United States District Court, E.D. New York
July 21, 2004.
RUDI RIVAS, Plaintiff,
SUFFOLK COUNTY, SUFFOLK COUNTY DISTRICT ATTORNEY'S OFFICE, JAMES CATTERSON, Individually and as District Attorney for Suffolk County, SUFFOLK COUNTY POLICE DEPARTMENT, JOHN KUMIEGA, and JAMES RIVERA, Defendants.
The opinion of the court was delivered by: ARTHUR SPATT, District Judge
MEMORANDUM OF DECISION AND ORDER
In a complaint filed on January 27, 1995, the plaintiff, acting
pro se, alleged that he was arrested on December 11, 1991 for
the crime of attempted murder in the second degree. Rivas
remained in the Suffolk County Correctional Facility for
approximately one year until his release on bail. The district
attorney eventually dismissed the charges against the plaintiff
on November 17, 1993. In the original complaint, the plaintiff
contends that the Suffolk County Police Department lacked
probable cause for his arrest, and that Suffolk County was
negligent in failing to adequately oversee the police
On January 15, 2000, this Court issued an order granting leave
to the plaintiff to serve an amended complaint. This amended
complaint sharpened his original complaint and set forth three
causes of action: first, a cause of action for false arrest under
42 U.S.C. § 1983 against Suffolk County Police Officers James
Rivera and John Kumiega, on the grounds that Rivera and Kumiega
participated in the arrest of the plaintiff; second, a cause of
action sounding in malicious prosecution alleging that Rivera and
Kumiega engaged in a conspiracy with Suffolk County District
Attorney James Catterson and Assistant District Attorney Briant
Grauer to obtain an indictment of the plaintiff by means of
fraudulent documents and false testimony; and third, a New York
State cause of action alleging intentional infliction of
In the amended complaint, Rivas alleges that defendants Rivera
and Kumiega "presented to the said Suffolk County Grand Jury
prevaricated (sic) and fraudulently contrived documents . . .
(and) did cause the plaintiff herein (Rudi Rivas) to be falsely
and unconstitutionally indicted by that said Suffolk Grand Jury."
The plaintiff has persistently complained of not being
represented by counsel and has made numerous motions for the
appointment of pro bono counsel. In an order dated July 30, 2002,
the Court determined, sua sponte, that counsel should be
appointed to represent the plaintiff. Unfortunately, the Court's
efforts to obtain counsel were unsuccessful. In an order dated
June 2, 2004, the Court reported:
The Court attempted to retain counsel for the
plaintiff by presenting the case to two different
attorneys. Neither attorney accepted the assignment
for varying reasons. The plaintiff now moves for
appointment of counsel. However, the plaintiff is
advised that the Court, after a substantial effort,
has been unable to retain an attorney willing to
represent the plaintiff. Accordingly, the plaintiff's
motion for appointment of counsel is DENIED.
II. THE TRIAL
On Monday, July 12, 2004, a jury was selected. Following the
empaneling of the jury, they were adjourned to Thursday, July 15,
2004, for the commencement of the trial. Also, on July 12, 2004,
after the jury was recessed, the Court entered into an extended
discussion of the issues with the plaintiff Rudi Rivas and
counsel for the defendants. The plaintiff does not speak, read or
understand English, and all communications with him were done by
way of Spanish interpreters.
At that time, the Court advised the plaintiff that the filing
of an indictment in the attempted murder charge was presumptive
evidence of probable cause in both the Section 1983 false arrest
and Section 1983 malicious prosecution causes of action. The
Court further advised Rivas that, in order to prevail and
overcome the consequences of the indictment, he would have to
produce evidence that the indictment was procured by fraud,
perjury, the suppression of evidence or other police conduct
showing bad faith. In answer to the Court's question, the
plaintiff stated that the events took place so long ago that he
did not remember what occurred. In addition, he stated that he
had no witnesses to substantiate his case. At that time, the
plaintiff seemed somewhat uncertain as to whether he would
On the adjourned date, Thursday, July 15, 2004, the Court again
explained that law with regard to the indictment and its
presumptive evidence of probable cause. Again, the plaintiff
seemed uncertain as to whether he would testify and once more
stated that he had no witnesses. The jury was then brought into
the courtroom, and the oath was given to them. The Court then
gave the jury the usual preliminary instructions including an
explanation of the dual role of a pro se plaintiff and one who
speaks only through an interpreter. The plaintiff then made an
opening statement. Defense counsel both waived opening. The Court
then asked the plaintiff to commence his case. The plaintiff
stated that he did not wish to testify. The Court excused the
jury and again gave the plaintiff the opportunity to testify. In
addition, the Court explained the consequences of the plaintiff's
failure to testify; namely, that the complaint would be dismissed
and he would lose his case. After several equivocal moments, the
plaintiff finally stated that he would not take the witness
The Court then rendered an oral decision dismissing both
federal Section 1983 causes of action and the complaint in its
entirety. This written decision is being made to clarify the
Court's rulings and to complete the record.
