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17-1284-cv

Paige-El v. Herbert

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY 

ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF 

APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER 

IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN 

ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY 

ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 

At a stated term of the United States Court of Appeals for the Second Circuit, 

held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 

New York, on the 30th day of May, two thousand eighteen.

PRESENT:

JON O. NEWMAN,

PETER W. HALL,

SUSAN L. CARNEY,

Circuit Judges.

__________________________________________

Bettie Paige-El,

Plaintiff-Appellant,

v. No. 17-1284-cv

Police Officer Jarrod Herbert, Police Officer 

Peter Congalosi,

Defendants-Appellees,

New York City Police Department, 73rd 

Precinct, New York City Police Department, 

88th Precinct, Detective Thomas Donohue, New 

York City Police Department, 81st Precinct, City 

of New York, New York City Police Department,

Defendants.

_________________________________________
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FOR PLAINTIFF-APPELLANT: Bettie Paige-El, pro se, Brooklyn, N.Y.

FOR DEFENDANTS-APPELLEES: Susan P. Greenberg, Barbara Graves-Poller, for

Zachary W. Carter, Corporation Counsel, New 

York, N.Y.

Appeal from a judgment of the United States District Court for the Eastern District of

New York (Townes, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 

DECREED that the judgment of the district court is AFFIRMED. 

Appellant Bettie Paige-El, proceeding pro se, appeals from a judgment in favor of

Appellees in her 42 U.S.C. § 1983 action against the City of New York, the New York City Police 

Department (“NYPD”), Detective Thomas Donohue, and Police Officers Jarrod Herbert and Peter 

Congalosi. Paige-El alleged that Herbert and Congalosi effected an unlawful traffic stop and 

falsely arrested her, and that, after the arrest, a tracking device was installed in her car. She also 

alleged that other unidentified individuals engaged in a conspiracy to stalk and harass her, which 

ultimately culminated in attempted murder and kidnapping. The district court dismissed most of 

Paige-El’s claims for failure to state a claim, and then granted summary judgment to Herbert and 

Congalosi on Paige-El’s claim based on the traffic stop. This appeal follows. We assume the 

parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on 

appeal.

We review de novo the dismissal of a complaint pursuant to Federal Rule of Civil 

Procedure 12(b)(6), accepting all factual allegations as true and drawing all reasonable inferences 

in plaintiff’s favor. Biro v. Condé Nast, 807 F.3d 541, 544 (2d Cir. 2015). The complaint must 
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plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. 

Twombly, 550 U.S. 544, 570 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 

Although a court must accept as true all the factual allegations in the complaint, that requirement 

is “inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678.

We review de novo a district court’s grant of summary judgment. Garcia v. Hartford 

Police Dep’t, 706 F.3d 120, 126 (2d Cir. 2013) (per curiam). Summary judgment must be granted 

if “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). When determining whether a genuine dispute exists, this 

Court must “resolve all ambiguities and draw all inferences against the moving party.” Garcia, 

706 F.3d at 127. A party, however, cannot overcome summary judgment by relying on “mere 

speculation or conjecture as to the true nature of the facts” because “conclusory allegations or 

denials . . . cannot by themselves create a genuine issue of material fact where none would 

otherwise exist.” Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010) (quoting Fletcher v. Atex, 

Inc., 68 F.3d 1451, 1456 (2d Cir. 1995)).

Motions to dismiss. Upon review, we conclude that the district court properly dismissed 

most of Paige-El’s claims for failure to state a claim. The NYPD, as a city agency, is not a suable 

entity. N.Y. City Charter ch. 17 § 396 (“All actions and proceedings for the recovery of penalties 

for the violation of any law shall be brought in the name of the city of New York and not in that 

of any agency, except where otherwise provided by law.”); Jenkins v. City of New York, 478 F.3d 

76, 93 n.19 (2d Cir. 2007) (“The district court correctly noted that the NYPD is a non-suable 

agency of the City.”). Paige-El failed to allege any official policy or custom giving rise to the 

alleged deprivations of her constitutional rights, as required to hold the City liable. See Monell v. 

Dep’t of Soc. Servs., 436 U.S. 658, 692–94 (1978).
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Paige-El’s first amended complaint contained no allegations concerning Detective 

Donohue, and, in any event, she has abandoned any claim against him by failing to address it in 

her appellate brief. See LoSacco v. City of Middletown, 71 F.3d 88, 92–93 (2d Cir. 1995). And 

she failed to attribute to any named defendant her allegations of surveillance, attempted murder 

and kidnapping, and damage to her car tires. See, e.g., Back v. Hastings on Hudson Union Free 

Sch. Dist., 365 F.3d 107, 122 (2d Cir. 2004) (“[I]n this Circuit personal involvement of defendants 

in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.” 

(quoting McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir. 1977)).

Paige-El’s false-arrest and warrantless-surveillance claims against Congalosi and Herbert 

were also properly dismissed. And she did not plead what involvement, if any, Congalosi and 

Herbert had in the alleged placement of a tracking device in her car. See, e.g., Back, 365 F.3d at 

122. To the extent Paige-El’s second amended complaint could be construed to assert a First 

Amendment retaliation claim based on prior complaints she had made about her grandson’s 

treatment in prison, she alleged no facts demonstrating that Congalosi and Herbert even knew 

about those complaints or were in any way motivated by them. See, e.g., Williams v. Town of 

Greenburgh, 535 F.3d 71, 76 (2d Cir. 2008) (requiring defendants’ alleged actions to have been 

“motivated or substantially caused” by the exercise of a First Amendment right (quoting Curley v. 

Village of Suffern, 268 F.3d 65, 73 (2d Cir. 2001))).

Summary judgment. We also conclude that the district court properly granted summary 

judgment to Congalosi and Herbert on Paige-El’s claim based on the allegedly unlawful traffic 

stop. The temporary detention of an individual during a traffic stop qualifies as a Fourth 

Amendment “seizure.” Whren v. United States, 517 U.S. 806, 809–10 (1996). “The Fourth 

Amendment requires that an officer making such a stop have probable cause or reasonable 
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suspicion that the person stopped has committed a traffic violation or is otherwise engaged in or 

about to be engaged in criminal activity.” Holeman v. City of New London, 425 F.3d 184, 189 

(2d Cir. 2005).

Here, Congalosi and Herbert submitted undisputed evidence that, at the time of the stop, 

they relied on information from the New York State Police Information Network showing that the 

license plates on Paige-El’s car were suspended for want of active insurance coverage. Although 

Paige-El submitted evidence demonstrating that she had insurance at the time of the stop, this 

evidence was insufficient to create a genuine dispute of material fact concerning whether her 

insurance had previously lapsed. Paige-El’s speculation that the stop was pretextual is irrelevant. 

“Whether probable cause or reasonable suspicion exists is an objective inquiry; the ‘actual 

motivations of the individual officers involved’ in the stop ‘play no role’ in the analysis.” Id. at 

190 (quoting Whren, 517 U.S. at 813).

We have considered Paige-El’s remaining arguments and find them to be without merit. 

Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk of Court