United States District Court, S.D. New York
February 7, 2005.
ELIEZER WAHHAB, and AMEHRA BROWN, Plaintiffs,
THE CITY OF NEW YORK, NEW YORK CITY POLICE OFFICERS SAMUEL RUSHING, Shield #6377 and DAVID E. MARTIN, Shield #88157, THE GALLERY AT FULTON ST., LLC, TOP POTATO PLUS CORP., THEODORE PRIFTAKIS, Individually and as Owner/Manager of Top Potato Plus Corp., CANNADY SECURITY CO., HENRY CANNADY, Individually and as Owner of Cannady Security Co., SECURITY GUARD JOVAN ROUSE, and SECURITY GUARDS DOE ONE THROUGH FIVE, not yet identified, Defendants.
The opinion of the court was delivered by: CONSTANCE MOTLEY, Senior District Judge
Plaintiffs Eliezer Wahhab and Amehra Brown claims that Wahhab
was assaulted by security guards while they and their family were
at a restaurant in the food court of a shopping mall. After an
altercation arose between Wahhab and the restaurant manager over
food quality, security guards, some of whom were off-duty police
officers and some of whom were civilian guards responded. Wahhab
alleges that he was forced to accompany the guards to a security
room toward the rear of the mall, where he was severely beaten
and suffered injuries including a shattered jaw. Plaintiffs filed
suit against the restaurant, its manager, various security
guards, the guards' security company, the security company's
owner, the mall, and the City of New York.
B. Procedural History
Eliezer Wahhab and Amehra Brown filed this action against the
above-named defendants on February 4, 2002. On April 2, 2004, The
Gallery at Fulton St., LLC, ("Gallery," also hereinafter
referring to the shopping mall itself), owner of the shopping
mall where the incident occurred, joined issue with the
complaint, requesting a jury trial and asserting cross-claims
against The City of New York ("City" or "City of New York"),
Samuel Rushing ("Rushing"), Top Potato Plus ("Top Potato"),
Theodore Priftakis ("Priftakis"), Cannady Security Co. ("Cannady
Security"), Henry Cannady ("Cannady"), and Jovan Rouse ("Rouse").
Top Potato is the restaurant in the food court of the Gallery
where the altercation took place between plaintiff Wahhab and
defendant Priftakis, manager of Top Potato. Cannady Security is
the employer of the civilian and off-duty security guards at the
mall, Cannady being the owner of Cannady Security.
Top Potato and Priftakis answered the complaint on April 4,
2002. The City of New York responded with its Answer to the
Complaint on July 11, 2002.
This case was transferred from Judge Batts to the undersigned
in July 2002. The matter was placed on the suspense calendar from
September 28, 2002 until November 22, 2002, while the criminal
charges against plaintiff Wahhab were resolved. Thereafter, an
Amended Complaint was filed by plaintiffs on December 23, 2002,
which added New York City Police Officer David E. Martin
("Martin"), Shield #88157 as a defendant.
Cannady Security, Cannady, and Rouse answered the amended
complaint on January 13, 2003. Top Potato and Priftakis filed an
answer to the amended complaint on March 3, 2003. On March 28,
2003, The City of New York filed an answer to the amended
complaint. All defendants then moved for summary judgment, and on
May 20, 2004, defendants Priftakis and Top Potato were dismissed
The incident leading to the present action occurred in the
afternoon of October 8, 2001 at The Gallery at Fulton Street, a
shopping mall in Brooklyn. Plaintiffs Eliezer Wahhab and Amehra
Brown, along with one or two of their children, were at the Top
Potato concession stand in the food court of The Gallery at
Fulton Street.*fn1 Wahhab and Top Potato Manager Theodore
Priftakis became involved in a quarrel concerning unsatisfactory
food and soft drinks. Wahhab requested but was denied a refund,
and, upset with the service, knocked a container of straws off a
counter and onto the floor.
Virtually all of the facts that follow are in dispute.
Plaintiffs claim that as Wahhab was preparing to leave,
defendants Rushing and Martin, who were off-duty police officers
moonlighting as security guards at the Gallery, appeared. "One of
them showed a badge of some sort" and bumped chests with Wahhab,
blocking his path. (Wahhab Dep. at 26-27). They were in
plainclothes on the date of this incident. Plaintiffs allege that
when Wahhab requested them to identify themselves and leave him
alone, the response was less than conciliatory: "We have a smart
ass here. . . . You're not going anywhere." (Wahhab Dep. at 28).
Defendant Rushing, though, testified in his deposition that he
identified himself to Wahhab by stating "I'm from security" and
that Wahhab did not ask Rushing or Martin to identify themselves.
(Rushing Dep. at 125-26). Jovan Rouse ("Rouse"), lead security
guard present at the time, gave corroborating testimony averring
that Rushing and Martin identified themselves as mall security.
(Rouse Dep. at 44).
Defendants' version of the initial encounter between plaintiff
Wahhab and defendants Rushing, Martin, and other security
personnel begins with a call from Top Potato management to
security, to which Rouse responded. (Rouse Dep. at 28). Rouse was
apparently the first to address Wahhab, although from what can be
gleaned from the record Rouse, Rushing, and Martin arrived on the
scene nearly simultaneously. Defendants allege that Rouse
approached Wahhab and asked him to step aside to speak with him.
Id. at 39. Wahhab allegedly answered: "[F]uck you and fuck
security." Id. Rouse maintains that he clarified to Wahhab that
he was not intending to be disrespectful and assured Wahhab that
he was in no "trouble" but that he must "sign a paper not to come
back to the mall," which stated that if were to return, he would
be treated as a trespasser. Id. Defendants maintain that Wahhab
responded once again with obscenities. Id. Rouse then decided
to call and wait for the undercover security and stepped back
from Wahhab to allow them to handle the situation. Id. at 41.
According to the depositions of Rushing and Martin, they each
received a transmission over mall-issued radios requesting
assistance in the food court from "red coats," or off-duty police
officers. (Rushing Dep. at 112-13; Martin Dep. at 51-52). As
Martin reached the food court, he observed that all the people in
the food court were standing still, indicating to him that a
serious incident had occurred. (Martin Dep. at 55). Rushing heard
"yelling and screaming" coming from Wahhab and Top Potato manager
Priftakis, who said, "Get that guy, get that guy, he just threw a
bottle at me," pointing at Wahhab.*fn2 (Rushing Dep. at
Defendants allege that directly thereafter, Martin noticed
other individuals, whether patrons or employees, gesturing
towards Wahhab. (Martin Dep. at 56-59). Martin, who was the first
undercover security guard to address Wahhab, approached Wahhab
and inquired as to what the problem was. Wahhab allegedly replied
"I have to go, I have to go." (Martin Dep. at 60-66).
