Druss v. Town of Clarkstown

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

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STACEY DRUSS,

MEMORANDUM OPINION

Plaintiff, AND ORDER

v. 20-CV-06341 (PMH)

ANTHONY MUSCATELLA, et al.,

Defendants.

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PHILIP M. HALPERN, United States District Judge:

Stacey Druss (“Plaintiff”) brings this action against Clarkstown Police Officers Anthony

Muscatella (“Muscatella”), Victor Protasiewicz (“Protasiewicz”), Shirley Rose (“Rose”), and

Christian Cortelli (“Cortelli,” and collectively, “Defendants”), asserting claims under 42 U.S.C. §

1983 and state law for false arrest, unlawful entry, conspiracy, false imprisonment, due process,

assault and battery, and trespass, arising out of her arrest and subsequent hospitalization under the

New York State Mental Hygiene Law (“MHL”). (Doc. 10, “AC”).1

Pending presently before the Court is Defendants’ motion for summary judgment seeking

dismissal of the Amended Complaint under Federal Rule of Civil Procedure 56. (Doc. 37; Doc.

38; Doc. 39, “Defs. Br.”). Plaintiff opposed Defendants’ motion (Doc. 42; Doc. 42-1, “Pl. Br.”)

and the motion was fully submitted with the filing of the motion, opposition, and Defendants’ reply

brief on December 11, 2021 (Doc. 42, “Reply”).2

1 Plaintiff broadly asserts her claims under the headers “Federal Causes of Action” (AC ¶¶ 47-51) and “State

Causes of Action” (id. ¶¶ 52-55), without specifying and identifying what claims she asserts by number,

header, or otherwise. Defendants discerned the foregoing list of her claims for relief, with which Plaintiff

appears to agree. As such, and in accordance with the Court’s own independent review, the Court accepts

that these are all of the claims comprising Plaintiff’s Amended Complaint.

2 The parties attempted to file their motion papers on November 12, 2021, but due to a technical deficiency,

the Clerk’s Office rejected that filing. The motion papers were re-filed properly on December 11, 2021.

For the reasons set forth below, Defendants’ motion is GRANTED IN PART.

BACKGROUND

On July 22, 2019, Plaintiff’s sister, Jodi Druss (“Jodi”), who resides in Florida, called the

Rockland County Behavioral Response Team (“BHRT”) requesting a wellness check for Plaintiff.

(Doc. 27-2, “56.1 Stmt.” ¶¶ 12-13). Specifically, Jodi advised BHRT that she had received multiple

reports from Plaintiff’s “peers and ex-husband” that Plaintiff was experiencing a manic bipolar

episode, not sleeping or eating, and exhibiting erratic behaviors and grandiose delusional thinking.

(Doc. 38, “Loomba Decl.,” Ex. B; id. Ex. F at 00:10-00:20).3 BHRT contacted the Clarkstown

Police Department (“CPD”) requesting that they conduct a “well-check” of Plaintiff and, if needed,

for the police to call BHRT. (Id., Ex. F at 00:20-00:24). When asked by CPD if Plaintiff was on

medication, BHRT stated they believed that Plaintiff was “off” her medication because “if she’s

acting this crazy, I doubt she is [taking her medication].” (Id., Ex. F at 02:42-02:54). BHRT

reported that Plaintiff was not known to be violent and did not have any weapons. (Id., Ex. F at

02:22-02:40).

CPD requested, by radio dispatch, that Muscatella and Rose respond to Plaintiff’s residence

to conduct a welfare check, relaying what BHRT had reported to CPD. (Id., Ex. G at 00:16-01:06).

Specifically, CPD conveyed to the officers that BHRT had received a call from Plaintiff’s sister

advising that she believed Plaintiff was having a bipolar episode, acting irrational, not making

sense, and may be off her medication. (Id.). CPD further informed the officers that Plaintiff had

no known violent history and no weapons. (Id.).

3 A CD was provided to the Court containing three recordings identified as Exhibits F, G, and H to

Defendants’ motion. Exhibit F is a recording of a telephone call from BHRT to CPD; Exhibit G is a

recording of a radio dispatch from CPD to Muscatella and Rose on the date of the subject incident; and

Exhibit H is a recording of a telephone call between Plaintiff and another member of CPD, Sergeant

Fredericks. (Loomba Decl. ¶¶ 8-10).

