United States District Court, S.D. New York
OPINION & ORDER
HONORABLE PAUL A. CROTTY, UNITED STATES DISTRICT JUDGE
September 8, 2014, Plaintiff ROBERT FEREBEE ("Plaintiff
or "Ferebee") was arrested in front of the
45th Precinct stationhouse in the Bronx, NY for
violating an order of protection ("OOP"). During
the search incident to arrest, the arresting officers found
loose Tramadol pills in his pocket. Ferebee had twice
violated the OOP directing him to stay away from his mother
and her home, and Officer Cruz and Sergeant Rosario
(together, the "Officers") state that these
violations and the resultant open complaints were the basis
for making the arrest. Plaintiff was detained for less than
24 hours, during which time he was twice taken to the
hospital for hernia-related pain. The Bronx District Attorney
("DA") declined to prosecute Plaintiff for the OOP
violations; but charged him with criminal possession of a
controlled substance ("CPCS") under New York Penal
Law 220.03. On November 14, 2014, the CPCS charges were
filed this 42 U.S.C § 1983 action on March 12, 2015
against the City of New York, Officer Cruz, and Sergeant
Rosario ("Defendants"), alleging False Arrest
(Count I), Malicious Prosecution (Count H), Denial of Fair
Trial (Count III), Failure to Intervene (Count IV), Illegal
Search (Count V), Excessive Force (Count VI), Excessive
Pre-Arraignment Detention (Count VII), and Monell
Claims. See ECF 21.
move for summary judgment on all of Plaintiff s claims,
pursuant to Fed.R.Civ.P. 56(a). See ECF 36.
is no genuine dispute of material fact with regard to any of
Plaintiffs claims. Counts I and V fail because the Officers
had probable cause to arrest Ferebee for violating the OOP:
Sergeant Rosario signed off on the Domestic Incident Reports
relating to these violations, and thus had knowledge that
Plaintiff had committed a crime, giving her valid cause to
arrest and conduct a search incident to arrest. Similarly,
Count II fails because there was probable cause to charge
Plaintiff with CPCS, as he literally violated Public Health
Law § 3345 by carrying a controlled substance outside
its original container in excess of "current use."
Even without probable cause, Count II would still fail for
lack of any evidence demonstrating malice. The Officers did
not initiate the proceeding; the Bronx DA did. Plaintiffs
denial of fair trial claim (Count III) is based on the theory
that Officer Cruz withheld information regarding Plaintiffs
Tramadol prescription. The claim fails because possession of
a valid prescription is irrelevant under Public Health Law
§ 3345; and regardless, Plaintiff could have produced
the prescription at trial, negating the effect of the alleged
withholding. Count VI fails because hospital records, made on
two separate occasions while Ferebee's arrest was
processed, indicate that Plaintiff suffered no injury from
his arrest, and Plaintiff admits as much. Count VII fails
because Plaintiff was detained for less than 24 hours, and
any delay in his arraignment was caused by the Officers
taking Plaintiff to the hospital in response to his
complaints of pain. Count IV and the Monell Claims
fail because no constitutional violation occurred.
motion for summary judgment is GRANTED.
21, 2014, the Bronx County Criminal Court entered an order of
protection directing Robert Ferebee to "Stay away from
[his mother]" and from her home. Def. 56.1 ¶ 2. The
order provided, inter alia, that "YOUR FAILURE
TO OBEY THIS ORDER MAY SUBJECT YOU TO MANDATORY ARREST AND
CRIMINAL PROSECUTION." Id. ¶ 3. The OOP
was effective from July 21, 2014, until and including
September 10, 2014. Id., ¶ 4. Plaintiff was aware of the
order. Id. ¶ 5.
August 18, 2014, Plaintiffs mother, Ms. Ferebee, called the
police and complained that Plaintiff was at her apartment;
and asked for help in getting him to leave. Id.
¶ 6. The police responded, but Plaintiff had already
left. Def. Exs. E-F. On September 1, 2014, Plaintiffs mother
called the police again to complain that Plaintiff had
entered her home, taken $100 from her pockctbook, and run
out. LL ¶ 8. Officers again went to Ms. Ferebee's
home, but Ferebee had already left. Def. Exs. H-I. The
responding officers filed Complaint Reports and Domestic
Incident Reports for both violations. Id.; Def. Exs.
E-I. Sergeant Rosario ("Sgt. Rosario") signed off
on both Domestic Incident Reports. Def. Ex. F at 2; Def. Ex.
1 at 3. Both visitations constituted OOP violations. Def. Ex.
C. This was not a novel experience: Ms. Ferebee had made
numerous police complaints about her son before, and Sgt.
Rosario had been to her apartment more than 10 times to
respond. Pl. Ex. D at 24-25. Officer Cruz ("P.O.
Cruz") also visited Ms. Ferebee's apartment multiple
times after (and in response to) the September 1st
complaint. Pl. Ex. Cat 25-27.
September 8, 2014, Plaintiff and his mother visited the
45th Precinct stationhouse to file a harassment
complaint against P.O. Cruz because he "kept popping up
in the house." Def. 56.1 ¶ 10; PL Ex. A. at 22-23.
Plaintiff stepped out to smoke a cigarette. Def. 56.1 ¶
15. As Plaintiff walked in front of the precinct, Sgt.
Rosario and P.O. Cruz spotted Plaintiff and arrested him
based on the open complaints for his violation of the OOP
("the Open Complaints"). Id. ¶¶
16, 18-19; Pl. Ex. C. at 38; Pl. Ex. D. at 45-46. Sgt.
