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United States District Court, S.D. New York

March 15, 2004.

KENNETH BROME, Plaintiff, -against- THE CITY OF NEW YORK, et al., Defendants

The opinion of the court was delivered by: WILLIAM PAULEY, District Judge


Plaintiff Kenneth Brome ("Brome") brings this action, pursuant to 42 U.S.C. § 1983 and New York State law, for false arrest, false imprisonment, malicious prosecution, and inadequate training and supervision against defendants the City of New York (the "City"), Detective Stephen Minogue ("Detective inogue"), and the New York City Police Department (the "N.Y.P.D."). Currently before this Court are defendants' motions for summary judgment pursuant to Rule 56(c) of the Federal Rules of Civil Procedure. For the reasons set forth below, Detective Minogue's motion is denied, and the N.Y.P.D.'s and the City's motions are granted.*fn1 Page 2


  On evening of January 19, 2001, Detective Minogue participated in a "buy and bust" operation in the vicinity of 146'-'" Street and Broadway in Manhattan. (Amended Complaint ("Compl.") ¶ 12; Deposition of Stephen Minogue, dated March 4, 2003 ("Minogue Dep.") at 5-7, 15-16.) During the "buy and bust" operation, Detective Minogue received a radio message from an undercover officer suggesting that he follow a suspect described as "a male Hispanic with long black hair tied back in a ponytail, wearing a multi-colored jacket." (Minogue Dep. at 25-26.) Detective Minogue followed that individual to an apartment building at 562 West 144th Street. (Minogue Dep. at 26.)

  At that moment, plaintiff Brome, a parole violator, was in the lobby of 562 West 144th Street. (Compl. ¶ 13.) Unbeknownst to Brome and Detective Minogue, a retaking warrant had been issued for Brome on January 16, 2001. (Deposition of Kenneth Brome, dated March 4, 2003 ("Brome Dep.") at 104-105; Declaration of John A. Compton Jr. ("Compton Decl.") Ex. G: Warrant; Pl's 56.1 1 3; Minogue Dep. at 62.)

  The events that followed are sharply in dispute. Detective Minogue claims that he entered the vestibule of 562 West 144th Street through an unlocked outer door, which was separated from the lobby by a locked interior door with a transparent plexiglass panel. (Minogue Dep. at 39-41.) Peering Page 3 through the transparent panel, Detective Minogue claims he saw plaintiff and the unidentified man engage in a hand-to-hand drug transaction. (Def.'s 56.1 29-31; Minogue Dep. at 39-41.) Detective Minogue asserts that he pulled out his shield, knocked on the plexiglass panel, and motioned for the two men to open the door. (Minogue Dep. at 51.) According to Detective Minogue, both men tried to rush past him, and he was successful in restraining plaintiff. (Minogue Dep. at 39-40, 52-53.)

  During his struggle with plaintiff, which spilled into the street, Detective Minogue contends that he observed a clear plastic bag in plaintiff's hand. (Minogue Dep. at 53-57; Pl.'s 56.1 Ex. G.) While no drugs were recovered from plaintiff's person, Detective Minogue claims that he found the plastic bag containing 12 small orange bags filled with crack cocaine near where he subdued plaintiff. (Minogue Dep. at 56.) Plaintiff was then placed under arrest.

  Plaintiff's version of events differs substantially from Detective Minogue's. Plaintiff contends that he did not engage in any hand-to-hand drug transaction, and that his only exchange with the unidentified man was "pointing to him to hit the button so [Brome] could leave the building." (Brome Dep. at 153.) According to plaintiff, there is no door with a plexiglass panel in the lobby of 562 West 144th Street. Moreover, he asserts that his initial contact with Detective Page 4 Minogue came as he exited the outer door of the building. (Brome Dep. at 119, 151-52.) Plaintiff maintains that he tried to wrestle free of Detective Minogue's grasp because he did not know that Detective Minogue was a police officer. (Brome Dep. 120-22.) Plaintiff claims that no drugs were recovered at the scene. (Brome Dep. at 125; Rothstein Decl. ¶ 22.)

