United States District Court, S.D. New York
November 1, 2004.
CARYLL KRAMER, Plaintiff,
THE CITY, NEW YORK CITY NEW YORK POLICE DEPARTMENT, POLICE OFFICER CRAIG DE OLIVIERA, DETECTIVE PATRICK KENNEDY, SHELD 2041, AND UNIDENTIFIED NEW YORK CITY POLICE OFFICERS Defendant.
The opinion of the court was delivered by: HAROLD BAER, JR., District Judge
OPINION & ORDER
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
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.
II. APPLICABLE STANDARD
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
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
Accordingly, Defendant Kennedy is entitled to qualified
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
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
Accordingly, Plaintiff's malicious prosecution claim must be
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.
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
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
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
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
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
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
Accordingly, Plaintiff's libel and slander claim must be
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
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
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
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
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
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
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.
IT IS SO ORDERED.