Serrano et al v. The City of New York et al, No. 1:2016cv08105 - Document 48 (S.D.N.Y. 2018)
Court Description: OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGEMENT re: 40 MOTION for Summary Judgment . filed by The City of New York, Thomas McHale, Anthony DiSimone, U.C. 0114, U.C. 0244. For the reasons stated herein, the motion for summary judgment is granted in part and denied in part. The motion is granted as to all claims asserted by plaintiff Steven Serrano, and his complaint against defendants is dismissed. As to all claims raise d by plaintiffs Samuel Garcia and Michael Serrano, the motion is denied. Plaintiffs Samuel Garcia and Michael Serrano shall retain claims for false arrest, unreasonable search and seizure, and malicious prosecution. Michael Serrano shall also retain his state law claim for assault and battery, as well as all pendant state law claims against the City under respondeat superior. The clerk is instructed to terminate the motion (ECF 40). The oral argument, currently scheduled for July 26, 2018, is c ancelled. Plaintiffs shall amend their complaint to reflect that the claims of Steven Serrano have been dismissed, and restate, without change, the claims by Samuel Garcia and Michael Serrano. The parties shall appear for a status conference on August 17, 2018, to determine what discovery remains, and if none remains, to set a trial date. Steven Serrano terminated. (Signed by Judge Alvin K. Hellerstein on 7/11/2018) (ne)
Download PDF
<![CDATA[
Serrano et al v. The City of New York et al Doc. 48 ;1: 'i USDC ~DNY l ,, T UN ITE D STATES DIS TRI CT CO UR NE W YO RK SOU TH ERN DIS TRI CT OF -------------- X -----------------------------------------------RR AN O,a nd STE VE NS ER RA NO ,MI CH AE LSE SAM UE L GARCIA, Plaintiffs, -againstCIT Y OF NE W YO RK , et al., 'l DOCUMENT !\ ELECTRONICALLY FILEU f ~....,...---=j j «~IA!::; DO C#:_ _ _ IlA TE FILED: OPINION AND OR DE R GRANTING IN PART AND DENYING IN PART DEFENDANTS' MO TIO N FOR SUM MA RY JUD GM EN T 16 Civ. 8105 (AKH) Defendants. ------------------------------------------------ -------------- X ALVIN K. HEL LER STE IN, U.S.D.J.: l arrest and subsequent prosecution of Thi s case concerns the allegedly unlawfu , Michael ent building. Plaintiffs Steven Serrano three individuals outside a Bronx apartm ober 17, 2016. y, "Plaintiffs") filed this action on Oct Serrano, and Samuel Gar cia (collectivel ver drug e falsely arrested as part of an underco adly stated, plaintiffs allege that they wer Bro ne of New York ("City"), Anthony DiSimo operation conducted by Defendants City and Undercover le"), Undercover Cop 0244 ("UC244"), ("DiSimone"), Tho mas McH ale ("McHa r amending the com plai nt on September C 114") (collectively "Defendants"). Afte Cop O114 ("U 1 false arrest, thereafter, plaintiffs allege claims for 8, 2017, and withdrawing certain claims respondeat ch and seizure, assault and battery, and malicious prosecution, unreasonable sear r federal and New York t hiring, training, and supervision unde have withdrawn all claims for negligen and all claims brought under the drawn their failure to intervene claims state law. Similarly, plaintiffs have with law claims. By not responding to uel Garcia also has withdrawn all his state Fourteenth Amendment. Plaintiff Sam false arrest and malicious ts, plaintiffs have also abandoned their defendants' collective knowledge argumen v. Daikin Am., Inc., 912 F. Supp. 2d McHale and DiSimone. See Plahutnik prosecution claims against defendants summary judg men t are deemed ts not made in opposition to a motion for 104 (S.D.N.Y. 2012) ("[A]rgumen 96, (S.D.N.Y. 2011) ("Plaintiff did Free Sch. Dist., 812 F. Supp. 2d 454 ,468 abandoned."); Senno v. Elmsford Union ent of the argument."). n papers, which operates as an abandonm not address this argument in his oppositio with prejudice. Accordingly, these claims are dismissed 1 Plaintiffs Dockets.Justia.com a claim for excessive force. Pre-trial ff Steven Serrano separately maintains superior. Pla inti y jud gm ent on d. Defendants now move for summar dings, including depositions, followe procee e entitled to qualified immunity and ther lly on the theory that the officers are all claims, principa the reasons st, search, and prosecute plaintiffs. For least arguable probable cause to arre was at is granted as to all part and denied in part. The motion that follow, the motion is granted in As to all he shall be dismissed from the case. rted by pla inti ff Steven Serrano, and claims asse is denied. cia and Michael Serrano, the motion claims raised by plaintiffs Samuel Gar Background Much of the background leading to plai ntiffs' arrests is undisputed. But jud gm ent these contested facts make summary significant disputes of fact remain, and asserted. inappropriate as to many of the claims cers y 22, 2015, New York City police offi At approximately 2:00 p.m. on Januar nx Park South in cs operation in the vicinity of 984 Bro e conducting a "bu y and bust" narcoti wer l 14 solicited "JD 2 drug buyer during the operation, UC the Bronx, New York. Posing as a , JD White chase heroin. After agreeing to the sale " a nonparty to this case, seeking to pur White, r to this case who was also standing nea roached "JD Red," another nonparty left UC l 14 and app to supply the heroin. 984 Bronx Park South, and asked him ven saction was developing, plaintiffs Ste The parties agree that while this tran g at 984 Bronx Park ding just outside the apartment buildin Serrano and Samuel Garcia were stan parties rano were living at the time. But the re Steven and his brother Michael Ser South, whe Steven left his t followed. Plaintiffs contend that as sharply dispute plaintiffs' role in wha struck up a Samuel, a former acquaintance, and apartment that afternoon, he ran into were conducting the "buy ting at a nearby housing complex and that officers were investigating a shoo It appears See Pl. Rule 56.1 Statement, ECF 44, rage potential cooperating witnesses. bust" operation in an attempt to leve and at 7-8. 2 n 2 conversation that lasted approximately thirty tiffs minutes. As some point during this time, plain e with Steven and Samuel briefly, and went claim that Michael Serrano arrived home, spok ng, claim that while Steven and Samuel were talki upstairs to the family's apartment. Plaintiffs a male and a female, behaving strangely. His Steven noticed two of the undercover officers, uelen commented to Sam uel- and only to Sam suspicions aroused, plaintiffs claim that Stev als g in the neighborhood, that these two individu that he believed, based on his experience livin epanski, ECF 44, Ex. 1, at 42:6-43: 11. Both were undercover cops. See Declaration of Szcz that Steven made this remark, which was Steven and Samuel stated in their depositions at Declaration of Szczepanski, ECF 44, Ex. 1, overheard by UC244, two or three times. See 44, ybe twice"); Declaration of Szczepanski, ECF 44:7 -9 (stating that he made the statement "ma statement "three times, maybe"). Samuel Ex. 3, at 33:14 (stating that Steven made the fied in his deposition that he neither agreed nor