United States District Court, S.D. New York
September 8, 2005.
CLARENCE BIRTHWRIGHT and LARRY FAULKNER, Plaintiffs,
THE CITY OF NEW YORK, SERGEANT JOHN PRENDERGAST, DETECTIVE PATRICE WALLACE, DETECTIVE JOHN MUNIZ, SERGEANT BRENDAN HIGGINS, DETECTIVE ERIC LAYTON, SERGEANT RICK CABAN, DETECTIVE JEANNIE FINUCANE, LIEUTENANT KEVIN CANTWELL, SERGEANT TOMMY O'BRIEN, POLICE OFFICER MIGUEL MENARD, LIEUTENANT KEVIN CANTY, Defendants.
The opinion of the court was delivered by: CONSTANCE MOTLEY, Senior District Judge
MEMORANDUM OPINION & ORDER
Plaintiffs Clarence Birthwright and Larry Faulkner claim that
their residences at 143 West 129th Street, New York, New York
10027, were raided by five (5) to ten (10) police officers in
violation of their Fourth Amendment constitutional rights.
Plaintiffs have brought claims against the above-named officers
and the City of New York on the grounds that the police had no
probable cause to search plaintiffs' residences and arrest them,
and no reason to suspect wrongdoing. B. Procedural History
Clarence Birthwright and Larry Faulkner filed this action on
May 9, 2001. On January 31, 2002, the City of New York ("City" or
"City of New York") answered the complaint. Plaintiffs filed an
Amended Complaint on April 16, 2003, naming Sergeant John
Prendergast, Detective Patrice Wallace, Detective John Muniz,
Sergeant Brendan Higgins, Detective Eric Layton, Sergeant Rick
Caban, Detective Jeannie Finucane, Lieutenant Kevin Cantwell,
Sergeant Tommy O'Brien, Police Officer Miguel Menard, and
Lieutenant Kevin Canty as additional defendants.
The case was transferred from Judge Batts to the undersigned on
May 22, 2003. The City of New York, Sergeant John Prendergast,
Detective Patrice Wallace, Detective John Muniz, Sergeant Brendan
Higgins, Detective Eric Layton, Sergeant Rick Caban, and
Detective Jeannie Finucane filed their Answer to the Amended
Complaint on June 11, 2003.
On December 24, 2003, the City of New York, Sergeant John
Prendergast, Detective Patrice Wallace, Detective John Muniz,
Sergeant Brendan Higgins, Detective Eric Layton, Sergeant Rick
Caban, and Detective Jeannie Finucane filed a motion for summary
judgment, which is now before the Court.
At the time of the events at issue, plaintiffs were residents
of the premises located at 143 West 129th Street, which
plaintiffs maintain is a multi-unit dwelling, and defendants
contend is a private home. (Defendant's Local Rule 56.1 Statement
("Def.'s Rule 56.1 Stmt.") ¶¶ 2, 5, 8; Plaintiff's Local Rule
56.1 Opposition Statement ("Pl.'s Rule 56.1 Opp. Stmt.") ¶ 2).
The premises at 143 West 129th Street are owned by one Violet
Jordan, plaintiff Birthwright's sister. (Def.'s Rule 56.1 Stmt.
¶¶ 1, 4). Birthwright does not pay rent and has resided at 143
West 129th Street for sixty years. (Def.'s Rule 56.1 Stmt. ¶ 7).
143 West 129th Street is by outward appearance a
brownstone-style building, but inside it is comprised of units
varying in size and type. (See Wallace Dep. at 54-55; July
Birthwright Dep. at 15). The building has four stories, comprised
of nine units, yet only one mailbox and one doorbell service the
premises. (July Birthwright Dep. at 12, 14, 17, 27). The building
has two possible entrances, one at the top of a stoop leading to
the first floor, and one underneath the stoop leading to the
basement. (Id. at 12, 14, 17, 18; Reply Decl. of Katie
O'Connor, Exh. V). The basement and first floor are comprised of
one unit each, and the second and third floors have three and
four units respectively. (July Birthwright Dep. at 15). Inside,
each unit is equipped with a lock. (Id. at 12, 14, 17). Six
units contain stoves, sinks, and refrigerators, and three units
are single room occupancy that do not have kitchen facilities.
(Id. at 10-13). Birthwright's apartment, on the first floor,
has its own bathroom, and the rest of the building shares two
other bathrooms, located in the hallways on the second and third
floors. (Id. at 15). Plaintiff Larry Faulkner resides on the
second floor. (Id. at 27). Entering the building on either the
basement or the first floor, a person finds herself at once in a room or unit, (Id. at 14,
27), and not a foyer, hallway, or staircase. There are no
separate doorbells at 143 West 129th Street, only one mailbox, no
intercom system, no name plates, and no apartment numbers
indicating multiple residency. (July Birthwright Dep. at 12, 14,
17, 27, 28; Faulkner Dep. at 22, 23). Detective Wallace testified
that upon execution of the search warrant, there were different
rooms in the building, and that some were locked, and some were
not. (Wallace Dep. at 41). On the third floor, which plaintiffs
contend has four separate units, Wallace testified that one room
had "very little in it, and another room [had] some clothing or
something laying all over the place." (Wallace Dep. at 123).