A. The Standards
Federal Rules of Civil Practice ("FRCP") 50(a) provide for a
judgment as a matter of law:
If during a trial by jury a party has been fully
heard on an issue and there is no legally sufficient
evidentiary basis for a reasonable jury to find for
that party on that issue, the court may determine the
issue against that party and may grant a motion for
judgment as a matter of law against that party. . . .
In this case, as stated above, the jury was empaneled;
preliminary instructions were given to the jury; and the
plaintiff pro se made an opening statement. The plaintiff then
declined to take the witness stand and offered no witnesses or
exhibits in support of his causes of action. Accordingly,
pursuant to FRCP 50(a), the Court must determine all the issues
raised in the plaintiff's complaint against him and grant the
defendants' motion for judgment as a matter of law and dismiss
the complaint. However, to complete the record the Court will
record its ruling on the merits of the causes of action raised by
the plaintiff in his complaint.
B. As to the Intentional Infliction of Emotional Distress
Cause of Action
Prior to the jury selection, in open Court on July 12, 2004,
the Court dismissed the New York State common law cause of action
for intentional infliction of emotional distress on two grounds.
First, no notice of claim was filed against any of the municipal
defendants at any time. Second, liability may be imposed for the
intentional infliction of emotional distress "only where the
conduct has been so outrageous in character, and so extreme in
degree, as to go beyond all possible bounds of decency, and to be
regarded as atrocious, and utterly intolerable in a civilized
community." Murphy v. American Home Products, 58 N.Y.2d 293,
303 (quoting Restatement [Second] of Torts § 46, comment d); see
Howell v. New York Post, 81 N.Y.2d 115.
Thus, to prevail under this tortious cause of action:
[i]t has not been enough that the defendant has acted
with an intent which is tortious or even criminal, or
that he has intended to inflict emotional distress,
or even that his conduct has been characterized by
`malice,' or a degree of aggravation which would
entitle the plaintiff to punitive damages for another
Restatement (second) of Torts § 46. cmt. d (1965); See also,
Stuto v. Fleishman, 64 F.3d 820, 827 (2d Cir. 1999). Assuming
the truth of all the allegations in the complaint, the facts in
this case do not rise to the level of the extreme and outrageous
In addition, after reviewing the six prior orders issued in
this case, the Court found that, in an order dated January 15,
2000 this cause of action has already been dismissed. The Court's
January 15, 2000 order reads in pertinent part:
The plaintiff also asserts a claim of intentional
inflection of emotional distress. Defendant Suffolk
County alleges that this claim is barred as the
plaintiff did not timely file the notice of claim
required by N.Y. Gen. Mun. L. § 50-e. That statute
(a) In any case founded upon tort where a notice of
claim is required by law as a condition precedent to
the commencement of an action or any special
proceeding against a public corporation . . . the
notice of claim . . . shall be served in accordance
with the provisions of this section within ninety
days after the claim arises.
The defendants contend that the plaintiff has failed
to serve the required notice of claim, and the
plaintiff has not denied such contentions in his
reply papers. In the absence of such a filing, the
plaintiff's tort claim for intentional infliction of
emotional distress against the County and its
agencies and employees in their official capacities
must be dismissed.
Washington Square Post # 1212 v. City of New York,
808 F. Supp.2d 264
C. As to the Section 1983 False Arrest Cause of Action
According to the Second Circuit a "§ 1983 claim for false
arrest, resting on the Fourth Amendment right of an individual to
be free from unreasonable seizures, including arrest without
probable cause, is substantially the same as a claim for false
arrest under New York law." Weyant v. Okst, 101 F.3d 845, 852
(2d Cir. 1996).
To establish a claim for false arrest a plaintiff must prove,
inter alia, that his confinement was not otherwise privileged.
Singer v. Fulton County Sheriff, 63 F.3d 110, 118 (2d Cir.
1995); Bernard v. United States, 25 F.3d 98, 102 (2d Cir.
1994); Broughton v. State, 37 N.Y.2d 451, 456, 373 N.Y.S.2d 87,
93, 310 (1975). If the arresting officer has probable cause, the
confinement is privileged. Decker v. Campus, 981 F. Supp. 851,
856 (S.D.N.Y. 1997) ("[i]f there existed probable cause at the
time of the arrest, the arrest is `privileged,' and the
individual has not constitutional or statutory claim against the
officer who made the arrest.")
