Opinion

Asseng v. County of Nassau

Court: District Court, E.D. New York
Filed: Dec 16, 2021
Cited by: 0 cases
Authority: More cited than 26.6%

holding the plaintiff could not sustain an Eighth Amendment claim for deliberate indifference to serious medical needs where “there [was] no evidence that [the plaintiff’s] conditions worsened over the hours of delay here”

How later courts described this case

holding the plaintiff could not sustain an Eighth Amendment claim for deliberate indifference to serious medical needs where “there [was] no evidence that [the plaintiff’s] conditions worsened over the hours of delay here”
observing same standard applies to prisoners and pre-trial detainees
“[T]he relevant probable cause determination is whether there was probable cause to believe the criminal proceeding could succeed and, hence, should be commenced.”

Written by the judges who cited it.

The opinion

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

-----------------------------------X

MICHAEL ASSENG,

Plaintiff,

MEMORANDUM & ORDER

-against- 14-CV-5275(JS)(AYS)

COUNTY OF NASSAU; NASSAU COUNTY

POLICE OFFICER JOHN BEISEL, FILED

Serial No. 7586; NASSAU COUNTY POLICE CLERK

OFFICER JOHN DOE #1; NASSAU COUNTY 12/16/2021 1 1:15 am

POLICE OFFICER JOHN DOE #2; NASSAU

COUNTY POLICE SERGEANT ANTHONY U.S. DISTRICT COURT

GABRIELLI; NASSAU COUNTY POLICE EASTERN DISTRICT OF NEW YORK

OFFICER JOHN DOE #3; and NASSAU LONG ISLAND OFFICE

COUNTY ASSISTANT DISTRICT ATTORNEY

JOHN DOE #1,

Defendants.

-----------------------------------X

APPEARANCES

For Plaintiff: Daniel S. Hallak, Esq.

The Russel Friedman Law Group, LLP

400 Garden City Plaza, Suite 500

Garden City, New York 11530

For Defendants: Alexander E. Sendrowitz, Esq.

Quatela Chimeri PLLC

888 Veterans Memorial Highway, Suite 530

Hauppauge, New York 11788

SEYBERT, District Judge:

On September 9, 2014, plaintiff Michael Asseng

(“Plaintiff”) commenced this action pursuant to 42 U.S.C. § 1983

against the County of Nassau (the “County”); Nassau County Police

Officer John Beisel (“Officer Beisel”); Nassau County Police

Officer John Does #1-3; Nassau County Police Sergeant Anthony

Gabrielli; and Nassau County Assistant District Attorney John Doe

#1 (collectively, “Defendants”). Plaintiff brings claims against

Defendants for false arrest, malicious prosecution, and denial of

medical treatment in violation of his Fourth and Fourteenth

Amendment constitutional rights. Pending before the Court is

Defendants’ motion for summary judgment. (Mot., ECF No. 111;

Support Memo, ECF No. 111-3; Opp’n, ECF No. 114; Reply, ECF No.

115.)1 For the following reasons, Defendants’ motion is DENIED.

BACKGROUND

Unless otherwise noted, the following facts are

undisputed.2

1 Pin citations to the parties’ briefing will be to the document’s

internal pagination.

2 Unless otherwise indicated, the facts are taken from Defendants’

Rule 56.1 Statement (Defendants’ Rule 56.1 Statement of Material

Facts (“Defs. 56.1 Stmt.”), ECF No. 111-1), and Plaintiff’s Rule

56.1 Counter-Statement of Material Facts ((Plaintiff’s Counter-

Statement of Material Facts (“Pl. 56.1 Counterstmt.”), ECF No.

112). Unless otherwise stated, a standalone citation to a Rule

56.1 Statement or Counterstatement denotes that either the parties

agree, or the Court has determined, that the underlying factual

allegation(s) is (are) undisputed. Citation to a party’s Rule

56.1 Statement or Counterstatement incorporates by reference the

document(s) cited therein.

Defendants’ exhibits, which are attached to the Declaration of

Alexander E. Sendrowitz (see ECF No. 111-2), are identified by

letters. For ease of citation, the Court will simply cite to the

lettered exhibits. Plaintiff’s exhibits, which are attached to

(1) his Rule 56.1 Counter-Statement of Material Facts, and (2) the

Declaration of Daniel S. Hallak (see ECF No. 113), are identified

by letters or numbers. Again, for ease of citation, the Court

will simply cite to the lettered or numbered exhibits.

I. Facts

This case arises out of a school bus accident, which

resulted in Plaintiff’s arrest and subsequent prosecution by the

County for five felony counts of aggravated driving while

intoxicated. The charges were later dismissed.

