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Mitchell v. City of New York

United States District Court, S.D. New York

February 11, 2014

MELINDA MITCHELL and HARVEY MITCHELL, individually, and on behalf of a class of all others similarly situated, Plaintiffs,
THE CITY OF NEW YORK, a municipal entity; New York City Police Officer JAMES SCHUESSLER, Shield No. 28718; New York City Police Officer MARK BRINADZE; New York City Police Captain JOSEPH GULOTTA; New York City Police Sergeant DANIELLE ROVENTINI; New York City Police Lieutenant KATHLEEN CAESAR; New York City Police Supervisors And Commanders RICHARD ROEs 1-50; New York City Police Officers JOHN DOEs 1-50, individually and in their official capacities, jointly and severally, Defendants.

Jeffrey A. Rothman, Jonathan C. Moore, Jennifer Rolnick Borchetta, BELDOCK LEVINE & HOFFMAN LLP, Attorneys for Plaintiffs.

Brian C. Francolla, Erica M. Haber, NEW YORK CITY LAW DEPARTMENT, Attorneys for Defendants.


LEWIS A. KAPLAN, District Judge.

Named plaintiffs Melinda and Harvey Mitchell[1] bring this putative class action against the City of New York and certain named and unnamed police officers, asserting claims for false arrest, malicious prosecution, abuse of process, excessive force, and municipal liability under Section 1983 as well as various state law claims.[2] Plaintiffs move for partial summary judgment on their false arrest and state law battery claims. Defendants cross-move for summary judgment dismissing all of plaintiffs' claims.

Facts [3]

In or about December 2010, Lieutenant Caesar of the New York City Police Department responded to an incident at 2142 Atlantic Avenue in Brooklyn.[4] On that occasion, she discovered that the premises at the location appeared abandoned, having little inside other than a bar and a "dance pole area."[5] Police subsequently made it a point to drive past the house.[6]

At approximately 2:15 a.m. on January 9, 2011, about one month later, Lieutenant Caesar observed three individuals standing on the porch at 2142 Atlantic Avenue.[7] She then called another officer.[8] Lieutenant Hopkins, Deputy Inspector Gulotta, and approximately thirty additional officers responded to the address.[9] Deputy Inspector Gulotta believed that there had been a history of parties at the location and incorrectly believed that a rape had been committed there several weeks earlier.[10]

The officers observed that the first-floor windows were blocked and that there was a real estate sign in the front of the property, which was surrounded by a waist-high steel fence.[11] They attempted to enter the house but found that the front door was locked.[12] Lieutenant Caesar then attempted to enter the building through the back door and found that it was "blocked, like [by] something heavy against the door."[13] She and other officers ultimately were able to push the door open.[14]

Upon entering, they discovered that a party was taking place inside[15] with between 40 and 60 people in attendance.[16] The party included disco lights, a bar, a DJ and DJ booth, a television, and some couches.[17] Detective Inspector Gulotta smelled a strong odor of marijuana, [18] and Office Schuessler observed six to eight "nickel" or "dime" bags on the floor containing what appeared to be marijuana and crack cocaine.[19]

Deputy Inspector Gulotta and Lieutenant Caesar believed that the house had been abandoned by its owner.[20] There were portable heaters throughout and extension cords that ran to a neighbor's garage.[21] When asked, nobody in attendance could or would identify the party's host.[22] Plaintiffs testified that attendees responded "we didn't do anything, we don't know who the person is."[23] Melinda and Harvey Mitchell stated during their depositions that they had learned of the party through various DJs and believed they were permitted to be there, but they did not know who owned the house or who was hosting the party.[24]

After the party's attendees failed to identify who was hosting the party or owned the house, Deputy Inspector Gulotta decided to arrest everyone inside.[25] Melinda Mitchell then was arrested and handcuffed by an officer who allegedly refused to loosen her handcuffs after she complained that they were too tight.[26] She remained handcuffed for approximately one hour, which allegedly caused bruising on her wrist, several days' soreness, and necessitated treatment with ice packs and six Advil over two days.[27] Harvey Mitchell was arrested and handcuffed for 20-30 minutes, which left marks on his arms and caused him two to three hours of pain.[28]

