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POSR v. KILLACKEY

United States District Court, Southern District of New York


July 25, 2003

POSR A. POSR, PLAINTIFF,
v.
N.Y.S. COURT OFFICER SERGEANT VINCENT KILLACKEY #052660714, DEFENDANT.

The opinion of the court was delivered by: Gabriel Gorenstein, Magistrate Judge

REPORT AND RECOMMENDATION

Posr A. Posr, the pro se plaintiff in this action, filed a complaint alleging 13 separate causes of action against New York State Court Officer, Vincent Killackey. Killackey previously moved for partial judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). This Court granted Killackey's motion to dismiss some of Posr's claims. Killackey now moves for summary judgment pursuant to Fed.R.Civ.P. 56 with respect to the remaining claims, which allege unlawful seizure, false arrest and malicious prosecution. For the following reasons, Killackey's motion for summary judgment should be granted.

I. BACKGROUND

A. Factual History

Some time prior to May 11, 1998, Posr and Dyandria Murray entered into a contract under which Posr was to be compensated for videotaping a proceeding Murray expected to attend in Family Court. Deposition of Posr A. Posr, dated February 26, 2003 ("Posr's Dep.") (attached as Exhibit B to the Declaration of Susan M. Barbour, dated April 7, 2003 ("Barbour's Decl.")), at 15-16, 26-28. Posr served all parties with an "Order to Show Cause" as to why he should be allowed to film the Murray case proceedings and filed the Order with the Family Court clerk's office. Id. at 28-32. This "Order to Show Cause" was apparently not signed by a judge in light of Posr's testimony that the presiding judge, Judge Sosa-Litner, did not "respond" to it. Id. at 33. In addition, Posr has placed in the record a transcript of the Family Court proceeding at issue in which Judge Sosa-Litner refers to an "application" by Posr to film proceedings as "not legitimately filed." See Declaration/Plaintiff's Rule 56.1 Statement, dated April 28, 2003, Exhibit 1, at 5-6.

On May 11, 1998, Posr attempted to enter Judge Sosa-Litner's courtroom in the Family Court, located on the 9th floor of 60 Centre Street, with a video camera to film the proceedings. Posr's Dep. at 50-52. Killackey told Posr that he could not bring a camera into the courtroom since "cameras are not allowed." Id. at 58-59, 62. Posr attempted to go into the courtroom anyway but Killackey "blocked him" from doing so by standing in front of the doorway. Id. at 61-62. Posr tried to squeeze through the space between Killackey and the door "maybe four, five" times, id. at 62, 64-65, and in doing so made "contact" with Killackey. Id. at 64.

During this time, another court officer and the captain arrived. Id. at 65-67. Posr argued with the officers, asserting that it was "legal" for him to go into the courtroom with the camera. Id. at 69. One of the officers advised Posr that he could check the camera in the courthouse lobby and that then he would be allowed to enter the courtroom and view the proceedings. Id. at 70. Posr continued to try to "squeeze" past Killackey another "three, four" times. Id. at 71, 73. The three officers thereupon removed Posr from the entrance of the courtroom by holding onto him and escorting him to an elevator and then outside of the courthouse. Id. at 67, 73, 75-76. Once Posr was outside the courthouse, he was released. Id. at 77.

While in front of the courthouse, Posr tried to regain entry to the courthouse using one of the doors but was blocked by the captain. Id. at 78. For about "two minutes" Posr attempted to reenter the courthouse and in doing so came so close to the captain that the captain had to physically prevent Posr from colliding with him. Id. at 78-81. Posr leaned into the captain who grabbed Posr by the arms and held him up, away from him, for about "five seconds." Id. at 80. At this point, Posr was arrested. Id.

Posr was given a ticket citing him for disorderly conduct under New York Penal Law ("NYPL") §§ 240.20(1) and (5). Posr's Dep. at 91; Criminal Court Complaint, dated August 5, 1998 ("Exhibit E") (attached as Exhibit E to Barbour's Decl.), at 1; Affidavit of William Beesch, dated April 10, 2003 ("Beesch Aff.") (attached to Barbour's Decl.), at ¶ 5. The charge was amended later to add harassment under NYPL § 240.26(1). Posr's Dep. at 103; Exhibit E at 1; Beesch Aff. at ¶ 6.

