United States District Court, S.D. New York
October 10, 2013
ROBERT PINTER, Plaintiff,
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.
OPINION AND ORDER
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
(" 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. 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.
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.
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. 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;  (ii) discriminatory treatment based on Pinter's sexual orientation in violation of state law and the First and Fourteenth Amendments;  (iii) malicious prosecution in violation of state law and the Fourth Amendment; 
(iv) malicious abuse of process in violation of state law and the Fourteenth Amendment;  (v) unreasonable detention and excessive force based on Pinter's prolonged handcuffing in violation of state law and the Fourth and Fourteenth Amendments;  and (vi) denial of Pinter's right to associate with the Blue Door in violation of state law and the First and Fourteenth Amendments. Pinter brings all of these claims against the City, but does not specify which claims are brought against which individual defendants.
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. 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 . 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.
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. 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. 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." 
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."  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."  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 .
Defendants now move for summary judgment on Pinter's remaining claims. 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. 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. Because Monell remains
good law and this Court is bound by Second Circuit and Supreme Court precedent, Pinter's motion is denied.
II. LEGAL STANDARD ON A MOTION FOR SUMMARY JUDGMENT
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.'"  " 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." 
" [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."  " 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."  The burden then " shifts to the non[-]moving party to present specific evidence showing a genuine dispute."  This requires " 'more than simply show[ing] that there is some metaphysical doubt as to the material facts,'"  and the non-moving party cannot " rely on conclusory allegations or unsubstantiated speculation." 
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."  " 'Credibility determinations,
the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.'" 
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. The Second Circuit left open the question, however, of whether the individual defendants had actual probable cause. " 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.'" 
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."  In another case, People v. A.M., a state trial court confronted a set of facts with obvious similarities to the present case. 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. 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
to such encounters, be misconstrued or misunderstood by a police officer to be a prostitution offense.
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." 
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.
While Pinter was browsing the adult videos, a thirty year old Asian male undercover officer, UC 31107, 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 mention whatsoever of an exchange of money for sex (i.e. prostitution).
At the door but before leaving the store, UC 31107 said to Pinter: " I want to pay you $50 to suck your dick." Caught off guard by the unprompted offer of money, Pinter said nothing. As the strangeness of the situation sunk in, Pinter decided that
there was no possibility of " engaging in anything" with UC 31107. Because Pinter's apartment was in the same direction as UC 31107's car, however, Pinter and UC 31107 continued to walk in the same direction. The two engaged in playful sexual banter. UC 31107 never tried to confirm that Pinter had agreed to accept the money, which UC 31107 could have easily done. After about a hundred feet, Pinter was arrested for prostitution.
Drawing all reasonable inferences in favor of Pinter, a jury could find that Pinter's arrest was not based on probable cause. This is not to question the Second Circuit's conclusion that " UC 31107 could have reasonably believed that Pinter had agreed to be compensated in exchange for allowing UC 31107 to act on his desire to perform oral sex on Pinter."  Rather, the facts of this case, viewed in the light most favorable to Pinter, illustrate the distinction between arguable probable cause and actual probable cause.
On the one hand, applying the standard for qualified immunity as settled by the Second Circuit's Summary Order, it would be inaccurate to say that UC 31107 was " 'plainly incompetent'" or must have " 'knowingly violate[d] the law'" in concluding that Pinter had agreed to engage in prostitution. Because UC 31107 had arguable probable cause for an arrest, he is entitled to qualified immunity. " [O]fficers require this protection to shield them from undue interference with their duties and from potentially disabling threats of liability." 
On the other hand, declaring Pinter's arrest -- according to his version of events -- to be based on actual probable cause would dilute the Fourth Amendment's protection of individual liberty from unreasonable government intrusion. An officer does not have probable cause to believe a person is a prostitute simply because the person remained silent after being inexplicably offered a fee for what he expected to be consensual, gratuitous sex. To allow the police to arrest such a person for prostitution -- moments later, and without so much as an attempt at confirmation -- would invite abuses.
There are countless reasons why someone who is not a prostitute might fail to immediately, vocally reject an inexplicable offer of gratuitous money for a consensual sexual act. Pinter's account of his arrest illustrates some of the most obvious reasons: wariness and confusion. Given the oddity of UC 31107's unprompted request, someone in Pinter's situation might well fail to perceive the offer of money as a form of solicitation for prostitution, and might instead simply wonder what UC 31107 was thinking: does he have a practice of offering money for consensual sex? Does it give him some thrill? Indeed, if the NYPD began sending attractive young female officers into heterosexual dance
clubs where they flirted with older men, asked them what they liked to do sexually, invited them to go nearby to have a sexual encounter -- and on the way out, asked whether they would accept $50 to have oral sex performed on them -- no doubt a good number of straight men would be too bewildered by this surreal turn of events to recognize that, legally speaking, they were being asked to prostitute themselves. Pinter has provided sufficient evidence for a reasonable jury to find that the NYPD's undercover officers -- who offered fees for sex -- succeeded in obtaining agreement, or at least silence, not only from Pinter but from a number of gay men who are not prostitutes.
