Deanda v. Hicks
Sherrie DEANDA v. Timothy HICKS, William Thomas, Angela Caporale, and Robert Pavone
Attorneys
William I. Aronwald, Esq., Aronwald & Pykett, White Plains, NY, for Plaintiff., Taryn Anita Chapman, Esq., Westches-ter County Attorney’s Office, White Plains, NY, for Defendants.
Full Opinion (html_with_citations)
OPINION & ORDER
Plaintiff Sherrie Deanda (“Plaintiff’ or “Deanda”) brings this. Action pursuant to 42 U.S.C. § 1983 against Defendants Timothy Hicks (“Hicks”), William Thomas (“Thomas”), Angela Caporale (“Caporale”), and Robert Pavone (“Pavone”) (collectively, “Defendants”) in their official and individual capacities as police officers of the Westchester County Police, alleging violations of the Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, Article I, Section 6 of the New York State Constitution, ■ and New York State common law, and claiming that Defendants defamed Plaintiff and en’gaged in outrageous conduct, which caused Plaintiff emotional distress. Before the Court is Plaintiffs Spoliation Motion, (Dkt. No. 37), and Defendants’ Motion For Summary Judgment, (Dkt. No. 45). For the following reasons, Plaintiffs Motion id denied, and Defendants’ Motion is granted.
I. Background
A. The Facts
On May 28, 2012, Hicks arrested Dean-da. (Defs.’ Rule 56.1 Statement of Material. Facts (“Defs.’ 56.1”) ¶ 1 (Dkt. No. 48); Decl. of Taryn'A. Chapman-Langrin in Supp. of Mot. For Summ. J. (“Chapman-Langrin Deck”) Ex. N (Aff. of Timothy Hicks (“Hicks Aff.”)) 115 (Dkt. No. 46).)
On May 28, 2012, Deanda was speeding while she was traveling south on the Bronx River Parkway, near the Vermont Terrace exit. (Defs.’ 56.1 ¶ 4; Chapman-Langrin Deck Ex. A (Sherrie Deanda’s 50-h Tr. (“Deanda 50-h Tr.”) 11.) Hicks observed Deanda speeding and signaled for her to pull her car to the side of the road. (Defs.’ 56.1 ¶ 5; Hicks Aff. ¶ 8.) Two children were seated in the rear seats of Deanda’s vehicle. (Defs.’ 56.1 ¶ 6; Deanda 50-h Tr. 9; Hicks-Aff. ¶- 21.) Hicks approached the vehicle
Defendants claim that “[b]ased upon his observation of the oxycodone pills in an unlabeled pill bottle in plain view, without a prescription in [Plaintiffs possession, ... Hicks had probable cause to arrest ... [P]laintiff,” and that Hicks “had the authority to seize the unlabeled pill bottle as per the New York Public Health Law, Article 33, Section[ ] 3387(1) and Seetion[ ] 3302[33] .., as [Deanda] was not an ultimate user within the meaning of the statute, nor was her sister a member of her household for whom she was bringing the pills to, as they reside in separate residences!” (Defs.’ 56.1 ¶¶ 16-17.) Plaintiff disputes these claims. (PL’s 56.1 ¶¶ 16-17.)
Hicks went back to his police vehicle, checked Deanda’s license and registration, and returned to Deanda’s vehicle. (Defs.’ 56.1 ¶ 18; Hicks Aff. ¶ 16.) Plaintiff told Hicks that the pills belonged to her sister and that her sister had a valid prescription for the pills. (Defs.’ 56.1 ¶ 19; Chapman-Langrin Deck Ex. D (Dep. Tr. of Sherrie Deanda (“Deanda Tr.”)) 29; Hicks Aff. ¶ 14.) Defendants claim that Deanda told Hicks that the purse belonged to her sister, (Defs.’ 56.1 ¶ 20; Hicks Aff. ¶ 14), a claim that Plaintiff denies, (Pi’s. 56.1 ¶ 20; Deanda Tr. 22). Hicks decided to arrest Deanda within five minutes of speaking to her, based upon the fact that she did not have a prescription for the pills and that they were contained in an unlabeled pill bottle. (Defs.’ 56.1 ¶ 21; Hicks Aff. ¶ 13.)
Caporale arrived on the scene, patted down Deanda’s person for weapons, and placed Hicks’s handcuffs on Deanda, who was then again placed in the backseat of Hicks’s police vehicle. (Defs.’ 56.1 ¶23; Chapman-Langrin Deck. Ex. O (Aff. of Angela Caporale (“Caporale Aff.”)) ¶ 15.)
Hicks and Caporale performed an inventory search of' Deanda’s vehicle, which yielded nine loose oxycodone pills in the driver’s side door panel, one oxycodone pill on the floor in the vicinity of the driver’s seat, and 13/6 Tramadol pills in the center console. (Defs.’ 56.1 ¶ 29; Hicks Aff. ¶ 26; Hicks Tr. 93; Chapman-Langrin Decl. Ex. S.) The total number of pills contained in the unlabeled pill bottle was 40 oxycodone pills, for a total of 50 oxycodone pills in the vehicle. (Defs.’ 56.1 ¶ 29; Hicks Aff. ¶ 26; Hicks Tr. 93; Chapman-Langrin Decl. Ex. S.) The inventory search also revealed a total, of $1266 in cash,. including $100 in one-dollar bills. (Defs.’ 56.1 ¶30;- Hicks Tr.- 92-93.) A tow truck arrived to tow Plaintiffs vehicle from the scene. (Defs.’ 56.1- ¶ 31.) Plaintiff was taken to the police headquarters in Hicks’s vehicle. (Id. ¶32.)- The children were taken to the police headquarters in Caporale’s vehicle, and Caporale manipulated her police vehicle camera to face the rear seat of the vehicle to “show -the children were not being harmed or [were not] otherwise unhappy.” (Id.; Caporale Aff. ¶¶ 18, 32-33.) Because she had two children in her custody-on the way to the police headquarters, Caporale requested that the video from her police vehicle be preserved. (Defs.’ 56.1 ¶ 33;' Caporale Aff. ¶ 34.) '
At police headquarters, Deanda was pro-' cessed and fingerprinted for criminal possession of a controlled substance in the fourth degree,and speeding. (Defs.’ 56.1 ¶ 34; Chapman-Langrin Decl. Ex. K.) Detective Pavone was assigned to Plaintiffs case and assisted Hicks in preparing the case file regarding Plaintiffs arrest. (Defs.’ 56.1 ¶35; Chapman-Langrin .Deck Ex. P (Aff. of Robert Pavone (“Pavone Aff.”)) ¶ 7.), Pavone drafted the felony complaint based on information, he received from Hicks, and Hicks authored the incident report and ,“voucher[ed] the items seized as part of the inventory of [Dean-da’s] vehicle.” (Defs.’ 56.1 ¶ 35; Pavone Aff. ¶ 7.) Deanda declined to give Pavone a statement concerning the circumstances of her arrest. (Defs.’ 56.1 ¶ 36; Pavone Aff. ¶ 26.) •
Plaintiff states that “Hicks did not disclose to ... Pavone that both Plaintiff and her sister told him that the pills belonged to Fontanette, that [Fontanette] had a prescription for the pills, that she had left
On the date of the incident, Fontanette arrived at the police headquarters with Monique Sutton (“Sutton”) to pick up the children.' (Defs.’ 56.1 ¶ 42; Fontanette Tr. 33-34.) Plaintiff claims that Fontanette told a police officer through the glass partition that she had the prescription bottle with her to prove that the pills belonged to her, but that the officer was not interested. (PL’s 56.1 ¶ 42—A; Fontanette Tr. 34-36.) Although Plaintiff alleges in her Third Amended Complaint that Thomas was the officer at the desk, (TAC ¶ 20), Fontanette testified that she cannot identify with certainty the officer that she allegedly spoke with at the police headquarters, (Defs.’ 56.1 ¶ 47; Fontanette Tr. 34-35). Specifically, Fontanette does not recall-asking for a name-of the officer, did not address any officer in particular at the window of the police headquarters, and is unable to describe the officer to whom she requested to speak with Hicks and to provide her prescription bottle and identification. (Defs.’ 56.1 ¶ 47; Fontanette Tr. 34-35.) Fontanette testified that she remembered speaking to two officers, one male and one female. (Fontanette Tr. 34.) On the date of the incident, there were two other desk officers on duty with Thomas during the same time period that he was assigned as desk officer, and at various times during the day, other officers were also at the three desks behind the window at the headquarters. (Defs.’ 56.1 ¶48; Thomas Aff. ¶¶ 7-8.) Thomas does not recall having a conversation with Fontanette. (Defs.’56.1 ¶ 46; Thomas Aff. ¶ 21.) Ca-porale released the two children to Fon-tanette and Sutton, but did not have a conversation with Fontanette. (Defs.’ 56.1 ¶ 43; Caporale Aff. ¶ 23.) Neither Hicks nor Pavone had a conversation with Fon-tanette. (Defs.’ 56.1 ¶¶ 44-45; Hicks Aff. ¶ 30; Pavone Aff. ¶ 31.) Neither Caporale, Pavone, nor Thomas was advised by any
Caporale took Deanda to the “White Plains Court for her arraignment[,] ... and [Deanda] was subsequently taken to the Westchester County Jail.” (Defs.’ 56.1 ¶ 51; Caporale Aff. ¶¶ 26-28.) On June 25, 2012, at the request of the district attorney, Fontanette authored a sworn written statement at the police headquarters regarding the circumstances of Dean-da’s arrest and her ownership of the oxy-codone pills. (Defs.’ 56.1 IF 52; Chapman-Langrin Deck Ex. L.) Police Officer Gras-so took photographs of Fontanetté’s prescription pill bottle containing the oxyco-done pills and Deanda’s prescription for the Tramadol pills at the headquarters. (Defs.’ 56.1 ¶ 52; Chapman-Langrin Deck Ex. U.) On July 26, 2012, the Westchester County District Attorney withdrew the criminal case against Plaintiff, after receiving the information from Fontanette and from Deanda’s attorney regarding, among other things, the identity of the pharmacist that dispensed the oxycodone pills to Fon-tanette. (Defs.’ 56.1 ¶ 53.)
