Fernandez v. O'Neill

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

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:

JOSE JAVIER FERNANDEZ, :

:

Plaintiff, : 19cv1862 (DLC)

:

-v- : OPINION AND ORDER

:

THE CITY OF NEW YORK, NEW YORK CITY :

POLICE DEPARTMENT, JAMES P. O’NEILL, :

Commissioner of the New York City :

Police Department, JOSE CEPEDA, AMADEO :

OKTROVA, and CHRISTINA MONCION, :

:

Defendants. :

:

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APPEARANCES

For the plaintiff:

Elliot H. Fuld

Law Office of Elliot H. Fuld

930 Grand Concourse, Suite 1G

Bronx, NY 10451

For the defendants:

Geoffrey M. Stannard

New York City Law Department

100 Church Street, 4th Floor

New York, NY 10007

DENISE COTE, District Judge:

Plaintiff Jose Javier Fernandez asserts civil rights claims

against three New York City police officers -- Amadeo Oktrova,

Christina Moncion, and Jose Cepeda. In particular, Fernandez

alleges that he was unlawfully stopped and falsely arrested in

violation of 42 U.S.C. § 1983 and New York law. He also asserts

a state law malicious prosecution claim. Fernandez additionally

names the City of New York as a defendant under Monell v.

Department of Social Services of City of New York, 436 U.S. 658

(1978), and under a theory of negligent hiring and supervision.

The defendants have moved for summary judgment. That motion is

granted except as to the false arrest and malicious prosecution

claims against Oktrova.

Background

The following facts are undisputed or taken in the light

most favorable to Fernandez, unless otherwise noted.1

The Traffic Stop and Arrest

On the evening of July 14, 2018, Fernandez was driving his

minivan in the Bronx, New York. Ariel Ovalles was seated in the

front passenger seat, and Elvio Toribio was seated in the second

row of seats.2 Fernandez turned onto 196th Street, drove

eastbound half a block, and then encountered a car stopped in

his lane. The street has two lanes, with one lane of traffic

1 Plaintiff’s counsel submitted his own Local Rule 56.1 statement

but failed to specifically oppose the facts advanced by the

defendants. Although the defendants’ version of the facts could

simply be deemed admitted due to plaintiff’s counsel’s failure,

the Court has chosen to consider any evidence submitted by the

parties and rely on those materials to determine where factual

disputes remain.

2 Ovalles and Toribio were initially co-plaintiffs with

Fernandez. But Ovalles and Toribio repeatedly failed to appear

for their depositions, and their claims were dismissed by an

Order of March 18, 2020.

flowing in each direction and curbside parking on both sides of

the street. Fernandez remained behind that stopped car for

approximately two minutes.

Meanwhile, Oktrova and Moncion were traveling slowly in the

opposite direction along 196th Street in an unmarked police

vehicle. Oktrova was driving and observed Fernandez’s minivan

while it was stopped. Oktrova waved at Fernandez as he passed.

About 20 seconds after Oktrova waved at him, Fernandez pulled

his van out and around the stopped car and continued along 196th

Street. Oktrova and Moncion did a U-turn and initiated a

traffic stop of Fernandez’s minivan. According to Oktrova, the

reason he stopped the minivan was because he had seen it double

parked.

Oktrova approached the driver’s side window of the minivan

and spoke with Fernandez. According to Oktrova, he observed

what appeared to be a gravity knife3 in a cup holder located in

3 At the time of these events, New York law prohibited the

carrying of gravity knives, defined as knives “that can be

opened to a locked position with a one-handed flick of the

wrist.” Copeland v. Vance, 893 F.3d 101, 107 (2d Cir. 2018).

The prohibition on gravity knives was subsequently found

unconstitutionally vague and then repealed by the state

legislature. Cracco v. Vance, 376 F. Supp. 3d 304, 318

(S.D.N.Y. 2019) (holding statute unconstitutionally vague);

Governor Cuomo Signs Legislation Ending The Legal Ban On Gravity

Knives (May 30, 2019), https://www.governor.ny.gov/news/

governor-cuomo-signs-legislation-ending-legal-ban-gravity-

knives.

the minivan’s center console.4 According to Fernandez, there was

no knife in the console.5 Ovalles and Toribio likewise testified

that they did not possess a knife or know of any knife in the

van. Oktrova ordered all three occupants to get out of the

minivan. According to Fernandez, Ovalles, and Toribio, Oktrova

then said something to the effect of, “Three Dominican guys in a

van -- you guys look suspicious.” Oktrova denies making any

such statement. Oktrova says that after the minivan’s occupants

exited the vehicle, he retrieved the knife from the van and

determined that it was a gravity knife.

