DECISION AND ORDER
Plaintiffs Amey Cooper and Gregory Smith commenced this action against Defendants City of New Rochelle, Detective Michael O’Rourke, Detective John Pastore, Police Officers John Doe Numbers 1-5, Police Officer Jane Doe, and Detective John Doe, asserting federal claims for unreasonable search and seizure, false arrest, malicious prosecution, excessive force, conspiracy under 42 U.S.C. § 1985, violations of the right to procedural and substantive due process, violation of the right to equal protection, violation of Plaintiffs’ Sixth Amendment right to be informed of the accusations against them, and Monell liability, and state law claims for unlawful stop, detention, interrogation, and search.
BACKGROUND
The following facts relevant to the disposition of the motion are undisputed unless otherwise noted.
On November 1, 2008, Smith woke up and walked from Mount Vernon to the Bronx to get breakfast at McDonald’s. Defendants’ Statement of Undisputed Material Facts Pursuant to Local Civil Rule 56.1 (“Defs.’ 56.1”) (Docket # 21) ¶ 54. After leaving McDonald’s, Smith ran into “Rude Boy,” a drug dealer, and purchased two bags of marijuana from him. Id. ¶¶ 55-58, Smith then went to his deceased father’s apartment in New Rochelle to clean it out and spent a few hours there. Id. ¶¶ 59-60; see Radi Decl. (Docket # 20) Ex. L at 73-74. Smith left his father’s apartment building around 8:30 p.m. Defs.’ 56.1 ¶ 61.
Cooper’s mother lived in the same apartment building as Smith’s father, and Coo
That night, Detectives O’Rourke and Pastore were conducting surveillance in the area of Horton Avenue and Brook Street in New Rochelle, which was an area known for drug activity. Id. ¶¶ 86-87. While in the area, O’Rourke got a call on his cell phone from a confidential informant. Id. ¶ 88. The confidential informant was registered to O’Rourke and had provided O’Rourke information in the past. Id. ¶¶ 89, 91. Pastore also knew the confidential informant. Id. ¶ 90. O’Rourke had used this confidential informant more than ten times in the past and had paid the informant each time with New Rochelle Police Department (“NRPD”) money. Id. ¶ 92. The confidential informant called O’Rourke whenever he had information. Id. ¶ 93. The confidential informant, who only spoke to O’Rourke, said that a man named Gregory Smith purchased and was in possession of crack cocaine at Horton Avenue. Id. ¶¶ 95-96. The confidential informant told O’Rourke that Smith was entering a Jeep. Id. ¶ 97. O’Rourke and Pastore knew Smith’s name and face before November 1, 2008, because they had seen him many times in known drug locations throughout their careers. Id. ¶ 101. O’Rourke and Pastore observed Smith walking on Horton Avenue and getting into the front passenger seat of a Jeep Grand Cherokee at the corner of Horton Avenue and Brook Street. Id. ¶ 1.02. O’Rourke, who was driving, followed the Jeep from Brook Street to Lincoln Avenue. Id. ¶¶ 103-104. O’Rourke and Pas-tore never lost sight of the Jeep and after a few minutes, pulled it over at Lincoln and Oakdale Avenues. Id. ¶¶ 105-106. O’Rourke stopped the vehicle because the confidential informant told him that Smith was in possession of narcotics. Id. ¶ 107. O’Rourke later paid the confidential informant for the information that he provided on November 1, 2008. Id. ¶ 109.
After stopping Cooper’s vehicle, O’Rourke and Pastore approached, wearing their shields around their necks, and identified themselves as police officers. Id. ¶¶ 110-111. Smith recognized O’Rourke and Pastore. Id. ¶ 112. O’Rourke advised Cooper that she did not do anything wrong. Id. ¶ 114. O’Rourke
According to Defendants, O’Rourke approached Smith’s side of the vehicle, and Pastore approached Cooper’s side of the vehicle. Radi Decl. Ex. N at 30; Radi Decl. Ex. 0 at 81-82. O’Rourke told Smith that he was conducting a drug investigation and asked Smith whether he was in possession of any drugs. Defs.’ 56.3 ¶¶ 118-119. Defendants contend that Smith replied, “I have some weed in my pocket,” and then removed two plastic bags of marijuana from his shirt pocket and handed them to O’Rourke. Id. ¶¶ 120-121. At that point in time, O’Rourke rear handcuffed Smith and told him that he was under arrest. Id. ¶ 122. Once Smith was placed under arrest, O’Rourke searched him. Id. ¶ 123.
