Memorandum and Order
Plaintiffs Yolanda Berbick (“Yolanda”) and Clive Berbick (“Clive,” and with Yolanda, “Plaintiffs”), proceeding pro se, bring this action under 42 U.S.C. § 1983 against New York City Police Lieutenant Ivan Gonzalez (“Gonzalez”) and New York City Police Officers Carl Hall (“Hall”), Jason Bragg (“Bragg”), and Liseppe Jordan (“Jordan,” and with the other defendants, “Defendants”). Plaintiffs’ Second Amended Complaint (Doc. No. 11 (the “SAC”)) does not state specifically what rights of the Plaintiffs have been violated. Nevertheless, construing the pro se pleadings liberally, Triestman v. Fed. Bureau of Prisons,
I. Background
A. Facts
On March 4, 2011, Plaintiffs were living together in a homeless shelter in the
Plaintiffs walked to a nearby laundromat, where Yolanda called 9-1-1. (Def. 56.1 ¶ 11; Y. Dep. at 36:6-12.) She told the operator about their missing van and added that she and Clive were hungry and that Clive was feeling ill. (Def. 56.1 ¶ 12; Y. Dep. at 36:15-25, 37:1-16.) In addition to concern over the van, Clive was experiencing sympathetic pregnancy symptoms — also known as Couvade Syndrome — a condition where male partners of pregnant women experience physical and psychological symptoms associated with pregnancy. (Y. Dep. at 37:4-10); see generally Arthur Brennan, et al., A Qualitative Exploration of the Couvade Syndrome in Expectant Fathers, 25 J. Reprod. & Infant Psychol. 18 (2007) (describing the condition and its incidence). After speaking to the 9-1-1 operator, Plaintiffs waited for the police near where their van had been parked. (Def. 56.1 ¶ 14; Y. Dep. at 37:17-23.) When Plaintiffs began to feel too cold, they went inside a nearby church, where Yolanda called 9-1-1 again. (Def. 56.1 ¶¶ 15-16; Y. Dep. at 38:2-9.) She again told the operator about the missing van and that Clive was sick, and this time she asked the operator to send an ambulance for Clive. (Def. 56.1 ¶ 16; Y. Dep. at 39:20-25, 40:1-5.)
About ten minutes later, Defendants— four uniformed police officers — arrived. (Def. 56.1 ¶ 17; Y. Dep. at 40:21-24.) Plaintiffs came out from the church and explained that their van, along with all of their food and clothing, was missing, that they were both hungry, and that Clive was not feeling well. (Def. 56.1 ¶¶ 19-20; Y. Dep. at 43:10-17, 44:1-23; C. Dep. at 71:20-25; Decl. of Ivan Gonzalez, dated Jan. 11, 2013, Doc. No. 36 (“Gonzalez Deck”), ¶ 4.) Plaintiffs did not, however, mention Clive’s sympathetic pregnancy symptoms. (C. Dep. at 119:14-21, 121:13-17.) One of the Defendants conducted a search on his patrol vehicle’s computer and told Plaintiffs that the van had been towed because of unpaid parking tickets. (Def. 56.1 ¶¶ 7, 9, 22-23; C. Dep. at 54:7-9, 23-25, 55:1-8, 77:1-9; see also Decl. of Debbie Walsh, dated Jan. 10, 2013, Doc. No. 34 (“Walsh Decl.”), ¶¶ 5-7.)
Soon afterwards, an ambulance arrived. (Def. 56.1 ¶ 28; C. Dep. at 85:1-13; Gonzalez Deck ¶ 5.) An Emergency Medical Technician (the “EMT”) stepped out and spoke to Clive. (Def. 56.1 ¶ 30; C. Dep. at 91:23-25, 92:1-6.) The EMT asked if Clive wanted his blood-pressure checked, and Clive said he did. (Def. 56.1 ¶¶ 30-31; C. Dep. at 92:23-25, 93:1-3, 94:1-18.) Clive began to follow the EMT to the ambulance, but before Clive got into the ambulance, Defendants Jordan and Bragg frisked him. (Def. 56.1 ¶¶ 31, 33; C. Dep. at 93:4-19, 94:22-25, 95:1-7, 96:6-20; Mem. at 8.) Once in the ambulance, Clive explained that he was hungry and felt Yolanda’s pregnancy symptoms. (Def. 56.1 ¶ 39; C. Dep. at 95:20-25, 96:1-9, 119:10-21, 126:9-21; Deck of Victor Basabe, dated Jan. 10, 2013, Doc. No. 35 (“Basabe Deck”), ¶9.) The EMT found that Clive’s blood-pressure was extremely
Once at the hospital, Clive was taken to the emergency room. (Def. 56.1 ¶ 49; C. Dep. at 116:7-13.) Clive explained his symptoms, and a nurse suggested that he be admitted to the psychiatric ward. (Def. 56.1 ¶¶ 51-52; C. Dep. at 118:12-25; 121:18-25, 122:1-5.) But Clive refused. (Def. 56.1 ¶ 52; C. Dep. at 122:14-25.) Instead, Clive was treated for his blood pressure while Yolanda waited. (Def. 56.1 ¶ 53; Y. Dep. at 65:10-15; C. Dep. at 124:6-21.)
