Opinion
1:18-CV-01023 EAW-LGF
2022-03-02
Matthew SINGLETARY, Plaintiff, v. Don ALLEN, et al., Defendants.
Fares A. Rumi, Matthew A. Albert, The Phoenix Law Group PLLC, Darien Center, NY, for Plaintiff. Jacob A. Piorkowski, The Tarantino Law Firm, LLP, Buffalo, NY, for Defendant Don Allen. David M. Lee, Pro Hac Vice, Corporation Counsel the City of Buffalo, Maeve Eileen Huggins, City of Buffalo Law Department, Buffalo, NY, for Defendants Marcus Fears, James Whitaker, John Doe 1 and 2, John Doe 2-5. David M. Lee, Corporation Counsel the City of Buffalo, Maeve Eileen Huggins, City of Buffalo Law Department, Buffalo, NY, for Defendant City of Buffalo. Anthony M. Kroese, Peter F. Brady, Samantha Victoria Catone, Goldberg Segalla LLP, Buffalo, NY, for Defendant Juneteenth Festival Inc.
Fares A. Rumi, Matthew A. Albert, The Phoenix Law Group PLLC, Darien Center, NY, for Plaintiff.
Jacob A. Piorkowski, The Tarantino Law Firm, LLP, Buffalo, NY, for Defendant Don Allen.
David M. Lee, Pro Hac Vice, Corporation Counsel the City of Buffalo, Maeve Eileen Huggins, City of Buffalo Law Department, Buffalo, NY, for Defendants Marcus Fears, James Whitaker, John Doe 1 and 2, John Doe 2-5.
David M. Lee, Corporation Counsel the City of Buffalo, Maeve Eileen Huggins, City of Buffalo Law Department, Buffalo, NY, for Defendant City of Buffalo.
Anthony M. Kroese, Peter F. Brady, Samantha Victoria Catone, Goldberg Segalla LLP, Buffalo, NY, for Defendant Juneteenth Festival Inc.
DECISION AND ORDER
ELIZABETH A. WOLFORD, Chief Judge
INTRODUCTION
Plaintiff Matthew Singletary ("Plaintiff") commenced the instant lawsuit pursuant to 42 U.S.C. § 1983 and New York state law alleging that moving defendants Officer Marcus Fears ("Fears"), Officer James Whitaker (Whitaker"), Officers John Doe 1-5, and the City of Buffalo (collectively "Moving Defendants"), among others, used excessive force against him, falsely arrested him, and illegally searched him. Presently before the Court is Moving Defendants’ motion for judgment on the pleadings and summary judgment. (Dkt. 75). For the reasons that follow, Moving Defendants’ motion is granted in part and denied in part.
FACTUAL BACKGROUND
The following facts are derived from Moving Defendants’ Statement of Undisputed Material Facts (Dkt. 75-2) ("Moving Defendants’ Statement") submitted in support of their motion for summary judgment and Plaintiff's response to Moving Defendants’ Statement (Dkt. 81-1). Unless otherwise noted, these facts are undisputed.
The Juneteenth Festival is a multiday festival that takes place at the Martin Luther King, Jr. Park in Buffalo, New York, and includes events and performances to commemorate the Juneteenth holiday. (Dkt. 75-2 at ¶ 1; Dkt. 81-1 at ¶ 1). The Juneteenth Festival is staffed by members of the Buffalo Peacemakers and security. (Dkt. 75-2 at ¶ 2; Dkt. 81-1 at ¶ 2). The Buffalo Police Department also assigns officers to details so that they are available to respond to radio calls as needed. (Dkt. 75-2 at ¶ 2; Dkt. 81-1 at ¶ 2).
On June 18, 2017, Plaintiff attended the Juneteenth Festival and was standing near the stage. (Dkt. 75-2 at ¶¶ 3, 4; Dkt. 81-1 at ¶¶ 3, 4). Plaintiff testified that five individuals—at least some of whom he believes were police officers—formed a line and approached him. (Dkt. 75-2 at ¶ 5; Dkt. 81-1 at ¶ 5). Plaintiff asserts that these individuals asked him for his backpack, immediately pepper sprayed his eyes, and slammed him to the ground. (Dkt. 75-2 at ¶ 6; Dkt. 81-1 at ¶ 6).
Buffalo Police Officers Fears and Whitaker claim they observed members of Peacemakers initially interacting with Plaintiff. (Dkt. 75-2 at ¶ 9; Dkt. 81-1 at ¶ 9 (admitting that this was Officers Fears’ and Whitaker's testimony)). Around the same time, Officers Fears and Whitaker claim that they received a radio call regarding a male with a possible knife making threats. (Dkt. 75-2 at ¶ 9; Dkt. 81-1 at ¶ 9 (admitting that this was Officers Fears’ and Whitaker's testimony but noting that there is "no record of this radio call or any indication at all that this man with a knife call relates to the Plaintiff of even the Juneteenth festival")). Officers Fears and Whitaker claim that they began to approach Plaintiff and the Peacekeepers, and by the time they arrived, Plaintiff had been taken to the ground and pepper sprayed by individuals who appeared to Officers Fears and Whitaker to be security and members of the Peacekeepers. (Dkt. 75-2 at ¶ 10; Dkt. 81-1 at ¶ 10 (admitting that this was Officers Fears’ and Whitaker's testimony)). Officers Fears and Whitaker also assert that Plaintiff's backpack had already been removed. (Dkt. 75-2 at ¶ 10; Dkt. 81-1 at ¶ 10 (admitting that this was Officers Fears’ and Whitaker's testimony)). Officer Whitaker handcuffed Plaintiff and, with Officer Fears, walked Plaintiff to their police vehicle. (Dkt. 75-2 at ¶ 11; Dkt. 81-1 at ¶ 11 (asserting that officers threw him into the police car, ignoring other individuals who claimed that Plaintiff had been assaulted)).
