Zarkower v. City of N.Y.

Citation461 F.Supp.3d 31
Decision Date21 May 2020
Docket Number19-cv-3843 (ARR) (RLM)
Parties Jonathan ZARKOWER, Plaintiff, v. CITY OF NEW YORK, Peter Fortune, Salvatore Dimaggio, Andrew Chin, Pablo Dejesus, and John and Jane Does 1–50, Defendants.
CourtU.S. District Court — Eastern District of New York

Lissa Strata Green-Stark, Brett H. Klein, Brett H. Klein Esq. PLLC, New York, NY, for Plaintiff.

Carolyn Kay Depoian, New York City Law Department, New York, NY, for Defendants.

OPINION & ORDER

ROSS, United States District Judge:

Plaintiff, Jonathan Zarkower, brings this 42 U.S.C. § 1983 action alleging that he was unconstitutionally detained by police officers Salvatore Dimaggio, Andrew Chin, and Pablo Dejesus under the supervision of Captain Peter Fortune. He further claims that his detention occurred pursuant to an illegal policy, practice, or custom of the New York Police Department ("NYPD") promulgated and implemented by Peter Fortune and other unknown individuals. According to the complaint, Zarkower was arrested, taken to the precinct, issued a Desk Appearance Ticket ("DAT") authorizing his release, and then returned to a cell for another five hours for the sole purpose of being questioned by a detective about unrelated crimes committed by other people. The individual defendants Peter Fortune, Salvatore Dimaggio, Andrew Chin and Pablo Dejesus move to dismiss the action for failure to state a claim. The defendants argue that they are entitled to qualified immunity because the alleged conduct does not violate a clearly established right. I disagree. The complaint alleges an obvious violation of the Fourth Amendment right to be free from unreasonable detention. Thus, the defendants’ motion is denied.

BACKGROUND

On November 11, 2016 at 2:41 a.m., Zarkower was randomly stopped at checkpoint in Queens. Am. Compl. ¶ 14, ECF No. 13. He was arrested because his license had been suspended due to an unpaid fine. Id. ¶¶ 15–16. The arresting officer took him to the 114th Precinct, where his arrest was processed by defendant Salvatore Dimaggio, with assistance and under the supervision of defendant Andrew Chin. Id. ¶¶ 16–17. At 4:38 a.m. Dimaggio issued a desk appearance ticket ("DAT") to the plaintiff. Id. ¶ 18. A DAT is "an appearance ticket issued in lieu of detention, at the direction of a desk officer, for misdemeanors, violations, and certain Class ‘E’ felonies[.]" New York Police Department Patrol Guide ("NYPD PG") Pro. No. 208-27, available at https://www1.nyc.gov/assets/nypd/downloads/pdf/analysis_and_planning/patrol_guide/208-27-dat.pdf; see also N.Y. Crim. Proc. Law § 140.20(2).

After the 4:38 a.m. issuance of the DAT, defendants Chin and Dimaggio continued to detain Zarkower in a cell at the 114th Precinct for approximately five hours. Id. ¶¶ 19, 21. Dimaggio told the plaintiff that the he was being held so that he could be questioned by a detective who came on duty in the morning. Id. ¶ 20. At 9:30 a.m., Zarkower was taken out of his cell to meet with Detective Pablo Dejesus. Id. at 21. Dejesus questioned Zarkower for five minutes about "whether he knew about crimes in the neighborhood, such as break-ins and assaults, and whether plaintiff had guns in his home." Id. After Zarkower denied any knowledge, he was released at 9:45 am. Id. ¶¶ 21–22.

NYPD's Patrol Guide Procedure No. 210-18entitled "Debriefing of Prisoners" describes a procedure for questioning arrestees about unrelated crimes. The stated purpose of the policy is "[t]o provide a central repository of criminal intelligence received from prisoners and improve communications and sharing of information among Department units." NYPD PG 210-18 at 1, Depoian Decl., Ex. C, ECF No. 25-3. The Scope of the policy is as follows:

All prisoners in custody of this Department and all new arrestees must be debriefed by a member of the service. For the purposes of this procedure, the debriefing member of the service may be an investigator from the Detective Bureau, a Field Intelligence Officer (FIO), Anti-Crime/Street Narcotics Enforcement Unit (SNEU) supervisor, desk officer, etc. Police officers will not normally conduct debriefings.

Id. A positive debriefing is described as:

Specific information received from a prisoner during the course of an interview regarding crime, criminal activity, or evidence related to a crime that is not related to the current arrest charges against the prisoner. For the purpose of this definition, a prisoner is to include new arrestees, and parolees, probationers, and inmates in custody.

Id.

Plaintiff alleges he is one of many individuals detained pursuant to this New York City policy, practice or custom of detaining persons who have been cleared for release on a DAT, for the sole purpose of unrelated debriefing. Id. ¶¶ 36–37. He brings this lawsuit on his own behalf and on behalf of this purported class. Id. ¶ 1.