Rosario directed P.O. Cruz to "cuff him, " and P.O.
Cruz did so. Def. 56.1 ¶¶ 17, 20.
claims that after P.O. Cruz handcuffed his arms behind his
back, he lifted Plaintiffs arms "way up above his
head" for a search, Pl. Ex. A. at 90, "like he was
trying to make a point." Pl. Ex. A. at 90, 93; Def. 56.1
¶ 24. Plaintiff was not hit, punched, or kicked, nor did
he sustain any physical injuries during the arrest. Def. 56.1
¶¶ 26-27. During the search incident to the arrest,
P.O. Cruz found Tramadol pills loose in Plaintiffs pants
pocket. Id. ¶ 31. P.O. Cruz confiscated the
pills, and sent them to the lab for testing. Id.,
¶¶ 33-34. Plaintiffs handcuffs were removed and he
was placed in a cell, Id. ¶ 36.
Plaintiff claimed he was in pain and was taken to Jacobi
Hospital at 1:00 P.M. Id. ¶ 37. On September 8,
2014, Plaintiff was in the hospital from 2:39 P.M. to 5:49
P.M. Id. ¶ 38. He was returned to the
stationhouse at 6:30 P.M.; and taken to Bronx Central Booking
("BCB") at 10:16 P.M. Id. ¶¶
39-40. Plaintiff again complained of pain, and was taken to
Jacobi Hospital at 12:15 A.M., where he stayed from 1:14 A.M.
to 5:15 A.M. Id. ¶¶ 41-42. Plaintiff was
returned to BCB, processed, and arraigned at 12:33 P.M.
Id. ¶¶44, 48. During both hospital visits,
Plaintiff was treated for complaints of pain regarding his
hernia. Pl. Ex. A. 58-60; Def. Exs. R. at 1-2. From
Plaintiffs arrest at 12:55 P.M. on September 8, 2014 until
his release after arraignment at 12:33 P.M. on September 9,
2014, Plaintiff was detained for just under 24 hours.
Id. ¶ 52.
to September 8, 2014, Plaintiff had a prescription for
Tramadol for his hernia pain. Id. ¶¶ 13,
43. Tramadol is an opioid pain medication, with high risk of
addiction, and is a Schedule IV controlled substance.
Id. ¶ 14; Opioid Data Analysis, Ctrs.
for Disease Control and Prevention,
(last updated Feb. 9, 2017). Plaintiffs prescription
provides, as written on the pill bottle label: "[t]ake
one tablet by mouth every 12 hours as needed for pain."
Def. Ex. J; Def. 56.1 ¶ 13. Plaintiff claims that he had
one and one-half pills loose in his pocket at the time of his
arrest. Def. 56.1 ¶ 12. P.O. Cruz claims he found three
full pills and one partial pill loose in Plaintiffs pants
pocket. Id. ¶ 33. P.O. Cruz contemporaneously
vouchered the pills. Def. Exs. N, O. Lab testing required
destructive testing of one pill, leaving 2.5 pills intact.
Def. Ex. O; Def. 56.1 ¶¶ 34-35. These remaining
pills were photographed, inventoried, and vouchered into
evidence storage. Def. Ex. P.
Ferebee's Criminal Charges
the arrest, P.O. Cruz spoke to the assistant district
attorney ("ADA") about Plaintiffs OOP violation.
Def. 56.1 ¶ 45. P.O. Cruz gave the ADA the arrest
paperwork, the transcript of Plaintiff s mother's 911
calls, and the report detailing the Open Complaints, hi Sgt.
Rosario was not involved with Plaintiffs prosecution.
Id. ¶ 47. The DA declined to prosecute
Plaintiff for the OOP violations, Id. ¶ 46, but
arraigned him on criminal charges of CPCS in the seventh
degree, in violation of N.Y.P.L. 220.03. Id. ¶
48. On September 9, 2014, Plaintiff was released on his own
recognizance after arraignment. Id. ¶50. On
November 14, 2014, the criminal charges were dismissed.
Id. ¶ 51. On March 12, 2015 Plaintiff filed the
complaint in this action. Id. ¶ 53.
judgment is appropriate when "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). A fact
is material if it "might affect the outcome of the suit
under governing law." Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). The moving party must
first present evidence on each material element of his claim
or defense, showing that he is entitled to relief as a matter
of law. Vt, Teddy Bear Co., Inc. v. 1-800 Beargram
Co.. 373 F.3d 241, 244 (2d Cir. 2004). If the moving
party meets this burden, the opposing party "must set
forth specific facts showing that there is a genuine issue
for trial." Anderson, 477 U.S. at 250. The
non-movant "may not rely on conclusory allegations or
unsubstantiated speculation" to raise a triable issue of
fact. FDIC v. Great Am. Ins. Co., 607 F.3d 288, 292
(2d Cir. 2010). The court resolves all ambiguities and draws
all factual inferences in favor of the non-movant "only
if there is a 'genuine7 dispute as to those facts."
Scott v. Harris. 550 U.S. 372, 380 (2007).
"Where the record taken as a whole could not lead a
rational trier of fact to find for the nonmoving party, there
is no 'genuine issue for trial.'" Matsushita
Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S.
574, 586-87 (1986) (citation omitted).
considering summary judgment motions in the false arrest or
malicious prosecution contexts must resolve any disputes
about what information the officer knew at the time in favor
of the non-movant, but must neutrally determine whether that
information gave rise to probable cause. Benn v.
Kissane, 510 Fed.Appx. 34, 37 (2d Cir. 2013). When
opposing parties tell two different stories, one of which is
"blatantly contradicted" by the record such that no