B. Procedural History
Plaintiffs initiated this action on July 5, 2011 by filing the Complaint. (Doc. No. 2.) The Complaint was brought against the 42nd Precinct of the New York Police Department and focused on the towing of the van and on Clive’s close encounter with the psychiatric unit. (Id.) Because the 42nd Precinct is not a suable entity, the Court dismissed the case against that defendant and granted Plaintiffs leave to amend the Complaint. (Doc. No. 4); cf. Toliver v. N.Y. City Dep’t of Corr., No. 10 Civ. 822(RJS)(JCF),
Defendants moved for summary judgment on all of Plaintiffs claims on January 11,2013. (Doc. No. 32.) Plaintiffs submitted an affirmation in opposition but did not submit any memorandum in opposition. (Doc. No. 40.)
Judge Fox issued his report and recommendation to the Court on August 14, 2013. (Report.) The Report recommended that the Court deny summary judgment for three reasons. First, Judge Fox found that Defendants had not supported their motion with admissible evidence because the depositions Defendants relied on were not signed or certified. (Report at 4.) Second, Judge Fox found that the facts Defendants contended were undisputed were not actually undisputed because Defendants had included a footnote in their Rule 56.1 Statement claiming that “the facts contained [therein] [were] undisputed solely for the purposes of [Defendants’ motion for summary judgment” and reserving “the right to dispute any such fact were [the] case to proceed to trial.” (Report at 4-5.) And third, Judge Fox found that facts taken from the depositions were not undisputed because Plaintiffs had submitted an affidavit claiming that the deposition transcripts were inaccurate. (Report at 5; see Doc. No. 43 at 3.)
Defendants timely filed objections to the Report on September 3, 2013. (Obj.)
II. Discussion
Because this case was referred to Judge Fox for dispositive pre-trial motions, the Court must proceed in two steps. First, the Court must decide whether to adopt the Report. 28 U.S.C. § 636(b)(1); Fed.
A. Legal Standards
1. The Magistrate Judge’s Report and Recommendation
Pursuant to Rule 72 of the Federal Rules of Civil Procedure, if a court refers a dispositive motion to a magistrate judge, the “magistrate judge must enter a recommended disposition,” also known as a report and recommendation. Fed.R.Civ.P. 72(b)(1). Absent objections, a court may accept any finding or recommendation in a report that is not clearly erroneous. See Edwards v. Mazzuca, No. 00 Civ. 2290(RJS)(KNF),
In reviewing a report, a court may consider evidence that was not submitted to the magistrate judge. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3); Hynes v. Squillace,
2. Summary Judgment
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, a court should grant summary judgment on a claim “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 Celotex Corp. v. Catrett,
B. The Report
Defendants object to each of the Report’s three findings. (Obj. at 2.) The Court therefore reviews those findings de novo.
1. The Uncertified Depositions
In support of the motion for summary judgment, Defendants submitted, among other things, two documents purporting to be excerpts from depositions of Plaintiffs. (See Doc. No. 33 Ex. C & Ex. D.) These documents were the primary source of Defendants’ facts. (See Def. 56.1.) Judge Fox, however, identified a problem: the two documents were not signed and certified. (Report at 4.) Although Judge Fox did not explain why this was a problem,' he was presumably focusing on Rule 30(f)(1) of the Federal Rules of Civil Procedure, which requires all depositions to include a certification that the transcript is accurate, signed by the officer overseeing the deposition. See Fed.R.Civ.P. 30(f)(1). Judge Fox reasoned that, without the certification, the documents were not admissible
In their Objections, Defendants claim “that the deposition exhibits ... were inadvertently [filed] without the respective certifications.” (Obj. at 15). They attempt to correct this error by providing in the Objections evidence that the depositions were, in fact, properly certified. (Obj. at 15-16; see Doc. No. 49 Ex. A at 91, Ex. B at 149; Decl. of Gena Nardone, dated Jan. 20, 2013, Doc. No. 49 Ex. D at Ex. A, ¶ 3.)
