Opinion
21-CV-4050 (KMK)
02-21-2024
ARIEL DAN BARKAI, Plaintiff, v. GEORGE MENDEZ, et al., Defendants.
Ariel Dan Barkai, Nyack, NY, Pro Se Plaintiff John Martin Flannery, Esq., Eliza Mae Scheibel, Esq., Wilson Elser Moskowitz Edelman & Dicker LLP, White Plains, NY Counsel for Defendants
Ariel Dan Barkai, Nyack, NY, Pro Se Plaintiff
John Martin Flannery, Esq., Eliza Mae Scheibel, Esq., Wilson Elser Moskowitz Edelman & Dicker LLP, White Plains, NY Counsel for Defendants
OPINION & ORDER
KENNETH M. KARAS, United States District Judge
Ariel Dan Barkai (“Plaintiff”), proceeding pro se, brings this Action, pursuant to 42 U.S.C. § 1983 (“§ 1983”), against Clarkstown Police Department (“CPD”) Police Officer (“PO”) George Mendez (“Mendez”), and Sergeant (“Sgt.”) Michael Baisley (“Baisley”; with Mendez, “Defendants”), alleging that Defendants violated his constitutional rights by, inter alia, taking Plaintiff into custody upon executing a mental health check pursuant to New York law. (See generally Fourth Am. Compl. (“FAC”) (Dkt. No. 117-1); Id. Ex. 1 (FAC Fact Addendum (“FAC Add.”) (Dkt. No. 117-2).) Before the Court is Defendants' Motion for Summary Judgment (“Defendants' Motion”), (see Not. of Mot. (Dkt. No. 161)), and Plaintiff's Cross-Motion for Partial Summary Judgment (“Plaintiff's Motion”), (see Pl.'s Mem. of Law in Supp. of Cross Mot. for Partial Summ. J. and Opp. (Pl.'s Mem.) (Dkt No. 169)).
For the reasons stated herein, Defendants' Motion is granted, and Plaintiff's Motion is denied.
I. Background
A. Factual Background
The following facts are taken from the Parties' statements pursuant to Local Rule 56.1, (see Defs.' Rule 56.1 Statement (“Defs.' 56.1”) (Dkt. No. 163); Pl.'s Counter Statement to Defs.' Rule 56.1 Statement (“Pl.'s 56.1”) (Dkt. No. 170)), and the admissible evidence submitted by the Parties. The facts are recounted “in the light most favorable to” the non-movant. Torcivia v. Suffolk County, 17 F.4th 342, 354 (2d Cir. 2021). The facts as described below are in dispute only to the extent indicated.
Where the Parties “identify disputed facts but with semantic objections only or by asserting irrelevant facts, which do not actually challenge the factual substance described in the relevant paragraphs, the Court will not consider them as creating disputes of fact.” New Jersey v. N.Y.C. Dep't of Educ., No. 18-CV-6173, 2021 WL 965323, at *2 n.1 (S.D.N.Y. Mar. 15, 2021) (alteration adopted) (internal quotation marks and citation omitted); see also Nimkoff v. Drabinsky, No. 17-CV-4458, 2021 WL 4480627, at *1 n.2 (E.D.N.Y. Sept. 30, 2021) (“[T]o the extent a party's Rule 56.1 statement improperly interjects arguments and/or immaterial facts in response to facts asserted by the opposing party without specifically controverting those facts [with admissible evidence], the [c]ourt has disregarded the statement.” (alteration adopted) (internal quotation marks and citation omitted)); Baity v. Kralik, 51 F.Supp.3d 414, 418 (S.D.N.Y. 2014) (“Many of [the] [p]laintiff's purported denials-and a number of [the plaintiff's] admissions-improperly interject arguments and/or immaterial facts in response to facts asserted by [the] [d]efendants, often speaking past [the] [d]efendants' asserted facts without specifically controverting those same facts.... [A] number of [the] [p]laintiff's purported denials quibble with [the] [d]efendant['s] phraseology, but do not address the factual substance asserted by [the] [d]efendants.”).
1. Relevant Clarkstown Police Department Policies and Procedures
a. New York Mental Hygiene Law
At the relevant time, New York Mental Hygiene Law (“NYMHL”) § 9.41 provided:
Any peace officer, when acting pursuant to his or her special duties, or police officer who is a member of the state police or of an authorized police department or force or of a sheriff's department may take into custody any person who appears to be mentally ill and is conducting himself or herself in a manner which is likely to result in serious harm to the person or others. Such officer may direct the removal of such person or remove him or her to any hospital specified in subdivision (a) of section 9.39 or any comprehensive psychiatric emergency program specified in subdivision (a) of section 9.40, or, pending his or her examination or admission to any such hospital or program, temporarily detain any such person in another safe and comfortable place, in which event, such officer shall immediately notify the director of community services or, if there be none, the health officer of the city or county of such action.(Defs.' 56.1 ¶ 1 (quoting NYMHL § 9.41 (2019)).)
NYMHL § 9.01 provided:
“likelihood to result in serious harm” or “likely to result in serious harm” means (a) a substantial risk of physical harm to the person as manifested by threats of or attempts at suicide or serious bodily harm or other conduct demonstrating that the person is dangerous to himself or herself, or (b) a substantial risk of physical harm to other persons as manifested by homicidal or other violent behavior by which others are placed in reasonable fear of serious physical harm.(Id. at ¶ 2 (quoting NYMHL § 9.01 (2019)).)
Clarkstown Police Department (“CPD”) General Order 545, entitled “Crisis Intervention/Mental Health” incorporates NYMHL § 9.41, among other provisions of the NYMHL. (Id. at ¶ 3.) Pursuant to CPD practice and policy, the designated hospital for detentions under Section 9.41 is Montefiore Nyack Hospital. (Id. at ¶ 4.)
b. Behavioral Health Response Team
The Rockland County Behavioral Health Response Team (“BHRT”) provides mobile behavioral health services to individuals, families, and agencies within Rockland County, New York. (Id. at ¶ 5.) BHRT is an arm of Rockland Paramedics and is not associated with the Town of Clarkstown. (Id.) BHRT provides optional resources. (Id. at ¶ 6.) Police Departments are not required to seek or utilize BHRT's services. (Id.) In early 2020, BHRT had a limited number of mobile units. (Id. at ¶ 7.) There were times when a police department might call for assistance from BHRT and was told that there were no mobile units available to respond, or that there may be a wait in receiving a response from a BHRT unit. (Id.) In March 2020, after the start of the COVID-19 pandemic, BHRT initially ceased its mobile unit operations and was not responding to the scene to examine people. (Id. at ¶ 8.) Instead, BHRT offered only phone consultation services. (Id.) Police Departments within Rockland County were notified that the BHRT was not offering mobile unit services. (Id.) As of April 28, 2020, BHRT had not yet resumed in-person mobile unit services. (Id. at ¶ 9.) On March 27, 2020, Lieutenant (“Lt.”) Steven Chernick of the CPD sent an email to members of Squad 2, which included Mendez, regarding “COVID-19 Information for Patrol Squad 2.” (Id. at ¶ 10.) The March 27, 2020, email stated that “The Behavioral Health Response Team (BHRT) will not be responding to calls.” (Id.) Plaintiff contests the fact that BHRT was not actively responding to calls during this period of time. (Pl.'s 56.1 ¶ 10.) Plaintiff contends that during two separate incidents at his home, on April 15, 2020, and a couple weeks later, the responding CPD officers were able to engage BHRT. (Id.)
c. Mask Policy
As of April 28, 2020, the CPD did not require CPD officers to where masks when interacting with members of the public. (Defs.' 56.1 ¶ 11.) Rather, officers were informed that they should use their discretion in determining whether to wear a mask when interacting with the public and consider whether a mask would impair their safety. (Id. (citing Decl. of Eliza Scheibel in Supp. of Mot. for Summ. J. (“Scheibel Decl.”) (Dkt. Nos 162, 165) Ex. L (Cummings Aff.) at ¶ 6; id. Ex. J (March 27, 2020 email from Lt. Chernick to Squad 2, which included Mendez) (“Officers should practice extreme discretion, however, an arrest or control [] may have to occur. When this happens remember that the subject's actions during the arrest will generally be more dangerous to the officer than the possibility of exposure to COVID-19. Consider ALL reasonable force options and employ them quickly to reduce the time directly exposed to the subject. Use PPE if possible and wash or use hand sanitizer when it's safe to do so and change your uniform if exposed.”); id. Ex. I (Golden Depo.) at 64:8-10 (noting that, at work, officers had discretion to wear a mask); id. Ex. H (Baisley Depo.) at 76:21-77:5 (explaining that officers had discretion to wear a mask if they could do so safely; if not, then officers should not wear a mask); id. Ex. G (Mendez Depo.) at 27:23-28:5 (stating that it was optional to wear a mask)).) Accordingly, an officer exercising discretion not to wear a mask while conducting a traffic stop would not have constituted a violation of CPD Policy or guidance to officers, nor would it have resulted in discipline of the officer. (Id. at ¶ 12.) Plaintiff maintains that while an officer exercising his discretion not to wear a mask may not have constituted a violation of CPD policy, such conduct constituted a violation of New York State law. (Pl.'s 56.1 ¶ 12.)
2. Plaintiff's Traffic Stop
On April 28, 2020, at approximately 4:45 PM, Mendez observed Plaintiff using a cellphone while driving a Grey Land Rover traveling eastbound on Route 59 in the far-left lane. (Defs.' 56.1 at ¶ 14.) Mendez affected a traffic stop of Plaintiff's vehicle in the parking lot of the Thruway Plaza. (Id. at ¶ 15.) Mendez was not wearing a mask when he affected the traffic stop. (Id. at ¶ 16.) Defendants contend that Mendez wears glasses on the job, even though he does not wear his glasses to sleep, shower or swim, and sometimes takes them off for photographs. (Id. at ¶ 17.) When wearing his mask and glasses, the mask fogged up his glasses such that he was not able to see sufficiently to perform his duties. (Id.) Plaintiff states that Mendez was not wearing glasses during the traffic stop. (Pl.'s 56.1 ¶ 16.)
Plaintiff recorded the first four minutes of the traffic stop with his phone, including the duration of the stop during which Mendez obtained information from the Plaintiff, but not including the portion of the stop when Mendez issued Plaintiff a traffic citation. (Defs.' 56.1 ¶ 18.) Mendez was unaware at the time that Plaintiff was recording. (Id.)
Upon approaching the car, Mendez immediately explained that he stopped Plaintiff because he had a phone in his hands while driving without a hands-free device. (Id. at ¶19.) In response, Plaintiff stated, “I'd really appreciate it if you could help me out.” (Id.) He then told Mendez that he was “in the middle of really heavy shit. [His] mother died . . . [and that] Clarkstown cops [had] been to [his] house three times for suicide calls. [He] was charged with fucking the most fraudulent bullshit ....” (Id.) Mendez asked that Plaintiff first provide his driver's license, registration, and insurance information. (Id. at ¶ 20.) Plaintiff provided his license and registration. (Id.) When Plaintiff provided his license and registration, Plaintiff did not object to the fact that Mendez was not wearing a mask. (Id. at ¶ 21.) Plaintiff proceeded to tell Mendez that his business had “collapsed” and he was having financial difficulties. (Id. at ¶ 22.) Plaintiff further stated to Mendez that his mother had died, and that his “head is completely fucked up.” (Id.)
Plaintiff admitted that he was using his phone while driving in order to send a message to his attorney. (Id. at ¶ 23.) After obtaining Plaintiff's license and insurance information, Mendez asked Plaintiff what else he wanted to ask, and Plaintiff then sought advice regarding criminal harassment charges brought against him by the Orangetown Police Department and employees at Nyack Hospital. (Id. at ¶ 24.) He further indicated he had civil litigation pending against the hospital. (Id.) In the process, Plaintiff told Mendez “oh my god, I can't even think, I'm so depressed over all this shit.” (Id.) Plaintiff then complimented the CPD and stated that “I was suicidal for a while. They came and sat with me. These guys sat in my house until they could get somebody on the phone.” (Id. at ¶ 25.)