In contrast, Plaintiffs contend that O’Rourke approached Cooper’s side of the vehicle, and Pastore approached Smith’s side of the vehicle. Radi Deck Ex. L at 148-149; Radi Deck Ex. M at 42-43; Radi Deck Ex. R at 18-19; Radi Deck Ex. S at 14. O’Rourke asked Cooper for her driver’s license, registration, and insurance before asking Smith his name and asking him to exit the vehicle. Radi Deck Ex. L at 148; Radi Deck Ex. M at 42-43; Radi Deck Ex. R at 20; Radi Deck Ex. S at 14. According to Smith, once he stepped out of the vehicle, Pastore started searching in his pockets and pulled out cigars and the marijuana, at which point in time he was rear handcuffed and walked to the back of the vehicle. Radi Deck Ex. L at 150-151.
O’Rourke then asked Cooper if he could search the seat in the vehicle where Smith had been sitting, and Cooper said he could. Defs.’ 56.1 ¶¶ 124-125. According to Cooper, she first asked O’Rourke whether he needed a search warrant, and O’Rourke replied no. Radi Deck Ex. M at 54; Radi Deck Ex. S at 18. O’Rourke searched the areas of the vehicle around Smith’s seat. Defs.’ 56.1 ¶ 126.
According to Defendants, O’Rourke observed Smith trying to open what turned out to be two small plastic bags of crack cocaine behind his back. Id. ¶ 129.
According to Smith, while O’Rourke was searching and questioning him, O’Rourke got frustrated because Smith was not answering his questions and punched Smith in the mouth. Radi Deck Ex. L at 153, 155, 157. O’Rourke then pushed Smith down onto the hood of the vehicle, with his forearm under Smith’s neck, choking him. Id. at 157-58; see Radi Decl. Ex. M at 56-57. Smith’s mouth was bleeding. Radi Deck Ex. L at 166-67; Radi Deck Ex. M at 56. Pastore and O’Rourke then lifted Smith up off the hood of the vehicle and placed Smith face down on the ground, and O’Rourke placed his foot on Smith’s back. Radi Deck Ex. L at 158, 162. According to Smith, he was on the ground until other, unidentified police officers arrived, picked him up, and walked him to a marked police vehicle. Id. at 163. O’Rourke denies choking, striking, punching, or kicking Smith. Defs.’ 56.1 ¶ 1.38. Cooper did not see O’Rourke punch Smith, id. ¶ 1.39, and Pastore did not see O’Rourke punch or choke Smith, Id. ¶ 140.
Police backup arrived on the scene, and Smith was transported to police headquarters by NRPD patrol officers. Id. ¶ 148. Smith denies that he had any cocaine in his possession. Radi Deck Ex. L at 153; Radi Deck Ex. R at 27.
According to Defendants, after Smith left the scene, O’Rourke asked Cooper whether he could search her vehicle, and Cooper did not object. Defs.’ 56.1 ¶ 157. O’Rourke claims that he alone searched the entire interior of Cooper’s vehicle. Radi Decl. Ex. 0 at 1.28, 131; see Radi Decl. Ex. N at 55 (Pastore testified at his deposition that only O’Rourke searched the vehicle). According to Cooper, Pas-tore had ordered her back into her vehicle during Smith’s arrest, Radi Decl. Ex. M at 58-59, but then soon after an unidentified uniform police officer came to Cooper’s window and ordered her to give him the keys to the vehicle; Cooper stated that she thought the key “was still sticking out of the ignition.” Id. at 59. Cooper testified at her deposition that O’Rourke then ordered her to give him her cell phone, get out of the vehicle, and put her hands on the hood and stay there. Id. at 60. Cooper was then asked by a “short Hispanic detective” her name, her age, and where she worked. Id. O’Rourke then returned and told Cooper that her Jeep was going to be impounded and that she could be charged with loitering. Id. at 61-62. An unidentified uniform female police officer arrived and searched Cooper’s person, wallet, and pocketbook, and no contraband was recovered. Defs.’ 56.1 ¶¶ 153-155.
