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Blue v. City of New York

United States District Court, S.D. New York

March 1, 2018

ANTHONY BLUE, Plaintiff,

          Anthony Blue Pro se Plaintff Katherine Abigail Byrns Nana Kwame Sarpong New York City Law Department New York, New York Counsel for Defendants

          OPINION & ORDER

          VERNON S. BRODERICK, United States District Judge

         Plaintiff Anthony Blue brought this pro se action on September 26, 2014, alleging violations of 42 U.S.C. § 1983. (Doc. 1.) Before me is Defendants City of New York, Sergeant Jolt Mena, Detective Andre Williams, Detective Adam Tegan, and Police Officer Steven Vagnini's (“Movants”) motion for summary judgment on each of the causes of action in Plaintiff's Second Amended Complaint. (Doc. 67.)

         Because I find that a genuine issue of material fact exists with respect to whether Mena and Williams were personally involved in Plaintiffs alleged unlawful strip search, Movants' motion for summary judgment is DENIED with respect to the § 1983 claims brought against Mena and Williams based on the strip search. I GRANT Movants' motion for summary judgment with respect to all other claims. The claims against Defendants Detective Robert Yarborough, Detective Michael Morales, Detective Robert Delbusto, and Detective Denny Acosta (“Additional Defendants”), other than the malicious prosecution claim resulting from Plaintiffs arrest on August 31, 2012, are dismissed on statute of limitations grounds, and Movants' motion is GRANTED with respect to those claims. Because I find that Movants have established that no genuine dispute exists as to any material fact regarding Plaintiffs other federal claims, including the remaining malicious prosecution claim, and because I find that Plaintiff failed to timely bring his pendent state law claims, Movants' motion for summary judgment is GRANTED as to the other causes of action.

         I. Rule 56.1 Statements

         Local Civil Rule 56.1 provides that statements and counterstatements filed in support of or opposing summary judgment should be “short and concise statement[s], in numbered paragraphs, of the material facts” about which the parties contend there is or is not a “genuine issue to be tried.” S.D.N.Y. Local Civ. R 56.1(a). “The purpose of Local Rule 56.1 is to streamline the consideration of summary judgment motions by freeing district courts from the need to hunt through voluminous records without guidance from the parties.” Holtz v. Rockefeller & Co., 258 F.3d 62, 74 (2d Cir. 2001). “Statements in an affidavit or Rule 56.1 statement are inappropriate if they are not based on personal knowledge, contain inadmissible hearsay, are conclusory or argumentative, or do not cite to supporting evidence.” Epstein v. Kemper Ins. Cos., 210 F.Supp.2d 308, 314 (S.D.N.Y. 2002). A court may either disregard or strike portions of a Rule 56.1 statement that violate these principles. Holtz, 258 F.3d at 73.

         Plaintiff's reply to Movants' Rule 56.1 statement primarily relies on Plaintiff's Second Amended Complaint, filed after Plaintiff was deposed and after I conducted the pre-motion conference related to Movants' summary judgment motion. (See generally Pl.'s Reply 56.1.)[1]Certain of Plaintiff's responses in his reply to Movants' Rule 56.1 statement rely exclusively on the allegations in the Second Amended Complaint as the basis for Plaintiff's disagreement with Movants' assertions. (See Id. ¶¶ 3-4, 6-8, 10). In other instances, Plaintiff's responses to Movants' factual assertions are not based on evidence in the record, but on a “reason to believe” in the falsity of those assertions or other conclusory phrases. (See, e.g., id. ¶¶ 11-12.) In other paragraphs, Plaintiff fails to cite to any documents, testimony, or other evidence in the record to support his responses to Movants' Rule 56.1 statement. (See Id. ¶¶ 18-21.)