Wallace further testified that none of the rooms on the third
floor had kitchen facilities, and that it appeared that no one
resided on the third floor. Id.
Detective Wallace testified in an Affidavit in Support of
Search Warrant that one JD Bubbles was using the "single family
dwelling in premises 143 West 129 Street . . . to store and sell
. . . marijuana." (Def.'s Rule 56.1 Stmt. Ex. J). Detective
Wallace testified in his Affidavit that a confidential informant
("CI") had purchased marijuana at the subject premises from JD
Bubbles on two occasions, and observed marijuana within the
premises on numerous occasions over an 11 month period preceding
these transactions. (Id.). During both purchases, while present
on the second floor of the premises, the CI observed JD Bubbles
go to another floor and return shortly thereafter with the
Additionally, Detective Wallace performed a search with the
local electric company, Consolidated Edison, in order to
ascertain the building's status as a private residence or
multi-unit dwelling. (Wallace Dep. at 19). The search turned up
one owner as well as only one resident, Violet Jordan. Id..
On June 22, 2000, based on the Affidavit in Support of Search
Warrant, Detective Wallace obtained a "no knock" search
warrant*fn1 authorizing the "search of the single family
dwelling in premises 143 West 129th Street in the County of New
York utilized by JD Bubbles and of the persons of JD
Bubbles. . . ." (Def.'s Rule 56.1 Stmt. Exh. I). The warrant was
executed on June 28, 2000. (Def.'s Rule 56.1 Stmt. ¶ 12, 15). The
search yielded, inter alia, $57,708.00, a loaded .45 caliber
handgun, a loaded .38 caliber defaced handgun, a .380 caliber
handgun, a loaded .32 caliber handgun, a precision assault rifle
with an attached clip containing 44 rounds of ammunition, drug
paraphernalia, and eighty (80) pounds of marijuana. (Id. ¶¶
19-22). $16,602.00, metal spoons, a metal cup, E-Wider rolling
papers, and a plastic bag of marijuana were recovered from
Birthwright's unit.*fn2 A bag of marijuana was recovered
from plaintiff Faulkner's unit. (Pl.'s Rule 56.1 Opp. Stmt. ¶
26). Plaintiffs were transported along with other residents Kenneth
Dickerson, Roan Bailey, and Anthony Campbell to the 28th
precinct, and subsequently placed in a holding cell together.
(Def.'s Rule 56.1 Stmt. ¶¶ 16, 27). Plaintiffs were later
transported to 100 Centre Street, where they were arraigned on
June 28, 2000. (Id. ¶ 29). Plaintiffs were charged with
criminal possession of marijuana, criminal possession of a
weapon, criminal use of drug paraphernalia, and Birthwright was
additionally charged with criminal possession of a controlled
substance. (Id. ¶¶ 30-31). According to plaintiffs, a grand
jury refused to indict them. (Pl.'s Rule 56.1 Opp. Stmt. ¶ 35).
Defendants, however, claim that all charges were dismissed.
Plaintiffs allege they were released from custody on July 13,
2000, while defendants contend plaintiffs were released July 12,
2000. (Def.'s Rule 56.1 Stmt. ¶ 36; Pl.'s Rule 56.1 Opp. Stmt. ¶
A. Standard on Summary Judgment
Under Federal Rule of Civil Procedure 56(c), summary judgment
"shall be rendered forthwith" if it is shown that "there is no
genuine issue of material fact and that the moving party is
entitled to a judgment as a matter of law." Celotex Corp. v.
Catrett, 477 U.S. 317, 323 n. 4, 106 S.Ct. 2548, 2552 n. 4
(1986). "[G]enuineness runs to whether disputed factual issues
can reasonably be resolved in favor of either party, [while]
materiality runs to whether the dispute matters, i.e., whether it
concerns facts that can affect the outcome under the applicable
substantive law." Mitchell v. Washingtonville Cent. Sch. Dist.,
190 F.3d 1, 5 (2d Cir. 1999) (internal quotations and citations
omitted). In order to prove that a genuine issue of material fact
exists, a plaintiff "may not rest upon the mere allegations or
denials of the pleading[s]," but must by affidavit or otherwise
"set forth specific facts showing that there is a genuine issue
for trial." FED. R. CIV. P. 56(e). "Conclusory statements,
conjecture or speculation by the party resisting the motion will
not defeat summary judgment." Kulak v. City of New York,
88 F.3d 63, 71 (2d Cir. 1996).
Courts must resolve all ambiguities and draw all reasonable
factual inferences in favor of the non-moving party. See Nora
Beverages, Inc. v. Perrier Group of Am., Inc., 164 F.3d 736, 742
(2d Cir. 1998). The moving party bears the initial burden of
demonstrating an absence of genuine issues of material fact.
See Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir.
