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February 4, 1999


The opinion of the court was delivered by: Seybert, District Judge.


Presently pending before the Court is Defendants' joint motion for summary judgment in this civil rights action, alleging violations of 42 U.S.C. § 1983, 1981, and 1985, stemming from the arrest of Plaintiff Earl Carson and the search of Plaintiffs' residence. On or about March 6, 1998, this Court So Ordered a Stipulation of Discontinuance as against Defendants James Catterson, Suffolk County District Attorney, and William T. Ferris, III, Suffolk County Assistant District Attorney, and the present caption reflects this change.

On December 10, 1998, this Court heard oral argument on the original motion for partial summary judgment and directed the parties to brief why complete summary judgment should not be granted the Defendants. After consideration of all the briefs and exhibits submitted before and after the hearing, and the arguments advanced at the hearing, for the reasons that follow, Defendants' motion for summary judgment is granted in its entirety and Plaintiffs' complaint is dismissed with prejudice.


The facts as presented in Plaintiffs' complaint are that on or about July 13, 1992, Judith Monroe entered the Patchogue Post Office and passed an employee a note claiming she was abducted. The employee called 911 and passed on the information. The Suffolk County Police Department (hereinafter "SCPD") responded, investigated and arrested the Plaintiff Earl Carson for an outstanding bench warrant and ultimately for kidnaping and burglary. Monroe claimed that Carson abducted her from her home, burglarizing it in the process, and held her captive in Plaintiffs' residence while another male raped and sodomized her. Defendant Detective Lewis obtained and executed two search warrants for the premises rented by Earl Carson and Lydia Rivers, at 905 Sipp Avenue, East Patchogue, New York. A Grand Jury was convened and on July 17, 1992, it returned an indictment for burglary in the second degree against Earl Carson, however, new evidence was presented to a second Grand Jury in or about January 1993, which did not return a true bill and Carson was released from Suffolk County Jail.

Plaintiffs contend that the SCPD should have realized that Monroe, the complaining witness, was a drug user whose allegations were not credible. Further, Plaintiffs allege that the information provided in support of the application for a search warrant was knowingly false, made for the express purpose of garnering overtime, and that the resultant search exceeded the scope of its authority. In addition, Sergeant Pepper of the SCPD filed a report on or about July 14, 1992, which purportedly established that Carson should be released, however, Plaintiffs assert that the Defendants purposefully failed to act on the exculpatory information provided. Finally, the Plaintiffs maintain that the second Grand Jury was only assembled after Newsday ran a scathing article highlighting the lack of objective evidence supporting Carson's arrest.

Plaintiffs' first cause of action is brought under 42 U.S.C. § 1981, alleging that because Plaintiffs are black they were treated differently than white citizens. Plaintiffs' second cause of action is brought pursuant to 42 U.S.C. § 1983, alleging police and prosecutorial misconduct. Plaintiffs' third cause of action is brought under 42 U.S.C. § 1985(3), alleging that Defendants conspired to deprive Plaintiffs of the equal protection of law. Plaintiffs demand a jury trial and each seek approximately 90 million dollars in damages.

Defendants presently move for summary judgment asserting, inter alia, that no false arrest claim can exist because Carson was initially arrested for an outstanding bench warrant for failing to appear to answer a charge of driving while intoxicated. Defendants' also assert that an arrest based upon probable cause established through a private citizen's complaint is presumptively valid, and therefore, in light of the information known to the Defendants at the time of the arrest, the false arrest and malicious prosecutions claims must be dismissed as a matter of law. Defendants Detective William Lewis and Chief Thomas Blomberg also move for summary judgment with respect to Carson's false arrest and malicious prosecution claims on the grounds of qualified immunity. In that regard, Defendants assert that the existence of probable cause for the arrest precludes a § 1983 claim, irrespective of the Defendants' motivations, whether pure or otherwise. Finally, Defendants assert that a loss of consortium claim, as alleged by Plaintiff Lydia Rivers, is not actionable under § 1983.



