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.
As to plaintiff's negligence claim (under New York State law),
judgment must be granted because plaintiff has neither alleged
that any of the defendants owed a duty of care to the plaintiff,
see Cohen v. Standard Bank Investment Corporation (Jersey)
Ltd., No. 97 Civ. 3802(SAS), 1998 WL 782024 (S.D.N.Y. Nov. 6,
1998); Almonte v. Coca-Cola Bottling Company of New York, Inc.,
959 F. Supp. 569, 576-77 (D.Conn. 1997); cf. Logan v. Bennington
College Corp., 72 F.3d 1017, 1029 (2d Cir. 1995), nor adduced
any admissible evidence that any of the defendants acted in an
actionably negligent manner. Indeed, plaintiff's entire theory of
what occurred is premised, not on negligence, but on intentional
misconduct. The only actions in the record that might even
arguably be called negligent relate to plaintiff's arrest and
prosecution; but New York law provides that a plaintiff may not
recover under general negligence principles for a claim that a
defendant failed to exercise the appropriate degree of care in
effecting an arrest or initiating a prosecution, see Bernard v.
United States, 25 F.3d 98, 102 (2d Cir. 1994), citing Boose v.
City of Rochester, 71 A.D.2d 59, 421 N.Y.S.2d 740, 744 (4th
Dep't 1979); Morales v. United States, 961 F. Supp. 633, 638
(S.D.N.Y. 1997); Dirienzo v. United States, 690 F. Supp. 1149,
1155 (D.Conn. 1988) (construing New York law).
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
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
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 ...