Davis Payne v. Galie et al
DECISION AND ORDER granting 84 Defendants' Motion for Summary Judgment; denying 87 Plaintiff's Motion for Summary Judgment; denying 90 Plaintiff's Motion for a decision in her favor. The Clerk of Court is directed to close the case. SO ORDERED. Signed by Hon. Elizabeth A. Wolford on 8/29/17. (JPL) (A copy of this Decision and Order has been mailed to Plaintiff)-CLERK TO FOLLOW UP-
UNITED STATES DISTRJCT COURT
WESTERN DISTRJCT OF NEW YORK
CHANIKKA DA VIS PAYNE,
DECISION AND ORDER
DETECTIVE JOHN GALIE, Niagara Falls City
Police Department, DETECTIVE THOMAS
FOURMIER, Niagara Falls City Police
Department, DETECTIVE THEODORE WEED,
Niagara Falls City Police Department,
DETECTIVE JOHN FASO, Niagara Falls City
Police Department, DETECTIVE JOSEPH
GIANQUINTO, MUNICIPAL NIAGARA
COUNTY, MUNICIPAL CITY OF NIAGARA
FALLS, NEW YORK, and DOREEN HOFFMAN,
Assistant Niag. County DA,
INTRODUCTION AND PROCEDURAL BACKGROUND
Plaintiff Chanikka Davis Payne ("Plaintiff') filed this action on August 15, 2009.
(Dkt. 1). On October 16, 2012, United States District Judge Michael A. Telesca granted
Defendants' motion to dismiss and dismissed the complaint, in its entirety, with
prejudice. (Dkt. 55). Judge Telesca's decision was vacated by the Second Circuit to the
extent that it dismissed Plaintiff's Fourth Amendment claim arising from a March 2007
arrest. (Dkt. 66 at 4 ). On remand, Plaintiff was permitted to amend her complaint to
allege facts in support of that claim (id.), and in support of that claim only (Dkt. 72 at 3
("[T]he only claim remaining for consideration on remand is the alleged violation of
Plaintiffs Fourth Amendment rights based on the Niagara Falls Police officers'
warrantless entry into another person's apartment to effectuate her arrest.")).
Plaintiff filed an amended complaint on October 29, 2014, alleging, inter alia, a
violation of her constitutional rights during her March 2007 arrest. (Dkt. 67). She filed a
supplemental declaration on June 1, 20 15, (Dkt. 73; see also Dkt. 67-1), which Judge
Telesca deemed a part of the amended complaint (Dkt. 74).
Presently before the Court are cross motions for summary judgment (Dkt. 84; Dkt.
87), and Plaintiffs motion for a decision in her favor (Dkt. 90). For the reasons stated
below, Defendants' motion for summary-judgment is granted, and Plaintiffs motions for
summary judgment and for a decision in her favor are denied.
The facts here are as alleged in Defendants' Statement of Undisputed Facts. 1
(Dkt. 84-17). At the relevant times, Defendants John Galie ("Galie"), Thomas Foumier, 2
Generally, if a party fails to oppose a Rule 56 statement, those facts are deemed
admitted. See L.R. Civ. P. 56(a)(2) ("The papers opposing a motion for summary
judgment shall include a response to each numbered paragraph in the moving party's
statement. . . . Each numbered paragraph in the moving party's statement of material
facts may be deemed admitted for purposes of the motion unless it is specifically
controverted by a correspondingly numbered paragraph in the opposing statement.");
Fed. R. Civ. P. 56(e) ("If a party fails to properly support an assertion of fact or fails to
properly address another party's assertion of fact as required by Rule 56(c), the court
may: .. . consider the fact undisputed for purposes of the motion . ... "). The Second
Circuit has indicated that a district court should not deem unopposed facts admitted when
those facts are unsupported in the record. See Holtz v. Rockefeller & Co., 258 F.3d 62,
73-74 (2d Cir. 2001 ).
Here, Plaintiff failed to oppose Defendants' Statement of Undisputed Facts,
having submitted only her cross motion for summary judgment. (See Dkt. 87).