Mendez told Plaintiff he was sorry to hear about the issues Plaintiff was having, then he returned to his cruiser to review Plaintiff's information. (Id. at ¶ 27.) At no time during the recording of the traffic stop did Plaintiff ask Mendez to wear a mask. (Id. at ¶ 28.) Upon returning to the vehicle, Mendez issued Plaintiff a traffic citation, and Plaintiff became “visibly and verbally upset.” (Id. at ¶ 29.) When he became upset, Plaintiff did not threaten himself. (Id.) Plaintiff was not wearing a mask when Mendez returned to the vehicle to give him a ticket. (Id. at ¶ 30.) Mendez advised Plaintiff of the plea instructions regarding the ticket and left the area without incident. (Id. at ¶ 31.) Plaintiff contends that during the traffic stop, he told Mendez that he was going to call the station to complain that Mendez was not wearing a mask and that Mendez responded “it will not be the first time” before getting in his vehicle and driving away. (Pl.'s 56.1 ¶ 24.)
3. Plaintiff's Call to Complain About Mendez
At 4:58 PM (on April 28, 2020), Plaintiff called CPD headquarters and told a dispatcher he wanted to speak with the ranking officer on duty. (Defs.' 56.1 ¶ 33.) While speaking to the dispatcher, Plaintiff began yelling. (Id. at ¶ 34.) He told the dispatcher “I've had enough, . . . had the cops at my house three times because I almost killed myself because my mother died of a drug overdose she was given . . . I haven't gotten my stimulus check .... Now I get a fucking ticket that I can't even afford.” (Id.) The dispatcher transferred Plaintiff to Sgt. Alice Laschet (“Laschet”) at 5:03 PM. (Id. at ¶ 35.)
During his call with Laschet, Plaintiff “was extremely upset and extremely animated.” (Id. at ¶ 36.) Within the first thirty seconds of speaking with Laschet, Plaintiff stated, since his mother died in January, that he had “been in a complete state of spiraling out of control shit.” (Id. at ¶ 37.) Within the first minute of the call, Plaintiff told Laschet of the myriad financial problems he was having, stating: “this government is so fucking inept that my-my business went to shit....I haven't gotten a dollar in stimulus money. I haven't gotten an answer from the bank. I haven't heard from the unemployment office. I haven't gotten any PPP money and I haven't heard about my Small Business Association loan, and I was charged by Nyack Hospital, fraudulently ....” (Id. at ¶ 38.) Plaintiff then told Laschet that Clarkstown POs had been to his home three times “because [he] was on the verge of suicide and that's the God's honest truth and they wouldn't leave until [he] . . . spoke to a health professional.” (Id. at ¶ 39.) He further stated that he had begun therapy. (Id.) Plaintiff then told Laschet that he was pulled over by Mendez and asked Mendez to “give him a break.” (Id. at ¶ 40.)
Approximately two minutes into the call, at 5:05 PM, Plaintiff then stated that he wanted to file a complaint against Mendez. (Id. at ¶ 41.) The following statements were made:
Plaintiff: I would also file a complaint against [] Mendez. He was standing in public space with-within less than six feet away from me without a mask. And that's- that's- . . . well, you know, that I'm going to file a New York State Board of Health violation. He just risked my life. Might as well stick a gun in my mouth.
Laschet: Ariel
Plaintiff: I don't understand-I don't understand what the fuck is going on in this- in this town and this country and this fucking-my life, that my-everybody fucking shits on me. I can't even get a fucking break. I can't even get the unemployment place on the phone. I can't get a loan. The fucking LA Lakers get the loan for $4 million dollars and I can't get a $30,000.00 loan to save my business. But [] Mendez, [] Mendez can pull me over for the most irrelevant bullshit ....(Id.) Plaintiff contends that the statement “[m]ight as well stick a gun in my mouth” was not a claim of suicidal ideation, but rather was Plaintiff's way of describing the level of risk Mendez' actions-not wearing a mask when issuing Plaintiff a ticket-posed towards Plaintiff. (Pl.'s 56.1 ¶ 39.)
The call between Plaintiff and Laschet proceeded for another eight minutes, during which time, Plaintiff screamed, swore, complained about Mendez and other government agencies, and made numerous statements indicating he was having an emotional crisis. (Defs.' 56.1 at ¶ 42.) Among his statements, Plaintiff said the following:
He couldn't give me a break? . . . I just told him I'm on the verge of a fucking nervous breakdown and I'm in therapy for suicide prevention. And he's got to give me a fucking ticket? . . . I'm really sorry but you know what, I've just had enough. I've had enough.
I had police officers at my house because of suicide prevention and I'm in therapy.
And he's got to give me a fucking ticket. He could have said, listen you know what. Do me a favor, I get it. I get it everything is fucked up. Everything-you, [INAUDIBLE] and to tell you the truth, if this ticket isn't dismissed-I want to file a complaint against him right now for breathing on me.
[H]e's got a guy, who has already had three-you can check the records. You have my name. Three times I've had the Clarkstown Police Department in my house because I've been so fucking depressed. My life is fucking destroyed because somebody killed my fucking mother in front of me [INAUDIBLE] and nobody gives a shit.
But you know what, honestly man, I'm just fucking-I'm just done. I'm really that fucking sick of everything. I can't take it anymore. I really just can't fucking take it anymore. I really can't take it.
And the guy still had to come back and give me a ticket. I can't-all I can afford is fucking Taco Bell. [INAUDIBLE] nothing, nothing [INAUDIBLE] it's spiraled completely out of fucking control.(Id.)
Laschet told Plaintiff that she was “very concerned” by his statements, and that, while he was welcome to make a complaint against Mendez, which she would address, she was more concerned about Plaintiff. (Id. at ¶ 43.) Laschet told Plaintiff that “you upset me when you say that, you know, you want to hurt yourself or you're going to shoot yourself.” (Id.) Plaintiff did not deny threatening to shoot himself, instead stating that he was in therapy. (Id.)
Shortly after Plaintiff made the reference to putting a gun in his mouth, Laschet dispatched officers to the scene to “to locate Plaintiff in order to have him evaluated.” (Id. at ¶ 44.) At 5:12 PM, eight minutes and forty-five seconds into the call, Plaintiff noted that the responding POs were outside his car. (Id. at ¶ 45.) Plaintiff began yelling at the officers to put masks on. (Id.) Plaintiff's call with Laschet ended at about 5:13 PM. (Id.)
4. Records Relating to Plaintiff's Prior History
In addition to the narrative comments from the dispatchers, patrol officers are also able to search for police records related to an individual from the mobile computer units in their patrol vehicles. (Id. at ¶ 52.) As of April 28, 2020, CPD records indicated that Plaintiff had been the subject of numerous Suicidal/EDP calls for service, including: (i) a Welfare Check on April 15, 2020, (ii) a Welfare Check on February 28, 2020, (iii) a dispute on February 19, 2020, (iv) an incident on February 12, 2020, (v) an incident on February 10, 2020, and (vi) an incident on February 7, 2020. (Id. at ¶ 53.) Officers can select any of the listed incidents to view the associated police reports. (Id. at ¶ 54.) At least five of the 2020 incidents related to occasions during which Plaintiff either threatened to harm himself or expressed feelings of depression. (Id.) The two most recent incidents, on February 28, 2020, and April 15, 2020, involved third parties (the New York State Department of Children and Family Services and the U.S. Small Business Administration, respectively) calling CPD to report that Plaintiff had made threats to harm himself. (Id. at ¶ 55.)
Plaintiff's prior history with CPD also included incidents on April 1, 2019, and August 20, 2019. (Id. at ¶ 56.) On April 1, 2019, Plaintiff called 911 at 2:55 AM and stated that he was having a panic attack. (Id. at ¶ 57.) However, after hearing the dispatcher's voice, Plaintiff felt calmer and no longer needed assistance. (Id.) Defendants assert that on August 20, 2019, CPD dispatch received a call from Airbnb advising that Plaintiff had stated that he was going to kill himself within the next sixty minutes. (Id. at ¶ 58.) Plaintiff disputes that he told Airbnb he was going to kill himself in an hour. (Pl.'s 56.1 ¶ 53.) Instead, Plaintiff contends that what he likely said to Airbnb-which allegedly owed Plaintiff a substantial amount of money-was that if Plaintiff did not receive the money he was owed in an hour, he would be “fucking dead,” which is the same as saying he would be “screwed.” (Id.) In any event, in response to the call, CPD officers conducted a welfare check. (Defs.' 56.1 ¶ 58.) The police report indicates that Plaintiff advised police that he was in a dispute with Airbnb and had made the statement threatening to kill himself, but he had no intention to harm himself and did not exhibit any signs of distress or a mental health crisis. (Id.) No further action was taken. (Id.)
Additionally, Golden had responded to several prior calls involving Plaintiff in January and February of 2020. (Id. at ¶ 59.) On January 13, 2020, CPD officers, including Golden, responded to Plaintiff's home for a medical emergency involving his mother. (Id. at ¶ 60.) On February 12, 2020, Plaintiff called CPD because “his mother passed away two weeks ago, he was upset, and nervous about taking the prescription pills in the residence.” (Id. at ¶ 61.) Plaintiff wanted police to come to his residence and remove the pills so that he would not have access to them. (Id.) Defendants maintain that CPD has a program for individuals to dispose of prescription medications at CPD headquarters, it does not normally retrieve medication from residents. (Id.) Plaintiff, however, states that a sign at the front desk of CPD headquarters window, targeted to the public, states that CPD can be contacted to remove unwanted medications from a person's home. (Pl.'s 56.1 ¶ 56.) Plaintiff did not bring the pills to the police department. (Defs.' 56.1 ¶ 61.) Instead, he called the CPD and asked them to come get the pills immediately. (Id.) Golden was dispatched to Plaintiff's residence where he retrieved the pills and spoke with Plaintiff, who was lucid, denied thoughts of hurting himself, and reassured Golden that he would contact the BHRT if needed. (Id.)
A week after that, on February 19, 2020, Golden responded to a dispute involving Plaintiff at the IRS/Social Security Office (“Office”). (Id. at ¶ 62.) The facts concerning this event are in dispute. Defendants claim that upon arriving at the scene, a security guard from the Office informed Golden that, the week prior, Plaintiff was at the Office, screaming and cursing at staff after being told he needed an appointment to be seen. (Id.) Plaintiff had returned on February 19, 2020, and repeated the same behavior of screaming and cursing when told he could not be seen without an appointment. (Id.) Regarding his initial visit, Plaintiff claims that he did not create any incident, and left when he was instructed to leave. (Pl.'s 56.1 ¶ 57.) Further, Plaintiff contends that the security guard, who escorted him out of the Office, stated, “I am glad your mother is dead.” (Id.) A week later, during his second visit to the Office, Plaintiff maintains that he called the police when, upon entering the Office, he was confronted by the same security guard. (Id.) It is undisputed that after speaking with Golden, Plaintiff agreed to go to a different IRS office to file his paperwork. (Defs.' 56.1 ¶ 62.) Moreover, the Parties do not dispute that, on the prior occasions that Golden interacted with Plaintiff, Plaintiff did not threaten anyone while in Golden's presence. (Id. at ¶ 63.)
5. Officers are Dispatched to Scene
At 5:06 PM (on April 28, 2020), CPD dispatcher Zayas initiated a new call. (Id. at ¶ 46.) Units 221 (Mendez), 215 (PO Dean Domenici (“Domenici”)), 218 (PO Connor Golden (“Golden”)), 211 (PO Thomas O'Connell (“O'Connell')), and 231 (PO Arthur Noeldechen (“Noeldechen”)) were dispatched to the Thruway Plaza. (Id.) At 5:07 PM, pursuant to Laschet's instruction to dispatch officers to the scene, a CPD dispatcher used the radio to alert patrol cars, stating that “[Laschet's] on the phone talking with a um 113 [Emotionally Disturbed Person (“EDP”)] in the Taco Bell parking lot, not sure what kind of car it is, 221 you should be familiar. Says he wants to hurt himself.” (Id. at ¶ 47 (alteration adopted).)