rently acknowledged the statement, but testi appa ECF 44, Ex. 1, 42:1 2-24 ; Declaration of disagreed. See Declaration of Szczepanski, ano, 3-38:2. Plaintiffs contend that Michael Serr Szczepanski, ECF 44, Ex. 2, at 33:2 -24, 37:2 statements were made, and defendants do not Stev en's brother, was not present when these 56.1 Statement, ECF 45, at~ 11. suggest otherwise. See Def. Response Rule defendants now take the position Although the police reports are contradictory, but also to JD Red in an effort to warn him that Steven made this remark not only to Samuel, that 3 ts claim that Steven and the other plaintiffs were the police were present. In effect, defendan uel . The parties dispute how close Steven and Sam acting as lookouts for drug dealers in the area Steven "then . UC2 44's contemporaneous report stated that The record is somewhat inconsistent on this point Ex. C. However, 41, cop." ' See Declaration of Kavin Thadani, ECF signal [sic] JD Red, don't do anything 'he's a and defendant stated that "defendant MICHAEL SERRANO one the Criminal Complaint drafted by Officer Disim IS A COP ."' See Declaration in sum and substance, 'THAT GUY GARCIA both pointed at informant #2 and stated this inconsistency any event, plaintiffs' current position renders of Kavin Thadani, ECF 41, Ex. A, at 2. In Samuel, he did state, in sum and Steven was speaking only to irrelevant. Plaintiffs now claim that although cops. For the reasons explained in individuals in the vicinity were undercover substance, that he believed certa the officers arguable most favorable to plaintiff, this statement gave below, even viewing the evidence in the light no. probable cause to arrest plaintiff Steven Serra 3 3 ion made, but Steven testified at his deposit to JD Red when the statements were were standing tion of Szczepanski, from JD Red at the time. See Declara that they were approximately ten feet ECF 44, Ex. 1, at 35:8. I 14 and informed him tha t the dealers Meanwhile, JD White returned to UC White then led ause of police presence in the area. JD would not complete the transaction bec of view, JD from plaintiffs' apartment. Once out l 14 to a laundromat around the corner UC left the area, me t up with UC244, and three glassines of heroin. UC I 14 then White sold UC I 14 the transaction together they notified a field team that Having received the notification, the was complete. arrest team, which included officers uding JD arrested a number of individuals, incl ne and McHale, swarmed the scene and DiSimo drug transaction, and ntiffs were acting as lookouts in the Red and JD White. Believing that plai also arrested. , Steven, Samuel, and Michael were a positive identification from UC244 based on e on his person, admitted to having a marijuana cigarett During the course of his arrest, Steven all n search. Based on this information, recovered the cigarette during a pat-dow and officers Substance in the d with Criminal Sale of a Controlled e plaintiffs were arrested and charge thre enth Degree. of a Controlled Substance in the Sev Third Degree and Criminal Possession hael testified in their d all three plaintiffs, Steven and Mic Although UC244 apparently identifie ain sent when Steven remarked that cert depositions that Michael was not pre respective anski, ECF 44, Ex. 1, at ver cops. See Declaration of Szczep individuals in the area were underco also contend 44, Ex. 2, at 34:15-35:15. Plaintiffs 3; Declaration of Szczepanski, ECF 45:23-46: was arrested only building whe n the arrests began and that Michael was inside the apartment e. See Pl. Rule ed police officers arrived on the scen he returned outside whe n the uniform after evidence to the 23. Defendants have not advanced any 56.1 Statement, ECF 44, at ,r,r 11, 22uing instead that tement, ECF 45, at ,r,r 11, 22- 23, arg trary, see Def. Response Rule 56.1 Sta con ts the officers' actions. plaintiffs' version of events still suppor 4 , cers to use two sets of handcuffs on him During his arrest, Steven asked the offi le set 4 lined to do so, cuffed Steven with a sing had done with Michael. The officers dec as they ely thirty back of an NYPD van. For approximat of handcuffs, and placed plaintiffs in the d that his handcuffs were too tight and requeste after his arrest, Steven complained that minutes , plaintiffs ened the handcuffs after multiple requests they be loosened. Although officers loos ts. rim and had minor abrasions on his wris Steven suffered physical pain in the inte claim that that Steven did 44, Ex. 1, at 73:7-76:16. It is uncontested See Declaration of Szczepanski, ECF custody, , either during or after his release from medical attention for his alleged injuries not seek issues. nor did he experience any lasting medical charges against Samuel Garcia and After a number of court appearances, the 's Office. See ion by the Bronx County District Atto rney Michael Serrano were dismissed on mot motion was that Ex. M, at 2: 11- 15 ("Although Peo ple' s Declaration of Kavin Thadani, ECF 41, s position ndant, on further review, it is the Peo ple' e was probable cause to arrest this defe ther requesting er burden of pro of at trial and as such are that we would be unable to meet our high issed on charges against Steven Serrano were dism l at this time."). On the same day, the dismissa 10-11. of Kavin Thadani, ECF 41, Ex. 0, at 2: speedy trial grounds. See Declaration Discussion gme nt standard, a "co urt shall grant Under the well-established summary jud material fact that there is no genuine dispute as to any summary jud gme nt if the movant shows ); Celotex t as a matter ofla w." Fed. R. Civ. P. 56(a and that the movant is entitled to judg men ts "if the 6). A genuine issue of material fact exis Corp. v. Catrett, 477 U.S. 317 ,32 2 (198 erso n a verdict for the nonmoving party." And such that a reasonable jury could return evidence is y judgment, a (1986). In ruling on a motion for summar v. Lib erty Lobby, Inc., 477 U.S. 242, 248 Declaration of was double-cuffed because of an accident. en testified at his deposition that Michael Stev Szczepanski, ECF 44, Ex. 1, at 74:19. 4 5 summary t most favorable to the party opposing Court must "vie w the evidence in the ligh ew credibility rences in favor of that party, and ... esch judgment, ... draw all reasonable infe Cir. 2004). West Hartford, 361 F.3d 113, 122 (2d assessments." Am nes ty Am. v. Town of Circuit has cautioned that because "[t]he In§ 1983 claims of this kind, the Second ented to the tly factual in nature," it is "properly pres issue of probable cause" is "predominan of New 3 (2d Cir. 1994); see also Farrell v. City ." Moore v. Comesanas, 32 F.3d 670 ,67 jury 8). However, 944400, at *10 (S.D.N.Y. Feb. 15, 201 York, No. 15 CIV. 8401 (PAE), 2018 WL stion of tled to qualified immunity, whi ch is a que ndants also argue that the officers are enti defe lified 502 U.S. 224 ,22 8 (1991) (describing qua law for the Court. See Hunter v. Bryant, re trial"). should be decided by the court long befo unity as a legal question that "ordinarily imm y under § 1983 "officers are entitled to qualified immunit The Supreme Court has explained that lness of constitutional right, and (2) the unlawfu (1) they violated a federal statutory or unless , 589 (2018) the tim e."' D.C. v. Wesby, 138 S. Ct. 577 their conduct was 'clearly established at to 2)). 