Pursuant to Federal Rule of Civil Procedure 56(c), courts may not grant a motion for summary judgment unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The burden of proof is on the moving party to show that there is no genuine issue of material fact, Gallo v. Prudential Residential Servs., L.P., 22 F.3d 1219, 1223 (2d Cir. 1994) (citing Heyman v. Commerce & Indus. Ins. Co., 524 F.2d 1317, 1320 (2d Cir. 1975)), and "all ambiguities must be resolved and all inferences drawn in favor of the party against whom summary judgment is sought." Id. (citing Eastway Constr. Corp. v. City of New York, 762 F.2d 243, 249 (2d Cir. 1985)). "Factual disputes that are irrelevant or unnecessary will not be counted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986) (citing 10A Charles Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice and Procedure § 2725, at 93-95 (1983)).

A party opposing a motion for summary judgment "`may not rest upon the mere allegations or denials of his pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial.'" Id. at 248, 106 S.Ct. at 2510 (quoting First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 288-89, 88 S.Ct. 1575, 1592, 20 L.Ed.2d 569 (1968)). Under the law of the Second Circuit, "when no rational jury could find in favor of the nonmoving party because the evidence is so slight, there is no genuine issue of material fact and a grant of summary judgment is proper." Gallo, 22 F.3d at 1224 (citing Dister v. Continental Group, Inc., 859 F.2d 1108, 1114 (2d Cir. 1988)).

It is within this framework that the Court addresses the present summary judgment motion.


Plaintiffs' Section 1983 claims allege violations of the First, Fourth, Fifth, Eighth and Fourteenth Amendments in connection with Carson's arrest and the search of their residence. Claims brought under 42 U.S.C. § 1983 are guided by the tort law of the forum state. Russell v. Smith, 68 F.3d 33, 36 (2d Cir. 1995); Singer v. Fulton County Sheriff, 63 F.3d 110, 118 (2d Cir. 1995), cert. denied, 517 U.S. 1189, 116 S.Ct. 1676, 134 L.Ed.2d 779 (1996).

The next inquiry is whether the charges subsequently brought against Carson, burglary and kidnapping, violated his constitutional rights. To establish a claim under § 1983 for false arrest a plaintiff must show that: (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. Singer, 63 F.3d at 118. It cannot be gainsaid that a claim for false arrest will not stand where the arresting officer had probable cause. See Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996); Zanghi v. Incorporated Village of Old Brookville, 752 F.2d 42, 45 (2d Cir. 1985) ("It is abundantly clear that a finding of probable cause will defeat state tort claims for false arrest, false imprisonment and malicious prosecution."); Peterson v. County of Nassau, 995 F. Supp. 305, 313 (E.D.N.Y. 1998) (citing Bernard v. United States, 25 F.3d 98, 102 (2d Cir. 1994)); Decker v. Campus, 981 F. Supp. 851, 856 (S.D.N.Y. 1997) ("If there existed probable cause at the time of the arrest, the arrest is privileged, and the individual has no constitutional or statutory claim against the officer who made the arrest.").

Probable cause exists "when the officers have knowledge or reasonably trustworthy information of facts and circumstances that are sufficient to warrant a person of reasonable caution in the belief that the person to be arrested has committed or is committing a crime." Weyant, 101 F.3d at 852. Probable cause requires only 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, 103 S.Ct. 2317, 2335 n. 13, 76 L.Ed.2d 527 (1983). Thus, the existence of probable cause, vel non, is assessed based on probabilities, not certitude, as viewed by a reasonably prudent law enforcement official considering all the objective facts known prior to effectuating the arrest. Consequently, the validity of an arrest does not depend upon an ultimate finding of guilt or innocence. See Pierson v. Ray, 386 U.S. 547, 555, 87 S.Ct. 1213, 1218, 18 L.Ed.2d 288 (1967).

Probable cause can be determined as a matter of law "if there is no dispute as to the pertinent events and the knowledge of the officers." Anderson v. Creighton, 483 U.S. 635, 641, 107 S.Ct. 3034, 3040, 97 L.Ed.2d 523 (1987); see also Labensky v. County of Nassau, 6 F. Supp.2d 161, 177 (E.D.N.Y. 1998) (finding probable cause as a matter of law); Mistretta v. Prokesch, 5 F. Supp.2d 128, 135 (E.D.N.Y. 1998) (granting Rule 50 motion for judgment as a matter of law because officer had probable cause at the time of arrest); Pawlicki v. City of Ithaca, 993 F. Supp. 140, 145 (N.D.N.Y. 1998) (finding probable cause as a matter of law and granting summary judgment even though arresting officer was faced with competing accounts from different eyewitnesses); Decker, 981 F. Supp. at 858 (finding probable cause as a matter of law and granting defendant's motion for summary judgment).

