Cucuta v. N.Y.C.

Decision Date09 May 2014
Docket Number13 Civ. 558 (AJP)
CourtU.S. District Court — Southern District of New York

ANDREW J. PECK, United States Magistrate Judge:

Pro se plaintiff Abraham Cucuta brings this action pursuant to 42 U.S.C. § 1983 against the City of New York, Detective Erick Ortiz, Detective Abel Joseph, Detective Keith Carpenter, Detective Liam McLaughlin, Lieutenant Neftali Betances, Lieutenant Anthony Ronda, Captain Kevin Radday, and Police Officer Winston Favis (collectively "defendants").1 Cucuta's second amended complaint, liberally construed, alleges violations of his Fourth Amendment right against unreasonable search and seizure, Fifth and Fourteenth Amendment rights to due process, and Fourteenth Amendment right to equal protection. (Dkt. No. 22: 2d Am. Compl. ¶ 2(B).) Cucuta's claims arise out of the New York Police Department's ("NYPD"): (1) entry into and seizure of Cucuta's girlfriend's apartment prior to obtaining a search warrant; (2) alleged search of theapartment prior to obtaining a warrant; and (3) pinging of Cucuta's cell phone. (2d Am. Compl.¶¶ 3(C)(5)-(20).) Cucuta seeks $1,000,000 in damages. (2d Am. Compl. ¶ 5.)

Presently before the Court is defendants' summary judgment motion. (Dkt. No. 70: Defs. Notice of Motion.) The parties have consented to the decision of this motion by a Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Dkt. No. 74.)

For the reasons set forth below, defendants' motion is GRANTED.


The evidence in the summary judgment record, construed in the light most favorable to Cucuta as the nonmoving party, is as follows:


On April 12, 2011, a Southern District of New York grand jury indicted Cucuta for conspiracy to distribute crack cocaine, and the Court issued a warrant for Cucuta's arrest. (Dkt. No. 72: Defs. Rule 56.1 Stmt. ¶¶ 1-3; see also Dkt. No. 71: Cooper Aff. Ex. E: Cucuta Indictment; Ex. F: Cucuta Arrest Warrant.)2 At approximately 11 a.m. on April 13, 2011, NYPD Detective Liam McLaughlin stationed himself outside Cucuta's girlfriend Tamika Taylor's apartment building at 1952 Second Avenue in Manhattan. (Defs. Rule 56.1 Stmt. ¶¶ 5, 18.) The NYPD had ascertained this location by "pinging" Cucuta's cell phone multiple times. (Defs. Rule 56.1 Stmt. ¶ 13; Ex. I: Suppression Hearing ("Supp. H.") Tr. at 70.)3 When Det. McLaughlin observed Cucuta exit 1952 Second Avenue, he radioed Cucuta's location to Captain Kevin Radday and Lieutenant AnthonyRonda. (Defs. Rule 56.1 Stmt. ¶¶ 6, 8.) Capt. Radday and Lt. Ronda arrested Cucuta on East 102nd Street between Second and Third Avenues and transported him to an arrest processing site in the 25th Precinct. (Defs. Rule 56.1 Stmt. ¶ 9; Ex. D: Cucuta Dep. at 26.) Detective Erick Ortiz interviewed Cucuta after his arrest. (Defs. Rule 56.1 Stmt. ¶ 10; Cucuta Dep. at 39.) Cucuta provided his mother's address, 402 East 105th Street, and his parole address, 1952 First Avenue, as his addresses. (Defs. Rule 56.1 Stmt. ¶ 11; Cucuta Dep. at 20, 34.) Cucuta admitted during Det. Ortiz's interview that video evidence would show that he had just come from 1952 Second Avenue. (Defs. Rule 56.1 Stmt. ¶ 14; Cucuta Dep. at 36.) Despite admitting this at his deposition, Cucuta now denies that he gave this information to the police. (Dkt. No. 78: Cucuta Opp. Br. at 3.)

