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Ferebee v. City of New York

United States District Court, S.D. New York

July 6, 2017


          OPINION & ORDER


         On 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 dismissed.

         Plaintiff 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.[1] See ECF 21.

         Defendants move for summary judgment on all of Plaintiff s claims, pursuant to Fed.R.Civ.P. 56(a). See ECF 36.

         There 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.

         Defendants' motion for summary judgment is GRANTED.


         I. Relevant Facts

         a. Ms. Ferebee's Complaints

         On July 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.

         On 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.

         b. The Arrest

         On 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.

         Plaintiff 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.

         Thereafter, 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.

         c. The Tramadol

         Prior 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.

         d. Ferebee's Criminal Charges

         After 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.


         I. Legal Standard

         Summary 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).

         Courts 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 ...

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