Vasquez v. McPherson, 99 CV 10537(CM).

• Decision Date: 23 September 2003
• Docket Number: No. 99 CV 10537(CM).,99 CV 10537(CM).
• Citation: 285 F.Supp.2d 334
• Parties: Flor VASQUEZ, Plaintiffs, v. T.W. McPHERSON, New York State Trooper, New York State Trooper "John Doe No. 1," New York State Trooper "John Doe No. 2," New York State Trooper "John Doe No. 3," New York State Police Lt. Louis Weber, New York State Police Sgt. Rodney Rogers, Defendant's.
• Court: U.S. District Court — Southern District of New York

Page 334

285 F.Supp.2d 334

Flor VASQUEZ, Plaintiffs, v. T.W. McPHERSON, New York State Trooper, New York State Trooper "John Doe No. 1," New York State Trooper "John Doe No. 2," New York State Trooper "John Doe No. 3," New York State Police Lt. Louis Weber, New York State Police Sgt. Rodney Rogers, Defendant's.

No. 99 CV 10537(CM).

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

September 23, 2003.

Philip Dale Russell, Esq., Russell & Wells, Greenwich, CT, for plaintiff.

Nicola N. Grey, AAG, Office of the New York State Attorney General, New York City, for defendant.

DECISION GRANTING DEFENDANT McPHERSON'S MOTION FOR PARTIAL SUMMARY JUDGMENT, DENYING PLAINTIFF'S MOTION TO EXCLUDE EVIDENCE AND OMNIBUS MOTION FOR PRECLUSION, AND DISMISSING COMPLAINT AS TO WEBER, ROGERS AND ALL JOHN DOE DEFENDANTS

McMAHON, District Judge.

This is an action commenced pursuant to 42 U.S.C. § 1983. Plaintiff, Flor Vasquez, claims that on October 30, 1998, in the Town of Port Chester, she was falsely arrested and subjected to excessive force by members of the New York State Police. She also claims that she was thereafter maliciously prosecuted.

Trooper Duane McPherson, Sergeant Rodney Rogers and Lieutenant Louis Weber, the three named defendants, move this Court for an order pursuant to Rule 56 of the Federal Rules of Civil Procedure, granting summary judgment in their favor, and dismissing the false arrest and malicious prosecution claims. McPherson has not moved for summary judgment on the excessive force claim, which is directed solely at him.

Plaintiff does not oppose summary judgment as to Lieutenant Weber and Sergeant Rogers. Indeed, plaintiff specifically withdraws her action as against these defendants. (See Plaintiff's Rule 56.1 statement). Accordingly, the complaint is dismissed as to defendants Weber and Rogers. Because the time for amending the complaint to add "John Doe" defendants has long since past, the complaint is dismissed as to all John Does.

Plaintiff does, however, oppose McPherson's motion for summary judgment on the false arrest and malicious prosecution claims. As part of her response, she asks the Court to exclude from its consideration Defendant's moving exhibits A and C, and paragraph 9 of McPherson's affidavit. Plaintiff also seeks an order "barring defendant from introducing any evidence [at trial] regarding the time that McPherson or the New York State Police accessed the New York State Police Information Network (N.Y.SPIN) and National Criminal Information Center (NCIC) computers prior to 1659 hours (4:59 p.m.) on October 3, 1998 in order to obtain warrant information regarding plaintiff." (See Plaintiff's Omnibus motion at 1). Plaintiff states that, if the Court denies her motion to exclude evidence, she "will withdraw her action and seek alternative relief in the nature of sanctions."

The Facts

On October 3, 1998 at approximately 3:45 p.m., Flor Vasquez was driving her car, a 1980 Volvo station wagon west bound on Route 287 in the vicinity of Port Chester, New York. As Vasquez was driving, she felt something in her eye and pulled over to the side of the road to rest and see if her eye would feel better. (Vasquez Aff. at ¶ 11).

On October 30, 1998, defendant McPherson was employed as a New York State Trooper at the State Police Barracks in Tarrytown, New York. At approximately 4:00 p.m. on that day, while driving on patrol on Interstate 287, McPherson observed a green Volvo station wagon bearing State of New York plates U225TB, parked on the right shoulder of the roadway in the Village of Port Chester, New York. (McPherson Aff. ¶ 4). McPherson pulled his vehicle onto the shoulder and parked directly behind the Volvo to further investigate. Id. at ¶ 5.

McPherson approached the vehicle on the driver's side and observed a white female (later identified as plaintiff) who appeared to be asleep in the driver's seat. Id. at ¶ 4. He tapped on the window to get plaintiff's attention. When plaintiff opened her eyes, McPherson noticed that they were red — which is not inconsistent with plaintiff's testimony that she pulled her car off the road because something was bothering her eye. (Vasquez Aff. at ¶ 5).

According to Vasquez, McPherson started to look around her car in a very suspicious way. Id. at ¶ 6. He also asked in a "forceful tone" for Vasquez's licence. After Vasquez gave McPherson her licence, the Trooper returned to his car. Id.

