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United States District Court, S.D. New York

November 1, 2004.


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


Plaintiff, Caryll Kramer brought a civil rights claim, under 42 U.S.C. § 1983, against Defendants, the City of New York ("City"), New York City Police Department ("NYPD"), Police Officer Craig De Oliviera ("Oliviera"), Detective Patrick Kennedy ("Kennedy"), Shield 2041, and Unidentified New York City Police officers (collectively, "Defendants"). Pursuant to Federal Rule of Civil Procedure 56, Defendants move for summary judgment.*fn1 For the reasons set forth below, Defendants motion for summary judgment is GRANTED.


  A. Factual Background

  Noel Kramer had consulted the same physician, Dr. Jonathan Raskin ("Raskin"), for over 12 years. In fear, Noel Kramer asked Raskin to run tests to determine whether, in fact, Plaintiff had attempted to kill him. Raskin, aware of Plaintiff's alleged alcoholism, alleged abusiveness, and his patient's belief that his wife had attempted to poison him (Raskin Dep. at 23:5-24:16), ran tests in April 2001, and the results indicated that the arsenic level in Noel Kramer's blood were seven times greater than normal. (Raskin Dep. at 21:7-15).

  In response to consistent illness because of his wife's food and fear for his safety, on May 10, 2001, Noel Kramer, accompanied by Oliveira and a nurse's aide, entered the 17th Precinct and lodged a complaint, which alleged that his wife, the Plaintiff here, had attempted to poison him. In support of his allegation, Noel Kramer informed the police of (1) a lab analysis that indicated an increased level of arsenic (NYPD Compl. Rep. #2001-17-0032932); (2) "that his doctor couldn't explain why he had such high levels of arsenic in his system"; (3) that his wife would not allow anyone else to prepare his food; and, (4) that his relationship with his wife had significantly deteriorated. (Kennedy Dep. at 18:23-24:2).

  To discern the legitimacy of Noel Kramer's criminal complaint, the New York County District Attorney's Office directed that newly prepared food be tested for poison. (Hughes Dep. at 23:22-24:14). On the evening of May 10, 2001, at the direction of the Assistant District Attorney, Noel Kramer returned to his apartment and ordered food. The police entered the apartment and Plaintiff refused to follow the police officer's directions. (Heiman Dep. at 22:11). Plaintiff went for her purse and Heiman pushed the pocketbook away and looked inside to make sure there were no weapons. (Heiman Dep. at 22:11; Kennedy Dep. at 66:10-67:22; Sullivan Dep. at 31:2-19; Pl. Dep. at 137:9-138:22). The Detectives handcuffed Plaintiff and escorted her out of the apartment. (Pl. Dep. at 139:16-20). Plaintiff never complained or sought treatment for any injuries that resulted from the arrest and never sought medical treatment for any injuries she allegedly sustained as a result of being handcuffed. (Pl. Dep. at 147:7-151:23).

  Upon arrival at the 17th Precinct, the police locked Plaintiff in a holding cell. (Pl. Dep. at 156:4-9). Plaintiff was in the holding cell for several hours, but not searched until she requested to use the bathroom. (Pl. Dep. at 154:19-155:23). On the evening of the arrest, while at the 17th Precinct, Plaintiff requested the use of the ladies room twice. (Pl. Dep. at 154:23). During both occasions, a female law enforcement officer escorted Plaintiff into the bathroom where Plaintiff "had to bear" her "derriere." (Pl. Dep. at 154:18-24). The following morning, May 11, 2001, Plaintiff was escorted to Central Booking and later that day arraigned for attempted murder in the second degree and resisting arrest. Bail was set at $100,000. (N.Y. County Dock. No. 2001NY041680, dated May 11, 2001).

  In response to the arrest, Noel Kramer cancelled all of his wife's credit cards, changed all the joint bank accounts over to his name, and stopped payments on Plaintiff's health insurance. (Pl. Dep. at 174:17-183:15). On November 16, 2001, the charges against Plaintiff were dismissed after the District Attorney's Office failed to prosecute.

  B. Procedural History

  On April 29, 2002, Plaintiff filed an action against the City, the NYPD, Oliviera, and Noel Kramer in New York County Supreme Court. Kramer v. New York, No. 108657/02 (N.Y. Sup. Ct. Nov. 26, 2003). Plaintiff alleged that on May 10, 2001 she was falsely arrested and maliciously prosecuted because of the accusations fabricated by Noel Kramer and Oliviera. In response, Oliviera filed a motion for summary judgment to dismiss the State Court action. On November 26, 2003, Judge Soto dismissed the malicious prosecution charge, but the false arrest and imprisonment, intentional infliction of emotional distress, libel/slander, and defamation of character charges against Oliviera survived. Id.

