Cooper v. City of New Rochelle

• Decision Date: 26 February 2013
• Docket Number: No. 11 Civ. 69(LMS).,11 Civ. 69(LMS).
• Citation: 925 F.Supp.2d 588
• Parties: Amey COOPER and Gregory Smith, Plaintiffs, v. CITY OF NEW ROCHELLE, Detective Michael O'Rourke, individually and in his capacity as a member of the City of New Rochelle Police Department, Detective John Pastore, individually and in his capacity as a member of the City of New Rochelle Police Department, Police Officers John Doe Numbers One Through Five (fictitious names whose actual names are presently unknown), individually and in their capacity as members of the City of New Rochelle Police Department, Police Officer Jane Doe (a fictitious name whose actual name is presently unknown), individually and in her capacity as a member of the City of New Rochelle Police Department, and Detective John Doe (A fictitious name whose actual name is presently unknown), individually and in his capacity as a member of the City of New Rochelle Police Department, Defendants.
• Court: U.S. District Court — Southern District of New York

925 F.Supp.2d 588

Amey COOPER and Gregory Smith, Plaintiffs,

v.CITY OF NEW ROCHELLE, Detective Michael O'Rourke, individually and in his capacity as a member of the City of New Rochelle Police Department, Detective John Pastore, individually and in his capacity as a member of the City of New Rochelle Police Department, Police Officers John Doe Numbers One Through Five (fictitious names whose actual names are presently unknown), individually and in their capacity as members of the City of New Rochelle Police Department, Police Officer Jane Doe (a fictitious name whose actual name is presently unknown), individually and in her capacity as a member of the City of New Rochelle Police Department, and Detective John Doe (A fictitious name whose actual name is presently unknown), individually and in his capacity as a member of the City of New Rochelle Police Department, Defendants.

No. 11 Civ. 69(LMS).

United States District Court,

S.D. New York.

Feb. 26, 2013.

Christopher Wayne McClure, Christopher W. McClure, P.C., Hawthorne, NY, for Plaintiffs.

Brian S. Sokoloff, Mark Anthony Radi, Sokoloff Stern LLP, Carle Place, NY, for Defendants.

DECISION AND ORDER

LISA MARGARET SMITH, United States Magistrate Judge.

Plaintiffs Amey Cooper and Gregory Smith commenced this action against Defendants City of New Rochelle, Detective Michael O'Rourke, Detective John Pastore, Police Officers John Doe Numbers 1–5, Police Officer Jane Doe, and Detective John Doe, asserting federal claims for unreasonable search and seizure, false arrest, malicious prosecution, excessive force, conspiracy under 42 U.S.C. § 1985, violations of the right to procedural and substantive due process, violation of the right to equal protection, violation of Plaintiffs' Sixth Amendment right to be informed of the accusations against them, and Monell liability, and state law claims for unlawful stop, detention, interrogation, and search.¹ Docket # 1. Defendants now move for summary judgment on all of Plaintiffs' claims, except for Smith's § 1983 excessive force claim against O'Rourke, pursuant to Rule 56 of the Federal Rules of Civil Procedure. Docket # 19. For the reasons that follow, Defendants' motion for summary judgment is granted in part and denied in part.

BACKGROUND

The following facts relevant to the disposition of the motion are undisputed unless otherwise noted.

On November 1, 2008, Smith woke up and walked from Mount Vernon to the Bronx to get breakfast at McDonald's. Defendants' Statement of Undisputed Material Facts Pursuant to Local Civil Rule 56.1 (“Defs.' 56.1”) (Docket # 21) ¶ 54. After leaving McDonald's, Smith ran into “Rude Boy,” a drug dealer, and purchased two bags of marijuana from him. Id. ¶¶ 55–58, Smith then went to his deceased father's apartment in New Rochelle to clean it out and spent a few hours there. Id. ¶¶ 59–60; see Radi Decl. (Docket # 20) Ex. L at 73–74. Smith left his father's apartment building around 8:30 p.m. Defs.' 56.1 ¶ 61.