A. The Accident Scene

Plaintiff worked as a bus operator for ACME Bus

Corporation. (Defs. 56.1 Stmt. ¶ 4.) On January 18, 2013, while

operating a school bus with four children on board, Plaintiff

struck a stationary vehicle. (Id.) He pulled over and called 911

to report the accident. (Id. ¶ 5.)3 At the time of the accident

and at his doctor’s direction, Plaintiff was taking over-the-

counter Motrin for flu-like symptoms, having recently undergone

treatment for kidney stones. (Id. ¶¶ 1-3.)

At 12:06 p.m., Officer Beisel arrived at the scene of

the accident. (Id. ¶ 6.) The parties largely dispute what

transpired next, though their disputes relate primarily to the

characterization of Officer Beisel’s observations of Plaintiff,

i.e., whether Plaintiff displayed indicia of intoxication or a

medical episode. According to Defendants, upon arrival,

“Plaintiff advised Officer Beisel that he ‘felt dizzy.’” (Id. ¶

7.) Plaintiff adds that he also told Officer Beisel that he “had

3 No children were harmed in the accident.

kidney problems” and “might have a touch of the flu.” (Pl. 56.1

Counterstmt. ¶ 7.) Officer Beisel also observed that Plaintiff

“had glassy eyes, slurred speech, appeared to be disoriented and

was unsteady on his feet.” (Defs. 56.1 Stmt. ¶ 8.)

When Emergency Medical Technicians (“EMTs”) from the

South Farmingdale Fire Department (“SFFD”) arrived, they

reportedly observed Plaintiff “confused and not speaking clearly.”

(Id. ¶ 9 (citing SFFD Report, Ex. G).) The SFFD Report further

assessed that Plaintiff complained of general malaise and that he

was experiencing altered mental status. (Id.) With Plaintiff’s

permission, at 12:20 p.m., the EMTs performed a glucose check,

which was 96, or not a concerning level. (Id.) The SFFD Report

also noted that Officer Beisel conducted a breathalyzer, which

came back negative. (Id.) According to Plaintiff, he submitted

to three breathalyzers at the scene of the accident, the results

of which were all negative. (Pl. 56.1 Counterstmt. ¶¶ 10-11

(citing Asseng Depo. Tr. at 22:11-23:18, Ex. C).) At 12:37 p.m.,

the SFFD EMTs transferred care of Plaintiff to Officer Beisel.

(SFFD Report, Ex. G.)

Plaintiff disputes Defendants’ characterization of the

EMTs’ medical evaluation, claiming that Officer Beisel rebuffed

efforts by one of the EMTs, EMT Lee, to take Plaintiff’s vitals.

(Pl. 56.1 Counterstmt. ¶¶ 15-17.) Specifically, Plaintiff asserts

that EMT Lee advised Officer Beisel that Plaintiff needed immediate

medical attention, but that Officer Beisel told him to “get lost.”

(Id. (citing Asseng Depo. Tr. at 22:18-23:22, Ex. C); see also

Asseng Aff., Ex. B, ¶¶ 23-25.) According to Plaintiff, had EMT

Lee checked Plaintiff’s vitals, they would have showed signs of

sepsis. (Pl. 56.1 Counterstmt. ¶ 18 (citing Dr. Keck Report, Ex.

16, at 4).) In Plaintiff’s telling, with the EMTs dismissed, he

communicated to Officer Beisel that his need for medical attention

was solely in the officer’s hands. (Id. ¶ 16.) Plaintiff also

points out that a Nassau County Police Department Ambulance Medical

Technician (“AMT”), AMT Milton, arrived at the scene but did not

conduct any tests or interview Plaintiff after speaking with the

EMTs (id. ¶¶ 19-23), although it appears from AMT Milton’s

deposition that this was the case because the SFFD EMTs told him

“they could handle it” (AMT Milton Depo. Tr. at 81:12-19, Ex. 2).

After the SFFD EMTs transferred Plaintiff back to

Officer Beisel, he instructed Plaintiff to perform a field sobriety

test. (Defs. 56.1 Stmt. ¶ 10.) Plaintiff failed: During the

horizontal gaze nystagmus test, Officer Beisel observed that

Plaintiff’s “eyes were dilated, and both his right and left eye

lacked smooth pursuit” (id.); during the walk and turn test,

Plaintiff “could not keep his balance,” started the test too soon,

and “within the first 9 steps, Plaintiff stopped walking, missed

heel to toe, stepped off the line, raised his arms and was only

able to take four steps” (id.); and, Plaintiff was unable to

perform the one leg stand test (id.). As a result, at 12:55 p.m.,

Officer Beisel arrested Plaintiff and transported him to the Nassau

County Central Testing Unit (“CTU”).

B. The Central Testing Unit

While at the CTU, one of the on-duty officers, Officer

Baietto, observed Plaintiff had “glassy eyes” and “trouble walking

to [the] test area.” (Id. ¶ 12.) He further observed that the

“effects of alcohol [or] drugs” were “obvious” to “moderate.”

