Opinion
02 CV 3651 (JG).
February 17, 2006
REPORT AND RECOMMENDATION
On June 21, 2002, plaintiff Theodore Richardson commenced this action against Detective Suzanne McDermott and Undercover #7404, officers with the New York City Police Department ("NYPD"), and the City of New York, alleging false arrest, false imprisonment, malicious prosecution, malicious abuse of process, and denial of a fair trial pursuant to 42 U.S.C. §§ 1983, 1988 and the First, Fourth, Eighth and Fourteenth Amendments to the Constitution.
Defendants move for summary judgment arguing that: (1) there was probable cause for plaintiff's arrest and prosecution; (2) plaintiff cannot establish the elements necessary to prove a claim of malicious abuse of process; and (3) the NYPD officers are entitled to qualified immunity. Moreover, since plaintiff entered a plea of guilty to violating a condition of parole and was incarcerated on that charge, defendants contend that he has no basis for claiming injury from his arrest and cannot state a claim for denial of the right to a fair trial.
Defendants' motion has been referred to the undersigned to prepare a Report and Recommendation.
FACTUAL BACKGROUND
Certain facts are not in dispute. On January 23, 2000, Detective Suzanne McDermott, a narcotics investigator, and Undercover #7404, an undercover officer, were members of a team of NYPD officers assigned to conduct buy-and-bust operations as part of the Southeast Queens Initiative Command of the NYPD. (Defs.' 56.1 Stmnt. ¶¶ 1-3, Ex. A at 5-6; Pl.'s Resp. ¶¶ 1-3). Detective McDermott was assigned as the arresting officer that evening. (Defs.' 56.1 Stmnt. ¶ 6; Pl.'s Resp. ¶ 6). She was stationed in an unmarked police car with the field team sergeant, Daniel Mulcahy, where she was to monitor the Kel transmissions received from Undercover #7404. (Defs.' 56 Stmnt. ¶ 7; Pl.'s Resp. ¶ 7). In the course of purchasing narcotics, Undercover #7404 was to transmit information over the Kel transmitter as to the location of the purchase, whether drugs had been sold, and a physical description of the individuals involved. (Defs.' 56.1 Stmnt. ¶¶ 4-5; Pl.'s Resp. ¶¶ 4-5). In addition to the Kel transmitter, which could only be monitored by Detective McDermott, each member of the field team had hand-held radios. (Defs.' 56.1 Stmnt. ¶¶ 7-9; Pl.'s Resp. ¶¶ 7-9).At 8:45 p.m. on January 23, 2000, defendants began their tour of duty with a meeting of the field team to discuss the planned operations of the team for that shift. (Defs.' 56.1 Stmnt. ¶¶ 10-11; Pl.'s Resp. ¶¶ 10-11). At that time, Sergeant Mulcahy gave Detective McDermott the pre-recorded buy money which was to be used to purchase narcotics. (Defs.' 56.1 Stmnt. ¶¶ 12-15, 19; Pl.'s Resp. ¶¶ 12-15, 19). Detective McDermott, in turn, made photocopies of the money in order to record the serial numbers of each bill and then gave the money directly to Undercover #7404. (Defs.' 56.1 Stmnt. ¶¶ 16-20; Pl.'s Resp. ¶¶ 16-20). Detective McDermott kept one of the photocopies to take into the field with her, as was her standard practice. (Defs.' 56.1 Stmnt. ¶ 21).
Following the meeting, the field team left the station house and proceeded to the vicinity of Ferndale Avenue and Sutphin Boulevard in Queens. (Defs.' 56.1 Stmnt. ¶¶ 22-24; Pl.'s 56.1 Stmnt. ¶¶ 22-24). At the corner of Ferndale Avenue and Sutphin Boulevard, Undercover #7404 approached two men standing near a bodega to determine if they were dealing drugs. (Defs.' 56.1 Stmnt. ¶¶ 27-29; Pl.'s Resp. ¶¶ 27-29).
At this point, the parties' stories diverge. Plaintiff denies that he was involved in a drug transaction that night, or that he received any money from the Undercover that night. (See Pl.'s Resp. ¶¶ 30-34). According to defendants, when Undercover #7404 attempted to buy drugs, the first man turned to the second man, plaintiff Richardson, who then approached Undercover #7404 with crack cocaine in his hand. (Defs.' 56.1 Stmnt. ¶¶ 30-31). At that point, according to defendants, Undercover #7404 asked for "two dimes," which is the equivalent of $20 worth of cocaine. (Id. ¶ 32). According to defendants, plaintiff handed the drugs to the Undercover, who in turn gave plaintiff a $20 bill from the pre-recorded buy money. (Id. ¶ 33).
Defendants allege that after receiving the drugs, the Undercover turned and walked to her car, which was approximately a block away, informing Detective McDermott over the Kel that she had just purchased drugs. (Id. ¶¶ 35-36). She provided a description of the suspects, indicating that one of the two suspects was a black male, approximately six feet, two inches in height, with dreadlocks. (Id. ¶¶ 36-37). She also gave a description of the clothing he was wearing. (Id. ¶ 37). Upon reaching her car, defendants allege that the Undercover then repeated the description of the suspects over the radio, including the fact that the suspect with dreadlocks had gold teeth. (Id. ¶¶ 38-39). At plaintiff's criminal trial, Undercover #7404 confirmed that she radioed a description of a black male with dreadlocks, a black coat and a grey hooded sweatshirt. (Norinsberg Decl., Ex. D at 41, 89). However, she testified that she did not say that the suspect had gold teeth. (Id.)
Citing the undercover officer's trial testimony, plaintiff disputes that Undercover #7404 made more than one radio transmission or that she ever mentioned that the suspect had "gold teeth." (Pl.'s Resp. ¶¶ 36, 38, 39, 40).
"Norinsberg Decl." refers to the declaration of Jon L. Norinsberg, Esq., filed February 2, 2004, submitted in support of plaintiff's opposition to defendants' motion for summary judgment. Exhibit D includes excerpts from Undercover #7404's testimony in plaintiff's criminal trial.
Upon receiving Undercover #7404's transmission, Detective McDermott and Sergeant Mulcahy proceeded in their vehicle to the corner of Sutphin and Ferndale to locate the suspects. (Defs.' 56.1 Stmnt. ¶ 40). According to defendants, the officers arrived at the location within one minute after receiving the Undercover's transmission. (Id. ¶ 41). Upon arrival, Detective McDermott observed a black male with dreadlocks and gold teeth matching the description given by Undercover #7404. (Id. ¶¶ 42-44). Detective McDermott approached the individual, identified herself as a police officer, and placed him in handcuffs for her own safety. (Id. ¶ 45). She took the individual, later identified as plaintiff Richardson, to her car, where she patted him down for weapons. (Id. ¶ 46).
Citing the undercover officer's trial testimony, plaintiff denies that he matched the description given by Undercover #7404. (Pl.'s Resp. ¶ 42).
Plaintiff asserts that he was approached by four officers, not just Detective McDermott. (Pl.'s Resp. ¶ 45; Deposition of Plaintiff Theodore Richardson, dated July 29, 2003 ("Pl.'s Dep."), at 23, attached as Exhibit A to the Norinsberg Declaration).
Detective McDermott then radioed for Undercover #7404 to make an identification. (Id. ¶ 47). Undercover #7404 returned to the location in her car, drove slowly by the place where the detective was standing with plaintiff, and radioed to Detective McDermott that it was a positive identification. (Id. ¶¶ 49-51).
Plaintiff was then placed under arrest and searched. (Id. ¶ 52). Among the items recovered from plaintiff's pocket during this search was a $20 bill which Detective McDermott identified as the pre-recorded buy money. (Id. ¶¶ 53-55). According to the detective, while she was at the scene, she compared the serial numbers on the $20 bill with the photocopy she had made earlier that evening of the pre-recorded buy money. (Id. ¶ 56). Plaintiff denies having the pre-recorded buy money on him (Pl.'s Resp. ¶ 55), and denies that the detective confirmed the serial numbers. (Pl.'s Resp. ¶ 56).