Plaintiffs only evidence in the record is: (1) the supplemental declaration to her amended
complaint, which was sworn under penalty of perjury (Dkt. 67-1); and (2) Plaintiffs
Theodore Weed ("Weed"), John Faso ("Faso"), and Joseph Gianquinto (collectively,
"Defendants") were officers with the Niagara Falls Police Department. (Dkt. 84-17 at
,i 1). On March 6, 2007, Plaintiff was arrested by Weed and Faso at 1310 18th Street
(Apt. 2), Niagara Falls, New York for an incident that occurred on February 21, 2007,
and charged with two fe lonies. (Id. at ,i,i 3-4, 6). To effectuate the arrest, Weed and Faso
knocked on Plaintiff's door, which Plaintiff opened willingly. (Id. at ,i 6). Plaintiff was
then informed she was under arrest. (Id.). Plaintiff asked Weed and Faso if she could
"put on additional clothes and turn off the stove" prior to being taken into custody. (Id. at
cross motion, also sworn under penalty of perjury (Dkt. 87). Neither statement was
notarized. (See Dkt. 67; Dkt. 87).
As to the supplemental statement, a verified complaint may be considered as an
affidavit for summary judgment purposes if it meets the standards of Rule 56. See
Monahan v. NYC Dep't of Corr., 214 F.3d 275, 292 (2d Cir. 2000). "This does not
mean, however, that parties opting to file a verified complaint earn a special pass to
avoid" submitting an opposing statement as required under the Local Rules of Civil
Procedure. See id.
Each factual assertion within Defendants' Statement of Undisputed Facts is
supported by a citation to exhibits sufficient to prove those factual assertions. (See Dkt.
84- 17). The Court notes that it warned that "[i]f Plaintiff d[id] not respond to the motion
for summary judgment on time with affidavits or documentary evidence contradicting the
facts asserted by Defendants, the Court may accept Defendants' factual assertions as
true." (Dkt. 86 at 2). Additionally, Plaintiff's evidence does not dispute the material
facts submitted by Defendants. The facts alleged by Plaintiff in the supplemental
declaration support Defendants' claim that she invited officers in so that she could get
changed and turn off the stove before they effectuated her arrest. (See Dkt. 67- 1 at 1).
The cross-motion for summary judgment does not present any facts related to the March
2007 arrest. Accordingly, because Plaintiff failed to comply with the Local Rules, and
because her evidence does not contradict Defendants', the Court deems the factual
allegations in Defendants' Statement of Undisputed Facts admitted. See Fed. R. Civ. P.
56( e )(2); N. Y State Teamsters Conference Pension & Ret. Fund v. Express Servs., Inc.,
426 F.3d 640, 648-49 (2d Cir. 2005); Gubitosi v. Kapica, 154 F.3d 30, 31 n.1 (2d Cir.
1998); Thurmondv. Bowman, 211 F. Supp. 3d 554,562 (W.D.N.Y. 2016).
This defendant's last name is misspelled in the case caption. (See Dkt. 84-2 at 1
(showing the spelling as "Fournier")).
,i 7). Weed and Faso allowed her to do so, "provided she remain[ed] within the view of
the officers for safety reasons." (Id.; see also Dkt. 67-1 at 1 (stating that Weed and Faso
allowed Plaintiff to turn off her stove and put on "regular clothes")).
Neither Weed nor Faso searched the apartment or Plaintiff during the arrest. (Dkt.
84-1 7 at ,i 7). Plaintiff was only searched after her booking. (Id. at ,i 9).
Standard of Review
Federal Rule of Civil Procedure 56 provides that summary judgment should be
granted if the moving party establishes "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). The court should grant summary judgment if, after considering the evidence in the
light most favorable to the nonmoving party, the court finds that no rational jury could
find in favor of that party.
See Scott v. Harris, 550 U.S. 372, 380 (2007) (citing
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)).
