The opinion of the court was delivered by: Thomas J. McAVOY Senior United States District Judge
Plaintiff Cecilia Nicholas commenced the instant action against the City of Binghamton and Binghamton Police Officers Charles Harder, James Mooney, Captain John Chapman, and Chief Joseph Zikuski (collectively "Defendants") pursuant to 42 U.S.C. § 1983. Presently before the Court is Defendants' Motion for Summary Judgment pursuant to Fed. R. Civ. P. 56 seeking dismissal of Plaintiff's Second Amended Complaint in its entirety. Dkt. Nos. 30, 32.
On September 29, 2009, around 11:30AM, Plaintiff was in her home on Lathrop Avenue in Binghamton, New York. She was sitting near a gas fireplace when suddenly the flame went out. Dkt. No. 32 at 7. When Plaintiff saw the flame go out, she jumped up and went to the rear door of her house. Id. She saw that a New York State Electric and Gas ("NYSEG")*fn1 vehicle was parked in front of her house. Id. She then opened the door and observed a NYSEG employee in her driveway, getting close to the sidewalk. Id. at 8; Dkt. No. 46 at 2. The NYSEG employee had shut off Plaintiff's gas for failure to pay her bill. Dkt. No. 32 at 8; Dkt. No. 46 at 2. The NYSEG employee turned around when Plaintiff opened the door and Plaintiff asked him to turn the gas back on. Dkt. No. 32 at 8; Dkt. No. 46 at 2. The NYSEG employee told her he could not and that another crew was responsible for turning gas services on. Dkt. No. 32 at 8; Dkt. No. 46 at 2. Plaintiff knew this to be true because her gas had been shut off three weeks prior to this incident. Dkt. No. 32 at 8; Dkt. No. 46 at 2. Plaintiff then asked the NYSEG employee not to leave; she told him to either call someone to turn the gas on or call the police. Dkt. No. 32 at 8; Dkt. No. 46 at 2. The NYSEG employee complied and called the police. Dkt. No. 32 at 8; Dkt. No. 46 at 2. Plaintiff did not believe the shut off was valid; she alleges she paid $800 to NYSEG three weeks prior. Dkt. No. 32 at 8; Dkt. No. 46 at 2.
Thereafter, the NYSEG employee got back into his vehicle (which was running) -- either a truck or SUV -- and waited for the police to arrive. Dkt. No. 32 at 8; Dkt. No. 46 at 2. Plaintiff also waited in the vicinity of the NYSEG vehicle. Dkt. No. 32 at 9; Dkt. No. 46 at 2. After standing beside the truck for awhile, Plaintiff tapped on the driver's side window of the NYSEG vehicle. Dkt. No. 32 at 9; Dkt. No. 46 at 2. She asked the NYSEG employee if he had called the Police and he shook his head indicating he had. Dkt. No. 32 at 9; Dkt. No. 46 at 2.
Plaintiff estimated she stood in front of, near, or alongside the NYSEG vehicle for at least 20 minutes. Dkt. No. 32 at 9; Dkt. No. 46 at 2.During her wait, Plaintiff became cold and she decided to lean on the vehicle for warmth. Dkt. No. 32 at 9; Dkt. No. 46 at 3. Eventually, she climbed up onto the hood of the vehicle to keep warm. Dkt. No. 32 at 9; Dkt. No. 46 at 3. Plaintiff grabbed the backside of the vehicle's hood, near the windshield wipers, and pulled herself onto the hood without stepping on the bumper. Plaintiff's feet were dangling off the hood; the only way she could have touched the ground was if she had slid down off the NYSEG vehicle. Dkt. No. 32 at 9; Dkt. No. 46 at 3.
Eventually, Officer Harder arrived on the scene. Dkt. No. 32 at 9; Dkt. No. 46 at 3. At this time, Plaintiff was laying on the hood of the NYSEG vehicle. Dkt. No. 32 at 9; Dkt. No. 46 at 3. Officer Harder parked his vehicle parallel to the NYSEG vehicle. Dkt. No. 32 at 9; Dkt. No. 46 at 3. In his police report, Officer Harder stated that he: "[r]esponded to a complaint of a woman standing in front of a NYSEG truck and refusing to let it leave." Dkt. No. 30, Ex. B at 1. Upon his arrival, he "observed Plaintiff lying on the hood of the NYSEG truck with the worker inside." Id.
Plaintiff alleges that Officer Harder, without first asking any questions, grabbed Plaintiff by the rear waistband of her pants and by one of her arms and "yanked" her off the NYSEG vehicle. Dkt. No. 32 at 10; Dkt. No. 46 at 3. She argues that he dragged and shook her across the lawn toward the front stoop, and that she asked him to stop because he was hurting her and she had Multiple Sclerosis. Dkt. No. 39 at 3. During this time, she alleges Officer Harder was trying to trip her and was deliberately keeping her off balance. Dkt. No. 46 at 3. Before arriving at her front stoop, Officer Harder let her go. Dkt. No. 32 at 10.
