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Doe v. City of New York

United States District Court, E.D. New York

January 9, 2020

Anna Doe, Plaintiff,
v.
The City of New York, Detective Richard Hall, Detective Eddie Martins, and Police Officer Gregory Markov, Defendants.

          OPINION & ORDER

          Allyne R. Ross United States District Judge.

         The plaintiff, Anna Doe, alleges that New York City Police Department Detectives Richard Hall and Eddie Martins stopped her in a public park, took her into custody, repeatedly raped her in the back of their police van, and released her without charging her with any crime. She sought treatment that night at Maimonides Hospital. Officer Gregory Markov-along with a No. of additional, unnamed police officers-met her there, purportedly to investigate her rape allegation. Instead, Doe contends, they mocked and bullied her in an attempt to prevent her from filing a complaint against their fellow police officers.

         Doe filed suit in Kings County Supreme Court against Hall, Martins, Markov, and the City of New York, along with Hall and Martins' supervisor, Sergeant John Espey, and the unnamed police officers who met Doe at the hospital. The City removed the complaint to federal court. In August 2018, I dismissed the claims against Espey and the unnamed police officers, as well as several claims against the City. Remaining are Doe's claim against Markov for First Amendment retaliation, her respondeat superior claim against the City for false arrest and imprisonment, and all of her claims against Hall and Martins. Markov and the City have moved for summary judgment; Hall and Martins do not join their motion. Doe opposes. For the reasons set forth below, the defendants' motion for summary judgment is denied.

         BACKGROUND

         I. The Stop, Arrest, and Alleged Rape of Anna Doe

         On September 15, 2017 at around 7:30 or 8:00 p.m., plaintiff Anna Doe drove with two friends, Mitchell and David (“Snoopy”), to Calvert Vaux Park in Brooklyn (the “Park”). Defs.' Rule 56.1 Statement ¶¶ 1-2, ECF No. 100 (“Defs.' 56.1”); Pl.'s Resp. to Defs.' 56.1 at ¶¶ 1-2, ECF No. 103; Pl.'s 56.1 Counter-Statement ¶ 3, ECF No. 103; Defs.' Resp. to Pl.'s 56.1 Counter-Statement ¶ 3, ECF No. 106. They took Snoopy's car, with Doe driving. Defs.' 56.1 at ¶ 1; Pl.'s Resp. to Defs.' 56.1 at ¶ 1. The three friends soon arrived at the Park's parking lot, where they stopped and Mitch prepared two marijuana cigarettes. Defs.' 56.1 at ¶ 13; Pl.'s Resp. to Defs.' 56.1 at ¶ 13.[1] According to Doe, the two cigarettes ended up in the cup holder by the front seats, along with a clear bag containing some loose marijuana. See Doe 50-h Tr. Defs.' Ex. B at 389:4- 390:3, ECF No. 101-2. At the same time, New York City Police Department (“NYPD”) Detectives Hall and Martins sat in their unmarked Dodge Caravan in the parking lot. Defs.' 56.1 at ¶¶ 5-6; Pl.'s Resp. to Defs.' 56.1 at ¶¶ 5-6.

         Doe noticed a dirt road inside the Park and saw that the gate at its entrance was open. Defs.' 56.1 at ¶ 14; Pl.'s Resp. to Defs.' 56.1 at ¶ 14. By this time, it was dark outside, and the dirt road wound through a wooded area with no artificial lighting. See Defs.' 56.1 at ¶¶ 18-19; Pl.'s Resp. to Defs.' 56.1 at ¶¶ 18-19; Pl.'s 56.1 Counter-Statement ¶ 4; Defs.' Resp. to Pl.'s 56.1 Counter- Statement ¶ 4. Doe drove onto the dirt road toward a dark, unpaved lot, which contained some shipping containers but was otherwise empty. Defs.' 56.1 at ¶¶ 17, 19, 21; Pl.'s Resp. to Defs.' 56.1 at ¶¶ 17, 19, 21. Sometimes, people would park their cars in this lot during sporting events in the nearby fields; however, on this night, no one was playing sports in the fields. Defs.' 56.1 at ¶ 20; Pl.'s Resp. to Defs.' 56.1 at ¶ 20. Hall and Martins followed Doe onto the dirt road. Defs.' 56.1 at ¶ 26; Pl.'s Resp. to Defs.' 56.1 at ¶ 26.