5 Although an offi cer' s entitlement hle v. Howards, 566 U.S. 658 ,66 4 (201 (quoting Reic lained that even for the Court, the Second Circuit has exp qualified immunity is a question of law ual issues is immunity," "resolution of genuine fact when the motion is "based on qualified Stephenson v. F.3d 137, 149 (2d Cir. 2006); see also inappropriate." McClellan v. Smith, 439 nse nt should press a qualified immunity defe F.3d 68, 76 (2d Cir. 2003) ("A defenda Doe, 332 jud gme nt where a claim can be disposed ofb y summary during pretrial proceedings so that such jury."). nse can be identified and presented to the e, or factual disputes material to the defe possibl that they had at least arguable ified immunity protects officers provided In the context of a false arrest claim, qual (2d Cir. 2017). This issue is v. City of New York, 864 F.3d 200 ,206 probable cause to support the arrest. Kass discussed in greater detail below. 5 6 False Arrest A. st nt is appropriate on plaintiffs' false arre Defendants argue that summary jud gme t their arrests. Alternatively, defendants the officers had probable cause to suppor claims because probable d immunity because they had arguable e that the officers are entitled to qualifie argu facts and ms individually, I find that, in light of the cause. Analyzing each of plaintiff's clai tled to qualified time of the arrests, the officers are enti umstances known to the officers at the circ as to plaintiffs Steven Ser rano 's false arrest claim. But immunity only with respect to plaintiff utes of fact make summary jud gme nt Garcia and Michael Serrano, material disp Samuel is denied as to those claims. inappropriate, and defendants' motion gedly occurred in New York is A§ 1983 claim for false arrest that alle z v. City of e arrest under New York law." Gonzale "substantially the same as a claim for fals 6 state a claim for false arrest under New y, 728 F.3d 149, 155 (2d Cir. 2013). "To Schenectad ntiff, (2) the the defendant intended to confine the plai York law, a plaintiff must show that '(1) t, ntif f did not consent to the confinemen conscious of the confinement, (3) the plai plai ntif f was k, 331 F.3d privileged."' Savino v. City of New Yor (4) the confinement was not otherwise and 1994)). v. United States, 25 F.3d 98, 102 (2d Cir. 63, 75 (2d Cir. 2003) (quoting Bernard bable cause is an absolute defense to a It is well settled that "the existence of pro se , 152 (2d Cir. 2006). The probable cau st claim." Jaegly v. Couch, 439 F.3d 149 false arre unreasonable endment, which protects individuals from standard is derived from the Fourth Am F.3d 845, probable cause." Weyant v. Okst, l 01 s and seizures, "including arrest without searche 'knowledge probable cause for an arrest whe n he has 852 (2d Cir. 1996). "A police officer has . s a separate claim for false issue, the amended complaint also raise Although the parties do not address the York law, false arrest and false t, ECF 27, at~ 64(d). But "[u]nder New imprisonment. See Amended Complain as for a false arrest claim und er§ 1983." the elements for both are the same imprisonment are one and the same, and her, 2018 WL 1583036, at *3. As 491, 515 (S.D.N.Y. 2013); see also Hatc v. Goldstein, 938 F. Supp. 2d Hershey claims and can be analyzed s are coterminous with their false arrest such, plaintiffs' false imprisonment claim 036, at *3. 1583 together. See, e.g., Hatcher, 2018 WL 6 7 icient to warrant a of facts and circumstances that" are suff or reasonably trustworthy information or is the pers on to be arrested has committed on of reasonable caution in the beli ef that pers ting Weyant v. , 704 F.3d 105, 111 (2d Cir. 2013) (quo committing a crim e."' Swartz v. Insogna City of New also Jaegly, 439 F.3d at 152; Hatcher v. 101 F.3d 845, 852 (2d Cir. 1996)); see Okst, 8). 1583036, at *4 (S.D.N.Y. Mar. 27, 201 York, No. 15-CV-7500 (VSB), 2018 WL e of arrest charge did not exist, the existenc "Ev en if probable cause for the actual otham v. City of precludes a false arrest claim." Higginb probable cause to arrest for any offense ]e 5); see also Jaegly, 439 F.3d at 154 ("[W 105 F. Supp. 3d 369 ,37 3 (S.D.N.Y. 201 New York, existed to arrest st turns only on whether probable cause conclude here that a claim for false arre ect to each whether probable cause existed with resp a defendant, and that it is not relevant at the time of actually invoked by the arresting officer individual charge, or, indeed, any charge al Sale of a rges invoked against pla inti ffs- Cri min arrest."). Put differently, the actual cha Substance in and Criminal Pos sess ion of a Controlled trolled Substance in the Third Degree Con of the arrest, ... focus of this inquiry is "on the validity the Seventh Deg ree -are irrelevant. The st fails if 439 F.3d at 154, and a claim of false arre on the validity of eac h charge," Jaegly, not invoked by the offense, regardless of the charge actually probable cause existed to support any arresting officer. officers lacked probable cause to arrest Defendants also claim that even if the l settled that entitled to qualified immunity. It is wel plaintiffs, the officers are nonetheless a federal y und er§ 1983 unless (1) they violated "officers are entitled to qualified immunit 'cle arly the unlawfulness of their conduct was statutory or constitutional right, and (2) 7 en a (quoting Reichle, 566 U.S. at 664). Wh at the tim e."' Wesby, 138 S. Ct. at 589 established be "sufficiently of the officer's conduct," the Jaw must to be "clearly established ... at the time y, 138 S. Ct. at 589 In order for a right d that what he is doing is unlawful." Wesb every reasonable official would understan clear that (2011)). Moreover, "(t]o be Ashcroft v. al-Kidd, 563 U.S. 731, 741 rnal quotation marks omitted) (quoting (inte ting precedent." Id. "It is a sufficiently clear foundation in then-exis ly established, a legal principle must have clear 7 8 le qualified immunity ... if he had arguab arrest is made, "[a] n officer is entitled to claim of false which the offense, regardless of the offense with bable cause to arrest the plaintiff for any pro Cir. 2017) City of New York, 864 F.3d 200 ,20 6 (2d plaintiff was actually charged." Kass v. (S.D.N.Y. o/N ew York, 295 F. Supp. 3d 350, 364 phasis added); see also Collins v. City (em 3036, at *4 cause standard); Hatcher, 2018 WL 158 2018) (applying the arguable probable cer to 'it was objectively reasonable for the offi "Arguable probable cause exists when (same). could disagree on ... officers of reasonable competence believe that probable cause existed, or terson, s, 864 F.3d at 206 (quoting Myers v. Pat the probable cause test was met .'" Kas whether 819 F.3d 625 ,63 3 (2d Cir. 2016)). y protects an officer "unless 'no officer In sum, the doctrine of qualified immunit es,'" id. e the same choice in similar circumstanc of reasonable competence could have mad tent "protect[] ... all but the plainly incompe rs, 819 F .3d at 63 3), and is intended to (quoting Mye ley v. Briggs, ," Wesby, 138 S. Ct. at 589 (quoting Mal or those who knowingly violate the law 475 U.S. 335 ,341 (1986)). 