Plaintiff argues she stumbled onto the steps of her front stoop. Dkt. No. 46 at 3. After sitting on the steps, she asked Officer Harder what his name was. Dkt. No. 39. at 3. Officer Harder stated his name and thereafter told her she was out of control and she would be taken to Binghamton General Hospital's CPEP Unit (Comprehensive Psychiatric Emergency Program Unit) for evaluation. Dkt. No. 32 at 11; Dkt. No. 46 at 4. While Plaintiff was sitting on the stoop, she realized another officer, Officer Mooney, had arrived. Dkt. No. 32 at 11; Dkt. No. 46 at 4.
After being told she was going to CPEP, Plaintiff asked if she could first tend to her dog, brush her hair and teeth, use the bathroom, take her medication, and lock up her house. Dkt. No. 39 at ¶ 23. The officers allowed her to do so. Id. at ¶ 39. After letting her dog out, Plaintiff entered the house with her dog at her side, and the officers entered into her home right behind her. Id.; Dkt. No. 30, Ex. A 103:7-8. The officers remained only where Plaintiff was physically present. Dkt. No. 30, Ex. A 103:1-3.
After being allowed to perform various tasks in her home, Plaintiff then asked if she could give her dog his medication and requested she be accompanied by her dog to the hospital because he was a service dog. Dkt. No. 30, Ex. A at 105-106. The officers refused and allegedly became agitated. Id. Thereafter, they assisted Plaintiff to the ground, "practically kneeling" on her and, when her back was on the floor of her bathroom, they handcuffed her. Id. at 106:6-8. The handcuffs were placed on the front of her body. Id. After being handcuffed, Plaintiff alleges she was dragged down her driveway to the front steps of her home. Dkt. No. 39 at ¶ 41. Plaintiff complained the handcuffs were too tight. Dkt. No. 30, Ex. A at 108:22-23. In response to her complaint, Officer Harder placed his two fingers between the cuffs and the underside of her wrists, yanked the handcuffs, and told her "they're fine." Id.
After being handcuffed, Officer Mooney called an ambulance. Dkt. No. 30, Ex. B at 6. In his police report, Officer Mooney indicated he called the ambulance because Plaintiff complained of chest pains. Id. Plaintiff states that she did not have chest pains, but when Officer Mooney asked if she needed an ambulance she stated that was a good idea because she does have a heart condition. Dkt. No. 30, Ex. A: 106-107. When Plaintiff reached the front stoop, she sat down next to Officer Mooney, who removed her handcuffs. Id. The ambulance report indicates Plaintiff was handcuffed for about four minutes. Dkt. No. 30, Ex.
When the ambulance arrived, Officer Harder stated Plaintiff was going to "behavioral" at General Hospital. Dkt. No. 39 at ¶¶ 121-22. While at the hospital, Plaintiff did not see Officer Mooney. Dkt. No. 30, Ex. A 124:11-13. However, she did see Officer Harder because she heard him tell the hospital staff that she was "here for behavioral." Dkt. No. 39 at ¶¶ 121-22. Plaintiff's person and purse were searched at the hospital. Id. at ¶ 48. Thereafter, Plaintiff was interviewed by CPEP personnel, who determined Plaintiff was not in need of psychiatric services. Id. at ¶ 49. Around 6:30 pm, Plaintiff was released from the hospital. Dkt. No. 30, Ex. A. 133-35.
On December 27, 2010, Plaintiff commenced this action pursuant to 42 U.S.C. § 1983 and the issue was joined when both the Defendant City and Defendant officers filed Answers. Dkt. Nos. 7, 8. On July 2, 2011, Plaintiff filed an Amended Complaint asserting seventeen causes of action: eight federal claims and nine state law claims. Dkt. No. 14. Plaintiffs federal Constitutional claims are that her Fourth Amendment right to be free from unreasonable searches and seizures was violated when she was falsely arrested, illegally searched, subjected to excessive force, and when her home was warrantlessly invaded; and that her First Amendment right to free speech was violated. She also asserts a Monell claim against the City of Binghamton, a supervisory liability claim, and a Title II claim under the Americans with Disabilities Act ("ADA"), 42 U.S.C. §12132. Dkt. No. 39 at ¶¶ 71-06. Her state law claims are intentional infliction of emotional distress ("IIED"); battery; abuse of process; defamation; violation of New York Civil Rights Law Article 2 §8; violation of New York Civil Rights Law Article 4b § 47(b); violation of New York Executive Law Article 15 § 296(14); violation of the New York Constitution Article 1 §§ 8, 11, 12; trespass; and respondeat superior. Id. at ¶¶ 107-41. On May 18, 2012 Plaintiff filed a Second Amended Complaint, adding no new claims, but rather adding a request for equitable relief under New York's Clear Your Good Name Act if she prevails on her claim that her detention pursuant to the Mental Hygiene Law was unfounded. Dkt. No. 39.
