Opinion
16 Civ. 6044 (GBD)(HBP)
07-08-2019
EDWARD BARNES, Plaintiff, v. NYPD POLICE OFFICER JOSEPH CAROLAN, et al., Defendants.
REPORT AND RECOMMENDATION
: TO THE HONORABLE GEORGE B. DANIELS, United States District Judge,
I. Introduction
By notice of motion dated October 1, 2018 (Docket Item ("D.I.") 59), defendants move for summary judgment. For the reasons set forth below, I respectfully recommend that defendants' motion be granted.
II. Facts
Plaintiff Edward Barnes brings this action pro se against defendants Police Officer Joseph Carolan and Police Officer Joseph Fratto. Construing plaintiff's second amended complaint leniently, plaintiff asserts a false arrest claim against defendants pursuant to 42 U.S.C. § 1983 (Second Amended Complaint, dated Dec. 1, 2016 (D.I. 14) ("SAC")).
The City of New York was previously dismissed due to plaintiff's failure to allege a Monell claim against it. See Barnes v. Carolan, 16 Civ. 6044 (GBD)(HBP), 2017 WL 1737660 at *2 (S.D.N.Y. May 3, 2017) (Daniels, D.J.).
On or about April 19, 2015, defendants stopped plaintiff because Police Officer Carolan suspected that plaintiff was consuming alcohol from an open container in a public place (SAC ¶ III; Defendants' Statement of Undisputed Facts Pursuant to Local Civil Rule 56.1, dated Oct. 1, 2018 (D.I. 60) ("Def. 56.1 Facts") ¶¶ 1, 6, 8-11). Police Officer Carolan observed plaintiff holding a green glass bottle that was inside a paper bag while walking down a public sidewalk (Affidavit of Police Officer Carolan, dated Sept. 28, 2018 (D.I. 63) ("Carolan Aff.") ¶¶ 2-10). Police Officer Carolan further observed that this green glass bottle was open because as defendants approached plaintiff, plaintiff attempted to screw the top back on the bottle (Carolan Aff. ¶¶ 8-10). Plaintiff then threw the bottle out in a nearby garbage can (Deposition Transcript of Edward Barnes, dated Aug. 9, 2018, annexed to the Declaration of Debra March, Esq. ("March Decl.") as Ex. A (D.I. 62-1) ("Pl. Depo.") at 78-81).
Plaintiff does not dispute these facts and concedes that he was drinking from the open green glass bottle (Pl. Depo. at 80-81). However, plaintiff maintains that he was drinking a non-alcoholic beverage, while Police Officer Carolan asserts that, based on the color of the glass, he suspected that plaintiff was drinking beer (SAC ¶ III; Carolan Aff. ¶¶ 11-12).
During the stop, Police Officer Carolan patted plaintiff down and recovered a gravity knife from plaintiff's back pocket (Pl. Depo. at 78-79; Def. 56.1 Facts ¶¶ 24-30). One of the officers then handcuffed plaintiff and transported him to the 30th Precinct where he was charged with Criminal Possession of a Weapon in the Third Degree in violation of New York Penal Law 265.02(1) (SAC ¶ III; Def. 56.1 Facts ¶¶ 34-39). Plaintiff was released from the precinct after receiving a desk appearance ticket (Pl. Depo. at 102; Def. 56.1 Facts ¶ 45).
Although not material to the present motion, I note that New York has recently repealed the prohibition against the possession of gravity knives. 2019 N.Y. Sess. Laws Ch. 34 (A. 5944).
Plaintiff alleges that defendants lacked sufficient probable cause to stop, search and arrest him and claims that defendants' conduct caused him to suffer "embarrassment, humiliation and emotional distress" (SAC ¶ IV). Defendants maintain that plaintiff's arrest was lawful because defendants had probable cause to arrest plaintiff for an open container violation and for possession of a gravity knife (Defendants' Memorandum of Law in Support of Their Motion for Summary Judgment, dated Oct. 1, 2018 (D.I. 61) ("Def. Memo.")).
III. Analysis
A. Applicable Legal Principles
1. Summary Judgment Standard
The standards applicable to a motion for summary judgment are well-settled and require only brief review.
