United States District Court, S.D. New York
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
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.
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
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:
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
ADA:*fn6 Okay. And it was your understanding, it
was [an] agreement that was made with
you and other people?
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?
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
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
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
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
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
"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
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).
A. Plaintiff's Federal Claims as Stated in the Complaint
Plaintiff claims that defendants violated his civil rights by
entrapping him. This is the basis for one of his claims under section
1983 of Title 42 of the United States Code ("section 1983").*fn11
Assuming, arguendo, that plaintiff could establish that his arrest was
the result of entrapment, which he has not, a claim of entrapment cannot
be the basis for a section 1983 claim. "[A]n investigative officer's
participation in an entrapment does not violate the target's
constitutional rights, even though entrapment might be established as a
defense to the criminal charge." Smith v. Garretto, 147 F.3d 91, 94 (2d
Cir. 1998). Furthermore, entrapment is not a constitutional offense. See
DiBlaso v. City of New York, 102 F.3d 654, 656 (2d Cir. 1996) (citing
Hampton v. United States, 425 U.S. 484, 488-91 (1976) (plurality) and
United States v. Russell, 411 U.S. 423, 433 (1973)). See also Jones v.
Bombeck, 375 F.2d 737, 738 (3d Cir. 1967) (per curiam) ("While entrapment
may be a proper defense in a criminal action, a police officer's
participation in such activity does not constitute a constitutional
violation."). Because entrapment does not rise to the level of a
constitutional violation, plaintiff's section 1983 claim predicated on
entrapment must be dismissed.
Plaintiff alleges that defendants, with full knowledge that Caraballo
was misrepresenting facts to save himself from going to prison,
unlawfully conspired to deprive him of his civil rights in violation of
sections 1983 and 1985 of Title 42 of the United States Code.*fn12
Specifically, plaintiff states:
The authorities learned of Mr. Caraballo's 4 open
cases. He [Caraballo] made an agreement with the
police that he would give information about the
shooting of the Police Captain in the Bronx, in
exchange [for] him not going to jail. Mr. Caraballo
was transported to the 46th Precinct and recruited
to lead the police in identifying and arresting the
Cmpl., section III-A. The above agreement, however, is
entirely lawful given that law enforcement agencies
use information from confidential informants on a
daily basis. Nowhere does plaintiff allege that any
member of the NYPD, or any other defendant, agreed
with Caraballo to falsify evidence against him in
connection with the shooting of Captain Plavnick.
The essence of a conspiracy claim is a combination of
two or more persons acting in concert to commit an
unlawful act, the principal element of which is an
agreement by the parties to inflict wrong upon or
injure another. See Perez v. City of New York, No. 97
CV 2915, 1999 WL 1495444, at *4 (E.D.N.Y. Nov. 16,
1999) (recognizing that an essential element of a
claim of conspiracy is an agreement among
co-conspirators to violate plaintiff's constitutional
rights). However, a conspiracy claim cannot exist in a
vacuum. A plaintiff alleging a conspiracy under
section 1983 must prove an actual violation of
constitutional rights. As stated by the Second
[s]ection 1983 is only a grant of a right of action;
the substantive right giving rise to the action must
come from another source. Therefore, although the
pleading of a conspiracy will enable a plaintiff to
bring suit against purely private individuals, the
lawsuit will stand only insofar as the plaintiff can
prove the sine qua non of a § 1983 action: the
violation of a federal right. See Adickes v. S.H.
Kress & Co., 398 U.S. 144, 150 (1970) (one of the
necessary elements of a § 1983 action is "that the
defendant has deprived [the plaintiff] of a right
secured by the `Constitution and laws' of the United
Singer v. Fulton County Sheriff, 63 F.3d 110, 119 (2d Cir. 1995)
(parallel citations omitted). Because entrapment does not rise to the
level of a constitutional violation and because plaintiff has not and
cannot bring claims for false arrest or malicious prosecution, see infra
Part II.B, his conspiracy claim under section 1983 fails as a matter of
Plaintiff's conspiracy claim under section 1985 also fails. The four
elements of a section 1985(3) claim are: "(1) a conspiracy; (2) for the
purpose of depriving, either directly or indirectly, any person or class
of persons of equal protection of the laws, or of equal privileges and
immunities under the laws; (3) an act in furtherance of the conspiracy;
(4) whereby a person is either injured in his person or property or
deprived of any right of a citizen of the United States." Mian v.