According to Moving Defendants, a crowd had gathered, people began shouting, and Officers Fears and Whitaker became concerned that the situation may escalate. (Dkt. 75-2 at ¶¶ 12, 13). According to Plaintiff, the public was protesting the brutality Plaintiff had experienced and were "saying that Plaintiff had done nothing wrong." (Dkt. 81-1 at ¶ 12). Officers Fears and Whitaker transported Plaintiff to a nearby police station, which Plaintiff asserts was against his will. (Dkt. 75-2 at ¶ 13; Dkt. 81-1 at ¶ 13). Moving Defendants claim that at the police station, Plaintiff's backpack was searched, and he was questioned. (Dkt. 75-2 at ¶ 14). Plaintiff asserts that he was fully searched twice while in handcuffs, and no one responded to his inquiry into why this was occurring. (Dkt. 81-1 at ¶¶ 14, 16).
Back at the Juneteenth Festival, Moving Defendants contend that officers tried to investigate. (Dkt. 75-2 at ¶ 15). However, according to Moving Defendants, security and members of the Peacekeepers were unwilling to cooperate or provide further information. (Id. at ¶ 15; Dkt. 81-1 at ¶ 15 (admitting that officers made such statements but arguing that such statements "sound somewhat nonsensical")).
Moving Defendants state that based on the lack of information, officers removed Plaintiff from handcuffs and did not file criminal charges against him. (Dkt. 75-2 at ¶ 16). Plaintiff does not contest that no formal charges were filed against him, but contends that he was handcuffed for an extended period of time and initially denied water to clear his eyes of pepper spray despite numerous requests. (Dkt. 81-1 at ¶ 16).
PROCEDURAL HISTORY
Plaintiff initially brought this action on September 17, 2018. (Dkt. 1). The operative pleading is the second amended complaint filed on January 25, 2021. (Dkt. 54).
Discovery closed on March 26, 2021. (Dkt. 46). On June 25, 2021, Moving Defendants filed the instant motion for judgment on the pleadings and summary judgment. (Dkt. 75). Plaintiff filed his opposition to the motion on August 6, 2021 (Dkt. 81), and Moving Defendants replied on August 20, 2021 (Dkt. 82).
DISCUSSION
I. Legal Standards Governing Motions for Judgment on the Pleadings
"Judgment on the pleadings may be granted under Rule 12(c) where the material facts are undisputed and where judgment on the merits is possible merely by considering the contents of the pleadings." McAuliffe v. Barnhart , 571 F. Supp. 2d 400, 402 (W.D.N.Y. 2008). "In deciding a Rule 12(c) motion for judgment on the pleadings, the court should ‘apply the same standard as that applicable to a motion under Rule 12(b)(6), accepting the allegations contained in the complaint as true and drawing all reasonable inferences in favor of the nonmoving party.’ " Aboushama v. EMF Corp. , 214 F. Supp. 3d 202, 205 (W.D.N.Y. 2016) (quoting Mantena v. Johnson , 809 F.3d 721, 727-28 (2d Cir. 2015) ).
"In considering a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), a district court may consider the facts alleged in the complaint, documents attached to the complaint as exhibits, and documents incorporated by reference in the complaint." DiFolco v. MSNBC Cable L.L.C. , 622 F.3d 104, 111 (2d Cir. 2010). To withstand dismissal, a complaint must set forth "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Turkmen v. Ashcroft , 589 F.3d 542, 546 (2d Cir. 2009) (quoting Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ).
"While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly , 550 U.S. at 555, 127 S.Ct. 1955 (internal quotations and citations omitted). "To state a plausible claim, the complaint's ‘[f]actual allegations must be enough to raise a right to relief above the speculative level.’ " Nielsen v. AECOM Tech. Corp. , 762 F.3d 214, 218 (2d Cir. 2014) (quoting Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ).
II. Legal Standards Governing Motions for Summary Judgment
Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment should be granted if the moving party 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 should grant summary judgment if, after considering the evidence in the light most favorable to the non-moving party, the Court finds that no rational jury could find in favor of that party. Scott v. Harris , 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ).
