United States District Court, S.D. New York
OPINION & ORDER
A. ENGELMAYER, District Judge
Daghrib Shaheed ("Daghrib") and Waheedah Shaheed
("Waheedah") bring these consolidated actions under
42 U.S.C. § 1983 and New York state law against the City
of New York (the "City") and several New York
Police Department ("NYPD") officers. As a result of
this Court's prior decision dismissing plaintiffs'
federal claims for municipal liability, plaintiffs'
remaining claims are for false arrest, false imprisonment,
deprivation of substantive due process, excessive force,
malicious prosecution, intentional infliction of emotional
distress, assault, and battery. These claims arise from two
incidents: one on June 6, 2012 (the "June 6
incident"), and the other taking place between June 29
and June 30, 2012 (the "June 29-30 incident").
now is defendants' motion for partial summary judgment.
Defendants seek summary judgment in their favor on: (1) all
claims arising out of the June 29-30 incident; (2) both
plaintiffs' claims for deprivation of substantive due
process and intentional infliction of emotional distress
arising out of the June 6 incident; and (3) Daghrib's
claims for excessive force, assault, and battery arising out
of the June 6 incident.
reasons that follow, the Court grants the motion in all
respects except insofar as it seeks dismissal of
Daghrib's claims for excessive force, assault, and
battery arising out of the June 6 incident. The effect of
this decision is to dismiss all claims arising out of the
June 29-30 incident and to preserve for trial all claims
arising out of the June 6 incident save the claims for
deprivation of substantive due process and intentional
infliction of emotional distress.
2012, plaintiff Waheedah Shaheed lived with her four
children: plaintiff Daghrib Shaheed, age 25; Noah Shaheed,
age 20; I.O., age 15; and A.A., age 11. Pl. Counter 56.1
¶¶ 4-5. At all relevant times, the family lived
together in an apartment on East 129th Street in Manhattan.
Id. ¶ 6. Waheedah and Daghrib were tenants on
the lease of the apartment. Id. ¶ 7.
relevant times, each of the four individual defendants was an
NYPD police officer, Id. ¶ 3. Each was assigned
to the 25th Precinct in Harlem. Id.
29, 2012, officials at I.O.'s school reported seeing
marks on I.O.'s arm, which they believed resulted from
self-inflicted harm. Id. ¶ 8. The school
requested that Waheedah take I.O. to receive medical care.
Id. ¶ 9; see also Arko Decl. Ex. I
("Waheedah Dep.") at 80. Waheedah, who suffers from
several health conditions, including cancer (multiple
myeloma) and a heart condition (mitral regurgitation),
explained that she was not feeling well enough to go and that
school officials were overreacting. Waheedah Dep. at 43, 80.
After Waheedah refused to come to the school, I.O. was sent
by ambulance to the hospital with the school nurse. See Pl.
Counter 56.1 ¶ 9; Waheedah Dep. at 80-81.
the hospital released I.O. to Noah, see Waheedah Dep. at 81,
the New York City Administration for Children's Services
("ACS") opened an investigation against Waheedah
for inadequate medical care and inadequate guardianship, Pl.
Counter 56.1 ¶ 10. Between May 29, 2012 and June 6,
2012, ACS Child Protective Specialist Shannon Aste called and
visited Waheedah several times to inform her of the
investigation and to discuss the allegations. Pl. Counter
56.1 ¶11. At each visit, Waheedah refused to let Aste
into her apartment. Id.
5, 2012, Aste told Waheedah over the phone that Waheedah was
required to appear at a child safety conference the next day,
and that her failure to appear might result in ACS's
seeking court intervention. Arko Decl. Ex. K ("Aste
Decl.") at ¶ 10. Waheedah did not appear at the
conference. Id. ¶11.
6, 2012, ACS filed a neglect petition in Manhattan Family
Court. Id. ¶ 12. That same day, Manhattan
Family Court Judge Clark V. Richardson signed an Order on
Application for Temporary Removal of Child. It authorized ACS
to remove I.O. and A.A. from their mother's home. Arko
Decl. Ex. L. Judge Richardson found that ACS had made
reasonable efforts to eliminate the need for removal
notwithstanding Waheedah's resistance, and that removal
was necessary due to "imminent danger to [the]
child." Id. at 2.