Summary judgment may be granted only where there is no genuine issue as to any material fact and the moving party . . . is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c). In ruling on a motion for summary judgment, a court must resolve all ambiguities and draw all factual inferences in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 91 L.Ed.2d 202 (1986). To grant the motion, the court must determine that there is no genuine issue of material fact to be tried. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 91 L.Ed.2d 265 (1986). A genuine factual issue derives from the "evidence [being] such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S. Ct. 2505. The nonmoving party cannot defeat summary judgment by "simply show[ing] that there is some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 89 L.Ed.2d 538 (1986), or by a factual argument based on "conjecture or surmise," Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991). The Supreme Court teaches that "all that is required [from a nonmoving party] is that sufficient evidence supporting the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89, 88 S. Ct. 1575, 20 L.Ed.2d 569 (1968); see also Hunt v. Cromartie, 526 U.S. 541, 552, 119 S. Ct. 1545, 143 L.Ed.2d 731 (1999).
It is a settled rule that "[c]redibility assessments, choices between conflicting versions of the events, and the weighing of evidence are matters for the jury, not for the court on a motion for summary judgment." Fischl v. Armitage, 128 F.3d 50, 55 (2d Cir. 1997).McClellan v. Smith, 439 F.3d 137, 144 (2d Cir. 2006) (brackets in original); accord Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150-51 (2000); Estate of Gustafson ex rel. Reginella v. Target Corp., 819 F.3d 673, 675 (2d Cir. 2016); Cortes v. MTA N.Y.C. Transit, 802 F.3d 226, 230 (2d Cir. 2015); Deep Woods Holdings, L.L.C. v. Savings Deposit Ins. Fund of Republic of Turk., 745 F.3d 619, 622-23 (2d Cir. 2014); Hill v. Curcione, 657 F.3d 116, 124 (2d Cir. 2011).
Although the Court in Reeves was reviewing the denial of a motion for judgment as a matter of law pursuant to Fed.R.Civ.P. 50, the same standards apply to a motion for summary judgment pursuant to Fed.R.Civ.P. 56. Reeves v. Sanderson Plumbing Prods., Inc., supra, 530 U.S. at 150-51.
"Material facts are those which 'might affect the outcome of the suit under the governing law' . . . ." Coppola v. Bear Stearns & Co., 499 F.3d 144, 148 (2d Cir. 2007), quoting Anderson v. Liberty Lobby, Inc., supra, 477 U.S. at 248. "'[I]n ruling on a motion for summary judgment, a judge must ask himself not whether he thinks the evidence unmistakably favors one side or the other but whether a fair-minded jury could return a verdict for the [non-movant] on the evidence presented[.]'" Cine SK8, Inc. v. Town of Henrietta, 507 F.3d 778, 788 (2d Cir. 2007) (second alteration in original), quoting Readco, Inc. v. Marine Midland Bank, 81 F.3d 295, 298 (2d Cir. 1996).
Entry of summary judgment is appropriate "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "In such a situation, there can be 'no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex Corp. v. Catrett, supra, 477 U.S. at 322-23, quoting Fed.R.Civ.P. 56; accord Crawford v. Franklin Credit Mgmt. Corp., 758 F.3d 473, 486 (2d Cir. 2014) ("[W]here the nonmoving party will bear the burden of proof on an issue at trial, the moving party may satisfy its burden [on a summary judgment motion] by point[ing] to an absence of evidence to support an essential element of the nonmoving party's case." (inner quotations and citations omitted, last alteration in original)).
Lastly, where, as here, a party is proceeding pro se, his submissions "must be construed liberally and interpreted 'to raise the strongest arguments they suggest.'" Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (emphasis added in original), quoting Pabon v. Wright, 459 F.3d 241, 248 (2d Cir. 2006); see also Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam); Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996); Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). This rule applies with particular force when evaluating motions for summary judgment. Graham v. Lewinski, 848 F.2d 342, 344 (2d Cir. 1988) ("[S]pecial solicitude should be afforded pro se litigants . . . when confronted with motions for summary judgment.").
