Vassiliou v. City of New York

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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LAMBROS VASSILIOU,

Plaintiff, MEMORANDUM & ORDER

18-CV-0779(EK)(VMS)

-against-

THE CITY OF NEW YORK, POLICE

DETECTIVE PHILIP VACCARINO, POLICE

DETECTIVE VINCENT AGOSTINO, et al.,

Defendants.

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ERIC KOMITEE, United States District Judge:

This case concerns allegations of police misconduct in

connection with the arrest of Plaintiff Lambros Vassiliou.

Plaintiff, through counsel, brings thirteen claims under

42 U.S.C. § 1983 and state law against the City of New York and

the six NYPD officers referenced in this Order. Defendants move

for summary judgment on all claims except for the Section 1983

claim against the two officers involved in Plaintiff’s initial

stop, and his negligence claims against all Defendants. For the

reasons explained below, Defendants’ motion is granted in full.

The unlawful-stop and negligence claims, however, will proceed.

I. Background

Plaintiff was searched, arrested, and charged with

prescription-drug-related offenses that were later dismissed.

He alleges that the Defendants violated the Constitution at

nearly every stage of the process, from the initial traffic stop

to his ultimate prosecution.

The following facts are derived from Plaintiff’s

deposition testimony, unless otherwise noted. On November 12,

2016, police officers Philip Vaccarino and Jelson Goyco pulled

Plaintiff over as he was driving his two children to his

sister’s house. The purported reason for the stop was that

Plaintiff’s car — one of the four original models of the “KITT

car” used in the 1980s television show Knight Rider — was

“observed [with] temp NYS reg and CA plate on car.” Pl.’s Ex. D

at 1, ECF No. 54-4 (“Controlled Substance/Marihuana Data

Sheet”). At his deposition, Plaintiff explained that the car

was specially registered as a “movie vehicle” in California, but

not in New York. Pl.’s Ex. B at 38:9-20, ECF No. 54-2 (“Pl.’s

Dep.”). It bore a “movie plate” on the rear that appeared the

same as a regular California license plate. Id. 38:4-7;

38:21-39:1.

Once stopped, the officers witnessed Plaintiff “grab a

pill bottle from on the center armrest and place [it] into [his]

coat pocket.” Pl.’s Ex. D, Controlled Substance/Marihuana Data

Sheet at 1. Plaintiff denies this. When the officers arrived,

however, they asked Plaintiff to step out of the vehicle, and it

is undisputed that Plaintiff cooperated.

Plaintiff joined Officer Goyco behind the car, where

Goyco asked him whether he had any guns, heroin, or prescription

pills on him. Plaintiff replied that he had prescription

medications but nothing else. When Officer Goyco asked “can I

see them,” Plaintiff replied “sure.” Pl.’s Ex. B, Pl.’s Dep. at

52:12-19. Plaintiff then reached into his coat pocket and

presented three items, which were all prescribed to him: a

prescription asthma pump, and two pill bottles — one of which

was for suboxone pills (a pain reliever prescribed for

Plaintiff’s recent throat cancer surgery). Id. 52:22-25. The

pill bottle labeled for suboxone pills, however, contained

twenty-one suboxone strips as well. Defs’ Ex. J at 1, ECF No.

50-10 (“NYPD Property Clerk Invoice”); but see Defs’ Ex. D,

Controlled Substance/Marihuana Data Sheet at 1 (stating that

this pill bottle was “unlabeled”). Suboxone contains

buprenorphine, which is a controlled substance. Plaintiff did

not present a prescription for the suboxone strips, though he

contends that the officers did not ask for one. Pl.’s Rule 56.1

Statement at 4-5, ECF No. 53.

These pill bottles led to Plaintiff’s arrest. After

Plaintiff handed the pill bottles to Officer Goyco, Goyco opened

each bottle and then returned them to Plaintiff, who placed the

medications back in his coat pocket. Pl.’s Ex. B., Pl.’s Dep.

at 53:16-23. When asked, Plaintiff told Officer Goyco that the

medicines were his, as the name on the labels indicated. Id.

55:1-8. After an exchange with Officer Vaccarino, Officer Goyco

then reached into Plaintiff’s pocket, removed the pill bottles,

and arrested him — all without explanation. Id. 55:25-56:6.

After handcuffing him, the officers contacted their

supervisor, Sergeant Paul Farella, to relay the circumstances of

the arrest. Two unmarked vehicles — a police van and a sedan —

containing Officers Farella, Leonid Shatkin, Vincent

Setteducato, Vincent Agostino, and Michael Fahmy (not a

Defendant), arrived moments later. Pl.’s Rule 56.1 Statement at

¶ 26, ECF No. 53. Sergeant Farella, as the supervising officer,

approved the arrest when he arrived.

Some of these officers “antagoniz[ed]” Plaintiff after

he was handcuffed. Pl.’s Ex. B, Pl.’s Dep. at 62:21-25. While

Plaintiff’s ex-wife picked up his children, one officer told

Plaintiff, “[W]e are taking your car, man. We’re gonna have

some f--king fun with that.”; another officer replied, “No, I’m

going to drive it. I’m going to drive it.” Id. 59:10-21;

62:21-25. Before departing, Plaintiff observed the police

officers “going through [his] car with no permit.” Id.

69:12-16.

According to Plaintiff, his “abuse” continued after

the officers placed him in the back of the police van. Compl.

¶ 51, ECF No. 31. Its rear compartment, where Plaintiff sat,

contained two long benches on either side. Pl.’s Ex. B, Pl.’s

Dep. at 65:17-24. The officers placed Plaintiff on one of the

benches and fastened his seatbelt. This seatbelt, Plaintiff

claims, was merely for “cosmetics.” Id. 66:19-22. It dangled

loosely across the bench with “no tension” to restrain him. Id.

With his hands cuffed behind his back and no

restraints to his front, Plaintiff claims Officers Setteducato

(driver) and Shatkin (passenger) gave him a “rough ride.” They

did so for approximately three hours. Defendants testified,

however, that this timeline is standard procedure — namely, that

it is “common” to complete a scheduled patrol even after

detaining someone in their vehicle, even for three or more

hours, and that there was no “specific reason” why this happened

to Plaintiff in particular. Defs’ Ex. G at 21:22-25; 44:23-

45:19, ECF No. 50-7 (“Setteducato Dep.”).

Plaintiff reported medical issues early in the ride.

The first was his blood pressure. He told Officers Setteducato

and Shatkin that he needed his “blood pressure medicine” in

light of a heart attack he had suffered two years earlier.

Pl.’s Ex. B, Pl.’s Dep. at 71:6-25 (telling the officers, “I

need my blood pressure medicine or I’m going to pop because I

had a heart attack in 2014,” and that he could “run the risk of

having a stroke”). The officers complied with his request.

They stopped their patrol to retrieve Plaintiff’s blood pressure

medicine (amlodipine) from Sergeant Farella and then

administered the pills to Plaintiff before continuing on.

This is when the officers began driving “really,

really aggressively.” Id. 73:22-74:4. Shortly after arresting

another suspect, Officer Setteducato activated the van’s sirens

and turned suddenly to pull someone else over. Id. 74:20-75:12.

Although Officer Setteducato told him to “hang on,” Plaintiff

went “flying.” Id. He struck the right side of his face, neck,

and shoulder; he had trouble getting back up, and rolled

helplessly for five to ten minutes. Id. 75:23-56:2; 77:18-23;

79:5-10. All told, Plaintiff fell two more times. Id.