  On January 7, 2004, Plaintiff filed a Federal action based on the same May 10, 2001 events. The action alleged that Plaintiff's civil rights were violated, pursuant to 42 U.S.C. § 1983, and named the City, the NYPD, Kennedy, and Oliviera as defendants. The City and NYPD consented to the removal of the state-law action to federal court. On March 26, 2004, Judge Soto stayed the state law claims against Oliviera and, pursuant to Plaintiff's request, dismissed the allegations against Noel Kramer.


  A court will not grant a motion for summary judgment unless it determines that there is no genuine issue of material fact and the undisputed facts are sufficient to warrant judgment as a matter of law. Fed.R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v. Liberty Lobby Inc., 477 U.S. 242, 250 (1986). The party opposing summary judgment "may not rest upon the mere allegations or denials of the adverse party's pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial." Fed.R. Civ. P. 56(e). In determining 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). It is not the court's role to resolve issues of fact; rather, the court may only determine whether there are issues of fact to be tried. Donohue, 834 F.2d at 58 (citations omitted). However, a disputed issue of material fact alone is insufficient to deny a motion for summary judgment, the disputed issue must be "material to the outcome of the litigation," Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986), 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).


  Pursuant to Fed.R. Civ. P. 56, Defendants move for summary judgment contending that at this stage of the litigation: plaintiff's false arrest claim should be dismissed because there was probable cause; plaintiff's malicious prosecution claim is barred by the doctrine of collateral estoppel, the Rooker-Feldman doctrine, and also fails as a matter of law; plaintiff fails to state a claim under the Equal Protection and Due Process Clauses of the Fourteenth Amendment; any purported conspiracy claim must be dismissed; Detective Patrick Kennedy is entitled to qualified immunity; and, plaintiff's state law claims should be dismissed as a matter of law.

  A. False Arrest

  Plaintiff alleges that Kennedy lacked the requisite information that would lead a reasonable person to conclude that Plaintiff had committed or is about to commit a crime and, therefore, failed to have probable cause to justify an arrest. See Boyd v. City of N.Y., 336 F.3d 72 (2d Cir. 2003). Plaintiff's § 1983 claim for false arrest "derives from an individual's right to remain free from unreasonable seizures." Caldarola v. Calabrese, 298 F.3d 156 (2d Cir. 2002). This includes the right to remain free from arrest absent probable cause. Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996). When reviewed in the light most favorable to Plaintiff, Saucier v. Katz, 533 U.S. 194, 201 (2001), the complaint alleges that the police arrested Plaintiff without probable cause in violation of the constitution. Lee v. Sandberg, 136 F.3d 94, 102 (2d Cir. 1997) ("The right not to be arrested without probable cause is a clearly established right.").

  However, at the time of the arrest, it was "equally well established that the existence of probable cause is an absolute defense to a false arrest claim and affords the arresting officer qualified immunity from litigation." Caldarola, 298 F.3d at 162. "Probable cause is a complete defense to a cause of action for false arrest." Smith v. Edwards, 175 F.3d 99, 105 (2d Cir. 1999) (internal citation omitted). "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." Savino v. City of N.Y., 331 F.3d 63, 77 (2d Cir. 1999) (internal citation omitted).

  Noel Kramer walked into the 17th Precinct on May 10, 2001 and alleged that his wife was attempting to murder him. In support of his allegations, Noel Kramer informed the police of (1) consistent illness which he believed resulted from his wife's food preparation; (2) his wife's unwillingness to allow anyone but herself to prepare his dinner; and, (3) a deteriorating marriage. Noel Kramer also provided the police with information regarding lab results that indicated a high level of arsenic in his blood and corroboration of the test results by a nurses' aid. (Pl. Dep. at 123:23-124:9; NYPD Compl. Rep. #2001-17-0032932). Taken together, these allegations establish probable cause to arrest Plaintiff and "there can be no claim for false arrest where the arresting officer had probable cause to arrest the plaintiff." Escalera v. Lunn, 361 F.3d 737, 743 (2d Cir. 2004).

  Accordingly, this claim must be dismissed.