Probable cause or reasonable cause exists where facts and
circumstances within the officer's knowledge and of which he had
reasonably trustworthy information are sufficient in themselves
to warrant a person of reasonable caution in the belief that an
offense has been committed by the person under inquiry. Brinegar
v. United States, 338 U.S. 160, 175-76, 93 L.Ed. 1879, 69 So.
Ct. 1302 (1949); Curley v. Village of Suffern, 268 F.3d 65 (2d
Cir. 2001); Singer, 63 F.3d at 118; Golino v. New Haven,
950 F.2d 864, 870 (2d Cir. 1991), cert. denied, 505 U.S. 1221,
120 L.Ed.2d 902, 112 S.Ct. 3032 (1992). Whether the probable cause
standard has been met in a particular case is determined by
reference to the "totality of the circumstances." Bernard, 25
F.3d at 102 (quoting Illinois v. Gates, 462 U.S. 213, 231,
76 L.Ed.2d 527, 103 S.Ct. 2317 (1983)).
The existence of probable cause is a complete defense to a
false arrest claim, even where the plaintiff was ultimately
acquitted of the criminal charges. See Weyant, 101 F.3d at 852
(citing Bernard, 25 F.3d at 102). In this case, it is
significant that probable cause is presumed when a grand jury has
handed down an indictment. See Bernard, 25 F.3d at 104. In
cases in which the presumption of probable cause arises from an
indictment, the plaintiff can overcome the presumption "by a
showing that the indictment was procured by `fraud, perjury, the
suppression of evidence or other police conduct undertaken in bad
faith." Bernard, 25 F.3d at 104; see also Green v.
Montgomery, 219 F.3d 52, 59 (2d Cir. 2000).
Here, the plaintiff claims that he was falsely arrested.
However, it appears from the complaint that after the plaintiff
was arrested he was subsequently indicted by the grand jury.
Thus, probable cause is presumed. See Bernard, 25 F.3d at 104;
Goluco 905 F.2d at 870.
At the trial, the plaintiff produced no evidence that the
indictment was procured by fraud, perjury, the suppression of
evidence or other police conduct taken in bad faith which led to
the filing of the indictment. In fact, the plaintiff produced no
evidence of any kind. The indictment therefore stands as probable
cause for the arrest, as a matter of law. Accordingly, the Court
grants the defendants' motions dismissing the Section 1983 false
arrest cause of action.
D. As to the Section 1983 Malicious Prosecution Cause of
The plaintiff contends that he was maliciously prosecuted for
the crime of attempted murder in the second degree. He was
indicted for this crime and the indictment was ultimately
dismissed because the victim-complainant had apparently
disappeared and could not be located.
1. Probable Cause
In order to prevail on a § 1983 claim against a state actor for
malicious prosecution, a plaintiff must show a violation of his
rights under the Fourth Amendment, see, e.g. Murphy v. Lynn,
118 F.3d 938, 944 (2d Cir. 1997), cert. denied, 522 U.S. 1115
(1998), and establish the elements of a malicious prosecution
claim under state law, see, e.g., Russell v. Smith, 68 F.3d 33,
36 (2d Cir. 1995); Janetka v. Dabe, 892 F.2d 187, 189 (2d Cir.
Under New York law, "[t]he elements of an action for malicious
prosecution are (1) the initiation of a proceeding, (2) its
termination favorably to plaintiff, (3) lack of probable cause
and (4) malice." Colon v. City of New York, 60 N.Y.2d 78, 82,
468 N.Y.S.2d 453, 455 (1983). Liability for the New York common
law tort of malicious prosecution also gives rise to liability
under 42 U.S.C. § 1983. See, e.g., Cook v. Sheldon, 41 F.3d 73,
As with false arrest, a showing of probable cause
will defeat the malicious prosecution claim. The
existence of probable cause is a complete defense to
a claim of malicious prosecution in New York. See
Colon, 60 N.Y.2d at 82, 568 N.Y.S.2d at 455
(discussing malicious prosecution claims). An
indictment before a grand jury
creates a presumption of probable cause that may only be rebutted
by evidence that the indictment was procured by "fraud, perjury,
the suppression of evidence or other police conduct undertaken in
bad faith." Colon, 60 N.Y.2d at 88, 468 N.Y.2d at 456. As
recently stated by the Second Circuit in Boyd v. City of New
York, 336 F.3d 72
, 76 2d Cir. 2003:
A presumption of probable cause is created, however,
by a grand jury's indictment. Colon, 60 N.Y.2d at
82. The presumption is rebuttable, and may be
overcome by evidence establishing that the police
witnesses "have not made a complete and full
statement of facts . . . that they have
misrepresented or falsified evidence . . . or
otherwise acted in bad faith." Id. at 82-83. "If
plaintiff is to succeed in his malicious prosecution
action after he has been indicted, he must establish
that the indictment was produced by fraud, perjury,
the suppression of evidence or other police conduct
undertaken in bad faith." Id. at 83.