Defendants contend that when Muscatella and Rose arrived at Plaintiff’s residence, they

observed garbage pails and bags scattered around the driveway, recycling strewn about the lawn,

and napkins, paper bags, packets of condiments, and Chinese food on the front steps. (Id, Ex. E,

“Muscatella Tr.” at 15:22-16:4). Plaintiff’s friend, Stephen Mitchell, who observed the officers at

Plaintiff’s residence, did not see overturned garbage pails, garbage bags, or stray garbage littered

around the property. (Doc. 42, “Giordano Decl.,” Ex. J, “Mitchell Decl.” ¶ 3). Plaintiff disputes

that napkins, bags, packets of condiments, and Chinese food were on the outside steps of her home.

(Loomba Decl., Ex. D, “Pl. 50-h Tr.” at 54:9-55:16). Rather, Plaintiff explained that she and her

son had a fight earlier in the evening, and that as he stormed out of the house, he kicked, threw,

and/or knocked over a Chinese food box containing packets of duck sauce, mustard, and soy sauce

inside her home on the staircase landing. (Id. at 54:25-55:16; Loomba Decl., Ex. A, “Pl. Tr.” at

62:22-63:5, 136:10-139:23). She left the condiments on the staircase landing because she intended

to direct her son to pick them up when he returned home. (Id. at 138:7-139:23).

Muscatella approached Plaintiff’s door and attempted to speak with Plaintiff. (56.1 Stmt.

¶ 17). It was then 10:00 p.m., and Plaintiff contends that she was sitting on her couch working on

an essay when she heard the knock at her door. (Pl. 50-h Tr. at 48:6-51:10). Upon seeing police at

her door, Plaintiff asked whether they had a warrant, and when they replied “no,” she asked them

to leave her property. (Id. at 56:19-57:12; Loomba Decl., Ex. C, “Rose Tr.” at 28:22-29:5;

Muscatella Tr. at 18:9-15). Plaintiff asked the police multiple times to leave her property after

assuring them that she was fine, but they refused to leave and, instead, more officers arrived. (Pl.

50-h Tr. at 57:19-58:4). Muscatella testified that as he tried to get Plaintiff to open the door, she

aggressively ran up and down the stairs twice, ducked behind a cardboard box, and threw various

condiments and an egg roll at the door as if “launching a grenade.” (Muscatella Tr. at 48:2-11,

55:12-19). Plaintiff denied ever throwing leftover Chinese food at her door. (Pl. Tr. at 170:20-24).

At some point while Defendants were outside Plaintiff’s front door, she received a phone

call from CPD Sergeant Fredericks (“Fredericks”), who advised Plaintiff that officers were there

to make sure that she was okay. (56.1 Stmt. ¶ 20). Plaintiff stated to Fredericks that, inter alia, she

was filming a show, “the Master Teacher,” and because she and Fredericks had established trust,

she would open the door for the police officers outside. (Loomba Decl., Ex. H at 02:07-02:19). As

Plaintiff advised Fredericks that she was opening the door, an audible clang of a metal object can

be heard in the recording—which Plaintiff testified was a metal rod that the officers had shoved in

her door—and Plaintiff advised Fredericks that the officers were pushing her door open. (Id. at

02:19-02:30; Pl. 50-h Tr. at 59:14-15, 89:25-91:13; Pl. Tr. 162:10-163:2; see also Rose Tr. at

49:25-50:9 (testifying that she heard a metallic item fall to the ground once the door was opened

but did not recall what it was)).

Muscatella testified that he and Cortelli entered Plaintiff’s home, and he observed Chinese

food packets and the egg roll she had thrown at him; that she was wearing a t-shirt and no pants;

and that she was waving her hands and acting erratically, leading him to believe that Plaintiff was

having a manic episode. (56.1 Stmt. ¶ 18). Plaintiff denies that she spoke or acted erratically; that

she was in a “fine” mood; and that she was wearing was an oversized concert t-shirt that fell to her

upper thigh without pants because it was nighttime. (Pl. 50-h Tr. at 50:10-51-10, 52:22-23).

Defendants maintain that upon entering Plaintiff’s home, before Muscatella could speak

with Plaintiff, she picked up a mustard packet and smacked him across the face with it, stating,

“[T]his is for you, you’re lucky you didn’t die.” (Muscatella Tr. at 50:9-51:7). Plaintiff maintains

that when the police entered her home, she was caused to stumble backwards, stepping on a packet

of soy sauce. (Pl. Tr. at 59:14-17, 169:3-7; Pl. 50-h Tr. at 95:19-23). She then bent down and wiped

her foot, and when she stood up the officers pulled her hand behind her back to handcuff her. (Pl.