"The moving party bears the burden of showing the absence of a genuine dispute as to any material fact...." Crawford v. Franklin Credit Mgmt. Corp. , 758 F.3d 473, 486 (2d Cir. 2014). "Where the non-moving party will bear the burden of proof at trial, the party moving for summary judgment may meet its burden by showing the evidentiary materials of record, if reduced to admissible evidence, would be insufficient to carry the non-movant's burden of proof at trial." Johnson v. Xerox Corp. , 838 F. Supp. 2d 99, 103 (W.D.N.Y. 2011) (citing Celotex Corp. v. Catrett , 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ). Once the moving party has met its burden, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts, and may not rely on conclusory allegations or unsubstantiated speculation." Robinson v. Concentra Health Servs., Inc. , 781 F.3d 42, 44 (2d Cir. 2015) (quoting Brown v. Eli Lilly & Co. , 654 F.3d 347, 358 (2d Cir. 2011) ). Specifically, the non-moving party "must come forward with specific evidence demonstrating the existence of a genuine dispute of material fact." Brown v. Eli Lilly & Co. , 654 F.3d 347, 358 (2d Cir. 2011). Indeed, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
III. Claims Against Officers John Doe 1-5
Plaintiff brought suit against unidentified City of Buffalo police officers under: (1) § 1983 for excessive force (against Officer John Doe 1); (2) § 1983 for false arrest (against Officers John Doe 1-5); (3) § 1983 for illegal search (against Officers John Doe 1-5); (4) New York state law for false arrest (against Officers John Doe 1-5); and (5) the New York State Constitution Article 1, Section 12 for illegal search (against Officers John Doe 2-5). (Dkt. 54). Moving Defendants assert that all claims against Officers John Doe 1-5 must be dismissed. (Dkt. 75-1 at 8-10). Specifically, Moving Defendants note that Plaintiff has not identified these defendants, has had sufficient time to do so, and was required to name them within the applicable statute of limitations for each cause of action brought against them. (Id. ).
Plaintiff has conceded dismissal of his § 1983 claims against Officers John Doe 1-5. (See Dkt. 81 at 1). In contrast, Plaintiff has not addressed Moving Defendants’ arguments that the state law claims against Officers John Doe 1-5 should be dismissed. The Court could consider these claims abandoned. Jackson v. Fed. Express , 766 F.3d 189, 198 (2d Cir. 2014) ("[I]n the case of a counseled party, a court may, when appropriate, infer from a party's partial opposition that relevant claims or defenses that are not defended have been abandoned."). However, the Court does not believe this is the appropriate approach because it is apparent that Plaintiff still wishes to pursue these claims and has in fact argued that the Court should grant summary judgment in his favor with regard to these claims. (See Dkt. 81 at 2 ("Thus, the Court should grant summary judgment to the Plaintiff relative to ... all state unlawful arrest and unlawful search claims against ... the Doe Defendants.")). Therefore, the Court analyzes the merits of Moving Defendants’ argument in support of dismissing the state law claims against Officers John Doe 1-5.
The Court agrees with Moving Defendants (Dkt. 82 at 3-5) that insofar as Plaintiff has suggested that he is entitled to summary judgment in his response papers to the present motion (Dkt. 81 at 2, 13), Plaintiff has failed to file the appropriate motion papers for the Court to adjudicate. See L. R. Civ. Pro. 7(a)(1) ("A notice of motion is required for all motions."); id. at 56(a)(1) ("Upon any motion for summary judgment pursuant to Fed.R.Civ.P. 56, there shall be annexed to the notice of motion a separate, short, and concise statement, in numbered paragraphs, of the material facts as to which the moving party contends there is no genuine issue to be tried.").
This Court has recognized that "[w]here a plaintiff names ‘John Doe’ as a placeholder defendant because he does not know the identity of an individual defendant, he generally is required to replace the placeholder with a named party within the applicable statute of limitations period." Ortiz v. Wagstaff , 523 F. Supp. 3d 347, 360 (W.D.N.Y. 2021) (internal quotation marks and citation omitted). Further, courts have generally recognized that New York General Municipal Law § 50-i applies to causes of action brought against a municipality's employees or officers who the municipality must indemnify, which provides a claimant one year and ninety days after the claim accrues to file suit. See Rentas v. Ruffin , 816 F.3d 214, 226 (2d Cir. 2016) ; Conte v. County of Nassau , 596 F. App'x 1, 5 (2d Cir. 2014) (noting that New York's General Municipal Law § 50-i "takes precedence" in suits against a municipality's officers "if the municipality is required to indemnify the defendant"). Otherwise, a false imprisonment claim must be brought within one year, N.Y. C.P.L.R. § 215(3), and a New York State Constitutional claim must be brought within three years, Tanner v. Humphries , No. 6:16-cv-1131, 2019 WL 974821, at *2 (N.D.N.Y. Feb. 28, 2019) (collecting cases and noting that actions for New York State Constitutional torts fall under New York's statute of limitations related to personal injury actions).
Over four years have passed since the alleged incidents underlying Plaintiff's claims occurred. (Dkt. 54 at ¶¶ 14-36). The statutes of limitations for Plaintiff's state law claims have expired, and Plaintiff has not demonstrated that he "exercise[d] due diligence, prior to the running of the statute of limitations, to identify [Officers John Doe 1-5] by name." Ortiz , 523 F. Supp. 3d at 360 (citation omitted and setting forth requirements for nunc pro tunc substitution of John Doe parties under New York law). Under these circumstances, there is no basis to conclude that Plaintiff could successfully pursue any state law claims against Officers John Doe 1-5.
