Fourth Amendment – Improper Stop, Unlawful Detention

by Team MartinColin | May 14, 2016 | Civil Rights / False Arrest, Personal Injury |

Civil Rights Law – 42 U.S.C. 1983 – Fourth Amendment – Search and Seizure – May 2016

Part 3 of 3

Here is the decision and order of the federal court.  The facts were set forth in our first post in the series (read here…).  The legal arguments were set forth in our second post in the series (read here…)  This is our final post in this sample of federal civil rights litigation arising out of a false arrest by police officers.  Here is that portion of the decision and order of the federal court judge which declared that the police action constituted false arrest and unlawful detention of our client.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
——————————————————————-X

FERNANDO COLON,

               Plaintiff,

     -against-                                          DECISION AND ORDER

CITY OF NEW YORK, et al.,

               Defendants.
——————————————————————-X

STANDARD

A court reviews motions for judgment on the pleadings pursuant to Rule12(c) of the Federal Rules of Civil Procedure under the same standard as motions to dismiss pursuant to Rule 12(b)(6). Bank of N.Y. v. First Millennium, Inc., 607 F.3d 905, 922 (2d Cir. 2010).  “To survive a Rule 12(c) motion, the complaint ‘must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.’”  Id. (quoting Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir. 2010)).  The Court accepts as true all well-pleaded factual allegations and draws all reasonable inferences in favor of the nonmoving party. See L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 429 (2d Cir. 2011).  A complaint does not “suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (alteration in original) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)).  Rule 8 of the Federal Rules of Civil Procedure “requires factual allegations that are sufficient to ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Anderson News, L.L.C. v. Am. Media, Inc., 680 F.3d 162, 182 (2d Cir. 2012), cert. denied, 133 S. Ct. 846 (2013) (quoting Twombly, 550 U.S. at 555).

The standard for summary judgment is well established. Summary judgment is appropriate where the record before the court establishes that there is no “genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).  The Court must construe the evidence and draw all reasonable inferences in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); In re “Agent Orange” Prod. Liab. Litig., 517 F.3d 76, 87 (2d Cir. 2008).  A motion for summary judgment should be denied “if the evidence is such that a reasonable jury could return a verdict” in favor of the nonmoving party.  NetJets Aviation, Inc. v. LHC Commc’ns, LLC, 537 F.3d 168, 178-79 (2d Cir. 2008).  Summary judgment is warranted if a party “fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.”  Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

DISCUSSION

I.                False Arrest, Detention & Confinement (Counts I, II & V)

All parties move for summary judgment on Plaintiff’s false arrest, detention and confinement claims.  Summary judgment is granted for Plaintiff with respect to his detention prior to Defendant Tisdale’s discovery of marijuana, and for Defendants with respect to Plaintiff’s detention thereafter.

A.             Plaintiff’s Detention Before the Discovery of Marijuana

Defendant Tisdale’s conduct in handcuffing and detaining Plaintiff before discovering marijuana violated the Fourth and Fourteenth Amendments and is not entitled to qualified immunity.

In the absence of probable cause to arrest, “Terry v. Ohio [, 392 U.S. 1 (1968),] and Michigan v. Summers [, 452 U.S. 692 (1981),] provide distinct standards for reasonable stops . . . .” United States v. Bailey, 743 F.3d 322, 334 (2d Cir. 2014) (“Bailey V”).  A Terry stop “require[s] reasonable suspicion of criminal conduct beyond proximity to a location of suspected crime,” and a Summers detention “require[s] spatial proximity to the premises to be searched without regard to reasonable suspicion.” Id.

1.     Terry Analysis

A Terry stop is justified if an officer “reasonably suspects that the person apprehended is committing or has committed a criminal offense.” Arizona v. Johnson, 555 U.S. 323, 326 (2009).  Reasonable suspicion requires more than a “hunch.”  Terry, 392 U.S. at 27.  It demands “specific and articulable facts which, taken together with rational inferences from those facts,” id. at 21, provide detaining officers with a “particularized and objective basis for suspecting wrongdoing,” United States v. Arvizu, 534 U.S. 266, 273 (2002) (internal quotation marks omitted).

Even viewing the record in the light most favorable to Defendants, there could not have been the reasonable suspicion necessary to stop Plaintiff pursuant to Terry in the first instance.  First, when Plaintiff was initially detained, the only fact connecting him to any possible criminal activity was that Evans, the person associated with the apartment being searched, had just entered the minivan in which Plaintiff was sitting.  However, Defendant Tisdale admitted that he knew, upon approaching the vehicle, that the individual seated in the back was the person connected to the apartment being searched, and therefore that Plaintiff was not that person.

Defendant Tisdale also admitted that he did not believe that Evans was involved in illegal activity at the time.  In light of these admissions, any nexus between Plaintiff and Evans was insufficient to permit Defendant Tisdale to order Plaintiff out of a parked vehicle at gunpoint and immediately handcuff him.  Although “[t]he [reasonable suspicion] standard is not high,” Bailey V, 743 F.3d at 332 (internal quotation marks omitted), it is not satisfied on these facts, and Plaintiff’s detention cannot be justified by Terry.

2.     Summers Analysis

Under Summers, a detention incident to search is constitutional only if “limit[ed] . . . to the area in which an occupant poses a real threat to the safe and efficient execution of a search warrant.” Bailey v. United States, 133 S. Ct. 1031, 1042 (2013) (“Bailey IV”).  In determining whether an occupant was lawfully detained within such “immediate vicinity” of the premises to be searched, courts may consider “the lawful limits of the premises, whether the occupant was within the line of sight of his dwelling, the ease of reentry from the occupant’s location, and other relevant factors.” Id.  Here, nothing in the record suggests – and Defendants do not claim – that Plaintiff was an occupant of the searched apartment at any relevant time, had any intention of entering it or otherwise had any connection to it.  Moreover, Plaintiff was inside a vehicle that was “[a]round the block” from the apartment according to Defendant Tisdale, not within the line of sight, and access to the apartment presumably would have required passage through at least one if not two doors.  These facts are far from satisfying the Summers standard, and could not have justified Plaintiff’s initial detention as effected incident to the search of the apartment.

3.               Qualified Immunity

Qualified immunity is an affirmative defense for which defendants have the burden of proof.  See Lore v. City of Syracuse, 670 F.3d 127, 149 (2d Cir. 2012).  An official sued under § 1983 is entitled to qualified immunity unless it is shown that the official violated a statutory or constitutional right that was clearly established at the time of the challenged conduct. See Ashcroft v. al–Kidd, 131 S. Ct. 2074, 2080 (2011).  A defendant cannot be said to have violated a clearly established right unless the right’s contours were sufficiently definite for any reasonable official in the defendant’s shoes to understand that he was violating it. Id. at 2083-84.  “In other words, existing precedent must have placed the statutory or constitutional question confronted by the official beyond debate.” Plumhoff v. Rickard, 134 S. Ct. 2012, 2023 (2014) (internal quotation marks omitted).  “[T]he salient question . . . is whether the state of the law at the time of an incident provided fair warning to the defendants that their alleged [conduct] was unconstitutional.” Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014) (alterations in original) (internal quotation marks omitted).  The “dispositive inquiry . . . is whether it would [have been] clear to a reasonable officer in the agents’ position that [their] conduct was unlawful in the situation [they] confronted.” Wood v. Moss, 134 S. Ct. 2056, 2059 (2014) (alterations in original) (internal quotation marks omitted).  “[I]f . . . officers of reasonable competence could disagree . . . , immunity should be recognized.” Hope v. Pelzer, 536 U.S. 730, 752 (2002) (internal quotation marks omitted).  Whether a clearly established right existed must be considered “in light of the specific context of the case, not as a broad general proposition.”  Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (internal quotation marks omitted).

Qualified immunity does not save Defendant Tisdale from liability for Plaintiff’s unlawful initial detention. First, as discussed above, the record contains no evidence tending to show that Defendant Tisdale had any individualized suspicion about Plaintiff, whether reasonable or unreasonable. Thus, there is no factual basis upon which to base a finding of qualified immunity for Defendant Tisdale under Terry.

Second, with respect to Summers, the relevant Supreme Court jurisprudence is grounded in the premise that those who may be subject to detentions incident to search are occupants of the searched premises.  452 U.S. at 701-05.  This occupancy nexus is relevant to each of the three law enforcement interests underpinning the Summers detention: (1) “minimizing the risk of harm to the officers” conducting the search, id. at 702; (2) “the orderly completion of the search,” which “may be facilitated if the occupants of the premises are present,” id. at 703; and (3) “preventing flight in the event that incriminating evidence is found,” id. at 702; see also Bailey IV, 133 S. Ct. at 1038-1041 (elaborating on the three law enforcement interests underpinning a Summers detention).  The Supreme Court has never departed from the occupancy requirement, including in its two cases revisiting Summers that had been decided at the time of Plaintiff’s 2011 detention. See Los Angeles Cnty. v. Rettele, 550 U.S. 609 (2007) (finding that the detention of individuals found on the premises at the time of the search was constitutional pursuant to Summers); Muehler v. Mena, 544 U.S. 93 (2005) (same).  Although some courts have found constitutional the detention of individuals who were leaving the premises to be searched, each case involved someone who had just occupied the premises when the officers arrived to execute a search.  See Summers, 452 U.S. at 693 & n.1 (upholding the detention of an individual as he exited the front door of the premises and descended the porch steps); see also United States v. Fullwood, 86 F.3d 27, 29-30 (2d Cir. 1996) (upholding the detention of an individual found outside the premises and about to enter his vehicle); United States v. Bailey, 468 F. Supp. 2d 373, 376 (E.D.N.Y. 2006) (“Bailey I”) (upholding the detention of two individuals after they exited the relevant premises and drove for one mile), aff’d, No. 06 Cr. 232, 2010 WL 277069 (E.D.N.Y. Jan. 19, 2010) (“Bailey II”), aff’d, 652 F.3d 197 (2d Cir. 2011), rev’d, 133 S. Ct. 1031, aff’d, 743 F.3d 322 (2d Cir. 2014). Even in Bailey, the case most heavily relied upon by Defendants on the qualified immunity issue,4 the district court stated that officers needed at minimum a “reasonable basis to believe that the person [to be detained] has just left or is about to enter the location to be searched.” Bailey II, 2010 WL 277069, at *14. Thus, in 2011, at the time of Plaintiff’s detention, the occupancy nexus was a clearly established prerequisite to the invocation of Summers.