50-h Tr. at 59:17-21, 89:18-24; 94:5-23). Audible on the recording at that point in the series of

events is Plaintiff saying the word “step,” and the phrases “here, this is for you,” and “you’re lucky

you didn’t die.” (Loomba Decl., Ex. H at 02:56-03:01). Plaintiff was then handcuffed, arrested

under MHL § 9.41 and transported without pants in Muscatella’s police car to Nyack Hospital.

(56.1 Stmt. ¶ 26; Pl. 50-h Tr. 108:5-10). Plaintiff was taken to the emergency room and had no

further interaction with any members of CPD. (56.1 Stmt. ¶ 30). Plaintiff was then transferred to

the behavioral health unit at Nyack Hospital and discharged three days later. (Id. ¶ 31). Plaintiff

never observed any CPD officer give paperwork or provide instructions to, or otherwise

communicate with, any Nyack Hospital staff member. (Id. ¶ 33).

Defendants now move for summary judgment dismissing the Amended Complaint.

STANDARD OF REVIEW

Pursuant to Federal Rule of Civil Procedure 56, a court “shall grant summary judgment if

the movant shows that there is no genuine dispute as to any material fact and the movant is entitled

to judgment as a matter of law.” Fed R. Civ. P. 56(a). “A fact is ‘material’ if it ‘might affect the

outcome of the suit under the governing law,’ and is genuinely in dispute ‘if the evidence is such

that a reasonable jury could return a verdict for the nonmoving party.’” Liverpool v. Davis, No.

17-CV-3875, 2020 WL 917294, at *4 (S.D.N.Y. Feb. 26, 2020) (citing Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986)). “‘Factual disputes that are irrelevant or unnecessary’ are not

material and thus cannot preclude summary judgment.” Sood v. Rampersaud, No. 12-CV-5486,

2013 WL 1681261, at *1 (S.D.N.Y. Apr. 17, 2013) (quoting Anderson, 477 U.S. at 248). The

Court’s duty, when determining whether summary judgment is appropriate, is “not to resolve

disputed issues of fact but to assess whether there are any factual issues to be tried.” Id. (quoting

Wilson v. Nw. Mut. Ins. Co., 625 F.3d 54, 60 (2d Cir. 2010)). Indeed, the Court’s function is not

to determine the truth or weigh the evidence. The task is material issue spotting, not material issue

determining. Therefore, “where there is an absence of sufficient proof as to one essential element

of a claim, any factual disputes with respect to other elements of the claim are immaterial.” Bellotto

v. Cty. of Orange, 248 Fed. App’x 232, 234 (2d Cir. 2007) (quoting Salahuddin v. Goord, 467

F.3d 263, 281 (2d Cir. 2006)).

“It is the movant’s burden to show that no genuine factual dispute exists.” Vermont Teddy

Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004) (citing Adickes v. S.H. Kress

& Co., 398 U.S. 144, 157 (1970)). The Court must “resolve all ambiguities and draw all reasonable

inferences in the non-movant’s favor.” Id. (citing Giannullo v. City of N.Y., 322 F.3d 139, 140 (2d

Cir. 2003)). Once the movant has met its burden, the non-movant “must come forward with

specific facts showing that there is a genuine issue for trial.” Liverpool, 2020 WL 917294, at * 4

(quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)). The

non-movant cannot defeat a summary judgment motion by relying on “mere speculation or

conjecture as to the true nature of the facts.” Id. (quoting Knight v. U.S. Fire Ins. Co., 804 F.2d 9,

12 (2d Cir. 1986)). However, if “there is any evidence from which a reasonable inference could be

drawn in favor of the opposing party on the issue on which summary judgment is sought, summary

judgment is improper.” Sood, 2013 WL 1681261, at *2 (citing Sec. Ins. Co. of Hartford v. Old

Dominion Freight Line Inc., 391 F.3d 77, 83 (2d Cir. 2004)).

Should there be no genuine issue of material fact, the movant must also establish its

entitlement to judgment as a matter of law. See Glover v. Austin, 289 Fed. App’x 430, 431 (2d Cir.