  On January 20, 2001, the New York County District Attorney's Office ("D.A.") charged and prosecuted plaintiff with Criminal Possession of a Controlled Substance Third Degree and Resisting Arrest. (Compton Decl. Ex. L; Rothstein Decl. Ex. H; Compl. ¶¶ 9-10.) A few days later, plaintiff was indicted on both counts by a grand jury, and remained in custody. (Compl. ¶ 19; Compton Decl. Ex. D.) On March 21, 2001, plaintiff moved to suppress all tangible evidence, including the alleged narcotics. (Compl. ¶ 12; Compton Decl. Ex. N; Brome Dep. at 149.) On October 18, 2001, Justice Richter of Manhattan Criminal Court dismissed all charges on the grounds that Detective Minogue lacked probable cause to arrest Brome. (Compl. ¶ 17; Rothstein Decl. Ex. A; Compton Decl. Ex. B; Brome Dep. at 153; Pl's 56.1 11 18-19.) Approximately three weeks later, plaintiff was released from custody. (Compton Decl. Ex. A.) Plaintiff filed this action on September 16, 2002. Page 5


 I. Summary Judgment Standard

  Summary judgment must "be rendered forthwith 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). The party moving for summary judgment bears the burden of establishing "the absence of any genuine issues of material fact." Anderson v. Liberty hobby, Inc., 477 U.S. 242, 256 (1986). Any ambiguity must be resolved in favor of the non-movant, see Celotex Corp. v. Catrett, 477 U.S. 317, 330 n.2 (1986), and "all justifiable inferences are to be drawn in his favor." Liberty Lobby, 477 U.S. at 255. If the moving party meets its initial burden, the non-movant must do "more than simply show that there is some metaphysical doubt as to material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1996). The non-movant must "set forth specific facts showing that there is a genuine issue for trial," Fed.R.Civ.P. 56(e), and must produce evidence that would permit a rational juror to render a verdict in his favor. See Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1223-24 (2d Cir. 1994). Page 6

 II. False Arrest and False Imprisonment

  Defendants seek summary judgment on plaintiff's false arrest and false imprisonment claims. In New York, false arrest and false imprisonment claims are considered "synonymous causes of action" requiring satisfaction of the same elements. Sepulveda v. City of New York, No. 01 Civ. 3054 (DC), 2003 WL 21673626, at *3 (S.D.N.Y. July 17, 2003); accord Boyd v. City of New York, 336 F.3d 72, 76 n.6 (2d Cir. 2003) ("As goes false arrest, so goes [plaintiff's] false imprisonment claim.")-"[To] prevail on a false arrest claim, a plaintiff must show that (1) defendant intended to confine him, (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." Broughton v. State of N.Y., 37 N.Y.2d 451, 456 (1975); see also Boyd, 336 F.3d at 75 ("The elements of false arrest and malicious prosecution under § 1983 are `substantially the same' as the elements under New York law. Therefore, the analysis of the state and the federal claims is identical.") (internal quotation omitted). When a warrantless arrest is at issue, as in this case, it is presumptively unlawful. Broughton, 37 N.Y.2d at 458. The presumptive unlawfulness of such an arrest, "coupled with [a] plaintiff's evidence of intentional, unprivileged, nonconsensual Page 7 confinement" are sufficient to state a claim for false arrest or false imprisonment. Broughton, 37 N.Y.2d at 459.

  If, however, "there was probable cause for the arrest, then a false arrest claim will fail." Boyd, 336 F.3d at 75; accord Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996) (probable cause "constitutes justification and is a complete defense to an action for false arrest"); Broughton, 37 N.Y.2d at 456 (defendant bears burden of justifying warrantless search by raising the affirmative defense of probable cause). "[P]robable cause to arrest exists when the officers have 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 arrested has committed or is committing a crime." Weyant, 101 F.3d at 852; see also Illinois v. Gates, 462 U.S. 213, 244 n. 13 (1983) (probable cause requires only a "probability or a substantial chance of criminal activity, not an actual showing of such activity"); Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 128 (2d Cir. 1997) (once a police officer reasonably believes he has probable cause, the officer is "not required to explore and eliminate every theoretically plausible claim of innocence before making an arrest."). A judicial finding of probable cause may be based "on the totality of circumstances" faced by the officer at the time of the arrest. Gates, 462 U.S. at 230. Page 8