On October 28, 1999, all of the charges against Posr were dropped on speedy trial grounds. Posr's Dep. at 104; Beesch Aff. at ¶ 8.

B. Procedural History

As a result of the May 11, 1998 incident, Posr filed a complaint against Killackey alleging that Killackey violated Posr's state and federal rights. The complaint set out the following 13 separate causes of action against Killackey:

1) Sherman Act, 15 U.S.C. § 1, 2 (which appears under the heading "First Amendment");
2) Article I, § 9, New York Constitution;

3) First Amendment, United States Constitution;

4) Article I, § 8, New York Constitution;

5) Fourth Amendment, United States Constitution (based on the seizure at the courthouse and Posr's expulsion);
6) Article I, § 6, New York Constitution (based on the seizure at the courthouse and Posr's expulsion);
7) New York Civil Rights Law § 12;

8) Fourth Amendment, United States Constitution (based on the arrest for entering the courthouse with a camera);
9) Article I, § 6, New York Constitution (based on the arrest for entering the courthouse with a camera);
10) malicious prosecution "under the federal statutes";
11) malicious prosecution "under the statutes of the State of New York";
12) New York Civil Rights Law § 50; and,

13) Donnelly Act, New York General Business Law § 340.
See Complaint Affidavit, dated December 25, 2000 ("Complaint"), at 3-5.

On November 16, 2001, Killackey moved for judgment dismissing in part Posr's complaint pursuant to Fed.R.Civ.P. 12(c). This Court granted Killackey's motion as to claims 1, 2, 3, 4, 7, 12, and 13. See Memorandum Order Adopting Report and Recommendation, filed August 30, 2002; Report and Recommendation, dated May 30, 2002 ("R&R"), at 18. Additionally, the Court dismissed claims 5, 8 and 10 against Killackey in his official capacity only. R&R at 18.

Killackey now moves for summary judgment pursuant to Fed.R.Civ.P. 56 on the unlawful seizure claims (claims 5 and 6), the false arrest claims (claims 8 and 9) and the malicious prosecution claims (claims 10 and 11).

II. APPLICABLE LAW

A. Standard of Review

Rule 56(c) of the Federal Rules of Civil Procedure states that summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed.R.Civ.P. 56(c)). A dispute over a material fact is one "that might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248 (1986). A genuine issue of material fact may "reasonably be resolved in favor of either party" and thus should be left to the finder of fact. Anderson, 477 U.S. at 250.

When determining whether a genuine issue of material fact exists, courts must resolve all ambiguities and draw all factual inferences in favor of the non-moving party. Id. at 255. Nevertheless, once a motion for summary judgment is made and supported, the non-moving party "must come forward with `specific facts showing there is a genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56(e)). If the non-moving party's evidence "is merely colorable, or is not significantly probative," Anderson, 477 U.S. at 249-50 (citations omitted), or if it consists only of "conjecture or surmise," Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991), cert. denied, 502 U.S. 849 (1991), then summary judgment may be entered against that party.

B. Section 1983 Claims

To the extent Posr sues under federal law, his complaint arises under 42 U.S.C. § 1983, which states

[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
To maintain a cause of action under section 1983, a plaintiff must establish "(1) that the conduct complained of was committed by a person acting under color of state law, and (2) that such conduct deprived the plaintiff of a right, privilege, or immunity secured by the Constitution or laws of the United States." Dwyer v. Regan, 777 F.2d 825, 828 (2d Cir. 1985) (citations omitted), modified on other grounds, 793 F.2d 457 (2d Cir. 1986); accord Gomez v. Toledo, 446 U.S. 635, 638 (1980) (quoting 42 U.S.C. § 1983). Section 1983 does not, in and of itself, create any substantive rights; rather, the plaintiff must demonstrate a violation of an independent federal constitutional or statutory right. See, e.g., Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 617-18 (1979).

Killackey does not dispute that he was acting under color of state law with respect to the actions he took against Posr. The only disputed issue is whether Killackey's actions deprived Posr of any constitutional rights, privileges, or immunities.

III. POSR'S CLAIMS

Because of the similarity in elements under New York law and under federal law for Posr's claims, the federal and state components of each claim are discussed together.

A. False Arrest Claim

Posr's false arrest claim is based on the arrest that occurred at the doorway to the courthouse, after he had been escorted there by the court officers.