When a method of identifying prostitutes predictably results in the frequent arrest of non-prostitutes, and this repeated violation of liberty could be avoided through a minimal application of caution, such as by asking a simple follow-up question, then the reasonableness of the method under the Fourth Amendment is doubtful. At the very least, the method should not be immunized from judicial scrutiny by holding that the resulting arrests are as a rule based on probable cause.
Because a reasonable jury could find that UC 31107 lacked probable cause for Pinter's arrest, Pinter could establish at trial that he was subject to a violation of his constitutional right to be free from unreasonable seizure under the Fourth Amendment. This conclusion leads to a dilemma. The Second Circuit held in its Summary Order 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."  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." 
In a subsequent, published opinion, Askins v. Doe No. 1, however, the Second Circuit held that " the entitlement of . . . individual municipal actors to qualified immunity because at the time of their actions there was no clear law or precedent warning them that their conduct would violate
federal law is . . . irrelevant to the liability of the municipality."  " Municipalities are held liable if they adopt customs or policies that violate federal law and result in tortious violation of a plaintiff's rights, regardless of whether it was clear at the time of the adoption of the policy or at the time of the tortious conduct that such conduct would violate the plaintiff's rights."  " To rule, as the district court did, that the City of New York escapes liability for the tortious conduct of its police officers because the individual officers are entitled to qualified immunity would effectively extend the defense of qualified immunity to municipalities, contravening the Supreme Court's holding in Owen ." 
Askins conflicts with Pinter II . The latter holds that where a plaintiff has suffered a constitutional tort at the hands of an officer who is entitled to qualified immunity, the City is immune from a Monell claim based on the tort; the former holds the opposite. Indeed, the Second Circuit's criticisms of the district court's holding in Askins appear to apply with equal force to Pinter II :
In dismissing Askins's claim against the City, the district court relied on the proposition " that the City cannot be liable under Monell where Plaintiff cannot establish a violation of his constitutional rights." The court explained: " All of the alleged constitutional violations in this case are either time-barred or barred by the doctrine of qualified immunity. Therefore, it cannot be said that any allegedly illegal City policy caused Plaintiff a constitutional remediable injury, and no Monell claim lies against the City." This conclusion reflects a misunderstanding of the relationship between the liability of individual actors and municipal liability for purposes of Monell . The court was entirely correct in stating that the City " cannot be liable under Monell where Plaintiff cannot establish a violation of his constitutional rights." . . . .
It does not follow, however, that the plaintiff must obtain a judgment against the individual tortfeasors in order to establish the liability of the municipality. It suffices to plead and prove against the municipality that municipal actors committed the tort against the plaintiff and that the tort resulted from a policy or custom of the municipality. In fact, the plaintiff need not sue the individual tortfeasors at all, but may proceed solely against the municipality.
Defendants attempt to reconcile the holdings of Askins and Pinter II by arguing that Pinter II held not only that the arresting officers had arguable probable cause, but that they had actual probable cause, and thus that Pinter suffered no constitutional injury. Defendants' interpretation
is not plausible. If the Second Circuit had intended to make a holding that the arresting officers had probable cause -- a holding with significant implications for the Fourth Amendment -- it would have done so explicitly, rather than through a debatable inference. In addition, the Second Circuit would have analyzed probable cause, not arguable probable cause, and would not have used the redundant qualifier " arguable" when characterizing its holding.
Because of the conflict between Pinter II and Askins, this Court cannot proceed without violating one of the two Second Circuit authorities. Either this Court must disregard the law of the case as articulated in the Pinter II, as well as the explicit directions with which Pinter II concludes, or this Court must disregard Askins . While this Court is extremely wary of failing to comply with an explicit directive of the Second Circuit, it is equally wary of failing to adhere to a subsequent and more authoritative statement of Second Circuit law. Askins is a published opinion that extensively analyzed this issue, while the unpublished decision in Pinter II has no precedential effect beyond this immediate case. Because Askins provides a thorough, binding, directly on-point analysis that conflicts with the unpublished decision in Pinter II, I follow Askins and conclude that the Second Circuit's grant of qualified immunity to the individual defendants does not bar Pinter from bringing Monell claims against the City that derive from his arrest having lacked probable cause. In particular, the Second Circuit's qualified immunity finding does not by itself bar Pinter's false arrest and malicious prosecution claims against the City.
2. Monell Liability Based on False Arrest
" [D]eliberate indifference may be inferred where 'the need for more or better supervision to protect against constitutional violations was obvious,' but the policymaker 'fail[ed] to make meaningful efforts to address the risk of harm to plaintiffs[.]'"  A reasonable jury could find based on the record evidence that the City had a custom of carrying out arrests like Pinter's, and that the City was deliberately indifferent to the obvious risk of arresting gay men for prostitution without probable cause. As noted above, DANY agreed to the dismissal of Pinter's case in part because " 'the People recently dismissed three pending cases with circumstances similar to those of the case at
bar.'"  Pinter offers evidence that could support a finding that the NYPD engaged in a pattern of arresting gay men without probable cause for prostitution at video stores, and especially at the Blue Door.
