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United States District Court, S.D. New York

July 1, 2004.

NADJARI D. REID, Plaintiff,

The opinion of the court was delivered by: RICHARD CASEY, District Judge


Nadjari D. Reid ("Plaintiff"), proceeding pro se, brings this action pursuant to 42 U.S.C. § 1983, alleging violations of his constitutional rights in connection with his arrest and criminal prosecution. By previous Order dated February 29, 2002, the claims against District Attorney Ray Marinaccio were dismissed on the ground that he was entitled to absolute immunity. As for the remaining defendant, Detective Brian Rafferty ("Defendant"), Plaintiff asserts claims for false arrest, defamation, malicious prosecution, conspiracy, and the denial of his Fifth and Sixth Amendment right to counsel. Defendant has moved for summary judgment on all claims pursuant to Rule 56 of the Federal Rules of Civil Procedure.

In a Report and Recommendation, dated March 30, 2004 ("Report"), Magistrate Judge James C. Francis determined that the claims for false arrest, conspiracy, and denial of the right to counsel should be dismissed but that the defamation and malicious prosecution claims should proceed to trial. The Report also denied Defendant's qualified immunity defense. Thereafter, Plaintiff and Defendant filed timely objections. Plaintiff objected that the Report incorrectly granted Defendant's motion for summary judgment on the false arrest, conspiracy, and right to counsel claims. Defendant objected that: (1) the City of New York and the New York City Police Department are named as Defendants in the Report's caption, although Plaintiff asserts no cognizable claims against them; (2) the defamation claim is time-barred; and (3) summary judgment should be granted on the malicious prosecution claim. Because the parties object to each portion of the Report, the Court considers these matters de novo.*fn1 See Fed.R.Civ.P. 72(b).


  On October 14, 1996, Defendant arrested Plaintiff for the murder of Danny Gonzales. (Amended Complaint [Am. Compl.] at 4; Defendant's Local Rule 56.1 Statement of Undisputed Facts [Def's Rule 56.1 Statement] ¶ 1.) At trial, the prosecution alleged that while at the Red Door Social Club on October 12, 1996, Plaintiff fatally shot Gonzales and also injured bystanders during an exchange of gunfire with one of Gonzales' friends, Jonathan Santiago.

  On the day of arrest, Plaintiff was placed in a line-up. The first witness to view him, Archie Cruz, was unable to positively identify Plaintiff as the individual who shot Gonzales. (Trial Transcript [Tr.] at 122-23.) In a second line-up, Santiago identified Plaintiff as the individual who exchanged gunfire with him. (Def.'s Rule 56.1 Statement ¶ 2.) Plaintiff alleges that thereafter Defendant escorted him outside of the police station house where a television news crew filmed him. Plaintiff also claims that on October 15, 1996, the New York Daily News published a story that defamed him. (Am. Compl. at 5-6.) On October 29, 1996, Plaintiff was indicted on charges of murder in the second degree, reckless endangerment in the first degree, and two weapons possession charges.

  During the grand jury proceedings, Cruz testified that he saw Plaintiff aim a gun at a Hispanic person and that he observed Gonzales lying on the floor next to that person. (Tr. at 209-10, 216.) However, during trial, Cruz testified that he lied to the grand jury after Defendant encouraged him to identify Plaintiff as the shooter. (Id. at 232-33, 236-43.) Cruz alleges that Defendant suggested to him that Plaintiff was going to admit to shooting Gonzales in self-defense and that to help Plaintiff, Cruz should claim that he witnessed Plaintiff act in self-defense. At trial, Cruz testified that he could not conclusively determine who shot Gonzales. (Id. at 220.)

  At the conclusion of the trial, the jury convicted Plaintiff of the reckless endangerment and possession of weapons charges, but acquitted him of murder. (Id. at 919-21.) On September 16, 1998, Plaintiff was sentenced to concurrent terms of imprisonment totaling thirteen years. (Miscellaneous Certificate of Disposition dated March 9, 2001, Ex. E to Def's Rule 56.1 Statement.) On July 13, 2000, Plaintiff initiated this action; on September 8, 2000, he filed the Amended Complaint. Plaintiff's original complaint named the City of New York, the New York City Police Department ("N.Y.P.D."), the New York County District Attorney's Office, District Attorney Robert Morgenthau, Assistant District Attorney Ray Marinaccio, and Detective Brian Rafferty as defendants. However, Plaintiff's Amended Complaint only asserted claims against Marinaccio and Rafferty. DISCUSSION


I. City of New York, N.Y.P.D., the New York County District Attorney's Office, and District Attorney Morgenthau
  Defendant notes that the City of New York and the N.Y.P.D. are improperly named as defendants on the docket listing for the case. In an Order dated July 13, 2000, Chief Judge Michael B. Mukasey dismissed all claims against the City of New York and the N.Y.P.D. (Order dated July 13, 2000, at 1-2.) Judge Mukasey explained that to sustain a claim against a municipal defendant under § 1983, Plaintiff must demonstrate the existence of an officially adopted policy or custom that caused injury and a direct causal connection between that policy or custom and the denial of a constitutional right, but that he failed to do so. See Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658, 682 (1978). Judge Mukasey therefore dismissed the claims against the City and the N.Y.P.D. without prejudice.

