Sabino v. Port Authority Police Department

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

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SAUL SABINO,

Plaintiff, 21-cv-5731 (JGK)

- against - MEMORANDUM OPINION

AND ORDER

PORT AUTHORITY POLICE DEPARTMENT,

ET AL.,

Defendants.

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JOHN G. KOELTL, District Judge:

The pro se plaintiff, Saul Sabino (“Sabino”), brought this

action against the Port Authority Police Department (the

“PAPD”), and Port Authority Police Officers Joffre G. Cortez

(“P.O. Cortez”) and John-Patrick Natiku (“P.O. Natiku”)

(collectively, “the defendants”), alleging that the defendants

violated the plaintiff’s rights when Port Authority Officers

used excessive force in arresting the plaintiff after the

plaintiff shoplifted from a store and threatened a store

employee with a hammer. For the reasons explained below, the

defendants’ motion for summary judgment dismissing this action

is granted.

I.

The standard for granting summary judgment is well

established. “The 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); see also Celotex Corp. v. Catrett, 477

U.S. 317, 322–23 (1986); Gallo v. Prudential Residential Servs.

L.P., 22 F.3d 1219, 1223 (2d Cir. 1994).1 “[T]he trial court’s

task at the summary judgment motion stage of the litigation is

carefully limited to discerning whether there are any genuine

issues of material fact to be tried, not to deciding them. Its

duty, in short, is confined at this point to issue-finding; it

does not extend to issue-resolution.” Gallo, 22 F.3d at 1224.

However, “disputed legal questions present nothing for trial and

are appropriately resolved on a motion for summary judgment.”

Flair Broad. Corp. v. Powers, 733 F. Supp. 179, 184 (S.D.N.Y.

1990).

The moving party bears the initial burden of “informing the

district court of the basis for its motion” and identifying the

matter that “it believes demonstrate[s] the absence of a genuine

issue of material fact.” Celotex, 477 U.S. at 323. If the movant

meets that burden, “the nonmoving party must come forward with

specific facts showing that there is a genuine issue for trial.”

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

587 (1986). In determining whether summary judgment is proper, a

court must resolve all ambiguities and draw all reasonable

inferences against the moving party. See id.

1 Unless otherwise noted, this Memorandum Opinion and Order omits

all internal alterations, citations, footnotes, and quotation

marks in quoted text.

The plaintiff initially failed to respond to the

defendants’ motion for summary judgment and the Court granted

the defendants’ request for the Court to treat the motion as

unopposed. See ECF No. 209. The Court subsequently received

notice that the plaintiff had been incarcerated and had not

received mailings from the Court. See ECF Nos. 210, 212. The

plaintiff requested the opportunity to oppose the motion, and

the Court granted that request, providing that “[i]f the

plaintiff does not respond by May 5, 2025, the motion will be

treated as unopposed.” See ECF Nos. 212, 213. The Court directed

the Clerk to mail that Order to the plaintiff at the updated

address he provided as well as at the plaintiff’s parents’

address. See ECF No. 213. The plaintiff failed to respond to the

motion for summary judgment by May 5, 2025, and the Court

therefore treats the motion as unopposed.

However, “[e]ven when a motion for summary judgment is

unopposed, the district court is not relieved of its duty to

decide whether the movant is entitled to judgment as a matter of

law.” Vt. Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241,

244 (2d Cir. 2004). The district court may not grant an

unopposed motion for summary judgment “without first examining

the moving party’s submission to determine if it has met its

burden of demonstrating that no material issue of fact remains

for trial.” Amaker v. Foley, 274 F.3d 677, 681 (2d Cir. 2001).

“[I]n determining whether the moving party has met this burden

of showing the absence of a genuine issue for trial, the

district court may not rely solely on the statement of

undisputed facts contained in the moving party’s Rule 56.1

statement. It must be satisfied that the citation to evidence in

the record supports the assertion.” Vt. Teddy Bear, 373 F.3d at

244.

II.

The following facts are undisputed unless otherwise noted.2

On August 10, 2020, the plaintiff shoplifted from a

Marshalls department store. See 56.1 Statement ¶ 19, ECF No.

