Sankara v. The Police Office et al

Filing 119

MEMORANDUM AND ORDER granting 104 Motion for Judgment on the Pleadings. Defendants' motion to dismiss is GRANTED. The Clerk is directed to terminate the motion and to enter judgment in favor of defendants Kusterer and O'Hara. (Docket # 104.) This Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith and in forma pauperis status is denied for purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 443-45 (1962). (As further set forth in this Order.) (Signed by Judge P. Kevin Castel on 12/4/2017) Copies Mailed By Chambers (cf)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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AHMADOU SANKARA,
Plaintiff,

15-cv-7761 (PKC) (JLC)

-against-

MEMORANDUM
AND ORDER

POLICE OFFICER LIAM O’HARA, Shield #
20203 and DETECTIVE BRIAN KUSTERER,
Shield # 4667,
Defendants.
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CASTEL, U.S.D.J.
Plaintiff Ahmadou Sankara, who is proceeding pro se, brings this action pursuant
to 42 U.S.C. § 1983. He alleges that defendants deprived him of the protections guaranteed by
the U.S. Constitution during his arrest, trial and incarceration on state criminal charges involving
a forged driver’s license and stolen credit cards. He alleges that defendants Police Officer Liam
O’Hara and Detective Brian Kusterer, who are employed by the New York City Police
Department (“NYPD”), are liable for false arrest, false imprisonment, unlawful seizure,
malicious prosecution, malicious abuse of process, excessive force, imposing unconstitutional
conditions of confinement, and inflicting emotional distress in a conscious and/or negligent
fashion. O’Hara and Kusterer now move for judgment on the pleadings pursuant to Rule 12(c),
Fed. R. Civ. P.
Defendants filed their motion on April 3, 2017. Since then, Sankara has
submitted seven letters to the Court. (Docket # 109-13, 115-16.) They describe issues
concerning his confinement by state authorities, his immigration status and his proceedings in

Mailed to Ahmadou Sankara 12/4/2017

state courts. The Court has re-reviewed these letters to determine whether they have any
contents potentially related to the pending motion, and concludes that they do not.
For the reasons that will be explained, Sankara’s claims are dismissed in their
entirety.
BACKGROUND.
In summarizing the Complaint, the Court accepts Sankara’s factual allegations as
true and draws every reasonable inference in his favor. In re Elevator Antitrust Litig., 502 F.3d
47, 50 (2d Cir. 2007).
At 10:50 p.m. on March 6, 2015, Sankara was sitting in a parked car on West
132nd Street between Seventh and Eighth Avenues in Manhattan, when defendant O’Hara
approached and began to question him. (Compl’t at 2.) According to Sankara, O’Hara explained
that he was questioning Sankara because he was parked in front of a church, an assertion that
Sankara contends was factually incorrect. (Compl’t at 3.) O’Hara accused Sankara of
possessing a stolen iPhone 6 plus. (Compl’t at 2.) Sankara asserts that O’Hara lacked probable
cause or reasonable suspicion for the ensuing search of his car and wallet. (Compl’t at 3.)
According to Sankara, O’Hara falsely testified before a grand jury that Sankara
had a forged driver’s license, and misleadingly identified himself using different shield numbers
at different criminal proceedings. (Compl’t at 3.) Sankara also asserts that O’Hara used two
different shield numbers when he arrested Sankara and when he processed him in the NYPD’s
32nd Precinct. (Compl’t at 7.)
Later, according to Sankara, defendant Kusterer testified to a grand jury that he
used a scanner to inspect Sankara’s driver’s license, and that the results flagged the license as a

