Smith v. City of New York

RASHEEN SMITH, Plaintiff, v. CITY OF NEW YORK, POLICE OFFICER DANIEL ALEXIS, Shield No. 161, POLICE OFFICER FERNANDO AVALOS, Shield No. 19429, and POLICE OFFICERS JOHN DOES 1-5, Defendants.

No. 1:18-cv-05079-MKV

United States District Court, S.D. New York

September 20, 2021

MEMORANDUM OPINION AND ORDER

MARY KAY VYSKOCIL, UNITED STATES DISTRICT JUDGE.

Plaintiff Rasheen Smith brings this action under 42 U.S.C. § 1983 and New York state law against Defendants the City of New York and Police Officers Daniel Alexis and Fernando Avalos (collectively, “Defendants”), alleging excessive force, false arrest, malicious prosecution, failure to intervene, and respondeat superior liability. Defendants have moved for summary judgment (Defs.' Mot. [ECF No. 54]), and Plaintiff has moved for partial summary judgment (Pl.'s Mot. [ECF No. 60]). For the reasons discussed below, Defendants' motion is GRANTED Plaintiff's motion is DENIED, and Plaintiff's Complaint is DISMISSED.

BACKGROUND

A. Factual Background^[1]

On January 15, 2017, Officers Alexis and Avalos were assigned to the 46th Precinct on Ryer Avenue, a one-way street, in the Bronx, New York. (Defs.' 56.1 Response ¶¶ 1-4 8-9; Pl.'s 56.1 Response ¶¶ 1-4, 7.) At the time, Plaintiff resided across the street from the precinct. (Defs.' 56.1 Response ¶ 5; Pl.'s 56.1 Response ¶¶ 5-6.)

Before starting their patrols, Officer Alexis and others, including non-party Sergeant Tell Beharry, congregated outside the precinct. (Defs.' 56.1 Response ¶¶ 6-7; Pl.'s 56.1 Response ¶¶ 8-11.) While standing in front of the precinct, Officer Alexis obs erv ed a m an riding a motor i zed scooter. (Defs.' 56.1 Response ¶ 10; Pl.'s 56.1 Response ¶ 14.) The parties dispute who was operating the scooter. Plaintiff testified that his neighbor, Pedro, was riding the scooter. (Ofodile Decl. Ex. C (“Smith Tr.”) 56:20-56:25 [ECF No. 63-3].) Officer Alexis testified that someone other than Plaintiff was riding the scooter on the sidewalk. (Collins Decl. Ex. D (“Alexis Tr.”) 27:12-28:10 [ECF No. 55-4].) However, Sergeant Beharry testified that Plaintiff was the one riding the scooter on the sidewalk. (Collins Decl. Ex. F (“Beharry Tr.”) 34:20-35:10 [ECF No. 55-6].)

It is undisputed that, thereafter, “Plaintiff, on the opposite side of Ryer Avenue, spoke in a volume loud enough to get the attention of the officers.” (Pl.'s 56.1 Response ¶ 18; see supra note 1.) Defendants claim that Plaintiff was screaming and cursing at them in a manner that caused pedestrians to react and gather. (Defs.' 56.1 Response ¶ 12.) Officer Alexis testified that Plaintiff shouted, “What the fuck you guys asking him about the helmet for[?] Fuck you guys.” (Alexis Tr. 28:11-28:17; id. at 38:19-39:4.) Officer Avalos testified that Plaintiff shouted, “Fuck all of you, fuck the police.” (Collins Decl. Ex. E (“Avalos Tr.”) 62:11-63:20 [ECF No. 55-5].) Plaintiff asserts that from the stairs of his building he saw the police “surrounding” and “cursing” at Pedro, who was on the scooter, and that he yelled at the officers, “that man don't speak no English.” (Defs.' 56.1 Response ¶ 13; Smith Tr. 50:6-51:19.) Plaintiff concedes, for purposes of summary judgment, that he shouted obscenities at the officers. (Pl.'s Opp. 14 n.1 [ECF No. 70].)

Thereafter, Plaintiff began walking down the sidewalk toward a bodega on the corner. (Defs.' 56.1 Response ¶ 14; Pl.'s 56.1 Response ¶ 21.) Plaintiff claims that he was “followed from the front of his building to the front of the bodega.” (Defs.' 56.1 Response ¶ 15; Pl.'s 56.1 Response ¶ 22.) Defendants assert that Sergeant Beharry advised the officers that they were going to approach Plaintiff, who was in the vicinity of the bodega, to issue Plaintiff a summons for disorderly conduct and violations of New York Vehicle and Traffic Law. (Defs.' 56.1 Response ¶ 15; Pl.'s 56.1 Response ¶¶ 22-23.) It is undisputed that the officers approached Plaintiff in the vicinity of the bodega. (Pl.'s 56.1 Response ¶ 24.) Sergeant Beharry testified that the purpose of the stop was to issue a summons for the traffic violations. (Beharry Tr. 41:25-42:12, 43:8-43:13.) Sergeant Beharry also testified that, “Mr. Smith not only committed the [traffic] infraction, but when he yelled whatever derogatory comments he made at me, Mr. Smith also committed disorderly conduct because at the same time, when he said what he said, people stopped, they looked, and they gathered.” (Id. at 49:7-49:17.) Officer Alexis testified that Sergeant Beharry told them that they needed to go talk to Plaintiff, which Officer Alexis understood to mean “to write him a summons for being disorderly.” (Alexis Tr. 46:8-46:12.) Officer Avalos testified that Sergeant Beharry did not advise them of the reason for initiating the stop until after the encounter. (Avalos Tr. 69:2-70:2.)