201; Compl. at 5, ECF No. 1.3 The plaintiff alleged that he had

2 Local Civil Rule 56.1 requires the moving party to submit a

“short, and concise statement, in numbered paragraphs, of the

material facts as to which the moving party contends there is no

genuine issue to be tried,” to which the nonmoving party must

then reply by submitting “a correspondingly numbered paragraph

admitting or denying, and otherwise responding to, each numbered

paragraph in the statement of the moving party, and if

necessary, additional paragraphs containing a separate, short

and concise statement of additional material facts as to which

it is contended that there exists a genuine issue to be tried.”

Local Civ. R. 56.1(a), (b). Because the plaintiff has not

responded to the defendants’ motion and has not responded to the

defendants’ Rule 56.1 Statement, the assertions made in the

defendants’ Rule 56.1 statement, where supported by evidence in

the record, are deemed uncontested and admitted for purposes of

this motion for summary judgment. See T.Y. v. N.Y.C. Dep’t of

Educ., 584 F.3d 412, 418 (2d Cir. 2009); Parker v. Fantasia, 425

F. Supp. 3d 171, 176 n.2 (S.D.N.Y. 2019).

3 The plaintiff later filed first, second, and third amended

complaints, adding defendants and claims. See ECF Nos. 16, 119,

not taken his medication for schizophrenia and bipolar disorder

and that he was in the midst of a “psychotic episode” at the

time of the incident. See 56.1 Statement ¶¶ 19–20; Compl. at 5;

Kromm Decl., Ex. L (“Sabino Dep.”) at 29:18-24, ECF No. 199. The

plaintiff further acknowledges that he was under the influence

of narcotics at the time of the incident. 56.1 Statement ¶ 19;

Sabino Dep. at 28:7-14; Compl. at 5 (alleging that Sabino was

“under the influence of a ton of street [d]rugs/[n]arcotics”).

As the plaintiff was leaving the store, he was approached

by loss prevention employee Vincent Johnson (“Johnson”). See

56.1 Statement ¶ 20; Kromm Decl., Ex. M (“Johnson Statement”),

ECF No. 199. Suffering from a “psychotic episode,” the plaintiff

believed Johnson to be a “demon[] on fire,” pulled out a hammer,

and swung it at Johnson to “try to scare the [d]emons on [f]ire

away.” 56.1 Statement ¶ 20; Compl. at 5. Johnson asserted that

the plaintiff threatened him with a hammer and that Johnson “ran

out of the store with [the plaintiff] chasing.” 56.1 Statement ¶

21; Kromm Decl., Ex. I (“Motion to Amend”) at 11, ECF No. 199.

Outside the store, Johnson encountered P.O. Natiku and P.O.

Cortez and informed them that the plaintiff had a hammer and had

stolen merchandise from Marshalls. See 56.1 Statement ¶ 22; see

also Kromm Decl., Ex. B (“Cortez Decl.”) ¶¶ 6-7, ECF No. 199;

126. However, the most complete statement of facts by the

plaintiff is found in the original complaint.

Kromm Decl., Ex. C (“Natiku Decl.”) ¶¶ 6-7, ECF No. 199. The

officers pursued the plaintiff in their patrol car, identified

themselves as officers over the car’s loudspeakers, and ordered

the plaintiff to stop. See Cortez Decl. ¶ 8; Natiku Decl. ¶ 8.

Eventually, the officers were able to approach the plaintiff.

See Cortez Decl. ¶ 11; Natiku Decl. ¶ 11. To prevent the

plaintiff’s escape, the officers engaged in “compliance holds

with the [p]laintiff while he continuously refused to comply

with verbal orders and actively resisted arrest by flailing

arms, pulling away, and twisting his body away from” them. See

Cortez Decl. ¶ 13; Natiku Decl. ¶ 13.

An independent eyewitness observed that, “[the plaintiff]

ran out into the middle of the street and as [p]olice reached

out he screamed ‘I can’t breath’ before [p]olice actually

touched him. The [p]olice took him down and [he] was resisting

arrest by not allowing the [p]olice to handcuff him.” Kromm

Decl., Ex. N (“Gomez Statement”), ECF No. 199.