  Although Defendant has not objected to this fact, the docket sheet also indicates that District Attorney Robert Morgenthau and the District Attorney's Office remain defendants. In the July 13, 2000 Order, Judge Mukasey also explained that respondeat superior or vicarious liability claims cannot be asserted under § 1983. Because Plaintiff had not alleged that District Attorney Morgenthau had any direct involvement in denying Plaintiff's civil rights, Judge Mukasey also dismissed the claims against him.

  Judge Mukasey allowed Plaintiff to replead to properly allege claims against these defendants. In the Amended Complaint, Plaintiff did not assert claims against any of them. Because New York City, the N.Y.P.D., the District Attorney's Office, and District Attorney Morgenthau are no longer defendants, the Court has not included them in the caption of this Memorandum & Order. Moreover, the Clerk of Court is directed to list them as "terminated" on the docket.

  II. False Arrest

  Plaintiff objects to the Report's recommendation that the false arrest claim be dismissed as time-barred. The date on which a false arrest claim accrues is determined by considering "whether the prosecution could have obtained a conviction without using the evidence tainted by the false arrest. If not, the arrest accrues when the prosecution ends. Chen Yong Wang v. United States, No. 01 Civ. 1326, 2002 WL 441190, at *1 (S.D.N.Y. Mar. 20, 2002) (quotation marks and citation omitted). In other words, if evidence obtained as a result of the arrest was necessary for a conviction, then the cause of action for false arrest does not accrue until the prosecution is terminated. Plaintiff objects that his false arrest claim is not time-barred, because an unidentified informant provided information that lead to his arrest. Moreover, Plaintiff contends that the clock should not begin to run on his false arrest claim until the prosecution is complete because Defendant has produced no information about the original identification. Defendant asserts that Plaintiff's claim for false arrest should be dismissed because it was based on probable cause. (Memorandum of Law in Support of Defendant's Rafferty's Motion for Summary Judgment [Def.'s Mem.] at 3.) Although probable cause constitutes a complete defense to a claim for false arrest, it is not possible to find probable cause without knowing "the pertinent events and knowledge of the officers." Singer v. Fulton County Sheriff, 63 F.3d 110, 118 (2d Cir. 1995); see also Weyant v. Okst, 101 F.3d 845, 853 (2d Cir. 1996).

  Despite Plaintiff's objections, the Court adopts the Report's recommendation that the false arrest claim should be dismissed as time-barred. There exists significant evidence in the trial record that was not "tainted" by the allegedly false arrest. Defendant maintains that despite Plaintiff's allegations that Defendant coerced Cruz, Santiago initially identified Plaintiff as the shooter in a line-up on October 14, 1996. (Def.'s Mem. at 8.)

  Liberally interpreted, Plaintiff appears to argue that the lineup identification should be excluded as evidence obtained as "fruit of the poisonous tree." While it is well-established that evidence obtained by the exploitation of a primary illegality is excluded as the fruit of the poisonous tree, Santiago's in-court identification was not tainted by an arrest without probable cause. When a witness' "`courtroom identification rested on an independent recollection' of [the] encounter," Davidson v. United States, No. 97 Civ. 490, 2001 WL 883122, at *7 (S.D.N.Y. Aug. 3, 2001) (quoting United States v. Crews, 445 U.S. 463, 470 (1980)), that testimony is not "infected by the allegedly illegal arrest." Davidson, 2001 WL 883122, at *7. Here, Santiago had ample opportunity to view Plaintiff during the shooting, and consequently his ability to identify him in court was not biased by an illegal arrest. Because Santiago's in-court identification occurred independently of Plaintiff's arrest, the false arrest claim accrued on the date of arrest, October 14, 1996. Therefore, the three-year statute of limitations period for Plaintiff's false arrest portion of his § 1983 claim lapsed on October 14, 1999. As Plaintiff filed this suit on July 13, 2000, the claim is time-barred. Defendant's motion for summary judgment on the false arrest claim is granted.

