United States District Court, S.D. New York
For Gina Robertello Valade, David Valade, Plaintiffs: Gregory Paul Mouton, Jr., LEAD ATTORNEY, The Law Office of Gregory P. Mouton, Jr, New York, NY; Joyce Diane Campbell Priveterre, LEAD ATTORNEY, POWELL CAMPBELL PRIVETERRE, New York, NY; Verena Celestene Powell, Powell Law, P.C., New York, NY.
For The City of New York, The New York Police Department, Police Officer Evrody Seide, Defendants: Maurice L Hudson, Sumit Sud, LEAD ATTORNEYS, New York City Law Department, New York, NY.
OPINION AND ORDER
Ronnie Abrams, United States District Judge.
Gina Valade and David Valade bring this civil rights action alleging claims of false arrest, unlawful strip search, excessive force, sexual assault and malicious prosecution against the City of New York, the New York City Police Department, Police Officer Evrody Seide and ten unidentified police officers. Before the Court is Defendants' motion for summary judgment. For the reasons that follow, summary judgment is granted as to each of Plaintiffs' claims except for Ms. Valade's excessive force and sexual assault claims against Officer Seide.
On the evening of April 10, 2009, Mr. Valade left work with a group of co-workers and walked to a bar called the Crooked Knife. (D. Valade Tr. 76.) There, Mr. Valade had a " selection of bar food," " some water" and " four or five" glasses of hard cider," an alcoholic beverage " similar to a beer." (Id. 78.) Ms. Valade eventually joined Mr. Valade at the Crooked Knife sometime between 7:00 p.m. and 9:00 p.m. (Id. 79; G. Valade Tr. 101.)
Shortly after Ms. Valade's arrival, the Valades and two friends left the Crooked Knife and walked to a nearby restaurant called " L'Artisanal." (D. Valade Tr. 80-81.) Waiting for a table, the group sat at the bar and shared a bottle of champagne and a cheese plate. (Id. 81.) Once seated, the group " ordered another bottle of wine and . . . all shared it as well." (Id. 86.) Mr. Valade also " possibl[y]" had some cognac " at the end of dinner with coffee" ; Ms. Valade thinks she " had a sambuca with dessert." (Id. 106; G. Valade Tr. 101.)
The group left L'Artisanal late, " between 11:00 and probably midnight," and " walked down the street to a place called Desmond's Tavern." (D. Valade Tr. 85.) There, they ordered another round of drinks. (Id. 89.) Mr. Valade drank half of his beer, but did not finish it because he " was very tired by that point and kept falling asleep." (Id. 89.) Mr. Valade testified
that he did not feel intoxicated; Ms. Valade testified that she " had a lot to drink." (Id. 92; G. Valade Tr. 112.)
The Cab Ride
The Valades left Desmond's Tavern, and shortly after 1:00 a.m., at the corner of 29th Street and Park Avenue South, the Valades hailed a cab driven by Ahmed Shaban. (D. Valade 91-92; Sud Decl. Ex. H.) The Valades got in the back seat and Mr. Valade " g[a]ve the cabby the directions to go home, and [he] fell asleep." (D. Valade Tr. 92.) When Mr. Valade woke up, " the cab was stopped at 34th and 3rd, approximately, and [Mr. Shaban] was insisting [the Valades] were at [their] destination and that [they] get out." (Id. 95.) According to an audio statement provided by Mr. Shaban, he told the Valades they " had to leave the car" because they were cursing at him, but that " they refused to leave the car." (Sud Decl. Ex. L.)
Mr. Valade testified that Mr. Shaban became " very excited and . . . abusive" during the ensuing discussion. (D. Valade Tr. 100.) The Valades told him that they " weren't at [their] desired location" and " wanted to be taken home . . . and not left on the side of the street in the middle of the night" and " weren't getting out of the cab until the dispute was resolved." (Id. 97; G. Valade 115.) Mr. Shaban exited the cab, " leaned up against the trunk" and " called 911." (D. Valade Tr. 98; G. Valade Tr. 118; Sud Decl. Ex. L.)
After " quite a long time" in the back of the cab, at least ten minutes, Mr. Valade " got out of the back seat passenger side," " opened the passenger side front seat car door" and sat in the front seat for a few moments because he " felt it might encourage [Mr. Shaban] to get back in the cab." (D. Valade Tr. 98, 101.) Mr. Shaban stated that while Mr. Valade was in the front passenger seat, he " slid to the driver's seat . . . [to] try to take off with the car" and, in doing so " br[oke] the cigarette lighter" on the cab's console. (Sud Decl. Ex. L.) Mr. Valade, by contrast, testified that he did " [n]othing" while he was in the front seat and made no attempt to damage the cab in any way. (D. Valade Tr. 102; G. Valade Tr. 122.) According to Ms. Valade, " as soon as [Mr. Valade] got in the front seat," Mr. Shaban " started cursing at him" at which point Mr. Valade voluntarily exited the front seat and returned to the back seat. (G. Valade Tr. 122.)