Here, as discussed above, no evidence suggests that Defendant Tisdale believed or had grounds to believe that Plaintiff had any connection to the apartment that was being searched, let alone that Plaintiff had occupied or intended to occupy the apartment. In light of the clearly established requirement that detentions made pursuant to Summers be limited to the occupants of the premises to be searched, no reasonable officer could have believed that the detention of Plaintiff as he sat in a parked vehicle on another block was justified by Summers. Consequently, Defendant Tisdale is not entitled to qualified immunity under the Summers theory.

To the extent that Defendants could argue that Plaintiff’s initial detention was a reasonably necessary step to detaining Evans pursuant to Summers or Terry, that argument would fail. Even assuming that Defendant Tisdale is entitled to qualified immunity for the detention of Evans, that does not by itself justify the detention of Plaintiff. In United States v. Di Re, police arrested all three occupants of a car when a police informant in the backseat told the officers that the driver had sold him counterfeit coupons but said nothing about the passenger seated next to the driver. 332 U.S. 581, 583 (1948).  The Supreme Court ruled that the passenger’s arrest violated the Fourth Amendment because “[a]ny inference that everyone on the scene of a crime is a party to it must disappear if the Government informer singles out the guilty person.” Id. at 594; see also Ybarra v. Illinois, 444 U.S. 85, 91 (1979) (“[A] person’s mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person.”). Cf. Maryland v. Pringle, 540 U.S. 366, 374 (2003) (finding that police had probable cause to arrest Pringle and two other occupants of a car because “[n]o such singling out occurred in this case”). Likewise here, the confidential informant had singled out Evans alone, and Defendant Tisdale had no information about Plaintiff except that he was with Evans in the car. Because it would have been clear to a reasonable officer in Defendant Tisdale’s position that “merely . . . sitting in the suspect’s vehicle when officers approached,” United States v. Delossantos, 536 F.3d 155, 160 (2d Cir. 2008), “do[es] not, without more, amount to probable cause,” id. at n.4, Defendant Tisdale is not entitled to qualified immunity for Plaintiff’s initial detention, even assuming he would be entitled to qualified immunity for Evans’s detention.

In light of the foregoing, summary judgment is granted in favor of Plaintiff for his unlawful detention before Defendant Tisdale’s discovery of marijuana.

B.        Plaintiff’s Detention After the Discovery of Marijuana

Plaintiff’s claims for false arrest and unlawful detention and confinement (Counts I, II, V) must be analyzed separately for the period after the officers discovered marijuana in Plaintiff’s vehicle. Because probable cause existed for the arrest, summary judgment is granted to Defendants on Counts I, II and V for the period after the discovery.

“‘In analyzing § 1983 claims for unconstitutional false arrest, [courts generally look] to the law of the state in which the arrest occurred.’” Jaegly v. Couch, 439 F.3d 149, 151-52 (2d Cir. 2006) (quoting Davis v. Rodriguez, 364 F.3d 424, 433 (2d Cir. 2004)). In order to state a claim for false arrest or imprisonment under New York law, a plaintiff must show that: (1) the defendant intentionally confined the plaintiff; (2) the plaintiff was conscious of the confinement; (3) the plaintiff did not consent to the confinement; and (4) the confinement was not otherwise justified. See Posr v. Doherty, 944 F.2d 91, 97 (2d Cir. 1991).  Under New York law, “the existence of probable cause is an absolute defense to a false arrest claim.” Jaegly, 439 F.3d at 152.

“‘Probable cause to arrest exists when the arresting officer has knowledge or reasonably trustworthy information of facts and circumstances that are sufficient to warrant a person of reasonable caution in the belief that the person to be arrested has committed or is committing a crime.’”  Torraco v. Port Auth. of N.Y. & N.J., 615 F.3d 129, 139 (2d Cir. 2010) (quoting Escalera v. Lunn, 361 F.3d 737, 743 (2d Cir. 2004)). “The inquiry is limited to ‘whether the facts known by the arresting officer at the time of the arrest objectively provided probable cause to arrest.’”  Gonzalez v. City of Schenectady, 728 F.3d 149, 155 (2d Cir. 2013) (quoting Jaegly, 439 F.3d at 153).

There is no dispute that Defendant Tisdale ordered Plaintiff and two other individuals out of Plaintiff’s vehicle, in which Defendant Tisdale then discovered marijuana.  That fact alone provides probable cause for Plaintiff’s arrest. See Abreu v. Romero, 466 F. App’x 24, 26 (2d Cir. 2012) (finding, in a New York case, that probable cause to arrest existed after officers found two ounces of marijuana in the plaintiff’s bedroom).

Plaintiff argues that the charge for which he was arrested – unlawful possession of marijuana in violation of New York Penal Law 221.05 – does not authorize law enforcement officers to effect custodial arrests.  With respect to the § 1983 false arrest claim, the Supreme Court in Virginia v. Moore, 553 U.S. 164 (2008), rejected the same argument.  In that case, the appellant argued that he was unlawfully arrested for the misdemeanor of driving on a suspended license because state law did not authorize the arrest. Id. at 167.  The Supreme Court found that the arrest was made with probable cause and did not violate the Fourth Amendment, even if the arrest was impermissible under state law. Id. at 178.  The Court held that “state restrictions do not alter the Fourth Amendment’s protections,” and that to hold otherwise would cause the Fourth Amendment to “vary from place to place and from time to time . . . .” Id. at 176 (internal quotation marks omitted).  Moreover, contrary to Plaintiff’s position, New York law authorizes arrest for the unlawful possession of marijuana in violation of New York Penal Law 221.05.  Under New York Criminal Procedure Law § 140.10, “a police officer may arrest a person for: (a) [a]ny offense when he or she has reasonable cause to believe that such person has committed such offense in his or her presence.”  An “offense” under § 140.10 is defined by New York Penal Law § 10.00(1) as “conduct for which a sentence to a term of imprisonment or to a fine is provided by any law of this state or by any law, local law or ordinance of a political subdivision of this state . . . .” New York Penal Law § 221.05, under which Plaintiff was charged, expressly provides for punishment by a fine.  Plaintiff’s invocation of New York Criminal Procedure Law § 150.75 – requiring that “an appearance ticket shall promptly be issued and served upon” arrestees in connection with § 221.05 – does not change the fact that the unlawful possession of marijuana in violation of § 221.05 is an arrestable offense.  Consequently, Plaintiff’s argument fails with respect to his false arrest claims under both federal and state laws.

Plaintiff asks that the Court decline to follow Townes v. City of New York, in which the Second Circuit held that “[v]ictims of unreasonable searches or seizures may recover damages directly related to the invasion of their privacy . . . ; but such victims cannot be compensated for injuries that result from the discovery of incriminating evidence and consequent criminal prosecution” – i.e., that the “fruit of the poisonous tree” doctrine does not apply in § 1983 actions. 176 F.3d 138, 148 (2d Cir. 1999).  Townes remains binding law in this circuit.  Thus, even assuming that the search of the vehicle that led to the discovery of marijuana was illegal, Plaintiff cannot recover for his arrest on that ground because the arrest was made with probable cause.

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Decision Denying Dismissal of False Arrest Case – Sample

by Katherine Ortiz | Aug 21, 2015 | Civil Rights / False Arrest, Personal Injury |

August 2015:  This post is a demonstration of our transparency in the way we operate our business.

A sample decision from from a judge.  In this case, the judge refused the defendants’ request to dismiss the lawsuit.  This case alleges a claim for excessive force, in violation of the Fourth Amendment protection against unreasonable search and seizure, as well as a claim for retaliation, in violation of the First Amendment right to free speech.

TONAWANDA v. VILLAGE OF ST. AUGUSTINE

Docket No.: 10 CIV. 3739 (LH)

479 F.Supp.2d 578 (2011)

———————————————-X

Justin TONAWANDA,

          Plaintiff,

     v.

VILLAGE OF ST. AUGUSTINE,

TIMOTHY SANDERS, Individually,

BRIAN MOORE, Individually, and

GARY CARTER, Individually,

     Defendants.

———————————————-X

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

July 21, 2011.

William Gerard Martin, Martin & Colin, P.C., White Plains, NY, for Plaintiff.

Defense Counsel, for Defendants.

[479 F.Supp.2d 480]

MEMORANDUM DECISION AND ORDER DENYING IN PART AND GRANTING IN PART DEFENDANTS’ MOTION FOR JUDGMENT ON THE PLEADINGS

HANDED, District Judge.

The Allegations of Fact

The following allegations of fact are recited most favorably toward plaintiff.

Justin Tonawanda began working as a manual laborer with the Village of St. Augustine Highway Department in the summer of 2000. He was hired by Gary Carter, who is the Superintendent of that Department and who was, at all times, plaintiff’s immediate supervisor.

