Thomas filed this action on or about July 25, 1988 against
defendants Beth Israel Medical Center, State Family Court Judge
Mary Bednar, City of New York Human Resources Administration
("H.R.A."), Special Services for Children ("S.S.C."), William
Grinker, as Commissioner of H.R.A. ("Commissioner") and Herman
D. Wilson, caseworker with S.S.C. ("Wilson"). Thomas alleged
among other things, that defendants unlawfully removed his son
from his custody on July 12, 1988. On November 4, 1988
defendants moved to dismiss the complaint pursuant to Federal
Rule of Civil Procedure 12(b)(6) or, in the alternative, for
summary judgment pursuant to Federal Rule of Civil Procedure
56. On March 20, 1989, this Court dismissed the complaint
against Beth Israel Medical Center and Judge Bednar with
prejudice and dismissed the complaint against the city
defendants with leave to replead within twenty days.
On or about April 6, 1989, Thomas filed an amended complaint
identical to the original complaint with the exception of
adding Culbert to the already named city defendants. The city
defendants moved to dismiss the amended complaint on or about
June 7, 1989. By memorandum decision dated September 27, 1989,
this Court dismissed the complaint against H.R.A., S.S.C., the
Commissioner and Wilson with prejudice. The court found,
however, that assuming the truth of all the facts alleged in
the amended complaint, dismissal of the claims against the
police officer was inappropriate at that time. In a memorandum
opinion dated October 2, 1989, Thomas' motion by order to show
cause for a preliminary injunction seeking return of his child
Culbert moved for summary judgment on the claims against him
on April 20, 1990. The motion was considered fully submitted as
of April 27, 1990.
The facts of this dispute are set forth in detail in the
September 29, 1989 opinion, familiarity with which is assumed.
Standards for Summary Judgment
To grant summary judgment the court must determine that no
genuine issue of material fact exists and that the moving party
is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c).
The court's responsibility is not to resolve disputed issues of
fact, Donahue v. Windsor Locks Bd. of Fire Comm'rs,
834 F.2d 54, 57 (2d Cir. 1987), but to determine whether there are any
factual issues to be tried, while resolving ambiguities and
drawing inferences against the moving party. Anderson v.
Liberty Lobby Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91
L.Ed.2d 202 (1986) (citing Adickes v. S.H. Kress & Co., Inc.,
398 U.S. 144, 158-59, 90 S.Ct. 1598, 1608-09, 26 L.Ed.2d 142
(1970)). Summary judgment enables the court to dispose of
meritless claims before becoming entrenched in a costly trial.
Donahue, 834 F.2d at 58, (citing Knight v. U.S. Fire Ins. Co.,
804 F.2d 9, 12 (2d Cir. 1986) cert. denied, 480 U.S. 932, 107
S.Ct. 1570, 94 L.Ed.2d 762 (1987)).
Probable Cause to Arrest
To allege false arrest a plaintiff has the burden of
demonstrating lack of probable cause for the arrest. See e.g.,
Alberts v. City of New York, 549 F. Supp. 227, 231 (S.D.N.Y.
1982). Probable cause to arrest exists when officers "have
knowledge or reasonably trustworthy information of facts and
circumstances that are sufficient in themselves to warrant a
person of reasonable caution to believe that (1) an offense has
been or is being committed (2) by the person being arrested."
United States v. Ceballos, 812 F.2d 42, 50 (2d Cir. 1987)
(quoting United States v. Fisher, 702 F.2d 372, 375 (2d Cir.
The existence of probable cause is measured as of the moment
of the arrest, not on later developments. Beck v. Ohio,
379 U.S. 89, 93, 85 S.Ct. 223, 226, 13 L.Ed.2d 142 (1964). The
validity of the arrest depends only on the existence of
probable cause at the time of the arrest. Whether the suspect
was acquitted later of the charges for which he was arrested is
irrelevant to the determination of probable cause. Michigan v.