Shortly thereafter, Oktrova called for backup, and other

officers arrived on the scene, including Cepeda. Oktrova

4 The parties seemingly use the term “center console” to refer to

a closed compartment. The Court understands the term to refer

more generally to a storage area between a vehicle’s front

seats, which can contain both a compartment and cup holder. See

United States v. Hussain, 835 F.3d 307, 315 (2d Cir. 2016)

(referring to the “console area”); United States v. Cuevas, No.

15cr846 (PKC), 2016 WL 2766657, at *1 (S.D.N.Y. May 12, 2016)

(referring to a “cup holder located in the center console”);

AutoZone, Console (last visited July 22, 2020) https://

www.autozone.com/interior-organization-and-cargo-management/

console (listing products containing both compartments and cup

holders).

5 In the portions of Fernandez’s deposition that have been

presented concerning this motion, he was not directly asked

whether there was a knife in the cup holder. Plaintiff did not

file an affidavit in opposition to the motion, which could have

clarified this point. But taking the available evidence in the

light most favorable to Fernandez, during his deposition he

denied the presence of a knife in any part of the van that he

could observe.

informed Cepeda that he had observed Fernandez’s minivan double

parked and had discovered a gravity knife in the van. Fernandez

was arrested, and Cepeda was designated as the arresting officer

on the arrest report.

Post-Arrest Events

At the precinct, Cepeda conducted an inventory search of

the minivan and reached the conclusion that the van’s safety and

emissions inspection sticker was a forgery. Cepeda signed a

criminal court complaint charging Fernandez with criminal

possession of a weapon in the fourth degree, based on the report

Oktrova provided concerning the gravity knife. Fernandez was

arraigned and released on his own recognizance at approximately

5:00 p.m. on July 15, 2018. On October 18, the charges against

Fernandez were dismissed on speedy trial grounds.

Procedural History

This action was filed on February 27, 2019. An amended

complaint was filed on November 26. On March 20, 2020,

following the conclusion of discovery, the defendants moved for

summary judgment. Defendants supported their motion with a

variety of exhibits, including portions of deposition testimony

from Fernandez and Oktrova. On May 26, plaintiff opposed the

motion. Plaintiff’s opposition was likewise supported by a

variety of exhibits, including deposition testimony from

Fernandez and Oktrova. Plaintiff did not file an affidavit from

Fernandez addressing the points raised by defendants’ motion.

Nor did plaintiff respond to defendants’ Local Rule 56.1

statement as required. Defendants’ reply papers were filed on

July 3. On July 8, plaintiff filed a letter attaching certain

exhibits erroneously omitted from the May 26 opposition filings.

Discussion

A motion for summary judgment may not be granted unless all

of the submissions taken together “show[] that there is no

genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). “A genuine issue of material fact exists if the evidence

is such that a reasonable jury could return a verdict for the

nonmoving party.” Nick’s Garage, Inc. v. Progressive Cas. Ins.

Co., 875 F.3d 107, 113 (2d Cir. 2017) (citation omitted).

“Where, as here, the party opposing summary judgment bears the

burden of proof at trial, summary judgment should be granted if

the moving party can point to an absence of evidence to support

an essential element of the nonmoving party’s claim.” Gemmink

v. Jay Peak Inc., 807 F.3d 46, 48 (2d Cir. 2015) (citation

omitted). In making this determination, the court “draws all

inferences in favor of the nonmoving party.” Id. Only disputes

over material facts will properly preclude the entry of summary

judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986). “An issue of fact is genuine and material if the

evidence is such that a reasonable jury could return a verdict

for the nonmoving party.” Cross Commerce Media, Inc. v.

Collective, Inc., 841 F.3d 155, 162 (2d Cir. 2016).

Once the moving party has cited evidence showing that the

non-movant’s claims or affirmative defenses cannot be sustained,

the party opposing summary judgment must “come forward with

evidence that would be sufficient to support a jury verdict in

its favor.” CIT Bank N.A. v. Schiffman, 948 F.3d 529, 532 (2d

Cir. 2020) (citation omitted). “The nonmoving party may not

rely simply on conclusory statements or on contentions that the

affidavits supporting the motion are not credible.” Id. Nor

may the nonmoving party rely on “mere speculation or conjecture

as to the true nature of the facts.” Fed. Trade Comm’n v.

