary judgment may not be granted unless all of the
submissions taken together “show[] 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).

“Summary

judgment is appropriate where the record taken as a whole could
not lead a rational trier of fact to find for the non-moving
party.”

Smith v. Cty. of Suffolk, 776 F.3d 114, 121 (2d Cir.

2015) (citation omitted).

The moving party bears the burden of

demonstrating the absence of a material factual question, and in
making this determination, the court must view all facts in the
light most favorable to the non-moving party.

Eastman Kodak Co.

v. Image Tech. Servs., Inc., 504 U.S. 451, 456 (1992); Gemmink
v. Jay Peak Inc., 807 F.3d. 46, 48 (2d Cir. 2015).
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“[W]here the

evidentiary matter in support of the motion does not establish
the absence of a genuine issue, summary judgment must be denied
even if no opposing evidentiary matter is presented.”

Sec. Ins.

Co. of Hartford v. Old Dominion Freight Line Inc., 391 F.3d 77,
83 (2d Cir. 2004) (citation omitted).
Once the moving party has asserted facts showing that the
non-movant’s claims or affirmative defenses cannot be sustained,
“the party opposing summary judgment may not merely rest on the
allegations or denials of his pleading; rather his response, by
affidavits or otherwise as provided in the Rule, must set forth
specific facts demonstrating that there is a genuine issue for
trial.”

Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009)

(citation omitted); see Celotex Corp. v. Catrett, 477 U.S. 317,
322–23 (1986).

“[C]onclusory statements, conjecture, and

inadmissible evidence are insufficient to defeat summary
judgment,” Ridinger v. Dow Jones & Co. Inc., 651 F.3d 309, 317
(2d Cir. 2011) (citation omitted), as is “mere speculation or
conjecture as to the true nature of the facts.”

Hicks v.

Baines, 593 F.3d 159, 166 (2d Cir. 2010) (citation omitted).
Only disputes over material facts -- “facts that might affect
the outcome of the suit under the governing law” -- will
properly preclude the entry of summary judgment.

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Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
I.

Claims Against the Individual Defendants
Summary judgment will not be granted for the claims
asserted against the Individual Defendants because the parties
dispute several facts material to those claims.

Specifically,

the parties dispute, inter alia, (1) whether Dekuyper had a
“first” confrontation with Esposito, in which Dekuyper attempted
to seize Esposito’s shield; (2) whether Dekuyper struck Meade or
attempted to seize his shield; (3) whether Dekuyper failed to
comply with orders from NYPD officers directing him to back away
from a police barricade; (4) whether excessive force was used in
effectuating the arrest of Dekuyper; and (5) whether the
Individual Defendants prepared and/or submitted false documents
in connection with Dekuyper’s arrest.

Because of these

disputes, and in viewing the evidence in the light most
favorable to Dekuyper, a reasonable juror could find a lack of
probable cause to arrest Dekuyper and that the NYPD officers who
arrested him used excessive force.

Similarly, the Individual

Defendants are not entitled to summary judgment on the ground of
qualified immunity because factual disputes exist as to whether
(1) the arrest of Dekuyper violated his clearly established
rights to be free from arrest without probable cause and from

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the use of excessive force, and (2) whether it was “objectively
reasonable” for the Individual Defendants to believe that their
actions did not violate Dekuyper’s constitutional rights.
Garcia v. Does, 779 F.3d 84, 92 (2d Cir. 2015) (citation
omitted).
II.

Monell Claim Against New York City
In a suit brought under § 1983, municipalities cannot be
held liable unless the plaintiff can prove that the
unconstitutional action was taken pursuant to
a policy statement, ordinance, regulation, or decision
officially adopted and promulgated by that body’s
officers[,] . . . [or] pursuant to governmental
“custom” even though such a custom has not received
formal approval through the body’s official decision
making channels.
Jeffes v. Barnes, 208 F.3d 49, 57 (2d Cir.2000) (quoting Monell
v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 690–
91 (1978)) (brackets in original).

To establish a Monell claim

against a city for the unconstitutional actions of its
employees, “a plaintiff must show: “(1) an official policy or
custom that (2) causes the plaintiff to be subjected to (3) a
denial of a constitutional right.”

