Pilao Ong v. Park Manor (Middletown Park) Rehabiliation and Healthcare Center et al

Filing 316

OPINION & ORDER re: 282 MOTION for Summary Judgment filed by Robert Hertman, A. Dewey, Jason Farmingham, Thomas Kleveno. For the foregoing reasons, Defendants' Motion is granted in part and denied in part. Summary judgment is denied as to Plaintiff's claim that Kleveno illegally searched his bedroom on March 30, 2010, Plaintiff's claim that Farmingham illegally searched Plaintiff's refrigerator on August 20, 2010, and Plaintiff's excessive force and f ailure to intervene claims stemming from that same date. Defendants are entitled to summary judgment on all other claims. The Court will hold a conference on October 30, 2017 at 3:00 p.m. to set a schedule for trial. The Clerk of Court is directed to mail a copy of this Opinion to Plaintiff, and to terminate the pending Motion. (Dkt. No. 282.) SO ORDERED. (Conference set for 10/30/2017 at 02:00 PM before Judge Kenneth M. Karas.) Motion(s) terminated: 293 MOTION (Rule #38[Dkt# 215]) Plaintiff's, assert DEMANDING FOR JURY TRIAL) filed by Bienvenido Pilao Ong. (Signed by Judge Kenneth M. Karas on 9/27/2017) (mml) Modified on 9/28/2017 (rjm).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
BIENVENIDO PILAO ONG,
Plaintiff,
-v-

No. 12-CV-974 (KMK)
OPINION & ORDER

PARK MANOR (MIDDLETOWN PARK)
REHABILITATION AND HEALTHCARE
CENTER, et al.,
Defendants.

Appearances:
Bienvenido P. Ong
Middletown, NY
Pro Se Plaintiff
James A. Randazzo, Esq.
Portale Randazzo LLP
White Plains, NY
Counsel for Defendants Police Officers Jason Farmingham, Thomas Kleveno, and Andrew
Dewey
Caitlin G. Scheir, Esq.
John M. Murtagh, Jr., Esq.
Gaines, Novick, Ponzini, Cossu & Venditti, LLP
White Plains, NY
Counsel for Defendants Police Officers Jason Farmingham, Thomas Kleveno, and Andrew
Dewey
KENNETH M. KARAS, District Judge:
Plaintiff Bienvenido Ong (“Plaintiff”), proceeding pro se, brings this Action against
former Town of Wallkill police officers Jason Farmingham (“Farmingham”), Thomas Kleveno
(“Kleveno”), and Andrew Dewey (“Dewey,” and collectively, “Defendants”), alleging various

claims arising out of incidents that occurred on March 30 and August 20, 2010.1 Plaintiff
originally asserted a multitude of claims against numerous defendants, but those claims have
been dismissed with prejudice; only claims against Farmingham, Kleveno, and Dewey remain.
Before the Court is Defendants’ Motion for Summary Judgment (the “Motion”). For the
following reasons, the Motion is granted in part and denied in part.
I. Background
A. Factual Background
1. March 30, 2010
On March 30, 2010, Plaintiff resided in Middletown, New York, with his wife, two
daughters, Bernadette Ong (“Bernadette”) and Belinda Ong (“Belinda”), and his granddaughter.
(Defs.’ Rule 56.1 Statement (“Defs.’ 56.1”) ¶ 5 (Dkt. No. 281).) In the early evening of March
30, Belinda and Plaintiff had an argument about Belinda’s ex-boyfriend. (Id. ¶ 7.) During the
argument, Belinda called Bernadette, who in turn called 911. (Id. ¶ 8.) At approximately 5:30
p.m., Town of Wallkill police officers Dewey and Farmingham were dispatched to the Ong
residence on the report of a domestic disturbance. (Id. ¶ 9.) Upon arrival, Plaintiff let Dewey
and Farmingham into the house. (Id. ¶ 10.)2 Once inside, the officers spoke with Belinda. (Id.
¶ 11.)

1

It turns out Jason Farmingham is actually Jason Farningham, i.e., Plaintiff misspelled
Farmingham’s last name. For the sake of consistency, the Court will continue to use Plaintiff’s
spelling. See Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 555 n.* (1980) (“Although
respondents spell their name ‘Millhollin,’ throughout this litigation their name has been
misspelled as ‘Milhollin.’ Because legal research catalogs and computers are governed by the
principle of consistency, not correctness, we feel constrained to adhere to the erroneous
spelling.”).
Defendants refer to Plaintiff’s residence as an apartment, (see Defs.’ 56.1 ¶ 10), while
Plaintiff insists that he lived in a “residential house,” (see Aff’n of Service 7 (Dkt. No. 305)).
2

2

Belinda explained to the officers that she and Plaintiff got into an argument about
Belinda’s ex-boyfriend and that Plaintiff became very angry. (Id. ¶ 13.) During the argument,
Belinda explained, Plaintiff picked up a nine-inch kitchen knife and a glass vase and chased
Belinda around the house. (Id.)3 Belinda, who was holding her baby as she was being chased
around, thought that Plaintiff was going to kill her. (Id.; Decl. of James A. Randazzo, Esq., in
Supp. of Defs.’ Mot. for Summ. J. (“Randazzo Decl.”) Ex. O (Sworn Statement of Belinda Ong)
(Dkt. No. 284) (“I thought I was going to die as he was chasing me.”).) After the officers spoke
with Belinda, Plaintiff was arrested. (Defs.’ 56.1 ¶ 14.) Farmingham thereafter transported
Plaintiff to the Town of Wallkill Police Department. (Id. ¶ 15.)
Dewey remained at the scene to complete a Domestic Incident Report. (Id. ¶ 16.) While
Dewey was gathering information from Belinda for the report, Belinda told Dewey that Plaintiff
had a pistol permit and kept a pistol in the residence and asked Dewey to remove the gun. (Id.
¶¶ 17–18; see also Randazzo Decl. Ex. D (“Dewey Aff.”) ¶ 11.) Belinda then escorted Dewey to
a bedroom and told Dewey that the pistol was located in a case underneath her father’s bed.
(Dewey Aff. ¶ 12 (“Belinda walked me to a bedroom and told me that the pistol was in a green
case underneath her father’s bed.”).) Dewey entered Plaintiff’s bedroom and retrieved the
unlocked case from underneath Plaintiff’s bed. (Defs.’ 56.1 ¶ 20; see also Dewey Aff. ¶ 12 (“I
retrieved the case and opened it. The case was not locked.”); Randazzo Decl. Ex. H (“Pl.’s
Dep.”) 58 (“It’s in my bedroom, underneath, which my daughter doesn’t know and my wife

The Court will assume for purposes of this Opinion that Plaintiff lived in a house on March 30,
2010.
3

Plaintiff explained at his deposition that he picked up a knife in self-defense because
Belinda threatened to kill him. (See Decl. of James A. Randazzo, Esq., in Supp. of Defs.’ Mot.
for Summ. J. Ex. H, at 37, 44–45 (Dkt. No. 284).)
3

doesn’t know.”).) Inside the case was a pistol, 100 rounds of ammunition, and a pistol permit.
(Defs.’ 56.1 ¶ 21.) Dewey seized these items for “safe-keeping and to confirm whether the
permit was valid,” (Dewey Aff. ¶ 12), and additionally seized the kitchen knife and glass vase,
(Defs.’ 56.1 ¶ 23). The seized items were placed into evidence at the Wallkill Police
Department, and on March 31, 2010, the pistol and permit were turned over to Orange County
Deputy Sheriff Justin Butterfield (“Butterfield”). (Id. ¶¶ 24–25.)
Plaintiff was charged with the crimes of Menacing in the Second Degree and
Endangering the Welfare of a Child. (Id. ¶ 14.) Bail was set at $1,000 cash or $2,000 bond, but
Plaintiff was remanded and remained in jail until he was released on April 4, 2010. (See Second
Am. Compl. (“SAC”) ¶ 59 (Dkt. No. 32); id. Ex. 1.2.; Pl.’s Dep. 68.)4 On April 7, 2010, a
county court judge issued an Order of Suspension, directing Plaintiff to surrender all weapons to
the Orange County Sheriff’s Department. (Defs.’ 56.1 ¶ 28.)
2. August 20, 2010
On August 20, 2010, at approximately 3:30 p.m., Town of Wallkill police officers
Farmingham and Kleveno were dispatched to Apartment 228 of the Senior Horizons Apartment
Complex in Middletown, New York, after a person living in the complex reported that he or she
heard slapping noises and someone moaning inside of Plaintiff’s apartment. (Id. ¶¶ 29–30.)
After the officers knocked on the door to Apartment 228, Plaintiff, who resided in the apartment
with his 92 year-old mother, Felicidad Rana (“Rana”), opened the door. (Id. ¶¶ 31–32, 37.)