B. Procedural History
Plaintiff filed the initial Complaint on February 22, 2013. ‘ (Dkt.' No. 1.) Plaintiff filed a First Amended Complaint on July 11, 2013, (Dkt. No. 10), a Second Amended Complaint on November 20, 2013, (Dkt. No. 16), and a Third Amended Complaint (“TAC”) on January 6, 2014, (Dkt. No. 20). The TAC includes several claims based on the stop of Deanda’s vehicle, Deanda’s arrest, and the events thereafter. Specifically, Count One alleges violations of the Fourth and Fourteenth Amendments; Count Two alleges that Defendants maliciously prosecuted Deanda in violation of the Fifth, Sixth, and Fourteenth Amendments, Article' I, Section 6 of the New York State Constitution, and New York common law; Count Three alleges that Defendants violated Plaintiffs rights to be free from abuse of- process under state and federal law; Count Four alleges that Defendants violated Plaintiffs federal and state due process rights; Count Five alleges that Defendants conspired to deprive Plaintiff of her rights under the Fifth, Sixth, and Fourteenth Amendments; Count Six alleges that Defendants published defamatory and false statements regarding Plaintiff; and Count Seven alleges Defendants engaged in shocking and outrageous conduct that caused Plaintiff emotional distress. (Id. ¶¶ 52-85.) Defendants filed an Answer to the TAC on February 7, 2014. (Dkt. No. 21.)
Pursuant to a Scheduling Order dated June 16, 2014, (Dkt. No. 32), and subsequent extensions of time, Plaintiff filed her Spoliation Motion and. accompanying papers on October 10, 2014, (Dkt.Nos.37, 38, 40, 42), and Defendants filed their opposition papers to the Spoliation Motion on the same day, (Dkt.Nos.39, 41). Defendants filed their Motion For Summary Judgment and accompanying papers on October 17, 2014, (Dkt.Nos.45-48, 51-53), and Plaintiff filed her opposition papers the same day, (Dkt.Nos.49-50). On July '29, 2015, the Court issued an Order providing Plaintiff with an opportunity, pursuant to Federal Rule of Civil Procedure 56(e), to point to evidence supporting the claim in her Local Rule 56.1 Statement that Hicks could not see the color of the pills because the pill bottle was amber and not transparent. (Order (Dkt. No. 56).) Plaintiff responded to the Court’s July 29, 2015 Order by letter dated August 6, 2015, (Dkt. No. 58), and Defendants filed a response by letter dated August 12, 2015, (Dkt. No. 61). On August 25, 2015, the Court issued an Order requesting supplemental briefing from both Parties on Plaintiffs claims for defamation and intentional infliction of.emo
II. Discussion
A. Spoliation Motion
1. Applicable Law
Spoliation is defined as “the destruction or significant alteration of evidence, or the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation.” Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 107 (2d Cir.2001) (internal quotation marks omitted); see also West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir.1999) (same). “The spoliation of evidence germane ‘to proof of an issue at trial can' support an inference that the evidence would have been unfavorable to the party responsible for its destruction.’” Byrnie, 243 F.3d at 107 (quoting Kronisch v. United States, 150 F.3d 112, 126 (2d Cir.1998)). Sanctions for spoliation of evidence serve to “(1) deter[]'parties from destroying evidence; (2) plac[e] tbe risk of an erroneous evaluation of the content of the destroyed evidence on the party responsible for its destruction; and (3) restor[e] the party harmed by the loss of evidence helpful to its case to where the party would have been in the absence of spoliation.” Id. (internal quotation marks omitted). “[Determining the proper sanction to impose for spoliation is ‘confined to the sound discretion of the trial judge ... and is assessed on a case-by-case basis.’ ” Adorno v. Port Auth., 258 F.R.D. 217, 227 (S.D.N.Y.2009) (quoting Fujitsu Ltd. v. Fed. Exp. Corp., 247 F.3d 423, 436 (2d Cir.2001)).
“[A], party seeking- an adverse inference instruction based on the destruction of evidence must establish (1) that the party having control over the evidence had an obligation to preserve it at the time it was destroyed; (2) that .the records were destroyed with a culpable state of mind; and (3) that the destroyed evidence was relevant to'the party’s claim or defense such that a reasonable trier of fact could find that it would support that claim or defense.” Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 108 (2d Cir.2002) (internal quotation marks omitted); see also Curcio v. Roosevelt Union Free Sch. Dist., 283 F.R.D. 102, 107 (E.D.N.Y.2012) (same). As to the first element, an obligation to preserve the evidence at the time it was destroyed “usually arises when a party has notice that the evidence is relevant to litigation ... but also on occasion in other circumstances, as for example when the party should have known that the evidence may be relevant to future litigation.” Byrnie, 243 F.3d at 107 (internal quotation marks omitted); see also Kronisch, 150 F.3d at 126 (same). “While a litigant is under no duty to keep or retain every.document in its possession, once a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a litigation hold to ensure the preservation of relevant documents.” Adorno, 258 F.R.D. at 227 (alterations and internal quotation marks omitted). For the purposes of the first prong, “[r]elevant documents are those that a party should reasonably know are, relevant , in the action, reasonably calculated to lead to the discovery of admissible evidence, reasonably likely to be requested during discovery and/or are the subject, of a pending discovery request.” Id. (alterations and internal quotation marks omitted).
As to the second element, “at times [the Second Circuit has] required a party to have--intentionally destroyed evidence; at other times [the Second Circuit has] required action in bad faith; and at other times [the Second Circuit] has allowed an adverse inference based on gross negligence,” and, accordingly, “a case by case
Finally, as to the third element, “[w]hen evidence is destroyed in bad faith, that fact alone is sufficient to support an inference that the missing evidence would have been favorable to the party seeking sanctions, and therefore relevant.” Treppel v. Biovail Corp., 249 F.R.D. 111, 121 (S.D.N.Y.2008) (citing Residential Funding, 306 F.3d at 109). A finding that a party destroyed the evidence in gross negligence also supports an inference that the evidence would have been relevant. See, e.g., Crawford v. City of New London, No. 11-CV-1371, 2014 WL 2168430, at *4 (D.Conn. May 23, 2014). “By contrast, when the destruction is negligent, relevance must be proven by the party seeking the sanctions.” Id. “[I]n the context of an application for an adverse inference, relevance ‘means something more than sufficiently probative to satisfy Rule 401 of the Federal Rules of Evidence.’ ” Curcio, 283 F.R.D. at 112 (quoting Residential Funding, 306 F.3d at 108-09). Instead, “the moving party must show through extrinsic evidence that the destroyed evidence would have been favorable to [his or her] case.” Id.
2. Application
Plaintiff seeks “an adverse inference jury instruction based upon ... Hicks’[s] failure, to preserve the video/audio recording made from his.patrol car during, his stop, questioning[,]. and arrest of Plaintiff on May 28, 2012.” (PL’s Mem. of Law in Supp. of Mot. For an Adverse Inference Jury Instruction (“PL’s Spoliation Mem.”) 1 (Dkt. No. 40).) During his deposition, Hicks testified ' that his vehicle was equipped' -with a video recorder, that the recorder that was operational at the time of Deanda’s arrest, and that the recorder captured both audio and video of the exchange at the scene of'the stop and arrest. (Hicks Tr. ’8-9; see also Aff, of William I. Aronwald (“Aronwald’Aff.”) ¶6 (Dkt. No. 38) (explaining same).)
Turning to the first element; Plaintiff argues that the duty to‘ preserve the video/audio recording began at the earliest on M'ay 28, 2012, the date of Plaintiffs arrest, and at the latest on July 27, 2012, the date of Plaintiffs Notice of Claim, which indicated’ that Plaintiff was asserting claims against Hicks. (PL’s Spoliation Mem. 2.) Defendants do not dispute these dates. Indeed, Hicks testified that on the date of Plaintiffs arrest he understood that the reason that the video was made was for possible use in connection with any litigation arising from the stop, and arrest. (Hicks Tr. 10.), Moreover,: Hicks testified that-unless someone designates the video/audio recording as evidence, it is automatically- removed from the County Police database six months from the date of the arrest. (Id. at 8-11.)- Accordingly, pursuant to .this policy, the evidence would not have been automatically removed from the database until November 28, 2012, six months after Plaintiffs arrest and four months after Plaintiff filed her Notice of Claim.
[The video/audio recording] was not saved or requested by the District. Attorney prosecuting the case. As per my general orders, I’m not required to save said video. After six months the video is then removed from our database and no longer available because it was not requested.