Rushing avers that he then arrived, walked up to Wahhab and said,
"Calm down, calm down, we don't know what happened. You're
yelling, screaming and swearing. I need to know what's going on,
calm down." (Rushing Dep. at 124). Wahhab answered "Get the fuck
out of my face. I don't want to talk to you. Fuck you, fuck
everybody. Get out of here."*fn3 (Rushing Dep. at 124).
Rushing alleges that he told Wahhab he needed to "go in the
back with [them]," referring to a security office separated from
the public area. (Rushing Dep. at 126-27). According to
defendants, when three or four more security guards then joined
Rushing and Martin, including Rouse (who was in the immediate
vicinity), at which time Wahhab voluntarily accompanied the group
to the security office in the back of the mall. (Martin Dep. at
Plaintiffs, in contrast, allege that Wahhab was repeatedly
pushed "hard" in the direction of the security office. (Wahhab
Dep. at 30, 37). Just inside the security office door, Wahhab
heard plaintiff Amehra Brown's voice and noticed that she was
being blocked from entering the security office by one of the
security guards. (Wahhab Dep. at 45, 53-54). Wahhab allegedly
turned around and asked that she be allowed to enter, at which
point Rushing allegedly punched Wahhab in the face and put him in
a headlock. (Wahhab Dep. at 45). As Wahhab was attempting to pry
Rushing's arms from around his neck, Rushing allegedly stated,
"Now you're under arrest, asshole, you just assaulted a police
officer."*fn4 (Wahhab Dep. at 46). Rushing and several
officers then allegedly forced Wahhab to the ground, punching and
kicking him in the process, immobilizing his arms behind him, and
repeatedly stating, "You're going to jail." (Wahhab Dep. at 57).
Defendants also claim that Wahhab was punched, but only once,
and relate a different set of circumstances giving rise to the
blow. Rouse alleges that he was struck by Wahhab "in the back of
the neck, shoulder area" as the group was entering the security
office. (Rouse Dep. at 48-49). It was then that Rushing and
Martin allegedly grabbed Wahhab and, with Rouse's assistance,
brought Wahhab to the ground. (Rouse Dep. at 52, 56). Rouse
alleges that at that time Wahhab was again instructed that he was
in no trouble, would not go to jail, and that all that was
required of him was to sign a paper stating he would not come
back to the mall. (Rouse Dep. at 58, 60). Wahhab was allegedly
then seated on a two-seated couch in the security office, while
Martin went to an adjacent room to find handcuffs. According to
Rushing, Rushing turned his back to Wahhab, and despite the
earlier assurances that Wahhab was "in no trouble," began to call
911 to request Wahhab's arrest. (Rushing Dep. at 135-137). Rouse,
the only other person
then in the room with Rushing and Wahhab, was facing Rushing.
(Rouse Dep. at 62-63). Rushing alleges that while Wahhab was
seated on the couch, Wahhab became more and more irate, stating,
"I don't care if you guys got guns. I have guns. I'll come back
here. I will do this." (Rushing Dep. at 144). As Rushing was
attempting to dial 911 and simultaneously turning back around to
face Wahhab, Wahhab jumped from his seat and struck Rushing in
the shoulder and neck, breaking the chain that held Rushing's
badge. (Rushing Dep. at 147-48). Rushing instantly returned the
blow, connecting with Wahhab's jaw. Id. Rushing alleges that he
then left the room.*fn5 (Rushing Dep. at 151-53). Soon
thereafter, uniformed police officers arrived and Rushing gave an
account of the crime he witnessed. (Rushing Dep. at 154). Wahhab
was arrested and taken to Kings County Hospital.
Plaintiffs' account of this episode differs dramatically from
defendants' version. Plaintiffs allege that while seated on the
couch in the security office, and after being told to "shut up"
and that he was "going to jail," Wahhab stated, "But you think
that I should be intimidated by you because you have a badge and
a gun? Just because you have a badge and a gun doesn't mean that
people should live in fear. You're not the only person I know
that has a gun." (Wahhab Dep. at 66-67). Enraged at this, Rushing
retaliated, "Are you threatening me? Are you threatening me?" and
proceeded to grab Wahhab, push his head into the couch so the
left side of his face was exposed, and sit on top of him to
prevent his moving. (Wahhab Dep. at 67-68). Wahhab alleges that
he was then struck in the face and body repeatedly, and then
bodily thrown, several times, into another room. (Wahhab Dep. at
70-73). Just after the beating, Wahhab, wavering in and out of
consciousness, maintains he heard someone say, "Let's say he's
not a cop. Let's say he's a security officer." (Wahhab Dep. at
Wahhab alleges that he spent five days in the hospital, where
surgery was performed to re-attach his left jaw back to the side
of his face and to pin his jaw together in the middle where it
had been broken in two. (Wahhab Dep. at 84-85). He alleges that
he has had three surgical procedures since then, one to remove
the wiring and pins from his jaw, another to re-open the wound
because of an infection, and another to have a root canal because
of damage to his teeth. (Wahhab Dep. at 86, 90). Other conditions
Wahhab attributes to the incident in question are sharp pains in
his left shoulder, numbness in his chin and lip, biting his lip
when he speaks, loss of sensation in the left side of his neck,
loose teeth, two broken teeth, and diminished eyesight. (Wahhab
Dep. at 94-95).
Plaintiffs assert twelve claims in total, including
deprivations of civil rights for unreasonable search and seizure
and excessive force, assault and battery, intentional, reckless
and negligent infliction of mental and emotional pain, false
arrest, kidnapping, negligent hiring, screening, retention,
supervision and training, willful, reckless, and negligent
and respondeat superior liability.
Three motions for summary judgment pursuant to Federal Rule of
Civil Procedure 56 are now before the court, one from defendant
City of New York, one from defendants Gallery, Rushing and
Martin, and one from defendants Cannady Security, Cannady, and
Rouse. For the reasons set forth below, this court grants in part
and denies in part defendant City of New York's summary judgment
motion, grants in part and denies in part defendants Gallery,
Rushing and Martin's summary judgment motion, and grants in part
and denies in part defendants Cannady Security, Cannady and
Rouse's summary judgment motion.
A. Standard of Review on Summary Judgment
According to Fed.R.Civ.P. 56(c), summary judgment "shall be
rendered forthwith" if it is shown that "there is no genuine
issue of material fact and that the moving party is entitled to a
judgment as a matter of law." Celotex Corp. v. Catrett,
477 U.S. 317, 323 n. 4, 106 S.Ct. 2548, 2552 n. 4 (1986).
"[G]enuineness runs to whether disputed factual issues can
reasonably be resolved in favor of either party, [while]
materiality runs to whether the dispute matters, i.e., whether it
concerns facts that can affect the outcome under the applicable
substantive law." Mitchell v. Washingtonville Cent. Sch. Dist.,
190 F.3d 1, 5 (2d Cir. 1999) (internal quotations and citations
omitted). In order to prove that a genuine issue of material fact
exists, a plaintiff "may not rest upon the mere allegations or
denials of the pleadings]," but must by affidavit or otherwise
"set forth specific facts showing that there is a genuine issue
for trial." Fed.R.Civ.P. 56(e). "Conclusory statements,
conjecture or speculation by the party resisting the motion will
not defeat summary judgment." Kulak v. City of New York,
88 F.3d 63, 71 (2d Cir. 1996).
Courts must resolve all ambiguities and draw all reasonable
factual inferences in favor of the non-moving party. See Nora
Beverages, Inc. v. Perrier Group of Am., Inc., 164 F.3d 736, 742
(2d Cir. 1998). The moving party bears the initial burden of
demonstrating an absence of genuine issues of material fact.
See Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir.
1997). If the initial burden is met, the non-moving party "must
produce specific facts indicating that a genuine issue of fact
exists. If the evidence [presented by the non-moving party] is
merely colorable, or is not significantly probative, summary
judgment may be granted." Scotto Almenas, 143 F.3d 105, 114 (2d
Cir. 1998) (internal quotations and citations omitted)
(alteration in original).
B. City of New York
1. Policy or Custom under the Monell Doctrine
Defendant City of New York moves this court to grant summary
judgment in its favor, arguing that plaintiffs have not proffered
evidence showing that a custom or policy of the City caused the
alleged deprivation of plaintiffs' civil rights.
It is well settled that in a 42 U.S.C. § 1983 suit a
municipality may not be held liable on a theory of respondeat
superior. Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694
(U.S. 1978). However, a municipality may be liable for damages
under section 1983 "when execution of [its] 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. . . ." Monell, 436 U.S. at 694. The plaintiff alleging
constitutional harm attributable to a municipality under § 1983
"must also demonstrate that, through its deliberate conduct,
the municipality was the `moving force' behind the injury
alleged." Bd. of the County Comm'rs v. Brown, 520 U.S. 397, 404
(U.S. 1997) (italics in original).
There are four situations in which a municipality can be held
liable under 42 U.S.C. § 1983: (1) an officially promulgated
policy endorsed or ordered by the municipality, Pembaur v. City
of Cincinnati, 475 U.S. 469, 480, 106 S. Ct. 1292,
89 L. Ed. 2d 452 (1986); (2) a custom or practice that is so pervasive and
widespread that the municipality had either actual or
constructive knowledge of it, City of St. Louis v. Praprotnik,
485 U.S. 112, 130, 108 S. Ct. 915, 99 L. Ed. 2d 107 (1988);
Oklahoma City v. Tuttle, 471 U.S. 808, 823-24, 105 S. Ct. 2427,
85 L. Ed. 2d 791 (1985); (3) actions taken or decisions made by
the municipal employee who, as a matter of state law, is
responsible for establishing municipal policies with respect to
the area in which the action is taken, McMillian v. Monroe
County, 520 U.S. 781, 117 S. Ct. 1734, 1736, 138 L. Ed. 2d 1
(1997); Praprotnik, 485 U.S. at 129-30, 108 S. Ct. 915;
Pembaur, 475 U.S. at 480-83, 106 S. Ct. 1292; or (4) where the
failure of the municipality to train its employees rises to the
level of deliberate indifference to the constitutional rights of
others, City of Canton v. Harris, 489 U.S. 378, 385,
103 L. Ed. 2d 412, 109 S. Ct. 1197 (1989); Walker v. City of New York,
974 F.2d at 297. Plaintiffs' allegations of the liability on the part
of the City fall under the second and fourth bases. (Am. Compl.
at 12). The court addresses each of these in turn.
Under the second basis, causation may be found where a
municipal policymaker's "`acquiescence in a longstanding practice
or custom . . . constitutes the "standard operating procedure" of
the local governmental entity.'" Jeffes v. Barnes, 208 F.3d 49,
61-62 (2d Cir. 2000) (quoting Jett v. Dallas Indep. Sch. Dist.,
491 U.S. 701, 737 (1989) (quoting Pembaur v. City of
Cincinnati, 475 U.S. 469, 485, 106 S.Ct. 1292, 1301 (U.S. 1986)
(plurality opinion) (White, J., concurring))). Here, an act
performed pursuant to custom, although not formally approved,
"`is so widespread as to have the force of law.'" Jeffes,
208 F.3d at 61-62 (quoting Brown, 520 U.S. at 404). In Sorlucco v.
New York City Police Department, 971 F.2d 864, 871 (2d Cir.
1992), the court found that the municipality was liable because
the injurious conduct of
the lower echelon employees was so manifest as to have been
"constructive[ly] acquiesce[d]" in by higher-ranking
To bolster plaintiffs' claim, plaintiffs reference reports and
statistical information that suggests a widespread pattern of
police misconduct. Specifically, in plaintiffs' Memorandum of Law
in Opposition to Defendants' Motions for Summary Judgment,
plaintiffs cite the Commission to Investigate Allegations of
Police Corruption and the Anti-Corruption Procedures of the
Police Department, known commonly as the "Mollen Commission
Report," which describes a New York City Police Department
("NYPD") policy of reacting to officer misconduct with "tolerance
or willful blindness." See Pl.'s Mem. Opp. Summ. J. at 9.
Plaintiffs also refer to statistical information obtained from
the Civil Complaint Review Board's 2002 Annual Report, which
reveals that in 2000, one year before the incident in question,
4,113 complaints alleging misconduct were filed against New York
City police officers, of which 233 were recommended for
discipline. See Pl.'s Mem. Opp. Summ. J. at 9. In 2001, 203
disciplinary penalties were imposed by the New York City Police
Department, only one of which received termination, and only one
of which received a suspension of 31 days or more or loss of
vacation plus a one-year probation. Id. at 10. Between 1999 and
2001, a total of 13,171 complaints were filed, resulting in the
termination of five officers and two others receiving penalties
greater than suspension for 30 days with probation for one year.
Id. Lastly, plaintiffs state that defendant Rushing has been
accused of misconduct in various forms four times during the
years 1998 to 2000, including use of an ethnic slur, stealing
money during a stop and frisk, unjustifiable use of force, and
improper threats of force and arrest.
Plaintiffs claim that the lack of discipline with regard to
complaints issued against Rushing as well as the rest of the
department, together with the conclusions of the Mollen
Commission Report regarding lack of discipline, could have
permitted defendant Rushing to believe that his actions denying
plaintiff Wahhab his civil rights would go unpunished.
In accordance with the liberal pleading requirements of the
Federal Rules of Civil Procedure, a "plaintiff is not required to
`state or establish' exactly the policy by which he alleges the
defendants violated his rights, nor is he required to plead more
than a single instance of misconduct." Simpkins v. Bellevue
Hosp., 832 F. Supp. 69, 73-74 (S.D.N.Y. 1993). In Leatherman v.