  B. Qualified Immunity*fn2

  Assuming arguendo that Plaintiff was falsely arrested, the individual defendants are still entitled to qualified immunity. Qualified immunity shields a government official acting in an official capacity from suit for damages under Section § 1983 provided that the official did not violate "clearly established rights of which an objectively reasonable official would have known." Kinzer v. Jackson, 316 F.3d 139, 143 (2d Cir. 2003). "A qualified immunity defense is established if (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." Kent v. Katz, 312 F.3d 568, 573 (2d Cir. 2002). The focus of a qualified immunity analysis is on "objective circumstances rather than an officer's subjective motivation." Bradway v. Gonzales, 26 F.3d 313, 319 (2d Cir. 1994) (citation omitted). "The Supreme Court has stated that the immunity accorded officials by this doctrine protects all but the plainly incompetent or those who knowingly violate the law, and added that if officers of reasonable competence could disagree on the legality of an act, immunity should be recognized." Lowth v. Town of Cheektowaga, 82 F.3d 563, 569 (2d Cir. 1996).

  Moreover, even if Plaintiff's constitutional rights were violated, Detective Kennedy is still entitled to qualified immunity because of Kennedy's "belief that his conduct was lawful was reasonable." Cowan, 352 F.3d at 762. See also Saucier, 533 U.S. at 202 ("Officers can have reasonable, but mistaken, beliefs as to the facts establishing the existence of probable cause or exigent circumstances, for example, and in those situations courts will not hold that they have violated the Constitution.").

  Accordingly, Defendant Kennedy is entitled to qualified immunity.

  C. Malicious Prosecution Claim

  Under New York law, collateral estoppel occurs if "(1) the issue in question was actually and necessarily decided in a prior proceeding, and (2) the party against whom the doctrine is asserted had a full and fair opportunity to litigate the issue in the first proceeding." Vargas v. City of N.Y., 377 F.3d 200, 204 (2d Cir. 2004). When claimed, the moving party must demonstrate that the non-moving party's previous claim was actually and necessarily decided and that Plaintiff had a full and fair opportunity to litigate those issues. Colon v. Coughlin, 58 F.3d 865, 869 (2d Cir. 1995).

  As I have previously noted, "under the Rooker-Feldman doctrine, lower federal courts lack subject matter jurisdiction over claims that effectively challenge state court judgments," based on comity and the firmly-established principle that only the Supreme Court can review a final decision of a state court. Allianz Ins. Co. v. Cavagnuolo, No. 03 Civ. 1636, 2004 WL 1048243 at *4 (S.D.N.Y. May 7, 2004) (Baer, J.) (citing to Kropelnicki v. Siegel, 290 F.3d 118, 128 (2d Cir. 2002)).*fn3 The essence of the Rooker-Feldman doctrine "is that inferior federal courts have no subject matter jurisdiction over cases that effectively seek review of judgments of state courts and that federal review, if any, can occur only by way of a certiorari petition to the Supreme Court." Moccio v. New York State Office of Court Admin, 95 F.3d 95, 197 (2d Cir. 2000). Rooker-Feldman bars those claims that were adjudicated in a prior state court action, as well as those claims that are "inextricably intertwined" with the state court judgment. We have held that "inextricably intertwined means, at a minimum, that where a federal plaintiff had an opportunity to litigate a claim in a state proceeding . . . subsequent litigation of the claim will be barred under the Rooker-Feldman doctrine if it would be barred under the principles of preclusion." Santini v. Conn. Hazardous Waste Mgmt. Serv., 342 F.3d 118, 126 (2d Cir. 2003) (quoting and citing Moccio, 95 F.3d at 197). This doctrine protects the integrity of state court judgments and must, therefore, be invoked "if adjudication of a claim in federal court would require the court to determine that a state court judgment was erroneously entered or was void." Kropelnicki, 290 F.3d at 129.

  The Plaintiff's claim for malicious prosecution, which followed the November 16, 2001 dismissal of the criminal case, necessitates federal court review of the state court's determination of Plaintiff's civil complaint issued on November 26, 2003. In particular, New York State Supreme Court Judge Soto adjudicated, among other things, the malicious prosecution claim and entered a final judgment:

On this cause of action [Malicious Prosecution], the complaint on its face fails to allege an essential element-the termination of the criminal proceedings in plaintiff's favor, which has been held to mean a termination on the merits. Failure to establish any one of the four requisite elements defeats the entire claim."
Kramer v. New York, No. 108657/02 (N.Y. Sup. Ct. Nov. 26, 2003). The decision constitutes a final judgment for the purposes of the Rooker-Feldman doctrine. See Alleyne v. City of N.Y., 225 F. Supp. 2d 391, 394 (S.D.N.Y. 2002) (holding that "a party may not evade these rules and principles of federalism by recasting his claims pending in state court as a civil rights action under 42 U.S.C. § 1983."). Plaintiff has had an opportunity to litigate the claim already once in state court and now seeks a second bite at the apple in federal court. In order to succeed on the malicious prosecution claim, this Court would have to overturn the state court decision and "[a] plaintiff . . . `may not seek a reversal of a state court judgment simply by casting his complaint in the form of a civil rights action'." Brooks-Jones v. Jones, 916 F. Supp. 280, 281-282 (S.D.N.Y. 1996). Accordingly, Plaintiff's malicious prosecution claims must be dismissed.

