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United States District Court, S.D. New York

AGYEMON FOY, an infant by his natural guardian and parent, DOREEN GLOVER, Plaintiffs,

The opinion of the court was delivered by: HAROLD BAER, JR., District Judge


Defendant City of New York ("the City") moves pursuant to Federal Rule of Civil Procedure 56 ("Fed.R. Civ. P.") for summary judgment dismissing the federal civil rights and pendent state law claims of plaintiff Agyemon Foy ("Foy"). For the reasons set forth below, defendant's motion is granted.


  From what I can piece together, on June 19, 2002, Foy, a fifth grade student at P.S. 150 in the Bronx, was involved in an altercation with a six grade female student in the school yard during recess. Foy had been in other altercations with this girl. On this occasion, Foy had the cap to the girl's pen or marker and she apparently wanted it back. Without saying anything, the girl grabbed Foy and started hitting him. According to Foy, although the girl punched him four times in the face he did not sustain any injuries. Foy then punched the girl in the face and hit her in the eye. As a result, the girl's eye became bruised and swollen and she fell to the ground. A lunchroom aid and two teachers wtinessed what happened and intervened. The lunchroom aid and two other students accompanied the girl to the nurse's office. Meanwhile, other school personnel (two to three teachers or lunch aids) took Foy to the principal's office. While Foy sat in the office, the school personnel called the police, who arrived shortly thereafter. Several police officers responded, followed by the school principal. After speaking with the school personnel, the sergeant screamed at Foy and asked him why he started a fight with the girl. One of the officers then handcuffed Foy and took him to the police car, where Foy reported, he was left alone for a long time. Ultimately, the police officers took Foy to the 42nd Precinct station house, where yet another officer screamed at him and asked him why he hit girls. Foy was then taken to a small room and handcuffed to a chair. Foy remained there for approximately an hour until his mother arrived. At no point did the police ask Foy any questions or take his picture or fingerprints. Glover reported that when she arrived at the station house to collect her son, as far as she could recall, she was not given any documentation, asked to sign anything, or told to go to court.


  A. Standard of Review

  Pursuant to Fed.R. Civ.P. 56(c), a district court must grant summary judgment if the evidence demonstrates 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." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). "Summary judgment is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed to `secure the just, speedy and inexpensive determination of every action.'" Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986) (quoting Fed.R. Civ. P. 1). To determine whether there is a genuine issue of material fact, the Court must resolve all ambiguities and draw all inferences against the moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) (per curiam); Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 57 (2d Cir. 1987). However, the mere existence of disputed factual issues is insufficient to defeat a motion for summary judgment. Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11-12 (2d Cir. 1986). The disputed issues of fact must be "material to the outcome of the litigation," id. at 11, and must be backed by evidence that would allow "a rational trier of fact to find for the non-moving party," Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The non-movant "must do more than simply show that there is some metaphysical doubt as to the material facts." Id. With respect to materiality, "substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Anderson, 477 U.S. at 248.

  B. Plaintiffs' Federal Claims*fn2

  1. False Arrest

  Plaintiff alleges, pursuant to 42 U.S.C. § 1983, that the City and unidentified police officers, employees, and agents ("unidentified defendants") violated his Fourth Amendment rights by arresting him without probable cause. "The elements of a claim of false arrest under § 1983 are substantially the same as the elements of a false arrest claim under New York law. Hygh v. Jacobs, 961 F.2d 359, 366 (2d Cir. 1992) (internal quotation marks omitted). In order to establish a claim of false arrest, a plaintiff must prove that: "(1) the defendant[s] intended to confine 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." Posr v. Doherty, 944 F.2d 91, 97 (2d Cir. 1991). However, "[t]he existence of probable cause to arrest constitutes justification and `is a complete defense to an action for false arrest.'" Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996) (quoting Bernard v. United States, 25 F.3d 98, 102 (2d Cir. 1994)). "In general, probable cause exists when the officers have 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." Id. at 852. "Whether or not an officer had probable cause to make an arrest is a question of what the officer knew at the time of the arrest and whether she or he was reasonable in relying on that knowledge." Gaskins, 2004 WL 1777585, *2 (citation omitted).