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forgery. (Compl’t at 7.) According to Sankara, however, Kusterer did not use an ID scanner
issued by the NYPD, and instead used an ID scanner that he owned personally. (Compl’t at 7.)
The Complaint asserts that on May 7, 2015, Sankara was charged in New York
Supreme Court with possession of a forged instrument in the second degree. (Compl’t at 5.)
The Complaint also indicates that Sankara was charged with three counts related to possession of
stolen credit cards, and possibly with charges related to a stolen iPhone. (Compl’t at 7.) Sankara
states that any charges related to a forged driver’s license, forged credit cards and a stolen iPhone
are “false.” (Compl’t at 8.)
Defendants have submitted a copy of the grand jury’s indictment filed against
Sankara in the Supreme Court of New York, New York County. (Ferrari Dec. Ex. C.) It
charged Sankara with four counts of criminal possession of a forged instrument in the second
degree, in violation of New York Penal Law section 170.25. (Ferrari Dec. Ex. C.)
The case against Sankara proceeded to trial, where, Sankara asserts, O’Hara
falsely testified that Sankara had parked his car in front of a church. (Compl’t at 6.) Sankara
asserts that “no evidence was presented at trial” to support his guilt. (Compl’t at 7.) The jury
returned a guilty verdict against Sankara, and on December 9, 2015, Sankara was sentenced to
seven years of incarceration. (Compl’t at 6.)
Sankara contends that while incarcerated, he has been subjected to
unconstitutional conditions of confinement. The Complaint describes an incident during
Sankara’s incarceration in which a corrections officer served him lunch, and, shortly afterward,
he experienced chest pains and vomiting. (Compl’t at 13.) Sankara was treated with antibiotics
and pharmaceuticals. (Compl’t at 13.) Sankara describes a strip search that occurred when he

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was being escorted to receive antibiotics. (Compl’t at 13-14.) Sankara states that he is now
“afraid to eat,” and that he has not received adequate medication. (Compl’t at 15.)
Sankara asserts the following injuries and causes of action:
The claimant was subjected to personal and physical injuries, an
unlawful seizure, false arrest and imprisonment malicious
prosecution abuse of process, negligence, intentional and negligent
infliction of emotional distress harrassment, unconstitutional
conditions of confinement and to a deprivation of his constitutional
civil and common law rights. As a result of the officers actions,
claimant experienced personal physical and emotional injuries pain
and suffering, fear and invasion of privacy, psychological pain,
emotional distress, mental anguish, embarrassment and
humiliation.1
(Compl’t at 7.) As relief, the Court construes the Complaint to request that Sankara’s criminal
conviction be vacated, and that he be awarded $50 million in damages. (Compl’t at 9.)
RULE 12(c) STANDARD.
O’Hara and Kusterer move for judgment on the pleadings pursuant to Rule 12(c).
“On a 12(c) motion, the court considers ‘the complaint, the answer, any written documents
attached to them, and any matter of which the court can take judicial notice for the factual
background of the case.’” L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 422 (2d Cir.
2011) (quoting Roberts v. Babkiewicz, 582 F.3d 418, 419 (2d Cir. 2009)). A motion to dismiss
on the pleadings is reviewed using the same standard applied to motions to dismiss pursuant to
Rule 12(b)(6), Fed. R. Civ. P. See, e.g., Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir. 2010).
Courts accept the truth of all factual allegations contained in the complaint and draw all
reasonable inferences in favor of the plaintiff. Id. “‘To survive a Rule 12(c) motion, plaintiffs’

Sankara also brought claims in this action against an Assistant District Attorney and two of his former attorneys.
Those claims were dismissed in a prior Order. (Docket # 23.)

1

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complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face.’” Id. (quoting Johnson v. Rowley, 569 F.3d 40, 43-44 (2d Cir. 2009)).
Legal conclusions are not entitled to the presumption of truth, and a court
assessing the sufficiency of a complaint disregards them. Ashscroft v. Iqbal, 556 U.S. 662, 678
(2009). Instead, the Court must examine only the well-pleaded factual allegations, if any, “and
then determine whether they plausibly give rise to an entitlement to relief.” Id. at 679. The
Complaint must include non-conclusory factual allegations that “nudge[ ]” its claims “across the
line from conceivable to plausible.” Id. at 680 (quoting Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007)).
Defendants served Sankara with the notice to a pro se litigant required by Local
Civil Rule 12.1. (Docket # 105.) Although a complaint filed by a pro se litigant must allege
enough facts to state a plausible claim, the complaint is held to a less-stringent standard than is
applied to a complaint filed by counsel. Ahlers v. Rabinowitz, 684 F.3d 53, 60 (2d Cir. 2012).
Courts should generously construe complaints of pro se litigants to raise the strongest allegations
that they suggest. Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006).
DISCUSSION.
I.

