Villafane, Jr. v. City of New York

UNITED STATES DISTRICT COURT E DL OE CC #T :R ONIC ALLY FILED

SOUTHERN DISTRICT OF NEW YORK DATE FILED: 3/27/2 023

JUAN VILLAFANE, JR.,

1:20-cv-07357-MKV

Plaintiff,

MEMORANDUM OPINION

AND ORDER DENYING

-against-

PLAINTIFF’S MOTION

FOR SUMMARY JUDGMENT

CITY OF NEW YORK et al.,

AND GRANTING DEFENDANT’S

CROSS-MOTION FOR

Defendants.

SUMMARY JUDGMENT

MARY KAY VYSKOCIL, United States District Judge:

Plaintiff Juan Villafane, Jr. brings this suit against the City of New York (“the City”), the

New York Police Department (“NYPD”), and NYPD Officers John Katehis, Trevor R. Allen, Ariel

Eusebio, Frederic Ortiz, and James Dennedy (“the Defendant Officers” or “the Officers”), alleging

false arrest, excessive use of force, and state law battery. Both sides move for summary judgment.

For the following reasons, the Court DENIES Plaintiff’s motion for summary judgment and

GRANTS Defendants’ motion for summary judgment.

BACKGROUND

On January 13, 2020, the Honorable Cori Weston of the New York County Criminal Court

issued a warrant to search 55 West 100 Street, Apartment 8H (“Apartment 8H”). Defendants’

Statement of Undisputed Facts ¶ 1 [ECF No. 69] (“DSF”); Plaintiff’s Statement of Disputed

Material Facts A.I [ECF No. 71-2] (“SDMF”). Judge Weston determined that there was probable

cause to believe that “certain property” including “crystal methamphetamine and diazepam, vials,

caps, glassine envelopes, small ziplock-style bags, and other evidence of the possession and

distribution of crystal methamphetamine and diazepam . . . may be found in [Apartment 8H] . . .

and [on] the person of [Villafane].” Declaration of Inna Shapovalova (“Shapovalova Dec.”)

Exhibit A [ECF No. 68-1] (“Ex. A”); DSF ¶ 2.1

The Defendant Officers executed the warrant several days later and recovered over 900

pills of diazepam,2 18 pills of oxycodone, and marijuana from the living room of Apartment 8H.

DSF ¶¶ 5–7, 9; SDMF A.I, B.2; Shapovalova Dec. Exhibit C [ECF No. 68-3] (“Ex. C”); Exhibit

D [ECF No. 68-4] (“Ex. D”); Plaintiff’s Memorandum of Law in Support 6 [ECF No. 66-10].

At the time of the search, Villafane was the only occupant of Apartment 8H. DSF ¶ 14;

SDMF A.I. The Defendant Officers found Villafane in a bed in the living room, handcuffed him,

and removed him from the bed. DSF ¶¶ 14, 15; SDMF A.I, B.4. While he was being removed

from the bed, Villafane hit his left foot against a dresser. DSF ¶ 17; SDMF A.I. At some point

during the search, Villafane contends that an Officer placed a gun to his head. SDMF B.5;

Defendants’ Reply to Plaintiff’s Response to Defendants’ Statement of Undisputed Facts ¶ 16

[ECF No. 76-1].

Villafane was arrested for Criminal Possession of a Controlled Substance in the Third

Degree, Criminal Possession of a Controlled Substance in the Fifth Degree, Criminal Possession

of a Controlled Substance in the Seventh Degree, and unlawful possession of marijuana. DSF

1 Villafane purports to dispute this fact, asserting that “there did not exist probable cause” to issue the warrant.

See SDMF B.1. Regardless of whether Villafane believes probable cause actually existed, this evidence does not

controvert the fact that Judge Weston concluded there was probable cause, as evidence by the search warrant, the

issuance of which Villafane does not dispute. This fact is therefore deemed admitted. See Local Civil Rule 56.1(c)–

(d) (“Each numbered paragraph in the statement of material facts . . . will be deemed to be admitted for purposes of

the motion unless specifically controverted” and “followed by citation to evidence which would be admissible.”);

Ezagui v. City of New York, 726 F. Supp. 2d 275, 285 n.8 (S.D.N.Y. 2010) (“[A]ny of the Plaintiff’s Rule 56.1

Statements that Defendants do not specifically deny—with citations to supporting evidence—are deemed admitted for

purposes of Plaintiff’s summary judgment motion.” (emphasis added)).