Defendants’ (or their attorneys’) neglect, however, is not “a compelling justification for failure to present such evidence to the magistrate judge.” Azkour,
Nevertheless, the Court holds that even without the certification, the excerpts can be considered in a motion for summary judgment. The purpose of the certification is authentication — evidence that the deposition is what it is claimed to be. See Fed.R.Evid. 901(a), (b)(1). In this case, there is no certification. But there is a declaration by Defendants’ counsel, submitted with the original motion, stating that the excerpts were taken from Plaintiffs’ deposition, which counsel was “fully familiar with.” (Decl. of Richard Weingarten, dated Jan. 11, 2013, Doc. No. 33, ¶¶ 1-2.) That declaration is a sworn statement by a person with knowledge that the excerpts are statements by Plaintiffs, and is therefore sufficient as authentication. See Fed.R.Evid. 901(b)(1). Under these circumstances, excerpts are just as good as certified depositions. Accordingly, the Court does not adopt the Report’s finding that the uncertified excerpts cannot be used to support summary judgment.
2. The Rule 56.1 Statement Footnote
A Rule 56.1 statement is “a short and concise statement ... of the material facts as to which the moving party contends there is no genuine issue to be tried.” Local R. Civ. P. 56.1(a). In Defendants’ Rule 56.1 statement, Defendants included the following footnote: “Defendants note that the facts contained herein are undisputed solely for purposes of [Defendants’ motion for summary judgment, and reserve the right to dispute any such fact were this case to proceed to trial.” (Def. 56.1 at 2 n. 1.) Judge Fox found that this statement meant that the facts in the Rule 56.1 statement were not, in reality, undisputed and that summary judgment was therefore inappropriate. (Report at 4-5.)
The Court respectfully disagrees. Summary judgment is appropriate only when there are no genuinely disputed facts. Fed.R.Civ.P. 56(a). Any dispute about the facts, however, must be established by record evidence. See Matsushita,
The Court, however, adds a word of warning for Defendants. A reservation of the right to dispute facts at trial does not immunize a party from the risks of not disputing facts at summary judgment. On cross-motion by an opposing party — or by the court’s own initiative — a court can grant summary judgment against the originally moving party. See Fed.R.Civ.P. 56(a), (f). Moreover, even with such a reservation, a court can determine that certain facts are established and forbid parties from contesting those facts at trial. Fed.R.Civ.P. 56(g). A court is not bound by a party’s hedging.
3. Plaintiffs’ Claims of Transcript Tampering
On January 10, 2013, Plaintiffs each wrote letters to Judge Fox claiming that their deposition transcripts were inaccurate and asking Judge Fox to personally oversee a second round of depositions. (Doc. No. 49 Ex. C.) Judge Fox denied the request that he oversee any depositions, but gave Plaintiffs one month to review their deposition transcripts and to provide Defendants’ counsel with a list of corrections. (Doc. No. 39.) Plaintiffs, however, never provided any corrections. Instead, after the deadline for reviewing the transcripts had passed, they filed a motion stating that the transcript had been tampered with and requesting Judge Fox to review the transcript. (Doc. No. 43.) Judge Fox denied the motion. (Doc. No. 45.) Nevertheless, in the Report, Judge Fox found that Plaintiffs’ claims that the transcripts were inaccurate created a dispute about the facts drawn from the deposition. (Report at 4-5.)
The Court again respectfully disagrees. The only specific allegations of tampering that Plaintiffs make involve an encounter between Plaintiffs and police officers from the 28th Precinct (Doc. No. 49 Ex. C) and questions about whether Clive ever cut himself (Doc. No. 43 at 3), neither of which is at issue in this case. Thus, Plaintiffs do not dispute any material facts. See Fed. R.Civ.P. 56(a). Moreover, Judge Fox gave Plaintiffs time to identify and correct all errors in the transcripts. To whatever extent Plaintiffs intended to challenge other, material facts, they had the opportunity to do so and failed to take advantage of it. Pro se parties are given a great deal of leeway, but they must comply with clear rules and court orders. See Caidor v. Onondaga Cnty.,
Because the Court does not adopt any of the Report’s findings, it now reaches the merits of the summary judgment motion.