SANKARA’S CLAIMS AGAINST KUSTERER ARE DISMISSED.
The Complaint’s principal allegation concerning Kusterer asserts that Kusterer

scanned Sankara’s driver’s license with a scanner that he owned personally, and that he did not
use a scanner issued by the NYPD. Accepting the truth of this allegation, the Complaint does
not allege that Kusterer violated Sankara’s protections under the U.S. Constitution, or that he
was personally involved with the deprivation of such rights. See, e.g., Grullon v. City of New
Haven, 720 F.3d 133, 138 (2d Cir. 2013) (“It is well settled that, in order to establish a

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defendant’s individual liability in a suit brought under § 1983, a plaintiff must show, inter alia,
the defendant's personal involvement in the alleged constitutional deprivation.”).
Sankara asserts that Kusterer falsely testified before a grand jury that Sankara
possessed a forged driver’s license. To the extent that Sankara alleges that Kusterer’s grand jury
testimony deprived Sankara of any constitutional protection, Kusterer is shielded by absolute
immunity. Rehberg v. Paulk, 566 U.S. 356, 369 (2012) (“[A] grand jury witness has absolute
immunity from any § 1983 claim based on the witness’ testimony.”).
Because the Complaint does not include facts that state a plausible claim against
Kusterer, all claims against him are dismissed.
II.

SANKARA’S CLAIMS AGAINST O’HARA ARE DISMISSED.
A. Sankara’s Criminal Conviction Bars Certain of His Claims as a Matter of
Law.
Sankara brings claims of false arrest, false imprisonment and malicious

prosecution. However, because Sankara was convicted of the crimes charged against him,
O’Hara has a complete defense to those three claims. See, e.g., Cameron v. Fogarty, 806 F.2d
380, 387-88 (2d Cir. 1986) (a plaintiff’s criminal conviction is a complete defense against his
claims of false arrest, false imprisonment and malicious prosecution).
As to Sankara’s malicious abuse of process claim, Heck v. Humphrey, 512 U.S.
477 (1994), bars a section 1983 plaintiff from pursuing claims that challenge the validity of a
criminal conviction in state court. The Second Circuit has concluded that a malicious abuse of
process claim brought by a plaintiff who was convicted in state court is barred by Heck, and
instead must be brought in a habeas petition. Zarro v. Spitzer, 274 Fed. App’x 31, 34 (2d Cir.
2008) (summary order). The Complaint therefore does not state a claim for malicious abuse of
process.
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B. Sankara’s “Unlawful Seizure” Claim Is Dismissed.
The Complaint alleges that Sankara “was subjected to . . . an unlawful seizure.”
(Compl’t at 7.) According to the Complaint, Sankara sat in a parked car on West 132nd Street
in Manhattan when O’Hara approached and began to question him. (Compl’t at 3.) The
Complaint states that O’Hara searched Sankara’s car and wallet without probable cause, and that
O’Hara “lied saying I was parked in front of the church.” (Compl’t at 3.)
Construing the Complaint to raise the strongest allegations that it suggests,
Triestman, 470 F.3d at 474, the Court understands Sankara to allege that O’Hara violated the
Fourth Amendment’s guarantee against an unlawful search by searching him without reasonable
suspicion or probable cause, on the false pretext that he was parked in front of a church.
Accepted as true, the Complaint alleges that O’Hara searched Sankara without probable cause or
reasonable suspicion, and therefore violated Sankara’s rights under the Fourth Amendment. Cf.
Holeman v. City of New London, 425 F.3d 184, 189 (2d Cir. 2005) (when stopping a motorist,
“an officer making such a stop [must] have probable cause or reasonable suspicion that the
person stopped has committed a traffic violation or is otherwise engaged in or about to be
engaged in criminal activity.”).
Where a plaintiff has “already had a full and fair opportunity to litigate his search
and seizure claim” in state court proceedings, principles of collateral estoppel may bar him from
re-litigating such a claim in a section 1983 action. Phelan v. Sullivan, 541 Fed. App’x 21, 24 (2d
Cir. 2013) (summary order). In an Order dated November 6, 2017, the Court noted that certain
of Sankara’s submissions indicated that his attorney moved to suppress evidence and testimony
on the grounds that they were obtained through an unlawful search. (Docket # 117.) The Court