Once the moving party has met its burden, the opposing party "must do more than
simply show that there is some metaphysical doubt as to the material facts. . . . [T]he
nonmoving party must come forward with specific facts showing that there is a genuine
issue for trial." Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir. 2002) (quoting
Matsushita Elec., 475 U.S. at 586-87). "[T]he mere existence of some alleged factual
dispute between the parties will not defeat an otherwise properly supported motion for
summary judgment. ... " Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
Defendants Have Shown That There are No Issues of Material Fact
The only claim remaining in this case following remand from the Second Circuit
is Plaintiff's Fourth Amendment claim arising from her March 2007 arrest. (Dkt. 66 at
Plaintiff alleges in the amended complaint that she was subjected to an
unconstitutional warrantless arrest. (See Dkt. 67 at il 46). Her supplemental statementwhich constitutes part of the amended complaint (see Dkt. 74 at 8)-claims "unlawful
entry and unlawful arrest. ... " (Dkt. 67-1 at 1). Out of an abundance of caution, the
Court addresses claims for false arrest and for an unconstitutional search of the
Plaintiff's Arrest was Lawful
Claims for false arrest may be brought pursuant to § 1983 because they implicate
the Fourth Amendment's protection of an individual's liberty interest. Singer v. Fulton
Cty. Sheriff, 63 F.3d 110, 11 5 (2d Cir. 1995); see also Cook v. Sheldon, 41 F.3d 73 , 77
(2d Cir. 1994) ("The tort of false arrest supports a claim against state police under section
1983 because it violates the Fourth Amendment."). A plaintiff bringing such a claim
must meet the state law requirements for the underlying tort, Manganiello v. City of NY,
612 F.3d 149, 161 (2d Cir. 2010), and "show some deprivation of liberty consistent with
the concept of 'seizure"' sufficient to implicate the Fourth Amendment. Singer, 63 F.3d
at 116; see also Jaegly v. Couch, 439 F.3d 149, 152 (2d Cir. 2006) ("In analyzing§ 1983
claims for unconstitutional false arrest, we have generally looked to the law of the state in
which the arrest occurred." (citation omitted)).
Under New York law, a plaintiff claiming false arrest "must show that '(l) 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."' Savino v. City of N. Y, 331 F .3d 63, 75 (2d Cir. 2003)
(quoting Bernard v. United States, 25 F.3d 98, 102 (2d Cir. 1994)). "Lack of probable
cause is not an essential element. Rather, a defendant may defend [a§ 1983 action for
false arrest] by proving that an arrest was authorized under state law." 3 Williams v. City
of NY, No. 14-cv-5123 (NRB), 2015 WL 4461716, at *4 (S.D.N.Y. July 21, 2015)
( citations omitted).
Here, there seems to be no disagreement that Plaintiff has established the first
three prongs of a false arrest claim. Plaintiff was intentionally arrested and taken into
physical custody by Weed and Faso. However, Defendants argue that the arrest was
legal, and therefore privileged. (See Dkt. 84- 18 at 5).
Plaintiff was arrested on March 7, 2007. (Dkt. 84-14 at 1). The arresting officers
had procured neither an arrest warrant nor a search warrant in advance of the arrest. (See
As a threshold matter, only those events occurring pre-arraignment are properly
considered part of Plaintiffs false arrest/false imprisonment claim. As explained by the
United States Supreme Court, a false arrest or false imprisonment claim "consists of
detention without legal process .... " Wallace v. Kato, 549 U.S. 384, 389 (2007). As a
result, the false arrest or false imprisonment ends once the defendant is arraigned and
subject to legal process, and thereafter any claim of unlawful detention forms part of the
entirely separate tort of malicious prosecution. Id. at 389-390. "If there is a false arrest
claim, damages for that claim cover the time for detention up until issuance of process or
arraignment, but not more. From that point on, any damages recoverable must be based
on a malicious prosecution claim and on the wrongful use of judicial process rather than
detention itself." Id. at 390 (citation omitted); see also Jaegly v. Couch, 439 F.3d 149,
153 (2d Cir. 2006).
id.). The arrest report notes the arrest type as "CIP," or crime in progress. (Id.); see also
NYS Arrest Report [DCJS 3203]: Instructions, Division of Criminal Justice Services,
http://www.criminaljustice.ny.gov/ojis/documents/sar_instruction.pdf (last accessed Aug.
3, 201 7) (showing that "CIP" stands for "crime in progress").