On May 14, 2009, Tonawanda — who moonlighted by delivering pizzas for a local pizzeria — was driving on a public street in the Village of St. Augustine, returning from a delivery. He saw a police car with lights flashing, pulled over, turned off his vehicle and exited. Officer Pinkus, who is not a defendant in this action, ordered Tonawanda to get back into his car. Tonawanda mouthed off to the officer, but complied with a second order to return to his car. A second police car, containing defendant Officer Timothy Sanders and a third policeman, pulled up behind plaintiff’s vehicle.

Plaintiff claims to have been driving well under the speed limit and to have had no idea that the police were pulling him over or why they would have done so. He was upset, and repeatedly told Pinkus that if he (plaintiff) lost his job with the pizzeria, it would be the officer’s fault. However, he did give Pinkus his license and registration, as requested.

Defendant Sanders approached Tonawanda’s car and asked plaintiff who he was threatening. Tonawanda responded, “No one,” which is hardly surprising, since the phrase, “If I lose my job, it will be your fault,” expresses no threat toward anyone. Sanders, however, ordered plaintiff to get out of his car. As plaintiff was complying with this directive, Sanders grabbed Tonawanda’s left hand, yanked him out of his car, spun him around, put his elbow onto the back of plaintiff’s neck and pressed him against the frame of the car. He next kicked plaintiff in the leg to spread them and twisted plaintiff’s wrist. When plaintiff screamed, Sanders asked, “Are you high on crack?” Instead of answering the question or keeping quiet, Tonawanda’s mouthed off again, expressing the point of view that it was Sanders who did crack. Sanders kept plaintiff’s wrist twisted behind his back for about two minutes, until Tonawanda yelled, “Police brutality!” At that point, Sanders stopped twisting plaintiff’s wrist, though he did not let go of plaintiff’s arm until he placed Tonawanda into Pinkus’s patrol car. Plaintiff did not use force against any of the officers.

Sanders then searched Tonawanda’ vehicle, including the passenger compartment and the locked trunk, for approximately five minutes. He then ordered plaintiff to return to his car. Pinkus issued three traffic tickets to Tonawanda, all for not stopping at a stop sign. The incident ended.

Later that night, Tonawanda went to the St. Augustine Police Station and filed a report against Sanders. Approximately two months later, on July 16, 2009, Tonawanda served a notice of claim on the Village, alleging police brutality.

From this incident, there allegedly flowed a series of consequences.

First, plaintiff suffered physical injury at Sanders’s hands. On the night of the incident, he drove himself to the hospital. The wrist was x-rayed and placed in a soft cast. A Dr. Dodge told Tonawanda he would need an operation. Surgery was performed on October 31, 2009.

[479 F.Supp.2d 581]

Second, he lost his job with the Village of St. Augustine. Because of the injury, plaintiff was unable to work. The day after the incident, plaintiff reported his injury to Carter, who told him to bring a doctor’s note when he came back to work. Plaintiff was not medically cleared to return to work until April 13, 2010. When he told Carter he was ready to come back, Carter told him that he was not permitted to come back, and cited as the reason his pending lawsuit against the Village. On prior occasions, plaintiff had missed work due to injury, but was always allowed back with a doctor’s note. Moreover, at or about the time plaintiff was told he would not be allowed back, the Village’s DPW was hiring laborers. When plaintiff put in an application for one of those jobs, Carter told him that St. Augustine’s Mayor, defendant Brian Moore, would not permit Carter to rehire Tonawanda because of the pending lawsuit. Tonawanda tried to make an appointment with Moore, but the Mayor refused to see him.

Third, plaintiff was targeted by Sanders on two other occasions. Two days after he filed his Notice of Claim, on July 18, 2009, plaintiff and three other individuals, who were drinking on the street in violation of St. Augustine’s Open Container Law, were arrested after Sanders — one of the four officers who approached the men about their drinking — spied a paper bag on the ground in the vicinity of the group that Sanders believed contained cocaine. Plaintiff denied any knowledge of the cocaine, as did the other three men. All four men were arrested. One of the four arrestees was released almost immediately, but plaintiff and the two others were detained for several days on charges of Criminal Possession of a Controlled Substance. In a search incident to the arrest, cocaine was found on one of the four men, Billy Lupien, but not on plaintiff’s person. Plaintiff remained in jail for several days, until his family could arrange to post bail. All charges against plaintiff arising out of this arrest were dismissed when Lupien pled guilty to possession. A few weeks later, Sanders allegedly ticketed plaintiff’s car.

Unlike plaintiff, Lupien — the man who pled guilty to possessing cocaine — was returned to his position as a laborer with the DPW only two weeks after he was released from the County Correctional Facility after serving sentences for felony assault and narcotics possession.

The officers have put in affidavits that tell their side of this story. For purposes of this motion — which is limited to the issue of qualified immunity — those affidavits are irrelevant. In deciding a motion to dismiss on the issue of qualified immunity, plaintiff’s allegations of fact are presumed to be true. McKenna v. Wright, 386 F.3d 432, 434 (2d Cir.2010). The issues to be decided are whether — assuming plaintiff’s story to be true in all respects — any constitutional violation occurred, and if one did, whether any defendant who was personally involved with that violation is entitled to invoke qualified immunity. Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001).

The Instant Complaint

On May 13, 2010, plaintiff filed the instant complaint for injunctive relief (specifically, a mandatory injunction forcing the Village to rehire him in his old job) and money damages. He pursues this relief on the following constitutional theories:

1. Use of excessive force against Sanders for the events of May 14, 2009 (Fourth Amendment).
2. Illegal search of his vehicle without probable cause on May 14, 2009 (Fourth Amendment).
3. Violation of plaintiff’s First Amendment rights, by preventing plaintiff from

[479 F.Supp.2d 482]

resuming his employment with the Village of St. Augustine, and refusing to hire plaintiff into a vacant position similar to his former position, in retaliation for his having filed a complaint and a Notice of Claim against the Village and Sanders.

In addition to his federal claims, plaintiff asserts parallel claims under the New York State Constitution, and claims against Sanders for common law battery and malicious prosecution (under New York State law). He also throws in the usual claim for intentional infliction of emotional distress (a highly disfavored claim under New York law).

On July 26, 2010, all defendants moved pursuant to Fed.R.Civ.P. 12(c) for judgment on the pleadings “on the ground of qualified immunity.” Of course, qualified immunity does not extend to the Village of St. Augustine, Ford v. Reynolds, 316 F.3d 351, 356 (2d Cir.2009), or to claims brought under the Constitution and laws of the State of New York. See Robison v. Via, 821 F.2d 913, 920-21 (2d Cir.1987) (analyzing qualified immunity in terms of whether an interested protected by federal law could have been violated); see also, e.g., Napolitano v. Flynn, 949 F.2d 617, 620-21 (2d Cir.1991) (noting that the substantive law of Vermont would govern questions of immunity from suit with respect to claims under Vermont law, and applying only the state law immunity analysis to the state law claims); Hirschfeld v. Spanakos, 909 F.Supp. 174, 177-80 (S.D.N.Y.1995) (noting that qualified immunity is available to shield officials from liability for actions that do not violate clearly established federal rights, whereas the separate doctrine of “official immunity” affords public officials in New York protection against state law claims based on the performance of a discretionary function).1 As discussed more fully below, qualified immunity is a defense afforded to individuals acting under color of state law who are sued for federal Constitutional violations pursuant to 42 U.S.C. § 1983. See, e.g., Chester W. v. Maul, 214 F.3d 350, 357 (2d Cir.2000). Thus, without further discussion, defendant St. Augustine’s motion to dismiss the complaint as against it on the basis of “qualified immunity” must be denied, as must any motion directed toward the Fifth, Sixth, Seventh, Eighth, Ninth, Tenth and Eleventh Causes of Action.2

Sanders, Carter and Moore all assert that they are entitled to qualified immunity. Because they are individuals who are alleged to have committed constitutional torts while acting under color of state law, the doctrine applies to them. Unfortunately, their counsel makes the all too common error of conflating that doctrine with arguments that plaintiff is not entitled to relief on the merits, either because the facts are not as recited by plaintiff or because no constitutional violation was committed. I will sort this out below.

The Doctrine of Qualified Immunity

Government officials performing discretionary functions are entitled to qualified immunity “from federal constitutional claims … as long as their actions could reasonably have been thought consistent

[479 F.Supp.2d 483]

with the rights they are alleged to have violated.” Anderson v. Creighton, 483 U.S. 635, 638, 107 S.Ct. 3034, 3038, 97 L.Ed.2d 523 (1987).

In Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), the Supreme Court indicated that the availability of qualified immunity ought to be decided by a court at the earliest possible opportunity — preferably at the outset of the case, at which point plaintiff’s well pleaded allegations are assumed to be true, and defendant’s version of the facts is immaterial. Thus, as the Second Circuit explained in Stephenson v. John Doe, Detective, 332 F.3d 68 (2d Cir.2009), when determining a motion to dismiss on qualified immunity grounds in advance of full merits discovery, and the question to be answered is whether a reasonable Government officer, confronted with the facts as alleged by plaintiff, could reasonably have believed that his actions did not violate some settled constitutional right. The inquiry is a two-step one. First, the court must determine whether, taking the facts in the light most favorable to the party asserting the injury, a constitutional infraction was committed. Saucier, supra, 533 U.S. at 201, 121 S.Ct. 2151. If the answer to that question is yes, the court must decide whether a reasonable official in defendant’s position (as that position is described by plaintiff) ought to have known that he was violating plaintiff’s constitutional rights by doing what plaintiff alleges he did.3 Ordinarily, the relevant inquiry will be whether the law is in fact well-settled — because if it is, “the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct.” Harlow v. Fitzgerald, 457 U.S. 800, 818-19, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Claims that a public officer made a reasonable mistake of fact, “go to the question of whether the plaintiff’s constitutional rights were violated, not the question of whether the officer was entitled to qualified immunity.” Stephenson, supra, 332 F.3d at 78 (citing Saucier, supra, 533 U.S. at 205, 206, 121 S.Ct. 2151).

