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United States District Court, S.D. New York

September 16, 2005.

THE CITY OF NEW YORK, et al., Defendants.

The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge




  Plaintiff William Gonzalez ("Gonzalez") brings this action pursuant to 42 U.S.C. § 1983 ("§ 1983"), as well the common law of New York. Gonzalez alleges, inter alia, that the City of New York ("City"), John D'Alessandro ("D' Alessandro"), Gustavo Blain ("Blain"), Richard Salonia ("Salonia"), Matthew Fallon ("Fallon") and Bernard Rosado ("Rosado") falsely arrested and maliciously prosecuted him, thereby depriving him of rights secured by the Fourth and Fourteenth Amendments to the Constitution of the United States.

  Before the Court is the application of the City, D'Alessandro and Blain (collectively, "defendants"), pursuant to Fed.R.Civ.P. 56, for summary judgment. Gonzalez opposes the application with respect to D'Alessandro but does not oppose the application with respect to the other defendants. For the reasons set forth below, I recommend that the defendants' application be granted. II. BACKGROUND

  On April 15, 1999, at about 7:00 p.m., Inoa Casilda ("Casilda"), was robbed at knifepoint in her apartment building elevator, as she returned from work. Casilda's assailant threatened to kill her and took her money and jewelry. Before the perpetrator escaped, another resident of the building, Angela Rijo ("Rijo"), entered the elevator and rode several floors with Casilda and her assailant. Rijo was unaware that a crime had just occurred. The three took the elevator to the basement, where Rijo exited. Casilda and her assailant returned to the main floor, where the assailant made his escape. Shortly thereafter, Casilda reported the crime to the police and provided them with a physical description of the robber.

  The building in which the crime occurred was equipped with four surveillance cameras. Each of these cameras was connected to a video recorder located in the building superintendent's office, that was located in the basement of the building. The cameras recorded, in condensed format of about one frame per second, days of surveillance onto a single videotape. Defendant Blaine, a New York City police officer, obtained the video recordings from the surveillance cameras within an hour of the robbery. He gave those recordings to the detective assigned to the case, defendant D'Alessandro. D'Alessandro went to the Video Production Unit of the New York County District Attorney's office to isolate still photographs from the videotape. As a result, he obtained at least three low-quality photographs depicting the face of the robber.

  On April 22, 1999, police officers showed Casilda a number of photograph arrays on a computerized "Force Field" system*fn1 at the 34th Precinct. Casilda viewed 570 photographs of individuals matching her description of her assailant. The photographs were displayed to Casilda on 95 pages, each of which contained six photographs. During this procedure, Casilda selected at least one of two photos of Gonzalez depicted on the same page, stating that she was "90% sure" that he was her assailant. According to D'Alessandro's deposition testimony, Casilda identified both photographs as depictions of her assailant. See Declaration of Rachel A. Seligman ("Seligman Declaration"), Exh. C, at 63.*fn2 On the strength of this identification, D'Alessandro issued a wanted card for the plaintiff. Thereafter, Gonzalez was arrested on May 27, 1999. Later that day, the police placed Gonzalez in a line-up. Casilda viewed the line-up and identified Gonzalez as her assailant.

  Gonzalez was arraigned in New York County Criminal Court on May 28, 1999, and held in lieu of $10,000 bail. Assistant District Attorney Melissa Bristol-Paolella ("ADA Bristol-Paolella") presented the case to a grand jury on June 1, 1999, which indicted Gonzalez for robbery in the first degree (New York Penal Law § 160.15[3]) and criminal possession of a weapon in the fourth degree (New York Penal Law § 265.01[2]). On June 16, 1999, Gonzalez was arraigned on the indictment. Gonzalez was unable to meet the bail conditions fixed for him, and spent approximately the next seven months incarcerated on Riker's Island.

  At the arraignment, the attorney representing Gonzalez in the criminal action ("criminal defense counsel"), having learned of the existence of the surveillance videotape, made the first of several demands for a copy of the tape. On October 21, 1999, criminal defense counsel received from ADA Bristol-Paolella the still photographs derived from the videotape and, on November 4, 1999, a copy of the tape itself.

  After two previous adjournments of the trial date — on which occasions the prosecution was unable to proceed due to the unavailability of the arresting officer — on November 5, 1999, the prosecution indicated that it was ready to proceed with the trial of the criminal action. However, at that time, Casilda indicated that she would be leaving the following week to visit her grandmother in Puerto Rico and would not return until November 25, 1999. As a consequence, the trial was adjourned to November 29, 1999, on the assumption that, by then, Casilda would have returned from her trip.