2008) (“Summary judgment is appropriate if, but only if, there are no genuine issues of material

fact supporting an essential element of the plaintiffs’ claim for relief.”); Pimentel v. City of New

York, 74 Fed. App’x 146, 148 (2d Cir. 2003) (holding that because plaintiff “failed to raise an issue

of material fact with respect to an essential element of her[] claim, the District Court properly

granted summary judgment dismissing that claim”). Simply put, the movant must separately

establish that the law favors the judgment sought.

ANALYSIS

Plaintiff asserts four claims for relief under 42 U.S.C. § 1983 (i.e., false arrest, unlawful

entry, conspiracy, false imprisonment, and due process) and three claims for relief under state law

(i.e., false arrest, assault and battery, and trespass). As framed by Defendants, a number of these

claims for relief rise and fall on the existence of their defenses of probable cause or arguable

probable cause and qualified immunity and can be grouped accordingly. The Court therefore first

addresses those claims and the arguments advanced thereto by Defendants.

I. False Arrest Under Federal and State Law, Assault and Battery, and Trespass

A plaintiff is required to show, for § 1983 claims of unconstitutional false arrest in New

York, that “the defendant intentionally confined him without his consent and without

justification.” Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996). False arrest claims brought under

§ 1983 are substantially the same as those brought under the state law. Jenkins v. City of New York,

478 F.3d 76, 84 (2d Cir. 2007). Probable cause “is an absolute defense to a false arrest claim.”

Jaegly v. Couch, 439 F.3d 149, 152 (2d Cir. 2006). “Probable cause to arrest . . . exists when the

officer 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.” Wierzbic v. Howard, 836 Fed. App’x 31, 34-35 (2d Cir.

2020) (internal quotation marks omitted). This standard is an objective one and evaluates “the

reasonable conclusion to be drawn from the facts known to the officer at the time of the arrest.”

Devenpeck v. Alford, 543 U.S. 146, 152 (2004). This standard requires that a court consider “the

totality of the circumstances and . . . be aware that probable cause is a fluid concept—turning on

the assessment of probabilities in particular factual contexts—not readily, or even usefully,

reduced to a neat set of legal rules.” Panetta v. Crowley, 460 F.3d 388, 395 (2d Cir. 2006) (internal

quotation marks omitted).

It is well-settled that hearsay can be used to “establish probable cause.” Hamilton v. City

of New York, No. 15-CV-04574, 2019 WL 1452013, at *11 (E.D.N.Y. Mar. 19, 2019) (quoting

United States v. Parcel of Prop., 337 F.3d 225, 236 (2d Cir. 2003)). If there is reason to doubt a

witness’s credibility, corroborating evidence can support probable cause. See Toussaint v. Cnty. of

Westchester, No. 21-CV-03817, 2022 WL 2834108, at *5 (S.D.N.Y. July 20, 2022); Brodie v.

Fuhrman, No. 07-CV-04212, 2010 WL 1189347, at *5-6 (E.D.N.Y. Mar. 29, 2010). “The question

of whether or not probable cause existed may be determinable as a matter of law if there is no

dispute as to the pertinent events and the knowledge of the officers . . . .” Weyant, 101 F.3d at 852.

A police officer “may take into custody [and remove to a hospital] any person who appears

to be mentally ill and is conducting . . . herself in a manner which is likely to result in serious harm

to the person or others.” MHL § 9.41. “Likely to result in serious harm” is defined as:

(a) a substantial risk of physical harm to the person as manifested by

threats of or attempts at suicide or serious bodily harm or other

conduct demonstrating that the person is dangerous to himself or

herself, or (b) a substantial risk of physical harm to other persons as

manifested by homicidal or other violent behavior by which others

are placed in reasonable fear of serious physical harm.

Id. § 9.01. “In assessing whether an officer had probable cause to arrest a person under this statute,

courts apply the same objective reasonableness standard that governs Fourth Amendment claims.”

Arroyo v. City of New York, No. 14-CV-09953, 2016 WL 8677162, at *3 (S.D.N.Y. July 8, 2016),

aff’d, 683 Fed. App’x 73 (2d Cir. 2017).

In the absence of probable cause, an arresting officer is still entitled to qualified immunity

if he can establish that there was “arguable probable cause” to arrest. Escalera v. Lunn, 361 F.3d

737, 743 (2d Cir. 2004). “Arguable probable cause exists ‘if either (a) it was objectively reasonable

for the officer to believe that probable cause existed, or (b) officers of reasonable competence

could disagree on whether the probable cause test was met.’” Id. (quoting Golino, 950 F.2d at 870).