1. Plai ntif f Steven Serrano t with respect to plaintiff Steven Defendants first seek summary judg men probable cause find that the officers had at.least arguable Ser rano 's false arrest claim. Because I ted. to support the arrest, the motion is gran d on the following sequence of events: The officers arrested Steven Serrano base t once, n, UC244 heard Steven remark, at leas course of a "bu y and bust" drug operatio During the Steven made e undercover cops. Plaintiffs admit that that certain individuals on the street wer cent to drug ational tone and in an area directly adja a statement multiple times in a convers such d UC l 14 that to Ste ven 's statements, JD White informe activity. Then, apparently in response " must "clearly prohibit the -existing precedent;" the "legal principle enough that the rule is suggested by then not mstances before him." Id. at 590. officer's conduct in the particular circu 9 : te because of police presence in the area. JD Whi his dealers would not complete the transaction ers and comer to avoid detection by undercover offic then led UCl 14 to a laundromat around the nces, the officers had at least arguable probable made the sale. Under these facts and circumsta ce enable a Criminal Sale of a Controlled Substan cause to arrest Steven Serrano as a lookout to 8 the was charged, and for Criminal Facilitation in in the Third Degree, the crime for which he third be interpreted as "conduct which provides [a Fourth Degree. His conduct could reasonably mission" of a felony. N. Y. Penal Law person] with means or opportunity for the com § 115.00(1). 9 e that Steven Serrano made these To avoid summary judgment, plaintiffs argu ity that Steven had no knowledge that drug activ statements to Samuel Garcia, not JD Red, and Law 44, at ,i,i 11-1 4; see also Pl. Memorandum of was afoot. See Pl. Rule 56.1 Statement, ECF tiffs "did not interact with 'JD Red ' or 'JD in Opposition, ECF 44, at 10 (arguing that plain taking place near their apartment"). But this White' nor did they know that a drug sale was nces iry, which centers on the facts and circumsta argument misapprehends the focus of the inqu the t. Swartz, 704 F.3d at 111. And even viewing known to the officers at the time of the arres fs-t hat is, assuming that Steven was speaking evidence in the light most favorable to plai ntif en was t arguable probable cause to believe that Stev only to Sam uel- the officers still had at leas were repeated statements that undercover officers involved in drug activity. Steven Serr ano' s in the immediate vicinity of a drug transaction. present wer e made in a conversational tone and admit that they were made. And tellingly, after Officers hear d these statements, and plaintiffs nd 14 that the heroin deal had to be moved arou these statements were made, JD White told UCl substance in the person is guilty of criminal sale of a controlled N.Y. Penal Law § 220.39(a) provides that "[a] sells ... a narcotic drug." third degree when he knowingly and unlawfully tation in the fourth degree des that "[a] person is guilty of criminal facili 9 ln full, N.Y. Penal Law § 115.00(1) provi intends to commit a crime, he engages in aid ... to a person who when, believing it probable that he is rendering ission there of and which in fact aids person with means or opportunity for the comm conduct which provides such such person to commit a felony." 8 10 saction and his dealers would not complete the tran the corner because "the cops [were] out" viewed ECF 41, Ex. A, at 2. Taken together and rwise. See Declaration of Kavin Thadani, othe sufficient to time, these facts and circumstances were from the perspective of the officers at the the arrest. create arguable probable cause to support m must be dismissed for a separate Moreover, Steven Serr ano 's false arrest clai rette ntiff admitted that he had a marijuana ciga during the officers' pat-down search, plai reason: na under cause to arrest him for possession of marijua on his person. This gave officers probable 10 this conclusion, plaintiff argues that because of the New York Penal Law. To avoid § 221.05 dent to the st Steven in the first place, the search inci the officers lacked probable cause to arre from obtained therefrom cannot shield the officers arrest was a~so unlawful and any evidence ntiff is Opposition, ECF 44, at 12. In effect, plai liability. See Pl. Memorandum of Law in operates onous tree doctrine, "an evidentiary rule that advancing a version of the fruit of the pois d as a ude unlawfully obtained evidence recovere in the context of criminal procedure" to excl , 145 (2d Townes v. City ofNew York, 176 F.3d 138 consequence of unlawful official conduct. There, the the Second Circuit's decision in Townes. Cir. 1999). This argument is foreclosed by 'to deter of the poisonous tree doctrine is calculated Second Circuit explained that "[t]he fruit of the liberty by creating an ince ntiv e-av oida nce future unlawful police conduct' and protect rights of r state actors to respect the constitutional suppression of illegally seized evid enc e-fo for such ndra, 414 U.S. 338 ,347 (1974)). The need suspects." Id. (quoting United States v. Cala gly context, and the Second Circuit has accordin ntive structure is less forceful in the civil an ince actions." doctrine ... is inapplicable to civil § 1983 held that "[t]he fruit of the poisonous tree Id. marihuana when person is guilty of unlawful possession of N.Y. Penal Law § 221.05 provides that "[a] huana." knowingly and unlawfully possesses mari 10 11 he doctrine cannot be used to "lin k the Under Townes, the fruit of the poisonous tree on e nex t-th e discovery of the marijuana cigarette unreasonable search and seizure" to what cam en officers probable cause to arrest plaintiff Stev plai ntif fs pers on-w hich unquestionably gave York, 478 F.3d 76, 91 n.16 (2d Cir. 2007); see Serrano. Id. at 145 -46; Jenkins v. City ofNew st .N.Y. Mar. 27, 2018) ("For federal false arre also Hatcher, 2018 WL 1583036, at *3 (S.D g search is illegal, police officers may use claims, even in circumstances where a precedin blish probable cause for an arrest."); Hayes v. evidence obtained in that illegal search to esta F. Supp. . 