The plaintiff acknowledges that the defendants did not

punch or kick him during the arrest. See 56.1 Statement ¶ 24;

Sabino Dep. at 80:11-17, 81:6-15. Moreover, an independent

witness observed that once the plaintiff was handcuffed, “the

[p]olice rolled the [plaintiff] onto his side and helped him

stand up.” Gomez Statement. After being taken into custody, the

plaintiff was transported to Bellevue Hospital Center for a

psychiatric evaluation. See 56.1 Statement ¶ 27; Ex Parte Kromm

Decl., Ex. O (“Bellevue Hospital Records”), ECF No. 204. The

plaintiff’s x-ray results were normal. See 56.1 Statement ¶ 27;

Bellevue Hospital Records at 47. The plaintiff’s physical

examination noted a “superficial round abrasion about 4 cm in

diameter” on the plaintiff’s right shoulder and a “round area of

abrasion about 4 cm diameter” on the plaintiff’s upper right

arm. 56.1 Statement ¶ 27; Bellevue Hospital Records at 44.

Following the arrest, P.O. Cortez was transported to New York

Presbyterian Hospital and received medical treatment. Cortez

Decl. ¶ 19. As a result of injuries sustained during the arrest

of the plaintiff, P.O. Cortez underwent surgery on his shoulder

and elbow in August 2021 and March 2022, respectively. Id. ¶ 20.

In connection with the August 10, 2020 incident, the

plaintiff pleaded guilty to criminal possession of a weapon in

the third degree. 56.1 Statement ¶ 11; Kromm Decl., Ex. D.

(“Moses Order”) ¶ 8, ECF No. 199. On December 10, 2020, the

plaintiff brought this action against the defendants pursuant to

42 U.S.C. § 1983 in the District Court for the Eastern District

of New York. See ECF No. 4. On July 2, 2021, the action was

transferred to this Court. ECF No. 5. On September 1, 2021, the

Court dismissed several of the plaintiff’s claims against the

PAPD, leaving only the plaintiff’s excessive force claim. See

Sabino v. Port Auth. Police Dep’t, No. 21-cv-5731, 2021 WL

3914092 (S.D.N.Y. Sept. 1, 2021). The Court later denied the

plaintiff’s motion for leave to amend the complaint to add

claims for malicious prosecution and violation of the Equal

Protection Clause, but granted the plaintiff’s motion for leave

to amend to add state assault and battery claims. See Sabino v.

Port Auth. Police Dep’t, No. 21-cv-5731, 2024 WL 3728974

(S.D.N.Y. Aug. 7, 2024). The defendants filed an answer in

response to the plaintiff’s Third Amended Complaint, and now

move for summary judgment, dismissing the plaintiff’s claims.

See ECF Nos. 188, 198.

III.

The defendants move for summary judgment, contending that:

(1) the plaintiff’s section 1983 claims for use of excessive

force and the plaintiff’s state assault and battery claims

should be dismissed because the officers used reasonable force

in arresting the plaintiffs; (2) the individual officers are

entitled to qualified immunity; (3) the plaintiff has failed to

establish that the PAPD is liable under Monell v. Department of

Social Services, 436 U.S. 658 (1978), for the actions of the

individual officers; (4) the plaintiff failed to serve a notice

of claim on the PAPD as required by state law; and (5) the PAPD

is not subject to punitive damages. The Court will address each

of these arguments in turn.

A.

The defendants first move for summary judgment dismissing

the plaintiff’s section 1983 excessive force claims and state

law assault and battery claims.

Section 1983 “is not itself a source of substantive rights,

but a method for vindicating federal rights elsewhere conferred

by those parts of the United States Constitution and federal

statutes that it describes.” Baker v. McCollan, 443 U.S. 137,

146 n.3 (1979). To prevail on a section 1983 claim, the

plaintiff must show that he was deprived of a right secured by

the Constitution or the laws of the United States and that the

deprivation was caused by a person acting under the color of

state law. See Gomez v. Toledo, 446 U.S. 635, 640 (1980);

Feingold v. New York, 366 F.3d 138, 159 (2d Cir. 2004).