June 6 Incident
Entry into the Apartment
6, 2012, at approximately 6:30 p.m., Officers Stephan Kroski
and Jonathan Rodriguez received a radio transmission advising
that ACS workers needed assistance executing a removal order
at the Shaheed apartment. Pl. Counter 56.1 Â¶ 14. The officers
responded to the building and met with several ACS workers
outside. Id. ¶ 15. The ACS workers informed the
officers that they had an order permitting them to remove
children from an apartment in the building. Id.
¶ 16. They showed Kroski a document that he reviewed and
understood to be a removal order. Id.
officers and ACS workers entered the building. Kroski knocked
on the apartment door. Id. ¶¶ 17, 19. At
this time, only Waheedah, Daghrib, and Noah were in the
apartment. Id. ¶ 18. Noah opened the door.
Kroski informed him that he had a court order authorizing
removal of a child from the apartment. Id.
parties dispute what happened next. See Id. ¶
22. Kroski testified that Noah demanded to see a warrant,
pushed Kroski in the chest, and refused to let him enter the
apartment. See Arko Deck Ex. E ("Kroski
Deck") ¶ 11. Noah, however, testified that Kroski
stuck his foot inside the door and, as Noah tried to
"hold [his] ground, " grabbed Noah by the wrist and
started forcing his way into the apartment. See Arko
Decl. Ex. J ("Noah Dep.") at 54-55, 59.
Kroski and Rodriguez managed to enter the apartment. Pl.
Counter 56.1122. Once inside, the officers tussled with Noah
as they attempted (ultimately successfully) to place him in
handcuffs. Id. ¶ 23; see also Noah
Dep. at 65-67. Rodriguez and Noah wound up falling to the
floor together. See Arko Decl. Ex. F
("Rodriguez Deck") ¶ 13.
Waheedah came out of her room to investigate. Pl. Counter
56.1 ¶ 24. Seeing the police, she demanded that Kroski
tell her what the officers were doing in her home.
Id. ¶ 25. After demanding to see a warrant,
Waheedah ordered the officers to leave her home. Id.
followed is also in dispute. All agree that a physical fight
broke out involving at least Kroski and Waheedah.
Id. 26. In Kroski's telling, Waheedah yelled at
him and punched him in the mouth, leading Kroski to tackle
her and attempt to place her in handcuffs. See
Kroski Decl. ¶¶ 16-19. In Waheedah's telling,
Kroski initiated the confrontation by punching her in the
face. See Waheedah Dep. at 106, 118. Daghrib's
testimony corroborates Waheedah's, stating that Kroski,
unprompted, punched Waheedah in the face and "slammed
her to the floor." See Arko Decl. Ex. H
("Daghrib Dep.") at 66. Kroski testified further
that Daghrib jumped on his back and wrapped her legs around
his upper body. See Kroski Decl. ¶ 22. Daghrib,
however, testified that she never attacked Kroski and instead
was "grabbed and placed into the kitchen" by an
unknown officer. Id. at 69, 74. All agree that, at
some point, Waheedah "grabbed" Kroski's
testicles and squeezed them "as hard as she possibly
could." Pl. Counter 56.1 ¶ 27.
this scrum, Daghrib was placed in handcuffs. Id.
Officer Paul Bliss, who had arrived after receiving
Rodriguez's radio call for assistance, then took hold of
Daghrib's arm. Id. ¶¶ 28-29. Daghrib
testified that Bliss "grabb[ed] her left arm so hard
that [she felt] a lot [of] pain." Daghrib Dep. at 75.
Daghrib testified further that after she informed Bliss that
he was hurting her, he "tightened his grip."
Daghrib, and Noah were all removed from the building and
transported to the 25th Precinct. Pl. Counter 56.1 ¶ 29.
Daghrib was then taken to the emergency room, where she
complained of a cut and pain to her left arm, and received
x-rays and a pain reliever, before she was taken back to the
25th Precinct. Id. ¶ 32. She was then taken to
Manhattan Central booking, arraigned, and released.
Id. ¶ 33. Waheedah, meanwhile, was taken to
Mount Sinai Hospital, where she was admitted and issued a
desk appearance ticket. Id. ¶ 34.
York County District Attorney's Office charged Waheedah
and Daghrib with assault in the second degree, resisting
arrest, and obstructing governmental administration.