(Id. at 9; see also id. at 18 (“I’m not required by my general orders to save such video”).) While Hicks acknowledged that it was his understanding that the reason the video/audio recordings were made is for possible use in connection with any litigation arising from incidents that the recordings captured, (id. at 10), he stated that he did not know if the district attorney or anyone else requested the video/audio recording, (id. at 11). This testimony suggests that the district attorney, not Hicks, had the responsibility to preserve the evidence. It at least suggests that this was Hicks’s perception. Moreover, Plaintiff points to nothing in the record, and the Court has not found anything in Hicks’s testimony, that suggests that Hicks had the video/audio recording in his control when the duty to preserve it arose. Instead, Hicks testified that the video/audio recording would have been “stored in storage for six months” in the “database at headquarters.” (Id. at 11-12.) Courts have held that an adverse inference instruction is not appropriate where the defendants in question did not have “any control over the [relevant] recordings, any duty to maintain them, or were in any way involved in the failure to preserve them.” Grant v. Salius, No. 09-CV-21, 2011 WL 5826041, at *2 (D.Conn. Nov. 18, 2011); see also Holloway v. Dep’t of Corr., No. 11-CV-1290, 2013 WL 628648, at *6 (D.Conn. Feb. 20, 2013) (“[T]he fact that the video tape was not preserved without more is insufficient to establish that any particular defendant had both control over and a duty to preserve the video tape at the time it was destroyed[,] much less a culpable state of mind.”); Field Day, LLC v. County of Suffolk, No. 04-CV-2202, 2010 WL 1286622, at *13 (E.D.N.Y. Mar. 25, 2010) (refusing to give an adverse inference charge where the plaintiffs did not show that the individual defendants, as opposed to the county defendant, actually spoliated evidence); cf. Thomas v. Kelly, 903 F.Supp.2d 237, 259 & n. 10 (S.D.N.Y.2012) (explaining that it was appropriate to hold the individual officer, as well as the city defendant, responsible for “failing to preserve evidence he at one time controlled and had a duty to maintain” when the officer had the evidence “within his control when the duty to preserve it arose,” which was when the plaintiff filed a complaint the next day). It is at the very least unclear, then, that Hicks, as opposed to another person, department, or entity such as the district attorney or Westchester County, had a duty to preserve the video/audio recording. ■
Assuming that Hicks had a duty to preserve the video/audio recording, and thus, turning to the second element, “intentional destruction of [evidence] in the face of a duty to retain th[e] [evidence] is adequate” to support an adverse inference and the fact that a defendant “acted with a culpable state of mind.” Byrnie, 243 F.3d at 109. Plaintiff points to nothing in the record to show that Hicks intended to destroy the video/audio recording, and, therefore, a finding of bad faith is not warranted. While “[s]ome courts have categorically held that ‘the failure to implement a litigation hold at the outset of litigation amounts to gross negligence,’ ” Curcio, 283 F.R.D. at 111 (quoting Toussie v. County of Suffolk, No. 01-CV-6716, 2007 WL 4565160, at *8 (E.D.N.Y. Dec. 21, 2007)), the Second Circuit has made clear that “a failure to institute a litigation hold
Nonetheless, under the third element, Plaintiffs request for an adverse inference is not warranted. “[T]o obtain an adverse inference instruction, a party must establish that the unavailable evidence is ‘relevant’ to its claims or defenses.” Residential Funding, 306 F.3d at 108. Again, “‘relevant’ in this context means something more than sufficiently probative to satisfy Rule 401 of the Federal Rules of Evidence,” and, instead, “the party seeking the adverse inference must adduce sufficient evidence from which a reasonable trier of fact could infer that the destroyed or unavailable evidence would have been of the nature alleged by the party affected by its destruction.” Id. at 109 (alterations and internal quotation marks omitted). The Court emphasizes that in this context, it must “take care not to hold [Plaintiff] to too strict a standard of proof regarding the likely contents of the destroyed or unavailable evidence because doing so would subvert the purposes of the adverse inference and would allow parties who have destroyed evidence to profit from that destruction.” Id. (alterations and internal quotation marks omitted). Further, “[w]here a party destroys evidence in bad faith, that bad faith alone is sufficient circumstantial evidence from which a reasonable trier of'fact could conclude that the missing evidence was unfavorable to that party.” Id. Indeed, where a defendant has acted willfully in'failing to preserve evidence, a plaintiff “need not show that the evidence it seeks is likely relevant to its claim.” Chevron Corp. v. Donziger, 296 F.R.D. 168, 223 (S.D.N.Y.2013); see also Curcio, 283 F.R.D. at 112 (“In certain limited circumstances, relevance may be inferred if the spoliator is shown to have a sufficiently culpable state of mind.” (internal quotation marks omitted)). Nevertheless, a finding of gross negligence—the willful intent that the Court assumes Hicks had here—does not require an adverse inference. See Chin, 685 F.3d at 162 (“[A] finding of gross negligence merely permits, rather than requires, a district court to give an adverse inference instruction.”); Residential Funding, 306 F.3d at 108 (explaining that “where a party seeking an adverse inference adduces evidence that its opponent destroyed potential evidence (or otherwise rendered it unavailable) in bad faith or through gross negligence (satisfying the culpable state of mind factor), that same evidence of the opponent’s state of mind will frequently also be sufficient to permit a jury to conclude that the missing evidence is favorable to, the party (satisfying the ‘relevance’ factor)” (emphasis added) (some internal quotation marks omitted)); Hawley v. Mphasis Corp., 302 F.R.D. 37, 48 (S.D.N.Y.2014) (“While prejudice may be presumed upon a . showing of bad faith or gross negligence, it is a rebuttable presumption, and the spoliating party has an opportunity to demonstrate a lack of prejudice by, for. example, demonstrating that the innocent party had access to the evidence alleged to have been destroyed or that the evidence would not support the innocent party’s claims or defenses.”); Mastr Adjustable Rate Mortg. Tr. 2006-0A2 v. UBS Real Estate Secs. Inc., 295 F.R.D. 77, 87 (S.D.N.Y.2013) (same).
Here, Defendants argue that the video/audio recording lacks relevance to Plaintiffs claims. Specifically, Defendants contend that the video/audio recording would “not assist [P]laintiff in establishing
The Court agrees with Plaintiff that the video/audio recording might have been the best evidence of the conversations ‘ that occurred between Hicks and Plaintiff and between Hicks . and Fontanette. Nevertheless, for the reasons explained below, Defendants are correct that what is allegedly captured on the video/audio recording from Plaintiffs perspective is not relevant to Plaintiffs claims and that -its contents would not have ultimately been helpful to Plaintiffs, case. In other words, even accepting Plaintiffs version of events as true, which Plaintiff argues would have been captured by the video/audio recording, the conversations that Plaintiff contends occurred do not affect the analysis of the claims here, as explained below. Thus, the adverse inference would not “plac[e] the risk of an erroneous evaluation of the content of the destroyed evidence on the party responsible for its destruction” or “restor[e] [Plaintiff] ... to where [she] would have been in the absence of spoliation,” Byrnie, 243 F.3d at 107, because the Court assumes, for the purpose of deciding the Motion, the accuracy of Plaintiffs version- of events. Accordingly, no adverse inference is warranted. See Simoes v. Target Corp., No. 11-CV-2032, 2013 WL 2948083, at *7 (E.D.N.Y. June 14, 2013) (explaining that because it was not clear how the surveillance video would have been favorable to the plaintiffs negligence claim in light of “the record evidence identified by [the] plaintiff,” the “relevance element” was not satisfied, and, therefore, the plaintiffs request for an adverse inference failed); Port Auth. Police Asian Jade Soc. of N.Y. & N.J. Inc. v. Port Auth., 601 F.Supp.2d 566, 570-71 (S.D.N.Y.2009) (“Because an adverse inference instruction is not required to restore the plaintiffs to the position they would occupy but for the spoliation, an adverse inference instruction is not warranted.”); Zubulake v. UBS Warburg, LLC, 220 F.R.D. 212, 222 (S.D.N.Y.2003) (“In sum, although [the defendant] had a duty to preserve all of the backup tapes at issue, and destroyed them with the requisite culpability, [the plaintiff] cannot demonstrate that the lost evidence would have supported her claims. Under the circumstances, it would be inappropriate to give an adverse inference instruction to the jury.”).
In any event, even if the Court were to grant the adverse inference, “an adverse
B. Summary Judgment Motion
1. Standard of Review
Summary judgment shall be granted where 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 Psihoyos v. John Wiley & Sons, Inc., 748 F.3d 120, 123-24 (2d Cir.2014) (same). “In determining whether summary judgment is appropriate,” a court must “construe the facts in the light most favorable to the non-moving party and ... resolve all ambiguities and draw all reasonable inferences against the movant.” Brod v. Omya, Inc., 653 F.3d 156, 164 (2d Cir.2011) (internal quotation marks omitted); see also Borough of Upper Saddle River v. Rockland Cty. Sewer Dist. No. 1, 16 F.Supp.3d 294, 314 (S.D.N.Y.2014) (same). Additionally, “[i]t is the movant’s burden to show that no genuine factual dispute exists.” Vt. Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir.2004); see also Aurora Comm. Corp. v. Approved Funding Corp., No. 13-CV-230, 2014 WL 1386633, at *2 (S.D.N.Y. Apr. 9, 2014) (same). “However, when the burden of proof at trial would fall on the nonmoving party, it ordinarily is sufficient for the movant to point to a lack of evidence to go to the trier of fact on an essential element of the nonmovant’s claim,” in which case “the nonmoving party must come forward with admissible evidence sufficient to raise a genuine issue of fact for trial in order to. avoid summary judgment.” CILP Assocs., L.P. v. PriceWaterhouse Coopers LLP, 735 F.3d 114, 123 (2d Cir.2013) (alterations and internal quotation marks omitted). Further, “[t]o survive a [summary judgment] motion ..., [a nonmovant] need[s], to create more than a ‘metaphysical’ possibility that his allegations were correct; he need[s] to ‘come forward with specific facts showing that 'there is a genuine issue for trial,’ ” Wrobel v. County of Erie, 692 F.3d 22, 30 (2d Cir.2012) (emphasis omitted) (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)), and “cannot rely oh the mere allegations or denials contained in the pleadings,” Walker v. City of New York, No. 11-CV-2941, 2014 WL 1244778, at *5 (S.D.N.Y.
“On a motion for summary judgment, a fact is material if it might affect the outcome of the suit under the governing lav?.” Royal Crown Day Care LLC v. Dep’t of Health & Mental Hygiene, 746 F.3d 538, 544 (2d Cir.2014) (internal quotation marks omitted). At summary judgment, “[t]he role of the court is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried.” Brod, 653 F.3d at 164 (internal quotation marks omitted); see also In re Methyl Tertiary Butyl Ether (“MTBE”) Prods. Liab. Litig., MDL No. 1358, No. M21-88, 2014 WL 840955, at *2 (S.D.N.Y. Mar. 3, 2014) (same). Thus, a court’s goal should be “ ‘to isolate and dispose of factually 'unsupported claims.’” Geneva Pharm. Tech. Corp. v. Barr Labs. Inc., 386 F.3d 485, 495 (2d Cir.2004) (quoting Celotex Corp. v. Ca-trett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)); see also Schatzki v. Weiser Capital Mgmt., LLC, No. 10-CV-4685, 2013 WL 6189465, at *14 (S.D.N.Y. Nov. 26, 2013) (same).
2. Defendants Caporale, Pavone, and Thomas
Plaintiff concedes that, “[bjased upon the pre-trial discovery, notably the depositions of the parties and non-party witness Paula Fontanette, Plaintiff has no objection to summary judgment in favor of Defendants Angela Caporale, Robert Pavone, and William Thomas.” (Pl.’s Mem. of Law in Opp’n to Defs.’ Mot. For Summ. J. (“PL’s Mem.”) 1 (Dkt. No. 49).) Accordingly, the Court grants Defendants’ Motion for Summary Judgment as to these Defendants. See Torres-Sylvan v. Am. Civil Liberties Union, No. 01-CV-343, 2005 WL 1719788, at *1 n. 1 (S.D.N.Y. July 22, 2005) (dismissing the plaintiffs claims for intentional infliction of emotional distress-where the plaintiff conceded in her opposition to summary judgment that the claim should be' dismissed); Valdez v. MGS Realty & Mgmt. Corp., No. 96-CV-5122, 2000 WL 511024, at *2 (S.D.N.Y. Apr. 28, 2000) (granting the defendant’s motion for summary judgment with respect to claims that the plaintiffs conceded in their opposition papers that they were not able to prove).