Pinter also cites numerous excerpts from depositions and other evidence tending to show that the NYPD failed to train undercover officers to avoid arresting gay men for prostitution without probable cause based on a misunderstanding of the circumstances. For example, the Chief of the NYPD's Organized Crime Control Bureau told the NYPD's Internal Affairs Bureau (" IAB" ) that he was unaware of prostitution arrests being made at video stores targeted for nuisance abatement, but that once he learned of these arrests, he " didn't think the arrests were proper," although he believed they were legal. He stated that " if he would have known about the arrests and the policy he would never have allowed it to happen." 
Similarly, a sergeant formerly assigned to Manhattan South Vice told investigators at IAB that practices he believed to be proper when he was assigned there, he now believed " could possibly be construed as entrapment."  He stated that " it was not standard operating procedure for undercovers to ask for sex for money,"  and that " he could have benefitted from additional training . . ., but the topic of additional training was never addressed."  Indeed, the sergeant's " knowledge of vice enforcement was gained through hands on experience and not Department training."  He never instructed his officers regarding " the verbal threshold they could not cross during an operation that would constitute entrapment," and " to his knowledge, no member of MS Vice ever conferred with the Legal Bureau." 
Likewise, a representative of the NYPD Legal Bureau told IAB that " [t]here are no Department standards regarding entrapment. The Department prefers to avoid entrapment but it is not a set policy."  Although entrapment itself does not give rise to civil liability, a reasonable jury could find that there is an obvious risk that officers who are not trained to
avoid entrapment in the context of prostitution arrests like Pinter's will also carry out arrests without probable cause, as a reasonable jury could find UC 31107 did at least in Pinter's case, and perhaps also in cases of other men at the Blue Door. A reasonable jury could find that the NYPD failed to make meaningful efforts to address these obvious risks.
3. Monell Liability Based on Malicious Prosecution
" Section 1983 liability may . . . be anchored in a claim for malicious prosecution, as this tort 'typically implicates constitutional rights secured by the fourteenth amendment, such as deprivation of liberty.'" 
Though section 1983 provides the federal claim, we borrow the elements of the underlying malicious prosecution tort from state law. In New York, a plaintiff alleging malicious prosecution must show: (1) the defendant commenced a criminal proceeding against him; (2) the proceeding ended in the plaintiff's favor; (3) the defendant did not have probable cause to believe the plaintiff was guilty of the crime charged; and (4) the defendant acted with actual malice.
" Under New York law, malice does not have to be actual spite or hatred, but means only 'that the defendant must have commenced the criminal proceeding due to a wrong or improper motive, something other than a desire to see the ends of justice served.'"  Nevertheless, no reasonable jury could find based on the record evidence that UC 31107 or the other officers who participated in Pinter's arrest did so with actual malice. Rather than offering direct evidence of an improper motive, Pinter argues that malice may be inferred from the absence of probable cause. He cites Lowth, which states that " the lack of probable cause -- while not dispositive -- tends to show that the accuser did not believe in the guilt of the accused, and malice may be inferred from the lack of probable cause."  In this case, however, the inferential leap from a lack of probable cause to a lack of belief in the guilt of the accused, much less to malice, would be improper. There is no evidence that UC 31107 or the other officers did not believe Pinter was guilty of prostitution. The Second Circuit's holding that UC 31107 had at the very least arguable probable cause and behaved objectively reasonably further undermines the inference that a lack of probable cause can support a finding of malice.
Pinter's malicious prosecution claim against the City, on the other hand, raises genuine issues of material fact. A reasonable jury could find that the City was deliberately indifferent to the obvious risk of false arrests like Pinter's, as discussed above. A reasonable jury could also find that the City abused the criminal process for illegitimate ends by carrying out prostitution arrests not in order to obtain convictions but in order to improve its position in nuisance abatement negotiations, as discussed below. This scenario provides sufficient support for the conclusion that Pinter's arrest resulted from a municipal custom of commencing criminal proceedings such as his not with a desire
to see the ends of justice served, but based on the improper motive of seeking leverage in nuisance abatement negotiations. This conclusion would be sufficient to establish " actual malice" in the limited sense required for a malicious prosecution claim.
B. Excessive Force
The Second Amended Complaint alleges that Pinter's handcuffing constituted excessive force, and his detention in the police van was unreasonably long, both in violation of New York law and the Fourth and Fourteenth Amendments. The crux of Pinter's claim, and the focus of the parties' submissions, is that his detention in numbingly tight rear handcuffs for three to four hours in a moving police van was unreasonable and thus violated his rights under the Fourth Amendment, and that Pinter's prolonged handcuffing was pursuant to a custom or policy of the City.
The Second Circuit
analyzes claims of excessive force arising in the context of an arrest under the Fourth Amendment's objective reasonableness test, paying " careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." 
" Frequently, a reasonable arrest involves handcuffing the suspect, and to be effective handcuffs must be tight enough to prevent the arrestee's hands from slipping out."  In addition, " '[t]here is a consensus among courts in this circuit that tight handcuffing does not constitute excessive force unless it causes some injury beyond temporary discomfort.'" 
Nevertheless, " liability may exist where an officer 'gratuitously inflict[s] pain in a manner that [is] not a reasonable
response to the circumstances.'"  The Second Circuit has specifically held that a reasonable jury could find the following conduct objectively unreasonable under the Fourth Amendment: pushing an arrestee to the floor and causing him to remain there in a painful posture with " unduly tight" handcuffs " for five or six hours." 
