Carrillos v. Vill. of Hempstead Inc.

• Decision Date: 20 February 2015
• Docket Number: No. 11–CV–5775 JFBSIL.,11–CV–5775 JFBSIL.
• Citation: 87 F.Supp.3d 357
• Parties: Reina V. CARRILLOS, Plaintiff, v. INCORPORATED VILLAGE OF HEMPSTEAD; Police Officer Americo Masi, individually and as a member of The Incorporated Village of Hempstead Police Department; Suyapa Gomez; Arlington Bodden; Marjorie Bodden; Carlos Flores; and Wendy Almendarez, Defendants.
• Court: U.S. District Court — Eastern District of New York

87 F.Supp.3d 357

Reina V. CARRILLOS, Plaintiff

v.INCORPORATED VILLAGE OF HEMPSTEAD; Police Officer Americo Masi, individually and as a member of The Incorporated Village of Hempstead Police Department; Suyapa Gomez; Arlington Bodden; Marjorie Bodden; Carlos Flores; and Wendy Almendarez, Defendants.

No. 11–CV–5775 JFBSIL.

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

Signed Feb. 20, 2015.

Thomas F. Liotti, Garden City, NY, for Plaintiff.

Ruben Joseph Coryat, Jamaica, NY, William J. Garry, Keith Michael Corbett, Harris Beach PLLC, New York, NY, for Village Defendants.

Shaun K. Hogan, Michael D. Cassell, Hogan & Cassell, LLP, Jericho, NY, for Non–Village Defendants.

MEMORANDUM AND ORDER

JOSEPH F. BIANCO, District Judge:

Plaintiff Reina Carrillos (“Carrillos” or “plaintiff”) brings this action against defendants Incorporated Village of Hempstead (“the Village”) and Police Officer Americo Masi (“Masi”) (collectively, the “Village Defendants”); and Suyapa Gomez (“Gomez”), Arlington Bodden (“Mr. Bodden”), Marjorie Bodden (“Ms. Bodden”), Carlos Flores (“Flores”), and Wendy Almendarez (“Almendarez”) (collectively, the “Non–Village Defendants”), stemming from Masi's arrest of plaintiff on December 3, 2010 in Hempstead, New York.¹ Plaintiff brings claims pursuant to 42 U.S.C. § 1983 (“Section 1983 ”) for excessive force, false arrest, false imprisonment, malicious prosecution, failure to protect and secure medical treatment, cruel and unusual punishment, conspiracy to deprive plaintiff of her civil rights, supervisory liability and failure to intercede, and Monell liability. Plaintiff also asserts pendent state law claims.

Presently before the Court are defendants' respective motions for summary judgment, pursuant to Federal Rule of Civil Procedure 56, on all thirteen causes of action in the amended complaint.² For the reasons set forth in detail below, the Village Defendants' motion is granted in part and denied in part on the merits. Specifically, the Court concludes that genuine disputes of material fact preclude summary judgment on the excessive force and false arrest/imprisonment claims against Officer Masi under Section 1983 ; the related state law claims for assault and battery against Officer Masi and the Village (under a theory of respondeat superior ); and the related state law claims for false arrest/imprisonment against Officer Masi and the Village (under a theory of respondeat superior ). The Village Defendants' motion for summary judgment is granted on all other claims.

The Non–Village Defendants' motion is granted in its entirety. Specifically, even construing the evidence most favorably to plaintiff, no rational jury could conclude that the Non–Village Defendants were state actors or conspired with Masi to violate plaintiff's constitutional rights, and there also is no evidence that any Non–Village Defendant physically harmed plaintiff on December 3, 2010. However, the Court, in its discretion, denies the motion for attorneys' fees. There is an insufficient basis to conclude that plaintiff's counsel knowingly inserted fictional facts in the complaint to overcome a motion to dismiss. Moreover, although there is insufficient evidence for these claims to survive summary judgment, Gomez's alleged statements regarding her influence over the Hempstead Police Department were sufficient (even in the absence of the other allegations) to state a plausible claim. Although discovery uncovered no such influence by Gomez (despite her alleged claimed influence), the absence of such evidence does not warrant a conclusion that the claim was factually or legally frivolous. Counsel for plaintiff's motion for sanctions against the Non–Village Defendants is similarly denied because it is procedurally improper and, in any event, there is no basis for sanctions.

I. Background

A. Factual Background

The Court takes the following facts from defendants' respective Rule 56.1 Statements of Fact, and any admissible affidavits, depositions, and exhibits.³ Contrary to Local Rule 56.1(b), plaintiff did not file a Rule 56.1 Statement of Facts in response to defendants' submissions.⁴