According to Cooper, O’Rourke directed at least four unidentified police officers to conduct the search of her vehicle. Radi Decl. Ex. M at 63. The officers removed Cooper’s property from the vehicle and put it out on the street and the curb. Id. According to Cooper, O’Rourke insisted that the officers continue searching her vehicle even after they asked to stop because they were not finding any illegal contraband. Id. at 64. It is undisputed that no contraband was found in Cooper’s vehicle. Defs.’ 56.1 ¶ 158. In the trunk, however, O’Rourke found a brand new Dewalt power saw. Id. ¶ 162. Defendants contend that Cooper told them she was not sure to whom the saw belonged, so they took it and logged it for safekeeping so that they could determine the saw’s owner. Id. ¶¶ 163-165. According to Cooper, she told O’Rourke that the saw belonged to Smith. Radi Decl. Ex. M at 65. The saw was the only item seized from. Cooper’s vehicle. Defs.’ 56.1 ¶ 166.
According to Cooper, after O’Rourke searched the trunk, he went to the front of the vehicle where Cooper was standing and told her that he was going to impound the car because they found crack in it.
After arriving at police headquarters, Smith was read his Miranda rights. Id. ¶ 190. Sergeant Fagan booked Smith on the charges of tampering with physical evidence, criminal possession of a controlled substance in the seventh degree, unlawful possession of marijuana, and harassment. Id. ¶ 191. Smith was notified of the charges against him, told when he needed to appear in court, and issued an appearance ticket. Id. ¶ 192. Smith was bailed out for $750 and released from police custody. Id. ¶ 193. The crack cocaine and marijuana were entered into evidence, and the saw was vouchered into property. Id. ¶¶ 194-195. Laboratory tests confirmed that the two bags of white powder that O’Rourke recovered from Smith held crack cocaine. Id. ¶ 196.
O’Rourke subsequently went to the prosecutor’s office to file charges against Smith. Id. ¶ 197. O’Rourke provided all of the information to the prosecutor; Pas-tore did not provide any information. Id. ¶¶ 198-199. Smith was charged in a misdemeanor information, which O’Rourke signed as the complaining witness, with obstructing governmental administration in the second degree, criminal possession of a controlled substance in the seventh degree, resisting arrest, and unlawful possession of marijuana. Id. ¶¶ 202-203. Pastore did not participate in drafting the complaint against Smith. Id. ¶ 204. Smith pled not guilty to the charges and requested Mapp, Dunaway, and Huntley hearings. Id. ¶ 205; see Radi Decl. Ex. K. The prosecutor decided not to proceed with the case against Smith based on concerns about producing and potentially damaging the confidential informant, and on March 11, 2009, the case was dismissed. Defs.’ 56.1 ¶¶ 206-207.
DISCUSSION
I. Standard for Summary Judgment
Under Rule 56, summary judgment should be granted “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, 320-23,
Upon any motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, there shall be annexed to the notice of motion a separate, 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. Failure to submit such a statement may constitute grounds for denial of the motion.
Local Civ. R. 56.1(a). A dispute about a material fact is “genuine” if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc.
Under Local Rule 56.1(b), the papers opposing a motion for summary judgment shall include a correspondingly numbered paragraph 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(b). Summary judgment may be granted only “[i]f after discovery, the nonmoving party ‘has failed to make a sufficient showing on an essential element of [its] case with respect to which [it] has the burden of proof.’ ” Berger v. United, States,
may not grant the motion 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. If the evidence submitted in support of the summary judgment motion does not meet the movant’s burden of production, then summary judgment must be denied even if no opposing evidentiary matter is presented.
