ALAN J. BAVERMAN, United States Magistrate Judge.
Plaintiff Lisa Bailey ("Plaintiff") brought this action pursuant to sections 205(g) and 1631(c)(3) of the Social Security Act, 42 U.S.C. §§ 405(g), 1383(c)(3), to obtain judicial review of the final decision of the Commissioner of the Social Security Administration ("the Commissioner") denying her application for Disability Insurance Benefits ("DIB") and Supplemental Security Income Benefits ("SSI") under the Social
Security Act ("the Act"). For the reasons stated below, the Court AFFIRMS the final decision of the Commissioner.
Title II of the Social Security Act provides for federal disability insurance benefits. 42 U.S.C. § 401 et seq. Title XVI of the Social Security Act, 42 U.S.C. § 1381, et seq., provides for supplemental security income benefits for the disabled. Title XVI claims are not tied to the attainment of a particular period of insurance disability. Baxter v. Schweiker, 538 F. Supp. 343, 350 (N.D. Ga. 1982). The relevant law and regulations governing the determination of disability under a claim for DIB are nearly identical to those governing the determination under a claim for SSI. Wind v. Barnhart, 133 Fed. Appx. 684, 690 n. 4 (11th Cir. 2005) (citing McDaniel v. Bowen, 800 F.2d 1026, 1031 n. 4 (11th Cir. 1986)). Under 42 U.S.C. § 1383(c)(3), the judicial provisions of 42 U.S.C. § 405(g) are fully applicable to claims for SSI. In general, the legal standards to be applied are the same regardless of whether a claimant seeks DIB, to establish a "period of disability," or to recover SSI. However, different statutes and regulations apply to each type of claim. Therefore, to the extent that the Court cites to SSI cases, statutes, or regulations, they are equally applicable to Plaintiff's DIB claims.
I. PROCEDURAL HISTORY
Plaintiff filed applications for DIB and SSI on August 24, 2006, alleging disability commencing on August 1, 2005. [Record (hereinafter "R") 103-08]. Plaintiff's applications were denied initially and on reconsideration. [ See R41-42]. Plaintiff then requested a hearing before an Administrative Law Judge ("ALJ"). [R55]. An evidentiary hearing was held on November 6, 2008. [R17-40]. The ALJ issued a decision on March 10, 2009, denying Plaintiff's application on the ground that she had not been under a "disability" at any time through the date of the decision. [R6-16]. Plaintiff sought review by the Appeals Council, and the Appeals Council denied Plaintiff's request for review on March 26, 2009, making the ALJ's decision the final decision of the Commissioner. [R1-5].
Plaintiff then filed an action in this Court on September 8, 2009, seeking review of the Commissioner's decision. Lisa Bailey v. Michael J. Astrue, Commissioner of Social Security, Civil Action File No. 1:09-cv-02467. [ See Doc. 1]. The answer and transcript were filed on November 11, 2009, [ see Docs. 4-5], and the Court heard oral arguments on March 4, 2010, [ see Doc. 10]. The matter is now before the Court upon the administrative record, the parties' pleadings, the parties' briefs, and the parties' oral arguments, and is accordingly ripe for review pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).
II. STATEMENT OF FACTS
A. Administrative Records
In a Disability Report, Plaintiff indicated that plantar fasciitis in both feet prevented her from working because she could not lift or stand or walk for long periods of time. [R143]. She reported seeing various doctors between 2003 and 2006 because of her plantar fasciitis. [R145-46]. Plaintiff did not indicate that she was taking any medications. [R147].
Plaintiff reported in a December 2006 adult function report that her condition affected her sleep position and woke her up at night because of the pain. [R163]. Plaintiff indicated that she could cook quick meals, but not multi-course meals, and that she relied on her son to help with chores. [R164]. Plaintiff stated that her condition prevented her from standing, walking, bending, squatting, kneeling, or reaching over her head. [R165]. Plaintiff reported being able to pay attention for as long as was needed, but also that she could not follow written instructions because she would get side tracked. [R167]. Plaintiff indicated that her doctor prescribed a cane around February 2006. [R168].
A March 5, 2007, Disability Report indicated that Plaintiff had difficulty walking, was wearing a foot protector on her right foot, and could not wear shoes. [R177]. A March 7, 2007, Disability Report — Appeal form indicated that Plaintiff's condition changed in that she had chronic foot sprain with pain and was diagnosed with glandis cyst in her left wrist, which caused great pain. [R180]. Plaintiff reported experiencing drowsiness and stomach cramps from the medication that she was taking. [R182]. A second Disability Report — Appeal form from August or September 2007 indicated that Plaintiff had back, neck, leg, hip, shoulder, hand, and arm pain as well as knee swelling and a Ganglion cyst in her left wrist. [R201].
In November 2008, Plaintiff reported taking the following medications: (1) Elavil once per day for pain; (2) Tylenol three times a day for pain; and (3) Albuterol and Advair for chronic asthma. [R210].
B. Medical Records
Plaintiff also received treatment for asthma from at least 2005. [R342-50]. The Court does not summarize these records because they are not relevant to this Social Security appeal.
On August 17, 2004, Plaintiff was diagnosed with ankle/foot pain, and a doctor recommended that she try over the counter medication and see her personal physician if the condition did not improve. The doctor recommended stretching exercises and a night splint. [R214].
On June 8, 2005, Dr. Erroll Bailey diagnosed Plaintiff with plantar fasciitis, mid substance, based on tenderness, complaints of heel and arch pain, and unremarkable X-rays. [R229]. A July 20, 2005, medical note indicated that Plaintiff was not consistent with performing her stretching exercises. Dr. Bailey reiterated the importance of the stretching, and he put Plaintiff in a walking boot and told her to stretch daily. He also indicated that Plaintiff could continue to receive cortisone injections. [R224]. An August 15, 2005, note indicated that the boot and stretching were not working, so Dr. Bailey gave Plaintiff a cortisone injection. [R221]. On August 24, 2005, Plaintiff reported that the injection did not provide relief, so Dr. Bailey stated it was "now time for a MRI scan." [R222].
Plantar fasciitis is irritation and swelling of the thick tissue on the bottom of the foot. This definition, like all others in this Order (except where otherwise noted), was obtained from the National Institute of Health's MedlinePlus website. See MedlinePlus, http://medlineplus.gov.
Plaintiff started going to the Ankle Foot Centers of Georgia on September 12, 2005, complaining of pain in both feet. In five subsequent visits, Plaintiff continued to complain of pain. [R273]. At this first appointment, Plaintiff was diagnosed with plantar fasciitis, bilaterally, which was aggravated by her occupation. Plaintiff was given a cortisone injection, and her foot was strapped and padded to avoid abnormal pronation. [R332]. Plaintiff received a cortisone injections again on October 3 and November 28 because she was complaining of bilateral foot pain. [R330-31].
On January 9, 2006, Plaintiff continued to complain of heel pain (with the right being worse). Dr. Joseph Giovinco stated that because the injections and other conservative treatment were not working, he would arrange for shockwave therapy and take Plaintiff out of work while she healed. [R329]. Plaintiff was cleared for shockwave surgery on January 19. [R327]. On January 23, 2006, Dr. Giovinco completed a health provider certification indicating that Plaintiff had foot surgery and
that she would be able to return to work on February 6, 2006. [R266, 269]. Dr. Giovinco noted in a separate form for short term disability benefits that Plaintiff's physical impairment was "severe," but that he had inadequate information about Plaintiff's psychiatric impairment. [R268]. He later revised the return to work date to March 13, 2006. [R265].
Plaintiff apparently received short term and long term disability through 2007. [R21-22]
After the shockwave treatment, Plaintiff indicated on January 30 that she experienced some relief, but that she was still in a good deal of pain. However, Dr. Giovinco believed that Plaintiff would continue to heal. [R327]. Dr. Giovinco noted that Plaintiff was doing quite a bit better on February 6, 2006, but he indicated that she needed to be limited in her ambulation because of residual pain. [R325].
Office notes between January 30, 2006, and June 1, 2006, indicated that Plaintiff continued to experience pain. [R305].
