United States District Court, E.D. New York
MEMORANDUM & ORDER
N. VITALIANO United States District Judge
March 27, 2009, plaintiff Alexina Simon ("Simon")
commenced this § 1983 action against defendants the City
of New York, New York City Police Department
("NYPD") Detective Douglas Lee, Sergeant Evelyn
Alegre, and Queens County Assistant District Attorney
("ADA") Francis Longobardi. On October 19, 2011,
summary judgment was granted for defendants on the ground of
absolute immunity, and the case was dismissed. Plaintiff
appealed. The Second Circuit vacated and
remanded. See Simon v. City of New York,
727 F.3d 167, 174 (2d Cir. 2013). The court of appeals
pointedly noted, however, that it had made no finding as to
qualified immunity. Id. That open question is now
presented on defendants' renewed motion for summary
judgment, as they advance qualified immunity as the principal
ground for relief. For the reasons set forth below,
defendants' motion is granted.
the relevant facts of this long-lived case, and the
controlling standard of review, have already been described
in prior memoranda and orders. See Simon v. City of New
York, 09-cv-1302, 2011 WL 317975, at *1-2 (E.D.N.Y. Jan.
3, 2011); Simon, 819 F.Supp.2d at 147-48;
Simon, 727 F.3d at 169-70. Therefore, only those
facts relevant to this order will be recounted. All
reasonable inferences are drawn, as they must be, in favor of
plaintiff as the non-moving party. See Sec. Ins. Co. of
Hartford v. Old Dominion Freight Line, Inc., 391 F.3d
77, 83 (2d Cir. 2004).
origins of this case stem from an investigation, led by ADA
Longobardi, into whether non-party NYPD Officer Shantell
McKinnies falsely reported that her car was stolen. Simon
Dep., Dkt. No. 127-2, at 41-42. Officer McKinnies alleged
that the last person to see her car was a friend, whom she
identified as "Alexandra Griffin." Longobardi Dep.,
Dkt. No. 127-5, at 32-33. According to police records, when
"Alexandra Griffin" was first contacted by members
of the NYPD on January 16, 2008, she provided limited
information - namely that she had been out with McKinnies on
the night the car was allegedly stolen and that a conflict
ensued thereafter. Dkt. No. 124-1 at ¶ 16; Def. 56.1
Stmt., Dkt. No. 123 ¶¶ 5-9. Griffin then began
crying and promptly hung up the telephone. Dkt. No. 124-1 at
¶ 16. In a follow-up conversation, "Alexandra
Griffin" informed the officer that she went by the name
"Alexandra Simon." Id. When detectives
went to Alexandra Griffin/Simon's home at 444 Greene
Avenue in Brooklyn for an in-person meeting, they were
reportedly met with an "uncooperative person."
M;Def. 56.1 Stmt. ¶ 12.
ensued when investigators discovered that Alexandra
Griffin/Simon lived at a home registered to plaintiff,
Alexina Simon. Longobardi Dep. at 62. Only later
would investigators come to realize that Alexina Simon and
Alexandra Griffin/Simon shared a -, residence because they
were mother and daughter, and that the similarity of their
first names was a coincidence. At the time, however, the
similarity of the names and the shared address led
investigators to believe that Alexina Simon was, in fact, the
witness they were after. Id. at 60-62.
end, ADA Longobardi sought a material witness order and
material witness arrest warrant as to Alexina Simon. The
application, as required, set out the attempts that had been
made to get in contact with Alexina Simon, including the
aforementioned phone calls and subpoenas that had allegedly
been delivered to 444 Greene Avenue. Dkt. No. 124-2. The
application also described how ADA Longobardi had
"spoke[n] with someone who purported to be the witness
on the telephone[, ]" and that the witness conveyed that
she was not legally required to speak with the District
Attorney's Office, that, at this point, she believed to
be harassing her. Dkt. No. 124-2 at 4.
effort to end the recalcitrance of a perceived important
prosecution witness, on August 8, 2008, a material witness
order and material witness arrest warrant were issued for
Alexina Simon. Dkt. No. 127-14. In pertinent part, the
material witness arrest warrant provided that:
[ANY POLICE OFFICER IN THE STATE OF NEW YORK is], . . .
COMMANDED forthwith to take the above-named ALEXINA SIMON
into custody within the State of New York and bring her
before this Court in order that a proceeding may be conducted
to determine whether she is to be adjudged a material
Dkt. No 127-14 (capitalization in original). The parties do
not contest the fact that the order was sought in good faith.