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invited the parties to make supplemental submissions concerning any such motion to suppress.
(Id.)
On November 28, 2017, defendants submitted the 72-page transcript of a
suppression hearing before Justice Anthony J. Ferrera of the New York Supreme Court, New
York County, which took place on November 10, 2015. (Docket # 118.) At the hearing, O’Hara
testified that on March 6, 2015, Sankara’s car was parked at a no-parking sign near a church, and
that when he approached, he observed Sankara with a glass pipe containing crack cocaine. (Id.
at 19-23, 38-40.) O’Hara testified that he arrested Sankara and searched his vehicle, at which
point he found loose crack cocaine and a marijuana cigarette. (Id. at 23.) A search of Sankara’s
person recovered five Oxycodone pills, O’Hara stated, and a search of his wallet found three
forged credit cards, which were identified as forgeries through the use of a card scanner. (Id. at
24, 26-27.) Sankara called no witnesses. Sankara’s attorney argued that O’Hara lacked probable
cause to stop Sankara and that there was no basis to search his wallet and review the authenticity
of credit cards in his possession. (Id. at 59-60.)
Justice Ferrera stated that he credited O’Hara’s testimony, and found that O’Hara
and his partner had a good-faith belief that Sankara’s car was illegally parked in a no-parking
zone, and that Sankara’s gestures with the apparent crack pipe resulted in a justifiable fear of
officer safety, prompting a search of the vehicle and the discovery of illegal drugs. (Id. 69-71.)
Justice Ferrera further found that officers lawfully conducted an inventory search incident to
Sankara’s arrest, and that the search of Sankara’s credit cards and use of a scanner to ascertain
their authenticity did not violate Sankara’s legitimate expectation of privacy. (Id. at 71.)
“‘Under 28 U.S.C. § 1738 a federal court must, in according full faith and credit,
give to a State court judgment the same preclusive effect as would be given to the judgment