Plaintiff was seen on March 13, 2006, by Dr. Giovinco who noted that Plaintiff was still having 30% residual pain. [R324]. On this same day, Dr. Giovinco completed a Statement of Continued Disability form for Hartford Life Insurance. [R238-39]. Dr. Giovinco noted that Plaintiff's January 23, 2006, surgery improved Plaintiff's condition. [R238]. Dr. Giovinco also indicated that Plaintiff should receive a handicap parking permit due to a non-permanent disability stemming from an orthopedic condition. [R297].
On March 20, 2006, Dr. Giovinco indicated that Plaintiff could return to work on April 10, 2006. [R291]. This return to work date was revised on March 27, 2006, and Dr. Giovinco indicated that Plaintiff should return to light duty work between April 17 and May 15, 2006. [R258]. Two weeks later on April 10, 2006, Dr. Giovinco indicated, however, that Plaintiff could return to work on June 6, 2006. [R256]. After seeing Plaintiff on April 10, Dr. Giovinco indicated that Plaintiff was still having pain in her right foot and difficulty standing and walking for prolonged periods. Plaintiff was told to continue with her range of motion exercises, and she was considered disabled and unable to return to work. [R323]. In an April 13, 2006, disability form for Hartford Life Insurance, Dr. Giovinco did not indicate that Plaintiff had any psychiatric impairment. He only listed plantar fasciitis as the impairment. [R253-54].
A May 18, 2006, physical therapy progress note indicated that Plaintiff continued to experience significant pain in both her feet after two and a half weeks of therapy. The therapist indicated that Plaintiff should pursue other options, including orthotics, because the therapy did not seem to be helping. [R304, 362]. Dr. Giovinco also saw Plaintiff on May 18 who continued to complain of "quite a bit of pain in both heels." [R322]. Dr. Giovinco indicated that he would perform endoscopic plantar fasciotomy (surgical incision of the fascia) on her right foot to relieve pressure and the pull of the plantar fascia. [R322].
Following the fasciotomy, Plaintiff complained of her foot throbbing on a June 15, 2006. [R300]. Plaintiff was placed in compression dressing and a below-knee cast. [R319]. Also, Dr. Giovinco completed another statement of disability form for Hartford, indicating that Plaintiff had severe pain on palpation, [R307], and she would be limited in her ability to stand and walk for three months, sit for one month, lift, carry, reach, push, pull, and drive for five months. [R308]. Dr. Giovinco sent Plaintiff to physical therapy on June 29, 2006, because she was still having quite a bit of pain and soreness. [R303, 318].
Dr. Giovinco called in a prescription for Motrin after Plaintiff requested it on July 7, 2006. [R301]. On July 13, 2006, Dr. Giovinco indicated that Plaintiff had essentially good functioning in all areas in response to a question about her psychiatric impairment. [R293].
On October 26, 2006, Plaintiff was seen for a knot on her left wrist, a problem that had existed at irregular intervals for five to six months. [R406]. Plaintiff was prescribed ibuprofen and referred to an orthopedist for cyst removal. [R407].
After complaining of lower abdominal pain for three months, [R423], Plaintiff an X-ray on November 13, 2006, which revealed that Plaintiff had a 1.5 centimeter simply cyst in her left ovary. [R413, 574-77].
On November 28, 2006, Dr. Charles Scott, a doctor of internal medicine, performed a consultative examination. [R431-34]. In the psychiatric portion of the report, Dr. Scott stated:
The claimant denies complaints of nervousness with strangers, difficulty making decisions, poor memory, poor concentration, hopelessness, difficulty relaxing, frightening thoughts, family problems, sexual or sleeping difficulties
but complains of depression, excessive worrying and temper loss. The claimant has never considered suicide and does not desire psychiatric assistance. . . .
[R432 (emphasis added)]. Despite these complaints, Dr. Scott noted that Plaintiff's mood and behavior were within normal limits, that she did not have trouble with concentration or memories, and that she was oriented. [R433]. Dr. Scott also reported that Plaintiff walked with a limp. [R432, 433]. He observed that Plaintiff did not need an assistive device. [R433].
After making these observations, Dr. Scott determined that Plaintiff had bilateral fasciitis and attendant limitations in her range of motion. Dr. Scott stated that "[s]ome consideration should be given to a MRI scan of the feet in view of the chronicity" and that "an updated evaluation by an orthopedic surgeon and psychiatrist would be of benefit." Dr. Scott recommended that Plaintiff lose weight and that she make lifestyle changes such as exercising to improve quality of life. Dr. Scott believed that Plaintiff would have problems with prolonged standing and excessive walking, but not with lifting or crouching. He also believed that Plaintiff would not be limited in reaching, handling, or feeling. He determined that Plaintiff's ability to maintain concentration and attention would not be impaired and that Plaintiff could remember, follow, and complete simple and complex instructions. He did not think that Plaintiff would have a problem with adhering to a work schedule or meeting production norms. Finally, Dr. Scott concluded:
The claimant's long-term prognosis depends upon the results of the recommended diagnostic studies and consultative evaluations as well as modest weight loss. Some consideration should also be given to a screening psychiatric evaluation as there appears to be a degree of chronic dysthymic disorder.
[R434].
On January 2, 2007, Dr. Abraham Oyewo, a non-examining doctor, completed a Physical Residual Functional Capacity Assessment, finding that Plaintiff could: (1) occasionally lift 50 pounds; (2) frequently lift 25 pounds; (3) sit, stand and/or walk for 6 hours in an 8-hour day; and (4) push and pull without limitations. [R436]. He also determined that Plaintiff could: (1) frequently kneel, stoop, crouch, crawl, and climb ramps/stairs; and (2) occasionally balance and climb ladder/rope/scaffolds. [R437]. He also determined that Plaintiff should avoid exposure to fumes, odors, dusts, gases, and poor ventilation. [R439].
Allen Carter, Ph.D., completed a Psychiatric Review Technique and determined that Plaintiff had a non-severe affective disorder (dysthymic disorder). [R443, 446]. Carter indicated that Plaintiff had mild limitations in maintaining concentration, persistence, or pace, but he found no other limitations. [R453]. Carter noted Dr. Scott's assessment of dysthymia, but he determined that it was not severe because Plaintiff did not have treatment or prescriptions for mental impairments and Plaintiff's daily living activities were limited by physical pain, not mental problems. [R455].
On January 3, 2007, Dr. Paul Spiegl, an orthopedist, performed an examination for Plaintiff's worker's compensation claim. [R457-60]. Dr. Spiegl reported that Plaintiff walked with a slow gait with apparent pain in her heels, she had swelling and tenderness in the heel pad, she could not spread her toes, she walked on the tip toes of her right foot, and she complained "bitterly of pain with each step." [R458]. Plaintiff was diagnosed with: plantar fasciitis; achilles contracture; foot sprain/strain; and difficulty walking. Dr. Spiegl believed that these conditions were aggravated by Plaintiff's work activity, but he believed that Plaintiff's "subjective complaints exceed[ed] [the] objective findings." Since the prior surgeries had not worked, Dr. Spiegl did not recommend additional intervention, but he recommended a functional capacities exam. He finally assigned an impairment of 3% for the left lower extremity and 11% for the right lower extremity. [R459].
Plaintiff went to the Grady Orthopedic Clinic on April 9, 2007, complaining of a dorsal wrist ganglion, which was aspirated. Plaintiff was told to follow up as needed if there was a recurrence. [R469]. Plaintiff returned to Grady on April 11 and complained of persistent pain in her wrist as well as heel spurs. It appears that Plaintiff was given a prescription for the pain. [ See R470]. Plaintiff received a handicap parking sticker on May 23, 2007. [R551].
On June 22, 2007, Dr. Paul Crank, a non-examining doctor, completed a Physical Residual Functional Capacity Assessment indicating that Plaintiff could: (1) occasionally lift 50 pounds; (2) frequently lift 25 pounds; (3) sit, stand, and walk for 6 hours in an 8-hour day; and (4) push or pull without limitation. [R473]. He found that Plaintiff could occasionally climb ladder/rope/scaffolds, but could frequently balance, stoop, kneel, crouch, crawl and climb ramps/stairs. [R474]. He believed that Plaintiff should avoid exposure to fumes, odors, dusts, gases, and poor ventilation. [R476]. Finally, without explanation, Dr. Crank did not credit Plaintiff's complaints about not standing, walking, or lifting. [R477].