C. Summary Judgment
Here, only Defendants have submitted evidence. Thus, none of the facts in the record are disputed. The only question is whether these facts, seen in the light most favorable to Plaintiffs, establish that Defendants are entitled to judgment as a matter of law on each of Plaintiffs’ claims.
Plaintiffs’ complaint, liberally construed, makes three claims under 42 U.S.C. § 1983. (SAC at 1.) First, Plaintiffs allege that the towing of the van was a deprivation of property without due process of law. (Id. at 3-4.) Second, they allege that they were unlawfully seized when they entered the ambulance and were taken to the hospital. (Id.) And third, they allege that
Because these claims are brought under § 1983, and because Defendants are government officials, Defendants are eligible for a qualified immunity defense against each claim. Wyatt v. Cole,
The Court addresses each claim in turn.
1. The Deprivation of the Van
Defendants are entitled to summary judgment on the first claim. Putting aside qualified immunity, the claim fails on the merits. First, the undisputed facts show that Defendants had nothing to do with the taking of the van. See In re Murphy, 482 Fed.Appx. 624, 627 (2d Cir.2012) (“[P]ersonal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award under § 1983 .... ” (quoting Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994))). The van was seized and auctioned by City Marshall Roger Hammer, not by any of the defendants. (Walsh Decl. ¶¶ 5-6, Ex. A.) Second, even if Defendants had been involved, there was no constitutional violation. The Fourteenth Amendment prohibits deprivation of property only to the extent the property is taken without due process of law. See Zinermon v. Burch,
2. The Seizure of Plaintiffs
Defendants are also entitled to summary judgment on the second claim. Again putting aside qualified immunity, the claim fails on the merits and for the same reasons as the first claim. First, the undisputed facts show that Defendants had no role in getting Plaintiffs into the ambulance or to the hospital. See In re Murphy,
3. The Search of Clive
Defendants do not fare as well on the third claim. The undisputed facts show that two of the defendants frisked Clive. (C. Dep. at 96:6-20.) To provide context, a frisk is “a careful exploration of the outer surfaces of a person’s clothing all over his or her body in an attempt to find weapons.” Terry v. Ohio,
Defendants argue that summary judgment should be granted in favor of Defendants Gonzalez and Hall because they were not personally involved in the frisk. The Court agrees and grants Defendants Gonzalez and Hall summary judgment.
For Defendants Jordan and Bragg, Defendants argue that the facts show that this frisk was reasonable and that there was no constitutional violation. Defendants further argue that even if there was a constitutional violation, a reasonable officer could have believed the frisk to be reasonable and that Defendants are therefore entitled to qualified immunity. Both of these arguments ultimately fail,
a. Summary Judgment for Defendants Gonzalez and Hall
As discussed previously, “personal involvement [by a] defendant ]” is a necessary element of a § 1983 claim against that defendant. In re Murphy,
b. The Reasonableness of the Frisk
Frisks are reasonable when necessary to protect officer safety. For instance, a frisk is permissible when an officer could “reasonably believe [that the person frisked] is armed and dangerous.” United States v. Elmore,
Defendants instead argue that even absent evidence that Clive was armed or dangerous, it was reasonable to frisk him because he was entering “the rear area of [an] ambulance — an area which would leave the EMT exposed and vulnerable if Clive were armed.” (Mem. at 9.) To support this position, Defendants rely on United States v. McCargo, in which the Second Circuit addressed the reasonableness of a frisk done “pursuant to a policy of the Buffalo Police Department that required pat-downs before transporting any person in a police car to ensure officer safety.”
The Court agrees with Defendants that the first reason could apply in this case. The back of an ambulance is a dangerous place for the same reasons that the back of a police car is. Cf. McCargo,
Yet Defendants stumble at the second reason. The Circuit’s focus on departmental policy in McCargo was not mere bolstering — it was essential to the case’s outcome. The Circuit repeatedly stressed the importance of the policy:
• “The administrative nature of the search is evidenced by the existence of*279 the Buffalo Police’s department-wide policy that requires the pat-down whenever a person is transported in a police car. The fact that the policy is administrative and universally applied to all who are transported eliminates any selective-use concern.” Id. at 201.
• “Courts have long upheld suspicion-less searches conducted under an official policy as not violative of the Fourth Amendment.” Id. (citing cases).