Plaintiff does state in the procedural history section of his opposition brief that "numerous amendments of the complaint needed to be filed in conjunction with pre-action and post action discovery to try to ascertain the identity of the correct parties. Ultimately, the final amended complaint was filed and served amongst the existing parties." (Dkt. 82 at 2). However, this vague statement does not provide the Court with any reason to believe that Plaintiff will discover the identity of Officers John Doe 1-5 or that he has exercised appropriate diligence in attempting to do so, and the Court cannot allow this case to proceed to trial against anonymous defendants. Based on the foregoing and Plaintiff's conceded dismissal of his federal claims against Officers John Doe 1-5, the Court dismisses all claims against Officers John Doe 1-5. IV. Plaintiff's New York State Constitutional Claim
Because all claims against Officers John Doe 1-5 are dismissed, the Court need not and does not reach certain arguments made by Moving Defendants. First, as it relates to them, Moving Defendants seek to dismiss Plaintiff's § 1983 excessive force claim (Dkt. 75-1 at 12-15), which was brought against Officer John Doe 1 and a non-moving defendant (Dkt. 54 at 4). Because Plaintiff conceded dismissal of his federal claims against Officer John Doe 1, the Court need not reach this issue. Second, and relatedly, the individually named Moving Defendants seek to dismiss all official capacity claims brought against them. (Dkt. 75-1 at 8). As relevant to Moving Defendants, Plaintiff only pursued an official capacity suit against Officer John Doe 1 as part of his § 1983 claim of excessive force. Because that claim has been dismissed, the Court also need not reach this aspect of Moving Defendants’ motion.
Moving Defendants also seek to dismiss Plaintiff's New York State Constitutional Claim, which was brought against the City of Buffalo and Officers John Doe 1-5. (Dkt. 75-1 at 24-25). Because all claims against Officers John Doe 1-5 have been dismissed, the Court analyzes whether Plaintiff's New York State Constitutional claim against the City of Buffalo survives.
Moving Defendants correctly note (Dkt. 75-1 at 24) that "[t]he New York State Constitution provides a private right of action where remedies are otherwise unavailable at common law or under § 1983." Allen v. Antal , 665 F. App'x 9, 13 (2d Cir. 2016) ; see also Alwan v. City of New York , 311 F. Supp. 3d 570, 586 (E.D.N.Y. 2018) ("Federal courts in this circuit have ... uniformly held that no private right of action exists for violations of the New York State Constitution where the plaintiff has an alternative remedy under § 1983 for violations of parallel provisions of the U.S. Constitution.").
However, Moving Defendants’ argument that "Plaintiff asserts essentially the same illegal search and seizure claims pursuant to Section 1983 ... [and his] New York State Constitutional claim is, therefore, duplicative, and properly subject to dismissal with prejudice" (Dkt. 75-1 at 25 (internal citation omitted)) fails. Plaintiff's New York State Constitutional claim is against the City of Buffalo, and " § 1983 does not provide an adequate alternative remedy for Plaintiff's state-constitutional claims, to the extent they are asserted against the City [of Buffalo] under a theory of respondeat superior." Alwan , 311 F. Supp. 3d at 587 ; see Brown v. New York , 89 N.Y.2d 172, 193-94, 652 N.Y.S.2d 223, 674 N.E.2d 1129 (1996) (New York Court of Appeals recognizing that the "the State and its subdivisions" can be held vicariously liable under the New York State Constitution and holding that "[a] plaintiff seeking to recover on the basis of respondeat superior simply does not come within the terms of section 1983"). While a "state constitutional-tort claim will not lie when state tort law provides an alternative means of redress," Moving Defendants have not identified an alternative state cause of action that could have been brought to redress Plaintiff's illegal search claim against the City of Buffalo based on a respondeat superior theory. See Alwan , 311 F. Supp. 3d at 588 ; see also Buari v. City of New York , 530 F. Supp. 3d 356, 409 (S.D.N.Y. 2021) ("[The plaintiff's] state constitutional due process claim survives, however, insofar as he seeks to hold the City liable under the doctrine of respondeat superior. " (collecting cases)). For these reasons, Plaintiff's New York State Constitutional claim may proceed.
Plaintiff has not directly addressed Moving Defendants’ argument regarding his New York State Constitutional claim. However, Plaintiff has asserted that "[t]here is integral evidence and sufficient facts that, when taken into account, defeat said Defendants’ claims for summary judgment, specifically in regards to ... all state claims against the City of Buffalo ... under a theory of municipal liability." (Dkt. 81 at 1). Because the Court does not infer that Plaintiff has abandoned this claim, it analyzes the merits of Moving Defendants’ argument.
V. Plaintiff's § 1983 False Arrest Claim
Next, Moving Defendants assert that Plaintiff's § 1983 false arrest claim against Officers Fears and Whitaker must be dismissed because: (1) probable cause, or at least reasonable suspicion, supported Plaintiff's detention; and (2) Officers Fears and Whitaker are entitled to qualified immunity. (Dkt. 75-1 at 15-22). Plaintiff asserts that he was arrested as a matter of law and without probable cause. (Dkt. 81 at 5-10). In the alternative, Plaintiff argues that Officers Fears and Whitaker lacked reasonable suspicion to warrant a Terry stop. (Id. ). Plaintiff also argues that qualified immunity does not apply to this case. (Id. at 10-13).