Dr. Rami Calis, a Grady doctor, examined Plaintiff on July 3, 2007, and noted that Plaintiff had pain on a level of 7 or 8 when wearing her walking boot and a pain level of 10 without the boot. [R546]. Dr. Calis found that Plaintiff: (1) had pain on palpation of the plantar region; (2) mild pain on heel compression; (3) muscle power of 5/5 in tested groups; (4) greater pain on the right side; and (5) an affected gait. [R547-48]. Dr. Calis prescribed Neurontin (an anticonvulsant drug that is also used to relieve pain), but informed Plaintiff that he had no additional treatments to offer her. [R548]. Plaintiff was then referred to the Grady Pain Clinic because of chronic pain in her feet. [R548, 550].
Plaintiff returned to Grady on October 17, 2007, for a follow up for asthma and plantar fasciitis. Plaintiff was on Albuterol for asthma and Motrin/Elavil for the plantar fasciitis. [R543].
Plaintiff went to the Grady Dermatology Clinic on October 31, 2007, complaining of hair loss. [R540]. Plaintiff was prescribed an ointment and doxycycline. [R541]. Plaintiff returned to the Grady Dermatology Clinic on March 28, 2008, and appears to have been diagnosed with very mild dry hair. [R536-37].
Plaintiff went to the emergency room on February 1, 2008, complaining of pain in her neck, shoulder, and back following a car accident. [R567]. Plaintiff was assessed with cervical and lumbar strain. [R568]. X-rays of the cervicaked-ref___ U.S. ___, 129 S.ct. 855, 858-59 (2009).
Plaintiff went to the emergency room on February 1, 2008, complaining of pain in her neck, shoulder, and back following a car accident. [R567]. Plaintiff was assessed with cervical and lumbar strain. [R568]. X-rays of the cervicaked-ref___ U.S. ___, 129 S.ct. 855, 858-59 (2009).
Here, unlike with other claims related to administrative decisions, an individual prosecutor's error in the plaintiff's specific criminal trial constitutes an essential element of the plaintiff's [Section 1983] claim. The administrative obligations at issue here are thus unlike administrative duties concerning, for example, workplace hiring, payroll
administration, the maintenance of physical facilities, and the like. Moreover, the types of activities on which Goldstein's claims focus necessarily require legal knowledge and the exercise of related discretion,
e.g., in determining what information should be included in the training or the supervision or the information-system management. And in that sense also Goldstein's claims are unlike claims of, say, unlawful discrimination in hiring employees. Given these features of the case before us, we believe absolute immunity must follow.
The Second Circuit has interpreted Van de Kamp to hold that "a prosecutor enjoys absolute immunity even when doing an administrative act if the act is done in the performance of an advocacy function."
Warney, 587 F.3d at 124.
"[T]he official seeking absolute immunity bears the burden of showing that such immunity is justified for the function in question." The Supreme Court has been "quite sparing" in its recognition of absolute immunity, because "[t]he presumption is that qualified rather than absolute immunity is sufficient to protect government officials in the exercise of their duties."
Burns, 500 U.S. at 486.
Id.
2. Qualified Immunity
"Qualified immunity is an affirmative defense designed to protect the defendant public official not just from liability but also from suit thereby sparing him the necessity of defending by submitting to discovery on the merits or undergoing a trial." "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." "A police officer who has an objectively reasonable belief that his actions are lawful is entitled to qualified immunity." In all cases, the qualified immunity analysis mandates a fact-specific inquiry.
Amore v. Novarro, 610 F.3d 155, 161 (2d Cir. 2010) (quotation marks and alterations omitted). Accord Jenkins v. City of New York, 478 F.3d 76, 87 n. 9 (2d Cir. 2007) ("[Qualified immunity] is `an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial.'" (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985))).
Taravella v. Wolcott, 599 F.3d 129, 133 (2d Cir. 2010) (quotation marks omitted). Accord Pearson v. Callahan, ___ U.S. ___, 129 S.ct. 808, 815 (2009).
Okin v. Village of Cornwall-On-Hudson Police Dep't, 577 F.3d 415, 433 (2d Cir. 2009).
"In order to overcome a qualified immunity defense, a plaintiff must demonstrate that `[t]aken in the light most favorable to the [plaintiff,] . . . the facts alleged show [that] the officer's conduct violated a constitutional right,' and that the right allegedly violated was `clearly established.'" "The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Under Pearson v. Callahan, courts have discretion to determine which of the two qualified immunity prongs to address first.
Amore, 610 F.3d at 162 (quoting Saucier v. Katz, 533 U.S. 194, 201 (2001), overruled in part on other grounds, Pearson, 129 S.ct. 808).
Saucier, 533 U.S. at 202.
See Pearson, 129 S.ct. at 818. Pearson recognized, however, that the traditional sequence "is often appropriate." Id.
The Second Circuit has framed the "objectively reasonable" inquiry as separate from the "clearly established" inquiry, thus necessitating that a plaintiff overcome three hurdles to survive a qualified immunity defense:
[A] government official sued in his individual capacity . . . is entitled to qualified immunity in any of three circumstances: (1) if the conduct attributed to him is not prohibited by federal law . . .; or (2) where that conduct is so prohibited, if the plaintiff's right not to be subjected to such conduct by the defendant was not clearly established at the time of the conduct . . .; or (3) if the defendant's action was objectively legally reasonable . . . in light of the legal rules that were clearly established at the time it was taken.
Yet, the Second Circuit has held the "inquiry into whether it was objectively reasonable for an officer to believe that his conduct did not violate a constitutional right [to be] part of the inquiry into whether the constitutional right allegedly violated was `clearly established.'" In Okin v. Village of Cornwall-On-Hudson Police Department, the court explained:
Amore, 610 F.3d at 162.
Some cases frame the test as disjunctive: an officer is entitled to qualified immunity if his conduct did not violate a clearly established constitutional right, or if it was objectively reasonable for him to believe that his conduct did not violate such a right. This would imply that an officer whose actions violated clearly established law might escape liability if he had an objectively reasonable belief that his conduct did not violate the clearly established law. However,
Saucier makes it clear that the "objectively reasonable" inquiry is part of the "clearly established" inquiry. Thus, once a court has found that the law was clearly established at the time of the challenged conduct and for the particular context in which it occurred, it is no defense for a police officer who violated this clearly established law to respond that he held an objectively reasonable belief that his conduct was lawful. This is so because a police officer who violates clearly established law necessarily lacks an objectively reasonable belief that his conduct was lawful. We clarify here that the two are part of the same inquiry, not independent elements as some cases suggested.
Nonetheless, a year later in Taravella v. Wolcott, a panel of the Second Circuit rejected the two-part inquiry. Calling the "third question indispensible[,]" the majority held that the defendant was entitled to qualified immunity because, although the plaintiff had alleged a violation of a clearly established constitutional right, the defendant's conduct was objectively reasonable. In a forceful and thorough dissent, Judge Chester Straub — quoting then-Judge Sonia Sotomayor's concurrence in Walczyk v. Rio — explained:
See Taravella, 599 F.3d at 134 ("`[E]ven where the law is `clearly established' and the scope of an official's permissible conduct is `clearly defined,' the qualified immunity defense also protects an official if it was `objectively reasonable' for him at the time of the challenged action to believe his acts were lawful.'" (quoting Higazy v. Templeton, 505 F.3d 161, 169-70 (2d Cir. 2007)) (alteration in original)).
Id. at 135.
See id. at 133-35.
Contrary to what our case law might suggest, the Supreme Court does not follow [the] `clearly established' inquiry with a second, ad hoc inquiry into the reasonableness of the officer's conduct. Once we determine whether the right at issue was clearly established for the particular context that the officer faced, the qualified immunity inquiry is complete.
[W]hether a right is clearly established is the same question as whether a reasonable officer would have known that the conduct in question was unlawful. This Court's case law, in contrast, bifurcates the `clearly established' inquiry into two steps. . . . By splitting the `relevant, dispositive inquiry' in two, we erect an additional hurdle to civil rights claims against public officials that has no basis
in Supreme Court precedent.