3. Qualified Immunity
Hicks invokes qualified immunity as to all of Plaintiffs claims. “The doctrine of qualified immunity protects government officials from suit if their conduct does not violate clearly established statutory or- constitutional rights of which a reasonable person would have known.” Gonzalez v. City of Schenectady, 728 F.3d 149, 154 (2d Cir.2013) (internal quotation marks omitted); see also Lee v. McCue, No. 04-CV-6077, 2007 WL 2230100, at *2 (S.D.N.Y. July 25, 2007) (same). “This is a doctrine that seeks to balance the twin facts that civil actions for damages may offer the only realistic avenue for vindication of constitutional guarantees and that such suits nevertheless can entail substantial social costs, including the risk that fear of personal monetary liability arid harassing litigation will unduly inhibit officials in the discharge of their duties.” Jones v. Parmley, 465 F.3d 46, 55 (2d Cir.2006) (internal quotation marks omitted). As to the latter fact, “the Supreme Court has described the ‘central purpose’ of qualified immunity as preventing threats of liability that would be ‘potentially disabling’ to officials.” Amore v. Novarro, 624 F.3d 522, 529-530 (2d Cir.2010) (quoting Elder v. Holloway, 510 U.S. 510, 514, 114 S.Ct.
To determine whether a defendant is entitled to qualified immunity, á court assesses: “(1) whether a plaintiff has shown facts making out a violation of a constitutional right; (2) if so, whether that right was clearly established; and (3) even if the right was clearly established, whether it was objectively reasonable for the officer to believe the conduct at issue was lawful.” Gonzalez, 728 F.3d at 154 (internal quotation marks omitted). “The objective reasonableness test is met—and the defendant is entitled to immunity—if officers of reasonable competence could disagree on the legality of the defendant’s actions.” Rohman v. N.Y.C. Transit Auth., 215 F.3d 208, 216 (2d Cir.2000) (internal quotation marks omitted). Accordingly, “if the court determines that the only conclusion a rational jury could reach is that reasonable officers would disagree about the legality of the defendant’^ conduct under the circumstances, summary judgment for the officer is appropriate.” Id. (alterations and internal quotation marks omitted). The Court thus turns to the merits of Plaintiffs constitutional claims, analyzing them through the lens of qualified immunity.
a. Unreasonable Search and Seizure
In the First Cause of Action, Plaintiff alleges that Hicks violated her right to be secure in her person against unreasonable searches and seizures under the Fourth and Fourteenth Amendments. (TAC ¶¶ 52-56.) The Fourth Amendment prohibits “unreasonable searches and seizures.” U.S. Const. amend. IV. “The temporary detention of a person when the police have stopped her vehicle, regardless of its brevity or limited ihtrusiveness, constitutes a seizure for Fourth Amendment purposes, and thus must not be unreasonable.” Gilles v. Repicky, 511 F.3d 239, 244-45 (2d Cir.2007); see also Diamondstone v. Macaluso, 148 F.3d 113, 123 (2d Cir.1998) (same); United States v. Scopo, 19 F.3d 777, 781 (2d Cir.1994) (“An ordinary traffic stop constitutes a limited seizure within the meaning of the Fourth and Fourteenth Amendments.” (internal quotation marks omitted)). “Accordingly, such stops must be justified by probable cause or a reasonable suspicion based on specific and articulable facts of. unlawful conduct.” Id. (internal quotation marks omitted).
“Traffic stops are presumptively reasonable under the Fourth Amendment if the officer has probable cause to believe that a traffic infraction has occurred.” United States v. Foreste, 780 F.3d 518, 523 (2d Cir.2015); see also United States v. Harrell, 268 F.3d 141, 148 (2d Cir.2001) (“As- a general matter, the- decision' to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has- occurred.” (internal quotation marks omitted)); United States v. Dhinsa, 171 F.3d 721, 725 (2d Cir.1999) (explaining that “because ... the officers observed a traffic violation, an objective circumstance [existed] that justifie[d] a traffic stop”); Scopo, 19 F.3d at 781 (holding that “[although [the driver’s] traffic violation, failure to signal while changing lanes[,] ... was minor, the officers, acted within their authority in stopping [the driver] for the violation”).
There is no-dispute that on the date of the stop Hicks observed Deanda speeding on the Bronx River Parkway. (Defs.’ 56.1 ¶¶ 4-5; Pl.’s 56.1 ¶¶4-5.) Accordingly, as Plaintiff concedes, Hicks’s initial stop was reasonable based on his
The Parties disagree, however, as to whether the third, element was satisfied—rspecifically, whether the potentially incriminating nature of the pill bottle was readily apparent. “[U]nder the- plain view doctrine, the incriminating nature of an object is generally deemed readily apparent where law enforcement have reason to believe it is or contains evidence of a crime.” Delva, 13 F.Supp.3d at 276 (internal quotation marks omitted). However, “[i]t is not necessary that an officer know with certainty thát an object seized is or contains evidence of a crime at the moment of seizure; it is enough that there be probable cause to associate the object with criminal activity.” Id. In other words, “[f]or an item’s criminal nature to be ‘immediately apparent,’ a reasonable agent must conclude that there is ‘probable cause’ to believe that the item constitutes evidence or fruit of a crime without conducting some further search of the object.” United States v. Echevarria, 692 F.Supp.2d 322, 332 (S.D.N.Y.2010) (quoting United States v. Grubczak, 793 F.2d 458, 461 (2d Cir.1986)), “Whether an object is perceived as evidence or containing evidence of a crime depends on the assessment of the law enforcement officer at the scene.” Delva, 13 F.Supp.3d at 276; see also Echevarria, 692 F.Supp.2d at 332 (same); United States v. Benn, 441 F.Supp. 1268, 1272 (E.D.N.Y.1977) (“The question [of whether an object’s criminality is immediately apparent] must not be decided by the mere subjective views or inarticulate hunches of the police official but by an objective standard.”).
As relevant here, Section 3345 of New York’s Public Health. Law provides that “[e]xcept for the purpose of current use by the person ... for whom such substance was prescribed or dispensed, it shall be unlawful for an ultimate user of controlled substances to possess such substance .outside of the original container in which it
To begin, .the Court notes that Hicks did not have information that Plaintiff was in unlawful possession of a controlled substance at the time of the traffic stop. Moreover, there were no other manifested facts, other than the observed pill bottle, that suggested Plaintiff was in possession of a controlled substance. Accordingly, this is not a case where an otherwise benign object was or became significant in the context of a permissible search. Cf. Delva, 13 F.Supp.3d at 276 (explaining that “[o]rdinary, everyday objects such as cell phones, laptops, and cameras may take on a different character depending on the context in which they are found”); United States v. Rudaj, 390 F.Supp.2d 395, 403 (S.D.N.Y.2005) (explaining that the “incriminating character of the. keys was immediately apparent to the agents” because “[t]he seizing. agent had been informed prior to the arrest. that [the defendant] was believed to be-involved in illegal -gambling” and “further recognized the keys on the dresser as matching the type of lock commonly used to secure gambling ma-ehines[,]” and the keys were discovered “in the immediate vicinity of large amounts of cash”).
Even so, pursuant to 'the plain view doctrine, the illegality of the pill bottle was “immediately apparent” if Hicks had “reason to believe it [was] or contained] evidence of a crime,” or was contraband in and of itself. Delva, 13 F.Supp.3d at 276. In his deposition testimony, Hicks stated that from his vantage point, he observed that the pills were blue, even though the pill bottle was amber, and that, because the bottle was transparent, he was able to see that the bottle did not have a label. (Hicks Tr. 87-88.) In her Statement pursuant to Local Rule 56.1 of the Local Rules of the United States District Courts for the Southern and Eastern Districts of New York (“Local Rule 56.1”), Deanda disputes the possibility that Hicks could see that the pills were blue by looking at the amber colored pill bottle. (Pl.’s 56.1 ¶ 8-A.) Moreover, Deanda disputes that the “unlabeled pill bottle was transparent.” (PL’s 56.1 ¶ 10.) However, De-anda points to nothing in the record to support these assertions. Instead, after these claims, Plaintiff cités only to the relevant portions of Hicks’s deposition testimony, in which Hicks testified that he was able to see that the pills were blue and that the bottle did not have a label.
Rule 56(c) of the Federal Rules of Civil Procedure states:
A party asserting a fact ... is genuinely disputed must support this assertion by (A) citing to particular parts of materi*564 als in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for the purposes of the motion only), admissions, interrogatory answers, or other materials; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.
Federal Rule 56(e), in turn, provides that “[i]f a party fails to properly support an assertion of fact ... the court may (1) give an opportunity to properly support ... the fact; (2) consider the fact undisputed for the purposes of the motion; (3) grant summary judgment if the motion and supporting materials ... show that the movant is entitled to it; or (4) issue any other appropriate order.” Similarly, Local Rule 56.1(d) requires that each assertion made by the movant or opponent in their 56.1 Statements “be followed by citation to evidence which would [>e admissible!)]” Moreover, if a party fails to properly support a statement by an adequate citation to the record, the Court may properly disregard that assertion. See Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 73-74 (2d Cir.2001) (noting that “district courts in the Southern and Eastern Districts of New York have interpreted current Local Rule 56.1 to provide that where there are no citations or where the cited materials do not support the factual assertions in the [statements, the [c]ourt is free to disregard the assertion” and collecting cases (brackets and internal quotation marks omitted)).
In its July 29, 2015 Order, the Court, pursuant to its discretion under Federal Rule of Civil Procedure 56(e), and in an abundance of caution, provided Plaintiff an opportunity to support these assertions with citations to the record, before it “permissibly disregarded] Plaintiffs statements that Hicks could not see the color of the pills because the bottle was amber and the bottle was not transparent.” (Order 4-5 (Dkt. No. 56).) In response, Plaintiff conceded that “there is nothing in the record supporting [her] claim that Hicks could not see the color of the pills because the bottle was amber and the bottle not transparent.” (Letter from William I. Ar-onwald to Court (Aug. 6, 2015) (“PL’s Aug. 6 Letter”) (Dkt. No. 58).) Nevertheless, Plaintiff indicated that she “does dispute Hicks’[s] claim that he observed blue pills in the amber bottle” and explained that “[t]he bottle is in Plaintiffs possession and will be available at trial for the jury’s examination.” (Id.) This belated and unverified assertion is insufficient to create a material issue of fact as to what Hicks observed through, the pill bottle for the following reasons. First, as discussed above, Plaintiff cannot rely on her assertion in her Local 56.1 Statement to create a material issue of fact in the absence record evidence to support her claim. Plaintiffs counsel concedes that there is no such evidence in the record, including any testimony from Plaintiff. Indeed, the Court has found nothing that disputes Hicks’s claim of what he observed or could observe. As relevant,- during Deanda’s deposition, the following exchange occurred:
Q: Did there come a time when [Hicks] observed something in your purse?