1952 Second Avenue, Apt. 301

Tamika Taylor, Cucuta's girlfriend, resided in Apt. 301 with her son Syncere, her mother Christine Alonzo, and her brother Andre Montgomery. (Dkt. No. 72: Defs. Rule 56.1 Stmt. ¶¶ 18-20; Ex. C: Taylor Dep. at 15.) Cucuta's name was not on the lease, but he stayed in Apt. 301 on weekends and occasionally during the week. (Defs. Rule 56.1 Stmt. ¶¶ 22-23; Taylor Dep. at 15-17.) Cucuta did not have a key and did not contribute to the rent, but kept clothes and sneakers in a closet he shared with Taylor. (Defs. Rule 56.1 Stmt. ¶ 22; Taylor Dep. at 15-17.) When Cucuta stayed the night, he exclusively stayed in the master bedroom with Taylor. (Defs. Rule 56.1 Stmt. ¶ 23; Taylor Dep. at 26.)

Capt. Radday and Lt. Ronda entered 1952 Second Avenue to ascertain in which apartment Cucuta had been. (Defs. Rule 56.1 Stmt. ¶¶ 12-15; Ex. I: Supp. H. Tr. at 70-71.) Based on Cucuta's statement, Det. Ortiz informed Capt. Radday and Lt. Ronda that Cucuta had come from Apt. 301. (See Defs. Rule 56.1 Stmt. ¶ 16; Supp. H. Tr. at 71.) Capt. Radday and Lt. Ronda knocked on the door of Apt. 301 around noon. (Defs. Rule 56.1 Stmt. ¶ 16; Taylor Dep. at 30.)Capt. Radday and Lt. Ronda identified themselves as the police, stated that they had just arrested Cucuta, and were there to return his belongings. (Defs. Rule 56.1 Stmt. ¶¶ 17, 20; Taylor Dep. at 31.)4 Taylor opened the door and Capt. Radday and Lt. Ronda entered into the apartment's living room. (Defs. Rule 56.1 Stmt. ¶ 25; Taylor Dep. at 33, 41; Supp. H. Tr. at 100-01.)5 Capt. Radday and Lt. Ronda announced that they had reason to believe Cucuta kept a gun there and that the apartment was being frozen until they obtained a search warrant. (Defs. Rule 56.1 Stmt. ¶¶ 26-27; Taylor Dep. at 33, 41.) Capt. Radday remained in the living room while Lt. Ronda stepped towards the doorway of the apartment and placed a call to get a search warrant. (Defs. Rule 56.1 Stmt. ¶ 28; Supp. H. Tr. at 102.) Capt. Radday escorted Taylor, Montgomery and Sincere into the hallway while the apartment was frozen. (Defs. Rule 56.1 Stmt. ¶ 29; Taylor Dep. at 60.) The officers asked whether anyone else was in the apartment and Taylor said no. (Taylor Dep. at 65.) However, Taylor later admitted to the officers that Adam Hogan, a friend, was still in the apartment. (Defs. Rule 56.1 Stmt. ¶ 31; Taylor Dep. at 65.) Hogan was found in a bedroom hiding under the covers. (Defs. Rule 56.1 Stmt. ¶ 32; Taylor Dep. at 65.) Still in the hallway, Taylor also told an officer that there was a gun in a closet in the master bedroom. (Defs. Rule 56.1 Stmt. ¶¶ 31, 33; Taylor Dep. at 61-63, 68.) Lt. Ronda brought Taylor back into the apartment so Taylor could show him exactly where the gun was located. (Defs. Rule 56.1 Stmt. ¶ 33; Taylor Dep. at 63, 68-69.) The police stated that they were not allowed to go into the closet and asked for Taylor's permission to search,but did not receive it. (Taylor Dep. at 64-65.) Taylor was brought back out into the hallway outside the apartment. (Defs. Rule 56.1 Stmt. ¶ 33; Taylor Dep. at 65.)