"In analyzing § 1983 claims for unconstitutional arrest, [courts] generally look[ ] to the law of the state in which the arrest occurred." Davis v. Rodriguez , 364 F.3d 424, 433 (2d Cir. 2004). In New York, a plaintiff alleging false arrest must demonstrate that: "(1) the defendant intended to confine 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 privileged." Singer v. Fulton Cnty. Sheriff , 63 F.3d 110, 118 (2d Cir. 1995) (internal quotation marks, alterations, and citation omitted), cert. denied , 517 U.S. 1189, 116 S.Ct. 1676, 134 L.Ed.2d 779 (1996).
At the outset, Moving Defendants have not conceded that an arrest in fact occurred. (See Dkt. 75-1 at 19 ("Therefore, probable cause, or at a minimum reasonable suspicion supported Plaintiff's brief detention, and the City Defendants are entitled to summary judgment."); Dkt. 75-7 at ¶ 26 ("Nor was Plaintiff ever formally arrested or charged with any offense.")). "[A]lthough there is no bright line rule differentiating an arrest from a detention supportable by less than probable cause, whether a seizure is an arrest or merely an investigatory detention depends on the reasonableness of the level of intrusion under the totality of the circumstances." Mingo v. Augustyn , No. 19-CV-0211, 2021 WL 2446856, at *7 (W.D.N.Y. June 16, 2021), adopted , 2022 WL 224645 (W.D.N.Y. Jan. 26, 2022) (internal quotation marks, alterations, and citation omitted).
Officers Fears and Whitaker initially observed Plaintiff when they saw him interacting with Peacemakers at the Juneteenth Festival. (Dkt. 75-6 at ¶ 9; Dkt. 75-7 at ¶ 9). Around the same time, Officers Fears and Whitaker allege that they received a radio call regarding a male with a possible knife making threats. (Dkt. 75-6 at ¶ 10; Dkt. 75-7 at ¶ 10). They drove their patrol vehicle closer to the interaction, and by the time they arrived, Plaintiff had been pepper sprayed and brought to the ground. (Dkt. 75-6 at ¶¶ 11-12; Dkt. 75-7 at ¶¶ 11-12).
At this point, Officers Fears and Whitaker possessed reasonable suspicion to conduct an appropriate investigatory stop. Reasonable suspicion requires "specific and articulable facts which, taken together with rational inferences from those facts, provide detaining officers with a particularized and objective basis for suspecting legal wrongdoing." United States v. Stambler , 629 F. App'x 104, 107 (2d Cir. 2015) (internal quotations marks and citation omitted), cert. denied , 578 U.S. 936, 136 S.Ct. 1691, 194 L.Ed.2d 792 (2016). "This standard is not high; rather, it requires only facts sufficient to give rise to a reasonable suspicion that criminal activity may be afoot." Dancy v. McGinley , 843 F.3d 93, 106 (2d Cir. 2016) (internal quotation marks and citations omitted).
Viewing security pepper spray a festival goer and bring him to the ground is an articulable reason to believe criminal activity had occurred and justifies an initial investigatory stop. See Dancy , 843 F.3d at 106 ("An indication of possible illicit activity is properly informed by commonsense judgments and inferences about human behavior." (internal quotation marks and citation omitted)); United States v. Patterson , 25 F.4th 123, 136 (2d Cir. 2022) (noting that reasonable suspicion does not "require authorities to eliminate all possible innocent explanations for conduct before deeming it suspicious" (internal quotation marks and citation omitted)).
But the Court cannot conclude as a matter of law that Officers Fears’ and Whitaker's interactions with Plaintiff did not rise beyond the level of an investigatory stop and amount to an arrest. "For an investigatory stop to be conducted in an appropriate manner the stop must be limited to the degree of intrusion necessary to confirm or dispel the reasonable suspicion that justifies the stop in the first place." Patterson , 25 F.4th at 140 (internal quotation marks and citation omitted). Otherwise, the stop may transform into a de facto arrest. In analyzing whether this has occurred, courts consider the "amount of force used by the police, the need for such force, and the extent to which an individual's freedom of movement was restrained, and in particular such factors as the number of agents involved, whether the target of the stop was suspected of being armed, the duration of the stop, and the physical treatment of the suspect, including whether or not handcuffs were used." Stambler , 629 F. App'x at 107-08 (internal quotation marks and citation omitted).
Based on Officers Fears’ and Whitaker's affidavits, their initial response was to handcuff Plaintiff and walk him to the police vehicle. (Dkt. 75-6 at ¶ 13; Dkt. 75-7 at ¶ 13). Officer Fears then "immediately" drove him to the police station. (Dkt. 75-6 at ¶ 15). Plaintiff maintains that the transport was against his will, that he was at the station for about an hour, and that his initial requests for water to clear his eyes were ignored. (Dkt. 75-5 at 30; Dkt. 81-1 at ¶¶ 13, 16).