“The Fourth Amendment prohibits the use of excessive force

in making an arrest, and whether the force used is excessive is

to be analyzed under that Amendment’s ‘reasonableness’

standard.” Brown v. City of N.Y., 798 F.3d 94, 100 (2d Cir.

2015) (quoting Graham v. Connor, 490 U.S. 386, 395 (1989)). A

police officer’s use of force is “excessive” in violation of the

Fourth Amendment if it is objectively unreasonable in light of

the facts and circumstances known to the officer. Lennon v.

Miller, 66 F.3d 416, 425–26 (2d Cir. 1995); see also Maxwell v.

City of N.Y., 380 F.3d 106, 108 (2d Cir. 2004). “The calculus of

reasonableness must embody allowance for the fact that police

officers are often forced to make split-second judgments—in

circumstances that are tense, uncertain, and rapidly evolving—

about the amount of force that is necessary in a particular

situation.” Graham, 490 U.S. at 396–97.

Under New York state law, “[w]here there is a lawful

arrest, intentional contact with the arrested person does not

constitute assault and battery, provided such force is

reasonable.” Fischetti v. City of N.Y., 158 N.Y.S.3d 163, 166

(App. Div. 2021). Moreover, “[c]laims that law enforcement

personnel used excessive force in the course of an arrest are

analyzed under the Fourth Amendment and its standard of

objective reasonableness.” Id. “[E]xcept for § 1983’s

requirement that the tort be committed under color of state law,

the essential elements of excessive force and state law assault

and battery claims are substantially identical.” Humphrey v.

Landers, 344 F. App’x 686, 688 (2d Cir. 2009) (quoting Posr v.

Doherty, 944 F.2d 91, 94–95 (2d Cir. 1991)).

“Given the fact-specific nature of the inquiry, granting

summary judgment against a plaintiff on an excessive force claim

is not appropriate unless no reasonable factfinder could

conclude that the officers’ conduct was objectively

unreasonable.” Amnesty Am. v. Town of W. Hartford, 361 F.3d 113,

123 (2d Cir. 2004). However, “the mere existence of a scintilla

of evidence in support of the plaintiff’s position will be

insufficient; there must be evidence on which the jury could

reasonably find for the plaintiff.” Jeffreys v. City of N.Y.,

426 F.3d 549, 554 (2d Cir. 2005).

In this case, undisputed facts support the conclusion that

the officers used reasonable force to arrest the plaintiff, and

that no reasonable factfinder could find for the plaintiff. To

determine whether the amount of force applied to a plaintiff was

unreasonable, courts consider the “the facts and circumstances

of each particular case,” including, “the severity of the crime

at issue, whether the suspect poses an immediate threat to the

safety of the officers or others, and whether [the suspect] is

actively resisting arrest or attempting to evade arrest by

flight.” Graham, 490 U.S. at 396; see Cugini v. City of N.Y.,

941 F.3d 604, 608 (2d Cir. 2019) (balancing “an individual’s

Fourth Amendment interests against countervailing governmental

interests, including the severity of the crime and whether the

suspect poses a safety or flight risk or resists arrest”).

Moreover, “[d]e minimis injury can serve as conclusive evidence

that de minimis force was used.” Washpon v. Parr, 561 F. Supp.

2d 394, 406–07 (S.D.N.Y. 2008); see also Kayo v. Mertz, 531 F.

Supp. 3d 774, 798 (S.D.N.Y. 2021); Drummond v. Castro, 522 F.

Supp. 2d 667, 678–79 (S.D.N.Y. 2007).

Both the severity of the crime at issue and the threat to

the safety of others strongly support the conclusion that the

officers used reasonable force in arresting the plaintiff.

During the incident, it is uncontested that the plaintiff was

experiencing a psychotic episode and was under the influence of

narcotics. See 56.1 Statement ¶¶ 19–20. Although the plaintiff

was initially approached for shoplifting, he subsequently

brandished a hammer at a store employee whom he believed to be a

“demon on fire.” See 56.1 Statement ¶ 20. The plaintiff

ultimately pleaded guilty to criminal possession of a weapon in

the third degree. Moses Order ¶ 8. Accordingly, both the

severity of the crime for which the defendant was arrested and

the threat that the defendant posed to Johnson and the officers

support the conclusion that the officers used reasonable force

in arresting the defendant.

