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April 12, 1999


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


On October 22, 1997, plaintiff Ashanti Chimurenga, an attorney, was arrested for allegedly attempting to smuggle contraband into the Adolescent Reception and Detention Center on Riker's Island. See Rule 56.1 Statement of Defendant Tyrone Fields ("Fields 56.1 Stmt.") ¶¶ 3, 23; Pl. Response to Fields 56.1 Stmt. ¶¶ 3, 23. The incident arose when plaintiff, who was teaching a course at the Detention Center, attempted to bring a box of books into the facility. See Deposition of Ashanti Chimurenga ("Pl.Dep.Tr.") at 26-35. Upon entering the Detention Center, plaintiff, in compliance with standard security scanning, placed the box of books on a conveyor leading to an x-ray machine. See id. at 33. During the scanning process, defendant Tyrone Fields, the correction officer monitoring the x-ray machine, stated that he perceived what appeared to be a suspicious object in the box and directed his colleague and codefendant, Correction Officer Raymond Padula, to search further. See Fields Dep. Tr. at 21-27. Padula did so and found a razor blade in the box. See id. at 34-36, 41. Plaintiff asserts that since there was no razor blade in the box when she surrendered it for scanning, Padula must have "planted" the blade and that the entire incident was jointly concocted by Padula and Fields. See Amended Complaint ¶ 44; Pl. Br. at 19-20; Pl. Dep. Tr. at 106, 108.

After the blade was confiscated, plaintiff was questioned and eventually arrested and charged with promoting prison contraband in the first degree and with criminal possession of a weapon in the fourth degree. See Fields 56.1 Stmt. ¶ 23; Pl. Resp. to Fields 56.1 Stmt. ¶ 23. The charges were subsequently dismissed on motion of the Bronx County District Attorney's Office. See Fields 56.1 Stmt. ¶ 24; Pl. Resp. to Fields 56.1 Stmt. ¶ 24. Nonetheless, the Department of Corrections utilized the incident as a basis for denying plaintiff a Legal Assistant Pass that would have allowed her access to courthouse holding facilities for juvenile inmates. See Deposition of Joseph Guarino ("Guarino Dep. Tr.") at 9-10. Plaintiff, whose job required her to interview youthful offenders, sought reconsideration of that decision, but her request was denied without further hearing. See Pl. Dep. Tr. at 84, 86-87.

Thereafter, on January 12, 1998, plaintiff filed this suit against the City of New York, Corrections Officers Fields and Padula, Department of Corrections Commissioner Bernard Kerik, Department of Corrections Warden Elizabeth Heard, and Department of Corrections Acting Director of Labor Relations Joseph Guarino, asserting that she had been the victim of false arrest, malicious prosecution, denial of equal protection, deprivation of liberty without due process, and negligence. See Amended Complaint. Following discovery, the defendants moved for summary judgment on all claims asserted against them.

Upon consideration of the parties' written submissions and oral arguments, the Court hereby grants the defendants' motions in part and denies them in part.

Plaintiff's equal protection claims under the Fourteenth Amendment and under 42 U.S.C. § 1983 must likewise be dismissed because plaintiff has failed to adduce any admissible evidence of disparate treatment based on impermissible considerations such as race or religion, an essential element of such a claim.*fn1 See Crowley v. Courville, 76 F.3d 47, 52-53 (2d Cir. 1996). Indeed, the only indication of disparate treatment in the record is plaintiff's allegation that a white art teacher was not arrested when attempting to enter Riker's Island with a razor blade. See Amended Complaint ¶¶ 41-42. Quite aside from the fact that an art teacher is not similarly situated to the plaintiff for purposes of determining whether he or she might have an innocent reason for possessing a razor blade, this allegation is insufficient to defeat summary judgment because it is supported only by inadmissible hearsay. See Pl. Dep. Tr. at 75-76 (referring to hearsay statements by unspecified persons to the effect that a white art teacher had not been arrested when discovered entering Riker's Island with a razor blade); see also H. Sand & Co. v. Airtemp Corp., 934 F.2d 450, 454-55 (2d Cir. 1991) (hearsay insufficient to defeat summary judgment).

Plaintiff's due process claim — which alleges that the defendants violated her due process rights by failing to grant her a hearing at which she could appeal the decision denying her application for a Legal Assistant Pass — must also be dismissed. See Amended Complaint ¶¶ 92, 95-97. The requirements of procedural due process extend only to those interests "encompassed by the Fourteenth Amendment's protection of liberty and property." Board of Regents v. Roth, 408 U.S. 564, 569, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). Accordingly, in order to bring a procedural due process claim, a plaintiff must first identify some protected liberty or property interest. See Narumanchi v. Board of Trustees of Conn. State Univ., 850 F.2d 70, 72 (2d Cir. 1988). Here, while plaintiff alleges in her Amended Complaint that she has a protected "liberty interest" in access to the "Courthouse pens," Amended Complaint ¶ 96, she has failed to come forward with any legal authority in support of this position and the Court's independent analysis of the issue indicates that no such liberty interest exists.

