Pinter v. the City of N.Y.
| Decision Date | 13 September 2010 |
| Docket Number | No. 09 Civ. 7841 (SAS),09 Civ. 7841 (SAS) |
| Parties | Robert PINTER, Plaintiff, v. THE CITY OF NEW YORK, Mayor Michael Bloomberg, Police Commissioner Raymond Kelly, Director of the Office of Special Enforcement Shari C. Hyman, New York City Police Chief Joseph Esposito, Chief Anthony Izzo, Deputy Chief Brian Conroy, Assistant Chief Raymond Diaz or "John Smith", Captain "Joe" Braille, Undercover Police Officer # 31107, Detective Jessica Sterling, Sergeant Michael Madison, Detective Michael Michilena, Detective Sandra Dailey, and Officers "John Does", individually and in their official capacities, Defendants. |
| Court | U.S. District Court — Southern District of New York |
James I. Meyerson, New York City, for Plaintiff.
Tonya Jenerette, Senior Counsel, The City of New York Law Department, New York City, for Defendants.
I. INTRODUCTION
On October 10, 2008, detectives from the Manhattan South Vice Enforcement Squad of the New York City Police Department ("NYPD") arrested Robert Pinter for prostitution, following an encounter between Pinter and Undercover Officer ("UC") 31107 at the Blue Door Video Store ("Blue Door"). At the end of a twenty-three hour post-arrest detention, and after having been awake for thirty-six hours, Pinter pled guilty to the lesser, non-criminal charge of disorderly conduct in exchange for a conditional discharge. Several months later, the state criminal court granted Pinter's motion to vacate his conviction and dismissed the accusatory instrument-actions the District Attorney's Office of New York County ("DANY") did not oppose.
In its response to Pinter's motion to vacate, DANY explained:
It is unlikely that [Pinter] went to the location of the occurrence with the intent to solicit money for sex, as supported by his age (52 upon arrest), lack of prior record for prostitution-related offenses, and overall law-abiding history. Furthermore, the People recently dismissed three pending cases with circumstances similar to those of the case at bar because the People concluded that it would be difficult to prove the guilt of defendants in those cases beyond a reasonable doubt at trial.1
Thus, though DANY stated it believed there was probable cause for Pinter's arrest, it did not oppose vacatur and dismissal on fundamental fairness grounds.2
Pinter now brings federal and New York constitutional claims against the City of New York (the "City"), municipal officials and personnel, the officers involved in his arrest, and those officers' superiors.3 Specifically, Pinter asserts that he was falsely arrested, maliciously prosecuted, subjectedto malicious abuse of the criminal process, discriminated against because of his sexual orientation, and denied his right to associate with Blue Door.4 Pinter contends that these constitutional violations were proximately caused by "a municipal policy or practice or procedure [that] was promulgated and implemented for the collateral purpose of creating a data base of arrests to be utilized as evidence in independent civil nuisance abatement proceedings against, among others, Blue Door...."5
Pinter also alleges excessive force and unreasonable detention related to his being tightly rear handcuffed for a prolonged amount of time.6 Pinter contends that these constitutional violations were proximately caused by "a municipal policy and practice [that] caused him to be driven around the City for [a] four to five hour period while being rear handcuffed rather than being delivered to a [NYPD] precinct for post arrest processing when and where he would have been unhandcuffed within a reasonable period of time after his arrest."7 According to Pinter, the City is the real party in interest in each of his claims.8
Despite the absence of any discovery other than Pinter's deposition,9 defendants seek summary judgment on two principal grounds: (1) defendant Shari Hyman is entitled to absolute immunity as the official who initiated the nuisance abatement proceedings against Blue Door; and (2) because probable cause existed for Pinter's arrest, even on Pinter's version of the facts, the arresting officers and their superiors are entitled to qualified immunity on Pinter's false arrest claim.10 Additionally, defendants argue that, absent an underlying constitutional violation, Pinter's corresponding municipal liability claim must fail.
For the purposes of this motion, Pinter's factual allegations are accepted as true. Defendants' motion is granted as to Hyman because Pinter's allegations do not establish that Hyman acted in an investigative or administrative role-rather than in performance of her quasi-prosecutorial functions-when she developed and implementedthe alleged policy of racking up false arrests to support the City's nuisance abatement litigation against businesses frequented by gay men. Defendants' motion is denied in all other respects because Pinter has alleged a violation of the clearly established right to be free from arrest without probable cause.
Under Pinter's version of the events and drawing all reasonable inferences in his favor, UC 31107 initiated contact with Pinter and the men agreed to consensual, gratuitous sex. Only after making that agreement and taking steps-literally-in furtherance of it, did UC 31107 offer to pay Pinter fifty dollars to permit him to perform oral sex on Pinter. Pinter did not explicitly reject or accept the cash offer; rather, he remained silent. Though Pinter and the undercover continued speaking flirtatiously and walking toward the location where the sex act was to occur, this conduct cannot be understood apart from their prior agreement for sex gratis and the steps both men took toward consummating that arrangement. Given the totality of the circumstances, UC 31107 lacked probable cause to believe that Pinter had accepted a fee for professional services.