“Thus, the analytically distinct test for qualified immunity is more favorable to the officers than

the one for probable cause[, and] ‘arguable probable cause’ will suffice to confer qualified

immunity for the arrest.” Id.

The Second Circuit has held that an officer is protected by qualified immunity, and

summary judgment on a false arrest claim is appropriate, if “a rational jury could not find that the

officers’ judgment was so flawed that no reasonable officer would have made a similar choice.”

Rine v. Giardina, 199 F.3d 1323 (2d Cir. 1999) (quoting Lennon v. Miller, 66 F.3d 416, 424-25

(2d Cir. 1995) (emphasis in original)). “[T]o determine whether a mental-health seizure is justified

by arguable probable cause, a court must review the specific observations and information

available to the officers at the time of a seizure.” Myers v. Patterson, 819 F.3d 625, 633 (2d Cir.

2016). “A person may be annoyed, uncooperative, and irrational without presenting a danger to

herself or of violence to others.” Id. at 634.

Defendants argue that Plaintiff’s false imprisonment claims must fail because there was

probable cause to seize Plaintiff pursuant to MHL § 9.41, or at the very least, Defendants were

entitled to qualified immunity because they had arguable probable cause to detain her.

Notwithstanding Defendants’ position, Plaintiff’s false imprisonment claims survive the motion

for summary judgment as there are clearly disputed issues of material fact. Specifically, the

“pertinent events” leading up to Plaintiff’s arrest under MHL § 9.41 are disputed and summary

judgment, therefore, would be inappropriate. Brock v. City of New York, No. 15-CV-01832, 2018

WL 3579099, at *7-8 (S.D.N.Y. July 25, 2018); see also Kerman v. City of New York, 261 F.3d

229, 241 (2d Cir. 2001) (reversing summary judgment on qualified immunity grounds pursuant to

MHL § 9.41 because of the parties’ disputed accounts of the events leading to plaintiff’s arrest);

Quon v. City of New York, No. 14-CV-09909, 2016 WL 4411416, at *4-5 (S.D.N.Y. Aug. 18,

2016) (denying summary judgment due to the parties’ “significantly different accounts of

[p]laintiff’s arrest” and holding that “a jury must determine what transpired between the officers

and [p]laintiff before the Court can make a determination as to qualified immunity”).

Indeed, the parties appear to agree only that: (1) the officers arrived at Plaintiff’s residence

to conduct a welfare check; and (2) the information provided to Muscatella and Rose by CPD, and

to CPD by BHRT, indicated that Plaintiff had no known violent history and no weapons.

Otherwise, the accounts of the circumstances and events culminating in Plaintiff’s detention are

dramatically and diametrically opposed.

Defendants maintain that Plaintiff was conducting herself in a manner likely to result in

serious harm to herself or others, justifying her arrest under MHL § 9.41, based upon a variety of

observations. First, when Muscatella and Rose arrived at Plaintiff’s residence, they observed the

property in disarray—a mess of garbage pails, trash, and bags scattered on Plaintiff’s driveway,

and napkins, paper bags, packets of condiments, and Chinese food on the front steps of Plaintiff’s

house. Second, when officers knocked on Plaintiff’s door and she answered, they observed that

she was not fully clothed, was acting erratically and waving her hands, aggressively ran up and

down the stairs, ducked behind a cardboard box, and threw various condiments and an egg roll at

the door as if it were a hand grenade. Third, Defendants observed that Plaintiff was speaking

irrationally and out of context, stating, “I’m the master teacher, you’re the master learner.”

(Muscatella Tr. at 25:16-18). Finally, when Plaintiff opened her door, Defendants contend that she

slapped Muscatella across the face with a packet of mustard and said, “[T]his is for you, you’re

lucky you didn’t die.” (Id. at 50:9-51:7).

Plaintiff sharply disputes Defendants’ account.

Plaintiff submits on this motion the affidavit of her friend who denied seeing garbage pails

overturned or garbage bags or garbage strewn around the property on the night in question. Plaintiff

disputes that there was any Chinese food byproduct on the steps outside her home. She maintains

that she was not fully clothed when officers knocked on her door because it was then 10:00 p.m.,

she was sitting on her couch working on an essay, and was wearing an oversized concert t-shirt

(like pajamas). Plaintiff denies that she spoke or acted erratically. She denies ever throwing

leftover Chinese food at her door. Plaintiff avers that officers shoved a metal rod in her door to

push their way in, causing her to stumble backwards, stepping on a packet of soy sauce. Finally,

she insists that she did not slap Muscatella.