Upon returning to the back seat, Mr. Valade called 311 " to file a complaint." (D. Valade Tr. 104-107.) After placing the call, the Valades " sat there and waited" " in shock." (Id. 106-107.)
Officer Seide and her partner, Officer Michael McIntosh, arrived on the scene in response to a radio call reporting a " possible crime in progress . . . involving an intoxicated passenger in a taxi." (Seide Decl. ¶ 5) (emphasis and brackets removed). Upon their arrival, Mr. Shaban informed them that the Valades became disruptive during the course of the cab ride, refused to pay the fare and that Mr. Valade had entered the front of the taxi and damaged the cab's front console. (Id. ¶ ¶ 7, 9-12.) Officer Seide " observed a piece of the broken ashtray from the front consol[e] of the taxi." (Id. ¶ 13.) Mr. Shaban also provided Officer Seide with the receipt for the cab ride, which reflects that the cab traveled 0.04 miles and that the meter started at 1:12 a.m. and stopped at 1:48 a.m., resulting in a charge of $17.40. (Id. ¶ 23; Sud Decl. Ex. H.)
Officers Seide and McIntosh asked the Valades to step out of the back of the cab. Mr. Valade testified that they complied. (D. Valade Tr. 108-09.) Officer Seide, by contrast, contends that they did not comply, despite her multiple requests, until Officer McIntosh ordered them to exit the cab. (Seide Decl. ¶ ¶ 15-16.) Officer McIntosh testified that Mr. Valade " had
difficulty standing up straight" and both officers stated that both Valades appeared " highly intoxicated." (Id. ¶ 19; McIntosh Decl. ¶ ¶ 11-12.) Officer McIntosh " could smell a strong odor of alcohol coming from both their persons, their eyes were red, and their speech was slurred." (McIntosh Decl. ¶ 11.)
The officers separated Mr. and Ms. Valade. (D. Valade Tr. 108.) Mr. Valade and Officer Seide " had a conversation" during which Officer Seide " kept insisting that [he] pay the cab fare, and [he] kept insisting that the cab driver was not taking [them] to where [they] were asking to be taken, and [they] did not wish to be dropped out in the street in the middle of the night." (Id. 108.) Mr. Valade then " proceeded to shove [Officer Seide] and told [her] to 'go fuck [her]self.'" (Seide Decl. ¶ 18; McIntosh Decl. ¶ 14.)
The officers told the Valades " to pay the fare several times and find another taxi to take them home." (Seide Decl. ¶ 17; McIntosh Decl. ¶ 10; G. Valade Tr. 143.) The Valades refused to pay the fare, and Mr. Valade told the officers he believed the fare amount to be incorrect by " pointing to the bar and saying, we just came from right there . . . it does not cost 17.50 to go . . . two blocks in a cab." (D. Valade Tr. 97, 112; G. Valade Tr. 144-45.)
At that point, Officers Seide and McIntosh " determined that there was probable cause to arrest David Valade for Theft of Services (N.Y. Penal Code § 165.15) and Criminal Mischief (N.Y. Penal Code § 145.01) [sic] and to arrest Gina Valade for Theft of Services." (Seide Decl. ¶ 20.) The Valades were handcuffed and placed under arrest. (Id. ¶ 21; D. Valade Tr. 112, 115; G. Valade Tr. 140.)
Although Ms. Valade " was having a difficult time processing what was happening," she recalled that Officer Seide handcuffed her. (G. Valade Tr. 140-41.) Ms. Valade told Officer Seide " [m]ore than once" that " she was hurting [her]" and that " the handcuffs are too tight." (Id. 141, 149.) Officer Seide responded by " insinuat[ing] that [Ms. Valade] was being a sissy or something of that [i]lk." (Id. 141.) Ms. Valade suffered a " scratch on [her] [left] wrist from where [the handcuffs] had kind of dug into [her]." (Id. 167; Mouton Ex. 3.)
Officer Seide next " shoved [Ms. Valade] into the car," a process Ms. Valade described in her deposition as follows:
Q. And where were you then, what happened next?
A. She shoved me into the car.
Q. And can you describe the shove into the cab, please[?]
A. She grabbed my arm very roughly like this. (Indicating.) And started shoving me. . . . And she was grabbing me, and she threw me off balance, and I was having a hard time getting in the car. I was afraid I was going to bump my head. And she said something nasty to me like -- come on already, or, get in there. And I'm like, I'm trying. But -- she was pushing me around, so I couldn't get my balance. And I was handcuffed, and so I was -- having a hard time getting into the back seat of the car.
Q. How many times did she shove you?
A. Well, she was kind of roughing me with the arm. And then -- at least -- at least twice. . . . Once when she pushed me off balance, and once when she was shoving me actually into the car. . . .
Q. And were you injured as a result of those two shoves?
A. I have a large bruise on my back.
Q. Do you believe the bruise was a result of ...