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Cooper v. Dieugenia

United States District Court, E.D. New York

February 27, 2017

Police Officer PAUL DIEUGENIA, Shield No. 13223, Police Officer ALEKSANDR PASYNKOV, Tax Id. 947328 and JANE DOE 1 through 10, individually and in their official capacities the names John and Jane Doe being fictitious, as the true names are presently unknown, Defendants.


          Pamela K. Chen United States District Judge

         Plaintiff Natifah Cooper brought this action pursuant to 42 U.S.C. § 1983 against Defendant Police Officers Paul Dieugenia (“Dieugenia”) and Aleksandr Pasynkov (“Pasynkov”) and unidentified “Jane Doe Officers 1-10”, based on events relating to her arrest on April 17, 2013. In her Amended Complaint, Plaintiff asserted six causes of action: (1) unlawful stop and search; (2) false arrest; (3) excessive force; (4) denial of the right to a fair trial; (5) First Amendment retaliation; and (6) failure to intervene. (Dkt. 12, (“AC”) ¶¶ 36-57.) As discussed infra, since filing this action, Plaintiff has withdrawn a number of her claims as to various Defendants. Before the Court is Defendants' motion for partial summary judgment seeking dismissal of all remaining claims, except Plaintiff's claim of excessive force against Dieugenia. (Dkt. 36, (“Defs. Mem.”).) For the reasons discussed below, Defendants' motion is GRANTED in part and DENIED in part.



         In her Amended Complaint, Plaintiff blanketly asserted all six causes of action against all of the Defendants. In rather helter-skelter fashion, Plaintiff thereafter voluntarily withdrew various claims against some of the Defendants. At the pre-motion conference on April 26, 2016, Plaintiff withdrew all of her claims against the Doe defendants and her first cause of action for unlawful stop and search against all Defendants. (See 4/26/2016 Minute Entry and Transcript.) On May 4, 2016, Plaintiff withdrew her false arrest, excessive force, and denial of the right to a fair trial claims against Pasynkov. (See Dkt. 31.) And now, in response to Defendant's motion, Plaintiff withdraws her First Amendment retaliation claim against all Defendants. (See Dkt. 39, (“Pl. Opp.”) at 7.)[1] Thus, the remaining claims in this action are: First Cause of Action - unlawful stop and search against both Defendants; Second Cause of Action - false arrest against Dieugenia; Third Cause of Action - use of excessive force against Dieugenia; Fourth Cause of Action - denial of the right to a fair trial against Dieugenia; and Sixth Cause of Action - failure to intervene against Pasynkov. Defendants seek to dismiss all but the excessive force claim as to Dieugenia. (Defs. Mem.)

         II. FACTS

         On the night of April 17, 2013, Plaintiff was arrested, as was her boyfriend, Alexander Kosterkin (“Kosterkin”), by Defendants, both of whom are New York City Police Department officers. (Dkt. 35, (“Defs. 56.1”) ¶¶ 1, 7; Dkt. 40, (“Pl. 56.1 Counter-Statement”) ¶¶ II.2, 9.)[2]Earlier that night, Plaintiff had left her house with her dog to meet Kosterkin near his home on Bayview Avenue in Brooklyn. (Defs. 56.1 ¶ 2.) As Plaintiff and Kosterkin were walking the dog on a plot of grass across from Kosterkin's home, they encountered a man who appeared to be homeless and whose name remains unknown. (Dkt. 42-1, Ex. 2, (“Pl. Cooper”) at 37:3- 38:10.)[3] The man was sitting alone near a small fire. (Id. at 38:6-10.) The man asked Kosterkin if he had a can opener and asked for help opening a can of food. (Id. at 37:18-38:2.) Kosterkin did not have a can opener, but instead offered his small work knife to the man. (Id. at 37:23- 38:2.) After Plaintiff and Kosterkin had been with the man, trying to open the can, for about five minutes, two police officers-Dieugenia and Pasynkov-approached them. (Id. at 39:9-17.) Defendants placed Kosterkin in handcuffs and arrested him. (Id. at 46:15-24; Pl. 56.1 Counter-Statement ¶ II.2.) The parties disagree as to whether Kosterkin's knife was in his sweatshirt pocket or clipped to his pants pocket, such that it was visible to the officers. (See Pl. Cooper at 47:11-21; Dkt. 34-3, Ex. C, (“Pasynkov”) 26:4-7.)[4]

         The parties disagree about most of what transpired from this point on. Defendants allege that Plaintiff blocked Pasynkov's path as he attempted to walk Kosterkin to the police vehicle. (Dkt. 34-4, Ex. D, (“Dieugenia”) at 26:19-27:4.) Plaintiff denies blocking Pasynkov's path at any point; rather, she says she was standing behind Pasynkov, leaving him a clear path to the police car. (Cooper at 60:4-22.)