Donaldson, Lufkin & Jenrette Sec. Corp., 7 F.3d 1085, 1087 (2d
Cir. 1993) (per curiam). Moreover, the conspiracy must be motivated by
racial animus. See id. at 1088.
Other than vague, conclusory and speculative allegations, plaintiff has
submitted no evidence to support the existence of the alleged
conspiracy.*fn13 Plaintiff has failed to provide any evidence relating
to when, where or with whom an unlawful agreement was made. Nor does he
describe any specific acts performed in furtherance of the alleged
unlawful agreement. The only agreement that is mentioned anywhere is the
lawful agreement by Caraballo to provide the NYPD with information
relating to the shooting of Captain Plavnick. See Cmpl., section III-A.
Nowhere is there any mention of any agreement between Caraballo and any
defendant to alter tapes or otherwise fabricate evidence, much less an
agreement motivated by racial animus. Given the complete lack of proof in
support of the alleged conspiracy, plaintiff's conspiracy
claims under sections 1983 and 1985 are dismissed.*fn14 See Eastway
Constr. Corp. v. City of New York, 762 F.2d 243, 251 (2d Cir. 1985)
("[W]here a plaintiff fails to produce any specific facts whatsoever to
support a conspiracy allegation, a district court may . . . grant summary
judgment.") (internal quotation marks and citation omitted).
3. Section 1981
To establish a claim under section 1981, a plaintiff must allege the
following elements: (1) that he is a members of a racial minority; (2)
defendants' intent to discriminate on the basis of race; and (3)
discrimination concerning one of the statute's enumerated activities. See
Mian, 7 F.3d at 1087. Those enumerated activities include the rights "to
make and enforce contracts, to sue, be parties, give evidence, and to the
full and equal benefit of all laws and proceedings for the security of
persons and property." 42 U.S.C. § 1981 (a). Furthermore, section 1981
only prohibits intentional racial discrimination. See General Building
Contractors Ass'n v. Pennsylvania, 458 U.S. 375, 391 (1982); see also
Albert v. Carovano, 851 F.2d 561, 573 (2d Cir. 1988) (holding that to
plead a section 1981 claim alleging selective enforcement, plaintiff must
allege instances in which "similarly situated" non-minorities were
Here, the only hint of any conceivable discrimination is the allegation
that Caraballo entered into an agreement with police officers to
"seek-out, tape record and incriminate
persons of the Latino race/class, into making statements against police
officers in general and for the purpose of making each individual a
suspect, their eventual arrest and prosecution for the shooting of a
police captain in the Bronx." Pl. Aff. at 2. Even if the singling out of
Latinos as potential police targets is considered discrimination, such
discrimination does not relate to any of the activities enumerated in
section 1981. In addition, plaintiff fails to allege that any
similarly-situated, non-Latino person was treated differently.
Plaintiff's section 1981 claim thus fails as a matter of law.
B. Plaintiff's Implied Federal Claims
Plaintiff has stated that he is not asserting claims for either false
arrest or malicious prosecution. See 2/5/03 Letter from Almonte to
Rossan, Ex. K to the Rossan Decl, at ¶ 1 (" Allegations such as false
arrest and malicious prosecution are not my causes of action. These are
merely underlying circumstances, such as libel, slander and
defamation."). However, interpreting the pro se pleadings liberally as
required by Haines v. Kerner, these claims can be considered as if
implicitly brought given the facts alleged by plaintiff.
1. False Arrest
The elements of a false arrest claim include a showing that: "1) the
defendant[s] intended to confine 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."
Bernard v. United States, 25 F.3d 98, 102 (2d Cir. 1994). A finding of
probable cause is a complete defense to an action for false arrest. See
Zanghi v. Incorporated Vill. of Old Brookville, 752 F.2d 42, 45 (2d Cir.