There is a second entry on the Docket that is also labeled as Plaintiff’s Second
Amended Complaint. (See Dkt. No. 23.) However, that submission is actually Plaintiff’s First
Amended Complaint, as Plaintiff did not file an amended complaint before that document was
docketed. (See Dkt.; see also Dkt. No. 25, at 2 (noting that Docket Number 23 is Plaintiff’s
Amended Complaint).)
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4

When Plaintiff opened the door to his apartment, the officers detected a foul odor.
(Defs.’ 56.1 ¶ 33.) Farmingham explained to Plaintiff that the officers had received a call about
a domestic disturbance in the apartment and needed to check on Rana’s welfare. (Id. ¶ 34.) At
first, Plaintiff refused to let the officers speak with Rana, but relented after Farmingham said the
officers would not leave without speaking to her. (Id. ¶¶ 35–36.)
Farmingham located Rana in a hospital-type bed in a bedroom in the apartment. (Id.
¶ 38.) Plaintiff slept on a futon in the same room. (Id. ¶ 39.) Plaintiff followed Farmingham
into the bedroom, but was asked to leave so that Farmingham could question Rana. (Id. ¶ 41;
Pl.’s Dep. 96 (“Q: Did you follow him into the room? A: I follow, and he puts me go out, and he
close the door.”).) Farmingham observed that Rana had numerous bruises on her arms and legs,
a black eye, and that there was a urine soaked towel on the bed. (Defs.’ 56.1 ¶¶ 42–43.)
Farmingham attempted to interview Rana, who was shaking and appeared frightened and
confused, but was unable to do so because of a language barrier. (Id. ¶¶ 44–45.) Farmingham
requested an ambulance and contacted Candice Crain (“Crain”) of Adult Protective Services.
(Id. ¶ 46.)5 After spending approximately five minutes with Rana, Farmingham exited the
bedroom. (See Pl.’s Dep. 96–97.) What happened next is subject to dispute.
According to Plaintiff, Farmingham walked into the kitchen area and immediately
handcuffed him. (Id. at 98.) After Farmingham placed Plaintiff in handcuffs, Farmingham
allegedly began beating Plaintiff. (Id. at 101.)6 First, Farmingham allegedly pushed Plaintiff

5

During her deposition, Crain noted that her name has since changed to Candice
Fotovich. (See Randazzo Decl. Ex. I, at 5.)
Plaintiff’s deposition testimony differs from what Plaintiff alleged in the Second
Amended Complaint, where Plaintiff alleged that Farmingham started biting Plaintiff after
Plaintiff was handcuffed. (See SAC ¶ 64.) The Court addresses this inconsistency later in this
Opinion.
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5

into a doorknob, (id.), and then punched Plaintiff several times on the left side and grabbed
Plaintiff’s arm, (id. at 105–08). The alleged beating lasted “somewhere” around 10 minutes. (Id.
at 113.) Plaintiff claims that Kleveno stood by and watched as Farmingham beat Plaintiff. (Id.
at 112–13.) While Plaintiff was still in the apartment, Farmingham went to Plaintiff’s
refrigerator and opened it, apparently in search of the source of an odor. (See SAC ¶ 67; Third
Am. Compl. (“TAC”) 14 (Dkt. No. 162) (“Then Farmingham went to near refrigerator while
Plaintiff[] was [in] handcuffs [and] open[ed] the refrigerator and detected a very strong odor of
something rotting.” (internal quotation marks omitted)).)7 Plaintiff was then taken out of the
apartment building and placed in a patrol car. (Pl.’s Dep. 125.) While Plaintiff was in the back
of the car, he observed an ambulance approaching his residence. (Id. at 127.)
Defendants’ version of events differs substantially from Plaintiff’s. According to
Defendants, after Farmingham requested an ambulance, emergency medical technicians Karen
Melendez (“Melendez”), Eric Shorette, and Robert Schertzer of the Town of Wallkill Volunteer
Ambulance Corps. arrived on the scene. (Defs.’ 56.1 ¶ 48.) Melendez observed that Rana had
bruises on her right eyelid, right cheekbone, both forearms, both wrists, right breast, both thighs,
right hip, and left ankle, and that her right foot was tied to the bed with a rope. (Id. ¶ 50;
Randazzo Decl. Ex. V (pictures of the rope and of the bruising on various parts of Rana’s
body).)8 Melendez untied the rope from Rana’s leg. (Defs.’ 56.1 ¶ 63.) Upon detecting a foul

Because many of the paragraphs contained in Plaintiff’s Third Amended Complaint are
not clearly numbered, the Court cites page numbers rather than paragraph numbers.
Additionally, Plaintiff breaks the Third Amended Complaint into different sections, and he does
not sequentially number across sections. In the interest of clarity, the Court will treat Plaintiff’s
Third Amended Complaint as sequentially numbered, without indicating that individual pages
are “unnumbered” in citation sentences.
7

8

Plaintiff denies tying Rana’s leg to the bed. (Pl.’s Dep. 117–18.)
6

odor in the apartment, Melendez directed a member of her crew to check the refrigerator to
determine whether it was the source of the odor. (Id. ¶ 51.)
While Melendez and her crew were tending to Rana, Plaintiff, Farmingham, and Kleveno
were standing in and around the apartment’s kitchen. (Id. ¶ 52.) At some point after Plaintiff
admitted that he had tied up Rana’s legs, (Randazzo Decl. Ex. E (“Farmingham Aff.”) ¶ 13),
Plaintiff was placed under arrest a “few feet” from the refrigerator, (Defs.’ 56.1 ¶¶ 53, 56).
Farmingham admits pushing Plaintiff against a closet door to gain control of Plaintiff, but denies
striking or punching Plaintiff. (Farmingham Aff. ¶¶ 14–15.) Plaintiff was then patted down for
safety reasons and placed into Kleveno’s police car. (Defs.’ 56.1 ¶ 59.) Kleveno took Plaintiff
to the police station. (Id. ¶ 60.)
There is little dispute about what happened after Plaintiff was removed from the
apartment. Crain arrived on the scene and attempted to speak with Rana. (Id. ¶ 61.) She
observed that one or both of Rana’s legs were tied to the bed. (Id. ¶ 62.) At approximately 4
p.m., the ambulance crew transported Rana to Horton Hospital. (Id. ¶ 64; Randazzo Decl. Ex. J,
at 31.) Crain followed the ambulance to the hospital, (Randazzo Decl. Ex. I, at 15–16), where
she called Farmingham and informed him that Rana had bruises on her breasts and upper thighs,
and that the bruising was consistent with abuse, (Defs.’ 56.1 ¶¶ 65–66). A nurse at the hospital
also noted that Rana’s bruising was consistent with abuse. (Id. ¶ 67.)
Around 5 p.m., Plaintiff’s neighbor, Brent Borgmann (“Borgmann”), went to Plaintiff’s
apartment. (Randazzo Decl. Ex. M (“Borgmann Dep.”) 11.)9 He observed Farmingham and

The Court questions the timing of Borgmann’s arrival at Plaintiff’s apartment.
Borgmann did not see Plaintiff in the apartment, (Borgmann Dep. 11–12), but did see Kleveno,
(id. at 13). This is peculiar because Kleveno was the officer responsible for transporting Plaintiff
to the police station. (See Defs.’ 56.1 ¶ 60.) It is unclear, however, whether Kleveno returned to
Plaintiff’s apartment after making the trip to the station.
9

7

Kleveno standing in the apartment. (Id. at 13.) Farmingham was “studying” an open laptop
computer on a table in the apartment, (id. at 15), and remarked that Plaintiff was worth a lot of
money, (id. at 29). Borgmann informed Plaintiff about this incident, (see Pl.’s Dep. 161), but
Plaintiff was not present, (see Borgmann Dep. 11–12). Farmingham denies searching Plaintiff’s
laptop. (Farmingham Aff. ¶ 22.)
While at the police station, at approximately 6 p.m., Plaintiff complained that he was
having an asthma attack. (Defs.’ 56.1 ¶ 71.) The Town of Wallkill Volunteer Ambulance Corps.
was called and a crew responded to the police station. (Id. ¶ 73.) Plaintiff was transported from
the police station to the Orange County Regional Medical Center, Horton Campus. (Id. ¶ 74.)
During transport, Plaintiff mentioned that his arm hurt, but did not say that he was beaten by the
police. (Id. ¶ 75; Pl.’s Dep. 134 (“I—I just mention it, I—my arm is hurting. I did not say I was
beaten up.”).) At the hospital, Plaintiff’s asthma was treated. (Defs.’ 56.1 ¶ 77.) Plaintiff did
not complain to the treating physician about his arm or state that he was beaten by the police.
(Id. ¶ 78; Pl.’s Dep. 138 (“Q: Did you tell the doctor you had been beaten? A: No. I did not.”);
id. at 140 (“Q: Did you mention your arm to the doctor? A: I did not mention the arm.”).)
The following day, Plaintiff went to see his primary care physician because Plaintiff
noticed that he had bruises on his stomach, both arms, and his torso. (Defs.’ 56.1 ¶ 80; Pl.’s
Dep. 139.) The doctor noted that Plaintiff had a “very small” bruise on his upper abdomen and
another bruise on the left side of his chest. (Randazzo Decl. Ex. CC, at 6.) The doctor further
noted that Plaintiff “appear[ed] to be doing well.” (Id.)
As a result of the August 20, 2011 incident, Plaintiff was charged with Endangering the
Welfare of an Elderly Person in the Second Degree, Unlawful Imprisonment in the Second
Degree, and Assault in the Third Degree. (Defs.’ 56.1 ¶ 69; Randazzo Decl. Ex. X.) The

8

charges were resolved when Plaintiff agreed to accept an Adjournment in Contemplation of
Dismissal. (Defs.’ 56.1 ¶ 70; Randazzo Decl. Ex. Y.)
B. Procedural Background
Plaintiff filed the instant Action on February 6, 2012. (See Dkt. No. 2.) At a conference
held on November 30, 2012, the Court granted Plaintiff leave to file an amended complaint. (See
Dkt. (minute entry for Nov. 30, 2012).) After successfully seeking numerous extensions of the
original January 15, 2013 deadline, Plaintiff ultimately filed his Amended Complaint on May 7,
2013. (See Dkt. No. 23.)10 The Amended Complaint named over 20 defendants. (See id.)
On July 11, 2013, the Court issued, sua sponte, an Order directing Plaintiff to submit a
second amended complaint. After reminding Plaintiff that, in granting him leave to file his
Amended Complaint, the Court “specifically directed [him] to be clearer as to the entities and/or
persons he intend[ed] to sue, the actionable conduct those entities or persons allegedly engaged
in, and the federal statutory or constitutional basis for his claims,” the Court noted that the
Amended Complaint was “extremely difficult to follow,” and that “it [was] in many respects less
clear than [the] original Complaint.” (Order 1–2 (Dkt. No. 25).) The Court was able to “discern
that Plaintiff intend[ed] to pursue malicious prosecution, excessive force, failure to intervene,
and false imprisonment claims against the law enforcement [d]efendants,” and it “construe[d]
some of the allegations in the Amended Complaint to support a claim against the law
enforcement [d]efendants for violating Plaintiff’s right to familial association with his mother.”
(Id. at 6.) However, the Court noted that “by presenting a great amount of disjointed and