II. BACKGROUND 11
On his way home from a full day's work on October 10, 2008, Pinter stopped at Blue Door to pick up a video.12 Blue Door is located at 87 First Avenue between Fifth and Sixth Streets in Manhattan-a few blocks from Pinter's home. 13 Blue Door rents and sells both general entertainment and adult films.14
Upon arriving at Blue Door at 7:00 p.m., Pinter proceeded to the adult section in the back of the store.15 Vertical blinds separate the adult section from the general entertainment section.16 As Pinter perused the kiosks in search of a video, he overheard a conversation between two men.17 He looked into the aisle, and saw an older, tall man engaged in conversation with an attractive, younger man.18 The younger man had his cell phone open and appeared to be inputting the older man's telephone number.19 Pinter continued shopping.20
A few moments later, Pinter turned to see the same younger man staring at him from the end of the aisle.21 Unbeknownst to Pinter, the younger man was an undercover police officer-UC 31107.22 The olderman with whom UC 31107 had been speaking was gone.23
Pinter and UC 31107 made eye contact, UC 31107 smiled at Pinter, and Pinter smiled back.24 UC 31107 took a few steps toward Pinter. 25 Pinter then took a few steps toward UC 31107.26 At that point, UC 31107 engaged Pinter in a flirtation and "suggested to [Pinter] that he was interested in engaging in a consensual sexual activity."27 Specifically, UC 31107 complimented Pinter on his good looks and asked Pinter: "[W]hat do you like to do?"28 Pinter responded: "[O]h, thank you, you're good looking too[,]"29 and noted he both enjoyed-and was good at- fellatio.30 UC 31107 told Pinter that he also enjoyed oral sex, but was nervous about doing it in the store.31 UC 31107 told Pinter that his car was parked nearby.32 "No mention of any money whatsoever was made at the time when [UC 31107] suggested that he and [Pinter] engage[ ] in a consensual sexual activity."33 The undercover "was the initiator of the suggested activity."34
Pinter did not say anything but, instead, took a step toward the exit, expecting UC 31107 to follow him.35 UC 31107 took a step toward the exit.36 No words were exchanged during the "few seconds"37 that the men were walking together toward the exit.38 Under case law described below, this conduct is sufficient to infer that Pinter and UC 31107 reached an agreement for consensual, gratuitous sex and took steps in furtherance of that agreement.39 Further to that point, I note that during the "few seconds" that elapsed between the men's conversation in the back of the store and their reaching the exit, Pinter obviously did not rent or purchase the video for which he had been searching.
At the door but before leaving the store, UC 31107 said to Pinter: "I want to pay you $50 to suck your dick."40 Pinter did not say anything. 41 Pinter thought that UC 31107's offer was "suspicious" and "odd." 42 It also struck Pinter as strange that a younger, attractive man would want to pay him for sex.43 At that point, Pinter decidedthat "[a]ny possibility of really engaging in anything with [UC 31107] was over[,]" though Pinter did not verbally communicate that decision. 44
Upon exiting Blue Door together, UC 31107 motioned toward the east side of First Avenue and said " my car is parked over there[,]"45 which was also in the direction of Pinter's apartment.46 The men then proceeded to walk together north on First Avenue toward Sixth Street-toward UC 31107's car and Pinter's apartment.47 As they walked, they engaged in a conversation about their penis sizes and playful banter about each other's age. 48
Pinter and UC 31107 walked together to the corner of Sixth Street, crossed First Avenue heading east, and began walking east on Sixth Street.49 From Blue Door, they covered a distance of fifty to one-hundred twenty-five feet.50 During that time, Pinter felt free to walk away from UC 31107, but consciously decided not to do so.51 Pinter never told UC 31107 that he did not wish to have oral sex with him or to receive money in exchange...
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Pinter v. City of N.Y.
...for prostitution for the same reasons that DANY chose not to oppose Pinter's motion to vacate, and for other reasons explained at length in Pinter I. On November 18, 2011, the Second Circuit reversed, holding that the individual defendants were entitled to qualified immunity from Pinter's f......
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...Consultants, Inc. v. Gluck, No. 11–CV–3951 (MKB), 2012 WL 4364490, at *4–5 (E.D.N.Y. Sept. 25, 2012) (citing Pinter v. City of New York, 710 F.Supp.2d 408, 419–20 (S.D.N.Y.2010), rev'd on other grounds, 448 Fed.Appx. 99 (2d Cir.2011) ); accord Cooper v. Parrish, 203 F.3d 937 (6th Cir.2000) ......
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...Inc. v. Gluck, No. 11-CV-3951 (MKB), 2012 WL 4364490, at *4-5 (E.D.N.Y. Sept. 25, 2012) (citing Pinter v. City of New York, 710 F. Supp. 2d 408, 419-20 (S.D.N.Y. 2010), rev'd on other grounds, 448 F. App'x 99 (2d. Cir. 2011)); accord Cooper v. Parrish, 203 F.3d 937 (6th Cir. 2000) (holding ......
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Pinter v. City of N.Y., 09 Civ. 7841 (SAS)
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