825 F.3d 89 (2nd Cir. 2016), 14-4116-cv, Figueroa v. Mazza

Docket Nº:14-4116-cv
Citation:825 F.3d 89
Opinion Judge:José A. Cabranes, Circuit Judge :
Party Name:ELI SAMUEL FIGUEROA, A/K/A ELI SAMUEL, Plaintiff-Appellant, v. DONNA MARIE MAZZA, INDIVIDUALLY AND AS A DETECTIVE WITH THE NEW YORK CITY POLICE DEPARTMENT, CHRISTOPHER KAROLKOWSKI, INDIVIDUALLY AND AS A DETECTIVE WITH THE NEW YORK CITY POLICE DEPARTMENT, TODD NAGROWSKI, INDIVIDUALLY AND AS A DETECTIVE WITH THE NEW YORK CITY POLICE DEPARTMENT, J...
Attorney:ROBERT MILTON RAMBADADT (Rosa Barreca, on the brief), The Rambadadt Law Office, New York, NY, for Plaintiff-Appellant. ELIZABETH S. NATRELLA (Pamela Seider Dolgow, on the brief), for Zachary W. Carter, Corporation Counsel of the City of New York, New York, NY, for Defendants-Appellees.
Judge Panel:Before: KEARSE, WALKER, and CABRANES, Circuit Judges. Judge KEARSE concurs in part and dissents in part in aseparate opinion. KEARSE (In Part) KEARSE, Circuit Judge, dissenting in part:
Case Date:June 03, 2016
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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825 F.3d 89 (2nd Cir. 2016)

ELI SAMUEL FIGUEROA, A/K/A ELI SAMUEL, Plaintiff-Appellant,

v.

DONNA MARIE MAZZA, INDIVIDUALLY AND AS A DETECTIVE WITH THE NEW YORK CITY POLICE DEPARTMENT, CHRISTOPHER KAROLKOWSKI, INDIVIDUALLY AND AS A DETECTIVE WITH THE NEW YORK CITY POLICE DEPARTMENT, TODD NAGROWSKI, INDIVIDUALLY AND AS A DETECTIVE WITH THE NEW YORK CITY POLICE DEPARTMENT, JOSEPH FAILLA, INDIVIDUALLY AND AS A DETECTIVE WITH THE NEW YORK CITY POLICE DEPARTMENT, AND DETECTIVE DENNIS CHAN, INDIVIDUALLY AND AS A DETECTIVE WITH THE NEW YORK CITY POLICE DEPARTMENT, Defendants-Appellees. [*]

No. 14-4116-cv

United States Court of Appeals, Second Circuit

June 3, 2016

Argued October 22, 2015.

As Amended June 3, 2016.

As amended September 16, 2016.

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Appeal from the United States District Court for the Eastern District of New York.

We consider here whether defendants-appellees are, as the District Court determined, entitled to judgment as a matter of law on plaintiff-appellant's claims for false arrest, excessive force, assault, failure to intervene, and unlawful entry. We conclude that defendants-appellees are entitled to the protection of qualified immunity with respect to the false arrest claims and that they did not use excessive force or commit an assault in arresting plaintiff-appellant. We also conclude, however, that the claims of failure to intervene and unlawful entry present issues of fact that must be resolved by a jury.

Plaintiff-appellant Eli Samuel Figueroa appeals a September 30, 2014 judgment of the United States District Court for the Eastern District of New York (Jack B. Weinstein, Judge) entering judgment as a matter of law in favor of defendants-appellees Donna Marie Mazza, Christopher Karolkowski, Todd Nagrowski, Joseph Failla, and Dennis Chan, each a detective with the New York City Police Department.

In the proceeding below, plaintiff asserted claims under 42 U.S.C. § 1983 and state law for false arrest, excessive force, assault, failure to intervene, and unlawful entry, all arising out of his arrest on June 30, 2010. The District Court granted summary judgment as to the claims of unlawful entry. The other claims were tried to a jury. Following a verdict in plaintiff's favor on the counts of false arrest, excessive force, and assault, and a mistrial on the count of failure to intervene, the District Court granted judgment to defendants under Federal Rule of Civil Procedure 50(b). Plaintiff appeals the judgment as to each claim and further asserts that the District Court " abused its discretion" in dismissing unnamed defendants from the case and closing discovery.

We agree with the District Court's disposition of plaintiff's false arrest claims. The trial record establishes that a reasonable law enforcement officer could have concluded that there existed probable cause to arrest plaintiff on the evening of June 30, 2010; accordingly, defendants can claim the protection of qualified immunity. We also conclude, as did the District Court, that the force used in effecting plaintiff's arrest was reasonable as a matter of law, and we find no error in the District Court's dismissal of unnamed defendants or discovery rulings. We thus AFFIRM the judgment insofar as it disposed of plaintiff's claims for false arrest, excessive force, and assault, dismissed unnamed defendants, and refused to permit further discovery.

We do not agree, however, with the District Court's disposition of plaintiff's claims for failure to intervene and unlawful entry. The District Court erred in concluding, as a matter of law, that defendants had no realistic opportunity to intervene in an alleged assault on plaintiff by an unidentified police officer and that plaintiff lacked a legitimate expectation of privacy in his mother's apartment. Accordingly, we VACATE so much of the judgment as rejected plaintiff's failure-to-intervene and unlawful-entry claims as a matter of law and REMAND for such further pretrial proceedings as may be appropriate in the circumstances, or for trial.