2. False Arrest
A "plaintiff will prevail on a claim of false arrest under New York law if he can show that the arrest was not privileged, i.e., not based on probable cause." Jenkins v. City of New York, supra, 478 F.3d at 84, citing Broughton v. State of New York, 37 N.Y.2d 451, 456-57, 335 N.E.2d 310, 314, 373 N.Y.S.2d 87, 93-94 (1975); accord Simon v. City of New York, 18-CV-3400 (BMC), 2019 WL 2579124 (E.D.N.Y. June 24, 2019); Ash v. City of New York, 16 Civ. 9548 (RJS), 2018 WL 3462514 at *3 (S.D.N.Y. July 18, 2018) (Sullivan, then D.J., now Cir. J.) ("[E]ven when a Section 1983 plaintiff proceeds pro se, the complaint must set forth facts supporting an allegation that the arresting officers did not have probable cause to arrest the plaintiff." (internal quotation marks and citation omitted)). "There can be no federal civil rights claim for false arrest where the arresting officer had probable cause." Singer v. Fulton Cty. Sheriff, 63 F.3d 110, 118 (2d Cir. 1995).
A section 1983 claim for false arrest is substantially the same as a claim for false arrest under New York law. Jenkins v. City of New York, 478 F.3d 76, 84 (2d Cir. 2007); Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996); accord Crews v. Cty. of Nassau, 996 F. Supp. 2d 186, 203 (E.D.N.Y. 2014) ("Under New York law, the tort of false arrest is synonymous with that of false imprisonment, and courts use that tort to analyze an alleged Fourth Amendment violation in the Section 1983 context." (internal quotation marks and citation omitted)).
"Probable cause exists when one has knowledge of, or reasonably trustworthy information as to, facts and circumstances that are sufficient to warrant a person of reasonable caution in the belief that an offense has been or is being committed by the person to be arrested." Oquendo v. City of New York, --- F. App'x --- , 2019 WL 2323676 at *1 (2d Cir. May 31, 2019) (summary order) (quotation marks and citation omitted); accord Weyant v. Okst, supra, 101 F.3d at 852; Rodriguez v. City of New York, 291 F. Supp. 3d 396, 409 (S.D.N.Y. 2018) (Failla, D.J.); Coggins v. Cty. of Nassau, 254 F. Supp. 3d 500, 515 (E.D.N.Y. 2017). In determining whether probable cause existed for an arrest, a court should consider the "totality of the circumstances" in evaluating whether the "facts available to the officer at the time of arrest and immediately before it" met that standard. Caldarola v. Calabrese, 298 F.3d 156, 162 (2d Cir. 2002) (citation omitted); accord Ivery v. Baldauf, 284 F. Supp. 3d 426, 435 (W.D.N.Y. 2018). "If probable cause existed to arrest the plaintiff for any charge, it is irrelevant 'whether probable cause existed with respect to each individual charge, or, indeed, any charge actually invoked by the arresting officer at the time of arrest.'" Ivery v. Baldauf, supra, 284 F. Supp. 3d at 435, quoting Jaegly v. Couch, 439 F.3d 149, 154 (2d Cir. 2006); accord Figueroa v. Mazza, 825 F.3d 89, 99-100 (2d Cir. 2016). The "validity of an arrest does not depend upon an ultimate finding of guilt or innocence." Peterson v. Cty. of Nassau, 995 F. Supp. 305, 313 (E.D.N.Y. 1998), citing Pierson v. Ray, 386 U.S. 547, 555 (1967), overruled on other grounds by Harlow v. Fitzgerald, 457 U.S. 800 (1982). "Rather, the court looks only to the information the arresting officer had at the time of the arrest." Peterson v. Cty. of Nassau, supra, 995 F. Supp. at 313, citing Anderson v. Creighton, 483 U.S. 635, 641 (1987).
B. Application of the Foregoing Legal Principles
While there is a factual dispute as to whether plaintiff was actually drinking beer immediately before his arrest, that dispute is not necessarily an obstacle to granting summary judgment. "Even where factual disputes exist, . . . a § 1983 claim may fail if the plaintiff's version of events establishes probable cause to arrest." Mistretta v. Prokesch, 5 F. Supp. 2d 128, 133 (E.D.N.Y. 1998). Based on the totality of the circumstances here, defendants had probable cause to arrest plaintiff for an open container violation pursuant to New York City Admin- istrative Code § 10-125(b) ("No person shall drink or consume an alcoholic beverage, or possess, with intent to drink or consume, an open container containing an alcoholic beverage in any public place except at a block party, feast or similar function for which a permit has been obtained.").