10

The Amended Complaint is listed as the 23rd entry on the Docket, but many of the
exhibits can be found in the 22nd entry, which is the May 4, 2013 letter from Plaintiff to the
Court wherein Plaintiff submitted his Amended Complaint and accompanying exhibits. (See
Dkt. No. 22.)
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nonsequential information to the Court about the various events giving rise to Plaintiff’s arrests,
Plaintiff ha[d] rendered it impossible to comprehend what actually happened to him.” (Id.) It
therefore held that “[Plaintiff’s] claims against the law enforcement [d]efendants . . . [did] not
satisfy the pleading requirements of Rule 8.” (Id.) It also held that, with regard to the other
defendants, “Plaintiff [did] not clearly or specifically allege how they were personally involved
in any alleged wrongdoing or any basis for their liability under federal law,” and it therefore held
that “[t]he balance of the Amended Complaint . . . also [did] not satisfy the pleading
requirements established by Rule 8.” (Id.) The Court then granted Plaintiff “one more
opportunity to file an Amended Complaint . . . in order [to] correct the above deficiencies and to
allege clearly and concisely facts to support his claims.” (Id. at 7.)
The Second Amended Complaint was filed on September 24, 2013. (See Dkt. No. 32.)
The defendants named in the Second Amended Complaint moved to dismiss on various grounds.
(See Dkt. Nos. 41, 106, 110, 113, 120.) On September 29, 2014, the Court issued an Opinion &
Order, granting defendants’ motions in part and denying them in part. See Ong v. Park Manor
(Middletown Park) Rehab. & Healthcare Ctr., 51 F. Supp. 3d 319, 356 (S.D.N.Y. 2014) (“Ong
I”). The Opinion & Order granted Plaintiff leave to file a Third Amended Complaint, but only
against certain defendants. See id. at 356–57.
Plaintiff filed his Third Amended Complaint on November 19, 2014, alleging
substantially the same claims against many of the same defendants as those named in the Second
Amended Complaint. (See Dkt. No. 162.) On January 5, 2015, after the Court adopted a
briefing schedule on the defendants’ motions to dismiss the Third Amended Complaint, (see Dkt.
No. 163), Plaintiff filed another complaint—the Fourth Amended Complaint, (see Dkt. No. 172).

10

The Court accepted the filing and adjusted the briefing schedule for Defendants’ motions to
dismiss accordingly. (See Dkt. No. 173.)
On September 30, 2015, the Court issued an Opinion & Order, granting the defendants’
motions in part and denying them in part. See Ong v. Park Manor (Middletown Park) Rehab. &
Healthcare Ctr., No. 12-CV-974, 2015 WL 5729969 (S.D.N.Y. Sept. 30, 2015) (“Ong II”). As
relevant here, the Court dismissed all of the claims asserted in the Third and Fourth Amended
Complaints, except for: (1) Plaintiff’s claim that Dewey violated the Fourth Amendment during
the search and seizure that occurred on March 30, 2010; (2) Plaintiff’s false arrest, malicious
prosecution, unlawful search, and excessive force claims relating to the August 20, 2010
incident, as Farmingham conceded that Plaintiff had plausibly stated these claims; and (3)
Plaintiff’s claim against Kleveno for failure to intervene, as Kleveno conceded that Plaintiff had
plausibly stated a claim. See id. at *35, *38.
Following the conclusion of discovery, Defendants sought leave to file the instant
Motion. (See Dkt. No. 275.) Pursuant to a scheduling order, Defendants filed their Motion and
supporting papers on October 7, 2016. (See Dkt. Nos. 281–85.) Plaintiff filed papers in
opposition on November 9, 2016. (See Dkt. No. 288.) Defendants declined to file reply papers.
(See Dkt. No. 289.) Plaintiff subsequently filed numerous documents in opposition to
Defendants’ Motion. (See Dkt. Nos. 290–97, 303–08, 313–14.)
II. Discussion
The only causes of action to have survived to this stage are: (1) Plaintiff’s Fourth
Amendment claim against Dewey relating to the search of Plaintiff’s bedroom and seizure of
Plaintiff’s pistol on March 30, 2010; (2) Plaintiff’s false arrest, malicious prosecution, excessive
force, and unlawful search claims against Farmingham arising out of the August 20, 2010

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incident; and (3) Plaintiff’s failure to intervene claim against Kleveno for failing to intervene and
stop Farmingham’s use of excessive force on August 20, 2010.11 Defendants argue that they are
entitled to summary judgment on these claims because: (1) Belinda consented to the search of
Plaintiff’s bedroom that occurred on March 30, 2010; (2) Farmingham had probable cause to
arrest Plaintiff on August 20, 2010 based on observations Farmingham made inside of Plaintiff’s
apartment; (3) Farmingham did not use excessive force while arresting Plaintiff; and (4) the
searches that occurred on August 20, 2010 either did not happen or were conducted pursuant to
an exception to the warrant requirement. (See generally Defs.’ Mem. of Law in Supp. of Mot.
for Summ. J. (“Defs.’ Mem.”) (Dkt. No. 283).) Additionally, Defendants argue that even if they
violated Plaintiff’s constitutional rights, Defendants are entitled to qualified immunity because it
was objectively reasonable for them to believe that their actions did not violate clearly
established law. (Id. at 18.) The Court first addresses whether there are material disputes of fact

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Defendants believe that a claim for failure to supervise, monitor, or investigate against
Robert Hertman (“Hertman”) remains, (see Defs.’ Mem. of Law in Supp. of Mot. for Summ. J. 1
(Dkt. No. 283)), but the Court has already dismissed this claim to the extent that it was based on
Hertman’s role as a supervisor, see Ong II, 2015 WL 5729969, at *42 (“While the only nonconclusory aspect of these allegations arguably assert a single deficiency in Hertman’s
supervision—a failure to investigate Plaintiff’s complaint[]s about police misconduct—the
allegations do not establish (a) that Hertman was aware of the risks associated with his failure to
supervise, or that they were obvious, because Plaintiff has only alleged that Hertman was aware
of one instance of misconduct, as compared to repeated complaints of civil rights violations, or
(b) that there was any causal relationship between the alleged failure to supervise, the only
specific instance of which occurred in March 2010 or later, and the harm alleged, which
occurred, at [the] latest, in 2011. Accordingly, Plaintiff also fails to state a Monell claim against
Hertman.” (citations and internal quotation marks omitted)). To the extent that Plaintiff’s claim
is based on Hertman’s failure to respond to or investigate one of Plaintiff’s complaints, the claim
is without merit because Hertman did conduct an investigation into Plaintiff’s complaint. (See
Randazzo Decl. Ex. G (“Hertman Aff.”) ¶ 5 (“After receiving the complaint, I immediately
opened a Personnel Complaint and initially assigned Sergeant Robert McLymore to
investigate.”).) As a result of the investigation, Plaintiff was provided over 100 pages of
documents. (See id. ¶ 6; see also Randazzo Decl. Ex. HH.) After turning over the documents,
the police department and Town Supervisor determined that no further action was necessary.
(See Hertman Aff. ¶ 6.)
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precluding the entry of summary judgment on Plaintiff’s substantive claims. Then, in a separate
section, the Court addresses whether Defendants are entitled to qualified immunity for their
actions.
A. Standard of Review
Summary judgment is appropriate where 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); see also Psihoyos v. John Wiley & Sons, Inc., 748 F.3d 120, 123–24 (2d Cir.
2014) (same). “In determining whether summary judgment is appropriate,” a court must
“construe the facts in the light most favorable to the non-moving party and . . . resolve all
ambiguities and draw all reasonable inferences against the movant.” Brod v. Omya, Inc., 653
F.3d 156, 164 (2d Cir. 2011) (internal quotation marks omitted); see also Borough of Upper
Saddle River v. Rockland Cty. Sewer Dist. No. 1, 16 F. Supp. 3d 294, 314 (S.D.N.Y. 2014)
(same). Additionally, “[i]t is the movant’s burden to show that no genuine factual dispute
exists.” Vt. Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004); see also
Aurora Commercial Corp. v. Approved Funding Corp., No. 13-CV-230, 2014 WL 1386633, at
*2 (S.D.N.Y. Apr. 9, 2014) (same). “However, when the burden of proof at trial would fall on
the nonmoving party, it ordinarily is sufficient for the movant to point to a lack of evidence to go
to the trier of fact on an essential element of the nonmovant’s claim,” in which case “the
nonmoving party must come forward with admissible evidence sufficient to raise a genuine issue
of fact for trial in order to avoid summary judgment.” CILP Assocs., L.P. v.
PricewaterhouseCoopers LLP, 735 F.3d 114, 123 (2d Cir. 2013) (alteration and internal
quotation marks omitted). Further, “[t]o survive a [summary judgment] motion . . . . , [a
nonmovant] need[s] to create more than a ‘metaphysical’ possibility that his allegations were

