United States District Court, S.D. New York
July 1, 2004.
NADJARI D. REID, Plaintiff,
NEW YORK COUNTY DISTRICT ATTORNEY RAY MARRINACCIO and DETECTIVE BRIAN RAFFERTY, SHIELD # 2145, Defendants.
The opinion of the court was delivered by: RICHARD CASEY, District Judge
MEMORANDUM OPINION & ORDER
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
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
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.
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 U.com,
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
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."
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
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
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
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.