A: Yes.
Q: When he observed that, did he ask to see it?
A: Yes.
Q: Did he use the words, “May I see that?” Let me rephrase it. What is it that he observed, to your knowledge?
A: When I opened my purse, he said you—what did he say? He said, “What are those pills?” That’s what he asked. He said “What are those pills? What’s in the bottle?” I told him—I don’t think I said anything immediately. He said “Those are OxyContin. Those are Oxy-*565 Contin pills.' Let me see that bottle.” So I gave it to him.
Q: You gave him the bottle?
A: Yes.
(Deanda Tr. 19-20.) Similarly, at the 50-h hearing, Deanda stated that “[w]hen [she] went into [her] purse to get the license [Hicks] saw [she] had a bunch of stuff in there and he saw [that she] had pills. He questioned [her] about the pills and [she] told him—he said, Can I see those? [She] said sure. [She] gave it [sic] to him.” (Deanda 50-h Tr. 20.) Furthermore, while Deanda could have offered a declaration refuting Hicks’s claim based on her knowledge of the appearance of the pill bottle or its position in the purse, there was no such declaration submitted during the course of discovery. In short, throughout the course of discovery, Deanda did not testify, state, or otherwise declare that Hicks could not see the pill bottle or its contents, or that it was not transparent.
Plaintiffs belated claim that the pill bottle is in her “possession and will be available at trial for the jury’s examination,” (Pl.’s Aug. 6 Letter 1), is problematic. Defendants state in a letter dated August 12, 2015 that Plaintiff “ha[d] not before [then] made [the pill] bottle available to [Defendants.” (Letter from Taryn A. Chapman-Langrin to Court (Aug. 12, 2015) (“Defs.’ Aug. 15 Letter”) 1 (Dkt. No. 61).) Plaintiff does not explain why the pill bottle was not produced in discovery.’ Additionally, Defendants point out that Fontanette had testified on April 7, 2013 that the police department never returned the seized pill bottle," (see Fontanette Tr. 56-58), even though documents in the record supported that the unlabeled pill bottle was returned on February 18, 2013, (see Reply Decl. of Taryn A. Chapman-Langrin in Supp. of Mot. For Summ. J. & in Opp’n of Pl.’s Mot. For Adverse Inference Ex. A (Dkt. No. 53).) (Defs.’ Aug. 15 Letter 1). Defendants highlighted this, inconsistency in their briefing, (see Defs.’ Reply Mem. 5), and Plaintiff did not respond. Moreover, Plaintiff does not clarify this inconsistency in the August 6, 2015 letter. Finally, it is worth noting that Plaintiff failed to submit a photograph of the pill bottle or an affidavit supporting that it was in her possession with the August 6, 2015 letter. Because Plaintiff failed to produce the pill bottle in discovery and offers no explanation for her failure to produce it or, for that matter, what the pill bottle would show or how it would support her claim that Hicks could not observe the pills or the alleged fact that the bottle was unlabeled, Plaintiff cannot rely on the pill bottle now to create an issue of material fact. In short, there is no admissible evidence that supports Plaintiffs claim that Hicks could not see the color of the phis or that Hicks could not see that the bottle was unlabeled. The Court simply cannot declare that a material dispute of fact exists without evidence in the record supporting the dispute.
The Court, then, properly disregards Plaintiffs attempt to dispute that Hicks could not see the color of the pills through the bottle and that the bottle was not transparent, and accepts Hicks’s claims
Based on Hicks’s deposition testimony, which is uncontested by any Other evidence in the record, and in light .of the relevant New York laws explained above, the Court concludes that there is no material dispute of fact as to whether the incriminating nature of the pills and pill bottle was readily apparent to Hicks. From his vantage point, Hicks observed the pills were blue and observed that the pill bottle did not have a label. (Hicks Tr. 87-88.) Hicks also testified that “[t]hrough [his] training and experience as a police officer, [he] observed th[e] pills and immediately identified them as [o]xy-codone hydrochloride.” (Id. at 88-89.) In particular, Hicks had received a drug recognition course from the Dutchess County Sheriffs Department, in which he was trained on how to identify controlled substances like oxycodone. (Id. at 66-68.) Béeause New York law makes it unlawful for a person, • including the ultimáte user, to possess a controlled substance outside of its original container and requires that original container to include a label, Hicks’s identification of the pills as oxyco-done and his observation that the pills were in an unlabeled bottle made the incriminating nature of the pills and the bottle readily apparent. Under the plain view doctrine, then, Hicks did not violate Plaintiffs Fourth Amendment rights by seizing the pill bottle.
Moreover, to the extent that Plaintiff challenges the seizure of her person in the traffic stop, this claim fails. “The law is settled that in Fourth Amendment terns a traffic stop entails a seizure of the driver even though the purpose of the stop is limited and the resulting detention quite brief.” Brendlin v. California, 551 U.S. 249, 255, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007). “A seizure for a traffic violation justifies a police investigation of that violation[,]” and “the tolerable duration of police inquiries in the traffic-stop context is determined by the seizure’s mission—to address the traffic violation that warranted the stop.” Rodriguez v. United States, — U.S. —, 135 S.Ct. 1609, 1614, 191 L.Ed.2d 492 (2015). “Because addressing the infraction is the purpose of the stop, it may last no longer than necessary to effectuate that purpose,” and, accordingly, “[a]uthority for the seizure ends when tasks tied to the traffic infraction are;—or reasonably should have been— completed.” Id. (brackets and internal quotation marks omitted). As the Second Circuit has explained, the relevant inquiry when a person is questioned by an officer during a traffic stop is whether the officer’s questions “measurably , extended the duration of the stop such that the stop; lawful at its inception, became -unconstitutional.” United States v. Harrison, 606 F.3d 42, 45 (2d Cir.2010) (internal quotation marks omitted).
Again, there is no dispute that Plaintiff was stopped because she was speeding.
b. False Arrest
A “ § 1983 claim for false arrest derives from [the] Fourth Amendment right to remain free from unreasonable seizures, which includes the right to remain free from arrest absent probable cause.” Jaegly v. Couch, 439 F.3d 149, 151 (2d Cir.2006); see also Widget v. Town of Poughkeepsie, No. 12-CV-3459, 2013 WL 1104273, at *4 (S.D.N.Y. Mar. 18, 2013) (same). “In analyzing § 1983 claims for unconstitutional false arrest, [courts] have generally looked to the law of the state in which the arrest occurred.” Jaegly, 439 F.3d at 151 (internal quotation marks omitted); See also Ackerson v. City of White Plains, 702 F.3d 15, 19 (2d Cir.2012) (“A §. 1983 claim for false arrest .., is substantially the same aS a claim for false arrest under New York law.” (internal quotation marks omitted)). Under New York Law, which is applicable here, “an action for false arrest requires that the plaintiff show that ‘(1) the defendant intended to confine him [or her], (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not consent to the confinement[,] and (4) the confinement was not otherwise privileged.’ ” Ackerson, 702 F.3d at 19 (quoting Broughton v. State, 37 N.Y.2d 451, 373 N.Y.S.2d 87, 335 N.E.2d 310, 314 (1975)).
“Probable cause ‘is a complete defense to an action for false arrest’ brought under New York law or § 1983.” Id. (quoting Weyant v. Okst, 101 F.3d 845, 852 (2d Cir.1996)); see also Conte v. County of Nassau, No. 06-CV-4746, 2010 WL
“Even if probable cause to arrest is ultimately found not to have existed, an arresting officer will-still be entitled to qualified immunity from a suit for damages if he can establish that there was ‘arguable probable cause’ to arrest.” Escalera v. Lunn, 361 F.3d 737, 743 (2d Cir.2004). “Arguable probable cause exists if either (a) it was objectively reasonable for the officer to believe that probable cause existed, or (b) officers of reasonable competence could disagree on whether the probable cause test was met.” Walczyk v. Rio, 496 F.3d 139, 163 (2d Cir.2007) (internal ' quotation marks omitted); see also Amore, 624 F.3d at 536 (same). Accordingly, “the analytically distinct test for qualified immunity is more favorable to the officers than the one for probable cause; arguable probable cause will suffice to confer qualified immunity for the arrest.” Escalera, 361 F.3d at 742. (internal quotation marks omitted). Nevertheless, “[arguable probable cause must not be misunderstood to mean almost probable .cause.” Zellner, 494 F.3d at 370 (internal quotation marks omitted).
Here, Hicks claims he had probable cause to arrest Plaintiff pursuant to New York Penal Law. § 220.09, titled Criminal Possession of a Controlled Substance in the Fourth Degree, and various provisions of the New York Public Health Law. (Defs.’ Mem. 8, 10.) Under New York law, “[a] person is guilty of criminal possession of a controlled, substance in the fourth degree when he [or she] knowingly and unlawfully possesses ... a narcotic drug.” N.Y. Penal Law § 220.09(1). To possess, in turn, “means to have physical possession or otherwise to exercise dominion or control over” the relevant substance. Id. § 10.00(8); see also People v. Recore, 56 A.D.3d 1233, 867 N.Y.S.2d 293, 294 (2008) (applying the definition of possession in § 10.00(8) in the context .of analyzing a conviction under . Penal Law § 220.09). “‘Unlawfully' means in violation of article thirty-three., of the public health law.” N.Y. Penal Law § 220.00(2). Section 3304 of the. New York Public Health Law makes it “unlawful for any person to ... possess, have under his [or
It is undisputed that at the time that Hicks arrested Deanda, Deanda told Hicks that' the pills were oxycodone, (Defs.’ 56.1 ¶ 13; Pl.’s 56.1 ¶ 13), and that when Hicks asked Deanda if she had a prescription for the pills, she responded “no,” (Defs.’ 56.1 ¶ 14; Pl.’s 56.1 ¶ 14). Moreover, according to Plaintiffs version of events, 'Deanda told Hicks that her sister was at her housé the night before, that her sister had left the pills there, and that- she was on her way to return the pills to her. " (PL’s 56.1 - ¶ 15.) Based on this information, .including Plaintiffs' account of the incident, Hicks arguably had probable cause to arrest Plaintiff because .at the time of Plaintiffs arrest, it is undisputed that Plaintiff knowingly possessed the oxycodone pills in a bottle without the required label, did not have a prescription, and was not the ultimate user, which, taken together, are “sufficient to warrant a person of reasonable caution in the belief that the person to be arrested has committed or is committing a crime,” Jocks v. Tavernier, 316 F.3d 128, 135 (2d Cir.2003) (internal quotation marks omitted), specifically a violation of New York Penal Law § 220.09. Hicks, therefore, is entitled to qualified immunity on this claim because it was objectively reasonable for Hicks to, believe that probable cause existed based on Deanda’s possession of the pills in an unlabeled bottle and without a prescription.
