The opinion of the court was delivered by: John T. Elfvin, Senior District Judge.
Berger filed suit February 26, 2002 pursuant to 42 U.S.C. § 1983 for an alleged violation of his Constitutional rights stemming from his arrest at a Tops Supermarket parking lot in the Town of Cheektowaga, N.Y. on December 3, 2000. Berger alleges, inter alia, (1) that the defendants violated his constitutional rights to equal protection and due process under the Fifth and Fourteenth Amendments (Count 1), (2) that they violated his rights under the Fourth and Fourteenth Amendments by committing false arrest, false imprisonment and malicious prosecution (Counts 2-5) and (3) that the Town of Cheektowaga had a policy or practice of violating constitutional rights and that it negligently failed to properly train its officers (Counts 2 and 5-7).*fn2 Defendants moved for summary judgment December 16, 2002. Oral argument was presented January 24, 2003. For the reasons set forth below, defendants' motion for summary judgment will be granted.*fn3
On December 3, 2000 plaintiff encountered a dispute among Tops' customers, several Cheektowaga Police officers and Tops' Loss-Prevention Manager Fakarzadeh. The dispute, which had started in the store, involved a claim by an unidentified woman that an elderly African-American couple — the Griffiths — had stolen her money. Upon finding her allegedly stolen money, the unidentified woman apologized and left the store. Fakarzadeh then had asked the Griffiths to leave the store. When they complained about the treatment that they had received, Fakarzadeh called the Cheektowaga Police, who discussed the situation with the Griffiths. Fakarzadeh asked the Police to take the group outside of the store because of the disturbance being caused — the group had grown to include, inter alia, the Griffiths' son and another customer, Diane Nowak.
Berger — who had been leaving the store with his son — overheard the dispute. Although Berger did leave the store, he returned and admonished Officer Schmitt for yelling at Mrs. Griffith, saying something to the effect that "[y]ou should not treat people like this." See Berger Dep., at 39. During Berger's confrontation of Officer Schmitt, Berger's son allegedly pulled at his father's coat in an apparent effort to get him to leave — although there is dispute as to what, if anything, the son said that day.*fn4 Berger subsequently went out to the parking lot and obtained phone numbers from several witnesses. Approximately ten to fifteen minutes after the group of disputants had disbanded — and while Berger was attempting to go to his car — he was arrested and subsequently charged with trespass in violation of N.Y. Penal Law § 140.05 and with obstructing governmental administration in violation of N.Y. Penal Law § 195.05. These charges were ultimately dismissed. Although the parties offer sharply different accounts of certain facts, the pertinent facts are undisputed.
Rule 56(c) of the Federal Rules of Civil Procedure ("FRCvP") states that summary judgment may be granted only if the record shows "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." In other words, after discovery and upon a motion, summary judgment is mandated "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Summary judgment is thus appropriate where there is "no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).*fn5
With respect to the first prong of Anderson, a genuine issue of material fact exists if the evidence in the record "is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, at 248.*fn6 Stated another way, there is "no genuine issue as to any material fact" where there is a "complete failure of proof concerning an essential element of the nonmoving party's case." Celotex, at 323. Under the second prong of Anderson, the disputed fact must be material, which is to say that it "might affect the outcome of the suit under the governing law ***." Anderson, at 248.
Furthermore, "[i]n assessing the record to determine whether there is a genuine issue as to any material fact, the district court is required to resolve all ambiguities and draw all factual inferences in favor of the party against whom summary judgment is sought." St. Pierre v. Dyer, 208 F.3d 394, 404 (2d Cir. 2000) (citing Anderson, at 255). Moreover, for the purposes of the qualified immunity analysis, this Court will consider "only those facts that were actually available to the police officers, or could reasonably have been perceived by them, at the moment they engaged in the challenged conduct." Lowth v. Town of Cheektowaga, 82 F.3d 563, 567 (2d Cir. 1996). Nonetheless, mere conclusions, conjecture, unsubstantiated allegations or surmise on the part of the non-moving party are insufficient to defeat a well-grounded motion for summary judgment. Goenaga, at 18.*fn7
Turning to the merits, viability of the defendants' motion for summary judgment is heavily dependent upon whether Officer Schmitt had probable cause to arrest Berger for the crimes charged. See Lennon v. Miller, 66 F.3d 416, 421 (2d Cir. 1995). In evaluating probable cause to arrest, courts "must consider those facts available to the officer at the time of the arrest and immediately before it." Lowth, at 569. "Probable cause exists when an officer has knowledge or reasonably trustworthy information sufficient to warrant a person of reasonable caution in the belief that an offense has been committed by the person to be arrested." Curley v. Village of Suffern, 268 F.3d 65, 69-70 (2d Cir. 2001) (internal quotations omitted). When making an arrest, an officer "need not also believe with certainty that the arrestee will be successfully prosecuted." Id. at 70.*fn8 Accordingly, at issue is whether Officer Schmitt had probable cause to arrest Berger for trespass and obstructing governmental administration.