Tarrant County Narcotics Intelligence & Coordination Unit,
122 L. Ed. 2d 517, 113 S. Ct. 1160 (1993) the Court held that § 1983
complaints should not be held to a "heightened pleading standard"
beyond what is required generally by Fed.R.Civ.P. 8(a).
Simpkins, 832 F. Supp. at 73-74. Although a complaint may
assert "conclusorily the existence of a policy without
allegations of fact beyond the single incident alleged in the
complaint," Simpkins v. Bellevue Hosp., 832 F. Supp. 69, 74 n.
3 (S.D.N.Y. 1993) (citations omitted) plaintiffs here have
alleged statistical evidence that along with the incident alleged
and prior complaints against a particular defendant, raises a
material question of fact regarding an NYPD policy or custom of
acquiescence in unconstitutional conduct. Therefore, defendant
City of New York's motion for
summary judgment on the claim that a custom or policy of the City
caused the alleged deprivation of plaintiffs' civil rights is
2. Negligent Hiring, Screening, Retention, Supervision and
Defendant City of New York argues that plaintiffs cannot
establish a prima facie case of negligent hiring, screening,
retention, supervision and training against the City, because
Rushing and Martin were not working as NYPD officers at the time
of the events at issue here. City of New York submits in support
of this contention that Rushing and Martin were off duty working
as mall security guards, they were in plain clothes, they were
using mall-issued radios, and they acted in response to a call
from a fellow member of mall security. Def.'s Mem. Supp. Summ. J.
The City of New York's argument here is precluded by the
conclusions reached in other sections of this opinion which do
not relieve the City from liability for the actions of defendants
Rushing and Martin. It has yet to be established whether
defendants Rushing and Martin acted under color of law.
Therefore, the question of whether defendant City may be liable
for their negligent hiring, screening, retention, supervision and
training is unresolved, and the City therefore is not entitled to
summary judgment on this issue.
3. False Arrest
Defendant City of New York asserts that plaintiff Wahhab's
false arrest claim should be dismissed because the uniformed NYPD
officers who responded to the 911 call had probable cause to
arrest him. Plaintiffs' false arrest claim is alleged against the
City of New York as well as individual defendants, including
Rushing and Martin. Consequently, the City of New York is
potentially subject to liability in both possible arrest
scenarios, either by means of actions of the uniformed officers
in effecting an arrest on Mr. Wahhab, or via Rushing and Martin's
actions in initially detaining and allegedly arresting Wahhab.
A § 1983 claim for false arrest derives from the right to be
free from unreasonable search and seizure, including the right to
be free from arrest absent probable cause. Weyant v. Okst,
101 F.3d 845, 852 (2d Cir. 1996). The law of the forum state controls
the elements of a § 1983 false arrest claim. Singer v. Fulton
County Sheriff, 63 F.3d 110, 118 (2d Cir. 1995). Under New York
law, a plaintiff must show that (1) the defendant intentionally
confined the plaintiff, (2) the plaintiff was aware of the
confinement, (3) the plaintiff did not consent to the
confinement, and (4) the confinement was not justified or
privileged. Hall v. City of White Plains, 185 F. Supp. 2d 293,
299 (S.D.N.Y. 2002).
"There can be no federal civil rights claim for false arrest
where the arresting officer had probable cause." Singer,
63 F.3d at 118 (citing Bernard v. United States, 25 F.3d 98, 102
(2d Cir. 1994). Accordingly, probable cause is a complete defense
to an action for false arrest. Jocks v. Tavernier,
316 F.3d 128, 134-35 (2d Cir. 2003). Probable cause is established "when
the arresting 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.'" O'Neill v. Town of Babylon, 986 F.2d 646, 650
(2d Cir. 1993) (quoting Calamia v. City of New York,
879 F.2d 1025, 1032 (2d Cir. 1989)). The focus with regard to probable
cause is not on certitude, but the likelihood of criminal
activity. See Illinois v. Gates, 462 U.S. 213, 235,
76 L. Ed. 2d 527, 103 S. Ct. 2317 (1983); Spinelli v. United States,
393 U.S. 410, 419, 21 L. Ed. 2d 637, 89 S. Ct. 584 (1969). The
establishment of probable cause requires a fact-based
determination that considers the "totality of the circumstances."
Gates, 462 U.S. at 232 & n. 7.
Probable cause will generally be found to exist when an officer
is advised of a crime by a victim or an eyewitness. Russell v.
Eighty Fourth Precinct, 2004 U.S. Dist. LEXIS 22546, 7-8
(S.D.N.Y. 2004) (citing Martinez v. Simonetti, 202 F.3d 625,
634 (2d Cir. 2000); Curley v. Village of Suffern, 268 F.3d 65,
70 (2d Cir. 2001)). Where there is no dispute as to the knowledge
of the officers, whether probable cause existed may be determined
as a matter of law. Weyant v. Okst, 101 F.3d 845, 852 (2d Cir.
1996). Here, with regard to the uniformed NYPD officers' arrest
of Wahhab, the facts are not in dispute as to the information
upon which the uniformed officers acted. Plaintiffs' complaint
alleges that Wahhab was "[a]rrested by other police officers who
were called in." (Pls.' Am. Compl. at 1-2). The uniformed
officers came on the scene in response to a 911 call placed by
defendant Security Guard Jovan Rouse who reported an "emergency
going at [sic] . . . the Galleria. . . ." (Rouse Dep. at 66).
Upon the officers' arrival, Rushing reported to them that a crime
had been committed and gave a brief description of the
altercation that had occurred. (Rushing Dep. at 153-55). The
court finds this information, which was before the uniformed
officers, sufficient to warrant a person of reasonable caution in
the belief that a crime had been committed. Therefore, the court
concludes that the uniformed NYPD officers had probable cause to
arrest Wahhab, and plaintiffs' false arrest claim arising out of
the uniformed officers' arrest of Wahhab is dismissed.
As to the alleged arrest by Rushing and Marin, plaintiffs state
a claim as to the first three elements. According to Wahhab, he
was intentionally confined upon first contact with defendants
Rushing and Martin. Wahhab alleges that he was aware of this
confinement and did not consent because he requested to be left
alone. The last element, however, is determinative. Reading the
facts in the light most favorable to the plaintiff, the
information upon which Rushing and Martin acted was a call to the
food court area of the Gallery requesting assistance; there was
an altercation between Priftakis and Wahhab, who became agitated
and knocked straws off a Top Potato counter. The court finds that
a person of reasonable caution would be warranted in the belief
that an offense had been committed based on these facts.
Therefore, defendant City of New York's motion for summary
judgment as to the alleged false arrest of plaintiff Wahhab by
defendants Rushing and Martin is granted.