2010); Matthews v. City of New York, 889 Perotta, 751 F. Supp. 2d 597 ,602 (S.D.N.Y e for if the officers lacked arguable probable caus 2d 418 ,431 (E.D.N.Y. 2012). Therefore, even 11 arrest claim must be dismissed. initial search, plai ntiff Steven Serrano's false the t arguable probable cause to arrest Accordingly, because the officers had at leas cause is a complete defense to a claim of false plaintiff Steven Serrano, and because probable law for false arrest must fail. arrest, plai ntif fs claim und er§ 1983 and state 2. Plai ntiff s Samuel Garcia and Michael Serrano e to Samuel Garcia, I cannot say at Applying the same framework described abov matter, able cause to support an arrest. As an initial this stage that the officers had arguable prob ia or scene cannot support the arrests of Samuel Garc the discovery of a marijuana cigarette at the Steven ijuana cigarette during a pat-down search of Michael Serrano. The officers found the mar ano, officers ever observed Garcia (or Michael Serr Serrano, and defendants do not claim that the iple applies when ere is some dispute ... as to whether this princ Although the parties do not raise this issue, "[t]h 036, at *3 (collecting al, false arrest claim." Hatcher, 2018 WL 1583 the underlying claim is a state, rather than feder "some ambiguity as to s in this district have recognized that despite cases from New York state courts). But court an officer" in ning as Townes, qualified immunity protects whether New York courts apply the same reaso F. App' x 11, 13 (2d Cir. 2016) Cabral v. City a/Ne w York, 662 circumstances of this kind. Id. at *4; see also als'] adoption of Townes's may exist as to [the New York Court of Appe (holding that "[w]hatever ambiguity regard to the state claim"). Accordingly, the immunity with reasoning," the officer was entitled to "qualified plaintiff Steven Serrano's state law claims for to qualified immunity on the same theory for officers are also entitled false arrest. 11 12 12 nts do not ed substance. It is also clear, and defenda for that matter) in possession of a controll over the hael Serrano had constructive possession est otherwise, that neither Garcia nor Mic sugg v. Manini, ket at the time of the arrests. See People marijuana cigarette in Steven Serr ano 's poc charge k, the rule has long been that to support a N.Y.2d 561, 572 -73 (1992) ("In New Yor 79 that on of tangible property, the People must show that a defendant was in constructive possessi trol over the property by a sufficient level of con defendant exercised 'dom inio n or control' the and is d or over the person from who m the contrab over the area in which the contraband is foun on 222 (2d Cir. 2006) ("Constructive possessi ); United States v. Paulino, 445 F.3d 211, seized." exercise power and the intention at a given time to exists when a person ... knowingly has the ks or through others." (internal quotation mar n and control over an object, either directly dominio N.Y. Penal 982 F.2d 64, 71 (2d Cir. 1992))); see also omitted) (quoting United States v. Gordils, 's arrests such, Samuel Garcia and Michael Serrano Law § 10.00(8) (defining possession). As cannot be premised on criminal possession of marijuana. genuine disputes of fact concerning his Moreover, as to Samuel Garcia, there are that only e in this case. It is apparently undisputed involvement in the drug transaction at issu outside aloud on the presence of undercover officers Steven Serrano, and not Garcia, commented ed Steven Garcia stated that he perhaps acknowledg of 984 Bronx Park South. In his deposition, to was uninterested because it had "nothing statements concerning police activity, but Serr ano 's not , ECF 44, Ex. 2, at 33:8. Defendants have do with [him]." Declaration of Szczepanski t ing instead that Gar cia' s mere presence nex y advanced a contrary version of events, argu seriousl st. See Def. t was made is sufficient to support the arre to Steven Serrano at the time the statemen smok ing marijuana outside of sputed that plain tiff Sam uel Garc ia was Defendants separately argue that "it is undi , ECF 43, at 10. But this revelation his arrest." Def. Mem oran dum of Law 984 Bron x Park Sout h a shor t time before Garc ia smok ing marijuana unco ntest ed that the officers neve r obse rved out in plain tiffs' depositions. It is came Decl arati on of Kavin Thadani, laint alleges possession of marijuana. See before his arrest; indeed, the criminal comp ledge at the time of the arrest). F.3d at 111 (focusing on the offic er's know ECF 41, Ex. A, at 1; see also Swartz, 704 12 13 the This argument proves too much. Based on Memorandum of Law, ECF 43, at 10-11. duct a vague impression of Samuel Gar cia's con ence presented, the Court is left with only evid ent in the tion is presented suggests that his involvem prior to his arrest, and what little informa berth n granting defendants the widest possible saction was minimal or nonexistent. Eve drug tran ander to be used to justify the arrest of a mere byst of qualified immunity, the doctrine cannot ity 85, 91 (1979) ("[A] pers on's mere propinqu activity. See Ybarra v. Illinois, 444 U.S. criminal rise to inal activity does not, without more, give to others independently suspected of crim e to wing the evidence in the light most favorabl probable cause to search that person."). Vie been. isely what Samuel Garcia appears to have plaintiffs, as I am required to do, that is prec 's connection to the drug transaction The evidence suggests that Michael Serr ano supported by plaintiffs' version of the events, which is was even more attenuated. According to d aloud that Michael was not present whe n Steven state all three plaintiffs' deposition testimony, testified he outside when the arrests began. Michael undercover cops were in the area, nor was after n the arrests began and returned outside only that he was inside the family apartment whe 3Szczepanski, ECF 44, Ex. 2, at 33:2 -24, 37:2 ing his brother yelling. See Declaration of hear se Rule rnative version of events, see Def. Respon 3 8 :2. Defendants have not advanced a alte in the record and in any event, any conflicting evidence 56.1 Statement, ECF 45, at 'i['i[ 11, 22-2 3, trial. merely creates a genuine dispute of fact for disputed facts presented by the parties, I Under these circumstances, and given the support the cause, or even arguable probable cause, to cannot say that the officers had probable mary ano. As such, defendants' motion for sum arrests of Samuel Garcia and Michael Serr judg men t on these claims is denied. B. Unreasonable Search and Seizure search and seizure under § 1983 and Plaintiffs also raise claims for unreasonable ches and ver money damages for unreasonable sear state law. Und er§ 1983, a plai ntif f may reco 14 In analyzing such a claim, "courts look to the seizures that violate the Fourth Amendment. whether a search violated a plai ntif fs reasonableness of the search whe n determining 9 036, at *7 (citing Terry v. Ohio, 392 U.S. 1, constitutional rights." Hatcher, 2018 WL 1583 to a itted to conduct reasonable searches incident (1968)). However, officers are generally perm there 332, 338 (2009). Therefore, to the extent that lawful arrest. See Arizona v. Gant, 556 U.S. ts any reasonable searches incident to their arres probable cause to support plaintiffs' arrests, was *4 York, No. 12 CIV. 2916, 2013 WL 673872, at were.also lawful, see Guerrero v. City ofNew claim the extent that Guerrero is basing his§ 1983 n.3 (S.D.N.Y. Feb. 25, 2013) ("In addition, to to a claim fails as well, because a search incident on an allegedly unreasonable search, ... this ) rle, 639 F. Supp. 2d 352, 356 (S.D.N.Y. 2009 ul arrest is per se reasonable."); Moore v. Hea lawf r to g searches incident to a lawful arrest in orde ("Generally, officers are justified in conductin City of ent the destruction of evidence."); Walker v. ensure the safety of officers as well as to prev ) WL 2799159, at *6 (E.D.N.Y. June 27, 2017 New York, No. 15 CV 500 (NG) (ST), 2017 . 