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correct; he need[s] to ‘come forward with specific facts showing that there is a genuine issue for
trial,’” Wrobel v. County of Erie, 692 F.3d 22, 30 (2d Cir. 2012) (emphasis omitted) (quoting
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986)), and “cannot
rely on the mere allegations or denials contained in the pleadings,” Walker v. City of New York,
No. 11-CV-2941, 2014 WL 1244778, at *5 (S.D.N.Y. Mar. 26, 2014) (internal quotation marks
omitted) (citing, inter alia, Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009) (“When a motion
for summary judgment is properly supported by documents or other evidentiary materials, the
party opposing summary judgment may not merely rest on the allegations or denials of his
pleading . . . .”)).
“On a motion for summary judgment, a fact is material if it might affect the outcome of
the suit under the governing law.” Royal Crown Day Care LLC v. Dep’t of Health & Mental
Hygiene, 746 F.3d 538, 544 (2d Cir. 2014) (internal quotation marks omitted). At summary
judgment, “[t]he role of the court is not to resolve disputed issues of fact but to assess whether
there are any factual issues to be tried.” Brod, 653 F.3d at 164 (internal quotation marks
omitted); see also In re Methyl Tertiary Butyl Ether (“MTBE”) Prods. Liab. Litig., No. M21-88,
2014 WL 840955, at *2 (S.D.N.Y. Mar. 3, 2014) (same). Thus, a court’s goal should be “to
isolate and dispose of factually unsupported claims.” Geneva Pharm. Tech. Corp. v. Barr Labs.
Inc., 386 F.3d 485, 495 (2d Cir. 2004) (internal quotation marks omitted) (quoting Celotex Corp.
v. Catrett, 477 U.S. 317, 323–24 (1986)).
Finally, the Second Circuit has instructed that when a court considers a motion for
summary judgment, “special solicitude” should be afforded a pro se litigant, see Graham v.
Lewinski, 848 F.2d 342, 344 (2d Cir. 1988); Mercado v. Div. of N.Y. State Police, No. 96-CV235, 2001 WL 563741, at *7 (S.D.N.Y. May 24, 2001) (same), and a court should construe “the

14

submissions of a pro se litigant . . . liberally” and interpret them “to raise the strongest arguments
that they suggest,” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (italics
and internal quotation marks omitted).
B. Materials Considered
Plaintiff has filed numerous documents in opposition to Defendants’ Motion, but has not
filed a Local Rule 56.1 Statement or an affidavit setting forth his version of events. Many of the
filed documents are nearly incomprehensible and appear to be copied from various sources.
(See, e.g., Dkt. No. 291.) The Court may nonetheless treat “any verified complaint filed by . . .
[P]laintiff . . . as an affidavit.” Jackson v. Onondaga County, 549 F. Supp. 2d 204, 210
(N.D.N.Y. 2008); see also Patterson v. County of Oneida, 375 F.3d 206, 219 (2d Cir. 2004)
(“[A] verified pleading, to the extent that it makes allegations on the basis of the plaintiff’s
personal knowledge, and not merely on information and belief, has the effect of an affidavit and
may be relied upon to oppose summary judgment.”). Plaintiff’s Second Amended Complaint is
notarized, signed by Plaintiff, and states that Plaintiff, “being duly sworn . . . on an oath
according to law,” “swear[s] (or affirm[s]) that the information [he] ha[s] provided is true[ to] the
best of [his] knowledge.” (SAC 32; see also id. (“It is true facts above statements with
supporting documents.”).) Accordingly, the Court will treat the Second Amended Complaint as
an affidavit insofar as the statements contained therein are based upon Plaintiff’s personal
knowledge and do not conflict with his deposition testimony. The Court will additionally
consider unsworn statements made in other documents to the extent that they are based on
Plaintiff’s personal knowledge or are supported by other admissible evidence. See, e.g.,
Shepherd v. Fischer, No. 10-CV-1524, 2015 WL 1246049, at *8 n.22 (N.D.N.Y. Feb. 23, 2015)
(“Although the allegations are contained in [the] plaintiff’s unsworn memorandum of law in

15

support of his opposition, courts in this circuit routinely consider such statements in connection
with a motion for summary judgment where the proponent of the statements is a pro se litigant,
mindful of the duty to extend special solicitude to those individuals.”), adopted by 2015 WL
1275298 (N.D.N.Y. Mar. 18, 2015); Hamm v. Hatcher, No. 05-CV-503, 2013 WL 71770, at *7
(S.D.N.Y. Jan. 7, 2013) (considering unsworn statements in pro se plaintiff’s memorandum of
law, but “only to the extent that they [were] based on personal knowledge or supported by other
admissible evidence in the record”).
C. Analysis
1. The March 30, 2010 Incident
Plaintiff contends that Dewey violated his Fourth Amendment rights because Dewey
searched his bedroom and seized his pistol on March 31, 2010, the day after Plaintiff was
arrested for threatening Belinda. (See TAC 12.) The Court broadly construes Plaintiff’s Fourth
Amendment claim to be challenging the date on which the search and seizure occurred and,
regardless of the date, the constitutionality of the search and seizure.
The record easily dispels Plaintiff’s first contention. Plaintiff’s belief that Dewey
searched his home on March 31 is based on his interpretation of a police report drafted by
Orange County Deputy Sheriff Butterfield. (See Pl.’s Dep. 70–80.) The report is dated March
31, 2010, and details the events surrounding Dewey’s surrender of Plaintiff’s pistol to
Butterfield. (See Randazzo Decl. Ex. T.) Nothing in this report suggests that anything other than
the surrender of Plaintiff’s pistol occurred on March 31. Indeed, Plaintiff did not see Dewey at
his residence on March 31 because Plaintiff remained in jail, (Pl.’s Dep. 68), nor did anyone tell
Plaintiff that they saw Dewey at Plaintiff’s residence, (id. at 70). Thus, Dewey’s statements that
the pistol was seized on March 30 and turned over to Butterfield on March 31 are completely

16

uncontested. (See Dewey Aff. ¶¶ 14–15.) The undisputed facts show that Plaintiff’s pistol was
seized on March 30, 2010, Plaintiff’s unsupported allegations notwithstanding. See Wright, 554
F.3d at 266 (“When a motion for summary judgment is properly supported by documents or
other evidentiary materials, the party opposing summary judgment may not merely rest on the
allegations or denials of his pleading . . . .”).12
The Court turns now to the constitutionality of the search and seizure. Defendants
contend principally that the warrantless search was constitutional because Belinda consented to
the search of Plaintiff’s bedroom. (Defs.’ Mem. 5–6.)13 “It is a basic principle of Fourth
Amendment law that searches and seizures inside a home without a warrant are presumptively
unreasonable.” Payton v. New York, 445 U.S. 573, 586 (1980) (internal quotation marks
omitted). The Fourth Amendment’s prohibition of warrantless searches is, however, subject to
“‘a few specifically established and well-delineated exceptions.’” United States v. Aguiar, 737
F.3d 251, 259 (2d Cir. 2013) (quoting Katz v. United States, 389 U.S. 347, 357 (1967)). “One of
the specifically established exceptions to the warrant requirement . . . is that a search is
conducted pursuant to an occupant’s consent, provided that consent is given voluntarily.” United
States v. Marchese, 966 F. Supp. 2d 223, 226 (W.D.N.Y. 2013). This exception extends to

In opposition to Defendants’ Motion, Plaintiff has filed another document stating that
the Orange County Sheriff’s Office took possession of Plaintiff’s pistol on March 31, 2010. (See
Aff’n of Service Ex. 4, at 1.) This document does not contradict Dewey’s statement that the
pistol was seized on March 30 and then transferred to Butterfield on March 31. (See Dewey Aff.
¶¶ 14–15.)
12

The Court notes that Defendants’ justification for the seizure of the pistol has changed
over time. See Ong II, 2015 WL 5729969, at *38 (“Defendants contend, based on an exhibit to
the SAC that is referenced in the TAC and FAC, that Plaintiff’s firearm was seized when the
officer permissibly searched Plaintiff’s person and the area within his immediate control[,] . . .
the area from within which he might gain possession of a weapon or destructible evidence.”
(internal quotation marks omitted)).
13

17

circumstances in which “officers have obtained the consent of a third party who possesses
common authority over the premises.” Illinois v. Rodriguez, 497 U.S. 177, 179 (1990); see also
Georgia v. Randolph, 547 U.S. 103, 109 (2006) (“To the Fourth Amendment rule ordinarily
prohibiting the warrantless entry of a person’s house as unreasonable per se, one jealously and
carefully drawn exception recognizes the validity of searches with the voluntary consent of an
individual possessing authority.” (italics, citations, and internal quotation marks omitted)).
“[A] third party has authority to consent to a search of a home when that person (1) has
access to the area searched and (2) has either (a) common authority over that area, (b) a
substantial interest in the area, or (c) permission to gain access to the area.” Moore v. Andreno,
505 F.3d 203, 208–09 (2d Cir. 2007); see also United States v. McGee, 564 F.3d 136, 139 (2d
Cir. 2009) (“Authority to consent to a search rests on mutual use of the property by persons
generally having joint access or control for most purposes, so that it is reasonable to recognize
that any of the co-inhabitants has the right to permit the inspection in his own right and that the
others have assumed the risk that one of their number might permit the common area to be
searched.” (internal quotation marks omitted)). Even if the third party lacks actual authority to
consent, he or she “still may have apparent authority to consent to the search.” Moore, 505 F.3d
at 209. The existence of apparent authority “must be judged against an objective standard:
would the facts available to the officer at the moment warrant a [person] of reasonable caution in
the belief that the consenting party had authority over the premises?” Rodriguez, 497 U.S. at 188
(alteration and internal quotation marks omitted).
Here, it is undisputed that Belinda consented to the search of the bedroom in which the
pistol was located. (Defs.’ 56.1 ¶¶ 18–19.) Although Defendants brush over this fact, the record
establishes that Belinda was consenting to a search of Plaintiff’s bedroom and the unlocked case

