United States District Court, S.D. New York
April 18, 2005.
AYVA SHA, Plaintiff,
NEW YORK CITY POLICE DEPARTMENT TWENTIETH PRECINCT, DETECTIVES AND OFFICERS DOE, Defendant.
The opinion of the court was delivered by: GABRIEL GORENSTEIN, Magistrate Judge
REPORT AND RECOMMENDATION
On April 2, 2002, New York City police officers received a 911
call from Marlene Glasser reporting that plaintiff Ayva Sha, a
woman with a brain injury and a history of seizures, had dropped
the telephone while talking to her. Sha's telephone line was
thereafter repeatedly busy. Based on this call, the officers
responded to Sha's apartment. There was no answer after they
knocked on the door for 20 minutes. The police then entered the
apartment by removing the lock on the door. Once the officers and
medical personnel determined there was no medical emergency and
that Sha was not in danger, they left the apartment.
Sha has filed this action pro se under 42 U.S.C. § 1983
alleging that the police officers violated her Fourth Amendment
rights by entering her home without consent or probable cause.
The New York City Police Department ("NYPD"), the only defendant
that has been served in this matter, has moved for summary
judgment pursuant to Fed.R.Civ.P. 56.
For the following reasons, that motion should be granted and
judgment entered dismissing the complaint. I. BACKGROUND
Sha first met Marlene Glasser in 1999 when she and Glasser were
participants in a program run by the learning disability
department of the International Center for the Disabled. See
Sha Deposition, dated Sept. 16, 2004 (annexed as Ex. G to
Defendant's Motion for Summary Judgment, filed Jan. 7, 2005
(Docket #33) ("Rule 56 Mot.")), at 8-9; Affidavit in Opposi[tion]
[to] Defendants' [sic] Motion for Summary Judgment (annexed to
Motion Opposing Defendants' [sic] Summary Judgment, filed Mar. 4,
2005 (Docket #37) ("Pl. Opp.")) ("Sha Aff."), ¶ 14. Sha had
suffered a traumatic brain injury in 1997, Sha Aff. ¶ 1, a fact
that Glasser learned some time in 2000. Sha Deposition, dated
Sept. 16, 2004 (annexed as Ex. I to Rule 56 Mot.), at 38. Sha did
not, however, have any history of seizures. Sha Aff. ¶¶ 3, 22.
On the night of April 2, 2002, Sha was at home in her apartment
at 205 West End Avenue. Sha Aff. ¶¶ 1(a), 27. Sha received
several calls from Glasser throughout the evening. Id. ¶ 21;
Sha Deposition, dated Sept. 16, 2004 (annexed as Ex. H to Rule 56
Mot.) ("Sha Dep."), at 28-29. At some point after 9:00 or 10:00
p.m., Glasser called Sha and Sha hung up on her. Sha Dep. at 28.
Glasser called back, only to have Sha hang up on her again. Id.
Glasser called again and Sha told her to go to bed and hung up.
Id. at 29. At some point after calling another friend, Sha took
her phone off the hook. Id.
When Glasser was unable to reach Sha after thirty minutes, she
called 911. See SPRINT Report, dated Apr. 2, 2002 (reproduced
as Ex. A to Rule 56 Mot.) ("SPRINT Report"). The following is the
record of this call as reflected in notes taken by the 911
operator: 205 W END AVE W69-W70ST FC [female caller] Glasser
21227412877 . . . AT APT 27E FLR 27 CB OF POSS AIDED
FEM 212 580 3290 [call back of possible aided female]
HIST OF SEIZURE TRAUMATIC BRAIN INJR FC GALSSER [sic]
CB 212 741 2877 . . . FC GLASSER STS SHE WAS TALKING
TO HER FRIEND N [when] HER FRIEND SUDDENLY STOP
TALKING N [when] PHONE LINE WAS LEFT OPEN
ANI-ALI-212741877 GLASSER MARLENE 277 W 11 FLR 5APT
5A . . . FC STS SHE WAS UNABLE TO GET IN TOUCH W
FRIEND FOR ABT 30 MINS NOW.