Cooper's mother lived in the same apartment building as Smith's father, and Cooperwas also at the apartment building on November 1, 2008. Id. ¶¶ 62–63. Smith saw Cooper as he was leaving and asked if she could give him a ride to the deli and then to Mount Vernon. Id. ¶ 64. Cooper, who drove a tan Jeep Grand Cherokee, agreed to give Smith a ride. Id. ¶¶ 65–66. Smith placed some kitchen utensils and a brand new Dewalt power saw in the trunk of Cooper's vehicle. Id. ¶ 67. Smith got into the front passenger seat of Cooper's Jeep at about 9:00 p.m. Id. ¶ 68. Cooper stopped at the deli at the corner of Horton Avenue and Brook Street. Id. ¶ 69. Cooper parked her vehicle across the street from the deli and waited in the vehicle while Smith went inside. Id. ¶ 70–71. Smith bought two cigars at the deli and then walked over to a bar on the same block. Id. ¶¶ 72–73. Smith saw people who he knew, and who he knew were drug dealers, outside the bar and spoke to them. Id. ¶¶ 74–76. Smith saw “Moore,” who he knew was a drug dealer, outside the bar and spoke and waved to him. Id. ¶¶ 77–78. Smith got back into Cooper's vehicle at about 9:10 p.m. Id. ¶ 79. At that time, Smith had two cigars and two plastic bags of marijuana in his shirt pocket. Id. ¶ 80. Cooper began driving toward Mount Vernon. Id. ¶ 81. First, Cooper made a left onto Brook Street from Horton Avenue; then she made a right turn onto Lincoln Avenue, Id. ¶ 82. Cooper drove six or seven blocks on Lincoln Avenue before she noticed flashing police lights behind her. Id. ¶ 83. Cooper pulled over her vehicle to the right side of the street between Oakdale Avenue and Storer Avenue. Id. ¶ 84. An unmarked police vehicle pulled up behind Cooper's vehicle. Id. ¶ 85.

That night, Detectives O'Rourke and Pastore were conducting surveillance in the area of Horton Avenue and Brook Street in New Rochelle, which was an area known for drug activity. Id. ¶¶ 86–87. While in the area, O'Rourke got a call on his cell phone from a confidential informant. Id. ¶ 88. The confidential informant was registered to O'Rourke and had provided O'Rourke information in the past. Id. ¶¶ 89, 91. Pastore also knew the confidential informant. Id. ¶ 90. O'Rourke had used this confidential informant more than ten times in the past and had paid the informant each time with New Rochelle Police Department (“NRPD”) money. Id. ¶ 92. The confidential informant called O'Rourke whenever he had information. Id. ¶ 93. The confidential informant, who only spoke to O'Rourke, said that a man named Gregory Smith purchased and was in possession of crack cocaine at Horton Avenue. Id. ¶¶ 95–96. The confidential informant told O'Rourke that Smith was entering a Jeep. Id. ¶ 97. O'Rourke and Pastore knew Smith's name and face before November 1, 2008, because they had seen him many times in known drug locations throughout their careers. Id. ¶ 101. O'Rourke and Pastore observed Smith walking on Horton Avenue and getting into the front passenger seat of a Jeep Grand Cherokee at the corner of Horton Avenue and Brook Street. Id. ¶ 1.02. O'Rourke, who was driving, followed the Jeep from Brook Street to Lincoln Avenue. Id. ¶¶ 103–104. O'Rourke and Pastore never lost sight of the Jeep and after a few minutes, pulled it over at Lincoln and Oakdale Avenues. Id. ¶¶ 105–106. O'Rourke stopped the vehicle because the confidential informant told him that Smith was in possession of narcotics. Id. ¶ 107. O'Rourke later paid the confidential informant for the information that he provided on November 1, 2008. Id. ¶ 109.