         Hall and Martins then turned on their van's police lights and pulled over Doe and her passengers. Defs.' 56.1 at ¶ 30; Pl.'s Resp. to Defs.' 56.1 at ¶ 30. The detectives exited their van and walked to Snoopy's car, with Hall approaching Doe on the driver side and Martins approaching the passenger side. Defs.' 56.1 at ¶ 33; Pl.'s Resp. to Defs.' 56.1 at ¶ 33; see Martins Dep. Defs.' Ex. G at 190:9-191:18, ECF No. 101-7. Hall asked Doe why she was “back there” on the dirt road and said, in sum and substance, “[y]ou know you guys aren't supposed to be here, right?” Defs.' 56.1 at ¶ 34; Pl.'s Resp. to Defs.' 56.1 at ¶ 34. He told Doe that she and her passengers could not be in that area of the Park because it was after dark. Defs.' 56.1 at ¶ 35; Pl.'s Resp. to Defs.' 56.1 at ¶ 35. Hall and Martins instructed Doe and her passengers to exit the car and frisked them. Defs.' 56.1 at ¶¶ 41-42; Pl.'s Resp. to Defs.' 56.1 at ¶¶ 41-42. Martins also searched Doe's handbag, where he found half an ounce of marijuana, two Klonopin pills, and a filled water bong. Defs.' 56.1 at ¶¶ 43-45; Pl.'s Resp. to Defs.' 56.1 at ¶¶ 43-45. Doe also had a bag in her bra containing twenty dollars' worth of cocaine. Defs.' 56.1 at ¶ 37; Pl.'s Resp. to Defs.' 56.1 at ¶ 37. Martins handcuffed Doe and led her into the back of the police van. Defs.' 56.1 at ¶ 46; Pl.'s Resp. to Defs.' 56.1 at ¶ 46.

         Doe alleges that Hall and Martins drove her to the parking lot of a Chipotle restaurant in Brooklyn, where they raped her. Third Am. Compl. ¶ 14, ECF No. 42. They then proceeded to drive around Brooklyn, repeatedly raping her along the way until they released her near the NYPD's 60th precinct without charging her with any crime. Id. ¶¶ 15-17.

         Several disputes of fact surround the detectives' stop of Doe and her passengers. The defendants assert that the detectives stopped Doe for at least one of three reasons: because they believed Snoopy's car had excessively tinted windows, because they believed Doe and her passengers' presence in the Park violated the City's park rules, or because they believed Doe and her passengers possessed or consumed illegal drugs. I will discuss the facts surrounding each of these purported bases for the stop in turn.

         A. Tinted Windows

         The parties dispute whether Snoopy's car had tinted windows. Hall testified that Snoopy's car had windows tinted in excess of the level that governing ordinances permitted. See Hall Dep. Pl.'s Ex. E at 157:3-5, 164:15-18, ECF No. 104-5. He saw the tinted windows before pulling over Doe, while the police van was still moving. See Hall Dep. Volume II Defs.' Ex. I at 236:5-13, ECF No. 101-9. Hall testified that New York State law requires a car's windows to allow seventy percent of light to pass through. Id. 235:10-12. Based on his experience, when he cannot “see clearly into the car” through the windows, “then the windows are tinted beyond the regulation.” Id. 235:18-20. Martins, however, could not remember at his deposition whether Snoopy's car had tinted windows. See Martins Dep. Pl.'s Ex. D at 121:9-11, ECF No. 104-4. He further testified that he did not think that he was able to observe whether Snoopy's car had tinted windows, or that he did not think that Snoopy's car had tinted windows; his phrasing is unclear. See Id. 198:6-9. Doe testified that Snoopy's car did not have tinted windows and that Hall and Martins' police van did have tinted windows. See Doe Dep. Defs.' Ex. C at 57:11-15, ECF No. 101-3.

