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ALMONTE v. FLORIO

January 12, 2004.

RAFAEL ALMONTE, Plaintiff, -against- DAWN FLORIO, DETECTIVE CARLOS INFANTE, DETECTIVE BERBERICH, INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITY, AND NEW YORK CITY POLICE DEPARTMENT,[fn1] ET AL., Defendants


The opinion of the court was delivered by: SHIRA SCHEINDLIN, District Judge

*fn1 Chief Judge Michael B. Mukasey previously dismissed the New York City Police Department as a defendant in this lawsuit. See 8/22/02 Order at 2 & n.2, Ex. D to the Declaration of Jennifer Rossan, Assistant Corporation Counsel ("Rossan Decl.") (directing plaintiff to submit an Amended Complaint within sixty days). The City of New York was not named as a defendant in plaintiff's Amended Complaint. See Amended Complaint for Vindication of Constitutional Civil Rights ("Cmpl.") at 3, Ex. A to the Rossan Decl.

OPINION & ORDER

Plaintiff, an inmate proceeding pro se, has sued defendants under sections 1981, 1983, 1985(3) and 1986 of Title 42 of the United States Code to redress an alleged conspiracy to deprive him of his constitutional rights on account of his race (Latino).*fn2 Defendants Dawn Florio, Carlos Infante and Alan Berberich*fn3 now move for summary judgment pursuant to Rule 56 Page 2

  of the Federal Rules of Civil Procedure. Plaintiff opposes this motion and has cross-moved for summary judgment. For the following reasons, plaintiff's cross-motion is denied, defendants' motion is granted, and this case is dismissed.

  I. FACTS*fn4

  On December 19, 1996, plaintiff was arrested by detectives Carlos Infante and Alan Berberich for conspiracy to commit a carjacking and for possession of a loaded firearm. See Defendants' Local Civil Rule 56.1 Statement ("Def. 56.1") ¶ 7. Julio Caraballo, a confidential informant, previously provided Infante and Berberich with information regarding plaintiff's involvement in the carjacking. See id. at ¶ 8. Prior to accepting information from Caraballo, Infante and Berberich investigated him and learned that he had provided reliable in the past to a federal law enforcement agency. See id. at ¶ 9. On December 21, 1996, a criminal Page 3 complaint was filed against plaintiff charging him with criminal possession of a weapon in the second and third degrees, conspiracy in the fourth degree, criminal solicitation in the fourth degree, and criminal facilitation in the fourth degree. See id. at ¶ 10. On December 24, 1996, plaintiff and four co-defendants*fn5 were indicted on the following charges: attempted murder in the first and second degrees; conspiracy in the second degree; aggravated assault upon a police officer; assault in the first degree; criminal possession of a weapon in the second and third degrees; conspiracy in the fourth degree; criminal possession of a weapon in the fourth degree; and assault in the third degree. See Indictment 50/97, Ex. H to the Rossan Decl. On April 11, 2000, plaintiff pleaded guilty to conspiracy in full satisfaction of all charges against him. See Def. 56.1 at ¶ 12.

  An expanded version of the facts is drawn, in part, from the Complaint and puts plaintiff's claims in context. On December 15, 1996, plaintiff visited his friend, Lorenza Payano, who owned a grocery store in Manhattan. See Cmpl. at ¶ 3. Jose Rolando Vargas, a taxi driver, owed money to Payano who enlisted Almonte's help to collect it. See id. Almonte, in turn, sought the assistance of Caraballo, the confidential informant. See id. ¶ 4. The next day, Caraballo met Payano at her store and asked for her gun. See id. ¶ 5. Apparently, the plan was to take Vargas's cab and hold it hostage until he paid Payano the money he owed her. See Inmate Status Report for Parole Board Appearance, Ex. 1-B to Plaintiff's Affirmation in Support of Motion for Summary Judgment ("Pl. Aff."). These facts were corroborated by Payano during her plea allocution, where she answered the following questions: Page 4

 
Defense Atty: And it was your understanding that you were going to pay Rafael Almonte a certain sum of money in order for him and other individuals to take that car?
Payano: Yes.
ADA:*fn6 Okay. And it was your understanding, it was [an] agreement that was made with you and other people?
Payano: Yes.
ADA: Is it also true, to effectuate that taking of the car, that Rafael Almonte said to you that he was, that a gun was to be used to do that?
Payano: Yes.
ADA: And it was also your understanding that you were to give a gun to an individual so that individual could take the car from that particular person?
Payano: Yes.
Lorenza Payano 11/18/98 Plea Allocution to Indictment 50/97 ("Payano Plea"), Ex. M to the Reply Declaration of Jennifer Rossan ("Rossan Reply Decl."), at 18-19.*fn7

  Caraballo, the confidential informant, recorded the conversations he had with Almonte and Payano. See Declaration of Carlos A. Infante, Jr. ("Infante Decl."), Ex. E to the Rossan Decl., ¶ 7. These conversations included discussions of the plan to carjack the taxi driver who owed Payano money. See id. ¶ 8. Based on the information provided by Caraballo, Detectives Infante and Berberich arrested plaintiff on December 19, 1996, for conspiracy to Page 5 commit a robbery (carjacking). See id. ¶ 10. Almonte was later indicted on additional charges including the attempted murder of NYPD Captain Steven Plavnick. See id. ¶ 11.

