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BERGER v. SCHMITT

United States District Court, Western District of New York


April 18, 2003

MICHAEL BERGER, PLAINTIFF, VS. KEVIN SCHMITT, JEFF HEISLER, JOSEPH CREAN AND TOWN OF CHEEKTOWAGA, DEFENDANTS.

The opinion of the court was delivered by: John T. Elfvin, Senior District Judge.

MEMORANDUM and ORDER*fn1

Berger filed suit February 26, 2002 pursuant to 42 U.S.C. § 1983 for an alleged violation of his Constitutional rights stemming from his arrest at a Tops Supermarket parking lot in the Town of Cheektowaga, N.Y. on December 3, 2000. Berger alleges, inter alia, (1) that the defendants violated his constitutional rights to equal protection and due process under the Fifth and Fourteenth Amendments (Count 1), (2) that they violated his rights under the Fourth and Fourteenth Amendments by committing false arrest, false imprisonment and malicious prosecution (Counts 2-5) and (3) that the Town of Cheektowaga had a policy or practice of violating constitutional rights and that it negligently failed to properly train its officers (Counts 2 and 5-7).*fn2 Defendants moved for summary judgment December 16, 2002. Oral argument was presented January 24, 2003. For the reasons set forth below, defendants' motion for summary judgment will be granted.*fn3

On December 3, 2000 plaintiff encountered a dispute among Tops' customers, several Cheektowaga Police officers and Tops' Loss-Prevention Manager Fakarzadeh. The dispute, which had started in the store, involved a claim by an unidentified woman that an elderly African-American couple — the Griffiths — had stolen her money. Upon finding her allegedly stolen money, the unidentified woman apologized and left the store. Fakarzadeh then had asked the Griffiths to leave the store. When they complained about the treatment that they had received, Fakarzadeh called the Cheektowaga Police, who discussed the situation with the Griffiths. Fakarzadeh asked the Police to take the group outside of the store because of the disturbance being caused — the group had grown to include, inter alia, the Griffiths' son and another customer, Diane Nowak.

Berger — who had been leaving the store with his son — overheard the dispute. Although Berger did leave the store, he returned and admonished Officer Schmitt for yelling at Mrs. Griffith, saying something to the effect that "[y]ou should not treat people like this." See Berger Dep., at 39. During Berger's confrontation of Officer Schmitt, Berger's son allegedly pulled at his father's coat in an apparent effort to get him to leave — although there is dispute as to what, if anything, the son said that day.*fn4 Berger subsequently went out to the parking lot and obtained phone numbers from several witnesses. Approximately ten to fifteen minutes after the group of disputants had disbanded — and while Berger was attempting to go to his car — he was arrested and subsequently charged with trespass in violation of N.Y. Penal Law § 140.05 and with obstructing governmental administration in violation of N.Y. Penal Law § 195.05. These charges were ultimately dismissed. Although the parties offer sharply different accounts of certain facts, the pertinent facts are undisputed.

Rule 56(c) of the Federal Rules of Civil Procedure ("FRCvP") states that summary judgment may be granted only if the record shows "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." In other words, after discovery and upon a motion, summary judgment is mandated "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Summary judgment is thus appropriate where there is "no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).*fn5

With respect to the first prong of Anderson, a genuine issue of material fact exists if the evidence in the record "is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, at 248.*fn6 Stated another way, there is "no genuine issue as to any material fact" where there is a "complete failure of proof concerning an essential element of the nonmoving party's case." Celotex, at 323. Under the second prong of Anderson, the disputed fact must be material, which is to say that it "might affect the outcome of the suit under the governing law ***." Anderson, at 248.