Id.; Defendant New York City Police Department's Statement of
Undisputed Material Facts Pursuant to Local Rule 56.1, dated Jan.
7, 2005 (annexed to Rule 56 Mot.), ¶ 9.
NYPD Officers Xochilt Chantel and Brian Finn responded to the
911 call. See Affidavit of Police Officer Xochilt Chantel,
dated Jan. 7, 2005 (reproduced as Ex. F to Rule 56 Mot.)
("Chantel Aff."), ¶¶ 6, 8. Before responding, the officers
contacted "Central" to confirm the nature and location of the
emergency. Id. ¶ 9. "Central" told Officer Chantel that a
friend of Sha's had called to report that she had been talking
with Sha when Sha suddenly dropped the phone. Id. ¶ 10. When
the friend had tried to call Sha back, she got only a busy
signal. Id. Officer Chantel was told that the friend was
concerned that Sha had experienced a medical emergency because
Sha had a brain injury and a history of seizures. Id.
Upon arriving at Sha's apartment, Officer Chantel knocked on
the door for over 20 minutes, identifying herself as a police
officer. Id. ¶¶ 13-14. Personnel from Sha's building were
called to open the door, but the building staff who came to
assist the officers did not have the correct key to open the door
and were unable to "pop" the lock on the door. Id. ¶¶ 15-16.
The Emergency Services Unit of the NYPD ultimately forced open
the door using a "rabbit tool." Id. ¶ 17. The officers then
entered the apartment. Id. ¶ 19. Officer Chantel asserts that when she entered the apartment,
she saw Sha lying down with her eyes closed and "a number of
medications" were visible in the apartment. Id. ¶¶ 19-20. Sha
disputes this, asserting that she was asleep in bed with her cat.
Sha Aff. ¶ 27.
Officer Chantel states that Sha did not awake immediately when
the officers entered and it "took some time" to rouse her.
Chantel Aff. ¶ 21. Once awake, Sha indicated that she was fine
and Emergency Medical Services personnel attended to her. Id.
¶¶ 22-23. After the officers determined that Sha was not in any
danger, they left, leaving Sha in her home. Id. ¶ 24. An
incident report written up that evening by building personnel
noted that the top lock had been removed from Sha's door, but
that the bottom lock was left in place to secure the apartment.
See Incident Report, dated Apr. 2, 2002 (annexed as Ex. B to
Rule 56 Mot.); Chantel Aff. ¶¶ 27-28. Sha suggests that the hole
left in the door was so large that her apartment was not, in
fact, secure. Sha Aff. ¶¶ 28(b)(c).
B. Procedural History
Sha filed this action against the NYPD and "Detectives and
Officers Doe" alleging that the officers' entry into her home was
unlawful and in violation of her Fourth Amendment rights. See
Amended Complaint, filed Nov. 26, 2003 (Docket #10) (reproduced
as Ex. E to Rule 56 Mot.). In her complaint, Sha alleged that the
officers should not have relied on Glasser's call to determine
whether there was a possible medical emergency. Id. ¶¶ 11-15,
17. Sha also alleged that, as a result of the police officers'
entry into her apartment, she suffered property damage and mental
and emotional distress. Id. ¶¶ 31-44.
The NYPD has moved for summary judgment on Sha's claims. See
Rule 56 Mot. The NYPD argues that it is not a suable entity and
that, even if Sha's claims were deemed to be raised against the City of New York, she has failed to establish
municipal liability. See Defendant New York City Police
Department's Memorandum of Law in Support of its Motion for
Summary Judgment, filed Jan. 10, 2005 (Docket #33) ("Def. Br."),
As required by Local Civil Rule 56.2, the NYPD included a
notice informing Sha that to oppose the motion for summary
judgment, she had to "submit evidence, such as witness statements
or documents, countering the facts asserted by defendant and
raising issues of fact for trial." See Defendant New York City
Police Department's Local Rule 56.2 Statement to Pro Se Opposing
Motion for Summary Judgment, dated Jan. 7, 2005 (annexed to Rule
Sha submitted opposition papers, consisting of her own
affidavit and several exhibits, see Pl. Opp., as well as a
memorandum of law, see Memorandum of Law in Opposition to
Motion for Summary Judgment, filed Mar. 4, 2005 (Docket #38).