A reasonable jury could find that Pinter experienced pain in his wrists and numbness in his hands for roughly four hours as a result of the tightness of his handcuffs, and that the handcuffing resulted in injuries that exceeded temporary discomfort. Pinter later obtained medical treatment for continuing pain in his shoulders, arms, wrists, hands, and thumbs caused by the handcuffing.
Drawing all reasonable inferences in favor of Pinter, a jury could find that the officers behaved unreasonably under the Fourth Amendment in refusing to adjust Pinter's handcuffs after Pinter stated that the handcuffs were becoming progressively tighter and that his hands were becoming cold and numb, and requested that the handcuffs be loosened. Initially, Pinter was the only arrestee in the van, there was no evidence that he posed any threat or was uncooperative, and the officers knew or should have known that it might be hours before the handcuffs would be removed. In addition, Pinter asked the officers to loosen the cuffs, but they refused. A reasonable jury could find that the officers' needless refusal to adjust Pinter's handcuffs over a prolonged period amounted to the gratuitous infliction of pain.
The officers in the van are not entitled to qualified immunity. There is a clearly
established constitutional right under the Fourth Amendment to be free from the use of force " if it is excessive under objective standards of reasonableness."  A reasonable jury could find that the officers acted not only unreasonably, but were " 'plainly incompetent'" or " 'knowingly violate[d] the law'"  by gratuitously inflicting pain on Pinter over such an extended period of time when there is not a shred of evidence that Pinter posed an immediate threat to their safety, resisted arrest, or attempted to flee.
Finally, the City is not entitled to summary judgment on Pinter's excessive force claim. A reasonable jury could find that the officers in the van acted in accordance with an unconstitutional policy or custom of the City to leave arrestees in unduly tight handcuffs for hours at a time in police vans while other prisoners were collected, without training NYPD officers concerning the proper use of " double locked" handcuffs or how to respond to complaints regarding pain caused by handcuffs. For example, Manhattan South Vice Commanding Officer Steven Braille testified that Pinter was treated according to " standard operating procedure,"  that the NYPD has no policies or training concerning how to mitigate the effects of an extended handcuffing, and that the NYPD has no policy other than " common sense" regarding when to loosen cuffs in response to a complaint that they are too tight.
C. Unlawful Stop
The Supreme Court has held that under the Fourth Amendment, it is constitutionally reasonable for the police to " stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity 'may be afoot,' even if the officer lacks probable cause."  This form of investigative detention is now known as a Terry stop. The test for determining whether a Terry stop is taking place " is whether a reasonable person would feel free to decline the officers' requests or otherwise terminate the encounter." 
A Terry stop requiring reasonable suspicion may become an arrest requiring probable cause " if the means of detention are 'more intrusive than necessary.'" 
In determining whether an investigatory stop is sufficiently intrusive to ripen into a de facto arrest, the Second Circuit considers the " amount of force used by the police, the need for such force, and the extent to which an individual's freedom of movement was restrained, and in particular such factors as the number of agents involved, whether the target of the stop was suspected of being armed, the duration of the stop, and the physical treatment of the suspect, including whether or not handcuffs were used." 
" A critical factor in evaluating the intrusiveness of a stop is the length of the detention."  A lengthy detention, however, is not a necessary condition of an arrest. An investigatory stop may ripen into a de facto arrest if it " continues too long or becomes unreasonably intrusive."  Accordingly, although a Terry stop may ripen into an arrest, not every arrest arises from a Terry stop.
Pinter argues that prior to his arrest, UC 31107 stopped him " without reasonable suspicion that the Plaintiff was engaged in any unlawful conduct."  In order to evaluate this argument, it is necessary to determine when Pinter was stopped, if at all, prior to his arrest. According to Pinter's version of events, he consented to leave the Blue Door with UC 31107, not knowing that UC 31107 was an undercover officer. UC 31107 offered to pay him $50 to perform oral sex on him. Confused and suspicious, Pinter silently decided that nothing would happen between him and UC 31107, but Pinter continued to walk and talk with UC 31107 because UC 31107's car was in the same direction as Pinter's apartment. Pinter has explicitly conceded that as they walked, he felt free to walk away from UC 31107. After they had walked for about a minute, two plainclothes officers rushed toward Pinter, pushed him into a fence and searched his pockets. When Pinter saw that one of the men had a badge, he " assumed they were putting me under arrest."  Then the officers placed Pinter in handcuffs and escorted him to their van.
No reasonable jury could find that an investigative stop took place in the moments before Pinter was handcuffed and escorted to the police van. When the two officers rushed toward Pinter, pushed him against a fence, and searched his pockets -- without any self-protective justification for this use of force, and without any indication that the encounter was investigatory -- the intrusiveness of their actions went beyond what was necessary for
an investigatory stop. Because Pinter's detention, viewed as a Terry stop, would have been unreasonably intrusive from the start, it was not a Terry stop at all. It was a sudden arrest -- as Pinter reasonably perceived from the moment he saw that one of the men seizing him had a badge.