Furthermore, "[i]n assessing the record to determine whether there is a genuine issue as to any material fact, the district court is required to resolve all ambiguities and draw all factual inferences in favor of the party against whom summary judgment is sought." St. Pierre v. Dyer, 208 F.3d 394, 404 (2d Cir. 2000) (citing Anderson, at 255). Moreover, for the purposes of the qualified immunity analysis, this Court will consider "only those facts that were actually available to the police officers, or could reasonably have been perceived by them, at the moment they engaged in the challenged conduct." Lowth v. Town of Cheektowaga, 82 F.3d 563, 567 (2d Cir. 1996). Nonetheless, mere conclusions, conjecture, unsubstantiated allegations or surmise on the part of the non-moving party are insufficient to defeat a well-grounded motion for summary judgment. Goenaga, at 18.*fn7

Turning to the merits, viability of the defendants' motion for summary judgment is heavily dependent upon whether Officer Schmitt had probable cause to arrest Berger for the crimes charged. See Lennon v. Miller, 66 F.3d 416, 421 (2d Cir. 1995). In evaluating probable cause to arrest, courts "must consider those facts available to the officer at the time of the arrest and immediately before it." Lowth, at 569. "Probable cause exists when an officer has knowledge or reasonably trustworthy information sufficient to warrant a person of reasonable caution in the belief that an offense has been committed by the person to be arrested." Curley v. Village of Suffern, 268 F.3d 65, 69-70 (2d Cir. 2001) (internal quotations omitted). When making an arrest, an officer "need not also believe with certainty that the arrestee will be successfully prosecuted." Id. at 70.*fn8 Accordingly, at issue is whether Officer Schmitt had probable cause to arrest Berger for trespass and obstructing governmental administration.

Berger was charged with trespass in violation of N.Y. Penal Law § 140.05, which provides that "[a] person is guilty of trespass when he knowingly enters or remains unlawfully in or upon premises." N.Y. Penal Law § 140.05 (McKinney 1999). It is undisputed that the defendant police officers had instructed Berger to leave the premises and that he nonetheless failed to comply with such order. See Berger Dep., at 41-54; Schmitt Dep., at 117-118, 121, 123-126, 131, 133-135). Consequently, officer Schmitt had probable cause to arrest Berger for trespass in violation of N.Y. Penal Law § 140.05 because Berger had knowingly remained on the premises despite an ostensibly lawful directive by officer Schmitt to vacate — as requested by Fakarzadeh.*fn9

Berger was also charged with obstructing governmental administration in violation of N.Y. Penal Law § 195.05, which provides that "[a] person is guilty of obstructing governmental administration when he intentionally obstructs, impairs or perverts the administration of law or other governmental function or prevents or attempts to prevent a public servant from performing an official function, by means of intimidation, physical force or interference, or by means of an independently unlawful act ***." N.Y. Penal Law § 195.05 (McKinney 1999) (emphasis added). Berger's refusal to obey Officer Schmitt's order to leave the premises established sufficient probable cause to arrest Berger for obstructing governmental administration in violation of N.Y. Penal Law § 195.05.*fn10 See Lennon, at 424 (finding probable cause to arrest plaintiff for obstructing governmental administration because she disobeyed officer's order to exit a vehicle); Decker v. Campus, 981 F. Supp. 851, 857-858 (S.D.N.Y. 1997) (dismissing plaintiff's section 1983 claims because officer had probable cause to arrest plaintiff for obstructing governmental administration where plaintiff, inter alia, failed to obey the officer's order to "step back" from accident scene); Linehan v. New York, 201 A.D.2d 706, 706 (2d Dep't 1994) (holding that officer had probable cause to arrest plaintiff for obstructing governmental administration because she "resisted the efforts of a court officer to keep her away from the area where a disturbance was taking place").*fn11 Moreover, Berger's trespass constitutes an "independently unlawful act" that prevented the defendant officers from performing their duties. Accordingly, officer Schmitt had probable cause to arrest Berger for violation of section 195.05.

Inasmuch as this Court finds that officer Schmitt had probable cause to arrest Berger,*fn12 plaintiff's state law claims for false arrest, false imprisonment and malicious prosecution fail as a matter of law and will be dismissed. See Curry v. City of Syracuse, 316 F.3d 324, 335 (2d Cir. 2003) ("Probable cause is `a complete defense to a cause of action for false arrest.'"); Otero v. Town of Southampton, 194 F. Supp.2d 167, 178 (E.D.N.Y. 2002) ("Claims for false arrest, false imprisonment and malicious prosecution fail with a finding of probable cause to arrest and charge Plaintiff."), aff'd, 2003 WL 1025795, at *1 (2d Cir. 2003) ("[P]robable cause is a complete defense to claims of false imprisonment, false arrest, and malicious prosecution.").*fn13

Section 1983 provides a civil claim for damages against any person (including government entities) who, acting under a color of state law, deprives another of a right, privilege or immunity secured by federal law. See 42 U.S.C. § 1983 (1994); Thomas v. Roach, 165 F.3d 137, 142 (2d Cir. 1999) ("Section 1983 itself creates no substantive rights; it provides only a procedure for redress for the deprivation of rights established elsewhere"). Berger's section 1983 claims against Officer Schmitt based on an alleged violation of the Fourth Amendment fail as a matter of law because probable cause existed for Berger's arrest. See Lennon, at 423-424.*fn14 Accordingly, Berger's Fourth Amendment claims will be dismissed.

