United States District Court, E.D. New York
OPINION AND ORDER
GERSHON United States District Judge.
James Walker brings this action pursuant to 42 U.S.C. §
1983, alleging that defendant NYPD Sergeant Jose Capella,
along with Police Officers Stephen Perananda and Vermeil
Avenger, violated his Fourth Amendment right to remain free
of unreasonable search and seizure when they arrested him
without probable cause. Plaintiff also alleges that Police
Officer Jarrett Dill failed to intervene to prevent his
unlawful arrest. Defendants move for summary judgment on all
claims. For the reasons set forth below, defendants'
motion is granted. Defendants' unopposed motion to file
under seal is granted, but defendants are directed to file
redacted versions of the papers on this motion on the public
as otherwise noted, the facts are undisputed. A complaining
victim called the police at about 9:55 a.m. on
April 22, 2014, to report that he had been chased by two
individuals with guns. The complainant testified at his
deposition that, when an officer arrived at his apartment, he
told the officer, "James Walker pulled a gun on me and
told me he was going to kill me." The complainant also
pointed out his fifth-floor window to an individual outside
on the street who he believed to be James Walker. When the
Police Officer stuck his head out the window to see the
individual the complainant had pointed out, the individual
started walking away.
Avenger testified that, when she arrived at the
complainant's apartment, the complainant informed her
that Walker-who the complainant identified by name-and
another perpetrator menaced him with a gun. The complainant
described Walker as a black male, heavy set. After the
complainant gave his description, Sergeant Capella arrived on
the scene accompanied by his driver, Officer Penaranda.
Officer Avenger briefed Sergeant Capella on the incident, and
the complainant, who was looking out the window, stated that
he saw Walker and the other perpetrator. Officer Avenger went
over to the window and saw plaintiff walking away from the
complainant's housing development, and saw another
individual who she assumed to be the other perpetrator
walking back toward the development.
Capella then put out a description over the radio so that
other officers in the area could canvass for the perpetrator.
It is undisputed that the description that went out over the
radio was that of a black, heavyset man wearing a green
baseball cap with a yellow brim, who had fled toward a
particular intersection. The Officers testified that this was
consistent with the description given to them by the
complainant-that Walker weighed between 300 and 350 pounds,
had his hair in dreadlocks, and was wearing a green and
yellow hat. At his deposition, the complainant testified that
the perpetrator had been wearing a green and red hat.
minutes later, a call came over the radio stating that an
individual fitting the description Sergeant Capella had
provided had been stopped at the intersection. Sergeant
Capella and Officer Penaranda accompanied the complainant to
the intersection in their vehicle. When they reached the
intersection, Sergeant Capella instructed the complainant to
look at the person who had been stopped and inform him if
that was the person who had chased after him with a gun. The
complainant identified plaintiff as the person who had chased
after him with a gun. Sergeant Capella radioed that the
complainant had identified the person who had been stopped as
the perpetrator, and the non-party officers who stopped the
plaintiff placed him under arrest. Officer Avenger was not
one of those officers; she was still on her way to the
intersection at the time the identification was made. It is
undisputed that no gun was recovered from plaintiff or the
plaintiff had been arrested, Officer Avenger reviewed camera
footage from the housing development where the incident had
allegedly taken place. The camera footage showed plaintiff
and another individual sitting in front of the
complainant's building, but did not show any interaction
between plaintiff and the complainant, nor was it apparent
from the video that plaintiff was in possession of a firearm.
Additionally, the arrest report indicated that plaintiff
lived in that housing development as well.
plaintiffs arrest, the complainant was taken to a precinct
where he was re-interviewed by defendant Officer Jarrett
Dill, who completed the paperwork for plaintiffs arrest based
on the information provided by the complainant, including
that plaintiff had menaced him with a gun and threatened to
kill him. It was Officer Dill who swore out the criminal
complaint against plaintiff charging plaintiff with Menacing
in the Second Degree, NY Pen. L. § 265.01; Menacing in
the Third Degree, NY Pen. L. § 240.26(1), Criminal
Possession of a Weapon in the Fourth Degree, NY Pen. L §
120.15, and Harassment in the Second Degree, NY Pen. L §
240.26. The criminal complaint states that the complainant
informed Officer Dill that on April 22, 2014, plaintiff and
another individual chased after him, while lifting their
shirts to display what appeared to be firearms in their
respective waistbands. Nothing in the criminal complaint
appears to be based on any first-hand observations by Officer
Dill, who was never at the scene of plaintiff s arrest and
did not meet plaintiff until plaintiff had already been
arrested, handcuffed, transported to the precinct, searched,
and placed in a holding cell. Plaintiffs allegation of
wrongdoing against Officer Dill is based on the fact that
Officer Dill was aware, when he completed plaintiffs arrest
paperwork, that the video check had been negative, meaning
that the video cameras in the housing development had not
captured the incident.
was prosecuted until January 20, 2015, when all the criminal
charges were dismissed. He subsequently filed this action.
Summary Judgment Standard
are entitled to summary judgment only if "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); Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). Only disputes relating to material facts-i.e.,
"facts that might affect the outcome of the suit under
the governing law"-will properly preclude the entry of
summary judgment. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). An issue of fact is
"genuine" if "the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party." Anderson, 477 U.S. at 248.
moving party bears the burden of demonstrating "the
absence of a genuine issue of material fact."
Celotex, 477 U.S. at 323. Once the moving party has
asserted facts showing that the non-movant's claims
cannot be sustained, the nonmoving party must "come
forward with specific facts showing that there is a genuine
issue for trial." Matsushita Electric Ind. Co., LTD.
v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)
(internal quotation marks omitted).
determining whether to grant summary judgment, the court must
"construe all evidence in the light most favorable to
the nonmoving party, drawing all inferences and resolving all
ambiguities in its favor." Dicker son v.
Napolitano,604 F.3d 732, 740 (2d Cir.2010). However,
"[t]he mere existence of a scintilla of evidence in
support of the plaintiffs position will be insufficient;
there must be ...