Pierre v. The City of New York

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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:

LIONEL PIERRE, : 18-cv-05438 (ARR) (RER)

Plaintiff :

: NOT FOR PRINT OR

-against- : ELECTRONIC

: PUBLICATION

THE CITY OF NEW YORK et al :

Defendants. : OPINION & ORDER

:

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ROSS, United States District Judge:

Plaintiff Lionel Pierre brings this civil rights action under 42 U.S.C. § 1983 and New

York state common law against the City of New York, Police Officer Michael Carleo,

Detective Martin Maloney, and John Does #1–5. He asserts claims of false arrest, unlawful

search, malicious prosecution, malicious abuse of process, excessive force, municipal liability,

conspiracy, and failure to intervene. All of the claims arise from an incident on November 23,

2015, wherein Mr. Pierre was arrested on the basis of what would later be discovered to be an

outdated police alert flagging his vehicle. While I find it troubling that this police error

apparently led to Mr. Pierre being arrested without actual cause, I grant summary judgment

for defendants. Assuming all inferences in favor of the plaintiff, he has not stated a triable

claim on any of the causes of action he asserted.

BACKGROUND

On November 23, 2015, Police Officers Carleo and Maloney were driving an unmarked

police vehicle equipped with a license plate reading device. Pl.’s Resp. R. 56.1 ¶ 11, ECF No.

31-1. The two officers stopped Mr. Pierre’s car, which was a silver BMW with the license plate

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number GNB 2467. See id. ¶¶ 1, 14. When they approached the car, Mr. Pierre was on the

phone. Id. ¶ 15. Mr. Pierre alleges that the officers had their guns drawn and pointed at him.

See Pierre Dep. Ex. M, at 94:20–22, ECF No. 31-2. Mr. Pierre either voluntarily exited or was

dragged out of the car and then was placed in handcuffs and seated on the concrete median.

Pl.’s Resp. R. 56.1 ¶¶ 17, 19. Mr. Pierre alleges that an officer hit his hand with his gun,

knocking his phone out of his hand. Pierre Dep. Ex. A, at 126:1–8, ECF No. 28-1. He also

alleges his handcuffs were so tight that his hands felt numb. See id. 116:9–117:6. Officer Carleo

briefly searched the car, and retrieved the title to the vehicle from the center console. See Pl.’s

Resp. R. 56.1 ¶¶ 22–23. The title stated that the vehicle was stolen. See New York State

Certificate of TitleEx. G, ECF No. 28-7. Mr. Pierre was transported to the 113th Precinct. Pl.’s

Resp. R. 56.1 ¶ 26. Officer Carleo then voided the arrest and released Mr. Pierre. Id. ¶ 28. In

defendants’ telling, Mr. Pierre was detained for less than two hours, but Mr. Pierre states he

was detained for five to seven hours. Id. ¶ 29. Mr. Pierre never sought any medical treatment

for any alleged injuries sustained during the incident. Id. ¶ 37. There is a video from Mr. Pierre’s

dashboard camera which partially records the incident, but does not capture the key details

described by either party. See Video Recording Def.’s Reply Ex. K, ECF No. 30.

The parties disagree about why this arrest occurred. Mr. Pierre attributes the arrest to

a conspiracy by NYPD officers to harass and retaliate against him. See Pl.’s Resp. R. 56.1 ¶¶

13, 18. Defendants state that the stop occurred because when the officers scanned Mr. Pierre’s

license plate, the license plate reading device triggered an alert in the New York Statewide

Police Information Network (“NYSPIN”) indicating that the car was flagged as stolen. See id.

¶¶ 12–13. After the stop, Officer Carleo contacted NYPD’s communication division, who

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confirmed that the license plate was marked as stolen in the NYSPIN. Id. ¶¶ 20–21.

Defendants also state that Mr. Pierre admitted the car was stolen and the vehicle title stated

the car was stolen. Id. ¶¶ 18, 24.

But the officers were mistaken that the NYSPIN alert on Mr. Pierre’s license plate

related to an unsolved car theft. After Mr. Pierre was brought to the precinct, Officer Carleo

learned that the alert actually related to a prior criminal investigation for menacing, for which

Mr. Pierre had already been arrested approximately one year earlier.1 See id. ¶¶ 9, 27. According

to defendants, this alert should have been removed after the 2014 arrest, but mistakenly had

not been removed, such that Mr. Pierre was unnecessarily subject to a second arrest in 2015.