Baisley, a PO with eighteen years-experience, was the road sergeant on duty at 5:00 PM on April 28, 2020. (Id. at ¶ 48.) A road sergeant's responsibilities include supervising and supporting patrol officers on the road. (Id. at ¶ 49.) The road sergeant monitors call traffic over the radio and may dispatch himself to the scene of any call. (Id.) When Baisley heard and saw the call concerning a potentially suicidal EDP, he self-dispatched to the scene of the Taco Bell. (Id. at ¶ 50.) At 5:11 PM, dispatchers logged a narrative comment into the system, which was visible to the patrol officers: “[Plaintiff] is on the phone with [Laschet] and stated he wants to hurt himself ....” (Id. at ¶ 51.)
Upon arriving at the Thruway Plaza, Mendez located Plaintiff's vehicle. (Id. at ¶ 64.) At 5:11 PM, Mendez informed the other officers via radio that “the vehicle [was] behind the furniture store” “in the [T]hruway [P]laza.” (Id.) At approximately 5:12 PM, Plaintiff noted to Laschet that he could see the officers outside his car. (Id. at ¶ 65.) At 5:12 PM, dispatch instructed the responding officers, over the radio, to put on masks. (Id. at ¶ 66.) Plaintiff contends that despite the instruction from dispatch, none of the officers put on masks, and Plaintiff told Laschet as much. (Pl.'s 56.1 ¶ 61.) Officers directed Plaintiff to exit his vehicle and placed him in handcuffs for his safety and officer safety in light of the threat of self-harm. (Defs.' 56.1 ¶ 67.) Mendez did not place Plaintiff in handcuffs. (Id. at ¶ 68.) At the time he was placed in handcuffs, the officers did not know if Plaintiff had a weapon in his vehicle. (Id. at ¶ 69.) A frisk of Plaintiff “yielded negative results for any weapons.” (Id. at ¶ 70.) The officers did not use excessive force when removing Plaintiff from his vehicle. (Id. at ¶ 71.)
Defendants assert that at 5:18 PM, Mendez radioed dispatch to ask if the BHRT was responding to calls. (Id. at ¶ 75.) He was informed by dispatch that the BHRT was not responding to calls. (Id.) Specifically, dispatch stated “I think that's a negative, but I'll doublecheck for you.” (Id.) Approximately thirty seconds later, dispatch responded to Mendez over the radio stating “[t]hat's a negative for sure.” (Id.) Plaintiff disputes that Mendez contacted dispatch about BHRT. (Pl.'s 56.1 ¶ 70.) Even so, Plaintiff maintains that the dispatcher was wrong that BHRT was not responding to calls, because Plaintiff spoke to BHRT two weeks prior to the incident and would speak to them again two weeks after the incident. (Id.) It is undisputed that although Plaintiff had spoken to a counselor at BHRT on prior occasions, he did not ask any of the officers to call the BHRT at the time. (Defs.' 56.1 ¶ 76.)
At 5:22 PM, while at the scene, Baisley used a cellphone to call Laschet at her desk at CPD. (Id. at ¶ 78.) Baisley asked Laschet if Plaintiff “made a threat to harm himself on the phone?” (Id.) Laschet confirmed that Plaintiff had threatened himself and paraphrased Plaintiff's earlier statements. (Id.) Laschet told Baisley that Plaintiff said “I feel like putting a gun in my mouth and shooting myself.” (Id.) Plaintiff notes that at no point during his call with Laschet did Plaintiff use the word “feel like” or “shooting.” (Pl.'s 56.1 ¶ 73.) Baisley stated that he wanted to confirm the officers had sufficient basis to take Plaintiff to the hospital. (Defs.' 56.1 ¶ 78.) Laschet stated that Plaintiff's statements to her were sufficient to necessitate someone checking on him, that Plaintiff was extremely upset, and was “saying all these odd things.” (Id.) Baisley stated that Plaintiff was still behaving in that manner. (Id.)
During the call with Baisley, Laschet offered to locate the prior call with Plaintiff and call Baisley back so that he could listen to Plaintiff's exact wording. (Id. at ¶ 79.) Defendants contend that in Baisley's experience, it is not a simple process to play back a recording. (Id. at ¶ 80.) It would have taken additional time to locate the recording of Plaintiff's prior call and for Laschet to call Baisley back to play it for him, thereby prolonging the delay in taking Plaintiff to the hospital. (Id.) Plaintiff disputes that there would be any delay caused by Baisley listening to the audio playback. (Pl.'s 56.1 ¶ 76.) Baisley declined Laschet's offer to listen to the recording and informed her that they were going to take Plaintiff to the hospital. (Defs.' 56.1 ¶ 81.) Baisley concluded that, based on what Laschet had stated, even if Plaintiff's precise statement was a slight variation of what Laschet said, it would still give rise to probable cause to take Plaintiff to the hospital. (Id.)
Baisley informed the officers at the scene of what he learned from Laschet. (Id. at ¶ 82.) Defendants assert that the other POs present at the scene with Plaintiff witnessed Plaintiff yelling about many different topics, including the death of his mother and his issues with Nyack Hospital. (Id. at ¶ 83.) After officers arrived at the scene, Plaintiff raised numerous issues, including the loss of his mother, his ongoing litigation with Nyack Hospital, his false arrest, that he was depressed and in crisis, the denial of his PPP loan, and his failed business. (Id. at ¶ 84.) Additionally, Plaintiff was making body movements at the scene that indicated to Baisley that Plaintiff was experiencing an emotional crisis. (Id. at ¶ 86.) Plaintiff disputes these facts. Specifically, Plaintiff maintains that he was not yelling about anything, did not speak about the above topics, nor made any bodily movements indicating distress. (Pl.'s 56.1 ¶ 78.)
Defendants also contend that Golden observed that during the April 28, 2020 incident Plaintiff's behavior was far more manic and agitated than he had been on the prior occasions in which Golden interacted with him. (Defs.' 56.1 ¶ 92.) Specifically, Defendants note that based on Golden's experience, on prior occasions, Plaintiff calmed down upon arrival of police and was able to calmly express himself in a lucid manner. (Id.) By contrast, on April 28, 2020, when Golden arrived at the scene, he observed that Plaintiff was “excited” and in “a manic state” with “veins bulging out of [his] neck, screaming in [his] car and not calming down from the point of bringing [him] out of the car [and] sitting in the back of a police vehicle[.]” (Id.) Plaintiff disputes each of these statements. (Pl.'s 56.1 ¶ 87.)
Defendants contend that Baisley made the final decision that Plaintiff should be taken to the hospital for evaluation by a mental health professional based on Plaintiff's statements, as relayed by Laschet, and Plaintiff's behavior at the scene. (Defs.' 56.1 ¶ 87-88.) Further, Defendants maintain that Mendez did not handcuff Plaintiff or make the decision to take him to Good Samaritan Hospital (“Good Samaritan”). (Id. at ¶ 89.) Plaintiff disputes the fact that Baisley made the final decision. (Pl.'s 56.1 ¶ 83.)
Due to Plaintiff's objections to going to Nyack Hospital, Baisley suggested that they take him to Good Samaritan Hospital. (Defs.' 56.1 ¶ 93.) Plaintiff never told the officers not to take him to Good Samaritan Hospital. (Id. at ¶ 94.) At 5:25 PM, Mendez called CPD dispatch to ask if someone could call Good Samaritan Hospital to see if they could evaluate a suicidal EDP instead of Nyack Hospital. (Id. at ¶ 95.) CPD dispatch then contacted Good Samaritan Hospital but was put on hold for four minutes and the CPD dispatcher hung up before receiving an answer to Mendez's question. (Id. at ¶ 96.) At 5:33 PM, CPD dispatch instructed Mendez to call CPD headquarters. (Id. at ¶ 97.) At 5:34 PM, Mendez called CPD dispatch. (Id. at ¶ 98.) The dispatcher explained to Mendez that he was placed on hold with Good Samaritan and did not receive an answer to his question, but that if Good Samaritan was the only option, dispatch would simply inform Good Samaritan that CPD was on the way. (Id.) Mendez stated that it would be an issue if CPD brought Plaintiff to Nyack and dispatch agreed to inform Good Samaritan that CPD officers were on the way. (Id.)
At 5:35PM, a CPD dispatcher called Good Samaritan Hospital and informed them that CPD officers were bringing an EDP to the hospital. (Id. at ¶ 99.) The dispatcher told Good Samaritan that BHRT was not running. (Id.) The dispatcher also told Good Samaritan that Plaintiff was an EDP, he was stopped for a traffic violation and was not happy, his mother died recently, and that Plaintiff had said he might as well put a gun in his mouth. (Id.) Hospital staff interpreted this as “suicidal ideation.” (Id.)
Plaintiff was placed in O'Connell's vehicle. (Id. at ¶ 100.) Mendez did not place him in the vehicle. (Id.) At 5:35PM, O'Connell radioed CPD dispatch stating, “transporting one male to Good Samaritan” and providing his starting mileage. (Id. at ¶ 101.) Mendez followed O'Connell in his own patrol car. (Id. at ¶ 102.) Defendants contend that during the ride to Good Samaritan, Plaintiff continued to display erratic and manic behavior, speaking rapidly about many different topics, apparently without stopping for breath. (Id. at ¶ 103.) Plaintiff disputes this contention, stating that such a claim is a fabrication of the facts. (Pl.'s 56.1 ¶ 98.) The officers arrived at Good Samaritan at 5:44PM. (Defs.' 56.1 ¶ 104.)
6. Treatment at Good Samaritan Hospital
Pursuant to a HIPAA Authorization provided by Plaintiff, Good Samaritan Hospital produced medical records concerning Plaintiff's treatment at Good Samaritan on April 28, 2020. (Id. at ¶ 105.) Upon arrival at Good Samaritan Hospital, Plaintiff was triaged and left in the care of nursing staff. (Id. at ¶ 106.) Defendants state that hospital staff were advised of Plaintiff's alleged suicidal statement (threatening to shoot himself) and manic behavior. (Id.) Plaintiff disputes that the hospital staff was advised of his alleged suicidal statement and instead contends that the staff was lied to about the incident. (Pl.'s 56.1 ¶ 101.) Plaintiff's handcuffs were removed, the hospital placed him on a “one-to-one” security hold, and Mendez and O'Connell left. (Defs.' 56.1 ¶ 106.)
Plaintiff was examined by emergency room staff and a consult to psychiatry was requested based on Plaintiff's alleged suicidal ideation. (Id. at ¶ 107.) Plaintiff states that he was placed in a holding unit, but that he never met with nor spoke to a psychiatrist. (Pl.'s 56.1 ¶ 102.) An entry made by Registered Nurse Kimberly Daly at 6:06 PM, in Plaintiff's medical records from Good Samaritan Hospital states: “speech very rushed, appears very anxious and stressed. Adamantly denies to RN any suicidal ideations, states he does not have any weapons in his house but states he has had thoughts of suicide in the past.” (Defs.' 56.1 ¶ 108.)
An entry made at 6:27 PM by Nurse Practitioner Alicia Olmoz (“Olmoz”), with respect to the psychiatric components of Plaintiff's physical exam, states that his mood was “anxious” and that his speech was “rapid and pressured.” (Id. at ¶ 109.) Olmoz took Plaintiff's blood pressure, which was elevated at the time of his arrival at the hospital. (Id.) At 6:05PM his blood pressure was 146/100, which was noted for attention. (Id.) At 7:11PM, Plaintiff's blood pressure was recorded as 121/87. (Id.) Moreover, under the “Presenting problems” category, Olmoz wrote “moderate,” and under “Impressing/Differential Diagnosis,” she recorded “Suicidal ideation” and “mania.” (Id. at ¶ 112.) In addition, Olmoz “decide[d] to obtain previous medical records or to obtain history from someone other than the patient.” (Id.)
At 6:38PM, an entry made by Registered Nurse Jazmine Williams states: “Currently pt deny suicidal ideation or any intention of killing himself. Pt appears manic, flight of ideas, all wires removed from room ....” (Id. at ¶ 110.)