Moreover, even if the opening moments of Pinter's arrest could be categorized -- for the sake of argument -- as a Terry stop, the Second Circuit's ruling that UC 31107 had arguable probable cause to arrest Pinter for prostitution forecloses the possibility that the arresting officers might have lacked reasonable suspicion for a stop. Neither the Supreme Court nor the Second Circuit has attempted to quantify the precise probability of criminal conduct that is necessary to justify a Terry stop, but it is clear that " arguable probable cause" is at least as strong as " reasonable suspicion" with respect to probable criminality. An officer who has arguable probable cause for an arrest also, by definition, has a sufficient evidentiary basis to justify a Terry stop.
In sum, drawing all reasonable inferences in Pinter's favor, Pinter was free to leave until the moment he was arrested, and at the moment he was arrested, the arresting officers had sufficient evidence to justify an investigative stop. Defendants are entitled to summary judgment on Pinter's claimed Fourth Amendment violation based on a pre-arrest stop.
D. Right to Expressive Association
" The United States Constitution affords protection to two distinct types of association, 'intimate association' and 'expressive association.'"  The right to intimate association, which is implied by the Bill of Rights' protection of the " fundamental element[s] of personal liberty," entails that the choice to enter into and maintain certain intimate, identity-defining human relationships -- such as marriage, parenthood, and cohabitation with family -- " must be secured against undue intrusion by the State."  The right to expressive association arises under the First Amendment, because " 'implicit in the right to engage in activities protected by the First Amendment' is 'a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends.'"  " The First Amendment's protection of expressive association is not reserved for advocacy groups. But to come within its ambit, a group must engage in some form of expression, whether it be public or private."  The Second Circuit has made clear that " [t]he Constitution does not recognize a generalized right of social association. The right [of association] generally will not apply, for example, to business relationships, chance encounters in dance halls, or paid rendezvous with escorts." 
The Second Amended Complaint alleges the violation of Pinter's " right 'to associate' with the business entities where he desires to do business" under the First and Fourteenth Amendments and " the laws and
Constitution of the State of New York."  In light of the arguments in Pinter's opposition to summary judgment, however, Pinter's right of association claim is more simply stated as a Section 1983 claim against all defendants, including the City under Monell, based on a violation of Pinter's First Amendment right to expressive association with the Blue Door.
The relationship between the Blue Door and its customers falls outside the ambit of the First Amendment's protection of expressive association. While the videos available at the Blue Door contain expression that is entitled to First Amendment protection, the sale or renting of expressive materials does not by itself create an expressive association between the participants in the transaction. Moreover, Pinter makes clear that his claim " does not revolve around his right to associate, socially, with any individual or individuals at the Blue Door," but rather " is about [his] right to shop at a retail establishment of his choice."  Because Pinter's claim arises entirely from alleged interference in a non-expressive commercial relationship, his claim does not assert a violation of the right to expressive association under the First Amendment and cannot withstand summary judgment.
E. Discriminatory Treatment Based on Sexual Orientation
The Equal Protection Clause of the Fourteenth Amendment declares that " [n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws."  The Clause " is essentially a direction that all persons similarly situated should be treated alike."  It prohibits intentional discrimination on the basis of protected classifications such as race and sexual orientation, but not government action that merely has a disproportionate impact on those classes.
To prevail on a claim of selective enforcement, plaintiffs in this Circuit traditionally have been required to show both (1) that they were treated differently from other similarly situated individuals, and (2) that such differential treatment was based on " impermissible considerations such as race, religion, intent to
inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person." 
Pinter argues that he was targeted by the police because of his sexual orientation: " UC 31107 target[ed] the Plaintiff and went up to the Plaintiff simply because he perceived the Plaintiff to be a gay man and because the Blue Door was believed to be a location where gay men engaged in prostitution."  Pinter does not identify similarly situated individuals who were treated differently than him.
As an initial matter, I note that once UC 31107 was assigned the role of someone seeking a gay male prostitute, the Equal Protection Clause did not require him to approach straight and gay men in equal proportion. If intentional discrimination based on sexual orientation took place in this case, it took place in the NYPD's choice to assign undercover officers to solicit gay male prostitutes in the Blue Door and other Manhattan video stores in the first place. But Pinter has provided no evidence that the NYPD treated the problem of gay prostitution at video stores differently than the problem of straight prostitution at similar locations or businesses. Pinter has provided no comparative evidence to support the conclusion that the NYPD's enforcement activity at the Blue Door and other video stores constituted intentional discrimination against gays.
Pinter states that " [e]very individual arrested at video stores in the Manhattan South geographic area for the crime of prostitution . . . [was] male."  But the supporting evidence for this assertion only shows that the prostitution arrests at a number of Manhattan video stores were of males, not that the males were gay, nor that there were no arrests of female prostitutes at other Manhattan video stores. Indeed, at least one of the documents listing prostitution arrests at video stores describes complaints regarding prostitution by underage females. Even assuming
that the NYPD was systematically targeting gay prostitution at certain Manhattan video stores, no reasonable jury could infer from this that the NYPD was not also systematically targeting straight prostitution elsewhere. Evidence that the NYPD dedicated some of its resources to combating a criminal activity that bears an inevitable relation to sexual orientation -- such as prostitution in a locale frequented by gay men -- is insufficient in the absence of comparative evidence to support the conclusion that the NYPD intentionally discriminated based on sexual orientation.