Berger was charged with trespass in violation of N.Y. Penal Law § 140.05, which provides that "[a] person is guilty of trespass when he knowingly enters or remains unlawfully in or upon premises." N.Y. Penal Law § 140.05 (McKinney 1999). It is undisputed that the defendant police officers had instructed Berger to leave the premises and that he nonetheless failed to comply with such order. See Berger Dep., at 41-54; Schmitt Dep., at 117-118, 121, 123-126, 131, 133-135). Consequently, officer Schmitt had probable cause to arrest Berger for trespass in violation of N.Y. Penal Law § 140.05 because Berger had knowingly remained on the premises despite an ostensibly lawful directive by officer Schmitt to vacate — as requested by Fakarzadeh.*fn9
Berger was also charged with obstructing governmental administration in violation of N.Y. Penal Law § 195.05, which provides that "[a] person is guilty of obstructing governmental administration when he intentionally obstructs, impairs or perverts the administration of law or other governmental function or prevents or attempts to prevent a public servant from performing an official function, by means of intimidation, physical force or interference, or by means of an independently unlawful act ***." N.Y. Penal Law § 195.05 (McKinney 1999) (emphasis added). Berger's refusal to obey Officer Schmitt's order to leave the premises established sufficient probable cause to arrest Berger for obstructing governmental administration in violation of N.Y. Penal Law § 195.05.*fn10 See Lennon, at 424 (finding probable cause to arrest plaintiff for obstructing governmental administration because she disobeyed officer's order to exit a vehicle); Decker v. Campus, 981 F. Supp. 851, 857-858 (S.D.N.Y. 1997) (dismissing plaintiff's section 1983 claims because officer had probable cause to arrest plaintiff for obstructing governmental administration where plaintiff, inter alia, failed to obey the officer's order to "step back" from accident scene); Linehan v. New York, 201 A.D.2d 706, 706 (2d Dep't 1994) (holding that officer had probable cause to arrest plaintiff for obstructing governmental administration because she "resisted the efforts of a court officer to keep her away from the area where a disturbance was taking place").*fn11 Moreover, Berger's trespass constitutes an "independently unlawful act" that prevented the defendant officers from performing their duties. Accordingly, officer Schmitt had probable cause to arrest Berger for violation of section 195.05.
Inasmuch as this Court finds that officer Schmitt had probable cause to arrest Berger,*fn12 plaintiff's state law claims for false arrest, false imprisonment and malicious prosecution fail as a matter of law and will be dismissed. See Curry v. City of Syracuse, 316 F.3d 324, 335 (2d Cir. 2003) ("Probable cause is `a complete defense to a cause of action for false arrest.'"); Otero v. Town of Southampton, 194 F. Supp.2d 167, 178 (E.D.N.Y. 2002) ("Claims for false arrest, false imprisonment and malicious prosecution fail with a finding of probable cause to arrest and charge Plaintiff."), aff'd, 2003 WL 1025795, at *1 (2d Cir. 2003) ("[P]robable cause is a complete defense to claims of false imprisonment, false arrest, and malicious prosecution.").*fn13
Section 1983 provides a civil claim for damages against any person (including government entities) who, acting under a color of state law, deprives another of a right, privilege or immunity secured by federal law. See 42 U.S.C. § 1983 (1994); Thomas v. Roach, 165 F.3d 137, 142 (2d Cir. 1999) ("Section 1983 itself creates no substantive rights; it provides only a procedure for redress for the deprivation of rights established elsewhere"). Berger's section 1983 claims against Officer Schmitt based on an alleged violation of the Fourth Amendment fail as a matter of law because probable cause existed for Berger's arrest. See Lennon, at 423-424.*fn14 Accordingly, Berger's Fourth Amendment claims will be dismissed.
Berger's section 1983 claims against officer Schmitt based on an alleged violation of Berger's equal protection rights will also be dismissed. To state a claim under the Equal Protection Clause, Berger must show that he was selectively treated compared with others similarly situated and that such selective treatment resulted from "impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure." See Crowley v. Courville, 76 F.3d 47, 52 (2d Cir. 1996).*fn15 Courts recognize "class of one" equal protection claims. See Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). The only potential basis for Berger's equal protection claim is that officer Schmitt singled Berger out for arrest and detention based on Berger's exercise of his First Amendment rights — or because of a bad faith intent to injure Berger.*fn16
Berger's equal protection claim fails for the same reason that a First Amendment claim would fail; courts will not examine an officer's motivation for making an arrest where probable cause exists. Cf. Singer, at 120 (dismissing First Amendment claim because the court refused to examine officer's motivation for arrest where probable cause existed).
Berger's bad faith intent to injure/equal protection claim must also be dismissed. Although officer Schmitt had probable cause to arrest Berger, the existence of probable cause does not obviate the need to examine whether Schmitt treated Berger worse than he otherwise would have because of a malicious or bad faith intent to injure Berger. Indeed, there is a genuine issue of material fact as to whether Schmitt's treatment of Berger was based upon an improper motivation.*fn17 Nonetheless, Berger's equal protection claim fails because he has not produced any evidence of selective treatment — i.e., that he was treated differently from other people arrested for trespass and/or obstructing governmental administration. See Gonzalez v. City of New York, 2000 WL 1678036, at *4 (S.D.N.Y. 2000), aff'd, 2002 WL 500313, at *1 (2d Cir. 2002) (affirming dismissal of plaintiff's equal protection/selective enforcement claim because he could not "demonstrate that he was similarly situated to the other drivers on Lexington Avenue who were not pulled over"). Accordingly, Berger's equal protection claim against Schmitt will be dismissed.
Berger also asserts a substantive due process claim — as opposed to a procedural due process claim. See Berger's Mem. of Law, at 27. "Substantive due process protects against government action that is arbitrary, conscience-shocking, or oppressive in a constitutional sense, but not against government action that is `incorrect or ill-advised." Kaluczky v. City of White Plains, 57 F.3d 202, 211 (2d Cir. 1995).*fn18 Kaluczky also holds that the "first step in the substantive due process analysis is to identify the constitutional right at stake." Ibid. Rights protected by explicit provisions of the Constitution, however, are not rights protected by substantive due process. Ibid. Accordingly, the Fourth and/or Fourteenth Amendments, "not the more generalized notion of `substantive due process,' must be the guide for analyzing" Berger's claims.*fn19 Ibid. (citing Albright v. Oliver, 510 ...