  Accordingly, Plaintiff's malicious prosecution claim must be dismissed.

  D. Fourteenth Amendment Violation

  Plaintiff argues that the Defendants violated her rights under the Fourteenth Amendment by favoring the allegations of Oliviera over Plaintiff. To establish an equal protection violation, plaintiffs must prove purposeful discrimination, McCleskey v. Kemp, 481 U.S. 279, 292 (1987), directed at an identifiable or suspect class. Giano v. Senkowski, 54 F.3d 1050, 1057 (2d Cir. 1995).

  Plaintiff's equal protection claim is facially deficient. An equal protection claim requires "purposeful discrimination, directed at an identifiable or suspect class." Id. at 1057 (internal citation omitted). Kramer has made no such class allegation. Instead, Plaintiff's claim is based on the particular circumstances of her arrest. While it is possible for Plaintiff to allege a "class of one, where the plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment," Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000), 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. Vill. of Mineola, 273 F.3d 494, 500 (2d Cir. 2001) (internal citation omitted).

  Plaintiff has failed to present any evidence of unequal treatment sufficient to defeat summary judgment. See Foy v. City of N.Y., No. 03 Civ. 7318, 2004 WL 2033074 (S.D.N.Y. Sept. 10, 2004) (Baer, J.). Indeed, the available evidence demonstrates the Plaintiff's "arrest was not arbitrary, irrational, or motivated by animus of any sort." Id., 2004 WL 2033074 at *3. As was already stated, see supra at 4-5, the police officers had probable cause to arrest Plaintiff and received fair and equal treatment. Accordingly, this claim must be dismissed.

  E. Impermissible Search Leading to Damage to Reputation

  Plaintiff alleges that, because of the NYPD's unlawful entrance and search of Plaintiff's apartment and handbag, Plaintiff's reputation in the community was impaired and she was otherwise injured. (Complaint, ¶ 20).

  The Supreme Court stated that reputation alone is not a protected liberty interest. Siegert v. Filley, 500 U.S. 226, 233 (1991). Plaintiff must demonstrate damage to her reputation "coupled with some other tangible element in order to rise to the level of a protectable liberty interest." Valmonte v. Bane, 18 F.3d 992, 999 (2d Cir. 1994). This requirement is commonly known as "stigma plus." Valmonte, 18 F.3d at 999. Defamation or damaged reputation alone fails to trigger a constitutional deprivation of a liberty interest. See Siegert v. Gilley, 500 U.S. 226, 233-34 (1991). "The stigma prong requires [Plaintiff] to show that the . . . defendants' statements [or action] will result in stigma, public opprobrium and damage to [her] reputation." Martinez v. City of N.Y., No. 00 Civ. 7914, 2003 WL 2006619 at *6 (S.D.N.Y. Apr. 30, 2003). If Plaintiff demonstrates sufficient stigma, she must also satisfy the "plus" requirement. In the Section 1983 context, a plaintiff who alleges governmental defamation must demonstrate:

The utterance of a statement about him or her that is sufficiently derogatory to injure his or her reputation, that is capable of being proved false, and that he or she claims is false, and some tangible and material state-imposed burden or alteration of his or her status or of a right in addition to the stigmatizing statement.
Paul v. Davis, 424 U.S. 693, 701-702 (1976).

  Here, the stigma-plus standard is not satisfied. Plaintiff fails to demonstrate that Defendants, as state actors, "altered or extinguished a right or status that was previously recognized under state law." Avello v. Hammons, 963 F. Supp. 262, 266 (S.D.N.Y. 1997). Plaintiff has never attempted to obtain employment (Pl. Dep. at 196:21-24) and the pecuniary loss she suffered was a direct result of Noel Kramer's decision to cease financial support. (Pl. Dep. at 97:22-98:24; 172:19-183:15). Furthermore, Plaintiff has not presented any evidence that would suggest that Plaintiff has been unable to garner employment. Any pecuniary loss cannot be attributed to the Defendants and, as such, Plaintiff cannot establish anything more than purported damage to her reputation resulting from her arrest.