  There are material questions of fact concerning whether Detective Minogue had probable cause to arrest plaintiff. Plaintiff claims that he never possessed drugs on the night of January 19, 2001, that no drugs were recovered from the scene, and that he never had any meaningful contact with the unidentified Hispanic male. (Brome Dep. at 123, 125; Rothstein Decl. ¶ 22.) In addition, plaintiff's contention that there was no plexiglass panel in the lobby door is bolstered by testimony in the criminal proceeding from: (1) Francisco. Gonzalez, a private investigator who photographed the lobby of the building in July 2001 and found no plexiglass-paneled door; and (2) Hector Almonte, the building's superintendent, who testified that the plexiglass door was removed a few years earlier. (Rothstein Decl. ¶¶ 9, 10.)*fn2 These are paradigmatic questions of fact that preclude summary judgment on plaintiffs false arrest and false imprisonment claims. See, e.g., Curry v. City of Syracuse, 316 F.3d 324, 333 (2d Cir. 2003) (in denying summary judgment where officer's version of arrest was contradicted by plaintiff's, noting that "credibility assessments, choices Page 9 between conflicting versions of the events, and the weighing of evidence are matters for the jury, not for the court on a motion for summary judgment"); Ricciuti, 124 F.3d at 129-30 (denying summary judgment where material question of fact exist as to whether circumstances of arrest were falsified by officers); Weyant, 101 F.3d at 855 ("The weighing of the evidence and the determination as to which version of the events to accept are matters for the jury.").

  Alternatively, defendants maintain that probable cause to arrest plaintiff existed because of plaintiff's status as a parole violator for whom a retaking warrant had been issued. Specifically, defendants contend that plaintiff's arrest and imprisonment did not deprive him of "rights, privileges or immunities secured by the Constitution or laws of the United States" because plaintiff's status as a parole violator itself deprived him of the right to be free from unreasonable seizure. See Anderson v. Corall, 263 U.S. 193, 196 (1923) (violating parole has the legal effect of conferring "status and rights . . . analogous to those of an escaped convict"). While a parolee's Fourth Amendment projections are diminished as compared with other citizens, see, e.g., Mornssey v. Brewer, 408 U.S. 471, 480 (1972), defendants offer no authority to support their contention that an outstanding retaking warrant retroactively endows an arrest with probable cause solely on the basis of the Page 10 violator's status at the time of arrest. Defendants' reliance on United Stares v. Polito, 583 F.2d 48 (2d Cir. 1978), is unavailing.

  In Polity, the Second Circuit held that parole violators for whom warrants have been issued have no Fourth Amendment protections because their seizure is "not an arrest at all but merely a retaking of an already incarcerated individual for return to the institution." 583 F.2d at 55, However, there is a crucial distinction between Detective Minogue and the arresting officer in Polito. In Polito, the arresting officer knew that defendant was a parole violator because of a "wanted poster" in the bank. 583 F.2d at 50-51. Thus, the Polito court expressly held that the standard for authorizing a local police officer to execute a retaking warrant is probable cause, not merely the arrestee's status as a violator:

Where a warrant for retaking a parolee has been issued by the United States Parole Commission and remains outstanding, and where local law enforcement officers have probable cause to believe that an individual is the person being sought, those officers may detain that person for the time necessary to contact federal officials and effect the transfer of that person into federal custody so that the warrant may be properly executed.
Polito, 583 F.2d at 56 (emphasis added).

  In contrast, Detective Minogue concedes that he was unaware of both the retaking warrant and plaintiff's status as a Page 11 violator at the time of arrest. (Minogue Dep. at 62.) Accordingly, under Polito defendants cannot make a showing that Detective Minogue had probable cause to arrest plaintiff solely on the basis of the existence of an outstanding retaking warrant.*fn3

  Finally, defendants argue that plaintiff's suppression motion in the criminal proceeding operates as a concession as a matter of law that Brome had a possessory interest in the drugs. More particularly, defendants argue that by filing a motion to suppress, plaintiff must have "by necessity" established standing and, therefore, acknowledged "an affirmative claim of ownership (or possession) of seized property or a significant Page 12 possessory interest in a premises searched." (Def.'s Mot. at 8-9.) Defendants' argument is without merit.

  It is undisputed that plaintiff never expressly claimed a possessory interest in the drugs allegedly recovered at the scene. (Brome Dep. at 125; Rothstein Decl. ¶¶ 20-24.) It is also undisputed that plaintiff failed to allege standing as a precursor to the suppression hearing before Justice Richter, and that the D.A. neither challenged plaintiff's right to be heard nor appealed the state court decision. (Rothstein Decl. ¶ 27.) Therefore, defendants must rely entirely on the novel assertion that plaintiff "implicitly acknowledged" possession through the singular act of filing a suppression motion.