18

that contained the pistol, which was discovered underneath Plaintiff’s bed. (See Dewey Aff. ¶ 12
(“Belinda walked me to a bedroom and told me that the pistol was in a green case underneath her
father’s bed.” (emphasis added)); Pl.’s Dep. 58 (“It’s in my bedroom, underneath, which my
daughter doesn’t know and my wife doesn’t know.” (emphasis added)).) Belinda undoubtedly
had access to Plaintiff’s bedroom, as she was a resident of the home, (Defs.’ 56.1 ¶ 5), but the
record is completely silent on whether Belinda had common authority over Plaintiff’s bedroom, a
substantial interest in the area, or permission to enter the bedroom, see United States v. Turner,
23 F. Supp. 3d 290, 304 (S.D.N.Y. 2014) (“With respect to the second prong of the . . . test,
courts have considered whether the person providing consent had ‘any real measure of control
over’ the area searched.” (quoting Moore, 505 F.3d at 210)). On the record before it, the Court
cannot conclude as a matter of law that Belinda had authority to consent to a search of her
father’s bedroom.
Defendants do little to rebut this conclusion. They argue merely that Belinda, “as a
resident in the [house,] . . . had actual authority to consent to the search and seizure.” (Defs.’
Mem. 6.) And the cases cited in support of this argument are cited only for the general
proposition that a third party may consent to a search so long as they possess “a sufficient
relationship to the searched premises to validate the search.” United States v. Trzaska, 859 F.2d
1118, 1120 (2d Cir. 1988). These cases are of little value because the record is silent on
Belinda’s “relationship” to Plaintiff’s bedroom. In short, the Court cannot ascertain whether
Belinda had “(a) common authority over the area, (b) a substantial interest in the area, or (c)
permission to gain access to the area.” Moore, 505 F.3d at 209.
Even if Belinda did possess authority to search Plaintiff’s bedroom, that authority would
not extend to the case containing the pistol that was discovered underneath Plaintiff’s bed. As

19

the Second Circuit has explained: “[W]hen considering the legality of a search of an object
within a home, courts have properly focused on the defendant’s expectation of privacy in the
object apart from his expectation of privacy in the home.” United States v. Haqq, 278 F.3d 44,
50 (2d Cir. 2002). Accordingly, the Court cannot conclude as a matter of law that Belinda had
authority to consent to a search of the case discovered underneath Plaintiff’s bed. See Turner, 23
F. Supp. 3d at 311 (“Here, [the third party] told the police prior to the search that the guns
belonged to [the defendant] and that he kept them in his backpack. [The third party] was not
asked any further questions to establish her ownership, control, or use of the backpack. Without
more, even if [the third party] had apparent authority to grant consent to search the apartment,
the consent could not extend to the search of a closed container known to be controlled by the
defendant that was located in his closet.”); United States v. Chisholm, No. 07-CR-795, 2009 WL
29313, at *7, *10 (E.D.N.Y. Jan. 5, 2009) (holding that a third party who had authority to
consent to a general search of the defendant’s bedroom did not have authority to consent to a
search of a jacket and a box located in the bedroom’s closet).
In the alternative, Defendants argue that even if Belinda lacked actual authority to
consent to a search of Plaintiff’s bedroom, “it would have been reasonable for Dewey to believe
that [Belinda] had apparent authority to consent” to the search. (Defs.’ Mem. 6.) Defendants
rely on the following factors to support their argument:
(1) [Belinda] was a resident of the [house] (2) asked her sister to call the police
while she was being attacked by [Plaintiff] (3) met with the officers in the [house]
(4) informed Dewey of the presence of the firearm (5) showed Dewey where the
firearm was located (6) asked him to remove it because of her fear that [Plaintiff]
would use it to harm her or her baby and (7) the container w[h]ere the firearm was
stored was not locked.
(Id.) Factors 2, 4, and 6 are irrelevant to a determination of whether Belinda had apparent
authority to consent to the search—they go more to whether the search was prudent. The
20

remaining factors indicate that Belinda would have authority to consent to a search of some areas
of the house, but say little about her ability to consent to a search of her father’s bedroom. Other
than the fact that Belinda resided in the house, (see Dewey Aff. ¶ 5), at the moment before the
search, Dewey seemingly knew nothing about Belinda’s access to Plaintiff’s bedroom, but
Dewey did know that it was Plaintiff’s bedroom, (see id. ¶ 12 (“Belinda walked me to a bedroom
and told me that the pistol was in a green case underneath her father’s bed.” (emphasis added)).
Because Dewey knew that the pistol was underneath Plaintiff’s bed at the time of the search, and
the record is silent as to whether Dewey inquired about Belinda’s ability to enter Plaintiff’s
bedroom, see Cullen v. Village of Pelham Manor, No. 03-CV-2168, 2009 WL 1507686, at *14
(S.D.N.Y. May 28, 2009) (“In situations where an officer is presented with ambiguous facts
related to authority, he or she has a duty to investigate further before relying on consent.”
(internal quotation marks omitted)), aff’d, 399 F. App’x 657 (2d Cir. 2010), the Court cannot
conclude as a matter of law that a person of “reasonable caution” would believe that Belinda had
authority to consent to a search of Plaintiff’s bedroom, Rodriguez, 497 U.S. at 188 (internal
quotation marks omitted). The critical fact is that Dewey knew that Belinda was consenting to a
search of Plaintiff’s bedroom, but apparently knew nothing about Belinda’s common authority
over the area or whether she had permission to gain access to the area.
The same problems also persist with respect to Belinda’s apparent authority to consent to
a search of the case found underneath Plaintiff’s bed. Perhaps it was prudent to remove the
pistol from the residence, but nothing in the record suggests that it was reasonable for Dewey to
believe that Belinda could consent to a search of the container. See Turner, 23 F. Supp. 3d at
311 (holding that even if a third party had apparent authority to consent to a search of an
apartment, the apparent authority did not extent to a search of a backpack in the defendant’s

21

closet); Chisholm, 2009 WL 29313, at *10 (holding that the defendant’s grandmother did not
have actual or apparent authority to consent to a search of certain items in the defendant’s
closet). Accordingly, the Court cannot conclude as a matter of law that Belinda’s consent
renders the search of Plaintiff’s belongings constitutional.
Conspicuously absent from Defendants’ papers is any discussion of whether the seizure
of the pistol violated the Fourth Amendment. “In the ordinary case, seizures of personal
property are unreasonable within the meaning of the Fourth Amendment, without more, unless
accomplished pursuant to a judicial warrant, issued by a neutral magistrate after a finding of
probable cause.” Harrell v. City of New York, 138 F. Supp. 3d 479, 488 (S.D.N.Y. 2015)
(alterations and internal quotation marks omitted), reconsideration granted, 2015 WL 9275683
(S.D.N.Y. Dec. 18, 2015). This presumption “may be overcome in some circumstances,”
Kentucky v. King, 563 U.S. 452, 459 (2011), but Defendants have not explained why the
presumption is inapplicable to the facts of this case. Perhaps Defendants intended to rely on
Belinda’s consent to justify the seizure of the pistol, (see Defs.’ Mem. 6 (“[A]s a resident in the
[home], Belinda Ong had actual authority to consent to the search and seizure.” (emphasis
added)), but Defendants have made no effort to explain, or cited any cases explaining, why
Belinda would have authority to consent to the seizure of Plaintiff’s pistol. The record
establishes that Dewey did not have a warrant, that Plaintiff had a pistol permit, that the pistol
was Plaintiff’s, that Plaintiff did not threaten Belinda with the pistol, and that Dewey seized the
pistol merely for “safe-keeping and to confirm whether the permit was valid.” (Dewey Aff.
¶ 12.) On these facts, the Court cannot conclude as a matter of law that the warrantless seizure
of Plaintiff’s pistol was justified by Belinda’s consent to search Plaintiff’s bedroom.

22

As Defendants invoke no other exceptions to the Fourth Amendment’s warrant
requirement and offer no explanation why a warrant could not have been sought, Defendants are
not entitled to summary judgment on this claim.
2. The August 20, 2010 Incident
Plaintiff asserts a series of causes of action arising from the August 20, 2010 incident.
First, Plaintiff contends that he was falsely arrested and maliciously prosecuted. Second,
Plaintiff contends that Farmingham assaulted him during the arrest and Kleveno failed to
intervene. Finally, the Court broadly construes Plaintiff’s allegations to be challenging the
searches of his person, refrigerator, and laptop.
a. False Arrest & Malicious Prosecution
To establish a claim for false arrest, a plaintiff must show that “(1) the defendant intended
to confine [the plaintiff], (2) the plaintiff was conscious of the confinement, (3) the plaintiff did
not consent to the confinement[,] and (4) the confinement was not otherwise privileged.” Willey
v. Kirkpatrick, 801 F.3d 51, 70–71 (2d Cir. 2015) (internal quotation marks omitted). An arrest
may be “otherwise privileged” when supported by probable cause. See Curley v. AMR Corp.,
153 F.3d 5, 13 (2d Cir. 1998) (noting that one example of such privilege is “confinement . . .
with probable cause”); see also Morel v. Reed, Nos. 11-CV-1808, 12-CV-5145, 2015 WL
1506132, at *4 (E.D.N.Y. Mar. 31, 2015) (defining the fourth element as “the confinement was
not otherwise privileged by probable cause” (alteration and internal quotation marks omitted)),
reconsideration denied, 2015 WL 3755976 (E.D.N.Y. June 16, 2015). To succeed on a claim for
malicious prosecution, a plaintiff must show “‘(1) that the defendant commenced or continued a
criminal proceeding against him; (2) that the proceeding was terminated in the plaintiff’s favor;
(3) that there was no probable cause for the proceeding; and (4) that the proceeding was

23

instituted with malice.’” Oxman v. Downs, 999 F. Supp. 2d 404, 412–13 (E.D.N.Y. 2014)
(quoting Kinzer v. Jackson, 316 F.3d 139, 143 (2d Cir. 2003)). A finding of probable cause is
also enough to overcome a malicious prosecution claim. See Dickerson v. Napolitano, 604 F.3d
732, 751 (2d Cir. 2010) (“Probable cause is a complete defense to any action for false arrest or
malicious prosecution in New York.”).
Defendants argue that summary judgment on these claims is appropriate because
Farmingham had probable cause to arrest Plaintiff. (See Defs.’ Mem. 10.) Probable cause for an
arrest (or imprisonment) exists where the arresting officer “has knowledge or reasonably
trustworthy information of facts and circumstances that are sufficient to warrant a person of
reasonable caution in the belief that the person to be arrested has committed or is committing a
crime.” Jaegly v. Couch, 439 F.3d 149, 152 (2d Cir. 2006) (internal quotation marks omitted).
By contrast, “[t]he standard for probable cause in the case of malicious prosecution is slightly
different—probable cause exists when the facts and circumstances ‘would lead a reasonably
prudent person in like circumstances to believe [the] plaintiff [to be] guilty.’” Thimmesch v. City
of New York, No. 12-CV-8882, 2013 WL 1558699, at *1 n.3 (S.D.N.Y. Apr. 9, 2013) (quoting
Colon v. City of New York, 455 N.E.2d 1248, 1250 (N.Y. 1983)). Either way, probable cause
exists when a law enforcement officer “receive[s] . . . information from some person, normally
the putative victim or eyewitness, unless the circumstances raise doubt as to the person’s
veracity.” Panetta v. Crowley, 460 F.3d 388, 395 (2d Cir. 2006) (citation omitted); see also
Singer v. Fulton Cty. Sheriff, 63 F.3d 110, 119 (2d Cir. 1995) (“An arresting officer advised of a
crime by a person who claims to be the victim, and who has signed a complaint or information
charging someone with the crime, has probable cause to effect an arrest absent circumstances
that raise doubts as to the victim’s veracity.”). “Probable cause may also exist where the officer