A jury is in the best position to weigh the circumstances of the situation—including a potentially hostile crowd (Dkt. 75-10 at 2)—and determine whether Plaintiff's detainment was "reasonably related in scope to the circumstances" justifying the stop such that a de facto arrest did not occur. Stambler , 629 F. App'x 104, 107-08 ("Courts assess whether an investigative stop is too long in duration by considering whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant." (internal quotation marks and citation omitted)); see also United States v. Sharpe , 470 U.S. 675, 686, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985) ("A court making this assessment should take care to consider whether the police are acting in a developing situation, and in such cases the court should not indulge in unrealistic second-guessing."); Patterson , 25 F.4th at 143 ("We have continued to stress that handcuffing and drawing weapons remain hallmarks of a formal arrest, not a Terry stop." (internal quotation marks, alterations, and quotation omitted)); United States v. Fiseku , 915 F.3d 863, 870 (2d Cir. 2018) (noting that one of the factors to consider in deciding whether a de facto arrest has occurred is whether the "stop" occurred in a public or private setting), cert. denied , ––– U.S. ––––, 139 S. Ct. 1643, 203 L.Ed.2d 917 (2019) ; United States v. Weaver , 9 F.4th 129, 140 (2d Cir. 2021) (noting that "Terry made room for a range of reasonable police responses depending on the circumstances"); Mingo , 2021 WL 2446856, at *8 (noting that "in a section 1983 action, it will usually be a jury's task to decide whether a detention amounted to a de facto arrest, since the issue of precisely when an arrest takes place is a question of fact" (internal quotation marks, alterations, and citation omitted)).
Additionally, a jury's assessment of whether the conduct of Officers Fears and Whitakers amounted to an arrest is necessary because the Court cannot conclude as a matter of law that Officers Fears and Whitaker possessed probable cause. In connection with their argument about probable cause, Moving Defendants refer to a radio call Officers Fears and Whitaker received around the same time they witnessed the encounter between Plaintiff and security. (Dkt. 75-1 at 18). Officers Fears and Whitaker assert that the radio call referred to a man making threats with a knife. (Id. ). However, Plaintiff has highlighted issues with the suggestion that this radio call provided Officers Fears and Whitaker with probable cause to arrest Plaintiff. (Dkt. 81 at 7). Specifically, Officers Fears and Whitaker have not indicated whether a description of the suspect was provided during the radio call that would have provided them with an objective reason to associate Plaintiff with the suspect making threats with a knife. See Dancy , 843 F.3d at 109 (noting that the description of the suspect as thin, Black, and male is too vague to justify the stop of anyone meeting those characteristics). Plaintiff also notes that Officers Fears and Whitaker did not indicate whether the radio call specified that the suspect was even at the Juneteenth Festival. Mingo , 2021 WL 2446856, at *10 (noting that there were "genuine issues of fact as to the pertinent events and the officer's knowledge at the time defendants claim Mingo was arrested" (internal quotation marks, alterations, and citation omitted)). Additionally, the record includes a seemingly contemporaneous report from a lieutenant who was present at the time stating that he responded to the scene based on a radio call of a fight (Dkt. 75-10 at 2), which could put into further doubt the veracity of Officers Fears’ and Whitaker's accounts. Consequently, the Court cannot conclude as a matter of law that Officers Fears and Whitaker had probable cause to arrest Plaintiff.
Relatedly, Officers Fears and Whitaker are not entitled to qualified immunity as a matter of law. Qualified immunity "shields officers from civil liability so long as their conduct ‘does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ " City of Tahlequah v. Bond , ––– U.S. ––––, 142 S. Ct. 9, 11, 211 L.Ed.2d 170 (2021) (quoting Pearson v. Callahan , 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) ). To constitute a clearly established right, courts look at prior precedent to determine whether is "it is ‘sufficiently clear that every reasonable official would have understood that what he is doing violates that right.’ " Rivas-Villegas v. Cortesluna , ––– U.S. ––––, 142 S. Ct. 4, 7, 211 L.Ed.2d 164 (2021) (quoting Mullenix v. Luna , 577 U.S. 7, 11, 136 S.Ct. 305, 193 L.Ed.2d 255 (2015) ).
"Without a doubt, the right not to be arrested without probable cause is clearly established." Martinez v. Simonetti , 202 F.3d 625, 634 (2d Cir. 2000). Nonetheless, "[a]n officer is entitled to qualified immunity against a suit for false arrest if he can establish that he had arguable probable cause to arrest the plaintiff." Garcia v. Does , 779 F.3d 84, 92 (2d Cir. 2015) (internal quotation marks and citation omitted). "Arguable probable cause exists if either (a) it was objectively reasonable for the officer to believe that probable cause existed, or (b) officers of reasonable competence could disagree on whether the probable cause test was met." Id. (internal quotation marks and citation omitted). But "[a]rguable probable cause should not be misunderstood to mean almost probable cause." Jenkins v. City of New York , 478 F.3d 76, 87 (2d Cir. 2007) (internal quotation marks and citation omitted). "If officers of reasonable competence would have to agree that the information possessed by the officer at the time of arrest did not add up to probable cause, the fact that it came close does not immunize the officer." Dancy , 843 F.3d at 107 (internal quotation marks and citation omitted).