Citing Detective McDermott's deposition testimony, plaintiff takes the position that he was arrested immediately upon being stopped. (Pl.'s Resp. ¶ 52).
Following the search, the detective placed Mr. Richardson's items in a secure envelope and wrote a description of plaintiff on the Prisoner Property Envelope Cover Sheet. (Defs.' 56.1 Stmnt. ¶¶ 57-58). On this sheet, the detective described the plaintiff as being a black male with dreadlocks and gold teeth who was wearing a black jacket, black jeans and black boots. (Id. ¶ 58). Although plaintiff denies that he matched the description of the suspect or that he was involved in a drug transaction (see Pl.'s Resp. ¶¶ 30-34, 42), he previously admitted under oath, and does not dispute, that he was in the vicinity of Sutphin Boulevard and Ferndale Avenue on January 23, 2000, was wearing a black jacket, black jeans and black boots, and that he had dreadlocks and gold teeth. (Defs.' 56.1 Stmnt. ¶¶ 59-60; Ex. H at 16-18; Pl.'s Resp. ¶¶ 59-60). Plaintiff concedes that he did not suffer any physical injuries as a result of the arrest, nor did he seek any treatment for emotional injuries at any time following the arrest. (Defs.' 56.1 Stmnt. ¶¶ 79-80; Pl.'s Resp. ¶¶ 79-80).
Plaintiff was taken to the 103rd Precinct, and charged with Criminal Sale of a Controlled Substance in the Third Degree, N.Y. Penal Law 220.39-1. (Defs.' 56.1 Stmnt. ¶ 62; Pl.'s Resp. ¶ 62). The Grand Jury subsequently returned an indictment charging plaintiff with Criminal Sale. (Defs.' 56.1 Stmnt. ¶ 64; Pl.'s Resp. ¶ 64). Plaintiff asserts that the decisions of the District Attorney and the Grand Jury were the result of fraud and the perjury of Detective McDermott. (Pl.'s Resp. ¶¶ 63, 64).
The Court notes that plaintiff does not appear to be alleging that Undercover #7404 also committed perjury.
During the criminal proceeding, plaintiff moved to suppress the identification of Undercover #7404 and the money recovered from plaintiff's pocket at the time of arrest. (Defs.' 56.1 Stmnt. ¶ 65). That motion was denied by the Honorable Laura D. Blackburne, New York Supreme Court Judge, who concluded that there was probable cause for plaintiff's arrest and that the seizure of the buy money was not fruit of the poisonous tree, as it followed a lawful arrest. (Defs.' 56.1 Stmnt. ¶ 65, Ex. N). In her opinion, Judge Blackburne made the following findings of fact: (1) Detective McDermott received a radio transmission that the Undercover had made a purchase of narcotics; (2) the description given to Detective McDermott was of a tall, black male with dreadlocks, black jacket, blue jeans, black boots and gold teeth; and (3) plaintiff matched that description. (Id. ¶ 66, Ex. N). Plaintiff contends that the judge's decision in this regard was based on false testimony from the detective. (Pl.'s Resp. ¶¶ 66, 67). Plaintiff was ultimately acquitted at trial. (Defs.' 56.1 Stmnt. ¶ 78; Pl.'s Resp. ¶ 78).
At the time of his arrest, plaintiff was on parole for an earlier gun related conviction and as of January 23, 2000, he had one year and eight days remaining on that earlier sentence. (Defs.' 56.1 Stmnt. ¶ 69). Among other rules and conditions of parole, plaintiff was subject to an 11:00 p.m. curfew. (Id. ¶ 70; Pl.'s Resp. ¶ 70). Plaintiff entered a plea to violating his curfew condition on January 23, 2000 and was reincarcerated for the maximum amount of time remaining on his sentence. (Defs.' 56.1 Stmnt. ¶¶ 73, 76; Pl.'s Resp. ¶ 73). Plaintiff contends that his false arrest on the drug charges was a substantial factor that led the Parole Board to sentence him to the maximum sentence for his parole violation. (Pl.'s Resp. ¶¶ 75, 76, 77; Norinsberg Decl. Exs. F, H).
Plaintiff contends that there are material issues of fact in dispute which preclude summary judgment in this case. Specifically, plaintiff argues that a trier of fact must determine whether plaintiff ever spoke to Undercover #7404 prior to the arrest on January 23, 2000 (Pl.'s 56.1 Stmnt. ¶ 2), whether plaintiff sold drugs or received pre-recorded money from an NYPD officer that day (id. ¶¶ 1, 3), and whether Detective McDermott fabricated evidence and provided false information to the District Attorney and the Grand Jury, leading to plaintiff's prosecution. (Id. ¶¶ 4-5). Finally, plaintiff argues that there is a dispute as to whether his false arrest was a significant factor in causing the revocation of his parole. (Id. ¶ 6).
DISCUSSION
A. Summary Judgment Standards
It is well-settled that a party moving for summary judgment has the burden of establishing that there is no genuine issue of material fact in dispute and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986); Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir. 1990). Since summary judgment is an extreme remedy, cutting off the rights of the non-moving party to present a case to the jury, see Egelston v. State Univ. Coll. at Geneseo, 535 F.2d 752, 754 (2d Cir. 1976); Gibralter v. City of N.Y., 612 F. Supp. 125, 133-34 (E.D.N.Y. 1985) (stating that summary judgment "is a drastic remedy and should be applied sparingly"), the court should not grant summary judgment unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief."Egelston v. State Univ. Coll. at Geneseo, 535 F.2d at 754; see also Auletta v. Tully, 576 F. Supp. 191, 194 (N.D.N.Y. 1983),aff'd, 732 F.2d 142 (2d Cir. 1984) (stating that summary judgment should be granted only if "it is clear that the requirements of Fed.R.Civ.P. 56 have been satisfied" and that "no genuine issue remains for trial"). In addition, "'the inferences to be drawn from the underlying facts . . . must be viewed in the light most favorable to the party opposing the motion.'" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)).
Once the moving party discharge its burden of proof under Rule 56(c) of the Federal Rules of Civil Procedure, the party opposing summary judgment "has the burden of coming forward with 'specific facts showing that there is a genuine issue for trial.'" Phillips v. Kidder, Peabody Co., 782 F. Supp. 854, 858 (S.D.N.Y. 1991) (quoting Fed.R.Civ.P. 56(e)). Rule 56(e) "provides that a party opposing a properly supported motion for summary judgment may not rest upon mere allegation or denials of his pleading."Anderson v. Liberty Lobby, Inc., 477 U.S. at 256. Indeed, "the mere existence of some alleged factual dispute between the parties" alone will not defeat a properly supported motion for summary judgment. Id. at 247-48 (emphasis added). Rather, enough evidence must favor the non-moving party's case that a jury could return a verdict in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. at 248.
In reversing a grant of summary judgment, the Second Circuit noted that the "'trial court's task at the summary judgment motion stage of litigation is carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them.'" Quaratino v. Tiffany Co., 71 F.3d 58, 65 (2d Cir. 1995) (quoting Gallo v. Prudential Residential Servs., L.P., 22 F.3d 1219, 1224 (2d Cir. 1994)). Thus, the Court turns next to determining whether there are any genuine issues of material fact to be tried.
B. False Arrest Claims
In order to bring an action under Section 1983, plaintiff must allege that the defendants, acting under the color of state law, deprived the plaintiff of a right guaranteed by the Constitution or the laws of the United States. 42 U.S.C. § 1983; see Imbler v. Pachtman, 424 U.S. 409, 417 (1976); Klatz v. Klehammer, 902 F.2d 204, 206 (2d Cir. 1990); Peavey v. Polytechnic Inst. of N.Y., 775 F. Supp. 75, 77 (E.D.N.Y. 1991). Violations of the Fourth Amendment, such as claims of false arrest, false imprisonment and malicious prosecution, are deprivations of rights cognizable in a Section 1983 action. See Albright v. Oliver, 510 U.S. 266, 274,reh'g denied, 510 U.S. 1215 (1994); Singer v. Fulton County Sheriff, 63 F.3d 110, 116-17 (2d Cir. 1995) (malicious prosecution), cert. denied, 517 U.S. 1189 (1996); Houston v. N.Y. City Transit Auth., No. 93 CV 1291, 1996 WL 173128, at *3 (E.D.N.Y. April 10, 1996). Similarly, an unreasonable "seizure" by a state actor in violation of the Fourth Amendment may be pursued as a claim in a Section 1983 suit. See Brower v. County of Inyo, 489 U.S. 593, 596, 599 (1989); Murphy v. Lynn, 118 F.3d 938, 944 (2d Cir. 1997) (discussing Brower), cert. denied, 522 U.S. 1115 (1998).