Id. ¶ 10. Upon discovering the mistake, Officer Carleo voided the arrest, released Mr. Pierre,

and removed the alarm on his car from NYSPIN. Id. ¶ 28. Mr. Pierre disputes the validity of

the initial issuance of the alert on his car and the 2014 arrest, maintaining that both were based

on fabricated evidence.2 See id. ¶¶ 2–3.

1 According to defendants, the NYSPIN alert was entered after a witness reported that

somebody in a car matching the description of Mr. Pierre’s car was brandishing a firearm

and yelling threats. See Pl.’s Resp. R. 56.1 ¶¶ 1–2. The witness also identified Mr. Pierre in a

photo array. Id. ¶ 3. In addition to the NYSPIN alert, an identification card (“I-Card”) was

issued for Mr. Pierre. See id. ¶ 4. An I-card is an “internal NYPD tracking system for people

that are wanted as perpetrators of [a] crime or witnesses to a crime.” Id. ¶ 5. Mr. Pierre

disputes that these events occurred and states the evidence was fabricated by the police. See

id. ¶¶ 2–5. Mr. Pierre was arrested pursuant to the I-Card on November 21, 2014. Id. ¶ 9.

2 That arrest is the subject of another lawsuit by Mr. Pierre against NYPD officers and the

City of New York. See Pierre v. Rocco, No. 17-cv-04657 (LDH) (LB) (E.D.N.Y. August 3,

2017).

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On September 27, 2018, Mr. Pierre brought this lawsuit under 42 U.S.C. § 1983 and

New York state common law alleging violations of his civil rights including false arrest,

unlawful search, malicious prosecution, malicious abuse of process, excessive use of force,

municipal liability, conspiracy, and failure to intervene. See Compl., ECF No. 1. Mr. Pierre was

previously represented by an attorney, but now is proceeding pro se. See Stipulation to be

Relieved as Counsel, ECF No. 17. On August 22, 2019 defendants moved for summary

judgment.

STANDARD OF REVIEW

Summary judgment is appropriate 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.” Fed.

R. Civ. P. 56(a). A material fact is one that “can affect the outcome under the applicable

substantive law[.]” Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996). A genuine dispute is one

that can “reasonably be resolved in favor of either party.” Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 250 (1986). In performing this analysis, I must resolve all ambiguities and draw all

inferences in favor of the non-moving party. Gallo v. Prudential Residential Servs., Ltd. P’ship, 22

F.3d 1219, 1223 (2d Cir. 1994). “If, in this generous light, a material issue is found to exist,

summary judgment is improper, and the case must proceed to trial.” Nationwide Life Ins. Co. v.

Bankers Leasing Ass’n, Inc., 182 F.3d 157, 160 (2d Cir. 1999) (quoting Eastway Constr. Corp. v.

City of New York, 762 F.2d 243, 249 (2d Cir. 1985), superseded by rule on other grounds, Fed. R. Civ.

P. 11(c)(1), as recognized in Ipcon Collections LLC v. Costco Wholesale Corp., 698 F.3d 58, 63 (2d Cir.

2012)).

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The moving party may demonstrate that there is no genuine dispute “by showing that

little or no evidence may be found in support of the nonmoving party’s case.” Gallo, 22 F.3d

at 1223–24 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). If this burden is met, the

non-moving party “must come forward with specific facts showing that there is a genuine

issue for trial.” LaBounty v. Coughlin, 137 F.3d 68, 73 (2d Cir. 1998) (citing Rexnord Holdings, Inc.

v. Bidermann, 21 F.3d 522, 525–26 (2d Cir. 1994)). “Speculation, conclusory allegations and

mere denials are not enough to raise genuine issues of fact.” Bacchus Assocs. v. Hartford Fire Ins.

Co., 766 F. Supp. 104, 108 (S.D.N.Y. 1991). “The nonmoving party cannot defeat summary

judgment by ‘simply show[ing] that there is some metaphysical doubt as to the material facts,’

or by a factual argument based on ‘conjecture or surmise[.]’” McClellan v. Smith, 439 F.3d 137,

144 (2d Cir. 2006) (alteration in original) (first quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith

Radio Corp., 475 U.S. 574, 586 (1986), then quoting Bryant v. Maffucci, 923 F.2d 979, 982 (2d

Cir. 1991)). If “no rational finder of fact ‘could find in favor of the nonmoving party because

the evidence to support its case is so slight,’ summary judgment must be granted.” Brown v. Eli

Lilly & Co., 654 F.3d 347, 358 (2d Cir. 2011) (quoting FDIC v. Great Am. Ins. Co., 607 F.3d

288, 292 (2d Cir. 2010)).