In order to sustain a claim of false arrest under New York law, "a plaintiff . . . must show, inter alia, that the defendant intentionally confined him without his consent and without justification." Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996) (citing Broughton v. State, 37 N.Y.2d 451, 456 (1975)). "A § 1983 claim for false arrest, resting on the Fourth Amendment right of an individual to be free from unreasonable seizures, including arrest without probable cause, is substantially the same as a claim for false arrest under New York law." Weyant, 101 F.3d at 852 (citations omitted); accord Jocks v. Tavemier, 316 F.3d 128, 134 (2d Cir. 2003); Mayer v. City of New Rochelle, — F.3d —, 2003 WL 21222515, at *3 (S.D.N.Y. May 27, 2003). It is undisputed that Posr was arrested and thereby detained without his consent. The only issue is whether Posr's arrest was justified.

The existence of probable cause constitutes "a complete defense to an action for false arrest," Bernard v. United States, 25 F.3d 98, 102 (2d Cir. 1994) (citation omitted), both under state law or under section 1983. Weyant, 101 F.3d at 852. Courts may determine whether or not probable cause existed, as a matter of law, if there is no disagreement as to the pertinent events and the knowledge of the officers. Id. (citations omitted). Probable cause exists "when the arresting 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." Singer v. Fulton County Sheriff, 63 F.3d 110, 119 (2d Cir. 1995) (internal quotation marks and citations omitted), cert. denied, 517 U.S. 1189 (1996). Under New York law, a peace officer may arrest an individual when the officer has probable cause to believe that the individual has committed a petty offense, including a violation, in his presence and in his geographical area of employment. See N.Y. Criminal Procedure Law §§ 140.10(2)(a), 1.20(39).

In this case, accepting Posr's testimony of the events as true, his claim for false arrest must fail because there was probable cause to arrest him for both of the offenses with which he was charged.

1. Probable Cause to Arrest for Disorderly Conduct

In the initial accusatory instrument, Posr was charged with disorderly conduct under NYPL § 240.20(1) and (5). Under NYPL § 240.20

a person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof: (1) He engages in fighting or in violent, tumultuous or threatening behavior; or . . . (5) He obstructs vehicular or pedestrian traffic. . . . Disorderly conduct is a violation.
In People v. Munafo, 50 N.Y.2d 326 (1980), the New York Court of Appeals explained that NYPL § 240.20 was limited to "situations that carried beyond the concern of individual disputants to a point where they had become a potential or immediate public problem," id. at 331, and that courts should consider "the surrounding circumstances, including, of course, the time and the place of the episode" when deciding whether an act constituted disorderly conduct. Id.; see also People v. Tichenor, 89 N.Y.2d 769, 776-77 (stating that the proper inquiry was not only consideration of specific contact between defendant and police but rather consideration of the entire incident surrounding the arrest), cert. denied, 522 U.S. 918 (1997).

Posr admits that, after he was escorted outside of the courthouse, he tried to regain entry several times through physical force. Posr's Dep. at 76, 78-80. Because the court officers were blocking the entry way, Posr and the officers came into physical contact as Posr repeatedly tried to get inside. Id. Killackey observed that pedestrians would not enter or exit the courthouse using the doors where the altercation between Posr and the officers was occurring "because nobody knew what was going to happen." Deposition of Sergeant Vincent Killackey, dated March 21, 2003 ("Killackey's Dep.") (attached as Exhibit C to Barbour's Decl.), at 67-68. Although Posr states in his brief that pedestrian traffic was not obstructed, see Posr's Memorandum of Law, dated April 28, 2003 ("Posr's Mem."), Posr provides no evidence in support of that proposition.

In any event, the issue of whether pedestrians could have made it through the door is of no moment. The facts as described by Posr show that there was at least an obstruction of the doorway caused by Posr's efforts to bypass the court officers in order to get in. It does not matter that a hardy pedestrian might have physically been able to squeeze past Posr and the officers to get inside of the courthouse. The requirement of the statute that the accused "obstruct" pedestrian traffic was satisfied. This is particularly so considering that the altercation took place during working hours at the Family Court, where there are approximately 3,000 visitors a day, Killackey's Dep. at 69, and was of a prolonged duration, given Posr's continued persistence. Posr's Dep. at 76-80.

