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Luis Manuel Velasquez et al v. the City of New York and the City of New York Police Department

January 26, 2012

LUIS MANUEL VELASQUEZ ET AL., PLAINTIFFS,
v.
THE CITY OF NEW YORK AND THE CITY OF NEW YORK POLICE DEPARTMENT, DEFENDANTS.



The opinion of the court was delivered by: Richard J. Holwell, District Judge:

MEMORANDUM OPINION AND ORDER

Plaintiffs Luis Manuel Velasquez, Victoria Marie Velasquez, Ana Mercedes Muniz, Elizabeth Muniz, Armando Rivera, Amanda Rivera, and Kaitlyn Ann Velasquez bring this action against defendants the City of New York (the "City") and the City of New York Police Department (the "NYPD") pursuant to 42 U.S.C. § 1983 and New York law. Plaintiffs were residents or guests of an apartment in Manhattan when officers of the NYPD executed a search warrant there in the early morning of July 6, 2007. Plaintiffs bring claims for civil rights violations under § 1983 and claims under state law for false arrest, malicious prosecution, negligence and negligent treatment, invasion of privacy, battery, and prima facie tort. Defendants have moved for summary judgment on all claims pursuant to Federal Rule of Civil Procedure 56. For the following reasons, the defendants' motion is GRANTED.

BACKGROUND

The following facts are taken from the defendants' Rule 56.1 Statement, as well as from the affidavits and documents submitted by both parties in connection with the defendants' motion. The facts are undisputed unless otherwise noted.

On June 29, 2007, Judge Ferarra of the New York Criminal Court issued a search warrant for Apartment 3D at 425 East 105th Street in Manhattan. (Def.'s Statement Pursuant to Local Rule 56.1 ("Def.'s 56.1 Statement") ¶ 2; see Decl. of David M. Pollack in Supp. of Def.'s Mot. for Summ. J. ("Pollack Decl.") Ex. B.) The warrant was valid for ten days and authorized the police to enter the apartment without giving notice to its occupants. (Def.'s 56.1 Statement ¶ 4.) The warrant was based on the existence of "reasonable cause" to believe that "evidence of illegal drug and firearms dealing[] may be found" at the apartment. (Pollack Decl. Ex. B.) Accordingly, the warrant authorized the NYPD to search the apartment for certain property related to those crimes. Specifically, the warrant authorized the police to search for "[c]rack/cocaine, cocaine, vials, caps, small ziplock-style bags, and other evidence of the possession and distribution of cocaine." (Id.) It also permitted the police to search for "documents reflecting drug or firearm transactions" and "currency and other evidence of proceeds from drug trafficking and firearms and trafficking [sic], such as financial records in any format." (Id.)

The warrant was supported by an affidavit signed by Detective Brian Fleming ("Fleming") of the NYPD's Narcotics Borough Manhattan North (See Decl. of Arlen S. Yalkut in Opp'n to Def.'s Mot. for Summ. J. ("Yalkut Decl.") Ex. A.) The affidavit was prepared by Assistant District Attorney Gabrielle Ruda based on information provided by Fleming. (See Dep. Of Brian Fleming ("Fleming Dep.")*fn1 , 17-18.) Fleming's affidavit, which has been redacted significantly, explains that the NYPD employed a confidential informant ("CI") to conduct controlled purchases of narcotics at the apartment. (See Yalkut Decl. Ex. A, at 2-3.) The affidavit explains that the CI was registered with the NYPD and had provided reliable information to the NYPD in the past. (Id. at 2, ¶ 5.b.) Detective Fleming estimated at his deposition that he had received information from this particular CI on approximately twelve to fifteen prior occasions; however, he could not recall whether on every occasion the CI's information led to the recovery of narcotics. (See Fleming Dep. 51-52.) Detective Fleming also testified that the CI was paid for her assistance. According to Fleming, his team commonly paid CIs forty to fifty dollars for each controlled purchase. (Id. at 110-12) Fleming testified that he was unaware of what other teams in the NYPD may have paid their CIs. (Id. at 112.)

Fleming's affidavit further describes two controlled purchases made by the CI at the apartment and confirms that the CI's description of the location of the apartment within the building is accurate. (See Yalkut Decl. Ex A at 3, ¶¶ 5.c.(i)-(ii), 6.) According to the affidavit, Fleming gave the CI a certain amount of cash to purchase drugs. (Id. ¶ 5.c.(i), (ii).) The CI then conducted the controlled purchase and returned the drugs to Fleming. (Id.) The affidavit indicates that the amount of narcotics purchased by the CI was consistent with the amount of money provided to the CI for the controlled purchase. (Id.) At his deposition, Fleming testified that he did not directly observe the CI enter the apartment or conduct the purchases and that he otherwise had no firsthand knowledge of any drug related activity in the apartment. (See Fleming Dep. 66, 108-110.) The affidavit, however, does indicate that the CI described the location of Apartment 3D within the building and that Fleming "further states that the apartment is located where it is described by CI and that the door is clearly marked '3D.'" (Id. ¶ 6.)

The warrant was executed on the morning of July 6, 2007. Prior to executing the warrant, Detective Fleming prepared a "Search Warrant Plan: Pre-Execution" ("Search Warrant Execution Plan"), in which he identified the officers that were to participate in the execution, their specific assignments, and their equipment. (See Yalkut Decl. Ex. B; see also Fleming Dep. 26.) The Search Warrant Execution Plan also contained a copy of the apartment's floor plan, which Detective Fleming obtained from the New York City Housing Authority. (Fleming Dep. 36.) With respect to the participating officers, the Search Warrant Plan identified a total of eleven officers, including a Captain Marren, who was listed as the "overall supervisor," and a Lieutenant Mooney, who was listed as the "module leader;" Detective Fleming was listed as "bunker security." (See Yalkut Decl. Ex. B.)

