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United States District Court, E.D. New York

January 12, 2004.

Herman Johnson, Plaintiff, -against- The City of New York; Former Police Commissioner Howard Safir; Former Police Commissioner Bernard Kerik; Police Officer Jose Castellano; Police Officer Sean O'Hara, Police Officer Joseph Tenety, Defendants

The opinion of the court was delivered by: SANDRA FEUERSTEIN, District Judge


I. Introduction

Pro se plaintiff Herman Johnson ("plaintiff) filed this action pursuant to 42 U.S.C. § 1981, 1983, 1985, alleging false arrest and malicious prosecution in violation of his constitutional rights. Plaintiff also alleges claims of infliction of emotional distress and loss of consortium pursuant to state law. Defendants have moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the following reasons, the motion is GRANTED.

 II. Background

  A. The Complaint

  On November 14, 2000, Officer Joseph Tenety ("Tenety") allegedly observed plaintiff driving a vehicle in Queens with an expired inspection sticker. (West Decl., exh. R). A Page 2 registration check revealed that the vehicle had been reported stolen by the owner. (Id.), Plaintiff was arrested. (Id.). According to plaintiff, he had not been driving the car and was arrested without probable cause. (Id. at exh. V, Amended Compl. at 4, Pl.'s Mem. of Law in Opp'n to Defs.' Mot. for Summ. J. at 5). Plaintiff was indicted on charges, inter alia, of grand larceny and possession of stolen property. (West Decl., exh. S). Plaintiff pleaded guilty to grand larceny. (Id. at exh. T).

  On March 15, 2001, plaintiff filed suit in the Southern District of New York. (West Decl., exh. A). The case was transferred to the Eastern District of New York and filed on March 27, 2001. (Id.).

  B. The Amended Complaint

  On September 13, 2002, plaintiff filed an amended complaint adding allegations of false arrest and malicious prosecution stemming from arrests in September 1998 and July 2000.

  1. The September 1998 Arrest

  On September 14, 1998, Officer Jose Castellanos ("Castellanos") allegedly observed plaintiff conversing with individuals on St. John's Place in Brooklyn and escorting them to a seller of narcotics. (West Decl., exh. K). Castellanos arrested plaintiff and other participants in an alleged drug sale. (Id. at exhs. G, K). Plaintiff argues that he did not know the other arrested individuals, and was simply waiting outside his sister's St. John's Place residence when the police searched and arrested him. (Amended Compl. at 4, Pl.'s Mem. of Law in Opp'n to Defs.' Mot. for Summ. J. at 5). Plaintiff was charged with criminal facilitation and loitering. (West Decl., exh. I). On September 15, 1998, the case was adjourned in contemplation of dismissal. (Id at exh. J). Page 3

  2. The July 2000 Arrest

  On July 22, 2000, plaintiff and another individual were sitting in a car parked along Lakeside Boulevard near 118th Road in Queens. According to defendants, as Detective Sean O'Hara ("O'Hara") parked his car alongside, he saw a crack pipe in plain view on the dashboard of plaintiff's vehicle. (West Decl., exh. O). Plaintiff claims that the crack pipe was not in plain view, but instead was seized from his friend after they were searched without probable cause. (Amended Compl. at 4, Pl.'s Mem. of Law in Opp'n to Defs.' Mot. for Summ. J. at 5). Plaintiff was arrested for criminal possession of a controlled substance. He pleaded guilty to disorderly conduct on July 23, 2000. (West Decl., exh. N).

 III. Analysis

  A. Statute of Limitations

  Defendants claim that plaintiff's false arrest claim regarding the September 15, 1998 arrest is untimely. The statute of limitations for New York-based § 1983 claims is three years. See Owens v. Okure, 488 U.S. 235, 239, 109 S.Ct. 573, 102 L.Ed.2d 594 (1989). A false arrest claim accrues at the time of the arrest, unless a conviction is dependent upon the evidence resulting from the allegedly false arrest. See Covington v. City of New York, 171 F.3d 117, 119 (2d Cir. 1999).