1985). Accordingly, following a guilty plea or conviction at trial, a
plaintiff is barred from bringing a false arrest claim without first
showing that his conviction has
been invalidated. The Supreme Court has held that to recover damages for
false arrest, a section 1983 plaintiff must prove that the conviction or
sentence has been reversed on direct appeal, expunged by executive
order, declared invalid by a state tribunal authorized to make such
determinations, or called into questions by a federal court's issuance of
a writ of habeas corpus. See Heck v. Humphrey, 512 U.S. 477, 486-87
Here, plaintiff was indicted by a grand jury on December 24, 1996, on
charges including those for which he was arrested.*fn15 The grand jury's
indictment of plaintiff creates a presumption of probable cause that
Almonte has failed to rebut. See Bernard, 25 F.3d at 104 (holding that a
grand jury indictment creates a presumption that the arrest was procured
with probable cause). Furthermore, plaintiff pleaded guilty to conspiracy
in the fourth degree, one of the offenses for which he was arrested and
indicted. Under no circumstances can a plaintiff alleging false arrest
recover if he was convicted of the offense for which he was arrested.*fn16
See Cameron v. Fogarty, 806 F.2d 380, 388-89 (2d Cir. 1986) ("[W]here law
enforcement officers have made an arrest, the resulting conviction is a
defense to a § 1983 action asserting that the arrest was made without
In sum, because plaintiff was indicted for conspiracy in the fourth
degree for attempted robbery, and subsequently pleaded guilty to this
charge, any claim for false arrest based on the other charges in
Indictment 50/97 cannot succeed. Although plaintiff may not be guilty of
attempted murder, he was guilty of conspiracy in the fourth degree. And
because his arrest for conspiracy in the fourth degree was supported by
probable cause, the fact that he was subsequently indicted on other
charges is irrelevant for purposes of any false arrest claim. Plaintiff's
reference to "the fruits of the poisonous tree" is therefore inapposite.
See Pl Aff at 3 n. 1. Because plaintiff cannot maintain a viable claim
for false arrest, he will not be granted leave to amend. Additionally, if
plaintiff brings a suit for false arrest in the future, such case will be
dismissed on grounds of res judicata.
2. Malicious Prosecution
To the extent that plaintiff's Amended Complaint is construed to
contain a cause of action for malicious prosecution, that claim must be
dismissed. To state a claim for malicious prosecution, a plaintiff must
show: "(1) the initiation or continuation of a criminal proceeding
against plaintiff; (2)termination of the proceeding in plaintiff's
favor; (3) lack of probable cause for commencing the proceeding; and (4)
actual malice as a motivation for defendant's actions." Russell v.
Smith, 68 F.3d 33, 36 (2d Cir. 1995). See also Posr v. Doherty,
944 F.2d 91, 100 (2d Cir. 1991). `Termination of the criminal charges in
plaintiff's favor is an essential element of the claim." Russell, 68 F.3d
Plaintiff cannot demonstrate that the criminal proceeding against him
resulted in a favorable termination. Although plaintiff states that the
attempted murder charge and related offenses were ultimately dismissed in
a favorable determination, see Pl. Aff. at 3, that is not the
case. Because plaintiff pleaded guilty to conspiracy in the fourth degree
in full satisfaction of all counts in Indictment 50/97, see Almonte Plea
at 6, the criminal proceeding did not terminate in his favor.*fn17 It is
well settled that "if the outcome was the result of a compromise to which
the accused agreed, or an act of mercy requested or accepted by the
accused, . . . it is not a termination in favor of the accused for
purposes of a malicious prosecution claim." Posr v. Court Officer Shield #
207, 180 F.3d 409, 418 (2d Cir. 1999) (internal quotation marks and
citation omitted). Because the criminal proceeding did not terminate in
plaintiff's favor, despite the fact that the overall result may have been
favorable to plaintiff, any claim for malicious prosecution must fail as
a matter of law. As with the claim for false arrest, leave to amend will
not be granted and any malicious prosecution claim brought in a
subsequent suit will be summarily dismissed.
C. Plaintiff's State Law Claims
Plaintiff has expressly brought a cause of action for fraud. Construing
his pleadings liberally, he has also alleged libel, slander and
defamation. See Cmpl., section III-A (`Therefore, [Caraballo] was their
tool for an entrapment, causing innocent persons to be arrested,
indicted, prosecuted, made to be objects of libel, slander, and
defamation, only to have those charges and accusations thrown-out by a
Court of law, based on its falsity."). These are all state law claims.
Because all of plaintiff's federal claims have been dismissed, this
declines to exercise jurisdiction over plaintiff's state law claims. See
28 U.S.C. § 1367(c)(3).*fn18 See also Pitchell v. Callan, 13 F.3d 545,
549 (2d Cir. 1994) ("[I]t is axiomatic that a court should decline to
exercise jurisdiction over state-law claims when it dismisses the federal
claims prior to trial.").