The officers entered Apartment 3D around 6:00am. At that time, all of the plaintiffs were inside the apartment, sleeping. The officers, wearing helmets and bulletproof vests, broke down the door using a battering ram and announced that they were police. (See Fleming Dep. 40; Velasquez Dep. 32) As a result of the noise, plaintiff Ana Mercedes Muniz awoke and left her bedroom, at which point she encountered the officers. Plaintiff Luis Manuel Velasquez testified at his deposition that the officers threw Ana Mercedes Muniz, who was Mr. Velasquez's mother-in-law, to the floor. (Dep. of Luis Manuel Velasquez ("Velasquez Dep.") (attached as Ex. C to Pollack Decl.) 32.) Luis Manuel Velasquez, however, also testified that Ana Mercedes Muniz did not sustain any physical injuries. (Id. 21.) Luis Manuel Velasquez testified that the police then entered the back bedroom where he had been sleeping and threw him out of bed. As a result, Mr. Velasquez's arm hit a door frame and he suffered a bruise. (Id. 26; see Def.'s 56.1 Statement ¶ 13.) The officers then brought all the occupants into the hallway and placed handcuffs on plaintiffs Luis Manuel Velasquez, Ana Mercedes Muniz, Elizabeth Muniz, and Armando Rivera, all of whom were adults at the time. (Def.'s 56.1 Statement ¶ 6.) Plaintiffs Amanda Rivera, Victoria Marie Velasquez, and Kaitlyn Ann Velasquez were children at the time and were not handcuffed. (Id. ¶ 7.) Luis Manuel Velasquez testified that the officers then asked him if there were any drugs or weapons in the apartment. (Velasquez Dep. 45.) Mr. Velasquez told the officers that there were no drugs, but that there were two rifles in his bedroom closet. (Id.) The officers then took Mr. Velasquez to the bedroom and located the rifles. (Id.) The officers also located ammunition underneath Velasquez's bed and a switchblade in a desk drawer in Velasquez's bedroom. (See id. at 45-47.) The officers also recovered five imitation pistols in the bedroom closet of Mr. Velasquez's son, plaintiff Armando Rivera. (See id. at 38, 49.) The rifles were not registered to Mr. Velasquez. (Def.'s 56.1 Statement ¶ 10.) Mr. Velasquez testified that the rifles were registered to his brother-in-law, Frankie Muniz, and that Mr. Muniz kept the rifles at the apartment because he used to live there. (See Velasquez Dep. 37, 51-52.)

According to Mr. Velasquez, the search of the apartment lasted about one hour. (Id. at 40.) After completing the search, the officers removed the handcuffs from all of the plaintiffs except for Mr. Velasquez. (Def.'s 56.1 Statement ¶ 12.) Mr. Velasquez was taken into custody and placed in a police van outside of the apartment building. (Id. ¶ 17.)

None of the other plaintiffs were taken into police custody. (Id. ¶ 16.) Nonetheless, the record indicates that an "Omniform System-Arrests" form was created for each plaintiff. Each arrest form contains substantially identical language stating that each plaintiff "was observed in possession of a firearm." (Yalkut Decl. Ex. D.) With the exception of the form created for Mr. Velasquez, however, the "processing type" on each arrest form is listed as "voided arrest," and each form states that "after further investigation no crime was committed." (Id.)

Mr. Velasquez remained in the police van for forty-five minutes before arriving at the precinct. (Def.'s 56.1 Statement ¶ 18.) Mr. Velasquez testified that during this time he began to cough and that his blood pressure began to rise. (Velasquez Dep. 42.) At the time, Mr. Velasquez was suffering from a number of pre-existing health conditions, including an enlarged heart, high blood pressure, and high cholesterol. (Def.'s 56.1 Statement ¶ 26.) After about twenty minutes inside the police van, Mr. Velasquez informed the officers that he needed to use the restroom, but the officers told him he would have to wait until they arrived at the precinct. (Id. ¶¶ 19-20.) Upon arriving at the precinct, Mr. Velasquez was able to use the bathroom in his cell. (Id. ¶ 21.)

Inside his cell, Mr. Velasquez continued to cough. He felt sick enough that he laid down on a bench inside the cell. (Velasquez Dep. 55.) At that point, an officer came up to Mr. Velasquez's cell and asked him if he was "okay." (Id.) Mr. Velasquez said, "No, I need to see a doctor." (Id.) The officer told Mr. Velasquez, "Let me take you to Central Booking, you should be out in a few hours," to which Mr. Velasquez replied, "No, I have to see a doctor." (Id.) The officer then told Mr. Velasquez, "I will be back." (Id.) When a different officer approached, Mr. Velasquez repeated that he needed to see a doctor, but the officer responded, "Me don't speak English." (Id.) A third officer then approached the cell and told Velasquez that he needed to be fingerprinted. (Id.) This officer took Mr. Velasquez from his cell, gathered his pedigree information, and brought him to get fingerprinted. (Id. at 55-56.) At this point, the first officer returned and informed Mr. Velasquez that his wife had brought him his medication. (Id. at 56.) Mr. Velasquez, however, did not take the medication because "it was too late already." (Id.) The first officer then informed Mr. Velasquez that the officers would bring him to the hospital. (Id.) Mr. Velasquez requested that he be taken to Mt. Sinai Hospital because Mt. Sinai Hospital had all of his records. (Id.) The officers, however, informed Mr. Velasquez that he would be taken to Bellevue Hospital. (Id.)

Mr. Velasquez was admitted to Bellevue at 3:05 p.m. on July 7, 2007, where he was treated for hypertension. ...


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