(Id.) According to Officer Baietto’s contemporaneous notes,

Plaintiff was sweating and kept stating, “I’m tired, I can sleep

right here, I’m exhausted.” (Id.) Plaintiff also complained of

pain to the left side of his chest above his stomach. (Id. ¶ 13;

see also Pl. 56.1 Counterstmt. ¶ 29.) Plaintiff consented to a

breath test by Officer Baietto to determine his blood alcohol

content, which came back negative. (Pl. 56.1 Counterstmt. ¶¶ 30,

33.) Plaintiff also consented to a chemical test of his urine but

was unable to urinate. (Id. ¶¶ 34-36.) According to Plaintiff,

officers at the CTU ridiculed him for being unable to urinate and

handcuffed him to a bench. (Id. ¶ 37.)

Unable to collect a urine sample, Plaintiff was

transported, in police custody, to Nassau University Medical

Center (“NUMC”) for a blood test, which the CTS did not have the

ability to conduct. (Id. ¶ 41.)

C. The Nassau University Medical Center

Plaintiff arrived at NUMC at 3:05 p.m. and underwent

triage shortly thereafter. (Defs. 56.1 Stmt. ¶ 14.) Plaintiff’s

vitals showed an increased heart rate of 107, a temperature of

102.6 degrees, and that he was in severe sepsis. (Pl. 56.1

Counterstmt. ¶ 44.) By the time Plaintiff arrived at the hospital,

his medical conditions had deteriorated to the point that he was

only able to effectively communicate that he had trouble urinating.

(Id. ¶ 45.) At 3:45 p.m., a County police officer arrived at NUMC

with a blood kit, and Plaintiff submitted to a chemical test of

his blood. (Id. ¶ 46.) A urinary drug screening also revealed

the presence of opiates in Plaintiff’s system. (NUMC Patient

Report of Urine Culture, Ex. M.)

Later that evening, at 10:39 p.m., Plaintiff underwent

a computed tomography (“CT”) scan that showed “multiple foci of

air in the posterior left upper abdomen and some inflammation

around [the] kidney near [the] right kidney stent.” (Id. ¶ 52.)

Thereafter, Plaintiff was admitted to the Surgical Intensive Care

Unit and started on antibiotics for a urinary tract infection.

(Id. ¶ 54.) His medical condition deteriorated overnight with

worsening sepsis that included fever and decreased blood pressure.

(Id. ¶ 60.)

The next day, January 19, 2013, in the morning, a second

CT scan revealed “highly suspicious” findings indicating a

“localized stomach perforation.” (Id. ¶ 63.) According to

Plaintiff’s experts, the perforation was caused by the Motrin

Plaintiff had been taking and led to “leaking stomach contents

into [his] abdominal cavity and chest,” necessitating “prompt[] .

. . surgical intervention.” (See, e.g., Dr. Keck Report, Ex. 16,

at 4.) Later that afternoon, after Plaintiff and his wife

consulted with a surgeon, Plaintiff underwent surgery. (Pl. 56.1

Counterstmt. ¶ 66.) After the operation, due to sepsis, Plaintiff

remained on a ventilator until February 5, 2013. (Id. ¶¶ 67-70.)

On February 22, 2013, Plaintiff was transferred to NUMC’s

rehabilitation facility and was discharged on March 5, 2013. (Id.

¶¶ 71, 78.) However, he returned to the hospital a day later for

further treatment. (Id. ¶ 79.)

D. The Decision to Prosecute Plaintiff

Meanwhile, at the CTU, Officer Beisel consulted with

Nassau County Assistant District Attorney (“ADA”) Christopher

Casa, who was working in the Early Case Assessment Bureau (“ECAB”)

on the evening of January 18, 2013. (Pl. 56.1 Counterstmt. ¶ 49.)

Plaintiff asserts that “ADA Casa was never advised of Plaintiff’s

medical condition by Officer Beisel,” but at his deposition ADA

Casa only stated that he did not recall whether Office Beisel

informed him whether Plaintiff had been examined by an AMT or EMT

prior to his arrest. (Compare id. ¶ 51, with Casa Depo Tr. at

151:12-15, Ex. 3.) However, the following day, the ECAB

supervisor, ADA Morrone, consulted with the officer assigned to

maintain custody of Plaintiff at NUMC and determined that “it is

unclear at this time if the defendant is suffering a medical

emergency due to illness unrelated to drug use or if he is in a

medical emergency due to drug use.” (Pl. 56.1 Counterstmt. ¶ 61;

see also Morrone Depo Tr. at 99:4-7, Ex. 4.)

In any event, on the same day of the accident, Plaintiff

was charged with five counts of violating New York’s Vehicle

Traffic Law (“VTL”). Specifically, Plaintiff was charged with

four counts of violating VTL § 1192(2-a)(b) and one count of

violating VTL § 1192(4). (Defs. Stmt. ¶ 19.) At 11:55 p.m. that

evening, the County Police Department filed a press release

regarding Plaintiff’s arrest. (Press Release, Ex. 20.)