ROBERT MILTON RAMBADADT (Rosa Barreca, on the brief), The Rambadadt Law Office, New York, NY, for Plaintiff-Appellant.

ELIZABETH S. NATRELLA (Pamela Seider Dolgow, on the brief), for Zachary W. Carter, Corporation Counsel of the City of New York, New York, NY, for Defendants-Appellees.

Before: KEARSE, WALKER, and CABRANES, Circuit Judges. Judge KEARSE concurs in part and dissents in part in aseparate opinion.

OPINION

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José A. Cabranes, Circuit Judge :

We consider here whether defendants-appellees are, as the District Court determined, entitled to judgment as a matter of law on plaintiff-appellant's claims for false arrest, excessive force, assault, failure to intervene, and unlawful entry. We conclude that defendants-appellees are entitled to the protection of qualified immunity with respect to the false arrest claims and that they did not use excessive force or commit an assault in arresting plaintiff-appellant.

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We also conclude, however, that the claims of failure to intervene and unlawful entry present issues of fact that must be resolved by a jury.

Plaintiff-appellant Eli Samuel Figueroa (" Samuel" ) appeals a September 30, 2014 judgment of the United States District Court for the Eastern District of New York (Jack B. Weinstein, Judge ) entering judgment as a matter of law in favor of defendants-appellees Donna Marie Mazza (" Mazza" ), Christopher Karolkowski (" Karolkowski" ), Todd Nagrowski (" Nagrowski" ), Joseph Failla (" Failla" ), and Dennis Chan (" Chan" ) (jointly, " defendants" ), each a detective with the New York City Police Department.

In the proceeding below, Samuel asserted claims under 42 U.S.C. § 1983 and state law for false arrest, excessive force, assault, failure to intervene, and unlawful entry, all arising out of his arrest on June 30, 2010. The District Court granted summary judgment as to the claims of unlawful entry. The other claims were tried to a jury. Following a verdict in Samuel's favor on the counts of false arrest, excessive force, and assault, and a mistrial on the count of failure to intervene, the District Court granted judgment to defendants under Federal Rule of Civil Procedure 50(b). Samuel appeals the judgment as to each claim and further asserts that the District Court " abused its discretion" in dismissing unnamed defendants from the case and closing discovery.

We agree with the District Court's disposition of Samuel's false arrest claims. The trial record establishes that a reasonable law enforcement officer could have concluded that there existed probable cause to arrest Samuel on the evening of June 30, 2010; accordingly, defendants can claim the protection of qualified immunity. We also conclude, as did the District Court, that the force used in effecting Samuel's arrest was reasonable as a matter of law, and we find no error in the District Court's dismissal of unnamed defendants or discovery rulings. We thus AFFIRM the judgment insofar as it disposed of Samuel's claims for false arrest, excessive force, and assault, dismissed unnamed defendants, and refused to permit further discovery.

We do not agree, however, with the District Court's disposition of Samuel's claims for failure to intervene and unlawful entry. The District Court erred in concluding, as a matter of law, that defendants had no realistic opportunity to intervene in an alleged assault on Samuel by an unidentified police officer and that Samuel lacked a legitimate expectation of privacy in his mother's apartment. Accordingly, we VACATE so much of the judgment as granted judgment to defendants on Samuel's failure-to-intervene and unlawful-entry claims and REMAND for such further pretrial proceedings as may be appropriate in the circumstances, or for trial.

BACKGROUND

I. The Facts1

On June 29, 2010, a Duane Reade pharmacy in Brooklyn received eleven phone calls from an unidentified woman. App. 222, 679-81; SPA 8.2 The calls, which were fielded by an employee named Esteban Arias, concerned an order for photographs that had been placed at the pharmacy. App. 222, 230-33. The caller " plead[ed]" that Arias locate the order in Duane

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Reade's system and delete it without developing the photos. App. 222.

Arias tracked down the photos, which apparently had already been developed. He intended to throw them away, as the caller had directed, but hesitated when he discerned their subject matter. App. 232. The photos appeared to have been taken in a public restroom. They depicted a young boy, perhaps two years old, naked and apparently distressed. Some showed close-up images of the boy's genitals and anus. App. 124-30, 222, 1040-57. In each, a date-stamped money order and a copy of the June 25, 2010 New York Daily News appeared in the background. App. 124-25, 222.

Arias called the police. Officers responded and viewed the photos themselves. Some, noting the presence of the date-stamped money order and newspaper, suspected that they were so-called " proof-of-life" photos--that is, photos taken to establish that a missing child is still alive, with the aim of securing a ransom. App. 510. Others thought that the photos might be related to sex trafficking, App. 261, or child pornography, App. 222. Concluding that " urgent[]" action was needed to locate the child and ensure his safety, App. 260-61, 275, a number of officers (including the five named defendants) from numerous divisions began investigating. By the next day police had viewed security footage from the pharmacy showing that a young woman had ordered the photos on June 26, 2010.3 App. 244-45.

In the meantime, other officers tried to determine who...

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