Plaintiff recorded part of the encounter on his cell phone. (Pl.'s 56.1 Response ¶ 25; see Collins Decl. Ex. H.) As the officers approached Plaintiff, Sergeant Beharry asked Plaintiff for three forms of identification. (Defs.' 56.1 Response ¶ 16; Pl.'s 56.1 Response ¶¶ 24, 26; Alexis Tr. 69:2-69:4; Avalos Tr. 73:6-73:10.) Plaintiff did not provide any Id. (Pl.'s 56.1 Response ¶ 27.) Instead, Plaintiff, while sticking his phone in the officers' faces, responded in a loud, combative, and antagonistic manner:

Yeah, I have Id. I live right here. Excuse me, don't harass me. Do you have ID? Do you have three forms of identification? Do you have three forms of identification? Do you have three forms of identification? Don't touch me, sir. Excuse me, do you-excuse me. I live right here. Don't touch me, sir. Excuse me.

(Collins Decl. Ex. H 00:10-00:18.)^[2]

Plaintiff then began to walk away from the officers. (Defs.' 56.1 Response ¶ 22; Pl.'s 56.1 Response ¶ 30.) Sergeant Beharry attempted to stop Plaintiff from walking away by placing his arm toward Plaintiff's chest area. (Defs.' 56.1 Response ¶ 23; Pl.'s 56.1 Response ¶ 31.) Plaintiff responded by thrusting his arms in the air. (Pl.'s 56.1 Response ¶ 32.)^[3] Officers Alexis and Avalos perceived Plaintiff's conduct as striking Sergeant Beharry in the chin. (Pl.'s 56.1 Response ¶¶ 33- 34; Alexis Tr. 76:15-77:3; Avalos Tr. 83:23-86:10.)^[4]

Defendants claim Plaintiff resisted when the officers attempted to place handcuffs on him; the officers and Plaintiff fell to the ground; the struggle continued on the ground until Plaintiff was handcuffed; and during the struggle Plaintiff bit Officer Avalos's left pinky. (Defs.' 56.1 Response ¶¶ 25-28; Pl.'s 56.1 Response ¶¶ 35, 37-43). Plaintiff claims, inter alia, he was “pulled from behind and from all directions, ” “forcefully brought to the ground, ” and “choked, punched, struck and kicked while on the ground.” (Defs.' 56.1 Response ¶¶ 25-28; Pl.'s 56.1 Response ¶¶ 35, 37- 43.) Plaintiff denies “biting” Officer Avalos but claims that Officer Avalos's finger entered his mouth when Officer Avalos attempted to brace his own fall. (Defs.' 56.1 Response ¶¶ 27-28; Pl.'s 56.1 Response ¶¶ 40-42.)

Plaintiff was charged in a criminal complaint with assault in the third degree pursuant to N.Y. Penal Law § 120.00(1), resisting arrest pursuant to N.Y. Penal Law § 205.30, harassment in the second degree pursuant to N.Y. Penal Law § 240.26(1), and disorderly conduct pursuant to N.Y. Penal Law § 240.20(1). (Defs.' 56.1 Response ¶ 30; Pl.'s 56.1 Response ¶ 47.) Plaintiff was incarcerated at Rikers Island for approximately one week. (Defs.' 56.1 Response ¶ 36; Pl.'s 56.1 Response ¶ 49.) The charges against Plaintiff were dismissed three months later. (Defs.' 56.1 Response ¶ 37; Pl.'s 56.1 Response ¶ 50.)

B. Procedural Background

Plaintiff commenced this action in June 2018. (Compl. [ECF No. 1].) The Complaint alleges the following causes of action: (1) malicious prosecution under Section 1983 against Officers Alexis and Avalos; (2) malicious prosecution under New York law against Officers Alexis and Avalos; (3) malicious prosecution under New York law against the City; (4) excessive force under Section 1983 against Officers Alexis and Avalos; (5) false arrest under Section 1983 against Officers Alexis and Avalos; (6) failure to intervene under Section 1983 against Officers Alexis and Avalos; (7) false arrest, malicious prosecution, and excessive force against the City under a theory of respondeat superior. (Compl. ¶¶ 33-50.)

In October 2020, the parties filed cross-motions for summary judgment. (Defs.' Mot. [ECF No. 54]; Pl.'s Mot. [ECF No. 60].) In support of their motion, Defendants filed the Declaration of Nicholas L. Collins, counsel to Defendants, with several exhibits (Collins Decl. [ECF No. 55]), a Local Rule 56.1 Statement (Defs.' 56.1 [ECF No. 56]), and a memorandum of law (Defs.' Br. [ECF No. 57]). In support of his motion, Plaintiff filed the Declaration of Anthony Ofodile, counsel to Plaintiff, with several exhibits (Ofodile Decl. [ECF No. 63]), a Local Rule 56.1 Statement (Pl.'s 56.1 [ECF No. 62]), and a memorandum of law (Pl.'s Br. [ECF No. 61]). In opposition to Plaintiff's motion, Defendants filed a Local Rule 56.1 Counterstatement (Defs.' 56.1 Response [ECF No. 64]) and a memorandum of law (Defs.' Opp. [ECF No. 65]). In opposition to Defendants' motion, Plaintiff filed a Local Rule 56.1 Counterstatement (Pl.'s 56.1 Response [ECF No. 71]) and a memorandum of law (Pl.'s Opp. [ECF No. 70]). Both sides filed replies. (Defs.' Reply [ECF No. 76]; Pl.'s Reply [ECF No. 77].)

LEGAL STANDARD

“Summary judgment is appropriate only when, ‘the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.'” Coyle v. United States, 954 F.3d 146, 148 (2d Cir. 2020) (citation omitted). “[T]he mere existence of some alleged factual dispute between the parties...