Id. ¶ 36. On September 18, 2013, these charges
were dismissed and sealed. See Arko Decl. Exs. Q, R.
Continued Investigation and the June 29-30 Incident
June 13, 2012, Aste learned that I.O. and A.A. had gone to
live with their father in Yonkers, New York. Pl. Counter 56.1
¶ 37. The next day, ACS obtained a court order
permitting this living arrangement after it was determined
that the father's home did not pose a danger to the
children. Id. ¶ 38.
25, 2012, however, Aste learned from the father that I.O. and
A.A. had returned to Waheedah's home. Id. ¶
39. That same day, Aste went to Waheedah's apartment and,
after Waheedah refused to allow her in, spoke to Waheedah
through the door. Id. ¶ 40.
26, 2012, Judge Richardson signed a second order permitting
ACS to remove I.O. and A.A. from Waheedah's home.
Id. ¶ 41. That afternoon, Aste brought the
order to the 25th Precinct, where police informed her that
the order was insufficient on its face to permit forced entry
should Waheedah refuse to allow entry. Id. ¶
42. Accompanied by police, Aste then returned to the Shaheed
apartment, where, after Waheedah refused to allow her in, she
once again spoke to Waheedah through the door. Id.
27, 2012, according to Aste's testimony, Aste returned to
the apartment and slipped under the door a "Notice of
Existence" of the ACS investigation, an "Order of
Protection" against Waheedah in favor of I.O. and A.A.,
the June 6 and June 26 court orders, and the neglect
petitions filed on behalf of I.O. and A.A. Aste Decl. ¶
29, 2012, ACS obtained a third order from Judge Richardson.
Pl. Counter 56.1 Â¶ 45. This order found "probable cause
to believe that an abused or neglected child may be"
present at the Shaheed apartment. Arko Decl. Ex. N (the
"June 29 order"). Accordingly, the order authorized
agents, accompanied by police, "to enter the above
premises using forcible entry to determine if the children
... are present and proceed thereafter with a child
protective investigation pursuant to § 1034(2)(c) of the
New York Family Court Act, and . . . take whatever
appropriate actions pursuant to § 690.50(1) of the New
York Criminal Procedure Law." Id.
on the evening of June 29, 2012, several ACS workers traveled
to the 25th Precinct to request assistance with executing the
June 29 order. Pl. Counter 56.1 ¶ 47. The police agreed
to assist. Several officers accompanied ACS workers to the
Shaheed apartment. Id. ¶ 48. Of the officers
who assisted in executing the June 29 order, only Officer
Lydia Figueroa is a defendant here.
night of June 29, 2012, Waheedah, Daghrib, Noah, and I.O.
were in the apartment. Id. ¶ 49. An officer
knocked and asked the occupants to open the door.
Id. ¶ 52. Waheedah instructed Noah not to open
the door. Id. ¶ 52. Waheedah and Daghrib heard
the police say through the door that they had a warrant, but
they refused to open the door. Id. ¶¶
53-54. Instead, according to their testimony, plaintiffs
asked the police to slide the warrant under the door, which
the officers never did. See Waheedah Dep. at 175;
Daghrib Dep. at 112. In contrast, Figueroa testified that the
officers "slid a document that [Figueroa] understood
to be the court order under the door, but the document was
pushed back out into the hallway." Figueroa Decl. ¶
impasse, the police requested backup. Pl. Counter 56.1 ¶
55. An extensive, hours-long negotiation ensued, during which
multiple officers and an imam tried unsuccessfully to
convince Waheedah and her family to open the door.
Id. ¶ 55. Figueroa was not involved in these
negotiations. Id. ¶ 56.
several hours, the police forced the door open and entered
the apartment. Id. ¶ 57. Waheedah, Daghrib,
Noah, and I.O. were all in Waheedah's bedroom when the
police entered. See Waheedah Dep. at 189; Daghrib
Dep. at 122. According to Daghrib, six or seven officers
entered the apartment with guns drawn, aimed toward the
inhabitants, and ordered the family to get down on the floor.
See Daghrib Dep. at 123. Although Waheedah suggested
in her testimony that Daghrib might have "tripped or
slipped, or was pushed to the floor, " see
Waheedah Dep. at 191, Daghrib testified that she complied
with the order, see Daghrib Dep. at 123. Daghrib
also testified that the ...