Posr's conduct also satisfied the portion of the statute that requires the accused to have either (1) intended to cause public inconvenience, annoyance or alarm, or (b) recklessly created a risk of public inconvenience, annoyance or alarm. The circumstances provide a reasonable inference that Posr intended to cause the latter. Even if, as Posr asserts, no member of the public was actually inconvenienced, his repeated attempts to get by the court officers at the public doorway of the courthouse was sufficient to create a risk of public inconvenience, annoyance or alarm.

Because Killackey had probable cause to arrest Posr under NYPL § 240.20(5), it is not necessary to address the applicability of section 240.20(1).

2. Probable Cause to Arrest for Harassment

Even if it could be said that probable cause was lacking to arrest Posr for disorderly conduct, there was probable cause to arrest him for harassment, an offense with which he was also charged. See, e.g., Williams v. Jaglowski, 269 F.3d 778, 783 (7th Cir. 2001) ("an arrest is justified if the officers had probable cause . . . to arrest the suspect either for the precise offense the officers cited or for a closely-related offense," as long as the officers charged the suspect in good faith and the facts reasonably gave rise to both offenses) (citation omitted), cert. denied, 535 U.S. 1018 (2002). NYPL § 240.26(1) provides that

[a] person is guilty of harassment in the second degree when, with intent to harass, annoy or alarm another person: (1) He or she strikes, shoves, kicks or otherwise subjects such other person to physical contact, or attempts or threatens to do the same; . . . Harassment in the second degree is a violation.
Disorderly conduct and harassment offenses are "essentially the same conduct" except that disorderly conduct is directed toward the public in general while harassment is directed against an individual. People v. Todaro, 26 N.Y.2d 325, 330 (1970).

New York's harassment statute requires that the offender: (i) subject the other person to physical contact or attempt to do so, and (ii) have an intent to harass, annoy or alarm the other person. NYPL § 240.26. The first requirement is met in this case as it is undisputed that Posr, at the very least, attempted to have physical contact with the officers when he tried to regain entry into the courthouse. Posr's Dep. at 76-80.

The intent requirement is also met in this case. "[T]he element of intent necessary to establish the crime [of harassment] may be implied by the act itself." People v. Strong, 179 Misc.2d 809, 814 (App. Term 1999) (citation omitted). Posr's act was in no way accidental. Given Posr's conduct, an officer could reasonably infer that it was done with the specific purpose of getting past the officers and into the courthouse. See, e.g. People v. Collins, 178 A.D.2d 789, 789-790 (3d Dep't 1991) (intent to harass inferred from defendant's pushing officer away and closing the door on him); People v. Hare, 66 Misc.2d 207, 207-208 (App. Term 1971) (intent to harass inferred from defendant's conduct of placing a finger on the officer's chest and then reaching for his pocket).

In sum, because Killackey had probable cause to arrest Posr, the arrest was justified and therefore any claim under federal or state law must fail. To the extent that Posr argues that he had a constitutional right to film the state court proceedings, thereby justifying his conduct, that argument is rejected. As previously held, there is no federal constitutional right to film court proceedings, R&R at 8, nor is there any state constitutional right in the circumstances that existed here. R&R at 10-12.

B. Unlawful Seizure Claims

Posr challenges Killackey's conduct in barring him from the courtroom door and escorting him outside the courthouse as an unconstitutional seizure under the Fourth Amendment of the United States Constitution and under Article I, § 6, of the New York Constitution. Each is discussed separately.

1. Fourth Amendment

The Fourth Amendment of the United States Constitution states:

The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
A seizure occurs where, "in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." Kia P. v. McIntyre, 235 F.3d 749, 762 (2d Cir. 2000) (quoting United States v. Mendenhall, 446 U.S. 544, 554 (1980)); accord Michigan v. Chesternut, 486 U.S. 567, 573 (1988). It is undisputed that, in escorting Posr from the courtroom door to the entranceway, the officers were merely attempting to get Posr to leave the courthouse and that their contact with him was solely to effectuate this purpose.