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under the law of the State in which the judgment was rendered.’” Phelan, 541 Fed. App’x at 24
(quoting Johnson v. Watkins, 101 F.3d 792, 794 (2d Cir. 1996)). “The common-law doctrine of
collateral estoppel is designed to conserve the time and resources of the court and parties by
precluding a party from litigation an issue which was resolved against him in another action
where he had a full and fair opportunity to contest the determination.” People v. Plevy, 52
N.Y.2d 58, 64 (1980). Under New York law, a criminal defendant may be collaterally estopped
from reasserting claims that were fully and fairly adjudicated in a suppression hearing. See, e.g.,
People v. Paccione, 290 A.D.2d 567 (2d Dep’t 2002); People v. Aguilera, 185 A.D.2d 772 (1st
Dep’t 1992).
Sankara was provided with a full and fair hearing in the New York Supreme
Court. He had the opportunity to confront defendant O’Hara and to offer evidence as to the
circumstances surrounding his search and arrest. Justice Ferrera questioned O’Hara and counsel,
and made findings of facts and conclusions of law on the record and in open court. The
transcript of the suppression hearing totals 72 pages. Pursuant to Phelan and New York law, the
Court concludes that Sankara is collaterally estopped from re-litigating the claim that he was
subjected to an unlawful seizure.
Sankara’s claim that O’Hara conducted an unlawful search in violation of the
Fourth Amendment is therefore dismissed.
C. Sankara Does Not Plausibly Allege that He Was Subjected to Excessive
Force.
Sankara alleges that he “experienced personal/physical and emotional injuries . . .
.” caused by “defendants.” (Compl’t at 7.) Affording him special solicitude as a pro se litigant,
the Court construes this allegation to assert that O’Hara deprived Sankara of his right to be free
of excessive force under the Fourteenth Amendment.
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To state an excessive force claim, a complaint must plausibly allege that the
defendant “(1) acted under color of law; (2) used excessive force amounting to punishment; (3)
acted willfully; and (4) caused bodily injury.” United States v. Cote, 544 F.3d 88, 98 (2d Cir.
2008). The Complaint’s only allegations concerning any type of physical contact by a person
acting under color of law involve a strip search that occurred during Sankara’s incarceration, in
which Sankara was physically inspected for drugs and weapons. (Compl’t at 14.) The
Complaint does not allege any use of force at or around the time of Sankara’s arrest, and does
not assert that O’Hara made physical contact with him.
The Complaint does not plausibly state a claim of excessive force against O’Hara.
D. Sankara Does Not Plausibly Allege that He Has Been Subjected to
Unconstitutional Conditions of Confinement.
The Complaint asserts that Sankara has been subjected to “unconstitutional
conditions of confinement . . . .” (Compl’t at 7.) To allege that a plaintiff’s conditions of
confinement violate the Eighth Amendment’s prohibition against cruel and unusual punishment,
a complaint must plausibly allege “(1) objectively, the deprivation the inmate suffered was
sufficiently serious that he was denied the minimal civilized measure of life’s necessities, and (2)
subjectively, the defendant official acted with a sufficiently culpable state of mind, such as
deliberate indifference to inmate health or safety.” Walker v. Schult, 717 F.3d 119, 125 (2d Cir.
2013).
The Complaint includes some descriptions of Sankara’s confinement. It describes
a situation in which a corrections officer “saved” Sankara’s lunch for him. (Compl’t at 13.)
After Sankara ate the lunch, he experienced chest pains and “throat complications,” and
requested medical attention, which was denied to him by Officer Williams. (Compl’t at 13.) A
second corrections officer, Officer Francise, then observed Sankara vomiting, and immediately
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arranged for medical treatment. (Compl’t at 13.) Sankara was treated with antibiotics. (Compl’t
at 13.) Sankara thereafter refused to return to his original housing assignment because Officer
Williams worked there. (Compl’t at 13.) He also states that he “was afraid to eat the food they
were serving.” (Compl’t at 15.)
On August 29, 2015, Sankara was on his way to receive medication when officers
escorted him to a gym area with five other inmates. (Compl’t at 14.) The inmates were stripsearched, and an officer digitally penetrated Sankara. (Compl’t at 14.) One officer stated that
they were searching for drugs. (Compl’t at 14.) When Sankara asked Captain Plaska “why is
the officer violating my rights,” Plaska stated that they were looking for weapons. (Compl’t at
14.) Sankara observes that those answers were inconsistent. (Compl’t at 14.)
Sankara states that around October 31, 2015, he became “very sick,” was treated
with pharmaceuticals, and was administered a chest x-ray and an EKG. (Compl’t at 15.)
First, assuming that these allegations describe unconstitutional conditions of
confinement, the Complaint alleges no personal involvement on the part of O’Hara. Because
O’Hara was not personally involved in the conditions of Sankara’s confinement, any such claim
against him is dismissed. Grullon, 720 F.3d at 138 (plaintiff must show defendant’s personal
involvement in alleged constitutional deprivation); Walker, 717 F.3d at 125 (plaintiff must allege
a “sufficiently culpable state of mind, such as deliberate indifference to inmate health or
safety.”).
Second, generously construing the Complaint as alleging deliberate medical
indifference, the Complaint does not include facts that state a claim for relief. A plaintiff must
plausibly allege that a defendant acted with deliberate indifference to plaintiff’s serious medical
needs. Hilton v. Wright, 673 F.3d 120, 127 (2d Cir. 2012) (per curiam). A “serious medical

