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United States District Court, S.D. New York

November 12, 2004.


The opinion of the court was delivered by: SHIRA SCHEINDLIN, District Judge



  William Washington, proceeding pro se, brings this action under section 1983 of Title 42 of the United States Code ("section 1983") seeking damages for false arrest, wrongful imprisonment and malicious prosecution.*fn1 Washington alleges that his Fourth Amendment rights were violated on April 16, 2002, when Police Officer Steven Milutinovic ("P.O. Milutinovic") arrested him at the Port Authority Bus Terminal in New York City (the "Bus Terminal") for robbery and criminal possession of stolen property.*fn2 After trial, Washington was acquitted of the robbery charge but was found guilty of grand larceny in the fourth degree. The Port Authority of New York and New Jersey (the "Port Authority")*fn3 and P.O. Milutinovic now move for summary judgment. For the following reasons, the motion is granted.

  II. BACKGROUND*fn4 The mission of the Port Authority is to develop terminal, transportation and other facilities of commerce within the Port of New York District, which includes the Bus Terminal.*fn5 P.O. Milutinovic is a police officer employed by the Port Authority at the Bus Terminal.*fn6 On April 16, 2002, at the Bus Terminal, P.O. Milutinovic arrested Washington for the theft of William Carellis' wallet.*fn7 Abdoulaye Sahko, a witness who claimed he observed Washington steal Carellis' wallet, held Washington until P.O. Milutinovic arrived.*fn8 On June 14, 2002, a grand jury indicted Washington for robbery in the third degree and grand larceny in the fourth degree.*fn9 On October 31, 2002, Washington was convicted of grand larceny in the fourth degree after a full trial.*fn10 Washington was sentenced to twenty years to life in prison as a persistent felony offender.*fn11

  Washington claims that his Fourth Amendment rights were violated when P.O. Milutinovic arrested him at the Bus Terminal for robbery and criminal possession of stolen property.*fn12 Washington claims that he should only have been charged with petit larceny, a misdemeanor, because the stolen wallet found in his possession contained only $90 in cash.*fn13 Washington asserts that P.O. Milutinovic knew that the robbery arrest was a "fraud" but nonetheless detained him and initiated a criminal proceeding.*fn14 Washington seeks compensatory damages from both defendants.*fn15


  A. Summary Judgment

  Summary judgment is permissible "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law."*fn16 "An issue of fact is `genuine' if `the evidence is such that a jury could return a verdict for the nonmoving party.'"*fn17 A fact is material when "it `might affect the outcome of the suit under the governing law.'"*fn18 The party seeking summary judgment has the burden of demonstrating that no genuine issue of material fact exists.*fn19 In turn, to defeat a motion for summary judgment, the non-moving party must raise a genuine issue of material fact.*fn20 To do so, he "`must do more than simply show that there is some metaphysical doubt as to the material facts,'"*fn21 and he "`may not rely on conclusory allegations or unsubstantiated speculation.'"*fn22 "If the evidence presented by the non-moving party is merely colorable, or is not significantly probative, summary judgment may be granted."*fn23 In this regard, "[t]he `mere existence of a scintilla of evidence' supporting the non-movant's case is also insufficient to defeat summary judgment."*fn24

  B. When a Motion for Summary Judgment Is Unopposed

  When the non-moving party "`chooses the perilous path of failing to submit a response to a summary judgment motion, the district court may not grant the motion without first examining the moving party's submission to determine if it has met its burden of demonstrating that no material issue of fact remains for trial.'"*fn25 If the movant does not meet its burden of production, then the court must deny summary judgment even if the non-movant does not oppose the motion.*fn26 Moreover, the court may not rely solely on the movant's statement of undisputed facts contained in its Rule 56.1 statement.*fn27 The court must be satisfied that the movant's assertions are supported by the evidence in the record.*fn28


  A. False Arrest

  New York law provides the frame of reference for the instant action.*fn29 Under New York law, false arrest is synonymous with false imprisonment.*fn30 To establish a cause of action for false arrest or false imprisonment, a plaintiff must show that "(1) the defendant intended to confine him, (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not consent to the confinement, and (4) the confinement was not otherwise privileged."*fn31 If a person is validly convicted of the crime for which he was arrested, he is barred from bringing a claim for false arrest because the conviction is "conclusive evidence of the good faith and reasonableness of the officer's belief in the lawfulness of the arrest."*fn32 In Heck v. Humphrey, the Supreme Court held that in order to recover damages under section 1983 for false arrest where there has been a conviction, a plaintiff must first show that the conviction or sentence has been reversed on direct appeal or otherwise declared invalid.*fn33

  A grand jury indicted Washington for both robbery in the third degree and grand larceny in the fourth degree. This indictment alone creates a presumption of probable cause.*fn34 Although Washington was not convicted of the more serious robbery charge, he was convicted of the grand larceny charge, which is also a felony. Because Washington has offered no evidence, nor even alleged, that his conviction has been overturned or declared invalid, his conviction establishes that P.O. Milutinovic had probable cause for his arrest.