Moses, 913 F.3d 297, 305 (2d Cir. 2019) (citation omitted).

In order to prevail on a § 1983 claim, a plaintiff must

show “the violation of a right secured by the Constitution and

laws of the United States” and that “the alleged deprivation was

committed by a person acting under color of state law.” Jones

v. Cty. of Suffolk, 936 F.3d 108, 114 (2d Cir. 2019) (citation

omitted). Individual defendants can only be liable under § 1983

if they were “personally involved” in the constitutional

violation. Brandon v. Kinter, 938 F.3d 21, 36 (2d Cir. 2019).

I. Unlawful Stop

To satisfy the Fourth Amendment, “an officer making a

traffic stop [must] have probable cause or reasonable suspicion

that the person stopped has committed a traffic violation or is

otherwise engaged in or about to be engaged in criminal

activity.” United States v. Wallace, 937 F.3d 130, 137 (2d Cir.

2019) (citation omitted). “Reasonable suspicion” exists when

the officer is “in possession of specific and articulable facts

which, taken together with rational inferences from those facts,

reasonably warrant the intrusion.” United States v. Ojudun, 915

F.3d 875, 882 (2d Cir. 2019) (citation omitted). “Although a

mere ‘hunch’ does not create reasonable suspicion, the level of

suspicion the standard requires is considerably less than proof

of wrongdoing by a preponderance of the evidence, and obviously

less than is necessary for probable cause.” Kansas v. Glover,

140 S. Ct. 1183, 1187 (2020) (citation omitted).

Here, Oktrova and Moncion had reasonable suspicion that

Fernandez was violating New York Vehicle and Traffic Law §

1202(a)(1)(a), which prohibits double parking. More precisely,

the statute provides,

Except when necessary to avoid conflict with other

traffic, or when in compliance with law or the

directions of a police officer or official traffic-

control device, no person shall . . . [s]top, stand or

park a vehicle . . . [o]n the roadway side of any

vehicle stopped, standing or parked at the edge or

curb of a street . . . .

N.Y. Veh. & Traf. Law § 1202(a)(1)(a). Fernandez contends that,

crediting his version of events, stopping the minivan in the

eastbound lane was “necessary to avoid conflict with other

traffic” and thus not a violation of the law. Fernandez

acknowledges that he was stopped for approximately two minutes

and did not move the minivan until after Oktrova waved at him.

He contends, however, that he moved the minivan at his first

opportunity since oncoming traffic had prevented him from moving

at any earlier point in those two minutes.

As the officers drove by, they would not have known how

long Fernandez had been stopped behind the other vehicle or

whether he had had an opportunity to continue along 196th

Street. The officers’ observations, however, provided them with

a reasonable suspicion Fernandez had double parked -- which is

sufficient to justify their investigatory traffic stop.

Accordingly, summary judgment is granted to the defendants on

plaintiff’s claim that the traffic stop was unlawful.

II. False Arrest

“A section 1983 claim for false arrest is substantially the

same as a claim for false arrest under New York law.” Jenkins

v. City of New York, 478 F.3d 76, 84 (2d Cir. 2007) (citation

omitted). A false arrest claim under New York law requires a

plaintiff to prove “(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.” Liranzo v. United

States, 690 F.3d 78, 95 (2d Cir. 2012) (citation omitted).

“To avoid liability for a claim of false arrest, an

arresting officer may demonstrate that either (1) he had

probable cause for the arrest, or (2) he is protected from

liability because he has qualified immunity.” Simpson v. City

of New York, 793 F.3d 259, 265 (2d Cir. 2015) (citation

omitted). An officer “has probable cause to arrest when he or

she has 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 or is committing a crime.” Garcia v. Does, 779

F.3d 84, 92 (2d Cir. 2015) (citation omitted). “Probable cause

is determined on the basis of facts known to the arresting

officer at the time of the arrest.” Shamir v. City of New York,

804 F.3d 553, 557 (2d Cir. 2015) (citation omitted); see also

District of Columbia v. Wesby, 138 S. Ct. 577, 586 (2018) (“To

determine whether an officer had probable cause for an arrest,

we examine the events leading up to the arrest, and then decide

whether these historical facts, viewed from the standpoint of an

objectively reasonable police officer, amount to probable

cause.” (citation omitted)).

“[U]nder the collective or imputed knowledge doctrine, an

arrest is permissible where the actual arresting officer lacks

the specific information to form the basis for probable cause

but sufficient information to justify the arrest was known by

other law enforcement officials initiating the investigation.”

