The opinion of the court was delivered by: Robert P. Patterson, Jr., U.S.D.J.
Plaintiffs Ra Ptah Tarhaqa Allen and Leonard Walters bring this pro se action under 42 U.S.C. §§ 1983, 1985 and 1986 as well as 18 U.S.C §§ 241 and 242 against Defendants, New York City Police Department ("NYPD"), New York City Corporation Counsel, Police Officer Julio Gonzalez ("Officer Gonzalez"), Police Officer Vincent Ruiz ("Officer Ruiz") and Police Officer Randys Figuereo ("Officer Figuereo") (collectively, "Defendants"). Plaintiffs allege violations of rights under the United States Constitution as well as corresponding state law claims of false imprisonment, unlawful interrogation, and illegal search and seizure. On July 31, 2009, Defendants moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, complying with Local Civil Rules 56.1 and 56.2. On October 26, 2009, Plaintiffs filed their opposition to Defendants' motion.*fn1 On November 23, 2009, Defendants filed their reply memorandum of law in further support of their motion for summary judgment. For the reasons set forth below, Defendants' motion for summary judgment is granted in part and denied in part.
The following facts are drawn from the Plaintiffs' Verified Amended Complaint filed February 22, 2008 ("Compl."), Defendants' Statement of Undisputed Facts pursuant to Local Rule 56.1 dated July 31, 2009 ("Def. 56.1"), excerpts of the depositions of each Plaintiff ("Allen Dep." and "Walters Dep.") attached as exhibits D and E to the Declaration of Brian Francolla dated July 31, 2009 ("Francolla Decl."), and the Declaration of Police Officer Julio Gonzalez dated July 28, 2009 ("Gonzalez Decl."), Francolla Decl., Exhibit F.*fn2
A. Defendants' Initial Observations of Allen
On June 1, 2007, Officers Gonzalez, Ruiz, and Figuereo (the "Officer Defendants") were assigned to patrol the Taft Housing Development of the New York City Housing Authority. (Gonzalez Decl. ¶ 8.) At the time of the events giving rise to this action, the Officer Defendants were patrolling 1345 Fifth Avenue, which is located within the Taft Housing Development. (Id. ¶ 9.)*fn3 A key was required to enter 1345 Fifth Avenue. (Def 56.1 ¶ 7; Allen Dep. at 49; Walters Dep. at 29-30.) There was a sign in the building cautioning that people "will be subject to arrest for trespassing or loitering in the stairwell." (Allen Dep. at 52; Def. 56.1 ¶ 5.) At approximately 8:20 pm, Allen entered 1345 Fifth Avenue to drop off a package at his sister-in-law's apartment.
(Def. 56.1 ¶ 6; Compl. ¶ 1.)*fn4 The door to the building was open (Allen Dep. at 50), and the Officer Defendants observed Allen walk in without using a key. (Allen Dep. at 48-49; Def. 56.1 ¶ 8; Gonzalez Decl. ¶ 12.)*fn5 Allen testified that he did not use the call box -- in his words, he did not press the "access buttons" -- in order to enter to the building (Allen Dep. at 50), and he did not sign in on the tenant patrol sign in sheet in the lobby for persons who did not live in the building. (Id. at 57.) Allen did not advise Plaintiff Walters or Plaintiff Walters' wife (who is Allen's sister-in-law) that he would be coming over to their apartment on June 1, 2007. (Id. at 48.)
B. Defendants' Interactions with Allen on the First Floor
On his way back down to the building's lobby, after visiting his sister-in-law's apartment on the eighth floor, Allen exited the elevator on the second floor because the elevator occasionally broke down before reaching the first floor. (Def. 56.1 ¶¶ 13, 14.) While he was walking from the elevator towards the stairwell, Allen passed an African-American male. (Id. ¶ 15; Allen Dep. at 66.) The Officer Defendants stopped Allen at the bottom of the stairwell and Officer Ruiz asked Allen why he had taken the stairs instead of the elevator. (Compl. ¶ 1; Allen Dep. at 67-68.) Allen responded "Why I can't take the stairs?" (Def. 56.1 ¶ 17; Allen Dep. at 69-70.) Officer Gonzalez then asked Allen whether he knew the African-American man who passed him, and Allen responded, "Am I supposed to know him?" (Def. 56.1 ¶ 18; Allen Dep. at 68.)