1997). If the initial burden is met, the non-moving party "must
produce specific facts indicating that a genuine issue of fact
exists. If the evidence [presented by the non-moving party] is
merely colorable, or is not significantly probative, summary
judgment may be granted." Scotto Almenas, 143 F.3d 105, 114 (2d
Cir. 1998) (internal quotations and citations omitted)
(alteration in original). B. Personal Jurisdiction
Defendants maintain in their motion for summary judgment that
all claims against individual defendants Lieutenant Kevin
Cantwell, Sergeant Tommy O'Brien, Lieutenant Kevin Canty, and
Police Officer Miguel Menard should be dismissed due to lack of
Valid service of process is a prerequisite to this Court's
exercise of personal jurisdiction over defendants. Omni Capital
Int'l, Ltd. v. Rudolph Wolff & Co., 484 U.S. 97, 104,
98 L. Ed. 2d 415, 108 S. Ct. 404 (1987). Rule 4(e) of the Federal Rules of
Civil Procedure governs service of process upon individuals in
federal actions. FED. R. CIV. P. 4(e). Rule 4(e)(1) provides that
an individual may be served pursuant to the law of the forum
state. FED. R. CIV. P. 4(e)(1). § 308 of the New York Civil
Practice Law and Rules ("CPLR") governs service upon a natural
person in New York. § 308 provides, in pertinent part:
Personal service upon a natural person shall be made
. . . by delivering the summons within the state to
the person to be served; or . . . by delivering the
summons within the state to a person of suitable age
and discretion at the actual place of business,
dwelling place or usual place of abode of the person
to be served and by either mailing the summons to the
person to be served at his or her last known
residence . . ., such delivery and mailing to be
effected within twenty days of each other . . . in
such manner as the court, upon motion without notice,
directs, if service is impracticable under paragraphs
one, two and four of this section.
N.Y.C.P.L.R. § 308 (Consol. 2005). Plaintiffs have failed to meet
these requirements with respect to the aforementioned individual
officers. The record does not contain any proof that defendants
Lieutenant Kevin Cantwell, Sergeant Tommy O'Brien, Lieutenant
Kevin Canty, and Officer Miguel Menard were ever served in this
action. Plaintiffs do not address defendants' contention that
service of process was never effected upon defendants Cantwell,
O'Brien, Canty, and Menard. Further, plaintiffs did not seek the
aid of the court to effect a form of substituted service upon
these defendants pursuant to § 308(5), nor did they claim that
service was impracticable under the preceding paragraphs of §
308. N.Y.C.P.L.R. § 308 (Consol. 2005). Personal jurisdiction, a
prerequisite to this court's power to render a binding judgment
against a party, is not present as to defendants Cantwell,
O'Brien, Canty, and Menard, and all claims against them will
therefore be dismissed.
C. Execution of the warrant
Defendants first argue on summary judgment that no material
issue of fact exists as to the alleged violation of plaintiffs'
Fourth Amendment right to be secure in their homes. Defendants
claim that Detective Wallace was issued a valid search warrant by
a neutral magistrate and that defendants' conduct in executing the warrant was reasonable.
Plaintiffs argue that even if the warrant was properly obtained
and defendants reasonably believed that 143 West 129th Street was
a single-family dwelling, defendants should have realized upon
entering the building that it was a multi-unit dwelling, and
therefore that the warrant was invalid as to its execution, and
the search, at that point, should have been aborted.
Under the Warrant Clause of the Fourth Amendment, warrants that
are not based on probable cause and that do not "particularly
describe the place to be searched and the persons or things to be
seized" are prohibited. U.S. CONST. amend. IV. The purpose of the
particularity requirement is to prevent general searches.
Maryland v. Garrison, 480 U.S. 79, 84 (1987). Permitting the
search of specific areas and things for which there is probable
cause to search protects against "wide-ranging exploratory
searches the Framers intended to prohibit." Id. Where officers
discover contraband before realizing they are in the wrong
apartment, the Supreme Court has held that the officers are
"required to discontinue the search of respondent's apartment as
soon as they discover? that . . . they might be in a unit
erroneously included within the terms of the warrant." Id. at
87. The "validity of the search . . . depends on whether the
officers' failure to realize the overbreadth of the warrant was
objectively understandable and reasonable." Id. at 87-88. In
Lewis v. City of Mount Vernon, 984 F. Supp. 748 (S.D.N.Y.
1997), this court elaborated that "[t]here is no bright line rule
. . . as to what discrepancies between the premises identified in
the warrant and the premises encountered by the officers are
significant enough to alert the officers that the warrant
identifies the wrong location and to require their immediate
departure." Lewis, 984 F. Supp. at 756. "This problem arises
because information that may be sufficient to establish probable
cause may nonetheless not be accurate in all respects." Id.
There, citing the facts that the officers vacated the premises
shortly after the conclusion of the search, and that they did not
unreasonably prolong the search after they determined they were
in the wrong apartment, the court held that "there is no evidence
that the officers unreasonably continued to search after they
knew they were in the wrong apartment." Id.
In the instant case, defendants allege that there never came a
point at which the officers should have realized they were in a
multi-unit dwelling. The search was not discontinued because the
officers did not discover they were in the wrong unit or units.
Plaintiffs counter that there existed a point at which it should
have become apparent to the officers who conducted the search
that they were in a multi-unit dwelling. Plaintiffs do not argue
that the officers improperly continued the search once they
discovered they were in the wrong apartment; they argue that the
officers first should have discovered they were in the wrong
apartment, and upon that discovery that the officers would have
been obliged to discontinue the search.