At 7:15PM, a social worker from Good Samaritan, Jessie Kivlehan (“Kivlehan”), called CPD to obtain contact information for Plaintiff's family; she spoke with Laschet. (Id. at ¶ 113.) Kivlehan informed Laschet that Plaintiff was “very manic from what [she was] seeing.” (Id.) Kivlehan also stated that when Plaintiff arrived at the hospital, he was yelling and screaming. (Id.) Kivlehan stated that, based on her observations of Plaintiff, she was not comfortable discharging him from the hospital without speaking to Plaintiff's sister, the psychiatrist, or Plaintiff's current therapist, someone who would “take responsibility.” (Id.) Plaintiff disputes that Kilvehan stated that Plaintiff was yelling and screaming when he arrived at the hospital. (Pl.'s 56.1 ¶ 108.) Plaintiff, instead, contends that Kivlehan stated that she was told that when Plaintiff arrived at the hospital he was screaming and yelling, and said that he was calm now. (Id.)
While at Good Samaritan, Plaintiff contacted his sister, Dr. Ayelet Barkai, a psychiatrist, by email. (Defs.' 56.1 ¶ 114.) Kivlehan called and spoke to Dr. Barkai. (Id.) Good Samaritan records at 8:10PM reflect that Dr. Barkai told Good Samaritan that “she feels the patient is ‘all bark and no bite,'” “this ‘is the way he always is' since his mother's death. (Id.) She states the family is trying to get him on medication, but he has refused. (Id.) He had recently agreed to start seeing a therapist on her recommendation and ha[d] a Zoom appointment scheduled for this Thursday.” (Id.) The hospital records also reflect that Dr. Barkai “says she will call him all night to assure his safety.” (Id. at ¶ 115.)
Under the “Integrated Summary” section of the Comprehensive Assessment Form for psychiatry services, Kivlehan noted that based on the information “given by the patient and relative,” the hospital recorded a “Chief Complaint” of “agitation” and “expressed SI” based on “precipitant factors” of “frustration and recent death of mother.” (Id. at ¶ 118.) Under this section, Kivlehan also entered a “Screener Note”, which provides:
Pt was escorted by Clarktown [sic] Police after an altercation after receiving a ticket. Pt made a suicidal remark that ‘I'll just place a gun in my mouth and shoot because of this ticket.” Upon arrival, pt seem manic with pressured speech, angry and irritable. When asked why he spoke so fast, pt said “because I have a lot to say and I want to make my point across.” Pt. disclosed that his mother died in January from malpractice and he wants ‘justice for my mother.” Pt denies SI/HI/AH/VH with no psych history. “I said something stupid and I didn't mean it. I don't even own a gun.” Pt kept repeating that his sister is a psychiatrist in Boston, Dr. Barkai (617)-234-4447 and to call her. SW spoke to pt's sister, who turned out to be a true psychiatrist with credentials. Pt's sister is worried about pt's new found anger and frustration after the mother's death, but does not believe pt is suicidal. “He's all bark. No bite. He can't even kill a mouse.” The sister recently set pt up with a therapist (Dr. Erika Brown Campbell) to work on anger management. Pt has a zoom meeting this week. Pt continues to deny SI/HI. “I made a mistake.” Pt denies alcohol or substance abuse issues. Pt is AAOx3, calm and cooperative when redirected.(Id. at ¶ 116.)
Under the “Mental Status Exam” section of the Comprehensive Assessment Form, Kivlehan noted, inter alia, that Plaintiff's “Speech Pattern was “Excessively loud” and that his “Motor Activity” was “Agitation, Restlessness.” (Id. at ¶ 117.) Moreover, under the “Disposition/Update” section, Kivlehan recorded information from the on-call psychiatrist at Good Samaritan, Dr. Sharma, which stated: “[P]t not considered a danger to self or others. Pt has a good family support system. Pt's sister plans to call him multiple times a day. Pt agreed that he will come back to ER if symptoms worsen. Referrals were given.” (Id. at ¶ 119.)
At approximately 8:20PM, Plaintiff was discharged by Good Samaritan Hospital. (Id. at ¶ 120.)
7. Events Subsequent to the April 28, 2020 Incident
At 8:51PM, while driving home after being discharged from Good Samaritan, Plaintiff called Laschet at CPD. (Id. at ¶ 121.) Plaintiff initially complained about being taken to the hospital and repeated his complaint that Mendez was not wearing a mask during the traffic stop. (Id.) Laschet told Plaintiff that he can get a copy of the recording of their earlier call, and that she was trying to do the right thing by Plaintiff and his family. (Id. at ¶ 122.) She explained that she had to take his reference to a gun seriously because she did not know him. (Id.) Plaintiff stated, “if I ever have another episode like this-I may sometimes lose my mind verbally, I may have a lack of verbal discipline I would never harm another human being.” (Id. at ¶ 123.) Laschet again explained to Plaintiff that, while Plaintiff may say that now, the POs don't know him and have to take his statements seriously in case Plaintiff is serious. (Id.) Plaintiff attempted to explain his behavior by stating that he needed “to watch [his] diet and cut back on my sugar” that he had been “stuck inside” and there was “so much shit going on in my head.” (Id.)
Plaintiff called Laschet a second time, during which he stated that he appreciated Laschet, and asked her to inform the responding officers that “I'm not a bad guy” and that “I'm not going to file any complaints against anybody.” (Id. at ¶ 124.) Finally, he told Laschet that she was a credit to the CPD. (Id.)
On May 6, 2020, Plaintiff submitted a written complaint to CPD regarding Mendez. (Id. at ¶ 125.) On May 12, 2020, Plaintiff withdrew the complaint. (Id. at ¶ 126.) In withdrawing the complaint, Plaintiff explained that he had interactions with the CPD before and after April 28, 2020, that he found CPD officials to be professional and supportive. (Id.)
The Town Attorney's Office prosecuted Plaintiff's traffic citation. (Id. at ¶ 127.) At the trial concerning the traffic citation on September 17, 2020, the Justice Court found that Plaintiff was guilty of violating Section 1225-D of the New York State Vehicle & Traffic Law. (Id. at ¶ 128.) During the hearing, Plaintiff stated that if the Court did not dismiss the traffic citation, then “it's going to be a big problem for [] Mendez.” (Id. at ¶ 129.)
At some point subsequent to April 28, 2020, Plaintiff spoke to then-Lt. Cummings (“Cummings”), who directed Plaintiff to the DOH Guidance regarding mask-wearing, and informed Plaintiff that law enforcement was not required to wear masks. (Id. at ¶ 130.)
B. Procedural Background
Plaintiff filed his Complaint on May 4, 2021, (see Compl. (Dkt. No. 2)), and his request to proceed in forma pauperis was granted on May 12, 2021, (see Dkt. No. 5). The initial Complaint asserted claims arising from the April 28, 2020 incident and named Mendez, Laschet, Cummings, former Police Chief Ray McCullagh (“McCullagh”), Chief Jeff Wanamaker (“Wanamaker”), and “4 other John Doe Clarkstown Police Officers” and Town Supervisor George Hoehmann (“Hoehmann”) as defendants. (See generally Compl.) Plaintiff moved to amend the Complaint on October 7, 2021, to include the Former John Doe Defendants. (See Dkt. No. 16.) The Court granted this motion five days later. (See Dkt. No. 17.) Plaintiff did not initially do so. (See generally Dkt.; see also Dkt. Nos. 66, 68, 70.)
Instead, on December 6, 2021, Plaintiff moved to consolidate this Action with another case filed against other government officials, Barkai v. Nuendorf, No. 21-CV-4060 (S.D.N.Y.). (See Dkt. No. 23.) In light of pertinent concerns regarding the timeliness of motions in the respective actions, the fear of juror confusion, undue discovery burdens, and several important differences in the conduct at issue underlying the claims, the Court denied the motion to consolidate. (See Dkt. No. 28.)
On January 1, 2022, Plaintiff filed another motion to amend his complaint by naming the Town of Clarkstown. (See Dkt. No. 29.) Before the Court ruled on this second motion to amend, Plaintiff again moved to “relinquish [his] claims against the Town of Clarkstown and any claims to Due Process violations” and to “ask that [Defense Counsel] inform George Hoehmann that he has been withdrawn as a defendant[.]” (Mot. to Withdraw Partial Claims 4-5 (Dkt. No. 42).) The Court granted the latter motion, mooting Plaintiff's second motion to amend and dismissing all claims against Hoehmann. (See Dkt. No. 47.)
Defendants filed a Motion to Dismiss on January 10, 2022. (See Not. of Mot. (Dkt. No. 32); Scheibel MTD Decl. (Dkt. No. 33); Defs.' MTD Mem. (Dkt. Nos. 34, 36, 37).) On January 25, 2022, Plaintiff submitted a Response. (See Pl.'s MTD Mem. (Dkt. No. 43).) On February 24, 2022, Defendants submitted a Reply. (See Defs.' MTD Reply Mem. (Dkt. No. 53).) That day, Plaintiff moved to file a Sur-Reply. (See Dkt. No. 54.) With the Court's permission, (see Dkt. No. 56), Plaintiff filed his Sur-Reply, (see Pl.'s MTD Sur-Reply (Dkt. No. 57).).
On June 1, 2022, Plaintiff filed an Amended Complaint, substituting O'Connell, Noeldechen, Golden, and Domenici for the “4 other John Doe Clarkstown Police Officers” named in the caption; however, the Complaint did not add any allegations regarding specific actions taken by any of these individuals. (See Dkt. No. 68.) The newly named defendants joined in the pending motion to dismiss the complaint. (See Dkt. Nos. 77, 81.)
On September 20, 2022, the Court issued an Opinion and Order denying in part and granting in part the Defendants' Motion to Dismiss (the “MTD Order”). (See Dkt. No. 82.) In the MTD Order this Court dismissed Plaintiff's claims under the Fifth, Sixth, and Fourteenth Amendments as well as his Monell claims. (See MTD Order at 57.) The Court also dismissed Plaintiff's First and Fourth Amendment claims against Laschet. (See id.) However, Plaintiff's First and Fourth Amendment claims against Mendez with respect to the extension of Plaintiff's initial confinement survived. (See id.)
On November 2, 2022, Mendez filed an Answer to the Amended Complaint. (See Dkt. No. 85.) On January 11, 2023, Plaintiff requested permission to amend his Complaint regarding damages, (see Dkt. No. 93), which the Court granted, (see Dkt. No. 96). Plaintiff filed the Amended Complaint on February 23, 2023. (see Dkt. No. 103.) On February 26, 2023, Plaintiff sought to amend his Complaint to add Baisley as a defendant, (see Dkt. No. 107), which this Court allowed, (see Dkt. No. 115). On March 4, 2023, Plaintiff filed the FAC, adding Baisley as a defendant. (See FAC; FAC Add.) On March 27, 2023, Baisley filed an Answer to the FAC. (See Dkt. Nos. 122, 138.)
On August 25, 2023, Defendants filed their Motion for Summary Judgment and accompanying papers. (See Not. of Mot.; Defs.' 56.1; Scheibel Decl.; Defs.' Mem. of Law in Supp. of Mot. for Summ. J. (“Defs.' Mem.”) (Dkt. No. 164).) Plaintiff filed his Cross-Motion for Partial Summary Judgment and Opposition papers on September 26, 2023. (See Pl.'s 56.1; Pl.'s Mem.) After Defendants moved to strike Plaintiff's oversized memorandum, (see Dkt. No. 171), Plaintiff resubmitted his memorandum of law on October 2, 2023, (see Dkt. No. 173). On October 30, 2023, Defendants filed their Reply and Opposition to Plaintiff's Cross-Motion. (See Defs.' Reply Mem. of Law (“Defs.' Reply Mem.”) (Dkt. No. 182)). With the Court's permission, (see Dkt. No. 181), Plaintiff filed his Sur-Reply on October 30, 2023, (Pl.'s Sur-Reply Mem. of Law (“Pl.'s Sur-Reply”) (Dkt. No. 183)).