Plaintiff contends that she was in lawful possession of the pills, and therefore, Hicks did not have probable cause to arrest her. (Pl.’s Mem. 13-14.) To begin, “[n]either the ultimate disposition of an action, nor the crimes eventually charged, are dispositive of a probable cause determination.” Betts v. Shearman, No. 12-CV-3195, 2013 WL 311124, at *6 (S.D.N.Y. Jan. 24, 2013). Accordingly, the fact that the Westchester County District Attorney’s Office withdrew the criminal case against Plaintiff does not, without more, negate probable cause. Instead, as mentioned above, the inquiry is “whether the facts known by the arresting officer at the time of the arrest objectively 'provided probable cause to arrest” Plaintiff. Ackerson, 702 F.3d at 19 (internal quotation marks omitted). Plaintiff argues .that Hicks did not have probable cause to arrest Plaintiff because of the information that both she and her sister conveyed to Hicks—specifically that Deanda’s sister, Fontanette, was at Deanda’s house the night before the incident, Fontanette had a
It is far from clear that Plaintiffs version of events,- taken as true, constitutes a defense to possession of a controlled substance in the fourth degree. Plaintiff relies on New York Public Health Law § 3305 to argue that she was in lawful possession of the pills. As noted, Section 3305 provides that the prohibition of controlled substances does not apply to “temporary incidental possession by employees or agents of persons lawfully entitled to possession, or by persons whose possession is for the-purpose of aiding public officers in performing their official duties.” Plaintiff argues that in returning the pills to Fontanette, she was acting as an “agent[] of [a] person[] lawfully entitled to possession.” (PL’s Mem. 14-16.) As Defendants point out, however, Article 33 defines “[a]gent” as “an authorized person who acts on behalf of or at the direction of a manufacturer, distributer, or dispenser.” N.Y. Pub. Health Law § 3302(3). Plaintiff was not an agent, then, as defined by the plain language of the"statute. .The Court notes that in People v. Stone, 80 Misc.2d 536, 364 N.Y.S.2d 739 (Sup.Ct.1975), the trial court held that a husband was an agent within the meaning of Section 3305 of the Public Health law, and, therefore, was not guilty of picking up, at his wife’s request, a single dose of methadone. The court explained that the defendant “had lived with his common law wife ... for at least five years and was the father of her ... child[,] .... provided a home and support for her[,] ... [and] bore a moral, if not a legal responsibility for her well being and continued health,” and that, therefore, the defendant was an agent within the meaning of Section 3305 because agency could be established by conduct or oral agreement. Id. at 742-43. Three years after the trial court’s decision in Stone, however, the New York Court of Appeals explained that “[t]he obvious intent of [New York Public Health Law § 3305] is to exempt from penal sanction those employees or agents of others whose possession is ;not proscribed such as, for example, pharmacists’ assistants or private citizens acting for and under-the direction of the police.” People v. Sierra, 45 N.Y.2d 56, 407 N.Y.S.2d 669, 379 N.E.2d 196, 199 (1978). Moreover, the Court of Appeals noted that “[i]t is precisely because possession by an agent may be unlawful that it was necessary to enact [Section 3305] and provide protection to certain agents.” Id. Because Plaintiff was not acting as an agent of a manufacturer, distributer, or dispenser, or at the behest of the. police, it is far from clear that Section 3305 applies to her activity or that her version of the facts constitutes a defense to criminal possession of a controlled substance in the fourth degree. At the very least, officers of reasonable competence could disagree as to whether this exemption applies in these circumstances, and it was not objectively unreasonable for Hicks to arrest Plaintiff based on her possession of the pills even if this defense would have ultimately been successful; See Widget, 2013 WL 1104273, at *6 (explaining that “[j justification, which includes self-defense, is an exculpatory defense” under New York law, but concluding that “[e]ven if [the] [plaintiff were ultimately able to .establish justification, the arresting [officers were not required to adjudicate the issue at the time of the arrest”); cf. Heien v. North Carolina, — U.S. —, 135 S.Ct. 530, 534, 190 L.Ed.2d 475 (2014) (holding that “a mistake of law can nonetheless give rise to the reasonable suspicion necessary to uphold [a] seizure under; the Fourth Amendment”).
Even assuming that Plaintiff could ultimately -establish-that she was acting as
After observing Deanda with oxycodone pills that she confirmed were not hers and for which she did not have a prescription, Hicks had, at the very least, arguable probable cause to believe that Deanda was in violation of New York Penal Law § 220.09. Hicks was under no obligation to credit Deanda’s self-serving claims that the oxycodone pills belonged to her sister and that her sister had a prescription for the pills, or to verify Fontanette’s account of the pill bottle before arresting Plaintiff. See Jocks, 316 F.3d at 136 (explaining that there is no duty on an “arresting officer to investigate exculpatory defenses offered by the person being arrested or to. assess the credibility of unverified claims of justification before making an arrest”); Lundt, 2013 WL 5298458, at *3 (“An arresting officer has no duty to investigate exculpatory defenses, or to assess the credibility of claims regarding exculpatory defenses.”); Michaels, 2011 WL 570125, at *6 (same). This is not a case, as in Jocks v. Tavernier, where the arresting officer witnessed the plaintiffs actions that gave rise to a self-defense claim and deliberately disregarded those facts before arresting the plaintiff. See Jocks, 316 F.3d at 132, 136 (holding that the district court correctly denied the arresting officer’s motion for summary judgment as to the issue of whether the plaintiff acted in self-defense when the off-duty arresting officer drew his service pistol and said, “[w]hy don’t I blow your fucking brains out,” and the plaintiff threw a phone headset at the arresting officer, striking him in the mouth); see also Rennols v. City of New York, No. 00-CV-6692, 2003 WL 22427752, at *4 (E.D.N.Y. Oct. 23, 2003) (distinguishing Jocks on the grounds that the officers in the case before the court did not deliberately disregard facts that were known to them).
c. Malicious Prosecution
In her Second Cause of Action, Plaintiff asserts claims for malicious prosecution under state and federal law, (TAC ¶¶ 57-64), and in her Fourth Cause of Action, Plaintiff alleges that Defendants withheld “exculpatory and/or impeaching evidence, which omission resulted in the District Attorney’s decision to file the felony complaint” against Plaintiff, (id. ¶¶ 71-76).
Plaintiff argues that Hicks lacked probable cause to believe that the proceeding could succeed and' that he acted with malice because he lacked probable cause to arrest Plaintiff in the first instance. (Pl.’s Mem. 18-21.) “[T]he existence of probable cause is a complete defense to a claim of malicious prosecution in New York.” Savino v. City of New York, 331 F.3d 63, 72 (2d Cir.2003); see also Manganiello v. City of New York, 612 F.3d 149, 161-62 (2d Cir.2010) (same). “The determination of probable cause in the context of malicious prosecution is essentially the same -as for false arrest, except that a- claim for malicious prosecution must be evaluated in light of the facts known or believed at the time the prosecution is initiated, rather than at the time of the arrest.” Gaston v. City of New York, 851 F.Supp.2d 780, 793 (S.D.N.Y.2012) (internal quotation marks omitted). In other words, “continuing probable cause is a complete defense to a constitutional claim of malicious prosecution.” Betts v. Shearman, 751 F.3d 78, 82 (2d Cir.2014). Under New York law, where “probable cause existed for the arrest itself, a plaintiff pursuing a malicious prosecution claim must establish that probable cause somehow dissipated between the time of the arrest and the commencement of the prosecution.” Id. (internal quotation marks omitted). Probable cause dissipates- if “the groundless nature of the charges [is] made apparent by the discovery of some intervening fact.” Id. (internal quotation marks omitted); see also Kinzer v. Jackson, 316 F.3d 139, 144 (2d. Cir.2003) (same); Ellis v. La Vecchia, 567 F.Supp.2d 601, 607 (S.D.N.Y.2008) (“Because probable cause may dissipate between arrest and prosecution, courts must also examine probable cause to initiate the criminal proceeding.”). “The New York Court of Appeals has noted that ‘the failure to make a further inquiry when a reasonable person would have done so may be evidence of lack of probable cause.’ ” Lowth v. Town of Cheektowaga, 82 F.3d 563, 571 (2d Cir.1996) (quoting Colon v. City of New York, 60 N.Y.2d 78, 468 N.Y.S.2d 453, 455 N.E.2d 1248, 1250 (1983)). Accordingly, “[w]hile [Hicks] has qualified immunity against the claim for false arrest, given that when he made the arrest it was objectively reasonable for him to believe that he had probable cause to do so, [the relevant inquiry for Plaintiffs malicious prosecution claim is] whether, between the time of the arrest and the time he arrived at the police station and actually charged [Plaintiff], he had received information that was sufficient to eliminate probable cause as to any of the crimes charged.” Id. at 572.