E. Plaintiff is Prosecuted

While Plaintiff was in NUMC prior to surgery, a County

Police Department Officer left a desk ticket next to Plaintiff’s

hospital bed, advising him to appear in court on February 1, 2013

to answer the charges. (Pl. 56.1 Counterstmt. ¶ 64.) It appears

from the record that, due to his medical condition, Plaintiff did

not appear on that date, but instead was arraigned on the charges

on February 19 or March 13, 2013. (Id. ¶¶ 76, 80.) However, on

February 7, 2021, prior to his arraignment, Plaintiff’s toxicology

exam results came back negative for any drugs. (Id. ¶ 72.) On

April 17, 2013, when Plaintiff apparently failed to appear, a

warrant was ordered but stayed. (Id. ¶ 81.)

On June 14, 2013, the felony complaints against

Plaintiff were reduced to misdemeanors, and after the reduction of

the charges, the assigned judge dismissed the charges upon hearing

that there were no illegal substances in Plaintiff’s system on the

day on the accident. (Id. ¶¶ 82-84.)

II. Procedure

Plaintiff initiated this action on September 9, 2014,

alleging violations of his Fourth and Fourteenth Amendment

constitutional rights, as well as several state law claims for

false arrest, malicious prosecution, failure to supervise, denial

of medical treatment, assault, battery, and defamation. (Compl.,

ECF No. 1, ¶¶ 151-83, 196-207, 216-273.) On July 30, 2015, the

Court dismissed Plaintiff’s state law claims for false arrest,

assault, battery, failure to supervise, and defamation. (Order,

ECF No. 22.) Further, on July 31, 2020, Plaintiff voluntarily

agreed to withdraw his Section 1983 claims for failure to

supervise, Monell liability, excessive force, substantive due

process violations, and “unconstitutional policies, practices, and

procedures.” (See ECF No. 104; Opp’n at 1 n.1.)

Accordingly, the causes of action subject to this motion

are three Section 1983 claims for (1) false arrest; (2) malicious

prosecution; and (3) denial of medical care.

DISCUSSION

I. Legal Standard

Summary judgment is appropriate where 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). “Material

facts are those which might affect the outcome of the suit under

the governing law, and a dispute is genuine if the evidence is

such that a reasonable jury could return a verdict for the

nonmoving party.” Wagner v. Chiari & Ilecki, LLP, 973 F.3d 154,

164 (2d Cir. 2020) (quoting Coppola v. Bear Stearns & Co., 499

F.3d 144, 148 (2d Cir. 2007)) (internal quotation marks omitted).

The movant bears the burden of establishing that there are no

genuine issues of material fact for trial. Gallo v. Prudential

Residential Servs., L.P., 22 F.3d 1219, 1223 (2d Cir. 1994). “In

moving for summary judgment against a party who will bear the

ultimate burden of proof at trial,” as Plaintiff does here, “the

movant may satisfy this burden by pointing to an absence of

evidence to support an essential element of the nonmoving party’s

claim.” Gummo v. Vill. of Depew, 75 F.3d 98, 107 (2d Cir. 1996)

(citing Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986)).

“If, as to the issue on which summary judgment is sought, there is

any evidence in the record from which a reasonable inference could

be drawn in favor of the opposing party, summary judgment is

improper.” Hetchkop v. Woodlawn at Grassmere, Inc., 116 F.3d 28,

33 (2d Cir. 1997). Moreover, “the court is not to make assessments

of the credibility of witnesses” on a motion for summary judgment,

as “[c]redibility assessments, choices between conflicting

versions of events, and weighing of the evidence are matters for

the jury.” Id.

On a motion for summary judgment the Court considers the

“pleadings, deposition testimony, answers to interrogatories and

admissions on file, together with any other firsthand information

including but not limited to affidavits.” Nnebe v. Daus, 644 F.3d

147, 156 (2d Cir. 2011). In reviewing the record, “the court is

required to resolve all ambiguities and draw all permissible

factual inferences in favor of the party against whom summary

judgment is sought.” Sheet Metal Workers’ Nat’l Pension Fund v.

Vadaris Tech. Inc., No. 13-CV-5286, 2015 WL 6449420, at *2

(E.D.N.Y. Oct. 23, 2015) (quoting McLee v. Chrysler Corp., 109

F.3d 130, 134 (2d Cir. 1997)). When drawing inferences from

evidence in the record in favor of the non-moving party, however,

a court should not accord the non-moving party the benefit of

“unreasonable inferences, or inferences at war with undisputed

facts.” Berk v. St. Vincent’s Hosp. & Med. Ctr., 380 F. Supp. 2d

334, 342 (S.D.N.Y. 2005) (quoting County of Suffolk v. Long Island

Lighting Co., 907 F.2d 1295, 1318 (2d Cir. 1990)).