         A genuine dispute of fact does not exist merely because a litigant makes conclusory allegations to raise a dispute, particularly if the underlying record evidence contradicts the litigant's assertion. See BellSouth Telecomms., Inc. v. W.R. Grace & Co., 77 F.3d 603, 615 (2d Cir. 1996) (stating that an opposing party cannot defeat summary judgment by “merely . . . assert[ing] a conclusion without supplying supporting arguments or facts” (quoting SEC v. Research Automation Corp., 585 F.2d 31, 33 (2d Cir. 1978))). Moreover, it is well-established in the Second Circuit that “factual allegations that might otherwise defeat a motion for summary judgment will not be permitted to do so when they are made for the first time in the plaintiff's affidavit opposing summary judgment and that affidavit contradicts [his] own prior deposition testimony.” Brown v. Henderson, 257 F.3d 246, 252 (2d Cir. 2001); see also Forde v. Beth Isr. Med. Ctr., 546 F.Supp.2d 142, 151 n.11 (S.D.N.Y. 2008) (stating that a plaintiff cannot “create an issue of fact by disputing her own prior sworn testimony”). This is particularly the case where the sworn deposition testimony concerns facts that are at the core of a plaintiff s claim. In accordance with this basic rule, “allegations are not ‘deemed true simply by virtue of their assertion in the Local Rule 56.1 statement.'” FTC v. Med. Billers Network, Inc., 543 F.Supp.2d 283, 302 (S.D.N.Y. 2008) (quoting Holtz, 258 F.3d at 73); see also Holtz, 258 F.3d at 74 (“Allowing a Local Rule 56.1 statement to substitute for the admissibility requirement set forth in Fed.R.Civ.P. 56(e) ‘would be tantamount to the tail wagging the dog.'” (quoting Rivera v. Natl R.R. Passenger Corp., 152 F.R.D. 479, 484 (S.D.N.Y. 1993))).

         As such, I disregard allegations that are “not accompanied by citation to admissible evidence, ” where “the cited evidence does not support the allegation, ” and where allegations rested on portions of the Second Amended Complaint that are contradicted by Plaintiffs own sworn deposition testimony. See Med. Billers Network, 543 F.Supp.2d at 302.

         II. Background[2]

         On August 27, 2012, Plaintiff and his codefendant were arrested and taken to the 33rd Precinct of the New York City Police Department (“August 27 Arrest”). (See Defs.' 56.1 ¶¶ 1-2; Pl.'s Reply 56.1 ¶¶ 1-2.)[3] It appears from the record, although it is not entirely clear, that Plaintiff was initially arrested for trespassing in violation of New York Penal Law § 140.15, and later charged with burglary in the third degree in violation of New York Penal Law § 140.20. (See Byrns Decl. Ex. C; Blue Decl. Exs. B, K.)[4] When the officers attempted to place Plaintiff in the patrol car, he “was protesting, ” “slow walking, ” and “a little pulling back.” (Defs.' 56.1 ¶ 3.) The parties dispute whether it was just Yarborough or both Yarborough and Vagnini who placed Plaintiff in the patrol car, but Plaintiff's deposition testimony-which is admittedly unclear and to which Defendants cite-supports Plaintiff's assertion that both Yarborough and Vagnini were involved.[5] (See Byrns Decl. Ex. D; but see Blue Decl. Ex. K, at 89:18-21.) Thereafter, either Yarborough or Vagnini “threw” Plaintiff in the police car, (Byrns Decl. Ex. D, at 79:23), or otherwise “had to push [him] a little bit to get [him] in the car, ” and ultimately placed Plaintiff in the police car by “put[ting his] hand on [Plaintiff's] head, [and] push[ing Plaintiff] down and . . . in the car, ” (Defs.' 56.1 ¶ 4). This “pushing” was the only force used in the arrest. (Defs.' 56.1 ¶ 5; Pl.'s Reply 56.1 ¶ 5.) During his deposition-when asked whether any force was used while he was being arrested-Plaintiff stated that “[o]utside of [him] being pushed in the car, ” no other force was used. (Byrns Decl. Ex. D, at 89:24-90:1.)

         Notwithstanding the fact that he had stated at his deposition that “push[ing]” was the only force used, (id. at 90:1), Plaintiff claimed that the physical injuries suffered as a result of the arrest were “cuffs being too tight and my wrists being bruised up, ” (Defs.' 56.1 ¶ 6; Byrns Decl. Ex. D, at 107:17-20). Plaintiff did not mention any other injuries during his deposition.[6]

         Vagnini and another officer transported Plaintiff to the precinct, and thereafter Plaintiff did not interact any further with Vagnini. (Defs.' 56.1 8; Byrns Decl. Ex. D, at 82:10-23.) Upon arriving at the precinct, Yarborough alone strip-searched Plaintiff. (Defs.' 56.1 ¶¶ 9-10; Byrns Decl. Ex. D, at 81:21-82:9, 93:1-20.) It is disputed whether Mena and Williams were also present and observed the strip search. (Compare Defs.' 56.1 ¶¶ 9-10 with Pl.'s Reply 56.1 ¶¶ 9-10; see also Byrns Decl. Ex. D, at 81:21-82:6 (referencing both Williams and Mena at the scene); Blue Decl. Ex. J, at 27:13-14 (stating that Williams “began the process to arrest and to interview”); Blue Decl. Ex. K, at 85:23-86:2 (stating that Mena did not search Plaintiff but that another officer “search[ed] his person”).)