Moreover, the plaintiff “actively resist[ed] arrest [and]

attempt[ed] to evade arrest by flight.” Graham, 490 U.S. at 396.

After threatening Johnson with a hammer, the plaintiff fled

several blocks before being arrested. See 56.1 Statement ¶ 21-

22; Cortez Decl. ¶ 10; Natiku Decl. ¶ 10. An independent

eyewitness confirmed that the plaintiff resisted arrest, see

Gomez Statement, and P.O. Cortez required surgeries on his

shoulder and elbow for injuries sustained while attempting to

restrain the plaintiff during the arrest, see Cortez Decl. ¶¶

18-20. Accordingly, this factor supports the conclusion that the

officers used reasonable force in arresting the defendant.

Finally, the plaintiff’s injuries were de minimis. The

plaintiff alleges that he suffered two large lacerations to his

right arm, loss of feeling in his right hand and extreme lower

back pain,” as a result of his arrest. Compl. at 5. However, the

plaintiff’s hospital records do not support the plaintiff’s

allegations. Medical records from the date of the plaintiff’s

arrest found only a “superficial round abrasion about 4 cm in

diameter” on the plaintiff’s right shoulder and a “round area of

abrasion about 4 cm diameter” on the plaintiff’s upper arm. See

56.1 Statement ¶ 27; Bellevue Hospital Records at 44. Moreover,

a physician retained by the defendants to examine the plaintiff

concluded that the plaintiff’s carpal tunnel syndrome was not

caused by the August 10, 2020 incident with the Port Authority

police officers. Kromm Decl., Ex. P (“Lenzo Decl.”) ¶ 7, ECF No.

204. The plaintiff’s “bald assertion[s]” to the contrary do “not

present a sufficient disagreement to require submission to a

jury.” See Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991).

In sum, no reasonable jury could find that the plaintiff

was subjected to excessive force in connection with his arrest

in violation of the Fourteenth Amendment or that the individual

officers are liable for assault and battery against the

plaintiff in violation of state law.

B.

In the alternative, the defendants argue that qualified

immunity shields the individual officers from liability for the

plaintiff’s excessive force claim. “The doctrine of qualified

immunity protects government officials from liability for civil

damages insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a

reasonable person would have known.” Pearson v. Callahan, 555

U.S. 223, 231 (2009). However, because the officers did not use

excessive force, the Court need not consider whether, if the

officers had used excessive force, qualified immunity would

nevertheless have shielded them from liability.

C.

The defendants next move for summary judgment dismissing

the plaintiff’s Monell claim against the Port Authority.4 Section

1983 provides a cause of action for any person who has been

deprived of a right secured by the Constitution or federal law

under color of state law. See 42 U.S.C. § 1983. To impose

section 1983 liability upon a municipality, a plaintiff must

identify a municipal “policy” or “custom” that caused the

plaintiff’s injuries. See Monell v. Dep’t of Social Servs. of

4 As a bi-state agency, Monell has been found applicable to the

Port Authority. See, e.g., Mack v. The Port Auth., 225 F. Supp.

2d 376, 382 n.7 (S.D.N.Y. 2002).

City of N.Y., 436 U.S. 658, 694 (1974). In the absence of an

official policy, “a municipal policy may be inferred from the

informal acts or omissions of supervisory municipal officials,”

and “municipal inaction such as the persistent failure to

discipline subordinates who violate [individuals’] civil rights

could give rise to an inference of an unlawful municipal policy

of ratification of unconstitutional conduct.” Zahra v. Town of

Southold, 48 F.3d 674, 685 (2d Cir. 1995); Jones v. Town of E.