's arrest, the search of his person was lawful.") ("Because there was probable cause for plaintiff seizure claims tum entirely on the As such, plaintiffs' unreasonable search and at ause I have already found that the officers had probable cause analysis conducted above. Bec are arrest of plaintiff Steven Serrano, the officers least arguable probable cause to support the 13 able search and seizure claim. See entitled to qualified immunity as to his unreason also e ts' motion for summary judg men t is therefor Walker, 2017 WL 2799159, at *6. Defendan ers' search of the marijuana cigarette cannot support the offic Unlike his false arrest claim, the discovery of began See Townes, 176 F.3d at 148 found only once the search plaintiff Steven Serrano, for the cigarette was related to the invasion of their hes or seizures may recover damages directly ("Victims of unreasonable searc y to reputation, etc.; but ges for physical injury, property damage, injur priva cy--i nclud ing (where appropriate) dama ting evidence and ies that result from the discovery of incrimina such victims cannot be compensated for injur ntiffs must allege damages , 889 F. Supp. 2d at 431 (finding that "plai consequent criminal prosecution."); Matthews and could not recover h and seizure to recover under Section 1983" attributable to the claims for unreasonable searc initial arrest was supported by arguable se I find that Steven Serrano's damages for false arrest). Regardless, becau an unreasonable search and marijuana possession, plaintiff cannot maintain probable cause independent of his at *6. seizure claim. See Walker, 2017 WL 2799159, 13 15 propriate I hav e found that sum mar y judg men t is inap gran ted as to Stev en Serrano. But beca use hael e to arre st plaintiffs Sam uel Gar cia and Mic on the que stio n of arguable probable caus mus t ms for unre ason able search and seizure also Serrano, see supra sect ion A.2, thei r clai and sum mar y judg men t as to Samuel Gar cia ive. Accordingly, defe nda nts' mot ion for surv Michael Serrano is denied. C. Mal icio us Pro secu tion pros ecut ion und er § 1983 and state law. Plaintiffs also raise claims for mal icio us or er New Yor k law are: "(1) the initiation The elements of mal icio us pros ecut ion und ng in nst plaintiff; (2) term inat ion of the proc eedi con tinu atio n of a criminal proc eedi ng agai actual e for com men cing the proceeding; and (4) plai ntif fs favor; (3) lack of prob able caus 136 (2d Cir. ons." Jocks v. Tavernier, 316 F.3d 128, malice as a mot ivat ion for defe nda nt's acti 947 (2d Cir. (quoting Murphy v. Lynn, 118 F.3d 938, 2003) (internal quotation marks omitted) under a cause of acti on for mal icio us pros ecut ion 1997)). Additionally, "[i] n orde r to allege und er state to the elements of mal icio us pros ecut ion § 1983, [plaintiffs] mus t assert, in addition plai ntif fs aignment liberty restraint to imp lica te the law, that there was (5) a sufficient post-arr F.3d 208, New York City Transit Auth. (NYCTA), 215 Fou rth Am end men t rights." Rohman v. ents); Lynch 8 WL 1583036, at *5 (applying thes e elem 215 (2d Cir. 2000); see also Hatcher, 201 . 27, P), 2018 WL 1750078, at *7 (S.D.N.Y. Mar v. City of New York, No. 16 CIV. 7355 (LA 2018) (same). 3, "[t]h e existence of prob able cause is As with claims for false arrest und er§ 198 New York, 612 us prosecution." Manganiello v. City of a complete defense to a claim of malicio Cir. no v. City of New York, 331 F.3d 63, 72 (2d 149, 161 -62 (2d Cir. 2010) (quoting Savi F.3d malicious has clarified that 'pro bab le cau se' in the 2003)). However, "[t]he Sec ond Circuit eed ."' beli eve that [the prosecution] could succ ecut ion con text mea ns 'pro bab le cause to pros (S.D.N.Y. 258 (KMK), 2017 WL 6375791, at *23 Garcia v. Cty. of Westchester, No. 11-CV-7 16 is so York, 336 F.3d 72, 76 (2d Cir. 2003)). This Dec. 12, 2017) (quoting Boy d v. City of New er malicious prosecution context is slightly high use "[t]he probable cause standard in the beca 2013). sbury v. Wertman, 721 F.3d 84, 95 (2d Cir. than the standard for false arrest cases." Stan e to probable cause to arrest with probable caus rts must therefore take care not to "conflate Cou of probable ully prosecuted," for "[ o ]nly the latter kind believe that [a plaintiff] could be successf Shie ld prosecution claim." Posr v. Cou rt Officer e is at issue with respect to the malicious caus , however. ). This distinction is not relevant to this case No. 207, 180 F .3d 409, 417 (2d Cir. 1999 relying erentiate between the two standards, instead First, plaintiffs have not attempted to diff Pl. probable cause to support their arrests. See solely on the theory that the officers lack Second, this distinction is meant to capture dum of Law in Opposition, ECF 44, at 12. Memoran ld later ht exist at the time of arrest, "evidence cou the notion that although probable cause mig 82 F.3d cause." Low th v. Town of Cheektowaga, surface which would eliminate that probable ofSuffolk, n marks omitted) (quoting Cox v. County 563, 571 (2d Cir. 1996) (internal quotatio lained that In such a case, the Second Circuit has exp 780 F. Supp. 103, 108 (E.D.N.Y. 1991)). be made the groundless nature of the charges must "[i]n order for probable cause to dissipate, 6375791, at ing fact." Id.; see also Garcia, 2017 WL apparent by the discovery of some interven rs no at the time of the arrest and the plai ntif f offe *23 ("If, however, 'probable cause existed ecution post-arrest, then the claim for malicious pros additional facts to show that it dissipated 6 WL v. City of New York, No. 15-CV-3257, 201 cannot be mai ntai ned ."' (quoting Jimenez ry, nor is Plaintiffs have not advanced any such theo 2617, at *4 (E.D.N.Y. Mar. 21, 2016))). 109 is relevant to the facts of this case. there any reason to believe this distinction the totality of the facts and As to plaintiff Steven Serrano, I find that ort his a finding of arguable probable cause to supp circumstances described above also support e, and ments, the context in which they were mad prosecution. Based on Steven Serr ano 's state had probable cated apparently in response, the officers the fact that the drug transaction was relo 17 76. nst him could succeed. Boyd, 336 F.3d at cause to believe that the prosecution agai ano's lified immunity as to plaintiff Steven Serr Accordingly, the officers are entitled to qua him. But as ion for summary judg men t is granted as to malicious prosecution claims, and the mot ady have held that summary judg men t is s Samuel Garcia and Michael Serrano, I alre to plaintiff supra probable cause to support their arrests. See inappropriate on the question of arguable text is e standard in the malicious prosecution con section A.2. Because "[t]he probable caus officers arrest cases," Stansbury, 721 F.3d at 95, the slightly higher than the standard for false cia and