Although a warrantless arrest is presumptively unlawful, Raysor v. Port Auth. of
NY & NJ, 768 F.2d 34, 40 (2d Cir. 1985), New York law allows police officers to
arrest without a warrant, N.Y. Crim. Proc. § 140.05, where there is reasonable cause to
believe that the person committed a crime, id. § 140.lO(l)(b); see, e.g., People v. Hicks,
68 N.Y.2d 234, 239 (1986) ("An arrest and search of a suspect are unquestionably
unlawful without probable cause." (citing Dunaway v. New York, 442 U.S. 200 (1979));
People v. Linnan, 31 A.D.2d 1192, 1192 (4th Dep't 2006) (rejecting a "challenge by [the]
defendant to the legality of his warrantless arrest in a public place [because] there was
probable cause for his arrest"). Reasonable cause under§ 140.10 "has substantially the
same meaning as 'probable cause' under the Fourth Amendment," McDowell v. Heath,
No. 09 Civ. 7887(RO)(MHD), 2013 WL 2896992, at *31 (S.D.N.Y. June 13, 2013)
(quoting People v. Surico, 265 A.D.2d 596, 597 (3d Dep't 1999)), and it is the
defendant's burden to show that the arrest was authorized under§ 140.10. Raysor, 768
F.2d at 40. An arrest without reasonable cause under§ 140.10 violates§ 1983 . Id.
The conduct underlying the arrest need not have occurred in the officer's presence.
N.Y. Crim. Proc. § 140.lO(l)(b); see, e.g., Surico, 265 A.D.2d at 597 ("It is well settled
that a police officer may arrest a person for a crime without first obtaining a warrant
where there is 'reasonable cause to believe that such person has committed such crime,
whether in the officer's presence or otherwise."' (citation omitted)); People v. Vasquez,
215 A.D.2d 118, 119 (1st Dep't 1995) ("There is no requirement that probable cause
derive from a suspect' s actions at the time of his arrest. ... "); see also Brown v. City of
NY, 798 F.3d 94, 100 (2d Cir. 2015) (finding that, under New York law, an officer need
not have personally observed the conduct underlying an arrest for a crime). Even without
an arrest warrant, in order to effectuate the arrest an officer "may enter premises in which
he reasonably believes such person to be present, under the same circumstances and
in the same manner as would be authorized, ... if he were attempting to make such
arrest pursuant to a warrant of arrest." N.Y. Crim. Proc.§ 140.15(4). Following an arrest
without a warrant, the officer must bring the arrested person before a court without
unnecessary delay. Id. § 140.20(1).
Here, the arrest report does not state that Plaintiff was arrested pursuant to a
criminal complaint (see Dkt. 84- 14 at 1), but on March 6, 2007, Weed, Faso, and
Investigator Dorthy Jones, swore out two criminal felony complaints in the City Court of
Niagara Falls, alleging that Plaintiff possessed and distributed crack cocaine on February
21, 2007 (Dkt. 84- 15 at 1-2). Both criminal complaints were sworn under penalty of
(See Dkt. 84- 15 (noting that the criminal complaints were "subscribed and
sworn" before the commissioner of deeds at the City Court of Niagara Falls, and that the
swearing officer understood that "false statements made herein are punishable as a Class
A misdemeanor pursuant to Section 210.45 of the [New York] Penal Law")); see also
N.Y. Penal Law§ 210.45 (making it punishable by law to knowingly make a false written
statement); N.Y. Exec. Law § 139(8) ("Any instrument or paper sworn to, proved or
acknowledged before a comm1ss10ner of deeds within a city and authenticated as
hereinbefore provided by the clerk of a county within which such city is located shall be
recorded and read in evidence in any county in this state without further proof. ... ");
Ebije v. City of NY, No. 95 CIV. 1779 (DC), 1996 WL 191 732, at *l (S.D.N.Y. Apr. 22,
1996) (noting that a commissioner of deeds is a position similar to a notary public). One
complaint states that on February 21, 2007, Plaintiff possessed "crack cocaine in the
presence of an undercover agent of the New York State Police."
(Id. at 1).
purported crack cocaine was field tested by an investigator certified to do such a test.
(Id.). The field test "showed positive for the presence of cocaine." (Id.). This criminal
complaint alleges a violation ofN.Y. Penal Law§ 220.16(1). (Id.).