2 Plaintiff appears to dispute the precise quantity of diazepam pills recovered, but does not dispute the quantity

was over 900 pills. See SDMF B.2 (noting that the NYPD originally counted 976 diazepam pills but later counted

987); see also Shapovalova Dec. Exhibit H [ECF No. 68-8]. Regardless, Plaintiff does not dispute that over 900

diazepam pills were counted. See SDMF AI, B.2.

¶ 21; Ex. C.3 Following the arrest, Villafane was transported to Bellevue Hospital but refused

examination. DSF ¶¶ 24–25; SDMF A.I. The next day, Villafane visited his podiatrist for ongoing

medical treatment in connection with an ulcer on Villafane’s foot. DSF ¶ 26; SDMF A.I. At that

appointment, Villafane complained of “mild soreness under [his] left foot.” Shapovalova Dec.

Exhibit M [ECF No. 68-13] (“Ex. M”); DSF ¶ 26; SDMF A.I. All criminal charges were later

dismissed after a motion to dismiss was granted. DSF ¶ 23; SDMF A.I; Shapovalova Dec. Exhibit

K [ECF No. 68-11] (“Ex. K”). Villafane filed his Complaint against the City, the NYPD, and the

Defendant Officers, alleging causes of action under Section 1983 for false arrest, excessive force,

and malicious prosecution, and a state law claim for battery. See Complaint [ECF No. 3].

Villafane later filed an Amended Complaint, re-asserting the false arrest, excessive force, and

battery claims, but omitting the malicious prosecution claim. See Amended Complaint [ECF No.

45] (“Am. Compl.”). All Defendants answered the Amended Complaint. See City Answer [ECF

No. 48]; Allen, Eusebio, Ortiz Answer [ECF No 49]; Katehis Answer [ECF No. 50]; Dennedy

Answer [ECF No. 52].

Now pending before the Court are the parties’ cross-motions for summary judgment. See

Plaintiff’s Motion for Summary Judgment [ECF No. 66] (“Pl. Mot.”); Memorandum of Law in

Support [ECF No. 66-10] (“Pl. Mem.”); Defendant’s Motion for Summary Judgment [ECF No.

67] (“Def. Mot.”); Memorandum of Law in Support [ECF No. 70] (“Def. Mem.”). Both sides filed

opposition briefs, see Memorandum of Law in Opposition [ECF No. 71-10] (“Pl. Opp.”);

Memorandum of Law in Opposition [ECF No. 72] (“Def. Opp.”), and replies, see Reply

Memorandum of Law [ECF No. 73] (“Pl. Reply”); Reply Memorandum of Law [ECF No. 76]

3 Villafane neither admits nor denies these facts. As such, the facts are deemed admitted. See Local Civil

Rule 56.1(c)–(d); Ezagui, 726 F. Supp. 2d at 285 n.8. These facts are also contained in Villafane’s criminal complaint.

See Shapovalova Dec. Exhibit J [ECF No. 68-10].

(“Def. Reply”).

LEGAL STANDARDS

To prevail on a motion for summary judgment, the movant must show “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 dispute is “genuine” if “the evidence is such that a reasonable jury could return a

verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A

fact is “material” if it “might affect the outcome of the suit under the governing law.” Id. The

Court’s role at this stage is “not to resolve disputed issues of fact but to assess whether there are

any factual issues to be tried.” Brod v. Omya, Inc., 653 F.3d 156, 164 (2d Cir. 2011).

