Dowling v. City of N.Y., 11-CV-4954 (NGG) (RML)

• Decision Date: 30 September 2013
• Docket Number: 11-CV-4954 (NGG) (RML)
• Parties: DEVAWNE DOWLING, Plaintiff, v. THE CITY OF NEW YORK, POLICE OFFICER LUKE GASQUEZ, Shield No. 2897, Individually and in his Official Capacity and P.O.'s "John Does" #1-10. Individually and in their Official Capacity (the name John Doe being fictitious as the true names are presently unknown), Defendants.
• Court: U.S. District Court — Eastern District of New York

DEVAWNE DOWLING, Plaintiff, v. THE CITY OF NEW YORK, POLICE OFFICER LUKE GASQUEZ,Shield No. 2897, Individually and in his Official Capacityand P.O.'s "John Does" #1-10. Individually and in their Official Capacity(the name John Doe being fictitious as the true names are presently unknown), Defendants.

11-CV-4954 (NGG) (RML)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

Dated: September 30, 2013

MEMORANDUM & ORDER

NICHOLAS G. GARAUFIS, United States District Judge.

Plaintiff Devawne Dowling brings this action under 42 U.S.C. § 1983 against the New York City Police Department and various police officers for claimed violation of his rights under the U.S. Constitution, including false arrest and denial of his right to a fair trial. The suit stems from an incident in which Plaintiff was arrested for and charged with obstructing government administration. Defendants seek summary judgment on all claims. For the reasons explained below, their motion is DENIED.

I. BACKGROUND

A. Facts

Many facts are not in dispute. On Saturday, September 17, 2011, Plaintiff, along with his brother Deandre and several others, assembled at their friend's house to watch a boxing match. (Pl. Mem. in Opp'n (Dkt. 21) at 2.) At around 10:30 p.m., Plaintiff, Deandre, and friends Andre Delahunt and Orlando Mendez decided to go to a liquor store to get provisions for the party. (Id.; Pl. Decl. in Opp'n, Ex. A, Devawne Dowling Dep. (Dkt. 20) at 37:12-20, 45:10-15("Dowling Dep.").) Plaintiff was about to make his purchase when his friend informed him that the police were searching his brother. (Pl. Mem. in Opp'n at 2.)

Plaintiff exited the liquor store to find that, indeed, his brother was being searched. (Id. at 3.) According to police, his brother had been caught urinating on the sidewalk, precipitating the stop by two police officers. Then a second set of police officers, Luke Gasquez and Marianna Gentile, pulled up in a van. They exited the van and were there when Plaintiff arrived on the scene. (Pl. Mem. in Opp'n at 5.) Concerned for his brother, Plaintiff began to walk towards where the police were. (Id. at 3.)

Plaintiff states that he approached Officer Gasquez, who was not taking part in the search, but standing approximately ten feet away from the search. (Id.) Although there is some dispute as to the exact language used, both sides agree that Plaintiff asked why the police were searching his brother. (Pl. Resp. to Def. Rule 56.1 Stmt. (Dkt. 23) ¶ 21.) Officer Gasquez yelled at Plaintiff to back up. Plaintiff stopped, approximately two to three feet from Office Gasquez, and said he was not approaching. (Pl. Resp. to Def. Rule 56.1 Stmt. ¶¶ 25, 28.) Unsatisfied with this answer, Officer Gasquez told him to back up again. (Dowling Dep. at 40:19-24.) Plaintiff stayed put and gave the same response. (Id.) Officer Gasquez then pushed Plaintiff back and instructed another officer to arrest him. (Id. at 40:24-25.) Officers also arrested Deandre Dowling and Orlando Mendez, the latter of whom had come up to ask why Plaintiff was being arrested. (Pl. Mem. in Opp'n at 3.) During this time, Plaintiff did not try to talk to his brother and remained about ten feet away from his brother. (Dowling Dep. at 50:7-13.)

The accounts of Plaintiff and Defendants diverge when they discuss this confrontation. Officer Gasquez contends that Plaintiff was approximately a foot away from him, and that several other men were with Plaintiff. (Def. Rule 56.1 Stmt. (Dkt. 16) ¶¶ 19-20.) OfficerGasquez felt "enclosed." (Gasquez Dep., Ex. D to Def. Decl. in Supp. at 39:22 ("Gasquez Dep.").) When he told the group to back up, they all stepped back except for Plaintiff. (Id. at 40.) He states that Plaintiff attempted to block him or body check him and walk past him and that these actions were the basis for Plaintiff's arrest. (Pl. Mem. in Opp'n at 6); (Gasquez Dep. at 46-47, 60:6-7) ("He kept trying to walk passed [sic] me ... He flailed his arms at me . . . . He's trying to swipe at me and check me.") Officer Gasquez states that, at some point, Plaintiff was in between him and Deandre Dowling. (Id. at 47:9-12). But, it appears from his testimony that Plaintiff was not in between Deandre and the officers who were searching him: "at this point they were putting him in handcuffs so they're a little off to the side. So it would be Devawne, me, Deandre, and directly behind Deandre they were placing him in handcuffs." (Id. at 48:15-19.)