         Defendants allege that, as Pasynkov handed Kosterkin's cell phone to Dieugenia for safekeeping, Plaintiff pushed Dieugenia. (Dieugenia at 36:11-37:4.) Plaintiff denies this. (Cooper at 59:13-15.) Plaintiff alleges that Kosterkin had asked the officers whether he could give Plaintiff his phone and that Pasynkov had said yes. (Id. at 53:6-9.) Plaintiff then took the dog to Kosterkin's house and came back to pick up Kosterkin's phone. (Pl. Cooper at 54:4-13.) Plaintiff alleges that when she returned, she bent down to pick up Kosterkin's phone, which was on the ground, and that Dieugenia pushed her when she had her back turned to him. (Id. at 54:14-23; 55:8-15.) According to Plaintiff, she was startled and asked Dieugenia why he had pushed her, at which point he grabbed her arm, punched her in the face with a closed fist, and threw her to the ground. (Id. at 55:8-23; 57:4-20.) He then pushed her face into the dirt, put his knee into her back, and told her to “stop resisting.” (Id. at 57:21-25.) Plaintiff denies resisting and alleges that she tried to tell the officer that he was hurting her. (Id. at 57:22-58:3.) At this point, Kosterkin's mother, who had arrived at the scene, told Dieugenia that Cooper has asthma, to which Dieugenia replied, “They all do.” (Id. at 58:4-6.)

         Dieugenia then patted down Plaintiff's pockets and searched her while she was on the ground with her face in the dirt. (Id. at 58:10-16.) Female officers later came and conducted a thorough search of Plaintiff. (Id. at 58:17-19.) Plaintiff was arrested, taken to Central Booking, and charged with various misdemeanors. (AC ¶¶ 32-33.) She eventually received an adjournment in contemplation of dismissal (“ACD”) after multiple court appearances. (Id. ¶ 34.)



         “Summary judgment is appropriate where there are no genuine disputes concerning any material facts, and where the moving party is entitled to judgment as a matter of law.” Summa v. Hofstra Univ., 708 F.3d 115, 123 (2d Cir. 2013) (quoting Weinstein v. Albright, 261 F.3d 127, 132 (2d Cir. 2001)); see also Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). “Material” facts are facts that “might affect the outcome of the suit under the governing law.” Anderson, 477 U.S. at 248. A “genuine” dispute exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. “The moving party bears the burden of establishing the absence of any genuine issue of material fact.” Zalaski v. City of Bridgeport Police Dep't, 613 F.3d 336, 340 (2d Cir. 2010) (citing Celotex Corp., 477 U.S. at 322). Once a defendant has met his initial burden, the plaintiff must “designate specific facts showing that there is a genuine issue for trial.” Celotex Corp., 477 U.S. at 323-24 (internal quotation marks omitted). In determining whether there are genuine disputes of material fact, the court must “resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought.” Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003) (internal quotation marks omitted).

         The Court's inquiry upon summary judgment is “determining whether there is the need for a trial-whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Anderson, 477 U.S. at 250; see also Id. at 251-52 (“In essence, though, the inquiry . . . [is] whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.”). In other words, “[s]ummary judgment is appropriate only ‘[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party.'” Donnelly v. Greenburgh Cent. Sch. Dist. No. 7, 691 F.3d 134, 141 (2d Cir. 2012) (alterations in original) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).


         Plaintiff has brought this action pursuant to 42 U.S.C. § 1983, which provides a cause of action for anyone subjected “to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws” by a person acting under color of state law. 42 U.S.C. § 1983. “Section 1983 itself creates no substantive rights; it provides only a procedure for redress for the deprivation of [federal] rights established elsewhere.” Thomas v. Roach, 165 F.3d 137, 142 (2d Cir. 1999) (citing City of Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985)); see Bailey v. City of New York, 79 F.Supp.3d 424, 440 (E.D.N.Y. 2015). To state a claim under Section 1983, “a plaintiff must allege that (1) the challenged conduct was attributable at least in part to a person who was acting under color of state law and (2) the conduct deprived the plaintiff of a right guaranteed under the Constitution of the United States.” Snider v. Dylag, 188 F.3d 51, 53 (2d Cir. 1999); see Velez v. Levy, 401 F.3d 75, 84 (2d Cir. 2005) (citing Gomez v. Toledo, 446 US. 635, 640 (1980)).

         A. False Arrest [5]

         Defendants argue that Plaintiff's false arrest claim must be dismissed because there was probable cause for her arrest. In the alternative, Defendants assert that they are entitled to qualified immunity as to this claim. As explained below, the Court rejects both of these contentions.