75:20-21. After one fall, he told the officers, as he did

“multiple times that night,” that “something’s not right.” Id.

78:5-8. But they “talk[ed] him out of going to seek medical

attention.” Id. 78:24-79:1.

The officers booked him at the 121st Precinct, where

they took his photograph. Id. 80:3-13; 83:3-6. The photographs

show no visible injuries to his head or neck. Defs’ Ex. I at 1,

ECF No. 50-9 (“NYPD Mugshot Pedigree”). Plaintiff testified

that the Defendants ignored another request for medical

assistance at this precinct, though his testimony on this point

was inconsistent. Id. 88:20-89:19; but see id. 82:2-9 (when

asked whether he requested medical attention at the 121st

Precinct, Plaintiff stated that he “requested medical attention

in the van and then I requested medical attention again when we

stopped at the [second precinct]”); id. 91:11-14 (testifying

that the second time he asked for help was “after I tipped over

[in the van], after they gave me the medication at the 121st

[P]recinct”). Plaintiff’s pleadings and testimony are somewhat

vague as to the nature of these requests, but he asserted that

he was concerned about his blood pressure and the injuries he

sustained in the van. Id. 90:20-91:5.

After “at least two hours” at the first station, the

same officers drove him to the second — the 120th Precinct, where

he would stay overnight. Id. 81:23-82:1. On that drive, one of

the officers resumed the conversation about Plaintiff’s KITT

car. He asked questions about it, such as how much it would

cost to buy, before leaving Plaintiff at the next stationhouse.

Id. 86:23-87:5.

Plaintiff testified that he made another request for

medical assistance, though his deposition testimony is

inconsistent regarding when he did so. See id. 82:2-6 (he

“requested medical assistance” “in the van” and “again” “at the

120[th Precinct]”); id. 91:15-19 (he requested medical assistance

“on the way to the 120th Precinct”); id. 90:8-10 (he requested

medical assistance “when we were in the 120, but not in the

van”). He did not testify as to what medical assistance he

requested.

After Defendants left him at the 120th Precinct

overnight, he told an unidentified person there that he

“d[idn’t] feel well” and wanted “medical attention,” but again

was ignored. Id. 90:12-14. Plaintiff acknowledges, though,

that he did not tell his lawyer about any medical issues when

they spoke the next morning. Id. 93:14-18.

Plaintiff was arraigned around noon the next day. He

was charged under N.Y. Penal Law Section 220.03 (Criminal

possession of a controlled substance in the seventh degree)1 and

N.Y. Public Health Law Section 3345 (Possession of controlled

substances by ultimate users [outside] original container).2

Officer Vaccarino transmitted the arrest paperwork to the

Richmond County District Attorney’s Office. Pl.’s Ex. F, ECF

No. 54-6 (“Misdemeanor Complaint and Supporting Deposition”).

The judge released Plaintiff on his own recognizance; all

charges were later dropped on motion of the prosecution. Pl.’s

1 Section 220.03 provides that “[a] person is guilty of criminal

possession of a controlled substance in the seventh degree when he or she

knowingly and unlawfully possesses a controlled substance. . . . Criminal

possession of a controlled substance in the seventh degree is a Class A

misdemeanor.”

2 Section 3345 provides that:

Except for the purpose of current use . . . it shall be unlawful for an

ultimate user of controlled substances to possess such substance

outside of the original container in which it was dispensed. Violation

of this provision shall be an offense punishable by a fine of not more

than fifty dollars.

Ex. N, ECF No. 54-14 (“Criminal Court Certificate of

Disposition”).

Plaintiff reported that the aftermath of his arrest

was severe, both medically and emotionally. Plaintiff’s ex-wife

applied for an order of protection. He lost custody of his

children, and their relationship has never recovered. The

medical consequences, he claims, were also “unbearable.” Pl.’s

Ex. B, Pl.’s Dep. at 113:17-21. But the medical evidence is

somewhat less clear.

According to Plaintiff, the impact he sustained in the

back of the van caused serious complications that surfaced over

a year later. Id. 106:3-9. When he got home, he noticed

swelling in his shoulder, neck, and back. Id. 102:2-7. Four

days later, he visited a walk-in orthopedic clinic. Id.

103:7-10. Following x-rays, the doctors noted he had a “right

shoulder injury[,] possibly a rotator cuff tear and right wrist

sprain.” Defs’ Ex. A at 2, ECF No. 50-1 (“November 17, 2016

Medical Records”). They did not prescribe medication, but gave

him a “carpal tunnel brace for his wrist,” and suggested “some

therapy for the shoulder.” Id. This is the only diagnosis in

the record. After this, Plaintiff stated that he received

physical therapy sessions from his girlfriend (who had some

training in physical therapy). Pl.’s Ex. B, Pl.’s Dep. at

109:7-110:1. Then, roughly eighteen months later, he was rushed

to the hospital because he “couldn’t move [his] left side.” Id.

106:3-10. According to Plaintiff, doctors at the Mount Sinai

Hospital found that his spinal discs had shifted, which required

surgery. Id. 105:22-106:1. Plaintiff testified that these

doctors offered him no “guarantees” that he would “survive this

operation,” id. 106:11-21, but he did not produce any medical

records related to this procedure. After surgery, Plaintiff

regained “partial use” of his left side, but he still suffers

persistent pain, restrictions on his mobility, and loss of other

functions. Id. 106:22-107:7; 113:2-114:14. He has not,

however, presented medical or expert testimony regarding the

cause of these problems. At his deposition, he testified that

the injuries from the van are responsible.3 Id. 107:23-108:10.

II. Legal Standard

Summary judgment is appropriate when “the movant shows

that there is no genuine dispute as to any material fact” and

that he “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.”

3 At his deposition, Plaintiff acknowledged that he was hit by a car in

the “knees” over ten years earlier (in 2008) but recalled no other relevant

injuries. Id. 110:2-112:16.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). In

performing this analysis, the Court 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.”

Nationwide Life Ins. Co. v. Bankers Leasing Ass'n, 182 F.3d 157,

160 (2d Cir. 1999).

The moving party may establish 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 the moving party meets this burden, 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). However, the non-moving 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.” Brown v. Eli Lilly

& Co., 654 F.3d 347, 358 (2d Cir. 2011) (internal citations and

quotations omitted). 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.” Id.

(internal quotations omitted).

III. Analysis

Defendants move for summary judgment on all of

Plaintiff’s claims4 except his challenge to the legality of the

initial traffic stop and claims for negligence. Accordingly,

the Court has no reason to decide, at this stage, whether the

initial traffic stop was lawful. The only question at this

point is whether Plaintiff’s claims that arose after the stop

survive summary judgment.

A. The City’s Liability

Because Plaintiff brings each of his Section 1983

claims against the City, the Court first considers whether

municipal liability attaches here. Governing precedent affords

municipalities certain protections from Section 1983 liability,

notwithstanding the merits of the underlying claims. For the

reasons explained below, this protective standard prevents

Plaintiff from pressing his claims against the City.

The Supreme Court has imposed a series of requirements

for establishing municipal liability under Section 1983. Under

Monell v. Dep’t of Soc. Servs. of N.Y.C., 436 U.S. 658, 694-95

(1978), “a local government may not be sued under [Section] 1983

for an injury inflicted solely by its employees or agents.”

4 Plaintiff brings claims under Section 1983 for false arrest, malicious

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

and deliberate indifference to medical needs; he also brings various state-

law tort claims.