Berger's section 1983 claims against officer Schmitt based on an alleged violation of Berger's equal protection rights will also be dismissed. To state a claim under the Equal Protection Clause, Berger must show that he was selectively treated compared with others similarly situated and that such selective treatment resulted from "impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure." See Crowley v. Courville, 76 F.3d 47, 52 (2d Cir. 1996).*fn15 Courts recognize "class of one" equal protection claims. See Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). The only potential basis for Berger's equal protection claim is that officer Schmitt singled Berger out for arrest and detention based on Berger's exercise of his First Amendment rights — or because of a bad faith intent to injure Berger.*fn16

Berger's equal protection claim fails for the same reason that a First Amendment claim would fail; courts will not examine an officer's motivation for making an arrest where probable cause exists. Cf. Singer, at 120 (dismissing First Amendment claim because the court refused to examine officer's motivation for arrest where probable cause existed).

Berger's bad faith intent to injure/equal protection claim must also be dismissed. Although officer Schmitt had probable cause to arrest Berger, the existence of probable cause does not obviate the need to examine whether Schmitt treated Berger worse than he otherwise would have because of a malicious or bad faith intent to injure Berger. Indeed, there is a genuine issue of material fact as to whether Schmitt's treatment of Berger was based upon an improper motivation.*fn17 Nonetheless, Berger's equal protection claim fails because he has not produced any evidence of selective treatment — i.e., that he was treated differently from other people arrested for trespass and/or obstructing governmental administration. See Gonzalez v. City of New York, 2000 WL 1678036, at *4 (S.D.N.Y. 2000), aff'd, 2002 WL 500313, at *1 (2d Cir. 2002) (affirming dismissal of plaintiff's equal protection/selective enforcement claim because he could not "demonstrate that he was similarly situated to the other drivers on Lexington Avenue who were not pulled over"). Accordingly, Berger's equal protection claim against Schmitt will be dismissed.

Berger also asserts a substantive due process claim — as opposed to a procedural due process claim. See Berger's Mem. of Law, at 27. "Substantive due process protects against government action that is arbitrary, conscience-shocking, or oppressive in a constitutional sense, but not against government action that is `incorrect or ill-advised." Kaluczky v. City of White Plains, 57 F.3d 202, 211 (2d Cir. 1995).*fn18 Kaluczky also holds that the "first step in the substantive due process analysis is to identify the constitutional right at stake." Ibid. Rights protected by explicit provisions of the Constitution, however, are not rights protected by substantive due process. Ibid. Accordingly, the Fourth and/or Fourteenth Amendments, "not the more generalized notion of `substantive due process,' must be the guide for analyzing" Berger's claims.*fn19 Ibid. (citing Albright v. Oliver, 510 U.S. 266, 273 (1994)); Singer, at 115.*fn20 Consequently, Berger fails to state a generalized claim for violation of his substantive due process rights.*fn21 Accordingly, Berger's substantive due process claims will be dismissed.

Having determined that Berger's federal rights were not violated — all of his section 1983 claims against Schmitt will be dismissed. Accordingly, this Court need not consider whether officer Schmitt is entitled to qualified immunity*fn22 — which is an immunity that a government actor enjoys if, at the time of the challenged conduct, it was objectively reasonable for such actor to believe that his conduct did not violate plaintiff's clearly established constitutional rights.*fn23 See Anderson v. Creighton, 483 U.S. 635, 641 (1987).*fn24 Nonetheless, officer Schmitt would be entitled to qualified immunity with respect to Berger's Fourth Amendment claims because officer Schmitt had probable cause to arrest Berger for the crimes charged. Consequently, it is beyond peradventure that it was "objectively reasonable" for him to arrest Berger.*fn25 Caldarola v. Calabrese, 298 F.3d 156, 161 (2d Cir. 2002) (noting that it is "well established that the existence of probable cause is an absolute defense to a false arrest claim").*fn26