DISCUSSION

Defendants moved for summary judgment on all of Mr. Pierre’s claims: false arrest,

unlawful search, malicious prosecution, malicious abuse of process, excessive use of force,

municipal liability, conspiracy, and failure to intervene. I will address each claim in turn.

I. False Arrest

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To state a claim for false arrest under § 1983 or 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.” Douglas v. City of New York, 595 F. Supp. 2d 333, 339–40 (S.D.N.Y.

2009). Probable cause is a complete defense against claims of false arrest. Stansbury v. Wertman,

721 F.3d 84, 89 (2d Cir. 2013) (citing Torraco v. Port Auth. of N.Y. and N.J., 615 F.3d 129, 139

(2d Cir. 2010)); Weiner v. McKeefery, 90 F. Supp. 3d 17, 28–29 (E.D.N.Y. 2015). Probable cause

exists when a police officer has “knowledge of, or reasonably trustworthy information as to,

facts and circumstances that are sufficient to warrant a person of reasonable caution in the

belief that an offense has been or is being committed by the person to be arrested.” Finigan v.

Marshall, 574 F.3d 57, 62 (2d Cir. 2009) (quoting Zellner v. Summerlin, 494 F.3d 344, 368 (2d Cir.

2007)).

Under the collective knowledge doctrine or “fellow officer” rule, “an arrest or search

is permissible where the actual arresting or searching officer lacks the specific information to

form the basis for probable cause or reasonable suspicion but sufficient information to justify

the arrest or search was known by other law enforcement officials initiating or involved with

the investigation.” United States v. Colon, 250 F.3d 130, 135 (2d Cir. 2001); see also Annunziata v.

City of New York, 06 Civ. 7637(SAS), 2008 WL 2229903, at *3 (S.D.N.Y. May 28, 2008) (quoting

People v. Ramirez-Portoreal, 666 N.E.2d 207, 215 (N.Y. 1996)) (“[E]ven if an arresting officer

lacks personal knowledge sufficient to establish probable cause, the arrest will be lawful if the

officer acts upon the direction of or as a result of communication with a superior or [fellow]

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officer . . . provided that the police as a whole were in possession of information sufficient to

constitute probable cause to make the arrest.”).

“[P]robable cause can exist even where it is based on mistaken information, so long as

the arresting officer acted reasonably and in good faith in relying on that information.” Bernard

v. United States, 25 F.3d 98, 102 (2d Cir. 1994) (citing Colon v. City of New York, 455 N.E.2d

1248, 1250 (N.Y. 1983)). Thus, the fact that the information the arresting officer relied on later

turns out to be inaccurate does not invalidate the existence of probable cause at the time of

the arrest if the officer acted reasonably. See United States v. Towne, 870 F.2d 880, 884–85 (2d

Cir. 1989) (upholding an arrest based on a mistaken warrant where officer took additional

steps to verify the warrant).

Defendants argue that this case is governed by Towne, because like the officers in Towne,

Officers Carleo and Maloney relied on a record, which later turned out to be inaccurate, but

took additional steps in a reasonable attempt to confirm the record. See Defs.’ Br. 6, ECF No.

26. Defendants assert three additional verification steps taken by the arresting officers: (1)

speaking to the plaintiff who admitted the car was stolen; (2) contacting the NYPD

communication division who confirmed (incorrectly) that the license plate was stolen; and (3)

retrieving the title to the vehicle which also indicated that the vehicle was stolen. But plaintiff’s

admission is disputed, so I do not consider the admission for purposes of summary judgment,

and the officers seized Mr. Pierre by putting him in handcuffs before they called NYPD’s

communication division or reviewed the vehicle’s documentation, so those verifying actions

were not part of the information available to the officers at the time of the initial arrest. See

Pl.’s Resp. R. 56.1 ¶¶ 18–24.