Given the clear dispute as to what Defendants knew and/or observed at the time of

Plaintiff’s detention, a jury should decide what transpired between the officers and Plaintiff—only

then, after those facts are found, can the existence of probable cause (or arguable probable cause)

to seize Plaintiff under MHL § 9.41 be determined. See Kerman, 261 F.3d at 241; Brock, 2018 WL

3579099, at *8. Accordingly, Defendants’ motion for summary judgment is denied with respect to

Plaintiff’s false imprisonment claims under federal and state law.

Because Defendants’ arguments as to Plaintiff’s claims of assault and battery and trespass

likewise hinge on the existence of probable cause or arguable probable cause (see Defs. Br. at 18;

Reply at 10), the disputed issues of fact described supra preclude the Court from granting summary

judgment in their favor.4 Plaintiff’s state law claims of assault and battery and trespass, therefore,

likewise survive summary judgment.

II. Unlawful Entry

Defendants argue that Plaintiff’s unlawful entry claim fails for reasons similar to her false

arrest claims: “[b]ased on the information provided to the police and their direct observations at

the scene, there was probable cause to believe that entering the home was authorized under the law

and, alternatively, the officers are entitled to qualified immunity on that claim.” (Defs. Br. at 2,

11-14; see also Reply 6-7). Specifically, Defendants contend that the emergency aid doctrine or

MHL § 9.41 provide an exception to the Fourth Amendment’s prohibition on warrantless entries,

and such circumstances were indisputably present here.

“Warrantless entry into a home is presumptively unreasonable. Nevertheless, ‘warrant

requirements must yield when exigent circumstances demand that police act speedily.’” United

States v. Lavan, 10 F. Supp. 2d 377, 382 (S.D.N.Y. 1998) (quoting United States v. Fields, 113

F.3d 313, 323 (2d Cir. 1997)). If, at the moment of entry, the facts were such that “would lead a

reasonable, experienced officer to believe there was an urgent need to render aid or take action,”

the exigent circumstances exception would apply. United States v. Simmons, 661 F.3d 151, 157

4 With respect to Defendants’ additional argument that the battery claim also fails because the record lacks

evidence of serious physical injury, “[t]he Court recognizes that a plaintiff who suffers only de minimis

injuries may not be able to survive summary judgment on an excessive force claim; however ‘the Second

[C]ircuit has indicated that a very minimal injury is sufficient to trigger potential liability’ for excessive

force.” Crews v. Cnty. of Nassau, 996 F. Supp. 2d 186, 212 (E.D.N.Y. 2014) (quoting Yang Feng Zhao v.

City of New York, 656 F. Supp. 2d 375, 390 (S.D.N.Y. 2009)), recognizing that the essential elements of §

1983 excessive force and state law assault and battery claims are substantially identical)). Plaintiff testified

that, as a result of the handcuffing, her wrists, shoulder, and back hurt, and that her wrists were scraped,

red, and swollen. (Pl. 50-h Tr. at 105:11-106:16, 121:25-123:2). She also testified that one officer “threw”

her to another officer and “pushed” her across her lawn. (Id. at 59:20-60:2). Viewing the facts in the light

most favorable to Plaintiff and resolving factual ambiguities in her favor, Plaintiff’s testimony raises

material issues of fact not addressed by Defendants’ additional argument concerning Plaintiff’s battery

claim.

(2d Cir. 2011). But for the same reasons described supra, disputed issues of fact prevent the Court

from determining as a matter of law that Defendants were authorized and/or justified in their entry.

Accordingly, summary judgment is denied as to Plaintiff’s claim of unlawful entry.

III. Conspiracy

Plaintiff’s conspiracy claim is barred by the intracorporate conspiracy doctrine, as each

Defendant worked for the same corporate entity (i.e., CPD) and was acting within the scope of

their employment in connection with the alleged conduct. See Arriaga v. Otaiza, No. 20-CV-

06992, 2021 WL 5449849, at *10 (S.D.N.Y. Nov. 19, 2021) (“State officials carrying out an

agency’s business cannot conspire with one another as a matter of law under § 1983.” (citing

Herrmann v. Moore, 576 F.2d 453, 459 (2d Cir. 1977))); Pajazetovic v. City of Utica, N.Y., No.