         A search warrant for Plaintiff's apartment, as well as a search warrant for Plaintiff's vehicle, was issued on August 28, 2012. (Defs.' 56.1 ¶¶ 11-12.) Williams executed the warrant for the vehicle the same day it was obtained. (Blue Decl. Ex. J, at 29:1-7.) With respect to the warrant for Plaintiff's apartment, it is not clear from the record when it was executed, but the record is clear that the search of Plaintiff's apartment occurred soon after the warrant was obtained. (See Byrns Decl. Ex. E; Blue Decl. Ex. J, at 29:14-30:9.) Plaintiff asserts that the warrants were both falsified, and bases his claim on his assumption that Williams “made a whole bunch of allegations that weren't true.” (Defs.' 56.1 13; Pl.'s Reply 56.1 13.)

         The charges against Plaintiff resulting from the August 27 Arrest were ultimately dismissed on March 13, 2013. (Defs.' 56.1 14; Pl.'s Reply 56.1 14.) Plaintiff was also arrested for possession of stolen property in the fourth degree under New York Penal Law § 165.45 on August 31, 2012 (“August 31 Arrest”), and these charges were dismissed on September 11, 2014. (Pl.'s Reply 56.1 ¶¶ 14, 21; Blue Decl. Exs. D, E.)

         However, on June 12, 2013, Plaintiff was arrested for burglary in the second degree, and was later indicted on that same charge (“June 12 Arrest”). (Defs.' 56.1 ¶¶ 15-16; Pl.'s Reply 56.1 ¶¶ 15-16.) During the proceedings held in connection with the June 12 Arrest, Plaintiff challenged the admissibility of evidence seized from him during the August 27 Arrest, and a hearing was held pursuant to Dunaway v. New York, 442 U.S. 200 (1979), and Mapp v. Ohio, 367 U.S. 643 (1961) (“Suppression Hearing”) on March 20, 2014, with regard to the evidence recovered from Plaintiff at the time of the August 27 Arrest.[7] (Defs.' 56.1 ¶ 17; Pl.'s Reply 56.1 ¶ 17; Byrns Decl. Ex. I.) Following the Suppression Hearing, Justice Bruce Allen held that because (1) Mena had seen Plaintiff and his former codefendant, Carnona Puello, together; (2) Plaintiff matched the description on a wanted poster; (3) Plaintiff and Puello had given false and evasive answers in connection with the August 27 Arrest; and (4) Puello was carrying certain items used in a recent string of neighborhood burglaries, there were sufficient facts to give Mena probable cause to arrest both Plaintiff and Puello on August 27. (Defs.' 56.1 ¶ 18; Byrns Decl. Ex. I.)[8] Therefore, Justice Allen found that Mena was “justified in approaching [Plaintiff] and asking pointed questions, ” that Plaintiff did not have standing to challenge the search, and the evidence seized from Plaintiff during the August 27 Arrest was found pursuant to a valid search incident to Plaintiff's arrest. (Byrns Decl. Ex. I, at 3-4.)

         In connection with the June 12 Arrest, on October 15, 2015, Plaintiff was convicted of five counts of burglary in the second degree. (Defs.' 56.1 19; Pl.'s Reply 56.1 ¶ 19.) On November 12, 2015, Plaintiff filed a notice of appeal related to his burglary convictions with the Appellate Division of the Supreme Court, First Judicial Department. (Defs.' 56.1 20; Pl.'s Reply 56.1 20.) On March 15, 2017, the Appellate Division of the Supreme Court, First Judicial Department, denied Plaintiffs appeal. See People v. Blue, courts/ad1/calendar/appsmots/2017/March/ 20170315mot.pdf.

         Separately, with respect to the August 27 Arrest and June 12 Arrest, Plaintiff submitted a notice of intention to file a claim against the City of New York, dated November 2, 2013, to the Office of the Comptroller of the City of New York. (See Blue Decl. Ex. G.) The case related to the June 12 Arrest was still pending when Plaintiff submitted his notice.

         III. Procedural History

         Plaintiff commenced this action by filing his complaint on September 26, 2014, alleging claims under 42 U.S.C. § 1983 to remedy the deprivation of his rights under the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, and requesting that the Court order the dismissal of a New York County indictment against him and release him from custody (“Complaint”). (Doc. 1.) Plaintiff also submitted an order to show cause to enjoin defendants from acting in retaliation to Plaintiff filing his Complaint. (Doc. 3.)