F. Malicious Abuse of Criminal Process
" In New York, a malicious abuse of process claim lies against a defendant who (1) employs regularly issued legal process to compel performance or forbearance of some act (2) with intent to do harm without excuse or justification, and (3) in order to obtain a collateral objective that is outside the legitimate ends of the process."  The malicious abuse of criminal process may give rise to a Section 1983 claim, because the resulting deprivation of liberty is " 'by definition a denial of procedural due process.'" 
The Second Circuit has held that " to state a claim for abuse of criminal process, it is not sufficient for a plaintiff to allege that the defendants were seeking to retaliate against him by pursuing his arrest and prosecution. Instead, he must claim that they aimed to achieve a collateral purpose beyond or in addition to his criminal prosecution."  In other words, the proper use of legal process based on an improper or malicious motive such as a desire for retaliation is insufficient to satisfy the " collateral objective" requirement. There must be an abuse of process, that is, a use of process that has as its direct object the achievement of an improper and ulterior " purpose or objective ."  Finally,
while the law is not entirely settled on this point, the weight of authority holds that the presence of probable cause negates a claim for abuse of criminal process.
As stated above, a reasonable jury could find that Pinter was arrested without probable cause. Drawing all reasonable inferences in favor of Pinter, there is also sufficient evidence in the record for a jury to find that the City had a custom of arresting gay men for prostitution without probable cause in order to obtain the collateral objective of commencing nuisance abatement proceedings against video stores frequented largely, although not entirely, by members of the gay, lesbian, bisexual, and transgender communities. The use of prostitution arrests for leverage in negotiations over nuisance abatements, without any apparent interest in conviction, is not a proper purpose for carrying out a program of prostitution arrests. In addition, to the extent that the City maintained a custom of carrying out false arrests, a reasonable jury could infer that the City intended to harm those who were arrested. The City also knew or should have known that false arrestees like Pinter would be harmed. Finally, the goal of nuisance abatement does not provide an " excuse" or " justification" in the relevant sense.
In light of the above, a reasonable jury could conclude that the custom of prostitution arrests that resulted in Pinter's arrest constituted an abuse of criminal process. Pinter has a triable abuse of process claim under Section 1983 against the City. However, the Second Circuit's conclusion that the individual defendants had arguable probable cause forecloses Pinter's abuse of process claims against them.
Pinter also brought an abuse of process claim under state law. Defendants argue that Pinter's state law claim for abuse of process is barred because he failed to file a timely notice of claim. Under New York law, a plaintiff in a tort action against a municipality must file a notice of claim " within ninety days after the claim arises."  Pinter filed his notice of claim on August 22, 2009. Defendants assert that a claim for abuse of process arises " at the time that the process is issued, or at the latest, by the time plaintiff is aware of the abuse."  Thus, defendants argue that the claim arose either on October 10, 2008, the date of Pinter's arrest, or at the very latest, on February 11, 2009, when Pinter " met with members of the NYPD in New York City Council Speaker Christine Quinn's office."  Plaintiff responds that the claim did not accrue " until the relevant Criminal Court proceedings conclude[d]" with the dismissal of the complaint on June 22, 2009, rendering his notice of claim timely.
Under New York law, favorable termination is not an element of the abuse of process claim and " accrual of a cause of action for abuse of process need not await the termination of an action in claimant's favor."  " [A] claim for abuse of process accrues at such time as the criminal process is set in motion," unless the plaintiff is unaware, though no fault of his own, of facts supporting the claim, in which case the cause of action accrues upon discovery. Because Pinter was aware of the underlying facts supporting an abuse of process claim at least as of February 2009, his state law claim for
abuse of process is barred for failure to file a timely notice of claim.
G. Shari Hyman
" Those [prosecutorial] acts that are 'intimately associated with the judicial phase of the criminal process' [are] shielded by absolute immunity, but not 'those aspects of the prosecutor's responsibility that cast him in the role of an administrator or investigative officer rather than that of advocate.'"  In Pinter I, I provisionally granted defendants' motion for summary judgment as to plaintiffs' claims against Shari Hyman, the Director of the Office of Special Enforcement, which prosecuted the nuisance abatement proceedings against the Blue Door. I noted, however:
Hyman may have . . . been functioning in an investigatory role when she promulgated and implemented the alleged policy, akin to when a prosecutor provides advice to the police during the investigative phase of a criminal case. If Pinter discovers that Hyman acted in an investigatory capacity -- and such an act was not " integral" to her advocacy functions -- then he may amend his Complaint accordingly. Should that occur, it will be necessary for me to revisit the question of whether Hyman is entitled to absolute immunity.
Pinter now seeks leave to amend his Complaint to add Hyman as an individual defendant. Defendants object that Pinter should be required to file a separate motion with this request.
No separate motion practice is necessary, however, because Pinter has failed to discover evidence sufficient to justify revisiting this Court's prior finding of absolute immunity. The investigatory acts that Hyman allegedly carried out -- a web search for Blue Door and a request for evidence from the NYPD as part of her initiation of the nuisance abatement action -- were part of " 'the organization, evaluation, and marshalling of . . . evidence'" that is integral to her advocacy functions. Pinter's claims against Hyman are dismissed with prejudice.
