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Cruz v. City of New York

United States District Court, S.D. New York

February 8, 2016

ARTURO CRUZ, Plaintiff,
v.
THE CITY OF NEW YORK, POLICE OFFICER EUGENE DONNELLY, 46th PRECINCT, P.O.'s "JOHN DOE" #1-10, individually and in their official capacities, Defendants.

          OPINION & ORDER

          PAUL A. ENGELMAYER, District Judge

         This decision resolves a summary judgment motion in this case of alleged police misconduct. Plaintiff Arturo Cruz brings claims under 42 U.S.C. § 1983 and New York law, alleging that the City of New York (the "City"), New York City Police Department ("NYPD") Officer Eugene Donnelly, and unidentified NYPD officials violated his civil rights under, inter alia, the federal and New York State Constitutions. Cruz's claims include false arrest, malicious prosecution, excessive force, false imprisonment, negligence, invasion of privacy, and battery. The claims all arise from Cruz's arrest on March 29, 2012, at his Bronx home, and his ensuing criminal prosecution, which ended, on October 4, 2012, in dismissal. Dkt. 1 ("Compl.") at 3.

         Defendants now move for summary judgment on all claims. They argue that (1) Cruz's state law claims are barred by his failure to file a notice of claim; (2) Cruz's claims against the "John Doe" defendants are time-barred; (3) as to the claims of false arrest and use of excessive force, that defendant Officer Eugene Donnelly, the only defendant implicated by Cruz's federal claims, lacked personal involvement in the relevant events; and (4) as to the claims of false arrest and malicious prosecution, there was probable cause supporting Cruz's arrest and prosecution; and that Donnelly, in any event, is entitled to qualified immunity. For the following reasons, the Court grants summary judgment to defendants as to all of Cruz's claims, except for his malicious prosecution claim against Donnelly brought under § 1983.

         I. Background[1]

         A. Factual Background

         Since August 2011, Cruz has lived at 1391 Nelson Avenue, Apartment 3F, in the Bronx, New York. Yalkut Decl., Ex. 1 ("Cruz Dep.") at 29-30. He testified that, between August 2011 and March 2012, he refused delivery of multiple letters and packages sent to that address but not addressed to him by name. Id. at 30-31.

         On March 28, 2012, law enforcement officials at the Federal Express hub in Memphis, Tennessee, seized a package weighing 7.05 kilograms. Def. 56.1 at 1. An examination of the package later revealed that it contained 10.3 ounces of cocaine. Id. A custody receipt from the Department of Homeland Security reflects that the package was addressed to Cruz at his home. Dkt. 29, Ex. A. A custody receipt from U.S. Customer Border Protection at the Memphis Federal Express Hub reflects the same. Dkt. 19, Ex. B.

         On March 29, 2012, several NYPD officers, including Donnelly, executed a controlled delivery of the package to Cruz's apartment. Def. 51.6 at 2.

         It is undisputed that the controlled discovery proceeded as follows: An individual knocked on the apartment door and told Cruz that he had a delivery from Federal Express. Cruz responded that he was not expecting a package. The individual told Cruz that the package was for Apartment 3F. At this point, Cruz opened the door.[2] As he did so, unidentified NYPD officers, not including Donnelly, entered the apartment with guns drawn. Inside the apartment, the unidentified NYPD officers slammed Cruz against a wall, handcuffed him, and threw him onto the ground. Id.

