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United States District Court, S.D. New York

April 18, 2005.

AYVA SHA, Plaintiff,

The opinion of the court was delivered by: GABRIEL GORENSTEIN, Magistrate Judge


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 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."), at 4-9.

  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 56 Mot.).

  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.


  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 call.

  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 Glasser's call.

  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.


  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 (1985).


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