For purposes of evaluating a Section 1983 action based on claims of false arrest and false imprisonment, courts in this circuit look to the elements of a false arrest claim under state law. Russell v. Smith, 68 F.3d 33, 36 (2d Cir. 1995); Hygh v. Jacobs, 961 F.2d 359, 366 (2d Cir. 1992); Labensky v. County of Nassau, 6 F. Supp. 2d 161, 176 (E.D.N.Y. 1998) (stating that "[c]laims brought under 42 U.S.C. § 1983 are guided by the tort law of the forum state"), aff'd, 173 F.3d 845 (2d Cir. 1999);Dukes v. City of N.Y., 879 F. Supp. 335, 340 (S.D.N.Y. 1995).
The torts of false arrest and false imprisonment are largely synonymous. 59 N.Y. Jur. 2d, False Imprisonment § 1 (1987). "Every false arrest is itself a false imprisonment, with the imprisonment commencing at the time of the arrest." Blachfield v. State, 104 Misc. 2d 21, 24, 427 N.Y.S.2d 682, 685 (1980).
1. The Elements of a False Arrest Claim
In order to establish a claim for false arrest under New York State law, plaintiff must prove the following four elements: (1) that defendant intended to confine plaintiff; (2) that plaintiff was conscious of the confinement; (3) that plaintiff did not consent to the confinement; and (4) that the confinement was not otherwise privileged. Singer v. Fulton County Sheriff, 63 F.3d at 118; Wright v. Naranjo, No. 94 CV 2461, 1996 WL 449276, at *3 (E.D.N.Y. Aug. 1, 1996); Reid v. City of N.Y., 736 F. Supp. 21, 24 (E.D.N.Y. 1990); Broughton v. State, 37 N.Y.2d 451, 456, 373 N.Y.S.2d 87, 93, 335 N.E.2d 310, 314 (1975), cert. denied, 423 U.S. 929 (1975); see also Escalera v. Lunn, 361 F.3d 737, 743 (2d Cir. 2004) (stating that in order to "establish a claim for false arrest under 42 U.S.C. § 1983, a plaintiff must show that 'the defendant intentionally confined him without his consent and without justification'") (quoting Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996)).
2. Application
Applying these four criteria to the instant case, this Court finds that there is no dispute as to the first three elements of the claim. The defendant officer handcuffed and arrested plaintiff with the intent to confine him; plaintiff was clearly conscious of the fact of his arrest; and plaintiff protested rather than consented to the arrest.
As for the fourth element, courts have held that although "an arrest without a warrant is presumed unlawful," the defendants can establish a legal justification for the arrest, and thus defeat a constitutional claim for false arrest, by demonstrating that there was probable cause for the arrest. Dukes v. City of N.Y., 879 F. Supp. at 340. See also Pierson v. Ray, 386 U.S. 547, 557 (1967) (holding that in a Section 1983 action, where there is probable cause for a challenged arrest, a law enforcement officer cannot be found to have violated the arrestee's rights); Zanghi v. Vill. of Old Brookville, 752 F.2d 42, 45 (2d Cir. 1985) (holding that "[i]t is abundantly clear that a finding of probable cause will defeat state tort claims of false arrest, false imprisonment and malicious prosecution"); cf. Broughton v. State of N.Y., 373 N.Y.S.2d at 94 (holding that "[w]henever there has been an arrest and imprisonment without a warrant, the officer has acted extrajudicially and the presumption arises that such an arrest and imprisonment are unlawful"). Indeed, "probable cause serves as a complete defense to the charges of false arrest and malicious prosecution." Graebe v. Falcetta, 726 F. Supp. 36, 38 (E.D.N.Y. 1989); see Escalera v. Lunn, 361 F.3d at 743 (holding that there can be no claim for false arrest where the arresting officer had probable cause to arrest the plaintiff); Bernard v. United States, 25 F.3d 98, 102-03 (2d Cir. 1994). Thus, where, as here, the arrest was effected without a warrant, the focus of the courts' analyses in determining whether a plaintiff has satisfied this fourth element in a claim for false arrest is on whether the arrest was based on probable cause. See Houston v. N.Y. City Transit Auth., 1996 WL 173128, at *2-3; Niemann v. Whalen, 911 F. Supp. 656, 666 (S.D.N.Y. 1996); Augustine v. Reid, 882 F. Supp. 50, 52 (E.D.N.Y. 1995); Dukes v. City of N.Y., 879 F. Supp. at 340.
As the court in Houston v. N.Y. City Transit Authority explained, the distinction between a claim for false arrest and a claim for malicious prosecution depends on the existence of a warrant. 1996 WL 173128, at *2. If the arrest is effected pursuant to a warrant, which is presumptively valid because generally there has been an judicial evaluation of probable cause prior to the issuance of the warrant, then the appropriate claim sounds in malicious prosecution. Id. at *2-3 (citing Broughton v. State of N.Y., 37 N.Y.2d at 457-58).
Probable cause exists "when the arresting officer has 'knowledge or reasonably trustworthy information sufficient to warrant a person of reasonable caution in the belief that an offense has been committed by the person to be arrested.'"Dzinanka v. County of Suffolk, 932 F. Supp. 59, 62 (E.D.N.Y. 1996) (quoting Calamia v. City of N.Y., 879 F.2d 1025, 1032 (2d Cir. 1989)); see also Golino v. New Haven, 950 F.2d 864, 870 (2d Cir. 1991), cert. denied, 505 U.S. 1221 (1992). In order to establish probable cause, there must be a "probability or a substantial chance of criminal activity, not an actual showing of such activity." Illinois v. Gates, 462 U.S. 213, 244 n. 13 (1983); Labensky v. County of Nassau, 6 F. Supp. 2d at 176. It is not necessary that the officers show evidence "'beyond a reasonable doubt,'" as is required for a criminal conviction; "[n]or do police officers need to demonstrate that it is more probable than not [that] an offense has been committed to make aprima facie showing of criminal activity." Miloslawsky v. AES Engin. Soc'y, Inc., 808 F. Supp. 351, 354 (S.D.N.Y. 1992) (citingUnited States v. Ginsberg, 758 F.2d 823 (2d Cir. 1985)), aff'd, 993 F.2d 1534 (2d Cir.), cert. denied, 510 U.S. 817 (1993). Rather, "a determination of the existence of probable cause 'turns on an objective assessment of the officer's action in light of the facts and circumstances confronting him at the time.'" Nazaire v. City of N.Y., No. 01 CV 7630, 2003 WL 21738607, at *3 (E.D.N.Y. June 26, 2003) (quotingMaryland v. Macon, 472 U.S. 463, 470 (1985)).