Furthermore, an officer's subjective motivations are never in issue. The Supreme Court has stated that "[w]hether a Fourth Amendment violation has occurred turns on an objective assessment of the officer's actions in light of the facts and circumstances confronting him at the time and not on the officer's actual state of mind at the time the challenged action was taken." Maryland v. Macon, 472 U.S. 463, 470-71, 105 S.Ct. 2778, 2783, 86 L.Ed.2d 370 (1985) (internal quotations and citations omitted). Specifically, when analyzing issues surrounding the constitutionality of searches and seizures under the Fourth Amendment, the Second Circuit has adopted a wholly objective "authorization" test, which provides that "so long as the police are doing no more than they are legally permitted and objectively authorized to do," their actions are constitutional. United States v. Scopo, 19 F.3d 777, 783-84 (2d Cir.), cert. denied, 513 U.S. 877, 115 S.Ct. 207, 130 L.Ed.2d 136 (1994) (internal quotations and citations omitted). This is noteworthy because a considerable number of Plaintiffs' accusations surround the motivations of the SCPD officers — whether to garner overtime or to discredit Sergeant Pepper — allegations superfluous to the Court's immediate consideration.

With regard to Detective Lewis' evaluation of the facts and circumstances establishing probable cause to arrest Carson on burglary and kidnapping charges, it is necessary to consider the statements provided to the police prior to charging Carson.

Patricia Duffett filed a report with the SCPD on or about July 13, 1992, and she notarized a sworn statement at 4:10 p.m. on that date, indicating that on the previous day she was at home at 552 South Ocean Avenue, Patchogue, in the company of her common-law husband, her two children and her mother, Judith Monroe, when Earl Carson, accompanied by a person unknown to Duffett, loudly banged on her door. Apparently entering through the unlocked door, without permission, Carson proceeded to argue with Monroe, which led to Carson's grabbing Monroe's pocketbook, taking it outside, and rummaging through its contents. Duffett and Monroe attempted to retrieve the pocketbook without success. During the commotion, Duffett's newly purchased dog got out of the house and ran away, with Duffett in pursuit. When Duffett returned to her house, Carson, his companion Emmett Perry, and her mother Judith Monroe were gone, and Monroe's vehicle, a 1980 Ford Thunderbird, was also missing. A neighbor informed Duffett that her mother was forced into the car. Duffett's narrative was, in part, the basis for the burglary and kidnapping charges.

Judith Monroe filed a report with the SCPD on July 13, 1992, providing three separate sworn statements to Detective Lewis. The first at 5:09 p.m., the second at 6:37 p.m. and the third at 8:18 p.m. Monroe's narratives, memorialized in the three statements, are consistent and supply the factual predicates for the crimes charged.

Specifically, the first statement relates to the kidnapping and includes the following relevant events. Judith Monroe knew Earl Carson for about one month prior to the events in question, and she recognized Carson's voice when he was banging on her daughter's door. When Carson and Perry entered, Carson said "[g]ive me your car keys, you're coming to my house." Monroe refused, but Earl grabbed her by her arm and pulled her out of the house toward her car all the while shouting, "[y]ou're going with me or I'll kill you. You'll be buried by morning." Monroe was fearful for her life and safety as she was directed into her car and told by Carson to drive or he would kill her daughter and grandchildren. Once they started out, Carson switched positions with Monroe and drove her car around for a couple of hours before going to Carson's house at 905 Sipp Street in Patchogue. After entering the house, Carson told Monroe that "she knew too much about him and that he would have to kill her." Realizing she could not escape, Monroe went into an empty bedroom to try to sleep for a few hours. The next morning she told Carson she wanted to leave, but he would not let her. Under the guise that she had to go to the Post Office to pick up her social security check of $508.00, Monroe convinced Carson to allow her to go, but Carson insisted on accompanying her. While still in the house, Monroe wrote a note to pass to a postal clerk she knew in the Patchogue Post Office. Upon arrival at the post office, Monroe retrieved her mail from her post office box and then passed her note to Jim, the familiar postal employee. Upon reading the note, which indicated that Monroe was being held and needed help, Jim told her that she would have to accompany him upstairs to sign for the social security check. Carson indicated that he would wait while Jim escorted Monroe upstairs, at which point the police were called.

