Frederique v. Cnty. of Nassau

• Citation: 168 F.Supp.3d 455
• Decision Date: 11 March 2016
• Docket Number: 11-CV-1746 (SIL)
• Parties: Stanley Frederique, Luckelson Frederique, Eline Frederique, and Paul Frederique, Plaintiffs, v. County of Nassau, Police Officer Hector Rosario, and Police Officer Jason Scholl, in Their Individual and Official Capacities, Defendants.
• Court: U.S. District Court — Eastern District of New York

168 F.Supp.3d 455

Stanley Frederique, Luckelson Frederique, Eline Frederique, and Paul Frederique, Plaintiffs,

v.County of Nassau, Police Officer Hector Rosario, and Police Officer Jason Scholl, in Their Individual and Official Capacities, Defendants.

11-CV-1746 (SIL)

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

Signed March 11, 2016

Gregory Calliste, Jr., Law Offices of Frederick K. Brewington, Hempstead, NY, Frederick K. Brewington, Ira F. Fogelgaren, North Hempstead Town Attorney's Office, Manhasset, NY, for Plaintiffs.

Douglas J. Lerose, Ralph J. Reissman, Liora M. Ben-Sorek, Mineola, NY, for Defendants.

MEMORANDUM AND ORDER

LOCKE, Magistrate Judge

Plaintiffs Stanley Frederique, Luckelson Frederique, Eline Frederique, and Paul Frederique (collectively, the “Plaintiffs” or “Frederiques”) bring this action against Defendants County of Nassau, Police Officer Hector Rosario, and Police Officer Jason Scholl (collectively, the “Defendants”), alleging causes of action arising under 42 U.S.C. § 1983 and New York common law. See DE [45]. According to Plaintiffs, Nassau County Police Department (“NCPD”) officers violated their rights while responding to an April 8, 2010 domestic disturbance complaint at Plaintiffs' home in Elmont, New York (the “Frederique Home”). Id. Presently before the Court is Defendants' motion for summary judgment pursuant to Fed. R. Civ. P. 56, which Plaintiffs oppose. See DEs [57], [58]. For the reasons set forth herein, Defendants' motion is granted in part and denied in part.¹

I. BACKGROUND

A. Relevant Facts

The following facts are taken from Defendants' Statement of Material Facts Pursuant to Local Civil Rule 56.1 (“Defs.' 56.1 Stmt.”), DE [57-4]; Plaintiffs' Statement of Disputed Facts in Opposition to Defendants' Motion for Summary Judgment Pursuant to Local Rule 56.1 and Plaintiffs' Counter-Statement of Facts (“Pls.' 56.1 Stmt.”), DE [57-6]; the Declaration of Ralph J. Reissman in Support of Defendants' Motion for Summary Judgment (the “Reissman Decl.”), DE [57]; and the Declaration of Gregory Calliste, Jr. in Support of Plaintiffs' Memorandum of Law in Opposition to Defendants' Motion for Summary Judgment (the “Calliste Decl.”), DE [58-1].²

1. The April 8, 2010 Altercation

At all relevant times, Plaintiffs Paul and Eline Frederique co-owned the Frederique Home, where they lived with their four sons, Stanley, Luckelson, McGregor, and Luckner. Defs.' 56.1 Stmt. ¶¶ 9-18. During the day on April 8, 2010, McGregor and his girlfriend, Jasmine Johnson (“Johnson”), left their two-year old daughter Zoe at the Frederique Home so that Luckelson could care for her while they went out for the evening. Id. at ¶ 25; Pls.' 56.1 Stmt. ¶ 268. When McGregor and Johnson returned at approximately 10:00 p.m., Luckelson, Stanley, and Stanley's girlfriend, Marleana Neeper (“Marleana”), were outside with Zoe, who was in her stroller without socks or a jacket. Defs.' 56.1 Stmt. ¶¶ 26-27. Jasmine immediately began to argue with Stanley, Luckelson, and Marleana about Zoe's care. Id. at ¶¶ 28-30; Pls.' 56.1 Stmt. ¶ 268. When Stanley and Luckelson told Johnson to leave, an altercation ensued and Johnson began hitting Luckelson in his face and chest. Defs.' 56.1 Stmt. ¶¶ 29-30.

During the altercation, Luckelson went into the house to fill a vase with water, came back outside, and threw the water on Johnson. Id. at ¶ 33. Johnson rushed at Luckelson, knocking him to the ground, and dislocating his right shoulder. Id. at ¶ 35. Although it is undisputed that Johnson suffered a laceration to her skull and ear, the parties dispute the manner in which it occurred. According to Defendants, after throwing water on Johnson, Luckelson broke the vase over her head, causing the laceration. Id. at ¶ 34. Plaintiffs deny that Luckelson broke the vase over Johnson's head and claim that she sustained the laceration when she fell to the ground after charging at Luckelson. Pls.' 56.1 Stmt. ¶¶ 34, 275-76.

Stanley and Marleana brought Luckelson to his bedroom in the basement and went back outside. Defs.' 56.1 Stmt. ¶ 36. At that time, the Frederiques' pet pit bull Angel was in the basement with Luckelson. Id. at ¶ 39. Although Plaintiffs claim that Stanley called the police first in order to request medical attention for Luckelson, Stanley testified that he did not actually speak with a dispatcher or tell anyone that Luckelson required medical attention. Pls.' 56.1 Stmt. ¶ 282; see also Reissman Decl. Ex. AW at 91:20-24. It is undisputed that Johnson called the Nassau County 911 emergency telephone line at 10:18 p.m., stating that she required an ambulance and informing the dispatcher that her “daughter's uncles” punched her in the face and tried to hit her daughter. See Defs.' 56.1 Stmt. ¶ 40. At 10:22 p.m., Johnson called back, stating that her “boyfriend's brother” hit her in the head with a glass and that her head was bleeding. Id. at ¶ 41. According to Johnson, “Stanley started it.” Id.

