McKenzie v. City of N.Y.

FRANKLIN MCKENZIE, Plaintiff, v. CITY OF NEW YORK, et al., Defendants.

17 Civ. 4899 (PAE)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

July 22, 2019

OPINION & ORDER

PAUL A. ENGELMAYER, District Judge:

Plaintiff Franklin McKenzie brings this action under 42 U.S.C. §§ 1983 and 1988 and New York law against the City of New York ("City") and New York City Police Department ("NYPD") Officers Francis Twum and Paul Catanzarita (collectively, "defendants"). Against Twum and Catanzarita, McKenzie brings federal claims of false arrest, First Amendment retaliation, excessive force, unlawful search and seizure, deprivation of the right to a fair trial through fabrication of evidence, and malicious prosecution, and a state-law claim of malicious prosecution. Against the City, he brings a federal Monell claim and a state-law claim for respondeat superior liability to the extent of the individual defendants' liability.¹

McKenzie's claims arise out of a December 7, 2014 traffic stop. The Bronx District Attorney's Office brought charges against McKenzie in connection with his conduct immediately following that stop. McKenzie stood trial one charge—for reckless driving—but the Bronx District Attorney's Office dismissed that charge after Twum testified. After the dismissal, McKenzie brought this civil rights action.

With discovery complete on the claims against them,² Twum and Catanzarita now move for summary judgment on all such claims, save the false arrest claim as brought against Twum. For the following reasons, the Court grants Catanzarita's summary judgment motion on the false arrest, First Amendment retaliation, and excessive force claims against him, and Twum's summary judgment motion on the First Amendment retaliation and excessive force claims against him. The Court denies defendants' remaining motions.

I. Background

A. Factual Background³

1. The December 7, 2014 Incident

On December 7, 2014, McKenzie was pulled over by Officer Twum, who was driving a police vehicle and accompanied by another police officer, Sergeant Victor Otero. JSF ¶¶ 1-2. McKenzie and his girlfriend, Shemone Heron, who sat in the passenger seat, were on their way to do laundry and had at least four full laundry bags in the rear seat of the vehicle. Pl. Counter56.1 ¶¶ 2-3. When McKenzie was stopped, Officer Catanzarita and Officer Hector Roman were on foot patrol nearby. JSF ¶ 4. McKenzie's vehicle was stopped approximately four to five feet from a staircase leading to a subway station. Pl. Counter 56.1 ¶ 8.

After pulling up behind McKenzie's vehicle, Twum exited his vehicle and approached the driver's side of McKenzie's vehicle; Otero approached the passenger side. Id. ¶ 10. Twum then asked McKenzie for his driver's license, registration, and insurance. Id. ¶ 11. Catanzarita, observing from across the street, noticed that McKenzie's vehicle and Twum's vehicle had both come to a stop. Catanzarita watched as Twum approached McKenzie's vehicle, interacted with McKenzie, and then returned to his vehicle. Id. ¶ 18. Catanzarita and Roman then walked over to the scene of the vehicle stop. JSF ¶ 5.

McKenzie's account of what happened next is as follows. McKenzie attests that he asked Catanzarita why he had been stopped, that Catanzarita went to speak to Twum, and that Twum then returned to McKenzie's vehicle and ordered that he turn the vehicle off. Pl. Counter 56.1 ¶¶ 21, 26; see also Dkt. 69-1 ("McKenzie Dep.") at 57. McKenzie further attests that he asked Twum multiple times why he had been pulled over, but that Twum would not answer his question, stating that he did not have to tell McKenzie anything. Pl. Counter 56.1 ¶ 27; see also McKenzie Dep. at 57-58. According to McKenzie, Twum then ordered him to get out of the vehicle and told him that he was under arrest. Pl. Counter 56.1 ¶¶ 27-28. McKenzie admits that he refused to comply with the order and asked Twum why he was being detained. Id. McKenzie attests that Twum then opened McKenzie's door, reached inside the vehicle, grabbed him by the shoulders and arms, and forcibly removed him from the vehicle with the assistance of Catanzarita. Id. ¶ 29. McKenzie further attests that, as Twum opened the car door to pull McKenzie out of the vehicle, McKenzie reached for his cell phone, which was sitting on thecenter console next to his right hand. Id. ¶ 30. McKenzie argues that he was unable to film the officers using the phone, or even to access his phone, before Twum knocked the phone out of his hand, dragged him out of the car, pushed him against the vehicle, and, with the assistance of Catanzarita, finally placed him in handcuffs. Id. ¶¶ 31, 34. According to McKenzie, the handcuffs, applied tightly, left him with scratches on both arms that took multiple days to heal. Id. ¶ 35.