Lee and Sergeant Alegre were tasked with executing this
warrant. Accordingly, on August 11, 2008, around 10:00 a.m.
or 11:00 a.m., they "arrested" plaintiff at her
place of employment and took her to the Queens County
Courthouse. Alegre Dep., Dkt. No. 127-4, at 116; Lee Dep.,
Dkt. No. 127-3, at 85-86, 87-88.
investigatory plan would soon unravel. At some point during
the questioning of Simon, it came to light that she was not
the witness whom they had originally sought. Though there is
not perfect clarity as to when and how on August 11 that
misidentification was revealed to each defendant, Detective
Lee and Sergeant Alegre appear to be the first to realize
that Simon was not the person they thought she was. Detective
Lee testified that, upon arriving at the courthouse to meet
with ADA Longobardi, Simon told Lee that "The person
you're looking for is my daughter[, ]" and that Lee
conveyed this information to Sergeant Alegre. Lee Dep. at 91;
see also Alegre Dep. at 141. Around the same time,
while questioning Simon in a hallway at the courthouse, ADA
Longobardi also realized that they "wanted [Simon's]
daughter and not her." Longobardi Dep. at 112.
Accordingly, Sergeant Alegre testified that the warrant was
never "executed." See Alegre Dep. at
148-49, 252-53, 255-56; Longobardi Dep. at 124-25. After
these events had unfolded, around noon, Detective Lee and
Sergeant Alegre, at the direction of ADA Longobardi, then
took an unrestrained Simon to their office, approximately
two-and-a-half blocks from the courthouse. Lee Dep. at 95;
Alegre Dep. at 156-57.
where the parties' accounts begin to diverge in
substantial ways. Detective Lee and Sergeant Alegre are in
significant agreement that Simon again spoke with ADA
Longobardi at their offices and that she was taken home soon,
i.e., at some point later that afternoon.
See Lee Dep. at 99, 102 (1:00 p.m.); Alegre Dep. at
165 (between 2:00 p.m. and 3:00 p.m.). Simon on the other
hand claims that she did not arrive home until after 8:00
that night. Simon. Dep. at 57.
this discrepancy, though, both sides agree that Simon
returned to the DA's offices on the following day, August
12. Simon contends, however, that, after the first day of
questioning concluded, she was told she had no choice but to
return the next day. Simon Dep. at 53. Defendants, on the
other hand, claim that Simon voluntarily agreed to return.
Longobardi Dep. at 120, 123-25; Lee Dep. at 113; Alegre Dep.
at 132. In sum, although there is no dispute that on August
12 the officers came in their car to Simon's home and
brought her back to their office, Simon claims that the
officers stated she had to "come to answer more
question[, ]" Simon Dep. at 67, whereas the officers
counter that they came to Simon's house purely as a
courtesy, in recognition of her having agreed to return with
her daughter, Longobardi Dep. at 120. In any case, it is
clear that Simon, without her daughter, accompanied Detective
Lee and Sergeant Alegre to their office once again. Simon
Dep. at 77; Lee Dep. at 135. The unrestrained Simon was
placed in a room (what Detective Lee described as the
"reception office"). Simon Dep. at 71-72; Lee Dep. at
135-36. Simon recalls being asked questions by the officers
as she waited, Simon Dep. at 72, but states that she could
not recall whether she spoke with ADA Longobardi that second
day - though she "could have." Simon Dep. at 74.
According to the officers and the prosecutor, however, at
some point, she was taken into an office to speak with ADA
Longobardi; at some time following her conversation with him,
she returned home. See Lee Dep. at 136; Alegre Dep.
at 203; Longobardi Dep. at 136. Simon claims that she was
kept for eight hours, even though ADA Longobardi stated that
he only spoke to Simon that day for "[m]aybe five
minutes." Longobardi Dep. at 136.
objective "'of § 1983 is to deter public
officials from violating citizens' federal rights and to
compensate victims of such official wrongdoing.'"
Aupperlee v. Coughlin,97 F.Supp.2d 336, 341
(E.D.N.Y. 2000) (quoting Weaver v. Brenner, 40 F.3d
527, 532 (2d Cir. 1994)). It is, conversely, well-established
that government officials performing "discretionary
functions" are entitled to invoke the doctrine of
qualified immunity when faced with a § 1983
action.Harlow v. Fitzgerald, 457 U.S.
800, 816-18, 102 S.Ct. 2727, 2737-38, 73 L.Ed.2d 396 (1982).
This doctrine shields government officials from liability
"insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a
reasonable person would have known, " Pearson v.
Callahan,555 U.S. 223, 231, 129 S.Ct. 808, 815, 172
L.Ed.2d 565 ...