D.H. Blair & Co. v. Gottdiener,
Moreover, a court should “eonstru[e] the evidence in the light most favorable to the nonmoving party and draw[] all reasonable inferences in its favor.” Mount Vernon Fire Ins. Co. v. Belize NY, Inc.,
II. Defendants’ Motion for Summary Judgment
The Court notes at the outset that Plaintiffs have consented to dismissal of (i) any equal protection claims, (ii) any Sixth Amendment claims, (iii) all conspiracy claims, and (iv) any claims by Smith for denial of medical treatment. See Declaration in Opposition (Docket # 28) ¶ 2. In addition, Plaintiffs have failed to oppose Defendants’ motion insofar as it seeks the dismissal of Plaintiffs’ Monell claims
“Local Rule 56.1 states that the moving party’s 56.1 statement will be deemed to be admitted unless controverted, Rule 56.1(c), and requires that such denials be supported by a specific citation to admissible evidence, Rule 56.1(d). Accordingly, any of the [Defendants’] Rule 56.1 Statements that [Plaintiffs] do not specifically deny — with citations to supporting evidence — are deemed admitted for purposes of [Defendants’] summary judgment motion.” Ezagui v. City of New York,
Lastly, the Court notes that with respect to the critical paragraphs related to “Smith’s Arrest,” Pis.’ 56.1 ¶¶ 110-152, and “The Search of Cooper’s Vehicle,” id. ¶¶ 153-170, Plaintiffs fail to provide specific responses to each of the paragraphs set forth in Defendants’ Local Rule 56.1 Statement, as required by Local Rule 56.1(b). Rather, with respect to those paragraphs, Plaintiffs provide a combined general response to Defendants’ statements of fact, albeit with citations to record evidence. “A district court has broad discretion to determine whether to overlook a party’s failure to comply with local court rules.” Holtz v. Rockefeller & Co., Inc.,
Defendants make several arguments in support of their motion for summary judgment on Plaintiffs’ remaining claims against them. The Court addresses these arguments below.
A. Unlawful Stop and Search Claims
1. The Stop of Cooper’s Vehicle
As the Second Circuit has explained,
The “[temporary detention of individuals during the stop of an automobile by the police, even if only for a brief period and for a limited purpose, constitutes a ‘seizure’ of ‘persons’ within the meaning of [the Fourth Amendment].” Whren v. United States,517 U.S. 806 , 809-10,116 S.Ct. 1769 ,135 L.Ed.2d 89 (1996). An “automobile stop is thus subject to the constitutional imperative that it not be ‘unreasonable’ under the circumstances.” Id. at 810,116 S.Ct. 1769 ; accord Delaware v. Prouse,440 U.S. 648 , 650, 663,99 S.Ct. 1391 ,59 L.Ed.2d 660 (1979). In other words, “the police can stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity ‘may be afoot,’ even if the officer lacks probable cause.” United States v. Sokolow,490 U.S. 1 , 7,109 S.Ct. 1581 ,104 L.Ed.2d 1 (1989) (quoting Terry v. Ohio,392 U.S. 1 , 30,88 S.Ct. 1868 ,20 L.Ed.2d 889 (1968)).
United States v. Swindle,
In this case, Defendants set forth the following facts in their Local Rule 56.1 Statement with regard to the confidential informant: that on November 1,.2008, they were conducting surveillance in the area of Horton Avenue and Brook Street in New Rochelle; that the area was known for drug activity; that while in the area, O’Rourke received a call on his cell phone from a past proven reliable confidential informant; that the confidential informant was registered to O’Rourke and that Pas-tore knew the confidential informant; that O’Rourke had received information from this confidential informant in the past and had used this informant more than ten times in the past, personally paying him each time with NRPD money; that the confidential informant called O’Rourke whenever he had information; and that Pastore was present when O’Rourke received the call from the confidential informant but did not speak to the informant. Defs.’ 56.1 ¶¶ 86-95.
