Franks v. City of New York et al, No. 1:2013cv02261 - Document 24 (E.D.N.Y. 2015)
Court Description: ORDER granting 18 Motion for Summary Judgment Ordered by Judge I. Leo Glasser on 5/20/2015. (Russell, Alexandra)
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Franks v. City of New York et al Doc. 24 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ------------------------------------------------------x SUNDRA FRANKS, MEMORANDUM AND ORDER Plaintiff, 13 Civ. 2261 (ILG) (MDG) - against CITY OF NEW YORK, ET ANO., Defendants. ------------------------------------------------------x GLASSER, Senior United States District J udge: Plaintiff Sundra Franks (“Franks”) brings this action against the City of New York (“City”) and New York City Police Detective Richard Dinkle, in his individual capacity, (“Dinkle,” and, together with the City, “Defendants”), alleging federal claim s under 42 U.S.C. § 1983 for false arrest, m alicious prosecution, excessive force, violation of equal protection, and m unicipal liability, and state law claim s for assault, battery, and false arrest. Before the Court is Defendants’ m otion for sum m ary judgm ent pursuant to Federal Rule of Civil Procedure 56(a). For the following reasons, the m otion is GRANTED. BACKGROU N D The undisputed facts are as follows.1 On J uly 2, 20 11 at approxim ately 11:45 p.m ., Dinkle and other m em bers of the New York City Police Departm ent (“NYPD”) responded to a residential building at 251 J ersey Street in Staten Island after receiving a report of gun shots fired at the location. Defendants’ Local Rule 56.1 Statem ent of Facts 1 Franks has not com plied with Local Civil Rule 56.1, which requires the parties to subm it a statement of undisputed, m aterial facts in connection with a m otion for sum m ary judgm ent (“Rule 56.1 Statement”). His Rule 56.1 Statement did not respond to Defendants’ Rule 56.1 Statement and failed to adequately cite to the record to support each statem ent. See Local Rule 56.1 (b), (d). The Court will deem adm itted specific statem ents in Defendants’ Rule 56.1 statement that are properly supported with adm issible evidence. Vt. Teddy Bear Co. v. 1-80 0 Beargram Co., 373 F.3d 241, 244 (2d Cir. 20 0 4). 1 Dockets.Justia.com (“SOF”) ¶ 3. J am es Lee, a resident of 251 J ersey Street, was in his apartm ent that evening with his friend, Steven Clark. Id. ¶ 7. Before the gun shots were fired, Clark had gone outside to m eet his girlfriend, Shaiesha Lewis. Id. After Clark left, Lee heard a com m otion outside and upon opening his door saw Clark and two other m en with guns running toward his apartm ent. Id. He recognized both m en, who he later identified as Franks and “Halloween.” Id. ¶ 8. He ran back inside, and through his upstairs window, observed Franks fire a gun toward his apartm ent. Id. ¶ 9. Clark told police that while he was waiting outside for his girlfriend, two black m en approached and started pushing him . Id. ¶ 10 . He escaped the m en and ran back into Lee’s apartm ent and heard approxim ately five gun shots. Id. He described one of the m en as “very short, very dark skinned, scruffy face, skinny, wearing a white t-shirt, [and] jean shorts” and the other as “taller, m edium skin color, m edium build, no hair, wearing a blue shirt.” Id. ¶ 11. Franks, who is dark-skinned, short, and skinny, fit Clark’s physical description. Id. ¶ 12. Shaiesha Lewis told police that as she approached 251 J ersey Street to m eet Clark, she saw two m en trying to get into the residence. Id. ¶ 13. She described one of the m en as wearing a white tank top and blue shorts. DX D at 5. She m anaged to enter the residence and heard gun shots. Id. At the tim e, her m other, Farida Lewis, was parking her car outside of 251 J ersey Street and saw a black m an pointing a gun and shooting at the building. SOF ¶ 14. She did not see the shooter’s face, but described him as wearing all black and having short braids. Id. Police recovered five shell casings in front of 251 J ersey Street. Id. ¶ 5. The front door of Lee’s apartm ent revealed two bullet holes, and the window of his apartm ent revealed one bullet hole. Id. 2 In the early m orning of J uly 3, 20 11, the officers transported Lee, Clark, Shaiesha and Farida Lewis to the 120 th New York City Police Precinct (“Precinct”) to view photo arrays. See Dinkle Dep. at 92-93 (DX C). On the way to the Precinct, Lee saw Halloween walking on the street and alerted the officers, who arrested him .2 SOF ¶ 15. Franks was still at large. At the Precinct, Dinkle prepared two photo arrays: one contained a photo of Franks and the other contained a photo of Halloween. Id. ¶ 16. He showed both photo arrays to the four eyewitnesses. Lee identified Franks as the shooter, but the other witnesses did not. Id. ¶¶ 18-19. Based on Lee’s identification, Dinkle issued an “Investigation Card,” which notified other NYPD officers that Franks was wanted in connection with the shooting incident. Id. ¶ 21. On Novem ber 26, 20 11, officers notified Dinkle that Franks had been arrested that m orning for driving a vehicle in which was a loaded firearm .3 Id. ¶ 22; DX E, ¶ 15. Franks was brought to the Precinct, where Dinkle arrested him on charges related to the J uly 2 shooting. Id. ¶¶ 22-23. On Novem ber 27, 20 11, a com plaint was filed in the Richm ond County Crim inal Court, which charged Franks with two counts of crim inal possession of a weapon in the second degree and one count of reckless endangerm ent in the first degree, and he was arraigned that day. Id. ¶ 24. On J uly 2, 20 12, all charges against him were dism issed after the com plaining victim s did not appear to testify before the grand jury. Id. ¶ 25. 