         B. Park Rules

         The defendants assert that Doe and her friends violated park rules by occupying the Park because the Park-or at least the area beyond the gate at the entrance to the dirt road-was closed. Under New York City Rules, “[p]ersons may enter and use the parks from 6:00 a.m. until 1:00 a.m. unless other open hours are posted at any park[, ]” and “[n]o person shall enter or remain in any park without the permission of the Commissioner when such park is closed to the public.” Rules of City of New York Department of Parks and Recreation (56 RCNY) § 1-03(a)(1), (3).

         The parties dispute whether the Park contained any signs indicating that the Park was closed at or around 8:00 p.m. Doe testified that the Park did not close at dark. Doe 50-h Tr. Defs.' Ex. B at 187:15-17. Martins testified that “there should be signs in the entrance of the park” stating the hours of operation but that he did not recall whether he saw any such signs. Martins Dep. Pl.'s Ex. D at 26:9-18. He also testified that he believed the dirt road in particular contained a “no trespass” sign. Martins Dep. Defs.' Ex. G at 185:18-21. Hall testified that he thought a sign marked the dirt road as a prohibited area but could not recall what the sign said verbatim. Hall Dep. Pl.'s Ex. E at 174:13-19. Markov testified that he had visited the Park at night, that it is open at night- including at 8:00 p.m. in particular-and that he had not noticed any signs in the Park at all. Markov Dep. Pl.'s Ex. F at 153:8-23, ECF No. 104-6. Frank Abbriano, a Lieutenant in Markov's precinct, testified that he was familiar with the Park and that while he believed it closed at night, he had never seen any signs indicating as much. See Abbriano Dep. Pl.'s Ex. H at 9:3-10, 59:25- 60:9, 60:22-61:9, ECF No. 104-8. Espey testified that he had patrolled the Park at night, that he had always encountered people in the Park at night, and that the Park had always been open when he visited at night; he testified that while the specific times of night at which he patrolled the Park varied, he could have patrolled it-and found it open-after 8:00 p.m. Espey Dep. Pl.'s Ex. G at 31:2-24, ECF No. 104-7.

         The testimony also reveals disputes as to whether a gate or barrier typically blocks access to the dirt road at night. Doe testified that on the night of September 15, 2017, the gate leading to the dirt road was open, but that usually it was not open and the dirt road was closed to the public at night. Doe 50-h Tr. Defs.' Ex. B at 185:14-17, 187:6-14. She further testified that she remembered telling Snoopy that the detectives were going to stop them because they were driving on the dirt road, and “[p]eople don't really go back there.” Id. 395:9-13. However, she also testified that on that September 15, she did not know that driving onto the dirt road was prohibited, and she thought that she could “be in every part” of the Park. Id. 207:17-25. She also testified that when the detectives pulled her over, she told one of them that she did not know that being on the dirt road was prohibited. Id. 398:25-399:2, 18-19. Hall testified that when he saw Doe's car, it had passed an open barrier; that the barrier was already open before Doe encountered it; and that he had seen the barrier open on prior occasions. Hall Dep. Pl.'s Ex. E at 173:23-174:12. However, he also described Doe's route as heading into a “restricted area.” Hall Dep. Volume II Defs.' Ex. I at 218:7-8. Markov testified that when he had visited the Park at night in the dark, he had not encountered any physical barriers that would block someone from driving onto the dirt road. Markov Dep. Pl.'s Ex. F at 154:16-155:6. Espey testified that whenever he had visited the entrance that leads to fields in the back of the Park-which might describe the dirt road where the detectives stopped Doe, though the description in Espey's testimony is unclear-he had found it open, including at night. Espey Dep. Pl.'s Ex. G at 34:22-35:5, 36:10-13.