“Instead, it is when execution of a government’s policy or

custom, whether made by its lawmakers or by those whose edicts

or acts may fairly be said to represent official policy,

inflicts the injury that the government as an entity is

responsible under [Section] 1983.” Id. at 694.

Plaintiff attempts to satisfy Monell by alleging that

New York City maintained a “custom or policy” of, among other

things, “falsely stopping, frisking and arresting individuals,”

and “using excessive and unjustified force.” Compl. ¶ 101.

This is an exceptionally broad allegation, and “[w]hen a

plaintiff tries to fall within Monell by defining the alleged

‘custom or policy’ as broadly as plaintiff[] ha[s] here, he

takes an almost impossible burden upon himself.” Rasmussen v.

City of New York, 766 F. Supp. 2d 399, 408 (E.D.N.Y. 2011).

Plaintiff attempts to meet this burden in three ways: first, he

claims these practices are “so persistent and widespread that

[they] constitute[] a custom through which constructive notice

is imposed upon policymakers”; second, he argues that the City

failed to “properly train or supervise” its police officers; and

third, he claims Sergeant Farella is a “municipal official[]

with decision-making authority” whose approval of the actions in

this case bound the City. See generally Moran v. Cnty. of

Suffolk, No. 11-CV-3704, 2015 WL 1321685, at *9 (E.D.N.Y. Mar.

24, 2015) (listing the bases for Monell liability). These

arguments are without merit.

Plaintiff has not successfully produced evidence that

the alleged misconduct is “sufficiently widespread and

persistent to support a finding that they constituted a custom,

policy, or usage.” Matusick v. Erie Cnty. Water Auth., 757 F.3d

31, 62 (2d Cir. 2014). The only evidence Plaintiff presents is

a list of federal and state lawsuits filed against the

individual Defendants in recent years. See Pl.’s Ex. R, ECF No.

54-18 (“Printouts from https://capstat.nyc/officer”). This

document provides no supporting detail about the nature of those

lawsuits, or whether constitutional violations were determined

to have occurred.5 Because the record does not “show that there

[was] any violation of constitutional rights” in these actions,

“there is no evidence of the predicate fact underlying the

alleged custom and policy.” Rasmussen, 766 F. Supp. 2d at 409

5 Indeed, this document is so bare that the Court cannot even locate

many of the referenced cases, given the absence of docket numbers. Those

that the Court was able to find, however, involved no finding of liability

against the named Defendants. See Pandiani v. City of New York, 15-CV-6346,

2019 WL 5703909 (E.D.N.Y. Nov. 5, 2019) (dismissing for failure to

prosecute); Smith v. City of New York, No. 14-CV-9069, 2016 WL 5793410

(S.D.N.Y. Sept. 30, 2016) (granting defendants’ motion for summary judgment

on false-arrest claim); Cortes v. City of New York, 148 F. Supp. 3d 248

(E.D.N.Y. 2015) (granting partial summary judgment in favor of defendants

before case settled); Walker v. City of New York, No. 14-CV-0808, 2015 WL

4254026 (S.D.N.Y. July 14, 2015) (dismissing certain claims before case

settled); Pluma v. City of New York, 13-CV-2017, 2016 WL 1312087 (S.D.N.Y.

Mar. 31, 2016) (dismissing federal claims and subsequently declining

supplemental jurisdiction over remaining state-law claims); but see Burgess

v. City of New York, No. 15-CV-5525, 2018 WL 1581971 (E.D.N.Y. Mar. 29, 2018)

(denying partial summary judgment; case is pending trial).

(noting that “[p]laintiffs seem to proceed on the assumption

that if a complaint, whether administrative or by way of a civil

action, is filed against an officer, it follows ipso facto that

he is guilty of a constitutional violation”); Collins v. City of

New York, 923 F. Supp. 2d 462, 479 (E.D.N.Y. 2013) (holding that

a “litany of other police-misconduct cases” discussed in the

plaintiff's complaint “[were] insufficient to make a plausible

case for Monell liability” because they either were irrelevant

to the misconduct alleged, post-dated such misconduct, or

“involve[d] something less (settlements without admissions of

liability and unproven allegations) than evidence of

misconduct”); see also Forte v. City of New York, No. 16-CV-560,

2018 WL 4681610, at *10 (S.D.N.Y. Sept. 28, 2018) (dismissing

Monell claim based on lawsuits filed against municipality, and

collecting cases finding the same).

Plaintiff’s claim for failure to supervise and

discipline fails for similar reasons. “It is well established

that a plaintiff may [allege Monell claims] by showing that [the

City] was deliberately indifferent to the training, supervision,

or discipline of its employees.” Abreu v. City of New York, 657

F. Supp. 2d 357, 360 (E.D.N.Y. 2009). To assert this claim,

however, Plaintiff must show that “the need for more or better

supervision to protect against constitutional violations was

obvious.” Vann v. City of New York, 72 F.3d 1040, 1049 (2d Cir.

1995). Although an “obvious need may be demonstrated through

proof of repeated complaints of civil rights violations,” id.,

Plaintiff presents “no evidence as to the municipality’s

response to any prior incident of misconduct,” Selvaggio v.

Patterson, 93 F. Supp. 3d 54, 79 (E.D.N.Y. 2015), let alone that

the City made “no meaningful attempt . . . to investigate or to

forestall further incidents.” Vann, 72 F.3d at 1049.

Plaintiff’s failure-to-train claim, which presents an

alternative route to establishing “deliberate indifference,” is

also without merit. “[T]he inadequacy of police training may

serve as a basis for [Section] 1983 liability only where the

failure to train amounts to deliberate indifference to the

rights of persons with whom the police come into contact.” City

of Canton v. Harris, 489 U.S. 378, 390 (1989). Plaintiff’s

claim fails because “[i]t is impossible to prevail” on such a

theory “without any evidence as to . . . how the training was

conducted, how better or different training could have prevented

the challenged conduct, or how a hypothetically well-trained

officer would have acted under the circumstances.” Amnesty Am.

v. Town of W. Hartford, 361 F.3d 113, 130 (2d Cir. 2004)

(internal quotations omitted). Plaintiff has adduced no such

evidence here.

Finally, the claim that Sergeant Farella is a

policymaking official under Monell and its progeny is incorrect

as a matter of law. “Municipal liability attaches only where

the decisionmaker possesses final authority to establish

municipal policy with respect to the action ordered.” Pembaur

v. City of Cincinnati, 475 U.S. 469, 481 (1986). “[A] police

sergeant, even if the ranking officer on a matter, is not a

policy maker.” McKeefry v. Town of Bedford, No 18-CV-10386,

2019 WL 6498312, at *5 (S.D.N.Y. Dec. 2, 2019); Green v. City of

Mt. Vernon, 96 F. Supp. 3d 263, 303 (S.D.N.Y. 2015) (identifying

“no basis” to conclude that police sergeant had “final

policymaking authority with respect to how . . . police officers

were to carry out searches”). The case on which Plaintiff

relies is inapposite because it involved a county sheriff and

other legal and evidentiary factors absent here. See Jeffes v.

Barnes, 208 F.3d 49, 62-64 (2d Cir. 2000) (finding genuine

dispute as to whether county sheriff was policymaking official

based on evidence regarding his privileges and state-law

designations of authority).

