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John Spears v. the City of New York

October 9, 2012

JOHN SPEARS, PLAINTIFF,
v.
THE CITY OF NEW YORK, FAWAD KHAN, FRANK GALATI, MATTHEW SAVAGE, ANDREW ERATO, DANIEL SBARRA, GARY VANZANTEN, TINA EVERETT, JANE DOE AND JOHN DOE 1-10, DEFENDANTS.



The opinion of the court was delivered by: John Gleeson, United States District Judge:

MEMORANDUM AND ORDER

Plaintiff John Spears brings this action against the City of New York (the "City") and several named and unnamed New York Police Department ("NYPD") officers, both individually and in their official capacities. Spears's complaint appears to assert claims under 42 U.S.C. § 1983 for false arrest, malicious prosecution, excessive force, and unreasonable search and seizure.*fn1 For the reasons below, the defendants' joint motion for partial summary judgment is granted. Spears's cross-motion for partial summary judgment is denied.

BACKGROUND

A. Facts

The claims asserted in Spears's complaint stem from arrests occurring on April 26, 2008; October 10, 2009; and June 22, 2010. The following facts are taken from Local Rule 56.1 statements, affidavits, deposition excerpts, and other documentary evidence submitted by the parties. Unless otherwise noted, they are uncontroverted.

1. The April 26, 2008 Arrest

On April 26, 2008, Officer Fawad Khan arrested Spears for criminal possession of a controlled substance in the seventh degree, in violation of New York Penal Law § 220.03. See ECF No. 37, Ex. 12 ("Khan Stmt.").*fn2 On April 27, 2008, in satisfaction of the charge stemming from that arrest, Spears pled guilty to disorderly conduct, in violation of New York Penal Law § 240.20, and was sentenced to a one-year conditional discharge. See ECF No. 34, Ex. C ("Cert. of Disposition"). Apparently this conviction has yet to be invalidated, and Spears consents to dismissal of all claims related to this arrest. See ECF No. 37, at 4 ("Pl.'s Mem.") (acknowledging that all claims stemming from the April 26, 2008 arrest "should be dismissed because plaintiff pled guilty to disorderly conduct, and plaintiff's conviction has not been invalidated" (capitalization omitted)).

2. The October 10, 2009 Arrest

On October 10, 2009, Spears was arrested and charged with resisting arrest, in violation of New York Penal Law § 205.30, and attempted tampering with physical evidence, in violation of New York Penal Law §§ 110 and 215.40(2). Second Am. Compl., ECF No. 24, ¶¶ 29-42 ("SAC"); ECF No. 28, at 1-2 ("Defs.' 4/23/2012 Ltr."). Spears alleges that he lost his front tooth and sustained scrapes and bruises because the arresting officers -- Detectives Frank Galati, Matthew Savage, and Andrew Erato -- used excessive force. SAC ¶¶ 32-34.*fn3 On January 26, 2010, the charges against Spears stemming from this arrest were dismissed on speedy trial grounds. Id. ¶ 42; Defs.' 4/23/2012 Ltr. at 2.

At oral argument, the parties agreed that none of the instant summary judgment motions relate to this arrest. Accordingly, no evidence has been submitted to the court regarding this arrest, and I need not address it further.

3. The June 22, 2010 Arrest

Defendants Sergeant Daniel Sbarra and Detective Frank Galati testified in their depositions that at about 6:00 P.M. on June 22, 2010, they observed Spears place a plastic bag of cocaine into his mouth while "walking down the street in a drug-prone location where there are coke spots on either corner of the location." ECF No. 37, Ex. 3, at 125, 135 ("Sbarra Dep."); accord ECF No. 43, Ex. O at 99 ("Galati Dep."). After seeing him swallow the bag of cocaine, Galati and Sbarra placed Spears under arrest for criminal possession of a controlled substance in the seventh degree, in violation of N.Y. Penal Law § 220.03, and for tampering with physical evidence, in violation of N.Y. Penal Law § 215.40(2).*fn4 At about 6:10 P.M., they transported him to the police precinct in a prisoner van. Sbarra Dep. at 135.

Sbarra described the street encounter in his deposition: Q: What did you observe after you saw [Spears] walking on the sidewalk?

SBARRA: I observed Spears look at us, and when he noticed us, he went into his pocket and put a ziplock of cocaine in his mouth.

Q: How big was the ziplock?

SBARRA: I'd say one-inch by one-inch. . . . .

Q: Do you remember what color the bag was? SBARRA: It was a black ziplock of a white powdery substance.

Q: And was it full?

SBARRA: There was a quantity of cocaine in it. . . . .

Q: When you saw him put it in his mouth, what did you do next?

SBARRA: We got out of the car, we approached him, and we handcuffed him.

Q: Was there ever a time you handcuffed [Spears] to a fence?

SBARRA: Yes.

Q: And why did you do that?

SBARRA: Soon after while we were waiting for the prisoner van, he -- he began sweating profusely. His eyes got wide. He was -- he wasn't following directions. He was jittery. He was walking back and forth. He was told numerous times to stop moving, just stay still. He couldn't stay still, so instead of putting him to the floor and -- and preventing him from moving, we decided to promote free breathing and put an ...


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