42 N.Y.2d 13, 396 N.Y.S.2d 612, 364 N.E.2d 1304, 1306-07 (1977).
Under New York law, "the fact that a grand jury indicts a person of a
crime creates a presumption of probable cause for the purpose of
defending against a malicious prosecution claim" Green v. Montgomery,
219 F.3d 52, 60 (2d Cir. 2000) (citing Marshall v. Sullivan, 105 F.3d 47,
54 (2d Cir. 1996)). This presumption "has been consistently applied in
§ 1983 litigation." Green to Montgomery, 43 F. Supp.2d 239, 245
(E.D.N.Y. 1999) (citing cases); see also Green, 219 F.3d at 60 (citing
Bernard v. United States, 25 F.3d 98, 104-05 (2d Cir. 1994)).
In order to rebut this presumption, the plaintiff must show that the
indictment was produced by "fraud, perjury, the suppression of evidence,
or other police conduct undertaken under bad faith." Green, 219 F.3d at
60. It is not enough for the the plaintiff to show that the police "could
have done more or could have disclosed more." Gisondi v. Town of
Harrison, 72 N.Y.2d 280, 532 N.Y.S.2d 234, 528 N.E.2d 157, 160 (1988);
see also Simmons v. Chemung County Dep't of Soc. Servs., 770 F. Supp. 795,
801 (W.D.N.Y. 1991). Instead, the plaintiff must prove that the police
conduct "deviated egregiously from statutory requirements or accepted
practices applicable in criminal cases." Gisondi, 532 N.Y.S.2d 234, 528
N.E.2d at 160; see also Simmons, 770 F. Supp. at 801.
2. Application of Collateral Estoppel
The Court of Claims was presented by Plaintiff with the same malicious
prosecution claim that Plaintiff brings before this Court. The Court of
Claims followed the above analysis and found, following a trial, that
Plaintiff failed to prove the necessary misconduct on the part of
defendants to overcome the presumption of probable cause arising from the
grand jury indictment.
Plaintiff argues that the Court of Claims' decision cannot be used as
collateral estoppel in this case because there is no identity of issue.
Specifically, Plaintiff argues that, pursuant to state law, the state
court limited its determination to the existence of probable cause to
initiate or commence the proceeding and did not address the existence of
probable cause to continue the prosecution following the indictment.
Plaintiff argues that § 1983 doctrine is more expansive than state
malicious prosecution law on this point. However, as discussed above, the
Second Circuit has adopted the New York presumption for purposes of
§ 1983 malicious prosecution claims. See Green, 219 F.3d at 60.
Accordingly, for both § 1983 and state claims of malicious
prosecution, when a grand jury indicts a person of a crime, a presumption
of probable cause for the prosecution is created which can only be
"overcome . . . `by evidence that the indictment was the product of
fraud, perjury, the suppression of evidence by the police, or other
police conduct undertaken in bad faith.'" Id. (quoting Marshall, 105 F.3d
at 50) (emphasis added).
Plaintiff is therefore seeking to address the same issue raised in his
prior litigation and decided against him.*fn4
Accordingly, his claims are barred by collateral estoppel and the Court
grants Defendants' motion to dismiss Plaintiffs malicious prosecution
claims against defendants Vardine and Mercado.*fn5
C. Equal Protection
In order to establish a claim under § 1981, a plaintiff must allege
the following: (1) membership in a racial minority; (2) an intent by the
defendant to discriminate on the basis of race; and (3) discrimination
concerning at. least one of the activities enumerated in the statute. See
Mian v. Donaldson, Lufkin & Jenrette Securities Corp., 7 F.3d 1085, 1087
(2d Cir.1993). Among the protections enumerated in § 1981 is the
"equal benefit of all laws and proceedings for the security of persons."
42 U.S.C. § 1981 (a).
However, naked assertions of racial motivation will not suffice to
state a cause of action. See Yusuf v. Vassor College, 35 F.3d 709, 713
(2d Cir. 1994). Complaints must "specifically allege the events claimed
to constitute intentional discrimination as well as circumstances giving
rise to a plausible inference of racially discriminatory intent." Id.
Specifically, the Second Circuit has held that complaints must "allege
that similarly situated persons have been treated differently." Gagliardi
v. Village of Pawling, 18 F.3d 188, 193 (2d Cir. 1994).
In this case, Plaintiff complaint alleges that the proper
identification procedures were not followed "because both the suspect and
plaintiff were African-American males." Plaintiff does not allege any
specific facts in support of this claim. In particular, he does not allege
that any similarly situated non-African Americans were treated
differently by Defendants.
In an effort to rescue his complaint, Plaintiff argues that a
reasonable inference should be drawn from the allegations in his
complaint that, if a young white male had been indicted and incarcerated
under similar circumstances, Defendants would have made additional
efforts to verify his identity. Moreover, Plaintiff alleges that, even if
the Court considers his pleadings to be technically insufficient, he
should be given the opportunity to amend his complaint to state this
However, even if the Court were to allow such an amendment, Plaintiffs
complaint would not state a cause of action under § 1981. Plaintiff
must allege that similarly situated individuals have been treated
differently, not that they would be treated differently. Plaintiffs
complaint, even with the amended language, is devoid of any factual
support for the allegation that Defendants' actions were motivated by
Plaintiffs race. Therefore, the Court grants Defendants' motion to
dismiss Plaintiffs fourth claim.*fn6
For the reasons stated above, it is hereby:
ORDERED that Defendants' motion to dismiss is GRANTED;
ORDERED that the Plaintiffs claims against defendants Hines, Vardine,
and Mercado be DISMISSED in their entirety; and it is
FURTHER ORDERED that the Clerk of the Court shall serve copies of this
order by regular mail upon the parties to this action.
IT IS SO ORDERED.