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May 15, 2002


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



Plaintiff Theodore Brogdon ("Brogdon") asserts claims pursuant to 42 U.S.C. § 1983 against the City of New Rochelle (the "City"), Police Officer Daniel Benge ("Benge"), and Police Officer Anthony Chiera ("Chiera") arising from Brogdon's arrest on August 8, 1997. (Complaint). In his complaint, Brogdon alleges that the defendants violated his rights under the Fourth Amendment by falsely arresting him, falsely imprisoning him and compelling him to make "forced court appearances" until all charges were dismissed following a non-jury trial. Id. ¶¶ 15-20. He also alleges that the "defendants" failed to affirmatively intervene while other members of the police department were allegedly violating his rights. Id. ¶¶ 23-24. These persons who allegedly failed to affirmatively intervene are not named and remain unidentified. In addition, he asserts a Monell claim against the City, alleging that its policies and customs led to his claimed injuries. Id. ¶¶ 27-34. He has alleged similar claims against the defendant-officers' supervisors, who also were not named specifically and remain unidentified. Id. ¶¶ 37-38.

Plaintiff's claims for false arrest, false imprisonment, malicious prosecution and failure to intervene must be dismissed because there was probable cause to arrest and charge Brogdon. Furthermore, both Benge and Chiera are entitled to qualified immunity. In addition, there is no basis for a Monell claim against the City, because plaintiff adduces no evidence that the alleged violations of Brogdon's right resulted from any City policy or custom. Finally, Brogdon's claim against the unnamed supervisors also fails, as there is no showing that these unnamed persons created any policy or custom which allowed the commission of any constitutional torts.


The 911 Call

At 4:56 a.m. on August 8, 1997, a 911 telephone call was received by the New Rochelle Police Department. The caller reported that someone was "trying to break into the store on the corner of Horton." The caller specified that it was a grocery store, described the person breaking into the grocery store as a male black wearing white pants and a black top, and stated that the perpetrator was using "a stool or something to break the window." Exh. C (Transcript of 911 call) pp. 2-3. The 911 caller also reported that there was someone else on the corner "on the lookout" and described the "lookout" as a black male wearing a "striped shirt" with a "white back." Id. p. 4

Officer Benge's Observations

On August 8, 1997 Officer Benge was on patrol. At approximately 5:00 a.m., while in his police car, he was notified by the police dispatcher of the burglary in progress at the grocery store on the corner of Horton Avenue and Brook Street, which is located near the precinct. Benge Aff't ¶ 2, Exh. P; Exhs. F (p. 6), H (p. 11), K (pp. 13-14), O (pp. 4-5). The dispatcher described two individuals, both male black, and said that one of the individuals was standing on the corner dressed in a striped shirt acting as a lookout. Benge Aff't ¶ 3, Exhs. P; H (pp. 11-12), K (p. 32).

At the point that he received this transmission, Benge was on North Avenue near Coligni Avenue which connects to Brook Street. Benge Aff't ¶ 2; Exhs. H (p. 12), K (p. 14). He proceeded towards Brook Street with his red overhead lights activated but with his siren off. As he turned southbound onto Brook Street and proceeded towards the intersection of Horton Avenue and Brook Street, he turned off all lights on his vehicle so as to not alert the perpetrators. Benge Aff't ¶ 4; Exhs. H (p. 13), K (pp. 15, 35). As he approached the store, which is located at 49 Horton Avenue, he observed a male black (Brogdon) dressed in a striped shirt standing across the street from the Solutions Grocery Store. Benge did not have any difficulty seeing Brogdon since the area was well-lit. Benge Aff't ¶ 5, Exh P; Exhs. F (p. 7), H (p. 15), O (p. 11). When he first spotted Brogdon, Benge had several moments to observe plaintiff. Benge Aff't ¶ 5. Exhs F (p 7), H (p. 16). Benge specifically noticed that Brogdon was looking around in all directions, up and down the streets and that Brogdon did this several times. Benge Aff't ¶ 5, Exhs. P, Q (p. 17); Exhs. F (p. 7), H (p. 16), K (pp. 19-20).