24

has relied on mistaken information, so long as it was reasonable for him to rely on it.”
Manganiello v. City of New York, 612 F.3d 149, 161 (2d Cir. 2010).
For a false arrest claim, “[p]robable cause is evaluated based on the facts available to the
officer or officers at the time of the arrest.” Harewood v. Braithwaite, 64 F. Supp. 3d 384, 398
(E.D.N.Y. 2014). In contrast, the existence of probable cause for a malicious prosecution claim
“is measured at the time of the judicial proceeding, not the time of the arrest, though if it existed
at the time of the arrest it continues to exist at the time of prosecution unless undermined by the
discovery of some intervening fact.” Berry v. Marchinkowski, 137 F. Supp. 3d 495, 537
(S.D.N.Y. 2015) (internal quotation marks omitted). Additionally, while “a claim for false arrest
will not lie so long as the arresting officer had probable cause to arrest the plaintiff for some
crime,” Jaegly, 439 F.3d at 150, “in the context of a malicious prosecution claim, probable cause
must relate to the specific crime charged in the criminal proceeding,” Genovese v. County of
Suffolk, 128 F. Supp. 3d 661, 669 (E.D.N.Y. 2015).
Here, ample probable cause existed to justify Plaintiff’s arrest and later prosecution for
Endangering the Welfare of an Elderly Person in the Second Degree, Unlawful Imprisonment in
the Second Degree, and Assault in the Third Degree. (Defs.’ 56.1 ¶ 69; Randazzo Decl. Ex.
X.)14 Plaintiff was arrested after Farmingham spent approximately five minutes with Rana. (See
Pl.’s Dep. 96–97.) During those five minutes, Farmingham observed that Rana had numerous
bruises on her arms and legs, a black eye, and that there was a urine soaked towel on the bed.

“A person is guilty of endangering the welfare of a vulnerable elderly person, or an
incompetent or physically disabled person in the second degree when, being a caregiver for a
vulnerable elderly person, or an incompetent or physically disabled person . . . [h]e or she
recklessly causes physical injury to such person.” N.Y. Penal Law § 260.32(2). “A person is
guilty of assault in the third degree when . . . [h]e recklessly causes physical injury to another
person.” Id. § 120.00(2). Finally, “[a] person is guilty of unlawful imprisonment in the second
degree when he restrains another person.” Id. § 135.05.
14

25

(Defs.’ 56.1 ¶¶ 42–43.) At the very least, these observations provided sufficient probable cause
to arrest Plaintiff for Endangering the Welfare of an Elderly Person in the Second Degree.
Farmingham later learned that Rana’s leg was tied to the bed, (Farmingham Aff. ¶ 17), and Crain
and a nurse at the hospital confirmed that the bruising on Rana’s body was consistent with abuse,
(see Defs.’ 56.1 ¶¶ 65–67). This information provided probable cause to charge Plaintiff with
Unlawful Imprisonment in the Second Degree and Assault in the Third Degree. Therefore,
Plaintiff’s false arrest and malicious prosecution claims have no merit; Defendants are entitled to
summary judgment on these claims.15
b. Excessive Force
Plaintiff contends that Farmingham beat him during the August 20, 2010 incident and
that Kleveno stood by and watched. (See Pl.’s Dep. 101–13.) “Claims that law enforcement
officers have used excessive force . . . in the course of an arrest, investigatory stop, or other
seizure of a free citizen [are] analyzed under the Fourth Amendment and its reasonableness
standard.” Usavage v. Port Auth. of N.Y. & N.J., 932 F. Supp. 2d 575, 591 (S.D.N.Y. 2013)
(internal quotation marks omitted). “[T]he reasonableness question is whether the officers’
actions were ‘objectively reasonable’ in light of the facts and circumstances confronting them,
without regard to their underlying intent or motivation.” Mickle v. Morin, 297 F.3d 114, 120 (2d
Cir. 2002). Accordingly, “courts should examine whether the use of force is objectively
unreasonable in light of the facts and circumstances confronting them . . . .” Jones v. Parmley,
465 F.3d 46, 61 (2d Cir. 2006) (internal quotation marks omitted). “Generally, the force used by

15

Additionally, Plaintiff cannot maintain a malicious prosecution claim because he
agreed to accept an Adjournment in Contemplation of Dismissal, (see Defs.’ 56.1 ¶ 70), which
“does not constitute a favorable termination for purposes of a malicious prosecution claim,”
Smith v. City of New York, No. 12-CV-4891, 2013 WL 5942224, at *3 (S.D.N.Y. Nov. 6, 2013);
see also Green v. Mattingly, 585 F.3d 97, 103–04 (2d Cir. 2009) (same).
26

the [d]efendant must be more than de minimis in order for an excessive force claim to be
actionable.” Musso v. City of New York, No. 05-CV-2511, 2008 WL 3200208, at *4 (E.D.N.Y.
July 24, 2008) (italics, alteration, and internal quotation marks omitted).
Defendants argue that they are entitled to summary judgment because Farmingham and
Kleveno did not use excessive force on Plaintiff. (See Defs.’ Mem. 11–13.) Disputes of material
fact, however, prevent the entry of summary judgment in Defendants’ favor. According to
Farmingham, the events surrounding Plaintiff’s arrest unfolded as follows:
14. [Plaintiff] was standing in the area of the kitchen. I told him that he was under
arrest. I asked [Plaintiff] to turn around and place his hands behind his back so that
he could be handcuffed. [Plaintiff] turned around and Officer Kleveno assisted me
as we attempted to handcuff him. [Plaintiff] struggled and moved his arms and
refused to allow us to handcuff him. In order to gain control and to place handcuffs
on [Plaintiff], we had to push him from behind against a closet door adjacent to the
kitchen. The refrigerator was just a few feet from where [Plaintiff] was arrested
and handcuffed. I do not recall which one of us handcuffed [Plaintiff].
15. At no time, either before or after [Plaintiff] was handcuffed, did I or Officer
Kleveno strike or punch [Plaintiff]. We used a minimal amount of force to gain
control and to handcuff him. I did not observe any injuries to [Plaintiff], and he did
not complain about any injuries or that he was in pain.
(Farmingham Aff. ¶¶ 14–15.) Kleveno’s version of events is similar to that of Farmingham’s.
(Randazzo Decl. Ex. F ¶¶ 13–14.)
Plaintiff’s version of events differs substantially from that of Defendants. According to
Plaintiff, Farmingham pushed Plaintiff into a doorknob, (Pl.’s Dep. 101), and then punched
Plaintiff several times on the left side and grabbed Plaintiff’s arm, (id. at 105–08). The beating
lasted “somewhere” around 10 minutes. (Id. at 113; see also id. at 122 (“Q: Sir, and you testified
that for about [10] minutes Officer Farmingham punched you; correct? A: Yes, beating me
up.”); id. at 138 (“Q: Sir, is it your testimony that on August 20th, a police officer beat you for

27

[10] minutes; is that correct? A: Approximate[ly] [10] minutes.”).) While Farmingham was
beating Plaintiff, Kleveno allegedly watched and did nothing to intervene. (Id. at 112–13.)
Defendants argue that the Court should find Plaintiff incredible as a matter of law
because Plaintiff initially alleged that Farmingham bit him, but is now claiming that Farmingham
beat him. (See Defs.’ Mem. 12–13.) Defendants’ argument misses the mark because the cases
they cite are readily distinguishable. In two of the cases, the court viewed a video to determine
that no reasonable juror could find in favor of the plaintiff. See McKinney v. Dzurenda, 555 F.
App’x 110, 111–12 (2d Cir. 2014); Kalfus v. N.Y. & Presbyterian Hosp., 476 F. App’x 877, 880–
81 (2d Cir. 2012). No video exists in this case. In the only other case cited—Jeffreys v. City of
New York, 426 F.3d 549 (2d Cir. 2005)—the Second Circuit concluded that the defendants were
entitled to summary judgment in part because the plaintiff’s testimony was “unsubstantiated by
any other direct evidence” and was “so replete with inconsistencies and improbabilities that no
reasonable juror would undertake the suspension of disbelief necessary to credit the allegations
made in his complaint.” Id. at 555 (internal quotation marks omitted). Here, Plaintiff’s
testimony is corroborated by documentary evidence, (see Randazzo Decl. Ex. CC, at 6 (noting a
“very small” bruise on Plaintiff’s abdomen and a bruise on Plaintiff’s chest)), and his testimony
is not replete with inconsistencies. Indeed, Plaintiff testified that he may have mistakenly typed
“bite” in his pleadings when he meant “beat” because English is not his first language. (See Pl.’s
Dep. 123.) During discovery, Plaintiff consistently testified that he was beaten by Farmingham.
Thus, the Court does not find that Plaintiff’s testimony is incredible as a matter of law.
Defendants contend finally that even if Farmingham and Kleveno did use excessive force
while arresting Plaintiff, Defendants are entitled to summary judgment because Plaintiff did not
sustain a cognizable injury. (See Defs.’ Mem. 13.) The Court finds no merit in Defendants’