443 U.S. 31, 36, 99 S.Ct. 2627, 2631, 61 L.Ed.2d 343 (1979).
Probable cause exists "when facts and circumstances within
the officers' knowledge . . . are 'sufficient in themselves to
warrant a man of reasonable caution in the belief that' an
offense has been or is being committed." U.S. v. Fox,
788 F.2d 905, 907 (2d Cir. 1986) (quoting Brinegar v. U.S.,
338 U.S. 160, 175-76, 69 S.Ct. 1302, 1310-11, 93 L.Ed. 1879 (1949)). A
showing that a fair probability of criminal activity existed,
based on the totality of circumstances, is sufficient to
establish probable cause. See Illinois v. Gates, 462 U.S. 213,
230-231, 243-44 n. 13, 103 S.Ct. 2317, 2328-2329, 2334-2335 n.
13, 76 L.Ed.2d 527 (1983); Davis v. Little, 851 F.2d 605, 607
(2d Cir. 1988); Parker v. Hearn, 695 F. Supp. 1421, 1424
(E.D.N.Y. 1988). Neither a prima facie showing of criminal
activity, nor a showing that it is more probable than not that
a crime has been committed is required. United States v. Cruz,
834 F.2d 47, 50 (2d Cir. 1987), cert. denied, 484 U.S. 1077,
108 S.Ct. 1056, 98 L.Ed.2d 1018 (1988). Officers have probable
cause to arrest if they receive "information from some person
— normally the putative victim or eyewitness — who it seems
reasonable to believe is telling the truth." Daniels v. United
States, 393 F.2d 359, 361 (D.C. Cir. 1968).
Although Thomas was not charged criminally, the ultimate
disposition of the arrest is irrelevant, and the ultimate
exoneration of the arrestee does not establish that the arrest
was invalid. Winfield v. United States, 430 F. Supp. 912, 914
(S.D. N.Y. 1977), (citing Pierson v. Ray, 386 U.S. 547, 555, 87
S.Ct. 1213, 1218, 18 L.Ed.2d 288 (1967)). Based on Culbert's
observations and discussions with Thomas and the eyewitness,
Culbert could reasonably conclude that Thomas was guilty of
assault in the third degree because he recklessly caused
physical injury to his son or at least of disorderly conduct.
Based on the Family Court testimony submitted with the
instant motion, Culbert received an eyewitness report,
interviewed the eyewitness, spoke with Thomas, and observed
David's scrapes and bruises as well as his dirty clothing at
the time of the arrest. Additionally, as Culbert approached,
according to Thomas, Thomas stated he had been over at the site
of the trash can and that he and David were playing with
newspapers there. In Family Court, Thomas admitted to having
held his son David by the feet over a trash can. Although
Thomas also stated that this act was a joke and that the women
who had called to report it to the police was crazy, Culbert
had an opportunity to interview the eyewitness who called and
was able to formulate an opinion as to whether the eyewitness
was "crazy" or the call was a "prank." Whether or not, in
Thomas' presence, David denied any abuse does not preclude a
finding that Culbert had probable cause, based on the foregoing
to arrest Thomas. See Robison v. Via, 821 F.2d 913, 920 (2d
Although a reasonable person could conclude that the totality
of circumstances gave Culbert probable cause to arrest, on a
motion for summary judgment, without the opportunity to
evaluate Culbert's reaction to the eyewitness — whether he
thought she was crazy and the call was a prank, the material
facts in dispute on this motion — summary judgment can not be
granted. If the eyewitness was crazy as Thomas alleges it
cannot be said that no reasonable juror could find an absence
of probable cause to arrest.
Nonetheless, the complaint against Thomas must be dismissed
because Culbert is entitled to qualified immunity. Government
officials such as police officers are entitled to qualified
immunity for discretionary acts performed in the scope of their
employment. See Neu v. Corcoran, 869 F.2d 662, 665 (2d Cir.
1989), cert. denied, ___ U.S. ___, 110 S.Ct. 66, 107 L.Ed.2d 33
(1989). In the Second Circuit a defendant is entitled to
by showing that "it was not clear at the time of
the official act that the interest asserted by the
plaintiff was protected by a federal statute or
the Constitution;" or that "it was not clear at
the time of the acts at issue that an exception
did not permit those acts;" or that "it was
objectively reasonable for [the official] to
believe that his acts did not violate