Defendants set forth the following additional facts with regard to the confidential informant’s tip: that the confidential informant said that a male named Gregory Smith purchased and was in possession of crack cocaine at Horton Avenue
Plaintiffs respond to numerous of these factual allegations by “denying] knowledge or information sufficient to form a belief as to the[ir] truth.” Pis.’ 56.1 ¶¶ 86-95, 99-107. Thus, these factual allegations are deemed admitted. See AFL Fresh & Frozen Fruits & Vegetables,
Plaintiffs also challenge statements based on Defendants’ Exhibit U, a copy of an Assistant District Attorney’s handwritten notes, found in the Westchester County District Attorney’s file in Smith’s criminal case. See Pis.’ 56.1 ¶¶ 96, 98; Defs.’ 56.1 ¶ 96 (“The informant stated that a male by the name of Gregory Smith purchased and was in possession of crack cocaine at Horton Avenue. (Ex. N at p. 22; Ex. O at pp. 45, 59; Ex. T; Ex. U.)”) & ¶ 98 (“The informant described Smith and the Jeep. (Ex. U.).”). Plaintiffs contend that this document does not fall within the business records exception to the hearsay rule, see Pis.’ Sur-Reply Mem. of Law (Docket # 38) at 7, and in any event, it contains double hearsay. Id. The Court agrees that an unidentified Assistant District Attorney’s notes of statements made presumably by O’Rourke concerning statements made by the confidential informant,
The undisputed facts thus establish that Defendants were justified in relying on the confidential informant’s tip. Plaintiffs in no way challenge the veracity or reliability of the informant, one whom O’Rourke had used more than ten times in the past and paid with NRPD money and' who called O’Rourke when he had information. In this case, it is undisputed that while Defendants were conducting surveillance in an area known for drug activity, the informant notified O’Rourke not only that Smith had purchased and was in possession of crack cocaine at Horton Avenue, but that Smith was entering a Jeep. Meanwhile, even though O’Rourke was not required to corroborate his informant’s tip, see Elmore,
Accordingly, Defendants are entitled to summary judgment on Plaintiffs’ § 1983 claims based on the stop of Cooper’s vehicle.
2. The Initial Search of Smith’s Person
With respect to the initial search of Smith’s person, however, the Court finds that there are genuine issues of material fact precluding a grant of summary judgment. Under Defendants’ version of events, after Defendants stopped Cooper’s vehicle, O’Rourke approached Smith’s side of the vehicle, and Pastore approached Cooper’s side of the vehicle. After O’Rourke asked Smith his name, and Smith identified himself, Smith exited the vehicle in response to O’Rourke’s request. Defendants contend that O’Rourke told Smith that he was conducting a drug investigation and asked Smith whether he was in possession of any drugs, to which Smith replied, “I have some weed in my pocket,” and then removed two plastic bags of marijuana from his shirt pocket and handed them to O’Rourke. At that point in time, O’Rourke rear handcuffed Smith and told him that he was under arrest.
Under Plaintiffs’ version of events, however, O’Rourke approached Cooper’s side of the vehicle, and Pastore approached Smith’s side of the vehicle. O’Rourke asked Cooper for her driver’s license, registration, and insurance before asking Smith his name and asking him to exit the
As explained by the Second Circuit,
In Terry v. Ohio,392 U.S. 1 , 30,88 S.Ct. 1868 ,20 L.Ed.2d 889 (1968), the Supreme Court carved out an exception to the general rule requiring probable cause for a search, permitting an investigating officer briefly to detain an individual for questioning if the officer has a reasonable suspicion “that criminal activity may be afoot.” The investigating officer may also frisk an individual for weapons if the officer reasonably believes that person to be armed and dangerous. See Adams v. Williams,407 U.S. 143 , 146,92 S.Ct. 1921 ,32 L.Ed.2d 612 (1972): McCardle v. Haddad,131 F.3d 43 , 49 (2d Cir.1997).