         C. Possession or Consumption of Illegal Drugs

         It is undisputed that Hall and Martins knew the Park as a “drug prone location.” Defs.' 56.1 at ¶ 9; Pl.'s Resp. to Defs.' 56.1 at ¶ 9. It is also undisputed that before September 15, 2017, Hall and Martins had seen people use drugs in the Park and Doe had smoked marijuana in the Park. Defs.' 56.1 at ¶¶ 10-12; Pl.'s Resp. to Defs.' 56.1 at ¶¶ 10-12. In Martins' experience, the unpaved lot at the end of the dirt road saw even higher levels of drug consumption than did other areas of the Park. Defs.' 56.1 at ¶ 25; Pl.'s Resp. to Defs.' 56.1 at ¶ 25. Martins testified that in his career, he had made more than thirty narcotics-related arrests in the Park. Martins Dep. Defs.' Ex. G at 195:3-12. Hall testified that in 2017, he made approximately fifteen drug-related arrests in the Park. Hall Dep. Volume II Defs.' Ex. I at 231:2-15. Hall further testified that earlier in the night on September 15, 2017, he and Martins stopped another vehicle in the Park because they smelled marijuana emanating from it, but they did not issue any summonses or arrest anyone because they could not find any marijuana in the car. Id. 214:11-215:12, 216:3-9.

         II. Maimonides Hospital

         After the alleged rapes, and between 10:00 p.m. on September 15 and 12:00 a.m. on September 16, 2017, Doe sought treatment at the Maimonides Hospital emergency room, where her mother accompanied her. Defs.' 56.1 at ¶ 47; Pl.'s Resp. to Defs.' 56.1 at ¶ 47. Doe reported to hospital staff that two police officers had raped her and allowed a nurse to call the police. Defs.' 56.1 at ¶¶ 48-49; Pl.'s Resp. to Defs.' 56.1 at ¶¶ 48-49. Markov, working for the 60th precinct on that night, arrived at the hospital with his partner to investigate Doe's rape allegation. Defs.' 56.1 at ¶¶ 50-53; Pl.'s Resp. to Defs.' 56.1 at ¶¶ 50-53. Markov questioned Doe for about fifteen minutes, during which time he began to write notes and draft a complaint based on her rape allegations. Defs.' 56.1 at ¶¶ 52, 57; Pl.'s Resp. to Defs.' 56.1 at ¶¶ 52, 57. As part of this questioning, Markov asked Doe how she knew that the men who raped her-who, the parties agree, wore plainclothes-were police officers. Defs.' 56.1 at ¶ 54; Pl.'s Resp. to Defs.' 56.1 at ¶ 54.

         According to Markov, when he questioned Doe, he was trying to determine whether her alleged rapists were, in fact, police officers. See Markov Dep. Defs.' Ex. F at 198:9-13, ECF No. 101-6. He questioned Doe about the identities of the alleged rapists because she did not name the detectives or say that she knew them personally. See Id. 199:25-200:3. He also told Doe that it was possible that the men who raped her were “chase truck drivers” or “bounty hunters”-men “who . . . sometimes look and dress like [police officers] . . . in plain clothes.” Markov Dep. Pl.'s Ex. F at 88:18-22, 105:10-15. Markov testified that in prior cases, when other victims did not know their assailants, he had an “investigative duty to ask questions to ascertain the identit[ies] of those perpetrators.” Markov Dep. Defs.' Ex. F at 202:10-19.

         Doe, however, testified to additional facts that paint quite a different picture of Markov's conduct. Markov's behavior “made [Doe] feel very uncomfortable, ” Doe 50-h Tr. Defs.' Ex. B at 633:21-22; Doe Dep. Pl.'s Ex. C at 101:25-102:1, ECF No. 104-3, and she described it as “harass[ment], ” Doe Dep. Pl.'s Ex. C at 100:23-25. She testified that Markov said “you are not crying right now” and “[y]ou don't look like you just got raped[.]” Doe 50-h Tr. Defs.' Ex. B at 633:10-14. Doe testified that, in fact, she “cried a lot.” Doe Dep. Pl.'s Ex. C at 106:6-10. She further testified that Markov “was smirking at [her] and kind of . . . laughing, trying to make [her] believe like [her alleged rapists] were not real cops . . . .” Doe 50-h Tr. Defs.' Ex. B at 633:14-16. She described Markov as “trying to take away [her] credibility.” Doe Dep. Pl.'s Ex. C at 101:10- 11.