• “[W]e see little danger that policies such as these might be used as a pretext for a suspicionless frisk.” Id. at 202.
Moreover, the Circuit emphasized that McCargo was not a license to frisk without suspicion anytime there was a high risk of danger:
Our holding in this case is a narrow one. We are not holding that the police are entitled to pat down a person, absent reasonable suspicion that he is armed, simply because they have [lawfully] stopped that person.... However, in cases where the police may lawfully transport a suspect to the scene of the crime in the rear of a police car, the police may carry out a departmental policy, imposed for reasons of officer safety, by patting down that person.
Id. at 202 (emphasis added). Thus, this case cannot fall under McCargo’s reasoning without a generally applicable policy that would have required Defendants to frisk Clive. The Court finds no evidence in the record to suggest that New York City has the same policy as Buffalo in this regard. Therefore, the reasonableness of the search is not established by the undisputed facts.
c. Qualified Immunity
Even without undisputed facts showing that the search was reasonable, Defendants would be entitled to summary judgment if the undisputed facts supported a qualified immunity defense. Defendants would be entitled to immunity if they reasonably could have believed the frisk was legal. See Walczyk v. Rio,
The first issue is simple. No one could reasonably believe that a frisk is legal without justification. The unconstitutionality of unjustified frisks has been clearly established since Terry v. Ohio,
The second issue is also simple. As discussed above, there are no undisputed facts in the record that could support a reasonable belief that Clive was armed and dangerous. It is clearly established that reasonable suspicion that a person is armed and dangerous must be supported by at least some facts. Terry,
The third issue is more difficult, but only slightly. Qualified immunity would be appropriate if McCargo even arguably applied to the undisputed facts in this case. Walczyk,
Simply put, Defendants have offered no legal arguments and no facts in the record to support a reasonable belief that the frisk was legal on any theory. Accordingly, Defendants’ qualified immunity argument must fail.
* * *
Based on the evidence in the record, a reasonable fact finder could find facts that would support a ruling in favor of Plaintiffs. Accordingly, Defendants Jordan and Bragg are not entitled to summary judgment on the unlawful frisk claim.
D. Dismissal of Yolanda Berbick
The only remaining live claim in the case is the frisk claim. The SAC does not specify if this claim is brought in Clive’s name alone or by both Plaintiffs. To whatever extent the claim is brought in Yolanda’s name, however, the Court now dismisses it.
Plaintiffs’ action is a § 1983 claim. The essential elements of such a claim are: (1) deprivation of the plaintiffs federal rights (2) by a person acting under color of state law. Cornejo v. Bell,
III. Conclusion
For the foregoing reasons, IT IS HEREBY ORDERED THAT Defendants’ motion for summary judgment on Plaintiffs’ claim that they were deprived of their van without due process of law is GRANTED.
IT IS FURTHER ORDERED THAT Defendants’ motion for summary judgment on Plaintiffs’ claim that they were unlawfully seized is GRANTED.
IT IS FURTHER ORDERED THAT Defendants Gonzalez’s and Hall’s motion for summary judgment on Plaintiffs’ claim that Clive was unlawfully frisked is GRANTED.
IT IS FURTHER ORDERED THAT Defendants Jordan’s and Bragg’s motion for summary judgment on Plaintiffs’ claim that Clive was unlawfully frisked is DENIED.
IT IS FURTHER ORDERED THAT Yolanda Berbick is dismissed as a plaintiff.
The Clerk of the Court is respectfully directed to terminate the motions pending at Doc. No. 32.
SO ORDERED.
Notes
. The following facts are taken from the Local Rule 56.1 statement submitted by Defendants (Doc. No. 37 ("Def. 56.1”)) and the affidavits and exhibits submitted in connection with the motion. Plaintiffs did not submit a Rule 56.1 statement or any briefing on this motion. As such, every fact in Defendants’ Rule 56.1 statement is undisputed, see Local R. Civ. P. 56.1(c), as long as it is supported by facts in the record, see Vt. Teddy Bear Co. v. 1-800-Beargram Co.,
. The Court ordinarily may not consider statements in legal memoranda as part of the factual record on summary judgment. See Fed.R.Civ.P. 56(c)(1). Here, however, Defendants were ordered by the Court to assist Plaintiffs in identifying the officers involved in this incident. (Doc. No. 8.) Thus, the Court will take notice of the fact, which is undisputed by either party, that Defendants Jordan and Bragg were the officers who conducted the frisk of Clive.