II. Discussion
A. Standard of Review
Summary judgment is appropriate where 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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986) (same); Truitt v. Salisbury Bank & Tr. Co., 52 F.4th 80, 85 (2d Cir. 2022) (same); Cambridge Funding Source LLC v. Emco Oilfield Servs. LLC, No. 22-CV-10741, 2023 WL 7405862, at *4 (S.D.N.Y. Nov. 9, 2023) (same). “In deciding whether to award summary judgment, the court must construe the record evidence in the light most favorable to the non-moving party and draw all reasonable inferences in its favor.” Torcivia, 17 F.4th at 354; see also Horror Inc. v. Miller, 15 F.4th 232, 240 (2d Cir. 2021) (same). “The movant ‘bears the initial burden of showing that there is no genuine dispute as to a material fact.'” McKinney v. City of Middletown, 49 F.4th 730, 738 (2d Cir. 2022) (quoting Jaffer v. Hirji, 887 F.3d 111, 114 (2d Cir. 2018)); see also LaFontant v. MidHudson Forensic Psychiatric Ctr., No. 18-CV-23, 2023 WL 6610764, at *7 (S.D.N.Y. Oct. 10, 2023) (same); Red Pocket, Inc. v. Interactive Commc'ns Int'l, Inc., No. 17-CV-5670, 2020 WL 838279, at *4 (S.D.N.Y. Feb. 20, 2020) (same).
“However, when the burden of proof at trial would fall on the non[-]moving party, it ordinarily is sufficient for the movant to point to a lack of evidence to go to the trier of fact on an essential element of the non[-]movant's claim,” in which case “the non[-]moving party must come forward with admissible evidence sufficient to raise a genuine issue of fact for trial in order to avoid summary judgment.” CILP Assocs., L.P. v. Pricewaterhouse Coopers LLP, 735 F.3d 114, 123 (2d Cir. 2013) (alteration adopted) (internal quotation marks and citation omitted); see also U.S. Bank Nat'l Ass'n as Tr. for Reg. Holders of J.P. Morgan Chase Com. Mortg. Sec. Corp., Multifamily Mortg. Pass-Through Certificates, Series 2017-SB42 v. 160 Palisades Realty Partners LLC, No. 20-CV-8089, 2022 WL 743928, at *3 (S.D.N.Y. Mar. 10, 2022) (same). Further, “[t]o survive a [summary judgment] motion . . ., [a non-movant] need[s] to create more than a ‘metaphysical' possibility that his allegations were correct; he need[s] to ‘come forward with specific facts showing that there is a genuine issue for trial,'” Wrobel v. County of Erie, 692 F.3d 22, 30 (2d Cir. 2012) (emphasis omitted) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)); see also Jennifer Fung-Schwartz, D.P.M, LLC v. Cerner Corp., No. 17-CV-233, 2023 WL 6646385, at *3 (S.D.N.Y. Oct. 12, 2023) (same), “and cannot rely on the mere allegations or denials contained in the pleadings,” Guardian Life Ins. Co. v. Gilmore, 45 F.Supp.3d 310, 322 (S.D.N.Y. 2014) (internal quotation marks and citation omitted); see also Kollias v. Univ. of Rochester, No. 18-CV-6566, 2023 WL 5608868, at *4 (W.D.N.Y. Aug. 30, 2023) (“When a motion for summary judgment is properly supported by documents or other evidentiary materials, the party opposing summary judgment may not merely rest on the allegations or denials of his pleading.” (quoting Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009))).
“On a motion for summary judgment, a fact is material if it might affect the outcome of the suit under the governing law.” Seward v. Antonini, No. 20-CV-9251, 2023 WL 6387180, at *12 (S.D.N.Y. Sept. 29, 2023) (quoting Royal Crown Day Care LLC v. Dep't of Health & Mental Hygiene, 746 F.3d 538, 544 (2d Cir. 2014)). “At this stage, ‘the role of the court is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried.'” U.S. Sec. & Exch. Comm'n v. Amah, No. 21-CV-6694, 2023 WL 6386956, at *8 (S.D.N.Y. Sept. 28, 2023) (alteration adopted) (quoting Brod v. Omya, Inc., 653 F.3d 156, 164 (2d Cir. 2011)). Therefore, “a court's goal should be ‘to isolate and dispose of factually unsupported claims.'” Sullivan v. Nat'l Express LLC, No. 21-CV-5789, 2023 WL 6279255, at *8 (S.D.N.Y. Sept. 26, 2023) (quoting Geneva Pharms. Tech. Corp. v. Barr Labs. Inc., 386 F.3d 485, 495 (2d Cir. 2004) (quoting Celotex Corp., 477 U.S. at 323-24)).
When ruling on a motion for summary judgment, a district court should “consider only evidence that would be admissible at trial.” Latimer v. Annucci, No. 21-CV-1275, 2023 WL 6795495, at *3 (S.D.N.Y. Oct. 13, 2023) (citing Nora Beverages, Inc. v. Perrier Grp. of Am., Inc., 164 F.3d 736, 746 (2d Cir. 1998)). “‘[W]here a party relies on affidavits or deposition testimony to establish facts, the statements must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.'” Mozzochi v. Town of Glastonbury, No. 21-CV-1159, 2023 WL 3303947, at *3 (D. Conn. May 8, 2023) (quoting DiStiso v. Cook, 691 F.3d 226, 230 (2d Cir. 2012) (quoting Fed. R. Civ. P.56(c)(4))); see also E. Fishkill Fire Dist. v. Ferrara Fire Apparatus, Inc., No. 20-CV-576, 2023 WL 6386821, at *11 (S.D.N.Y. Sept. 28, 2023) (“Rule 56 requires a motion for summary judgment to be supported with affidavits based on personal knowledge ....” (internal citation omitted)); Baity, 51 F.Supp.3d at 419 (disregarding “statements not based on [the] [p]laintiff's personal knowledge”); Flaherty v. Filardi, No. 03-CV-2167, 2007 WL 163112, at *5 (S.D.N.Y. Jan. 24, 2007) (“The test for admissibility is whether a reasonable trier of fact could believe the witness had personal knowledge.” (internal citation omitted)).
As a general rule, “district courts may not weigh evidence or assess the credibility of witnesses at the summary judgment stage.” Martinez v. Pao's Cleaning, Inc., No. 16-CV-6939, 2018 WL 6303829, at *2 (E.D.N.Y. Dec. 3, 2018) (quoting Jeffreys v. City of New York, 426 F.3d 549, 551 (2d Cir. 2005)). However, although witness credibility is usually a question of fact for the jury, Yu Zhang v. Sabrina USA Inc., No. 18-CV-12332, 2021 WL 1198932, at *3 (S.D.N.Y. Mar. 30, 2021), “[b]road, conclusory attacks on the credibility of a witness without more [are] insufficient to raise a genuine issue of material fact that would defeat a motion for summary judgment,” Securities & Exchange Commission v. Airborne Wireless Network, No. 21-CV-1772, 2023 WL 5938527, at *6 (S.D.N.Y. Sept. 12, 2023) (internal quotation marks and citation omitted); see also Ezuma v. City Univ. of N.Y., 665 F.Supp.2d 116, 128 (E.D.N.Y. 2009) (“If the moving party has made a properly supported motion for summary judgment, the plaintiff may not respond simply with general attacks upon the defendant's credibility.” (alterations adopted) (internal quotation marks and citation omitted)). As such, “when opposing a motion for summary judgment, the non-moving party may not respond simply with general attacks upon the declarant's credibility, but rather must identify affirmative evidence from which a jury could find that the non-moving party has carried its burden of proof.” Moritz v. Town of Warwick, No. 15-CV-5424, 2017 WL 4785462, at *8 (S.D.N.Y. Oct. 19, 2017) (alterations adopted) (internal quotation marks and citation omitted); see also Paul v. Postgraduate Ctr. for Mental Health, 97 F.Supp.3d 141, 181 (E.D.N.Y. 2015) (“‘Although credibility assessments are improper on a motion for summary judgment,' a court may be justified in dismissing a claim when the ‘plaintiff's version of the events is in such discord with the record evidence as to be wholly fanciful.'” (quoting Pulliam v. Lilly, No. 07-CV-1243, 2010 WL 935383, at *5 (E.D.N.Y. Mar. 11, 2010))).
B. Analysis
Plaintiff raises claims, pursuant to 42 U.S.C. § 1983, regarding the violation of his rights under the First and Fourth Amendments. (See FAC; FAC Add. at 16, 21.) Defendants have moved for summary judgment as to all remaining counts. (See Defs.' Mem. at 6.) Plaintiff has cross-moved for partial summary judgment as to the Fourth Amendment claim. (See Pl.'s Mem. at 31-35.) The Court considers the Parties' Motions regarding the Fourth Amendment claim first, and then addresses Defendants' Motion regarding the First Amendment claim.
1. Fourth Amendment
Plaintiff brings an unlawful seizure claim against Mendez and Baisley arising from the Plaintiff's extended confinement when he was transported to Good Samaritan on April 28, 2020, (See FAC Add. at 16, 21), which this Court construes as a claim for false arrest. See Heller v. Bedford Cent. Sch. Dist., 144 F.Supp.3d 596, 621-22 (S.D.N.Y. 2015) (analyzing plaintiff's allegations regarding an unlawful seizure as a false arrest claim), aff'd, 665 Fed.Appx. 49 (2d Cir. 2016) (summary order); see also Kraft v. City of New York, 696 F.Supp.2d 403, 415 (S.D.N.Y. 2010) (“An involuntary confinement to a hospital constitutes a seizure within the meaning of the Fourth Amendment.... Such an infringement is tantamount to the infringement of being arrested.” (internal quotation marks and citations omitted)), aff'd, 441 Fed.Appx. 24 (2d Cir. 2011) (summary order). Defendants have moved for summary judgment, arguing that Defendants had probable cause to detain Plaintiff and transport him to Good Samaritan. (See Defs.' Mem. at 716.) Alternatively, Defendants contend that there was arguable probable cause to detain Plaintiff and transport him to Good Samaritan, and thus, Defendants are entitled to qualified immunity. (See id. at 16-23.) Plaintiff counters that Defendants are not entitled to summary judgment on the Fourth Amendment claim because there was not probable cause to detain Plaintiff pursuant to NYMHL 9.41. (See Pl.'s Mem. 16-24.) Additionally, Plaintiff contends that he is entitled to partial summary judgment on the Fourth Amendment claim related to him being placed and held in handcuffs before being transported to Good Samaritan. (See id. at 31-35.) The Court addresses each of these disputes in turn.