         During her interaction with Markov, there were at least four, and possibly as many as eight or more, other male police officers in the room. See Doe 50-h Tr. Defs.' Ex. B at 629:20-24; Doe Dep. Pl.'s Ex. C at 98:1-2, 98:22-24. Markov laughed at her in front of these other officers. Doe Dep. Pl.'s Ex. C at 102:23-25, 103:24-104:2. Doe described the police officers in the room as “snotty” and “giggling, ” speaking to her in a way that indicated they “didn't believe . . . what [she] was saying.” Id. 106:25-107:3.

         In addition, Doe testified that Markov asked her, an estimated four times, “don't [you] have a situation like this already[?]” Id. 116:13-14. He also asked her mother “is this the first time your daughter is having a situation like this[?]” Id. 101:5-7. Doe testified that she had not “had a similar situation previously” and did not “even know what they [were] talking about.” Id. 116:15-18. Markov denied making these comments. Markov Dep. Pl.'s Ex. F at 108:8-19; 123:12-21. Doe also testified that Markov spoke to her in Russian. Doe Dep. Pl.'s Ex. C at 116:22.

         Two points of Doe's testimony about Markov's conduct are somewhat contradictory, though I can draw consistent inferences from her explanations. First, Doe testified that nobody from Markov's precinct threatened or intimidated her. Id. 100:15-17. However, when later asked what the officers at the hospital did “to threaten and intimidate” her, she responded that their “questions” were not “proportioned” and then described some of Markov's aforementioned behavior. Id. 115:24-116:14. Doe thereby implied that Markov's behavior did threaten and intimidate her. Second, Doe initially testified at her deposition that Markov told her and her mother not to file a complaint against Hall and Martins. See Id. 99:9-13. She elaborated that he did so by saying “[a]re you sure you should be going through with this[?] Are you sure they were police officers[?] How are you so sure[?].” Id. 99:14-17. However, when subsequently asked whether she ever told the Brooklyn District Attorney's office that no one from Markov's precinct told her not to file a complaint, she responded “[m]aybe. Because maybe they didn't tell me [not to] file a complaint but they did tell me why [are you] going through with this[?] Are you doing this[?] They did tell me . . . basically not to do that.” Id. 99:24-100:14. Based on this testimony, even if I assume that Markov did not tell Doe outright not to file a complaint, I can infer that he implied as much.

         Doe testified about the emotional injuries that she suffered as a result of the events of that night. Some of Doe's testimony does not directly implicate Markov as a cause of her injuries. Doe identified “[t]he rape” as the cause of her emotional injuries as opposed to Hall and Martins' stop of her car. Doe Dep. Defs.' Ex. C at 132:1-5. Doe also testified that she “[did not] know which” of her emotional injuries Markov caused at the hospital. Id. 132:6-8. In addition, she testified that even if Markov had not behaved in the way that she testified he did, she thought she would have nonetheless suffered the emotional injuries that the rape caused. See Id. 132:12-15. She also stated that her lawsuit “[is] not really about Markov, ” although an attorney interrupted her before she could explain this comment. Id. 169:25-170:4. However, Doe also testified about the “mental[]” damages that she suffered “as a result of this incident, ” without explaining whether the term “incident” refers to the rape, her interaction with Markov at the hospital, or both. Doe Dep. Pl.'s Ex. C at 123:6, 9; 126:25-127:2, 127:24-128:13 (emphasis added). She testified that she “lost interest in a lot of things [she] used to be interested in.” Id. 127:4-5. She also testified that she “lost a lot of people around [her]” and that she does not “want to be around people anymore.” Id. 128:15-16. She does not “trust people.” Id. 128:16. She visited a therapist or counselor after “this incident, ” whereas she had not ever visited a therapist or counselor before. Id. 123:6-11.