e to support the prosecutions of Samuel Gar necessarily lacked sufficient probable caus Michael Serrano. not put forth evid Defendants also argue that plaintiffs have ence to "prove the m-t hat the prosecution was motivated by th element of [a malicious prosecution] clai four t the malice, plaintiffs must demonstrate that "tha malice." Lowth, 82 F.3d at 573. To show ive, proceeding due to a wrong or improper mot ndant must have commenced the criminal defe York, 874 s of just ice served." Dufort v. City of New something other than a desire to see the end berg, n marks omitted) (quoting Nardelli v. Stam 338, 353 (2d Cir. 2017) (internal quotatio F.3d ice to plaintiffs have sufficiently established mal 44 N.Y.2d 500, 502 -03 (1978)). I find that tes an s, "[a] lack of probable cause generally crea ive summary judgment. First, in most case surv may be see also Dufort, 874 F.3d at 353 ("Malice inference of malice." Boyd, 336 F.3d at 78; their cause."). Moreover, plaintiffs' theory is that inferred ... from the absence of probable a nearby peration in an unrelated investigation into prosecutions were motivated to induce coo roperly e that the prosecution against him was imp shooting, which "also supports the inferenc material ding that the plaintiff had demonstrated a motivated." Dufort, 874 F.3d at 354 (hol [the s told by detectives that they were treating dispute of fact whe n the trial attorney "wa "). ce him to testify against other participants plaintiff] as a suspect solely in order to indu 18 of fact on the question of malice, the motion for Because the record also presents genuine issues uel Garcia and Michael Serrano. summary judg men t is denied as to plaintiffs Sam D. Excessive Force excessive force, principally Plaintiff Steven Serrano also brings a claim for too tight and his pleas to loosen the cuffs arguing that the handcuffs placed on his wrists were went unanswered. 14 t is analyzed under the "A claim of excessive use of force during an arres standard." Case v. City of New York, 233 F. Fourth Ame ndm ent's 'objective reasonableness' am v. Connor, 490 U.S. 386, 388 (1989)). "As Supp. 3d 372, 385 (S.D.N.Y. 2017) (quoting Grah onableness' inquiry in an excessive force case in other Fourth Amendment contexts, ... the 'reas officers' actions are 'objectively reasonable' in is an objective one: the question is whether the them, without regard to their underlying intent or light of the facts and circumstances confronting motivation." Graham, 490 U.S. at 397. ly tight handcuffing that The Second Circuit has "recognized that excessive causes of the Fourth Amendment." Shamir v. City of injury can constitute excessive force in violation evaluating the reasonableness of handcuffing, New York, 804 F.3d 553, 557 (2d Cir. 2015). "[I]n cuffs were unreasonably tight; (2) the a Court is to consider evidence that: (1) the hand handcuffs were too tight; and (3) the degree of defendants ignored the [plaintiffs'] pleas that the (internal quotation marks omitted) (quoting injury to the wrists." Case, 233 F. Supp. 3d at 385 F. Supp. 2d 459, 468 (S.D.N.Y. 2008)); see Lynch ex rel. Lynch v. City of Mount Vernon, 567 704, 724 (S.D.N.Y. 2017). Courts have placed also Lloy d v. City of New York, 246 F. Supp. 3d Usavage v. Port Auth. of New York & New particular emphasis on the injury requirement, see ), and "[t]here is a consensus among courts in Jersey, 932 F. Supp. 2d 575, 592 (S.D.N.Y. 2013 excessive force unless it causes some injury this circuit that tight handcuffing does not constitute 14 not allege claims for excessive force. Plaintiffs Samuel Garcia and Michael Serrano do 19 need Supp. 2d at 468. Although an alleged injury beyond temporary discomfort," Lynch, 567 F. 549, ath, No. 04 CIV. 6071(LMS), 2005 WL 2482 not be "severe or permanent," Vogeler v. Colb Supp. e than merely "de minimis," Usavage, 932 F. at *9 (S.D.N.Y. Oct. 6, 2005), it must be mor 2d at 592. t favorable to plaintiff, defendants Here, even viewing the facts in the light mos ed that rd shows that after Steven Serrano complain are entitled to summary judgment. The reco ested that he be double-cuffed), the officers his handcuffs were too tight (and initially requ as plaintiff claims, ignore his pleas that the loosened his handcuffs. The officers did not, ed . 3d at 385. Moreover, plai ntiff has not establish handcuffs were too tight. Case, 233 F. Supp r There is no dispute that Steven Serrano neve an injury that rises above a de minimis level. his nor did he seek medical treatment following requested medical treatment while in custody, d to (noting that "[t]he most common injuries foun release. See Usavage, 932 F. Supp. 2d at 592 ral s are scarring and nerve damage"). As a gene satisfy the injury requirement in hand cuff case ssive that handcuffing does not suffice for an exce rule, "[ c]ourts in this Circuit have ... found 246 nd temporary discomfort or bruising." Lloyd, force claim unless it causes some injury beyo No. omitted) (quoting Omar v. City of New York, F. Supp. 3d at 724 (internal quotation marks the .N.Y. Feb. 27, 2015)). The law is clear that 13-cv-2439 (RA), 2015 WL 857587, at *7 (S.D ion an excessive force claim. Accordingly, the mot evidence raised here is insufficient to support s excessive force claim is granted. for summary judg men t as to Steven Serrano' E. Assault and Battery tional placing of another person in Under New York law, "(a] n 'assa ult' is an inten A 'batt ery' is an intentional wrongful physical fear of imminent harmful or offensive contact. Girden v. Sandals Int 'l, 262 F.3d 195, 203 (2d contact with another person without consent." NY (quoting United Nat 'l Ins. Co. v. Waterfront Cir. 2001) (internal quotation marks omitted) )); see also Green v. City ofNew York, 465 F.3d Realty Corp., 994 F.2d 105, 108 (2d Cir. 1993 20 i' ' , 96 F. Supp. 3d 138, 152 (S.D.N.Y. 2015). 65, 86 (2d Cir. 2006); Rucks v. City of New York r New York state law for assault and battery, the Although all three plaintiffs assert claims unde claims rest on different theories. 1. Steven Serrano rests on two grounds: (1) Plain tiff Steven Serr ano' s assault and battery claim unlawful arrest, and (2) assault and battery unlawful physical cont act incident to an allegedly first of these grounds, the existence of probable related to the tightness of the handcuffs. On the es his claim. The law is clear that "wh ere cause to support plai ntiff s arrest fatally undermin with the arrested person does not constitute there has been a lawful arrest, intentional contact nable." Leibovitz v. City of New York, No. 14 assault and battery, prov ided such force is reaso (S.D.N.Y. Mar. 17, 2016) (internal quotation Civ 3297 (RA) (JCF), 2016 WL 3671232, at *8 States, 472 F. Supp. 2d 366, 381 (E.D.N.Y. marks omitted) (quoting Cunningham v. United Accordingly, because the officers had probable 2007)); see also Lloyd, 246 F. Supp. 3d at 729. maintain an assault and battery claim under New cause to arrest plaintiff, Steven Serrano cannot York law. battery claims of this kind "are As to plai ntiff s handcuffing theory, assault and v. City of Mount Vernon, 96 F. Supp. 3d 263, 295 evaluated like excessive force claims." Green ted) (quoting Brown v. City of New York, No. 11(S.D.N.Y. 2015) (internal quotation marks omit Feb. 8, 2013)). This is so because "exc ept for§ CV- 1068 , 2013 WL 491926, at *10 (S.D.N.Y. r color of state law, the essential elements of 1983 's requirement that the tort be committed unde v. Doherty, 944 F.2d 91, 95 (2d Cir. 1991); the two claims" are "substantially identical." Posr . of New York, 50 F. Supp. 3d 426, 440 (S.D.N.Y Lloyd, 246 F. Supp. 3d at 729; Tompkins v. City ry claims against police officers using the 2014) ("Ne w York courts analyze assault and batte s unde r Section 1983."). Because plain tiff has same standard applicable to excessive force claim 21 y failed to establish a claim for excessive force under§ 1983, defenda nts' motion for summar judgme nt as to Steven Serrano 's assault and battery claims is also granted. 