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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 ...

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