Brown v. City of New York, 798 F.3d 94, 99 (2d Cir. 2015)

(citation omitted). “When making a probable cause

determination, police officers are entitled to rely on the

allegations of fellow police officers.” Panetta v. Crowley, 460

F.3d 388, 395 (2d Cir. 2006) (citation omitted). “The

determination of probable cause does not turn on whether the

fellow agent’s observations were accurate, but on whether the

arresting agent was reasonable in relying on those

observations.” Id.

Defendants argue that there was probable cause to arrest

Fernandez for (1) double parking, (2) possessing a gravity

knife, and (3) possessing a forged vehicle inspection sticker.

None of these assertions allows a grant of summary judgment as

to Oktrova.

Although there was reasonable suspicion to conduct an

investigatory stop concerning whether Fernandez had been double

parked, the defendants have provided no evidence that they in

fact investigated that suspected offense during the stop. More

investigation would have been necessary to develop probable

cause. Cf. Mitchell v. City of New York, 841 F.3d 72, 78 (2d

Cir. 2016) (“The failure to make a further inquiry when a

reasonable person would have done so may be evidence of lack of

probable cause.” (citation omitted)). Fernandez did not make

such further inquiry because, as he explains, he discovered and

seized the gravity knife.

Concerning the gravity knife, there is a genuine factual

dispute about whether such a knife was found in plain view in

the minivan. The defendants argue that there is no triable

issue of fact concerning the knife because Fernandez could not

testify that he had examined the closed compartment in the

center console or whether Ovalles and Toribio possessed a knife.

But Oktrova testified that the knife was in plain view in a cup

holder; accordingly, Fernandez’s testimony to the effect that he

saw no such knife is sufficient to raise a factual dispute about

whether there was probable cause to arrest for possession of a

gravity knife. The allegedly forged inspection sticker cannot

provide probable cause for the arrest, because Cepeda examined

the sticker during a post-arrest inventory search.

Plaintiff has not provided evidence that Moncion was

personally involved in his arrest. Nor has he provided any

evidence that it was unreasonable for Cepeda to rely on

Oktrova’s report that he had discovered a gravity knife.

Accordingly, plaintiff’s false arrest claim may proceed only

against Oktrova.

III. Malicious Prosecution

Fernandez has brought a malicious prosecution claim under

New York state law, which requires him to prove, “(1) the

initiation or continuation of a criminal proceeding against

plaintiff; (2) termination of the proceeding in plaintiff's

favor; (3) lack of probable cause for commencing the proceeding;

and (4) actual malice as a motivation for defendant’s actions.”

Stampf v. Long Island R. Co., 761 F.3d 192, 198 (2d Cir. 2014).

First, Moncion and Oktrova contend that they did not

initiate a criminal proceeding against Fernandez. It is true

that only Cepeda signed the criminal court complaint. The

filing of an “accusatory instrument,” including a criminal

complaint, initiates a prosecution under New York law. Cameron

v. City of New York, 598 F.3d 50, 63 (2d Cir. 2010). But Cepeda

prepared the complaint based on information learned from

Oktrova. And “supplying false information . . . in substantial

furtherance of a criminal action against the plaintiff . . .

may, depending on the circumstances, constitute the

commencement” of a prosecution. Torres v. Jones, 47 N.E.3d 747,

761 (N.Y. 2016). A law enforcement officer need not have signed

the complaint to “initiate” a prosecution, where the officer

provides information in furtherance of the prosecution.

Cameron, 598 F.3d at 57, 63.6 Accordingly, both Cepeda and

Oktrova could be found to have initiated the prosecution here.

Under New York law, “any termination of a criminal

prosecution, such that the criminal charges may not be brought

again, qualifies as a favorable termination, so long as the

circumstances surrounding the termination are not inconsistent

with the innocence of the accused.” Lanning v. City of Glens

Falls, 908 F.3d 19, 27 (2d Cir. 2018) (citation omitted). A

dismissal on speedy trial grounds therefore generally

constitutes favorable termination under New York law. Smith-

Hunter v. Harvey, 734 N.E.2d 750, 753 (N.Y. 2000).