United States v. Colon,
“As part of a Terry stop, an officer may conduct a pat-down frisk in which he [or she] may conduct a ‘carefully limited search of the outer clothing ... in an attempt to discover weapons.’ ” Allen v. N.Y.C. Police Dep’t, No. 07 Civ. 8682,
Having found that there are genuine issues of material fact regarding the lawfulness of the initial search of Smith’s person, the Court considers whether Defendants are entitled to qualified immunity with respect to this claim. “Qualified immunity protects officials from liability for civil damages as long as ‘their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ ” Gilíes v. Repicky,
The law regarding the permissible scope of a Terry stop was clearly established at the time of the incident in question, and accepting Plaintiffs’ version of the facts, it was not objectively reasonable for Defendants to believe that they could immediately search Smith’s pockets following a stop supported only by reasonable suspicion. Thus, because there are genuine issues of material fact regarding what transpired upon Smith’s exit from Cooper’s vehicle,
B. Smith’s § 1983 False Arrest Claim
“The common law tort of false arrest is a species of false imprisonment, an action derived from the ancient common-law action of trespass [that] protects the personal interest of freedom from restraint of movement.” Singer v. Fulton County Sheriff,
Probable cause to arrest exists “when the arresting officer has knowledge or reasonably trustworthy information sufficient to warrant a person of reasonable caution in the belief that an offense has been committed by the person to be arrested.” Singer,
Probable cause need not be “predicated upon the offense invoked by the arresting officer, or even upon an offense ‘closely related’ to the offense invoked by the arresting officer,” but only on whether probable cause existed for the arrest. Jaegly v. Couch,
In this case, it is undisputed that after stopping Cooper’s vehicle, Defendants recovered marijuana from Smith’s person, which gave rise to probable cause to arrest Smith. See Townes v. City of New York,
C. Smith’s § 1983 Claim for Malicious Prosecution
“In order to prevail on a § 1983 claim against a state actor for malicious prosecution, a plaintiff must show a violation of his [or her] rights under the Fourth Amendment and must establish the elements of a malicious prosecution claim under state law.” Manganiello v. City of New York,
In this case, Smith’s claim for malicious prosecution fails because there was probable cause to arrest Smith, and there is no evidence whatsoever that O’Rourke subsequently learned of facts that would negate his determination of probable cause. Accordingly, Defendants are granted summary judgment on Smith’s malicious prosecution claim.
D. Cooper’s Claim for Unreasonable Search of her Vehicle
“[A]n automobile may be searched incident to the arrest of an occupant even after the arrestee has been secured and cannot access the interior of the vehicle as long as ‘it is reasonable to believe that evidence of the offense of arrest might be found in the vehicle.’ ” United States v. Gonzalez,
In this case, O’Rourke had received a tip from his confidential informant that Smith, who was entering Cooper’s vehicle, had just purchased and was in possession of crack cocaine. After stopping Cooper’s vehicle, Defendants recovered marijuana from Smith’s person. At that point, Smith was placed under arrest. According to Defendants, O’Rourke then struggled with Smith in an attempt to recover the plastic bags of crack cocaine that Smith had behind his back. According to Smith, he did not have any crack cocaine in his possession. Under either scenario, it was reasonable for Defendants to believe both that Smith might have hidden either additional drugs or the crack cocaine itself in Cooper’s vehicle and that there was a “fair probability” that such drugs would be found through a search of the vehicle. Thus, the search of the vehicle was lawful even if, as Plaintiffs state in
The fact that Cooper was ordered out of her vehicle for the purposes of the search does not give rise to a Fourth Amendment violation. See Mollica v. Volker,
E. Plaintiffs’Due Process Claims
The first and second causes of action in Plaintiffs’ Complaint include procedural due process claims on behalf of Cooper and Smith. The seventh, and final, cause of action is for a violation of Plaintiffs’ “substantive due process right to personal security.” Compl. ¶ 82. In Plaintiffs’ brief in opposition to the motion, they characterize their due process claims as being based on (i) the stop of Cooper’s vehicle, and (ii) Smith’s arrest. See Pis.’ Mem. of Law in Opp. at 17.
As both Plaintiffs and Defendants acknowledge, “Due process is violated where officers act in bad faith and make an arrest without probable cause.” Sheikh v. City of New York Police Dep’t, nos. 03-CV-6326, 05-CV-4718,
F. Smith’s Claim for Excessive Use of Force
Defendants move for summary judgment on all of Plaintiffs’ claims except for Smith’s § 1983 excessive force claim against O’Rourke. See Mem. of Law in Supp. (Docket #22) at 1 n. 1. Thus, this claim will proceed to trial. However, the claim is dismissed as against Pastore based not only on Plaintiffs’ abandonment of the claim, as explained at pages 600-01, supra, but also on Plaintiffs’ admissions that Pastore “did not punch or choke plaintiff Smith” and “did not use excessive force against plaintiffs.” Radi Decl. Ex. E ¶¶ 4-5; Radi Decl. Ex. F ¶¶ 4-5; see Fed. R.Civ.P. 36(b) (“A matter admitted under this rule is conclusively established unless the court, on motion, permits the admission to be withdrawn or amended.”).