B. Qualified Immunity

Plaintiff’s only remaining Section 1983 claims are

against the individual police officers. Under Supreme Court and

Second Circuit precedent, police officers are afforded broad

legal protection by the doctrine of qualified immunity, which

“protects government officials from suit if their conduct does

not violate clearly established statutory or constitutional

rights of which a reasonable person would have known.” Gonzalez

v. City of Schenectady, 728 F.3d 149, 154 (2d Cir. 2013)

(internal quotations omitted). “This is a doctrine that seeks

to balance the twin facts that civil actions for damages may

offer the only realistic avenue for vindication of

constitutional guarantees, and that such suits nevertheless can

entail substantial social costs, including the risk that fear of

personal monetary liability and harassing litigation will unduly

inhibit officials in the discharge of their duties.” Jones v.

Parmley, 465 F.3d 46, 55 (2d Cir. 2006) (internal quotations

omitted).

To determine whether the doctrine applies, a court

must assess: “(1) whether [a] plaintiff has shown facts making

out [a] violation of a constitutional right; (2) if so, whether

that right was ‘clearly established’; and (3) even if the right

was ‘clearly established,’ whether it was ‘objectively

reasonable’ for the officer to believe the conduct at issue was

lawful.” Gonzalez, 728 F.3d at 154. “The objective

reasonableness test is met — and the defendant is entitled to

qualified immunity — if officers of reasonable competence could

disagree on the legality of the defendant’s actions.” Rothman

v. N.Y.C. Transit Auth., 215 F.3d 208, 216 (2d Cir. 2000)

(internal quotations omitted). This standard protects “all but

the plainly incompetent or those who knowingly violate the law.”

Malley v. Briggs, 475 U.S. 335, 341 (1986). Because the

individual Defendants have invoked qualified immunity for each

of Plaintiff’s Section 1983 claims, the Court reviews the merits

of each claim through this lens.

C. False Arrest

To succeed on a claim for false arrest under Section

1983, a plaintiff must prove 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.” Bernard v. United States, 25 F.3d 98, 102 (2d Cir.

1994) (setting forth the elements of false arrest under state

law); see also Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996)

(stating that a false-arrest claim under Section 1983 is

“substantially the same as a claim for false arrest under New

York law”).

Probable cause is a “complete defense” to claims of

false arrest. See Covington v. City of New York, 171 F.3d 117,

122 (2d Cir. 1999). Probable cause exists “when the arresting

officer has knowledge or reasonably trustworthy information

sufficient to warrant a person of reasonable caution in the

belief that an offense has been committed by the person to be

arrested.” Singer v. Fulton Cnty. Sheriff, 63 F.3d 110, 119 (2d

Cir. 1995) (internal quotations omitted). Probable cause does

not require “hard certainties” but instead “requires only facts

establishing the kind of fair probability on which a reasonable

and prudent person, as opposed to a legal technician, would

rely.” Figueroa v. Mazza, 825 F.3d 89, 99 (2d Cir. 2016)

(internal quotations omitted). “[W]here there is no dispute as

to what facts were relied on to demonstrate probable cause, the

existence of probable cause is a question of law for the court.”

Walczyk v. Rio, 496 F.3d 139, 157 (2d Cir. 2007). “[A]n

arresting officer will . . . be entitled to qualified immunity

from a suit for damages if he can establish that there was

arguable probable cause to arrest.” Escalera v. Lunn, 361 F.3d

737, 743 (2d Cir. 2004) (internal quotations omitted).

Although Plaintiff was arrested for a technical

violation, it was not unreasonable to conclude — indeed, it was

likely correct — that Plaintiff’s actions violated the literal

terms of Section 3345 of the New York Public Health Law. This

section provides that “[e]xcept for the purpose of current use

by the person . . . for whom such substance was prescribed or

dispensed, it shall be unlawful for an ultimate user of

controlled substances to possess such substance outside of the

original container in which it was dispensed.” N.Y. Pub. Health

L. § 3345.6 Multiple courts in this Circuit have found probable

cause — or “arguable probable cause,” in the qualified immunity

analysis — in similar circumstances. See, e.g., Cortes v. City

of New York, 148 F. Supp. 3d 248, 254 (E.D.N.Y. 2015) (“It

cannot be denied that plaintiff literally violated the language

of Public Health Law [Section] 3345 — a person cannot possess a

controlled substance outside of its prescription container.”);

see also Salvador v. City of New York, 15-CV-5164, 2016 WL

2939166, at *6 (S.D.N.Y. May 19, 2016) (probable cause — “or at

least arguable probable cause” — existed even though pills were

in a bag next to the original container and arrestee claimed he

had a valid prescription); Deanda v. Hicks, 137 F. Supp. 3d 543,

570-71 (S.D.N.Y. 2015) (finding probable cause “arguably”

existed where plaintiff carried prescription pills in an

unmarked bottle while driving to return the pills to her

sister). Where, as here, Plaintiff carried controlled

substances — the twenty-one suboxone strips — in a pill bottle

labeled for a different prescription drug — suboxone pills — it

was at least arguable that probable cause existed for his

arrest. This defeats Plaintiff’s false-arrest claim.

6 Plaintiff was also charged with violating Section 220.03 of the New

York Penal Law — forbidding the “knowing[] and unlawful[] possess[ion] of a

controlled substance.” N.Y. Penal L. § 220.03. Section 220.03 “effectively

‘piggy-backs’ on [S]ection 3345 by taking its ‘unlawful[ness]’ element from

that statute.” Cortes v. City of New York, 148 F. Supp. 3d 248, 253

(E.D.N.Y. 2015).

Plaintiff argues that he is entitled to damages

because “each act” taken by the Defendants after his allegedly

improper traffic stop was unlawful, including the search that

led to the discovery of the suboxone strips. Pl.’s Opposition

to Summary Judgment at 10-11, ECF No. 52 (“Opp.”). This is

essentially a fruit-of-the-poisonous tree argument, and that

doctrine has no applicability in the Section 1983 context.

Jenkins v. City of New York, 478 F.3d 76, 91 n.16 (2d Cir. 2007)

(in an action for damages under Section 1983, “the fruit of the

poisonous tree doctrine cannot be invoked”). Among other

things, this means that “[v]ictims of unreasonable searches or

seizures” cannot press Section 1983 claims for “injuries that

result from the discovery of incriminating evidence and

consequent criminal prosecution.” Townes v. City of New York,

176 F.3d 138, 148 (2d Cir. 1999); see also Arroyo v. City of New

York, 683 F. App’x 73, 75 (2d Cir. 2017) (summary order) (the

fact that incriminating evidence “was later suppressed does not

preclude a determination that there was arguable probable cause

for the arrest”); Matthews v. City of New York, 889 F. Supp. 2d

418, 434 (E.D.N.Y. 2012) (for Section 1983 claims, evidence

seized “pursuant to [an] allegedly unlawful traffic stop and

search may” nevertheless “provide probable cause” for purposes

of a false-arrest claim). Accordingly, the Court dismisses

Plaintiff’s claim for false arrest.

