United States District Court, S.D. New York
OPINION & ORDER
A. ENGELMAYER, District Judge
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
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
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.
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.
March 29, 2012, several NYPD officers, including Donnelly,
executed a controlled delivery of the package to Cruz's
apartment. Def. 51.6 at 2.
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. 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.
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."). 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
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).
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.
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.
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. 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.
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.
Applicable Legal Standards for a Motion for Summary
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).
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).
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).
seek summary judgment on all of Cruz's claims, making, as
noted, a variety of distinct arguments. The Court addresses
these in turn.
State Law Claims
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.
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.
the Court must, and does, grant summary judgment to
defendants on all of Cruz's state law claims.
Federal Claims Against John Doe 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.
Indication of Effort
"[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).
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").
Ability to Amend
were Cruz later to identify the Doe defendants, any amendment
to add ...