For the foregoing reasons, plaintiff's cross-motion for summary
judgment is denied, defendants' motion for summary judgment is granted,
and this case is dismissed. Any appeal from this Order would not be taken
in good faith under 28 U.S.C. § 1915(a)(3). See Coppedge v. United
States, 369 U.S. 438, 444-45 (1962). The Clerk of the Court is directed
to close these motions and this case.
*fn2 Plaintiff also brings claims under sections 241 and 242 of Title
18 of the United States Code. However, these sections are federal
criminal statutes that are not applicable to plaintiff's civil case.
Accordingly, these claims are summarily dismissed.
*fn3 Detective Berberich was never properly served with process in this
action. Detective Berberich, who officially retired from the New York
City Police Department ("NYPD") on December 31, 2002, has been on sick
leave due to serious illness since June 10, 2002. From that date
forward, Detective Berberich could not be served with process at his
place of employment. As indicated by the docket sheet, on November 25,
2002, a return of service of summons and complaint executed for Detective
Berberich was accepted by Detective Carlos Infante. See Docket Sheet at
3, Ex. C to the Rossan Decl. However, Detective Infante was not
authorized to accept service on behalf of Detective Berberich. Only the
NYPD's Legal Division can accept service for a retired member of the
service. See 2/14/03 Letter from Jennifer Rossan, Ex. J to the Rossan
Decl. Despite being given the Legal Division's address, see 4/7/03 Letter
from Rossan to Almonte, Ex. J to the Rossan Decl., plaintiff failed to
properly serve Detective Berberich through that office. See Defendants'
Local Civil Rule 56.1 Statement ("Def. 56.1") ¶ 6. Because Detective
Berberich was not served with 120 days of the filing of the Amended
Complaint, he is dismissed from this action. See Fed.R.Civ.P. 4(m).
Furthermore, because the three-year statute of limitations period
applicable to section 1983 claims has passed, this dismissal is with
*fn4 Where indicated, the following facts are taken from Defendants'
Local Civil Rule 56.1 Statement. Along with defendants' motion, plaintiff
received Defendants' Local Civil Rule 56.2 Notice to Pro Se Litigant
Opposing Motion for Summary Judgment as well as a Notice for Pro Se
Litigants Regarding Opposition to a Summary Judgment Motion. See Notice
of Motion at 6-8. Plaintiff nonetheless failed to controvert defendants'
statements of material fact. Accordingly, these facts are admitted for
purposes of this motion. See Cox v. C.O. Colgane, No. 94 Civ. 6361, 1998
WL 148424, at *3 (S.D.N.Y. Mar. 27, 1998) (admitting facts in defendants'
Rule 56.1 statement where pro se plaintiff failed to file a responsive
Rule 561.1 statement after receiving notice informing him of his right to
*fn5 Almonte's co-defendants were Jose Ortiz, Guillermo Negron, Damien
Ponce and Lorenza Payano.
*fn6 "ADA" stands for Assistant District Attorney.
*fn7 Indictment 50/97 only charged Payano in Counts 8 (criminal
possession of a weapon in the second degree), 9 (criminal possession of a
weapon in the third degree) and 10 (conspiracy in the fourth degree).
See Payano Plea at 2. Payano was permitted to plead guilty to the
conspiracy charge in full satisfaction of the Indictment. See id. at
*fn8 There is no evidence that Caraballo altered any of the tapes
containing conversations Almonte had with Payano concerning the
conspiracy to commit the carjacking. See Infante Decl.
¶ 14; Florio Decl. ¶ 19.
*fn9 In determining whether there is a genuine issue of material fact, a
court must construe the evidence in the light most favorable to the
non-moving party and draw all inferences in that party's favor. See
Niagara Mohawk Power Corp. v. Jones Chem, Inc., 315 F.3d 171, 175 (2d
Cir. 2003). Accordingly, a court's task is not to "weigh the evidence and
determine the truth of the matter but to determine whether there is a
genuine issue for trial." Anderson, 477 U.S. at 249. Summary judgment is
therefore inappropriate "if there is any evidence in the record that
could reasonably support a jury's verdict for the non-moving party."