D. Malicious Prosecution

To prevail on a claim for malicious prosecution, a

plaintiff must show that “(1) the defendant commenced or

continued a criminal proceeding against the plaintiff; (2) the

proceeding terminated in plaintiff’s favor; (3) there was no

probable cause for the criminal proceeding; and (4) defendants

initiated the criminal proceeding out of actual malice.” Neal

v. Fitzpatrick, 250 F. Supp. 2d 153, 154 (E.D.N.Y. 2003). “Like

a false arrest claim, ‘the existence of probable cause is a

complete defense to a claim of malicious prosecution in New

York.’” Johnson v. City of New York, 18-CV-6256, 2020 WL

2732068, at *5 (E.D.N.Y. May 26, 2020) (quoting Savino v. City

of New York, 331 F.3d 63, 72 (2d Cir. 2003)). “The

determination of probable cause in the context of malicious

prosecution is essentially the same as for false arrest, except

that a claim for malicious prosecution must be evaluated in

light of the facts known or believed at the time the prosecution

is initiated, rather than at the time of arrest.” Brown v. City

of New York, 12-CV-3146, 2014 WL 5089748, at *8 (S.D.N.Y. Sept.

30, 2014) (cleaned up). Accordingly, “once probable cause to

arrest has been established, claims of malicious prosecution

survive only if, between the arrest and the initiation of the

prosecution, the groundless nature of the charge is made

apparent by the discovery of some intervening fact.” Smith v.

Tobon, 529 F. App’x 36, 38 (2d Cir. 2013) (summary order)

(cleaned up).

Because probable cause at least arguably existed for

the initial arrest and Plaintiff points to no “intervening fact”

that emerged thereafter, his claim for malicious prosecution

must be dismissed as a matter of law.

E. Malicious Abuse of Process

“[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.” Savino, 331 F.3d at 69-70 (cleaned up).

Although “[t]he torts of malicious prosecution and abuse of

process are closely allied,” Cook v. Sheldon, 41 F.3d 73, 80 (2d

Cir. 1994), the difference between them

is that in a malicious prosecution claim the process is

issued in bad faith and without probable cause, but the

defendant intends to bring about the ordinary result of the

process, while in an abuse of process claim, the issuance

of process may be regular, valid, and lawful, but the

person using the process is interested in only

accomplishing some improper purpose that is collateral to

the object of the process and which offends the spirit of

the legal proceeding itself.

14 N.Y. PRAC., NEW YORK LAW OF TORTS § 1:86.

While the existence of probable cause is not a

complete defense to claims of malicious abuse of process,

Plaintiff’s claim nevertheless fails because he identifies no

“collateral objective that is outside the legitimate ends of the

process” that the Defendants sought to gain by commencing legal

action. Savino, 331 F.3d at 70. Though parts of the record

suggest that the officers were motivated by a desire to engage

with Plaintiff’s “Knight Rider” car, he does not allege as much

in support of his abuse-of-process claim. And even if this

desire motivated the initial stop and arrest, there is no

evidence that the officers facilitated his subsequent

prosecution for this purpose. Id. at 77-78. For these reasons,

Plaintiff’s malicious-abuse-of-process claim must be dismissed.

F. Unlawful Search

Plaintiff claims that the Defendants conducted an

unlawful search of his person and car. It is undisputed that

the Defendants performed these searches without a warrant and

without Plaintiff’s consent. Searches like these “are per se

unreasonable under the Fourth Amendment — subject only to a few

specifically established and well-delineated exceptions.” Katz

v. United States, 389 U.S. 347, 357 (1967). But qualified

immunity shields police officers who conduct warrantless

searches so long as they could “reasonably have believed that

the search” fit within an exception to the warrant requirement.

Anderson v. Creighton, 483 U.S. 635, 641 (1987). “Among the

exceptions to the warrant requirement is a search incident to a

lawful arrest.” Arizona v. Gant, 556 U.S. 332, 338 (2009).

Given the Defendants’ qualified immunity, the only question is

whether it was reasonable for them to believe the warrantless

searches fell within the search-incident-to-arrest doctrine.

The warrantless search of Plaintiff’s person satisfies

this reasonableness standard. Although Officer Goyco reached

into Plaintiff’s pocket to retrieve the pill bottles without

Plaintiff’s consent, this occurred only after Plaintiff had

voluntarily handed him the pill bottles and Officer Goyco saw

suboxone strips in the container labeled for suboxone pills.

Pl.’s Ex. B, Pl.’s Dep. at 52:12-19 (Plaintiff testified that

when Officer Goyco first asked if he could “see” Plaintiff’s

prescription medications, Plaintiff replied “sure” and then

“reached in [his own] pocket [and] presented [his] medication”).

At that point, probable cause arguably existed to arrest

Plaintiff for the reasons explained above.7 Because of this, the

law permitted Officer Goyco to conduct a “search incident” to

7 Plaintiff does not argue that Officer Goyco’s act of opening the pill

bottles constituted an unreasonable search under the Fourth Amendment, even

after Plaintiff voluntarily produced them. See Compl. ¶ 17 (two officers

“entered Plaintiff’s motor vehicle and conducted an unwarranted search of the

interior of said vehicle”); id. ¶ 18 (after Officer Goyco “thrust his hand

into Plaintiff’s jacket,” the officers “proceeded to improperly and illegally

search Plaintiff’s motor vehicle, again without probable cause or consent”);

Opp. at 3 (same); id. at 10 (“There was no probable cause for . . .

conducting the subject search of the plaintiff or his vehicle . . . .”); id.

at 11 (“The search of the plaintiff’s person and vehicle were unlawful as was

the stop that resulted in that search.”). Therefore the Court does not

address that issue.

that arrest. United States v. Robinson, 414 U.S. 218, 235

(1973). The law is clear that such searches “require[] no

additional justification.” Id. This exception to the warrant

requirement applies even if the search occurred moments before

Officer Goyco initiated the arrest, as Plaintiff’s deposition

testimony might suggest; where an officer “clearly ha[s]

probable cause” to arrest a suspect, a search “incident to” that

arrest may shortly precede the arrest, as well as follow it.

See Rawlings v. Kentucky, 448 U.S. 98, 111 (1980) (“Where the

formal arrest followed quickly on the heels of the challenged

search of petitioner’s person, we do not believe it particularly

important that the search preceded the arrest rather than vice

versa.”).

Likewise, the Defendants were not “plainly

incompetent” in concluding that the warrantless search of

Plaintiff’s car was lawful. Malley, 475 U.S. at 341. Supreme

Court precedent permits police officers to conduct warrantless

searches of vehicles in certain situations. Specifically, in

Arizona v. Gant, the Court “adopted a new, two-part rule under

which an automobile search incident to a recent occupant’s

arrest is constitutional (1) if the arrestee is within reaching

distance of the vehicle during the search, or (2) if the police

have reason to believe that the vehicle contains ‘evidence

relevant to the crime of arrest.’” Davis v. United States, 564

U.S. 229, 234-35 (2011). This exception to the warrant

requirement exists “even after the arrestee has been secured and

cannot access the interior of the vehicle.” Cooper v. City of

New Rochelle, 925 F. Supp. 2d 588, 611 (S.D.N.Y. 2013).

