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Davis v. City of New York

February 15, 2007


The opinion of the court was delivered by: Joseph F. Bianco, District Judge


Terry Davis ("Terry"), Jesse Davis ("Jesse"), Roosevelt Davis ("Roosevelt"), James Davis ("James") and Melinda Davis ("Melinda") (collectively, "plaintiffs"), bring the instant action against the City of New York, Sergeant Raymond Johnson ("Sergeant Johnson"), Detective Erik Paulsen ("Detective Paulsen"), Detective Christopher Knappenberger ("Detective Knappenberger"), Detective Raymond Neuman ("Detective Neuman"), Detective Patrick Bergin ("Detective Bergin"), Police Officer Edward Waldron ("Officer Waldron") and Captain John Marchia ("Captain Marchia") (collectively, "defendants"), alleging, inter alia, claims for violations of their civil rights under 42 U.S.C. § 1983. Defendants moved for summary judgment on all claims. At oral argument, counsel for plaintiffs abandoned all claims in the Amended Complaint except the following: (1) the false arrest and malicious prosecution claims asserted by plaintiffs Jesse and James; and (2) the excessive force claim asserted by plaintiff Melinda.

For the reasons stated below, summary judgment is denied as to the following: (1) the false arrest claim against the individual defendants; (2) the excessive force claim against the individual defendants; and (3) the malicious prosecution claim against Detective Paulsen. Summary judgment is granted in favor of the individual defendants, except Detective Paulsen, on the malicious prosecution claim.



The facts described below are taken from the parties' depositions, declarations, affidavits, exhibits and respective Local Rule 56.1 statements of facts. Upon consideration of a motion for summary judgment, the Court shall construe the facts in the light most favorable to the non-moving party. See Capobianco v. City of New York, 422 F.3d 47, 50 (2d Cir. 2001). Where only one party's 56.1 Statement is cited, the other party does not dispute the facts alleged or has offered no admissible evidence to refute that fact.

On April 20, 2003, Detective Paulsen obtained a search warrant for plaintiffs' apartment in Far Rockaway, Queens, New York ("the residence") for, among other things, two handguns. (Defs.' Rule 56.1 Statement ("Defs.' 56.1") ¶ 2; Declaration of Susan P. Scharfstein ("Scharfstein Decl."), Ex. D.) The warrant granted permission to conduct a search at any time of day or night.

(Defs.' 56.1 ¶ 4.) Detective Paulsen had applied for the warrant following his conversation with a confidential informant ("the CI"), who notified the detective that, while smoking marijuana at the residence with plaintiff Roosevelt, he had observed two handguns in Roosevelt's bedroom. (Id. ¶¶ 6-7.) The search warrant application indicated that the CI had previously provided information that had led to the recovery of weapons and narcotics, as well as to successful arrests and prosecutions. (Id. ¶ 8.) In addition, the affidavit noted that the CI had been found reliable by another state court judge. (Id. ¶ 9.) Police officers executed the search warrant on April 23, 2004, at approximately 11:35 p.m. (Id. ¶ 10.)

According to plaintiffs' sworn statements, the circumstances of the search were as follows: at the time of the search, there were a large number of individuals present at the residence - Terry, her sons Jesse, Roosevelt and James, her daughter Melinda, and at least six other friends of the family.*fn1 (Sharfstein Decl., Ex. I.) S.W.A.T officers arrived at the apartment, used profanity and yelled at the plaintiffs to sit down and to get on the floor. (Scharfstein Decl., Ex. I.) After approximately fifteen minutes, uniformed and plainclothes police officers arrived, and the S.W.A.T. officers left the residence. (Id.) The officers began handcuffing the plaintiffs, asking their names and addresses and searching each one individually. (Id.) During the search, Melinda, who was seventeen years old at the time, was handcuffed while lying on the floor, and was allegedly kicked in the shoulder by one of the officers. (Id.) Jermaine Brown, a friend of Roosevelt's, was allegedly kicked in the face by an officer while handcuffed.*fn2 (Id.) After each individual was searched, he or she was sent to sit in the living room, still handcuffed, and awaited further instructions. (Id.) When the police handcuffed Roosevelt, one of the officers asked Roosevelt whether he "had anything on him." (Id.) Roosevelt replied that he had three nickel bags of marijuana in his pocket. (Id.) The officers continued to search Roosevelt's bedroom, and discovered a bag of rusty bullets in the closet. (Scharfstein Decl., Ex. N; Cobb Aff. II, Ex. 4.)

According to plaintiffs, after the search was complete, the officers stated that Jesse, James and Roosevelt were being arrested. (Sharfstein Decl., Ex. I.) The officers did not provide Miranda warnings or inform plaintiffs of the reason for their arrest. (Id.) The other individuals at the residence were then uncuffed. (Id.) Jesse, James and Roosevelt, still handcuffed, were placed into a police van and brought to central booking. (Id.) They remained in handcuffs while waiting in central booking for three hours, after which they were released. (Id.)

According to the police reports, Jesse, James and Roosevelt were arrested for the Class A misdemeanor of criminal possession of marijuana in the fourth degree, for a quantity of two ounces of marijuana. (Scharfstein Decl., Ex. P.) In a state criminal court affidavit, Detective Paulsen stated that the NYPD had recovered twenty-four bags of marijuana from a dresser in the rear left bedroom, as well as an additional four bags of marijuana and thirty-one live rounds of .32-caliber ammunition from the closet of the rear right bedroom. (Id.) The affidavit stated that plaintiffs Jesse and James were located in the rear left bedroom, while plaintiff Roosevelt was located in the rear right bedroom. (Id.) The property clerk's invoices and lab report indicate that twenty-eight bags of marijuana, weighing a total of one ounce and 34.2 grams, were obtained from Jesse, and that thirty-one live .32-caliber rounds were recovered from Roosevelt. (Sharfstein Decl., Ex. G; see also Scharfstein Decl., Ex. H.) The officers also told Roosevelt that they had seized drug paraphernalia, in the form of individual sandwich bags, from the residence. (Scharfstein Decl., Ex. N; Cobb Aff. II, Ex. 4.)

However, plaintiffs dispute defendants' factual allegations regarding the location and amount of marijuana. First, plaintiffs contend that the three nickel bags in Roosevelt's pocket, rather than the alleged twenty-eight bags listed in the report, constituted the only marijuana present at the residence at the time of the arrest. (Pls.' Supp. Br., at 1-2.) In deposition testimony, both James and Jesse stated that they were not aware of any marijuana on the premises. James testified as follows:

Q: Have you ever seen illegal drugs in your home?

A: No.

Q: When your friends come over or your cousins come over, you have never seen anyone smoking marijuana have you?

A: No.

(Cobb Aff. II, Ex. 2.) Likewise, Jesse testified as provided below:

Q: Did [the police officers] say where they had found the marijuana?

A: No.

Q: You don't know where they had found it?

A: No.

Q: Had you ever seen marijuana in your apartment before?

A: No.

Q: So you had no idea where it would have come from?

A: Uh-uh.

(Cobb Aff. II, Ex. 3.) In an affidavit, Roosevelt admitted to possessing three "nickel" bags of marijuana in his pocket, as well as to having put the rusted ammunition into his closet at an earlier time, stating that "a plainclothes police officer came into my room and asked me if I had anything on me. At which point I informed him that I had three nickel bags of marijuana in my pocket." (Scharfstein Decl., Ex. I.) In addition, in his deposition testimony, Roosevelt testified about whether marijuana was present at the residence:

Q: Is it possible, as far as you know, that someone had marijuana in the apartment?

A: Yes.

Q: You just hadn't seen ...

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