The moving party bears the initial burden of demonstrating that it is entitled to judgment

as a matter of law due to “the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett,

477 U.S. 317, 323 (1986). Where the burden of persuasion at trial would be on the non-moving

party, the movant may satisfy its burden “by submitting evidence that negates an essential element

of the non-moving party’s claim” or “by demonstrating that the non-moving party’s evidence is

insufficient to establish an essential element of [its] claim.” Nick’s Garage, Inc. v. Progressive

Cas. Ins. Co., 875 F.3d 107, 114 (2d Cir. 2017) (quoting Farid v. Smith, 850 F.2d 917, 924 (2d

Cir. 1988)). If the moving party satisfies its burden, “the opposing party must come forward with

specific evidence demonstrating the existence of a genuine dispute of material fact.” Brown v. Eli

Lilly & Co., 654 F.3d 347, 358 (2d Cir. 2011). But “conclusory statements, conjecture, or

speculation by the party resisting the motion will not defeat summary judgment.” Flores v. United

States, 885 F.3d 119, 122 (2d Cir. 2018) (quoting Kulak v. City of New York, 88 F.3d 63, 71 (2d

Cir. 1996)).

When confronted with cross-motions for summary judgment, “the court must evaluate each

party’s motion on its own merits, taking care in each instance to draw all reasonable inferences

against the party whose motion is under consideration.” Heublein, Inc. v. United States, 996 F.2d

1455, 1461 (2d Cir. 1993) (quoting Schwabenbauer v. Bd. of Educ. of Olean, 667 F.2d 305, 314

(2d Cir. 1981)); see also Crawford v. Franklin Credit Mgmt. Corp., 758 F.3d 473, 486–87 (2d Cir.

2014) (“When both sides have moved for summary judgment, the court must apply the [summary

judgment] principles to each motion separately. On each motion it must view the evidence in the

light most favorable to the party against whom summary judgment is sought.”).

DISCUSSION

I. There Was Probable Cause to Arrest Villafane

Villafane seeks summary judgment on his claim that he was falsely arrested in violation of

Section 1983. See Pl. Mot.; see also Am. Compl. ¶¶ 15–21. Defendants seek summary judgment

dismissing the false arrest claim. See Def. Mot.

In analyzing a Section 1983 false arrest claim, courts look to the law of the state in which

the arrest occurred. See Jaegly v. Couch, 439 F.3d 149, 151–52 (2d Cir. 2006). To state a false

arrest claim in New York, Villafane must allege that “(1) the [Defendants] intended to confine

him, (2) [Villafane] was conscious of the confinement, (3) [Villafane] did not consent to the

confinement and (4) the confinement was not otherwise privileged.” Ackerson v. City of White

Plains, 702 F.3d 15, 19 (2d Cir. 2012) (quoting Broughton v. State of New York, 37 N.Y.2d 451,

456, 373 N.Y.S.2d 87, 93, 335 N.E.2d 310, 314 (N.Y. 1975)).

Probable cause is a complete defense to a false arrest claim. See Kee v. City of New York,

12 F.4th 150, 158 (2d Cir. 2021); Betts v. Shearman, 751 F.3d 78, 82 (2d Cir. 2014). Probable

cause exists when an officer has “knowledge of, or reasonably trustworthy information as to, facts

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

offense has been . . . committed by the person to be arrested.” Williams v. Town of Greenburgh,

535 F.3d 71, 79 (2d Cir. 2008); see also Ackerson, 702 F.3d at 19.

There was plainly ample probable cause to arrest Villafane. While executing the search

warrant at Apartment 8H, the Officers discovered controlled substances in the living room—the

same room where Villafane was found in bed. Moreover, Villafane was the sole occupant of the

apartment at the time of the search. This evidence provided the Officers with “facts and

circumstances that [were] sufficient to warrant a . . . belief that an offense” had been committed

by Villafane. Williams, 535 F.3d at 79.