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Thus, the issue in this case is whether an inaccurate NYSPIN alarm alone constitutes

probable cause for arrest. In at least one case, a federal court has ruled that it does not. See

Rowley v. City of New York, No. 00 Civ. 1793 (DAB), 2005 WL 2429514, at *21–23 (S.D.N.Y.

Sept. 29, 2005). The Rowley court granted summary judgment for the plaintiff on his false arrest

claim where “police officers relied solely on the admittedly inaccurate computer information

that the car was stolen in arresting the four Plaintiffs for grand larceny auto.” Id. at *21, *26.

The court stated that while a NYSPIN alert could justify further investigation, it did not justify

the officers’ conduct, which is similar to the conduct Mr. Pierre alleges in this case. See id. at

*21–22 (describing “the rapid approach of undercover officers with drawn guns”). There is

also New York state case law holding that an arrest made solely on the basis of inaccurate

records in the NYSPIN database is not justified by probable cause. See People v. Jennings, 54

N.Y.2d 518, 520 (N.Y. 1981) (“An arrest is invalid when the arresting officer acts upon

information in criminal justice system records which, though correct when put into the

records, no longer applies and which, through fault of the system, has been retained in its

records after it became inapplicable.”); People v. McElhaney, 146 Misc. 2d 748, 750 (N.Y. Sup.

Ct. 1990) (“In this case, the stolen car alarm should have been removed from the computer

system . . . There is absolutely no excuse for that procedure not to have been accomplished.”);

People v. Jones, 443 N.Y.S.2d 298, 300, 304–05 (N.Y. Crim. Ct. 1981).

However, another court to consider the issue held that a NYSPIN stolen car alert is

sufficient to constitute probable cause for arrest. See Apostol v. City of New York, No. 11–CV–

3851 (RRM)(CLP), 2014 WL 1271201, at *4 (E.D.N.Y. Mar. 26, 2014), aff’d on other grounds,

607 F. App’x 105 (2d Cir. 2015) (summary order). The Second Circuit has not ruled on this

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precise question, but has allowed police officers to rely on arrest warrants found through

searching NYSPIN as probable cause to make arrests. See United States v. Miller, 265 F. App’x

5, 7 (2d Cir. 2008) (summary order) (“When an officer learns from a computer database, such

as NYSPIN, that a person is the subject of an outstanding arrest warrant, probable cause exists

to arrest that person.”); United States v. Santa, 180 F.3d 20, 27 (2d Cir. 1999) (holding that

reliance on statewide computer database record erroneously showing existence of outstanding

arrest warrant for defendant was objectively reasonable); see also Morrison v. City of New York,

No. 14-CV-04508 (MKB), 2019 WL 175121, at *7 (E.D.N.Y. Jan. 10, 2019), reconsideration

denied, No. 14-CV-4508 (MKB), 2019 WL 4010106 (E.D.N.Y. Aug. 13, 2019).

A third approach, adopted by at least one court, is to hold that whether or not the

NYSPIN alert constituted probable cause, the defendants were entitled to qualified immunity.

See Mayer v. City of New Rochelle, No. 01 Civ. 4443(MBM), 2003 WL 21222515, at *4 (S.D.N.Y.

May 27, 2003). “Qualified immunity shields government officials from civil damages liability

unless the official violated a statutory or constitutional right that was clearly established at the

time of the challenged conduct.” Reichle v. Howards, 566 U.S. 658, 664 (2012). “To be clearly

established, a right must be sufficiently clear ‘that every reasonable official would [have

understood] that what he is doing violates that right.’” Id. (alteration in original) (internal

quotation marks omitted) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)). Although there

need not be “a case directly on point for a right to be clearly established, existing precedent

must have placed the statutory or constitutional question beyond debate.” White v. Pauly, 137

S. Ct. 548, 551 (2017) (citations and quotation marks omitted).

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The inevitable conclusion from the record is that there should not have been an alarm

on Mr. Pierre’s car on November 23, 2015 and he should not have been stopped and arrested

on that date. A mistake was made. But there is no clearly established law stating that such a

mistake violates the right to be free from unreasonable seizures. See Mayer, 2003 WL 21222515,

at *4. Therefore, I conclude that the officers’ conduct is protected by qualified immunity.

Plaintiff appears to be making two additional arguments about his arrest which I will

briefly address. First, he argues that he was not arrested on November 23, 2015 because of the

NYSPIN alert, but instead because of a police conspiracy to harass him. See Pl.’s Resp. R. 56.1

¶ 13 This assertion is entirely unsubstantiated by evidence other than Mr. Pierre’s conclusory

statements. See, e.g., Pierre Dep. Ex. M, at 89:18–25. (“They [were] using the same tactic. . . .