         “In analyzing § 1983 claims for unconstitutional false arrest, [courts] generally look[] to the law of the state in which the arrest occurred.” Dancy v. McGinley, 843 F.3d 93, 107 (2d Cir. 2016) (quoting Jaegly v. Couch, 439 F.3d 149, 151 (2d Cir. 2006)). Under New York law, to prevail on a false arrest claim, a plaintiff must show, inter alia, that Defendants[6] intentionally arrested her without justification. Dancy, 843 F.3d at 107 (citing Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996) and Ackerson v. City of White Plains, 702 F.3d 15, 19 (2d Cir. 2012)). The existence of probable cause to arrest “is a complete defense to an action for false arrest.” Weyant, 101 F.3d at 852 (quoting Bernard v. United States, 25 F.3d 98, 102 (2d Cir. 1994)); see also Dancy, 843 F.3d at 107 (citing Jaegly, 439 F.3d at 152). An officer has probable cause to arrest when he has “knowledge or reasonably trustworthy information of facts and circumstances that are sufficient to warrant a person of reasonable caution in the belief that the person to be arrested has committed or is committing a crime.” Gonzalez v. City of Schenectady, 728 F.3d 149, 155 (2d Cir. 2013) (emphasis in original) (quoting Weyant, 101 F.3d at 852). “Therefore, ‘[w]hether an officer is authorized to make an arrest ordinarily depends, in the first instance, on state law.'” Dancy, 843 F.3d at 107 (alteration in original) (quoting Michigan v. DeFillippo, 443 U.S. 31, 36 (1979)).

         Defendants present various theories for finding probable cause for Plaintiff's arrest: (1) she, along with her boyfriend and the other man, were standing around a bonfire in violation of the New York City Department of Parks and Recreation Regulation (“Parks Department Rule”), 56 R.C.N.Y. § 1-05(m); (2) she was in a City park after dark in violation of another Parks Department Rule, 56 R.C.N.Y. § 1-03(a)(1); (3) her behavior constituted disorderly conduct in violation of New York Penal Law § 240.20; and (4) she physically attempted to block the walkway when Pasynkov walked her boyfriend to the police vehicle, thus obstructing governmental administration (“OGA”) and resisting an arrest in violation of New York Penal Law Sections 195.05 and 205.30, respectively. (See Defs. Mem. at 4-8.)

         1. Bonfire Violation

         Defendants assert that probable cause existed to arrest Plaintiff for violating a Parks Department Rule because she was “standing around a bonfire” with others in the park. (Defs. Mem. at 5.) Section 1-05(m) of the Parks Department Rule states, in relevant part, that “no person shall kindle, build, maintain, or use a fire in any place, portable receptacle, or grill except in places provided by the [Parks] Department and so designated by sign or by special permit. In no event shall open or ground camp fires be allowed in any park.” However, Plaintiff denies using or having anything to do with the bonfire, and claims that she and her boyfriend were merely helping the other man open his can of food. (Pl. Cooper at 37:18-38:10, 39:9-12.) Notably, Defendants do not discuss, or point to any evidence regarding, where Plaintiff was in relation to the bonfire or how far from it she was at the time Defendants approached her. (See Defs. Mem.) They do not assert or offer evidence that Plaintiff was doing anything other than standing in the vicinity of the bonfire. In light of such factual gaps and the parties' disagreement as to Plaintiff's “use” of the bonfire, the Court cannot find, as a matter of law, that there was probable cause to arrest Plaintiff for violating Section 1-05(m) of the Parks Department Rule.

         2. Being in the Park After Closing Time

         Defendants also assert that there was probable cause for Plaintiff's arrest because she was in a New York City park, after dark, in violation of 56 R.C.N.Y. § 1-03(a)(1), which states, “Persons may enter and use the parks from 6:00 a.m. until 1:00 a.m. unless other open hours are posted at [the] park.” (Defs. Mem. at 6.) However, the parties dispute whether there was a properly posted sign that shortened the park's hours. Plaintiff and Kosterkin claim that “there was no sign forbidding access to the beach area after dusk, or any other prohibition.” (Pl. Opp. at 5.) Meanwhile, Defendants offer a Google Maps image purportedly showing a sign posted at the entrance to the park where Plaintiff was arrested. (Dkt. 34-5, Ex. E). Defendants represent that the sign indicated that the park closed at dusk, and ask the Court to take judicial notice, based on this image, that the park closed at dusk on the day of Plaintiff's arrest. (Defs. Mem. at 6.) Even assuming arguendo the propriety of the Court taking judicial notice of the Google Maps image, that image fails to prove anything. First, the image does not clearly show what the sign says.[7] Second, even if the sign could be read clearly from the image, the image was not taken on the day of Plaintiff's arrest. As Defendants admit, the image was taken and posted on Google Maps in January 2013, three months before Plaintiff's arrest (id.; Ex. E). The image therefore fails to prove, even by a preponderance, that ...

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