Police Officer Carolan had been patrolling plaintiff's neighborhood for approximately a year and a half; one of his main responsibilities was to "address quality of life offenses in the community [including] public consumption of alcohol" (Carolan Aff. ¶¶ 3-5). Carolan observed plaintiff holding a glass bottle that was covered with a paper bag while walking down the street (Carolan Aff. ¶ 6). He further observed plaintiff attempt to screw the top back on the bottle, confirming his belief that the bottle was open, and throw it into a nearby garbage can (Carolan Aff. ¶¶ 8-10). Plaintiff does not dispute these facts and admitted that he had been drinking from the bottle (Pl. Depo. at 80).
Based on his training and experience, Carolan understood that brown paper bags like the one held by plaintiff are "frequently used to conceal alcohol" and that he suspected that "plaintiff's bottle contained beer" based on the color of the glass bottle plaintiff was holding (Carolan Aff. ¶¶ 11-12). The Second Circuit has held that courts may take such experience into account when assessing whether an arresting officer's actions were reasonable in approaching or arresting someone for an open container violation. See United States v. Singletary, F.3d 55, 60-61 (2d Cir. 2015) (officer had reasonable suspicion that an individual was consuming alcohol in public where officer "knew from experience -- not simply from intuition -- that persons carrying open containers of alcohol in public frequently conceal that proscribed activity by covering containers with brown paper bags"); accord United States v. Ortiz, 06-CR-6076, 2007 WL 925731 at *5 (W.D.N.Y. Mar. 26, 2007) (officer reasonably "concluded, based upon his experience and training . . . that, because of how the top of the bottle was shaped, because it was glass and not plastic, and because he was aware that paper bags were utilized to conceal the label on an alcoholic beverages [sic], that it was a beer bottle and that the defendant was committing an open container violation"); People v. Britt, 160 A.D.3d 428, 429-30, 74 N.Y.S.3d 207, 210 (1st Dep't 2018) (reasonable for officer based on his experience who "observed defendant drinking a beverage concealed in a paper bag" to conclude "that defendant was drinking in that manner [to conceal] a violation of the Open Container Law"); People v. Bothwell, 261 A.D. 2d 232, 233, 690 N.Y.S. 2d 231, 232 (1st Dep't 1999) ("Here, Officer Tergeson, a trained officer on specific assignment to police quality of life offenses, observed defendant, engaged in conversation, holding in front of him a partially concealed open bottle resembling a beer bottle. Based on this observation, he concluded that defendant was drinking an alcoholic beverage in public.").
Plaintiff's sole argument in opposition to defendants' motion is that the bottle he was drinking from contained a "non alcoholic beverage" and that defendants did not, therefore, have probable cause to stop, search or arrest him (Plaintiff's Letter to the undersigned, dated Oct. 31, 2018 (D.I. 67); Plaintiff's Letter to the undersigned, undated (D.I. 68); Plaintiff's Letter to the undersigned, undated (D.I. 69), collectively ("Pl. Response")). However, even accepting plaintiff's assertion as true, the fact that he may have been consuming a non-alcoholic beverage does not negate defendants' probable cause to arrest him for an open container violation.
Plaintiff filed and served three separate letters on November 2, 6 and 8, 2018, rather than submitting a formal response to defendants' motion. Defendants have requested that I disregard these letters because they are "untimely", do not properly challenge defendants' statement of undisputed facts and "are riddled with conclusory statements" (Debra March's, Esq., letter to the undersigned, dated Nov. 9, 2018 (D.I. 70)). Given plaintiff's pro se status, I must construe his submissions liberally and interpret them "to raise the strongest arguments they suggest." Pabon v. Wright, supra, 459 F.3d at 248 (emphasis in original). Thus, defendants' request is denied, and I shall consider plaintiff's argument.
