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Ashley v. City of New York

United States District Court, E.D. New York

July 7, 2017



          NICHOLAS G. GARAUFIS United States District Judge.

         Plaintiff Dushanne Ashley brings this action pursuant to 42 U.S.C. § 1983 against Defendants the City of New York (the "City"), Sergeant Luke Denesopolis, Detectives Mike Civil and Jason Jones, and Police Officers Jane/John Doe(s) #1-10. (Am. Compl. (Dkt. 14).) Plaintiffs lawsuit arises from his arrest on April 19, 2013, and subsequent prosecution for criminal possession of marijuana. He asserts the following causes of action against Defendants: (1) false arrest; (2) malicious prosecution; (3) failure to intervene; (4) illegal strip search; (5) excessive pre-arraignment detention; and (6) denial of a fair trial.

         Defendants moved for summary judgment on all claims. (Defs. Mot. for Summ. J. ("Defs. Mot.") (Dkt. 39).) Plaintiff opposes Defendants' motion and cross-moves for partial summary judgment on his false arrest and denial of a fair trial claims. (Pl.Cross-Mot. for Summ. J. ("PI. Mot.") (Dkt. 43).) The court referred Defendants' motion for summary judgment ("Defendants' Motion") and Plaintiffs cross-motion for partial summary judgment ("Plaintiffs Motion" and together with Defendants' Motion, the "Cross-Motions") to Magistrate Judge Steven L. Gold for a Report and Recommendation ("R&R") pursuant to 28 U.S.C. \§ 636(b)(1)(B) and Federal Rule of Civil Procedure 72(b)(1). (Nov. 28, 2016, Order Referring Mot.) On April 17, 2017, Judge Gold issued an R&R, recommending that Defendants' Motion be granted in part and denied in part and that Plaintiffs Motion be denied. (R&R (Dkt. 59) at 2.) Plaintiff and Defendants each filed timely objections to the R&R. (Defs. Objs. to R&R ("Defs. Objs.") (Dkt. 64); Pl.Objs. to R&R ("PI. Objs.") (Dkt. 65).)

         For the following reasons, Plaintiff and Defendants' objections are OVERRULED. The R&R is ADOPTED IN FULL. Defendants' Motion is GRANTED IN PART and DENIED IN PART. Plaintiffs Motion is DENIED.

         I. BACKGROUND

         The court provides a short summary of the facts pertinent to the Cross-Motions for summary judgment.[1] Except as otherwise indicated, the facts in this section are not in dispute.

         On November 28, 2012, Plaintiff was arrested by Jones inside of 125 East 18th Street, Apartment 51, Brooklyn, New York (the "Apartment") for criminal possession of marijuana. (Defs. R. 56.1 Statement ("Defs. 56.1") (Dkt. 40) ¶ 6.) Civil was also present for the arrest. (Id. ¶ 8.) The criminal complaint for this arrest states that Plaintiff lives at the Apartment and "stays" in the living room. (Id. ¶ 9.) On the day of the arrest, a blow-up bed was present in the living room of the Apartment. (Id ¶ 10.)

         On December 13, 2012, Plaintiff was again arrested in the Apartment for criminal possession of marijuana. (Id. ¶¶ 13-14.) Although Civil was not the arresting officer, he was present for the arrest. (Id. ¶ 15.) The criminal complaint for this incident states that on December 28, 2012, Plaintiff resided at the Apartment. (Id. ¶ 16.)

         On April 19, 2013, Defendant Civil executed a search warrant at the Apartment.[2](Defs. 56.1 ¶ 20.) The search warrant listed the address of the Apartment and the name of one individual, Charles Patrick. (Pl.R. 56.1 Statement ("Pl.56.1") (Dkt. 44) ¶ 2.) Plaintiff was not named on the search warrant and alleges that he did not reside at the Apartment on April 19, 2013. (Id¶¶9, 13.)

         Upon entering the Apartment on April 19, 2013, Civil observed two individuals, Charles Patrick and Jose Carlos. (Defs. 56.1 ¶ 22.) During his search, Civil found 18 small plastic bags of marijuana in the living room of the Apartment. (Id ¶ 23.) Several of Plaintiff s possessions, including compact discs, a cat, and a dog, were in the Apartment. (Id ¶ 29.) Defendants allege that "due to his prior involvement with plaintiff and [the] [A]partment, " Civil "believed that the room where the marijuana was found was [Plaintiffs] room." (Id ¶ 24.) Plaintiff denies this allegation. (Pl.R. 56.1 Counter Statement ("Pl.56.1 Counter Statement") (Dkt. 45) ¶ 24.)