Melinda Mitchell was released with a desk appearance ticket requiring her to appear in court approximately one month later. The Kings County District Attorney's Office ultimately elected not to prosecute.[29] Harvey Mitchell accepted an adjournment in contemplation of dismissal on April 12, 2011.[30]


I. The Summary Judgment Standard

Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.[31] Where the burden of proof at trial would fall on the nonmoving 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 nonmovant's claim.[32] In that event, the nonmoving party must come forward with admissible evidence sufficient to raise a genuine issue of fact for trial in order to avoid summary judgment.[33] "Evidence presented by the nonmoving party [that] is merely colorable, or is not significantly probative... or [] is based purely on conjecture or surmise" will not defeat summary judgment.[34]

There is another factor relevant to the proper disposition of this motion. Local Civil Rule 56.1 of this Court provides in relevant part as follows:

"(a) Upon any motion for summary judgment..., there shall be annexed to the notice of motion a separate, short and concise statement... of the material facts as to which the moving party contends there is no genuine issue to be tried. Failure to submit such a statement may constitute grounds for denial of the motion."
"(b) The papers opposing a motion for summary judgment shall include a correspondingly numbered paragraph responding to each numbered paragraph in the statement of the moving party and if necessary, additional paragraphs containing a separate, short and concise statement of additional material facts as to which it is contended that there exists a genuine issue to be tried."
"(c) Each numbered paragraph in the statement of material facts set forth in the statement required to be served by the moving party will be deemed to be admitted for purposes of the motion unless specifically controverted by a correspondingly numbered paragraph in the statement required to be served by the opposing party."
"(d) Each statement by the movant or opponent pursuant to Rule 56.1(a) and (b), including each statement controverting any statement of material fact, must be followed by citation to evidence which would be admissible, set forth as required by Fed.R.Civ.P. 56(c)."

The purpose of the rule "is to assist the Court in understanding the scope of the summary judgment motion by highlighting those facts which the parties contend are in dispute."[35] In order for a Rule 56.1 statement in opposition to a motion for summary judgment to serve this purpose, it must respond appropriately to the movant's statement. Thus, "[a] proper Rule 56.1 statement submitted by a non-movant should consist of a paragraph-by-paragraph response to the movant's 56.1 statement, much like an answer to a complaint."[36] It must cite admissible evidence in support of the non-movant's contention creates a genuine issue for trial[37] or, where the non-movant contends that further discovery is required to enable it to raise a genuine issue with admissible evidence, must be accompanied by a Rule 56(d) affidavit that demonstrates such a need with respect to each relevant averment in the movant's Rule 56.1 Statement.

In this case, both sides have submitted Rule 56.1 Statements and responses. The material facts substantially are uncontested. To the extent that plaintiffs object to defendants' material facts relied upon by this Court, their objections have been addressed explicitly above or are insufficient because they are premised on grounds of "materiality" rather than accuracy, admissibility, or some other appropriate basis.[38]

II. False Arrest

To prevail on a claim for false arrest under Section 1983, a plaintiff must show that "(1) the defendant intended to confine [the plaintiff]; (2) plaintiff was conscious of the confinement;

(3) plaintiff did not consent to the confinement and (4) the confinement was not otherwise privileged."[39] Confinement is "privileged" where the police have probable cause to arrest.[40] An officer has probable cause to arrest where he or she "has knowledge or reasonably trustworthy information sufficient to warrant a person of reasonable caution in the belief that an offense has been committed by the person to be arrested."[41] The arresting officer's subjective motivation for the arrest is immaterial as long as there is probable cause to arrest the suspect for some crime.[42] One officer's knowledge is imputed to all other officers involved in an investigation, [43] and a later determination that an arresting officer relied upon mistaken information is immaterial as long as the officer reasonably relied on it at the time of arrest.[44] A court may determine that probable cause existed as a matter of law where "there is no dispute as to the pertinent events and the knowledge of the officers."[45]

Defendants argue that they had probable cause to arrest plaintiffs for criminal trespass in the second degree, trespass, loitering in the first degree, criminal possession of a controlled substance in the seventh degree, and unlawful possession of marijuana. Because the Court concludes that the undisputed facts show that the police had probable cause to arrest the plaintiffs for trespass, it does not consider the other proffered justifications.