Even assuming, as the court must, the truth of plaintiffs'
contention that 143 West 129th Street is a multi-unit dwelling,
the Court finds that reasonable jurors could not disagree as to
whether the execution of the search was objectively reasonable.
Here, as in Garrison, the objective facts available to the
officers at the time of the execution of the search suggested no
distinction between the residence of JD Bubbles and the premises
of 143 West 129th Street. See Garrison, 480 U.S. at 88. There
is an abundance of evidence in the record that supports the officers' conclusion that their search of the entire premises at
143 West 129th Street was not beyond the scope of the warrant and
therefore was not in violation of plaintiffs' constitutional
rights. Detective Wallace testified that the CI had purchased
marijuana from JD Bubbles at 143 West 129th Street on two
occasions. (Wallace Dep. at 16; Def.'s Rule 56.1 Stmt. Ex. J). On
each occasion, the CI went to the second floor of the premises,
which plaintiffs testified is Larry Faulkner's apartment, and
observed JD Bubbles go to another floor in the building and
return with marijuana. (Def.'s Rule 56.1 Stmt. Ex. J). The CI
further indicated to Detective Wallace, based on his observations
while inside the premises at 143 West 129th Street purchasing
marijuana and his observations on numerous occasions in the 11
preceding months, that the building was a private house. (Wallace
Dep. at 18; Def.'s Rule 56.1 Stmt. Ex. J). Detective Wallace also
performed a search with the local electric company, Consolidated
Edison, in order to ascertain the building's status as a private
residence or multi-unit dwelling. (Wallace Dep. at 19). The
search turned up one owner as well as only one resident, Violet
In United States v. Maneti, 781 F.Supp. 169, 175 (S.D.N.Y.
1991), the court upheld a warrant issued for a home containing
two apartments, which the officers believed was a single-family
home. There the court upheld the warrant even though the officers
failed to perform a search through the local electric company
that would have revealed that there were two apartments on the
premises. Id. at 175. The court stated that:
the dwelling in question displayed virtually no
outward signs of multiple occupancy. The dwelling
does not have separate visible doorbells, mailboxes,
speaking tubes, name plates, or apartment numbers to
indicate multiple residency. The few outward signs of
multiple residency that [it] does possess are
difficult to see or could be easily overlooked.
Id. at 181. Similarly, in the instant case, there are no
separate doorbells, only one mailbox, one entrance, no intercom
system, no name plates, and no apartment numbers indicating
multiple residency. (July Birthwright Dep. at 12, 14, 17, 27;
Faulkner Dep. at 23); See Maneti, at 173. Unlike in Maneti,
where the outward signs of multiple residency were difficult to
see, they do not exist at 143 West 129th Street. Indeed, there
are few, if any, indicators of multiple residency even inside
143 West 129th Street. Detective Wallace testified that upon
execution of the search warrant, there were different rooms in
the building, but that some were locked, and some were not.
(Wallace Dep. at 41). The configuration of 143 West 129th Street
does not suggest that it is a multi-unit dwelling. One enters the
premises on either the first floor or the basement floor, which
is comprised entirely of plaintiff Birthwright's or George
Keller's unit. (July Birthwright Dep. at 27). On the third floor,
which plaintiffs contend has four separate units, Wallace
testified that one room had "very little in it, and another room
[had] some clothing or something laying all over the place."
(Wallace Dep. at 123). This testimony has not been controverted
by the plaintiffs and does not suggest 143 West 129th Street is a
multi-unit dwelling. Wallace further testified that none of the
rooms on the third floor had kitchen facilities, and that it
appeared that no one resided on the third floor. Id. This
testimony has likewise not been opposed and also does not suggest
that 143 West 129th Street is a multi-unit dwelling. Plaintiffs proffer two pieces of evidence in support of their
argument that reasonable jurors could differ as to whether the
officers should have realized they were in a multi-unit dwelling
and therefore terminated their search of 143 West 129th Street.
First, plaintiffs claim "there are rooming houses in plaintiffs'
neighborhood that appear, from the outside, to be single-family
dwellings." (Pl.'s Mem. Opp. Summ. J. at 7). This fact does not
shed light on the question of whether the officers should have
realized, considering the objective facts before them upon
execution of the search warrant in question, that they were in a
multi-unit dwelling. Second, plaintiffs claim that "upon entering
143 W. 129th Street, [defendants] encountered numerous locked
doors." (Pl.'s Mem. Opp. Summ. J. at 7). Plaintiffs cite the
Deposition of Detective Patrice Wallace for this assertion. The
relevant exchange is as follows:
Q: Did you learn there were different locked
apartments or rooms in that building?
A: There were different rooms in that building, yes.
Q: Were those rooms locked?
A: Some were, some were not.
(Wallace Dep. at 41). However much "some" may be said to denote
"numerous," this element, taken alone, and especially when set
against the abundance of evidence to the contrary, does not
undermine the reasonableness of the officers' actions in this
This court finds that reasonable jurors could not disagree as
to whether the execution of the search was objectively
reasonable. Therefore, defendant's motion for summary judgment as
to plaintiff's claim of unlawful entry is granted.