         On October 27, 2014, Chief Judge Loretta A. Preska, to whom this case was originally assigned, issued an order to amend, which dismissed certain defendants and claims, denied Plaintiffs request for emergency injunctive relief, and granted Plaintiff leave to amend his Complaint to detail his claims for: “(1) unlawful search and seizure, arising from the August 27, 2012 search of his automobile and cell phone; (2) false arrest and malicious prosecution, arising from the August 27 Arrest; (3) malicious prosecution, arising from the August 29, 2012 indictment for attempted burglary; and (4) false arrest and malicious prosecution, arising from the August 31, 2012 arrest for possession of stolen property.” (Doc. 10, at 13.) Judge Preska further instructed Plaintiff not to “detail any claim that ha[d] been dismissed or name as a defendant any individual against whom all claims ha[d] been dismissed.” (Id.) Although Plaintiff included a conspiracy claim in his original complaint, Judge Preska did not approve Plaintiff including any claims for conspiracy in his amended complaint. (See Id. at 6-7.)

         On November 25, 2014, Plaintiff filed an amended complaint (“Amended Complaint”), which did not include a conspiracy claim, (Doc. 11), and on December 18, 2014, the case was reassigned to me, (see Dkt Entry Dec. 18, 2014). Thereafter, on December 19, 2014, I issued an order of service. (Doc. 13.) The City of New York answered the Amended Complaint on April 13, 2015, (Doc. 25), as did Tegan and Williams, (Doc. 26). I ordered Plaintiff to execute a New York Criminal Procedure Law § 160.50 release so that Defendants could gain access to Plaintiff's arrest records, (Doc. 30), and on August 3, 2015, issued a similar order, informing Plaintiff that the action would be dismissed for failure to prosecute if he did not file an executed release by August 21, 2015, (Doc. 39). On August 14, 2015, I was notified that Plaintiff had executed the release. (Doc. 40.) In the interim, on May 28, 2015, Mena and Vagnini answered the Amended Complaint. (Doc. 34.)

         On November 30, 2015, I entered the case management plan, (Doc. 54), and on March 9, 2016, Movants requested leave to take Plaintiff's deposition on March 15, 2016, (Doc. 57). Upon Movants' request, I extended discovery until March 21, 2016, (Docs. 59, 60), and on April 25, 2016, I received Movants' pre-motion letter in anticipation of filing a motion for summary judgment, (Doc. 62). At the subsequent May 5, 2016 conference, I set a briefing schedule for Movants' motion for summary judgment, including a July 25, 2016 deadline for Plaintiff to file his opposition or amend his complaint. (Dkt. Entry May 6, 2016.)

         Plaintiff filed a second amended complaint on May 31, 2016, adding the Additional Defendants (“Second Amended Complaint”). (Doc. 64.) After I granted the Movants' request for an extension of time to file their motion for summary judgment because of Plaintiff's filing of the Second Amended Complaint, (Docs. 65, 66), Movants filed their motion for summary judgment on June 23, 2016, (Docs. 67-70). On July 28, 2016, Plaintiff filed his opposition, (Docs. 73-76), and on August 29, 2016, Movants filed their reply, (Docs. 79-80).

         IV. Legal Standard

         Summary judgment is appropriate when “the parties' submissions show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.” Fay v. Oxford Health Plan, 287 F.3d 96, 103 (2d Cir. 2002); see Fed. R. Civ. P. 56(a). “[T]he dispute about a material fact is ‘genuine[]' . . . if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is “material” if it “might affect the outcome of the suit under the governing law, ” and “[f]actual disputes that are irrelevant or unnecessary will not be counted.” Id.

         On a motion for summary judgment, the moving party bears the initial burden of establishing that no genuine factual dispute exists, and, if satisfied, the burden shifts to the nonmoving party to “set forth specific facts showing that there is a genuine issue for trial, ” id. at 256, and to present such evidence that would allow a jury to find in his favor, see Graham v. Long Island R.R., 230 F.3d 34, 38 (2d Cir. 2000).

         To defeat a summary judgment motion, the nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). “A party asserting that a fact cannot be or is genuinely disputed must support the assertion by . . . citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials. . . .” Fed.R.Civ.P. 56(c)(1). In the event that “a party fails . . . to properly address another party's assertion of fact as required by Rule 56(c), the court may, ” among other things, “consider the fact undisputed for purposes of the motion” or “grant summary judgment if the motion and supporting materials-including the facts considered undisputed-show that the movant is entitled to it.” Fed.R.Civ.P. 56(e)(2), (3).