2. Nassau County Police Department Arrives

The parties' versions of what happened after the NCPD arrived are substantially different. Accordingly, the Court addresses both versions in turn.

i. Defendants' Version

At approximately 10:22 p.m., Ambulance Medical Technician Brian Ferrucci received a radio dispatch for a domestic incident requiring medical attention at the Frederique Home. Id. at ¶ 45. When Ferrucci arrived, he observed pieces of a shattered vase in the street and saw Johnson in front of the house, bleeding from her head. Id. at ¶ 46. Johnson told Ferrucci that Stanley and Luckelson had struck her in the head with a vase, and that they were in the basement. Id. at ¶ 47. As Ferrucci spoke with Johnson, he heard the house's side door opening and closing from behind a fence. Id. at ¶ 48. When Ferrucci asked the men behind the fence to come outside and speak with him, a male voice responded, “Don't come near the fence I'll let the dog out on you.”Id. Johnson informed Ferrucci that there was a pit bull in the house. Id. at ¶ 50. Ferrucci told the men to secure the dog and he called for police assistance. Id.

When Officers Anthony Carbone, Gregory Tristan Cetto, and Jason Scholl arrived, Johnson identified Stanley as one of the men who attacked her. Id. at ¶¶ 64, 119-20, 150. Scholl patted Stanley down to check for weapons, and Carbone placed Stanley in handcuffs. Id. at ¶ 123. Scholl then put Stanley in the back of Carbone's police vehicle, and remained with him for approximately one hour before taking him to the police station for arrest processing. Id. at ¶¶ 123-24. Sergeants Joseph Pizzimenti and Christopher Barricelle instructed Officers Carbone, Timothy Siar, Hector Rosario, Kerry Harracksingh, and Sean McNeill to establish a perimeter around the house and surrounding area to prevent Luckelson or anyone in the house from escaping. Id. at ¶¶ 68, 181. Officers Carbone and Siar were in the backyard, Officer McNeill was at the front of the driveway, and Officers Rosario and Harracksingh were several houses down. Id. at ¶¶ 68, 80, 102, 169. Shortly after establishing a perimeter, the house's side door opened and a pit bull came out. Id. at ¶ 69. Carbone yelled, “grab your dog,” but it began running toward him. Id. The dog changed its course several times, running at Sergeant Pizzimenti and Officers Carbone, Siar, and McNeill, each of whom fired his gun multiple times until they killed the dog. Id. at ¶¶ 139-40, 171, 199. In total, Carbone fired fifteen shots, Siar fired thirteen shots, McNeill fired eleven shots, and Pizzimenti fired four shots. See Reissman Decl. Ex. R. An April 19, 2010 NCPD Firearm Discharge Investigation (the “Firearm Discharge Report”) concluded that, “[a]s long as the imminent threat from the pit bull continued to jeopardize the safety of the officers, the first round [of gunshots] as well as the last round expended was necessary and reasonable.” Id.

After shooting the pit bull, several officers ran toward the side door from which it had been released. See Defs.' 56.1 Stmt. ¶¶ 55, 81, 103, 156. Pizzimenti told Luckelson to come out of the house with his hands up and get on the ground. Id. at ¶ 82. When Luckelson did not comply, Pizzimenti, Barricelle, Rosario, Harracksingh, Siar, and Cetto entered the home, following Luckelson down the stairway into the basement. Id. at ¶ 83. Although officers ordered Luckelson to put his hands behind his back, he dropped to the ground on his stomach and put his arms under his body. Id. at ¶ 84. As Rosario, Harracksingh, and Pizzimenti attempted to handcuff Luckelson, Luckelson struggled with the officers, kicking and flailing his arms and legs. Id. at ¶ 85. The officers eventually gained control and placed Luckelson in handcuffs. Id. at ¶¶ 86, 202.

Once in handcuffs, the officers brought Luckelson upstairs, and Ferrucci evaluated him, observing only a minor laceration on the fifth digit of Luckelson's left hand. Id. at ¶ 57. Thereafter, Officers Rosario and Harracksingh brought Luckelson to Winthrop Hospital to undergo a “Fit for Confinement” evaluation. Id. at ¶ 88. Officer Scholl brought Stanley to the Fifth Precinct for arrest processing. Id. at ¶¶ 124-25.

ii. Plaintiffs' Version

According to Plaintiffs, the NCPD arrived approximately twenty to thirty minutes after Stanley placed his call and immediately began asking about stray guns and drugs. Pls.' 56.1 Stmt. ¶¶ 283-84. Stanley and Marleana told the officers that Luckelson was in the basement and required medical attention. Id. at ¶¶ 290-92. Officers Carbone and Scholl told Stanley to get against the wall, threw him against the gate, and punched him in his back where he had surgery earlier that day. Id. at ¶ 286. At the officers' instruction, Paul called Luckelson on his cell phone and told him to come upstairs. Id. at ¶ 293.

Believing that the police had responded to provide medical attention, Luckelson slowly made his way up the stairs, with Angel following behind him. Id. at ¶¶ 295-97, 307. When Luckelson opened the side door, Angel walked...