Villafane does not dispute these facts or provide legal authority indicating that the evidence

was insufficient to find probable cause. Instead, Villafane contends that Judge Weston improperly

issued the search warrant and, therefore, that the evidence recovered in Apartment 8H constitutes

“fruit of the poisonous tree” that may not support a finding of probable cause for his arrest. See

Pl. Mem. 10–16 (citing Wong Sun v. United States, 371 U.S. 471, 488 (1963)). Specifically,

Villafane contends that the warrant was issued “based on the inherently unreliable testimony of a

confidential informant.” Pl. Mem. 10 (emphasis omitted). This argument is improper. “The fruit

of the poisonous tree doctrine is an evidentiary rule that operates in the context of criminal

procedure” and may not “be invoked to support a § 1983 claim.” Townes v. City of New York, 176

F.3d 138, 145 (2d Cir. 1999) (emphasis added). As a result, the Wong Sun doctrine cannot salvage

the false arrest claim. See Townes, 176 F.3d at 148 (“Victims of unreasonable searches or seizures

. . . cannot be compensated for injuries that result from the discovery of incriminating evidence

and consequent criminal prosecution.”); Arroyo v. City of New York, 683 F. App’x 73, 75 (2d Cir.

2017) (“The fact that the gun was later suppressed does not preclude a determination that there

was arguable probable cause for the arrest.” (emphasis added)).

On the undisputed facts, there can be no doubt that the Officers had probable cause to arrest

Villafane. Accordingly, the Court grants Defendants’ motion for summary judgment on the false

arrest claim and denies Plaintiff’s cross-motion.4

II. Any Excessive Force Claim Is Insufficient Or Waived

Villafane next argues that the Officers used excessive force in arresting him and seeks

summary judgment against Defendants on his claim. Pl. Mot.; see also Am. Compl. ¶¶ 22–25.

Defendants seek summary judgment dismissing the excessive force claim. See Def. Mot.

The Fourth Amendment prohibits the use of excessive force by a police officer during

arrest. See Tracy v. Freshwater, 623 F.3d 90, 96 (2d Cir. 2010) (citing Graham v. Connor, 490

U.S. 386, 395 (1989)). The test for excessive force “is one of ‘objective reasonableness.’” Bryant

v. City of New York, 404 F.3d 128, 136 (2d Cir. 2005) (quoting Graham, 490 U.S. at 399). The

“reasonableness question is whether the officers’ actions were ‘objectively reasonable’ in light of

the facts and circumstances confronting them, without regard to their underlying intent or

motivation.” Mickle v. Morin, 297 F.3d 114, 120 (2d Cir. 2002) (quoting Graham, 490 U.S. at

397). “The ‘reasonableness’ of a particular use of force must be judged from the perspective of a

reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham, 490 U.S.

at 396.

1. Threats of Force Do Not Constitute Excessive Force

Villafane alleges that “a Glock gun was placed to his head” after the Officers entered

Apartment 8H. Pl. Mem. 20. However, “[a] threat of force does not constitute excessive force.”

4 Because the false arrest claim fails, the Court need not reach the questions of: (i) whether the Officers are

entitled to qualified immunity or (ii) whether Villafane has plausibly stated a Monell claim against the City.

Mittelman v. Cnty. of Rockland, No. 07-CV-6382 CM LMS, 2013 WL 1248623, at *13 (S.D.N.Y.

Mar. 26, 2013). Even accepting the allegation that a gun was placed to Villafane’s head as true,

that assertion is insufficient to state a claim for excessive force as a matter of law. See

Dunkelberger v. Dunkelberger, No. 14-CV-3877 KMK, 2015 WL 5730605, at *15 (S.D.N.Y.

Sept. 30, 2015) (“[T]he vast majority of cases within the Second Circuit hold that merely drawing

weapons when effectuating an arrest does not constitute excessive force as a matter of law.”).

Villafane replies that “any force used to arrest [Villafane] . . . was excessive” under Wong

Sun because the search “warrant was [issued] without probable cause.” Pl. Opp. 3 (emphasis

added). This argument fails because, as discussed above, Wong Sun “operates in the context of

criminal procedure” and may not “be invoked to support a § 1983 claim.” Townes, 176 F.3d at

145 (emphasis added).