The existence of probable cause is a question for the jury where there is a dispute regarding the events leading to the arrest, and where the question is factual in nature. See, e.g.,Murphy v. Lynn, 118 F.3d at 947; Weyant v. Okst, 101 F.3d at 852;Moore v. Comesanas, 32 F.3d 670, 673 (2d Cir. 1994). See also Collom v. Incorporated Vill. of Freeport, N.Y., 691 F. Supp. 637, 640 (E.D.N.Y. 1988) (noting that "where the evidence is conflicting such that reasonable persons might draw differing inferences, then the question of probable cause is ordinarily for the jury to decide") (citations omitted). Probable cause may exist "even where it is based on mistaken information, so long as the arresting officer acted reasonably and in good faith in relying on that information." Bernard v. United States, 25 F.3d at 102 (citing Colon v. City of N.Y., 60 N.Y.2d 78 (1983)). While probable cause is to be determined based on the "totality of the circumstances," Illinois v. Gates, 462 U.S. at 230-32; see also Bernard v. United States, 25 F.3d at 102; Calamia v. City of N.Y., 879 F.2d at 1032, the fact that charges were dismissed does not mean that probable cause for the arrest did not exist. See Warren v. Byrne, 699 F.2d 95, 98 (2d Cir. 1983); see also Lee v. City of Mount Vernon, 407 N.E.2d 404, 49 N.Y.2d 1041, 429 N.Y.S.2d 557 (1980) (finding probable cause despite the fact that defendant was later acquitted); Freedman v. N.Y. Soc. for Suppression of Vice, 290 N.Y.S. 753, 757, 248 A.D. 517, 520 (1st Dep't 1936), aff'd, 10 N.E.2d 550, 274 N.Y. 559 (1937) (stating that the "mere [acquittal] of the plaintiff did not indicate that there was no justification for making the arrest, nor did it show that probable cause did not exist"). However, evidence of acquittal is admissible to refute the claim of probable cause. Broughton v. State, 37 N.Y.2d at 458, 373 N.Y.S.2d at 95, 335 N.E.2d at 315.
Defendants contend that based on the totality of the circumstances, there was probable cause to arrest plaintiff. (Defs.' Reply Mem. at 2-6). First, the Undercover transmitted a description of the individual from whom she had purchased drugs at the corner of Ferndale Avenue and Sutphin Boulevard, which included the fact that he was a black male with dreadlocks wearing a black jacket. Plaintiff, in fact, concedes that he was at that corner at the time of the arrest, and that he had dreadlocks and was wearing a black jacket. Defendants contend that not only was it reasonable for Detective McDermott to rely on the description she received over the radio, but Undercover #7404's positive identification of plaintiff prior to the arrest gave Detective McDermott more than a sufficient basis to believe that she had probable cause to arrest plaintiff. (Id. at 6). Moreover, defendants contend that Detective McDermott's discovery of the pre-recorded buy money from plaintiff's person following his arrest further supported her conclusion that plaintiff was involved in the narcotics transaction. (Id.) Defendants argue that plaintiff admitted that he matched the description of the suspect, and that any factual disputes are not material and do not negate the existence of probable cause. (Id. at 5-6).
Citations to "Defs.' Reply Mem." refer to Defendants' Reply Memorandum of Law in Support of Their Motion for Summary Judgment, dated February 20, 2004.
Plaintiff, however, contends that summary judgment must be denied because "there is a sharp factual dispute between the parties as to the events that led up to plaintiff's arrest." (Pl.'s Mem. at 6). Plaintiff claims that he went to the bodega to purchase soda for his sick wife. (Pl.'s Dep. at 16-17, 20-21). He claims that he paid for the soda with a $50 bill, and received change in the amount of $47.03. (Id.) He was placed under arrest after he left the store to walk home. (Id. at 22-23). Plaintiff argues that because certain facts are in dispute, such as whether the suspect was identified as having gold teeth, and whether the pre-recorded buy money was found on plaintiff, a jury trial must be held. (Pl.'s Mem. at 3-4, 6).
"Pl.'s Mem." refers to Plaintiff's Memorandum of Law in Opposition to Defendants' Motion for Summary Judgment, filed on February 2, 2004.
Since the officer claims to have found the pre-recorded buy money on plaintiff after plaintiff had been placed under arrest, the existence or non-existence of the money is irrelevant to the issue of probable cause because the money was not a factor in the probable cause determination and the officer did not rely on the money in making her decision to arrest plaintiff. (See discussioninfra at 18).
To the extent that there are facts in dispute, this Court concludes that they are not material to the issue of probable cause. Although plaintiff has presented a version of events as to what occurred prior to this arrest that differs from the officers' version in several respects, that alone is insufficient to defeat probable cause. Plaintiff claims that there is a factual issue as to whether the Undercover included a reference to "gold teeth" in the Kel transmission, citing testimony given by the Undercover at trial. (See Norinsberg Decl., Ex. D at 89). However, defendants contend that this is not in dispute; they concede that there was no reference to gold teeth in the Kel transmission but contend that this information was transmitted to the field team in the subsequent radio transmission. (Defs.' 56.1 Stmnt. ¶¶ 38-39).
The initial radio transmission by Undercover #7474 that she had made a positive buy of drugs and giving a physical description of the suspects, and Detective McDermott's observation of a man matching that description, was sufficient to provide Detective McDermott with "'reasonable suspicion that criminal activity may be afoot.'"United States v. Vargas, 369 F.3d 98, 101 (2d Cir. 2004) (quotingTerry v. Ohio, 392 U.S. 1, 30 (1968)). Reasonable suspicion enables an officer to perform a "Terry stop," or limited investigative search and seizure. United States v. Scopo, 19 F.3d 777, 781 (2d Cir. 1994). A Terry stop "must be justified by probable cause or a reasonable suspicion, based on specific and articulable facts, of unlawful conduct." United States v. Hassan El, 5 F.3d 726, 729 (4th Cir. 1993), cert. denied, 511 U.S. 1006 (1994). Here, the Terry stop was justified by facts existing before the stop began, and was reasonably related in scope to the circumstances. Hiibel v. Sixth Judicial Dist. Court of Nevada, Humboldt County, 542 U.S. 177, 185 (U.S. 2004). Accordingly, the search and seizure effectuated by Detective McDermott when she approached plaintiff, identified herself as a police officer, "placed plaintiff in handcuffs for her own safety" (Defs.' Reply ¶ 45), and then patted him down to check for weapons, was proper under the Fourth Amendment of the United States Constitution. Indeed, not only do these facts establish reasonable suspicion, but this Court finds that these facts — plaintiff's presence on the scene, the Undercover's description matching the plaintiff and the Undercover's representation that she had been given drugs in exchange for money by the individual she was describing — were sufficient to establish probable cause. See People v. McRay, 51 N.Y.2d 594, 435 N.Y.S.2d 679 (1980) (stating that "if money is passed in exchange for the envelope [containing drugs], probable cause almost surely would exist").
Moreover, following the initial stop of plaintiff, Undercover #7404 made a confirmatory positive identification of defendant, who was then placed under arrest. (Id. ¶¶ 51-52). Apart from disputing that there was a second radio transmission mentioning the gold teeth, plaintiff has not cited any evidence to suggest that he did not otherwise match the remaining description given by the Undercover or to support his position that in the absence of any mention of the gold teeth, Detective McDermott did not have sufficient probable cause to arrest the plaintiff. Indeed, while plaintiff disputes certain facts asserted by defendants, he does not appear to dispute that Undercover #7404 positively identified him as the person involved in the narcotics transaction. (See Defs.' 56.1 Stmnt. ¶¶ 49-51).
Although the Court finds that there was probable cause for arrest at the time Detective McDermott initially stopped plaintiff, it cannot be disputed that there was clearly probable cause when Undercover #7404 made a confirmatory identification of defendant. The New York Court of Appeals has held that probable cause requires "not proof beyond reasonable doubt or evidence sufficient to warrant a conviction, but merely information which would lead a reasonable person who possesses the same expertise as the officer to conclude, under the circumstances, that a crime is being or was committed." People v. McRay, 51 N.Y.2d 594, 602 (1980) (citations omitted). There are numerous New York state cases where probable cause is found to exist under similar fact patterns. See, e.g., People v. Livingston, 7 Misc. 3d 1021 (A), 2005 WL 1118075 (N.Y.Sup. 2005) (finding probable cause where defendant was arrested on the basis of an undercover officer's description of suspect and drug transaction, and undercover officer made positive identification); People v. Jones, 95 N.Y.2d 721, 723 N.Y.S.2d 761, 746 N.E.2d 1053 (1 Dep't 2001) (holding that where undercover officer had probable cause for defendant's arrest and transmitted a detailed description to arresting officers, arresting officers had probable cause to arrest defendant); People v. Badillo, 250 A.D.2d 696, 672 N.Y.S.2d 766 (2 Dep't 1998) (holding that police had probable cause to arrest where undercover officer radioed that he had made a "positive buy," communicated description of clothing and location, arresting officer arrested person matching description, and undercover confirmed arrest).