While there is no dispute that the first prong of Gant

(access to the vehicle) is inapplicable, “officers of reasonable

competence could disagree” as to whether the second exception

applies here. Malley, 475 U.S. at 341. Indeed, some courts

have opined that arrests for drug offenses automatically allow

officers to search the arrestee’s vehicle so long as the

arrestee recently occupied it.8 See Thornton v. United States,

541 U.S. 615, 632 (2004) (Scalia, J., concurring) (following an

arrest for a drug offense, it is “reasonable [for police

officers] to believe that further contraband or similar evidence

relevant to the crime for which [the arrestee] had been arrested

might be found in the vehicle from which he had just alighted

and which was still within his vicinity at the time of arrest”);

United States v. Mitchell, No. 16-10112, 2017 WL 552732, at *9

(D. Kan. Feb. 10, 2017) (after finding drugs in the defendant’s

8 It bears noting that the search of Plaintiff’s coat pocket also

revealed he had concealed a bottle of Xanax — a second substance — when

handing his medications to Officer Goyco for inspection. Pl.’s Ex. L at 3,

ECF No. 54-12 (“NYPD Prisoner Property Receipt”) (listing thirty alprazolam

tablets); Pl.’s Ex. F, Misdemeanor Complaint and Supporting Deposition at 2

(stating that Plaintiff possessed “buprenorphine,” “naloxone,” and

“alprazolam,” with the latter found through a “search incident to lawful[]

arrest in coat pocket”); Pl.’s Ex. B, Pl.’s Dep. at 99:4-15 (acknowledging

that he was in possession of prescription Xanax that day).

pocket following a traffic stop, it was “reasonable to believe

evidence relevant to the possession of a controlled substance

crime might be found in the vehicle”); United States v. Stone,

No. 1:08-CR-32-R, 2009 WL 2447926, at *3 (W.D. Ky. Aug. 7, 2009)

(“It is reasonable for an officer to believe that a person

lawfully arrested for a drug offense may have further contraband

or similar evidence relevant to the crime in the vehicle from

which he just exited.”). And courts in this Circuit have

extended qualified immunity to officers who conduct vehicle

searches without any concrete reason to believe contraband would

be found in the car. See Quiles v. City of New York, No. 15-CV-

1055, 2016 WL 6084078, at *9-*10 (S.D.N.Y. Oct. 12, 2016)

(finding “arguable probable cause” existed to search vehicle

where arrestee reported he had “hypodermic needles in his

possession” and “was on his way to a drug detoxification

program,” even though officers had not seen any contraband in

the vehicle). Given these precedents, it cannot be said that no

reasonable officer could have believed the search of Plaintiff’s

car was lawful, including the search of the “glove compartment

and center console.” Compl. ¶ 17.

For the same reasons as in Plaintiff’s false-arrest

and malicious-prosecution claims, the alleged illegality of the

initial stop is of no moment here. Cf. Baksh v. City of New

York, 15-CV-7065, 2018 WL 1701940, at *6 (E.D.N.Y. Mar. 31,

2018) (claim that “search was unlawful because it followed an

allegedly unlawful traffic stop” “relies on a ‘fruit of the

poisonous tree’ theory that is not cognizable under [Section]

1983”). Defendants’ motion is therefore granted with respect to

these warrantless searches.

G. Excessive Force

Plaintiff claims his “rough ride” to the precinct

constituted excessive force. To survive summary judgment on an

excessive force claim, a plaintiff must demonstrate the force

used in the arrest was “excessive” under the Fourth Amendment.

See Smith v. P.O. Canine Dog Chas, No. 02 6240, 2004 WL 2202564,

at *13 (S.D.N.Y. Sept. 28, 2004). Police officers’ application

of force is excessive under the Fourth Amendment “if it is

objectively unreasonable in light of the facts and circumstances

confronting them, without regard to their underlying intent or

motivation.” Maxwell v. City of New York, 380 F.3d 106, 108 (2d

Cir. 2004) (internal quotations omitted).

Here, Plaintiff contends that the excessive force

arose from the officers’ “negligent[], wanton[] and

intentional[] fail[ure] to prevent . . . the excessive use of

force and brutality,” Compl. ¶¶ 89-90, by driving “aggressively”

without providing a functional seatbelt. Specifically, he

alleges that he “was tossed about for an unreasonably long

period of time and transported in an unsafe manner that was

carried out either intentionally or negligently.” Id. ¶ 16.

The van “was continuously and roughly/violently driven” for a

total of “roughly [three] hours,” id. ¶ 32, and he was kept in

the van for an “excessive length of time and without any

justification,” id. ¶ 33; the van ride reflected “mishandling”

on the part of the officers, id. ¶ 51; he “was physically

abused” during that time, id. ¶ 91; and he “was inadequately

secured” and “tossed about violently,” Opp. at 2. At his

deposition, Plaintiff testified that the officers drove

“aggressively,” and at some points “really, really

aggressively,” Pl.’s Ex. B, Pl.’s Dep. at 73:22-74:4; he also

stated that the seatbelt in the van was merely for “cosmetics,”

providing “no tension,” id. 66:19-22, and that the officers

“busted a fast U-turn,” which sent him “flying,” id. 74:20-

75:12.

Because Defendants have invoked qualified immunity,

the critical question is whether they should reasonably have

known that their conduct in the van violated “clearly

established” constitutional law. “[W]hile both the excessive

force inquiry and the qualified immunity inquiry ask whether the

officer’s actions were ‘objectively reasonable,’ the qualified

immunity inquiry goes on to ask whether any constitutional

violation was clearly established.” Jackson v. Tellado, 236 F.

Supp. 3d 636, 661 (E.D.N.Y. 2017). “The dispositive question is

whether the violative nature of particular conduct is clearly

established . . . in light of the specific context of the case.”

Mullenix v. Luna, 577 U.S. 7, 12 (2015) (internal quotations

omitted). Though this standard does not require “a case

directly on point,” “existing precedent must have placed the

statutory or constitutional question beyond debate.” Id.

This standard poses a challenge here, given the

scarcity of cases addressing excessive-force claims in this

context. Plaintiff points to no precedent that clearly forbids

Defendants’ conduct, and this Court is aware of none. If

anything, the law in this Circuit tends to support the

conclusion that Defendants’ conduct was lawful. This precedent

establishes that there is no constitutional right to “non-

negligent driving by government employees,” Carrasquillo v. City

of New York, 324 F. Supp. 2d 428, 436 (S.D.N.Y. 2004)

(dismissing claim based on car accident), or even to a seatbelt,

Jabbar v. Fischer, 683 F.3d 54, 58 (2d Cir. 2012) (regarding

prisoners). Relying on these precedents, another judge in this

District recently dismissed a (somewhat) similar excessive-force

claim on the grounds that it did not raise constitutional

issues, but rather sounded in negligence. See Lopez v. City of

New York, 15-CV-7292, 2018 WL 2744705, at *8 (E.D.N.Y. June 7,

2018) (plaintiff alleged that police officers used excessive

force by rapidly accelerating their police van without first

buckling her seatbelt).

Given the similarities between these cases and the one

at bar, it cannot be said that a reasonable officer in

Defendants’ position would have known that they were violating

clearly established law. Plaintiff does not assert that the

officers drove at excessive speeds or engaged in any specific

dangerous maneuvers. And he speculated that the reason for

Defendants’ “aggressive” driving was that they were pursuing

other suspects, rather than endeavoring to cause injury. Pl.’s

Ex. B, Pl.’s Dep. at 87:8-12 (explaining that he “tipped over”

“because [the officers] were trying, I guess, . . . to catch

other people”); see also Defs’ Ex. A, November 17, 2016 Medical

Records at 2 (Plaintiff reported that “four days ago he was

arrested . . . and placed in the back of [a] police car” where

the drivers were “chasing after several perpetrators” and that

“as a result he was tumbling back and forth in the back of the

car”). This suggests the officers were performing ordinary

police duties, which undermines the inference that reasonable

officers would have known their actions were unlawful.