After the defendant submitted a brief (and untimely) letter in
reply, Ms. Sha submitted an additional letter in support of her
motion. See Letter from Ayva Sha, dated April 5, 2005.
II. STANDARD FOR SUMMARY JUDGMENT
Fed.R.Civ.P. 56(c) provides that summary judgment is
appropriate "if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law." See also Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986). A material issue is a "dispute? over facts
that might affect the outcome of the suit under the governing
law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). A genuine issue of material fact exists "if the evidence
is such that a reasonable jury could return a verdict for the
nonmoving party." Id. Thus, "`[a] reasonably disputed, legally
essential issue is both genuine and material'" and precludes a finding of summary
judgment. McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999)
(quoting Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996)).
"In moving for summary judgment against a party who will bear
the ultimate burden of proof at trial, the movant may satisfy
[its] burden by pointing to an absence of evidence to support an
essential element of the nonmoving party's claim." Vann v. City
of New York, 72 F.3d 1040, 1048 (2d Cir. 1995) (citing
Celotex, 477 U.S. at 322-23). "A defendant moving for summary
judgment must prevail if the plaintiff fails to come forward with
enough evidence to create a genuine factual issue to be tried
with respect to an element essential to its case." Allen v.
Cuomo, 100 F.3d 253, 258 (2d Cir. 1996) (citing Anderson,
477 U.S. at 247-48); see also Nebraska v. Wyoming,
507 U.S. 584, 590 (1993) ("When the nonmoving party bears the burden of
proof at trial, summary judgment is warranted if the nonmovant
fails to `make a showing sufficient to establish the existence of
an element essential to [its] case.'") (quoting Celotex,
477 U.S. at 322) (alteration in original). If, however, any
reasonable inference could be drawn from the record in favor of
the non-moving party as to an issue of material fact, summary
judgment is improper. See, e.g., Cantanzaro v. Weiden,
140 F.3d 91, 93 (2d Cir. 1998).
As noted, the NYPD is the only defendant that has been served
in this matter. The NYPD, however, is not a suable entity. See,
e.g., Alexander v. City of New York, 2004 WL 1907432, at *1
(S.D.N.Y. Aug. 25, 2004); DelaPaz v. New York City Police
Dep't, 2003 WL 21878780, at *2 (S.D.N.Y. Aug. 8, 2003);
Gonzalez v. City of New York, 2002 WL 252564, at *2 (S.D.N.Y.
Feb. 21, 2002), aff'd, 2003 WL 21308421 (2d Cir. June 3, 2003).
Consequently, all claims against the NYPD must be dismissed. In addition, the Court need not consider whether Sha should be
given leave to amend her complaint to name the City of New York
as a defendant since summary judgment would have to be entered
against Sha in any case. First, while a municipality may be held
liable under 42 U.S.C. § 1983 if an individual has been deprived
of a constitutional right pursuant to a governmental custom,
practice, or policy, Monell v. Dep't of Soc. Servs.,
436 U.S. 658 (1978), no Monell liability exists where the individual has
not herself suffered the deprivation of a constitutional right.
See, e.g., City of Los Angeles v. Heller, 475 U.S. 796, 799
(1986) (per curiam) ("[I]f the [individual police officer]
inflicted no constitutional injury on [plaintiff], it is
inconceivable that [municipal entities] could be liable to
[plaintiff]."); Escalera v. Lunn, 361 F.3d 737, 748 (2d Cir.
2004) (where police officers acted properly, "the County is . . .
entitled to summary judgment in its favor"); Curley v. Village
of Suffern, 268 F.3d 65, 71 (2d Cir. 2001) ("a municipality
cannot be liable for inadequate training or supervision when the
officers involved in making an arrest did not violate the
plaintiff's constitutional rights") (citing cases). Second, Sha
has not shown the existence of any unconstitutional governmental
custom, practice, or policy.