4. Under Color of Law
For liability to attach to defendant City of New York on
plaintiffs' § 1983 claims, Rushing and Martin must have acted
under color of law. Pitchell v. Callan, 13 F.3d 545, 547-48 (2d
Cir. 1994). It is axiomatic that "color" of law means "pretense"
of law, and additionally that "acts of officers in the ambit of
their personal pursuits are plainly excluded." Id. (quoting
Screws v. United States, 325 U.S. 91, 111, 89 L. Ed. 1495,
65 S. Ct. 1031 (1945). The Court of Appeals in Pitchell, which is
cited by both plaintiffs and defendants in their submissions,
explained that although there is no bright line test for
distinguishing personal pursuits from actions under color of law,
more is required than the simple determination of whether the
officer was on or off duty at the time of the contested actions.
Pitchell, 13 F.3d at 547-48 (citing Rivera v. La Porte,
896 F.2d 691, 695-96 (2d Cir. 1990)). Liability may exist where an
off-duty officer invokes the real or apparent power of the police
department, or performs duties prescribed generally for police
officers. Id. (citations omitted).
For guidance in its analysis, Pitchell cited Stengel v.
Belcher, 522 F.2d 438, 441 (6th Cir. 1975), in which an off-duty
police officer shot three men, killing two and paralyzing a third
in a barfight. Stengel, 522 F.2d at 439-40. A jury found
Belcher guilty, implicitly finding that Belcher acted under color
of state law at the time of the incident. Id. at 440-41. There
were several facts supportive of this finding. "The chemical mace
which Belcher sprayed was issued to him by the Columbus police
department. Belcher carried his pistol pursuant to a regulation
of the police department which required off-duty officers to
carry pistols as well as mace at all times." Id. There was also
evidence that permitted the inference that Belcher intervened in
the dispute pursuant to a duty imposed by police department
regulations, such as the former police chief's testimony that
Belcher acted under the authority of regulations requiring an
officer to take action "in any type of police or criminal
activity 24 hours a day," and a letter from the Director of the
Department of Public Safety which closed the inquiry of the
Police Firearms Board of Inquiry by exonerating Belcher because
his actions were "in the line of duty." Id. The Sixth Circuit
affirmed. 522 F.2d 438.
In Pitchell, defendant police officers Callan and Sargis went
to a bar after their shifts ended at midnight on June 18, 1987
and began drinking with Pitchell and another individual. When the
bar closed, they went to Callan's apartment to continue drinking.
At approximately 3:00 a.m., after discussion on a variety of
topics, Callan went into another room and emerged with a gun,
which he then used to shoot and seriously injure Pitchell because
of something Pitchell said about former President Kennedy.
Pitchell, 13 F.3d at 546. The court concluded that the
defendants were not acting under color of law. Callan was not
"acting in accordance with police regulation, as was the off-duty
officer in Stengel . . . nor was he invoking the authority of
the police department. . . ." Id. He was an off-duty cop, "who
while drunk in his own home, used his own personal weapon to
shoot a guest." Id.
In Manning v. Jones, 696 F. Supp. 1231, 1235 (S.D. Ind.
1988), also cited by Pitchell, the court outlined facts to be
weighed when determining whether a party acted under color of
law. They included: whether defendants identified themselves as
police officers at any time during the incident; if plaintiff was
aware that the defendants were police officers; whether
defendants detained or questioned the plaintiff in the line of
duty or scope of employment as police officers; if defendants
drew a firearm or arrested the plaintiff; whether defendants were
engaged in any investigation or any aspect of the traditional
public safety functions of police work. Id.
696 F. Supp. at 1235. There, the court found that the fact that the altercation
arose out of a personal matter in which the defendants were not
acting in the performance of their duties militated against a
finding that the defendants were acting under color of law.
The facts upon which a resolution of this issue in the instant
case must rely are in conflict. For example, it is disputed
whether Rushing or Martin identified themselves as police
officers, whether by stating so, by showing identification, or
otherwise indicating. Plaintiffs claim that Rushing or Martin
"flashed his badge" upon approaching Wahhab at Top Potato. (Pls.'
Mem. Opp. Summ. J. at 2). Contrarily, defendants maintain that
neither Rushing nor Martin identified themselves as police
officers, and Rushing introduced himself as being from security.
(Defs.' Mot. Summ. J. at 3, 6). Defendants state that a "badge of
some sort" was shown to Wahhab, while Wahhab could not recall any
details regarding the badge, but had seen security guards wearing
shields. (Defs.' Mot. Summ. J. at 2). Further, it is not evident
at this point whether there was a NYPD regulation in place
requiring twenty-four hour duty.
The use of handcuffs is also disputed. Plaintiff Wahhab
contends his arms were "mechanically immobilized behind him,"
while Rushing alleges that he had no handcuffs on him, but
normally did, and had handcuffed persons at the Gallery mall in
the past. (Pls.' Affirm. Opp. Summ. J. at 5). It is also disputed
whether Wahhab was physically seized and transported from the
food court to the security room, from the floor outside the
security room to the couch in the security room, or to an
adjacent room by being thrown, or whether he went voluntarily
during the incident. The parties likewise disagree over whether
Rushing and Martin engaged in any investigation. Plaintiffs claim
two men in plain clothes "bumped chests" with Wahhab, asking
"What's the problem?" (Pls.' Am. Compl. at 8). In response to
Wahhab's attempt to ascertain their identities, Wahhab alleges
that the men "grasp[ed] him about the body and . . . propel[led]
him toward the food court exit." (Pls.' Am. Compl. at 8). Rushing
alleges in his deposition, however, that he merely attempted to
calm Wahhab down, and indicated his desire to "find out what
happened." (Rushing Dep. at 125).
The case Lizardo v. Denny's, Inc., 2000 U.S. Dist. LEXIS 9785
(S.D.N.Y. 2000) is instructive. There, an off-duty officer
working for a Denny's restaurant was found to have acted under
color of law when he threatened to arrest the plaintiff for
disorderly conduct. The relevant factors analyzed by the court in
Lizardo were similar to those in each of the above
cases.*fn6 The court stated that "[a]n officer can purport
to exercise official authority by `flashing a badge, identifying
[himself] as [an] officer, placing an individual under arrest, or
intervening in a
dispute involving others pursuant to a duty imposed by . . .
department regulations.' Lizardo, 2000 U.S. Dist. LEXIS, at
*37-38, (quoting Barna v. City of Perth Amboy, 42 F.3d 809, 816
(3d Cir. 1994); Pitchell v. Callan, 13 F.3d 545, 548 (2d Cir.
1994)). In Lizardo, similar to Wahhab's claim that Rushing told
Wahhab he was under arrest for assaulting a police officer, "[i]n
the course of escorting [the plaintiff] from the Restaurant, [the
off-duty officer] threatened to arrest him for disorderly
conduct. [The officer] possessed that power under state law."