And though the initial ride was long, Plaintiff does

not dispute the Defendants’ assertion that these officers

“typically” continue their scheduled patrol even after detaining

arrestees in their vehicle for similar lengths of time. Defs’

Ex. G, Setteducato Dep. at 21:22-25 (“[T]ypically we stay out

with the van until we are done conducting enforcement . . . .”);

id. 45:5-19 (stating that there was no “specific reason” why

Plaintiff remained in the van and explaining, “That’s just how

we operate. We go out. We do enforcement for a period of time.

The prisoner van is a secure location to hold the prisoners

until we’re done, and they’re transported to the precinct for

processing” — and confirming that it is “common to keep a

prisoner in the back of the van for more than three hours”).

This, too, supports the conclusion that reasonable police

officers would not have believed the van ride was unlawful.

For these reasons, Plaintiff’s excessive-force claim

cannot surmount the Defendants’ qualified-immunity defense. As

noted above, the law of qualified immunity, as handed down by

the Supreme Court, protects “all but the plainly incompetent or

those who knowingly violate the law.” Malley, 475 U.S. at 341.

In this case, the record establishes that the officers’ conduct

fell into neither of these categories. Defendants’ motion is

therefore granted as to Plaintiff’s excessive-force claim.

H. Deliberate Indifference to Medical Needs

Plaintiff’s deposition testimony regarding the number

of times he raised medical concerns — and what he told the

officers — is muddled at best.9 Reading his testimony “in the

light most favorable to the party against which summary judgment

is contemplated,” NetJets Aviation, Inc. v. LHC Commc’ns, LLC,

537 F.3d 168, 178 (2d Cir. 2008), the Court assumes that

Plaintiff expressed concern about his medical wellbeing multiple

times that night. Defendants, it is assumed, ignored each of

these statements, except his initial request for blood pressure

medication in the van. The Court also assumes that Plaintiff,

when making each statement, was concerned about his van injuries

or blood pressure, not his “heart issues,” “throat cancer,”

“anxiety,” or “back injury,” Compl. ¶ 47, because he alludes to

these other conditions only obliquely, if at all, in his

testimony. Pl.’s Ex. B, Pl.’s Dep. at 90:20-91:5 (the source of

his concern was his “blood pressure,” because he “didn’t have

access to [his] medication,” and “the [van] injury”). Although

9 Plaintiff claims that he asked for medical attention “a total of three

times in the care of [Defendants]” and “once in the care of whoever” was

present at the second precinct where he stayed overnight. Pl.’s Ex. B, Pl.’s

Dep. at 88:14-17. First, he requested “blood pressure medicine” in the car

(which Defendants provided), id. 71:6-25; 89:11-19; second, he told

Defendants “something’s not right” and that he “d[idn’t] feel right” after

falling in the van, id. 77:12-78:6; 78:16-21; but see id. 91:11-14 (“the

second time” he asked for medical assistance “was after I tipped over, after

they gave me the medication at the 121st Precinct”); third, he requested

unspecified medical assistance either at the first precinct, id. 88:20-89:9

(requesting medical assistance “at the 121”), en route to the second

precinct, id. 91:15-19 (“the third time” he asked for medical assistance “was

on the way to the 120th Precinct”), or after arriving at the second precinct,

id. 90:8-10 (requesting assistance “when we were in the 120, but not in the

van”); and finally, he “yelled out” to an unidentified person at the second

precinct, “Could I please have some medical attention? I don’t feel well,”

id. 90:12-14.

the Court assumes these conditions were the source of

Plaintiff’s concerns, the record does not clearly demonstrate

that he communicated this fact to the officers on any occasion

on which they ignored him. Instead, his statements were more

vague. Id. 78:3-8 (he told the officers “multiple times that

night” that “something’s not right. I don’t feel right.”); id.

90:12-14 (telling unidentified officer at the second precinct,

“Could I please have some medical attention? I don’t feel

well.”).

“A pretrial detainee may establish a [Section] 1983

claim for allegedly unconstitutional conditions of confinement

by showing that the officers acted with deliberate indifference

to the challenged conditions” under the Fourteenth Amendment.

Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir. 2017). This means

that a pretrial detainee must satisfy two prongs to state a

claim: “an ‘objective prong’ showing that the challenged

conditions were sufficiently serious to constitute objective

deprivations of the right to due process, and a ‘subjective

prong’ . . . showing that the officer acted with at least

deliberate indifference to the challenged conditions.” Id.

(noting that a detainee’s rights under due process are “at least

as great as the Eighth Amendment protections available to a

convicted prisoner”).

With respect to medical ailments specifically, “a

pretrial-detainee plaintiff must show that she had a serious

medical condition and that it was met with deliberate

indifference.” Dollard v. City of New York, 408 F. Supp. 3d

231, 236 (E.D.N.Y. 2019) (internal quotations omitted). “This

inquiry requires the court to examine how the offending conduct

is inadequate and what harm, if any, the inadequacy has caused

or will cause the prisoner.” Salahuddin v. Goord, 467 F. 3d

263, 280 (2d Cir. 2006).

Plaintiff’s injuries from the van do not satisfy the

first, “objective” prong of this test. “[I]f the unreasonable

medical care is a failure to provide any treatment for an

inmate’s medical condition, courts examine whether the inmate’s

medical condition is sufficiently serious.” Id. This standard

contemplates a “condition of urgency, one that may produce

death, degeneration, or extreme pain,” Hathaway v. Coughlin, 37

F.3d 63, 66 (2d Cir. 1994), though a plaintiff need not

“demonstrate that he or she experiences pain that is at the

limit of human ability to bear,” or that “his or her condition

will degenerate into a life-threatening one” without treatment.

Brock v. Wright, 315 F.3d 158, 163 (2d Cir. 2003). Here, the

only diagnosis on the record is a “right shoulder injury[,]

possibly a rotator cuff tear and right wrist sprain.” Defs’ Ex.

A, November 17, 2016 Medical Records at 2. The doctors gave

Plaintiff a “carpal tunnel brace” for his wrist and suggested

physical therapy for his shoulder, but prescribed no medication.

Id. These injuries do not meet the definition of a “condition

of urgency.” See Scalpi v. Town of E. Fishkill, 14-CV-2126,

2016 WL 858916, at *10 n.13 (S.D.N.Y. Feb. 29, 2016) (a “tear or

sprain” in the shoulder is not a “sufficiently serious” injury);

Alster v. Goord, 745 F. Supp. 2d 317, 337 (S.D.N.Y. 2010)

(injury to plaintiff’s arm was not “sufficiently serious”

because there were no “fractures or dislocation”); Covington v.

Westchester Cnty. Dep’t of Corr., No. 06-CV-5369, 2010 WL

572125, at *7 (S.D.N.Y. Jan. 25, 2010) (“muscle sprains” are not

“sufficiently serious”).10

As for Plaintiff’s request for assistance with his

blood pressure, these pleas were not met with deliberate

indifference. Deliberate indifference requires a showing that

the Defendants “acted intentionally to impose the alleged

condition, or recklessly failed to act with reasonable care to

10 Although Plaintiff claims these injuries caused serious complications

later on, he does not squarely allege that immediate intervention would have

changed this outcome. See, e.g., Sereika v. Patel, 411 F. Supp. 2d 397, 406

(S.D.N.Y. 2006) (denying summary judgment where plaintiff alleged that delay

in treating shoulder injury caused serious impediments and pain later). Even

if Plaintiff made this argument, he submits no medical evidence tying his

later injuries to the original inadequacy in treatment. Cf. Spiegel v.