         Additionally, in considering a summary judgment motion, a court must “view the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in its favor, and may grant summary judgment only when no reasonable trier of fact could find in favor of the nonmoving party.” Allen v. Coughlin, 64 F.3d 77, 79 (2d Cir. 1995) (internal citation and quotation marks omitted); see also Matsushita, 475 U.S. at 587. “[I]f there is any evidence in the record that could reasonably support a jury's verdict for the non-moving party, ” summary judgment must be denied. Marvel Characters, Inc. v. Simon, 310 F.3d 280, 286 (2d Cir. 2002).

         Pro se litigants are afforded “special solicitude” on motions for summary judgment. Graham v. Lewinski, 848 F.2d 342, 344 (2d Cir. 1988). Courts read the pleadings, briefs, and opposition papers of pro se litigants “liberally and interpret them ‘to raise the strongest arguments that they suggest.'” McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)); see Hughes v. Rowe, 449 U.S. 5, 9 (1980) (stating that the submissions of pro se litigants are “held ‘to less stringent standards than formal pleadings drafted by lawyers'” (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972))).

         However, “pro se status does not exempt a party from compliance with relevant rules of procedural and substantive law.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d Cir. 2006) (internal quotation marks omitted); see also Jorgensen v. Epic/Sony Records, 351 F.3d 46, 50 (2d Cir. 2003) (stating that the obligation to read pro se pleadings liberally “does not relieve plaintiff of his duty to meet the requirements necessary to defeat a motion for summary judgment” (internal quotation marks omitted)); Bennett v. James, 737 F.Supp.2d 219, 226 (S.D.N.Y. 2010) (“Notwithstanding the deference to which a pro se litigant is entitled, as well as the deference accorded to a non-movant on a summary judgment motion, [the non-movant] must produce specific facts to rebut the movant's showing and to establish that there are material issues of fact requiring a trial.” (internal citations and quotation marks omitted)). “[A] pro se party's ‘bald assertion, ' completely unsupported by evidence, is not sufficient to overcome a motion for summary judgment.” Lee v. Coughlin, 902 F.Supp. 424, 429 (S.D.N.Y. 1995) (quoting Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991)).

         V. Discussion

         Movants' summary judgment motion seeks dismissal of the Second Amended Complaint on various grounds, including the fact that: (1) Plaintiffs claims against the Additional Defendants are untimely; (2) Plaintiffs false arrest and false imprisonment claims are barred under the doctrine of collateral estoppel; (3) Plaintiff s excessive force, unlawful search and seizure, unlawful strip search, malicious prosecution, and conspiracy claims fail as a matter of law; (4) Plaintiff has not met the conditions necessary to allege state law claims; and (5) Plaintiffs municipal liability claim is not premised on an actual constitutional violation and Plaintiff cannot otherwise demonstrate that the municipality was at fault. (See Defs.' Mem. 1-2.)[9]

         A. Timeliness

         Because 42 U.S.C. § 1983 does not provide a specific statute of limitations, courts apply the statute of limitations for personal injury actions under state law in § 1983 actions. See Hogan v. Fischer, 738 F.3d 509, 517 (2d Cir. 2013). In New York, the applicable statute of limitations for § 1983 claims is three years. See id.; see also Patterson v. County of Oneida, 375 F.3d 206, 225 (2d Cir. 2004). “‘Federal law determines when a [§] 1983 cause of action accrues, and . . . accrual occurs when the plaintiff knows or has reason to know of the injury which is the basis of his action.'” Hogan, 738 F.3d at 518 (quoting Pearl, 296 F.3d at 80). “Where no single act is sufficiently decisive to enable a person to realize that he has suffered a compensable injury, the cause of action may not accrue until the wrong becomes apparent.” Singleton v. City of New York, 632 F.2d 185, 192-93 (2d Cir. 1980).

         Movants note that Plaintiff's latest accrued claim is his claim for malicious prosecution following his August 27 Arrest. (See generally SAC; see also Defs.' Mem. 19.) Movants focus on the accrual date of Plaintiff's malicious prosecution cause of action because if it is time-barred against the Additional Defendants, it necessarily follows that the earlier-accrued claims, subject to the same statute of limitations, are time-barred as well.[10]

         A cause of action for malicious prosecution accrues “when the underlying criminal action is conclusively terminated.” Murphy v. Lynn, 53 F.3d 547, 548 (2d Cir. 1995). The underlying prosecution against Plaintiff stemming from the August 27 Arrest was terminated on March 13, 2013, (Byrns Decl. Ex. G), meaning that any malicious prosecution claim against the Additional Defendants would have expired on ...

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