Given the inconsistent directives from the circuit, and, more importantly, because I "owe fidelity to the [Supreme] Court's articulation of the [qualified immunity] test," I do not analyze the reasonableness of UC 31107's conduct apart from the clearly established inquiry. I address this issue in the context of this case in further detail below.
See, e.g., Amore, 610 F.3d at 162 (recognizing tension in the case law as to [w]hether the `objectively reasonable' inquiry is framed as part of the `clearly established' inquiry, or apart from it. . . ."); Taravella, 599 F.3d at 135 (Straub, J., dissenting) ("I wish to call the Court's attention to what appears to me to be a long-standing inconsistency in our case law."); Walczyk, 496 F.3d at 165 (Sotomayor, J., concurring) ("I write separately to call the Court's attention to our collective failure to harmonize our qualified immunity analysis with the Supreme Court's directives.").
Maldonado v. Fontanes, 568 F.3d 263, 269 (1st Cir. 2009) ("[W]e adopt the [Supreme] Court's two-part test and abandon our previous usage of a three-step analysis.").
C. Immunity from State Causes of Action
The doctrine of qualified immunity is generally understood to only protect government officials from federal, not state, causes of action. A similar doctrine, however, exists under New York common law, which grants "government officials qualified immunity on state-law claims except where the official's actions are undertaken in bad faith or without a reasonable basis." Thus, generally a defendant who is entitled to qualified immunity on a federal claim is also immune from suit on the same claim under state law. "However, the reasonableness of an officer's action is judged with references to state law and the state, not the federal, constitution."
See Jenkins, 478 F.3d at 86.
Papineau v. Parmley, 465 F.3d 46, 63 (2d Cir. 2006).
See Jenkins, 478 F.3d at 87 ("If the detective defendants were entitled to qualified immunity under federal law, summary judgment would be similarly appropriate on Jenkins' [sic] state law false arrest claim.").
5 Borough Pawn, LLC v. City of New York, 640 F. Supp. 2d 268, 286 (S.D.N.Y. 2009).
IV. DISCUSSION
A. Defendant Hyman Is Entitled to Absolute Immunity
Defendant Hyman — Director of the Office of Special Enforcement, which prosecuted the nuisance abatement proceedings against Blue Door — asserts that she is entitled to absolute immunity. As discussed above, to establish absolute immunity, the ultimate question is whether Hyman has carried her burden of establishing that she was functioning as an "advocate" when she engaged in the challenged conduct. "`A prosecutor's administrative duties and those investigatory functions that do not relate to an advocate's preparation for the initiation of a prosecution or for judicial proceedings are not entitled to absolute immunity.'"
See Warney, 587 F.3d at 112 (quoting Doe v. Phillips, 81 F.3d 1204, 1209 (2d Cir. 1996)).
Id. (quoting Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993)).
Pursuant to Sections 7-704 and 7-706 of the New York City Administrative Code, the City is authorized to bring and maintain an action in the state Supreme Court to permanently restrain public nuisances and the persons conducting or permitting the nuisance to occur. The Nuisance Abatement Law also provides for the granting of certain ex parte temporary relief where the City presents "clear and convincing evidence" of a public nuisance affecting "the public health, safety or welfare."
See also N.Y.C. Admin. Code §§ 7-701 (providing legislative declaration), 7-703 (defining "public nuisance").
Id. §§ 7-707(a) and 7-710(a).
Furthermore, under Section 2321 of the New York Public Health Law, the City is authorized to maintain an action in equity in the name of the People of the State of New York in the Supreme Court in the county where the nuisance is located. Section 2321(4) authorizes the issuance of both an ex parte restraining order and a preliminary injunction where necessary to restrain a continuing public nuisance.
According to defendants, "[Hyman] represents the interests of the City and the public health in initiating nuisance abatement proceedings against establishments that maintain or permit prostitution and other acts inimical to the public health and safety to take place on their premises." Defendants argue that because Pinter challenges actions taken by Hyman in that quasi-prosecutorial role — initiating two nuisance abatement proceedings against Blue Door — she is entitled to absolute immunity.
Defendants' Memorandum of Law in Support of Their Motion for Summary Judgment ("Def. Mem.") at 20.
Defendants also argue that Pinter's allegations as to Hyman contradict the "substantial weight of administrative and judicial determinations that Blue Door created a public nuisance." Id. at 22. Defendants' argument cannot be credited at this time. Pinter's arrest was part of the "evidence" against Blue Door. Viewing Pinter's allegation of a false arrest as true means that at least some of the evidence gathered against Blue Door was also false. Thus, whether Blue Door was in fact creating a public nuisance is disputed.
Pinter, however, argues that he "does not challenge the legitimacy of the City's civil nuisance abatement litigation program." Instead:
Pl. Mem. at 13.
[Pinter challenges Hyman's] policy making conduct, as an executive and not a prosecutor or quasi prosecutor, which policy making functions for the agency, while inter-related to the civil nuisance abatement litigation program, were not prosecutorial or quasi prosecutorial in nature and do not therefore implicate or trigger an absolute immunity defense any more so than a district attorney, as the chief executive of his or her office, would have absolute immunity for promulgating and adopting certain office policies associated with the otherwise legitimate performance of his
subordinate's prosecutorial functions for which the subordinate, in function [sic] as a prosecutor, might possess absolute immunity.
Specifically, Pinter argues that Hyman and other defendants created and implemented "policies which propelled unlawful arrests of individuals in order to secure the requisite arrest data necessary to succeed in the otherwise lawfully commenced civil nuisance abatement litigations." Pinter further asserts that his arrest was part of a pattern of false arrests that immediately found their way into civil nuisance abatement proceedings against adult video stores and other businesses frequented by gay men.
Id. at 12 n. 17.
See, e.g., Compl. ¶ 133.
In her capacity as Director of the Office of Special Enforcement, Hyman undoubtedly has job functions apart from initiating nuisance abatement proceedings, including setting the policy and priorities that govern her staff and their coordination with other branches of law enforcement. While Pinter's allegations about the existence of the alleged unconstitutional policy are not bald and conclusory, he makes no allegations concerning the function in which Hyman acted when she issued that policy.
Pinter's policy allegation is anchored to his factual allegations regarding, inter alia: (1) the similar circumstances surrounding the arrests of numerous men for prostitution — similarities DANY recognized and acted upon — (2) statements made by NYPD officials regarding the existence of an arrest policy related to nuisance abatement lawsuits, and (3) connections between the Office of Special Enforcement and such an arrest policy. See supra Part II.C II.D.
Even accepting Pinter's allegations as true, the challenged action — the development and implementation of a policy of obtaining arrests to sustain and advance the City's nuisance abatement program — appears from the present allegations to be so entwined with Hyman's advocacy function that she is entitled to absolute immunity. Indeed, Pinter's own arrest appears to have resulted from the provision in the June 20 Settlement between the City, Blue Door, and Chiarelli that provided for unannounced NYPD investigations on the premises.
See Van de Kamp, 129 S.ct. at 858-59; Warney, 587 F.3d at 124.
That said, Hyman may have instead been functioning in an investigatory role when she promulgated and implemented the alleged policy, akin to when a prosecutor provides advice to the police during the investigative phase of a criminal case. If Pinter discovers that Hyman acted in an investigatory capacity — and such an act was not "integral" to her advocacy functions — then he may amend his Complaint accordingly. Should that occur, it will be necessary for me to revisit the question of whether Hyman is entitled to absolute immunity.
See Burns, 500 U.S. at 483-86.
Warney, 587 F.3d at 124.
B. UC 31107, the Vice Detectives, and Their Superiors Are Not Entitled to Qualified Immunity
1. False Arrest
Turning to qualified immunity, I first address whether Pinter alleges a constitutional violation in the form of false arrest — that is whether, on Pinter's account of the facts, probable cause existed to arrest him for prostitution.