Schulmann, 604 F.3d 72, 81 (2d Cir. 2010) (plaintiff’s testimony that his

medical condition prevented him from losing weight was insufficient to

withstand a motion for summary judgment in the absence of “competent medical

evidence confirming that connection”); see also Fuller v. Lantz, 549 F. App’x

18, 21 (2d Cir. 2013) (summary order) (affirming summary judgment on

deliberate-indifference claim where medical diagnosis was supported only by

“lay statements” in affidavits).

mitigate the risk that the condition posed,” even though they

“knew, or should have known, that the condition posed an

excessive risk to health or safety.” See Darnell, 849 F.3d at

35. The record shows that Plaintiff requested his blood

pressure medication only once, and Defendants administered it

when he did. The record does not indicate that he asked for his

medication again, or that he otherwise alerted Defendants to

concerns about his blood pressure (or any other specific medical

issues) thereafter. Plaintiff’s deposition testimony also

appears to acknowledge that the Defendants actually administered

a second round of blood pressure medication at the first

precinct. Pl.’s Ex. B, Pl.’s Dep. at 91:11-14 (testifying that

the second time he asked for help was “after I tipped over [in

the van], after they gave me the medication at the 121st

Precinct”). Because there is no evidence that the Defendants

knew Plaintiff wanted his blood pressure medicine when they

ignored his pleas, they were not deliberately indifferent to

this medical need. Cf. Araujo v. City of New York, No. 08-CV-

3715, 2010 WL 1049583, at *8 (E.D.N.Y. Mar. 19, 2010)

(dismissing deliberate-indifference claim because plaintiff did

not “request[] immediate emergency care” or “inform[]” any

officials “that he had a serious medical condition”); Graham v.

Coughlin, No. 86-CV-163, 2000 WL 1473723, at *5 (S.D.N.Y. Sept.

29, 2000) (same, because plaintiff “did not alert defendants to

any health problems”).

Even assuming the Defendants ignored one or more

additional requests for blood pressure medication, “[b]oth the

Second Circuit and numerous district courts within it have found

that missing a single dose or even several doses of medicine is

generally not actionable, even where the effect of missing a

single dose is far more severe than plaintiff claims to have

experienced here.” Constantino v. DiStefano, No. 18-CV-5730,

2020 WL 353094, at *5 (E.D.N.Y. Jan. 21, 2020). Being deprived

of blood pressure medication for less than twenty hours11 does

not violate the Constitution — at least where, as here, no

lasting health consequences arose. Compare Bumpus v. Canfield,

495 F. Supp. 2d 316, 322 (W.D.N.Y. 2007) (dismissing deliberate-

indifference claim based on “a delay of several days in

dispensing plaintiff’s hypertension medication” absent evidence

that “the delay gave rise to a significant risk of serious

harm”); Torres v. Trombly, 421 F. Supp. 2d 527, 532-33 (D. Conn.

2006) (prison nurse’s failure to administer hypertension

medicine for one day did not cause plaintiff to suffer a serious

11 Plaintiff was arrested at approximately 5:00 p.m., Pl.’s Ex. G at 1,

ECF No. 54-7 (“Post-Tactical Plan”), and released the next day after his

12:34 p.m. arraignment, Defs’ Ex. N at 1, ECF No. 50-14 (“NYPD Online

Prisoner Arraignment Form”). This is less than twenty hours in custody. He

received medication at some point before arriving to the first precinct

around 8:10 p.m. See Pl.’s Ex. G, Post-Tactical Plan at 1.

medical condition), with Lozada v. City of New York, No. 12-CV-

0038, 2013 WL 3934998, at *6 (E.D.N.Y. July 29, 2013) (plaintiff

sufficiently pled deliberate indifference where van drivers

ignored detainee’s repeated requests to use the restroom for his

high blood pressure, laughed and mocked him, and then stopped

the van to use the bathroom themselves, for a total of four

hours before plaintiff wound up in the emergency room).

Plaintiff’s claim for deliberate indifference to medical needs

is dismissed.

I. Unlawful Stop

Because Plaintiff’s only remaining Section 1983 claim

is for the initial stop, the Court must determine whether this

claim will proceed against some or all the named officers.

Section 1983 claims may proceed only against those who are

“personal[ly] involv[ed]” in the underlying violation. Wright

v. Smith, 21 F.3d 496, 501 (2d Cir. 1994). Here, different

officers were involved at different stages of the process — the

stop and arrest, the van ride, and the prosecution. There is no

evidence that anyone besides Officers Vaccarino and Goyco

“direct[ly] participat[ed]” in the initial stop, Black v.

Coughlin, 76 F.3d 72, 74 (2d Cir. 1996), or knew about it

beforehand, cf. Demosthene v. City of New York, No. 14-CV-816,

2018 WL 10072931, at *6 (E.D.N.Y. July 20, 2018) (“A failure-to-

intervene claim requires that a defendant had a reasonable

opportunity to prevent the harm.”). Although Sergeant Farella

was their supervisor, Plaintiff presents no evidence that he

either “created a policy or custom under which unconstitutional

practices occurred” or “was grossly negligent in supervising”

his subordinates. Colon v. Coughlin, 58 F.3d 868, 873 (2d Cir.

1995) (listing bases for establishing personal involvement of

“supervisory defendant[s]” under Section 1983). Accordingly,

Defendants’ motion is granted with respect to all individual

Defendants save Officers Vaccarino and Goyco, because only they

had the requisite degree of involvement in the initial stop.

J. State-Law Claims

Plaintiff also asserts several state-law claims, none

of which are accompanied by sufficient record evidence to

survive summary judgment. His civil assault and battery claims

arising from the van ride fail because he cites no evidence that

Defendants “intentional[ly] plac[ed]” him “in fear of imminent

harmful or offensive contact” (assault) or that they made

“intentional wrongful physical contact” with him “without his

consent” (battery). Green v. City of New York, 465 F.3d 65, 86

(2d Cir. 2006). Plaintiff’s claim for negligent hiring and

training against the City fails because he presents insufficient

evidence that “the [City] knew or should have known of the

employee’s propensity for the conduct which caused the injury,”

Bouche v. City of Mt. Vernon, No. 11-CV-5246, 2012 WL 987592, at

*9 (S.D.N.Y. Mar. 23, 2012), or that the Defendants were “acting

outside the scope of [their] employment,” see Jacquez ex rel.

Pub. Adm’r of Bronx Cnty. v. City of New York, No. 10-CV-2881,

2014 WL 2696567, at *7 (S.D.N.Y. June 9, 2014). As for his

infliction of emotional distress claims, “because the

complained-of conduct here falls within the scope of claims of

unreasonable search and seizure, false arrest, and malicious

prosecution, a cause of action for [intentional infliction of

emotional distress] or [negligent infliction of emotional

distress] is unavailing.” Cabrera v. City of New York, No. 16-

CV-1098, 2017 WL 6040011, at *11 (S.D.N.Y. Dec. 4, 2017).

* * * * *

Because Defendants do not seek summary judgment on

Plaintiff’s claims for negligence or the initial traffic stop at

this stage, the Court does not pass on them. Accordingly, all

Defendants remain in this action, either in defense of

Plaintiff’s remaining Section 1983 claim for the initial stop

(Officers Vaccarino and Goyco), or his negligence claims (all

Defendants).

III. Conclusion

For the reasons set forth above, Defendants’ motion

for partial summary judgment is granted in its entirety.

SO ORDERED.

/s Eric Komitee__________________

ERIC KOMITEE

United States District Judge

Dated: January 7, 2021

Brooklyn, New York