  Casilda did not return to New York by that date, and the prosecutor was unable to contact her. While the prosecution attempted to locate Casilda, the trial court reduced Gonzalez's bail and, subsequently, on December 14, 1999, released him on his own recognizance. On May 10, 2000, ADA Bristol-Paolella made a written recommendation to the court that the indictment be dismissed. In that document, the prosecutor concluded that since the only witness to the commission of the crime could not be located, the prosecution could not prove its case beyond a reasonable doubt. On May 17, 2000, the trial court dismissed the indictment.

  Thereafter, Gonzalez commenced the instant action. He alleges that he experienced pain and suffering as a result of: (a) his detention for approximately seven months; and (b) the state's year-long prosecution. Gonzalez contends that, had he been convicted, it would have resulted in a prison sentence of between 5 and 25 years. Gonzalez maintains, inter alia, that D'Alessandro violated his Fourth Amendment right to be free from unreasonable searches and seizures and his Fourteenth Amendment due process right to liberty, when he arrested Gonzalez without probable cause. Gonzalez also claims that D'Alessandro maliciously prosecuted him by withholding intentionally from ADA Bristol-Paolella exculpatory evidence, namely, the surveillance tape.

  In support of their application for summary judgment, the defendants have submitted, inter alia: (1) still photographs of Casilda's assailant, isolated from the surveillance videotape; (2) the page of photographs produced by the Force Field system that contained photographs of Gonzalez; and (3) still photographs of the individuals who were placed in the corporeal line-up at which Casilda identified Gonzalez as the robber. The defendants contend, inter alia, that: (a) all of Gonzalez' common law claims are barred, because he did not file a notice of claim timely; (b) Gonzalez has not stated a claim against the City upon which relief may be granted, since he has not alleged that any policy of the City was responsible for the alleged deprivations of his rights; (c) Gonzalez cannot show that the criminal action was terminated in his favor; (d) the doctrine of collateral estoppel bars Gonzalez from challenging the existence of probable cause to arrest him; (e) Gonzalez has not adduced evidence that would support all the elements of his claims against D'Alessandro; and (f) D'Alessandro is entitled to qualified immunity. The defendants also contend that certain defendants, other than D'Alessandro, were not served with the summons and complaint. Accordingly, the defendants request that the action be dismissed in its entirety.

  As noted above, Gonzalez does not oppose the defendants' application, except with respect to the § 1983 claims against D'Alessandro for false arrest and malicious prosecution. Consequently, no claims, other than the § 1983 claims against D'Alessandro will be analyzed in this writing. In opposition to those branches of the defendants' motion pertinent to D'Alessandro, Gonzalez has submitted, inter alia: (1) a copy of the videotaped recording of the robbery obtained from the surveillance camera; (2) copies of the still photographs derived from the surveillance videotape; and (3) photographs of the May 27, 1999 line-up participants.


  Section 1983 Claims against D'Alessandro

  A. Summary judgment standard

  Summary Judgment may be granted in favor of the moving party "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." Fed.R.Civ.P. 56(c); see also D'Amico v. City of New York, 132 F.3d 145, 149 (2d Cir. 1998). When considering a motion for summary judgment, "the court must view the evidence in the light most favorable to the party against whom summary judgment is sought and must draw all reasonable inferences in his favor." L.B. Foster Co. v. America Piles, Inc., 138 F.3d 81, 87 (2d Cir. 1998) (citing Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356 [1986]).

  The moving party bears the burden of showing that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2552 (1986). "[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Id. at 323, 2553 (quoting Fed.R.Civ.P. 56[c]).

  Once the moving party has satisfied its burden, the non-moving party must come forward with "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S. Ct. 2505, 2511 (1986). In order to meet this burden, the non-moving party cannot merely rely upon allegations contained in the pleadings that raise no more than "some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586, 106 S. Ct. at 1355. "The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment." Anderson, 477 U.S. at 247-48, 106 S. Ct. at 2510. The non-moving party must offer "concrete evidence from which a reasonable juror could return a verdict in his favor." Id. at 256, 2514. A genuine issue of material fact exists only if a rational trier of fact could find in favor of the non-moving party. See Matsushita, 475 U.S. at 587, 106 S. Ct. at 1356.

