The opinion of the court was delivered by: Matsumoto, District Judge
FOR ELECTRONIC PUBLICATION ONLY
Plaintiff Louis P. Rateau ("plaintiff" or "Rateau") brings this action against the City of New York (the "City"), Department of Information and Technology ("DoITT") employee Michael Elkin ("Elkin") and two unnamed police officers (collectively, "defendants") alleging false arrest, malicious prosecution, and municipal liability in violation of 42 U.S.C. § 1983, and various state law tort claims, all arising from plaintiff's allegedly unlawful arrest, confinement and prosecution. Plaintiff also claims that defendants conspired to violate his constitutional rights, in violation of 42 U.S.C. § 1985, and that defendants discriminated against him based on race, in violation of 42 U.S.C. § 1981.
Presently before the court is defendants' motion for summary judgment, pursuant to Federal Rule of Civil Procedure 56, seeking dismissal of plaintiff's action. For the reasons set forth herein, defendants' motion for summary judgment is granted in part and denied in part.
The following facts, taken from defendants' statement pursuant to Local Civil Rule 56.1 (Doc. No. 34, "Def. 56.1 Stmt."), are undisputed unless otherwise indicated. Plaintiff has failed to file a counter-statement of material facts as required by Local Civil Rule 56.1(b). Instead, plaintiff has represented that, with the exception of those facts plaintiff disputes in his Memorandum of Law (Doc. No. 31, "Pl. Mem."), plaintiff "concurs in the facts as submitted by Defendants . . . ." (Pl. Mem. at 1.)*fn1
Between March 5, 2004 and October 27, 2004, plaintiff made at least 65 phone calls to DoITT's 3-1-1 call center for non-emergency municipal services. (Def. 56.1 Stmt. ¶ 3.) From October 1, 2004 through October 27, 2004, plaintiff made at least 16 calls to 3-1-1. (Id. ¶ 4.) On at least one occasion, plaintiff asked to speak with a call center supervisor. (See Doc. No. 35, Declaration of Afsaan Saleem ("Saleem Decl."), Ex. F, Excepts from the Deposition of Louis P. Rateau ("Pl. Dep.") at 37.)
On October 27, 2004, in response to plaintiff's calls, Michael Elkin, an assistant commissioner of DoITT, called plaintiff from his direct telephone line at the 3-1-1 call center. (Def. 56.1 Stmt. ¶¶ 5, 9; see Pl. Dep. at 37; Saleem Decl., Ex. G, Excerpts from the Deposition of Michael Elkin ("Elkin Dep.") at 43.) Defendant Elkin testified that during this conversation, plaintiff threatened to do harm to Elkin and the 3-1-1 call center building. (See Elkin Dep. at 71; Def. 56.1 Stmt. ¶ 13.) The call was not recorded. (Def. 56.1 Stmt. ¶ 12.) Plaintiff testified that he only spoke to Mr. Elkin once and that he did not make any threats. (Pl. Dep. at 37-38.)
Mr. Elkin testified that during his tenure at 3-1-1, he had never previously received a personal threat or threat against the building. (Elkin Dep. at 71.) He testified that his conversation with plaintiff was the first time he received such threats. (Id.) Mr. Elkin further testified that callers regularly make threats to 3-1-1 operators. (Id. at 72.) On such occasions, operators are required, pursuant to office procedure, to refer threats to the New York City Police Department ("NYPD") by contacting 9-1-1 emergency services. (see id.)
Following his conversation with plaintiff, Mr. Elkin contacted DoITT's General Counsel's office. (Id. at 73.) Mr. Elkin testified that it was DoITT policy to notify the General Counsel's office any time 9-1-1 was contacted. (Id.) The General Counsel's office directed Mr. Elkin to follow call center procedure and contact 9-1-1 regarding the threats. (Id. at 73-74.)
Thereafter, Mr. Elkin called 9-1-1 to report plaintiff's alleged threats. (Def. 56.1 Stmt. ¶ 15; Saleem Decl., Ex. L, Incident Record ("Sprint Report"), dated Oct. 27, 2004, Bates No. 109.) The Sprint Report indicates that Mr. Elkin had reported "threats to city official and building." (Id.; see Def. 56.1 Stmt. ¶ 16.)
Thereafter, on October 28, 2004, Mr. Elkin spoke with NYPD Detective Louis DiPaola regarding his conversation with plaintiff. (See id. ¶ 17; Saleem Decl., Ex. D, Investigation and Arrest Records, Bates No. 76.) According to NYPD records, Mr. Elkin reported that plaintiff became "agitated" and "threatened to kill" Elkin and "blow up the communications building." (Id.)
On November 3 and 9, 2004, various NYPD detectives, including Detective DiPaola, visited plaintiff's residence in an attempt to investigate the matter. (See Saleem Decl., Ex. D, Bates Nos. 74-75.) On November 9, 2004, Detective DiPaola left a telephone message for plaintiff requesting that plaintiff call him. (Def. 56.1 Stmt. ¶ 20.) That day, plaintiff returned the call and, according to NYPD records, plaintiff advised that he would surrender to the police on November 14, 2004. (See Saleem Decl., Ex. D, Bates Nos. 73-75; Def. 56.1 Stmt. ¶ 22; Pl Dep. at 41.) Plaintiff failed to surrender on that date. (Def. 56.1 Stmt. ¶ 24.)