It is no defense to a claim of qualified immunity that the defendant did not do what plaintiff said he did.  At this early stage of a lawsuit, before discovery takes place, we are presuming that the plaintiff’s version of events is true, so a court cannot take into account assertions by the accused officer that contradict the plaintiff’s allegations. Nothing in Saucier can be read to deprive the plaintiff of his Seventh Amendment right to have a jury resolve all disputed issues of material fact. If plaintiff’s version of the facts is wrong and defendant’s is correct, then the defendant will prevail, not on the ground of qualified immunity, but because he did nothing wrong.

To explain with example: in this case, as in so many others, plaintiff alleges that the defendant used excessive force against him. The right to be free from the use of more force than is reasonably necessary to effect a lawful arrest is certainly well-settled, and no reasonable police officer could possibly believe otherwise. Therefore, unless the facts as asserted by plaintiff in the complaint (and, under my rules, in his deposition)4 could never be found by

[479 F.Supp.2d 484]

a reasonable trier of fact to constitute excessive force (for example, if plaintiff alleged only that the defendant took him by the hand), an officer accused of using excessive force will ordinarily not be able to get out of a lawsuit prior to discovery on the ground of qualified immunity. If the officer’s defense is that the force he used was not excessive — that is, the force used was reasonably necessary to effect the arrest — then the officer is asserting that he did not violate the plaintiff’s constitutional rights, and while he may ultimately prevail on the merits, he is not entitled to dismissal of the lawsuit at an early stage.

Here, plaintiff alleges that he did everything the officers asked him to do and used absolutely no force against them, but was nonetheless seriously injured by an arresting officer, to a degree that required surgery and kept him out of work for almost a year. It has long been the law in this Circuit that a suspect has a right to be free from “excessively forceful handcuffing.” Robison, supra, 821 F.2d at 923-24 (plaintiff’s statement that an officer threw her up against a fender and twisted her arm behind her back, causing her to suffer bruises lasting a couple of weeks, was sufficient to preclude summary judgment on an excessive force claim). Therefore, a court would have to conclude, as a matter of law, that a constitutional violation was committed if plaintiff’s allegations of fact are true.

With these principles in mind, I turn to each of the three individual defendants.

1. Sanders

(a) Fourth Amendment Violations

Officer Sanders is alleged to have violated Tonawanda’ Fourth Amendment rights in two separate ways. First, he is alleged to have used excessive force against plaintiff while effecting his arrest. Second, he is alleged to have conducted an illegal search of plaintiff’s car, without probable cause to believe that a crime had been committed. He is not entitled to Saucier qualified immunity against either of these charges.

The excessive force charge is analyzed above, in my example of how qualified immunity does — and does not — work. Plaintiff charges that Sanders broke his wrist even though plaintiff was not resisting arrest, refusing to follow any order of the police officers, or using any force against them. The right to be free from excessive force is well-settled. If the facts are as plaintiff alleges, no reasonable police officer could possibly have thought it was necessary to use the degree of force that Sanders allegedly used in this case. If in fact it was necessary for Sanders to break plaintiff’s wrist in order to subdue him — if, for example, plaintiff was flailing around or trying to escape — then, assuming Sanders’s demand that he get out of the car was lawful, the officer will be exonerated at trial.5 But he cannot get out of the lawsuit at this early stage on that basis.

[479 F.Supp.2d 485]

Plaintiff also alleges that Sanders illegally searched his car. The right to be free from unreasonable searches — that is, searches conducted without probable cause — is well-settled, and defendant would be hard pressed to assert otherwise. On the facts alleged by plaintiff, no reasonable police officer could possibly have believed he had probable cause to search either Sanders or his car for cocaine. The record contains only the allegations that, while plaintiff was yelling, Sanders asked, “Are you high on cocaine?” — a question to which plaintiff regrettably gave a smart-assed answer. Nothing in the record at this time suggests that Sanders saw a suspicious bulge in plaintiff’s pocket, or glimpsed what looked like a glassine envelope on the floor of Tonawanda’s car through the open door, or anything else that would have given rise to probable cause to believe that plaintiff had any drugs in his possession. The fact that a man yells when his arm is twisted so hard that it breaks his wrist, or that he gives a sassy answer to a question about drug use, does not give rise to probable cause to search a vehicle for drugs. So qualified immunity does not get Sanders out from under this charge, either. If there was probable cause to search, there was no constitutional violation, but determination of that issue must abide Sanders’s testimony.

(b) First Amendment Retaliation

Sanders is also alleged to have retaliated against plaintiff for exercising his First Amendment right to file a complaint and a notice of claim (the necessary precursor to a lawsuit) against Sanders. Plaintiff alleges that Sanders’s decision to arrest him on July 18, 2009, for possession of cocaine, came in retaliation for his filing the local complaint and the notice of claim (the latter having been filed only two days earlier). Here, Sanders’s claim of qualified immunity is trickier to analyze.

Plaintiff has a well-settled right to complain about police misconduct — and to bring a lawsuit to seek redress for that alleged misconduct — without being subjected to retaliation. Kerman v. City of New York, 261 F.3d 229, 241-42 (2d Cir.2001) (discussing the First Amendment

[479 F.Supp.2d 486]

right to verbally criticize the police without reprisal); see also Wise v. New York City Police Dep’t, 928 F.Supp. 355, 372 (S.D.N.Y.1996) (complaints of systemic police misconduct are protected speech, even when the complainant is a police employee, since the issue is a matter of public concern). Two days prior to this arrest, plaintiff had filed such a complaint. Nonetheless, Sanders had probable cause to arrest him, and his companions, for a violation of St. Augustine’s Open Container Law. The facts alleged and testified to by plaintiff include an admission that he, along with three friends, was drinking on the street in violation of St. Augustine’s Open Container Law. Under New York law, the admitted violation of the Open Container Law — even without Sanders’s subsequent examination of the paper bag containing cocaine — would have been enough to support plaintiff’s arrest. See People v. Bothwell, 261 A.D.2d 232, 690 N.Y.S.2d 231 (1st Dep’t), leave to appeal denied, 93 N.Y.2d 1026, 697 N.Y.S.2d 585, 719 N.E.2d 946 (1999) (noting that a police officer is authorized to arrest a person he has “reasonable cause” to believe violated the Open Container Law); see also McDermott v. City of New York, No. 00 Civ. 8311(LAK)(GWG), 2002 WL 265127 at *6 (S.D.N.Y. Feb. 25, 2002) (noting that “New York courts have recognized that where probable cause exists to arrest someone in violation of an Open Container statute, an officer may do so”) (citingPeople v. Pantusco, 107 A.D.2d 854, 484 N.Y.S.2d 321 (3d Dep’t 1985)).

Thus, even under plaintiff’s version of events, there was no violation of his constitutional rights when Sanders arrested him. There is no need to reach the issue of qualified immunity; Tonawanda’s claim of retaliation simply must be dismissed. Saucier, supra, 533 U.S. at 201, 121 S.Ct. 2151 (noting that, if no constitutional right was violated, assuming plaintiff’s version of the facts to be true, there is no need to consider whether a reasonable officer in the defendant’s position would have done what defendant did).

2. Carter and Moore

The claim against Carter and Moore is a First Amendment retaliation claim — namely, that they refused to return him to his position as a laborer with the St. Augustine DPW, either by giving him his old job back after he ceased to be disabled, or by hiring him anew after he put in an application, in retaliation for his having filed a Notice of Claim against the Village and Sanders arising out of his arrest. As evidence, plaintiff cites the fact that one Billy Lupien — who was also arrested for drug possession, and who was convicted (as plaintiff was not) for that crime — was hired for a DPW position as soon as he was released from jail. Plaintiff, on the other hand, was allegedly told he could not have his job back because the Mayor would not permit it due to “the lawsuit.”

A citizen has a settled right not to suffer retaliation for the exercise of his First Amendment rights. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 283-84, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977) (discussing plaintiff’s potential entitlement to reinstatement if he could prove that the decision not to rehire him was made by reason of his exercise of his First Amendment rights) (citing Perry v. Sindermann, 408 U.S. 593 597, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972)). See also Estate of Morris v. Dapolito, 297 F.Supp.2d 680, 694 (S.D.N.Y.2010) (noting that the Second Circuit articulated the elements of First Amendment retaliation in Donahue v. Windsor Locks Bd. of Fire Comm’rs, 834 F.2d 54, 58 (2d Cir.1987), and finding actionable retaliation where student who complained about teacher who

[479 F.Supp.2d 487]

assaulted him was subjected to “severe punishment”). No reasonable official charged with hiring public employees could possibly have thought that it was constitutional to refuse to rehire an employee after his disability ended solely and simply because he was planning to sue the Village and Sanders for wrongfully breaking his arm.

That being so, it is obvious that Carter and Moore cannot obtain dismissal of the claim in suit on the ground of qualified immunity. Carter protests that he is not the decision-maker with regard to plaintiff’s job, but that does not entitle him to qualified immunity. It might entitle him to summary judgment someday, but not to dismissal on the pleadings today.

Moore contends that the only thing he is alleged to have done was refuse to meet with plaintiff, but he is being deliberately obtuse. Carter is alleged to have told plaintiff that he (Carter) could not rehire plaintiff because the Mayor of St. Augustine would not permit it. Moore is, in short, alleged to have made the ultimate decision not to permit plaintiff to return to work for the Village — and he is alleged to have done so solely because plaintiff had filed a Notice of Claim arising out of the excessive force incident. These allegations may or may not pan out, but Moore is certainly not entitled to qualified immunity. For if the facts are as plaintiff alleges, no reasonable decision-maker in Moore’s position could possibly have believed he was entitled to act as he allegedly did.