  Plaintiff has failed to allege any facts to support an inference that a potential conviction was dependent upon evidence resulting from the September 1998 arrest. Accordingly, his false arrest claim did not accrue on the date of the dismissal of the charges, but rather on the date of the arrest, September 14, 1998. Since the claim regarding that arrest was first raised in the Page 4 amended complaint, filed on September 13, 2002, it is untimely and dismissed.

  B. Summary Judgment

  1. Standard of Review

  Summary judgment should not be granted unless "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 judgment as a matter of law." Fed.R.Civ.P. 56(c). A fact is material "if it might affect the outcome of the suit under the governing law." Holtz v. Rockefeller & Co., 258 F.3d 62, 69 (2d Cir. 2001). An issue of fact is genuine only if a jury could reasonably find in favor of the nonmoving party based on that fact. See id The moving party bears the initial burden of establishing the absence of any genuine issue of material fact, after which the burden shifts to the nonmoving party to establish the existence of a factual question that must be resolved at trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 91 L.Ed.2d 202, 106 S.Ct. 2505 (1986). The trial court is required to construe the evidence in the light most favorable to the nonmoving party, and draw all reasonable inferences in its favor. See id. at 252; Cifarelli v. Vill. of Babylon, 93 F.3d 47, 51 (2d Cir. 1996).

  A pro se plaintiff's submissions are held to less stringent standards than formal pleadings drafted by attorneys. See Hughes v. Rowe, 449 U.S. 5, 9, 66 L.Ed.2d 163, 101 S.Ct. 173 (1980) (per curiam). Indeed, a court must "read the pleadings of a pro se plaintiff liberally and interpret them `to raise the strongest arguments that they suggest.'" McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (quoting Burgos v. Hopkins, 14 F.3d 878, 790 (2d Cir. 1994)). Nonetheless, a. pro se plaintiff is not exempt from compliance with relevant rules of procedural and substantive law. See Traguth v. Zuck, 710 F.2d 90, 92 (2d Cir. 1983). Page 5

  a. Plaintiffs § 1981 Claim

  To state a claim under 42 U.S.C. § 1981, a plaintiff must allege: (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 activities enumerated in the statute. See Mian v. Donald. Lufkin & Jenrette Sec. Corp., 7 F.3d 1085, 1087 (2d Cir. 1993). The "equal benefit of all laws and proceedings for the security of persons" is an enumerated protection of § 1981. 42 U.S.C. § 1981(a) (2000).

  Naked assertions of racial discrimination are insufficient to state a cause of action. See Yusuf v. Vassar College, 35 F.3d 709, 713 (2d Cir. 1994). A complaint 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. Additionally, complaints must "allege that similarly situated person have been treated differently." Gagliardi v. Vill. of Pauling, 18 F.3d 188, 193 (2d Cir. 1994).

  Plaintiff alleges that he was "targeted only because of the color of the skin, and race namely African American and/or latino [sic] depriving [him] of the full and equal benefit of the law accorded to white persons. . . ." (Amended Compl. at 2-3). While plaintiff claims that he was denied benefits granted to Caucasians, he fails to specifically allege that any similarly situated non-African Americans were treated differently by defendants. There is no allegation that non-African Americans participating in the same activities as plaintiff were treated more favorably. Thus, plaintiff's § 1981 claim is dismissed.