Presently before the Court is Defendants' Motion for Summary Judgment pursuant to Fed. R. Civ. P. 56 seeking dismissal of Plaintiff's Second Amended Complaint in its entirety. Dkt. Nos. 30, 32. Plaintiff opposes the motion. Dkt. No. 46. Defendants have submitted a reply. Dkt. Nos. 48, 50.
The Court may grant summary judgment where "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A dispute is genuine if the relevant evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). A party seeking summary judgment bears the burden of informing the court of the basis for the motion and must identify those portions of the record that the moving party believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548 , 2553 (1986). The court must view the inferences to be drawn from the facts in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986).
If the movant is able to establish a prima facie basis for summary judgment, the burden of production shifts to the party opposing summary judgment. Id. at 587. The nonmoving party must produce evidence establishing the existence of a factual dispute that a reasonable jury could resolve in her favor. Id. The nonmoving party must show, by affidavits or other evidence, that there are specific factual issues that can only be resolved at trial. See Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995). However, the nonmoving party cannot defeat summary judgment by "simply show [ing] that there is some metaphysical doubt as to the material facts," Matsushita Elec., 475 U.S. at 586, or by a factual argument based on "conjecture or surmise." Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991). In this regard, a party opposing a properly supported motion for summary judgment may not rest upon "mere allegations or denials" asserted in the pleadings, or on conclusory allegations or unsubstantiated speculation. See Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998); Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525--26 (2d Cir. 1994).
With these standards in mind, the Court will address the pending motions.
a. Plaintiff's Federal Claims
Defendants move for summary judgment against all of Plaintiff's Federal claims.
First, Defendants move to dismiss Plaintiff's false arrest claim. Dkt. No. 30 at 250; Dkt. No. 32 at 27. Plaintiff asserts this claim pursuant to 42 U.S.C. § 1983 against Defendants Harder, Mooney, Chapman, and Zikuski. Dkt. No. 39 at ¶ 80. Defendants seek dismissal of this claim on the grounds that Officers Harder and Mooney had probable cause to seize Plaintiff pursuant to § 9.41 of the New York Mental Hygiene Law and to arrest Plaintiff for engaging in disorderly conduct, in violation of New York Penal Law § 240.20. Dkt. No. 30 at 250-51, Dkt. No. 32 at 6-7. Plaintiff responds by stating that Defendants have offered insufficient evidence demonstrating the absence of a triable issue of material fact. Dkt. No. 46 at 1. She argues that the police incident report is inadmissible evidence. Id. She further argues that the only admissible evidence offered was that she was leaning on the parked vehicle and that this act alone is insufficient to establish probable cause. Id. at 2. a. Whether Probable Cause Existed to Seize Plaintiff under MHL § 9.41 The existence of probable cause to arrest is a complete defense to a claim of false arrest. See Jaegly v. Couch, 439 F.3d 149, 152 (2d Cir. 2006). Probable cause in the mental health seizure context requires only a probability or substantial chance of dangerous behavior, not an actual showing of such behavior. Burdick v. Johnson, 2009 WL 1707475, at *6 (N.D.N.Y. June 17, 2009) (citing Hoffman v. County of Delaware, 41 F. Supp. 2d 195, 209 (N.D.N.Y. 1999)). The relevant probable cause inquiry converges on whether the facts and circumstances known to the officers at the time they seized Plaintiff were sufficient to warrant a person of reasonable caution to believe that she might be mentally ill and conducting herself in a manner likely to result in serious harm to herself. Id. "Whether a person seized pursuant to the MHL is later found to be mentally competent and released is irrelevant to the probable cause analysis." Id.