Similarly, while plaintiff disputes that he was in possession of the pre-recorded buy money, he has not offered any proof that he was not in possession of the bill at the time of arrest. (See Defs.' 56 Stmnt. ¶¶ 54-56; Pl.'s Resp. ¶¶ 54-56). Apart from plaintiff's own denials, there is no evidence to support his claim that he did not sell drugs to Undercover #7404 and did not receive money from her in return. Even if plaintiff's claim were true that Detective McDermott perjured herself in claiming that the pre-recorded buy money was found on his person, this would not be sufficient to defeat probable cause because the officer had probable cause to arrest plaintiff independent of the pre-recorded buy money and indeed had placed plaintiff under arrest prior to allegedly finding the money on plaintiff's person.
Unlike the cases cited in support of plaintiff's argument, see Funnye v. Paragon Sporting Goods Co., No. 98 CV 7731, 2001 WL 300740, at *5 (S.D.N.Y. Mar. 27, 2001) and Taylor v. City of N.Y., 269 F. Supp. 2d 68 (E.D.N.Y. 2003), here there is no independent evidence to corroborate plaintiff's account, and the contested facts do not cast doubt on whether probable cause existed. In Taylor, as here, the plaintiff disputed the officer's testimony that pre-recorded buy money was found on the plaintiff's person. 269 F. Supp. 2d at 71. However, unlike here, in Taylor there were additional facts which supported the plaintiff's allegation of perjury — for example, certain evidence of the drug transaction was missing, and the criminal court judge had credited the plaintiff's version and cast doubt on defendants' credibility. Id. at 74. "[T]he existence of competing accounts cannot of itself render the issue of probable cause a jury question." Collom v. Incorporated Vill. of Freeport, N.Y., 691 F. Supp. at 640. Nor are there any material internal contradictions in defendants' version of events that would cast doubt on the credibility of their stories. See Funnye v. Paragon Sporting Goods Co., 2001 WL 300740, at *16 (finding internal conflicts and a lack of corroboration for defendants' version of events). While there may be a discrepancy over when the Undercover mentioned the suspect's gold teeth or whether she even mentioned them at all, plaintiff does not deny that he possesses the other features described by the Undercover, nor does he deny that the Undercover positively identified him to Detective McDermott. Thus, unlike inFunnye, the Undercover's identification, even if mistaken, provided sufficient probable cause for Detective McDermott's decision to arrest.
By contrast, here the judge credited the officers' testimony. The judge found that the undercover sent a radio transmission describing plaintiff and that plaintiff matched the description. (Defs.' 56.1 Stmnt. ¶ 66, Ex. N).
In addition, the criminal court judge made findings of fact which substantially weaken plaintiff's argument. The criminal court judge found that the information that the suspect had gold teeth was included in the description of the suspect, and that the pre-recorded buy money was found on plaintiff's person. (Def.' 56.1 Stmnt, Ex. N. at 2). The criminal court judge also made a conclusion of law that the arrest was based on probable cause. (Id.) When considering the effect of determinations made in an underlying state court criminal case, Judge Glasser noted in Taylor v. City of N.Y. that "[a]lthough these judicial findings were made in a different evidentiary context" and therefore are not binding on this Court, the state criminal court's findings of fact and conclusions of law are persuasive. 269 F. Supp. 2d at 74. Here, the state court judge held a suppression hearing, heard the testimony of the witnesses, reviewed the evidence, and was able to judge the credibility of the parties. Thus, her findings "are certainly sufficient to cast doubt upon . . . [plaintiff's] credibility," id., particularly in the absence of any other independent evidence to corroborate plaintiff's claims of perjury on the part of the defendant officer.
Based on these factors, it is respectfully recommended that defendants' motion for summary judgment on the false arrest claim be granted.
C. Malicious Prosecution Claim
Defendants move for summary judgment on plaintiff's claim of malicious prosecution. They argue that plaintiff cannot establish a lack of probable cause or show that the officers acted with actual malice, and that his claims therefore must be dismissed.
Like the claim for false arrest, a claim for malicious prosecution under Section 1983 is governed by the elements of the common law tort of malicious prosecution. See Singer v. Fulton County Sheriff, 63 F.3d 110, 116 (2d Cir. 1995), cert. denied, 517 U.S. 1189 (1996); Decker v. Campus, 981 F. Supp. 851, 860 (S.D.N.Y. 1997). Under New York State law, a plaintiff seeking to pursue a claim of malicious prosecution must prove: "(1) the initiation or continuation of a criminal proceeding against plaintiff; (2) termination of the proceeding in plaintiff's favor; (3) lack of probable cause for commencing the proceeding; and (4) actual malice as a motivation for defendant's action."Russell v. Smith, 68 F.3d 33, 36 (2d Cir. 1995); see also Posr v. Doherty, 944 F.2d 91, 100 (2d Cir. 1991); Collom v. Incorporated Vill. of Freeport, N.Y., 691 F. Supp. at 640. In addition, the alleged violation must have been effectuated "pursuant to legal process." See Singer v. Fulton County Sheriff, 63 F.3d at 116-17 (quoting Heck v. Humphrey, 512 U.S. 477, 484 (1994)).
As to the first element of the test, the parties do not dispute that criminal proceedings were commenced against plaintiff. With respect to the second element, a plaintiff must show that the criminal proceeding terminated in his favor so as "to avoid parallel litigation as to questions of probable cause" and "to ensure against inconsistent judgments." Murphy v. Lynn, 118 F.3d at 948 (citations omitted). Where there is no adjudication of the merits of the charge resulting in an acquittal, the plaintiff must show that the final disposition of the charge is "indicative of innocence." Russell v. Smith, 68 F.3d at 36; see also MacFaun v. Kresler, 88 N.Y.2d 859, 860, 644 N.Y.S.2d 486, 666 N.E.2d 1359 (1996) (stating that a "criminal proceeding terminates favorably to the accused, for purposes of a malicious prosecution claim, when the final disposition of the proceeding involves the merits and indicates the accused's innocence"). Here, where the jury has made a finding after trial acquitting the plaintiff, there has been a "favorable determination" and the second element is satisfied. See, e.g., Russell v. Smith, 68 F.3d at 36 (stating that"[a]n acquittal is the most obvious example of a favorable termination").
With respect to the issue of probable cause, probable cause to prosecute has been defined under New York law as "the knowledge of facts, actual or apparent, strong enough to justify a reasonable man in the belief that he has lawful grounds for prosecuting the defendant in the manner complained of."Rounseville v. Zahl, 13 F.3d 625, 629 (2d Cir. 1994) (quotingPandolfo v. U.A. Cable Sys. of Watertown, 171 A.D. 2d 1013, 1013, 568 N.Y.S.2d 981, 982 (4th Dep't 1991); accord Decker v. Campus, 981 F. Supp. at 860. Although similar to the inquiry conducted with respect to a claim of false arrest, the determination of whether sufficient probable cause exists to defeat a claim of malicious prosecution must be made as of the time the accused was charged, arraigned, or indicted. See, e.g., Decker v. Campus, 981 F. Supp. at 860 (discussing arraignment); see also Singer v. Fulton County Sheriff, 63 F.3d at 117 (stating "the tort of malicious prosecution . . . implicate[s] post-arraignment deprivations of liberty").
In order to pursue a malicious prosecution claim, the alleged violation must have been effectuated "pursuant to legal process."Singer v. Fulton County Sheriff, 63 F.3d at 116-17. "A warrantless arrest made prior to arraignment does not constitute 'legal process.'" Dzinanka v. County of Suffolk, 932 F. Supp. at 62. "[L]egal process" typically takes the form of an arrest warrant or arraignment. Thus, when there has been a warrantless arrest, "the circumstances of the allegedly improper arrest . . . are of no consequence to the malicious prosecution claim." Decker v. Campus, 981 F. Supp. at 860.
