United States District Court, Eastern District of New York
MEMORANDUM AND ORDER
I. Leo Glasser Senior United States District Judge
Plaintiff Sundra Franks (“Franks”) brings this action against the City of New York (“City”) and New York City Police Detective Richard Dinkle, in his individual capacity, (“Dinkle, ” and, together with the City, “Defendants”), alleging federal claims under 42 U.S.C. § 1983 for false arrest, malicious prosecution, excessive force, violation of equal protection, and municipal liability, and state law claims for assault, battery, and false arrest. Before the Court is Defendants’ motion for summary judgment pursuant to Federal Rule of Civil Procedure 56(a). For the following reasons, the motion is GRANTED.
The undisputed facts are as follows. On July 2, 2011 at approximately 11:45 p.m., Dinkle and other members of the New York City Police Department (“NYPD”) responded to a residential building at 251 Jersey Street in Staten Island after receiving a report of gun shots fired at the location. Defendants’ Local Rule 56.1 Statement of Facts (“SOF”) ¶ 3. James Lee, a resident of 251 Jersey Street, was in his apartment that evening with his friend, Steven Clark. Id. ¶ 7. Before the gun shots were fired, Clark had gone outside to meet his girlfriend, Shaiesha Lewis. Id. After Clark left, Lee heard a commotion outside and upon opening his door saw Clark and two other men with guns running toward his apartment. Id. He recognized both men, who he later identified as Franks and “Halloween.” Id. ¶ 8. He ran back inside, and through his upstairs window, observed Franks fire a gun toward his apartment. Id. ¶ 9.
Clark told police that while he was waiting outside for his girlfriend, two black men approached and started pushing him. Id. ¶ 10. He escaped the men and ran back into Lee’s apartment and heard approximately five gun shots. Id. He described one of the men as “very short, very dark skinned, scruffy face, skinny, wearing a white t-shirt, [and] jean shorts” and the other as “taller, medium skin color, medium build, no hair, wearing a blue shirt.” Id. ¶ 11. Franks, who is dark-skinned, short, and skinny, fit Clark’s physical description. Id. ¶ 12.
Shaiesha Lewis told police that as she approached 251 Jersey Street to meet Clark, she saw two men trying to get into the residence. Id. ¶ 13. She described one of the men as wearing a white tank top and blue shorts. DX D at 5. She managed to enter the residence and heard gun shots. Id. At the time, her mother, Farida Lewis, was parking her car outside of 251 Jersey Street and saw a black man pointing a gun and shooting at the building. SOF ¶ 14. She did not see the shooter’s face, but described him as wearing all black and having short braids. Id. Police recovered five shell casings in front of 251 Jersey Street. Id. ¶ 5. The front door of Lee’s apartment revealed two bullet holes, and the window of his apartment revealed one bullet hole. Id.
In the early morning of July 3, 2011, the officers transported Lee, Clark, Shaiesha and Farida Lewis to the 120th New York City Police Precinct (“Precinct”) to view photo arrays. See Dinkle Dep. at 92-93 (DX C). On the way to the Precinct, Lee saw Halloween walking on the street and alerted the officers, who arrested him. SOF ¶ 15. Franks was still at large.
At the Precinct, Dinkle prepared two photo arrays: one contained a photo of Franks and the other contained a photo of Halloween. Id. ¶ 16. He showed both photo arrays to the four eyewitnesses. Lee identified Franks as the shooter, but the other witnesses did not. Id. ¶¶ 18-19. Based on Lee’s identification, Dinkle issued an “Investigation Card, ” which notified other NYPD officers that Franks was wanted in connection with the shooting incident. Id. ¶ 21.
On November 26, 2011, officers notified Dinkle that Franks had been arrested that morning for driving a vehicle in which was a loaded firearm. Id. ¶ 22; DX E, ¶ 15. Franks was brought to the Precinct, where Dinkle arrested him on charges related to the July 2 shooting. Id. ¶¶ 22-23. On November 27, 2011, a complaint was filed in the Richmond County Criminal Court, which charged Franks with two counts of criminal possession of a weapon in the second degree and one count of reckless endangerment in the first degree, and he was arraigned that day. Id. ¶ 24. On July 2, 2012, all charges against him were dismissed after the complaining victims did not appear to testify before the grand jury. Id. ¶ 25.
On April 15, 2013, Franks commenced this action. Dkt. No. 1. During his April 24, 2014 deposition, he testified that he was not making a discrimination claim or complaining about any City policy, and that he did not suffer physical injury as a result of the arrest. SOF ¶ 27. On July 25, 2014, Defendants’ filed their motion for summary judgment. Dkt. No. 18. Franks filed his Opposition on September 26, 2014. Dkt. No. 21. Defendants replied on October 18, 2014. Dkt. No. 23.
Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “An issue of fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. . . . A fact is material if it might affect the outcome of the suit under the governing law.” Fincher v. Depository Trust & Clearing Corp., 604 F.3d 712, 720 (2d Cir. 2010) (internal quotations and citations omitted). The moving party bears the burden of establishing the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In deciding a motion for summary judgment, the court must “construe the facts in the light most favorable to the nonmoving party and must resolve all ambiguities and draw all reasonable inferences against the movant.” Brod v. Omya, Inc., 653 F.3d 156, 164 (2d Cir. 2011) (quotation omitted).
Franks did not oppose Defendants’ motion for summary judgment with respect to his state law claims, federal claims against the City, and federal claims against Dinkle for excessive force and violation of equal protection. “Federal courts may deem a claim abandoned when a party opposing summary judgment fails to address the [movant’s] argument in any way.” Taylor v. City of New York, 269 F.Supp.2d 68, 75 (E.D.N.Y. 2003). Accordingly, the Court dismisses ...