The Village’s Motion for Dismissal on the Pleadings is Denied

The Village seeks dismissal of the complaint on the ground that the individual defendants should have the complaint dismissed as against them. Because none of the defendants is entitled to dismissal of the entire complaint as against him on the ground of qualified immunity, the Village’s motion lacks merit. If, at the close of discovery, there is no basis for holding the Village liable — either because plaintiff has not adduced evidence of a violation by any defendant or under Monell v. New York City Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) — the Court will entertain a motion for summary judgment.

Conclusion

The First Amendment retaliation claim against defendant Sanders is dismissed. Otherwise, defendants’ Rule 12(c) motion is denied. A Scheduling Order is attached.

This constitutes the decision and order of the Court.

Footnotes

1. Defendants have made no argument that New York’s “official immunity” doctrine should apply here.
2. The “Twelfth Cause of Action” is captioned “Injunctive Relief.” There is no such cause of action. Plaintiff seeks a mandatory injunction as one remedy for the violations of law alleged in the first eleven causes of action. The Twelfth Cause of Action is dismissed for failure to state a claim, without prejudice to plaintiff’s ability to assert his right to the remedy of an injunction should he prevail on the claims relating to the loss of his employment.
3. If the answer to this question is “No” — as it is in this case on one of the claims against Sanders — then the claim will be dismissed, but for failure to state a claim, not on qualified immunity grounds.
4. Under this Court’s rules, the plaintiff is deposed before a rule 12(c) motion on qualified immunity grounds is made, so that the plaintiff’s complete story — not just the minimal allegations required of a pleader under Fed.R.Civ.P.8 — is before the Court. No other discovery (including depositions of the defendants) is permitted prior to the determination of the qualified immunity motion, however, because none would be relevant at the commencement of the lawsuit, when the Supreme Court and the Second Circuit require this issue to be decided.
5. Plaintiff does not, in responding to the motion, raise the issue of the lawfulness of Sanders’s demand that he get out of the car. Plaintiff was eventually cited (by another officer, not Sanders) for running a stop sign. That is a violation, not a crime, and ordinarily would not permit the police to subject the plaintiff to a DeBour level two or three stop. As stated by the New York Court of Appeals in People v. Hollman, a “level two inquiry” is “activated by a founded suspicion that criminal activity is afoot,” and permits a police officer to ask somewhat intrusive questions. 79 N.Y.2d 181, 184-85, 581 N.Y.S.2d 619, 590 N.E.2d 204 (1992) (discussing People v. De Bour, 40 N.Y.2d 210, 386 N.Y.S.2d 375, 352 N.E.2d 562 (1976)). A “level three inquiry” requires reasonable suspicion that a particular person was involved in a felony, and permits an officer to forcibly stop and detain that person. Id. Thus, without a “founded” or “reasonable” suspicion that a crime had been committed, Sanders would not have been permitted to detain the plaintiff. Interestingly, Sanders does not dispute plaintiff’s description of this incident; rather, over and over again, his lawyer refers to Tonawanda’ repeated shouts of, “If I lose my job, it’s your fault,” as a “threat.” The words themselves fail to convey any threat, so it will take some information that is not yet in the record — for example, information about what plaintiff was doing at the time he shouted these words — to transform them into something that would give rise to reasonable suspicion of criminal activity — even criminal activity under Penal Law Section 240.20, let alone Penal Law Section 240.26.

Sanders asserts in his moving brief that he was permitted to order plaintiff out of the car “as part of his further investigation.” (Moving Br. at 9.) Sanders does not say what he had reason to “further investigate.” I can state categorically that, on the facts testified to by plaintiff, he did not have any basis to order plaintiff out of his car on a reasonable suspicion that plaintiff either possessed or was using cocaine. Certainly, if Sanders is suggesting that his actions are shielded by the fact that Pinkus (not Sanders) had probable cause to stop the car in the first place, he is just plain wrong. Assuming arguendo that Pinkus told Sanders he had seen plaintiff run a stop sign (which would be necessary to impute Pinkus’s knowledge to Sanders under the fellow officer rule), observing a traffic violation, without more, does not give rise to probable cause to believe a drug crime is being committed.

The injury lawyers at Martin Colin, P.C., headquartered in White Plains, New York, handle accident claims, negligence and personal injury cases.  If you have been hurt in an accident due to the negligence of another person, our attorneys may be able to help.

Please call (914) 771 7711 or email using the ‘Contact Us’ form on this page.

Memo Opposing Dismissal of Complaint – Sample

by Katherine Ortiz | Aug 10, 2015 | Civil Rights / False Arrest, Personal Injury |

August 2015:  This post is a demonstration of our transparency in the way we operate our business.

A sample memorandum of law submitted in opposition to the defendants’ motion to dismiss the case.  The plaintiff had filed a civil rights lawsuit alleging that the defendants had used excessive force and violated his constitutional rights.  The defendants responded by asking the judge to dismiss the entire case.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

———————————————————————-x

JUSTIN TONAWANDA,

Plaintiff,

Docket No.:

-against-                                                          10 Civ. 3739 (LH)

VILLAGE OF ST. AUGUSTINE;

TIMOTHY SANDERS, Individually;

BRIAN MOORE, Individually;

and GARY Carter, Individually;

Defendants.

———————————————————————-x

PLAINTIFF’S MEMORANDUM OF LAW

SUBMITTED IN OPPOSITION TO

DEFENDANTS’ FRCP RULE 12(c)

     MOTION TO DISMISS THE COMPLAINT

MARTIN + COLIN, P.C.

Attorneys for Plaintiff

Office and Post Office Address:

44 Church Street

White Plains, New York 10601

(914) 771 7711

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

———————————————————————-x

JUSTIN TONAWANDA,

Plaintiff,

Docket No.:

-against-                                                          10 Civ. 3739 (LH)

VILLAGE OF ST. AUGUSTINE;

TIMOTHY SANDERS, Individually;

BRIAN MOORE, Individually;

and GARY Carter, Individually;

Defendants.

———————————————————————-x

MEMORANDUM OF LAW

SUBMITTED IN OPPOSITION TO

DEFENDANTS’ FRCP RULE 12(c)

MOTION TO DISMISS THE COMPLAINT

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES…………………………………………….………………………ii

PRELIMINARY STATEMENT…………………………………………………………….…..1

             STATEMENT OF FACTS   ……………………………………………………………….……1

POINT I

PLAINTIFF HAS STATED CAUSES OF ACTION

UPON WHICH RELIEF CAN BE GRANTED…………………………….………………………..………..9

POINT II

THE MUNICIPAL DEFENDANT IS NOT ENTITLED

TO QUALIFIED IMMUNITY AT ANY STAGE OF THE PROCEEDINGS…………………………..11

POINT III

THE DEFENDANT TIMOTHY SANDERS IS NOT ENTITLED

TO QUALIFIED IMMUNITY IN THIS ACTION………………………………………………..….……….12

POINT IV

THE DEFENDANTS BRIAN MOORE AND GARY CARTER ARE NOT ENTITLED

TO QUALIFIED IMMUNITY IN THIS ACTION …………………………..…….………………………… 16

CONCLUSION………………………………………………………………………………………..…………………..19

TABLE OF AUTHORITIES

Page

Bacchiocci v. Chapman, 2010 U.S. Dist. LEXIS 107710 (Dist. Conn. 2010)…………………..13

Bordeaux v. Lynch, 958 F. Supp. 77, 87 (N.D.N.Y. 1997)……………………………………….……..12

Branum v. Clark 927 F.2d 698 (2d Cir. 1991)…………………………………………………..………….9

Burchett v. Kiefer, 310 F.3d 937, 945 (6th Cir. 2002)…………………………………………..……….13

Diamondstone v. Macaluso, 148 F.3d 113 at 123 (2d Cir. 1998)………………………………………12

Ford v. Reynolds, 316 F.3d 351, 356 (2d Cir. 2009)……………………………………………………….11

Gorman-Bakos v. Cornell Cooperative Extension of Schenectady Cty.,

252 F.3d 545, 554 (2d Cir. 2001)………………………………………………………………………….…….15

Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L.Ed. 2d 396, 102 S.Ct. 2727 (1982)……………10

Irish Lesbian and Gay Organization v. Giuliani 143 F.3d 638 (2d Cir. 1998)……………………9

Jermosen v. Smith, 945 F.2d 547, 550 (2d Cir. 1991)………………… ………………………….…….16

Kostrzewa v. City of Troy, 247 F.3d 633 (6th Cir. 2001)…………………………………………………13

Kantha v. Blue, 262 F.Supp.2d 90 (S.D.N.Y. 2000 [MLHahon, J.])………….…………………….17

Lanigan v. Village of East Hazel Crest, 110 F.3d 467 (7th Cir. 1997)……………………………….13

Leather v. Ten Eyck, 180 F.3d 420 (2dCir. 1999)………………………………………………………….14

Locurto v. Safir, 264 F.3d 154, 166 (2d Cir. 2001)……………………… ………………………………..16

Loria v. Gorman, 306 F.3d 1271, 1281 (2d Cir. 2002)…………………………………….………………10

McCardle v. Haddad, 131 F.3d 43, 50 (2d Cir. 1997)…………………………………………….………..10

Perlleshi v. County of Westchester, 2000 US Dist. LEXIS 6054

(S.D.N.Y. 2000 [McMahon, J.])…………………………………………………………………………….……12

Robinson v. Via, 821 F.2d 913, 921 (2d Cir. 1987)……………………………………………………..12, 13

Rodriguez v. City of New York, 72 F.3d 1051, 1065 (2d Cir. 1995)……………………………………11

Ruhlmann v. Ulster County Department of Social Services,

234 F. Supp. 2d 140. 174 (N.D.N.Y. 2002)………………………………………………………………….12

Scheiner v. New York City Health + Hospitals,

152 F. Supp. 2d 487, 496 (S.D.N.Y. 2001)…………………………………………………………………..15

Sheppard v. Beerman 18 F.3d 147 (2d Cir. 1994)………………………………………………………… 9

Stein v. Janos, 269 F.Supp.2d 256, 260 (S.D.N.Y. 2009 [McMahon, J.])………………………15

Stephenson v. Doe, 332 F.3d 68, 76 (2d Cir. 2009)……………………………………………………10, 13

PRELIMINARY STATEMENT

The plaintiff submits this memorandum of law in opposition to the motion by all defendants, i.e., the Village of St. Augustine, Timothy Sanders, Brian Moore and Gary Carter, to dismiss the complaint in its entirety, with prejudice, pursuant to Rule 12(c) of the Federal Rules of Civil Procedure based upon the ground of qualified immunity.