At approximately 5:11 p.m., the police secured a search warrant for Apt. 301. (Defs. Rule 56.1 Stmt. ¶ 37; see also Ex. H: Search Warrant at 1.) Officer Winston Favis of the Evidence Collection Team recovered the gun from the closet identified by Taylor. (Defs. Rule 56.1 Stmt. ¶ 38.)6 The police also recovered seventy-six ziplock bags of crack cocaine belonging to Cucuta. (Defs. Rule 56.1 Stmt. ¶¶ 39-40; Cucuta Dep. at 63, 82.)

Cucuta was not present during the freeze and search of Apt. 301. (Defs. Rule 56.1 Stmt. ¶ 40; Cucuta Dep. at 63.)

Cucuta's Conviction

On October 9, 2012, Cucuta pled guilty to conspiracy to distribute crack cocaine. (Ex. M: Plea Tr. at 30.) Cucuta stated at his plea allocution that "between December 2010 and April 2011" he "agreed with at least one other person to possess and distribute more than 28 grams of crack cocaine" and that he was aware that what he was doing was wrong and illegal. (Plea Tr. at 29-30.)

Cucuta's § 1983 Claims

On January 23, 2013, Cucuta sued the NYPD, Detective Erick Ortiz, Detective Abel Joseph, Detective Keith Carpenter, Lieutenant Neftali Betances, Lieutenant Anthony Ronda, and Officer Winston Favis alleging "illegal search and seizure." (Dkt. No. 2: Compl. at 5.) Chief Judge Preska ordered Cucuta to file an amended complaint "containing facts that show why each named defendant should be held liable for what occurred." (Dkt. No. 7: 4/10/13 Order at 3.) The Orderalso dismissed Cucuta's claims against the NYPD "because a New York City agency is not an entity that can be sued." (4/10/13 Order at 3.) Cucuta filed his second amended complaint on October 22, 2013, adding Capt. Kevin Radday as a defendant. (Dkt. No. 22: 2d Am. Compl.) The following summarizes the asserted claims and the factual evidence against the various defendants:

Capt. Kevin Raddy and Lt. Ronda

Cucuta's amended complaint asserts Fourth Amendment violations by Capt. Radday and Lt. Ronda for their seizure of Apt. 301 and alleged search prior to securing a warrant. (Dkt. No. 22: 2d Am. Compl. § III.C, ¶¶ 5-16.) The amended complaint also alleges a Fourth Amendment violation for the pinging of Cucuta's cell phone. (2d Am. Compl. § III.C, ¶ 5; see also Dkt. No. 78: Cucuta Opp Br. at 7.)7

Det. Erick Ortiz

Detective Ortiz processed Cucuta at the 25th precinct after his arrest. Det. Ortiz questioned Cucuta about his whereabouts the night before. Det. Ortiz later joined Capt. Radday and Lt. Ronda at Apt. 301. (See pages 3-4 above; see also Ex. D: Cucuta Dep. at 127.) It appears that Cucuta attributes to Det. Ortiz the same Fourth Amendment violations ascribed to Capt. Radday and Lt. Ronda. (Dkt. No. 22: 2d Am. Compl. § III.C, ¶ 5.)

Lt. Neftali Betances

Cucuta testified at his deposition that Lt. Betances is "basically like the commanding officer. So he has authority over [the other officers involved] and should have stopped them as far as entering that apartment . . . ." (Ex. D: Cucuta Dep. at 129; Dkt. No. 72: Defs. Rule 56.1 Stmt. ¶45.) It appears that Cucuta attributes to Lt. Betances the same Fourth Amendment violations ascribed to Capt. Radday and Lt. Ronda. (Dkt. No. 22: 2d Am. Compl. § III.C, ¶ 5.)

Det. Abel Joseph

Det. Joseph made the warrant application. (Dkt. No. 72: Defs. Rule 56.1 Stmt. ¶ 46; Ex. D: Cucuta Dep. at 127; Ex. J: Warrant...

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