28

contention. First, Defendants’ argument overlooks evidence that supports Plaintiff’s position.
Defendants argue that Plaintiff did not complain of “any physical injuries to the ambulance
crew,” (id.), but Plaintiff specifically testified that he complained to the ambulance crew that his
arm hurt, (see Pl.’s Dep. 134 (“I—I just mention it, I—my arm is hurting. I did not say I was
beaten up.”)), and Plaintiff’s medical records reveal that Plaintiff’s doctor observed a “very
small” bruise on Plaintiff’s abdomen and a second bruise on Plaintiff’s chest on August 21,
2010, the day after he was allegedly beaten by Farmingham, (see Randazzo Decl. Ex. CC, at 6).
Second, courts in the Second Circuit have rejected Defendants’ argument on several occasions.
“The slightness of injury suffered as a result of the challenged use of force . . . does not preclude
a finding that such force was objectively unreasonable.” Adedeji v. Hoder, 935 F. Supp. 2d 557,
567 (E.D.N.Y. 2013). In fact, courts have allowed excessive force claims to stand where the
plaintiff suffered only minor injuries. See, e.g., Maxwell v. City of New York, 380 F.3d 106, 108
(2d Cir. 2004) (“[W]e have permitted a plaintiff’s claim to survive summary judgment on
allegations that, during the course of an arrest, a police officer twisted her arm, ‘yanked’ her, and
threw her up against a car, causing only bruising.”); Castro v. County of Nassau, 739 F. Supp. 2d
153, 176–77 (E.D.N.Y. 2010) (allowing excessive force claim to proceed where injury sustained
consisted of handcuff imprints, redness and soreness on wrists only); Hamilton v. City of New
York, Nos. 07-CV-3633, 07-CV-3825, 2009 WL 2226105, at *11 (E.D.N.Y. July 23, 2009)
(“That [the] plaintiff did not suffer a serious injury here does not entitle [the] defendants to
summary judgment on [the] plaintiff’s excessive force claim.”); Sforza v. City of New York, No.
07-CV-6122, 2009 WL 857496, at *15 (S.D.N.Y. Mar. 31, 2009) (“A plaintiff need not
demonstrate serious injury to prevail in an excessive force claim; bruising and other

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nonpermanent injuries are sufficient.”). Accordingly, Farmingham is not entitled to summary
judgment on this claim.
With respect to Kleveno, “[a] police officer ‘has an affirmative duty to intercede on the
behalf of a citizen whose constitutional rights are being violated in his presence by other
officers.’” Henry-Lee v. City of New York, 746 F. Supp. 2d 546, 565 (S.D.N.Y. 2010) (quoting
O’Neill v. Krzeminski, 839 F.2d 9, 11 (2d Cir. 1988)). “To establish a claim for failure to
intervene, a plaintiff must show (i) the officer’s failure ‘permitted fellow officers to violate [the]
plaintiff’s clearly established statutory or constitutional rights,’ and (ii) it was ‘objectively
unreasonable for him to believe that his fellow officers’ conduct did not violate those rights.’”
Buchy v. City of White Plains, No. 14-CV-1806, 2015 WL 8207492, at *3 (S.D.N.Y. Dec. 7,
2015) (alteration omitted) (quoting Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 129 (2d Cir.
1997)). Kleveno is not entitled to summary judgment on this claim because a reasonably jury
could conclude that Farmingham was violating Plaintiff’s clearly established right to be free
from excessive force and Kleveno did not intervene, even though there allegedly was sufficient
time for an intervention. See Green v. Montgomery, 219 F.3d 52, 59 (2d Cir. 2000) (“It is
beyond dispute that the right to be free from excessive force has long been clearly established.”).
c. The Searches
Broadly construing Plaintiff’s filings, Plaintiff challenges the searches of his person,
laptop, and refrigerator on August 20, 2010. Defendants contend that the searches were either
conducted pursuant to an exception to the warrant requirement or did not happen at all. (See
Defs.’ Mem. 14–15.)
Farmingham is entitled to summary judgment on Plaintiff’s claim that Farmingham
illegally searched Plaintiff’s laptop because there is no admissible evidence that any such search

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occurred. Plaintiff testified that Farmingham searched his laptop, but Plaintiff’s was not present
during the alleged search, (see Borgmann Dep. 11–12), and there is no evidence to corroborate
Plaintiff’s assertion. Borgmann testified only that he observed Farmingham “studying”
Plaintiff’s laptop, (id. at 15), and heard Farmingham remark that Plaintiff was worth a lot of
money, (id. at 29), but Borgmann did not testify that he saw Farmingham open or touch the
computer. Indeed, Plaintiff admitted that his laptop was open when Farmingham and Kleveno
entered the apartment. (Pl.’s Dep. 94.) Thus, Farmingham’s statement that he did not search
Plaintiff’s laptop is unrebutted. (See Farmingham Aff. ¶ 22.)
Defendants also are entitled to summary judgment on Plaintiff’s claim that he was
illegally patted down following his arrest because “[a]mong the exceptions to the warrant
requirement is a search incident to lawful arrest.” Arizona v. Gant, 556 U.S. 332, 338 (2009).
With respect to the search of the refrigerator, Defendants argue that the search never
occurred, and even if it did, it was justified based on exigent circumstances or as a search
incident to arrest. (See Defs.’ Mem. 14.) Despite Farmingham’s statement that he did not search
Plaintiff’s refrigerator, (Farmingham Aff. ¶ 22), construing the facts in the light most favorable
to Plaintiff, the Court assumes that Farmingham searched the refrigerator, (see Pl.’s Dep. 121).
Because the search of the refrigerator occurred without a warrant, to obtain summary judgment
the search must fit within one of the exceptions to the Fourth Amendment’s warrant requirement.
Thompson v. Louisiana, 469 U.S. 17, 21 (1984) (“[F]or [a warrantless] search to be valid, it must
fall within one of the narrow and specifically delineated exceptions to the warrant
requirement.”).
“It is well-settled . . . that the warrant requirement of the Fourth Amendment must yield
in those situations in which exigent circumstances require law enforcement officers to act

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without delay.” United States v. Moreno, 701 F.3d 64, 72–73 (2d Cir. 2012) (internal quotation
marks omitted). “The ‘core question’ in applying the exigent-circumstances doctrine is ‘whether
the facts, as they appeared [before the search], would lead a reasonable, experienced officer to
believe that there was an urgent need to render aid or take action.’” United States v. Caraballo,
831 F.3d 95, 102 (2d Cir. 2016) (quoting United States v. Klump, 536 F.3d 113, 117–18 (2d Cir.
2008)), cert. denied, 137 S. Ct. 654 (2017). “One exigency obviating the requirement of a
warrant is the need to assist persons who are seriously injured or threatened with such injury.”
Brigham City v. Stuart, 547 U.S. 398, 403 (2006). Defendants explain that it would have been
reasonable for Farmingham to believe that there was an ongoing emergency in the apartment
permitting Farmingham to open the refrigerator, because he observed several bruises on Rana’s
skin and the apartment smelled of a foul odor. (See Defs.’ Mem. 14.) The Court disagrees.
Farmingham and Dewey were confronted with a foul odor upon entering Plaintiff’s apartment,
(see Defs.’ 56.1 ¶ 33), but the search of the refrigerator did not occur until after the apartment
was secured, and nothing in the record suggests that anything in the refrigerator posed a threat to
any of the apartment’s occupants. Therefore, the search of the refrigerator cannot be justified by
reliance on exigent circumstances.
Defendants also justify the search of Plaintiff’s refrigerator on the ground that it was part
of a search incident to Plaintiff’s arrest. Following a valid arrest, “police may conduct a search
of the arrestee’s person and the area within his immediate control—construing that phrase to
mean the area from within which he might gain possession of a weapon or destructible
evidence.” United States v. Gandia, 424 F.3d 255, 261 (2d Cir. 2005) (internal quotation marks
omitted); see also Davis v. United States, 564 U.S. 229, 232 (2011) (“[A] police officer who
makes a lawful arrest may conduct a warrantless search of the arrestee’s person and the area

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within his immediate control.” (internal quotation marks omitted)). Plaintiff does not dispute
that he was arrested before the search of the refrigerator occurred. (See TAC 14 (alleging that
“Farmingham went to near refrigerator while Plaintiff[] was [in] handcuffs”).) While
Farmingham asserts that the refrigerator was located “a few feet from where [Plaintiff] was
arrested and handcuffed,” (Farmingham Aff. ¶ 14), the Court cannot discern whether the
refrigerator was within Plaintiff’s “grab area” based on this testimony, Gandia, 424 F.3d at 261
(internal quotation marks omitted). Farmingham’s statement that the refrigerator was “a few feet
away” could mean three feet away or across the room. Accordingly, material issues of fact
preclude the entry of summary judgment on this issue.
Accordingly, Defendants are entitled to summary judgment on Plaintiff’s claim that he
was illegally searched following his arrest and that Farmingham illegally searched his computer,
but Defendants are not entitled to summary judgment on Plaintiff’s claim that his refrigerator
was illegally searched.
3. Qualified Immunity
Defendants argue that even if material disputes of fact preclude summary judgment in
their favor, Plaintiff’s claims should nonetheless be dismissed because Defendants are entitled to
qualified immunity. (See Defs.’ Mem. 18–22.) The Court has concluded that Defendants are
entitled to summary judgment on Plaintiff’s false arrest, malicious prosecution, and certain of
Plaintiff’s Fourth Amendment claims. Therefore, the focus of the Court’s inquiry is on whether
Dewey is entitled to qualified immunity for the search of Plaintiff’s bedroom on March 30, 2010,
whether Farmingham is entitled to qualified immunity for the search of Plaintiff’s refrigerator on
August 20, 2010, and whether Farmingham and Kleveno are entitled to qualified immunity for
the alleged use of excessive force and failure to intervene that occurred on that same date.