When Brogdon spotted Benge, he immediately cupped his hands in the form of a megaphone and shouted something in the direction of the grocery store. Benge Aff't ¶ 6, Exhs. P, Q (pp. 18-19); Exhs. H (pp. 16-17), K (p. 21), O (p. 15). Brogdon then turned and fled eastbound on Horton Avenue in the direction of North Avenue, just as Officer Benge approached the grocery store. Benge saw Brogdon break into a run the moment Brogdon left the corner of Brook and Horton. Benge Aff't ¶ 6, Exhs. P, Q (p. 19); Exhs. F (p 8, 13), H (p. 18), K (p. 21), O (p. 17).

Benge immediately radioed police headquarters to advise them that he had spotted the individual fitting the description provided by the 911 caller (male black in a striped shirt acting as a lookout) and that he was running eastbound on Horton Avenue in the direction of North Avenue. Officer Benge observed other police units arrive and stop in the area where he saw plaintiff running. Benge Aff't ¶¶ 7-8, Exhs. P, Q (p. 19); Exhs. H (pp. 18-19, 25-26), 0 (pp. 17, 26-27).

When Benge was directly in front of the store, he saw one of the perpetrators trying to go through a broken window. He exited his vehicle and attempted to grab the individual but was unable to do so. Benge secured the location until other police units arrived. Benge Afft ¶ 9, Exhs. P, Q (pp. 19-20); Exhs. H (p. 23), K (pp. 21-22), 0 (pp. 18, 22). At this point, Benge received another radio transmission indicating that Brogdon had been apprehended by Officer Chiera on Horton Avenue. Benge Afft ¶ 10, Exhs. P, Q (pp. 2223); Exh. H (pp. 27-28).

The Apprehension of Plaintiff

Officer Chiera received a radio call of a burglary in progress at the Solutions grocery store on the corner of Horton and Brook. The dispatcher described the perpetrators as two male blacks, one breaking into the store and the other one standing on the corner, acting as a lookout. The lookout was described as wearing a striped shirt. Chiera Aff't ¶¶ 2-3; Exh. J (pp. 20-21), 0 (pp. 39-40). As he was proceeding to the intersection of Horton and Brook, Chiera received another radio transmission, this one from Benge, advising that the person described as the "lookout" was running eastbound on Horton Avenue and that he was dressed in a striped shirt and dark pants. Exh. J (p. 24); Chiera Aff't ¶ 4, Exhs. R, S (pp, 3031).

When he got to the intersection of Brook and Horton, Chiera spotted Brogdon, who was wearing a striped shirt with a light-colored solid back, running eastbound on Horton. Chiera Aff't ¶ 5, Exhs. R, S (p. 31); Exhs. J (p. 22), O (p. 41). After radioing Brogdon's location to police headquarters, Chiera then chased after Brogdon. Chiera stopped Brogdon approximately half a block away from the grocery store. Chiera Aff't ¶ 5; Exhs. J (p. 22), O (p. 45). Although Chiera identified himself as a police officer, Brogdon ignored Chiera's commands to "stop". Brogdon turned around and started to proceed westbound on Horton. Chiera repeated his commands until Brogdon complied and sat on the ground. Within a short period of time, other back-up units arrived to assist. Chiera Aff't ¶ 6, Exh. R; Exhs. J (pp. 28-29), O (p. 45). When Chiera first tried to stop Brogdon, plaintiff volunteered that he had "no knowledge of what [was] happening at the corner of Horton and Brook." Chiera Aff't ¶ 7, Exh. R.