Defendants do not assert that any ground beyond prostitution existed for the arrest of Pinter. Therefore, Devenpeck v. Alford is inapposite. In Devenpeck, the Supreme Court held that an officer's subjective intent for an arrest is irrelevant: Even if probable cause did not exist with respect to the stated basis for the arrest, the arrest is valid if any valid basis existed. See 543 U.S. 146, 153-56 (2004). Accord Jaegly v. Couch, 439 F.3d 149, 154 (2d Cir. 2006) ("[I]t is not relevant whether probable cause existed with respect to each individual charge, or, indeed, any charge actually invoked by the arresting officer at the time of the arrest."). The Court in Devenpeck reasoned that a contrary holding would create "arbitrary consequences." Id. at 155. If two officers arrest a suspect on identical facts supporting probable cause, one arrest could be constitutional and the other unconstitutional if the latter officer failed to identify correctly "a general class of offense for which probable cause exists." Id. at 154.
a. Pinter Alleges a Constitutional Violation
The elements of a claim for false arrest under Section 1983 "are substantially the same as the elements of a false arrest claim under New York law." Under New York law, the elements of a false arrest claim are: (1) the defendant intended to confine the plaintiff, (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. An arrest is privileged when probable cause exists for the individual's arrest. Likewise, "[t]here can be no federal civil rights claim for false arrest where the arresting officer had probable cause."
Singer v. Fulton County Sheriff, 63 F.3d 110, 118 (2d Cir. 1995) (quotation marks omitted).
See id.
See Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996).
Singer, 63 F.3d at 118 (quotation marks and citations omitted).
"The question of whether or not probable cause existed may be determinable as a matter of law if there is no dispute as to the pertinent events and the knowledge of the officers." However, where a plaintiff has alleged a constitutional violation and where the defendants' version of the facts is materially different, a trier of fact must determine the issue, provided the plaintiff survives the the second prong of the qualified immunity analysis.
Weyant, 101 F.3d at 852.
See id.
"Probable cause exists when, based on the totality of circumstances, the officer has `knowledge of, or reasonably trustworthy information as to, facts and circumstances that are sufficient to warrant a person of reasonable caution in the belief that an offense has been or is being committed by the person to be arrested.'" The inquiry into probable cause "is an objective one that focuses on the facts available to the arresting officer at the time of the arrest." "Before making an arrest, if the arresting officer has probable cause, he need not also believe with certainty that the arrestee will be successfully prosecuted." Nor does the validity of an arrest depend upon the ultimate adjudication of guilt or innocence. Probable cause is "an assessment of probabilities, not an ascertainment of truths." "[Probabilities] are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent [people], not legal technicians, act. . . . The substance of all the definitions of probable cause is a reasonable ground for belief of guilt." Probable cause, however, "requires more than a `mere suspicion' of wrongdoing[.]"
Finigan v. Marshall, 574 F.3d 57, 62 (2d Cir. 2009) (quoting Zellner v. Summerlin, 494 F.3d 344, 368 (2d Cir. 2007)).
Id.
Curley v. Village of Suffern, 268 F.3d 65 (2d Cir. 2001).
Brogdon v. City of New Rochelle, 200 F. Supp. 2d 411, 419 (S.D.N.Y. 2002) (citing Pierson v. Ray, 386 U.S. 547, 555 (1967)).
Loria v. Gorman, 306 F.3d 1271, 1288-89 (2d Cir. 2002).
Brinegar v. United States, 338 U.S. 160, 175 (1949) (quotation marks omitted). Accord Maryland v. Pringle, 540 U.S. 366, 371 (2003).
Walczyk, 496 F.3d at 157 (quoting Mallory v. United States, 354 U.S. 449, 455 (1957)).
Here, Pinter was arrested and charged with the Class B Misdemeanor of prostitution in violation of Section 230.00 of the New York Penal Law. Section 230.00 provides:
A person is guilty of prostitution when such person engages or agrees or offers to engage in sexual conduct with another person in return for a fee.
To be clear, Pinter was not charged with solicitation of a prostitute, which is a separate crime. See N.Y. Penal L. §§ 230.02-230.06.
Citing Black's Law Dictionary, New York courts have defined the statutory term "agree" to mean "`concur, . . . give mutual assent; unite in mental action.'" Similarly, an "agreement" is a "mutual understanding between two or more persons about their relative rights and duties regarding past or future performances" or "a manifestation of mutual assent by two or more persons." In People v. A.S., a state trial court stated that "acts of agreement showing defendant's intent to consummate an act of prostitution" include "taking a step toward committing the act" such as "accepting the consideration or accompanying the undercover officer to a place whether the sexual act might occur. . . ." Of course, as the court recognized in People v. A.M. — a case with obvious similarities to Pinter's — it is crucial to distinguish between non-commercial sexual encounters and acts of prostitution. In so doing, context matters:
People v. A.S., 685 N.Y.S.2d 573, 574 (Crim. Ct. N.Y. City. 1998) (quoting Black's Law Dictionary (6th ed. 1990)). Accord People v. Rodas, No. 2009NY085293, 2010 WL 1136506, at *2 n. 1 (Crim Ct. N.Y. City Mar. 26, 2010) (quoting Black's Law Dictionary (8th ed. 2004)); People v. A.M., No. 2001CN001284, 2001 WL 1117455, at *2 (Crim. Ct. N.Y. City July 31, 2001) (quoting Black's Law Dictionary (7th ed. 1999)).
A.M., 2001 WL 1117455, at *2 (quotation marks omitted).
685 N.Y.S.2d at 574. Similarly, in A.M., the court explained that "[w]ords or acts of the defendant which provide a reliable basis to believe that the defendant actually entered into and accepted the terms of [an agreement to exchange sex for a fee]" include "whether the defendant said something indicating he would exchange sex for remuneration, whether he discussed fees, whether he suggested a location for the act, whether he nodded his head or made some other affirmative gesture, or whether he accepted money." 2001 WL 1114755, at *4 (citing Matter of Marco M., 551 N.Y.S.2d 204 (1st Dep't 1990)).
In Marco M., the First Department held that the defendant agreed to engage in sex for a fee where the defendant nodded in agreement to the offer, voluntarily entered an unmarked police van, responded "no problem, you'll have a good time" to an officer's statement that he wanted to "get laid", and discussed the fee directly with the officer. 551 N.Y.S.2d at 204.
See 2001 WL 1114755, at *4.
Christopher Street and the Westside Highway, where this incident is alleged to have occurred, has long been known as a place where gay men are able to meet and socialize. The danger exists that an encounter in which an individual is simply making contact with another, perhaps for purposes of consensual sex, may, due to the ambiguities attendant to such encounters, be misconstrued or misunderstood by a police officer to be a prostitution
offense.
Viewing Pinter's version of events as true and drawing all reasonable inferences in his favor, UC 31107 did not have probable cause to arrest Pinter for prostitution. Defendants argue that UC 31107 reasonably believed that Pinter's actions, following the moment he (UC 31107) offered money for sex to Pinter, manifested Pinter's assent to a fee offer. Pinter did not explicitly reject UC 31107's offer; rather, Pinter remained silent and continued walking with the undercover toward the location where the sex act was to take place. The men also continued to talk in a flirtatious and sexual manner.
However, narrowly focusing on the events that occurred after the cash offer was made entirely ignores the totality of circumstances — the proper scope for a probable cause determination. Under the City's own argument — that walking toward the location where the sex act is to occur while talking in a sexual manner shows mutual assent — UC 31107 and Pinter had already agreed to have sex before UC 31107 introduced any notion of cash-for-sex. The existence of an agreement for sex gratis immediately preceding the offer of money fundamentally alters the facts available to UC 31107. UC 31107 knew he agreed to a free exchange of oral sex when he first broached the idea of a monetary transaction. This last point bears emphasis; it was UC 31107, not Pinter, who injected — out of nowhere — the element of a "fee".
In this connection, I observe that, in 1983, the New York Court of Appeals declared Section 240.35(3) of the Penal Law unconstitutional on due process grounds. See People v. Uplinger, 460 N.Y.S.2d 514, 515 (1983). This provision criminalized "loiter[ing] or remain[ing] in a public place for the purpose of engaging, or soliciting another person to engage, in oral sexual conduct, anal sexual conduct or other sexual behavior of a deviate nature." N.Y. Penal L. § 240.35(3). Notwithstanding Uplinger, the New York Legislature did not repeal the void statute and law enforcement, including the NYPD, continued to vigorously enforce it. See Casale v. Kelly, ___ F. Supp. 2d ___, Nos. 08 Civ. 2173, 05 Civ. 5442, 2010 WL 1685582, at *1 n. 6, *2-*6 (S.D.N.Y. Apr. 26, 2010). In April 2010, this Court held the City of New York in contempt for failing to cease enforcing the void law, despite an abundance of time and opportunity to do so. See id. at *7-*9. Finally, in July 2010 — twenty-seven years after Section 240.35(3) was struck down — the Legislature passed and Governor Patterson signed legislation repealing the provision, among other subsections of the loitering law judicially invalidated decades ago. See 2010 N.Y. Sess. Laws Ch. 232 (A. 5537-A).