  III. Defamation

  In his Report, Judge Francis noted that Defendant failed to move for summary judgment with respect to Plaintiff's defamation claim. Defendant objects to this finding, stating that in his moving papers he argued that the statute of limitations barred this claim. Indeed, in a footnote Defendant did contend that Plaintiff's defamation claim was time-barred and should be dismissed. (Def.'s Mem. at 7 n. 2.) For appellate purposes, "`an argument mentioned only in a footnote [is not] adequately raised.'" United States v. Quinones, 317 F.3d 86, 90 (2d Cir. 2002) (quoting United States v. Restrepo, 986 F.2d 1426, 1463 (2d Cir. 1993)). The district courts, however, may consider such an argument. See, e.g., 1-800 Contacts, Inc. v. When, 309 F. Supp.2d 467, 493 (S.D.N.Y. 2003); Dunlop-McCullen v. Pascarello, No. 97 Civ. 0195, 2002 WL 31521012, at *12 n. 17 (S.D.N.Y. Nov. 13, 2002); Kingdom 5-KR-41, Ltd. v. Star Cruises PLC, 01 Civ. 2946, 2002 WL 1159659, at *2 (S.D.N.Y. May 31, 2002). The Court deems Defendant's argument as validly raised.

  The statute of limitations applicable to a defamation claim brought pursuant to § 1983 is three years. See Owens v. Okure, 488 U.S. 235, 237 (1989). Defendant claims to have been exposed to the television media on October 14, 1996 and that the New York Daily News published a story on him on October 15, 1996. However, he did not file this action until July 13, 2000, nearly nine months after the statute of limitations period had expired. See Shamley v. ITT Corp., 869 F.2d 167, 172 (2d Cir. 1989) (holding that the statute of limitations period for defamation begins to run on the date of the publication of the allegedly defamatory material). Therefore, Plaintiff's defamation claim is time-barred and is dismissed.

  The Court notes that even if Plaintiff timely commenced this case, the defamation claims would still fail given that Plaintiff has not adequately alleged the deprivation of a constitutional right. To bring a claim of defamation under § 1983, a plaintiff must allege a constitutional deprivation associated with the defamation. See Neu v. Corcoran, 869 F.2d 662, 665 (2d Cir. 1989). The Second Circuit has held that "`stigma' resulting from defamation by government officials did `not alone establish the proposition that reputation alone, apart from some more tangible interests such as employment, is either `liberty' or `property' by itself sufficient to invoke the procedural protection of the Due Process Clause.'" Id. at 666 (quoting Paul v. Davis, 424 U.S. 693, 701 (1976)). Instead, courts have held that "stigma plus" is required to establish a constitutional deprivation related to defamation. Neu, 869 F.2d at 667. Because Plaintiff has failed to allege any tangible interest associated with his defamation claim, he has not demonstrated a constitutional deprivation necessary for a § 1983 claim.

  IV. Malicious Prosecution

  To sustain a cause of action for malicious prosecution under § 1983, a plaintiff must show that: (1) the defendant commenced a criminal proceeding against him; (2) the prosecution ended in his favor; (3) there was a lack of probable cause for commencing the proceeding; and (4) the defendant acted with actual malice. See Murphy v. Lynn, 118 F.3d 938, 947 (2d Cir. 1997). A plaintiff charged with crimes of varying degrees of seriousness and convicted of the lesser charges may sue for malicious prosecution on the more serious claims that were terminated in his favor. See Posr v. Doherty, 944 F.2d 91, 100 (2d Cir. 1991). Defendant specifically disputes the Report's conclusions that the prosecution ended in Plaintiff's favor and that there was lack of probable cause.

  Regarding the second element, Defendant claims that Plaintiff's conviction on the reckless endangerment charge forecloses his claim for malicious prosecution on the murder charge. Defendant contends that the offenses for which Plaintiff was convicted are "intertwined with the charge of murder in the Second Degree," and that the crime of murder fully incorporates the language of reckless endangerment. (Defendant's Objection at 2.)

  Indeed, there is some overlap between the crimes of reckless endangerment and murder in the second degree. However, as the Report concluded, the offenses are quite distinct. To prove the crime of second degree murder, the prosecution must show that a criminal defendant "caused the death of another person." N.Y. Penal Law § 125.25(2). This is an element absent from the charge of reckless endangerment. See N.Y. Penal Law § 120.25. The Report observed that Plaintiff fired his weapon during two episodes: first when he allegedly shot Gonzalez and then when he and Santiago exchanged gunfire. Because the second exchange did not result in death, the murder charge can relate only to the first exchange. Although the shootings occurred on the same night and in the same location, they constituted two separate acts directed at, and potentially committed by, two separate people. Furthermore, there exists a vast disparity in the sentences for each crime. For a class A felony, such as murder in the second degree, the maximum term of an indeterminate sentence is life imprisonment. See N.Y. Penal Law § 70.00. In contrast, the maximum term for a class D felony, such as reckless endangerment, is seven years imprisonment. Id.