It is clear, however, that the presence of probable cause for the arrest is a complete defense to a claim of malicious prosecution, see Bernard v. United States, 25 F.3d at 104 (citations omitted), unless the jury finds "that between the [time of] the arrest and the prosecution the authorities became aware of evidence exonerating the accused." Collom v. Incorporated Vill. of Freeport, N.Y., 691 F. Supp. at 640. "If subsequent to an individual's arrest, new facts were to arise which made it apparent to investigators that the charges against the individual were groundless, probable cause would not longer exist." Coleman v. City of N.Y., 177 F. Supp. 2d 151, 158 (S.D.N.Y. 2001), aff'd, 49 Fed. Appx. 342 (2d Cir. 2002). The burden is on the plaintiff to show that additional facts have come to light that negate an initial finding of probable cause.Dukes v. City of N.Y., 879 F. Supp. at 341-42. If there is a factual dispute as to the events that would determine probable cause, the issue must be determined by the trier of fact and is not appropriate for summary judgment. See Collom v. Incorporated Vill. of Freeport, N.Y., 691 F. Supp. at 640; see also Cox v. County of Suffolk, 780 F. Supp. 103, 108 (E.D.N.Y. 1991) (holding that the existence of probable case to arrest does not mean that there is necessarily probable cause to prosecute).
A rebuttable presumption of probable cause arises from the grand jury's return of an indictment. Murphy v. Lynn, 118 F.3d at 948; see also Colon v. City of N.Y., 60 N.Y.2d 78, 83 (1983) (stating that this rule "is founded upon the premise that the Grand Jury acts judicially and it may be presumed that it has acted regularly"). This presumption can be overcome by proof that the indictment was obtained through perjury, the suppression of evidence, fraud or other police misconduct. See, e.g., Marshall v. Sullivan, 105 F.3d 47, 54 (2d Cir. 1996) (holding that the presumption of probable cause created by a grand jury indictment may only be overcome by "evidence that the indictment was the product of fraud, perjury, the suppression of evidence . . . or other police conduct undertaken in bad faith"). See also Bernard v. United States, 25 F.3d 98, 104 (2d Cir. 1994); Scheiner v. Wallace, 955 F. Supp. 232, 235 (S.D.N.Y. 1997); Dukes v. City of N.Y., 879 F. Supp. at 341-42; Colon v. City of N.Y., 60 N.Y.2d at 83. Actual evidence of fraud or perjury must exist: "unsupported conclusions that witnesses perjured themselves," by themselves, are not sufficient to raise a question of fact as to probable cause.Scheiner v. Wallace, 955 F. Supp. at 240; see also Hathaway v. County of Essex, 995 F. Supp. 62, 69 (N.D.N.Y. 1998) (stating that evidence of "allegedly conflicting testimony before Grand Jury" or reliance on other "variations in testimony" are not sufficient to raise a question of fact as to the existence of probable cause); cf. Taylor v. City of N.Y., 269 F. Supp. 2d at 74 (holding that plaintiff's deposition testimony was sufficient to raise a triable issue of fact as to whether police officers had committed perjury before Grand Jury, where there was also significant independent evidence supporting plaintiff's version of the facts).
The presumption of probable cause created by a grand jury indictment applies only to claims of malicious prosecution, not to false arrest claims. See Obilo v. City Univ. of N.Y., No. 01 CV 5118, 2003 WL 1809471, at *5 n. 14 (E.D.N.Y. April 7, 2003) (citing cases).
Here, the Grand Jury heard the evidence and issued an indictment finding probable cause, and the Criminal Court Judge also found that there was probable cause. Moreover, this Court found that there is no material issue of fact in dispute as to whether the officers had probable cause to arrest plaintiff. Even assuming that plaintiff's version of facts is correct, probable cause would still exist. Thus, there was probable cause to initiate the prosecution and commence charges against plaintiff, unless plaintiff can show that additional facts were available to the prosecutor that would have led the prosecutor to conclude that probable cause did not exist. Since "the plaintiff bears the burden of proof in rebutting the presumption of probable cause that arises from the indictment," Savino v. City of N.Y., 331 F. 3d 63, 73 (2d Cir. 2003), there must be a showing of acts "sufficient for a reasonable jury to find that [plaintiff's] indictment was procured as a result of police conduct undertaken in bad faith." Id. Here, plaintiff has not satisfied his burden.
Plaintiff seeks to avoid summary judgment by offering mere allegations, without more, that evidence was fabricated. Although deposition testimony under oath has been held to be direct evidence of perjury, see Taylor v. City of N.Y., 269 F. Supp. 2d at 74, the offering of "mere 'conjecture' and 'surmise' that his indictment was procured as a result of conduct undertaken by the defendants in bad faith" is insufficient to rebut the presumption of probable cause that arises from an indictment. Savino v. City of N.Y., 331 F. 3d at 73 (citing Bryant v. Maffucci, 923 F.2d 970, 982 (2d Cir.), cert. denied, 502 U.S. 849 (1991)); see also Simmons v. N.Y. City Police Dep't, 97 Fed. Appx. 341, 343 (2d Cir. 2004) (applying Savino and stating that "allegation[s of perjury are] not, without more, sufficient to raise an inference that the indictment was procured by fraud or bad faith conduct");Ramashwar v. Espinoza, No. 05 CV 2021, 2006 WL 23481, at *8 (S.D.N.Y. Jan. 5, 2006) (summarizing cases).
Accordingly, since there was probable cause for the prosecution, and plaintiff has offered no evidence that would demonstrate that his indictment was procured as a result of bad faith by the police, plaintiff cannot rebut the presumption of probable cause created by his indictment and thus cannot satisfy the prerequisites for bringing a Section 1983 malicious prosecution claim. It is thus respectfully recommended that defendants' motion for summary judgment dismissing the malicious prosecution claim be granted.
In addition, plaintiff has failed to present any evidence that the officers acted with "actual malice." Russell v. Smith, 68 F.3d at 36. Thus, even if there was an issue as to probable cause, which there is not, plaintiff cannot satisfy the fourth element of the test.
D. Abuse of Process Claim
Defendants also move for summary judgment, seeking dismissal of plaintiff's malicious abuse of process claim.
In New York, the claim of malicious abuse of process may be brought when the defendant "(1) employs regularly issued legal process to compel performance or forbearance of some act, (2) with intent to do harm without excuse o[r] justification, and (3) in order to obtain a collateral objective that is outside the legitimate ends of the process." Cook v. Sheldon, 41 F.3d 73, 80 (2d Cir. 1994); see also Savino v. City of N.Y., 331 F.3d at 70. The New York Court of Appeals has made it clear that the plaintiff must establish that defendant had an improper "purpose" in commencing the action, beyond the criminal prosecution itself.See Savino v. City of N.Y., 331 F.3d at 77. "[A] malicious motive alone . . . does not give rise to a cause of action for abuse of process." Curiano v. Suozzi, 63 N.Y.2d 113, 117, 480 N.Y.S.2d 466, 468-69, 469 N.E.2d 1324 (1984).
Defendants argue that the plaintiff's claim of malicious abuse of process fails because the indictment creates a presumption of probable cause and there is no evidence that defendants "aimed to achieve a collateral purpose beyond or in addition to [plaintiff's] criminal prosecution." Savino v. City of N.Y., 331 F.3d at 77.
Again, plaintiff's mere conclusory allegations that the officers perjured themselves, even if under oath, are insufficient by themselves to defeat summary judgment, see Ying Jing Gan v. City of N.Y., 996 F.2d 532 (2d Cir. 1993), particularly where, as here, plaintiff has not even articulated, much less provided, evidence of a collateral purpose. Cf. Hernandez v. New York, No. 01 CV 4376, 2003 WL 22771982, at *9 (S.D.N.Y. Nov. 18, 2003) (denying summary judgment on abuse of process claim, on the basis that "safeguarding one's own employment" is an improper collateral objective lying "outside the legitimate goal of criminal process"). Accordingly, it is respectfully recommended that defendants' motion for summary judgment dismissing plaintiff's malicious abuse of process claim be granted.