Here, Plaintiff alleges nothing to suggest that between the time that Hicks arrested - Plaintiff and the time that he assisted Pavone in drafting the felony complaint or authored the incident report that Hicks received any information to eliminate or even reduce probable cause as to criminal possession of a controlled substance. - Rather, the only new information that Hicks learned was from the inventory of Plaintiffs car, which yielded a total of 50 oxycodone pills, 13/h Tramadol pills, and $1,266 in cash. (Defs.’ 56.1 ¶¶ 29-30.) Although Fontanette claims that she arrived at the police headquarters later that day and told a police officer through the glass partition that she had the prescription bottle with her to prove that the pills belonged to her, (Fontanette Tr. 34-35),
To the extent that Plaintiffs malicious prosecution, claim is based on Hickses omission of information in the incident report regarding the fact that Deanda told Hicks that the pills belonged to Fon-tanette, who had a prescription, and the alleged fact that Fontanette corroborated Plaintiffs claims in her telephone conversation with Hicks, the Court finds that it was, at the very least, objectively reasonable for Hicks to believe that he was not withholding material information. “Although there is a presumption that a prosecutor exercises independent judgment in' deciding whether to initiate and continue a criminal proceeding, an arresting officer may be held liable for malicious prosecution when a police officer creates false information likely to influence a jury’s decision and forwards that information to prosecutors ... or when [he or] she withholds relevant and material information.” Mitchell v. Victoria Home, 434 F.Supp.2d 219, 227 (S.D.N.Y.2006) (citations and internal quotation marks omitted); see also Costello v. Milano, 20 F.Supp.3d 406, 415 (S.D.N.Y.2014) (same). The incident report does not contain information about Deanda’s claims that the pills belonged to Fontanette or about any conversation that Hicks had with Fontanette. .{See Chapman-Langrin Decl, Ex. K.) Nevertheless, as discussed above, the fact that Fontan-ette had a prescription for the pills does not clearly constitute a defense to possession of them in the circumstances of this case and, hence, it was not objectively unreasonable for Hicks to fail to include that information. There is no dispute of material fact, then, as to whether Hicks had arguable probable cause to institute criminal proceedings against Plaintiff, and as probable cause is a complete defense to a claim of malicious prosecution, the Court does not reach the other elements of the malicious prosecution claim. See Sullivan v. LaPlante, No. 03-CV-359, 2005 WL 1972555, at *8 & n. 17 (N.D.N.Y. Aug. 16, 2005) (granting the defendant’s motion for summary judgment as to the plaintiffs' malicious prosecution claim because “probable cause is a complete defense” and noting'that “[t]he court [did] not reach the parties’ arguments on the favorable termination and malice elements of the claim for malicious prosecution”). In short, because there was at least arguable probable cause, the Court grants summary judgment as to the malicious prosecution claim on qualified immunity grounds.
d. Abuse of Process
In her Third Cause of Action, Plaintiff alleges that Defendants violated
e. Brady Violation
As mentioned above, Plaintiffs Fourth Cause of Action alleges that Defendants “withheld from the Westchester County District Attorney ... material favorable to ... Plaintiff as exculpatory and/or impeaching evidence, which omission resulted in the District Attorney’s decision, to file the felony complaint charging Plaintiff with Criminal Possession of a Controlled Substance in the Fourth Degree.... ”, (TAC ¶¶ 71-76.) “Under Brady [v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)], the Government has a constitutional duty to disclose favorable evidence to the accused where such evidence is material either to guilt or to punishment.” United States v. Cacace, 796 F.3d 176, 183 (2d Cir.2015) (internal quotation marks omitted). “There are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeáching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.” Poventud v. City of New York, 750 F.3d 121, 133 (2d Cir.2014) (en banc). The Second Circuit has held that “evidence is not suppressed for Brady purposes if the defendant either knew, or should have known, of the essential facts permitting him to take advantage of any exculpatory evidence;” Lewis v. Conn. Comm’r of Corr., 790 F.3d 109, 121 (2d Cir.2015) (alterations and internal quotation marks omitted); see also United States v. Zagari, 111 F.3d 307, 320 (2d Cir.1997) (“Brady cannot be violated if the defendants had actual knowledge of the relevant information. ...”).
“Police officers can be held liable for Brady due process violations under § 1983 if they withhold exculpatory evidence from prosecutors.” Bermudez v. City of New York, 790 F.3d 368, 376 n. 4 (2d Cir.2015). “[P]olice satisfy their obligations under Brady when they turn exculpatory evidence over to the prosecutors,” Walker v. City of New York, 974 F.2d 293, 299 (2d Cir.1992), “unless there is some indication that the, police have suppressed evidence,” McCaffrey v. City of New York, No. 11-CV-1636, 2013 WL 494025, at *12 (S.D.N.Y. Feb. 7, 2013). In particular, “[a] § 1983 claim is stated where a plaintiff can demonstrate that police have turned over fabricated evidence to the, prosecutor. Such conduct can be redressed, not as a Brady violation, but because it violates the right not to be deprived of liberty on the basis of false and fabricated evidence.” Myers v. County of Nassau, 825 F.Supp.2d 359, 367 (E.D.N.Y.2011) (citing Ricciuti v. N.Y.C. Trans. Auth., 124 F.3d 123, 130 (2d Cir.1997)).
Plaintiff does hot allege that Hicks fabricated evidence in his incident report or the felony complaint. Instead, Plaintiff claims that Hicks violated "Plaintiffs rights by omitting allegedly exculpatory information. Plaintiff has not cited any case, however, in,which, a police officer has been held liable for a Brady violation based on allegedly incomplete information in an incident report or a felony complaint in a case that is never indicted. Instead, courts have held that a police officer may be liable under § 1983 for turning over fabricated evidence and that this “conduct can be redressed, not as a Brady violation, but because it violates the right not to be deprived of liberty on the- basis of false and fabricated evidence.” Myers, 825
Even assuming, however, that a claim under § 1983 could succeed on the theory that an .officer omitted information in an incident report and/or felony complaint and that the information allegedly omitted was exculpatory, Plaintiff cannot allege the second element of a Brady claim—that the evidence was suppressed. Plaintiff had knowledge of her claims and her sister’s claims that the oxycodone pills belonged to Fontanette, that' Fontanette had a valid prescription for the pills, and that Plaintiff was in the process of bringing the pills to Fontanette when she was stopped by Hicks. Indeed, according to Plaintiff, Assistant District Attorney Paul Stein asked - that Fontanette provide this information in a sworn statement, “[bjased upon the information provided by Plaintiff’s counsel.” (TAC ¶39.) Hicks’s omission from the incident report and the felony complaint of the .information that Deanda and Fontanette' allegedly relayed to him, then, did not constitute suppression for the purposes of a Brady violation. See Rivera v. Smith, No. 03-CV-4198, 2015 WL 631379, at *7 (E.D.N.Y. Feb. 12, 2015) (explaining that there was no suppression “in the Brady. sense” where a witness’s “modification as to the thrust of what he was told by [the petitioner] on the night of the homicide was initially discovered by the defense,” who then “notified the prosecution,” because “[t]his scenario[] does' not, ipso facto, implicate Brady”); cf. McCaffrey, 2013 WL 494025, at *13 (denying summary judgment on the plaintiff’s Brady claim because the defense counsel lacked an “essential fact” that “could have bolstered the credibility” of a witness). Accordingly, Plaintiff’s claim for failure to relay allegedly exculpatory information fails, and summary judgment is granted as to this claim.
f. Conspiracy Claim
In her Fifth Cause of Action, Plaintiff alleges that Defendants acted in concert to deprive Plaintiff of her constitutional rights. (TAC ¶¶ 77-79). “Title 42 U.S.C. § 1985(3) prohibits, in pertinent part, conspiracies undertaken ‘for the purpose of depriving, either directly or indirectly, any person or class of persons of the'equal protection of 'the laws, or of equal privileges or immunities under the laws.’” Jews for Jesus, Inc. v. Jewish Cmty. Relations Council of N.Y., Inc., 968 F.2d 286, 290 (2d Cir.1992) (quoting 42 U.S.C. § 1985(3)). “The elements of a claim under § 1985(3) are: (1) a conspiracy;' (2)' for the purpose of depriving, either directly or indirectly, any person or class of persons of equal protection of the laws, ...; [and] (3) an act in furtherance of the conspiracy; (4) whereby a person is ... deprived of any right of a citizen of the United States.” Brown v. City of Oneonta, 221 F.3d 329, 341 (2d Cir.2000) (alterations in original) (internal quotation marks omitted); see also Bliss v. Rochester City Sch. Dist., 196 F.Supp.2d 314, 337 (W.D.N.Y.2002) (same), aff'd 103 Fed.Appx. 421 (2d Cir.2004), aff'd sub nom. Eaton v. Rochester City Sch. Dist., 100 Fed.Appx. 855 (2d Cir.2004), aff'd sub nom. Coons v. Bd. of Educ. Of Rochester City Sch. Dist., 100 Fed.Appx. 854 (2d Cir.2004). “[A] plaintiff must provide some factual basis supporting a meeting of the minds, such that [the] defendants entered into an agreement, express or tacit, to achieve the unlawful end.”. Webb v. Goord, 340 F.3d 105, 110 (2d Cir.2003) (internal quotation marks omitted). “[A]n action will lie under § 1985(3) when a plaintiff is injured by a private conspiracy to interfere with his [or her] constitutional rights, so long as there is some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators’ action.” Jews for Jesus, 968 F.2d at
Plaintiff does not address her conspiracy claim in her opposition papers to the instant Motion. “When a party ‘offer[s] no response’ to its opponent’s motion to dismiss a claim, that claim is abandoned.’ ” Paul v. Bank of Am., N.A., No. 11-CV-81, 2011 WL 5570789, at *2 (D.Conn. Nov. 16, 2011) (quoting Molinari v. Bloomberg, 564 F.3d 587, 609 n. 15 (2d Cir.2009)). Accordingly, the Court deems this claim abandoned and grants Defendants’ Motion as to these claims. See id. (explaining that because the plaintiff failed to address a claim in opposition to summary judgment, “it appears to th[e] court that he has abandoned it”); see also Codrington v. City of New York, No. 12-CV-1650, 2015 WL 893567, at *14 (E.D.N.Y. Mar. 2, 2015) (deeming claims abandoned where the defendants moved for summary judgment against certain claims but the plaintiff’s opposition did not address the arguments); Avola v. Louisiana-Pacific Corp., 991 F.Supp.2d 381, 390 (E.D.N.Y.2014) (same). In any event, because the Court grants summary judgment as to the alleged underlying constitutional violations, the conspiracy claim necessarily fails. See Young v. Suffolk County, 922 F.Supp.2d 368, 394 (E.D.N.Y.2013) (explaining that because the “plaintiffs underlying Section 1983 cause of action ... cannot be established ... her claim for conspiracy ... must also fail”); Cipolla v. County of Rensselaer, 129 F.Supp.2d 436, 450 (N.D.N.Y.2001) (“[T]o recover Section 1983 damages for conspiracy, Plaintiffs must prove that their constitutional rights were actually violated.”). Therefore, summary judgment is granted to Defendants on the conspiracy claim.
