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).
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 ...