Lizardo, 2000 U.S. Dist. LEXIS, at *41-42. The court concluded
that "[b]ecause the officer threatened to invoke his official
authority to arrest [the plaintiff], a reasonable jury could find
that [the officers] purported to act pursuant to their official
duties at the time of the incident." Id. (citing Pitchell,
13 F.3d at 548.
Considering the foregoing in the light most favorable to the
non-movant, because Rushing threatened to invoke his official
authority, and the additional relevant factors dispute, such as
whether the off-duty officers identified themselves in any
manner, whether they carried or used handcuffs, whether plaintiff
was aware that the defendants were police officers, and whether
defendants engaged in any investigation, the court finds that
defendants have not met their burden of establishing that there
is no genuine issue of material fact such that they are entitled
to judgment as a matter of law. Accordingly, the City of New
York's motion for summary judgment on this issue is denied.
5. Respondeat Superior
New York law holds employers liable where the employee acts in
furtherance of the employer's business and the employer was or
could have been exercising some control, either directly or
indirectly, over the employee's activities. Mahmood v. City of
New York et al., 2003 U.S. Dist. LEXIS 7745, *8 (S.D.N.Y. 2003)
(citing Turk v. McCarthy, 661 F. Supp. 1526, 1535 (E.D.N.Y.
The City of New York argues that because Rushing and Martin
were not acting under color of law, liability under respondeat
superior is precluded. (Def.'s Mem. Supp. Summ. J. at 9). This
statement is inaccurate because although similar factual
questions are involved, the inquiries are distinct, and a
plaintiff may proceed on state law claims even though § 1983
claims under Monell may be barred. Webster v. City of New
York, 333 F. Supp. 2d 184, 207 (S.D.N.Y. 2004). As the court in
Mahmood held, "The fact that a police officer uses, or abuses,
his authority may be relevant in deciding whether he was acting
under color of state law. It is not relevant, however, in
determining whether the actions taken were within the scope of
his employment." Mahmood, 2003 U.S. Dist. LEXIS, at *10-11.
The rules concerning scope of employment dictate that "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. (quoting Stavitz v. City of New York,
98 A.D.2d 529, 471 N.Y.S.2d 272, 274 (1st Dept. 1984)). In
Mahmood, plaintiff Mahmood, while stopped behind off-duty
officer Thomas Fitzgibbon at a red light, honked his horn to
alert Fitzgibbon when the light turned green. Id. at *3.
Fitzgibbon then exited his vehicle, approached Mahmood's vehicle
and attempted to punch Mahmood through the open driver's side
window. Id. After ordering Mahmood to pull over, which he did,
Fitzgibbon proceeded to pull Mahmood from his vehicle and
assault, yell at, and beat him. Id. Mahmood argued that
Fitzgibbon was acting in the scope of his employment as an
officer when he verbally identified himself as a police officer,
showed plaintiff his badge, and ordered him to pull over to the
side of the road. Id. at *10. The court stated, however, that
the officer's identification "does not, by itself, establish that
he was furthering the City's interest in maintaining law and
order." Id. at *10-11 (citations omitted). Mahmood quotes
Perez v. City of New York, 1996 U.S. Dist. LEXIS 2812, No. 94
Civ. 2061, 1996 WL 103836, at *3 (S.D.N.Y. 1996) for this
proposition, which further illustrates that "[t]he act of
identifying oneself as a police officer, producing a shield, and
executing an arrest, because one's employment with the City
confers the authority to do so, does not automatically create
liability for the City." Perez, 1996 U.S. Dist. LEXIS, at *6-7.
The Mahmood court concluded that Fitzgibbon acted out of
personal rage and that the city could therefore not be
vicariously liable. Id. at * 13-14.
Woo v. City of New York, 1996 U.S. Dist. LEXIS 11689, No. 93
Civ. 7007, 1996 WL 457337 (S.D.N.Y. 1996), a case relied upon by
plaintiff in Mahmood and which the court in Mahmood
distinguished, is more closely aligned with the circumstances in
the present matter. Mahmood, 2003 U.S. Dist. LEXIS, at *14 n.
7. In Woo, plaintiff Woo and an off-duty police officer had an
altercation stemming from a traffic confrontation. Woo, 1996
LEXIS, at *5. The officer claimed to have been hit with a tire
iron by Woo, while Woo claimed to have brandished the tire iron
in fear and was hit in the eye with a pistol by the officer.
Id. at *7-8. The court in Woo denied summary judgment to
defendant City and found that whether the officer acted within
the scope of his employment was a disputed fact better left for
the jury. Id. at *38-39. Mahmood distinguished Woo because,
as with the present matter, several underlying facts were in
dispute. Mahmood, 2003 U.S. Dist. LEXIS, at *14 & n. 7. For
example, "[t]here is conflicting factual evidence as to: who
started the incident, whether Woo or defendant [the officer]
violated traffic regulations, whether Woo assaulted [the officer]
with a tire iron and whether [the officer] identified himself as
a police officer." Woo, 1996 U.S. Dist. LEXIS, at *38. Here,
similar facts are in dispute, such as who started the incident
spurring the alleged assault on Wahhab and whether Rushing and
Martin identified themselves as officers and in what manner.
Mahmood also pointed to the fact that the plaintiff in Woo
was subsequently arrested for assault after uniformed police
officers arrived on the scene, as is the case here. Mahmood,
2003 U.S. Dist. LEXIS, at *14 n. 7.
This court finds that material factual issues involved in this
inquiry are in dispute. Accordingly, defendant City of New York's
motion for summary judgment as to plaintiffs' respondeat superior
claim is denied.
6. Plaintiffs' Exhibits C and D
Defendant City of New York objects to plaintiffs' Exhibits C
and D on the grounds that they are not in compliance with Rule 56
of the Federal Rules of Civil Procedure, as they are not
"followed by citation to evidence which would be admissible."
(Def. City's Reply Mem. Supp. Summ. J. at 3 n. 1). Although these
documents may be admissible at trial pursuant to Federal Rule of
Evidence 803(8)(C), "[d]ocuments must be properly authenticated
in order to be considered by the court at summary judgment
stage," and that they may be authenticated later in trial is
irrelevant. Barlow v. Connecticut, 319 F. Supp. 2d 250, 2004
U.S. Dist. LEXIS 10869, *13 (D. Conn. 2004) (citing Dedyo v.
Baker Eng'g N.Y., Inc., 1998 U.S. Dist. LEXIS 132, *12-13
(S.D.N.Y. 1998); 11 James Wm. Moore et al., Moore's Federal
Practice P 56.14[a] (3d ed. 1997)). The documents in question
are not sworn, they do not contain an affirmation indicating the
truth of their contents, nor do they assert a basis in personal
knowledge. Barlow, 2004 U.S. Dist. LEXIS, at 13 (citing
Adickes v. S.H. Kress & Co., 398 U.S. 144, 158, n. 17,
26 L.Ed. 2d 142, 90 S.Ct. 1598 (1970); Beyah v. Coughlin, 789 F.2d 986,
989-90 (2d Cir. 1986)). Therefore, Plaintiffs' Exhibits C and D
do not qualify as evidentiary proof in admissible form.
