United States District Court, E.D. New York
OPINION & ORDER
R. Ross United States District Judge.
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
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.
Stop, Arrest, and Alleged Rape of Anna Doe
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. 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
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.
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.
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.
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.
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.
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).
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.
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,
Possession or Consumption of Illegal Drugs
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
Standard of Review
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)).
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).
Factual issues preclude summary judgment on Doe's First
Amendment retaliation claim against
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
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 ...