Because there are material issues of fact as to whether Plaintiff was arrested, and whether any such arrest was supported by probable cause, the Court cannot conclude that it was objectively reasonable for Officers Fears and Whitaker to believe that probable cause existed. Likewise, based on the current record, the Court cannot say that officers of reasonable competence could find that there was probable cause to arrest Plaintiff. Again, the facts are disputed with respect to any such probable cause determination. For these reasons, the Court denies Moving Defendants’ motion for summary judgment on Plaintiff's § 1983 false arrest claim.
VI. Plaintiff's § 1983 Illegal Search Claim
Moving Defendants also assert that their search of Plaintiff's backpack for weapons was reasonable as a matter of law because Officers Fears and Whitaker were investigating the radio call for a male with a knife making threats. (Dkt. 75-1 at 23). Additionally, they argue that they are entitled to qualified immunity. (Id. ).
The Court notes that Plaintiff's second amended complaint claims Plaintiff "was subject to a warrantless search of [both] his person and his belongings on two occasions while he was held at the City of Buffalo Police Station." (Dkt. 54 at ¶ 73).
The Fourth Amendment of the United States Constitution protects the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. Therefore, warrantless searches are permissible only in certain circumstances.
As relevant to this case, officers may conduct a lawful search incident to arrest. United States v. Bell , No. 19-CR-0717, 2020 WL 370342, at *2 (S.D.N.Y. Jan. 22, 2020) ("The Second Circuit ... has held that a search incident to arrest may be lawful ... if there was probable cause to make the arrest." (internal quotation marks and citation omitted)). "This exception authorizes police to search the arrestee's person and the area within his or her immediate control, which is the area from within which he or she might gain possession of a weapon or destructible evidence." United States v. Morillo , No. 08 CR 676, 2009 WL 3254431, at *3 (E.D.N.Y. Oct. 9, 2009) (internal quotation marks, alterations, and citation omitted). However, as described above, genuine issues of material fact exist as to whether Plaintiff was arrested, and if he was, whether it was a lawful arrest supported by probable cause. Furthermore, it is not clear as to whether the backpack that was searched was within Plaintiff's immediate control. (See Dkt. 75-2 at ¶ 10 (noting that by the time Officers Fears and Whitaker arrived, Plaintiff's backpack had already been removed)). Therefore, the Court cannot conclude as a matter of law that the search was legally permissible as incident to arrest.
Officers are also permitted to conduct a search if there are exigent circumstances. Morillo, 2009 WL 3254431, at *5-7. Exigent circumstances can "justify a warrantless search of a closed container only when the police have reason to believe a container is concealing a dangerous instrumentality and that the hidden danger poses an imminent threat to either the arresting officers or the surrounding public." Id. at *7. Again, as described above, there are gaps in Officers Fears’ and Whitaker's accounts which a jury may find undermines their contentions that they possessed a reasonable fear that Plaintiff was armed or dangerous. Therefore, the Court cannot conclude that the search was legally permissible for safety reasons. For the same reasons, Moving Defendants are not entitled to qualified immunity on the current record, and their motion for summary judgment on Plaintiff's illegal search claim is denied.
VII. Plaintiff's State Law False Arrest Claim
Moving Defendants also seek to dismiss Plaintiff's state law false arrest claim for several reasons. First, they allege that Plaintiff failed to properly plead that he complied with New York's law regarding notice of the claims. (Dkt. 75-1 at 10-11). Second, they allege that the Notice of Claim itself did not refer to Plaintiff's state law claim for false arrest, which would inhibit him from bringing the suit here. (Id. at 11-12). Third, they allege the claim should be dismissed for the same reasons Plaintiff's § 1983 claim for false arrest should be dismissed. (Id. at 23-24). The Court addresses each issue in turn.
A. Failure to Properly Plead Notice of Claim Requirements
" ‘[S]tate notice-of-claim statutes apply to state-law claims asserted as pendant claims in a federal action.’ " Singletary v. Allen , 431 F. Supp. 3d 126, 129 (W.D.N.Y. 2019) (quoting Yennard v. Herkimer BOCES , 241 F. Supp. 3d 346, 366 n.10 (N.D.N.Y. 2017) ). "Under New York law, a notice of claim is a mandatory precondition to bringing a tort claim against a municipality or any of its officers, agents or employees." Grant v. City of Syracuse , No. 5:15-cv-445, 2017 WL 5564605, at *10 (N.D.N.Y. Nov. 17, 2017) (internal quotation marks and citation omitted).
Moving Defendants argue that Plaintiff's state law false arrest claim must be dismissed because, in contravention of state law, Plaintiff failed to plead in the operative complaint that: " ‘(1) a notice of claim was served; (2) at least thirty days elapsed since the notice of claim was filed and before the complaint was filed; and (3) in that time, the defendant neglected or refused to satisfy the claim.’ " (Dkt. 75-1 at 10 (quoting Heim v. Dougherty , No. 1:19-cv-01160, 2020 WL 5659440, at *7 (W.D.N.Y. Aug. 31, 2020) )). Plaintiff argues that even though he did not explicitly include that language in his complaint (Dkt. 81 at 14), he did plead: "Given that plaintiff fulfilled the notice requirements and was examined at a 50-h hearing on January 25, 2018, he is pursuing a state claim as well as a federal claim against said Defendants." (Dkt. 54 at ¶ 69).