G. Punitive Damages
Defendants move for summary judgment on the issue of whether Plaintiffs are entitled to punitive damages. “Generally, the issue of whether to award punitive damages is an issue for the jury to decide based on an evaluation of the plaintiffs proof of sufficiently serious misconduct.” Picciano v. McLaughlin,
CONCLUSION
For the above-stated reasons, Defendants’ motion for summary judgment (Docket # 19) is granted in part and denied in part. The City of New Rochelle, Defendants Pastore and O’Rourke in their official capacities, and the John and Jane Doe Defendants are all dismissed from the action. Since the only claims remaining in the case are brought on behalf of Plaintiff Gregory Smith, Plaintiff Amey Cooper is dismissed from the action as well. The remaining parties are directed to contact the Court to schedule a final pre-trial conference.
SO ORDERED.
Notes
. Arguably, the Complaint asserts state law claims for negligent training and supervision against the City of New Rochelle as well. See Compl. ¶¶ 75, 80.
.Plaintiffs’ Local Rule 56.1 Statement states that Smith was "immediately placed” in handcuffs when he exited the vehicle, but the testimony is inconsistent on this point. Cooper testified that Smith was immediately placed in handcuffs, Radi Decl. Ex. M at 43, and Smith testified at his 50-h hearing that he was handcuffed by Pastore when he "stepped out of the vehicle,” Radi Deck Ex. R at 29-30. However, Smith also testified at his 50-h hearing that his first contact with Pastore when he exited the vehicle was that Pastore "proceeded to empty my pockets,” id. at 24, and Smith subsequently testified at his deposition that he was searched first and handcuffed after the marijuana was found. Radi Deck Ex. L at 151.
. Although Defendants include these facts in their Local Rule 56.1 Statement, Defs.’ 56.1 ¶¶ 124-126, O’Rourke testified at his deposition that he conducted a search of the entire interior of the vehicle, with Cooper's consent, only after Smith left the scene. Radi Deck Ex. O at 129-131.
. O'Rourke testified at his deposition that there was only one small plastic bag. See Radi Decl. Ex. O at 101.
. Although Defendants do not move for summary judgment on Smith’s § 1983 excessive force claim against O’Rourke, this claim is not also asserted against the City of New Rochelle, see Compl. ¶ 78, and in any event, Defendants’ motion for summary judgment seeks dismissal of the Monell claims in their entirety.
. It is unclear whether such a claim is asserted in the Complaint, but it would nonetheless fail on the merits. See footnote 18, infra.
. In any event, Plaintiffs' state law claims would be dismissed as time-barred. "Under New York law, a notice of claim is a mandatory precondition to bringing a tort claim against a municipality or any of its officers, agents or employees. See N.Y. Gen. Mun. L. §§ 50-e, 50-i(l)(a). A plaintiff must file the notice of claim within ninety days after the claim arises and commence the action within one year and ninety days from the date the cause of action accrued. See id." Hyde v. Arresting Officer Caputo, No. 98 CV 6722,
. In dismissing the Monell claims, the Court sees no need to amend the caption in this case to delete the City of New Rochelle or the references to Defendants O’Rourke and Pas-tore in their official capacities.
. In their reply brief, Defendants contend that Plaintiffs' claims against the unnamed John and Jane Doe Defendants should be dismissed with prejudice because while "plaintiffs had ample time and discovery to identify the 'John and Jane Does,’ they failed to do so.” Reply Mem. of Law (Docket # 34) at 5 n. 6 (citing Coward v. Town & Vill. of Harrison,
. Plaintiffs also object to numerous paragraphs of Defendants' Local Rule 56.1 Statement on the ground that the asserted facts are based on evidence, namely, exhibits submitted by Defendants, that are not admissible. Pis.’ 56.1 ¶¶ 1-23, 27-44, 96-98, 101-103, 106, 109, 110-152, 178, 181, 194-196, 223, 227, 245, 247, 249. As set forth herein, the Court addresses Plaintiffs' objections with respect to specific exhibits to the extent that such exhibits are material to the Court’s decision on the motion.