  b. Plaintiffs § 1983 Claims

  To state a claim under 42 U.S.C. § 1983, a plaintiff must show that: (1) the defendants Page 6 acted under "color of state law"; and (2) their conduct or actions deprived the plaintiff of a right, privilege, or immunity guaranteed by the Constitution or laws of the United States. See Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir. 1994). "Section 1983 itself creates no substantive rights; it provides only a procedure for redress for the deprivation of rights established elsewhere." Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993). Plaintiff's pro se complaint raises two constitutional claims against the City of New York as well as former and current members of the Police Department: (1) a Fourth Amendment false arrest/false imprisonment claim, see Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996) ("A § 1983 claim for false arrest rest[s] on the Fourth Amendment right of an individual to be free from unreasonable seizures, including arrest without probable cause. . . ."); and (2) a Fourteenth Amendment malicious prosecution claim. See Cook v. Sheldon, 41 F.3d 73, 79 (2d Cir. 1994) ("Section 1983 liability may also be anchored in a claim for malicious prosecution, as this tort typically implicates constitutional rights secured by the fourteenth amendment, such as deprivation of liberty.") (internal citation omitted).

  i. False Arrest / False Imprisonment

  A section 1983 claim of false arrest is substantially similar to a claim for false arrest under New York law. See Weyant, 101 F.3d at 852. Under New York law, a plaintiff claiming false arrest must show: (1) the defendant intended to confine the plaintiff; (2) the plaintiff was conscious of the confinement; (3) the plaintiff did not consent to the confinement; and (4) the confinement was not otherwise privileged. See Savino v. City of New York, 331 F.3d 63, 75 (2d Cir. 2003).

  If an arrest was made without a warrant, there is a presumption of illegality, which may be overcome by proving the affirmative defense of the existence of probable cause. See Curry v. Page 7 Syracuse, 316 F.3d 324, 335 (2d Cir. 2003); Wilder v. Vill. of Amityville, No. 01-2448, 2003 U.S. Dist. LEXIS, at *6 (E.D.N.Y. Oct. 30, 2003). If there is no factual dispute regarding pertinent events or the officers' knowledge, the existence of probable cause is a legal question that the Court may decide. See Wilder, 2003 U.S. Dist. LEXIS, at *6, Probable cause exists when the arresting officer has "knowledge or reasonably trustworthy information of facts and circumstances that are sufficient to warrant a person of reasonable caution in the belief that the person to be arrest has committed or is committing a crime." Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996). An arrest's validity is not dependent upon a finding that the arrested person is guilty, See Pierson v. Ray, 386 U.S. 547, 555 (1967). Instead, probable cause may exist even if the officer is acting upon mistaken or false information, provided that the officer reasonably relied upon the source of the information. See Bernard v. United States, 25 F.3d 98, 102 (2d Cir. 1994).

  A valid prosecution resulting in conviction is conclusive evidence that probable cause existed for an arrest, see Cameron v. Fogarty, 806 F.2d 380, 387 (2d Cir. 1986) ("[T]he common-law rule, equally applicable to actions asserting false arrest, false imprisonment, or malicious prosecution, . . . is that the plaintiff can under no circumstances recover if he was convicted of the offense for which he was arrested."), even if the conviction is the result of a plea of guilty to a lesser charge than that for which plaintiff was arrested. See Sealey v. Fishkin, No. 96-6303, 1998 WL 1021470, at *4 (E.D.N.Y. Dec. 2, 1998); Butron v. County of Queens Police Dep't 110 Precinct, No. 94-2675, 1996 WL 738525, at *2 (E.D.N.Y. Dec. 23, 1996); Roundtree v. New York, 778 F. Supp. 614, 618 (E.D.N.Y. 1991). As a result of his arrest on July 22, 2000 for criminal possession of a controlled substance, plaintiff pleaded guilty to disorderly conduct. Page 8 (West Decl., exh. N). Plaintiff also pleaded guilty to grand larceny charges stemming from the arrest of November 14, 2000. (Id. at exh. T). As these convictions establish that probable cause existed, plaintiffs claims for false arrest must fail.