“A [Section] 1983 claim for false arrest, resting on the Fourth Amendment right of an individual to be free from unreasonable seizures, including arrest without probable cause is substantially the same as a claim for false arrest under New York law.” Maila Beach v. City of New York, No. 21-CV-6737, 2023 WL 5576398, at *3 (S.D.N.Y. Aug. 28, 2023) (alterations adopted) (quoting Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996)). “To state a claim for false arrest under New York law, a plaintiff must show that: (1) the defendant intentionally confined the plaintiff, (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not consent to the confinement, and (4) the confinement was not otherwise justified.” Silas v. City of New York, No. 18-CV-07122, 2023 WL 5532856, at *6 (E.D.N.Y. Aug. 28, 2023) (internal quotation marks and citation omitted); see also Hussey v. Rosen, No. 23-CV-4378, 2023 WL 5611647, at *3 (S.D.N.Y. Aug. 28, 2023) (similar).
a. Probable Cause
As a general matter, “[t]he existence of probable cause to arrest constitutes justification and is a complete defense to an action for false arrest under [Section] 1983.” Dillon v. Rosen, No. 22-CV-7035, 2022 WL 4538397, at *3 (S.D.N.Y. Sept. 28, 2022) (alteration adopted) (quoting Jenkins v. City of New York, 478 F.3d 76, 84 (2d Cir. 2007)); see also Maila Beach, 2023 WL 5576398, at *3 (“The existence of probable cause to arrest is a defense to a false arrest claim.”). Similarly, in the context of an involuntary hospitalization, a seizure “passes scrutiny under the Fourth Amendment, [] ‘if it is based upon probable cause, meaning that there are reasonable grounds for believing that the person seized is dangerous to [himself] or others.'” Lurch v. Chaput, No. 16-CV-2517, 2022 WL 889259, at *7 (S.D.N.Y. Mar. 25, 2022) (second alteration in original) (quoting Fisk v. Letterman, 501 F.Supp.2d 505, 526 (S.D.N.Y. 2007)), aff'd, No. 22-798, 2023 WL 2469943 (2d Cir. Mar. 13, 2023) (summary order); see also Bryant v. Steele, 462 F.Supp.3d 249, 260 (E.D.N.Y. 2020) (same), aff'd sub nom. Bryant v. Iheanacho, 859 Fed.Appx. 604 (2d Cir. 2021) (summary order); Kusak v. Klein, No. 11-CV-6557, 2015 WL 510053, at *5 (W.D.N.Y. Feb. 6, 2015) (“[A]n involuntary civil commitment-such as under the [NY]MHL-based upon probable cause does not violate the Fourth Amendment.”). Moreover, “[t]he Fourth Amendment requires only a ‘probability or substantial chance of dangerous behavior, not an actual showing of such behavior.'” Lurch, 2022 WL 889259, at *7 (quoting Vallen v. Connelly, No. 99-CV-9947, 2004 WL 555698, at *8 (S.D.N.Y. Mar. 19, 2004)); see also Kaplan v. County of Orange, 528 F.Supp.3d 141, 162 (S.D.N.Y. 2021) (“[A] showing of probable cause in the mental health seizure context requires only a probability or substantial chan[c]e of dangerous behavior, not an actual showing of such behavior.” (citation omitted)).
“To determine whether probable cause existed to justify a mental health seizure, courts must look to ‘the specific observations and information available' at the time of the seizure.” Pal v. Canepari, No. 20-CV-13, 2023 WL 2712371, at *18 (D. Conn. Mar. 30, 2023) (quoting Aouatif v. City of New York, No. 07-CV-1302, 2019 WL 2410450, at *9 (E.D.N.Y. May 31, 2019)). “[W]hen making a probable cause determination, police officers are entitled to rely on the allegations of fellow police officers.” United States v. Barnes, No. 22-CR-109, 2022 WL 12399322, at *3 (S.D.N.Y. Oct. 21, 2022) (quoting Panetta v. Crowley, 460 F.3d 388, 395 (2d Cir. 2006)).
“The question of whether or not probable cause existed may be determinable as a matter of law if there is no dispute as to the pertinent events and the knowledge of the officers ....” Delgado v. City of New York, No. 19-CV-6320, 2023 WL 6390134, at *7 (S.D.N.Y. Oct. 2, 2023) (quoting Weyant, 101 F.3d at 852). “In contrast, ‘where the question of whether an arresting officer had probable cause is predominantly factual in nature, as where there is a dispute as to the pertinent events, the existence vel non of probable cause is to be decided by the jury.'” Barkai v. Nuendorf, No. 21-CV-4060, 2023 WL 2691712, at *18 (S.D.N.Y. Mar. 29, 2023) (alteration adopted) (italics omitted) (quoting Murphy v. Lynn, 118 F.3d 938, 947 (2d Cir. 1997)).
“Probable cause is ‘a fluid concept not readily, or even usefully, reduced to a neat set of legal rules. While probable cause requires more than a mere suspicion of wrongdoing, its focus is on probabilities, not hard certainties.'” King v. Nesto, No. 19-CV-1466, 2023 WL 2456701, at *5 (D. Conn. Mar. 10, 2023) (alterations adopted) (quoting Walczyk v. Rio, 496 F.3d 139, 156 (2d Cir. 2007)). “Thus, according to the Supreme Court, when courts review a situation frozen in ink and perform ex post facto probable cause analyses with the benefit of near-unlimited time, they are to think about ‘the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.'” Nuendorf, 2023 WL 2691712, at *18 (quoting Illinois v. Gates, 462 U.S. 213, 241 (1983)).
Finally, “probable cause exists even where it is based upon mistaken information, so long as the arresting officer was reasonable in relying on that information.” Aurecchione v. Falco, No. 22-CV-04538, 2023 WL 6255529, at *10 (S.D.N.Y. Sept. 25, 2023) (Bernard v. United States, 25 F.3d 98, 103 (2d Cir. 1994)). Once a government official has a reasonable basis to believe that there is probable cause to arrest, the official “is not required to explore and eliminate every theoretically plausible claim of innocence before making an arrest.” Garcia v. Does, 779 F.3d 84, 93 (2d Cir. 2015) (internal quotation marks and citation omitted). “In sum, probable cause does not demand any showing that a good-faith belief be ‘correct or [even] more likely true than false.' It requires only such facts as make wrongdoing or the discovery of evidence thereof probable.” Walczyk, 496 F.3d at 157 (quoting Texas v. Brown, 460 U.S. 730, 742 (1983)).
Applying these principles here, the Court's task is to determine if Defendants had probable cause to believe that Plaintiff might be “mentally ill and [] conducting himself in a manner [] likely to result in serious harm to himself or others.” NYMHL § 9.41(a). New York law defines this as follows:
(a) a substantial risk of physical harm to the person as manifested by threats of or attempts at suicide or serious bodily harm or other conduct demonstrating that the person is dangerous to himself or herself, or (b) a substantial risk of physical harm to other persons as manifested by homicidal or other violent behavior by which others are placed in reasonable fear of serious physical harm.Id. § 9.01.
Here, based on the undisputed evidence, the Court finds that Defendants had probable cause to seize Plaintiff because there were “reasonable grounds for believing” that Plaintiff was “dangerous to [himself] or others.” Lurch, 2022 WL 889259, at *7 (internal quotation marks and citation omitted). It is undisputed that at the time of the incident Defendants had information leading them to believe that Plaintiff was under intense emotional distress, due to various events in his life including the death of his mother, and that Plaintiff had a recent history with threats of self-harm.
Specifically, during the traffic stop, Plaintiff said to Mendez, “I'm in the middle of really heavy shit. My mother died . . . Clarkstown cops have been to my house three times for suicide calls. I was charged with fucking the most fraudulent bullshit ....” (Defs.' 56.1 ¶ 19 (quoting Scheibel Decl. Ex. O (Traffic Stop Recording) at 00:12-00:29).) Plaintiff also told Mendez that his business had “collapsed” and he was having financial difficulties. (Id. at ¶ 22 (quoting Scheibel Decl. Ex. O (Traffic Stop Recording) at 01:26-01:28).) Mendez also learned that Plaintiff was facing criminal harassment charges brought against him by the Orangetown Police Department and employees at Nyack Hospital. (Id. at ¶ 24 (quoting Scheibel Decl. Ex. O (Traffic Stop Recording) at 01:36-01:39).) In addition, Plaintiff indicated that he had civil litigation pending against the hospital. (Id.) As Plaintiff was telling Mendez about these matters, he stated, “[O]h my god, I can't even think, I'm so depressed over all this shit.” (Id. (quoting Scheibel Decl. Ex. O (Traffic Stop Recording) at 02:36-02:39).) Plaintiff then went on to compliment the CPD and stated that “[he] was suicidal for a while. [CPD] came and sat with [him]. [CPD] sat in [his] house until they could get somebody on the phone.” (Id. at 25 (quoting Scheibel Decl. Ex. O (Traffic Stop Recording) at 03:40-03:48).) Moreover, Defendants contend, and Plaintiff does not dispute, that upon issuing Plaintiff a traffic citation for using his phone while driving, Plaintiff became “visibly and verbally upset.” (Id. at 29 (citing Scheibel Decl. Ex. P (4/28 Police Report); Ex. G (Mendez Depo.) at 16-17; Ex. F (Barkai Depo.) at 170:20-171:23, 175:23-176:5, 176:21-177:5); Pl.'s 56.1 ¶ 24.)
Thereafter, Plaintiff spoke with Laschet during which he made various statements that indicated he was “extremely upset and extremely animated” during the call. (Defs.' 56.1 ¶ 36 (citing Scheibel Decl. Ex. A (Compl.) at ¶ 9).) Plaintiff made numerous disturbing statements, which would lead a reasonable officer to believe that Plaintiff was dangerous to himself or others, including:
I would also file a complaint against George Mendez. He was standing in public space with-within less than six feet away from me without a mask. And that's- that's . . . well, you know, that I'm going to file a New York State Board of Health violation. He just risked my life. Might as well stick a gun in my mouth.
I don't understand-I don't understand what the fuck is going on in this-in this town and this country and this fucking-my life, that my-everybody fucking shits on me. I can't even get a fucking break. I can't even get the unemployment place on the phone. I can't get a loan. The fucking LA Lakers get the loan for $4 million
dollars and I can't get a $30,000.00 loan to save my business. But George Mendez, George Mendez can pull me over for the most irrelevant bullshit.(Id. at ¶ 41.)
Plaintiff went on further, stating: “I just told him I'm on the verge of a fucking nervous breakdown and I'm in therapy for suicide prevention.... I had police officers at my house because of suicide prevention and I'm in therapy....I'm just fucking-I'm just done. I'm really that fucking sick of everything. I can't take it anymore. I really just can't fucking take it anymore. I really can't take it.” (Id. at ¶ 42.) Of the various statements Defendants claim Plaintiff made, Plaintiff particularly disputes the one about “stick[ing] a gun in [his] mouth.” (Id. at ¶ 41.) Plaintiff contends that he was not making a statement of self-harm, but instead metaphorically expressing the kind of risk Mendez put Plaintiff in by not wearing a mask when issuing Plaintiff a ticket. (Pl.'s 56.1 ¶ 39.) As an initial matter, Plaintiff's contention regarding his own personal state of mind in the moment, (see Pl.'s Mem. 17-19), is not dispositive. Where the standard is an objective one, “an arrestee's subjective motive does not bear on how reasonable officers would have interpreted his behavior.” Nuendorf, 2023 WL 2691712, at *29 (quoting Ehlers v. City of Rapid City, 846 F.3d 1002, 1011 (8th Cir. 2017)); see also Aponte v. Kanbur, No. 20-624, 2021 WL 3854069, at *5 (2d Cir. Aug. 30, 2021) (summary order) (noting that in Section 1983 actions, “the arrestee's subjective belief regarding the situation . . . [is] simply irrelevant” to the analysis). What matters in this context is how law enforcement officials reasonably perceived the arrestee's statements or conduct, and, in particular, whether they suggest a risk of self-harm. Guan v. City of New York, 37 F.4th 797, 805 (2d Cir. 2022) (“[F]or a mental health arrest, police officers must have reasonable grounds for believing that the person seized is dangerous to herself or others.” (internal quotation marks and citations omitted)); see also Kaplan, 528 F.Supp.3d at 163 (holding that “[t]he probable cause determination requires a fact-intensive analysis, converging on whether facts and circumstances known to the officers at the time they seized [the p]laintiff were sufficient to warrant a person of reasonable caution to believe that [the p]laintiff might be mentally ill and conducting himself in a manner likely to result in serious harm to himself.” (alterations adopted) (internal quotation marks and citations omitted)). But even if there was a dispute about this statement, there are still sufficient remaining, undisputed statements from before, during, and after Plaintiff's call with Laschet, supporting Defendants' view that Plaintiff presented a risk of harm to himself and therefore that they had probable cause to confine Plaintiff.
Following Plaintiff and Laschet's call, Laschet instructed CPD dispatchers to dispatch officers to the scene for a welfare check of Plaintiff. (Defs.' at ¶ 44 (citing Scheibel Decl. Ex. P (4/28/2020 Police Report - Laschet Narrative); Id. Ex. U (4/28/2020 Dispatch Notes)).) Pursuant to Laschet's instruction, the CPD dispatcher alerted patrol cars about Plaintiff's status as an EDP and the fact that Plaintiff indicated that he “want[ed] to hurt himself.” (Id. at ¶ 47.) The responding officers also could see a narrative comment in the CPD system, which stated that “[Plaintiff] is on the phone with [Laschet] and stated he wants to hurt himself....” (Id. at ¶ 51 (citing Scheibel Decl. Ex. U (4/28/2020 Dispatch Notes); Ex. N (Gorsky Aff.) at ¶ 14)).