  Here, according to Foy's account of the incident, after he was taken to the principal's office, school personnel telephoned the police. Foy was only handcuffed and placed under arrest after the responding police officers spoke with the school personnel who had escorted Foy from the school yard to the principal's office. "[I]t is well-established that a law enforcement official has probable cause to arrest if he received his information from some person, normally the putative victim or eyewitness, who it seems reasonable to believe is telling the truth." Miloslavsky v. AES Eng'g Soc., Inc., 808 F. Supp. 351, 355 (S.D.N.Y. 1992), aff'd, 993 F.2d 1534 (2d Cir. 1993); see also Arum v. Miller, ___ F.Supp.2d ___, No. 00 Civ. 7476, 2004 WL 1798281, at *8 (E.D.N.Y. June 8, 2004) (holding that police officers properly relied on statements from a school administrator that the plaintiff had been asked to leave the premises and refused to do so as the basis for the plaintiff's arrest for criminal trespass). Thus, the police were entitled to rely on the statements of the school personnel to determine that there was probable cause for Foy's arrest.

  Foy's argument that he acted in self-defense in hitting the other student fails to negate probable cause. Foy's deposition testimony indicates that school employees determined he was the aggressor and accordingly, he was taken to the principle's office and the other student was taken to the school nurse. These same employees then relayed the events to the police, who arrested Foy on the basis of this information. The existence of probable cause is determined based on the information available to the officer at the time of arrest. Ricciuti v. N.Y.C. Transit Authority, 124 F.3d 123, 128 (2d Cir. 1997). Once an officer reasonably believes that there is probable cause for an arrest, he is "not required to make a full investigation into plaintiff's state of mind prior to taking action" or "eliminate every theoretically plausible claim of innocence before making an arrest." Id. The fact that Foy may have later asserted a justification defense to the charges levied against him does not make his arrest unlawful. While an officer may not "deliberately disregard facts known to him which establish justification," Jocks v. Tavernier, 316 F.3d 128, 136 (2d Cir. 2003), here the arresting officers were unaware of any potential defense, see Gentile v. City of New York, No. 01 Civ. 8640, 2003 WL 1872651, at *2 (S.D.N.Y. April 10, 2003). Even if Foy had told the officers that he was justified in his actions because the other student was hitting him, the officers would be "under no duty, once probable cause was found to exist, to credit the plaintiff's protestations of self-defense." Moscoso v. City of New York, 92 F. Supp.2d 310, 314 (S.D.N.Y. 2000). Foy's claim for false arrest is therefore without merit.

  2. False Arrest and Unlawful Search and Seizure

  Foy's allegation that he was the subject of an unlawful search "by reason of the unlawful arrest," Compl. ¶ 23, also fails. Having determined that Foy's arrest was lawful, any search incident to arrest would also have been lawful. Interestingly, Foy's description of his arrest in his deposition fails to mention any search whatsoever, either prior to being handcuffed or upon arrival at the station house. His claim is therefore deficient in this regard as well.

  3. Failure to Intervene

  Foy further avers that the unidentified defendants had an affirmative duty to intervene to protect his constitutional rights from being infringed and as a result of this failure, he suffered an illegal confinement and illegal search. "A law enforcement 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." O'Neill v. Krzeminski, 839 F.2d 9, 11 (2d Cir. 1988). This duty extends to situations where another officer is falsely arresting a citizen. E.g., Gagnon v. Ball, 696 F.2d 17, 21 (1982). However, there can be no failure to intervene where there was no constitutional violation. Feinberg v. City of New York, No. 99 Civ. 12127, 2004 WL 1824373, at *4 (S.D.N.Y. Aug. 13, 2004) ("If the Court determines that the officer's conduct did not violate a constitutional right, however, the analysis ends."). At the risk of redundancy, this claim is fatally deficient as well because the arrest and search — if any search occurred — were lawful. And, once again, Foy has alleged no details regarding this failure to intervene or offered any attempt, however vague, to identify the unidentified defendants who would have committed this alleged violation. Foy's claim must be dismissed.

  4. Equal Protection

  Foy alleges that his rights were violated under the Equal Protection clause of the Fourteenth Amendment because "he was arrested and the complainant was not arrested simply based on their status including that the plaintiff is a male and the complainant is a female. . . ." Compl. ¶ 39. "The equal protection clause directs state actors to treat similarly situated people alike." Giano v. Senkowski, 54 F.3d 1050, 1057 (2d Cir. 1995). However, Foy's equal protection claim, as the City points out, is deficient on its face. An equal protection claim requires "purposeful discrimination, directed at an identifiable or suspect class." Id. (internal citation omitted). Foy has made no such class allegation. Instead, his claim is based on the individualized circumstances of his arrest. It is possible for Foy to allege a "`class of one,' where the plaintiff alleges that []he has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment." Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). Under the "class of one" theory of equal protection, a plaintiff is "required to show either that there was no rational basis for the unequal treatment received or that the denial of the application was motivated by animus." Harlen Assoc. v. Inc. Village of Mineola, 273 F.3d 494, 500 (2d Cir. 2001) (internal citation omitted). Foy has not alleged this, must less offered evidence sufficient to defeat summary judgment. Indeed, the available evidence shows that Foy's arrest was not arbitrary, irrational, or motivated by animus of any sort. Instead, Foy's arrest was based on the school personnel's observations of Foy's role in the school yard fight, which they relayed to the police. The mere fact that the other student involved in the altercation is female does not give rise to an equal protection claim and summary judgment is appropriate on this claim as well.