2. Any Argument Regarding Injury to Villafane’s Foot Is Waived Or De Minimis

Villafane also testified at his deposition that the Officers “grabbed [him] through the arm

and shoved [him] off the bed, and [that he] hit [his] foot with the dresser that was there.”

Shapovalova Dec. Exhibit B 47:24–48:1 [ECF No. 68-2] (“Ex. B”). But Villafane does not

mention the force used by the Officers in removing him from the bed—or any purported foot

injury—in his summary judgment briefing. See Pl. Mem. 19–20; Pl. Opp. 8–9; Pl. Reply 7.

Indeed, Villafane did not even address this argument after Defendants anticipated it in their

Opening Brief. See Def. Mem. 7–12. Accordingly, any claim for excessive force predicated on

the banging of Villafane’s foot has been waived. See Tamar v. Mind C.T.I., Ltd., 723 F. Supp. 2d

546, 555 (S.D.N.Y. 2010) (An “argument [that] is not made in any of Plaintiff’s papers” is deemed

waived.).5

5 The same is true of any other contention of excessive force. For instance, Villafane suggested at his

deposition that the Officers used excessive force by having him stand for “20 or 25 minutes” at the time of his arrest.

Even assuming, arguendo, that Villafane had raised this issue in any of the three briefs he

submitted in connection with the pending summary judgment motions, “[a] successful excessive

force claim requires sufficient evidence to establish that the alleged use of force was serious or

harmful enough to be actionable.” Ferebee v. City of New York, No. 15-CV-1868 (PAC), 2017

WL 2930587, at *8 (S.D.N.Y. July 6, 2017). “[A] de minimis use of force will rarely suffice to

state a Constitutional claim,” Romano v. Howarth, 998 F.2d 101, 105 (2d Cir. 1993) (citing Hudson

v. McMillian, 503 U.S. 1, 9–10 (1992)), and “[d]e minimis injury can serve as conclusive evidence

that de minimis force was used,” Washpon v. Parr, 561 F. Supp. 2d 394, 407 (S.D.N.Y. 2008).

Here, no reasonable trier of fact could determine that the Officers used excessive force in

arresting Villafane. The undisputed facts show that Villafane “refused [an] exam” when

transported to Bellevue Hospital immediately after his arrest. See Exhibit L [ECF No. 68-12];

DSF ¶¶ 24–25; SDMF A.I. The following day, Villafane visited his podiatrist in connection with

ongoing treatment for a left foot ulcer and he only “complain[ed] of mild soreness under the left

foot.” Ex. M; DSF ¶ 26; SDMF A.I. This complaint is likely insufficient, as “[c]ourts in this

Circuit have consistently held that an injury is de minimis when it is temporary and/or minor in

severity.” Smith v. City of New York, No. 04 CIV.3286 (TPG), 2010 WL 3397683, at *10

(S.D.N.Y. Aug. 27, 2010).

Further, no evidence in the record indicates that the Officers’ purported use of force caused

any claimed soreness in Villafane’s foot. See Walzer v. Town of Orangetown, No. 13-CV-7971

CS, 2015 WL 1539956, at *10 (S.D.N.Y. Apr. 7, 2015) (granting motion to dismiss where

“Plaintiff ha[d] not alleged that he suffered any injuries as a result of [the officer’s] actions”

(emphasis added)). Indeed, Villafane testified that his foot was hurting before the arrest because

Ex. B 51:19–25. But no such allegation was raised by Villafane in summary judgment briefing and, in any event, this

does not constitute force, much less excessive force.

one of his left toes had recently been amputated. See Ex. B 47:21–22; 65:16–66:7. At most, then,

Villafane suggests that the Officer’s acts “caused some aggravation to [his] pre-existing injuries,”

but this “does not give rise to a constitutional violation.” Prescott v. Riker Island Med. Staf., No.

09 CIV. 255 SAS, 2011 WL 1435218, at *6 (S.D.N.Y. Apr. 12, 2011).

The Officers did not use excessive force by allegedly placing a gun to Villafane’s head.