         Plaintiff was not present at the Apartment when the search was conducted but he arrived shortly thereafter while officers were still in the Apartment and was placed under arrest. (Defs. 56.1 ¶ 27-28, 32-33.) Plaintiff was then transported to the police precinct where he alleges he was subjected to a strip search. (Id. ¶ 34-35.) Plaintiff was in custody for approximately 35 hours following his arrest. (Id ¶ 38.)

         Plaintiff was charged in state court with Criminal Possession of Marijuana in the Fourth Degree, Criminal Possession of Marijuana in the Fifth Degree, and Unlawful Possession of Marijuana. (Id. ¶ 39.) The criminal complaint (the "Original Complaint"), which was signed by Civil, inaccurately stated that, at the time the marijuana was discovered, Civil observed Plaintiff and his co-defendant Carlos sitting in the room where the marijuana was recovered. (Id ¶ 40-42.) The prosecution filed a superseding information (the "Superseding Complaint") to correct this error. (Id. ¶ 43.) The Superseding Complaint included the same charges as the Original Complaint but stated that Plaintiff entered the Apartment only after the search was conducted and added that upon his arrival, Plaintiff made the following statement: "this is what happens when you let strange people into our apartment." (Id. ¶ 44.) Plaintiff denies having said this. (Pl.56.1 ¶ 27.) Plaintiff was required to make a number of court appearances in relation to the Original and Superseding Complaint. (Id ¶ 28-30.)

         On July 18, 2014, the charges stemming from Plaintiffs April 19, 2013, arrest were dismissed by the state court. (Defs. 56.1 ¶ 45.) Defendant asserts that the charges were dismissed due to "facial insufficiency" of the Superseding Complaint. (Id. ¶ 46.) Plaintiff counters that the charges were "dismissed on the merits" and in dismissing the charges, the state court just "happened to refer to the Superseding Criminal Court Complaint as facially insufficient." (PI. 56.1 Counter Statement ¶ 46.)


         A. Review of R&R

         In reviewing an R&R regarding a dispositive matter from a magistrate judge, the district court "may adopt those portions of the Report to which no objections have been made and which are not facially erroneous." Romero v. Bestcare Inc.. No. 15-CV-7397 (JS) (GRB), 2017 WL 1180518, at *2 (E.D.N.Y. Mar. 29, 2017) (internal citation omitted); see Impala v. U.S. Dep't of Justice, 670 F' App'x 32, 32 (2d Cir. 2016) (summary order) ("[F]ailure to object timely to a magistrate's report operates as a waiver of any further judicial review of the magistrate's decision ...." (internal citation omitted)); Gesualdi v. Mack Excavation & Trailer Serv.. Inc.. No. 09-CV-2502 (KAM) (JO), 2010 WL 985294, at *1 (E.D.N.Y. Mar. 15, 2010) ("Where no objection to the [R&R] has been filed, the district court need only satisfy itself that there is no clear error on the face of the record." (internal quotation marks and citation omitted)). "A decision is 'clearly erroneous' when the Court is, 'upon review of the entire record, left with the definite and firm conviction that a mistake has been committed.'" DiPilato v. 7-Eleven, Inc., 662 F.Supp.2d 333, 339-40 (S.D.N.Y. 2009) (quoting United States v. Snow, 462 F.3d 55, 72 (2d Cir. 2006)).

         The district court must review de novo "those portions of the report... to which objection is made." 28 U.S.C. § 636(b)(1). To obtain this de novo review, however, an objecting party "must point out the specific portions of the [R&R] that they are objecting to." Sleepy's LLC v. Select Comfort Wholesale Corp., 222 F.Supp.3d 169, 174 (E.D.N.Y. 2016); see also Fed. R. Civ. P. 72(b)(2) ("[A] party may serve and file specific written objections to the [R&R]."). If a party "makes only conclusory or general objections, or simply reiterates his original arguments, the Court reviews the [R&R] only for clear error." Pall Corp. v. Entegris, Inc., 249 F.R.D. 48, 51 (E.D.N.Y. 2008) (citations omitted); see also Mario v. P&C Food Mkts., Inc., 313 F.3d 758, 766 (2d Cir. 2002) (holding that plaintiffs objection to an R&R was "not specific enough" to "constitute an adequate objection under... Fed.R.Civ.P. 72(b)").