H. Supervisory Liability and Other Individual Defendants
" Because vicarious liability is inapplicable to . . . [Section] 1983 suits, a plaintiff must [prove] that each Government-official defendant, through the official's own individual actions, has violated the Constitution."  Pinter's opposition to summary judgment offers a conclusory paragraph stating that named defendants Sergeant Michael Madison, Deputy Chief
Brian Conroy, Chief Anthony Izzo, Chief Joseph Esposito, and Police Commissioner Raymond Kelly bear supervisory liability -- without explaining how any of these individuals violated Pinter's rights through their own actions. As defendants accurately note in their reply brief, Pinter's conclusory paragraph does not show " any constitutional violation on the part of the [individual supervisory] Defendants," including Mayor Bloomberg. Nor does Pinter's Rule 56.1 Counter-Statement contain evidence that could support the liability of any of the supervisory defendants.
For the foregoing reasons, Pinter's motion to disregard Monell is denied. Defendants' motion for summary judgment is granted in part and denied in part. Pinter may proceed on his false arrest, malicious prosecution, excessive force, and abuse of process claims against the City under Monell . Pinter may proceed on his excessive force claim against the individual NYPD personnel in the van. Pinter's state law abuse of process claim is dismissed. Hyman is dismissed from the litigation based on absolute immunity. All remaining individual defendants are also dismissed.
The Clerk of the Court is directed to close the parties' motions [Dkt. Nos. 67, 83]. A conference is scheduled for October 31, 2013 at 4:30 p.m.
MEMORANDUM OPINION AND ORDER
Shira A. Scheindlin, U.S.D.J.
This Court issued an Opinion and Order on October 10, 2013 (" the October 10 Order" ) granting in part and denying in part defendants' motion for summary judgment. The Court ruled that plaintiff " may proceed on his false arrest, malicious prosecution, excessive force, and abuse of process claims against the City under Monell [and] on his excessive force claim against the individual NYPD personnel in the van."  The Court dismissed plaintiff's state law abuse of process claim as well as all other claims against the individual defendants.
Plaintiff now moves the Court to reconsider and amend its Order on two grounds. First, the Court should allow his claim for false arrest and an unlawful stop to proceed based on the theory that an undercover officer's allegedly false statements about the factual predicate for plaintiff's arrest violated plaintiff' right to due process under the Fourteenth Amendment. Second, the Court should amend its Order to clarify that a reasonable jury may infer actual malice, an element of the malicious prosecution claim, from those allegedly false statements. Plaintiff also indicates that he will no longer proceed on his excessive force claim against any of the
individual NYPD defendants. For the following reasons, plaintiff's motion is denied, except to note that plaintiff has voluntarily dismissed all remaining claims against any individual defendant.
The standard for granting a motion for reconsideration pursuant to Local Rule 6.3 is strict. " Reconsideration will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked -- matters, in other words, that might reasonably be expected to alter the conclusion reached by the court."  " Reconsideration of a court's previous order is an 'extraordinary remedy to be employed sparingly in the interests of finality and conservation of scarce judicial resources. '"  The standard for granting reconsideration must be strict in order to " to prevent the practice of a losing party examining a decision and then plugging the gaps of a lost motion with additional matters."  Typical grounds for reconsideration include " an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice." 
Plaintiff has presented no evidence or argument justifying reconsideration or amendment of the October 10 Order, The Court properly analyzed the false arrest and unlawful stop claims under the Fourth Amendment and ruled that plaintiff may proceed on the false arrest claim but not the unlawful stop claim. There is no cause of action for false arrest or an unlawful stop under the Due Process Clause of the Fourteenth Amendment. The Court also held that plaintiff may proceed on his malicious prosecution claim. Plaintiff may present factual theories regarding the " actual malice" element of that claim at trial.
For the above reasons, plaintiff's motion for reconsideration is denied, except to note that plaintiff has voluntarily dismissed all remaining claims against all individual defendants. The Clerk of the
Court is directed to close plaintiff's motion [Dkt. No. 104].
MEMORANDUM OPINION AND ORDER
Shira A. Scheindlin, U.S.D.J.
This Court issued an Opinion and Order on October 10, 2013 (" the October 10 Order" ) granting in part and denying in part defendants' motion for summary judgment. The Court ruled that plaintiff " may proceed on his false arrest, malicious prosecution, excessive force, and abuse of process claims against the City under Monell [and] on his excessive force claim against the individual NYPD personnel in the van."  The Court dismissed plaintiffs state law abuse of process claim as well as all other claims against the individual defendants.
Previously, in an unpublished Summary Order, the Second Circuit dismissed plaintiffs false arrest and malicious prosecution claims against individual defendants based on qualified immunity and went on to dismiss plaintiffs Monell claims because " any claims dismissed as against the individual defendants must also be dismissed as against the City."  However, in a subsequent published opinion, Askins v. Doe No . 1, the Second Circuit held that " the entitlement of ... individual municipal actors to qualified immunity because at the time of their actions there was no clear law or precedent warning them that their conduct would violate federal law is ... irrelevant to the liability of the municipality."  In the October 10 Order, I recognized that Askins conflicts with the Second Circuit's previous decision in the instant case. Acknowledging that I could not " proceed without violating one of the two Second Circuit authorities," I followed Askins v. Doe as " a subsequent and more authoritative statement of Second Circuit law." 