Wray v. City of New York,

490 F.3d 189, 195 (2d Cir. 2007) (citation omitted).

An

“official policy or custom” may be established through the
official acts of city lawmakers or “those whose edicts or acts
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may fairly be said to represent official policy,” Monell, 436
U.S. at 694, or by a pattern of misconduct that is “sufficiently
persistent or widespread” as to “compel[] the conclusion that
the local government has acquiesced in or tacitly authorized its
subordinates’ unlawful actions.”

Reynolds v. Giuliani, 506 F.3d

183, 192 (2d Cir. 2007).
Dekuyper’s theory of Monell liability in his complaint is
that the Individual Defendants acted pursuant to policies and
practices of the City, which he does not identify.

In

opposition to the defendants’ motion, Dekuyper argues in
conclusory fashion and without citation to the record, that
Esposito was “the final policymaker for the City” with respect
to the use of force in Times Square and the arrest and
prosecution of Dekuyper.

He also asserts that the City failed

to train Esposito and that Esposito failed to supervise Meade.
“Actions by an individual with final decision-making
authority in a municipality constitute official policy for
purposes of a § 1983 claim.”
129, 139 (2d Cir. 2003).

Anthony v. City of N.Y., 339 F.3d

“An official has final authority if

his decisions, at the time they are made, for practical or legal
reasons constitute the municipality’s final decisions.”
(citation omitted).

Id.

Dekuyper has not identified any specific

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NYPD policy or custom that he contends is unconstitutional.

In

fact, he has submitted as evidence the NYPD’s Patrol Guide,
which states that officers’ use of force must be consistent with
existing law, that officers must use the minimum force
necessary, and that the use of excessive force will not be
tolerated.

Moreover, Dekuyper has failed to present evidence

from which a reasonable jury could find that Esposito had “final
decision-making authority” over the NYPD’s response to the OWS
protest on October 15, 2011.

While it is undisputed that

Esposito was, at the time, the highest ranking uniformed officer
in the NYPD, there is no evidence that Esposito was responsible
for setting NYPD policy with respect to Dekuyper’s arrest or the
use of force employed.

Nor is there any evidence that, if

Esposito had a role in setting NYPD policy, his decision would
be final rather than subject to review by the leadership of the
NYPD or the City.
Dekuyper’s failure to train theory also fails.

“[A]

municipality can be liable for failing to train its employees
where it acts with deliberate indifference in disregarding the
risk that its employees will unconstitutionally apply its
policies without more training.”

Amnesty Am. v. Town of W.

Hartford, 361 F.3d 113, 129 (2d Cir. 2004).

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To prevail on a

theory of failure to train, a plaintiff must show that municipal
officials failed to train employees “under circumstances that
could constitute deliberate indifference” and must “identify a
specific deficiency in the city’s training program and establish
that that deficiency is closely related to the ultimate injury,
such that it actually caused the constitutional deprivation.”
Id. (citation omitted).

Dekuyper has not identified any

specific training deficiency which he contends resulted in the
deprivation of his constitutional rights, nor has he introduced
any evidence from which a reasonable juror could find that the
City acted with deliberate indifference to constitutional
violations.

Moreover, the video of Dekuyper’s arrest reveals

that the NYPD officers were confronted with a chaotic scene in
which numerous protesters pushed up against barricades, yelled,
and in some instances, scuffled with the police officers.

The

video shows that Meade and Esposito’s actions were the result of
decisions made in the moment, and there is no evidence that
their conduct toward Dekuyper was a result of a training
deficiency.
Conclusion
The Monell claim against the City is dismissed.

The

defendants’ September 16, 2016 motion for summary judgment is
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otherwise denied.

The claims remaining for trial are: (1) the

§ 1983 claims against the Individual Defendants premised on
theories of false arrest, use of excessive force, malicious
prosecution, abuse of process, and violation of the Fourteenth
Amendment; and (2) the § 1983 claim against Esposito premised on
the theory of failure to intervene.
Dated:

New York, New York
December 16, 2016
__________________________________
DENISE COTE
United States District Judge

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