Numerous aspects of these events are in dispute. First, the parties dispute whether there was a lawful basis for the traffic stop. Although defendants do not seek summary judgment on this point, they contend that the stop was justified because McKenzie was driving recklessly, to wit, that he made a sharp turn that "nearly struck PO Twum's vehicle," "causing PO Twum to swerve . . . to avoid a collision." Def. 56.1 ¶ 5 (citing Dkt. 66-4 ("Twum Dep. I") at 72). In addition, during his deposition, Twum stated that "there were several bags in the vehicle which were blocking the rear windshield of the vehicle." Twum Dep. I at 155. McKenzie disputes these points.

Defendants also dispute various aspects of McKenzie's account of the stop. Defendants attest that McKenzie delayed in complying with requests for his license and registration, screamed and swore at the officers, caused a crowd to gather, refused requests to turn off his vehicle, refused orders to exit his vehicle, and resisted being handcuffed. Def. 56.1 ¶¶ 13-14, 21, 23-24, 26-28, 33-34. According to defendants, in resisting the officers' attempts to place him in handcuffs, McKenzie caused Catanzarita to suffer a laceration to his right hand. Id. ¶ 34. McKenzie denies these allegations. He attests that he never raised his voice, shouted, or used profanity. Pl. Counter 56.1 ¶ 14. McKenzie further attests that, surrounded by police officers, he was worried and scared, and that Twum became agitated and angry when McKenzie continued toask why he had been stopped. Id. ¶ 23. Finally, McKenzie denies physically resisting attempts to handcuff him. Id. ¶ 33.

After arresting McKenzie, officers drove him to the 47^th Precinct in a police vehicle, while another officer drove McKenzie's vehicle to the precinct. JSF ¶¶ 6-8.⁴ McKenzie attests that Twum told Catanzarita to drag Heron from the vehicle if she would not get out and that Heron then exited the vehicle. Pl. Counter 56.1 ¶ 41.

While at the precinct, Twum served McKenzie with two summonses, charging him with reckless driving and disorderly conduct violations under New York law. JSF ¶ 9. An arrest report completed that day stated that McKenzie had violated New York law by resisting arrest, obstructing governmental administration, having a broken mirror, and having an obstructed rear windshield. Id. ¶ 10. The same day, Catanzarita signed a sworn criminal complaint alleging that McKenzie had committed the offense of resisting arrest; Twum signed a sworn deposition substantiating information in Catanzarita's complaint. Id. ¶¶ 11-12. McKenzie attests that, at the time he was served with the summons, Twum told McKenzie that he did not like his attitude. McKenzie Dep. Tr. at 77-78.

On December 8, 2014, McKenzie was arraigned on a resisting arrest charge brought by the Bronx District Attorney's Office on the basis of a criminal complaint signed by Catanzarita. JSF ¶¶ 11, 13. McKenzie was released after approximately 17 hours in custody. Id. ¶ 15.

Although McKenzie's vehicle was not searched at the scene of the traffic stop, McKenzie contends that, upon receipt of his car, he noticed that the laundry bags were not where he left them and that they seemed to have been dumped out and then refilled. Pl. Counter 56.1 ¶¶ 46, 49.

2. McKenzie's Prosecution

In February 2015, the reckless driving and disorderly-conduct summonses issued against McKenzie were dismissed and sealed. JSF ¶¶ 16, 19.

On February 6, 2015, Twum signed a sworn superseding complaint charging McKenzie with resisting arrest and disorderly conduct; McKenzie, however, was never charged or arraigned based on this criminal complaint. Id. ¶¶ 17-18.

On March 19, 2015, Twum signed a second sworn superseding complaint, charging McKenzie with resisting arrest and reckless driving. McKenzie was charged and arraigned by the Bronx District Attorney's Office on the basis of that complaint. Id. ¶¶ 20-21.

On May 4, 2016, on the day of McKenzie's criminal trial, the Bronx District Attorney's Office moved to dismiss the resisting arrest charge. Id. ¶ 22. The court commenced a bench trial on the sole remaining charge, for reckless driving. Id. ¶ 23. At the bench trial, Twum was the only witness. Id. ¶ 25. On cross-examination, Twum was presented with photographic evidence of the scene of the vehicle stop, which, contrary to his testimony, depicted a road without double yellow lines and with large speed bumps. Pl. Counter 56.1 ¶ 5. At the conclusion of Twum's testimony on May 5, 2016, the Bronx District Attorney's Office moved to dismiss the reckless driving charge, and therefore the remaining case against McKenzie, stating that it lacked sufficient evidence to meet its burden of proof. JSF ¶¶ 25-28.

3. McKenzie's Notice of Claim

On or about February 18, 2015, McKenzie filed a notice of claim with the New York City Comptroller's Office regarding the December 7, 2014 arrest. Id. ¶ 29. On that claim, McKenzie was scheduled to appear for an October 8, 2015 hearing pursuant to General Municipal Law § 50-h ("50-h hearing"), but McKenzie did not appear. Id. ¶¶ 30-31. McKenzie's counsel telephoned to state that McKenzie had a pending criminal case and would not attend. Id. ¶ 31.

On or about May...