A. Violation of Sha's Constitutional Rights
Here, there is no genuine issue of material fact with respect
to whether Sha has suffered the deprivation of a constitutional
right. Accepting Sha's version of the events as true, the police
were faced with a situation where an identified individual had
provided a plausible account strongly suggesting that another
individual was suffering medical distress. Although
"[w]arrantless searches inside a home are presumptively
unreasonable[,] . . . police officers may enter a dwelling
without a warrant to render emergency aid and assistance to a
person whom they reasonably believe to be in distress and in need
of that assistance." Tierney v. Davidson, 133 F.3d 189, 196 (2d Cir. 1998) (internal citations and quotations
omitted); see also Mincey v. Arizona, 437 U.S. 385, 392
(1978) ("Numerous state and federal cases have recognized that
the Fourth Amendment does not bar police officers from making
warrantless entries and searches when they reasonably believe
that a person within is in need of immediate aid."). Whether an
officer's belief was "reasonable" must be determined "by
reference to the circumstances then confronting the officer,
including the need for a prompt assessment of sometimes ambiguous
information concerning potentially serious consequences."
Tierney, 133 F.3d at 196-97 (quotation omitted); see also
Kerman v. City of New York, 261 F.3d 229, 235 (2d Cir. 2001)
("For Fourth Amendment purposes, the reasonableness of an
officer's belief must be assessed in light of the particular
circumstances confronting the officer at the time.") (citing
Graham v. Connor, 490 U.S. 386, 397 (1989)). Mistakes as to
factual circumstances do not violate the Fourth Amendment as long
as the mistakes are "`those of reasonable men, acting on facts
leading sensibly to their conclusions of probability.'" Illinois
v. Rodriguez, 497 U.S. 177, 186 (1990) (quoting Brinegar v.
United States, 338 U.S. 160, 176 (1949)). "[W]hat is generally
demanded of the many factual determinations that must regularly
be made by agents of the government . . . is not that they always
be correct, but that they always be reasonable." Id. at 185.
In the instant case, the officers' belief that exigent
circumstances existed was reasonable under the circumstances. The
police department received a 911 call stating that the caller had
been talking on the phone with her friend a woman who had
suffered a traumatic brain injury and had a history of seizures
when the friend suddenly stopped talking. See SPRINT Report;
Chantel Aff. ¶ 10. The caller informed the police that subsequent
calls did not go through. See SPRINT Report; Chantel Aff. ¶ 10.
The officers attempted to gain permission to enter Sha's apartment for twenty minutes, standing outside the door knocking
and identifying themselves as police officers, but received no
response from Sha. Chantel Aff. ¶¶ 13-14.
There is no question that a call to a 911 operator can provide
the exigent circumstances necessary to justify a warrantless
entry into an individual's residence. See Anthony v. City of
New York, 339 F.3d 129, 136-37 (2d Cir. 2003) (911 call from
woman claiming that she was under "immediate and deadly threat of
harm" sufficient basis for warrantless entry). This is not to
say, however, that any 911 call would justify such an entry. For
example, in Kerman, the police received a 911 call from an
anonymous caller who stated only that "a mentally ill man at [an
identified] location was off his medication and acting crazy and
possibly had a gun." 261 F.3d at 232. The caller did not identify
herself or state her relationship to the person she was calling
about; nor did she explain how she knew that the plaintiff was
mentally ill or how he could present a threat to himself or
others. See id. When the police arrived at the apartment and
began knocking on the door, the plaintiff opened it. The police
nonetheless rushed into the plaintiff's apartment without consent
and took him into custody. Kerman held that these actions
violated the plaintiff's Fourth Amendment rights on the ground
that the "uncorroborated and anonymous 911 call" was not
supported by sufficient indicia of reliability to justify the
police officers' warrantless entry into the plaintiff's home.
Kerman, 261 F.3d at 236.
This case can be readily distinguished from Kerman. Here,
Glasser was identified by name, address, and phone number. See
SPRINT Report. Glasser also described what she believed were
Sha's illnesses a traumatic brain injury and a history of
seizures and stated a facially credible basis for believing
that Sha might be injured: namely, that she was on the phone with
Sha when Sha stopped speaking and the phone line remained busy.