  In United States v. Salvucci, the Supreme Court abolished automatic standing for suppression, and established that a possessory interest, by itself, is insufficient to confer standing. 448 U.S. 83, 91-92 (1980) (noting that "property rights are neither the beginning nor the end of [the] inquiry"); see also People v. Wesley, 73 N.Y.2d 351, 358 n.1 (1989) (V1CPL 710.60, which allocates to the defendant seeking suppression of evidence the initial burden of showing sufficient grounds for the motion. . . such grounds necessarily include a showing of standing — that is, a legitimate expectation of privacy in the searched premises."). Given a criminal defendant's burden to Page 13 prove a legitimate privacy interest to gain standing, defendants' contention that the mere filing of a suppression motion confers standing, and that standing alone proves possession, does not withstand scrutiny.*fn4 While plaintiff concedes that he may not have had standing to move for suppression, this concession is immaterial to defendants' argument concerning "implicit acknowledgement." *fn5 Accordingly, Detective Minogue's motion for summary judgment on plaintiff's false imprisonment and false arrest claims is denied.

 III. Malicious Prosecution

  Defendants also move for summary judgment on plaintiffs malicious prosecution claim, asserting that the prosecutor exercised independent-discretion. To establish New York state and § 1983 claims of malicious prosecution, a plaintiff must allege the following elements: (1) institution or Page 14 continuation of a criminal proceeding by the defendant against the plaintiff; (2) termination of such proceeding in the plaintiff's favor; (3) malice in commencing the proceeding; and (4) lack of probable cause for the proceeding. Savino v. City of New York, 331 F.3d 63, 72 (2d Cir. 2003); Marshall v. Sullivan, 105 F.3d 47, 50 (2d Cir. 1996). In addition, a § 1983 claim requires that the prosecution be "effected pursuant to legal process," and involve a deprivation of liberty under the Fourth Amendment or a violation of a constitutional or statutory right. Singer v. Fulton County Sheriff, 63 F.3d 110, 116-17 (2d Cir. 1995).

  Further, although there is a presumption that a prosecutor exercises independent judgment in deciding whether to initiate and continue a criminal proceeding, an arresting officer may be held liable for malicious prosecution "when a police officer creates false information likely to influence a jury's decision and forwards that information to prosecutors." Ricciutti, 124 F.3d at 130. Finally, there exists a presumption of probable cause where a plaintiff is indicted by a grand jury. Green v. Montgomery, 219 F.3d 52, 60 n.2 (2d Cir. 2000). This presumption of probable cause may be overcome "by evidence establishing that the police witnesses have not made a complete and full statement of facts either to the Grand Jury or to the District Attorney, that they have misrepresented or falsified Page 15 evidence, that they have withheld evidence or otherwise acted in bad faith." Colon v. City of New York, 60 N.Y.2d 78, 82 (1983).

  It is undisputed that plaintiff satisfies the first and second element of a malicious prosecution claim by virtue of his indictment and the eventual dismissal of charges. Further, because the existence of probable cause is a question of fact in this case, see supra Section II, the fourth element of plaintiff's malicious prosecution claim is satisfied for purposes of summary judgment as there exists a material question of fact. In addition, the absence of probable cause generally creates an inference of malice, Ricciuti, 124 F.3d at 131, thus creating a triable issue of fact as to the third element of plaintiffs malicious prosecution claim. Finally, because a question of fact exists as to Detective Minogue's account of the events leading up to plaintiff's arrest, see supra Section II, plaintiff has created a triable issue of fact to rebut both the presumption of an independent prosecutorial decision and the presumption of probable cause arising from the indictment. See Ricciutti, 124 F.3d at 130 ("[W]hen a police officer creates false information likely to influence a jury's decision and forwards that information to prosecutors, he violates the accused's constitutional right to a fair trial, and the harm occasioned by such an unconscionable action is redressable in an action for damages under 42 U.S.C. § 1983."); Savino, 331 F.3d Page 16 at 73 (finding that "bad faith conduct by police in securing an indictment rebuts the presumption of probable cause arising from that indictment, on a claim for malicious prosecution."). Accordingly, Detective Minogue's motion to dismiss plaintiffs' malicious prosecution claim is denied."*fn6

 IV. Qualified Immunity

  Detective Minogue moves for summary judgment on the grounds of qualified immunity, arguing that it was objectively reasonable for him, during the course of his duties as a police officer, to arrest plaintiff for possession of a controlled substance. Qualified immunity shields police officers not only from judgment but also from suit, as long as "(1) their conduct does not violate clearly established constitutional rights, or (2) it. was objectively reasonable for them to believe their acts did not violate those rights." Marshall v. Sullivan, 105 F.3d 47, 53 (2d Cir. 1996). Even officers who conduct unlawful warrantless searches may be entitled to qualified immunity where "it was objectively reasonable for the officer to believe that Page 17 probable cause existed, or, officers of reasonable competence could disagree on whether the probable cause test was met." Golino v. City of New Haven, 950 F.2d 864, 870 (2d Cir. 1991).