After stopping Cooper's vehicle, O'Rourke and Pastore approached, wearing their shields around their necks, and identified themselves as police officers. Id. ¶¶ 110–111. Smith recognized O'Rourke and Pastore. Id. ¶ 112. O'Rourke advised Cooper that she did not do anything wrong. Id. ¶ 114. O'Rourke asked Smith his name, and Smith responded. Id. ¶ 115. O'Rourke then asked Smith to exit the vehicle, and Smith did so. Id. ¶¶ 116–117.

According to Defendants, O'Rourke approached Smith's side of the vehicle, and Pastore approached Cooper's side of the vehicle. Radi Decl. Ex. N at 30; Radi Decl. Ex. O at 81–82. O'Rourke told Smith that he was conducting a drug investigation and asked Smith whether he was in possession of any drugs. Defs.' 56.3 ¶¶ 118–119. Defendants contend that Smith replied, “I have some weed in my pocket,” and then removed two plastic bags of marijuana from his shirt pocket and handed them to O'Rourke. Id. ¶¶ 120–121. At that point in time, O'Rourke rear handcuffed Smith and told him that he was under arrest. Id. ¶ 122. Once Smith was placed under arrest, O'Rourke searched him. Id. ¶ 123.

In contrast, Plaintiffs contend that O'Rourke approached Cooper's side of the vehicle, and Pastore approached Smith's side of the vehicle. Radi Decl. Ex. L at 148–149; Radi Deck Ex. M at 42–43; Radi Deck Ex. R at 18–19; Radi Decl. Ex. S at 14. O'Rourke asked Cooper for her driver's license, registration, and insurance before asking Smith his name and asking him to exit the vehicle. Radi Deck Ex. L at 148; Radi Deck Ex. M at 42–43; Radi Decl. Ex. R at 20; Radi Decl. Ex. S at 14. According to Smith, once he stepped out of the vehicle, Pastore started searching in his pockets and pulled out cigars and the marijuana, at which point in time he was rear handcuffed and walked to the back of the vehicle. Radi Decl. Ex. L at 150–151.²

O'Rourke then asked Cooper if he could search the seat in the vehicle where Smith had been sitting, and Cooper said he could. Defs.' 56.1 ¶¶ 124–125. According to Cooper, she first asked O'Rourke whether he needed a search warrant, and O'Rourke replied no. Radi Deck Ex. M at 54; Radi Decl. Ex. S at 18. O'Rourke searched the areas of the vehicle around Smith's seat. Defs.' 56.1 ¶ 126.³

According to Defendants, O'Rourke observed Smith trying to open what turned out to be two small plastic bags of crack cocaine behind his back. Id. ¶ 129. ⁴ O'Rourke tried to retrieve the crack cocaine from Smith, and a struggle ensued. Id. ¶¶ 130–131. According to O'Rourke, Smith resisted and pushed, shoved, and kicked him. Id. ¶ 135; see Radi Decl. Ex. O at 106–08. O'Rourke and Smith ended up on the ground. Defs.' 56.1 ¶ 142. Pastore saw O'Rourke and Smith fall to the ground and went over to them. Id. ¶ 143. According to Pastore, O'Rourke helped Smith up off the ground. Radi Deck Ex. N at 40, 44–45. O'Rourke retrieved two small plasticbags of crack cocaine from the ground near Smith. Defs.' 56.1 ¶ 146.

According to Smith, while O'Rourke was searching and questioning him, O'Rourke got frustrated because Smith was not answering his questions and punched Smith in the mouth. Radi Deck Ex. L at 153, 155, 157. O'Rourke then pushed Smith down onto the hood of the vehicle, with his forearm under Smith's neck, choking him. Id. at 157–58; see Radi Decl. Ex. M at 56–57. Smith's mouth was bleeding. Radi Deck Ex. L at 166–67; Radi Deck Ex. M at 56. Pastore and O'Rourke then lifted Smith up off the hood of...