For purposes of a New York malicious prosecution claim,

probable cause “is the knowledge of facts, actual or apparent,

6 Even a civilian can be found to have initiated a criminal

proceeding where “[the] defendant played an active role in the

prosecution, such as giving advice and encouragement or

importuning the authorities to act.” Stampf, 761 F.3d at 199.

strong enough to justify a reasonable man in the belief that he

has lawful grounds for prosecuting the defendant in the manner

complained of.” Cardoza v. City of New York, 29 N.Y.S.3d 330,

340 (N.Y. App. Div. 2016). And “malice does not have to be

actual spite or hatred, but requires only that the defendant

must have commenced the criminal proceeding due to a wrong or

improper motive, something other than a desire to see the ends

of justice served.” Dufort v. City of New York, 874 F.3d 338,

353 (2d Cir. 2017) (citation omitted).

While lack of probable cause to institute a criminal

proceeding and proof of actual malice are independent

and indispensable elements of a malicious prosecution

action, the absence of probable cause does bear on the

malice issue, and probable cause to initiate a

criminal proceeding may be so totally lacking as to

reasonably permit an inference that the proceeding was

maliciously instituted.

Torres, 47 N.E.3d at 762 (citation omitted).

As discussed above, Cepeda was entitled to rely on

Oktrova’s account, so plaintiff has failed to raise a genuine

issue of fact concerning whether Cepeda lacked probable cause or

acted with malice. As to Oktrova, however, the conflicting

testimony concerning the gravity knife is sufficient to raise a

genuine dispute concerning these final two elements. Oktrova’s

alleged suggestion that the three men in the van were suspicious

due to their national origin only bolsters that conclusion.

Accordingly, Moncion and Cepeda are entitled to summary judgment

on the malicious prosecution claim, but Oktrova is not.

IV. Qualified Immunity

Defendants contend that they are entitled to qualified

immunity on all of plaintiff’s claims. Having already resolved

a number of claims in favor of the individual defendants, only

the remaining § 1983 claim against Oktrova is considered here.

“[O]fficers are entitled to qualified immunity under § 1983

unless (1) they violated a federal statutory or constitutional

right, and (2) the unlawfulness of their conduct was clearly

established at the time.” Wesby, 138 S. Ct. at 589 (citation

omitted). “To be clearly established, a legal principle must

have a sufficiently clear foundation in then-existing

precedent.” Id. “The rule’s contours must be so well defined

that it is clear to a reasonable officer that his conduct was

unlawful in the situation he confronted.” Id. at 590 (citation

omitted). Applying these principles, the same factual disputes

that preclude summary judgment preclude a finding of qualified

immunity. All of the legal principles involved in this

determination are clearly established and would have been well

known to a reasonable officer.

V. Monell Liability

“[A] municipality can be held liable under Section 1983 if

the deprivation of the plaintiff’s rights under federal law is

caused by a governmental custom, policy, or usage of the

municipality.” Jones v. Town of E. Haven, 691 F.3d 72, 80 (2d

Cir. 2012) (citation omitted). “[I]solated acts . . . by non-

policymaking municipal employees are generally not sufficient to

demonstrate a municipal custom, policy, or usage that would

justify municipal liability.” Id. at 81 (citation omitted). “A

municipal policymaking official’s ‘deliberate indifference’ to

the unconstitutional actions, or risk of unconstitutional

actions, of municipal employees can in certain circumstances

satisfy the test for a municipal custom, policy, or usage that

is actionable under Section 1983.” Id. (citation omitted).

Here, plaintiff has provided evidence only of isolated

instances in which the particular officers involved in his

arrest are alleged to have engaged in misconduct. That is

insufficient to raise a triable issue of fact concerning Monell

liability.

VI. Remaining Issues

Plaintiff’s amended complaint also seems to assert state

law claims for assault and battery and for negligent hiring,

retention, training, or supervision. As the defendants point

out, plaintiff has failed to provide evidence to support

essential elements of these claims. Indeed, plaintiff

apparently abandons these claims by failing to address them in

the brief opposing defendants’ motion. Defendants are therefore

entitled to summary judgment on these claims.

Plaintiff also names the NYPD and its Commissioner as

defendants. The NYPD is a non-suable entity. Jenkins, 478 F.3d

at 93 n.19. And plaintiff has provided no evidence that the

Commissioner was personally involved in any constitutional

deprivation. These two defendants are therefore entitled to

summary judgment on all claims against them.

Conclusion

The only claims that remain for trial are the false arrest

and malicious prosecution claims against Oktrova. Otherwise,

defendants’ March 31, 2020 motion for summary judgment is

granted.

Dated: New York, New York

July 24, 2020

United States District Judge

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