Inasmuch as Berger's federal claims against Officers Heisler and Crean are derivatives of his claims against Schmitt — he alleges that they failed to intervene to protect him from Schmitt ___, they too must be dismissed on grounds of qualified immunity. Curley, at 72.*fn27

Turning to Berger's claims against the Town of Cheektowaga, the Town contends that Berger has failed to produce any evidence that a municipal policy or custom caused the alleged violation of his Constitutional rights. Berger responds by suggesting that additional discovery is needed pursuant to FRCvP 56(f). This contention, however, fails because a party opposing summary judgment pursuant to FRCvP 56(f) on the basis that additional discovery is required "must file an affidavit explaining (1) what facts are sought and how they are to be obtained, (2) how those facts are reasonably expected to create a genuine issue of material fact, (3) what effort the affiant has made to obtain them, and (4) why the affiant was unsuccessful in those efforts." Hudson River Sloop Clearwater, Inc. v. Dep't of Navy, 891 F.2d 414, 422 (2d Cir. 1989). Berger has filed no such affidavit and his memorandum of law fails to supply this information. This Court thus declines to grant Berger relief under FRCvP 56(f).*fn28

Berger concedes that respondeat superior is not applicable with respect to section 1983 claims. See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690-691 (1978). Moreover, Berger has failed to produce any evidence that the Town of Cheektowaga maintained a policy or custom that was the "moving force" behind the alleged deprivation of Berger's constitutional rights. See Monell, at 690-691; Bd. of Cty. Commr's of Bryan Cty, Oklahoma v. Brown, 520 U.S. 397, 403-407 (1997); Thomas, at 145. Finally, inasmuch as Officer Schmitt did not violate Berger's constitutional rights, the Town of Cheektowaga cannot be liable for inadequate training. See Curley, at 70-72 (citing Amato v. City of Saratoga Springs, 170 F.3d 311, 320 (2d Cir. 1999)).*fn29 Accordingly, Berger's section 1983 claims against the Town of Cheektowaga will be dismissed.

Berger nonetheless contends that his state law claims based on the doctrine of respondeat superior are permissible. This Court agrees that state law claims may be based upon the doctrine of respondeat superior.*fn30 The Town does not appear to disagree inasmuch as it only seeks dismissal of Berger's section 1983 claims. Inasmuch as Berger's federal claims will be dismissed, this Court will decline to exercise jurisdiction over his remaining state law claims. See 28 U.S.C. § 1367(c)(3); United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966).*fn31

Finally, to the extent that the Complaint alleges a conspiracy — which is not clear on the face of the Complaint inasmuch as section 1985(3) is not referenced ___, such claim nonetheless fails because the Complaint has not alleged with any particularity "the overt acts engaged in by the police officers" in furtherance of the conspiracy to deprive Berger of his Constitutional rights. See Thomas, at 147 (holding that a "plaintiff alleging conspiracy under § 1985(3) must allege, with at least some degree of particularity, overt acts which defendants engaged in which were reasonably related to the promotion of the claimed conspiracy."). Like the plaintiff in Thomas, Berger only asserts in vague and conclusory terms that his arrest was "concerted" and that the defendants "maliciously contriv[ed] and intend[ed] to injure" Berger. Such conclusory accusations by themselves are insufficient to defeat a properly supported motion for summary judgment. Moreover, a conspiracy claim under section 1983 would also fail because, as discussed above, Berger's rights were not violated. See Singer, at 119.

Accordingly, it is hereby ORDERED that defendants' motion for summary judgment is granted, that all of plaintiff's federal claims are dismissed, that plaintiff's state claims for false arrest, false imprisonment and malicious prosecution are dismissed, that this Court declines to exercise jurisdiction over plaintiff's remaining state law claims and that the Clerk of this Court shall close this case.

