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
OPINION & ORDER
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.
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
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).
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.
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
amended complaint, filed on September 13, 2002, it is untimely and
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).
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
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.
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
(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
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
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).
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.
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.
IT IS SO ORDERED.
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