Any other allegation of excessive force was waived by Villafane, and even if it were not, any claim

predicated on such assertion would fail as a matter of law. Thus, the Court grants summary

judgment in favor of Defendants on the excessive force claim and denies Plaintiff’s cross-motion.6

III. Villafane May Not Raise New Claims in Summary Judgment Briefing

Villafane’s summary judgment briefing discusses several new causes of action not pled in

his Amended Complaint. For instance, Villafane contends that he was maliciously prosecuted, see

Pl. Mem. 16–19; Pl. Opp. 7–8; Pl. Reply 5, although this claim was not pled in the Amended

Complaint.7 See Am. Compl.; Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir.

1994) (“It is well established that an amended complaint ordinarily supersedes the original[] and

renders it of no legal effect.” (citation omitted)). Villafane also argues, for the first time, that the

search of his apartment was unlawful.8 See Pl. Mem. 10–13, 15–16; Pl. Opp. 4–7; Pl. Reply 2–7.

6 Here too, because the excessive force claim fails, the Court need not reach the issues of qualified immunity

or Monell liability.

7 On this claim, Villafane appears to argue that he was maliciously prosecuted because the NYPD failed to

maintain chain of custody regarding the drugs seized from Apartment 8H. But Villafane’s cited authority discusses

when evidence is admissible against a criminal defendant, see, e.g., People v. Connelly, 35 N.Y.2d 171, 174, 316

N.E.2d 706, 708 (N.Y. 1974)—not what suffices to state a malicious prosecution claim under Section 1983.

8 Villafane offers several haphazard theories for why the apartment search was unlawful, including that the

Officers exceeded the scope of the warrant by searching a safe, see Pl. Mem. 15–16, and that probable cause for the

search warrant was lacking because the Officers “had actual knowledge that the confidential informant was a multi-

pronged thief of both money and . . . narcotics,” see Pl. Opp. 7. Relatedly, Villafane asserts that the confidential

informant “was so substantially interwoven into the day to day [sic] fabric of usual and customary police activity” that

he or she “functioned as a de facto police officer” who “violated [Villafane’s] Fourth Amendment reasonable

expectation of privacy” by “repeatedly” buying drugs “inside the curtilage of” Apartment 8H. Pl. Mem. 14.

These claims are not properly before the Court. Villafane did not plead a malicious

prosecution or an unlawful search claim in the operative complaint, and he may not amend his

Complaint through summary judgment briefing long after the close of discovery. See Enzo

Biochem, Inc. v. Amersham PLC, 981 F. Supp. 2d 217, 223 (S.D.N.Y. 2013) (citing Avillan v.

Donahoe, 483 F. App’x 637, 639 (2d Cir. 2012)); Mail America Commc’ns, Inc. v. World Healing

Ctr. Church, Inc., No. 18 CIV. 8481 (AKH), 2021 WL 1298925, at *3 (S.D.N.Y. Apr. 7, 2021).

The Court therefore declines to consider Villafane’s new theories of liability. Moreover, unlawful

search allegations cannot support a Section 1983 claim because “[v]ictims of unreasonable

searches or seizures . . . cannot be compensated [under Section 1983] for injuries that result from

the discovery of incriminating evidence and consequent criminal prosecution.” Townes, 176 F.3d

at 148. The Court therefore denies Plaintiff’s motion for summary judgment with respect to any

claims not raised in the Amended Complaint and grants Defendants’ cross-motion.

IV. The Court Declines to Consider the State Law Battery Claim

Villafane also purports to assert a state law battery claim. For the reasons outlined above,

the federal law claims are dismissed. The Court declines to exercise supplemental jurisdiction

over the battery claim and does not consider its merits. See 28 U.S.C. § 1367(c)(3). The battery

claim is therefore dismissed without prejudice to renewal in state court.

CONCLUSION

For the above reasons, Plaintiff’s motion for summary judgment is DENIED. Defendant’s

motion for summary judgment is GRANTED. The Clerk of Court is respectfully requested to

terminate docket entries 66 and 67 and to close this case.

SO ORDERED. / “4 Koy Vs devel

Date: March 27, 2023 MARY KAY VYSKOCIL

New York, NY United States District Judge

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