STATEMENT OF FACTS

Justin Tonawanda is a young, male, Hispanic, Puerto-Rican born American citizen who is a resident of the County of Westchester (Plaintiff’s Deposition pp.10-11; Complaint ¶ 4).  He began his employment with the defendant Village of St. Augustine in the summer of 2006 as a laborer for the highway department (Plaintiff’s Deposition, p.11).  He was recommended for the job by a former police officer with the Village of St. Augustine (Plaintiff’s Deposition p. 15).  The plaintiff was hired by defendant Gary Carter (Plaintiff’s Deposition, pp.43-44, 47), and at all relevant times, defendant Gary Carter was his direct supervisor (Plaintiff’s Deposition, p.17-19).  At all relevant times, plaintiff was an employee of the Village of St. Augustine Department of Public Works and at the same time was a volunteer fireman of the Village of St. Augustine (Plaintiff’s Deposition, p.32; Complaint ¶ 5).

The only “disciplinary action” ever taken against plaintiff during his employment occurred one time when his supervisor, defendant Gary Carter, told him to stop arriving late for work (Plaintiff’s Deposition, pp. 20-21).  It was one single verbal warning that was never written and never repeated (Plaintiff’s Deposition, pp. 20-21).  There was never any other disciplinary action of any kind whatsoever (Plaintiff’s Deposition, pp. 20-21).

On May 14, 2009, around 10:00 p.m., Mr. Tonawanda was operating his brother-in-law’s motor vehicle on the corner of Beekman Avenue, a public street in the Village of St. Augustine (Plaintiff’s Deposition pp. 71, 75-77; Complaint ¶¶ 29).  He was moonlighting by making deliveries for a local pizzeria and was returning to work at the pizzeria after having delivered a pizza (Plaintiff’s Deposition p. 79).  At the time, Mr. Tonawanda was operating the motor vehicle at a speed of about 10 to 15 miles per hour (Plaintiff’s Deposition p. 78).

Mr. Tonawanda observed a police vehicle behind him with its flashing lights on (Plaintiff’s Deposition pp. 75-77; Complaint ¶¶ 30).  He pulled over, turned his vehicle off, stepped out of his car, and began walking back to his job, not knowing that the police officer was pulling him over personally (Plaintiff’s Deposition pp. 82-84).  The officer, Walter Murray, ordered Mr. Tonawanda to get back in his vehicle, to which Mr. Tonawanda responded by telling the officer, in substance, to stop bothering him (Plaintiff’s Deposition pp. 84-85).  The officer again ordered Mr. Tonawanda to get back in his vehicle (Plaintiff’s Deposition p. 85).  Mr. Tonawanda then walked back to his vehicle and got in (Plaintiff’s Deposition p. 85).  At that time, while Officer Murray walked up to Mr. Tonawanda’ vehicle, the defendant Officer Sanders, along with another Village of St. Augustine police officer, also parked their vehicles behind Mr. Tonawanda’ vehicle (Plaintiff’s Deposition pp. 82, 83, 85).  Seated in his car in the driver’s seat, Mr. Tonawanda told Officer Murray that if he lost his (pizza delivery) job that it would be his fault (Plaintiff’s Deposition p. 86).  Officer Murray then asked Mr. Tonawanda for his license and registration and Mr. Tonawanda fully cooperated with the officer’s commands while continuing to state that if he lost his job, it would be Officer Murray’s fault (Plaintiff’s Deposition p. 86, Complaint ¶¶ 30).  Officer Murray did not respond to Mr. Tonawanda’s verbal comments, but Officer Sanders approached Mr. Tonawanda’ vehicle and asked the plaintiff, in substance, “Who are you threatening?” to which Mr. Tonawanda responded “Nobody” and told defendant Sanders to mind his own business (Plaintiff’s Deposition p. 87).  Officer Sanders then ordered Mr. Tonawanda to get out of his car (Plaintiff’s Deposition p. 88).  As Mr. Tonawanda was getting out of the car, Officer Sanders violently grabbed Mr. Tonawanda’ left hand, yanked him out of the vehicle, spun him around, aggressively placed his elbow onto the back of Mr. Tonawanda neck and pressed it again the frame of his car causing his chin to hit the top of the car (Plaintiff’s Deposition p. 88; Complaint ¶¶ 31, 32).  Officer Sanders then spread Mr. Tonawanda’s legs open by kicking him in his legs (Plaintiff’s Deposition p. 88).  All the while, Officer Sanders is still twisting Mr. Tonawanda’s left wrist (Plaintiff’s Deposition p. 88).  With Mr. Tonawanda screaming in anguish, Officer Sanders asked him, in substance: “Are you high on crack?” to which Mr. Tonawanda responded by implying that that was an activity that Officer Sanders participates in (Plaintiff’s Deposition p. 88).  Officer Sanders continued his violence against Mr. Tonawanda by keeping plaintiff in this position, with his wrist painfully twisted, for about two minutes (Plaintiff’s Deposition p. 90).  After Mr. Tonawanda yelled out “police brutality,” Officer Sanders stopped twisting Mr. Tonawanda’s hand, but did not let go of his arm until he placed Mr. Tonawanda into Officer Murray’s patrol car (Plaintiff’s Deposition p. 91, 93).  At this time, Mr. Tonawanda had not even been issued a traffic ticket yet (Plaintiff’s Deposition p. 93).  The defendant Sanders then conducted a patently unlawful search of Mr. Tonawanda’s vehicle (Plaintiff’s Deposition p. 94; Complaint ¶ 34).  After searching the entire passenger compartment and the locked trunk of Mr. Tonawanda’s car for approximately five minutes, Officer Sanders then ordered Mr. Tonawanda to get back into his vehicle (Plaintiff’s Deposition p. 95).  At no time during the incident did Mr. Tonawanda resist or use force against any of the police officers present.

All this time, Officer Murray and another Village of St. Augustine police officer were present on the scene (Plaintiff’s Deposition p. 93).  Plaintiff was issued three tickets by Officer Murray, all for not stopping at a stop sign (Plaintiff’s Deposition pp. 80-82).  Later that evening, Mr. Tonawanda went to the Village of St. Augustine Police Station and filed a report against Officer Sanders (Plaintiff’s Deposition p. 98).  After filing the report, Mr. Tonawanda drove himself to the hospital for medical treatment of his wrist (Plaintiff’s Deposition p. 99).  X-rays were taken, Mr. Tonawanda’s left wrist was put in a soft cast, and his wrist was placed into some type of support (Plaintiff’s Deposition p. 100).  A specialist at the hospital, Dr. Finnerty, informed Mr. Tonawanda that he would need an operation (Plaintiff’s Deposition pg. 100).

The sole reason for the Village’s employment of the plaintiff was his ability to perform manual labor.  His job duties included picking up brush, cutting down trees, blacktop and sidewalk repair, installing street signs, painting crosswalks, snow removal and trash pickup (Plaintiff’s Deposition, pp. 17-18, 21).  On several prior occasions, a physical injury temporarily prevented plaintiff from performing his job duties (Plaintiff’s Deposition, pp.22-26).  Each time, he would report the injury to his supervisor, defendant Carter, and when the injury healed and plaintiff was able to return to work, he would report back to Carter and resume his employment (Plaintiff’s Deposition, pp. 22-26).

The injuries inflicted by defendant Sanders on May 14, 2009 rendered Mr. Tonawanda unable to perform his duties as a laborer, and so on May 15^th, 2009 plaintiff notified the defendant Gary Carter, his supervisor, that he would be unable to work for a period of time due to the injury (Plaintiff’s Deposition pp. 107, 108; Complaint ¶¶ 9, 35).  Defendant Carter acknowledged Mr. Tonawanda’s condition and told him to come back to work with a doctor’s note (Plaintiff’s Deposition p. 108; Complaint ¶ 36).

Approximately two months later, on July 16, 2009, Mr. Tonawanda served a Notice of Claim on the defendant Village of St. Augustine, notifying the Village that he was seeking injunctive relief and compensatory damages from the Village as a result of the police brutality inflicted by the defendant Officer Sanders (Plaintiff’s Deposition p. 109).