Moreover, in addition to the narrative comments from the dispatchers, the responding officers could also see police records related to an individual from the mobile computer units in their patrol vehicles. (Id. at ¶ 52 (citing Ex. N (Gorsky Aff.) at ¶ 15).) Such records relayed the various encounters Plaintiff had with CPD related to suicidal/EDP calls for service. (Id. at ¶ 53 (citing Scheibel Decl. Ex. P (4/28/2020 Police Report); id. Ex. Q (Prior Reports); id. Ex. RR (Mobile Unit Screen)).) Although Plaintiff contests the exact nature of some of these prior encounters, one of the responding officers, Golden, had interacted with Plaintiff during multiple of the events listed in Plaintiff's prior history, and testified that he noted a difference between his behavior in the prior incidents and the one on April 28, 2020, during which he seemed more agitated than usual. (Id. at ¶¶ 59-62; see also id. at ¶ 92 (citing Scheibel Decl. Ex. I (Golden Depo.) at 33:15-34:10, 35:23-36:4; 44:10-18 (Golden noting that, as compared to his prior encounters with Plaintiff, during the April 28, 2020 incident Plaintiff Barkai was “excited” and in “a manic state” with “veins bulging out of [his] neck, screaming in [his] car and not calming down from the point of bringing [him] out of [his] car [to] sitting in the back of a police vehicle”)).)
Plaintiff contends, in response, that “Golden is a liar.” (Pl.'s 56.1 ¶ 87.) Specifically, Plaintiff claims that, contrary to Golden's contention that Plaintiff was not calm, the call reflects that when Plaintiff made eye contact with Golden during the incident, Plaintiff said: “I know this guy hes [sic] a nice guy,” with Golden responding: “You know me right,” and Plaintiff replying: “Yeah. How are you doing officer?” (Id.) As an initial matter, here, it is impossible to know that Plaintiff made any statement as a result of making eye contact with a specific officer because the recording provides only audio, not video. In any event, in listening to the audio recording of the call, the Court does not hear any such colloquy occur between Golden (or any other officer) and Plaintiff. But even assuming arguendo that this exchange occurred between Golden and Plaintiff, such that Golden's testimony about Plaintiff's agitation is put into dispute, there is still other evidence in the record to sufficiently support the fact that the Plaintiff was agitated at the scene.
For example, the other responding officers testified that while they were on the scene with Plaintiff, Plaintiff was yelling about many different topics, including the death of his mother and his issues with Nyack Hospital. (See Scheibel Decl. Ex. H (Baisley Depo.) at 25:3-20 (Baisley heard Plaintiff yelling about not wanting to go to Nyack Hospital because they killed his mother and Plaintiff was “kind of in a lot of different places”), 26:5-14 (Plaintiff was yelling in general, it was not directed at any specific officer), 27:8-21 (while at the scene, Baisley heard Plaintiff yelling and one of the things Plaintiff yelled about was the death of his mother); 80:1381:3, 83:15-85:16 (Plaintiff's outburst continued after the call with Laschet through the entire period that Plaintiff was held by police in the parking lot; he yelled, including regarding his mother dying at Nyack Hospital and having litigation with Nyack Hospital); id. Ex. G (Mendez Depo.) at 120:24-121:6, 125:12-126:1; id. Ex. M (O'Connell Aff.) at ¶ 6.)
Although Plaintiff also disputes these claims, contending that he calmly told the responding POs that he did not make any threat, and that he never yelled or even raised his voice at the scene, (see Scheibel Decl. Ex. F (Plaintiff Depo.) at 212:9-17, 214:11-13), the audio recording of the phone call between Baisley and Laschet at the scene (which occurred about ten minutes after the police arrived) reveals Plaintiff's voice in the background of the call, yelling (or at least speaking very loudly) at the POs, (Defs.' Rule 56.1 ¶ 85; Scheibel Decl. Ex. BB.) This audio recording moves the conversation from disputable to undisputed. See Alli v. City of New York, No. 21-CV-4866, 2023 WL 6393403, at *3 (S.D.N.Y. Sept. 29, 2023) (“Incontrovertible evidence relied on by the moving party, such as relevant videotape whose accuracy is unchallenged, should be credited by the court on . . . a [summary judgment] motion if it so utterly discredits the opposing party's version that no reasonable juror could fail to believe the version advanced by the moving party.” (quoting Zellner v. Summerlin, 494 F.3d 344, 371 (2d Cir. 2007))); see also Cambridge Cap. LLC v. Ruby Has LLC, - F.Supp.3d -, 2023 WL 3956868, at *25 (S.D.N.Y. June 2, 2023) (“When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.” (quoting Scott v. Harris, 550 U.S. 372, 380 (2007))).
Plaintiff also contends that Baisley should have listened to the recording of the call between Plaintiff and Lastchet, which would have demonstrated that Plaintiff did not threaten self-harm. (See Pl.'s Mem. at 17-18). Plaintiffs argument is futile because, in addition to the behavior Baisley witnessed himself at the scene, it was reasonable for Baisley to rely on the information conveyed to him by Laschet in deciding whether Plaintiff presented a threat of harm. DuBois v. Cunningham, No. 21-923, 2022 WL 2186956, at *3 (2d Cir. June 17, 2022) (summary order) (“When making a probable cause determination, police officers are entitled to rely on the allegations of fellow police officers.” (quoting Panetta, 460 F.3d at 395)); see also Barnes, 2022 WL 12399322, at *3 (same). Even if Laschet's statements to Baisley turned out to be inaccurate, “probable cause [would] exist[] even where it [was] based upon mistaken information, so long as the arresting officer was reasonable in relying on that information.” DuBois, 2022 WL 2186956, at *3 (quoting Bernard, 25 F.3d at 103). Here, Plaintiff has offered no evidence to suggest that Baisley's reliance on Laschet's statements were mistaken.
Moreover, courts in the Second Circuit have repeatedly found that probable cause for detention under Section 9.41 exists where police have witnessed or received a credible report of a threat of suicide, or threat of harm to others, or where an individual displays bizarre, erratic, or non-responsive behavior. See, e.g., Kusak, 2015 WL 510053, at *5 (holding that officer had probable cause to take plaintiff into custody after being called to plaintiff's house due to a report of neighbor troubles, and witnessing plaintiff display paranoid tendencies and bizarre behavior, and make statements about poisoning neighbor); Burdick v. Johnson, No. 06-CV-1465, 2009 WL 1707475, at *6 (N.D.N.Y. June 17, 2009) (“Defendants had probable cause to seize the Plaintiff pursuant to [NY]MHL § 9.41. When Plaintiff called 911, he was extremely upset, ranting and raving, and threatening to ‘shoot' and ‘wipe out' a police officer. Defendants were informed of this erratic behavior ....” (internal citations omitted)); Bayne v. Provost, No. 04-CV-44, 2005 WL 1871182, at *8 (N.D.N.Y. Aug. 4, 2005) (determining that probable cause existed for involuntary hospitalization where, even though Plaintiff denied making a threat and having suicidal desires, among other things, the plaintiff had a “clearly agitated mental state” and officers had genuine concern for Plaintiff's safety); see also Glass v. Mayas, 984 F.2d 55, 57-58 (2d Cir. 1993) (holding that probable cause existed to involuntarily hospitalize the plaintiff where he threatened someone with a gun and was acting “hostile, guarded, angry, suspicious, uncooperative, and paranoid” (alteration adopted));
To the extent that Plaintiff claims that the officers lacked probable cause because Plaintiff was compliant at the scene and the responding officers did not find a gun in his car, (see Pl.'s Mem. at 19-24). the Court finds such an argument unavailing. Assuming arguendo that Plaintiff was fully “compliant” with the officers' instructions, “compliance” does not refute the erase the indicators of dangerousness, including those from the initial traffic stop, Plaintiff's call with Laschet, and Plaintiff's prior history listed in CPD records. Similarly, such indications of danger were not abrogated by the absence of a gun in Plaintiff's car. (See Scheibel Decl. Ex. H (Baisley Depo.) at 90:20-91:21 (explaining that he believed there was probable cause Plaintiff was a harm to himself, even though officers did not locate a gun at the scene, because of the numerous ways in which a suicidal individual might harm themselves); see also Ex. G (Mendez Dep.) at 155:13-156:21 (officers were concerned regardless of absence of weapon at the scene, in light of Plaintiff's actions and statements, and possibility of means of suicide in another location). In other words, even accepting Plaintiff's contentions, there are still more than enough undisputed facts demonstrating that it was reasonable for the responding officers to believe that Plaintiff posed a harm to himself or others. See Kiss v. Torres, No. 21-CV-10391, 2023 WL 2648396, at *13 (S.D.N.Y. Mar. 27, 2023) (“Once a police officer has probable cause, he need not explore every theoretically plausible claim of innocence before making an arrest; officers have no duty to investigate an exculpatory statement of the accused, and their refusal to do so does not defeat probable cause.” (alterations adopted) (internal quotation marks and citation omitted)); Stark v. City of New York, No. 19-CV-3411, 2021 WL 5628229, at *3 (E.D.N.Y. Oct. 27, 2021) (“When an officer possesses facts sufficient to establish probable cause, the officer is neither required nor allowed to continue investigating, sifting and weighing information. In other words, the arresting officer does not have to prove plaintiff's version wrong before arresting him.” (internal quotation marks and citation omitted)), aff'd, No. 21-2886-CV, 2023 WL 1097516 (2d Cir. Jan. 30, 2023) (summary order); see also Mistretta v. Prokesch, 5 F.Supp.2d 128, 133-35 (E.D.N.Y. 1998) (dismissing Section 1983 claim, even with some factual disputes where probable cause to arrest would exist even under the plaintiff's version of the incident).
Accordingly, based on the totality of the undisputed facts, Plaintiff's detention and transport to the hospital were supported by probable cause, and therefore, Defendants are entitled to summary judgment on Plaintiff's Fourth Amendment claim.
b. Qualified Immunity
Defendants further contend that, even if their actions violated Plaintiff's Fourth Amendment rights because actual probable cause did not exist, they are entitled to qualified immunity. (See Defs.' Mem. 16-23.)
Qualified immunity is also defense to a claim of false arrest. See Simpson v. City of New York, 793 F.3d 259, 265 (2d Cir. 2015); Delgado, 2023 WL 6390134, at *7 (“Even absent probable cause, an officer will be entitled to qualified immunity on a claim for false arrest if there was ‘arguable probable cause' for an arrest.” (footnote and citations omitted)). A police officer or other government official will be protected from liability for his discretionary actions by the doctrine of qualified immunity “where ‘(1) his conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known, or (2) it was objectively reasonable for him to believe that his actions were lawful at the time of the challenged act.'” Delgado, 2023 WL 6390134, at *7 (quoting Jenkins, 478 F.3d at 87); see also Cerrone v. Brown, 246 F.3d 194, 199 (2d Cir. 2001) (same). Qualified immunity “gives government officials breathing room to make reasonable but mistaken judgments,” and it protects “all but the plainly incompetent or those who knowingly violate the law.” City of San Francisco v. Sheehan, 575 U.S. 600, 611 (2015) (internal quotation marks omitted) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011)); see also Bangs v. Smith, 84 F.4th 87, 101 (2d Cir. 2023) (same); Murphy v. City of Elmira, No. 18-CV-6572, 2023 WL 5938777, at *10 (W.D.N.Y. Sept. 12, 2023) (same). “In the case of allegations to which probable cause is a complete defense, such as false arrest or imprisonment, the Second Circuit has defined the standard of qualified immunity as one of ‘arguable probable cause.'” Betts v. Shearman, No. 12-CV-3195, 2013 WL 311124, at *4 (S.D.N.Y. Jan. 24, 2013) (quoting Cerrone, 246 F.3d at 202), aff'd, 751 F.3d 78 (2d Cir. 2014); see also Sentementes v. Lamont, No. 20-CV-1826, 2023 WL 1818544, at *6 (D. Conn. Feb. 8, 2023) (same); Kosmidis v. Port Auth. of N.Y. & N.J., No. 18-CV-8413, 2021 WL 4442812, at *3 (S.D.N.Y. Sept. 28, 2021) (same). “Arguable probable cause exists when a reasonable police officer in the same circumstances and possessing the same knowledge as the officer in question could have reasonably believed that probable cause existed.” Aurecchione, 2023 WL 6255529, at *10 (quoting Cerrone, 246 F.3d at 202-03). In other words, an officer is entitled to qualified immunity if “(a) it was objectively reasonable for the officer to believe that probable cause existed, or (b) officers of reasonable competence could disagree on whether the probable cause test was met.” Grytsyk v. Morales, No. 19-CV-03470, 2023 WL 6122693, at *4 (S.D.N.Y. Sept. 19, 2023) (quoting Escalera v. Lunn, 361 F.3d 737, 743 (2d Cir. 2004)); see also Golino v. City of New Haven, 950 F.2d 864, 870 (2d Cir. 1991) (same).