First, several courts have held that an officer need not confirm that the open container contained in a paper bag actually contained an alcoholic beverage in order to have probable cause to arrest an individual for an open container viola- tion. See United States v. Ortiz, supra, 2007 WL 925731 at *5 (officer had probable cause to arrest defendant for open container where he observed defendant in possession of "a paper bag from which one to two inches of a clear glass bottle was protruding and that the bottle itself had no cap on it", even though the officer had not yet confirmed that the bottle contained alcohol); U.S. v. McPhatter, 03-CR-911 (FB), 2004 WL 350439 at *1-*2 (E.D.N.Y. Feb. 24, 2004) (reasonable for an officer to believe an individual was committing an open container violation where the officer observed the individual "holding a paper bag from which the top of a green glass bottle was visible" even though the officer "could not know with certainty that the bottle contained alcohol"); People v. Bothwell, supra, 261 A.D.2d at 233, 690 N.Y.S.2d at 232 (probable cause existed where officer observed an individual holding "a brown paper bag containing a partially concealed open green bottle with a white label on it" even though the officer never confirmed that there was beer in the bottle).
Second, "the issue in this case [is] not whether [plaintiff] was guilty of a violation of the Administrative Code, but whether it was reasonable for [defendants] to believe [plaintiff] was holding an open bottle of beer with intent to drink it in public." Thomas v. City of New York, 05 Civ. 6449 (LTS)(THK), 2008 WL 3456173 at *3 (S.D.N.Y. Aug. 12, 2008) (Swain, D.J.) (quotation marks and citation omitted). Thus, it is of no importance whether plaintiff was actually consuming alcohol on a public sidewalk or that he was ultimately arrested and charged with a completely separate offense, possession of a gravity knife. See Jaegly v. Couch, supra, 439 F.3d at 154 (concluding "that a claim for false arrest turns only on whether probable cause existed to arrest a defendant, and that it is not relevant whether probable cause existed with respect to each individual charge, or, indeed, any charge actually invoked by the arresting officer at the time of arrest").
Accordingly, because "[d]efendants are entitled to summary judgment . . . 'if the undisputed facts indicate that the arresting officer's probable cause determination was objectively reasonable'", Hoyos v. City of New York, 999 F. Supp. 2d 375, 385-86 (E.D.N.Y. 2013), quoting Jenkins v. City of New York, supra, 478 F.3d at 88, I respectfully recommend that defendants' motion for summary judgment be granted.
Defendants argue in the alternative that defendants also had probable cause to arrest plaintiff for possession of a gravity knife and are entitled to qualified immunity (Def. Memo. at 7-15).
While it is not necessary to address these arguments since probable cause existed to arrest plaintiff based on Police Officer Cardan's observation of plaintiff holding an open glass bottle concealed in a paper bag, I also find that, at the very minimum, defendants had the requisite reasonable suspicion to stop and search defendant. Once Police Officer Carolan recovered a knife from plaintiff's back pocket, which he confirmed was a gravity knife, defendants also had probable cause to arrest plaintiff for Criminal Possession of a Weapon in the Third Degree (Def. 56.1 Facts ¶¶ 28-33). See N.Y. Penal L. § 265.02(1). Plaintiff does not appear to dispute that the knife recovered was a gravity knife; instead he merely suggests that he used the knife for work (see generally SAC and attached photographs; Pl. Depo. at 79).
Defendants also assert the defense of qualified immunity. Because I find that defendants had probable cause to arrest plaintiff, it is not necessary to reach this issue.
IV. Conclusion
Accordingly, for all the foregoing reasons, I respectfully recommend that defendants' motion be granted.
V. Objections
Pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from receipt of this Report to file written objections. See also Fed.R.Civ.P. 6(a). Such objections (and responses thereto) shall be filed with the Clerk of the Court, with courtesy copies delivered to the Chambers of the Honorable George B. Daniels, United States District Judge, 500 Pearl Street, Room 1310, New York, New York 10007, and to the Chambers of the undersigned, 500 Pearl Street, Room 1670, New York, New York 10007. Any requests for an extension of time for filing objections must be directed to Judge Daniels. FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. Thomas v. Arn, 474 U.S. 140, 155 (1985); United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983) (per curiam). Dated: New York, New York
July 8, 2019
Respectfully submitted,
/s/_________
HENRY PITMAN
United States Magistrate Judge Copy mailed to: Mr. Edward Barnes
502 West 151st Street
Apartment 4-E
New York, NY 10031 Copy transmitted to: Counsel for defendants