The second criminal complaint states that Plaintiff sold suspected crack cocaine to
an undercover officer. (Id. at 2). The substance field tested positive for cocaine. (Id.).
This criminal complaint alleges a violation ofN.Y. Penal Law§ 220.39(1). The criminal
complaints support a finding of probable cause to arrest Plaintiff for violating New York
drug laws, thereby obviating the need for a warrant under § 140.10. 4
As such, the
undisputed facts establish that the arrest was legal, and therefore privileged. As a result,
Plaintiffs claim for false arrest fails as a matter of law, and summary judgment for
Defendants is appropriate.
The Court also notes that on June 13, 2007, Niagara Falls City Court Judge Robert
M. Restaino found that there was "reasonable cause to believe that [Plaintiff] committed
a felony in violation of' New York's drug laws. (Dkt. 84- 16 at 1).
Defendants' Entry Into Plaintiff's Apartment was Lawful
Summary judgment is also appropriate for Plaintiff's unconstitutional search
"In general, a state actor must obtain a warrant based on probable cause to
lawfully execute a search." Anobile v. Pelligrino, 303 F.3d 107, 117 (2d Cir. 2001). A
warrantless search is per se unreasonable, "subject only to a few specifically established
and well-delineated exceptions." Schneckloth v. Bustamante, 412 U.S. 218,219 (1973)
(citing Katz v. United States, 389 U.S. 347, 357 (1967)). "It is equally well settled that
one of the specifically established exceptions to the requirements of both a warrant and
probable cause is a search that is conducted pursuant to consent." Id.
Here, the evidence shows that Plaintiff consented to Weed and Faso's entry. Faso
and Weed submitted sworn statements attesting to Plaintiff's consent for them to enter. 5
(Dkt. 84-4 at ,i 7; Dkt. 84-5 at ,i 7). Weed and Faso swear that Plaintiff allowed them
to enter "to put on additional clothes and to turn off the stove." (Dkt. 84-4 at ,i 7; Dkt.
84-5 at ,i 7). Plaintiff, in her own words declared under penalty of perjury, confirms
Defendants' version of events. (See Dkt. 67- 1 at 1 ("[T]he officer and detective allowed
[Plaintiff] to turn off the chicken she was cooking for the children and go into the
bedroom and remove her pajamas into regular clothes, and put on sneakers and leather
jacket (it was winter time)she [sic] had hanging in the bedroom closet.")).
Although Plaintiff failed to submit any affidavit or documentary evidence to
challenge Defendants' claims, the Court liberally interprets Plaintiff's cross motion for
Faso and Weed also note that they did not conduct any search of the apartment.
(Dkt. 84-4 at ,i 7; Dkt. 84-5 at ,i 7).
- 10 -
summary judgment, sworn under penalty of perjury (see Dkt. 87 at 3), as asserting that
Plaintiffs consent was involuntary (id. at 4). However, Plaintiffs papers fail to rebut
Defendants' evidence. A close reading of Plaintiffs cross-motion papers shows that she
is referring to coerced consent during her 2005 arrest, not her 2007 arrest. Plaintiff states
that Galie (and others) searched the premises after coercing consent. (Id.). However,
Galie was not involved in the 2007 arrest. (See Dkt. 84- 1 at ,i 4 ("I [(Galie )] was not
present or otherwise involved during the arrest of [P]laintiff on March 6, 2007 .... ");
Dkt. 84- 14 at 1 (showing Faso and Weed as the arresting officers on March 6, 2007); see
also Dkt. 1 at 5 (claiming that Galie conducted an "illegal raid" at Plaintiffs home on
October 5, 2005)). Plaintiff failed to rebut Defendants' properly supported motion for
summary judgment. Therefore, summary judgment for Defendants is appropriate.
For the foregoing reasons, Defendants' motion for summary judgment (Dkt. 84) is
granted, and Plaintiffs motions for summary judgment (Dkt. 87) and for a decision in her
favor (Dkt. 90) are denied. The Clerk of Court is directed to close the case.
Dated: August 29, 201 7
Rochester, New York
- 11 -
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?