The word "fee" in Section 230.00 of the Penal Law has been construed by New York courts to mean payment in return for professional services. The concept of a fee exchange restricts the statute's reach by requiring an aspect of commercialism. As one court long ago explained: it is not prostitution where "a wife . . . withholds the performance of her conjugal duties unless her husband gives her a mink coat." However offensive that example is to contemporary notions of gender and marital roles, the point remains the same — "prostitution involves the exchange of sex for a fee on a professional basis."
See, e.g., People v. Medina, 685 N.Y.S.2d 599, 601 (Crim. Ct. N.Y. City 1999) ("The purpose of Article 230 is to prohibit the commercial exploitation of sexual gratification or public solicitation of a sex act for a fee." (citing In re Dora P., 418 N.Y.S.2d 597 (1st Dep't 1979) and People v. Costello, 395 N.Y.S.2d 139 (Sup. Ct. N.Y. Cty. 1977)); Cherry v. Koch, 491 N.Y.S.2d 934, 944 n. 7 (Sup. Ct. Kings Cty. 1985) ("`The Fair Import of the Word [sic] `Fee' then is payment in return for professional services rendered. . . . `Fee' in Section 230.00 of the Penal Law can fairly be said to connote professionalism. It restricts the purview of the statute.'" (quoting People v. Block, 337 N.Y.S.2d 153, 157 (Cty. Ct. Nassau Cty. 1972)); id. at 945-46 (observing prostitution's "commercial aspect of sex for a fee").
See Medina, 685 N.Y.S.2d at 601; Cherry, 491 N.Y.S.2d at 944-46; Block, 337 N.Y.S.2d at 157.
Block, 337 N.Y.S.2d at 157. Accord Cherry, 491 N.Y.S.2d at 945-46.
People v. Halmond, 737 N.Y.S.2d 787, 791 (Sup. Ct. Monroe Cty. 2001) ("[E]ngag[ing] in sexual relations for alcohol and drugs . . . [does] not constitute prostitution.").
Given the prior agreement for sex gratis and the actions taken toward performing that agreement, Pinter's silence and subsequent actions cannot reasonably be viewed as an acceptance of the offer of a fee on a professional basis. Pinter was, moreover, justifiably confused by the offer of money, rendering his silence unsurprising. Why, for example, would UC 31107 pay for something that Pinter had already agreed to do for free? And why would a young attractive man seek to pay to fellate Pinter? A reasonable officer in UC 31107's shoes would have expected, at a minimum, that Pinter would ask himself such questions.
Even if Pinter had agreed to accept the cash, this would appear to fall under the category of a tip or gratuity rather than a commercial transaction — given that the two already agreed to a sexual encounter.
These questions are not merely hypothetical — Pinter actually asked himself these things in the short period of time before his arrest. See Pinter Dep. at 108-109; Compl. ¶ 41.
Of course, Pinter and UC 31107 continued to walk to the location where the sex act was to take place (though they did not actually arrive at that location) and they discussed their penis sizes and flirted about their ages. But these facts — again, when viewed in the context of the prior agreement and the entire encounter — do not make it probable that Pinter agreed to accept a fee for professional services. What is more, at the time when UC 31107 raised the issue of money, Pinter and UC 31107 were already walking toward's the latter's car and were already speaking in a sexual manner. These circumstances further undermine any belief that Pinter had assented to exchange sex for a fee. It is also important to recognize that it was UC 31107 — not Pinter — who posed the questions about penis size and age. And UC 31107's awareness of Pinter's age — 52 at the time of his arrest — should also have given UC 31107 pause as to whether Pinter was a prostitute. At most, Pinter's behavior after UC 31107 offered the money raised a suspicion of criminal activity. A suspicion, even if reasonable, is not probable cause.
See Pinter Dep. at 111 ("A: After his statement about where his car was, he asked me how big I was. Q: How big meaning the size of your penis? A: I assumed so, yes. Q: Did you answer him? A: Yes, I did.").
See id. at 112 ("A: He asked me how old I was? Q: What did you say to him? A: I asked him to guess. Q: What did he guess? A: He said 35. Q: What did you say? A: I said, thanks, why don't you switch those two numbers around, and you'll be much closer to my age. Q: What did he say? A: And with surprise he said `53?', and I said, `almost, I'm 52.'").
See Mallory, 354 U.S. at 455; Walczyk, 496 F.3d at 157.
An officer of "reasonable caution" in these circumstances would have asked a follow-up question when faced with Pinter's silence about whether he meant to accept the money. A host of simple inquiries could have sufficed. For example: "So, how about the money?" or "I'd like to pay you; is that cool?" or even "Hey, I hope this is okay with you." I recognize that UC 31107 was not required to "make a full investigation into [Pinter's] state of mind prior to taking action." "Once a police officer has a reasonable basis for believing there is probable cause, he is not required to explore and eliminate every theoretically plausible claim of innocence before making an arrest." But here, as already discussed, probable cause did not yet exist for Pinter's arrest given the prior agreement for sex gratis. Nor were there any exigent circumstances — Pinter was not about to flee, for example — that excuse UC 31107 from failing to make a reasonably thorough investigation prior to ordering Pinter's arrest.
Cf. Bradley v. Jusino, No. 04 Civ. 8411, 2009 WL 1181617, at *8 (S.D.N.Y. May 4, 2009) ("Many courts, including those in this Circuit, have recognized that in certain circumstances, an arresting officer is obligated to make a minimal inquiry before making an arrest. . . . [W]hile an officer's failure to investigate an arrestee's protestations of innocence generally does not vitiate probable cause,' Panetta v. Crowley, 460 F.3d 388, 396 (2d Cir. 2006), it does not follow that a court cannot consider an officer's failure to make an inquiry in determining whether the officer's belief that probable cause existed was objectively reasonable.").
Ricciuti v. New York City Transit Auth., 124 F.3d 123, 128 (2d Cir. 1997). Accord Krause v. Bennett, 887 F.2d 362, 372 (2d Cir. 1989) ("It bears repeating that probable cause does not require an officer to be certain that subsequent prosecution of the arrestee will be successful. It is therefore of no consequence that a more thorough or more probing investigation might have cast doubt upon the situation." (quotation marks omitted)).
Ricciuti, 124 F.3d at 128. But see Jocks v. Tavernier, 316 F.3d 128, 136 (2d Cir. 2003) ("[W]e do not read Ricciuti to permit an officer to deliberately disregard facts known to him which establish justification.").
See Kuehl v. Burtis, 173 F.3d 646, 650 (8th Cir. 1999) ("[L]aw enforcement officers have a duty to conduct a reasonably thorough investigation prior to arresting a suspect, at least in the absence of exigent circumstances and so long as law enforcement would not be unduly hampered if the agents wait to obtain more facts before seeking to arrest." (quotation marks and alterations omitted)); Bradley, 2009 WL 1181617, at *8 ("Defendant was not in possession of any evidence, such as a statement from a third-party witness, on which to reasonably base his probable cause determination, and the duty to inquire is not being invoked in order to require officers to conduct `mini-investigations' before determining whether probable cause exists.").
Defendants place heavy reliance on a single 1998 criminal court case, People v. A.S., which dismissed a form criminal complaint alleging prostitution in conclusory terms. In that case, the defendant was arrested and charged with violating Section 230.00 of the Penal Law. The entire criminal complaint stated: "Deponent states that while deponent was acting as an undercover officer the defendant agreed to engage in sexual conduct with the deponent . . . in exchange for $60."
See 685 N.Y.S.2d 573.
Id. at 574.