         The parties dispute Donnelly's location during the controlled delivery. In his deposition, Donnelly testified that he waited outside the apartment building while another officer-whose identity Donnelly does not now recall-delivered the package, and that, while there, he then received a call over the radio stating that Cruz had signed for the package. Yalkut Deck, Ex. 2 ("Donnelly Dep.") at 8, 11. Cruz, however, contends that Donnelly was present during the delivery. For this proposition, Cruz relies on the fact that, in the state-court criminal complaint that Donnelly swore out against Cruz later that day, Donnelly attested under oath that he had personally seen Cruz sign for the package. See PL Resp. 56.1 at 3; Dkt. 29-8 ("Criminal Complaint") at 1 ("Deponent states that deponent observed defendant sign for a package that was addressed to defendant at the above stated address.").[3] In the Criminal Complaint, Donnelly also attested: "Deponent further states that defendant in substance [stated] to deponent in reference to said package: I WAS SUPPOSED TO GIVE THIS PACKAGE TO SOMEONE ELSE." Id. (capitalization in original). The sparse Criminal Complaint-which contains only four sentences of narrative and is little more than a page long-does not further elaborate on the delivery or on Cruz's arrest.

         The parties agree that Donnelly thereafter entered the apartment. They dispute, however, the events immediately preceding the entry. Donnelly testified that he went to and entered the apartment after receiving the radio report that Cruz had signed for the package. Donnelly Dep. 8-9. Cruz, however, again relying on Donnelly's Criminal Complaint, claims that Donnelly was present during the arrest. PL Resp. 56.1 at 4 (citing Criminal Complaint at 1).

         It is undisputed that Donnelly ultimately recovered the package containing cocaine from Cruz's apartment and transported it, along with Cruz, to the 46th Precinct. Def. 56.1 at 3; Def. Resp. 56.1 at3.[4]

         The same day, based on the delivery of the package containing cocaine, Cruz was charged with criminal possession of a controlled substance in the first and third degree and criminal facilitation in the fourth degree. Def. 56.1 at 3. Cruz was unable to make bail and remained in custody for two weeks, before being released on the motion of the District Attorney. Cruz Dep. 65-66. No indictment of Cruz was ever returned. On October 4, 2012, by motion of the District Attorney, all charges against Cruz were dismissed. Id. at 67.

         B. Procedural History

         On March 26, 2015, Cruz filed the complaint in this case. Dkt. 1 ("Complaint" or "Compl."). In it, Cruz brought federal claims of false arrest, excessive force, and malicious prosecution under 42 U.S.C. § 1983, and state-law claims of false imprisonment, negligence, invasion of privacy, and battery.[5] Before commencing this action, Cruz did not file a notice of claim with the New York City's Comptroller's Office. Id; PL Resp. 56.1. at 5. On July 13, 2015, defendants filed an answer. Dkt. 4. On January 19, 2016, the Court granted defendants' motion for partial judgment on the pleadings and dismissed, with prejudice, Cruz's claim for municipal liability against the City pursuant to Monell v. Dep't of Soc. Servs. o/N.Y.C., 436 U.S. 658(1978). Dkt. 18.

         On May 23, 2016, defendants filed this motion for summary judgment. Dkt. 28. On June 17, 2016, Cruz filed a memorandum of law in opposition. Dkt. 35. On July 5, 2016, defendants filed a reply. Dkt. 43. On September 15, 2016, the Court held argument on the motion.

         II. Applicable Legal Standards for a Motion for Summary Judgment

         To prevail on a motion for summary judgment, the movant must "show[] 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). The movant bears the burden of demonstrating the absence of a question of material fact. In making this determination, the Court must view all facts "in the light most favorable" to the non-moving party. Holcomb v. Iona Coll., 521 F.3d 130, 132 (2d Cir. 2008); see also Celotex Corp. v. Catrett, 477U.S. 317, 323 (1986).

         If the movant meets its burden, "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." Jaramillo v. Weyerhaeuser Co., 536 F.3d 140, 145 (2d Cir. 2008). "[A] party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment." Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010) (internal quotation marks and citation omitted). Rather, the opposing party must establish a genuine issue of fact by "citing to particular parts of materials in the record." Fed.R.Civ.P. 56(c)(1)(A); see also Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009).

         "Only disputes over facts that might affect the outcome of the suit under the governing law" will preclude a grant of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In determining whether there are genuine issues of material fact, the Court is "required to resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought." Johnson v. Killian, 680 F.3d 234, 236 (2d Cir. 2012) (quoting Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003)) (internal quotation marks omitted).