. Insofar as Smith’s claim for unlawful stop, detention, and search includes a claim for unlawful interrogation based on the Fifth Amendment, see Compl. ¶¶ 67-68, Miranda violations are not actionable under § 1983. See Neighbour v. Covert,
. Plaintiffs argue that "the sworn testimony of both defendants O'ROURKE and PAS-TORE clearly indicate that the only information that O'ROURKE received from the confidential informant prior to stopping COOPER'S veh[i]cle was the vague assertion that SMITH was 'in possession of narcotics.' ” Pis.’ Mem. of Law in Opp. at 6 (Docket # 29) (emphasis in original). While O’Rourke testified at his deposition, taken over three years after the event in question,
. To establish that certain police records submitted in support of their motion fall within the business records exception to the hearsay rule, Fed.R.Evid. 803(6), Defendants submit the Affidavit of Captain Kevin Kealy (Docket # 33-1), which certifies that Radi Deck Exs. P, Q, T, V, X, Y, Z, AA, HH, JJ, KK, and LL were "created and kept in the course of the NRPD's regularly conducted activity” and that it was “the regular practice of the NRPD to create and keep the[se] documents.” Kealy Aff. ¶¶ 3-4.
Plaintiffs argue in their sur-reply papers that Defendants’ reliance on the business records exception to support the admissibility of the police records cited in Captain Kealy's affidavit is “misplaced” because the affidavit does not establish all of the elements required
Likewise, with respect to Radi Decl. Ex. EE, the Request for Evidence Examination and Preliminary Report from the laboratory confirming that the white substance recovered from Smith was cocaine, such exhibit would be admissible under Rule 902(4)(A). The admissibility of the exhibit is supported by the Affidavit of ADA John Carmody (Docket # 33-3), which certifies that Radi Deck Ex. EE is a "true and accurate” copy of a record "maintained as part of the Westchester County District Attorney's file in the matter of People v. Gregory Smith, New Rochelle City Court Docket No. 08-2102”; states that it is a record "maintained by [sic] in the regular practice of the DA’s Office”; and declares that the affidavit is based upon Carmody’s “personal knowledge of the regular activities and operations of the DA's Office as an Assistant District Attorney and Records Access Officer for the DA’s Office.” Carmody Aff. ¶¶ 3-4, 7. In any event, Plaintiffs only contest the admissibility of Radi Deck Ex. EE on the ground that its factual contents "are neither material or [sic] relevant” to the determination of the motion for summary judgment. Pis.' Sur-Reply Mem. of Law at 5. However, the laboratory results are relevant to the extent that they provided a basis for the charge of criminal possession of a controlled substance in the seventh degree as set forth in the misdemeanor information signed by O'Rourke. See Radi Deck Ex. FF.
. To the extent that Plaintiffs argue that a different standard applies under New York law to the determination of whether information from informants furnishes probable cause, see Pis.’ Mem. of Law in Opp. at 9-10, as noted at page 601 and footnote 7, supra, Plaintiffs' state law claims have been abandoned and, in any event, are time-barred.
. As noted in footnote 2, supra, Plaintiffs provide conflicting testimony as to whether Smith was first handcuffed by Pastore upon his exit from the vehicle, prior to the search of his pockets. However, as one district court explained, "the brief use of handcuffs during a Terry stop does not elevate a Terry stop to an arrest, nor is an officer prohibited from using handcuffs when faced with a Terry stop subject who indicates a desire to leave, and attempts to do so, before the officer has completed the stop, especially when the stop is of short duration.” United States v. Echevarria,
. "Plausible instructions from a superior or fellow officer support qualified immunity where, viewed objectively in light of the surrounding circumstances, they could lead a reasonable officer to conclude that the necessary legal justification for his [or her] actions exists (e.g. a warrant, probable cause, exigent circumstances).” Annunziata v. City of New York, No. 06 Civ. 7637,
. Because Smith's arrest was lawful, any search of his person incident to the arrest was lawful as well. See Arizona v. Gant,
. Although it is not clear that the Complaint asserts a claim on Smith’s behalf for unlawful search of Cooper’s vehicle, even if it did, Defendants are correct that Smith cannot bring such a claim. See United States v. Bulluck, No. 09 Cr. 652,