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United States District Court, S.D. New York


The opinion of the court was delivered by: DENISE COTE, District Judge


Plaintiff pro se Victor Phillips ("Phillips") brought this action on July 22, 2002. He subsequently filed a first amended complaint on September 3, 2002, and a second amended complaint (the "Complaint") on June 6, 2003. The Complaint alleges that Phillips was falsely arrested, maliciously prosecuted, harassed and abused by Detective Joseph Eppolito ("Detective Eppolito"), Undercover Officer #6003 (the "Undercover Officer"), former Assistant District Attorney John Balestriere ("Balestriere"), the New York City Police Department, and the Manhattan South Narcotics Division, apparently in violation of Title 42, United States Code, Section 1983 ("Section 1983").

An initial conference was held on September 26, 2003 and attended by Phillips. Balestriere's motion to dismiss was granted on March 16, 2004, on the ground that Balestriere was entitled to absolute prosecutorial immunity.*fn1 Phillips did not oppose the motion to dismiss, but has communicated with this Court on several occasions during the course of this litigation. Most recently, Phillips sent a letter to this Court dated June 24, stating that he had visited this Court's Pro Se Office to gain access to paperwork related to this action but was turned away and that he had subsequently retained Andrew J. Spinnell as counsel. An Order issued July 1 informed Phillips that he would be considered to proceed pro se until a notice of appearance was filed by his attorney. No notice of appearance has been filed.

  The remaining defendants filed a motion for summary judgment on July 19. Included in the papers that defendants served on Phillips is a "Notice to Pro Se Litigant Opposing Summary Judgment," which states, inter alia, that his failure to respond to the defendants' motion for summary judgment could result in the dismissal of his complaint. Phillips did not oppose the defendants' motion.


  The following facts relevant to this motion are set forth in the defendants' Rule 56.1 Statement and are supported by admissible evidence. On the evening of April 24, 2001, the Undercover Officer approached Phillips on the corner of West 41st and Eighth Avenue in Manhattan. The Undercover Officer asked Phillips if he was "working," to which Phillips responded, "Yeah, my man is right here. Walk down this way." The Undercover Officer followed Phillips a short distance, during which time Phillips told the Undercover Officer to "have the money ready."

  As Phillips and the Undercover Officer approached a man standing at a telephone booth, later identified as Ronald Anderson ("Anderson"), the Undercover Officer saw Anderson hand a woman two clear bags containing crack cocaine in exchange for money. Anderson asked the Undercover Officer, "You got the money?" and sold him three clear bags containing crack cocaine in exchange for thirty dollars. The Undercover Officer left the location and gave a "positive buy sign" to a second undercover officer (the "Second Undercover Officer") who had observed the transaction. The Second Undercover Officer radioed this information to the rest of the police field team. Phillips and Anderson were arrested and Detective Eppolito, the assigned arresting officer, processed Phillips' paperwork.

  Phillips was charged with Criminal Sale of a Controlled Substance and was incarcerated at the Rikers Island Correctional Facility ("Riker's Island"). Phillips alleges that he contracted tuberculosis while at Riker's Island*fn2 An indictment against Phillips was filed on May 16, 2001, but the charges were dismissed on November 8, 2001.


  Summary judgment may not be granted unless the submissions of the parties taken together "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(c), Fed.R. Civ. P. The moving party bears the burden of demonstrating the absence of a material factual question, and in making this determination the court must view all facts in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). When the moving party has asserted facts showing that the non-movant's claims cannot be sustained, the opposing party must "set forth specific facts showing that there is a genuine issue for trial," and cannot rest on the "mere allegations or denials" of the movant's pleadings. Rule 56(e), Fed.R. Civ. P.; accord Burt Rigid Box, Inc. v. Travelers Property Cas. Corp., 302 F.3d 83, 91 (2d Cir. 2002).

  Where, as here, the nonmoving pro se party has failed to submit papers in opposition to the defendants' motion, summary judgment should not be "granted automatically." Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996); see also Vermont Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004). Rather, summary judgment may be granted as long as the plaintiff has received notice that failure to file an opposition may result in dismissal of his case and the Court is satisfied that the undisputed facts "show that the moving party is entitled to a judgment as a matter of law." Champion, 76 F.3d at 486 (quoting Rule 56(c), Fed.R. Civ. P.).

  To establish a claim for false arrest pursuant to Section 1983, "a plaintiff must show that the defendant intentionally confined him without his consent and without justification." Escalera v. Lunn, 361 F.3d 737, 743 (2d Cir. 2004) (citing Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996)). A claim for false arrest fails, therefore, when the arresting officer had probable cause to make the arrest. Escalera, 361 F.3d at 743. "Probable cause to arrest exists when the arresting officer has 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." Id. (citation omitted). The existence of probable cause is measured as of the moment of arrest, and is not affected by a later dismissal of the charges. Ricciuti v. New York City Transit Authority, 124 F.3d 123, 128 (2d Cir. 1997); see Michigan v. DeFillippo, 443 U.S. 31, 36 (1979).

  Phillips received notice from the defendants that his failure to oppose this motion for summary judgment could result in the dismissal of his claim. The undisputed evidence demonstrates that on the evening of April 24, 2001, Phillips informed the Undercover Officer that he could purchase drugs from Anderson, accompanied the Undercover Officer to Anderson's location, and told the Undercover Officer to have money ready to purchase the drugs. The evidence shows that after the Undercover Officer purchased three bags of crack cocaine from Anderson, a Second Undercover Officer who had observed the transaction followed Phillips and directed his arrest. Phillips' actions on April 24, as observed by the Undercover Officer and Second Undercover Officer and relayed to the field team, were sufficient to lead a person of reasonable caution to believe that Phillips committed a crime and therefore sufficient to demonstrate probable cause for his arrest. This showing of probable cause defeats Phillips' claim for false arrest.*fn3 Conclusion

  The defendants' motion for summary judgment is granted. The Clerk of Court shall enter judgment for the defendants and shall close the case.


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