         III. Discussion

         Defendants seek summary judgment on all of Cruz's claims, making, as noted, a variety of distinct arguments. The Court addresses these in turn.

         A. State Law Claims

         Defendants first seek summary judgment on all of Cruz's state-law claims-of false imprisonment, negligence, invasion of privacy, and battery-based on Cruz's failure to file a timely notice of claim.

         Under New York General Municipal Law § 50-i(1), a plaintiff cannot bring a state tort law claim against the City or any City employee unless, within 90 days from the date the claim arose, "a notice of claim shall have been made and served upon the city." N.Y. Gen. Mun. L. § 50-i(1); see Fincher v. Cty. of Westchester, 979 F.Supp. 989, 1002 (S.D.N.Y. 1997) ("The notice of claim requirements apply equally to state tort claims brought as pendent claims in a federal civil rights action."). Cruz concedes that he did not file any such notice, PI. Br. at 26, and indeed, that as of the September 15, 2016 argument on defendant's summary judgment motion, he still had not filed a notice of claim. See Transcript of Argument at 32. Although Cruz contends that "[t]he state law claims are closely connected to the federal claims against the defendants, " he cites no authority that such a connection exempts him from the requirement to file a notice of claim. PI. Br. at 26.

         Accordingly, the Court must, and does, grant summary judgment to defendants on all of Cruz's state law claims.

         B. Federal Claims Against John Doe Defendants

         Defendants also seek summary judgment on Cruz's federal claims against "John Doe" defendants because Cruz has not demonstrated any effort to discover the true names of these defendants, and because any attempt to do so at this stage would be untimely.

         1. Indication of Effort

         Although "[u]sing 'Doe' in place of specifically naming a defendant does not serve to sufficiently identify the defendant, . . . [c]ourts typically resist dismissing suits against John Doe defendants until the plaintiff has had some opportunity for discovery to learn the identities of responsible officials." Coward v. Town & Vill. of Harrison, 665 F.Supp.2d 281, 300 (S.D.N.Y. 2009) (internal quotation marks and citation omitted). Nonetheless, "[w]here a plaintiff has had ample time to identify a John Doe defendant but gives no indication that he has made any effort to discover the [defendant's] name, ... the plaintiff simply cannot continue to maintain a suit against the John Doe defendant." Id. (internal quotation marks omitted).

         Here, there is no indication that Cruz has made any effort to discover the Doe defendants' true names. Indeed, Cruz's opposition to defendants' motion for summary judgment does not even address the motion to as to the Doe defendants beyond making the vague assertion that "discovery would not have availed the plaintiff." PI. Br. at 26. Cruz therefore cannot continue to maintain a suit against these defendants. See Keesh v. Artuz, No. 97 Civ. 8417, 2008 WL 3166654, at *2 (S.D.N.Y. Aug. 6, 2008) (dismissing complaint against Doe defendants where, "[e]ven after discovery, plaintiff ha[d] failed to identify" them); Blake v. Race, 487 F.Supp.2d 187, 192 n. 1 (E.D.N.Y. 2007) (dismissing claims against Doe defendants where, "[t]hough discovery is complete in this case, plaintiff has failed to identify any of the unnamed defendants, or to present any evidence demonstrating their involvement in the infringing activity" and "plaintiffs opposition to defendants' motion for summary judgment does not specify the role of any unnamed defendants in the infringing conduct, nor does plaintiff indicate that he will be able to identify these unnamed defendants in the future"); see also Diop v. City of New York, 50 F.Supp.3d 411, 415 n.l (S.D.N.Y. 2014) (dismissing claims against Doe defendants where plaintiff "neither identified those defendants nor described their role in the conduct at issue in this case, and the deadline for joinder of additional parties ha[d] passed").

         2. Ability to Amend

         Even were Cruz later to identify the Doe defendants, any amendment to add ...


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