  Caraballo not only provided information as to the carjacking but he also provided information as to the October 19, 1996 shooting of Captain Plavnick. See id. ¶ 2. Captain Plavnick was shot in the back, while on duty and dressed in uniform, outside of the 46th Precinct. See Inmate Status Report for Parole Board Appearance, Ex. 1-B to Pl. Aff. It was suspected that Captain Plavnick was shot in revenge for the state court acquittal of Police Officer Francis X. Livoti in the death of Anthony Baez. See Doubts About Tape Spur Plea Deals in Officer's Shooting, N.Y. Times, April 12, 2000, Ex. 1 to Pl. Aff

  Caraballo's information implicating Almonte in Plavnick's shooting turned out to be unreliable. Before Almonte's trial on Indictment 50/97 began, a question arose concerning the authenticity of the tapes provided by Caraballo. Upon learning that one of the tapes may have been altered, the Bronx District Attorney's Office immediately hired an expert to examine them. See Declaration of Former ADA Dawn Florio ("Florio Decl."), Ex. R to the Rossan Reply Decl., ¶ 16. Former ADA Florio sent the tape in question to the Federal Bureau of Investigation ("FBI") for testing. See id. ¶ 17. The FBI concluded that the last three minutes of Tape 7-B, which recorded a conversation between Guillermo Negron, a co-defendant, and Caraballo, was not authentic.*fn8 See 4/11/00 Rafael Almonte Plea Allocution ("Almonte Plea"), Ex. I to the Rossan Decl., at 23-24. Upon learning that Caraballo fabricated evidence, the state court judge Page 6 interrupted the trial and excused the jurors before opening statements were made. See id. at 2. It was because of this fabrication, coupled with Plavnick's reluctance to testify, that the People extended a plea offer to Almonte permitting him to plead guilty to conspiracy in the fourth degree (for the attempted robbery of Vargas) in full satisfaction of Indictment 50/97. See id. at 23.

  Almonte alleges that defendants knew of Caraballo's misrepresentations from the beginning. With this knowledge, defendants allegedly formed an unlawful conspiracy to entrap him for crimes he did not commit. See Cmpl., section IV (First Cause of Action-Entrapment). Almonte further claims that former ADA Florio became aware of this entrapment at the investigatory stage of the proceedings, allowed it to continue, and thereby committed fraud by concealing known misrepresentations in a willful attempt to deprive plaintiff of his constitutional rights. See id. (Second Cause of Action-Fraud). Almonte alleges that he has been designated a Central Monitoring case and has continuously been denied parole because he was falsely implicated in Captain Plavnick's shooting. See Pl. Aff. at 3 n.1 & Ex. 1-C (Central Monitoring Case Designation).

  II. LEGAL STANDARD

  Summary judgment is permissible "if 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). "An issue of fact is genuine `if the evidence is such that a jury could return a verdict for the nonmoving party.'" Gayle v. Gonyea, 313 F.3d 677, 682 (2d Cir. 2002) (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986)). A fact is material when Page 7 "it `might affect the outcome of the suit under the governing law.'" Id. (quoting Anderson, 477 U.S. at 248).

  The party seeking summary judgment has the burden of demonstrating that no genuine issue of material fact exists.*fn9 See Marvel Characters, 310 F.3d at 286 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970)). In turn, to defeat a motion for summary judgment, the non-moving party must raise a genuine issue of material fact.*fn10 To do so, he "`must do more than simply show that there is some metaphysical doubt as to the material facts,'" Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir. 2002) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)), and he "`may not rely on conclusory allegations or unsubstantiated speculation/" Fujitsu Ltd. v. Federal Express Corp., 247 F.3d 423, 428 (2d Cir. 2001) (quoting Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998)). See also Gayle, 313 F.3d at 682. Rather, the non-moving party must produce admissible evidence that supports his Page 8 pleadings. See First Nat'l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 289-90 (1968). In this regard, "[t]he `mere existence of a scintilla of evidence' supporting the non-movant's case is also insufficient to defeat summary judgment." Niagara Mohawk, 315 F.3d at 175 (quoting Anderson, 477 U.S. at 252).

  III. DISCUSSION

  A. Plaintiff's Federal Claims as Stated in ...


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