D. False Arrest
A § 1983 claim for false arrest derives from the right to be
free from unreasonable search and seizure, including the right to
be free from arrest absent probable cause. Weyant v. Okst,
101 F.3d 845, 852 (2d Cir. 1996). The law of the forum state controls
the elements of a ¶ 1983 false arrest claim. Singer v. Fulton
County Sheriff, 63 F.3d 110, 118 (2d Cir. 1995). Under New York
law, a plaintiff must show that (1) the defendant intentionally
confined the plaintiff, (2) the plaintiff was aware of the
confinement, (3) the plaintiff did not consent to the
confinement, and (4) the confinement was not justified or
privileged. Hall v. City of White Plains, 185 F. Supp. 2d 293,
299 (S.D.N.Y. 2002).
Defendants maintain that the defendant officers in this case
had probable cause to arrest plaintiffs, and that therefore
plaintiffs' false arrest claim must fail.
"There can be no federal civil rights claim for false arrest
where the arresting officer had probable cause." Singer,
63 F.3d at 118 (citing Bernard v. United States, 25 F.3d 98, 102
(2d Cir. 1994). Accordingly, probable cause is a complete defense to an
action for false arrest. Jocks v. Tavernier, 316 F.3d 128,
134-35 (2d Cir. 2003). Probable cause is established "when the
arresting officer has `knowledge or reasonably trustworthy
information sufficient to warrant a person of reasonable caution
in the belief that an offense has been committed by the person to
be arrested.'" O'Neill v. Town of Babylon, 986 F.2d 646, 650
(2d Cir. 1993) (quoting Calamia v. City of New York,
879 F.2d 1025, 1032 (2d Cir. 1989)). The focus with regard to probable
cause is not on certitude, but on the likelihood of criminal
activity. See Illinois v. Gates, 462 U.S. 213, 235,
76 L. Ed. 2d 527, 103 S. Ct. 2317 (1983); Spinelli v. United States,
393 U.S. 410, 419, 21 L. Ed. 2d 637, 89 S.Ct. 584 (1969). The
establishment of probable cause requires a fact-based
determination that considers the "totality of the circumstances."
Gates, 462 U.S. at 232 & n. 7. Where there is no dispute as to
the knowledge of the officers, whether probable cause existed may
be determined as a matter of law. Weyant v. Okst, 101 F.3d 845,
852 (2d Cir. 1996).
Defendants claim that probable cause to arrest was established
here because plaintiffs "were found to be in possession of a
controlled substance, weapons, and drug paraphernalia. . . ."
(Def.'s Mem. Supp. Summ. J. at 9). The undisputed facts show that
the search of the premises at 143 West 129th Street yielded
approximately 80 pounds of marijuana, $60,000 in cash, five guns,
ammunition, and additional drugs and paraphernalia. Marijuana,
metal spoons, a metal cup, E-Wider rolling papers, and $16,602 in
cash were recovered from plaintiff Birthwright's room, and
marijuana was recovered from plaintiff Faulkner's room. Applying
the standards set forth above, it is clear that the defendant
officers possessed probable cause to arrest plaintiffs.
Plaintiffs' contention that the quantities of marijuana
discovered in plaintiffs' rooms could be classified as mere
violations are irrelevant to the determination of probable cause.
"The evidence needed to establish probable cause to justify an
arrest does not have to be such as to warrant a conviction."
People v. Miner, 42 N.Y.2d 937, 938 (1977). Rather, the
evidence must be sufficient to warrant a person of reasonable
caution in the belief that an offense has been or is being
committed by the person to be arrested. Michigan v. De
Fillippo, 443 U.S. 31 (1979). "The probable cause determination
is an objective one that pays no heed to the subjective thoughts
of the officers effectuating arrest . . . or, by extension, to
the subjective post-arrest evaluation of the lawyers defending
the validity of the arrests." Davis v. City of New York,
2005 U.S. Dist. LEXIS 10323 at *20 n. 9 (S.D.N.Y. May 25, 2005)
(citing Devenpeck v. Alford, 160 L. Ed. 2d 537, 125 S. Ct. 588,
593-94 (2004)). Upon discovering the marijuana, paraphernalia,
and a large amount of cash in plaintiffs' rooms, a person of
reasonable caution could reasonably believe that an offense had
been committed. Plaintiffs' argument concerning constructive
possession of the contraband located in other parts of the
premises is therefore moot. Accordingly, defendants' motion for
summary judgment with respect to plaintiffs' claim of false
arrest is granted.
E. Malicious Prosecution
To sustain a § 1983 claim based on malicious prosecution, a
plaintiff must demonstrate conduct by the defendant that is
tortious under state law and that results in a constitutionally cognizable deprivation of liberty. Singer v. Fulton County
Sheriff, 63 F.3d 110, 116 (2d Cir. 1995). To make out a claim
for malicious prosecution under New York State law, a plaintiff
must prove: "1) the initiation or continuation of a criminal
proceeding against plaintiff; 2) termination of the proceeding in
plaintiff's favor; 3) lack of probable cause for commencing the
proceeding; and 4) actual malice as a motivation for defendant's
actions." Russell v. Smith, 68 F.3d 33, 36 (2nd Cir. 1995). As
with a false arrest claim, the existence of probable cause
entitles the defendants to summary judgment. See Broughton v.