*fn2 Several of the counts of the Complaint are ostensibly overlapping and fail to clearly differentiate between state and federal claims inasmuch as some counts reference section 1983 and others do not — despite the fact that every count contains the boilerplate conclusion that "the conduct of the defendants as alleged violated the Plaintiff's rights as secured by the United States Constitution." Compl. at ¶¶ 43, 49, 53, 60, 64, 71 and 74. Furthermore, although the Complaint makes allegations with respect to the First Amendment of the United States Constitution, it makes no First Amendment claim, and such is therefore not properly before this Court. In any event, as noted below, this Court finds that officer Schmitt had probable cause to arrest Berger. Consequently, a First Amendment claim would thus fail as a matter of law. See Singer v. Fulton Cty. Sheriff, 63 F.3d 110, 120 (2d Cir. 1995) (dismissing plaintiff's retaliatory arrest/First Amendment claim because the court "will not examine the officer's underlying motive in arresting and charging the plaintiff" where the arresting officer had probable cause to arrest), cert. denied, 517 U.S. 1189 (1996); Mozzochi v. Borden, 959 F.2d 1174, 1179-1180 (2d Cir. 1992) (qualified immunity shields officer from retaliation claim where a reasonable officer would believe that the arrest was supported by probable cause).

*fn3 Neither the plaintiff nor any defendant has complied with this Court's Local Rules of Civil Procedure ("LRCvP"). See Brainard v. Freightliner Corp., 2002 WL 31207467, at *2 n. 7 (W.D.N.Y. 2002) (discussing LRCvP 56 and LRCvP 7.1(e) and citing cases); Harris Corp. v. McBride & Assocs., Inc., 2002 WL 1677695, at *1 (W.D.N.Y. 2002) (same). Indeed, plaintiff and defendants each violated LRCvP 7.1(f) by failing to obtain permission to exceed the twenty-five page limitation governing memoranda of law. Moreover, defendants violated LRCvP 7.1(f) by failing to obtain permission to exceed the ten-page limitation with respect to their reply memorandum. Furthermore, defendants' Statement of Undisputed Facts is far from undisputed.

*fn4 This discrepancy is disturbing. Several witnesses, including officer Heisler and Fakarzadeh, supplied testimony under oath indicating that Berger's son, Alan, had said to his father something to the effect that "Dad, why do you always do this whenever we go shopping?" Berger contends, however, that it was impossible for Alan to have made the alleged statement because he is "severely language impaired to the extent that his speech is difficult to understand." Aff. of Robert D. Steinhaus, Esq. This Court is concerned by the possibility that several witnesses submitted false testimony to it within the meaning of 18 U.S.C. § 1621 (2000). See U.S. v. Dunnigan, 507 U.S. 87, 94 (1993).

*fn5 Of course, the moving party bears the burden of showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970)). If the moving party makes such a showing, the non-moving party must then come forward with evidence of specific facts sufficient to support a jury verdict in order to survive the summary judgment motion. Ibid.; FRCvP 56(e).

*fn6 See also Anderson, at 252 ("The mere existence of a scintilla of evidence in support of the [movant's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [movant].")

*fn7 See footnote 5.

*fn8 See also U.S. v. Fisher, 702 F.2d 372, 375 (2d Cir. 1983) ("The quantum of evidence required to establish probable cause to arrest need not reach the level of evidence necessary to support a conviction"). Accordingly, to the extent that Berger claims that officer Schmitt lacked probable cause to arrest because the charges against Berger were eventually dismissed, such position is unfounded in the law.

*fn9 Berger contends that the parking lot was a common area owned by several tenants, including Tops, and that Fakarzadeh could not have lawfully excluded him from the parking lot. Nonetheless, "Officers can have reasonable, but mistaken, beliefs as to the facts establishing the existence of probable cause *** and in those situations courts will not hold that they have violated the Constitution." Saucier v. Katz, 533 U.S. 194, 206 (2001). It was reasonable for officer Schmitt to conclude that Fakarzadeh had authority to expel Berger from the premises.

*fn10 This Court does not base its finding of probable cause upon Berger's verbal challenge of Officer Schmitt. See People v. Case, 42 N.Y.2d 98, 101-103 (1977); Matter of Davan L., 91 N.Y.2d 88, 90-92 (1997).