A few minutes later, McPherson returned to the side of Vasqez's car and demanded her registration. Id. at ¶ 8. Vasquez asked McPherson what happened, to which McPherson replied, "Don't ask me questions. Give me your registration." Id. When Vasquez finally found her registration in her wallet, McPherson had already returned to his car. Id. at ¶ 9. Vasquez got out of her car and began to walk toward McPherson's car so she could provide him with her registration. McPherson left his car at that point and met Vasquez before she could reached his car. She again asked, "What happened?" After Vasquez handed McPherson her registration he told her that he was going to arrest her. Incredulous, Vasquez asked why she was being arrested. McPherson told her not to ask questions, and that he would tell her later. In response to that statement, Vasquez claims she told McPherson, "If you're going to arrest me I could sue you. You don't have any reason." Id. at ¶ 9.

Vasquez alleges that McPherson proceeded to hit her in the chest, hit her in the leg and throw her to the ground face first. He then pulled her by the hair, rolled her over, put his foot on her chest and handcuffed her. Id. at ¶ 11. After she was handcuffed, McPherson pulled her up by the hair and grabbed her arm and threw her in the front seat of his police vehicle. Id. Once Vasquez was in the police vehicle, McPherson allegedly searched the console and underneath the carpet of the car. Id.

McPherson claims that, when he first approached Vasquez, he asked her if she was okay, to which plaintiff purportedly replied, "Yes, I was just resting. Why do you ask?" McPherson says he believed the plaintiff had a Spanish accent and appeared to be irritated by his question. He told her that he wanted to ensure that she was safe and not in need of assistance. Id. at ¶ 7. When he asked plaintiff for her driver's license and registration, she became argumentative, hostile and defensive and insisted that she had done nothing wrong. Id. at ¶ 8.

After several requests, plaintiff produced a New York State drivers license with the name Flor Vasquez, DOB 9/20/63, 340 King St. Port Chester, New York 10573. McPherson returned to his car and radioed New York dispatch for a Department of Motor Vehicle ("DMV") inquiry. Headquarters advised him that plaintiff's information came back as a "file 5 association hit." According to McPherson, the common factors of a "file 5" in this case were the same for the last name, date of birth, height, hair, and eye color. He was further advised that the warrant was issued for immigration violations by the United States Border Patrol in Marfa, Texas, and that the driver's license was valid. Id. at ¶ 9; Def's. Exh. A and C. This is the evidence that plaintiff seeks to have excluded.

Vasquez approached McPherson's vehicle with her registration. McPherson began to ask her questions in order to gather sufficient information to either confirm or deny the "hit." Plaintiff's tone of voice was loud, hostile, and argumentative and she insisted that she had done no wrong. Id. at ¶ 10.

McPherson advised her that if she could not provide information to establish her identity, she would be taken into custody. At that point, plaintiff shouted, "You arrest me, I shoot you, I shoot you." Id. at ¶ 11.

McPherson states that he became concerned for his personal safety and placed plaintiff under arrest and attempted to handcuff her. Plaintiff immediately resisted and began to struggle. During the struggle, plaintiff fell to the ground next to the passenger side of his vehicle. She fell face up and started to kick McPherson. McPherson immediately placed handcuffs on Vasquez, and placed her in the front passenger seat of his vehicle and applied the seatbelt. Id. at ¶ 12. While in the Trooper vehicle, Vasquez was kicking the radio unit and screaming. McPherson advised Headquarters of the incident and requested back-up. Id. at ¶ 13.

When another Trooper arrived on the scene, plaintiff was re-handcuffed with her hands behind her back. McPherson performed a cursory search of her vehicle and contacted a tow truck company to tow plaintiff's vehicle. Id. at ¶ 14. McPherson advised plaintiff of her Miranda rights and transported her to the State Police Barracks in Tarrytown for processing. Id. at ¶ 15.

Back at the Barracks, McPherson and Sgt. Malaterra questioned plaintiff. Plaintiff stated that she is a citizen of Colombia and came to the United States through the Miami Port. She stated that she had never been in Texas. Indeed, plaintiff proved not to be the person wanted by the Border Patrol in Marfa, Texas.

Plaintiff was ultimately charged with resisting arrest and disorderly conduct. Id. at ¶ 16.

While Plaintiff was at the police barracks, she was allowed to use the bathroom and telephone. Plaintiff contacted her husband, Ramon Vasquez. McPherson spoke to plaintiff's husband and advised him of the procedures to follow in order to obtain her release. Id. at ¶ 17. McPherson transported plaintiff to the Village of Port Chester Court for arraignment before Justice Peter Sisco. Plaintiff was arraigned. She posted $500 bail and was released. Id. at ¶ 18. Plaintiff's criminal case ended when she accepted an adjournment in contemplation of dismissal. (Vasquez Dep. at 74-75).

Plaintiff's Motion to Exclude and for Sanctions

Plaintiff does not refute the arguments raised in defendants' summary judgment motion. Instead, she has filed motions asking the Court to: (1) exclude from its consideration defendants' exhibit A (computer...