Fonville v. Yu
| Decision Date | 26 July 2021 |
| Docket Number | 17-CV-7440 (MKB) |
| Parties | CALVIN FONVILLE, Plaintiff, v. DETECTIVE MICHAEL YU, Police Officer Badge #947625 and DETECTIVE STEVEN JONES, Police Officer Badge #790, \ Defendants. |
| Court | U.S. District Court — Eastern District of New York |
Plaintiff Calvin Fonville, proceeding pro se and currently incarcerated at the Vernon C. Bain Correctional Center commenced the above-captioned action on December 8, 2017 against Defendants Detective Michael Yu and Detective Steven Jones, (Compl., Docket Entry No. 1), and filed an Amended Complaint on January 17, 2018, (Am. Compl., Docket Entry No 4). Plaintiff asserts claims pursuant to 42 U.S.C. § 1983, alleging that on October 18, 2017, during his arrest Defendants “beat and harmed [him] physically, ” causing bruises to his face, neck, and body, mental distress, and pain and suffering (the “Incident”) and following his arrest, Defendants unlawfully entered his dwelling located at 75-06 153rd Street, Apartment 2E, Queens, New York (the “Apartment”), and failed to secure it, resulting in the loss of his personal property. (Id. at 1-4.) The Court construes the Amended Complaint to also assert a claim for negligence in causing the loss of personal property[1] in the Apartment under New York state law. (Id.) Plaintiff seeks $3 million in damages. (Id. at 5.)
Defendants move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure and Plaintiff opposes the motion.[2] For the reasons discussed below, the Court grants Defendants' motion for summary judgment in part and denies it in part.
The following facts are undisputed unless otherwise noted.
On multiple occasions in 2017, Plaintiff sold drugs to an undercover officer (the “UC”) of the New York City Police Department (“NYPD”).[3] “On October 18, 2017, the UC contacted Plaintiff and requested to purchase heroin.” (Defs.' 56.1 ¶ 4; Pl.'s Dep. Tr. 66:19-25, 67:1-20.) “Shortly thereafter, Plaintiff met his supplier near a McDonald's restaurant” near 73rd Avenue in Flushing, New York, “and obtained the heroin he intended to sell to the UC.” (Defs.' 56.1 ¶ 5; Pl.'s Dep. Tr. 66:18-69:16.) While carrying the heroin in a black grocery bag, Plaintiff walked to the location where he had agreed to meet the UC, a “BP gas station located just a few blocks away” at 73-15 Parsons Boulevard, Queens, New York. (Defs.' 56.1 ¶ 6; Pl.'s Dep. Tr. 67:8-14, 68:18-69:1, 69:13-20, 87:24-25, 88:1-23.) As Plaintiff approached the BP gas station, at least three vehicles belonging to the NYPD drove into the gas station. (Defs.' 56.1 ¶ 7; Pl.'s Dep. Tr. 70:6-25, 71:1-13.) Once Plaintiff saw the NYPD vehicles, “he threw the black grocery bag containing heroin away from his person.” (Defs.' 56.1 ¶ 8; Pl.'s Dep. Tr. 87:24-25, 88:1-17.)
The parties dispute Defendants' involvement in the events that immediately followed Plaintiff throwing away the black grocery bag. Plaintiff asserts that he did not try to run or resist arrest. (See Pl.'s 56.1 ¶ 9, Docket Entry No. 63; Pl.'s Dep. Tr. 77:22-25.) He notes that three or four officers “threw [him] down” after grabbing his arms, shoulders, and leg, (Pl.'s Dep. Tr. 78:4-16), and that one of the officers at the BP gas station “put handcuffs” on him, (id. at 83:2-11). In addition, Plaintiff contends that Defendants are the officers who brought him to the ground and lifted him back up, raises discovery objections about his failure to obtain discovery, asserts that “Jones made the arrest and the arrest report, ” “assum[es]” that Yu was present at the BP gas station during his arrest, and notes that he saw Yu “[a]t one point” at “the precinct when they took [him] out of the car.”[4] (Pl.'s 56.1 ¶¶ 10, 14-18; Pl.'s Dep. Tr. 72:8-19.)
Defendants maintain that Plaintiff merely assumes that Yu was present at his arrest, (Defs.' 56.1 ¶ 18; Pl.'s Dep. Tr. 72:8-19), and that Plaintiff saw Jones but not Yu, (Defs.' 56.1 ¶ 13; Pl.'s Dep. Tr. 72:8-19, 72:20-22). In support, Defendants assert that Plaintiff was “brought to the ground” by one or more NYPD officers who were not Defendants[5] and that these non-defendant NYPD officers then “lifted [P]laintiff off the ground and escorted him to a nearby police vehicle.” (Defs.' 56.1 ¶ 10; Pl.'s Dep. Tr. 88-90, 91:3-15.) Defendants further assert that Yu does not appear on the arrest report, (Defs.' 56.1 Reply ¶ 20, Docket Entry No. 70; see Arrest Report, annexed to Gosling Decl. as Ex. C, Docket Entry No. 67-3), and that Plaintiff does not know whether Jones or Yu kicked him, punched him, brought him to the ground, or placed him in handcuffs, (Defs.' 56.1 ¶¶ 14-17; Pl.'s Dep. Tr. 81:9-25, 82:1, 83:4-11).