2. Michael Serrano Plaintif f Michael Serrano has not alleged that officers used excessive force during 15 i.e., that the course of his arrest. Instead, plaintiff relies on the first ground discussed above- l. because his underlying arrest was unlawful, any contact associated with it was also unlawfu of See Rucks, 96 F. Supp. 3d at 152-53 ("[I]f an arrest is determined to be unlawful, any use force force against a plaintiff may constitute an assault and battery, regardless of whether the No. would be deemed reasonable if applied during a lawful arrest."); Goonewardena v. Spinelli, York law 15-CV-5239 (MKB) (ST), 2017 WL 4280549, at* 11 (E.D.N.Y. Sept. 26, 2017) ("New battery holds that any force used during the course of an unlawful arrest gives rise to assault and claims against the arresting officers."). Because the issue of arguable probable cause to arrest Michael Serrano raises a a jury. disputed issue of material fact, plaintif fs assault and battery claim also must be put to ed See Goonewardena, 2017 WL 4280549, at* 11 ("Accordingly, because Plaintif f has establish a false arrest claim against [defendant police officers], under New York law, Plaintif f has York, established assault and battery claims against [the defendants]."); Biswas v. City of New 973 F. Supp. 2d 504, 530-31 (S.D.N.Y. 2013) ("If an arrest is unlawful, an arresting police ion of officer commits a battery when he or she touches the arrestee, including during the applicat claims handcuffs."); cf Lloyd, 246 F. Supp. 3d at 729 ("But because Plaintif fs excessive force her based upon the pushing and handcuffing incidents must be decided by a jury, so too must is state law assault and battery claims."). Accordingly, the motion for summary judgme nt denied. 15 . As noted above, see supra Note 1, all of plaintiff Samuel Garcia's state law claims have been dismissed 22 F. Municipal Liability led to sum mar y judg men t as to all Fina lly, defe ndan ts argu e that they are entit ry of respondeat superior. claim s agai nst the City brou ght unde r a theo Yor k law perm its plain tiffs to hold Unli ke claim s brou ght unde r § 1983, "Ne w scop e mitt ed by emp loye es whil e actin g with in the mun icip aliti es vica riou sly liabl e for torts com e . 3d at 440; see also Ackerson v. City of Whit of their emp loym ent. " Tompkins, 50 F. Supp the ever , ther e can be no vica riou s liabi lity in Plains, 702 F.3d 15, 22 (2d Cir. 2012 ). How a City 's emp loye es. See Hatcher, 2018 WL abse nce of indi vidu al liabi lity on the part of vidu al re are no viab le tort claim s agai nst the indi 1583 036, at *10 (exp laini ng that whe re "the Jenkins v. lity unde r a respondeat superior theo ry") ; Defe ndan ts, ther e is no basi s for City liabi ). WL 8702 58, at *14 (S.D .N.Y . Mar. 6, 2013 City of New York, No. 10 CIV. 4535 AJN , 2013 n state law claim s agai nst indi vidu al The refo re, to the exte nt that plain tiffs retai . Mesa v. liabl e unde r a theo ry of respondeat superior offic ers, the City may be held vica riou sly WL 3100 2, at *34 (S.D .N.Y . Jan. 3, 2013 ) City ofNew York, No. 09 CIV. 10464 JPO , 2013 superior claim s surv ive, so too do thei r respondeat ("Ac cord ingl y, whe re Plai ntiff s' state law have been plai ntiff Stev en Serr ano' s state law claim s claim s agai nst the City ."). Bec ause all of 2018 nst the City also are dism issed . See Hatcher, dism issed , all pend ant state law claim s agai his hael Serr ano, the City may be held liabl e for WL 1583 036, at *10. But as to plai ntiff Mic and mali ciou s pros ecut ion, unre ason able sear ch rem aini ng state law claim s for false arrest, ), 2017 v. City of New York, No. 15 CIV. 1004 6 (ER seiz ure, and assa ult and batte ry. See Bleiwas ) ("Ad ditio nally , beca use the Cou rt finds that WL 3524 679, at *4 (S.D .N.Y . Aug. 15, 2017 uant to arre st claim , the City may be held liabl e purs Plai ntiff has suff icien tly alleg ed a state false 2017 v. City ofNew York, No. 15 CIV. 6085 (ER), a theo ry of respondeat superior."); Ramos s have a ) ("He re, the Cou rt has foun d that Plai ntiff WL 3267 736, at* 12 (S.D .N.Y . July 31, 2017 of the Dete ctiv e Mar rero as it relat es to the char ge viab le mali ciou s pros ecut ion claim agai nst 23 ility on the the extent Plaintiffs seek to impose liab a controlled substance. Therefore, to sale of ceed."); Williams v. secution claim, they are allowed to pro City for the remaining malicious pro claim .N.Y. 2010) ("The remaining state law te Plains, 718 F. Supp. 2d 374 ,38 1 (S.D City of Whi ential for vicarious of White Plains is alive due to the pot of assault and battery against the City motion loyees."). Accordingly, defendants' actions of its police officers as its emp liability for ven Serrano, but denied to all state law claims brought by Ste for summary jud gm ent is granted as ught by Michael as to all remaining state law claims bro Serrano. Conclusion in part tion for summary jud gm ent is granted For the reasons stated herein, the mo rano, claims asserted by pla inti ff Steven Ser part. The motion is granted as to all and denied in by plaintiffs Samuel is dismissed. As to all claims raised and his complaint against defendants cia and Michael tion is denied. Plaintiffs Samuel Gar Garcia and Michael Serrano, the mo and malicious st, unreasonable search and seizure, rano shall retain claims for false arre Ser claim for assault and battery, as well l Serrano shall also retain his state law prosecution. Michae the City under respondeat superior. as all pendant state law claims against motion (ECF 40). The oral argument, The clerk is instructed to terminate the r complaint to cancelled. Plaintiffs shall amend thei rently scheduled for July 26, 2018, is cur , the dismissed, and restate, without change claims of Steven Serrano hav e bee n reflect tha t the a status conference l Serrano. The parties shall appear for claims by Samuel Garcia and Michae l date. ains, and if none remains, to set a tria 2018, to determine what discovery rem on August 17, SO ORDERED. Dated: July/{_, 2018 New York, New York 4v~ United States District Judge 24
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