State, 37 N.Y.2d 451, 456-57, 373 N.Y.S.2d 87, 92-93,
335 N.E.2d 310 (1975), cert denied sub nom, 423 U.S. 929,
96 S.Ct. 277, 46 L.Ed.2d 257 (1975).
Plaintiffs satisfy the first prong, as a prosecution was
initiated against them. See Mejia v. City of New York,
119 F.Supp.2d 232, 254 (E.D.N.Y. 2000) (in the case of a warrantless
arrest, the prosecution commences at the time of the arraignment
or grand jury indictment). Although the grand jury here decided
not to indict plaintiffs, they were arrested and arraigned on
June 28, 2000. (Def.'s Rule 56.1 Stmt. ¶ 29).
Plaintiffs also satisfy the second prong because of the grand
jury's refusal to indict plaintiffs. RESTATEMENT (SECOND) OF
TORTS § 659 ("Criminal proceedings are terminated in favor of the
accused by . . . (b) the refusal of a grand jury to
indict. . . ."). Defendants assert that because the circumstances
of the outcome of the criminal proceeding do not "impl[y] a lack
of grounds for the prosecution," plaintiffs cannot show that the
proceeding terminated in their favor. (Def.'s Mem. Supp. Summ J.
at 14). "New York law does not require a malicious prosecution
plaintiff to prove her innocence, or even that the termination of
the criminal proceeding was indicative of innocence. Rather, the
plaintiff's burden is to demonstrate a final termination that is
not inconsistent with innocence." Rothstein v. Carriere,
373 F.3d 275, 286 (2d Cir. 2004) (citing Smith-Hunter v. Harvey,
95 N.Y.2d 191, 198-99 (2000); Cantalino v. Danner, 96 N.Y.2d 391,
396, 754 N.E.2d 164, 729 N.Y.S.2d 405 (2001)). The termination of
the proceeding against plaintiffs in this case was not
inconsistent with innocence. The grand jury decided not to indict
plaintiffs. Further, the outcome of the proceedings was neither
the result of a compromise to which the accused agreed, nor an
act of mercy requested or accepted by the accused, both of which
are situations in this district that are not considered
terminations in favor of the accused for purposes of a malicious
prosecution claim. Almonte v. Florio, 2004 U.S. Dist. LEXIS
335, 25-26 (S.D.N.Y. Jan. 13, 2004) (citing Posr v. Court
Officer Shield # 207, 180 F.3d 409, 418 (2d Cir. 1999). The
proceedings terminated in plaintiffs' favor.
With respect to the third prong, for a malicious prosecution
claim to stand there must be "some indication that the
authorities became aware of exculpatory evidence between the time
of the arrest and the subsequent prosecution that would undermine
the probable cause which supported the arrest." McDermott v.
City of New York, 1995 WL 347041, *5 (E.D.N.Y. May 30, 1995);
Feinburg v. Saks & Co., 56 N.Y.2d 206, 451 N.Y.S.2d 677,
436 N.E.2d 1279 (1982). See also Lowth v. Town of Cheektowaga,
82 F. 3d 563, 571-72 (2d Cir. 1996). Although plaintiffs maintain that because "defendants fabricated evidence . . .
summary judgment must be denied" (Pl.'s Mem. Opp. Summ J. at 14),
plaintiffs have not provided "any significant probative evidence
tending to support" this allegation. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 249 (1986) (citing First Nat'l Bank v.
Cities Service Co., 391 U.S. 253, 290 (1968)). "[T]he mere
existence of some alleged factual dispute between the parties
will not defeat an otherwise properly supported motion for
summary judgment; the requirement is that there be no genuine
issue of material fact." Anderson, 477 U.S. at 247-48. A party
opposing a properly supported motion for summary judgment "must
set forth specific facts showing that there is a genuine issue
for trial." FED. R. CIV. P. 56(e). Plaintiffs have introduced no
evidence to support their allegation that defendants fabricated
evidence. Because there was probable cause to arrest plaintiffs,
and plaintiffs have not introduced evidence to suggest that the
defendants had exculpatory information available to them between
the time of their arrest and arraignment, defendants had probable
cause to prosecute plaintiffs.
Because the existence of probable cause to prosecute entitles
defendants to summary judgment on this issue, see Broughton,
37 N.Y.2d at 456-57, the court need not address malice, the
fourth prong of a malicious prosecution claim. Accordingly,
defendants' motion for summary judgment as to malicious
prosecution is granted.
F. Qualified Immunity
The individual officer defendants argue that they are entitled
to qualified immunity with respect to the alleged false arrests.