  Accordingly, Plaintiff's damage to reputation must be dismissed.

  F. Conspiracy Claim

  Plaintiff alleges that under the circumstances, the friendship between Oliviera and Noel Kramer permit an inference that there was a meeting of the minds sufficient to establish a conspiracy liability theory.

  To demonstrate a 42 U.S.C. § 1983 conspiracy, a plaintiff must show: "(1) an agreement between two or more state actors or between a state actor and a private entity; (2) to act in concert to inflict an unconstitutional injury; and (3) an overt act done in furtherance of that goal causing damages." Ciambriello v. County of Nassau, 292 F.3d 307, 324-25 (2d Cir. 2002). In Ciambriello, the Second Circuit explained that "complaints containing only conclusory, vague, or general allegations that the defendants have engaged in a conspiracy to deprive the plaintiff of his constitutional rights are properly dismissed; diffuse and expansive allegations are insufficient, unless amplified by specific instances of misconduct." Id.*fn4 The Second Circuit deemed the factual allegations inadequate in Ciambriello because plaintiff had "not provided any details of time and place and failed to specify in detail the factual basis necessary to enable defendants intelligently to prepare their defense." Hernandez v. Goord, 312 F. Supp. 2d 537, 546 (S.D.N.Y. 2004).*fn5 While Section 1983 claims "are by their very nature secretive operations, and may have to be proven by circumstantial, rather than direct, evidence," Hernandez, 312 F. Supp. 2d at 546, "[c]onclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss." Smith v. Local 819 I.B.T. Pension Plan, 291 F.3d 236, 240 (2d Cir. 2002).

  While Plaintiff extensively itemizes each instance of Noel Kramer interacting with the police department and Oliviera, neither the Complaint nor opposition to Defendants' motion for summary judgment articulates a single example of an impermissible agreement or quid pro quo arrangement. Plaintiff fails to present even a scintilla of evidence regarding the existence, or even inference, of any specific agreement to violate Plaintiff's rights, whether such an agreement was entered into, the nature of the agreement, or specific acts in furtherance of the agreement. Friendship alone is insufficient to support the existence of a conspiracy. Accordingly, Plaintiff's conspiracy claim must be dismissed.

  G. State Law Claims

  1. Libel and Slander

  According to Plaintiff, Detective Kennedy and the NYPD disclosed false and defamatory information regarding Plaintiff to various newspapers. In particular, Plaintiff points to a May 15, 2001 New York Daily News article, which identified Plaintiff, her alleged attempt to poison her husband, her husband's sickness every time his wife cooked for him, her unwillingness to permit others to prepare food, and Noel Kramer's wealth. (Pl. Ex. O). Plaintiff also points to a New York Times article that paints a similar picture.

  In order to establish a prima facie case for slander or libel under New York law, "all of the following elements are required: (1) a false and defamatory statement of and concerning the plaintiff; (2) publication by defendant of such a statement to a third party; (3) fault on part of the defendant; and, (4) injury to plaintiff." Idema v. Wager, 120 F. Supp. 2d 361, 365 (S.D.N.Y. 2000).

  However, New York law recognizes "an absolute and qualified privilege for law enforcement personal, depending on the circumstances, and requires a showing of actual malice before a plaintiff will be allowed to prevail in a defamation action." Regan v. Sullivan, 557 F.2d 300, 309 n. 11 (2d Cir. 1977). To overcome the qualified privilege:

[T]he plaintiff must challenge the defendant's good faith and allege that []he acted either with actual malice (i.e., []he made a defamatory statement with the knowledge that it was false or with reckless disregard as to whether it was false), or with common law malice (i.e., []he made the defamatory statement solely with the desire to injure the plaintiff).
Perks v. Town of Huntington, 251 F. Supp. 2d 1143, 1165 (E.D.N.Y. 2003). Mere allegations of libel and slander are not enough. Shamley v. ITT Corp., 869 F.2d 167, 173 (2d Cir. 1989). A plaintiff must present evidentiary facts that support this conclusion. Id. To survive a motion for summary judgment, a plaintiff must present "evidence in admissible form sufficient to raise a triable issue whether the statements were made with malice." County Vanlines, Inc. v. Experian Info. Solutions, Inc., 317 F. Supp. 2d 383, 389 (S.D.N.Y. 2004). "A plaintiff does not make the requisite showing of malice simply by conclusorily labeling the defamation malicious." Id. at 390 (citing to Shamley v. ITT Corp., 869 F.2d 167, 173 (2d Cir. 1989)). A plaintiff must present evidentiary facts that support this conclusion. Id. "This burden may not be met by surmise, conjecture and suspicion nor by mere conclusions, expressions of hope or unsubstantiated allegations or assertions." Id.