Jones arrested Plaintiff at the BP gas station at 5:50 PM for criminal sale of a controlled substance in the first, second, and third degrees and for criminal sale of a controlled substance in or near school grounds.[6] (Defs.' 56.1 ¶ 11; Pl.'s 56.1 ¶ 11; see Arrest Report.) Defendants contend that Plaintiff was charged with selling heroin to an undercover officer on nine separate occasions and cocaine to an undercover officer on five separate occasions. (Defs.' 56.1 ¶ 12; Arrest Report; Arrest Report II, annexed to Gosling Decl. as Ex. D, Docket Entry No. 67-4; Arrest Report III, annexed to Gosling Decl. as Ex. E, Docket Entry No. 67-5.) Plaintiff “agrees and disagrees” with Defendants' contention regarding his drug sales. (Pl.'s 56.1 ¶ 12.)
Following Plaintiff's arrest at the BP gas station, Plaintiff was transported to the 107th Precinct. (Defs.' 56.1 ¶ 20; Pl.'s 56.1 ¶ 20.) The parties disagree about who transported Plaintiff to the precinct. (Id.) Defendants contend that other non-defendant NYPD officers transported Plaintiff, (Defs.' 56.1 ¶ 20; Pl.'s Dep. Tr. 91:3-25, 92:1-15; 94:6-8), but Plaintiff contends that Defendants were the arresting officers and that they transported him to the precinct, (Pl.'s 56.1 ¶ 20).
The parties dispute the events that occurred during the October 18, 2017 search of the Apartment located at 75-06 153rd Street, Apartment 2E, Queens, New York.[7] Defendants contend that Jones obtained a search warrant the day prior to the search, October 17, 2017, which authorized Jones and “Queens Narcotics” to search the Apartment between 6:00 AM and 9:00 PM for:
heroin, cocaine, controlled substances, narcotics paraphernalia including but not limited to plastic bags, diluents, . . . scales, records or other evidence of ownership or use of [Plaintiff's apartment], records of narcotics and/or controlled substances transactions, . . . [and] such United States currency as used to purchase narcotics and/or controlled substances, and/or which represent the proceeds of narcotics and/or controlled substances, and/or which represent the proceeds of narcotics and/or controlled substances trafficking.
Jones and “the search warrant team of Queens Narcotics” executed the search warrant.[8] (Defs.' 56.1 ¶ 21; Pl.'s Dep. Tr. 134:19-25, 135:1-9; Search Warrant dated Oct. 17, 2017 (“Search Warrant”), annexed to Gosling Decl. as Ex. B, Docket Entry No. 67-2.)
Defendants contend that upon searching the Apartment on October 18, 2017, at or about 6:05 PM, they recovered:
a quantity of heroin (no stamp), a quantity of cocaine, a quantity of crack/cocaine, a quantity of Xanax pills, a quantity of marijuana, a digital scale, narcotic paraphernalia[, ] i.e.[, ] a box of empty wax glassines and numerous zip locks, U.S. Postal Mail[, ] . . . and a sum of . . . United States [c]urrency.[9]
(Defs.' 56.1 ¶¶ 21-22 ().)
Plaintiff contends that Jones searched the Apartment without a valid search warrant, that Defendants unlawfully entered the Apartment using the keys they took from his pants pocket, that Defendants “did not have any documents [when] they secured [the] [A]partment, ” and that Defendants had not notified Plaintiff's “management” about their search of the Apartment. (Pl.'s 56.1 ¶¶ 2, 21; Dep. Tr. of Calvin Fonville dated Apr. 10, 2019 (“Pl.'s Dep. Tr. II”) 4:5-10, 6:17-24, annexed to Pl.'s 56.1 as Ex. C.)
“Based on the drugs and paraphernalia recovered during the execution of the search warrant, Plaintiff was re-arrested” later that day around 6:25 PM in the vicinity of the Apartment for criminal possession of a controlled substance, criminal use of drug paraphernalia, and criminal possession of marijuana. (Defs.' 56.1 ¶ 23; Arrest Report IV.)
While in custody at the 107th Precinct, Plaintiff complained of back pain.[10] Plaintiff contends that at around 9:30 PM that evening, approximately three hours and thirty minutes after his arrest and four hours after Defendants' search of the Apartment, Defendants asked him to sign a search warrant. (Pl.'s 56.1 ¶ 2; Pl.'s Opp'n 2; Pl.'s Dep. Tr. 134:20-25, 135:1- 16; Pl.'s Dep. Tr. II 4:5-10.)
On October 20, 2017, on or about 2:25 AM, two members of the NYPD, other than Defendants, transported Plaintiff to the emergency room of Queens Hospital (“ER”) arriving at 2:40 AM, (Defs.' 56.1 ¶ 25; Pl.'s 56.1 ¶ 25), and was discharged from the ER approximately two hours after being admitted, around 4:18 AM, on October 20, 2017, (Defs.' 56.1 ¶ 32; Pl.'s 56.1 ¶ 32).[11] While in the hospital, Plaintiff underwent visual, physical, and x-ray examinations and was diagnosed with “[a]cute lower back pain due to ‘trauma'.”[12] The ER Records indicate that “[b]ack pain is very common in adults”...
To continue reading
Request your trial