*fn11 See also People v. Williams, 25 N.Y.2d 86, 90 (1969) (construing section 195.05's predecessor and holding that parties' "refusal to act as directed [by the police to leave the premises] was an obstruction to the police officers in the performance of their duty *** notwithstanding the fact that [their] resistance was passive"). This Court need not determine whether Berger had the requisite intent because officer Schmitt was reasonable in his belief that Berger intended to commit the crimes with which he was charged. See Decker, at 858 n. 3.

*fn12 Although many facts are disputed, the facts giving rise to this Court's finding of probable cause are not disputed, and thus it is appropriate to make such a finding at this stage. See Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996) ("The question of whether or not probable cause existed may be determinable as a matter of law if there is no dispute as to the pertinent events and the knowledge of the officers.").

*fn13 See also Murphy v. Lynn, 118 F.3d 938, 947 (2d Cir. 1997) (holding that lack of probable cause is a necessary element of a malicious prosecution claim), cert. denied, 522 U.S. 1115 (1998).

*fn14 Berger appears to have predicated his section 1983/Fourth Amendment claims upon claims of false arrest, false imprisonment and malicious prosecution. However and as noted above the Complaint is not clearly drafted.

*fn15 The Equal Protection Clause provides "a right to be free from invidious discrimination in statutory classifications and governmental actions." Harris v. McRae, 448 U.S. 297, 322 (1980). The Equal Protection Clause "is essentially a direction that all persons similarly situated should be treated alike." City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985).

*fn16 To the extent that Berger attempts to claim that his equal protection rights were violated because he was attempting to protect the rights of the Griffiths, who were African-Americans, such fails because the suspect classification must pertain to Berger. See Crowley, at 53 ("Because Crowley does not allege selective treatment based upon his race ***, Crowley must demonstrate that defendants maliciously singled out his application for relief from the parking ordinance ***.").

*fn17 Berger produced evidence that officer Schmitt, inter alia, (1) yelled at Mrs. Griffith while "towering" over her, six inches from her face; (2) told Mrs. Griffith that "you don't belong in Cheektowaga" and "don't pull this racist crap on me"; (3) was chided by Berger for yelling at Griffith; (4) arrested Berger immediately after Berger had obtained contact information from the Griffiths and Nowak; (5) sarcastically told Berger that "Okay Buddy, it's your turn now"; (6) stated "you'll find out" when Berger asked what he was being charged with and that officer Schmitt inquired of another officer what the charges against Berger would be; (7) stated "That's too bad. You should have thought about this before you said anything" when Berger asked about what would happen to his son; (8) allegedly placed the handcuffs on too tight; and (9) was informed that Berger was an attorney. Such evidence, construed in Berger's favor, creates a genuine issue of material fact as to whether officer Schmitt's decision to handcuff Berger in front of his son and take him away in a police car for relatively minor offenses — rather than issuing an appearance ticket — was based on a bad faith intent to injure Berger. Cf. Lowth, at 573 (finding a genuine issue of material fact with respect to officer's motive for arrest and noting that "it is certainly not implausible that Officer Grant might have been acting out of anger for what Mrs. Lowth had put him through, we think that enough evidence of malice, as defined by New York law, can be inferred to survive a motion for summary judgment"); Vertical Broadcasting, Inc. v. Town of Southampton, 84 F. Supp.2d 379, 390 (E.D.N.Y. 2000) (holding that impermissible motive is the "`key issue' in an equal protection claim alleging selective enforcement"). As the non-movant, this Court must resolve all ambiguities and draw all factual inferences in Berger's favor. Brady v. Town of Colchester, 863 F.2d 205, 217 (2d Cir. 1988) (denying defendants' summary judgment motion because plaintiff produced sufficient evidence of discriminatory intent and improper enforcement).

*fn18 Smith ex rel. Smith v. Half Hollow Hills Cent. Sch. Dist., 298 F.3d 168, 173 (2d Cir. 2002) ("The protections of substantive due process are available only against egregious conduct which goes beyond merely offending some fastidious squeamishness or private sentimentalism and can fairly be viewed as so brutal and offensive to human dignity as to shock the conscience") (internal quotations omitted). Officer Schmitt's conduct in arresting Berger and taking him into custody are not so "brutal and offensive to human dignity as to shock the conscience." See Ibid. (holding that substantive due process rights were not implicated where teacher slapped a student without any pedagogical or disciplinary justification because such did not shock the conscience); Kash v. Honey, 2002 WL 538034, at *2 (2d Cir. 2002) (holding that officer's intentional elbowing of protestor did not violate substantive due process rights); Bowman v. City of Middletown, 91 F. Supp.2d 644, 665 (S.D.N.Y. 2000) (finding no violation of inmate's substantive due process rights where he was shackled in response to making a complaint about the prison commissary).