  Assuming the statements made to the newspapers by law enforcement personnel were false, the Complaint fails to allege that the statements were made with the requisite malice. Malice, which "means spite or ill will," defeats the privilege "only if it is the one and only cause for the publication." Id. at 390 (collecting cases). Plaintiff failed to present a scintilla of evidence that would suggest the police falsely commented on the incident out of spite or because of any ill will towards Plaintiff. The Defendants' statements were "neither gratuitous nor irrelevant references to a prior incident that allegedly involved plaintiff." Lee v. City of Rochester, 677 N.Y.S. 2d 848, 851 (N.Y.A.D. 4 Dep't 1998). The references to Plaintiff, assuming erroneous, were germane to the police investigation and "[a] police officer may give details of past and present incidents that would interest or affect the public." Id. Absent any evidence that the comments made to the press regarding Plaintiff were made in spite or ill will, the officer's statements appear to have merely been a reasonable mistake and, therefore does not establish either constitutional or common-law malice.*fn6

  Accordingly, Plaintiff's libel and slander claim must be dismissed.

  2. Invasion of Privacy

  Plaintiff claims an invasion of privacy from the NYPD's unlawful entrance into Plaintiff's apartment and the searches of her person, her purse, and the apartment. (Pl. Dep. at 21). The record is unclear whether the police actually entered the apartment to arrest Plaintiff.*fn7 In her deposition, Plaintiff alleged that she refused the police entry into her apartment when they sought to arrest her on May 10, 2001, and that the police in response forcibly took her from the entrance of her apartment to arrest her (without actually entering the apartment). (Pl. Dep. at 137:6-140:25). The Supreme Court has held that arrest warrants are required to arrest suspects within their homes, absent consent or exigent circumstances. Payton v. New York, 445 U.S. 573 (1980).

  The reasonableness of a police determination of consent to enter is judged by the objective standard of whether the facts available at the moment would warrant a person of reasonable caution in the belief that the consenting party had authority over the premises without a warrant. Illinois v. Rodriguez, 497 U.S. 177 (1990). In this case, the owner of the apartment and potential victim of the alleged crime gave the police permission to enter the apartment when he filed his complaint earlier on May 10, 2001. (Kennedy Dep. at 62:16-20; Hughes Dep. at 23:22-24:14; 31:2-16). Thus, whether or not the police entered Plaintiff's apartment to arrest her, the entry was made on a reasonable belief of consent to enter the apartment by a person with actual authority to grant such consent. Without a Fourth Amendment violation in the manner of her arrest or the entry into her apartment, defendants did not violate Plaintiff's reasonable expectations of privacy.

  Accordingly, Plaintiff's invasion of privacy claim must be dismissed.

  3. Intentional Infliction of Emotion Distress

  Under New York law, to state a claim for intentional infliction of emotional distress, Plaintiff must demonstrate: "(1) extreme and outrageous conduct; (2) intent to cause, or reckless disregard of a substantial probability of causing, severe emotional distress; (3) a causal connection between the conduct and the injury; and, (4) severe emotional distress." Hart v. Westchester County Dep't of Soc. Serv., 160 F. Supp. 2d 570, 579 (S.D.N.Y. 2001). "Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society." Arena v. Agip, No. 95 Civ. 1529, 2000 WL 264312 at *4 (S.D.N.Y. Mar. 8, 2000) (emphasis added).

  There is no evidence in the record from which a fair-minded trier of fact could reasonably conclude that the conduct of these defendants constitutes either extreme or outrageous conduct. See, e.g., Rall v. Hellman, 726 N.Y.S. 2d 629 (1st Dep't 2001); Andrews v. Bruk, 631 N.Y.S. 2d 771 (2d Dep't 1995). Under the facts presented here, see supra at 4-11, the Court concludes that the record lacks any evidence even remotely satisfying this rigorous threshold and upon which a rational fact-finder could find liability. Brown v. City of N.Y., 306 F. Supp. 2d 473, 481 (S.D.N.Y. 2004).

  Accordingly, Plaintiff's claim of intentional infliction of emotional distress must be dismissed. 4. Unlawful Strip Search

  Plaintiff contends that when she was forced to expose her derrière, the police officers engaged in an unlawful strip search while at the police precinct.