It’s a conspiracy.”) This is not enough to overcome summary judgment. See Bacchus Assocs.,

766 F. Supp. at 108. (“Speculation, conclusory allegations and mere denials are not enough to

raise genuine issues of fact.”).

Second, Mr. Pierre argues that the NYSPIN alert was originally entered into the

database based on fabricated evidence. See Pl.’s Resp. R. 56.1 ¶¶ 2–5. But even assuming that

claim is true, it does not establish a false arrest in the instant case. Even if the initial witness

complaint in 2014 was fabricated, this does not change the reality that on November 23, 2015,

Officers Carleo and Maloney were faced with an NYSPIN alarm which gave them arguable

probable cause to arrest Mr. Pierre. Therefore, I grant summary judgment for the defendants

as to Mr. Pierre’s false arrest claim.

II. Unlawful Search

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“Under the ‘automobile exception’ to the Fourth Amendment’s warrant requirement,

police may conduct a warrantless search of a readily mobile motor vehicle if probable cause

exists to believe the vehicle contains contraband or other evidence of a crime.” United States v.

Gaskin, 364 F.3d 438, 456 (2d Cir. 2004) (citing Carroll v. United States, 267 U.S. 132, 151–62

(1925)). There is no dispute that in this case the car was readily mobile, so this exception

applies.

As discussed in the prior section, the NYSPIN alert gave Officer Carleo, at a minimum,

arguable probable cause to believe the vehicle was stolen. Information that the vehicle was

stolen constitutes probable cause to believe the vehicle will contain evidence of the theft.

Therefore, the search for the vehicle’s title is protected by qualified immunity, and I grant

summary judgment for defendants on this claim.

III. Malicious Prosecution and Malicious Abuse of Process

To state a claim for malicious prosecution, four elements must be shown: “(1) the

initiation or continuation of a criminal proceeding against plaintiff; (2) termination of the

proceeding in plaintiff's favor; (3) lack of probable cause for commencing the proceeding; and

(4) actual malice as a motivation for defendant’s actions.” Manganiello v. City of New York, 612

F.3d 149, 161 (2d Cir. 2010).

“[A] malicious abuse of process claim lies against a defendant who (1) employs regularly

issued legal process to compel performance or forbearance of some act (2) with intent to do

harm without excuse or justification, and (3) in order to obtain a collateral objective that is

outside the legitimate ends of the process.” Cook v. Sheldon, 41 F.3d 73, 80 (2d Cir.1994).

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Mr. Pierre has failed to state either claim, most obviously because soon after he was

arrested, the arrest was voided and he was released. The initiation of criminal proceedings

giving rise a malicious prosecution claim requires either an arrest warrant or an arraignment,

neither of which occurred in this case. See Singer v. Fulton Cty. Sheriff, 63 F.3d 110, 117 (2d Cir.

1995). An arrest does not lead to a regularly issued legal process, a requirement of malicious

abuse of process, if “the charges were dropped and [the arrestee] was released without

arraignment.” Gordon v. City of New York, No. 10–cv–5148 (CBA)(LB), 2012 WL 1068023, at

*8 (E.D.N.Y. Mar. 29, 2012).

Therefore, I grant summary judgment for defendants on both Mr. Pierre’s malicious

prosecution claim and his malicious abuse of process claim.

IV. Excessive Use of Force

“[T]he right to make an arrest or investigatory stop necessarily carries with it the right

to use some degree of physical coercion or threat thereof to effect it.” Graham v. Connor, 490

U.S. 386, 396 (1989). “Whether the force used to effect an arrest is ‘reasonable’ or ‘excessive’

turns on ‘a careful balancing of the nature and quality of the intrusion on the individual’s

Fourth Amendment interests against the countervailing government interests at stake.’”

Figueroa v. Mazza, 825 F.3d 89, 105 (2d Cir. 2016) (quoting Graham, 490 U.S. at 396). In other

words, “[t]he force used by the officer must be reasonably related to the nature of the

resistance and the force used, threatened, or reasonably perceived to be threatened, against the

officer.” Sullivan v. Gagnier, 225 F.3d 161, 166 (2d Cir. 2000).