E. Qualified Immunity
In the alternative, defendants move for summary judgment on the grounds that the officers are entitled to qualified immunity from all of plaintiff's Section 1983 claims.
Since this Court has previously recommended granting summary judgment on each of these claims in favor of defendants, it is not necessary to decide the issue of qualified immunity unless the district court disagrees with this Court's conclusions. Accordingly, the Court has addressed the defense of qualified immunity as providing an alternative basis for granting summary judgment on these claims.
It is well-established that police officers are afforded the defense of qualified immunity from suits for damages resulting from an incident arising from their official conduct of discretionary acts. Anderson v. Creighton, 483 U.S. 635, 639-41 (1987); Lennon v. Miller, 66 F.3d 416, 420 (2d Cir. 1995). The qualified immunity defense reflects an attempt by the courts to balance the competing interests of "a damages remedy to protect the rights of citizens" with "'the need to protect officials who are required to exercise discretion and the related public interest in encouraging the vigorous exercise of official authority.'" Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982) (quoting Butz v. Economou, 438 U.S. 478, 504-06 (1978)). Redefining the limits of qualified immunity in essentially objective terms, the court in Harlow v. Fitzgerald held that qualified immunity shields government actors from liability for damages when they are sued in their personal capacity, "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." 457 U.S. at 818. See also Salim v. Proulx, 93 F.3d 86, 89 (2d Cir. 1996) (stating rule).
A right is "clearly established" under Harlow if "it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Saucier v. Katz, 533 U.S. 194, 202, (2001); see also Harlow v. Fitzgerald, 457 U.S. at 819 (stating that "a reasonably competent public official should know the law governing his conduct"); Eng v. Coughlin, 858 F.2d 889, 895 (2d Cir. 1988) (stating that "the boundaries of the supposed 'right' must be sufficiently definite so that the official understood that his actions violated it"). If the official can prove that he neither knew nor should have known about the relevant legal standard, then the qualified immunity defense should succeed.Harlow v. Fitzgerald, 457 U.S. at 819.
Thus, to establish a qualified immunity defense, an officer must show "either that his conduct did not violate 'clearly established rights' of which a reasonable person would have known, or that it was 'objectively reasonable' to believe that his acts did not violate these clearly established rights."Finnegan v. Fountain, 915 F.2d 817, 823 (2d Cir. 1990) (quotingWarren v. Dwyer, 906 F.2d 70, 74 (2d Cir.), cert. denied, 498 U.S. 967 (1990), and Calamia v. City of N.Y., 879 F.2d at 1035). In conducting this inquiry, courts should examine the unique facts and circumstances of each case to determine whether "[t]he contours of the right [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right. . . ." Id. (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). Three factors are relevant in determining whether a legal rule was "clearly established" at the time of the challenged action: (1) whether the right in question was defined with "reasonable specificity;" (2) whether the decisional law of the Supreme Court and the Second Circuit supports the existence of the right in question; and (3) whether, under pre-existing law, a reasonable official would have understood that his or her acts were unlawful. See Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 129-30 (2d Cir. 2004); Francis v. Coughlin, 891 F.2d 43, 46 (2d Cir. 1989); Warren v. Keane, 937 F. Supp. 301, 306 (S.D.N.Y. 1996).
Here, the defendants have asserted their claim of qualified immunity as to all of plaintiff's Section 1983 claims. The defense of qualified immunity is applicable to claims of false arrest and false imprisonment, Lennon v. Miller, 66 F.3d at 423,Golino v City of New Haven, 950 F.2d 864, 970 (2d Cir.), cert. denied, 505 U.S. 1221 (1992), even in the absence of probable cause, so long as the officer can show either that it was objectively reasonable for him to believe that probable cause existed or that reasonably competent officers could disagree on the existence of probable cause. See Golino v. City of New Haven, 950 F.2d at 870; Robison v. Via, 821 F.2d 913, 921 (2d Cir. 1987).
Since the right of an individual to be free from false arrest and excessive force is well-established, see Calamia v. City of N.Y., 879 F.2d at 1026, the question then becomes whether the officers' conduct here violated "'clearly established rights' which a reasonable person would have known, or that it was 'objectively reasonable' to believe that [their] acts did not violate these clearly established rights." Finnegan v. Fountain, 915 F.2d at 823 (quotations omitted). However, in order for the court to determine whether the conduct of these officers was "objectively reasonable," the court must first determine what the circumstances were and what actions the officers took in response. The inquiry "requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether [the plaintiff] is actively resisting arrest or attempting to evade arrest by flight." Soares v. State of Conn., 8 F.3d 917, 921 (2d Cir. 1993). In seeking to support a claim for qualified immunity, the defendants must establish by a preponderance of the evidence that "'they did not know and reasonably should not have known that their actions would constitute a violation of plaintiff's constitutional rights.'" Garcia v. Senkowski, 919 F. Supp. 609, 616 (N.D.N.Y. 1996) (quoting Redcross v. County of Rennselaer, 511 F. Supp. 364, 372 (N.D.N.Y. 1981)). Even though the question of immunity is ordinarily one for the court to decide, "that is true only where the facts concerning the availability of the defense are undisputed; otherwise, jury consideration is normally required." Oliveira v. Mayer, 23 F.3d at 649. As the Second Circuit in Lennon v. Miller noted:
[A] defendant is not entitled to summary judgment on qualified immunity grounds when "no reasonable jury, looking at the evidence in the light most favorable to, and drawing all inferences most favorable of, the plaintiff, could conclude that it was objectively unreasonable for the defendant" to believe that he was acting in a fashion that did not clearly violate an established federally protected right.66 F.3d 416, 420 (2d Cir. 1995) (quoting Robinson v. Via, 821 F.2d 913, 921 (2d Cir. 1987)). Thus, while a determination of whether defendants may claim qualified immunity is a legal issue that the court may decide on a motion for summary judgment, this determination is still subject to the rules governing motions for summary judgment. See Lloyde v. Lord, No. 94 CV 484, 1997 WL 123996, at *3 (S.D.N.Y. March 19, 1997).
Here, it was objectively reasonable for Detective McDermott to believe that probable cause existed to arrest plaintiff based on the description of the suspect given by Undercover #7404, the plaintiff's admitted presence at the location where the sale occurred, the officer's own observations of plaintiff, and perhaps most important, the Undercover's positive identification. See Robinson v. Via, 821 F.2d 913, 921 (2d Cir. 1987) (holding that an officer is entitled to qualified immunity "if the undisputed facts and all permissible inferences favorable to the plaintiff show either (a) that it was objectively reasonable for the officer to believe that probable cause existed, or (b) that officers of reasonable competence could disagree on whether the probable cause test was met"). Although plaintiff contends that the detective is lying about finding the pre-recorded buy money in plaintiff's pocket, even without that additional piece of evidence, which served to corroborate the Undercover's identification, there was a basis for "arguable" probable cause sufficient to warrant the protection of qualified immunity. See Boyd v. City of N.Y., 336 F.3d 72, 76 (2d Cir. 2003) (stating that probable cause "does not require absolute certainty," and dismissing summary judgment claim based on finding of "'arguable' probable cause").
Moreover, even if the detective and the Undercover made a mistake, there has been no showing that would warrant denial of qualified immunity in this case because the officers reasonably believed that a reasonably prudent police officer would also have concluded there was probable cause to arrest plaintiff. See Oliveira v. Mayer, 23 F.3d 642, 649 (2d Cir. 1994) (describing the distinction between "reasonableness" as a component of the defense of qualified immunity and "reasonableness" in the context of a Fourth Amendment analysis, and concluding that because of the difference, "an officer is protected in some circumstances even when he 'mistakenly conclude[s] that probable cause is present,' . . . i.e., when he reasonably believes that a reasonably prudent police officer would have acted even though a reasonably prudent police officer would not have acted"), cert. denied, 513 U.S. 1076 (1995).
