Glover v. City of N.Y., 15-CV-4899 (MKB)

• Decision Date: 09 October 2018
• Docket Number: 15-CV-4899 (MKB)
• Parties: SONYA GLOVER, Plaintiff, v. CITY OF NEW YORK, P.O. JOSEPH LAROSA, P.O. BRIAN LEGUERNIC, P.O. JOSEPH XERRI, SGT. MATTHEW STARRANTINO, CAPTAIN JAMES KING, DEPUTY INSPECTOR ANDREW LUNETTA, ASSOC. INVESTIGATOR PAMELA BREWSTER, SGT. EUNICE SHAFIDIYA, LT. PETER CALDERON, and JOHN DOES 1-14, Defendants.
• Court: U.S. District Court — Eastern District of New York

SONYA GLOVER, Plaintiff, v. CITY OF NEW YORK, P.O. JOSEPH LAROSA, P.O.BRIAN LEGUERNIC, P.O. JOSEPH XERRI, SGT.MATTHEW STARRANTINO, CAPTAIN JAMESKING, DEPUTY INSPECTOR ANDREW LUNETTA,ASSOC. INVESTIGATOR PAMELA BREWSTER,SGT. EUNICE SHAFIDIYA, LT. PETERCALDERON, and JOHN DOES 1-14, Defendants.

15-CV-4899 (MKB)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

October 9, 2018

MEMORANDUM & ORDER

MARGO K. BRODIE, United States District Judge:

Plaintiff Sonya Glover commenced the above-captioned action on August 20, 2015 against Defendants the City of New York, New York City Police Department ("NYPD") Officers Joseph Larosa, Brian Leguernic, and Joseph Xerri, Sergeant Matthew Starrantino, Captain James King, Deputy Inspector Andrew Lunetta, Associate Investigator Pamela Brewster, John Does 1-15, and Jane Doe. (Compl., Docket Entry No. 1.) On April 12, 2016, Plaintiff filed an Amended Complaint adding Defendants Sergeant Eunice Shafidiya and Lieutenant Peter Calderon. (Am. Compl., Docket Entry No. 22.) Plaintiff asserts claims for retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), and selective enforcement, false arrest and false imprisonment, illegal search and seizure, and failure to intervene under 42 U.S.C. § 1983, and for municipal liability pursuant to Monell v. Department of Social Services of City of New York, 436 U.S. 658 (1978). (Id. ¶¶ 191-313.)

Currently before the Court are Defendants' motion for summary judgment, and Plaintiff's motions for partial summary judgment and to amend the pleadings.¹ For the reasons set forth below, the Court grants in part and denies in part Defendants' motion for summary judgment, and denies Plaintiff's motions for partial summary judgment and to amend the pleadings.

I. Background

a. Factual background

The following facts are undisputed unless otherwise noted.

Plaintiff, an African-American woman, is a former NYPD officer. (Defs. Rule 56.1 Statement of Undisputed Material Facts ("Defs. 56.1") ¶¶ 1-2, Docket Entry No. 63.) She was employed by the NYPD for twenty years, beginning in April of 1991 until her retirement in April of 2011. (Id. ¶ 1.)

During her employment with the NYPD, Plaintiff brought several lawsuits and internal complaints against the NYPD and its officers. In "approximately 1997 or 1998," Plaintiff filed a complaint with the Civilian Complaint Review Board against her supervisor. (Id. ¶ 3.) In 2001, while assigned to the "Housing Police, PSA3,"² Plaintiff intervened when she allegedly observed a group of housing police officers beating a handcuffed man, and internally reported the officersinvolved. (Id. ¶ 5.) In 2004, Plaintiff was one of multiple plaintiffs who brought a lawsuit against the NYPD alleging racial discrimination. (Id. ¶ 8.) In "either approximately May of 2005 . . . or in 2007 [or] 2008," Plaintiff filed an internal complaint with the Equal Employment Opportunity Commission against another NYPD officer for gender discrimination. (Id. ¶ 9.) In January of 2007, Plaintiff filed a lawsuit in New York state court, alleging retaliation and discrimination based on race, sex, and sexual orientation.³ (Id. ¶ 12.) Among the defendants named in the 2007 lawsuit were two police officers from the NYPD's 110th Precinct.⁴ (Id.) Plaintiff asserts that the 2007 lawsuit settled in 2010. (Pl. Statement of Additional Material Facts ¶ 164, Docket Entry No. 74.)

In July of 2011, after retiring from the NYPD, Plaintiff opened a business called Onyxx Lounge,⁵ located at 103-02 Corona Avenue in Corona, Queens, within the confines of the NYPD's 110th Precinct. (Defs. 56.1 ¶ 16; Pl. Rule 56.1 Statement of Undisputed Material Facts("Pl. 56.1") ¶ 40, Docket Entry No. 71; Pl. Statement of Additional Material Facts ¶ 147.)⁶ While employed by the NYPD, Plaintiff never worked at the 110th Precinct. (Defs. 56.1 ¶ 17.) According to Plaintiff, Onyxx Lounge was located in an "overwhelmingly Hispanic and Caucasian" neighborhood, but patronized predominantly by African Americans. (Pl. Statement of Additional Material Facts ¶ 156.)

Plaintiff's claims arise from several incidents at Onyxx Lounge, where Plaintiff alleges officers engaged in unlawful searches and seizures over more than a year, in violation of her constitutional rights.

i. Incidents involving Plaintiff and NYPD officers at Onyxx Lounge

1. June through August 24, 2012 incidents

The parties dispute the extent to which Sergeant Shafidiya and other NYPD officers inspected Onyxx Lounge or patrolled its vicinity prior to August 27, 2012.⁷ Plaintiff alleges that NYPD officers, including Shafidiya, patrolled and inspected Onyxx Lounge prior to August 27, 2012. (Pl. Statement of Additional Material Facts ¶ 66.) Defendants assert that Shafidiya "had never heard of the Onyxx Lounge" prior to August 27, 2012.⁸ (Defs. 56.1 ¶ 66.)