         B. Summary Judgment

         Summary judgment must be granted 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 'material' fact is one capable of influencing the case's outcome under governing substantive law, and a 'genuine' dispute is one as to which the evidence would permit a reasonable juror to find for the party opposing the motion." Figueroa v. Mazza. 825 F.3d 89, 98 (2d Cir. 2016) (citing Anderson v. Liberty Lobby. Inc.. 477 U.S. 242, 248 (1986)).

         The moving party bears the initial burden to show an absence of genuine factual dispute. See Adickes v. S.H. Kress & Co.. 398 U.S. 144, 157 (1970). Summary judgment will be granted if the opposing party then "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett. 477 U.S. 317, 322 (1986). To defeat summary judgment, the opposing party must do more than demonstrate "some metaphysical doubt as to the material facts, " Matsushita Elec. Indus. Co.. Ltd. v. Zanith Radio Corp.. 475 U.S. 574, 586 (1986), and may not rely on "conclusory allegations." Twin Labs.. Inc. v. Weider Health & Fitness. 900 F.2d 566, 568 (2d Cir. 1990); see Joseph v. N. Shore Univ. Hosp.. 473 F.App'x 34, 36 (2d Cir. 2012) (summary order) ("Conclusory allegations, conjecture, and speculation, ... are insufficient to create a genuine issue of fact." (quoting Shannon v. N.Y.City Transit Auth.. 332 F.3d 95, 99 (2d Cir. 2003)). "[T]he Court 'must construe the facts in the light most favorable to the non-moving party and must resolve all ambiguities and draw all reasonable inferences against the movant.'" Fireman's Fund Ins. Co. v. Great Am. Ins. Co. of N.Y., 822 F.3d 620, 631 n.12 (2d Cir. 2016) f quoting Beyer v. Ctv. of Nassau, 524 F.3d 160, 163 (2d Cir. 2008)).

         III. DISCUSSI

         ON In issuing his recommendations on the Cross-Motions, Judge Gold first considered Plaintiff's six claims against the individual Defendants one by one, and then separately addressed Plaintiff's claims for municipal liability. This decision is organized in the same manner.

         A. False Arrest

         1. Legal Standard

         Claims for false arrest under Section 1983 "are analyzed pursuant to the same standards as the applicable state law's false arrest tort." Nzegwu v. Friedman, 605 F.App'x 27, 29 (2d Cir. 2015) (summary order) (citing Jocks v. Tavernier. 316 F.3d 128, 134 (2d Cir. 2003)). To prevail on a false arrest claim under New York law, "a plaintiff must show that (1) the defendant intended to confine him, (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not consent to the confinement and (4) the confinement was not otherwise privileged." Id. (quoting Jocks, 316 F.3d at 134-35).

         "The existence of probable cause to arrest constitutes justification and is a complete defense to an action for false arrest." Gonzalez v. City of Schenectady, 728 F.3d 149, 155 (2d Cir. 2013) (quoting Wevant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996)). "Probable cause to arrest exists when the authorities have knowledge or reasonably trustworthy information sufficient to warrant a person of reasonable caution in the belief that an offense has been committed by the person to be arrested." Schwartz v. Marcantonatos, 567 F.App'x 20, 22 (2d Cir. 2014) (summary order) (quoting Lennon v. Miller, 66 F.3d 416, 424 (2d Cir. 1995)). "The question of whether or not probable cause existed may be determinable as a matter of law if there is no dispute as to the pertinent events and the knowledge of the officers." Wevant, 101F.3dat852.

         Moreover, "under both New York and federal law, summary judgment dismissing a plaintiffs false arrest claim is appropriate if the undisputed facts indicate that the arresting officer's probable cause determination was objectively reasonable, " entitling an officer to qualified immunity. Jenkins v. City of N.Y., 478 F.3d 76, 87-88 (2d Cir. 2007). "An officer's determination is objectively reasonable if there was 'arguable' probable cause at the time of arrest-that is, if 'officers of reasonable competence could disagree on whether the probable cause test was met.'" Id. at 87 (quoting Lennon v. Miller. 66 F.3d 416, 423-24 (2d Cir. 2005)).

