Berbick v. Precinct 42

• Decision Date: 27 September 2013
• Docket Number: No. 11 Civ. 5292(RJS).,11 Civ. 5292(RJS).
• Parties: Yolanda BERBICK, et al., Plaintiffs, v. PRECINCT 42, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

977 F.Supp.2d 268

Yolanda BERBICK, et al., Plaintiffs,

v.PRECINCT 42, et al., Defendants.

No. 11 Civ. 5292(RJS).

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

Sept. 27, 2013.

Yolanda Berbick, pro se.

Michael A. Cardozo, Corporation Counsel of the City of New York, New York, NY, and Richard Weingarten, of Counsel, New York City Law Department, New York, NY, for Defendants.

Memorandum and Order

RICHARD J. SULLIVAN, District Judge.

Plaintiffs Yolanda Berbick (“Yolanda”) and Clive Berbick (“Clive,” and with Yolanda, “Plaintiffs”), proceeding pro se, bring this action under 42 U.S.C. § 1983 against New York City Police Lieutenant Ivan Gonzalez (“Gonzalez”) and New York City Police Officers Carl Hall (“Hall”), Jason Bragg (“Bragg”), and Liseppe Jordan (“Jordan,” and with the other defendants, “Defendants”). Plaintiffs' Second Amended Complaint (Doc. No. 11 (the “SAC”)) does not state specifically what rights of the Plaintiffs have been violated. Nevertheless, construing the pro se pleadings liberally, Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir.2006), the SAC states claims for violations of (1) the Fourteenth Amendment right against deprivation of property without due process of law; (2) the Fourth Amendment right against unreasonable seizures, as incorporated by the Fourteenth Amendment; and (3) the Fourth Amendment right against unreasonable searches, as incorporated by the Fourteenth Amendment. Now before the Court is (1) Defendants' motion for summary judgment on all of the claims (Doc. No. 32); (2) the report and recommendation of the Honorable Kevin Nathaniel Fox, Magistrate Judge, recommending that the motion be denied (Doc. No. 47 (the “Report”)); and (3) Defendants' objections to the Report (Doc. No. 48 (“Objections” or “Obj.”)). For the reasons set forth below, the Court does not adopt the Report. Instead, the Court (1) grants Defendants summary judgment on the deprivation of property claim, (2) grants Defendants summary judgment on the unreasonable seizure claim, (3) grants Defendants Gonzalez and Hall summary judgment on the unreasonable search claim; and (4) denies Defendants Jordan and Bragg summary judgment on the unreasonable search claim. The Court also dismisses Yolanda as a plaintiff because she fails to state a claim upon which relief can be granted.

I. Background

A. Facts ¹

On March 4, 2011, Plaintiffs were living together in a homeless shelter in the Bronx. (Def. 56.1 ¶ 6; Dep. of Yolanda Berbick, dated Nov. 20, 2012, Doc. No. 33 Ex. C (“Y. Dep.”), at 13:12–21.) They had been married for over a decade, and Yolanda was then eight-months pregnant with their first child. (Def. 56.1 ¶¶ 5–6; Y. Dep. at 12:4–14, 37:2–3, 71:19–22.) That afternoon, they went to check on their van, which they had parked on the street, and which served as storage for all of their belongings—most importantly, food and clothing. (Def. 56.1 ¶ 8; Y. Dep. at 36:1–3, 44:7–10; Dep. of Clive Berbick, dated Nov. 20, 2012, Doc. No. 33 Ex. D (“C. Dep.”), at 53:1–16, 55:17–22, 58:2–8, 73:16–19.) But when they arrived at the street, the van was gone. (Def. 56.1 ¶ 10; Y. Dep. at 36:2–5.)

Plaintiffs walked to a nearby laundromat, where Yolanda called 9–1–1. (Def. 56.1 ¶ 11; Y. Dep. at 36:6–12.) She told the operator about their missing van and added that she and Clive were hungry and that Clive was feeling ill. (Def. 56.1 ¶ 12; Y. Dep. at 36:15–25, 37:1–16.) In addition to concern over the van, Clive was experiencing sympathetic pregnancy symptoms—also known as Couvade Syndrome—a condition where male partners of pregnant women experience physical and psychological symptoms associated with pregnancy. (Y. Dep. at 37:4–10); see generally Arthur Brennan, et al., A Qualitative Exploration of the Couvade Syndrome in Expectant Fathers, 25 J. Reprod. & Infant Psychol. 18 (2007) (describing the condition and its incidence). After speaking to the 9–1–1 operator, Plaintiffs waited for the police near where their van had been parked. (Def. 56.1 ¶ 14; Y. Dep. at 37:17–23.) When Plaintiffs began to feel too cold, they went inside a nearby church, where Yolanda called 9–1–1 again. (Def. 56.1 ¶¶ 15–16; Y. Dep. at 38:2–9.) She again told the operator about the missing van and that Clive was sick, and this time she asked the operator to send an ambulance for Clive. (Def. 56.1 ¶ 16; Y. Dep. at 39:20–25, 40:1–5.)

About ten minutes later, Defendants—four uniformed police officers—arrived. (Def. 56.1 ¶ 17; Y. Dep. at 40:21–24.) Plaintiffs came out from the church and explained that their van, along with all of their food and clothing, was missing, that they were both hungry, and that Clive was not feeling well. (Def. 56.1 ¶¶ 19–20; Y. Dep. at 43:10–17, 44:1–23; C. Dep. at 71:20–25; Decl. of Ivan Gonzalez, dated Jan. 11, 2013, Doc. No. 36 (“Gonzalez Decl.”), ¶ 4.) Plaintiffs did not, however, mention Clive's sympathetic pregnancy symptoms. (C. Dep. at 119:14–21, 121:13–17.) One of the Defendants conducted a search on his patrol vehicle's computer and told Plaintiffs that the van had been towed because of unpaid parking tickets. (Def. 56.1 ¶¶ 7, 9, 22–23; C. Dep. at 54:7–9, 23–25, 55:1–8, 77:1–9; see also Decl. of Debbie Walsh, dated Jan. 10, 2013, Doc. No. 34 (“Walsh Decl.”), ¶¶ 5–7.)