Plaintiff asserts that on approximately eighteen dates between June and August of 2012, NYPD officers harassed her and her business, including on June 10, 2012, when Shafidiya "came to the Onyxx Lounge."⁹ (Pl. Mem. in Opp'n to Defs. Mot. ("Pl. Opp'n") 5, Docket Entry No. 73; Pl. Statement of Additional Material Facts ¶¶ 179-80.) Beginning in August of 2012, "Shafidaya [sic] was either inside or posted outside (in a police vehicle) of the Onyxx Lounge four to five times per month." (Pl. Resp. to Defs. 56.1 ("Pl. Resp.") ¶ 66, Docket Entry No. 74.)

Plaintiff asserts that on August 24, 2012, she was hosting a party at Onyxx Lounge, when around 10:00 or 11:00 PM,¹⁰ five police officers entered "without a warrant or explanation." (Pl. Statement of Additional Material Facts ¶ 189.) According to Plaintiff, a "sergeant looked at [her] licenses . . . while the other four police officers spread out and walked through the Onyxx Lounge." (Id. ¶ 190.) The inspection "yielded no summonses or other findings of wrongdoing." (Id. ¶ 192.) After the officers left Onyxx Lounge, "two officers stayed back in a patrol car and got out periodically to harass patrons." (Id. ¶ 193.) Defendants deny that any officers were present at Onyxx Lounge on August 24, 2012. (Defs. Mem. 9 n.6.)

2. August 27, 2012 incidents

On the night of August 27, 2012, Plaintiff held a private party at Onyxx Lounge. (Defs. 56.1 ¶ 63.) Shafidiya "received multiple reports of calls complaining about [Onyxx Lounge], including noise complaints[,] . . . marijuana use," and fighting. (Id. ¶ 65.)

Later that night, after responding to a different call in the vicinity, while driving by Onyxx Lounge in an unmarked car, Shafidiya "smelled and observed people smoking marijuana outside of [Onyxx Lounge]." (Id. ¶ 64.) Shafidiya then drove by the lounge a second time and told the individuals to go inside. (Id.)

Shafidiya ultimately decided to enter the premises. (Id. ¶ 63.) She entered Onyxx Lounge at approximately 10:00 or 11:00 PM, and was at some point that night joined by six other NYPD officers.¹¹ (Id.; Pl. Resp. ¶ 63.) Defendants assert that Shafidiya and the officers entered the lounge to "inform who[m]ever was in charge about the civil complaints," "request that they tell their patrons to please stay inside in order to prevent future complaints," and "perform a business inspection while [Shafidiya and the officers] were there . . . ." (Defs. 56.1 ¶ 67.) Plaintiff contends that Shafidiya and the officers entered Onyxx Lounge "in bad faith to harm [Plaintiff] and her patrons." (Pl. Resp. ¶ 67.)

While inside, Shafidiya inspected several of Plaintiff's licenses and asked that Plaintiff keep her patrons inside in order to avoid further complaints. (Defs. 56.1 ¶¶ 67-68.) Defendants assert that Shafidiya observed younger-looking patrons consuming alcohol and asked to see their identification. (Id. ¶ 70.) Defendants further assert that although "[o]fficers did encounterviolations of underage drinking,"¹² Shafidiya "used her discretion" and did not "take any enforcement measures" or "document any of the violations observed." (Id.) Plaintiff contends that Defendants have no evidence that she permitted underage patrons in Onyxx Lounge, permitted her bartenders to serve underage patrons, or had any conversation with Shafidiya about underage drinking. (Pl. Resp. ¶ 70.)

Shafidiya did not issue any summonses, and did not observe the other officers issuing summonses or arresting any patrons. (Defs. 56.1 ¶ 71.)

3. September 29, 2012 incidents, including Plaintiff's arrest

On the night of September 29, 2012,¹³ Plaintiff rented out Onyxx Lounge for a promotional event with a live DJ. (Id. ¶ 72.) Officers Larosa and Leguernic responded to a "radio run" for three males seen smoking marijuana and urinating on the sidewalk outside the lounge. (Id. ¶ 74.) Plaintiff believes the officers came to Onyxx Lounge because someone called the police. (Id. ¶ 77.)

The officers arrived at Onyxx Lounge sometime between 10:00 and 11:30 PM. (Id. ¶ 73.) Upon arriving, Larosa stopped and frisked three African-American males outside Onyxx Lounge who fit the description provided on the radio run. (Id. ¶ 76.) The officers did not find any evidence of marijuana. (Pl. 56.1 ¶ 35.) When Plaintiff observed the interactions on the sidewalkoutside the lounge, she confronted the officers over what she believed to be an illegal search, (id. ¶ 37), and explained that she was the owner of Onyxx Lounge, (Defs. 56.1 ¶ 78). Larosa informed Plaintiff that there had been a radio call for that location. (Id. ¶ 79.) The officers wrote summonses for "certain of the individuals on the sidewalk" and left the vicinity. (Id. ¶¶ 80-81.)

At approximately 12:30 or 12:45 AM, Starrantino, Larosa, Leguernic, and other officers¹⁴ returned to the premises in response to 911 calls "complaining of conditions at [Onyxx Lounge]." (Id. ¶¶ 81, 85.) Defendants contend that the officers arrived to find a "crowd of patrons" participating in a photoshoot on the sidewalk. (Id. ¶ 86.) Plaintiff contends that the officers "observed only a couple of people" outside the lounge. (Pl. Resp. ¶...