With respect to defendants' assertion of qualified immunity as a defense to the false arrest and false imprisonment claims, this Court has found that there is no dispute that the officers' actions under these circumstances were based on probable cause; thus, it was objectively reasonable for the officers to believe that they had not violated plaintiff's rights. See Robinson v. Via, 821 F.2d at 921. Therefore, as a matter of law, the defense of qualified immunity is applicable in this instance to plaintiff's claims of false arrest, false imprisonment, and malicious prosecution.
On the facts currently before this Court, therefore, this Court respectfully recommends that defendants' motion for summary judgment on the qualified immunity defense be granted. Since the Court concludes that the officers reasonably believed that there was probable cause to arrest plaintiff and to present him to the District Attorney for prosecution, defendants are entitled to qualified immunity with respect to the false arrest, malicious prosecution and abuse of process claims.
F. Parole Violation
Defendants argue that plaintiff cannot seek damages from his incarceration because he was incarcerated as a result of his guilty plea to the charge of violating the conditions of his parole. Defendants argue that because plaintiff entered a plea admitting that he was in violation of his curfew on the night of his arrest, and as he has not shown that this plea and the revocation of parole were invalidated, he cannot satisfy the requirements of Heck v. Humphrey, 312 U.S. 477 (1994). The United States Supreme Court in Heck held that to
recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus.Id. at 486. Heck has been held to apply to "Section 1983 actions that challenge the fact or duration of confinement based on the revocation of parole," Davis v. Cotov, 214 F. Supp. 2d 310, 316 (E.D.N.Y. 2002), but only where there was a favorable termination. See Spencer v. Kemna, 523 U.S. 1, 20 (1998); Heck v. Humphrey, 512 U.S. at 486-87. Since plaintiff entered a plea of guilty in his parole revocation hearing, he cannot satisfy the requirements of Heck unless he first demonstrates that his conviction has been invalidated. See Heck v. Humphrey, 512 U.S. at 486-87; Feurtado v. Gillespie, No. 04 CV 3405, 2005 WL 3088327, at *5 (E.D.N.Y. Nov. 17, 2005); Hernandez v. City of N.Y., No. 00 CV 9507, 2004 WL 2624675, at *5-6 (E.D.N.Y. Nov. 18, 2004); Almonte v. Florio, No. 02 CV 6722, 2004 WL 60306, at *6 (S.D.N.Y. Jan. 13, 2004).
Plaintiff cites Hernandez v. City of New York in support of his argument that his damages should not be limited because a reasonable jury could find that had Detective McDermott not falsely arrested him and then claimed falsely that she found the pre-recorded buy money on him, he would never have been charged with a parole violation and never had his parole revoked. 2003 WL 22771982, at *10 (rejecting defendants' argument that they were not responsible for time spent in jail because a "reasonable jury could conclude that [defendant] lied about the assault. . . . [I]f [plaintiff] had not been arrested and charged with his assault, his parole may not have been revoked based on the alleged assault").
Hernandez, however, is distinguishable from the instant case because here parole was revoked after plaintiff entered a plea of guilty to violating his curfew. Unlike Hernandez, where plaintiff's parole was revoked because of an assault charge, here plaintiff's parole revocation was not based on the drug charges which form the basis for plaintiff's claim of false arrest, but instead on a curfew violation. Although the detective's arrest of plaintiff triggered the charge of parole violation, it was plaintiff's own guilty plea to violating his curfew that resulted in his incarceration. Plaintiff has acknowledged, both in a deposition and by pleading guilty, that he violated his curfew on the night in question. (Defs.' 56.1 Stmnt., Ex. O; Frommer Decl., Ex. P). Plaintiff has not contested the validity of his guilty plea, and there has been no showing that his plea or conviction on the parole violation was ever invalidated. Heck v. Humphrey, 512 U.S. at 486-87; Feurtado v. Gillespie, 2005 WL 3088327, at *5. Therefore, his parole revocation hearing did not result in a favorable termination such that he could seek damages from his incarceration.
Citations to "Frommer Decl." refer to the Declaration of Hillary A. Frommer, Esq., filed on February 20, 2004.
In addition, the Second Circuit has held that an intervening act of independent judgment breaks the chain of causation between a police officer's unlawful arrest and a subsequent conviction.Townes v. City of N.Y., 176 F.3d 138, 147 (2d Cir. 1999);Hernandez v. City of N.Y., 2003 WL 22771982, at *10. Thus, even if the arresting officers acted unlawfully, plaintiff's guilty plea was an intervening act of independent judgment which broke the chain of causation.
The Court notes that the rule that "the chain of causation should not be considered broken 'where the initial wrongdoer can reasonably foresee that his misconduct will contribute to an independent decision that results in a deprivation of liberty,'"Hernandez v. City of N.Y., 2003 WL 22771982, at *10 (quotingZahrey v. Coffey, 221 F.3d 342, 352 (2d Cir. 2000)), is inapplicable here, as plaintiff has not alleged that the arresting officers were aware that he was on parole. Indeed, his deposition testimony asserts the opposite: that "none of the officers know that you have curfew. The only person that knows is the parole officer." (Frommer Decl., Ex. Q).
Accordingly, it is thus respectfully recommended that defendants' motion to bar plaintiff from seeking damages from his incarceration be granted.
G. Right to A Fair Trial
Defendants argue that summary judgment should also be granted on plaintiff's final claim that he was denied a fair trial as a result of the officers' false testimony and the presentation of false evidence against plaintiff. Defendants contend that where, as here, plaintiff was deprived of his liberty as a result of the revocation of parole and not as a result of the false evidence, he cannot sustain a claim that his constitutional rights were violated. See Zachrey v. Coffey, 221 F.3d at 348 (holding that the denial of a fair trial based on fabricated evidence rises to the level of a constitutional violation only "if one is deprived of his liberty because of the fabrication") (emphasis added);Henry v. City of N.Y., No. 02 CV 4824, 2003 U.S. Dist. LEXIS 15699, *12 (S.D.N.Y. Sept. 5, 2003) (holding there is "no constitutional right to be free from having evidence fabricated against an individual").
Plaintiff argues that where a police officer supplies false information to a prosecutor and the defendant is then deprived of his liberty as a result, the officer has deprived him of his right to a fair trial. See Riccuiti v. Transit Auth., 124 F.3d 123, 130 (2d Cir. 1997); see also Jacks v. Tavernier, 316 F.3d 128, 138 (2d Cir. 2003). In this case, however, plaintiff argues that it was not the parole violation that deprived him of his liberty. He contends that it is up to the jury to determine whether the officers supplied false or perjured testimony and whether that false information was the reason he was brought upon a parole violation.
First, as has already been discussed, supra, this Court has concluded as a matter of law that probable cause would have existed even if Undercover #7404 did not include the fact that the suspect had gold teeth in her radio transmission, and even if the pre-recorded buy money was not found on defendant's person. In addition, regardless of whether the officers' testimony was a basis for the parole violation charge, plaintiff admitted to violating parole on the night in question. Plaintiff stated in his deposition that he went to the store after curfew (Defs.' 56.1 Stmnt., Ex. O), and he pled guilty to the parole violation charge in his parole revocation hearing. (Frommer Decl., Ex. P). Accordingly, as plaintiff was not deprived of his liberty as a result of the alleged fabrication, see Zachrey v. Coffey, 221 F.3d at 348, it is respectfully recommended that defendants' motion for summary judgment dismissing plaintiff's claim that he was denied a fair trial be granted.
CONCLUSION
It is respectfully recommended that defendants' motions for summary judgment on the claims of false arrest, false imprisonment, malicious prosecution, malicious abuse of process, and denial of a fair trial be GRANTED, and that plaintiff's Complaint be dismissed in its entirety. Any objections to this Report and Recommendation must be filed with the Clerk of the Court, with a copy to the undersigned, within ten (10) days of receipt of this Report. Failure to file objections within the specified time waives the right to appeal the District Court's order. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72;Small v. Sec'y of Health and Human Servs., 892 F.2d 15, 16 (2d Cir. 1989).
The Clerk is directed to mail copies of this Report and Recommendation to the parties.