Consequently, the Court could deem numerous facts in defendants' submissions admitted for purposes of their motions. L.R. 56.1(c); see also Giannullo v. City of New York, 322 F.3d 139, 140 (2d Cir.2003) (Where “the opposing party [ ] fails to controvert a fact so set forth in the [ ] Rule 56.1 statement, that fact will be deemed admitted.”); Litchhult v. USTRIVE2, Inc., No. 10–CV–3311 (JFB)(ARL), 2013 WL 3491076, at *2 n. 1 (E.D.N.Y. July 10, 2013) (same). However, “[a] district court has broad discretion to determine whether to overlook a party's failure to comply with local court rules.” Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir.2001) (citations omitted); see also Gilani v. GNOC Corp., No. 04–CV–2935 (ILG), 2006 WL 1120602, at *2 (E.D.N.Y. Apr. 26, 2006) (exercising court's discretion to overlook the parties' failure to submit statements pursuant to Local Civil Rule 56.1 ). Here, although plaintiff did not comply with Rule 56.1, his written submissions—and, in particular, the declaration in opposition to the instant motions—refer generally to the relevant portions of the record upon which plaintiff is relying, including an attached affidavit from plaintiff and citations to plaintiff's deposition. Thus, both the defendants and the Court are aware of the portions of the record upon which plaintiff relies in opposition to the motions, and defendants have not identified any prejudice arising from plaintiff's failure to comply with Rule 56.1. Accordingly, in the exercise of its broad discretion, the Court will not reject plaintiff's opposition based upon his failure to comply with Rule 56.1, but rather has fully considered plaintiff's opposition to defendants' summary judgment motion on the merits. See, e.g., Photopaint Techs., LLC v. Smartlens Corp., 335 F.3d 152, 156 n. 2 (2d Cir.2003) (excusing failure to comply with Local Civil Rule 56.1 where the relevant facts were apparent from the parties' submissions and there was no evidence of prejudice from the defect); Williams v. R.H. Donnelley Inc., 199 F.Supp.2d 172, 174 n. 1 (S.D.N.Y.2002) (excusing failure to submit statement pursuant to Local Civil Rule 56.1 where the facts were set forth in the party's memorandum of law).

The Court construes the facts in the light most favorable to plaintiff, the nonmoving party. See Capobianco v. City of New York, 422 F.3d 47, 50 (2d Cir.2005).

1. Plaintiff's Amended Complaint

In the Amended Complaint, plaintiff alleges that she and Gomez entered into a business relationship to open a restaurant and night club, Gusto Latino Bar & Restaurant (“Gusto”), but that the Non–Village Defendants forced her out of the relationship by December 2010 and prohibited her from entering Gusto. (Non–Vill. Defs.' 56.1 ¶ 3.) This issue culminated in a disagreement on December 3, 2010, when the Non–Village Defendants refused to allow plaintiff to remain in Gusto and then called Masi, a police officer employed by the Incorporated Village of Hempstead Police Department, (Vill. Defs.' 56.1 ¶ 3), to inform him that they wanted plaintiff arrested, (Non–Vill. Defs.' 56.1 ¶ 6). According to plaintiff, Hempstead Police Officers, including Masi, frequented Gusto, and Masi received free food from and often spoke to Gomez. (Non–Vill. Defs.' 56.1 ¶ 4.) Plaintiff also alleges that Gomez bragged that she had Masi's cell phone number and could have anyone arrested by the Hempstead Police Department. (Id. ¶ 5.)

2. The December 3, 2010 Incident

During 2010, plaintiff and Gomez partnered to run Gusto, located at 387 Fulton Avenue in Hempstead, New York. (Non–Vill. Defs.' 56.1 ¶ 17; see, e.g., Carrillos Dep. at 218.) Just before Gusto opened, Gomez told plaintiff that she did not want to be in a partnership with her and to not come to the venue.⁵ (Non–Vill. Defs.' 56.1 ¶¶ 18–19.) Gusto opened for business on or about November 26, 2010. (Id. 56.1 ¶ 19.)

Plaintiff nevertheless went to Gusto on November 26 at about 2:00 a.m., entered the kitchen, and washed pots. (Id. ¶ 20.) Because plaintiff would not leave after the restaurant closed, one of the Non–Village Defendants (Gomez or Almendarez) called the police to remove plaintiff from the premises. (Id. ) Plaintiff did not know what number was called or whether anyone had a police officer's cell phone number. (Id. ) In any event, plaintiff remained at Gusto even after learning the police had been called. (Id. ) Two police officers responded to Gusto, and the female officer asked plaintiff to leave, which she did. (Id. ) Plaintiff also told the officers that she was Gomez's partner. (Carrillos Dep. at 234.) The officers responded that if she wanted to be in the restaurant, she had to bring proof that she was a partner. (Id.; see also Carrillos Aff. ¶ 8 (stating that plaintiff secured records before returning to Gusto).)

According to the Non–Village Defendants, plaintiff returned to Gusto on December 3, 2010, at about 5:30 p.m., and entered an employees-only section. (Non–Vill. Defs.' 56.1 ¶¶ 21–22.) Plaintiff claims that she “had done nothing wrong and was not causing a disturbance.” (Carrillos Aff. ¶ 9.) After plaintiff refused to leave, someone called the police; at her § 50(h) hearing, plaintiff testified that Gomez called, but at her deposition, she testified that Mr. Bodden called. (Non–Vill. Defs.' 56.1 ¶¶ 22, 46.) In any event, plaintiff did not know who called, or whether anyone had a police officer's cell phone number. (Id. ¶ 22; see also id. ¶ 34 (plaintiff did not know whether Gomez had officer's number).) According to Masi, dispatch told him to respond to Gusto. (Id. ¶ 37.) The case report indicates that the call from Gusto was placed to 911. (Id. )

Masi, along with Officer Vicino (“Vicino”) responded to Gusto about ten to fifteen minutes later. (Id.; see also id. ¶ 24.) When Masi arrived, a woman behind the bar said she wanted “some other lady removed.”⁶ (Masi...