Once Posr was escorted outside of the courthouse, he was released and was not prevented from going anywhere he wanted — except back into the courthouse. Complaint at 4; Posr's Dep. at 77. Posr does not allege that his camera or any of his personal belongings were confiscated, Posr's Dep. at 83 — acts that might have prevented him from leaving and thus arguably might have constituted a seizure. See, e.g., United States v. Lee, 916 F.2d 814, 819 (2d Cir. 1990) ("prolonged retention of a person's personal effects" may suggest a seizure) (citations omitted). Therefore, Killackey's actions in escorting Posr outside of the courthouse did not constitute a seizure under the Fourth Amendment.

The facts of this case are almost identical to those in Sheppard v. Beerman, 18 F.3d 147 (2d Cir. 1994), cert. denied, 513 U.S. 816 (1994). In Sheppard, a fired law clerk argued that he had been seized for purposes of the Fourth Amendment when court officers removed him from the judge's chambers and escorted him out of the courthouse. Id. at 150, 153. The Second Circuit rejected this claim holding that no seizure had occurred because the clerk was "free to go anywhere else that he desired, with the exception of [the judge's] chambers and the court house." Id. at 153 (internal quotation marks omitted). Sheppard controls this case. Because there was no seizure, it is unnecessary to address whether the requisite probable cause existed to make the seizure lawful.

2. New York State Constitution

Posr also alleges an unlawful seizure under Article I, § 6, of the New York Constitution. Article I, § 6, of the New York Constitution, however, addresses due process issues and thus is not relevant to Posr's claim. Construing his complaint liberally, however, the Court will assume Posr meant to invoke Article I, § 12, of the New York Constitution, which provides in relevant part:

The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Because the relevant wording of Article I, § 12, of the New York Constitution is identical to the Fourth Amendment of the United States Constitution, "it may be assumed, as a general proposition, that the two provisions confer similar rights." People v. Harris, 77 N.Y.2d 434, 437 (1991) (citations omitted).

Under New York law, the test for determining whether a seizure has occurred is "whether a reasonable person would have believed, under the circumstances, that the officer's conduct was a significant limitation on his or her freedom." People v. Bora, 83 N.Y.2d 531, 535 (1994) (citation omitted). All facts, such as "where the encounter took place," should be considered and weighed according to their individual significance in order to determine whether a seizure took place. Id. at 535-536. For the same reasons that applied to the federal constitutional analysis, and because the two constitutional provisions confer "similar rights," Posr could not have held a reasonable belief that Killackey's conduct represented a "significant" limitation on his freedom. As noted, the very purpose of the seizure was to return Posr to the exterior of the courthouse, where he could go where he pleased as long as he did not attempt to reenter the courthouse. Because Posr did not establish that he was seized, his claim fails.

C. Malicious Prosecution Claims

"To sustain a § 1983 claim of malicious prosecution, a plaintiff must demonstrate conduct by the defendant that is tortious under state law and that results in a constitutionally cognizable deprivation of liberty." Kinzer v. Jackson, 316 F.3d 139, 143 (2d Cir. 2003) (citing Singer v. Fulton County Sheriff, 63 F.3d 110, 116-17 (2d Cir. 1995)). Accordingly, if Killackey's conduct was not tortious under New York law, both Posr's state and federal law claims must fail.

In order to sustain a claim for malicious prosecution under New York law, the following elements must be satisfied: "(1) the defendant commenced or continued a criminal proceeding against plaintiff, (2) the proceeding terminated in plaintiff's favor, (3) there was no probable cause for the criminal proceeding, and (4) the defendant initiated the criminal proceeding out of malice." Bernard v. United States, 25 F.3d 98, 104 (2d Cir. 1994).

As already discussed in Section III.A. 1-2, Killackey had probable cause to arrest Posr and therefore to initiate a criminal proceeding. Posr has not pointed to any facts that arose subsequent to the initial arrest that would have suggested that his continued prosecution was lacking in probable cause. Accordingly, Posr's malicious prosecution claim fails under New York law and, as a result, also under section 1983.*fn1

III. CONCLUSION

Killackey's motion for summary judgment should be granted as to the remaining claims and the complaint should be dismissed.

Notice of Procedure for Filing Objections to this Report and Recommendation

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have ten (10) days from service of this Report to file any written objections. See also Fed.R.Civ.P. 6(a), (e). Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with copies sent to the Honorable Laura Taylor Swain, 40 Centre Street, New York, New York 10007, and to the undersigned at the same address. Any request for an extension of time to file objections must be directed to Judge Swain. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See Thomas v. Am, 474 U.S. 140 (1985).


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