Soon afterwards, an ambulance arrived. (Def. 56.1 ¶ 28; C. Dep. at 85:1–13; Gonzalez Decl. ¶ 5.) An Emergency Medical Technician (the “EMT”) stepped out and spoke to Clive. (Def. 56.1 ¶ 30; C. Dep. at 91:23–25, 92:1–6.) The EMT asked if Clive wanted his blood-pressure checked, and Clive said he did. (Def. 56.1 ¶¶ 30–31; C. Dep. at 92:23–25, 93:1–3, 94:1–18.) Clive began to follow the EMT to the ambulance, but before Clive got into the ambulance, Defendants Jordan and Bragg frisked him. (Def. 56.1 ¶¶ 31, 33; C. Dep. at 93:4–19, 94:22–25, 95:1–7, 96:6–20; Mem. at 8.) Once in the ambulance, Clive explained that he was hungry and felt Yolanda's pregnancy symptoms. (Def. 56.1 ¶ 39; C. Dep. at 95:20–25, 96:1–9, 119:10–21, 126:9–21; Decl. of Victor Basabe, dated Jan. 10, 2013, Doc. No. 35 (“Basabe Decl.”), ¶ 9.) The EMT found that Clive's blood-pressure was extremely high and told Clive that he should go to the hospital. (Def. 56.1 ¶¶ 40–41; C. Dep. at 98:7–11; Basabe Decl. ¶¶ 10, 12.) Both Clive and Yolanda agreed to go. (Def. 56.1 ¶ 42; Y. Dep. at 56:17–20; C. Dep. at 103:17–25; Basabe Decl. ¶ 13.)

Once at the hospital, Clive was taken to the emergency room. (Def. 56.1 ¶ 49; C. Dep. at 116:7–13.) Clive explained his symptoms, and a nurse suggested that he be admitted to the psychiatric ward. (Def. 56.1 ¶¶ 51–52; C. Dep. at 118:12–25; 121:18–25, 122:1–5.) But Clive refused. (Def. 56.1 ¶ 52; C. Dep. at 122:14–25.) Instead, Clive was treated for his blood pressure while Yolanda waited. (Def. 56.1 ¶ 53; Y. Dep. at 65:10–15; C. Dep. at 124:6–21.)

B. Procedural History

Plaintiffs initiated this action on July 5, 2011 by filing the Complaint. (Doc. No. 2.) The Complaint was brought against the 42nd Precinct of the New York Police Department and focused on the towing of the van and on Clive's close encounter with the psychiatric unit. ( Id.) Because the 42nd Precinct is not a suable entity, the Court dismissed the case against that defendant and granted Plaintiffs leave to amend the Complaint. (Doc. No. 4); cf. Toliver v. N.Y. City Dep't of Corr., No. 10 Civ. 822(RJS)(JCF), 2013 WL 3779125, at *7 (S.D.N.Y. July 8, 2013) (holding that New York City agencies cannot be sued). Plaintiffs filed the Amended Complaint on October 17, 2011 against four “John Doe” defendants and added allegations that Clive had been frisked. (Doc. No. 5.) On January 30, 2012, the New York City Corporation Counsel informed the Court of the names of the four police officers who responded to Plaintiffs' 9–1–1 calls (Doc. No. 10), and on February 7, 2012, Plaintiffs filed the SAC to add Defendants' names. (SAC.) Defendants all answered the SAC by June 2012. (Doc. Nos. 13, 16, 23.) On June 20, 2012, the Court referred the case to Magistrate Judge Kevin Nathaniel Fox for general pretrial supervision and for a report and recommendation on all dispositive pre-trial motions. (Doc. No. 22.)

Defendants moved for summary judgment on all of Plaintiff's claims on January 11,2013. (Doc. No. 32.) Plaintiffs submitted an affirmation in opposition but did not submit any memorandum in opposition. (Doc. No. 40.)

Judge Fox issued his report and recommendation to the Court on August 14, 2013. (Report.) The Report recommended that the Court deny summary judgment for three reasons. First, Judge Fox found that Defendants had not supported their motion with admissible evidence because the depositions Defendants relied on were not signed or certified. (Report at 4.) Second, Judge Fox found that the facts Defendants contended were undisputed were not actually undisputed because Defendants had included a footnote in their Rule 56.1 Statement claiming that “the facts contained [therein] [were] undisputed solely for the purposes of [D]efendants' motion for summary judgment” and reserving “the right to dispute any such fact were [the] case to proceed to trial.” (Report at 4–5.) And third, Judge Fox found that facts taken from the depositions were not undisputed because Plaintiffs had submitted an affidavit claiming that the deposition transcripts were inaccurate. (Report at 5; see Doc. No. 43 at 3.)

Defendants timely filed objections to the Report on September 3, 2013. (Obj.)

II. Discussion

Because this case was referred to Judge Fox for dispositive pre-trial motions, the Court must proceed in two steps. First, the Court must decide whether to adopt the Report. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3). If the Court does not adopt the Report, the Court must then decide for itself whether to grant Defendants' motion for summary judgment. The Court addresses each of these in turn.

A. Legal Standards

1. The Magistrate Judge's Report and Recommendation

Pursuant to Rule 72 of the Federal Rules of Civil Procedure, if...