2 The officers later identified Halloween as “S.D,” whose full name is protected by N.Y. Crim . Proc. Law § 160 .50 , which m andates that a record of a crim inal case be sealed when the defendant is acquitted of all charges or the case is dismissed. 3 This charge was later dropped when another occupant of the vehicle confessed to ownership of the firearm . SOF ¶ 22; Dinkle Decl. ¶ 17. 3 On April 15, 20 13, Franks com m enced this action. Dkt. No. 1. During his April 24, 20 14 deposition, he testified that he was not m aking a discrim ination claim or com plaining about any City policy, and that he did not suffer physical injury as a result of the arrest. SOF ¶ 27. On J uly 25, 20 14, Defendants’ filed their m otion for sum m ary judgm ent. Dkt. No. 18. Franks filed his Opposition on Septem ber 26, 20 14. Dkt. No. 21. Defendants replied on October 18, 20 14. Dkt. No. 23. LEGAL STAN D ARD Sum m ary judgm ent is appropriate “if the m ovant shows that there is no genuine dispute as to any m aterial fact and the m ovant is entitled to judgm ent as a m atter of law.” Fed. R. Civ. P. 56(a). “An issue of fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonm oving party. . . . A fact is m aterial if it m ight affect the outcom e of the suit under the governing law.” Fincher v. Depository Trust & Clearing Corp., 60 4 F.3d 712, 720 (2d Cir. 20 10 ) (internal quotations and citations om itted). The m oving party bears the burden of establishing the absence of any genuine issue of m aterial fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In deciding a m otion for sum m ary judgm ent, the court m ust “construe the facts in the light m ost favorable to the nonm oving party and m ust resolve all am biguities and draw all reasonable inferences against the m ovant.” Brod v. Om ya, Inc., 653 F.3d 156, 164 (2d Cir. 20 11) (quotation om itted). D ISCU SSION Franks did not oppose Defendants’ m otion for sum m ary judgm ent with respect to his state law claim s, federal claim s against the City, and federal claim s against Dinkle for excessive force and violation of equal protection. “Federal courts m ay deem a claim abandoned when a party opposing sum m ary judgm ent fails to address the [m ovant’s] 4 argum ent in any way.” Taylor v. City of New York, 269 F. Supp. 2d 68, 75 (E.D.N.Y. 20 0 3). Accordingly, the Court dism isses these claim s as abandoned. The rem aining claim s are against Dinkle for m alicious prosecution and false arrest under § 1983. Defendants argue that Dinkle is entitled to qualified imm unity from the false arrest and m alicious prosecution claim s because he had probable cause to arrest Franks. See D. Mem . at 11-12. Police officers are shielded from suits for dam ages under § 1983, “unless their actions violate clearly established rights of which an objectively reasonable official would have known.” Thom as v. Roach, 165 F.3d 137, 142 (2d Cir. 1999) (citing Harlow v. Fitzgerald, 457 U.S. 80 0 , 818 (1982)). The right not to be arrested in the absence of probable cause is clearly established. See Lennon v. Miller, 66 F.3d 416, 423 (2d Cir. 1995). Although probable cause is ordinarily required to m ake an arrest, an officer will be entitled to qualified im m unity if he can show that “arguable” probable cause existed: that is, either “(a) it was objectively reasonable for the officer to believe that probable cause existed [to arrest plaintiff]; or (b) officers of reasonable com petence could disagree on whether the probable cause test was m et.” Garcia v. Does, --- F. 3d --No. 12-2634-cv, 20 15 WL 737758, at *5 (2d Cir. Feb. 23, 20 15). The Court finds that there is no genuine dispute of fact that it was objectively reasonable for Dinkle to believe that he had probable cause to arrest Franks. “A positive photo identification by an eyewitness is norm ally sufficient to establish probable cause to arrest.” Celestin v. City of New York, 58 1 F. Supp. 2d 420 , 431 (E.D.N.Y. 20 0 8). Lee identified Franks in a photo array as the m an he observed shooting at his residence on J uly 2, 20 11. Additionally, Clark’s description of one of the gunm en m atched Franks’ physical characteristics and further corroborated Lee’s identification. Thus, Defendants’ have shown that Dinkle had at least arguable probable cause to arrest Franks, and he is 5 entitled to qualified im m unity from the false arrest and m alicious prosecution claim s. See Graebe v. Falcetta, 726 F. Supp. 36, 38 (E.D.N.Y. 1989), aff’d, 946 F.2d 883 (2d Cir. 1991) (as with false arrest claim , the presence of “arguable probable cause” is a com plete defense to an action for m alicious prosecution).4 CON CLU SION For the foregoing reasons, Defendants’ m otion for sum m ary judgm ent is GRANTED. The Clerk of Court is directed to enter judgm ent in favor of Defendants and close this case. SO ORDERED. Dated: Brooklyn, New York May 20 , 20 15 / s/ _ I. Leo Glasser Senior United States District J udge 4 Additionally, he is entitled to qualified im m unity from the m alicious prosecution claim because he had no authority to com m ence and continue the crim inal prosecution. See Harris v. Cnty. of Nassau, 581 F. Supp. 2d 351, 356 (E.D.N.Y. 20 0 8). 6
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