II. Analysis

A. False Arrest & Malicious Prosecution

1. Applicable Law

To succeed on a Section 1983 claim for false arrest, the

plaintiff must show “(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.” Avant v. Miranda, No.

21-CV-0974, 2021 WL 1979077, at *4 (E.D.N.Y. May 18, 2021) (quoting

Wheeler v. Kolek, No. 16-CV-7441, 2020 WL 6726947, at *4 (S.D.N.Y.

Nov. 16, 2020)).

As for a Section 1983 claim for malicious prosecution,

“a plaintiff must show a violation of his rights under the Fourth

Amendment . . . and must establish the elements of a malicious

prosecution claim under state law.” Manganiello v. City of New

York, 612 F.3d 149, 160–61 (2d Cir. 2010) (internal citations

omitted). Under New York law, a claim for malicious prosecution

requires: “(1) the initiation or continuation of a criminal

proceeding against the 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.” Id. at 161 (quoting Murphy v. Lynn, 118

F.3d 938, 947 (2d Cir. 1997)); see also Savino v. City of New York,

331 F.3d 63, 72 (2d Cir. 2003). In addition, under Section 1983,

the plaintiff must further demonstrate “a post-arraignment

deprivation of liberty that rises to the level of a constitutional

violation.” Bailey v. City of New York, 79 F. Supp. 3d 424, 448

(E.D.N.Y. 2015) (citing Boley v. Durets, No. 12–CV–4090, 2013 WL

6562445, at *5 (E.D.N.Y. Dec. 10, 2013)). “[A]n arresting officer

may be held liable for malicious prosecution when a police officer

creates false information likely to influence a jury’s decision

and forwards that information to prosecutors, or when she withholds

relevant and material information.” Shabazz v. Kailer, 201 F.

Supp. 3d 386, 392 (S.D.N.Y. 2016) (quoting Frederique v. County of

Nassau, No. 11–CV–1746, 2016 WL 1057008, at *12 (E.D.N.Y. Mar. 11,

2016)).

The existence of probable cause is a complete defense to

a claim for false arrest and malicious prosecution. Ackerson v.

City of White Plains, 702 F.3d 15, 19 (2d Cir. 2012) (false

arrest); Savino, 331 F.3d at 72 (malicious prosecution). However,

the relevant probable cause determination depends on the stage of

the criminal proceeding.

At the arrest stage, the Second Circuit has described

probable cause as “knowledge or reasonably trustworthy information

of facts and circumstances that are sufficient to warrant a person

of reasonable caution in the belief that the person to be arrested

has committed . . . a crime.” Stansbury v. Wertman, 721 F.3d 84,

89 (2d Cir. 2013) (quoting Jaegly v. Couch, 439 F.3d 149, 152 (2d

Cir. 2006)); Ashley v. City of New York, 992 F.3d 128, 136 (2d

Cir. 2021). “To assess probable cause, a court considers only the

facts ‘available to the officer at the time of the arrest and

immediately before it.’” Ashley, 993 F.3d at 136 (quoting

Stansbury, 721 F.3d at 89).

At the prosecution stage, however, the probable cause

standard is “slightly higher.” Stansbury, 721 F.3d at 95; Hoyos

v. City of New York, 650 F. App’x 801, 802 (2d Cir. 2016) (summary

order). “Probable cause, in the context of malicious prosecution,

has also been described as such facts and circumstances as would

lead a reasonably prudent person to believe the plaintiff guilty.”

Stansbury, 721 F.3d at 95 (quoting Boyd v. City of New York, 336

F.3d 72, 76 (2d Cir. 2003)); Hoyos v. City of New York, 999 F.

Supp. 2d 375, 390 (E.D.N.Y. 2013) (“[T]he relevant probable cause

determination is whether there was probable cause to believe the

criminal proceeding could succeed and, hence, should be

commenced.”). As a result, timing is key, with probable cause in

the context of malicious prosecution being measured “as of the

time the judicial proceeding is commenced (e.g., the time of the

arraignment),” not the time of the arrest. Hoyos, 999 F. Supp. 2d

at 390 (quoting Davis v. City of New York, 373 F. Supp. 2d 322,

333 (S.D.N.Y. 2005)); id. (“Information obtained ‘after the

arrest, but before the commencement of proceedings, is relevant to

the determination of probable cause’ for a malicious prosecution

claim.” (quoting Jackson v. City of New York, 939 F. Supp. 2d 235,

251 (E.D.N.Y. 2013)); Stone v. Port Authority, No. 11-CV-3932,

2014 WL 3110002, at *9 (E.D.N.Y. July 8, 2014) (“[E]ven when

probable cause is present at the time of arrest, evidence could

later surface which would eliminate that probable cause.”); Jean

v. County of Nassau, No. 14-CV-1322, 2020 WL 1244786, at *9

(E.D.N.Y. Mar. 16, 2020) (citing McDermott v. City of New York,

No. 94-CV-2145, 1995 WL 347041, at *5 (E.D.N.Y. May 30, 1995) (“In

the absence of some indication that the authorities became aware

of exculpatory evidence between the time of the arrest and the

subsequent prosecution that would undermine the probable cause

which supported the arrest, no claim for malicious prosecution may

lie.”)).