On July 18, 2009, plaintiff was standing on Columbus Street, in the Village of St. Augustine, with three other friends, one of whom was Henry Vesuvius (Plaintiff’s Deposition pp. 117-119).  Mr. Tonawanda and his friends were approached by four Village police officers, including defendant Sanders, and were accused of being in violation of the Village’s open container ordinance (Plaintiff’s Deposition pp. 115, 120, 128; Complaint ¶¶ 39, 40).  As the other officers were filling out summonses for the open container violation, defendant Officer Sanders suddenly declared that he discovered a bag containing the controlled substance cocaine near Mr. Tonawanda (Plaintiff’s Deposition, pp. 130-35; Complaint ¶ 41).  The four officers arrested the four individuals, including the plaintiff, and transported them to the St. Augustine Police Department (Plaintiff’s Deposition, pp. 137-38).  Somehow, one of the four individuals was released and was never charged with a crime (Plaintiff’s Deposition, p. 137, 140, 142).  At the police station, defendant Sanders drafted and signed a felony complaint accusing Mr. Tonawanda of a Class B felony crime of Criminal Possession Sale of a Controlled Substance (Plaintiff’s Deposition, p. 140, 143; Complaint ¶¶ 42, 43).  The police officers also claimed that, upon arresting and searching all the individuals, they observed a quantity of cocaine in folded currency in Mr. Vesuvius’ wallet (Plaintiff’s Deposition, p. 151).  Along with two other individuals, the plaintiff was charged with a Class B Felony, was incarcerated for several days, had to have a family member post bail to get him out of jail, and was required to retain an attorney to defend him against the criminal charges (Plaintiff’s Deposition, pp. 142-43, 146; Complaint ¶¶ 44, 45).

Family members for each of the three individuals charged by defendant Sanders on July 18, 2009 posted bail the following Monday and all three men were released from jail (Plaintiff’s Deposition, pp. 147-48).  Sometime later, one of the men, Henry Vesuvius, was accused of committing a felony assault while out on bail, and was returned to jail (Plaintiff’s Deposition, p. 152).  Mr. Vesuvius pleaded guilty to misdemeanor assault and received a sentence of one year in the County Penitentiary, for which he served eight months (Plaintiff’s Deposition, p. 152).

Near the end of his one-year sentence on the assault charge, Mr. Vesuvius pleaded guilty to possession of a quantity of cocaine in his wallet, and received a sentence of thirty days in the County Penitentiary, to be served concurrent with his sentence on the assault charge (Plaintiff’s Deposition, pp. 149-151).  Contemporaneous with the plea by Mr. Vesuvius, in June 2010, all charges against the plaintiff resulting from this arrest were dismissed (Plaintiff’s Deposition, p. 149).

On or about August 20, 2009, Mr. Tonawanda left his car parked on Valley Street, a public street in the Village of St. Augustine (Plaintiff’s Deposition, p. 152;Complaint ¶ 48).  He returned to his car two or three minutes later and discovered that a parking ticket had placed on his car by defendant Sanders (Plaintiff’s Deposition, p. 153; Complaint ¶ 49).

Almost six months after the defendant Sanders injured plaintiff’s left wrist, on October 31, 2009, plaintiff had a surgery performed on his left wrist (Plaintiff’s Deposition, pp. 157-58).  Approximately six months after the surgery, on or about April 1, 2010, the plaintiff received clearance from his physician that his wrist injury had resolved to the point that he was medically cleared to return to work (Plaintiff’s Deposition, pp. 153-54; Complaint ¶ 51).  On or about April 13, 2010, the plaintiff provided a copy of his medical clearance to return back to work to the defendants and spoke with the defendant Carter in his office (Plaintiff’s Deposition, p. 162; Complaint ¶ 51).  When the plaintiff told the defendant Carter he was able to return to work, the defendant Carter told plaintiff, in substance, that his lawsuit pending against the Village of St. Augustine precluded him from returning to work (Plaintiff’s Deposition pp. 45, 162; Complaint ¶ 52, 53).

A few weeks after the defendant Carter told plaintiff his old job was not available to him, and after hearing from friends that the Village was hiring laborers, on or about May 5, 2010, the plaintiff returned to Village offices and re-applied for employment all over again, filling out a formal application for employment (Plaintiff’s Deposition, pp. 45-46).

After the plaintiff re-applied for employment with the Village of St. Augustine, he again sought out the defendant Carter and asked Carter to put him back to work (Plaintiff’s Deposition, pp. 164-66).  This time, Carter stated, in substance, that if the decision were Carter’s, then the plaintiff would be back to work (Plaintiff’s Deposition, pp. 165-66).  However, Carter stated that, in substance, the Mayor (i.e., the defendant Moore) was preventing the plaintiff’s re-employment (Plaintiff’s Deposition, pp. 165-66).

Plaintiff went to the defendant Moore’s office on two separate occasions between May 5 and May 7, 2010 and left messages with the secretary, seeking an appointment with the defendant Moore (Plaintiff’s Deposition, pp. 165-68).  However, Moore refused to meet with him (Plaintiff’s Deposition, pp.  165-68)

To date, plaintiff has never been given his job back.  However, Henry Vesuvius was returned to his position as a laborer within two weeks after his release from the Penitentiary, and remains in that position today (Plaintiff’s Deposition, p. 164).

POINT I

PLAINTIFF HAS STATED CAUSES OF

ACTION UPON WHICH RELIEF MAY BE GRANTED

All defendants have moved pursuant to FRCP Rule 12(c) for dismissal of the entire complaint, with prejudice, alleging that the actions of the defendants, even if true, are protected by qualified immunity.  The Second Circuit has set forth guidelines for deciding FRCP Rule 12(c) m motions:

The test for evaluating a 12(c) motion is the same as that applicable to a motion to dismiss under Fed. R. Civ. Proc. 12(b)(6).

We therefore must accept the allegations of [the non-movant’s] complaint as true, and draw all reasonable inferences in [the non-movant’s] favor.

Sheppard, 18 F.3d at 150 [Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir. 1994)].  We will not uphold the district court’s dismissal unless “it appears beyond a reasonable doubt that the plaintiff can prove no set of facts in support of [her] claim which would entitle [her] to relief.” Id. (internal quotations omitted).

This standard is “applied with particular strictness when the plaintiff complains of a civil rights violation.” Branum v. Clark, 927 F.2d 698, 705 (2d Cir. 1991) (citations omitted).

Irish Lesbian and Gay Organization v. Giuliani, 143 F.3d 638 (2d Cir. 1998).  Dismissals for failure to state a cause of action are disfavored: Rule 8 only requires the pleading to contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” FRCP Rule 8(a).

The Second Circuit, following Supreme Court precedent, has ruled that the issue of qualified immunity should be resolved as early in the proceedings as possible, because “it is more than a simple defense–it is an entitlement not to stand trial or face the burdens of litigation.” Stephenson v. Doe, 332 F.3d 68, 76 (2d Cir. 2009), citing Loria v. Gorman, 306 F.3d 1271, 1281 (2d Cir. 2002).  However, qualified immunity is only available as an affirmative defense when the action by government officials “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Stephenson, supra, at 76, citing McCardle v. Haddad, 131 F.3d 43, 50 (2d Cir. 1997), quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L.Ed. 2d 396, 102 S.Ct. 2727 (1982).

In the instant action the complaint alleges several instances where employees of the Village of St. Augustine took action that, if true, violated clearly established constitutional or statutory rights of the plaintiff of which a reasonable person would have known.  For this reason, the complaint alleges several meritorious legal claims against the defendants.  Plaintiff should be given the opportunity to develop them in discovery.  Accordingly, the defendants’ motion to dismiss the action based upon qualified immunity should be denied in its entirety.

POINT II

THE MUNICIPAL DEFENDANT IS NOT

ENTITLED TO QUALIFIED IMMUNITY

AT ANY STAGE OF THE PROCEEDINGS

It is well settled that the municipal defendant, the Village of St. Augustine, is not entitled to dismissal on the ground of qualified immunity under any circumstances.

The defense of qualified immunity protects only individual defendants sued in their individual capacity, not governmental entities, and it protects only against claims for damages, not against claims for equitable relief. Rodriguez v. City of New York, 72 F.3d 1051, 1065 (2d Cir. 1995). Ford v. Reynolds, 316 F.3d 351, 356 (2d Cir. 2009).  Thus, to any extent that the instant motion seeks dismissal of the claims against the municipal defendant on the ground of qualified immunity, that portion of the motion should be denied in its entirety and all claims against the municipality should proceed.

POINT III

THE DEFENDANT TIMOTHY SANDERS

IS NOT ENTITLED TO

QUALIFIED IMMUNITY IN THIS ACTION

May 14, 2009 Fourth Amendment Excessive Force Claim

The plaintiff alleges that the defendant Timothy Sanders used excessive force on him during a traffic stop on May 14, 2009.  The defendant Timothy Sanders claims that his actions on May 14, 2009 are entitled to qualified immunity.  However, in this Circuit, although the defense may exist in theory, for all practical purposes police officers are no longer entitled to the qualified immunity defense when defending claims of excessive force during a roadside stop.

First, the Supreme Court applies the Fourth Amendment “reasonableness” test to the use of non-deadly force in arrests or interrogative stops. Perlleshi v. County of Westchester, 2000 US Dist. LEXIS 6054 (S.D.N.Y. 2000 [McMahon, J.]); see also, Diamondstone v. Macaluso, 148 F.3d 113 at 123 (2d Cir. 1998).

Second, The plaintiff’s right to be free from excessive force was clearly established at the time: The right to be free from false imprisonment and false arrest is clearly established. Robinson v. Via, 821 F.2d 913, 921 (2d Cir. 1987); Bordeaux v. Lynch, 958 F. Supp. 77, 87 (N.D.N.Y. 1997) Ruhlmann v. Ulster County Department of Social Services, 234 F. Supp. 2d 140. 174 (N.D.N.Y. 2002).

More specific to the facts of this case: The right to be free from ‘excessively forceful handcuffing’ is a clearly established right for qualified immunity purposes. Burchett v. Kiefer, 310 F.3d 937, 945 (6th Cir. 2002) (citing Kostrzewa v. City of Troy, 247 F.3d 633 (6th Cir. 2001) [using handcuffs that were too small for non-violent, non-resisting arrestee’s wrists]). This has long been the law in this circuit.