Having failed to turn himself in, NYPD detectives arrested plaintiff on November 22, 2004. (Id. ¶ 28.) Detective DiPaola was the arresting officer. (Id. ¶ 29.) Mr. Elkin did not participate in and was not present for plaintiff's arrest.
(Id. ¶¶ 30-31.) Plaintiff testified that he was placed in custody immediately following his arrest. (See Pl. Dep. at 41; see Doc. No. 1, Complaint ("Compl.") ¶¶ 25-26.) Arrest records indicate that plaintiff spent approximately 5 to 6 hours in police custody on November 22, 2004. (See Saleem Decl., Ex. D, Bates Nos. 14-15; see also Saleem Decl., Ex. C, Notice of Claim.)
On December 20, 2004, plaintiff was charged in a Misdemeanor Complaint with Aggravated Harassment in the Second Degree and Harassment in the Second Degree. (Id. ¶ 33.) Although Mr. Elkin signed a declaration in support thereof (see Saleem Decl., Ex. D, Misdemeanor Complaint, Bates No. 56), he did not attend criminal court in connection with plaintiff's prosecution (Def. 56.1 Stmt. ¶ 34). Criminal court records indicate that plaintiff's prosecution was dismissed on November 15, 2005 by "MOTION OF DA[.]" (See Saleem Decl., Ex. H, Certificate of Disposition; see also Def. 56.1 Stmt. ¶ 35.)
Plaintiff filed a notice of claim with the City Comptroller's Office on January 9, 2006. (Id. ¶ 37; Saleem Decl., Ex. C, Notice of Claim dated Jan. 5, 2006.) The notice of claim, which names only the City as a defendant, alleges the following claims:
False arrest, False imprisonment, Malicious Prosecution, Intentional Infliction of Emotional Distress, Negligent Infliction of Emotional Distress, and Violation of Civil Rights under 42 U.S.C. Section 1983 and Negligent Hiring/Training/Retention. (Id.)
On August 28, 2006, plaintiff commenced the instant action against the City, Mr. Elkin and two unnamed NYPD officers. As previously mentioned, plaintiff alleges false arrest, false imprisonment, malicious prosecution, and municipal liability in violation of 42 U.S.C. § 1983, as well as state common law assault and battery claims. (See generally, Compl. ¶¶ 31-57.) Plaintiff also claims violations of 42 U.S.C. §§ 1981 and 1985. (See id. ¶ 32.)
A. Summary Judgment Standard
A court may grant summary judgment only "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original). "A fact is 'material' for these purposes when it 'might affect the outcome of the suit under the governing law.'" Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005). "An issue of fact is 'genuine' if 'the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Id. Moreover, no genuine issue of material fact exists "unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, . . . or is not significantly probative, . . . summary judgment may be granted." Anderson, 477 U.S. at 249-50 (internal citations omitted).
The moving party bears the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The court must construe the facts in the light most favorable to the nonmoving party and all reasonable inferences and ambiguities must be resolved against the movant. Flanigan v. General Elec. Co., 242 F.3d 78, 83 (2d Cir. 2001). Nevertheless, the nonmoving party may not rest "merely on allegations or denials" but must instead "set out specific facts showing there is a genuine issue for trial."
Fed. R. Civ. P. 56(e)(2).
Plaintiff brings this action pursuant to, inter alia, 42 U.S.C. § 1983 for the alleged deprivation of his Constitutional rights. Section 1983 provides, in relevant part, as follows:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .
Section 1983 "is not itself a source of substantive rights, but merely provides a method for vindicating federal rights elsewhere conferred." Graham v. Connor, 490 U.S. 386, 393-94 (1979) (internal quotation marks and citation omitted). "To prevail on a § 1983 claim, a plaintiff must establish that a person acting under color of state law deprived him of a federal right." Thomas v. Roach, 165 F.3d 137, 142 (2d Cir. 1999).
1. "Under Color of State Law"
As a threshold matter, defendants contend that Mr. Elkin did not act under the color of state law and, thus, cannot be liable under Section 1983. (See Doc. No. 33, Memorandum of Law in Support of Defendants' Motion for Summary Judgment ("Def. Mem.") at 4-7; Pl. Mem. at 3.) Specifically, defendants contend that Mr. Elkin acted as an "ordinary citizen" when he called the police to report plaintiff's alleged threats. (Def. Mem. at 6.) Defendants further contend that there is "no evidence . . . that Elkin abused his position [as a City employee] in any way." (Id.) Defendants argue that the only aspect of Mr. Elkin's position as a City employee that required him to act was his office procedure to "contact an entity of the police department before he called 911." (Id.) Furthermore, in support of defendants' contention that plaintiff was required to file a notice of claim against Mr. Elkin pursuant to the New York General Municipal Law, discussed below, defendants argue that "Elkin's act in calling the police after he felt that the plaintiff had threatened him, clearly falls within his scope of employment." (See id. at 24.)
Plaintiff contends that Mr. Elkin acted under the color of state law insofar as he "followed an established protocol . . . for forwarding . . . the matter" to the NYPD. (Pl. Mem. at 3.) The court agrees that Mr. Elkin acted within the scope of his employment and under the color ...