2. Application

Defendants argue that they had probable cause to arrest

and prosecute Plaintiff, or, in the alternative, that Officer

Beisel is entitled to qualified immunity. (Support Memo at 8-14.)

The Court addresses their arguments in turn.

Defendants contend that Officer Beisel had probable

cause to arrest and ultimately prosecute Plaintiff under New York’s

Vehicle Traffic Laws. In support of their probable cause

determination at the arresting stage, Defendants raise the

following undisputed facts: (1) Plaintiff crashed his school bus

into a stationary vehicle; (2) Upon arriving at the scene, Officer

Beisel found Plaintiff sitting in his school bus disoriented, and

observed that Plaintiff had glassy eyes, slurred speech, and was

unsteady on his feet; (3) EMT Lee performed a glucose check on

Plaintiff, revealing a medically non-concerning level of 96, thus

eliminating diabetes as the cause of Plaintiff’s physical

condition; and (4) Plaintiff failed various field sobriety tests.

(Id. at 9-11.) According to Defendants, these “visible indicia of

impairment” were more than sufficient to establish probable cause

for Plaintiff’s arrest. (Id. at 10.) Defendants rely on the same

facts to support their probable cause determination at the

prosecution stage, adding only that while at the NUMC, a urinary

drug screening revealed the presence of opiates in Plaintiff’s

system. (Id. at 12.) Plaintiff counters that Officer Beisel

failed to consider exculpatory evidence, including from EMT Lee,

that indicated Plaintiff was undergoing a medical episode, not

intoxicated. (Opp’n at 10-24.)

The Court recognizes that, in the context of a traffic

stop, Plaintiff’s “own protestations of innocence and requests for

medical treatment, standing alone,” were likely insufficient to

negate probable cause in the presence of other indicia of

intoxication, as existed here. Aguilera v. County of Nassau, 453

F. Supp. 2d 601, 607 (E.D.N.Y. 2006) (Spatt, J.). However, as in

Aguilera, here there were “other factors present during the traffic

stop at issue.” Id. In Aguilera, the plaintiff, working as a

limo driver, was pulled over after operating his vehicle in an

erratic manner. Id. at 603. During the traffic stop, the

plaintiff fell down multiple times, “needing help to his feet”; he

also dropped his wallet but could not retrieve its contents due to

lack of coordination. Id. at 603-04. One of the officers

commented that it looked like the plaintiff was having a stroke.

Id. at 604. The plaintiff informed the officer that he had not

had anything to drink and was instead “not feeling well” and that

“‘something [was] wrong’ with him.” Id. The couple whom the

plaintiff had been driving further informed the police that they

believed the plaintiff was ill. Id. Nevertheless, the officers

arrested the plaintiff.

On these facts, Judge Spatt declined to conclude that

the officers had probable cause to defeat the plaintiff’s false

arrest claim, reasoning that “[e]ven if the officers were justified

to pull the plaintiff over based on their suspicion that he was

driving while intoxicated,” the “sequence of events occurring

after the plaintiff was stopped could have prevented that suspicion

from rising to the level of probable cause in the mind of a

reasonably cautious person.” Id. at 607. Specifically, Judge

Spatt found that “the plaintiff’s obvious physical condition; the

two witnesses that are alleged to have requested that the plaintiff

receive medical attention;” and the comments by one of the

arresting officers countenanced against a finding of probable

cause to arrest. Id. at 608.

Similarly, here, factors present at the accident scene

create an issue of material fact as to whether Officer Beisel had

probable cause to arrest Plaintiff. In particular, the parties

dispute whether Officer Beisel rebuffed efforts by the SFFD EMTs

to approach the accident scene as a medical situation, not a crime

scene. Further, the undisputed record demonstrates that the EMTs

never took Plaintiff’s vitals, and Plaintiff consented to and

passed three consecutive breathalyzers, providing additional

objective support for Plaintiff’s narrative of events. Moreover,

Plaintiff readily agreed to submit to a chemical analysis of his

urine to test for illicit substances. Drawing all permissible

factual inferences in Plaintiff’s favor as the non-moving party,

the Court finds reasonable jurors could conclude that Officer

Beisel lacked probable cause to arrest Plaintiff. While Officer

Beisel was “not required to explore and eliminate every

theoretically plausible claim of innocence before making an

arrest,” Ricciuti v. N.Y.C. Transit Auth., 123 F.3d 123, 128 (2d

Cir. 1997), he was not entitled to ignore plainly exculpatory

evidence, Panetta v. Crowley, 460 F.3d 388, 394-95 (2d Cir. 2006).4

4 The Court finds the New York State Court decisions cited by

Defendants (see Support Memo at 10-11) distinguishable because the

record in those cases did not involve factual disputes as to

Defendants further argue that EMT Lee’s statements are

inadmissible hearsay. (Reply at 1-6.) At issue are certain

statements Plaintiff made during his deposition, as reflected in

his affidavit, i.e., that EMT Lee told Officer Beisel that

Plaintiff was not intoxicated and needed prompt medical treatment

but was rebuffed by Officer Beisel, who told him to “get lost.”