18-CV-01496, 2021 WL 4440473, at *11 (N.D.N.Y. Sept. 27, 2021) (“Courts in the Second Circuit

recognize the ‘intracorporate conspiracy doctrine,’ which holds that the ‘officers, agents, and

employees of a single corporate entity are legally incapable of conspiring together.’” (quoting Peck

v. Cty. of Onondaga, N.Y., No. 21-CV-00651, 2021 WL 3710546, at *15 (N.D.N.Y. Aug. 20,

2021))); Little v. City of New York, 487 F. Supp. 2d 426, 441-42 (S.D.N.Y. 2007) (“Under the

‘intracorporate conspiracy’ doctrine, the officers, agents, and employees of a single corporate

entity, each acting within the scope of her employment, are legally incapable of conspiring

together.”).

An exception to the intracorporate conspiracy doctrine known as the “personal stakes”

exception applies, however, when individuals are “pursuing personal interests wholly separate and

apart from the entity.” Rizk v. City of New York, 462 F. Supp. 3d 203, 225 (E.D.N.Y. 2020) (quoting

Ali v. Connick, 136 F. Supp. 3d 270, 282-83 (E.D.N.Y. 2015)). Plaintiff opposes this branch of

Defendants’ motion by invoking the personal stakes exception. (Pl. Opp. at 15 (quoting Dilworth

v Goldberg, 914 F. Supp. 2d 433, 466 (S.D.N.Y 2012)). She contends that Muscatella falsified

police documents to cover up Defendants’ violation of her constitutional rights, identifying the

false reporting as Muscatella’s police report which stated that she “picked up an open mustard

packet that she had thrown down the stairs, and with it in hand, struck [him] on the left side of

[his] face.” (Id.). Missing from Plaintiff’s argument is any indication, direct or circumstantial, of

a conspiracy among Defendants. In other words, even were the Court to accept that Muscatella’s

report was false, that implicates Muscatella only—there is no evidence of the existence of an

agreement among the several officers to inflict an unconstitutional injury upon Plaintiff. Plaintiff’s

conclusory statements in her opposition cannot defeat Defendants’ motion. Dinkins v. New York,

No. 19-CV-08447, 2021 WL 3173968, at *9 (S.D.N.Y. July 26, 2021); see also Sammarco v.

Hoolan, No. 12-CV-07857, 2014 WL 3639161, at *2 (S.D.N.Y. July 23, 2014) (“Reliance upon

conclusory statements or mere allegations is not sufficient to defeat summary judgment.” (quoting

Woods v. Ruffino, 8 Fed. App’x 41, 42 (2d Cir. 2001))).

Accordingly, the conspiracy claim against Defendants is barred by the intracorporate

conspiracy doctrine and Defendants’ motion for summary judgment is granted as to that claim.

IV. False Imprisonment

As an initial matter, “[a]lthough plaintiff purports to assert false arrest and false

imprisonment as two independent causes of action . . . false arrest is considered a kind of false

imprisonment, and the claims are analyzed in identical fashion.” Mitchell v. Home, 377 F. Supp.

2d 361, 371 (S.D.N.Y. 2005); see also Singer v. Fulton Cty. Sheriff, 63 F.3d 110, 118 (2d Cir.

1995) (describing false arrest claim as type of false imprisonment claim and stating that claims are

analyzed identically). Plaintiff, in her opposition, explains that this “false imprisonment” claim

proceeds under two theories: first, based upon the illegal entry into her home and seizure by

Defendants, which is identical to her false arrest claims; and second, based upon Defendants’

provision of “fictitious claims” to hospital personnel resulting in her detention in the psychiatric

unit. (Pl. Opp. at 16).

As to the first theory advanced by Plaintiff, Defendants argue the claim fails for the same

reasons they contended Plaintiff’s false arrest and unlawful entry claims failed, to wit: the

existence of probable cause or arguable probable cause and qualified immunity. (Reply at 9). For

the same reasons described supra with respect to the false arrest and unlawful entry claims,

disputed issues of fact preclude the Court from granting Defendants’ motion as to this theory of

liability on her false imprisonment claim.

As to the second theory advanced by Plaintiff, Defendants argue that because there is no

proof that any of the Defendants provided false information to the hospital, the claim fails.