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need” exists if “the failure to treat a prisoner’s condition could result in further significant injury
or the unnecessary and wanton infliction of pain.” Harrison v. Barkley, 219 F.3d 132, 136 (2d
Cir.2000) (internal quotation marks omitted). A prison official is deliberately indifferent if he
subjectively knew of but disregarded “an excessive risk to inmate health or safety.” Smith v.
Carpenter, 316 F.3d 178, 184 (2d Cir. 2003). A delay in treatment resulting in serious harm may
support an inference that a defendant knew of the risks posed to the inmate. Hilton, 673 F.3d at
127. According to Sankara, Officer Francise quickly arranged for medical treatment when he
saw Sankara vomiting, even though Officer Williams took no action moments before. (Compl’t
at 13.) While under medical care, Sankara received antibiotics, prescription medication, overthe-counter medication, an x-ray and an EKG. (Compl’t at 13, 15.) The Complaint does not
plausibly allege that prison officials were deliberately indifferent to Sankara’s medical needs.
Third, to the extent that Sankara asserts that the strip search of August 29, 2015
was in violation of the Eighth Amendment, the Complaint fails to allege facts that plausibly state
a claim for relief. In conducting a strip search, an Eighth Amendment violation may occur if a
corrections officer makes “intentional contact with an inmate’s genitalia or other intimate area”
with “no penological purpose” and does so “with the intent to gratify the officer’s sexual desire
or humiliate the inmate . . . .” Crawford v. Cuomo, 796 F.3d 252, 257 (2d Cir. 2015). “[P]rison
officials looking for contraband may subject inmates to reasonable strip searches and cavity
searches,” and “prison security and safety may require frequent searches of an intensely personal
nature . . . .” Id. at 258. The Complaint describes Sankara’s discomfort with an “intensely
personal” search, but it also describes the officials’ legitimate interest in locating drugs or
weapons. (Compl’t at 14.) There is no allegation that the search occurred for purposes of sexual

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gratification or humiliation. The Complaint therefore does not plausibly allege an Eighth
Amendment violation related to the strip search of Sankara.
The Court therefore concludes that Sankara has failed to allege that he has been
subjected to unconstitutional conditions of confinement.
E. Sankara Does Not Plausibly Allege Intentional or Negligent Infliction of
Emotional Distress.
Sankara asserts that he was subjected to “intentional and negligent infliction of
emotional distress . . . .” (Compl’t at 7.) Intentional infliction of emotional distress “has four
elements: (i) extreme and outrageous conduct; (ii) intent to cause, or disregard of a substantial
probability of causing, severe emotional distress; (iii) a causal connection between the conduct
and injury; and (iv) severe emotional distress.” Howell v. New York Post Co., 81 N.Y.2d 115,
121 (1993). “The gravamen of a cause of action for the intentional infliction of emotional
distress is that the conduct complained of is especially calculated to cause, and does cause,
mental distress of a very serious kind.” Green v. Leibowitz, 118 A.D.2d 756, 757 (2d Dep’t
1986). A plaintiff may recover for the negligent infliction of emotional distress when a
defendant owes “a direct duty to the plaintiff . . . and a breach of that duty results in emotional
injury.” Id. For both negligent and intentional infliction of emotional distress, a plaintiff must
allege “that the defendant’s conduct is so outrageous in character, and so extreme in degree, as to
go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable
in a civilized society.” Berrios v. Our Lady of Mercy Med. Ctr., 20 A.D.3d 361, 362 (1st Dep’t
2005).
The Complaint does not allege conduct on the part of O’Hara that states a claim
of intentional or negligent infliction of emotional distress. Assuming that truth of Sankara’s
allegations that O’Hara searched him on the false premise that he was parked in front of a church
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and that O’Hara misleadingly used several different shield numbers during his dealings with
Sankara, such conduct is not “so extreme in degree, as to go beyond all possible bounds of
decency . . . .” Berrios, 20 A.D.3d at 362. As to O’Hara, the Complaint also does not identify
“threatening and intimidating conduct toward the accused that might give rise to an emotional
distress claim.” Id. at 363.
The Court therefore concludes that Sankara has failed to state a claim for
intentional or negligent infliction of emotional distress.
CONCLUSION.
Defendants’ motion to dismiss is GRANTED. The Clerk is directed to terminate
the motion and to enter judgment in favor of defendants Kusterer and O’Hara. (Docket # 104.)
This Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this
order would not be taken in good faith and in forma pauperis status is denied for purpose of an
appeal. See Coppedge v. United States, 369 U.S. 438, 443-45 (1962).
SO ORDERED.

Dated: New York, New York
December 4, 2017

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