Here, Defendants had probable cause to seize Plaintiff pursuant to § 9.41 of the Mental Hygiene Law. After Plaintiff told the NYSEG employee to call the police and instructed him not to leave, the employee returned to his idling vehicle and sat in the driver's seat. Dkt No. 30, Ex. A 42:7-14; 44:15-18. Thereafter, Plaintiff remained close to the vehicle; she estimated she stood near, or alongside, or in front of the NYSEG vehicle for at least 20 minutes. Id. at 49:8-10. Her Complaint alleges that, while waiting for the police, she became chilled so she climbed onto the hood of the vehicle to lean on it for warmth. Id. at 54:3-6; Dkt. No. 39 at ¶12. Her deposition testimony indicates she grabbed the backside of the hood, near the windshield wipers, and pulled herself onto the hood without stepping on the bumper. Dkt. No. 30, Ex. A. 58:1-4. Her feet were dangling off the hood; the only way she could have touched the ground was if she had slid down the vehicle. Id. During this time, the vehicle was running and the NYSEG employee remained in the driver's seat. Id. at 53:5-6; 54:8-9. Plaintiff's Complaint and testimony are corroborated by Officer Harder's police report. In his report, Officer Harder stated that he "[r]esponded to a complaint of a woman standing in front of a NYSEG truck and refusing to let it leave." Upon his arrival, he observed Plaintiff "lying on the hood of the NYSEG truck with the worker inside." Dkt. No. 30, Ex. B. at 1.*fn2
The risks associated with clinging to the hood of a running vehicle while the driver is seated behind the wheel indicate a probability of dangerous behavior and are sufficient to cause a person of reasonable caution to believe Plaintiff was conducting herself in a manner likely to result in serious harm to herself. This is particularly so when coupled with the purported reason that Plaintiff climbed on the hood of the running vehicle and the availability of other means to get warm (e.g. going inside the house where it may have been warmer that outside or to retrieve additional clothing). Accordingly, the officers had probable cause to seize Plaintiff pursuant to MHL § 9.41 and her false arrest claim fails as a matter of law.
b. Whether Probable Cause to Arrest Plaintiff for Disorderly Conduct Existed Assuming, arguendo, there was no probable cause to seize Plaintiff under MHL § 9.41, there was probable cause to arrest her for disorderly conduct under New York Penal Law § 240.20. Probable cause to arrest exists when: 1) the officers have knowledge or reasonably trustworthy information of the facts and circumstances; and 2) this information is sufficient to warrant a person of reasonable caution to believe the person to be arrested has committed or is committing a crime. See Amore v. Novarro, 624 F.3d 522, 536 (2d Cir. 2010). A claim for false arrest turns only on whether probable cause existed to arrest the individual; it is not relevant whether there was probable cause with respect to the actual charge invoked by the arresting officer at the time of the arrest. See Jaegly, 439 F.3d at 156.
Under New York Penal Law 240.20, a person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he: 4) obstructs vehicular or pedestrian traffic or... 7) creates a hazardous or physically offensive condition by any act which serves no legitimate purpose. See N.Y. Penal Law 240.20. At the time Officer Harder arrived, Plaintiff was physically blocking the NYSEG vehicle from leaving the parking space on Lathrop Avenue by laying on the hood of the running NYSEG vehicle. Dkt. No. 30 Ex. A 53, 59-61. As such, Officer Harder's observation at the scene was sufficient to warrant a person of reasonable caution to believe that Plaintiff was obstructing vehicular traffic and creating a hazardous situation by an act that served no legitimate purpose. Therefore, probable cause existed to arrest Plaintiff for disorderly conduct.
At the very least, Defendants acted with arguable probable cause, entitling them to qualified immunity. See Walczyk v. Rio, 496 F.3d 139, 163 (2d Cir. 2007). Arguable probable cause exists if: 1) it was objectively reasonable for the officer to believe probable cause existed, or 2) officers of reasonable competence could disagree on whether the probable cause test was met. See Amore, 624 F.3d at 536. To determine whether an officer had arguable probable cause, courts examine the objective information the officer possessed at the time of the arrest, not his "subjective intent, motives, or beliefs." Id.
Based on the fact that Officer Harder responded to a complaint that Plaintiff would not let the NYSEG worker leave her home and, when he arrived at the scene, Plaintiff was on the hood of the NYSEG vehicle, it was objectively reasonable for the officers to believe probable cause existed to seize Plaintiff pursuant to MHL § 9.41 or arrest her for violating the disorderly conduct statute. Dkt. No. 30, Ex. A 42:7-12; Ex. B at 1. As a result, Defendant officers are entitled to qualified immunity.
For these reasons, Plaintiff's False Arrest claim fails as a matter of law.
2. Free Speech Retaliation Claim
Second, Defendants move to dismiss Plaintiff's free speech retaliation claim. Dkt. No. 30 at 253; Dkt. No. 32 at 30. Plaintiff asserts this claim against all Defendants. Dkt No. 39 at ¶ 102. She argues she engaged in constitutionally protected speech when she: 1) protested to Officer Harder that he was hurting her after he pulled her off the hood of the NYSEG truck and onto her front yard, and 2) asked Officer Harder what his name was. Dkt. No. 30, Ex. A 77-78. She alleges that only after this protest did Officer Harder express any intention to have Plaintiff brought to CPEP. Dkt. No. 46 at 5. As a result, she argues her seizure was motivated by retaliatory animus and made in an effort to prevent her from further exercising her right to protest and report police officer ...