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SHA v. NEW YORK CITY POLICE DEPT.

April 18, 2005.

AYVA SHA, Plaintiff,
v.
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

  A. Facts

  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 ...


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