"A person is guilty of trespass when he knowingly enters or remains unlawfully in or upon premises."[46] An individual has license and privilege to be at a premises which is "open to the public" "unless he defies a lawful order not to enter or remain, personally communicated to him by the owner of such premises or other authorized person."[47] Extrapolating from the factors that a jury might consider in determining whether premises are "open to the public" in a trespass or burglary prosecution, an arresting officer making the same determination in the field should take into account:

"the type of building involved; who owned the building; whether such ownership was posted or advertised; the physical condition and general appearance of the building; the purpose, if any, for which it was being used; whether members of the public were expressly or impliedly invited to enter; whether the public moved freely in and out of the building; whether doors and windows of the building were intact and were closed, locked or blocked; and whether any warning signs were conspicuously posted; as well as any other evidence which might have some bearing on their determination in this regard."[48]

A person is licensed and privileged to enter private property where "he has obtained the consent of the owner or another whose relationship to the premises gives him authority to issue such consent."[49] One who "honestly believes that he is licensed or privileged to enter, is not guilty of any degree of criminal trespass."[50]

Relevant here is not whether the plaintiffs in fact knowingly entered or remained unlawfully at 2142 Atlantic Avenue, but whether the police had probable cause to believe that they had done so. In other words, probable cause is established and summary judgment for the defendants is warranted if there is no dispute as to the relevant events and that the police had knowledge "sufficient to warrant a person of reasonable caution" to believe that the arrestees committed trespass.[51]

The undisputed evidence demonstrates that the police were reasonable in believing that 2142 Atlantic Avenue was not "open to the public." The house at that address was a private residence, not a store, park, or other obviously public facility. When the police arrived, they encountered a locked front door, a barricaded back door, and observed blacked out windows. From the police's perspective, there was a clear intention on the part of those inside to keep others - i.e., members of the public - out of the house. Such behavior is uncommon in public spaces. That the police had concluded that the structure was an abandoned house based on information gleaned several weeks earlier when they investigated an incident there further provided them with a basis to believe that the property was not open to the public.[52]

For many of the same reasons and several more, the police were reasonable in believing that those inside the house did not have license or privilege to be there. Most compelling is that no one inside would or could answer when asked who owned the apartment and who was throwing the party. In the face of such answers, and taking into account the portable heaters and extension cords that ran through the house and to a neighbor's garage, the police possessed sufficient reliable facts to conclude that the house had been abandoned and that those inside were using it as a party venue without the legal owner's knowledge or permission.[53]

This is not to say that any or all of the arrestees would have been convicted on these facts if charged with trespass. But police are not expected to "sit as prosecutor, judge, or jury"[54] or to "explore and eliminate every theoretically plausible claim of innocence before making an arrest."[55] "Their function is to apprehend those suspected of wrongdoing, and not to finally determine guilt through a weighing of the evidence."[56]

III. Malicious Prosecution [57]

To prevail on a claim of malicious prosecution, a plaintiff must demonstrate (1) the initiation or continuation of a criminal proceeding against them; (2) termination of the proceeding in plaintiff's favor; (3) lack of probable cause for commencing the proceeding; and (4) actual malice as a motivation for defendant's actions.[58] When raised as a Section 1983 claim, a plaintiff must demonstrate also "a seizure or other perversion of proper legal procedures' implicating the plaintiff's personal liberty and privacy interests under the Fourth Amendment."[59]