  Further, Washington concedes that he could have been arrested for petit larceny, a misdemeanor.*fn35 However, an arrest is valid if an officer has probable cause to believe that the suspect has committed any crime, including a misdemeanor.*fn36 Similarly, under New York law, a police officer may make a warrantless arrest if he has reasonable cause to believe that the suspect has committed a "crime,"*fn37 which New York law defines as either "a misdemeanor or a felony."*fn38 Because Washington acknowledges that P.O. Milutinovic had probable cause to arrest him for a misdemeanor, Washington's arrest was valid. Consequently, Washington's false arrest claim against the Port Authority and P.O. Milutinovic must be dismissed. B. Malicious Prosecution

  In order to prevail on a section 1983 claim against a state actor for malicious prosecution, a plaintiff must establish the elements of a malicious prosecution claim under state law.*fn39 To prove malicious prosecution under New York law, a plaintiff must show: (1) the defendant either commenced or continued a criminal proceeding against him; (2) that the proceeding terminated in plaintiff's favor; (3) that there was no probable cause for the criminal proceeding; and (4) that the criminal proceeding was instituted with actual malice.*fn40 The Heck v. Humphrey requirement — that a section 1983 plaintiff show that his conviction was overturned or otherwise declared invalid — also applies to a malicious prosecution claim.*fn41 However, in Janetka v. Dabe, the Second Circuit held that a defendant convicted of one offense but acquitted of another during the same proceedings may bring a malicious prosecution claim with respect to the acquitted offense if the two charges are "distinct offenses involving distinct allegations."*fn42 In that case, the court held that the severity and the distinctiveness of the charge for which the plaintiff was convicted has to be compared with the charges for which plaintiff was acquitted in determining whether a malicious prosecution claim could go forward with respect to the acquitted charges.*fn43

  Washington was tried for robbery in the third degree and grand larceny in the fourth degree. Both charges are felonies, which is significant because Washington was sentenced to twenty years to life as a persistent felony offender.*fn44 The elements of each charge are quite similar. The robbery charge consists of forcibly stealing property.*fn45 The grand larceny charge consists of stealing property by taking it from the person of another.*fn46 Although Washington was acquitted on the robbery charge, the grand larceny charge was based on virtually identical allegations. Accordingly, even with the acquittal, Washington cannot meet the requirement that the criminal proceeding terminated in his favor.

  Further, Washington's conviction establishes probable cause for his arrest. Washington offers no evidence of malice on the part of either the Port Authority or P.O. Milutinovic. Malicious prosecution requires the showing of actual malice, defined as "a wrong or improper motive, something other than a desire to see the ends of justice served."*fn47 Washington asserts that "P.O. Milutinovic arrested [Washington] with malice for purposes of a malicious prosecution in order to receive a collar for a felony . . . for self gain a [sic] malice."*fn48 This assertion has no evidentiary support, particularly since Washington was convicted of a felony. As such, there is no genuine issue of material fact because Washington offers nothing more than mere speculation to support his claim of malicious prosecution. Consequently, Washington's claim of malicious prosecution must be dismissed. C. Qualified Immunity

  "Qualified immunity protects government officials from the `costs of trial' and `broad reaching discovery' by shielding them from liability `insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'"*fn49 "[W]hether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the `objective legal reasonableness' of the action . . . assessed in light of the legal rules that were `clearly established' at the time it was taken."*fn50 As explained by the Second Circuit:

[E]ven where the plaintiff's federal rights and the scope of the official's permissible conduct are clearly established, the qualified immunity defense protects a government actor if it was objectively reasonable for him to believe that his actions were lawful at the time of the challenged act.*fn51
"The objective reasonableness test is met — and the defendant is entitled to immunity — if `officers of reasonable competence could disagree' on the legality of the defendant's actions."*fn52 Qualified immunity protects "all but the plainly incompetent or those who knowingly violate the law."*fn53

  Here, even if P.O. Milutinovic's actions were not supported by probable cause, they were objectively reasonable under the circumstances. At his deposition, Washington admitted to having Carellis' wallet in his possession at the time of the incident.*fn54 He also stated that both Carellis and an eyewitness told P.O. Milutinovic that Washington had taken Carellis' wallet.*fn55 In light of the information possessed by P.O. Milutinovic at the time, it was objectively reasonable for him to arrest Washington and charge him with robbery and possession of stolen property. Accordingly, P.O. Milutinovic is entitled to qualified immunity which is an alternative basis to dismiss Washington's claims of false arrest and malicious prosecution against him. D. The Port Authority's Liability

  It is well established that a municipality cannot be held liable under section 1983 on the theory of respondeat superior.*fn56 The Supreme Court has held:

[A] local government may not be sued under [section] 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under [section] 1983.*fn57
Where a complaint fails to allege that the governmental agency has directly inflicted an injury, a plaintiff must demonstrate: 1) the existence of a municipal policy or custom; and 2) the existence of a casual connection between that policy or custom and the deprivation of the plaintiff's constitutional rights.*fn58

  As discussed earlier, P.O. Milutinovic did not deprive Washington of any constitutional right. Because Washington does not allege that the Port Authority inflicted any direct injury upon him, he has no claim against the Port Authority. Moreover, even if there had been a deprivation of his constitutional rights, Washington does not allege a connection between a Port Authority policy or custom and P.O. Milutinovic's actions. Consequently, Washington's claims against the Port Authority must be dismissed.


  For the reasons stated above, defendants' motion for summary judgment is granted. The Clerk of the Court is directed to close this motion (# 17 on the docket sheet) and this case.


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