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Pinter v. City of New York

United States District Court, S.D. New York

October 10, 2013

THE CITY OF NEW YORK, et al., Defendants

Order Filed: October 23, 2013

Order Filed: November 25, 2013

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For Plaintiff: James I. Meyerson, Esq., New York, NY; Jeffrey A. Rothman, Esq., New York, NY.

For Defendants: Dara Olds, Senior Counsel, Special Federal Litigation Division, Law Department, New York, NY.


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Shira A. Scheindlin, U.S.D.J.


On October 10, 2008, detectives from the Manhattan South Vice Enforcement Squad of the New York City Police Department

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(" NYPD" ) arrested Robert Pinter for prostitution, following an encounter between Pinter and Undercover Officer (" UC" ) 31107 at the Blue Door Video Store (" Blue Door" ). Following twenty-three hours of post-arrest detention and thirty-six sleepless hours, Pinter pled guilty to a non-criminal violation of disorderly conduct in exchange for a conditional discharge.[1] Several months after his arrest, Pinter filed an unopposed motion to vacate his conviction and dismiss the accusatory instrument.

The District Attorney's Office of New York County (" DANY" ) did not oppose Pinter's motion, explaining:

It is unlikely that [Pinter] went to the location of the occurrence with the intent to solicit money for sex, as supported by his age (52 upon arrest), lack of prior record for prostitution-related offenses, and overall law-abiding history. Furthermore, the People recently dismissed three pending cases with circumstances similar to those of the case at bar because the People concluded that it would be difficult to prove the guilt of defendants in those cases beyond a reasonable doubt at trial.[2]

The state criminal court granted Pinter's motion.

Pinter's arrests and others like it led to protests by activists who charged that the NYPD was targeting gay men and that the arrests were a result of entrapment. On February 11, 2009, Pinter and other activists met with local officials including City Council Speaker Christine Quinn. Later, activists met with Senator Thomas Duane and then-District Attorney Robert Morgenthau. Pinter alleges that these efforts led the NYPD to enact temporary reforms that have since been reversed.[3]

In a Second Amended Complaint filed on October 19, 2010, Pinter brings sixteen federal and state claims against the City of New York, the Mayor, and a number of NYPD officials, supervisors, and officers.[4] Pinter's claims may be categorized as follows: (i) false arrest and unlawful stop in violation of state law and the Fourth and Fourteenth Amendments; [5] (ii) discriminatory treatment based on Pinter's sexual orientation in violation of state law and the First and Fourteenth Amendments; [6] (iii) malicious prosecution in violation of state law and the Fourth Amendment; [7]

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(iv) malicious abuse of process in violation of state law and the Fourteenth Amendment; [8] (v) unreasonable detention and excessive force based on Pinter's prolonged handcuffing in violation of state law and the Fourth and Fourteenth Amendments; [9] and (vi) denial of Pinter's right to associate with the Blue Door in violation of state law and the First and Fourteenth Amendments.[10] Pinter brings all of these claims against the City, but does not specify which claims are brought against which individual defendants.[11]

All of the claims of federal constitutional violations are brought pursuant to Section 1983 of Title 42 of the United States Code (" Section 1983" ), which creates " 'a species of tort liability'" for, among other things, certain violations of constitutional rights.[12] Pinter alleges that the City is liable under Section 1983 for the alleged constitutional violations because they resulted from the City's policies and customs, as required by Monell .[13] Pinter also alleges that the City is vicariously liable for the alleged state law violations under respondeat superior, and directly liable based on the City's negligence.[14]

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Shortly before the filing of the Second Amended Complaint, this Court denied, in part, defendants' motion for summary judgment on the issue of qualified immunity based on the allegations in the First Amended Complaint and Pinter's deposition.[15] This Court held that the officers lacked probable cause to arrest Pinter for prostitution for the same reasons that DANY chose not to oppose Pinter's motion to vacate, and for other reasons explained at length in Pinter I .

On November 18, 2011, the Second Circuit reversed, holding that the individual defendants were entitled to qualified immunity from Pinter's false arrest and malicious prosecution claims. The Second Circuit concluded that " the officers had arguable probable cause to arrest Pinter" for prostitution.[16] Thus, " defendants acted reasonably -- that is, not incompetently or in knowing violation of the law . . . -- in arresting Pinter for a violation of New York Penal Law § 230.00." [17]

The Second Circuit also held that " Pinter's Monell claims are derivative of his claims against the individual defendants, and therefore any claims dismissed as against the individual defendants must also be dismissed as against the City." [18] Accordingly, the Second Circuit ordered that this Court " shall not permit the plaintiff to pursue Monell claims derived from either the false arrest or malicious prosecution claims." [19] As discussed below, the Second Circuit's reasoning in Pinter II appears to conflict with the holding in its more recent published opinion in Askins v. Doe No. 1 .[20]

Defendants now move for summary judgment on Pinter's remaining claims.[21] For the reasons stated below, defendants' motion is granted in part and denied in part.