Identification and Arrest of Plaintiff

Benge received a radio transmission indicating that the plaintiff had been apprehended by Officer Chiera on Horton Avenue. Benge Aff't ¶ 10, Exh. P; Exh. H (p. 27). After the grocery store had been secured, Benge walked to where Officer Chiera had stopped plaintiff and positively identified Brogdon as the individual whom he had seen standing on the corner of Brook and Horton, directly opposite the grocery store, looking in all directions. Benge Aff't ¶ 10, Exhs. P, Q (pp. 22-23); Exh. H (pp. 27-28).

Officer Benge then placed Brogdon under arrest. Benge Aff't ¶ 11. D.

Prior Pertinent Proceedings

Officer Benge signed a felony complaint prepared by the Office of the District Attorney of Westchester County charging both plaintiff and a co-defendant, Kelvin Wilson, with burglary in the third degree (N.Y. Penal Law § 140.20).*fn1 Benge Aff't ¶ 12; E. Thereafter, he testified at a felony hearing in August 1997. Benge Aff't ¶ 13. While co-defendant Kelvin Wilson remained in custody, the charges against plaintiff were dismissed for insufficient evidence pending presentation to a grand jury. Marion Decl. Exh. E (pp. 37-38).

Both Benge and Chiera testified before the grand jury. Benge. Aff't ¶ 14. Chiera Aff't ¶ 11. The grand jury voted to indict Brogdon and his co-defendant on charges of burglary in the third degree and criminal mischief in the third degree,*fn2 finding probable cause to believe that each defendant had aided and abetted and acted in concert with the other in the burglary of the Solutions grocery store. People v. Wilson and Brogdon, Indictment Nos. 97-1236-01, 02. Brogdon moved in Westchester County Court for an inspection of the grand jury minutes and for dismissal of the indictment. In a decision dated December 1, 1997, the court (LaCava, J) found that

the evidence before the Grand Jury satisfied the requirements of CPL Sec. 190.65, in that it is legally sufficient to establish a prima facie case against the defendant on the charges contained in the indictment and that such evidence was competent and admissible such that, if unexplained and uncontradicted, a conviction after trial would be warranted. The Court further finds that the instructions given to the Grand Jury with respect to the applicable law in this case was proper and legally sufficient. The defendant's motion to dismiss the indictment, therefore, is denied.

Exh. M (p. 4).

At a hearing conducted in reference to Brogdon's motion to suppress identification testimony, he raised the issue of lack of probable cause for his arrest. In a decision dated, May 18, 1998, the court, (Zambelli, J.), found that there was probable cause to arrest plaintiff and that there was nothing improper about the identification procedure employed. Specifically, the court stated:

The Court credits the testimony of the People's witness. In the court's opinion, Brogdon's actions in looking all around shouting something in the direction of Wilson upon the witness' approach, his flight after the Police Officer got closer, the contents of the 911 call, the fact that he matched the description reported, and the witness' observation that the back-up unit apprehended the same individual he saw on the corner, cumulatively provided probable cause for defendant's arrest as an accomplice to Wilson's burglary of the premises (see, People v. Basch 36 N.Y.2d 154, 365 N.Y.S.2d 836, 325 N.E.2d 156). The Officer's ensuing positive identification of Brogdon at the point of apprehension was sufficiently connected and contemporaneous to the arrest itself as to constitute the ordinary and proper completion of an integral police procedure (see, People v. Wharton, 74 N.Y.2d 921, 923, 550 N.Y.S.2d 260, 549 N.E.2d 462).

Exh. N.

Brogdon proceeded to a non-jury trial on the charges of burglary in the third degree and criminal mischief in the third degree. While "mindful of the circumstantial evidence which appears to link the defendant" to the charges, the court (LaCava, J.) found that "unfortunately" the People had not proved its case beyond a reasonable doubt. Exh. T. All charges against Brogdon were dismissed. Id.

Commencement of this Action

On August 8, 2000, Brogdon commenced this action naming the City and Officers Benge and ...

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