Qualified immunity is "an immunity from suit rather than a mere
defense to liability." Saucier v. Katz, 533 U.S. 194, 200-01
(2001) (citing Mitchell v. Forsyth, 472 U.S. 511, 526,
86 L. Ed. 2d 411, 105 S.Ct. 2806 (1985)). The privilege is "effectively
lost if a case is erroneously permitted to go to trial." Id. It
is therefore important to resolve the issue at the earliest
possible stage of the litigation. Saucier, 533 U.S. at 200-01
(citing Hunter v. Bryant, 502 U.S. 224, 227, 116 L. Ed. 2d 589,
112 S. Ct. 534 (1991) (per curiam)). In order to determine
whether an official is entitled to qualified immunity, the court
must conduct a two-part analysis. Saucier, 533 U.S. at 201. The
threshold question is whether the facts as alleged by the
plaintiffs show that the officers' conduct violated a
constitutional right. Id. If the court determines the alleged
conduct does not violate a constitutional right, the analysis
ends. Id. If the court determines plaintiffs' alleged facts do
show a violation of a constitutional right, the court must
inquire as to whether the right was clearly established. Id.
However, "Even where the right was clearly established at the
time of the infringement, a public official is entitled to
qualified immunity if he `reasonably believed that his actions
did not violate plaintiff's rights . . . even if that belief was
mistaken.'" Lewis v. United States, 2005 U.S. Dist. LEXIS 4223,
11-12 (S.D.N.Y. Mar. 14, 2005) (citing Loria v. Gorman,
306 F.3d 1271, 1282 (2d Cir. 2002); Magnotti v. Kuntz,
918 F.2d 364, 367 (2d Cir. 1990)). "[T]he existence of probable cause
affords an officer qualified immunity from liability, as it is an
absolute defense to claims of false arrest, false imprisonment,
or malicious prosecution." Lewis, 2005 U.S. Dist. LEXIS at *11-12 (citing
Jackson v. City of New York, 2004 U.S. Dist. LEXIS 7223, No. 00
Civ. 1206, 2004 WL 895609, at *4 (S.D.N.Y. Apr. 26, 2004)).
Assuming the facts as alleged constitute a violation of
plaintiffs' constitutional rights and that those rights were
clearly established at the time of the arrests, the court has
already determined that probable cause existed for the
plaintiffs' arrest. Therefore, the defendant officers enjoyed
G. Personal Involvement of Individual Defendants
Defendants argue that plaintiffs have not sufficiently alleged
personal involvement on behalf of individual defendants Patrice
Wallace, John Muniz, John Prendergast, Brendan Higgins, Eric
Layton, Rick Caban, Jeannie Finucane, Kevin Cantwell, Tommy
O'Brien, Miguel Menard, and Kevin Canty, and that therefore, the
complaint as against them must be dismissed.
A finding of personal involvement of the individual defendants
in an alleged constitutional deprivation is a prerequisite to an
award of damages under § 1983. Feingold v. New York,
366 F.3d 138, 159 (2d Cir. 2004) (citations omitted). Plaintiffs allege in
their Amended Complaint that each of the above-named officers
"failed to investigate the circumstances surrounding plaintiffs'
illegal searches and arrests, and failed to advise prosecutors
and there was no evidence pointing to plaintiffs as having
committed any crime which would justify the searches and
arrests." (Pl.'s Am. Compl. ¶¶ 31-41). While this broad
allegation, alone, would not likely support a finding of personal
involvement, defendants admit in their Memorandum that "each of
[the named officers'] respective roles in the execution of the
search warrant is listed on the tactical plan." (Def.'s Mem.
Supp. Summ. J. at 18 n. 6). The plan to which defendants refer,
entitled "Search Warrant Plan Pre-Execution," lists under the
column "Personnel," each of the above-named individual defendant
officers and their respective assignments in the search that took
place six days later, on June 28, 2000. (Def.'s Rule 56.1 Stmt.
Exh. N). There is nothing in the record that indicates that these
defendants participated in the search other than in the manner
set forth in the plan. The court therefore finds that the
above-named defendants were personally involved in the searches
and arrests at issue. However, because the court finds that
defendants possessed probable cause to arrest and prosecute, and
that the warrant was properly executed, the question of whether
these particular individual defendants were found to have been
personally involved is rendered moot.
H. City of New York
Defendant City of New York argues that plaintiffs have not
proffered evidence showing that a custom or policy of the City
caused the alleged deprivation of plaintiffs' civil rights.
It is well settled that in a 42 U.S.C. § 1983 suit a
municipality may not be held liable on a theory of respondeat
superior. Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694
(U.S. 1978). However, a municipality may be liable for damages under § 1983
"when execution of [its] 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. . . ." Monell,
436 U.S. at 694. The plaintiff alleging constitutional harm
attributable to a municipality under § 1983 "must also
demonstrate that, through its deliberate conduct, the
municipality was the `moving force' behind the injury alleged."
Bd. of the County Comm'rs v. Brown, 520 U.S. 397, 404 (U.S.
1997) (italics in original).