Muscatella testified that when he brought Plaintiff to the hospital, he explained to hospital

personnel why she was there. (Muscatella Tr. at 40:21-41:8). Plaintiff proffered a page from her

hospital records that states: “There is a report of violent behavior (had hit PD).” (Doc. 42 at 4).

The portion of the hospital records submitted by Defendants states that Plaintiff “reportedly threw

food at the police and struck an officer.” (Doc. 40-1 at 1). Because the question of whether the

information reported to the hospital was false is a disputed issue of fact, Plaintiff’s false

imprisonment claim survives summary judgment.

V. Due Process

Defendants argue that Plaintiff’s due process claim fails because when another provision

of the Constitution provides an explicit textual source of constitutional protection, the Court must

assess Plaintiff’s claims under that explicit provision and not the more generalized notion of

substantive due process. (Defs. Br. at 17 (citing Southerland v. City of New York, 680 F.3d 127,

142-43 (2d Cir. 2012))). Plaintiff, in opposition, did not address Defendants’ argument or provide

any case law or other authority to rebut the contention. Even if Plaintiff did not concede the issue

by failing to respond to it, see In re UBS AG Secs. Litig., No. 07-CV-11225, 2012 WL 4471265,

at *11 (S.D.N.Y. Sept. 28, 2012) (recognizing that a party “concedes through silence” arguments

by its opponent that it fails to address), it is axiomatic that Plaintiff’s claim “must be analyzed

under the standard appropriate to the Fourth Amendment, not under the rubric of substantive due

process.” Tenenbaum v. Williams, 193 F.3d 581, 600 (2d Cir. 1999) (quotation marks and

alterations omitted). Accordingly, Defendants’ motion for summary judgment dismissing

Plaintiff’s due process claim is granted.

VI. Rose’s Personal Involvement

Defendants move for summary judgment dismissing the action as alleged against Rose on

the grounds that Plaintiff conceded that Rose had no direct role in detaining Plaintiff under the

MHL. Plaintiff, in her opposition, argues only that Rose had a duty to intervene to prevent the

constitutional violations perpetrated by her colleagues and that her failure to do so gives rise to her

liability. (Pl. Opp. at 18). Plaintiff, however, did not plead a failure to intervene in the Amended

Complaint, nor has she sought leave to interpose such a claim. “It is well settled that a litigant may

not raise new claims not contained in the complaint in opposition to a motion for summary

judgment.” Mediavilla v. City of New York, 259 F. Supp. 3d 82, 106 (S.D.N.Y. 2016) (citing

Avillan v. Donahoe, 483 Fed. App’x 637, 639 (2d Cir. 2012) (holding that the district court did not

err in disregarding allegations the plaintiff raised for the first time in response to the defendant’s

motion for summary judgment); Shah v. Helen Hayes Hosp., 252 Fed. App’x 364, 366 (2d Cir.

2007) (holding that “[a] party may not use his or her opposition to a dispositive motion as a means

to amend the complaint”)). Accordingly, because her sole opposition to Defendants’ argument on

this branch of the motion is an attempt to raise a new claim not contained in her pleading, the

motion to dismiss the action as to Rose is granted.

CONCLUSION

For the foregoing reasons, Defendants’ motion for summary judgment is GRANTED IN

PART. Plaintiffs conspiracy and due process claims are dismissed. Plaintiffs claims against Rose

are dismissed. Plaintiff's federal and state claims alleged against Muscatella, Protasiewicz, and

Cortelli for false arrest, unlawful entry, false imprisonment, assault and battery, and trespass will

proceed to trial.

The parties are directed to meet and confer and comply with the Court’s Individual

Practices (rev. May 2, 2022) Rules 6(A) and 6(B) by filing the documents required therein, which

include a joint pretrial order, proposed joint voir dire questions, joint requests to charge, joint

verdict form, and motions in /imine, on or before October 28, 2022.

A pretrial conference has been scheduled for December 1, 2022 at 12:00 p.m. to be held in

Courtroom 520 of the courthouse located at 300 Quarropas Street, White Plains, New York 10601.

The Clerk of Court is respectfully requested to terminate the pending motion (Doc. 37) and

to terminate Shirley Rose as a Defendant herein.

SO ORDERED:

Dated: White Plains, New York

August 26, 2022 Gun

PhilipM. Halpern

United States District Judge

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