Marvel Characters, Inc. v. Simon, 310 F.3d 280, 286 (2d Cir. 2002)
(citing Pinto v. Allstate Ins. Co., 221 F.3d 394, 398 (2d Cir.
*fn10 A pro se plaintiff is entitled to have his pleadings held to "less
stringent standards than formal pleadings drafted by lawyers." Haines v.
Kerner, 404 U.S. 519, 520 (1972). Accordingly, a pro se plaintiff's
papers should be interpreted "to raise the strongest arguments that they
suggest." McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (internal
quotation marks and citation omitted). Nevertheless, a plaintiff's pro
se status does not allow him to rely on conclusory allegations or
unsubstantiated speculation to overcome a motion for summary judgment.
See Satterfield v. United Parcel Serv., Inc., No. 00 Civ. 7190, 2003 WL
22251314, at *15 (S.D.N.Y. Sept. 30, 2003).
*fn11 Section 1983 states:
Every 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. . . .
42 U.S.C. § 1983.
*fn12 Section 1985 states, in relevant part, as follows:
[I]n any case of conspiracy set forth in this
section, if one or more persons engaged therein
do, or cause to be done, any act in furtherance of
the object of such conspiracy, whereby another is
injured in his person or property, or deprived of
having and exercising any right or privilege of a
citizen of the United States, the party so injured
or deprived may have an action for the recovery of
damages occasioned by such injury or deprivation,
against any one or more of the conspirators.
42 U.S.C. § 1985(3).
*fn13 For this reason alone, plaintiff's conspiracy claims, which are
vague, conclusory and not supported by admissible evidence, must be
dismissed. See Leon v. Murphy, 988 F.2d 303, 311 (2d Cir. 1993)
(affirming summary judgment dismissing conspiracy claim where plaintiff's
only evidence was that defendants met and communicated on several
occasions and there was nothing suspicious or improper in such
meetings); San Filippo v. U.S. Trust Co., 737 F.2d 246, 256 (2d Cir.
1984) (upholding summary judgment in section 1983 conspiracy action where
plaintiff's conclusory allegations were unsupported by any specific facts
and were flatly contradicted by defendant's evidence).
*fn14 A claim brought pursuant to section 1986, which permits suits
against persons who neglect or refuse to prevent the commission of a
section 1985 violation, must be predicated on a valid section 1985
claim. See Brown v. City of Oneonta, 221 F.3d 329, 341 (2d Cir. 2000),
cert. denied, 534 U.S. 816 (2001). Because plaintiff has failed to make
out a violation under section 1985, any claim under section 1986
*fn15 As long as the police officer had probable cause to arrest
plaintiff for any criminal offense, he is entitled to a complete defense
to actions for false arrest and malicious prosecution. See United States
v. Martinez, 465 F.2d 79, 81 (2d Cir. 1972) ("When the crime under which
the arrest is made and a crime for which probable cause exists are in
some fashion related, the arrest is valid.") (internal quotation marks
and citation omitted); see also Allison v. Farrell, No. 97 Civ. 2247,
2002 WL 88380, at *4 (S.D.N.Y. Jan. 22, 2002) (finding false arrest claim
for resisting arrest barred by plaintiff's conviction by guilty plea to
attempted assault in the third degree).
*fn16 A guilty plea is the equivalent of a conviction. See Saddler
v. United States, 531 F.2d 83, 85-86 (2d Cir. 1976).
*fn17 The transcript of plaintiff's plea allocution makes clear that the
Bronx District Attorney's Office did not dismiss or contemplate dismissal
of any of the charges contained in Indictment 50/97. See Almonte Plea at
3 ("With respect to defendant Rafael Almonte and Damien Ponce, the People
would permit those two defendants to plead guilty to the tenth count in
the indictment, Penal Law Section 105.10, which is Conspiracy in the
Fourth Degree, to satisfy the other counts of the indictment.")
*fn18 [D]istrict courts may decline to exercise supplemental
jurisdiction over a claim under subsection (a) if
(1) the claim raises a novel or complex issue of
(2) the claim substantially predominates over the
claim or claims over which the district court has
(3) the district court has dismissed all claims over
which it has original jurisdiction, or
(4) in exceptional circumstances, there are other
compelling reasons for declining jurisdiction.
28 U.S.C. § 1367(c) (emphasis added).
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