Consequently, they will not be considered by this court in this
summary judgment ruling.
7. The Infant Children
Defendant City of New York moves for denial of plaintiffs'
request to amend the complaint to state claims by Brown and
Wahhab's infant children. Although leave to amend "shall be
freely given when justice so requires," Fed.R.Civ.P. 15(a), it
is within the discretion of the court to deny a request to amend
for the proper reasons, one of which is futility of amendment.
Celebrity Cruises, Inc. v. Essef Corp., 2004 U.S. Dist. LEXIS
23058, *4-6 (S.D.N.Y. 2004) (citations omitted). Here the
requested amendment would be futile because New York law does not
recognize a cause of action for loss of parental consortium.
Chaiken v. VV Publishing Corp., 1992 U.S. Dist. LEXIS 9740 at
*2-3 (S.D.N.Y. 1992) (citing DeAngelis v. Lutheran Medical
Center, 84 A.D.2d 17, 445 N.Y.S.2d 188 (2d Dept. 1981), aff'd,
58 N.Y.2d 1053, 462 N.Y.S.2d 626, 449 N.E.2d 406 (N.Y. 1983)).
Accordingly, plaintiffs' request to amend the complaint in this
manner is denied.
8. Acquittal in Contemplation of Dismissal
The City of New York submits in a footnote of its Memorandum
Supporting Summary Judgment that "there can be no malicious
prosecution claim arising from plaintiff Wahhab's arrest because
he took an ACD, and a malicious prosecution claim will not
survive such a disposition." (Def.'s Mem. Supp. Summ. J. at 6).
This argument must be disregarded because plaintiffs have not
claimed malicious prosecution.
In summary, defendant City of New York's motion for summary
judgment on the issues of policy or custom, negligent
supervision, color of law, and respondeat superior are denied.
The City of New York's motion for summary judgment on the issue
of false arrest is granted. The City of New York's motion to deny
plaintiffs' request to amend the complaint to state claims by
Brown and Wahhab's infant children is also granted.
C. Gallery, Rushing and Martin
1. Amehra Brown
Defendants move for summary judgment as to plaintiff Amehra
Brown's claim for loss of support, help, comfort, and society.
This motion is granted. Amehra Brown is not married to Eliezer
Wahhab and as much is conceded by plaintiffs. Pls.' Mem. Opp.
Summ. J. at 15. Moreover, assuming they were married, § 1983 does
not support derivative claims for loss of consortium. Pritzker
v. City of Hudson, 26 F. Supp. 2d 433, 32-33 (S.D.N.Y. 1998).
2. Under Color of Law
Defendants Gallery, Rushing and Martin contend that plaintiffs'
causes of action under § 1983 must fail because Rushing and
Martin were not acting under color of law, and that this also
precludes liability of the Gallery, which is a private entity.
This issue is discussed above. Pursuant to the court's conclusion
with respect to defendant City of New York, the motion is denied.
3. Intentional Infliction of Emotional Distress
Defendants Gallery, Rushing and Martin argue that plaintiffs'
emotional distress claims are subsumed by plaintiffs' assault and
battery claims, citing Bender v. City of New York, 78 F.3d 787
(1996). In Bender, the jury granted duplicative awards allowing
Bender to recover for the same injury under separate causes of
action. Id. at 793. The Second Circuit held that:
[A]t least part of the injury she suffered from the
false arrest for assault loss of liberty is part
of the injury she suffered from the intentional
infliction of emotional distress. Similarly, at least
part of the injury she suffered from the battery
emotional pain and suffering is part of the injury
she suffered from the emotional injury tort.
Id. at 793. The court suggested language for a jury
instruction that might prevent duplicative awards:
"Any damage award for the emotional distress claim
must be limited to the component of injury you find
sustained for this claim, if any, over and above
whatever emotional distress you have already
compensated by your awards for other claims." Id.
Citing Bender, defendants Gallery, Rushing and Martin declare
that "when a plaintiff alleges a separate claim based on
intentional tort, any claim for intentional infliction of
emotional distress must be dismissed." (Defs.' Mem. Supp. Summ.
J. at 7). Unfortunately for defendants Gallery, Rushing and
Martin, Bender does not stand for this proposition. Bender
did not hold that the emotional distress award was wholly
duplicative, and expressly acknowledged the district court's
suggestion that "the tort of inflicting emotional distress in the
context of a false arrest or a malicious prosecution possibly
involves some component of damages over and above the damages
that may be awarded for these police misconduct torts."
78 F.3d at 793. A reasonable jury (possibly following a similar
instruction to the one suggested above) could return a verdict
including a component of damages for emotional distress that is
over and above those awarded for other alleged torts. Paralleling
this sentiment, plaintiff argues defendants' conduct was extreme
and outrageous and "well exceeds the ambit of traditional assault
and battery." This is sufficient to meet the non-movant's burden.
Defendants' motion is accordingly denied.
4. Acquittal in Contemplation of Dismissal
Citing no legal precedent, defendants Gallery, Rushing and
Martin argue that by accepting an adjournment in contemplation of
dismissal ("ACD"), Wahhab has lost his right to claim false
arrest. (Defs.' Mem. Supp. Summ. J. at 9). A plaintiff's
acceptance of an ACD in New York does not bar a false arrest
claim (but will prevent a claim of malicious prosecution).
Wedderburn v. City of New York, 2000 U.S. Dist. LEXIS 18514,
*3-4 (S.D.N.Y. 2000). Therefore, this aspect of defendants
Gallery, Rushing and Martin's motion is denied.
5. False Arrest
In accordance with the above discussion, defendants' Gallery,
Rushing and Martin's motion for summary judgment on plaintiffs'
false arrest claim is granted.
6. Negligent Hiring, Screening, Retention, Supervision and
Training of Gallery
Defendants Gallery, Rushing and Martin claim that plaintiffs
cannot establish a prima facie case for negligent hiring,
screening, retention, supervision and training. Liability for
this cause attaches "only when the employer knew or should have
known of the employee's violent
propensities." Yeboah v. Snapple, Inc., 286 A.D.2d 204, 205,
729 N.Y.S.2d 32, 33 (1st Dept. 2001) (citing Detone v. Bullit
Courier Serv., 140 A.D.2d 278, 528 N.Y.S.2d 575, 576 (1st Dept.
1988) lv. denied 73 N.Y.2d 702). Plaintiffs refute this claim
by parsing defendants' motion into negligent supervision and
training as opposed to negligent hiring and retention. This is
unpersuasive because the defense of notice remains applicable.
Moreover, plaintiffs have not met their burden in proving the
existence of triable facts on this issue. Plaintiffs proffer no
evidence indicating defendant Gallery had notice of violent
propensities of Rushing and Martin. Therefore, plaintiffs
negligent supervision claim as to defendants Gallery, Rushing and
Martin is dismissed.
