Alwan v. City of N.Y.

• Decision Date: 01 May 2018
• Docket Number: 14–CV–4556 (NGG) (VMS)
• Citation: 311 F.Supp.3d 570
• Parties: Abdulgalil Kaid ALWAN, Plaintiff, v. The CITY OF NEW YORK; New York City Police Department; Nicholas Nelson; and Jessica Hernandez, Defendants.
• Court: U.S. District Court — Eastern District of New York

311 F.Supp.3d 570

Abdulgalil Kaid ALWAN, Plaintiff,

v.The CITY OF NEW YORK; New York City Police Department; Nicholas Nelson; and Jessica Hernandez, Defendants.

14–CV–4556 (NGG) (VMS)

United States District Court, E.D. New York.

Signed May 1, 2018

Filed May 2, 2018

Francesco Pomara, Jr., Jessica Lynn Kronrad, Mallilo & Grossman, Flushing, NY, for Plaintiff.

Shira Rachel Siskind, New York City Law Department, New York, NY, for Defendants.

MEMORANDUM & ORDER

NICHOLAS G. GARAUFIS, United States District Judge.

Plaintiff Abdulgalil Alwan's son was involved in a traffic accident and called his father to the scene of the accident. While Plaintiff was waiting with his son, he was confronted by New York City Police Department ("NYPD") officers Nicholas Nelson and Jessica Hernandez, arrested, briefly detained, and cited for disorderly conduct and disobeying a lawful order. (Defs. Statement of Material Facts ("Defs. 56.1") (Dkt. 43) ¶¶ 5–21.) Plaintiff subsequently filed this suit, which alleges, among other things, that Nelson and Hernandez violated various of his rights under the U.S. and New York State constitutions and New York tort law. (Compl. (Dkt. 1).) Before the court is Defendants' motion for partial summary judgment as to Plaintiff's claims against the NYPD, his claims under the New York State Constitution, his claims under 42 U.S.C. § 1983 against the City of New York, and his intentional-infliction-of-emotional-distress ("IIED") and negligence claims. (Defs. Mot. for Partial Summ. J. (Dkt. 41); Defs. Mem. in Supp. of Mot. for Partial Summ. J. ("Defs. Mem.") (Dkt. 42).) For the reasons that follow, Defendants' motion for partial summary judgment is GRANTED IN PART and DENIED IN PART.

I. BACKGROUND

A. Factual History

The following statement of facts is largely taken from the parties' Local Rule 56.1 statements and deposition testimony, with the evidence "constru[ed] ... in the light most favorable to the non-moving party." Wandering Dago, Inc. v. Destito, 879 F.3d 20, 30 (2d Cir. 2018) (internal quotation marks and citation omitted). (See Defs. 56.1; Pl. Resp. to Defs. 56.1 ("Pl. 56.1 Resp.) (Dkt. 45 at ECF pp.1–3); Pl. Counterstatement of Material Facts ("Pl. 56.1 Counterstatement") (Dkt. 45 at ECF pp.3–15); Defs. Resp. to Pl. Counterstatement of Material Facts ("Defs. 56.1 Reply") (Dkt. 49).)

On September 8, 2013, Plaintiff's teenaged son was riding in a car that was struck by another vehicle. (Defs. 56.1 ¶ 5.) The son called Plaintiff, who came to the scene of the accident. (Id. ¶¶ 6–7.)

Soon afterwards, Hernandez and Nelson arrived at the scene of the accident as well. (Id. ¶¶ 9–10.) According to Plaintiff, Nelson immediately began shouting at everyone present to move back. (Pl. 56.1 Counterstatement ¶ 3; Pl. Dep. Tr. (Dkt. 47–2) 30:7–8, 35:2–11.) Nelson asked Plaintiff if Plaintiff had been in one of the cars involved in the accident; when Plaintiff said that he was not, Nelson allegedly pushed him back. (Pl. Dep. Tr. 38:25–39:4.) Plaintiff allegedly then told Nelson that Plaintiff's son had been in the accident, that the son was scared, and that Plaintiff needed to remain with him. (Id. 35:12–36:11, 36:18–37:13.) According to Plaintiff, Nelson then asked him for identification and, while Plaintiff was trying to get his identification, pushed him "so hard," twisted his arm, threw him up against a wall, and, with Hernandez's help, handcuffed him. (Defs. 56.1 ¶ 15; Pl. 56.1 Counterstatement ¶¶ 4–5; Pl. Dep. Tr. 36:13–17, 37:14–38:13, 38:25–39:10.) Nelson then allegedly threw Plaintiff to the ground, dragged him by the handcuffs to a police car, slammed him against the police car, put him in the back seat of the car, and punched him repeatedly in the torso. (Defs. 56.1 ¶ 15; Pl. 56.1 Counterstatement ¶¶ 6–7; Pl. Dep. Tr. 39:24–40:1, 43:18–22, 45:19–46:4, 47:16–48:5, 50:3–52:18.) While allegedly punching Plaintiff, Nelson asked where Plaintiff was from; when Plaintiff responded that he was from Yemen, Nelson allegedly said that "in Yemen they spit in your face." (Pl. 56.1 Counterstatement ¶ 9; Pl. Dep. Tr. 52:19–24.) Meanwhile, Hernandez, who was sitting in the front of the cruiser, allegedly asked Plaintiff "was this worth it[?]" (Pl. 56.1 Counterstatement ¶ 10; Pl. Dep. Tr. 53:22–54:1.)¹