Defendants argue that Melinda Mitchell's malicious prosecution claim must fail because issuance of a desk appearance ticket does not give rise to such a claim under state or federal law. The law in this area is somewhat unsettled. Relying on Rosario v. Amalgamated Ladies' Garment Cutters' Union, [60] this Court held previously that issuance of a desk appearance ticket could support a malicious prosecution claim.[61] Although Rosario remains good law, two more recent Second Circuit decisions cast doubt on whether a Section 1983 claim for malicious prosecution can lie under these facts. Singer v. Fulton County Sheriff [62] drew a bright line, declaring that "[t]ypically, a warrantless deprivation of liberty from the moment of arrest to the time of arraignment will find its analog in the tort of false arrest... while the tort of malicious prosecution will implicate post-arraignment deprivations of liberty."[63] Such a rule would affect both state law malicious prosecution claims and claims under Section 1983. The court there, however, did not consider a situation in which the plaintiff was subjected to some official action - such as receipt of a summons or desk appearance ticket - between arrest and arraignment, as is the case here.

More on point is Burg v. Gosselin, [64] which held that a summons that did not restrict the suspect's travel and required a single court appearance did not effect a seizure for Fourth Amendment purposes.[65] Courts in this district similarly have held that "[a] charge and a warrantless arrest - concluding with the issuance of the desk appearance ticket - may be a sufficient deprivation of liberty to support a claim for false arrest, but do not amount to a prosecution and cannot alone support a claim for malicious prosecution."[66]

Melinda Mitchell has failed to allege facts or adduce any evidence demonstrating that she was seized, for Fourth Amendment purposes, under Burg. Her only claim is that the police issued her a desk appearance ticket requiring her presence in court a single time. She does not claim and has not shown that her travel was restricted or that she was required to appear in court multiple times. Burg therefore is squarely on point.

IV. Abuse of Process

Plaintiffs' abuse of process claim entirely is baseless. They argue that the police arrested the party's attendees in "retaliation" for their failure to answer who owned the apartment or hosted the party. But no reasonable jury possibly could view as retaliation a police officer electing to arrest someone who to all appearances is trespassing and refuses to explain how or why he in fact is not trespassing.

V. Excessive Force

Plaintiffs next argue that the officers used excessive force in applying handcuffs.

In determining such a claim, courts consider whether "1) the handcuffs were unreasonably tight; 2) the defendants ignored the arrestee's pleas that the handcuffs were too tight; and 3) the degree of injury to the wrists."[67] To prevail on a claim of excessive force, a plaintiff must demonstrate that the handcuffing "cause[d] some injury beyond temporary discomfort."[68] Section 1983 excessive force claims routinely are dismissed where the plaintiffs claim similar or even greater injury than Melinda and Harvey Mitchell claim here. Plaintiffs, however, point to a recent decision in which a court in this district denied a motion to dismiss an excessive force claim, reasoning that "[i]f the force used was unreasonable and excessive, the plaintiff may recover even if the injuries inflicted were not permanent or severe."[69]

The holding in Hershey has no bearing on this case. The court there denied the motion to dismiss because the plaintiff alleged that the handcuffing caused him to suffer paresthesia in his hands, which prevented him from engaging in leafleting activities for three weeks.[70] Harvey Mitchell claims that he was handcuffed for approximately 20-30 minutes and suffered pain for several hours. Melinda Mitchell claims that she was handcuffed for approximately one hour and suffered pain and bruising for approximately two days. Neither even alleges that the effects of the handcuffing limited their ability to engage in day-to-day activities, caused severe pain, long-term damage, or anything approximating the level required to defeat defendants' motion for summary judgment.[71]

VI. Municipal Liability

Having held that plaintiffs have failed to adduce facts supporting a constitutional claim, plaintiffs' claim of municipal liability must fail under the rule announced in Monell. [72] Even if this were not so, plaintiffs have put forth no proof that any of the alleged violations in this case were part of a broader city policy. They point only to other instances in which the police have arrested large groups of people - almost all of which occurred in the context of protests, not a party. This plainly is insufficient.


For the foregoing reasons, plaintiffs' motion for partial summary judgment [DI 22] is denied. Defendants' motion for summary judgment [DI 18] dismissing the action is granted.


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