Here, even if I assume the truth of all of Mr. Pierre’s allegations, he has not stated a

claim for excessive force. He alleges that officers drew their guns, Pierre Dep. Ex. M, at 94:20–

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22, dragged him out of the car, id. at 103:1–24, and hit his hand with a gun, knocking his phone

out of his hand, Pierre Dep. Ex. A, at 126:3–8. None of these allegations is sufficient to

maintain an excessive use of force claim because this level of force is reasonably related to

effectuating an arrest. See, e.g., Faruki v. City of New York, 517 Fed. App’x 1, 2 (2d Cir. 2013)

(summary order) (“Officers are entitled to use some degree of force when restraining a suspect

during an arrest.”).

Mr. Pierre also alleges that he was handcuffed too tightly, causing his hands to feel

numb. See Pierre Dep. Ex. A, at 116:9–117:6. In evaluating an unreasonably tight handcuffs

excessive force claim, the court must consider three elements: (1) whether the handcuffs were

unreasonably tight; (2) whether the defendants ignored the plaintiff’s pleas that the handcuffs

were too tight; and (3) the degree of injury to the wrists. See Esmont v. City of New York, 371 F.

Supp. 2d 202, 215 (E.D.N.Y. 2005). Mr. Pierre’s tight handcuffing claim fails because he

testified that he did not remember if he told an officer that his handcuffs were too tight, see

Pierre Dep. Ex. A, at 117:24–118:12, and he has not demonstrated any injury to his wrists.

Thus, I grant summary judgment to defendants on Mr. Pierre’s excessive use of force

claim.

V. Municipal Liability

“[A] municipality can be found liable under [42 U.S.C.] § 1983 only where the

municipality itself causes the constitutional violation at issue. Respondeat superior or vicarious

liability will not attach under § 1983.” City of Canton v. Harris, 489 U.S. 378, 385 (1989) (citing

Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694–95 (1978)). “Thus, [the] first inquiry in any case

alleging municipal liability under § 1983 is the question whether there is a direct causal link

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between a municipal policy or custom and the alleged constitutional deprivation.” City of

Canton, 489 U.S. at 385.

Plaintiff has failed to identify any municipal policy that caused a denial of his

constitutional rights. If there was a policy of keeping outdated alerts in NYSPIN, or failing to

audit the system to ensure its accuracy, it is possible that such a policy could form the basis of

a Monell claim. But Mr. Pierre has identified no evidence that would allow me to conclude that

such a policy exists, beyond alleging he was individually affected by a NYSPIN error in this

single instance. Thus, Mr. Pierre cannot maintain a municipal liability claim and I grant

summary judgment for defendants.

VI. Conspiracy

“[C]onspiracy claims . . . must contain factual allegations. Conclusory or vague

allegations of conspiracy are insufficient to survive a motion for summary judgment.” Zaidi v.

Amerada Hess Corp., 723 F. Supp. 2d 506, 515 (E.D.N.Y. 2010). In this case, plaintiff’s

allegations of conspiracy do not go beyond conclusory of vague allegations. See, e.g., Pierre

Dep. Ex M, at 89:18–25. (“They [were] using the same tactic. . . . It’s a conspiracy.”) Moreover,

he has established no other violation of a constitutional right, which also defeats a conspiracy

claim. See Raffaele v. City of New York, 144 F. Supp. 3d 365, 375 (E.D.N.Y. Oct. 30, 2015). Thus,

I grant summary judgment for defendants on the conspiracy claim.

VII. Failure to Intervene

Mr. Pierre cannot sustain his failure to intervene claim because such a claim can

proceed only in connection with a valid underlying constitutional claim. See Matthews v. City of

New York, 889 F. Supp. 2d 418, 443–44 (E.D.N.Y. 2012) (“[A] failure to intervene claim is

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contingent upon the disposition of the primary claims underlying the failure to intervene

claim.”). In this case, I have already held that plaintiff’s underlying claims all fail; therefore,

defendants’ motion for summary judgment on the failure to intervene claim is granted.

CONCLUSION

For the foregoing reasons, defendants’ motion for summary judgment is granted. As

such, plaintiff’s claims are dismissed. The Clerk of Court is directed to enter judgment

accordingly and close the case.

SO ORDERED.

Date: December 30, 2019 ______/s/________

Brooklyn, New York Allyne R. Ross

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