The court's brief opinion then discusses the required element that the defendant "agreed" to do the illicit act. The court noted that the prosecution must provide evidence "that defendant actually agreed to engage in a sexual act for a fee under circumstances evidencing the requisite criminal intent." The court also stated, "[m]ore fundamentally, the complaint must allege facts that make a prima facie showing defendant actually agreed to engage in a sexual act for a fee." While it is true that the court provided examples of agreement — accepting a fee or "accompanying the undercover officer to a place where the sexual act might occur" — these examples are provided in a complete vacuum. In fact, no circumstances are recounted that would permit that court or any court to judge whether the requisite intent to agree could be demonstrated. As a result, the case carries little, if any, precedential weight with respect to the issues presently before this Court.
Id. at 575 (emphasis added).
Id.
Id.
Furthermore, a number of courts — including the Appellate Term, Second and Eleventh Judicial Districts, of the First Department in an unpublished disposition — have rejected the holding of A.S. that the term "agree" is conclusory. See, e.g., People v. Hilo, Nos. 2003-931 Q CR, 2003-933 Q CR, 2003 934 Q CR, 2004 WL 1517151 (1st Dep't July 1, 2004), Rodas, 2010 WL 1136506, at *2. More importantly, I am aware of no decision that has carefully analyzed the quid pro quo aspect of the fee for professional services raised by the case now before this Court.
Here, by contrast, the circumstances alleged by Pinter made it unreasonable for the officer to conclude that Pinter had either agreed to engage in a sexual act for a fee (as opposed to a mere gratuity) given the previous agreement to consensual sex gratis and the steps taken in furtherance of that agreement, or that Pinter was providing a professional service for a fee. Viewing the entire encounter between UC 31107 and Pinter as a whole, UC 31107 could not have had an objectively reasonable belief that, after he picked Pinter up and agreed to a "consensual" sexual encounter, the men's gratuitous agreement morphed into a commercial act of prostitution.
See Compl. ¶¶ 32, 36, 37.
Obviously, the preceding analysis is based on Pinter's version of the facts. UC 31107's version of the circumstances leading to Pinter's arrest is drastically different. This is a classic case of dueling accounts of an event where the trier of fact, in light of all of the evidence and after assessing credibility, will be required to decide whose version or which combination of versions is accurate. This is not the task at hand, however. Pinter has alleged that he was arrested without probable cause — a constitutional violation. Defendants have not identified a single case, state or federal, holding to the contrary in comparable circumstances. It is, moreover, defendants' burden at this juncture to establish their "entitlement to qualified immunity."
See supra n. 56.
Palmer v. Richards, 364 F.3d 60, 67 (2d Cir. 2004).
b. "Arguable" Probable Cause
The Second Circuit has held that "in the context of a qualified immunity defense to an allegation of false arrest, the defending officer need only show `arguable' probable cause." Under this line of cases, "[a] police officer is entitled to qualified immunity from a claim for arrest, even in the absence of probable cause, if: (1) it was objectively reasonable for the officer to believe that probable cause existed, or (2) if officers of reasonable competence could disagree on whether there was probable cause."
Martinez v. Simonetti, 202 F.3d 625, 634 (2d Cir. 2000).
Golino v. City of New Haven, 950 F.2d 864, 870 (2d Cir. 1991). Accord Zellner, 494 F.3d at 369; Lennon v. Miller, 66 F.3d 416, 420-21 (2d Cir. 1995).
As part of the tension in the case law about whether the "objectively reasonable" inquiry is framed as part of, or apart from, the "clearly established' inquiry, there is an important question about whether "arguable probable cause" is appropriately considered outside of the clearly established inquiry. As put by Justice Sotomayor when she was a member of the Second Circuit:
See supra Part III.B.2.
It is not surprising, then, that "arguable probable cause" finds no mention in any Supreme Court opinion; the need for a separate term to describe this concept arises only once we have improperly splintered the "clearly established" inquiry. Because I believe "arguable probable cause" is both imprecise and an outgrowth of the first flaw in our qualified immunity analysis, I do not agree with the majority's use of the term. I recognize that the distinction I am drawing is a fine one, but I believe it has real
consequences. . . . By introducing reasonableness as a separate step, we give defendants a second bite at the immunity apple, thereby thwarting a careful balance that the Supreme Court has struck between the interests in vindication of citizens' constitutional rights and in public officials' effective performance of their duties.
Because of the inconsistent precedent binding on this Court and my belief that "reasonableness — and therefore the existence of `arguable probable cause' — are considerations that properly fall within the clearly established inquiry as the Supreme Court has described it[,]" I do not reach the issue of whether UC 31107 had arguable probable cause separate from the question of whether the law he violated was clearly established. What is more, defendants do not even argue the issue of arguable probable cause apart from the clearly established inquiry.
Id.
See Def. Mem. at 15-16.
2. Pinter's Right Was Clearly Established
"For a constitutional right to be `clearly established' for purposes of determining whether an officer is entitled to qualified immunity, the `contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.'" "In deciding whether a right was clearly established, we ask: (1) Was the law defined with reasonable clarity? (2) Had the Supreme Court or the Second Circuit affirmed the rule? and (3) Would a reasonable defendant have understood from the existing law that the conduct was unlawful?" "Because qualified immunity is an affirmative defense . . . `the defendants bear the burden of showing that the challenged act was objectively reasonable in light of the law existing at that time.'"
Mollica v. Volker, 229 F.3d 366, 370 (2d Cir. 2000) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).
Young v. County of Fulton, 160 F.3d 899, 903 (2d Cir. 1998).
Tellier v. Fields, 280 F.3d 69, 84 (2d Cir. 2000) (quoting Varrone v. Bilotti, 123 F.3d 75, 78 (2d Cir. 1997)). Accord Palmer, 364 F.3d at 67.
As a general matter, "[t]here is no doubt that the right to be free from arrest without probable cause [is] clearly established." As to the particulars of this case, defendants do not even argue that Pinter's right to be free from arrest for prostitution without probable cause to believe that he assented to exchange sex for a fee was not clearly established in October 2008 (the time of Pinter's arrest). Rather, defendants simply reargue the reasonableness of UC 31107's belief that Pinter agreed to an act of prostitution.
Jenkins, 478 F.3d at 87.
See Def. Mem. at 16.
However, for all of the reasons discussed above, UC 31107 did not have an objectively reasonable belief that Pinter's actions were unlawful. In light of the (1) agreement between UC 31107 and Pinter for free sex and the steps both men took to consummate that agreement — all of which preceded any contemplation whatsoever of a monetary transfer — and (2) Pinter's silence as to the offer, it was objectively unreasonable for UC 31107 not to make a follow-up inquiry as to whether Pinter accepted the offer of a "fee" (a word that has been long construed by New York courts to limit the reach of the statute to professional, commercial transactions). Though Pinter and the undercover continued walking and talking flirtatiously, this conduct, at most, raised a suspicion about Pinter's assent to exchange sex for a fee. But Pinter's conduct following the offer — viewed in the totality of circumstances — does not establish a reasonable belief that it was probable that Pinter agreed to a commercial transaction.
Again, as I have stressed, Pinter's version of the facts are accepted as true for the purposes of this motion. Because the objective reasonableness of "a defendant officer's conduct . . . is a mixed question of law and fact," Zellner, 494 F.3d at 367, reasonableness cannot be finally determined at this time in light of the material factual disputes that exist between Pinter's and UC 31107's accounts.
In sum, no competent officer could reasonably believe that it was probable that Pinter committed prostitution where the undercover knew that he (the officer): initiated the contact, steered the conversation toward sex, agreed to consensual gratuitous sex, took steps toward the location where the sex act was to occur, raised the issue of cash-for-sex, faced silence as to whether Pinter meant to accept the cash, continued walking toward the specified location, initiated further conversation about sex, and knew that Pinter was 52 years old. And there was no impediment to prevent the undercover from quickly pursuing a simple inquiry to ascertain additional information about whether Pinter had accepted or declined a fee offer. Accordingly, Pinter has alleged a constitutional violation of a clearly established right.