*fn19 Berger's equal protection claim fails because of a lack of evidence, not because it is inapplicable.

*fn20 See footnote 2.

*fn21 Albright, at 271-272 ("As a general matter, the [Supreme] Court has always been reluctant to expand the concept of substantive due process because the guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended. The protections of substantive due process have for the most part been accorded to matters relating to marriage, family, procreation, and the right to bodily integrity.") (internal quotations omitted). In light of the Supreme Court's admonition in Albright, this Court declines to find that officer Schmitt's conduct violated Berger's substantive due process rights. See e.g., Johns v. Village of East Hampton, 942 F. Supp. 99, 108 (E.D.N.Y. 1996) (dismissing substantive due process claims where plaintiff's claims were more properly analyzed under the Equal Protection Clause, as well as the First and Fourth Amendments, where plaintiff alleged retaliation by the police in response to a complaint filed by plaintiff); see also Tiffany v. Town of Briarcliff Manor, 1997 WL 177895, at *11 (S.D.N.Y. 1997) (holding that plaintiff's claim should be analyzed under the Fourth Amendment rather than the substantive due process component of the Fourteenth Amendment).

*fn22 See Gonzalez, at *10.

*fn23 Berger had clearly established rights against "unreasonable or unwarranted restraints on personal liberty." Singer, at 116.

*fn24 See Lennon, at 420 ("Qualified immunity shields government officials from liability for civil damages as a result of their performance of discretionary functions, and serves to protect government officials from the burdens of costly, but insubstantial, lawsuits.") (citing Harlow v. Fitzgerald, 457 U.S. 800, 817-818 (1982)).

*fn25 Lennon, at 420-421 ("An officer's actions are objectively unreasonable when no officer of reasonable competence could have made the same choice in similar circumstances."). Additionally, this reasonableness determination is a question of law appropriately disposed of on a motion for summary judgment. See Id. at 421.

*fn26 See also Wachtler v. Cty. of Herkimer, 35 F.3d 77, 80 (2d Cir. 1994) ("An arresting officer is entitled to qualified immunity from a claim for unlawful arrest if `it was objectively reasonable for the officer to believe that probable cause existed ***.'") (citation omitted); Lennon, at 423.

*fn27 Moreover, Officers Heisler and Crean are entitled to qualified immunity with respect to Berger's equal protection claim because Berger produces no evidence indicating that Officer Heisler or Crean was aware of all of the facts surrounding the arrest. Accordingly, it was objectively reasonable for Officers Heisler and Crean to not intervene when Officer Schmitt arrested Berger and took him into custody.

*fn28 Moreover, discovery in this case has concluded. The ongoing discovery referenced by plaintiff's counsel is being conducted in Berger's state court litigation — which is no reason to delay this case. If Berger needed additional discovery to prosecute this action, he should have sought it before the close of discovery.

*fn29 See also Poe v. Leonard, 282 F.3d 123, 145 (2d Cir. 2001) (holding that "mere negligence is insufficient as a matter of law to state a claim under section 1983").

*fn30 "Although respondeat superior [does] not apply to the § 1983 claims, plaintiff's common-law causes of action may proceed on a theory of respondeat superior.'" Greenfield v. City of New York, 2000 WL 124992, at *10 (S.D.N.Y. 2000) (citations and quotations omitted); see also Raysor v. Port Auth. of N.Y. & N.J., 768 F.2d 34, 38 (2d Cir. 1985) (dismissing section 1983 claims under Monell but permitting state law claims based on the doctrine of respondeat superior to survive because the Port Authority has waived immunity for such suits), cert. denied, 475 U.S. 1027 (1986).

*fn31 See also Moustakis v. New York City Police Dep't, 1999 WL 357845, at *1 (2d Cir. 1999) (dismissing plaintiff's section 1983 claims and his state law claims for false arrest and malicious prosecution because probable cause existed, but declining to exercise jurisdiction over remaining state law claims).


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