Brandon v. The City Of N.Y.

• Decision Date: 30 March 2010
• Docket Number: No. 07 Civ. 8789(LAP).,07 Civ. 8789(LAP).
• Citation: 705 F.Supp.2d 261
• Parties: Frank BRANDON, Plaintiff,v.The CITY OF NEW YORK, P.O. Said Salim, Shield No. 09517, Individually and in his Official Capacity, P.O. Andro Stambuk, Shield No. 28510, Individually and in his Official Capacity, P.O. Marc Klausner, Shield No. 01983, Individually and in his Official Capacity, P.O.S “John Doe” # 1-10, Individually and in their Official Capacities, (the name John Doe being fictitious, as the true names are presently unknown), Defendants.
• Court: U.S. District Court — Southern District of New York

705 F.Supp.2d 261

Frank BRANDON, Plaintiff,v.The CITY OF NEW YORK, P.O. Said Salim, Shield No. 09517, Individually and in his Official Capacity, P.O. Andro Stambuk, Shield No. 28510, Individually and in his Official Capacity, P.O. Marc Klausner, Shield No. 01983, Individually and in his Official Capacity, P.O.S “John Doe” # 1-10, Individually and in their Official Capacities, (the name John Doe being fictitious, as the true names are presently unknown), Defendants.

No. 07 Civ. 8789(LAP).

United States District Court S.D. New York.

March 30, 2010.

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Jon Louis Norinsberg, Law Offices of Jon L. Norinsberg, New York, NY, for Plaintiff.

Steve Stavridis, New York City Law Department, New York, NY, for Defendants.

MEMORANDUM & ORDER

LORETTA A. PRESKA, Chief Judge:

Plaintiff Frank Brandon (“Brandon” or “Plaintiff”) brings this action pursuant to 42 U.S.C. §§ 1983 and 1988 alleging that Defendants the City of New York, New York Police Officer Said Salim (“Salim”), New York Police Officer Andro Stambuk (“Stambuk”), New York Police Officer Marc Klausner (“Klausner”), and other unidentified police officers (collectively, “Defendants”) violated Brandon's civil rights during his arrest and subsequent prosecution for possession of crack cocaine. Specifically, Brandon alleges that he was: (1) deprived of his federal civil rights under the First, Fourth, Fifth, Eighth, and Fourteenth Amendments; (2) falsely arrested; (3) unlawfully strip searched; (4) maliciously prosecuted; (5) subjected to the malicious abuse of process; (6) deprived of his constitutional right to a fair trial; and (7) subjected to the aforementioned due to the unconstitutional policies and procedures of the City of New York. Defendants now move pursuant to Rule 12(c) of the Federal Rules of Civil Procedure for judgment on the pleadings as to Brandon's claims that he was unlawfully strip searched and deprived of his federal civil rights and move pursuant to Rule 56 for summary judgment as to the remaining claims. For the reasons set forth herein, Defendants' motion is granted in part and denied in part.

I. BACKGROUND ¹

The parties give differing accounts of the events leading up to Brandon's arrest and subsequent prosecution. Because of these differences, each side's version is set forth below.

A Brandon's Version

On September 3, 2006 at approximately 2:40 a.m., Brandon left his apartment and walked to the corner store located at 132nd Street and 7th Avenue to purchase diapers and cigarettes. (Stavridis Decl., Ex. D (“Brandon Dep.”) at 43:9-12, 46:22-47:2.) On his way to the store, he saw three acquaintances of his on the corner of 131st Street and stopped to talk to them. ( Id. at 51:5-17.) After greeting them and briefly speaking with them, the three of them “walked off” northbound on 7th Avenue toward the bodega, and Brandon walked behind them toward the bodega on the corner of 132nd Street and 7th Avenue. ( Id. at 54:20-55:20.) At this point, an unmarked car drove up alongside Brandon and the other three individuals. The officers exited the car and one of them said “hey, how you guys doing?” ( Id. at 55:22.) Brandon walked by the three individuals and continued on to the bodega. One of the officers said “hey,” and when Brandon turned around he was “football-tackled,” searched while on the ground and cuffed. ( Id. at 56:1-9.) Brandon was brought to his feet, and at this point, Salim approached him with a bag of narcotics (which were later identified to be crack cocaine) and said that the narcotics were Brandon's. ( Id. at 71:5-7.)

B. Salim's Version

On September 3, 2006, Defendant Salim, along with Defendants Stambuk and Klausner, were finishing their shift when they encountered Brandon and three other individuals. (Stavridis Decl., Ex. E (“Hearing Tr.”) at 19:6, 20:8-14.) According to Salim, while driving southbound on Seventh Avenue, he observed a female walking about forty feet in front of the four males, all of whom were walking northbound on Seventh Avenue. ( Id. at 20:21-22.) Salim heard screaming and noticed one of the males grabbing the front of his waistband and the female repeatedly looking back at the group and “picking up her pace.” ( Id. at 20:15-21:1.) Based on his experience, Salim thought that the individual who was grabbing at his waistband had a firearm. ( Id. at 24:14-19.) Salim drove past the group, parked the car, and the three officers exited the vehicle. ( Id. at 21:20-23.) Salim was walking behind the group headed northbound on Seventh Avenue while Stambuk and Klausner were in front of the group walking southbound. ( Id. at 21:23-22:9.) As he approached the group, Salim observed Brandon take three steps back and throw an object to the ground against the wall on his left side. ( Id. at 22:10-14.) Salim, who never lost sight of the object, picked it up, recognized that it was crack cocaine, and motioned to his partner that Brandon was a “Charlie,” a code word which meant that Brandon should be arrested. ( Id. at 23:6-12.) Salim continued to walk toward the group, and at that time, Stambuk tackled Brandon. (Norinsberg Decl., Ex. B (“Salim Dep.”) at 45:21-25.)