In an illustrative malicious prosecution case, Theodore
Jean-Mary v. The City of New York, 234 A.D. 21515, 651 N.Y.S.2d 925
(2d Dept. 1996), the plaintiff recovered a one million dollar
verdict. The Second Department reversed and dismissed the
Concerning the need to establish the absence of
probable cause," a Grand Jury indictment creates a
presumption of probable cause" (Carthens v. City of
New York, 168 A.D.2d 408, 409; see, Colon v. City of
New York 60 N.Y.2d 78), which "may be overcome only by
evidence establishing that the police witnesses have
not made a complete and full statement of facts
wither to the Grand Jury or to the District Attorney,
that they have withheld evidence or otherwise acted
in bad faith" (Colon v. City of New York, supra, at
83, citing Lee v. City of Mount Vernon, 49 N.Y.2d 1041)
. In the case before us the prosecutor presented
proof to a Grand Jury which then returned an
indictment against the defendant. The plaintiff
failed to proffer evidence sufficient to overcome the
presumption of probable cause, and therefore failed
to establish a prima facie case of malicious
prosecution. Accordingly, the defendants post-trial
motion to set aside the verdict should have been
granted and the complaint dismissed.
As stated above, here, there was no such evidence of fraud,
perjury or suppression of evidence before the grand jury,
presented nor has the plaintiff in any way, indicated that such
evidence is available for this trial. Here, the jury was selected
and Rivas conceded on the record that he has no such exculpatory
evidence to place before this jury.
Again, the presumption of probable cause based upon a grand
jury indictment is "so strong that it may only be overcome by
evidence demonstrating that the defendants engaged in fraud,
perjury, the suppression of evidence or other police conduct
undertaken in bad faith." Dukes v. City of New York,
879 F. Supp. 335, 341-42 (S.D.N.Y. 1995) (quoting Bernard, 25 F.3d
In the absence of any evidence that the defendants or any
other officers or prosecutors acted in bad faith or gave
perjured evidence before the grand jury or without any other
exculpatory evidence, or documentary evidence of any kind, no
reasonable juror could find that Rivas could overcome the
presumption of probable cause that arises from his indictment.
Because the existence of probable cause is a complete defense to
a claim of malicious prosecution, the defendants are entitled to
judgment dismissing this Section 1983 malicious prosecution
3. Favorable Termination
In a Section 1983 malicious prosecution cause of action, the
plaintiff must prove that the proceeding terminated in his favor,
commonly known as the "favorable termination" factor. Ricciuti
v. N.Y.C. Transit Auth., 124 F.3d 123, 130 (2d Cir. 1997);
O'Brien v. Alexander, 101 F.3d 1479, 1484 (2d Cir. 1996).
As stated in Murphy v. Wynn, 118 F.3d 938, 948 (2d Cir.
1997), favorable termination in this context means that "its
final disposition is such as to indicate the innocence of the
accused." See, e.g., Restatement § 660 comment a; O'Brien v.
Alexander, 101 F.3d 2479, 2486-87 (2d Cir. 1996) (discussing
cases); Russell v. Smith, 68 F.3d at 36 ("In the absence of a
decision on the merits, the plaintiff must show that the final
disposition is indicative of innocence."); MacFawn v. Kresler,
88 N.Y.2d 859, 860, 644 N.Y.S.2d 486, (whether "the final
disposition of the proceeding involves the merits and indicates
the accused's innocence" (citing Hollender)); Hollender v.
Trump Village Cooperative, Inc, 58 N.Y.2d 420, 426,
461 N.Y.S.2d 765, 768, 448 N.E.2d 432 (1983) (quoting Restatement §
660 comment a)); Halberstadt v. New York Life Insurance Co.,
194 N.Y. 1, 10-11, 86 N.E. 801, 803-04 (1909).
An affirmative demonstration of innocence is not required. What
is required is a showing that the basis for dismissal was not
inconsistent with innocence. In this case, after a jury was
selected, the Assistant District Attorney advised the Court that
the People could not locate the victim complainant, and
therefore could not proceed. The trial judge then dismissed the
indictment. Under these circumstances, the Court finds that the
basis for this dismissal was inconsistent with innocence.
Therefore, favorable termination could not be established in this
Section 1983 malicious prosecution cause of action.
Based on the failure to file a notice of claim, and on the
merits, the plaintiffs New York State common law claim grounded
on intentional infliction of emotional distress was dismissed.
Further, based on the total failure to overcome the probable
cause thrust of the grand jury indictment for attempted murder in
the second degree, the plaintiff's Section 1983 false arrest and
malicious prosecution causes of action are also dismissed.
Accordingly, the complaint is dismissed in its entirety as to
all the defendants.
The Clerk of the Court is directed to close this case.
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