A protected liberty interest "may arise from two sources — the Due Process Clause itself and the laws of the states." Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454, 460, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989) (quotation marks omitted); Paul v. Davis, 424 U.S. 693, 710-11, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976). While courts have uniformly rejected the claim that a liberty interest in prison visitation is inherent in the Due Process Clause itself, see, e.g., Thompson, 490 U.S. at 460, 109 S.Ct. 1904; Glenn v. Gonzales, No. 89 Civ. 2602(PNL), 1991 WL 222109, *1 (S.D.N.Y. Oct. 18, 1991), state law has been found to create such an interest in certain contexts. See Kozlowski v. Coughlin, 539 F. Supp. 852, 855-57 (S.D.N.Y. 1982). In particular, a state may create a protected liberty interest where its laws or regulations place substantive limits on official discretion that constrain the power of state officials to deny the liberty at issue. See Silano v. Sag Harbor Union Free School District, 42 F.3d 719, 724-25 (2d Cir. 1994); Verri v. Nanna, 972 F. Supp. 773, 799 (S.D.N.Y. 1997). Here, however, plaintiff has not specified any law or regulation that limits the discretion of the Department of Corrections' to grant or deny a Legal Assistant Pass, and the evidence of record suggests that no such law or regulation exists. See Guarino Dep. Tr. at 22. Plaintiff's due process claim must therefore be dismissed.*fn2

It follows that all claims against defendant Joseph Guarino must also be dismissed. While plaintiff's Amended Complaint notably fails to specify which counts are directed at which defendants, the record indicates that Mr. Guarino's sole involvement in this case stems from his role in approving the decision of Department of Corrections investigators to deny plaintiff a Legal Assistant Pass. Accordingly, the Court's decision to dismiss plaintiff's due process claim — the sole count of the Amended Complaint relating to the Legal Assistant Pass — likewise mandates that Mr. Guarino be dismissed from this case.

Plaintiff's claims against defendants Elizabeth Heard and Bernard Kerik must also be dismissed, because plaintiff has failed to adduce any competent evidence of any wrongdoing by either of them. Indeed, the only "evidence" of record pertaining to either defendant is a speculation that a report relating to plaintiff's arrest may have been signed by Warden Heard. See Deposition of Thomas Cossean at 45. On any analysis, such speculation is insufficient to support any claim against Heard (let alone Kerik), and plaintiff effectively concedes as much by offering no response to their arguments for summary judgment.

This leaves plaintiff's claims against defendants Padula, Fields, and the City of New York for false arrest and malicious prosecution. While plaintiff brings these claims under both 42 U.S.C. § 1983 and under New York law, the elements of these claims are substantially the same whether brought under § 1983 or state law, so far as the individual defendants are concerned. See Hygh v. Jacobs, 961 F.2d 359, 366 (2d Cir. 1992); see also Cook v. Sheldon, 41 F.3d 73, 79 (2d Cir. 1994), citing Martin v. City of Albany, 42 N.Y.2d 13, 16, 396 N.Y.S.2d 612, 364 N.E.2d 1304 (N.Y. 1977). Since, however, there are differences between the relevant state and federal law when applied to a municipal defendant such as the City, the liability of the individual defendants, Padula and Fields, will be discussed first.

As to the false arrest claims, the defendants argue that the claims must be dismissed because the discovery of a razor blade in plaintiff's belongings created probable cause for her arrest. This might exonerate other officers involved in the arrest, but it is irrelevant to defendants Fields and Padula, who are accused of "planting" the blade. See, e.g., Dunn v. City of Syracuse, 83 A.D.2d 783, 443 N.Y.S.2d 463, 464 (4th Dep't 1981) ("One who wrongfully accuses another of criminal conduct and induces or procures that person's arrest may be liable for false arrest."); Jensen v. Barnett, 178 Neb. 429, 431-32, 134 N.W.2d 53 (1965); cf. Lieberman v. Gulf Oil Corp., 331 F.2d 160, 162 (2d Cir. 1964). While the proof of this allegation is entirely circumstantial, it is not insufficient to create a jury issue as to whether Padula and Fields worked in concert to plant the blade and thereby falsely engineered plaintiff's arrest. Among other things, plaintiff has testified not only that she never placed any razor blade in the box of books but also that there was no opportunity for anyone else besides Padula to do so, since she inspected the books for approximately forty minutes on the day before she brought them to the Detention Center, see Pl. Dep. Tr. at 33, personally placed the books in the box shortly before she left her apartment for the facility on October 22, 1997, see Pl. Affidavit dated February 17, 1999 ¶ 13, and kept the box in her sole and exclusive possession until it was surrendered for scanning, see Pl. Aff. ¶ 13; Pl. Dep. Tr. at 29-30. Furthermore, plaintiff testified that the blade was in plain view in the box when it was "discovered" by Padula, see Pl. Dep. Tr. at 35-36, a location consistent with her theory that the blade was hastily planted.

As to Fields' complicity, plaintiff testified in her deposition that after she initially placed the box of books on the conveyor belt, officer Fields ran the box through the x-ray machine to the end of the belt, where officer Padula was standing, without freezing the conveyor or otherwise indicating that any suspicious item might be present, see Pl. Dep. Tr. at 106; but that he then reversed the conveyor belt and sent the box back into the machine, only after which did he announce the presence of a suspicious object in the box. See id. at 34-35. Taken in conjunction with the testimony relating to Padula's activities, a jury could reasonably conclude that a likely explanation for ...

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