Haven, 691 F.3d 72, 82 (2d Cir. 2012) (observing that there must

be “sufficient instances of tolerant awareness by supervisors of

abusive conduct to support an inference that they had a policy,

custom or usage of acquiescence in such abuse.”). The Second

Circuit Court of Appeals has held that “isolated acts of

excessive force by non-policymaking municipal employees are

generally not sufficient to demonstrate a municipal custom,

policy, or usage that would justify municipal liability.” Jones,

691 F.3d at 81.

In this case, the plaintiff has failed either to allege or

to provide any evidence that the PAPD either maintained an

official policy that caused the plaintiff’s injuries or

persistently failed to discipline employees who violated

individuals’ civil rights. See Zahra, 48 F.3d at 685.

Accordingly, the plaintiff’s federal claim against the PAPD is

dismissed.

D.

Additionally, the defendants contend that the state assault

and battery claims against the PAPD should be dismissed because

the plaintiff failed to serve a notice of claim on the Port

Authority. “The Port Authority, a bi-state agency created by a

compact between New York and New Jersey, enjoyed sovereign

immunity until 1951, when New York and New Jersey consented to

suits against it” on the condition that certain prerequisites

are satisfied. Caceres v. Port Auth., 631 F.3d 620, 624 (2d Cir.

2011). These prerequisites include a 60-day notice of claim

requirement and a one-year statute of limitations. See id.

Specifically, section 7107 of the Unconsolidated Laws of

New York requires that (1) any suit brought against the Port

Authority be commenced within one year after the accrual of the

cause of action and (2) a notice of claim be served by the

plaintiff on the Port Authority at least sixty (60) days prior

to filing suit. N.Y. Unconsol. Law § 7107 (McKinney). Section

7108 of the New York Unconsolidated Laws requires that the

notice of claim:

[S]hall be in writing, sworn to by or on behalf

of the claimant or claimants, and shall set

forth (1) the name and post office address of

each claimant and of his attorney, if any, (2)

the nature of the claim, (3) the time when,

the place where and the manner in which the

claim arose, and (4) the items of damage or

injuries claimed to have been sustained so far

as then practicable.

Id. § 7108 (McKinney).

Courts have held that “Sections 7107 and 7108 constitute

jurisdictional prerequisites to a suit against the Port

Authority, and failure to comply with them ‘compels the

dismissal of the action for lack of subject matter

jurisdiction.’” Aegis Ins. Servs., Inc. v. The Port Auth. of

N.Y. & N.J., 435 F. App’x 18, 25 (2d Cir. 2011) (quoting

Giannone v. Port Auth., 511 N.Y.S.2d 940, 941 (App. Div. 1987).

Accordingly, the plaintiff’s state law claims against the PAPD

are dismissed for failure to comply with New York’s notice of

claim requirement.

E.

Finally, the defendants argue that the plaintiff’s request

for punitive damages against the PAPD must be dismissed because

PAPD is immune from such damages. The law is well-settled that

municipalities are not subject to punitive damages. See City of

Newport v. Fact Concerts, Inc., 453 U.S. 247, 261 (1981). “As a

government entity, the Port Authority is immune from punitive

damages.” See Rose v. Port Auth. of N.Y. & N.J., 13 F. Supp. 2d

516, 524 (S.D.N.Y. 1998); Vernon v. Port Auth. of N.Y. & N.J.,

154 F. Supp. 2d 844, 860 (S.D.N.Y. 2001); Martinez v. Port Auth.

of N.Y. & N.d., No. Ol-cv-721, 2005 WL 2143333, at *1 n.2

(S.D.N.Y. Sept. 2, 2005); Urbina v. Port Auth. of N.Y. & N.J.,

No. 15-cv-8647, 2017 WL 3600424, at *6 (S.D.N.¥. Aug. 18, 2017).

Accordingly, the plaintiff’s request for punitive damages

against the PAPD is dismissed.

CONCLUSION

The Court has considered all of the parties’ arguments. To

the extent not specifically addressed, those arguments are

either moot or without merit. For the foregoing reasons, the

defendants’ motion for summary judgment is granted. The Clerk is

directed to enter judgment dismissing this action with

prejudice. The Clerk is also directed to close all pending

motions and to close this case. The Clerk is directed to mail a

copy of this Memorandum Opinion and Order and to note mailing on

the docket.

SO ORDERED.

Dated: New York, New York

May 7, 2025 ao OK, ,

□□□ John G. Koeltl

United States District Judge

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