  ii. Malicious Prosecution

  To state a cause of action for malicious prosecution, plaintiff must allege a favorable disposition. See Collins v. Greenberg, No. 01-7739, 2002 U.S. App. LEXIS 2839, at **3-4 (2d Cir. Feb. 22, 2002): see also Heck v. Humphrey, 512 U.S. 477, 487, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994) (holding that in a § 1983 claim for malicious prosecution, a plaintiff must allege favorable disposition of the charges). As a result of his September 14, 1998 arrest, plaintiff accepted an adjournment in contemplation of dismissal and he pleaded guilty to disorderly conduct and grand larceny as a result of the arrests of 2000. Neither is a favorable disposition for purposes of a malicious prosecution claim. See Murphy v. Lynn, 118 F.3d 938, 949 (2d Cir. 1997); Nance v. NYPD, No. 01-424, 2003 U.S. Dist. LEXIS 6848, at *5 (E.D.N.Y. Apr. 24, 2003).

  c. Plaintiffs § 1985 claims

  To establish a conspiracy claim under § 1985, a plaintiff must prove: (1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the law; (3) an act in furtherance of the conspiracy; and (4) whereby a person is either injured in his person or property or deprived of a constitutional right. See Bhd. of Carpenters v. Scott, 463 U.S. 825, 829-30, 103 S.Ct. 3352, 77 L.Ed.2d 1049 (1983); Carson v. Lewis, 35 F. Supp.2d 250, 270 (E.D.N.Y. 1999). "In the context of a § 1983 claim, a civil conspiracy is a combination of two or more Page 9 persons acting in concert to commit an unlawful act, or to commit a lawful act by unlawful means, where those persons agree to inflict an injury upon another and where there is an overt act resulting in damages." Carson, 35 F. Supp.2d at 271 (internal citation omitted).

  Under the "intracorporate conspiracy" doctrine, the officers, agents, and employees of a single corporate entity, each acting within the scope of their employment, are legally incapable of conspiring together. See Girard v. 94th St. and Fifth Ave. Corp., 530 F.2d 66, 71-72 (2d Cir. 1976); Salgado v. City of New York, No. 00-3667, 2001 U.S. Dist. LEXIS 3196, at *23 (S.D.N.Y. Mar. 26, 2001). However, the "personal stake" exception to this doctrine allows a § 1985 claim if there are individuals who are "motivated by an independent personal stake in achieving the corporation's objective." Id, at 72. Plaintiff does not claim that each defendant possessed an independent personal purpose, but rather that the individuals were "motivated by racial animus." (Amended Compl. at 2-3). The presence of individual bias is insufficient without an allegation of a personal stake. See Johnson. M.D. v. Nyack Hosp., 954 F. Supp. 717, 723 (S.D.N.Y. 1997) (stating that "if personal racial bias were sufficient to defeat the intraenterprise conspiracy doctrine, the exception would swallow the rule"). Since all of the individual defendants actions occurred while they were officers, agents, or employees of the City of New York, plaintiff's § 1985 claim is barred under the intracorporate conspiracy doctrine.

  Even if the intracorporate conspiracy doctrine is inapplicable, the only details provided by plaintiff are conclusory statements regarding the motivation behind his arrests. Conclusory allegations of the defendants' alleged participation in a conspiracy are insufficient to support a § 1985 claim. See X-Men Security, Inc. v. Pataki, 196 F.3d 56, 71 (2d Cir. 2000); Salgado v. City of New York, No. 00-3667, 2001 U.S. Dist. LEXIS 3196, at *23 (S.D.N.Y. Mar. 26, 2001). Page 10 Plaintiff states that defendants "directly and explicitly conspired to deprive the plaintiffs of equal protection, equal privileges, and equal rights. . . ." (Amended Compl. at 3). However, plaintiff fails to allege specific facts to support an inference that the defendants conspired to deprive him of his civil rights. For these reasons, plaintiff's § 1985 claim is dismissed.

  2. Plaintiffs State Law Claims

  Plaintiffs amended complaint also claims that he has suffered emotional distress and loss of consortium. The Court has carefully considered these claims and found them to be without merit.

 IV. Conclusion

  For the foregoing reasons, summary judgment is GRANTED in defendants' favor and this case is dismissed in its entirety. The Clerk of Court is directed to close this case.



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