There are four situations in which a municipality can be held
liable under 42 U.S.C. § 1983: (1) an officially promulgated
policy endorsed or ordered by the municipality, Pembaur v. City
of Cincinnati, 475 U.S. 469, 480, 106 S. Ct. 1292,
89 L. Ed. 2d 452 (1986); (2) a custom or practice that is so pervasive and
widespread that the municipality had either actual or
constructive knowledge of it, City of St. Louis v. Praprotnik,
485 U.S. 112, 130, 108 S. Ct. 915, 99 L. Ed. 2d 107 (1988);
Oklahoma City v. Tuttle, 471 U.S. 808, 823-24, 105 S. Ct. 2427,
85 L. Ed. 2d 791 (1985); (3) actions taken or decisions made by
the municipal employee who, as a matter of state law, is
responsible for establishing municipal policies with respect to
the area in which the action is taken, McMillian v. Monroe
County, 520 U.S. 781, 117 S. Ct. 1734, 1736, 138 L. Ed. 2d 1
(1997); Praprotnik, 485 U.S. at 129-30, 108 S. Ct. 915;
Pembaur, 475 U.S. at 480-83, 106 S. Ct. 1292; or (4) where the
failure of the municipality to train its employees rises to the
level of deliberate indifference to the constitutional rights of
others, City of Canton v. Harris, 489 U.S. 378, 385,
103 L. Ed. 2d 412, 109 S. Ct. 1197 (1989); Walker v. City of New York,
974 F.2d at 297.
Plaintiffs here have put forth no evidence establishing
liability under any of the above theories. Plaintiffs have
presented no evidence demonstrating that the City of New York
employed a custom or policy inflicting constitutional injury,
that any action was taken by a municipal employee responsible for
establishing such policies, or that the City of New York failed
to train its employees. Accordingly, plaintiffs' claim against
defendant City of New York must fail.
I. Intentional Infliction of Emotional Distress
Defendants argue that plaintiffs have failed to state a claim
for intentional infliction of emotional distress.
The common law tort of intentional infliction of emotional
distress has four elements: (1) extreme and outrageous conduct;
(2) intent to cause severe emotional distress; (3) a causal
connection between the conduct and the injury; and (4) severe
emotional distress. Bender v. City of New York, 78 F.3d 787,
790 (2d Cir. 1996). The conduct in question must be "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 society."
Martin v. Citibank, N.A., 762 F.2d 212, 220 (2d Cir. 1985)
(quoting Fischer v. Maloney, 43 N.Y.2d 553, 558,
373 N.E.2d 1215, 402 N.Y.S.2d 991 (1978)). The conduct must also be
intentionally directed at the plaintiff and lack any reasonable justification. Id.
Plaintiffs allege that, "The actions of the defendants in
arresting the plaintiffs who they knew or should have known were
not guilty of a crime, were outrageous and beyond any norms
acceptable to society." (Pl.'s Am. Compl. ¶ 57). Given the
court's finding that plaintiffs' arrests were lawful, this claim
cannot stand, for a lawful arrest is a bar to a claim for
intentional infliction of emotional distress. Sepulveda v. City
of New York, 2003 U.S. Dist. LEXIS 12289 (S.D.N.Y. July 17,
2003) (citing Csoka v. County of Suffolk, 85 F. Supp. 2d 117,
123 (E.D.N.Y. 2000). Furthermore, plaintiffs have not produced
any evidence that they suffered severe emotional distress.
Therefore, summary judgment must be granted to defendants on this
Plaintiffs here claim that defendants "acted negligently,
carelessly and recklessly in arresting an prosecuting the
plaintiffs." (Am. Compl. ¶ 61). Defendants contend that
plaintiffs' negligence claim cannot be maintained. This general
claim of negligence must be dismissed because "`where the
negligence alleged is based upon an arrest, a plaintiff must
resort to the traditional remedies of false imprisonment and
malicious prosecution and cannot recover under the broader
principles of negligence.'" Cea v. Ulster County,
309 F. Supp. 2d 321, 329 (S.D.N.Y. 2004) (quoting Pawlicki v. City of
Ithaca, 993 F. Supp. 140, 143 (N.D.N.Y. 1998)).
K. Negligent Retention and Hiring
Finally, defendants claim that plaintiffs cannot establish a
prima facie case for negligent hiring and negligent retention.
Liability under this cause of action attaches when a plaintiff
shows, along with the standard elements of negligence, "(1) that
the tortfeasor and the defendant were in an employee-employer
relationship . . ., (2) that the employer `knew or should have
known of the employee's propensity for the conduct which caused
the injury' prior to the injury's occurrence . . ., and (3) that
the tort was committed on the employer's premises or with the
employer's chattels." Ehrens v. Lutheran Church, 385 F.3d 232,
235 (2d Cir. 2004) (quoting Kenneth R. v. Roman Catholic Diocese
of Brooklyn, 229 A.D.2d 159, 654 N.Y.S.2d 791, 793 (2d Dep't
1997); citing D'Amico v. Christie, 71 N.Y.2d 76, 518 N.E.2d 896,
901-02 (1987)). Plaintiffs proffer no evidence that defendant
City of New York knew or should have known of a propensity to
commit injury on the part of any of the individual defendants,
nor that the individual defendants were retained in spite of this
knowledge. Therefore, plaintiffs claim of negligent retention and
negligent hiring cannot withstand summary judgment.
For the foregoing reasons, defendant's motion for summary
judgment is GRANTED. The clerk is directed to enter judgment for
the defendant and remove this case from the court's active
docket. SO ORDERED.
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