C. Stambuk's and Klausner's Versions

Defendant Klausner's version of Brandon's arrest differed from that of Salim's version. According to Klausner, Salim stopped the car and told Klausner and Stambuk “that guy right there, that guy.” (Hearing Tr. at 190:7-17.) Klausner walked toward the group and noticed Brandon who stepped back from the other three, and after the three other individuals stopped walking, he saw Brandon walk with a quicker pace northbound on Seventh Avenue. ( Id. at 191:17-192:4.) Klausner testified that after Brandon had separated himself from the group, Klausner observed that Brandon had his hand in his waistband and did not show the officers his hands even after Stambuk ordered him to show them his hands. ( Id. at 193:7-14.) Klausner never observed the defendant drop anything on the ground nor did he frisk any of the four individuals. ( Id. at 193:18-23.)

According to Officer Stambuk, after the officers exited the vehicle, he noticed Brandon walking behind the group and saw that his hand was in his waistband. ( Id. at 212:7-22.) Stambuk testified that he started watching Brandon as soon as he separated from the group and that he never saw Brandon drop, throw, or toss anything. ( Id. at 222:8-24.) Stambuk repeatedly asked to see Brandon's hands, and when Brandon did not show Stambuk his hands, he tackled him. ( Id. at 212:24-213:4.) Stambuk testified that Salim never identified which of the four individuals prompted him to stop the car. ( Id. at 214:2-8.) In addition, none of the officers searched the other three individuals after Brandon's arrest. ( Id. at 214:1-22.) Finally, Stambuk testified that he did not observe any of the other individuals grabbing his waistband, nor did he remember seeing a female walking forty feet ahead of the four men. ( Id. at 221:3-16.)

D. Criminal Proceedings

Brandon was arrested and processed on September 3, 2006. The arrest paperwork and criminal court complaint were completed by Salim. (Def. 56.1 ¶ 12) Brandon was indicted on October 27, 2006 on one count of Criminal Possession of a Controlled Substance in the Fifth Degree. (Stavridis Decl., Ex. C at 18.) Both Plaintiff and Salim testified at the Grand Jury proceedings. (Def. 56.1 ¶ 20; Norinsberg Decl., Ex. I.) On December 16, 2006, Brandon moved for an order to inspect the grand jury minutes and, upon inspection, for an order dismissing the indictment on the basis that there was insufficient evidence to support the indictment. (Def. 56.1 ¶ 21.) By order dated January 17, 2007, Justice Gregory Carro granted the motion to inspect the grand jury minutes and upon such inspection found that the evidence presented to the grand jury was legally sufficient to support the indictment and also granted Brandon's request for an evidentiary hearing. ( Id. ¶ 22.)

On February 28, 2007 an evidentiary hearing was held before Justice Roger Hayes. (Stavridis Decl., Ex. C at 18.) At the hearing, the People presented three witnesses: Salim, Klausner, and Stambuk; and Brandon presented two witnesses: Tameka Elmore (Brandon's girlfriend) and Frank Brandon, Sr. ( Id.) Upon the conclusion of testimony, Assistant District Attorney Adrian Rosales requested that the court grant Brandon's motion to suppress the crack cocaine recovered at the scene of the arrest because the “People [did] not believe that [they had] met their burden of going forward in this case.” (Hearing Tr. at 237:4-6.) Justice Hayes agrees with ADA Rosales and stated that “It is clear you are not saying that you disbelieve any one or more of your witnesses but that you have a certain burden and that in your evaluation, you said, the three witnesses that were called, [you have] made the critical legal judgment ... that you [could not] meet your burden ....” ( Id. at 238:7-17.) On April 24, 2007, the District Attorney's Office formally recommended dismissal noting that “Salim's version of events leading to the arrest of the defendant was later contradicted by the testimony of his fellow officers, clearly making officer Salim's version of events implausible.” (Norinsberg Decl., Ex. G.)

II. DISCUSSIONA. Legal Standards

i. Rule 12(c) Standard

Rule 12(c) of the Federal Rules of Civil Procedure provides that “[a]fter the pleadings are closed-but early enough not to delay trial-a party may move for judgment on the pleadings.” Fed.R.Civ.P. 12(c). “The standard for addressing a Rule 12(c) motion for judgment on the pleadings is the same as that for a Rule 12(b)(6) motion to dismiss for failure to state a claim.” Cleveland v. Caplaw Enters., 448 F.3d 518, 521 (2d Cir.2006).

To survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, --- U.S. ----, 129...