It is well settled that “only admissible evidence need

be considered by the trial court in ruling on a motion for summary

judgment,” and a “district court deciding a summary judgment motion

has broad discretion in choosing whether to admit evidence.”

Presbyterian Church of Sudan v. Talisman Energy, Inc., 582 F.3d

244, 264 (2d Cir. 2009). “Because a party cannot rely on

inadmissible hearsay in support of or in opposition to a motion

for summary judgment, the Court must, as a preliminary matter,

determine the likely admissibility of the hearsay evidence offered

by a party.” Unicorn Crowdfunding, Inc. v. New St. Enter., Inc.,

507 F. Supp. 3d 547, 571 (S.D.N.Y. 2020) (quoting Wilkinson v.

Nord Anglia Educ. Ltd., No. 17-CV-7421, 2019 WL 3430662, at *2 n.3

(S.D.N.Y. July 30, 2019) (internal citations omitted)).

“‘Hearsay’ is a statement, other than one made by the declarant

while testifying at the trial or hearing, offered in evidence to

prove the truth of the matter asserted.” FED. R. EVID. 801(c).

whether the arrestee was undergoing a medical episode or simply

intoxicated.

However, “[o]ut-of-court statements are not hearsay if offered to

show the context within which parties were acting, or to show a

party’s motive or intent for behavior.” Arista Records LLC v.

Lime Group LLC, 784 F. Supp. 2d 398, 420–21 (S.D.N.Y. 2011) (citing

Weinstein’s Federal Evidence, § 801.11[5]); see also United States

v. Salameh, 152 F.3d 88, 112 (2d Cir. 1998). Moreover, “out-of-

court statements are not considered hearsay if used to prove notice

or knowledge.” Id. (citing Cameron v. Cmty. Aid for Retarded

Children, 335 F.3d 60, 65–66 (2d Cir. 2003)).

Here, the Court finds that the statements attributed to

EMT Lee and Officer Beisel are not offered to prove the truth of

the matter asserted, i.e., that Plaintiff needed prompt medical

treatment. Rather, they are being offered for non-hearsay

purposes, such as to show that Officer Beisel had knowledge or

notice that others at the accident scene were concerned that,

rather than being intoxicated, Plaintiff was experiencing a

medical episode, and to provide greater context of what transpired

at the scene of arrest. In this way, the statements serve the

same purpose as the statements made by the bystanders in Aguilera:

they call into dispute the probable cause determination by showing

others at the accident scene may have viewed the situation

differently from Officer Beisel. Accordingly, the Court declines

to strike these statements and considers them for the foregoing

limited, non-hearsay purposes.

The Court next addresses Officer Beisel’s claim to

qualified immunity. See Pearson v. Callahan, 555 U.S. 223 (2009).

Qualified immunity shields government officials from civil

liability resulting from the performance of their discretionary

functions only where their conduct “does not violate clearly

established statutory or constitutional rights of which a

reasonable person would have known.” Wallace v. Suffolk County

Police Dep’t, 396 F. Supp. 2d 251, 265 (E.D.N.Y. 2005) (Seybert,

J.) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). An

officer is entitled to qualified immunity under Section 1983 unless

“(1) [he] violated a federal statutory or constitutional right,

and (2) the unlawfulness of [his] conduct was ‘clearly established

at the time.’” D.C. v. Wesby, 138 S. Ct. 577, 589 (2018) (citing

Reichle v. Howards, 566 U.S. 658, 664 (2012)). “A court may grant

summary judgment on qualified immunity grounds ‘if [the movant]

adduces sufficient facts such that no reasonable jury, looking at

the evidence in the light most favorable to, and drawing all

inferences most favorable to, the plaintiff[], could conclude that

it was objectively unreasonable for the [movant] to believe that

he was acting in a fashion that did not clearly violate an

established federally protected right.’” Vlahadamis v. Kiernan,

837 F. Supp. 2d 131, 159 (E.D.N.Y. 2011) (quoting Hartline v.

Gallo, 546 F.3d 95, 102 (2d Cir. 2008)).