See, e.g., Robison v. Via, 821 F.2d 913, 925 (2d Cir. 1987) (finding plaintiff’s statement that officer pushed plaintiff against the inside of the door of her car, “yanked” her out, “threw [her] up against the fender,” and “twisted [her] arm behind [her] back,” causing plaintiff to suffer bruises lasting a “couple weeks” sufficient to preclude summary judgment). It was also established that a “poke and push” during a traffic stop could be actionable. Lanigan v. Village of East Hazel Crest, 110 F.3d 467 (7th Cir. 1997).

Bacchiocci v. Chapman, 2010 U.S. Dist. LEXIS 107710 (Dist. Conn. 2010).

Ordinarily, then, the next issue in a qualified immunity analysis is whether the defendant’s conduct was objectively reasonable.  However, the Second Circuit in Stephenson has said that the excessive use of force based upon a mistake of fact by the police officer, such as the mistaken belief that a suspect will fight back, is not an issue of qualified immunity but instead is an issue of whether the plaintiff’s rights were violated.  Stephenson, supra, 332 F.3d 68 at 78-79.

Thus, the defendant Sanders cannot claim an objectively reasonable mistake as to the law, since the law was well settled in this Circuit.  In addition, if he claims an objectively reasonable mistake as to the plaintiff’s actions, qualified immunity does not apply.  Thus, on the facts of this case, qualified immunity does not apply.[1]

Finally, the plaintiff at all times complied with the lawful directives of the police officers (Plaintiff’s Deposition, pp. 85-88).  On several occasions he uttered remarks to the officers, but he never once refused a lawful order of a police officer.  Thus, there was absolutely no reason for defendant Sanders to place his hands on the plaintiff.

[1]    In its Perlleshi decision, at footnote 2, this Court questioned the relevance of the doctrine of qualified immunity in the search and seizure context, but nonetheless followed Second Circuit precedent.  But by reasoning, in Stephenson, that a mistake of fact by the officer does not involve qualified immunity, the Second Circuit appears to be agreeing with this Court that the doctrine of qualified immunity has no relevance in a search and seizure context.

July 18, 2009 First Amendment Retaliation and

Fourteenth Amendment Selective Prosecution Claims

The plaintiff alleges that he was arrested and criminally prosecuted by the defendant Timothy Sanders on felony drug charges on July 18, 2009 in retaliation for filing a civilian complaint against Sanders with the police department on May 15, 2009 and for serving a Notice of Claim against Sanders on the Village on July 16, 2009.  The defendant Timothy Sanders claims that his actions on July 18, 2009 are entitled to qualified immunity.

In 1999, the Second Circuit reversed a district court judge and held it to be a violation of a person’s constitutional rights subject to § 1983 liability if a government official subjects an individual to selective prosecution in retaliation for the exercise of free speech rights guaranteed under the First and Fourteenth Amendments.  Leather v. Ten Eyck, 180 F.3d 420 (2dCir. 1999).

In Leather, the plaintiff (i.e., the criminal defendant) was convicted of the underlying criminal charges.  In this action, all criminal charges against the plaintiff were dismissed.  In Leather, the plaintiff exercised his First Amendment rights one to two years before his arrest.  In this action, the plaintiff was arrested and charged only two months after he filed his civilian complaint with the police department and only two days after he filed his Notice of Claim against Sanders with the Village Clerk.

In an unrelated context (i.e., an adverse employment action case), this Court has held that: timing alone–i.e., when an adverse employment action follows closely in time a plaintiff’s protected speech–can serve as circumstantial evidence of causation.

See Gorman-Bakos v. Cornell Cooperative Extension of Schenectady Cty., 252 F.3d 545, 554 (2d Cir. 2001); Scheiner v. New York City Health + Hospitals, 152 F. Supp. 2d 487, 496 (S.D.N.Y. 2001).

The facts here more than suffice to create a genuine issue of material fact regarding causation).

Stein v. Janos, 269 F.Supp.2d 256, 260 (S.D.N.Y. 2009 [McMahon, J.]).  It is, at a minimum, an issue of fact as to whether Sanders’s arrest and prosecution of the plaintiff was in retaliation for plaintiff’s lodging of grievances against Sanders.

Under no set of facts could it be concluded that the defendant Sanders’s actions were entitled to qualified immunity.  However, at a minimum, an issue of fact exists and the motion should be denied.

POINT IV

THE DEFENDANTS BRIAN MOORE

AND GARY CARTER ARE NOT ENTITLED

TO QUALIFIED IMMUNITY IN THIS ACTION

July 18, 2009

First Amendment Retaliation and Fourteenth Amendment Selective Prosecution Claims

The plaintiff alleges that he was not returned to his position as a laborer with the Department of Public Works of the Village of St. Augustine in retaliation for his filing of a Notice of Claim with the Village on July 16, 2009.  The defendants Brian Moore and Gary Carter claim that their actions in not returning plaintiff to his position are entitled to qualified immunity.

As this Court recently stated:

To determine whether a right was clearly established, a court must consider “

(1) whether the right in question was defined with ‘reasonable specificity’;

(2) whether the decisional law of the Supreme Court and the applicable circuit court support the existence of the right in question; and

(3) whether under preexisting law a reasonable defendant official would have understood that his or her acts were unlawful.”

Jermosen v. Smith, 945 F.2d 547, 550 (2d Cir. 1991). “For over 30 years the Supreme Court has consistently held that while the government enjoys significantly greater latitude when it acts in its capacity as employer than when it acts as sovereign, the First Amendment nonetheless prohibits it from punishing its employees in retaliation for the content of their protected speech.” Locurto v. Safir, 264 F.3d 154, 166 (2d Cir. 2001).

Stein v. Janos, 269 F.Supp.2d 256, 262 (S.D.N.Y. 2009 [McMahon, J.])  This Court recognizes, and plaintiff claims, both First Amendment retaliation claims as well as Speech Based Equal Protection Fourteenth Amendment claims. See, Kantha v. Blue, 262 F.Supp.2d 90 at 100-101 and at 107 (S.D.N.Y. 2009 [McMahon, J.]).

In this action, the plaintiff and another individual, Henry Vesuvius, held similar positions within the Village Department of Public Works.  Both were arrested for the exact same felony drug charge (Plaintiff’s Deposition, pp. 117-119; 137-38).  All criminal charges against plaintiff were dismissed.  Vesuvius admitted his guilt to a misdemeanor drug charge (Plaintiff’s Deposition, pp. 149-151).  In addition, Vesuvius was accused of a second felony crime while he was out on bail (Plaintiff’s Deposition, p. 152).  Plaintiff was law abiding while he was out on bail.  Finally, Vesuvius spent approximately eight months in jail, while the plaintiff was at liberty.  Nonetheless, defendants Carter and Moore put Vesuvius back to work within two weeks of his release from jail.  The same defendants refuse to put the plaintiff back to work (Plaintiff’s Deposition, pp. 45-46; 164-66).

Plaintiff submits that the only difference between his circumstances and Vesuvius’ circumstances is that plaintiff had filed a Notice of Claim against the Village (Plaintiff’s Deposition, p. 109).  As in Point III, supra, the timing of the events is circumstantial evidence of a causal nexus between plaintiff’s exercise of his constitutional rights and the defendants’ refusal to put him back to work.  Moreover, plaintiff spoke directly to defendant Carter about going back to work, and Carter’s response was that plaintiff had an action pending against the Village.  A few weeks later, when plaintiff approached Carter a second time about going back to work, Carter’s response was that it was the Mayor, (i.e., the defendant Moore) and not Carter himself, who was preventing plaintiff from returning to work.  Subsequently, the defendant Moore refused to meet with the plaintiff.

For purposes of qualified immunity, the identity of the policymaking body is irrelevant.  The facts as alleged by plaintiff are that, at all times, the defendant Carter was in charge of his hiring and, whenever he sustained an injury that prevented him from working for a period of time, Carter was in charge of his re-hiring (Plaintiff’s Deposition, pp. 22-26).  However, this time, in Spring 2010, when the plaintiff sought to return to work, Carter referred to the existence of a lawsuit against the Village as the reason plaintiff was not going back to work.  Moreover, Carter also informed plaintiff that the defendant Moore was the person preventing plaintiff from returning to work.  These facts, if proven to a finder of fact, constitute a deprivation of plaintiff’s rights under the First and Fourteenth Amendments by Carter and Moore.  It does not matter whether or not they had ultimate statutory authority to hire or fire.  As long as they used their positions in the hiring/firing chain of command to retaliate against the plaintiff, liability exists and the defense of qualified immunity does not protect them.

Equitable Relief

In addition to money damages, plaintiff also claims equitable relief: i.e., to return to his position as a laborer.  As discussed in Point II, supra, qualified immunity is not a defense to an equitable claim.  Accordingly, plaintiff’s claim for reinstatement should survive this motion under all circumstances.

CONCLUSION

Accordingly, for the reasons set forth above, the motion brought by all defendants to dismiss all causes of action, with prejudice, pursuant to Rule 12(c) of the Federal Rules of Civil Procedure on the grounds of qualified immunity, should be denied in its entirety.

Dated: White Plains, New York

October 12, 2010

Respectfully submitted,

                                                                                    MARTIN + COLIN, P.C.

                                                                                    ____________________________

                                                                                    WILLIAM MARTIN

                                                                                    Attorneys for Plaintiff

                                                                                    Office and Post Office Address:

                                                                                    44 Church Street

                                                                                    White Plains, New York 10601

                                                                                    (914) 771 7711

The injury lawyers at Martin Colin, P.C., headquartered in White Plains, New York, handle accident claims, negligence and personal injury cases.  If you have been hurt in an accident due to the negligence of another person, our attorneys may be able to help.

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