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“The doctrine of qualified immunity protects government officials from liability for civil
damages insofar as their conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223,
231 (2009) (internal quotation marks omitted). “[Qualified] immunity protect[s] government’s
ability to perform its traditional functions . . . by helping to avoid unwarranted timidity in
performance of public duties, ensuring that talented candidates are not deterred from public
service, and preventing the harmful distractions from carrying out the work of government that
can often accompany damages suits.” Filarsky v. Delia, 566 U.S. 377, 389–90 (2012) (second
alteration in original) (internal quotation marks omitted). Qualified immunity shields a
defendant from standing trial or facing other burdens of litigation “if either (a) the defendant’s
action did not violate clearly established law, or (b) it was objectively reasonable for the
defendant to believe that his action did not violate such law.” Johnson v. Newburgh Enlarged
Sch. Dist., 239 F.3d 246, 250 (2d Cir. 2001) (internal quotation marks omitted). Summary
judgment may be granted on the “basis of a qualified immunity defense premised on an assertion
of objective reasonableness [if] the defendant show[s] that no reasonable jury, viewing the
evidence in the light most favorable to the [p]laintiff, could conclude that the defendant’s actions
were objectively unreasonable in light of clearly established law.” O’Bert ex rel. Estate of
O’Bert v. Vargo, 331 F.3d 29, 37 (2d Cir. 2003) (second alteration in original) (internal quotation
marks omitted).
The Supreme Court has held that when evaluating an asserted qualified immunity
defense, a court may begin by examining whether a reasonable law enforcement officer in the
defendant’s position would have believed his or her conduct would violate the asserted
constitutional right. See Pearson, 555 U.S. at 236 (overruling Saucier v. Katz, 533 U.S. 194

34

(2001)), and explaining that judges are no longer required to begin by deciding whether a
constitutional right was violated but are instead “permitted to exercise their sound discretion in
deciding which of the two prongs of the qualified immunity analysis should be addressed first”).
The Supreme Court has further instructed that “[t]o be clearly established, a right must be
sufficiently clear that every reasonable official would [have understood] that what he [was]
doing violate[d] that right. In other words, existing precedent must have placed the statutory or
constitutional question beyond debate.” Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012)
(second alteration in original) (citations and internal quotation marks omitted). Furthermore,
“the right allegedly violated must be established, not as a broad general proposition, but in a
particularized sense so that the contours of the right are clear to a reasonable official.” Id. at
2094 (citations and internal quotation marks omitted). Otherwise stated, to determine whether a
right is clearly established, courts must determine “whether (1) it was defined with reasonable
clarity, (2) the Supreme Court or the Second Circuit has confirmed the existence of the right, and
(3) a reasonable defendant would have understood that his conduct was unlawful.” Doninger v.
Niehoff, 642 F.3d 334, 345 (2d Cir. 2011).
a. The March 30, 2010 Search & Seizure
Defendants make two arguments with respect to the March 30, 2010 search of Plaintiff’s
bedroom: (1) it was reasonable for Dewey to believe that Belinda had apparent authority to
consent to the search of Plaintiff’s bedroom, and (2) the “law regarding third-party consent to
access in a shared dwelling under the circumstances [Dewey] confronted was not clearly
established at the time of the search.” (See Defs.’ Mem. 19–20.)
Some courts have held that a defendant is entitled to qualified immunity if it was
objectively reasonable for the defendant to believe that the person consenting to the search had

35

apparent authority to consent. See, e.g., Young v. Suffolk County, 922 F. Supp. 2d 368, 393 n.9
(E.D.N.Y. 2013) (holding that a defendant was entitled to qualified immunity because it was
reasonable for him to believe that the plaintiff had apparent authority to consent); Krug v. County
of Rennselaer, No. 04-CV-640, 2010 WL 3937319, at *5 (N.D.N.Y. Oct. 5, 2010) (holding that a
defendant was entitled to qualified immunity for “the search of [a] van because it was objectively
reasonable for him [to] conclude that the search was constitutionally permitted because it had
been consented to by a person having apparent authority over the vehicle”). However, the Court
has already determined that it cannot conclude as a matter of law that it was objectively
reasonable for Dewey to believe that Belinda had authority to consent to a search of Plaintiff’s
bedroom, or the case underneath Plaintiff’s bed, and to then seize items found within that case.
Dewey knew that Belinda was a resident of Plaintiff’s home and that Belinda knew that Plaintiff
kept a pistol in a case underneath his bed, (Dewey Aff. ¶¶ 5, 12), but the record is silent on
whether Dewey knew anything more about Belinda’s relationship to Plaintiff’s bedroom or the
objects in it. And, as discussed above, even if Belinda could consent to a search of Plaintiff’s
bedroom, Belinda’s consent would not extend to a search of the case in which the pistol was
located, or the pistol’s seizure. See Haqq, 278 F.3d at 50. At the time, Dewey believed that
Belinda “had the authority to consent to a search of anything in the [home],” (id. ¶ 15), but that is
not the law, see Turner, 23 F. Supp. 3d at 311 (holding that even if a third party had apparent
authority to consent to a search of an apartment, the apparent authority did not extent to a search
of a backpack in the defendant’s closet); Chisholm, 2009 WL 29313, at *10 (holding that the
defendant’s grandmother did not have actual or apparent authority to consent to a search of
certain items in the defendant’s closet).

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Defendants’ second argument—that the law on third-party consent was not clearly
established—similarly is unfounded. Prior to Dewey’s search of Plaintiff’s bedroom, “[i]t [was]
well-settled in this circuit that ‘third party consent to a search will validate the search if two
prongs are present: first, the third party had access to the area searched, and, second, either: (a)
common authority over the area; or (b) a substantial interest in the area; or (c) permission to gain
access.’” Ehrlich v. Town of Glastonbury, 348 F.3d 48, 53 (2d Cir. 2003) (quoting United States
v. Davis, 967 F.2d 84, 87 (2d Cir. 1992)); see also United States v. Snype, 441 F.3d 119, 136 (2d
Cir. 2006) (same). Here, the record is completely silent on the second prong. Accordingly,
Dewey is not entitled to qualified immunity with respect to his search of Plaintiff’s bedroom.
The Court notes that Defendants have not presented any argument justifying the seizure
of Plaintiff’s pistol; their papers focus on the underlying search. (See generally Defs.’ Mem.; see
also Dewey Aff. ¶ 15 (“Since Belinda lived in the [home], I believed that she had the authority to
consent to a search of anything in the [home].” (emphasis added)).) Because Dewey is not
entitled to qualified immunity with respect to the search, it follows that he is not entitled to
qualified immunity for the seizure of the pistol and other items found in the case underneath
Plaintiff’s bed. However, even if Dewey were entitled to qualified immunity on the search,
Defendants’ failure to make an argument concerning the seizure would preclude entry of
summary judgment on that issue. Accordingly, Plaintiff’s claim that Dewey unlawfully searched
his bedroom and seized his pistol survives Defendants’ Motion.
b. The Search of Plaintiff’s Refrigerator
Defendants devote one line of their brief to arguing that “Farmingham is entitled to
qualified immunity on the unlawful search claims because there was at least arguable probable
cause to search.” (Defs.’ Mem. 21.) “Arguable probable cause exists if either (a) it was

37

objectively reasonable for the officer to believe that probable cause existed, or (b) officers of
reasonable competence could disagree on whether the probable cause test was met.” Walczyk v.
Rio, 496 F.3d 139, 163 (2d Cir. 2007) (internal quotation marks omitted). Defendants do not
explain why it was objectively reasonable for Farmingham to believe that he had probable cause
to search Plaintiff’s refrigerator. Indeed, they offer no explanation as to what evidence
Farmingham hoped to recover from the search. The search also may be justified on the ground
that the refrigerator was within Plaintiff’s grab area at the time it occurred, but as discussed
above, the current record precludes such a finding. Accordingly, Farmingham is not entitled to
qualified immunity for the search of Plaintiff’s refrigerator.
c. The Excessive Force & Failure to Intervene Claims
Defendants argue that Farmingham and Kleveno are entitled to qualified immunity
because Farmingham’s conduct falls in the “sometimes hazy border between excessive and
acceptable force.” (Defs.’ Mem. 21 (internal quotation marks omitted).) The Court disagrees.
Crediting Plaintiff’s version of events, Farmingham beat Plaintiff for approximately 10 minutes.
Accordingly, Farmingham is not entitled to qualified immunity on this issue. See Barcomb v.
Kraeger, No. 14-CV-1159, 2016 WL 2644885, at *7 (D. Conn. May 5, 2016) (denying summary
judgment on issue of qualified immunity where the record revealed that “a reasonable jury could
conclude that the officers employed unreasonable force against [the plaintiff] in violation of her
clearly established constitutional right to be free from excessive force”). The Court reaches the
same conclusion with respect to Kleveno, who allegedly stood by as Plaintiff was beaten by
Farmingham. See Jackson v. City of New York, 939 F. Supp. 2d 235, 258 (E.D.N.Y. 2013)
(denying summary judgment on issue of qualified immunity where two defendants failed to
intervene to stop a third defendant’s use of excessive force).

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III. Conclusion
For the foregoing reasons, Defendants' Motion is granted in part and denied in part.
Summary judgment is denied as to Plaintiff's claim that Kleveno illegally searched his bedroom
on March 30, 20 I 0, Plaintiff's claim that Farmingham illegally searched Plaintiff's refrigerator
on August 20, 20 I 0, and Plaintiff's excessive force and failure to intervene claims stemming
from that same date. Defendants are entitled to summary judgment on all other claims. The
Court will hold a conference on October 30, 2017 at 3:00 p.m. to set a schedule for trial.
The Clerk of Court is directed to mail a copy of this Opinion to Plaintiff, and to terminate
the pending Motion. (Dkt. No. 282.) 16
SO ORDERED.
Septembeeft , 2017
White Plains, New York

Dated:

16

The Clerk of Court is further directed to terminate the three other motions pending on
the Docket, (Dkt. Nos. 293 , 303 , 307), as Plaintiff inappropriately labeled those documents as
motions.
39