The Court begins by “defining ‘the circumstances with

which the officers were confronted,’” Wesby, 138 S. Ct. at 590-91

(quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987) (cleaned

up)), bearing in mind that it must draw all permissible inferences

in Plaintiff’s favor. Officer Beisel arrived at the accident scene

and found the bus driver, Plaintiff, in a confused state; Plaintiff

consented to and passed three breathalyzers; Office Beisel

received some push back from one of the EMTs on the scene; and

Plaintiff failed the field sobriety tests Officer Beisel

administered. On this record, much of which is disputed, the Court

finds genuine disputes of material fact remain at this stage

regarding Plaintiff’s claims, including whether Officer Beisel had

probable cause to arrest Plaintiff. As such, the genuine issues

of material fact that preclude summary judgment on Plaintiff’s

false arrest claim likewise preclude granting Officer Beisel

qualified immunity at this juncture. See Cobb v. Pozzi, 363 F.3d

89, 111-12 (2d Cir. 2004).

Last, turning to Plaintiff’s malicious prosecution

claim, the Court finds that Defendants, unable to establish as a

matter of law probable cause in the context of Plaintiff’s arrest,

cannot establish the “slightly higher” probable cause standard

that applies at the prosecution stage. Rather, on this record,

the Court concludes that genuine issues of material fact exist as

to whether, between Plaintiff’s arrest and subsequent prosecution,

exculpatory evidence surfaced that undermined or even eliminated

the probable cause that supported Plaintiff’s arrest. To begin,

the parties genuinely dispute whether ADA Casa, who worked in the

ECAB unit that charged Plaintiff the evening of his accident, was

advised that Plaintiff was possibly undergoing a medical episode

at the time of his arrest. In any event, the following morning,

after ADA Morrone reviewed the record of Plaintiff’s arrest and

spoke to one of the officers in charge of Plaintiff at the

hospital, she appeared uncertain whether to characterize

Plaintiff’s condition as resulting from a medical episode or

intoxication. And the February 7, 2021 toxicology results likely

put to rest any doubt that Plaintiff was under the influence at

the time of the accident.5 Accordingly, reasonable jurors could

conclude that these facts dissipated any probable cause the

Defendants may have had to prosecute Plaintiff. Moreover, because

it would be reasonable to conclude that probable cause to prosecute

was lacking, malice may be inferred as well. See Wong v. Yoo, 649

F. Supp. 2d 34, 67 (E.D.N.Y. 2009). Regardless, reasonable jurors

could conclude that Officer Beisel was motivated by “something

other than a desire to see the ends of justice served,” Lowth v.

5 Defendants also argue that, because the urinary drug screening

test Plaintiff underwent at NUMC revealed the presence of opiates

in Plaintiff’s system, Defendants had probable cause to prosecute

Plaintiff. Because Plaintiff claims that his medical records from

the hospital show he was provided with morphine prior to the test,

the Court is not persuadeds.

Town of Cheektowaga, 82 F.3d 563, 573 (2d Cir. 1996), from his

conduct at the accident scene, which the Court must construe in

the light most favorable to Plaintiff, and the subsequent treatment

of Plaintiff while at CTS, where he was allegedly ridiculed for

his inability to urinate.

Accordingly, Defendants’ motion for summary judgment as

to Plaintiff’s false arrest and malicious prosecution claims is

DENIED.

B. Denial of Medical Treatment

Next, Plaintiff argues that Officer Beisel violated his

constitutional rights through his deliberate indifference to his

need for medical treatment.

1. Applicable Law

The Due Process Clause of the Fourteenth Amendment

imposes a duty upon custodial officials to ensure pre-trial

detainees receive adequate medical care that is coterminous with

the duty imposed upon prison officials by the Cruel and Unusual

Punishments Clause of the Eight Amendment, which protects

convicted prisoners. Salahuddin v. Goord, 467 F.3d 263, 279 (2d

Cir. 2006) (prisoner); Weyant v. Okst, 101 F.3d 845, 856 (2d Cir.

1996) (pre-trial detainee); Liggins v. Griffo, 356 F. App’x 537,

539 (2d Cir. 2009) (observing same standard applies to prisoners

and pre-trial detainees). “Thus, the official custodian of a

pretrial detainee may be found liable for violating the detainee’s

due process rights if the official [1] denied treatment needed to

remedy a serious medical condition and [2] did so because of his

deliberate indifference to that need.” Weyant, 101 F.3d at 856.

“A medical need is sufficiently serious if it is ‘a condition of

urgency, one that may produce death, degeneration, or extreme

pain.’” Johnson v. City of New York, No. 12-CV-8265, 2014 WL

5393181, at *4 (S.D.N.Y. Oct. 21, 2014) (quoting Johnson v. Wright,

412 F.3d 398, 403 (2d Cir. 2005)). In this context, deliberate

indifference may be shown “by evidence that the official acted

with reckless disregard for the substantial risk posed by the

detainee’s serious medical condition.” Weyant, 101 F.3d at 856;