When asked for identification, Allen gave the Officer Defendants his driver's license which indicated that he lived in a different building, 1694 Madison Avenue, which is also in the Taft Housing Complex. (Def. 56.1 ¶ 19; Allen Dep. at 74-75.) Allen told the Officer Defendants that he had been visiting apartment 8-B. (Def. 56.1 ¶ 20; Allen Dep. at 76.) Officer Figuereo went upstairs to verify that Allen had come from apartment 8-B while the other two officers stayed with Allen. (Allen Dep. at 75-76.) Allen did not tell the Officer Defendants at this point that he sister-in-law was sleeping. (Def. 56.1 ¶ 23; Allen Dep. at 77.) Officer Figuereo returned, reporting that nobody had answered the door. (Def. 56.1 ¶ 22; Allen Dep. at 77.) The Officer Defendants then accompanied Allen to the eighth floor. (Def. 56.1 ¶ 24; Allen Dep. at 77-78.)*fn6
C. Defendants' Interactions with Allen and Walters on the Eighth Floor
Once on the eighth floor, Officer Figuereo knocked on the door to apartment 8-B and no one responded. (Allen Dep. at 80-81.) Allen still did not tell the Officer Defendants that his sister-in-law was sleeping. (Id. at 81.) Though the exact sequence of events is not clear, Plaintiff Allen claims that Officer Gonzalez asked him what he was carrying in his bag. (Compl. ¶ 2.) Allen responded that he was carrying flyers "to by [sic] food." (Id.) Officer Gonzalez took the bag and looked inside it. (Id.) After Officer Figuereo had knocked on the door to apartment 8-B and received no answer, he frisked Allen. (Def. 56.1 ¶ 28; Allen Dep. at 81.) During the frisk, Officer Figuereo placed his hand in Allen's left, right and back pockets (Allen Dep. at 81), and took Allen's keys from one of his pockets (Compl. ¶ 2).
In their statement of facts and accompanying declaration, Defendants make no mention of Allen's bag or the search of Allen's pockets. Instead, Officer Gonzalez asserts that he performed a "limited pat-frisk in order to ensure that plaintiff Allen was not in possession of a weapon so as to ensure my safety and the safety of Police Officers Ruiz and Figuereo." (Gonzalez Decl. ¶ 24.)
As of June 1, 2007, Plaintiff Walters, who is Allen's brother-in-law, lived at 1345 Fifth Avenue, Apartment 8-B. (Def. 56.1 ¶ 3; Walters Dep. at 13.) Walters arrived on the eighth floor where he saw the Officer Defendants and Allen standing in the hallway. (Def. 56.1 ¶ 29; Walters Dep. at 38, 42.) Walters voluntarily gave the Officer Defendants his identification and asked what the problem was. (Def. 56.1 ¶ 30; Walters Dep. at 42-43.) Walters told the Officer Defendants that Allen was his brother-in-law, however, when asked Allen's name, Walters could not recall it. (Walters Dep. at 43.) Walters observed one of the Officer Defendants take a key from Allen. (Id. at 42, 47.)
According to Allen, Officer Gonzalez put the key in the door of apartment 8-B and leaned into the apartment for five or six seconds before exiting the apartment and closing the door. (Allen Dep. at 86-87.) Officer Gonzalez's feet remained outside the apartment. (Id. at 88.) Walters also observed Officer Gonzalez enter the apartment and testified that Officer Gonzalez remained in the apartment for ten to fifteen seconds. (Walters Dep. at 48-49.) Defendants claim, however, that Officer Gonzalez merely knocked on the door which began to open slightly, and that he immediately closed the door. (Gonzalez Decl. ¶¶ 19-22.)
Walters offered to wake up his wife before Officer Gonzalez entered the apartment. (Allen Dep. at 86; Compl. ¶¶ 3, 4.) Either Officer Gonzalez or Ruiz told Walters that he would be arrested for interfering with a police investigation if he did so. (Allen Dep. at 86; Compl. ¶ 4.) When Walter said "You can't tell me I can't enter my apartment," Officer Gonzalez told Walters to "Shut up." (Compl. ¶ 4; Allen Dep. at 86.)
After Officer Gonzalez closed the door to apartment 8-B, he returned Allen's bag and keys and told Allen he could go. (Walters Dep. at 50; Compl. ¶ 4.) As Allen was walking back towards the elevator, Officer Ruiz said "Will [sic] be watching you" and "Have a nice day." (Compl. ¶ 4.)
Neither Allen nor Walters was arrested as a result of the events on June 1, 2007. Walters was not frisked by any of the Officer Defendants. (Allen Dep. at 98.) Walters moved to a new home due to this incident. (Walters Dep. at 78-79.) However, Plaintiffs are not alleging that they have suffered any physical, mental or financial injuries. (Def. 56.1 at ¶ 32; Allen Dep. at 109; Walters Dep. at 78-79.)
Summary judgment is appropriate if the evidence offered demonstrates that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). The burden rests on the moving party to demonstrate the absence of a genuine issue of material fact, Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 (1970), and the Court must view the facts in the light most favorable to the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). The non-moving party, however, "may not rest upon mere conclusory allegations or denials, but must bring forward some affirmative indication that his version of relevant events is not fanciful." Podell v. Citicorp Diners Club, Inc., 112 F.3d 98, 101 (2d Cir. 1997) (internal quotations omitted). Moreover, "the mere existence of some alleged ...