  5. Monell*fn3 Claim for Municipal Liability

  Foy alleges that the City is liable as a municipal entity for its failure "to adequately discipline, train, supervise, or otherwise direct school safety officers*fn4 and police officers concerning the rights of citizens." Compl. ¶ 31. Foy further alleges that the City and the unidentified defendants have failed to sanction officers for violations of constitutional rights and to train the unidentified defendants in how to conduct an investigation, the criteria to make an arrest, and of their duty to intervene. As the City argues, Foy has failed to plead, much less prove, any of the essential elements of a Monell claim.

  "It is only when the municipality itself commits the misdeed, that is, `when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.'" Walker v. New York, 974 F.2d 293, 296 (2d Cir. 1992) (citing Monell v. Dep't of Social Servs. of the City of New York., 436 U.S. 658, 694 (1978)). As the City properly recites, the Walker Court articulated three requirements that must be pled for municipal liability to exist. "First, the plaintiff must show that a policymaker knows to a moral certainty that her employees will confront a given situation . . . Second, the plaintiff must show that the situation either presents the employee with a difficult choice of the sort that training or supervision will make less difficult or that there is a history of employees mishandling the situation . . . Finally, the plaintiff must show that the wrong choice by the city employee will frequently cause the deprivation of a citizen's constitutional rights." Walker, 974 F.2d at 297-98 (internal quotations and citations omitted).

  Foy's pleadings do not address any of these three elements. Instead, he merely alleges that the City and unidentified defendants failed to train, supervise, or sanction police officers. Moreover, Foy has not proffered any additional evidence or even, for that matter, addressed the City's arguments on this score in its motion for summary judgment. This is insufficient as a matter of law to establish that a material issue of disputed fact exists with respect to Foy's Monell claim.

  6. Claims Against Supervisors

  In his final federal claim, Foy avers, pursuant to 42 U.S.C. § 1983, that the supervisors of the unidentified defendants violated his Fourth and Fourteenth Amendments through their creation of a policy that permits the arrest of innocent persons and their failure to train officers in investigative techniques, arrest criteria, and their duty to intervene. Foy, however, has not identified any specific supervisor against whom this claim is to be levied and it must therefore be dismissed. Brogdon v. City of New Rochelle, 200 F.Supp.2d 411, 426 (S.D.N.Y. 2002) (granting summary judgment on plaintiff's § 1983 claim for supervisory liability because it was "not asserted against any identified individual who has been served with process" and "fail[ed] to state a cause of action").

  C. Plaintiffs' State Claims

  In addition to his federal claims, Foy asserts state law causes of action for false arrest and imprisonment, unlawful search, negligent hiring, training, and supervision, and negligent detention and imprisonment. The parties disagree as to how the Court should address these claims. In his 56.1 Counterstatement, Foy requests that the Court dismiss his pendent state law claims without prejudice for lack of jurisdiction so he can pursue them in state court. The City vigorously argues that Foy's state law claims should be dismissed on their merits because Foy has failed to satisfy the statutory pre-requisites to suit by timely filing a notice of claim.

  The record on the issue of whether Foy properly filed a notice of claim with the City is far from clear and the matter will have to be litigated, if at all, in another forum. I decline to exercise pendent jurisdiction over these claims and they are dismissed without prejudice. While plaintiff counsel's failure to serve any discovery requests — which has stalled this litigation and possibly jeopardized his client's rights — is not to be condoned, the fact remains that the factors outlined by the Second Circuit in Valencia ex rel. Franco v. Lee, 316 F.3d 299, 305 (2d Cir. 2003) (citing Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 349-50 (1988)) nevertheless weigh in favor of dismissal without prejudice.


  For the foregoing reasons, defendant's motion for summary judgment is granted on plaintiff's federal claims. Plaintiff's state law claims are dismissed without prejudice. The Clerk of the Court is instructed to close this motion and remove this case from my docket.


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