7. Plaintiffs' Exhibits C and D
Defendants Gallery, Rushing and Martin also object to
Plaintiffs' Exhibits C and D on the same grounds as defendant
City of New York, i.e., that they are not in compliance with Rule
56 of the Federal Rules of Civil Procedure. In accordance with
the above explanation, the exhibits are not considered for
purposes of this motion because they do not qualify as
evidentiary proof in admissible form.
Summarizing, defendants Gallery, Rushing, and Martin's motion
to dismiss the derivative claim of plaintiff Amehra Brown and
plaintiffs' claim of negligent hiring, screening, retention,
supervision, and training on the part of defendant Gallery is
granted. Summary judgment is granted to Defendants Gallery,
Rushing, and Martin as to plaintiffs' false arrest claim and
denied as to the issue of whether Rushing and Martin were acting
under color of law. Defendants Gallery, Rushing, and Martin's
motion to dismiss plaintiffs' claim of intentional infliction of
emotional distress is denied.
D. Cannady Security, Cannady, Rouse
1. Amehra Brown and the Infant Children
Defendants Cannady Security, Cannady, and Rouse move for
summary judgment on the issue of plaintiff Amehra Brown's
derivative claim in the same fashion as the other defendants to
this action. Pursuant to the above discussions, the motion is
2. Defendant Rouse
Defendants Cannady Security, Cannady, and Rouse assert that
plaintiffs cannot prove a prima facie case in assault, battery,
or intentional infliction of emotional distress by defendant
Rouse, because Rouse had limited contact with Wahhab and because
plaintiffs did not
specifically identify Rouse. (Defs. Mem. Supp. Summ. J.).
Plaintiffs counter that Rouse acted in collaboration with state
actors Rushing and Martin in detaining Wahhab and subjecting him
to excessive force, giving rise to the civil rights claims.
(Pls.' Mem. Opp. Summ. J. at 13). Defendants rejoin that a
conspiracy did not exist because there was no agreement between
Rouse and Martin and Rushing. (Defs.' Reply Mem. Supp. Summ. J.
The applicable case law makes clear that conspiracy per se is
not a requirement of liability of a private actor for civil
wrongs of this sort. Fries v. Barnes, 618 F.2d 988, 990-91 (2d
Cir. 1980). A "collaborative undertaking," or "joint activity"
will suffice. Id. (citing Adickes v. S.H. Kress & Co.,
398 U.S. 144 (1970); United States v. Mekjian, 505 F.2d 1320 (5th
Cir. 1975)). To the extent Rouse along with other civilian
security guards acted in concert with Rushing and Martin to
deprive Wahhab of his civil rights, he may be liable. Fries,
618 F.2d at 990-91. The extent of Rouse's and other security
guards' involvement is contested. For example, Rouse claims he
was the only other person in the security office aside from
Rushing. (Rouse Dep. at 63). Since Wahhab alleges that he was
beaten by more than one person, Rouse is included in that group
of assailants. Wahhab further testified that he was physically
pushed toward the security office and then forced to the ground
and punched and kicked in the process by all involved. According
to Rouse's own testimony, Rouse was present throughout those
episodes. Summary judgment on the causes of action asserted
against Rouse is not appropriate because questions of fact remain
here that would allow a reasonable jury to find for the nonmoving
party. Therefore, defendants Cannady Security, Cannady, and
Rouse's motion for summary judgment as to the plaintiffs' claims
asserted against defendant Rouse is denied.
3. Under Color of Law
Defendants Cannady Security, Cannady, and Rouse submit that
plaintiffs' first, second and fourth causes of actions are
precluded because Rouse, Rushing and Martin were not acting under
color of state law. In accordance with the relevant discussion of
this issue above, this motion is denied.
4. False Arrest
Pursuant to the discussions above, summary judgment is granted
as to the arrest by the uniformed police officers. Insofar as
plaintiffs allege false arrest at an earlier time, Rouse's
liability is dependent upon that of Rushing and Martin as
allegedly acting in collaboration.
The court has concluded that plaintiffs' claim of false arrest
as to Rushing and Martin should be dismissed. Therefore,
defendants Cannady Security, Cannady, and Rouse's motion for
summary judgment on the issue of false arrest is granted.
5. Negligent Hiring, Screening, Retention, Supervision and
Training of Cannady Security
Defendants Cannady Security, Cannady, and Rouse argue that
plaintiffs' cause for negligent hiring, screening, retention,
supervision and training as against Cannady Security must fail
because it is premised upon defendant Rouse's liability. As this
has yet to be determined, this motion is accordingly denied.
In sum, defendants Cannady Security, Cannady, and Rouse's
motion for summary judgment is granted with respect to
plaintiffs' false arrest claim. Defendants Cannady Security,
Cannady, and Rouse's motion for summary judgment is denied as to
defendant Rouse's liability and whether Rushing and Martin (and
thereby Rouse) acted under color of law. Defendants Cannady
Security, Cannady, and Rouse's motion to dismiss the negligent
hiring, screening, retention, supervision and training of Cannady
Security, and plaintiff Amehra Brown's derivative claim is
For the foregoing reasons, defendant City of New York's motion
for summary judgment is GRANTED IN PART and DENIED IN PART.
On the issues of policy or custom, negligent training, whether
off duty officers Rushing and Martin acted under color of law,
and respondeat superior, the motion is DENIED. The City of New
York's motion for summary judgment on the issue of false arrest
is GRANTED. The City of New York's motion to deny plaintiffs'
request to amend the complaint to state claims by Brown and
Wahhab's infant children is also GRANTED.
Defendants Gallery, Rushing and Martin's motion for summary
judgment is GRANTED IN PART and DENIED IN PART. The motion to
dismiss the derivative claim of plaintiff Amehra Brown and
plaintiffs' claim of negligent hiring, screening, retention,
supervision, and training on the part of defendant Gallery is
GRANTED. Summary judgment is GRANTED to Defendants Gallery,
Rushing and Martin as to plaintiffs' false arrest claim. As to
the issue of whether Rushing and Martin acted under color of law,
defendants Gallery, Rushing and Martin's motion is DENIED.
Defendants Gallery, Rushing and Martin's motion to dismiss with
regard to intentional infliction of emotional distress is
Defendants Cannady Security, Cannady and Rouse's motion for
summary judgment is GRANTED IN PART and DENIED IN PART. The
motion is GRANTED with respect to plaintiff Amehra Brown's
derivative claim, and as to the false arrest claim. The motion is
DENIED as to defendant Rouse's individual liability. The motion
is also DENIED as to whether Rushing and Martin (and Rouse and
others as allegedly collaborating) acted under color of law,
as well as to the negligent hiring, screening, retention,
supervision and training of Cannady Security. An appropriate
Order accompanies this Opinion.