Thus, the call from Glasser provided sufficient indica of reliability for the police
to believe that a medical emergency existed. Moreover, once the
police arrived, Sha did not respond to their knocking on the door
for an extended length of time, further supporting the inference
that she was unconscious.
The fact that Glasser was not an anonymous caller is a crucial
point. In Florida v. J.L., a case the Second Circuit relied on
in its holding in Kerman, the Supreme Court distinguished a tip
from a "known informant whose reputation can be assessed and who
can be held responsible if her allegations turn out to be
fabricated" from an anonymous tip which "`seldom demonstrates the
informant's basis of knowledge or veracity.'" 529 U.S. 266, 270
(2000) (quoting Alabama v. White, 496 U.S. 325, 329 (1990)).
The instant case presents precisely the type of situation in
which an informant's tip can be trusted inasmuch as Glasser put
her credibility at stake and could be held responsible for her
Sha, in fact, attempts to use the fact that the police officers
knew Glasser's identity to suggest that the officers' entry into
her home was unreasonable. She argues that the police officers
should have known that Glasser has "poor judgment and behavior
problems" and determined that she was not credible. See Sha
Aff. ¶ 9; accord id. ¶ 8. As Sha does not cite any evidence
suggesting that the police knew or should have known of Glasser's
alleged mental disabilities, however, there is no basis on which
a jury could find that the officers should not have relied on
In sum, Sha has not presented evidence that would allow a
reasonable jury to conclude that the officers acted in violation
of any constitutional requirements.
B. Evidence of Monell Liability
In any event, even if Sha could show that the entry into her
apartment that evening violated her constitutional rights, she has provided no
admissible evidence to support her claim against the City under
Monell, as was her burden. See, e.g., Feurtado v. City of
New York, 337 F. Supp. 2d 593, 599-600 (S.D.N.Y. 2004).
Municipalities may not be held liable "unless action pursuant to
official municipal policy of some nature caused a constitutional
tort." Monell, 436 U.S. at 691. The municipality's liability
arises if "the action that is alleged to be unconstitutional
implements or executes a policy statement, ordinance, regulation,
or decision officially adopted and promulgated by that body's
officers" or is conduct "pursuant to governmental `custom' even
though such a custom has not received formal approval through the
body's official decision making channels." Id. at 690-91.
Sha points to no evidence that any action by the City fits
within these requirements. See generally Amnesty Am. v. Town
of West Hartford, 361 F.3d 113, 124-27 (2d Cir. 2004)
(discussing various ways in which a plaintiff may show that a
municipality has Monell liability). Sha argues that police
should have known that Glasser was not a credible caller and thus
should have "screen[ed]" out her call as false. Sha Aff. ¶¶ 8-9,
11, 21. Although Sha alleges that the NYPD has a protocol for
"screening" 911 calls that would have alerted them that Glasser
had a history of psychiatric problems, Sha Aff. ¶ 9, she cites to
no evidence to support this claim. To the extent that Sha argues
that the NYPD should have such a screening mechanism, no
reasonable jury could find that such a screening mechanism was
constitutionally required as a prerequisite to the NYPD's
response to a 911 call. Finally, if Sha is arguing that the City
should be held liable simply because it is responsible for the
actions of its officers, that argument must also be rejected
inasmuch as "a municipality may not be held liable on a theory of
respondeat superior." Jeffes v. Barnes, 208 F.3d 49, 56 (2d
Cir. 2000). Conclusion
For the foregoing reasons, the defendant's motion for summary
judgment should be granted and the complaint dismissed.
PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal
Rules of Civil Procedure, the parties have ten (10) days from
service of this Report and Recommendation to serve and file any
objections. See also Fed.R.Civ.P. 6(a), (e). Such objections
(and any responses to objections) shall be filed with the Clerk
of the Court, with copies sent to the Hon. Deborah A. Batts, 500
Pearl Street, New York, New York 10007, and to the undersigned at
40 Centre Street, New York, New York 10007. Any request for an
extension of time to file objections must be directed to Judge
Batts. If a party fails to file timely objections, that party
will not be permitted to raise any objections to this Report and
Recommendation on appeal. See Thomas v. Arn, 474 U.S. 140
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