The Court recognizes that there was a misnumbering of the second amended complaint but refers to the paragraph numbered "69."
Analyzing essentially identical language, the court in Mingo found that dismissal of the plaintiff's state law claims was not warranted. The court drew a sharp distinction between the inclusion of such language in an operative complaint and a complete failure to plead any facts relating to service of a notice of claim. Mingo , 2021 WL 2446856, at *17.
In accepting and adopting the report and recommendation, the court noted that the defendants in the case did not contend that Magistrate Judge Payson erred in rejecting defendants’ argument that the plaintiff failed to comply with the notice of claim requirements, and the court limited its review and analysis to issues objected to. Mingo , 2021 WL 2446856, at *5 n.11.
This Court finds the reasoning in Mingo persuasive and agrees that Plaintiff's pleading is not so insufficient as to justify dismissal. The Court accordingly denies Moving Defendants’ motion on the condition that Plaintiff amend the complaint within 14 days of entry of this Decision and Order to allege compliance with the notice of claim requirement. See N.Y. Gen. Mun. Law § 50-i(1)(b) (noting that "it shall appear by and as an allegation in the complaint or moving papers that at least thirty days have elapsed since the service of such notice ... and that adjustment or payment thereof has been neglected or refused"); Whitfield v. City of Newburgh , No. 08 CV 8516, 2015 WL 9275695, at *31 (S.D.N.Y. Dec. 17, 2015) ("Those courts that have been confronted with this issue have consistently held, however, that a technical pleading violation, such as for a plaintiff's failure to assert compliance with a notice of claim requirement in his or her complaint, does not require dismissal if the defendant would not be unfairly prejudiced by permitting the plaintiff to amend the complaint to allege compliance with the notice requirements.").
The Court acknowledges Moving Defendants’ point that Plaintiff has not formally requested to amend his complaint and that the scheduling order required any motions to amend be filed before November 27, 2020. (See Dkt. 82 at 5-8). Likewise, in Mingo , the plaintiff had not filed a motion to amend within the deadlines set by the scheduling order or "any time during the nearly two-year period thereafter." Mingo , 2021 WL 2446856, at *16 n.22. However, while counsel is advised to strictly adhere to the statutory pleading requirements in the future, Moving Defendants have not asserted any prejudice to amendment. If Plaintiff fails to amend the complaint, the claim will be dismissed.
B. Failure to Refer to a State Law False Arrest Claim in the Notice of Claim
Next, Moving Defendants assert that Plaintiff's state law false arrest claim must be dismissed because he failed to plead specifically this cause of action in his Notice of Claim. (Dkt. 75-1 at 11-12). Plaintiff asserts he did not need to explicitly list his claim for false arrest because there was sufficient notice that he could pursue such a claim, which in turn allowed Moving Defendants to investigate the circumstances. (Dkt. 81 at 15-16).
Plaintiff is correct. While the case cited by Moving Defendants notes that "[a] plaintiff may not later add a new theory of liability that was not included in the notice of claim," it also states that "[n]ot every cause of action in the Notice of Claim need be set forth in haec verba , as long as the details pertaining to such a claim are described sufficiently ... to enable the city to investigate the claims." Nolan v. County of Erie , No. 1:19-cv-01245, 2021 WL 51004, at *5 (W.D.N.Y. Jan. 6, 2021) (internal quotation marks and citation omitted). Here, the Notice of Claim states that Plaintiff asserts a "[d]eprivation of civil rights afforded ... under both the New York State Constitution and the United States constitution," and that he was "for no legitimate or legal basis whatsoever, handcuffed and transported to Buffalo Police Department's C-District." (Dkt. 75-4 at 3). While Plaintiff's state law claim is not brought under the New York or the United States Constitution, Moving Defendants have admitted that " Section 1983 and state law false arrest claim[s] are analyzed the same" and are "essentially synonymous." (Dkt. 75-1 at 24). Therefore, the Court disagrees that Plaintiff's state law claim for false arrest presents a new theory of liability other than those presented in his Notice of Claim.
C. Summary Judgment
Lastly, Moving Defendants assert that Plaintiff's state law false arrest claim fails because "ample probable cause or arguable probable cause supported Plaintiff's arrest." (Dkt. 75-1 at 24). For the same reasons that the Court concluded it was unable to dismiss Plaintiff's § 1983 false arrest claim, the Court is unable to dismiss Plaintiff's corresponding state law claim. As such, Moving Defendants’ motion for summary judgment on Plaintiff's state law unlawful search claim is denied. CONCLUSION
For the foregoing reasons, Moving Defendants’ motion for judgment on the pleadings and summary judgment (Dkt. 75) is granted in part and denied in part. In particular, the Court grants Moving Defendants’ motion with respect to all claims against Officers John Doe 1-5. The Court denies Moving Defendants’ motion in all other respects, though Plaintiff must file an amended complaint as set forth herein within 14 days if he wishes to pursue his state law false arrest claim.
SO ORDERED.