  The Constitution mandates that searches of individuals, even those arrested or incarcerated, be reasonable under the circumstances. Bell v. Wolfish, 441 U.S. 520, 559 (1979). The reasonableness of a strip search turns on the scope of the intrusion, the manner in which the search is conducted, the justification for initiating the search, and the place in which the search is conducted. Id. (citations omitted). The Fourth Amendment prohibits strip/body cavity searches of arrestees charged with misdemeanors or other minor offenses absent a "reasonable suspicion that the arrestee is concealing weapons or other contraband based on the crime charge, the particular characteristics of the arrestee, and/or the circumstances of the arrest." Weber v. Dell, 804 F.2d 796, 802 (2d Cir. 1986). Several courts within this circuit have applied this particularized or individualized reasonable suspicion test to strip searches of felony arrestees. See Sarnicola v. County of Westchester, 299 F. Supp. 2d 259, 270 (S.D.N.Y. 2002) (holding that the mere arrest for felony drug charges does not permit strip search absent reasonable suspicion that the individual is secreting drugs or other contraband within body cavities); Murcia v. County of Orange, 226 F. Supp. 2d 489, 494 (S.D.N.Y. 2002) (policy to strip search felony arrestees arriving at correction facility is unconstitutional).

  In this case, the officer satisfies even a heightened standard of particularized reasonable suspicion that the plaintiff was secreting contraband within her body cavity. Plaintiff was arrested for attempted murder. Plaintiff was alleged to have attempted to murder her husband by poisoning him with arsenic, a substance that is capable of being carried in a container small enough to be hidden in a body cavity. See Covino v. Patrissi, 967 F.2d 73, 79 (2d Cir. 1992) (drugs and contraband often found in body cavities); Storms v. Coughlin, 600 F. Supp. 1214, 1219 (S.D.N.Y. 1984) (same); see also 48 AMJUR POF 2d 431 at § 1 (description of arsenic). Perhaps most significant is the fact that plaintiff was searched only upon the two occasions she indicated she had to use the restroom. (Pl. Dep. at 154:16-155:17). This raised the reasonable suspicion that plaintiff may have been secreting arsenic or other contraband within her and would take the opportunity to use the restroom to expunge it.

  Additionally, the nature of the strip search itself was not unreasonable. The scope of the search was minimal insofar as plaintiff was only requested "to bear" her "derriere." (Pl. Dep. at 154:22). She was not forced to undergo a visual body cavity search. See Sec. and Law Enforcement Empl. v. Carey, 737 F.2d 187, 207-08 (2d Cir. 1984) (distinguishing strip searches from more intrusive visual body cavity searches). She was not even asked to disrobe. Moreover, the search was conducted by a female officer in a holding cell without anyone else present. (Pl. Dep. at 154-55.) There is also evidence of the reasons for the search. The plaintiff testified she was not searched in any way when she first was placed in the holding cell. (Pl. Dep. at 155:6-10). It was only upon each of her two requests to use the restroom that she was searched by the officer, presumably suspicious that such requests were really efforts to destroy hidden contraband. (Pl. Dep. at 154-155). The search was thus not gratuitous or unjustified. Although one court in this jurisdiction has utilized a list of factors to be assessed under Weber's particularized reasonable suspicion test, see Sarnicola, 299 F. Supp. 2d at 271-74, the circumstances here are nevertheless adequate to satisfy that test. The search of plaintiff was not unreasonable.

  Accordingly, Plaintiff's claim of unlawful strip search must be dismissed.

  5. Assault and Battery

  The Plaintiff alleges that she suffered an assault and battery when the Detectives pushed and handcuffed her, as the handcuffs caused her to suffer black and blue marks, pain, and swelling. (Pl. Dep. at 139:16-19; 141:1-7).

  In the context of state officers performing their lawful duties, New York State law regarding assault and battery parallels the federal laws regarding excessive force. Green v. City of N.Y., No. 01 Civ. 1996, 2004 WL 213009 at *3 (S.D.N.Y. Jan. 5, 2004).*fn8 Under federal or state law, a plaintiff must demonstrate that "the amount of force used was objectively unreasonable" based upon a consideration of "the perspective of the officer at the time of the arrest." Anthony v. City of N.Y., No. 00 Civ. 4688, 2001 WL 741743 at *13 (S.D.N.Y. Jul. 2, 2001) (quoting Lowth v. Town of Cheektowaga, 82 F.3d 563, 573 (2d Cir. 1996)). Where there has been an unlawful arrest, any degree of force is unreasonable and excessive. See Black v. Town of Harrison, No. 02 Civ. 2097, 2002 WL 31002824 at *6 (S.D.N.Y. Sep. 5, 2002).