Defendants' only argument as to the Vice Detectives (UC 31107's team members) is that they are entitled to qualified immunity under the "fellow-officer" rule — that is, the Vice Detectives "were entitled to rely upon facts supporting probable cause for Pinter's arrest that were known to UC 31107." Def Mem. at 17. Because UC 31107 did not have probable cause to believe that Pinter committed prostitution, the Vice Detectives have not established their entitlement to qualified immunity at this stage.
Defendants also argue that because Pinter "cannot show that a constitutional violation occurred, the corresponding cause of action against the municipality [is] mooted." Id. at 23. Defendants likewise argue (only in their reply) that, absent a constitutional violation, "all potential derivative liability claims for supervisory liability" must be dismissed. Defendants' Reply in Support of Their Motion for Summary Judgment ("Def. Reply") at 10. Accord id. at 11. However, because Pinter has alleged a constitutional violation, these arguments fail.
Defendants' only other contention as to municipal liability is: "Although Pinter makes reference to the arrests of other gay men around the City, he fails to plead any specific fats [sic] that would permit the Court to infer that those arrests were the result of a municipal policy or practice or any misconduct on the part of the City itself." Def. Mem. at 23. This argument is frivolous. The factual allegations recounted in Part II above more than satisfy the "plausibility" standard for pleading articulated by the Supreme Court in Ashcroft v. Iqbal, ___ U.S. ___, 129 S.ct. 1937 (2009) and Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007).
C. Other Claims
Defendants' opening Memorandum of Law is internally inconsistent as to the claims on which they seek summary judgment. Defendants' Reply attempts to clarify the confusion and states that they seek summary judgment on the malicious prosecution, malicious abuse of process, discrimination, and associational claims, in addition to the false arrest claim. Thus, defendants have waived any absolute or qualified immunity defense as to Pinter's excessive force and unreasonable detention claims.
Compare Def. Mem. at 2 (mentioning only the false arrest and malicious prosecution claims); with id. at 7 (stating "[d]efendants seek summary judgment . . . on plaintiff's false arrest, malicious prosecution, excessive force, First Amendment and municipal liability claims" and failing to mention the malicious abuse of criminal process and unreasonable detention claims); and with id. at 8 ("Defendants UC 31107, Sterling, Michilena, Dailey and Madison are entitled to summary judgment on the defense of qualified immunity on plaintiff's false arrest claim." (emphasis added)).
See Def. Reply at 9-10.
As to the malicious prosecution, malicious abuse of process, discrimination, and associational claims, defendants' sole argument is that, because there was probable cause for Pinter's arrest, each of the claims fail. Defendants have not meaningfully argued any other ground for dismissal of any of these four claims. Nor has Pinter meaningfully addressed them apart from the issue of probable cause. In these circumstances, the Court cannot be expected to — and indeed should not — create arguments in favor of or against dismissal of these claims.
See id.
For example, defendants mention Pinter's sexual-orientation discrimination claim in only three sentences that appear in the discussion of absolute immunity for Hyman. See Def. Mem. at 21-22.
At the close of discovery, the parties will be permitted to move for summary judgment on any of Pinter's claims. In so doing, defendants may raise any ground in support of such motion with respect to the malicious prosecution, malicious abuse of process, discrimination, and associational claims. With respect to the excessive force and unreasonable detention claims, defendants may raise any ground except absolute and qualified immunity.
V. CONCLUSION
For the reasons stated above, defendants' motion for summary judgment is granted in part and denied in part. Defendant Hyman is hereby dismissed without prejudice from this suit. The Clerk of Court is directed to close this motion (Docket Entry # 19). A Final Pre-Trial/Pre-Motion Conference is scheduled for November 23, 2010, at 4:30 p.m.
VI. POSTSCRIPT — ENTRAPMENT
Because the specter of entrapment has been raised by the parties and the public controversy surrounding the arrest of Pinter and others, a few words are warranted on this issue. In New York, to establish the defense of entrapment, a defendant must prove, by a preponderance of the evidence, that he was actively induced or encouraged to commit the charged crime by the police or someone acting in cooperation with the police, and that he was not predisposed to committing the crime.
[E]ntrapment is
not a defense which negates the commission of the crime charged or the existence of any element thereof. Rather, it acts as a species of "confession and avoidance." The defense was designed merely to prevent punishment for an offense which is the product of the creative activity of the state's own officials by focusing on the inducing conduct of the police and the defendant's predisposition.
See supra Part II.C; Crosby, 2010 WL 2541097; Hauser, supra n. 43; Duncan Osborne, "Bloomberg's Home Targeted in False Arrests Protest," Gay City News (Feb. 14, 2009), Ex. I to Meyerson Decl.; Paul Schindler, "Stop the Arrests," Gay City News (Feb. 6, 2009), Ex. I to Meyerson Decl.
See N.Y. Penal L. § 40.05 ("In any prosecution for an offense, it is an affirmative defense that the defendant engaged in the proscribed conduct because he was induced or encouraged to do so by a public servant, or by a person acting in cooperation with a public servant, seeking to obtain evidence against him for purpose of criminal prosecution, and when the methods used to obtain such evidence were such as to create a substantial risk that the offense would be committed by a person not otherwise disposed to commit it. Inducement or encouragement to commit an offense means active inducement or encouragement. Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment."). See also People v. Butts, 72 N.Y.2d 746, 750-51 (1988) ("Penal Law § 40.05 requires a showing both that the proscribed conduct was `induced or encouraged' by official activity and that the defendant had no predisposition to engage in such conduct.").
A defendant is permitted to argue entrapment and to deny the commission of the crime, even if those arguments are inconsistent.
See Butts, 72 N.Y.2d at 748-49.
To the extent that Pinter and UC 31107 agreed to sex before UC 31107 made any offer of money to Pinter, entrapment would have been a viable affirmative defense to the criminal charge of prostitution. While merely affording a defendant an opportunity to commit an offense is insufficient to warrant a finding of entrapment, UC 31107 — according to Pinter — did more than simply open the door for Pinter to prostitute himself. If there was an agreement for sex gratis and steps were taken in furtherance of that agreement prior to the offer of money, a reasonable jury could conclude that UC 31107 actively induced or encouraged the crime. And similar to DANY's conclusion that Pinter likely did not go to Blue Door with the intent to solicit money for sex, a reasonable jury could conclude that Pinter had no predisposition to commit prostitution.
The Second Circuit has stated that "`[w]hile entrapment may be a proper defense in a criminal action, a police officer's participation in such activity does not constitute a constitutional violation.'" DiBlasio v. City of New York, 102 F.3d 654, 657 (2d Cir. 1996) (quoting Jones v. Bombeck, 375 F.2d 737, 738 (3d Cir. 1967) ( per curiam)).
See People v. Brown, 82 N.Y.2d 869, 872 (1993).
Entrapment is question of fact for the jury, provided a sufficient factual predicate exists to charge a jury on entrapment. See People v. McGee, 49 N.Y.2d 48 (1979).
See DANY Aff. ¶ 5.
Buttressing this assessment, the NYPD Legal Bureau itself "recommends [to officers] that the suggestion of sex or money come from the defendant" to "eliminate the affirmative defense of entrapment." When the "`idea of the crime' originat[es] with the police," grounds for entrapment exist.
Internal Affairs Bureau ("IAB"), Investigative Findings with Respect to Pinter's Arrest ("IAB Findings") at 5 (emphasis added), Ex. B to defendants' 8/4/10 letter to the Court. The IAB investigates claims of serious misconduct and corruption of members of the NYPD. See, e.g., Floyd v. City of New York, No. 08 Civ. 1034, 2010 WL 2594627, at *1 (S.D.N.Y. June 25, 2010); Casale, 2010 WL 1685582, at *8.
IAB Findings at 4. No policy or standards within the NYPD exist with respect to entrapment, though the NYPD prefers to avoid grounds for the defense. See id. at 5.
Here, assuming Pinter is correct, then it was UC 31107 who approached Pinter, it was UC 31107 who began their conversation and steered it toward sex, and it was UC 31107 who offered the money. As Pinter plainly put it: "I was in that store shopping for a DVD, I was minding my own business, your officer approached me, butted his nose into my business, and created this whole incident." If true, these circumstances not only reek of entrapment; they are unsettling and inappropriate.
Pinter Dep. at 126.
SO ORDERED:
Dated: September 13, 2010
New York, New York