         Further, Doe testified that she has become afraid. She is “scared of being around police officers now.” Id. 127:5-6. She further explained that she is “fearful nowadays of things that [she] would never have cared to look twice upon. [Her] mindset has changed about the way [she] look[s] at certain things and the places [she is] in, certain situations with people [she is] with. Everything is just different.” Id. 128:2-6.

         DISCUSSION

         Following the events of September 15, 2017, Doe filed suit against Hall, Martins, Markov, Espey, the unnamed police officers from the hospital, and the City of New York. I previously dismissed the claims against Espey and the unnamed police officers, as well as some of the claims against the City. Relevant to the instant motion for summary judgment are the remaining First Amendment retaliation claim against Markov and respondeat superior claim against the City for false arrest and imprisonment.

         Doe argues that Markov's conduct at the hospital constituted retaliation for the exercise of her First Amendment rights. She also argues that the City is liable on a respondeat superior theory for common law false arrest and imprisonment arising from her confinement in Hall and Martins' custody after they stopped her in the Park. Defendants Markov and the City move for summary judgment on both of these claims.

         I. Standard of Review

         “The court shall grant summary judgment if the movant shows that 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). The function of the court is not to resolve disputed issues but rather to determine whether there is a genuine issue to be tried. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248- 49 (1986). A dispute of fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. at 248. A dispute of fact is material if it “matters, i.e., [if] it concerns facts that can affect the outcome under the applicable substantive law.” McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (quoting Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996)).

         In assessing whether summary judgment is appropriate, I consider “the pleadings, depositions, answers to interrogatories and admissions on file, together with any other firsthand information including but not limited to affidavits.” Nnebe v. Daus, 644 F.3d 147, 156 (2d Cir. 2011) (quoting In re Bennett Funding Grp., Inc., 336 F.3d 94, 99 (2d Cir. 2003)); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The moving party carries the burden of proving that there is no genuine dispute respecting any material fact and “may obtain summary judgment by showing that little or no evidence may be found in support of the nonmoving party's case.” Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1223-24 (2d Cir. 1994). Once this burden is met, in order to avoid the entry of summary judgment, the non-moving party “must come forward with specific facts showing that there is a genuine issue for trial.” LaBounty v. Coughlin, 137 F.3d 68, 73 (2d Cir. 1998) (citing Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir. 1994)). In reviewing the record before it, “the court is required to resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought.” McLee v. Chrysler Corp., 109 F.3d 130, 134 (2d Cir. 1997).

         II. Factual issues preclude summary judgment on Doe's First Amendment retaliation claim against Markov.

         To prove First Amendment retaliation, “a plaintiff must show: (1) [s]he has a right protected by the First Amendment; (2) the defendant's actions were motivated or substantially caused by [her] exercise of that right; and (3) the defendant's actions caused [her] some injury.” Dorsett v. Cty. of Nassau, 732 F.3d 157, 160 (2d Cir. 2013) (citing Curley v. Vill. of Suffern, 268 F.3d 65, 73 (2d Cir. 2001)). The defendants do not dispute the first element-that Doe had a First Amendment right; thus, I do not analyze that element here and instead briefly note that Doe had First Amendment rights to file a complaint against police officers and to free speech in general.[2]

         The defendants first argue that Doe cannot prove the second element of the First Amendment retaliation claim because it is undisputed that Markov acted from a proper motive- to investigate Doe's rape allegations-and not from a motive to suppress her First Amendment rights. Next, the defendants make several arguments pertinent to the third element of the First Amendment retaliation claim regarding whether Markov's actions caused Doe some injury. First, the defendants argue that Markov did not chill Doe's speech. Second, the defendants argue that emotional damages cannot satisfy the injury element of the First Amendment retaliation claim. Third, the defendants argue that even if emotional damages could satisfy ...


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