A. The City's Request for Certification
On October 31, 2013, the City requested that the Court " certify its recent decision to the Second Circuit for clarification as to whether Askins overrules" the Second Circuit's prior ruling in Pinter . The City argues that this issue is the " heart of the conflict expressed in this Court's October 10 Order."  If the Second Circuit rules that Pinter controls, it may dismiss plaintiffs abuse of process
claims " for the same reasons that it [previously] dismissed the false arrest and malicious prosecution claims .... [leaving] only ... [the] excessive force claims for trial."  Plaintiff opposes the City's request for certification on the grounds that it would further delay the litigation and that there will " still be a trial on remand [of the excessive force Monell claim] and the evidence presented at the future trial will be largely the same evidence as the evidence which would be presented ... at this time." 
Section 1292(b) of Title 28 of the United States Code allows a district judge to certify a question or order to the appellate court when it is " not otherwise appealable under this section" if she is " of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation." The instant case involves a controlling question of law where two panels of the Second Circuit have reached conflicting conclusions. Furthermore, immediate appeal would materially advance the ultimate termination of the litigation. If the Second Circuit holds that its prior ruling in Pinter controls despite the more recent conflicting holding in Askins, it may find that any claim where lack of probable cause is an element must be dismissed -- that is, the false arrest, malicious prosecution and abuse of process claims against the City. This would leave only Pinter's excessive force claim for trial, which is a claim based on a much narrower and more limited set of facts than the other three.
I am sympathetic to plaintiffs argument that this case already has a lengthy and complicated history and that this will be the second interlocutory appeal to the Second Circuit. However, proceeding with trial before the Second Circuit rules on this issue puts the Court at risk of expending scarce judicial resources by trying what may be unviable claims. For the foregoing reasons, the following question is certified for appeal to the United States Court of Appeals for the Second Circuit:
Is the Second Circuit's decision in Pinter v. City of New York, 448 Fed.Appx. 99 (2d Cir. 2011) overruled by its decision in Askins v. Doe No . I, 727 F.3d 248 (2d Cir. 2013)?
B. Plaintiff's Request for Certification
Separately, plaintiff asks the Court to certify its ruling that Pinter did not properly plead a fabrication-based due process claim under the Fourteenth Amendment. Plaintiff first raised this as an allegedly pleaded claim in his opposition papers to defendants' motion for summary judgment. In the October 10, 2013 Order,
I ruled that " [b]ecause this newly raised fabrication-based due process claim does not appear in the Second Amended Complaint, it has not been properly pleaded, and need not be considered."  On October 21, plaintiff filed a motion for reconsideration of this ruling stating that because he pled specific facts about the fabrication in his Second Amended Complaint and the first cause of action in his Second Amended Complaint stated that Pinter " was unlawfully stopped and detained and entrapped and arrested in violation of his rights under both the Fourth and Fourteenth Amendments," he had properly pled the fabrication-based due process claim. In denying plaintiffs motion for reconsideration, I ruled on October 23, 2013 that " the Court properly analyzed the false arrest and unlawful stop claims under the Fourth Amendment" and that " there is no cause of action for false arrest or an unlawful stop under the Due Process Clause of the Fourteenth Amendment."  In his letters of October 28 and November 4, 2013, plaintiff clarifies that the fabrication-due process claim is actually " independent of any and all claims asserted by the Plaintiff under the Fourth Amendment ... and is a claim independent of a Fourth Amendment based malicious prosecution claim." 
Plaintiff cites a Second Circuit case, Ricciuti v. New York City Transit Authority , and a recent district court case, Perez v. Duran , in support of his assertion that the Fourteenth Amendment fabrication-based due process claim is separate from the Fourth Amendment false arrest, unlawful stop and malicious prosecution claims. Ricciuti and Perez do support plaintiffs' argument that fabricated evidence can, in certain circumstances, implicate a defendant's constitutional right to a fair trial. However, in both those cases, the plaintiffs had adequately pled a claim that the fabrication deprived them of a constitutional right to a fair trial. As I stated in the October 10 Order, Pinter has never pled that the fabrication deprived him of a constitutional right to a fair trial, and in fact, articulated this theory as a separate claim for the first time in his opposition papers to defendants' motion for summary judgment, almost eighteen months after the Second Amended Complaint was filed.
Only " exceptional circumstances justify a departure from the basic policy of postponing appellate review until after the entry of a final judgment."  Certification for interlocutory appellate review is appropriate when 1) an order " involves a controlling question of law as to which there is substantial ground for difference of opinion" and 2) " an immediate appeal from the order may materially advance the ultimate
termination of the litigation."  While resolution of this issue could certainly advance the termination of this litigation, Pinter's request does not raise a controlling question of law. Whether a party adequately pled a claim is a standard issue for appeal, but it is not " a new legal question or [a legal issue] of special consequence" appropriate for interlocutory review. For the foregoing reasons, plaintiffs request for certification is denied.