Officer Gasquez's partner at the time of the stop, Officer Gentile, states that Plaintiff was three feet away from Officer Gasquez. (Gentile Dep., Ex. C to Pl. Mot. in Op'n, at 27:12 ("Gentile Dep.").) She describes Plaintiff as "flaring [sic] his arms up and down," "being disorderly," and cursing at her. (Id. at 35:16-18, 36:9-10.) She confirms that the actions described above were the extent of his behavior, (Id. at 37:2.).

No testimony has been offered regarding the names of the two officers who originally stopped Deandre Dowling. (Gasquez Dep. at 35:16-25, 36:2 (stating that two male officers originally stopped Devawne Dowling but that he does not know their names or what precinct they were from); Gentile Dep. at 27:9-22 (stating she does not know officers' names or what precinct they were from).) Plaintiff does not know the identity of the officer that arrested him, only that it was not Officer Gasquez or Officer Gentile. (Dowling Dep. at 49:1-13.)

Officer Gasquez believed that the two officers who had first arrived were issuing a summons to Deandre Dowling for public urination. (Gasquez Dep. at 51:12-14.) He assumed Deandre Dowling was arrested because he did not produce identification. (Id. at 51:7-9, 22-25.) Officer Gasquez himself did not then issue a summons to Deandre Dowling, nor did Officer Gasquez place him under arrest. However, Officer Gasquez transported Deandre Dowling in the van with Plaintiff and Mr. Mendez because there was room in the van. (Id. at 52:10-11.)

Officers Gasquez and Gentile transported the three men to the 115th Precinct. Deandre Dowling produced a school identification card. Officer Gasquez issued a summons to Deandre Dowling and then released him. (Id. at 54: 7-11.) Police also released Mr. Mendez. (Pl. Mem. in Opp'n at 3.) Based on Officer Gasquez's supporting deposition, prosecutors decided to charge Plaintiff with Second Degree Obstruction of Governmental Administration. (Id. at 3-4.) Plaintiff was in custody for approximately twenty-four hours before his case was adjourned in contemplation of dismissal. (Id. at 4.)

Officer Gasquez's initial sworn statement attached to the criminal complaint states that Plaintiff interfered with Officer Gasquez when the officer was issuing a summons. (Pl. Mem. in Opp'n at 6.) Officer Gasquez filled out a form declaration for disorderly conduct and obstructing government administration under the heading "obstructing government administration." This form gave him the option to circle "1/Another Public Servant" in the statement describing what action a defendant was obstructing. (Supp. Decl., Ex. D to Pl. Dec. in Opp'n.) Officer Gasquez chose "I." (Id.) The form then lists some common actions, and offers a write-in area in which Officer Gasquez wrote "issue summons." (Id.) On a menu of actions, he chose "Place him/her self between:" and wrote in "arresting officer and [blank]." (Id.) He also chose "other" and filled in "yell and flail arms @ officer repeatedly" and confirmed that Plaintiff did not resistarrest. (Id.) Plaintiff's arrest record states that he "repeatedly interfered with [arresting officer] while [arresting officer] attempted to issue [blank] a summons for urinating in public. Deft did step in between officer repeatedly yelling at officer and flailing arms refusing to step back numerous times." (Arrest R., Ex. E to Def. Decl. in Supp.)

B. Procedural History

Plaintiff filed his complaint against the City, Officer Gasquez, and other John Does on October 12, 2011. (Compl. (Dkt. 1).) Under 42 U.S.C. § 1983, Plaintiff alleged deprivation of his Fourth Amendment rights, false arrest, and denial of his right to fair trial. (Id. at 4-6.) He also made a claim against the City under Monnell v. Department of Social Services, 436 U.S. 658 (1976). (See id. at 6-7.)

Defendants requested a pre-motion conference on November 8, 2012. (Def. Ltr. (Dkt. 11).) Plaintiff filed his response in opposition to the request for a pre-motion conference on November 13, 2012. (Resp. in Opp'n (Dkt. 14).) In that response, Plaintiff agreed to withdraw his municipal liability claim. (Id. at 4 n.4.) On November 30, 2012, the court granted leave to the Defendants to file for summary judgment. (Nov. 30, 2012, Min. Entry.) On February 8, 2012, Defendants moved for summary judgment. (Mot. for Summ. J. (Dkt. 15).)

III. SUMMARY JUDGMENT

A. Standard

Under Federal Rule of Civil Procedure 56(a), summary judgment is proper if "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." The burden of making this showing rests upon the party moving for summary judgment. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). "[T]hecourt must draw all reasonable inferences in favor of the nonmoving party." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 149 (2000).

A fact is material if its existence or non-existence "might affect the outcome of the suit under the governing law," and an issue of fact is genuine if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Only "specific facts" grounded in testimony or other admissible evidence create a genuine issue. Id. "[M]ere allegations or denials" of the adverse party's pleadings, id., and "the presentation of assertions that are conclusory," Patterson v. Cnty. of Onieda, N.Y., 375 F.3d 206, 219 (2d Cir. 2004), or "conjecture[] or speculation" from the non-movant, Kulak...