When two other officers arrived at the scene, Nelson allegedly uncuffed Plaintiff and told him that he was lucky that the other officers had arrived to rescue him. (Pl. 56.1 Counterstatement ¶ 13; Pl. Dep. Tr. 60:13–15.) Plaintiff was cited for disorderly conduct and released, and he promptly headed to the 66th Precinct to file a complaint. (Pl. 56.1 Resp. ¶ 20; Pl. 56.1 Counterstatement ¶ 17; Pl. Dep. Tr. 63:13–16, 64:16–18.) The disorderly-conduct charged was subsequently dismissed (Defs. 56.1 ¶ 21; Pl. Dep. Tr. 55:16–56:25), and two police officers (whose names he could not remember) allegedly visited his home several months later to apologize for his mistreatment and to say that Nelson needed additional training (Pl. 56.1 Counterstatement ¶ 18; Pl. Dep. Tr. 116:25–118:11).

B. Procedural History

Plaintiff served a notice of claim against the City of New York (the "City") and the NYPD on November 15, 2013, and testified at a hearing held pursuant to Section 50–h of the New York General Municipal Law. (Compl. (Dkt. 1) ¶¶ 7–8.) He thereafter commenced this action, which asserts twelve claims against the City, NYPD, Hernandez, and Nelson under 42 U.S.C. § 1983 and New York State law. (Id. ¶¶ 41–88.) With respect to Plaintiff's claims under federal law, Plaintiff alleges (1) that Hernandez and Nelson violated his Fourteenth Amendment right to equal protection of the laws by subjecting him to mistreatment based on his country of origin (id. ¶¶ 41–44); (2) that they unreasonably searched and seized him, in violation of the Fourth and Fourteenth Amendments (id. ¶¶ 45–48); (3) that they used excessive force against him, in violation of the Fourth and Fourteenth Amendments (id. ¶¶ 49–52); and (4) that he was injured as a result of municipal customs and policies, such that the City is liable under Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), for the deprivation of his constitutional rights (Compl. ¶¶ 53–60). With respect to his claims under New York State law, Plaintiff alleges that Defendants violated his rights under the New York Constitution to the equal protection of law (id. ¶¶ 61–63) and not to be unlawfully searched and seized or subjected to excessive force (id. ¶¶ 64–66); that Defendants are liable in tort for unlawful infliction of emotional distress (id. ¶¶ 67–69), battery (id. ¶¶ 70–74), assault (id. ¶¶ 75–78), and negligence, both in failing to protect him (id. ¶¶ 79–82) and for hiring and retaining Nelson and Hernandez (id. ¶¶ 83–85); and that the Municipal Defendants are liable under a theory of respondeat superior for all of Hernandez's and Nelson's allegedly unlawful acts (id. ¶¶ 86–88).

As noted above, Defendants have moved for partial summary judgment. Defendants do not seek summary judgment with respect to Plaintiff's § 1983 equal-protection, search-and-seizure, or excessive-force claims against Hernandez and Nelson, his state-law assault or battery claims, or his claim that the City is vicariously liable for Hernandez's and Nelson's intentional torts. (Cf. Defs. Mem. at 5–6.) Instead, Defendants only argue in their motion that they are entitled to summary judgment as to Plaintiff's Monell, state constitutional, IIED, and negligence claims. (Id. )

After Defendants filed their motion for partial summary judgment, Plaintiff withdrew his New York State constitutional claims against Nelson and Hernandez (Pl. Mem. in Opp'n to Mot. for Partial Summ. J. ("Pl. Mem.") (Dkt. 46) at 14), his IIED claim (id. at 15), and his negligent-failure-to-protect claim (id. ). Plaintiff refused, however, to withdraw his negligent-training-and-supervision claim "absent a clear concession that Officers Nelson and Hernandez were acting within the scope of their employment" at the time of his arrest. (Id. at 16–17.) Defendants conceded this point in their reply brief (Defs. Reply in Supp. of Mot. to Dismiss ("Defs. Reply") (Dkt. 48) at 10), so the parties appear to agree that Plaintiff's state-law negligent-training-and-supervision claim is untenable. See Passucci v. Home Depot, Inc., 67 A.D.3d 1470, 889 N.Y.S.2d 353, 355 (2009) (stating that, under New York law, a negligent-training-and-supervision claim "does not lie where ... the employee is acting within the scope of his or her employment" (quoting Drisdom v. Niagara Falls Mem. Med. Ctr., 53 A.D.3d 1142, 861 N.Y.S.2d 919, 921 (2008) ) ).

Thus, only two claims remain in dispute, for purposes of this motion: (1) Plaintiff's Monell claim against the City (Compl. ¶¶ 53–60); and (2) his claims under the New York State Constitution, to the extent he asserts them against the City under a respondeat superior theory (id. ¶¶ 61–66, 86–88). The court discusses these claims in turn.

II. LEGAL STANDARD

The court may enter summary judgment "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). On a motion for summary judgment, the court draws all reasonable inferences and resolves all ambiguities in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254–55, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The court may enter summary judgment if the evidence, so construed, would not allow a reasonable jury to find in non-movant's favor. Id. at 249–50, 106 S.Ct. 2505.

III. DISCUSSION

A. Monell /Failure to Train, Supervise, and Discipline

Although Plaintiff initially asserted a sweeping Monell claim (see Compl. ¶¶ 54, 56–57), he has since focused this claim on allegations that the City failed to train, supervise, or discipline its police officers (particularly Nelson) regarding their use of force, and that this failure amounted to deliberate...