  The Second Circuit addressed many of the issues raised here in Janetka v. Dabe, 892 F.2d 187 (2d Cir. 1989). In that case, the plaintiff allegedly harassed a man in a store, yelled expletives, and flailed his arms when the police attempted to arrest him. See Janetka, 892 F.2d at 188. Having been convicted of disorderly conduct but acquitted of resisting arrest, he instituted a malicious prosecution action. Id. The Second Circuit reasoned that the plaintiff's acquittal satisfied the favorable termination requirement to bring a malicious prosecution action for the disorderly conduct charge because the resisting arrest charge was distinct. Id. The court reached this conclusion because the two charges involved "distinct allegations" and the "elements of each charge are different." Id.

  Applying Janetka, the Court concludes that summary judgment may not be granted on the malicious prosecution charge on the ground that the prosecution terminated in Plaintiff's favor. Plaintiff was charged for two separate acts directed at two separate people, Gonzales and Santiago. Additionally, the offenses are distinct in both their elements and level of severity. See Graebe v. Falcetta, 726 F. Supp. 36, 39 (E.D.N.Y. 1989) (finding favorable termination where the "charges arose out of two types of criminal behavior which are too distant from each other to be deemed `closely related'"), aff'd, 946 F.2d 883 (2d Cir. 1991). Therefore, the charges against Plaintiff are sufficiently distinct to permit him to pursue a malicious prosecution claim.

  Regarding the third element of a malicious prosecution claim under § 1983, Defendant disputes the Report's findings that there are factual issues as to whether Plaintiff's grand jury indictment was obtained by fraud. However, because there exists competing affidavits from Cruz and Defendant, there is, at a minimum, a factual issue that precludes granting summary judgment on the malicious prosecution claim.

  For these reasons, summary judgment is denied on the malicious prosecution claim. V. Section 1985 and Right to Counsel Claims

  The Plaintiff further makes a claim for conspiracy as a violation of 18 U.S.C. § 241 and 42 U.S.C. § 1985(2). The Report properly recommended that these claims be dismissed. First, Plaintiff lacks standing to assert claims under 18 U.S.C. § 241. See Cok v. Cosentino, 876 F.2d 1, 2 (1st Cir. 1989) (per curium) (holding that no private right of action existed under 18 U.S.C. § 241); Dugar v. Coughlin, 613 F. Supp. 849, 852 n. 1 (S.D.N.Y. 1985). Additionally, Plaintiff has not alleged sufficient facts to support a claim under 42 U.S.C. § 1985. See Dwares v. City of New York, 985 F.2d 94, 99-100 (2d Cir. 1993) (stating that § 1983 conspiracy claims must contain more than mere conclusory allegations). Therefore, Plaintiff's conspiracy claim is dismissed.

  Plaintiff also objects to the Report's conclusion that the denial of the right to counsel claim should be dismissed. Although Plaintiff does not specify whether he brings a claim for a violation of his Fifth or Sixth Amendment right to counsel, both approaches fail.

  The Fifth Amendment right to counsel only attaches when the defendant is under interrogation, either directly or through the functional equivalent of an interrogation. See Miranda v. Arizona, 384 U.S. 436, 470 (1966). However, compelled participation in a lineup is not testimonial or communicative in nature and therefore does not implicate Fifth Amendment rights to counsel. See United States v. Wade, 388 U.S. 218, 221-23 (1967).

  Meanwhile, the Sixth Amendment right to counsel does not attach until formal criminal proceedings have been initiated. See Brewer v. Williams, 430 U.S. 387, 389 (1977). Because no formal instrument had been filed before Plaintiff was placed in a lineup, the Sixth Amendment right to counsel had not yet attached. Finally, Plaintiff claims that he was denied the right to contact his family after his arrest; the right to contact one's family following an arrest is not a recognized constitutional right upon which Plaintiff may premise a § 1983 claim.

  Accordingly, Plaintiff has failed to state a violation of either the Fifth or Sixth Amendment.


  For the foregoing reasons, the Court accepts and adopts the Report as to the false arrest, malicious prosecution, conspiracy, and denial of the right to counsel claims. Although not considered in the Report, the defamation claim is time-barred. Additionally, the Clerk is directed to list the City of New York, the N.Y.P.D., the New York County District Attorney's Office, and District Attorney Morgenthau as "terminated" defendants on the docket. Accordingly, the false arrest, defamation, conspiracy, and denial of the right to counsel claims are dismissed. On the other hand, the malicious prosecution claim shall proceed to trial.

  The Court will hold a conference to schedule trial in this case on July 30, 2004 at 9:30 a.m. Counsel for Defendant is to arrange Plaintiff's telephonic attendance.

  So Ordered.

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