         A person is guilty of criminal possession of marijuana in the fourth degree when he "knowingly and unlawfully possesses" more than two ounces of marijuana. N.Y. Penal Law § 221.15. A person is guilty of criminal possession of marijuana in the fifth degree when he "knowingly and unlawfully possesses" more than 25 grams of marijuana. Id. § 221.10. Finally, a person is guilty of the lesser charge of unlawful possession of marijuana when he "knowingly and unlawfully possesses" marijuana. Id. § 221.05. To "possess" marijuana means to "have physical possession or otherwise exercise dominion or control" over the marijuana. Id. § 10.00(8). Knowing possession of marijuana (or other contraband) can be inferred where an individual has "dominion or control" over the area where the drugs are found. Chalmers v. Mitchell. 73 F.3d 1262, 1272 (2d Cir. 1996) (discussing N.Y. Penal Law § 10.00(8)).

         2. Analysis

         Plaintiff and Defendants have each moved for summary judgment on Plaintiffs false arrest claim. (See Defs. Mem. in Supp. of Defs. Mot. ("Defs. Mem.") (Dkt. 42) at 5-12; PI. Mem. in Supp. of PI. Mot. and in Opp'n to Defs. Mot. (Dkt. 46) ("PI. Mem.") ¶¶ 11-15.) Judge Gold determined that there was probable cause for Plaintiffs arrest and therefore recommends that the court grant summary judgment in favor of Defendants on this count. (R&R at 8-9.) He noted that even if the court were to find that there was not probable cause to arrest Plaintiff, the individual Defendants would be entitled to qualified immunity because there was at least arguable probable cause to make the arrest. (Id. at 11.)

         Plaintiff objects to this portion of the R&R, arguing that there is a genuine dispute of material fact as to whether the arresting officer, Civil, was "in possession of sufficient facts which would lead a reasonable police officer to believe there was probable cause to arrest Plaintiff." (PI. Objs. at 7.) In Plaintiffs view, Judge Gold "engaged in improper and unfounded judicial-fact finding in favor of the [Defendants]" where he attributed knowledge of certain facts to Civil. Id. at 8.)

         The court reviews this portion of the R&R de novo. See 28 U.S.C. § 636(b)(1). The relevant question is whether there exists a genuine dispute of material fact as to what Civil knew at the time of the arrest. At his deposition, Civil testified that on April 19, 2013, he recovered drugs from Plaintiffs room in the Apartment. (See Ex. 1 to Zelman Decl. in Supp. of PI. Objs. ("Civil Dep. Tr.") (Dkt. 66-1) 20:21-24.) Civil explained that he knew the room was Plaintiffs because (1) he had arrested Plaintiff in that room on two prior occasions and Plaintiff had been "sleeping in the bed both times"; (2) he knew the "whole setup of [Plaintiffs] room"; and (3) Plaintiffs possessions, including his clothes, weights, Aero bed, and a "picture of him and a girl" were in the room. (Id. 46:10-47:8, 71:4-22.) Based on these facts, the court finds that it was reasonable for Civil to conclude that Plaintiff exercised dominion and control over the area where the marijuana was found and, accordingly, that there was probable cause to believe that Plaintiff constructively possessed the marijuana. See Chalmers, 73 F.3d at 1272.

         Plaintiff challenges the veracity of Civil's testimony, arguing that: (1) Civil could not recall "a litany of obvious facts" concerning the April 19, 2013, arrest; and (2) the Original Complaint, which was signed by Civil, contained false allegations against Plaintiff.[3] (See PI. Objs. at 6.) Plaintiff argues that "[b]ased on these undisputed facts alone, a jury would be entitled to find Civil's testimony incredible, and disregard CiviPs professed recollections about Plaintiffs belongings being inside the apartment." (Id. at 7.)

         The court finds that Plaintiffs attack on Civil's credibility does not create a genuine dispute of material fact sufficient to defeat summary judgment. "Broad, conclusory attacks on the credibility of a witness will not, by themselves, present questions of material fact." Island Software and Comput Serv.. Inc. v. Microsoft Corp..413 F.3d 257, 261 (2d Cir. 2005). If a defendant "has made a properly supported [summary judgment] motion, the plaintiff may not respond simply with general attacks upon the defendant's credibility, but rather must identify affirmative evidence from which a jury could find that the plaintiff has carried his or her burden." Crawford-El v. Britton,523 U.S. 574, 600 (1998) (emphasis added); seeMcCullough v. ...

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