Zarkower alleges four causes of action under § 1983. His first and second causes of action allege that his detention was excessive in violation of his constitutional rights. Id. ¶¶ 43–48. His third cause of action alleges supervisory liability for this constitutional violation against Fortune and John/Jane Does. Id. ¶¶ 49–51. His fourth cause of action alleges municipal liability against the city of New York. Id. ¶¶ 52–57. The individual defendants bring this motion to dismiss the first three causes of action on the basis of qualified immunity.

DISCUSSION
I. Motion to Dismiss

On a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the court must accept all factual allegations in the complaint as true and must draw all reasonable inferences in favor of the non-moving party. Lundy v. Catholic Health Sys. of Long Island Inc. , 711 F.3d 106, 113 (2d Cir. 2013) (citing Holmes v. Grubman , 568 F.3d 329, 335 (2d Cir. 2009) ). Thus, in deciding defendant's motion to dismiss, the court must accept the facts alleged in plaintiff's amended complaint as true. The complaint's allegations "must be enough to raise a right to relief above the speculative level[.]" Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Only "a plausible claim for relief survives a motion to dismiss." LaFaro v. N.Y. Cardiothoracic Grp., PLLC , 570 F.3d 471, 476 (2d Cir. 2009) (citing Ashcroft v. Iqbal , 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ). Courts "are not bound to accept as true a legal conclusion couched as a factual allegation[.]" Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ).

A qualified immunity defense is often a " ‘mismatch’ " for a motion to dismiss and a " ‘bad ground of dismissal.’ " See Barnett v. Mount Vernon Police Dep't , 523 F. App'x 811, 813 (2d Cir. 2013) (summary order) (quoting McKenna v. Wright , 386 F. 3d 432, 436 (2d Cir. 2004) ). However, a qualified immunity defense is an appropriate ground for dismissal when "entitlement to qualified immunity can be established ‘based [solely] on facts appearing on the face of the complaint.’ " Id. at 813 (quoting McKenna v. Wright , 386 F. 3d at 436 ).

II. Qualified Immunity

"A police officer is entitled to qualified immunity from liability for his discretionary actions if either (1) his conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known, or (2) it was objectively reasonable for him to believe that his actions were lawful at the time of the challenged act." Cerrone v. Brown , 246 F.3d 194, 199 (2d Cir. 2001) (internal citations and quotation marks omitted).

A. Clearly Established Law

"A government official's conduct violates clearly established law when, at the time of the challenged conduct, [t]he contours of [a] right [are] sufficiently clear’ that every ‘reasonable official would [have understood] that what he is doing violates that right.’ " Ashcroft v. al-Kidd , 563 U.S. 731, 741, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) (quoting Anderson v. Creighton , 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987) ). To meet this standard, the plaintiff must demonstrate "cases of controlling authority in [the] jurisdiction at the time of the incident" or at least "a consensus of cases of persuasive authority[.]" Id. at 746, 131 S.Ct. 2074 (Kennedy, J., concurring) (citing Wilson v. Layne , 526 U.S. 603, 617, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999) ). In a typical case, the right at issue should be defined with specificity, rather than at "a high level of generality." Ashcroft , 563 U.S. at 742, 131 S.Ct. 2074 ; see also Mullenix v. Luna , 577 U.S. 7, 136 S. Ct. 305, 308, 193 L.Ed.2d 255 (2015) ("[S]pecificity is especially important in the Fourth Amendment context, where the Court has recognized that [i]t is sometimes difficult for an officer to determine how the relevant legal doctrine ... will apply to the factual situation the officer confronts.’ " (quoting Saucier v. Katz 533 U.S. 194, 205, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) )).

However, the plaintiff need not provide a case "directly on point" addressing "the very action in question[.]" Ashcroft , 563 U.S. at 741, 131 S.Ct. 2074 ; Anderson , 483 U.S. at 640, 107 S.Ct. 3034. "General statements of the law are not inherently incapable of giving fair and clear warning" to officers. United States v. Lanier , 520 U.S. 259, 271, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997) (citing Anderson , 483 U.S. at 640, 107 S.Ct. 3034 ). The Supreme Court has recognized the existence of "the rare ‘obvious case,’ where the unlawfulness of the officer's conduct is sufficiently clear even though existing precedent does not address similar circumstances." D.C. v. Wesby, ––– U.S. ––––, 138 S. Ct. 577, 590, 199 L.Ed.2d 453 (2018) (quoting Brosseau v. Haugen , 543 U.S. 194, 199, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004) (per curiam)). "[O]fficials can still be on notice that their conduct violates established law even in novel factual circumstances." Hope v. Pelzer , 536 U.S. 730, 745, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002) (denying a qualified...

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