Pinter has also filed a motion, requesting that the Court " find that, as a matter of fact and law, the Defendant City of New York is the 'real party in interest' in this litigation" and is vicariously liable under respondeat superior for injuries caused by its employees.[22] Although Pinter's argument is not always easy to discern, it appears that Pinter is requesting that this Court disregard Monell and encourage the Second Circuit and the Supreme Court to overturn it.[23] Because Monell remains

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good law and this Court is bound by Second Circuit and Supreme Court precedent, Pinter's motion is denied.


Summary judgment is appropriate " only where, construing all the evidence in the light most favorable to the non-movant and drawing all reasonable inferences in that party's favor, there is 'no genuine issue as to any material fact and . . . the movant is entitled to judgment as a matter of law.'" [24] " A fact is material if it might affect the outcome of the suit under the governing law, and an issue of fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." [25]

" [T]he moving party has the burden of showing that no genuine issue of material fact exists and that the undisputed facts entitle him to judgment as a matter of law." [26] " When the burden of proof at trial would fall on the non-moving party, it ordinarily is sufficient for the movant to point to a lack of evidence to go to the trier of fact on an essential element of the non[-]movant's claim." [27] The burden then " shifts to the non[-]moving party to present specific evidence showing a genuine dispute." [28] This requires " 'more than simply show[ing] that there is some metaphysical doubt as to the material facts,'" [29] and the non-moving party cannot " rely on conclusory allegations or unsubstantiated speculation." [30]

In deciding a motion for summary judgment, " [t]he role of the court is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried." [31] " 'Credibility determinations,

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the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.'" [32]


A. False Arrest and Malicious Prosecution Claims

1. Pinter II and Askins

The Second Circuit held in Pinter II that the individual defendants are entitled to qualified immunity from Pinter's false arrest and malicious prosecution claims because even according to Pinter's allegations, " the officers had arguable probable cause to arrest Pinter" for prostitution.[33] The Second Circuit left open the question, however, of whether the individual defendants had actual probable cause.[34] " Probable cause exists when, based on the totality of circumstances, the officer has 'knowledge of, or reasonably trustworthy information as to, facts and circumstances that are sufficient to warrant a person of reasonable caution in the belief that an offense has been or is being committed by the person to be arrested.'" [35]

Under New York Penal Law § 230.00, " [a] person is guilty of prostitution when such person engages or agrees or offers to engage in sexual conduct with another person in return for a fee." In People v. A.S., a state trial court stated that " acts of agreement showing defendant's intent to consummate an act of prostitution" include " taking a step toward committing the act" such as " accepting the consideration or accompanying the undercover officer to a place where the sexual act might occur." [36] In another case, People v. A.M., a state trial court confronted a set of facts with obvious similarities to the present case.[37] A thirty-five year old gay man with no criminal record, who had apparently never been arrested before, was charged with prostitution after he allegedly agreed to engage in a sex act for a fee with a male undercover police officer.[38] In dismissing the information as facially insufficient, the court noted:

Christopher Street and the Westside Highway, where this incident is alleged to have occurred, has long been known as a place where gay men are able to meet and socialize. The danger exists that an encounter in which an individual is simply making contact with another, perhaps for the purposes of consensual sex, may, due to the ambiguities attendant

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to such encounters, be misconstrued or misunderstood by a police officer to be a prostitution offense.[39]

The court also noted that " [w]ords or acts of the defendant which provide a reliable basis to believe that the defendant actually entered into and accepted the terms of [an agreement to exchange sex for a fee]" include " whether the defendant said something indicating he would exchange sex for remuneration, whether he discussed fees, whether he suggested a location for the act, whether he nodded his head or made some other affirmative gesture, or whether he accepted money." [40]

A reasonable jury could accept Pinter's version of events as described in his deposition, which has already been summarized at length in Pinter I . In brief: On October 10, 2008, Pinter, a 52-year-old white gay male with no prior history of prostitution-related offenses, stopped at the Blue Door. The separate adult section in the store primarily sells gay pornography videos and sex toys. There are other areas of the store in which gay men sometimes engage in sexual activity, alone or with each other.[41]

While Pinter was browsing the adult videos, a thirty year old Asian male undercover officer, UC 31107,[42] made eye contact with him and they smiled at each other. UC 31107 approached Pinter and began flirting with him and complimenting his looks. UC 31107 asked, " [W]hat do you like to do?" Because they were standing in the adult video section of a store apparently known as a destination for gay sex, Pinter reasonably interpreted UC 31107 to be asking not about Pinter's favorite hobbies, but about the kinds of sexual activities that Pinter enjoyed. Pinter said that he enjoyed -- and was good at -- oral sex. UC 31107 replied that he enjoyed oral sex as well, but was nervous about engaging in any such activity in the video store.

UC 31107 then informed Pinter that his car was parked nearby -- with the implication that the car might be a suitable location for the two to engage in oral sex. Pinter led the way to the exit, with UC 31107 following right behind. At this point there had been no ...

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