4. Punitive Damages
“Punitive damages are available in a § 1983 action when the defendant’s conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others.” Lee v. Edwards, 101 F.3d 805, 808 (2d Cir.1996); see also New Windsor Volunteer Ambulance Corps, Inc. v. Meyers, 442 F.3d 101, 121 (2d Cir.2006) (same); Milfort v. Prevete, 3 F.Supp.3d 14, 23 (E.D.N.Y.2014) (same). Because the Court finds that no reasonable jury could find a constitutional violation, however, the claim for punitive damages fails. Moreover, Plaintiff has proffered no evidence that Hicks was motivated by evil motive or intent. Summary judgment on Plaintiff s. claim for punitive damages, then, is granted.
5. Defamation
Plaintiff also alleges a claim for defamation. (See TAC ¶¶ 80-82.) As an initial matter, it is not clear from the TAC on what grounds Plaintiffs defamation claim is based, and, accordingly, it is far from, settled that the TAC sufficiently “gives fair notice of what the plaintiffs claim is and the grounds upon which it rests.” Phelps v. Kapnolas, 308 F.3d 180, 186 (2d Cir.2002) (internal quotation marks omitted). Nevertheless, even assuming, arguendo, that Plaintiffs defamation claim satisfies the pleading requirements of Federal Rule of Civil Procedure 8, the claim does not withstand a motion for summary judgment for the following reasons. See Livermore v. City of New York, No. 08-CV-4442, 2011 WL 182052, at *7 (S.D.N.Y.2011) (assuming that the plaintiff had adequately pled the claim but finding that the
“Libel is a method of defamation expressed in writing or print.” Celle v. Filipino Reporter Enters. Inc., 209 F.3d 163, 176 (2d Cir.2000); see also Albert v. Loksen, 239 F.3d 256, 265 (2d Cir.2001) (explaining that “[generally, spoken defamatory words are slander; written defamatory words are libel”). To recover for libel under New York law, a plaintiff must “prove five elements: (1) a written defamatory statement of fact regarding the plaintiff; (2) published to a third party by the defendant; (3) [the] defendant’s fault; (4) the falsity of the defamatory statement; and (5) injury to [the] plaintiff.” Meloff v. N.Y. Life Ins. Co., 240 F.3d 138, 145 (2d Cir.2001). Plaintiffs counsel explained in a letter to the Court that “[t]he defamatory and false statement at issue is the felony complaint ... Hicks prepared or caused to be prepared and filed—” (Letter from William I. Aronwald to Court (Sept. 2, 2015) (“PL’s Sept. 2 Letter”) 1 (Dkt. No. 63).) Plaintiff alleges that “[h]er employers and her assistant at work[] learned of [Plaintiffs arrest], as did a friend, Deirdre Tate, who read something about it.” (Id.) The felony complaint states that Hicks accuses Deanda of criminal possession of a controlled substance in the fourth degree, which offense was “committed at southbound Bronx River Parkway/Vermont Terrace in the City of Yonkers, County of Westchester, State of New York' on May 28, 2012 at approximately 8:12 AM.” (TAC Ex. A.) The felony complaint describes the elements of the offense and states that “[a]t the above date, time, and location, the defendant herein did knowingly and unlawfully possess a plastic bottle containing .21 ounces of oxy-codone pills (40 pills) in her purse.” (Id.) Moreover, Hicks explained that his conclusion that the substance was oxycodone was “based in part’on [his] training and experience as a police officer in the recognition of oxycodone.” (Id.)
Here, there is no evidence that Hicks made a statement against Plaintiff that was false, nor does Plaintiff identify which statement in the felony complaint' is allegedly false. Indeed, Plaintiff does not dispute that she was in possession of the oxycodone pills that were in the pill bottle on the date and time at issue. Moreover, to the extent that Plaintiff takes issue with Hicks’s statement that she was in “unlawful” possession of the pills in violation of New York law, it is not clear, in light of New York law as discussed above, that this statement is false. Plaintiff, therefore, has not shown, or even alleged for that matter, that any. statement Hicks made in the felony complaint is false, which is necessarily fatal to her defamation claim. See Hohmann v. GTECH Corp., 910 F.Supp.2d 400, 408 (D.Conn.2012) (explaining that the “failure to allege falsity is not a mere formality” and the defamation claims at ‘issue “fail because they do not allege falsity”); Cummins v. Suntrust Cap. Markets, Inc., 649 F.Supp.2d 224 249-50 (S.D.N.Y.2009) (explaining that the defamation claim was not supported because although the plaintiff alleged “that the statement was defamatory because it attempted to impute a quality of rapaciousness to the plaintiff and suggested that he was a dishonest CEO[,] .... [t]hose statements were not made and the factual statements that were made have not been shown to be false”). Accordingly, summary judgment as to Plaintiffs claim for defamation is granted.
6. Intentional Infliction of Emotional Distress
Finally, Plaintiff asserts a claim for intentional infliction of emotional distress (“IIED”). (See TAC ¶¶ 83-84.) Under New York Law, to establish a cause of action for IIED, a plaintiff must prove:
Here, Plaintiff fails to establish that the conduct she alleges was “extreme and outrageous conduct, which so transcends the bounds of decency as to be regarded as atrocious and intolerable in a civil society.” Turley, 774 F.3d at 157 (internal quotation marks omitted). Instead, as discussed above, Hicks had probable cause (or at least arguable probable cause) to arrest and charge Plaintiff with criminal possession of a controlled substance in the fourth degree. Moreover, the conduct of which Plaintiff complains falls within the scope of claims of unreasonable search and seizure, false arrest, and malicious prosecution, as discussed above. See Turley, 774 F.3d at 159 (explaining that “a claim for IIED may not be sustainable where the conduct complained of falls well within the ambit of other traditional tort liability” (internal quotation marks omitted)); Murphy v. City of Rochester, 986 F.Supp.2d 257, 271 (W.D.N.Y.2013) (holding that “the allegedly outrageous conduct complained of by [the plaintiff] falls within the' scope of the other traditional torts he has pleaded (i.e., false arrest; malicious prosecution; abuse of process; ... and defamation by libel and slander)”); Yang Feng Zhao v. City of New York, 656 F.Supp.2d 375, 405 (S.D.N.Y.2009) (holding that because “the alleged conduct fits well within the traditional tort theories of false arrest, malicious prosecution, and assault and battery ... the claim of intentional infliction of emotional distress will not fly”); Moore v. City of New York, 219 F.Supp.2d 335, 339
III. Conclusion
For the reasons stated above, Plaintiffs Spoliation Motion is denied, and Defendants’ Motion For Summary Judgment is granted. The Clerk of the Court is respectfully requested to terminate the pending motions, (see Dkt. Nos. 37, 45), and close the case.
SO ORDERED.
. The unlabeled pill bottle was located "right on top” of Deanda’s purse. (Defs.
. Although Plaintiff does not dispute that Hicks made this determination within "five minutes of speaking” to Deanda, (Def.’s 56.1 ¶ 21), there is nothing in the Hicks Affidavit, which Defendants cite to support this statement, that supports that Hicks made this determination within five minutes.
. The Parties refer to Plaintiff’s sister as Fon-tanette, although the deposition transcript spells her last name as Fontenette. The Court will use the spelling that the Parties use for the sake of consistency.
. Hicks testified that although he learned of Plaintiffs Notice of Claim, he did not recall when he learned of it. (Hicks Tr, 13.)
. In her Motion for Spoliation, Plaintiff does not request any other relief besides an adverse inference instruction.
. Indeed, it is unfortunate ‘ that if Plaintiff's counsel planned to argue in good faith that Hicks could not observe the color of the pills or that Hicks could not determine that the bottle was tmlabeled, Plaintiffs counsel did not ensure'that the record contained some evidence to refute Hicks’s claim. It is even more inexplicable in light of the fact that Plaintiff’s counsel offered to produce the pill bottle—-which could have been turned over in discovery—for the jury’s inspection more than a year after the close of discovery and only on prompting from the Court to identify evidence that supported Plaintiff’s attempt to create an issue of material fact. Finally, the Court also notes that Plaintiff was given two opportunities to file amended complaints after the close of discovery, and there was no allegation made whatsoever that Hicks could not see the bottle or its contents.
. It is also worth noting that Deanda’s account of the initial conversation between herself and Hicks suggests that Deanda consented to Hicks's' inspection of the pill bottle. "It is well settled that a warrantless search does , not violate the Fourth Amendment if the authorities have obtained the voluntary consent of a person authorized to grant such consent, and that so long as the police do not coerce consent a search conducted on the basis of consent is not an unreasonable search.” United States v. Hernandez, 85 F.3d 1023, 1028-29 (2d Cir.1996); see also United States v. Gomez, No. 14-CV-63, 2015 WL 3936397, at *2 (D. Conn. June 25, 2015) (applying principle in the context of a traffic stop). “The test for determining the validity of the consent ■ ... is an objective one inasmuch as only unreasonable searches are prescribed by the Fourth Amendment, and that the issue of reasonableness is to be measured by an objective standard.’” United States v. Walker, 922 F.Supp. 724, 727 (N.D.N.Y.1996) (internal quotation marks omitted). ”[C]onsent may be inferred from an individual’s words, act, or conduct,” Id. (internal quotation marks omitted). Here, Deanda testified that when Hicks asked Her to see the pills, she gave them to him. (Deanda Tr. 19-20.) Indeed, "Plaintiff does not dispute that .... Hicks requested that [P]laintiff give him the unlabeled pill bottle, and she complied with the request.”. (PL’s 56.1 ¶ 11.) Because ”[c]onsent may ... be inferred from the absence of any objection[,] .., [and] it [is not] necessary ... that [a person] know of [her] right to refuse consent .,. to [make] a finding of voluntari
. Indeed, in Jocks, the Second Circuit held that the arresting officer was entitled to partial summary judgment on the issue of whether the arrestee’s explanation that his violent conduct was an emergency measure. Jocks, 316 F.3d at 136. According to the Court, it was “true that [the arresting officer] had [the arrestee’s] unsubstantiated claims about the emergency, ... but ... [the officer] was neither compelled to accept these assertions at face value nor to investigate them.” Id.
. To the extent that Plaintiff believes that Hicks should have waited for Fontanette to produce evidence of her prescription (and assuming that this is proof that might have negated probable cause), the law imposed no such requirement on Hicks. See Curley v. Village of Suffern, 268 F.3d 65, 70 (2d Cir.2001) ("Although a better procedure may have been for the officers to investigate [the] plaintiff's version of events more completely, the arresting officer does not have to prove [the] [plaintiff's version wrong before arresting [her].”),
. Plaintiff’s Fourth Cause of Action could also be construed as alleging a due process violation, as discussed below.