The second sworn statement provided information used in support of the warrant application to search for illegal weapons and stolen property. Monroe recounted observing approximately 200 movie video tapes in Carson's residence that were allegedly stolen from different video stores. Carson informed Monroe that the two televisions in the residence were stolen from 550 South Ocean Avenue. In addition, Monroe indicated that Carson showed her three guns he stored in his bedroom closet, along with other possibly stolen items.

The third statement recounts the information relevant to the purported rape and supported the search warrant application for evidence of the rape. Monroe stated that she was abducted from her home by Earl Carson and another individual, later determined to be Emmett Perry. Monroe was forced to drive her vehicle to Carson's residence at 905 Sipp Avenue, where Lydia Rivers, Lynette Wilkerson and two unknown males were present. She was told to go into a bedroom and was joined by Perry, Wilkerson and an unknown male. There were two beds in the room and the three others proceeded to get undressed and engage in sexual activity in the other bed. Monroe was told to take off her shirt and to watch them. Afterward, the unknown male left the room and Perry went into the bed occupied by Monroe and proceeded to force her to get undressed, after which Perry penetrated her against her will. During this occurrence, Wilkerson yelled at Perry: "What are you doing with that white trash bitch, get over here." Monroe indicated that when Perry got off of her, he ejaculated on her leg.

Plaintiff was charged with one count of kidnapping in the second degree and one count of burglary in the second degree. Kidnapping in the second degree is defined in Section 135.20 of the New York Penal Law as: "A person is guilty of kidnapping in the second degree when he abducts another person." Abduction means to restrain a person by secreting the person in a place where he or she is not likely to be found, while restrain means to restrict a person's movements in a place where the restriction commences, or by moving the person from one place to another, and such is accomplished by physical force or intimidation. Penal Law § 135.00[1]. The sworn statements provided by Judith Monroe would lead a reasonable police officer to believe that probable cause existed to charge the Plaintiff, Earl Carson, with kidnapping in the second degree.

Burglary in the second degree, as relevant herein, requires a showing that a person knowingly entered or remained unlawfully in a dwelling with intent to commit a crime therein. The sworn statements provided by Judith Monroe and Patricia Duffett establish the requisite elements of the crime of burglary in the second degree. Entering the residence without permission of the owner or the occupant, Carson and Phillips forced Carson out of the residence and into her vehicle, abducting her in the process. These actions satisfy the elements of the crime of kidnapping, and the crime of burglary as well. Additionally, taking Monroe's pocketbook constituted the crime of attempted larceny, buttressing the burglary charge. As such, a reasonable police officer provided with the sworn statements of Monroe and Duffett could properly conclude that probable cause existed to charge Carson with burglary in the second degree.

The predicate for Detective Lewis' conclusion that probable cause existed to arrest Carson for burglary and kidnapping was the sworn statements provided by the victim, Judith Monroe, and her daughter, Patricia Duffett. An officer's arrest based on a victim's positive identification is presumptively valid. For example, in Singer, 63 F.3d at 118-19, the Second Circuit affirmed the summary dismissal of the false arrest claim on the ground that there was probable cause for the arrest because the officer was directly advised by the store owner who was present during the crime and knew the criminal's identity, and the owner's veracity was not in doubt. Id. at 119; see also McKinney v. George, 726 F.2d 1183, 1187 (7th Cir. 1984) ("If policemen arrest a person on the basis of a private citizen's complaint that if true would justify the arrest, and they reasonably believe it is true, they cannot be held liable for a violation of the Constitution merely because it later turns out that the complaint was unfounded."); Miloslavsky v. AES Eng'g Soc'y Inc., 808 F. Supp. 351, 355 (S.D.N.Y. 1992) ("The veracity of citizen complaints who are the victims of the very crime they report to the police is assumed."), aff'd, 993 F.2d 1534 (2d Cir.), cert. denied, 510 U.S. 817, 114 S.Ct. 68, 126 L.Ed.2d 37 (1993); Thomas v. Culberg, 741 F. Supp. 77, 80 (S.D.N.Y. 1990) ("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.'") (quoting Daniels v. United States, 393 F.2d 359, 361 (D.C.Cir. 1968)).

Because an unequivocal identification of a suspect received by police from a victim or eyewitness can provide probable cause, then, "[a]ssuming the information . . . relied upon was wrong, probable cause exists even where it is based upon mistaken information, so long as the arresting officer was reasonable in relying on that information." Bernard, 25 F.3d at 103 ...

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