Barnes v. Carolan, 16 Civ. 6044 (GBD)(HBP)

• Decision Date: 08 July 2019
• Docket Number: 16 Civ. 6044 (GBD)(HBP)
• Parties: EDWARD BARNES, Plaintiff, v. NYPD POLICE OFFICER JOSEPH CAROLAN, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

EDWARD BARNES, Plaintiff, v. NYPD POLICE OFFICER JOSEPH CAROLAN, et al., Defendants.

16 Civ. 6044 (GBD)(HBP)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

July 8, 2019

REPORT AND RECOMMENDATION

PITMAN, United States Magistrate Judge:

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.¹ Construing plaintiff's second amendedcomplaint 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")).

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)² (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).

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 Lawin 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); seealsoHunt 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)³; 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).

"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 law⁴ 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, thecomplaint 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).

"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...