Here, the Court agrees that Defendants are entitled to qualified immunity because, in light of the totality of the circumstances and the confluence of concerning information known to Defendants regarding Plaintiff's behavior on April 28, 2020, and his behavior during prior occasions involving CPD, it was objectively reasonable for Defendants to believe that probable cause existed to confine Plaintiff. As discussed above, the undisuputed facts demonstrate that Defendants were confronted with Plaintiff, an EDP who was, at the very least, in an agitated state and who had made statements indicating suicidal ideation, about whom there were records of prior history indicating extreme emotional distress. Such information puts Defendants' decision to confine Plaintiff well within the boundaries of what is considered objectively reasonable for purposes of qualified immunity. See Pal, 2023 WL 2712371, at *18 (holding that the defendant officer had at least arguable probable cause where, although Plaintiff insisted that she did not pose a risk of harm to herself or others, Plaintiff was belligerent, hostile, and according to her husband and the officers' own observations, had been drinking); Jones v. New York, No. 16-CV-556, 2019 WL 4640151, at *7 (S.D.N.Y. Sept. 24, 2019) (holding that officers were entitled to qualified immunity because that a reasonable officer could conclude that witness's statements, corroborated by the radio dispatch call and the officers' own observation of plaintiff's argumentative and irrational behavior, would be sufficient to lead a person of reasonable caution to believe that plaintiff appeared mentally ill and posed “a probability or substantial chance of dangerous behavior” (citation omitted)); Kraft v. City of New York, 696 F.Supp.2d 403, 419 (S.D.N.Y. 2010) (concluding that police defendants were entitled to qualified immunity because reasonable officers in the defendants' position would have believed that they had probable cause to seize plaintiff, where officers were informed that plaintiff had caused or threatened serious physical harm and had been verbally abusive), aff'd, 441 Fed.Appx. 24 (2d Cir. 2011) (summary order); Sanchez v. Town of Greece, No. 98-CV-6433, 2004 WL 1964505, at *4 (W.D.N.Y. Sept. 1, 2004) (officer entitled to qualified immunity after involuntarily hospitalizing plaintiff who behaved bizarrely); Thomas v. Culberg, 741 F.Supp. 77, 80-81 (S.D.N.Y. 1990) (same).
Therefore, the Court finds that Defendants are entitled to qualified immunity and this defense serves as an alternative basis to dismiss the Fourth Amendment claim against them.
c. Plaintiff's Partial Summary Judgment Motion
Plaintiff also moves for partial summary judgment on the portion of his Fourth Amendment claim as it relates to the period when officers initially responded to the scene and held him in handcuffs. (Pl.'s Mem. at 31-35). The Court denies Plaintiff's request.
The Court does not find that the Defendants violated the Fourth Amendment as a matter law when Plaintiff was held in handcuffs during his initial detention. “An officer's decision to handcuff and detain a person will not violate the Constitution so long as the officer had probable cause to believe that the person presented a risk of harm to himself or others.” Kerman v. City of New York, 261 F.3d 229, 237 (2d Cir. 2001); see also Barrette v. Vill. of Swanton, No. 22-CV-129, 2023 WL 3891034, at *9 (D. Vt. June 6, 2023) (“To handcuff and detain, even briefly, a person for mental-health reasons, an officer must have ‘probable cause to believe that the person presented a risk of harm to [him]self or others.'” (quoting Myers v. Patterson, 819 F.3d 625, 632 (2d Cir. 2016))). Here, the Court has concluded that the undisputed evidence demonstrates that the officers had probable cause to detain Plaintiff when they initially arrested him at the scene, (see MTD Order at 39), and during Plaintiff's extended confinement and transport to Good Samaritan, (see infra Section II.B.1.a.). Moreover, it is not uncommon for officers to use handcuffs during similar mental-health arrests. See e.g., Phillip v. City of New York, No. 21-CV-6599, 2023 WL 5019466, at *2 (E.D.N.Y. Aug. 7, 2023) (noting that Plaintiff was handcuffed and escorted to an ambulance for a wellness check); Lurch, 2022 WL 889259, at *1 (describing plaintiff as being handcuffed and then put into an ambulance for evaluation and transport to hospital); Jones, 2019 WL 4640151, at *1 (explaining that officers handcuffed plaintiff prior to transporting him to a hospital for a mental-health evaluation). Accordingly, Plaintiff's claim fails, and he is not entitled to summary judgment.
Even assuming Defendants did not have probable cause to arrest Plaintiff, and therefore handcuff him, Plaintiff is still not entitled to summary judgment. It is well-established that the “personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.” Lloyd v. City of New York, 246 F.Supp.3d 704, 726 (S.D.N.Y. 2017) (quoting Victory v. Pataki, 814 F.3d 47, 67 (2d Cir. 2016)). Here, Plaintiff does not indisputably demonstrate that either Defendant, Mendez or Baisley, handcuffed Plaintiff. In fact, Plaintiff contended in his deposition that Mendez did not handcuff him. (Scheibel Decl. Ex. F. (Plaintiff Depo.) at 219:2-3.) Further, Plaintiff stated he believed that Domenici handcuffed him, but that he was not sure and was guessing by process of elimination. (Id. at 219:2-8.) In addition, in his Memorandum of Law, Plaintiff maintains that he was already in handcuffs by the time Baisley arrived at the scene. (Pl.'s Mem. at 31.) Accordingly, Plaintiff does not establish beyond dispute that either of the Defendants was personally involved in handcuffing him, and therefore he is not entitled to summary judgment. See Rekor Sys., Inc. v. Loughlin, No. 19-CV-7767, 2022 WL 3020148, at *10 (S.D.N.Y. July 29, 2022) (holding that “Plaintiff is not entitled to summary judgment on [the] claim because there are disputed issues of material fact.”).
2. First Amendment
Plaintiff also brings a First Amendment claim against Mendez and Baisley. (See FAC Add. at 11, 16, 20-22.) Defendants move for summary judgment as to this claim, asserting that there was probable cause, or at least arguable probable cause to detain Plaintiff. (See Defs.' Mem. at 23-24.) In addition, Defendants argue that Plaintiff cannot established a First Amendment Retaliation claim. (See id. at 24-25.) Plaintiff counters each of these arguments. (See Pl.'s Mem. at 27-30.)
A plaintiff asserting a First Amendment retaliation claim must establish that: “(1) [his] speech or conduct was protected by the First Amendment; (2) the defendant took an adverse action against [him]; and (3) there was a causal connection between this adverse action and the protected speech.” Balchan v. City Sch. Dist. of New Rochelle, No. 21-CV-4798, 2023 WL 4684653, at *5 (S.D.N.Y. July 21, 2023) (quoting Matthews v. City of New York, 779 F.3d 167, 172 (2d Cir. 2015)). With respect to the first factor, “the First Amendment protects a significant amount of verbal criticism and challenge directed at police officers.” Burden v. Incorporated Village of Port Jefferson, No. 21-CV-4967, 2023 WL 2632453, at *3 (E.D.N.Y. Mar. 24, 2023) (quoting City of Houston v. Hill, 482 U.S. 451, 461 (1987)). Accordingly, “[s]peech directed at police officers will be protected unless it is likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance or unrest.” Lilly v. Town of Lewiston, 449 F.Supp.3d 190, 202 (W.D.N.Y. 2020) (quoting Kerman, 261 F.3d at 242). As for the third factor, causality, the retaliatory motive must be a “but-for” cause. Hartman v. Moore, 547 U.S. 250, 260 (2006). In other words, “[i]t is not enough to show that an official acted with a retaliatory motive and that the plaintiff was injured-the motive must cause the injury.” Nieves v. Bartlett, 139 S.Ct. 1715, 1722 (2019) (emphasis omitted). For this reason, “[t]he presence of probable cause should generally defeat a First Amendment retaliatory arrest claim.” Dougal v. Lewicki, No. 23-CV-1167, 2023 WL 6430586, at *8 (N.D.N.Y. Oct. 3, 2023) (quoting Nieves, 139 S.Ct. at 1726), report and recommendation adopted, No. 23-CV-1167, 2023 WL 7013384 (N.D.N.Y. Oct. 25, 2023); see also Higginbotham v. Sylvester, 218 F.Supp.3d 238, 245 (S.D.N.Y. 2016) (“The existence of probable cause . . . will defeat a First Amendment claim ‘premised on the allegation that defendants prosecuted a plaintiff out of a retaliatory motive.'” (alteration adopted) (quoting Fabrikant v. French, 691 F.3d 193, 215 (2d Cir. 2012))), aff'd sub nom. Higginbotham v. Sylvester, 741 Fed.Appx. 28 (2d Cir. 2018) (summary order).
Here, Defendants are entitled to summary judgment as to Plaintiff's First Amendment retaliation claim based on the Court's conclusion that there was probable cause, or, at least, arguable probable cause, to arrest Plaintiff, (see infra Section II.B.1.a-b). See Dougal, 2023 WL 6430586, at *8. Indeed, various courts in the Second Circuit have dismissed a plaintiff's First Amendment retaliation claim where the court determined that probable cause to arrest plaintiff was already established. See, e.g., Boykin v. City of New York, No. 21-CV-1362, 2022 WL 4585299, at *4 (S.D.N.Y. Sept. 29, 2022) (dismissing plaintiff's First Amendment retaliation claim, where Court had already determined that there was probable cause to support plaintiff's arrest), aff'd, No. 22-2675-CV, 2023 WL 7383147 (2d Cir. Nov. 8, 2023) (summary order); Burdick v. Swarts, No. 12-CV-1711, 2019 WL 1409938, at *10 (N.D.N.Y. Mar. 28, 2019) (granting defendant summary judgment as to the plaintiff's First Amendment retaliation claim because defendant was entitled to qualified immunity for charging Plaintiff and initiating the prosecution on the basis of arguable probable cause); Collins v. City of New York, 295 F.Supp.3d 350, 368 (S.D.N.Y. 2018) (holding that “[b]ecause the Court ha[d] already concluded that the [d]efendants had arguable probable cause to arrest the [p]laintiffs . . . the Court [found] that the [d]efendants [were] entitled to qualified immunity on [p]laintiffs' First Amendment retaliation claim on the basis of that same arguable probable cause” (citation omitted)); Higginbotham, 218 F.Supp.3d at 245 (granting defendants summary judgment as to First Amendment retaliation claim because there was probable cause to arrest Plaintiff). Accordingly, because the Court here already determined that probable cause to arrest Plaintiff existed, the Court need not go any further to grant Defendants summary judgement on this claim.
III. Conclusion
For the foregoing reasons, Plaintiff's Motion is denied and Defendants' Motion is granted in full. The Clerk of Court is respectfully directed to terminate the pending motion, (Dkt. No. 161), enter judgment for Defendants and close this case.
The Clerk of the Court is respectfully requested to file this Opinion & Order (“Opinion”) under seal, restricted to the Parties and the Court. The Clerk is directed to mail a copy of this Opinion to Plaintiff. The Parties may have three weeks from the date of this Opinion to propose redactions to the Opinion before it is issued publicly.
SO ORDERED.