  If, however, "no officer of reasonable competence could have made the same choice in similar circumstances," then the shield of immunity is lost. Lennon v. Miller, 66 F.3d 416, 420-21 (2d Cir. 1995). Immunity is also lost where "a deprivation of liberty results from the initial act of obtaining evidence known to be false, at least . . . where the same person who fabricated the evidence foreseeably used it." Zahrey v. Coffey, 221 F.3d 342, 348 (2d Cir. 2000).

  Because a question of fact exists concerning probable cause to arrest plaintiff, and Brome has come forward with specific facts rebutting Detective Minogue's description of the events surrounding the arrest, see supra Section II, Detective Minogue's motion for summary judgment on qualified immunity grounds is denied. See Marshall, 105 F.3d at 52 (denying summary judgment on qualified immunity grounds where plaintiff presented evidence from which "a rational juror could infer . . . that [plaintiff] was arrested not because of any reasonable belief . . . that there had been unlawful conduct. . . but rather because of improper conduct on [the arresting officer's] part."); Weyant, 101 F.3d at 858 (holding that where officers' version of facts is "sharply disputed, . . the matter of the Page 18 officers' qualified immunity therefore cannot be resolved as a matter of law.").

 V. Monell Claims

  Finally, the City moves for summary judgment on plaintiff's Monell claims against it for failure to train and supervise Detective Minogue. Although plaintiff includes the City as a defendant in all of his claims in this action, his allegations against the City are all derivative of a failure to train and supervise claim. Therefore, this Court's decision on plaintiff's failure to train and supervise cause of action conclusively resolves all outstanding claims against the City in this action.

  Under § 1983, a municipality may be held liable for constitutional deprivations that arise from an official city policy, practice, or custom. Monell v. City of New York, 436 U.S. 658, 690-91 (1978). "However, a municipality's liability under Section 1983 cannot be based upon the principle of respondeat superior." Morris v. Lindau, 196 F.3d 102, 111 (2d Cir. 1999). Instead a municipality "can be held liable only if the alleged unconstitutional action implements an official policy or custom [of the municipality], whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy." Morris, 196 F.3d at 111 (internal Page 19 quotation omitted) (alteration in original); accord Monell, 436 U.S. at 690-91. Additionally, "the plaintiff must establish a causal connection, an affirmative link, between the policy and the deprivation of [his] constitutional rights." L.B. v. Town of Chester, 232 F. Supp.2d 227, 237 (S.D.N.Y. 2002). The plaintiff bears the burden of establishing municipal liability. Vippolis v. Village of Haverstraw, 768 F.2d 40, 44 (2d Cir. 1985).

  In this case, plaintiff presents no evidence that Detective Minogue's alleged unconstitutional actions implement any official policy or custom that caused him to be subjected to a denial of a constitutional right. See Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983); accord Monell, 436 U.S. at 690-91. Indeed, plaintiff offers nothing but conclusory allegations of the City's failure to train and supervise Detective Minogue, a fifteen-year veteran of the N.Y.P.D. with no prior Civilian Complaint Review Board actions. See Dwares v. City of New York, 985 F.2d 94, 100 (2d Cir. 1993) ("[S]imple recitation that there was failure to train municipal employees does not suffice to allege that municipal custom or policy caused plaintiff's injury."); see also City of Oklahoma City v. Tuttle, 471 U.S. 808, 820 (1985) (inferences about inadequate training or a policymaker's state of mind are insufficient to connect a particular officer's conduct to the city, thereby Page 20 establishing municipality liability). Further, plaintiff's allegation that Detective Minogue lacked probable cause to arrest him, absent evidence of a pattern of similar conduct, is legally insufficient as "proof of a single incident of unconstitutional activity is not sufficient to impose liability . . . unless [the incident] was caused by an existing unconstitutional municipal policy, which policy can be attributed to a municipal policymaker." Tuttle, 471 U.S. at 823-24; accord Pembaur v. Cincinnatti, 475 U.S. 469, 483-84 (1986) ("[M]unicipal liability for failure to train may be proper where it can be shown that policymakers were aware of, and acquiesced in, a pattern of constitutional violations involving the exercise of police discretion."). Accordingly, the City's motion for summary judgment is granted, and all claims against it are dismissed. Page 21


  For the forgoing reasons: (1) defendant the New York City Police Department's motion for summary judgment is granted; (2) defendant Stephen Minogue's motion for summary judgment is denied; and (3) defendant the City of New York's motion for summary judgment is granted. The New York City Police Department and the City of New York are terminated as parties in this case.


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