  Here, we have already determined that the Detectives had probable cause and Plaintiff's arrest was lawful. See supra at 4. As Plaintiff does not allege that the officers used excessive force during the arrest, her claim of assault and battery should be dismissed.*fn9 Assuming an allegation of excessive force, the Plaintiff has not offered any evidence to show that the any force used against her was objectively unreasonable and the record supports the officers extremely limited use force when arresting her. While the Plaintiff states that she only complained to the officers who drove her from the 17th Precinct to Central Booking at Centre Street about how the tightness of the handcuffs (Pl. Dep. at 153:6-12) and the Plaintiff admitted that she did not tell Kennedy or the other detectives that arrested her that the handcuffs were too tight during her journey to the 17th Precinct. (Pl. Dep. at 152:12-24; 153:2-5). In addition, the Plaintiff admits that she did not sustain any physical injuries when the Detectives "pushed" her out of the apartment. (Pl. Dep. at 140:22-25). The Plaintiff's statements strongly imply that force was not used at all, much less unreasonable force, as the manner in which the Plaintiff was pushed did not hurt her at all, and the manner in which the Plaintiff was handcuffed clearly did not injure her at the time.

  Accordingly, Plaintiff's claim of assault and battery should be dismissed.

  6. Negligent Hiring and Retention

  Plaintiff's claim that City and NYPD carelessly and recklessly hired, retained, trained, supervised, and promoted the officers who investigated and/or arrested the Plaintiff as well as Oliveira. The result of City and NYPD's negligent practices were the intentional torts listed above.

  a. Detective Kennedy, Shield 2041, and Unidentified NYC Police Officers

  The City concedes that the individual defendants were employed by it on the date in question and, with the exception of Oliviera, acted within the scope of their employment. (Pl. Mtn. Sum. J. at 22). Plaintiff, therefore, has no claim for negligent training and supervision in light of this concession. Colodney v. Continuum Health Partners, Inc., No. 03 Civ. 7276, 2004 WL 829158 at *9 (S.D.N.Y. Apr. 15, 2004) (holding that "[w]hen an employee is acting within the scope of her employment, her employer may be held liable for the employee's negligence only under a theory of respondeat superior, and no claim may proceed against the employer for negligent hiring or retention.").*fn10 b. Oliviera

  The Plaintiffs' claims for negligent hiring, retention, and supervision cannot provide a basis for liability against Oliviera. Under New York law, a plaintiff cannot establish a negligent hiring claim when the alleged employee acted outside the scope of his employment and was not under the City's supervision or control. Estevez-Yalcin v. Children's Vill., 331 F. Supp. 2d 170 (S.D.N.Y. 2004). The "employer is only liable for the actions of an employee where the employee was engaged in the furtherance of the employer's business and the employer was, or could have been, exercising some control, directly or indirectly, over the employee's activities." Mahmood v. City of N.Y., No. 01 Civ. 5899, 2003 WL 21047728 at *2-3 (S.D.N.Y. May 8, 2003). As this district recently noted:

[A]n employee's actions are not within the scope of employment unless the purpose in performing such actions is to further the employer's interest, or to carry out duties incumbent upon the employee in furthering the employer's business. Thus, where an employee's conduct is brought on by a matter wholly personal in nature, the source of which is not job-related, his actions cannot be said to fall within the scope of his employment.
Id., 2003 WL 21047728, at *2-3 (citations omitted).

  Here, the issue is whether Noel Kramer's friend and police officer, Oliviera, acted in his official capacity when he accompanied Noel Kramer to the police station. (Pl. Ex. Q, 54-56). The facts indicate that Oliviera acted in his personal capacity as a friend of Noel Kramer and not as a New York City police officer. First, Oliveira was off-duty when he made the decision to go to the 17th Precinct with Noel Kramer. (Heiman Dep. at 166:9-10). Second, no NYPD supervisor authorized Oliviera to go to the 17th Precinct with Noel Kramer. (Sullivan Dep. at 166:5-7). Third, Oliviera never spoke in his official capacity or acted on behalf of the NYPD while at the police station. Fourth, Oliviera never assisted with the search, spoke with any of the detectives, or carried an official assignment when you testified at Plaintiff's arraignment. (Sullivan Dep. at 166:12-167:14). It is well-settled that conduct "where an employee's conduct is brought on by a matter wholly personal in nature, the source of which is not job-related, his actions cannot be said to fall within the scope of his employment" and, therefore, this claim must be dismissed.


  For all of the foregoing reasons, Plaintiff's motion for Summary Judgment is GRANTED. The Clerk is instructed to close this motion and any other open motions and remove this case from my docket.


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