  B. False arrest

  Section 1983 "was intended to `[create] a species of tort liability' in favor of persons who are deprived of `rights, privileges, or immunities secured' to them by the Constitution." Carey v. Piphus, 435 U.S. 247, 253, 98 S. Ct. 1042, 1047 (1978) (quoting Imbler v. Pachtman, 424 U.S. 409, 417, 96 S. Ct. 984, 989 [1976]). The "appropriate starting point" of the inquiry is the common law of torts, but "the rules governing compensation for injuries caused by the deprivation of constitutional rights should be tailored to the interests protected by the particular right in question." Carey, 435 U.S. at 258-59, 98 S. Ct. at 1049-1050. A false arrest claim under § 1983 is predicated on the Fourth Amendment right to be free from unreasonable searches and seizures, including the right to be free from arrest absent probable cause. Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996). The elements of a false arrest claim under § 1983 are "substantially the same" as the elements of a false arrest claim under New York law. See Hygh v. Jacobs, 961 F.2d 359, 366 (2d Cir. 1992). Under New York law, "a plaintiff claiming false arrest must show, inter alia, that the defendant intentionally confined him without his consent and without justification." Weyant, 101 F.3d at 852.

  The existence of probable cause to arrest is a complete defense to a false arrest claim under § 1983. See id. "Courts evaluating probable cause for an arrest must consider those facts available to the officer at the time of the arrest and immediately before it." Lowth v. Town of Cheektowaga, 82 F.3d 563, 569 (2d Cir. 1996). In general, probable cause to arrest exists when an officer has knowledge or reasonably trustworthy information of facts and circumstances that are sufficient to warrant a person of reasonable caution to believe that the person to be arrested has committed or is committing a crime. See Dunaway v. New York, 442 U.S. 200, 208 n. 9, 99 S. Ct. 2248, 2254 n. 9 (1979); Carroll v. United States, 267 U.S. 132, 161, 45 S. Ct. 280, 288 (1925). "Once a police officer has a reasonable basis for believing there is probable cause, he is not required to explore and eliminate every theoretically plausible claim of innocence before making an arrest." Ricciuti v. New York City Transit Auth., 124 F.3d 123, 128 (2d Cir. 1997).

  Whether probable cause existed is a question that may be determined as a matter of law on a motion for summary judgment if there is no material dispute about the pertinent events and knowledge of the officers. See Weyant, 101 F.3d at 852. In an action for false arrest, the defendant has the burden of establishing that he had probable cause to make the arrest. See Raysor v. Port Auth. of New York and New Jersey, 768 F.2d 34, 40 (2d Cir. 1985). "The quantum of evidence required to establish probable cause to arrest need not reach the level of evidence necessary to support a conviction, . . . but it must constitute more than rumor, suspicion, or even a `strong reason to suspect.'" United States v. Fisher, 702 F.2d 372, 375 (2d Cir. 1983) (quoting Henry v. United States, 361 U.S. 98, 100-101, 80 S. Ct. 168, 170 (1959).

  In both New York and federal courts, identification of the alleged culprit by a purported victim of the crime will typically suffice to establish probable cause to arrest. See e.g., Minott v. City of New York, 203 A.D.2d 265, 267, 609 N.Y.S.2d 334, 336 (App. Div. 2d Dep't 1994) ("[I]nformation provided by an identified citizen accusing another individual of a specific crime is sufficient to provide the police with probable cause to arrest."). "[I]t is well-established that a law enforcement official has probable cause to arrest if he received his information from some person, normally the putative victim or eyewitness, who it seems reasonable to believe is telling the truth." Miloslavsky v. AES Eng'g Soc'y, Inc., 808 F. Supp. 351, 355 (S.D.N.Y. 1992). In the case of photograph array identifications, even where "the identification was not made with complete certainty, it [is] sufficient to establish probable cause to arrest [the person so identified] for the crimes alleged." People v. Rhodes, 111 A.D.2d 194, 488 N.Y.S.2d 821, 822 (App. Div. 2d Dep't 1985).

  Casilda identified Gonzalez as her assailant from a photograph array and then again during a corporeal line-up held approximately one month later. Casilda was "90% sure" of her initial identification of Gonzalez as the robber and, later, identified Gonzalez as her assailant, unequivocally, in a subsequent corporeal line-up. Gonzalez has not presented any evidence that D'Alessandro had any reason to doubt Casilda's identification of him as her robber.

  Gonzalez contends that because he has asserted that he is not the individual depicted in the surveillance videotaped recording or the derivative still photographs, there is a disputed question of material fact that precludes summary judgment. This is not so. As noted above, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment." Anderson, 477 U.S. at 247-48, 106 S. Ct. at 2510. The question at issue is whether Gonzalez and the individuals depicted in the pertinent photographs bear so little resemblance to one another that a reasonable trier of fact could conclude that, in light of that evidence, it was unreasonable for D'Alessandro to rely upon Casilda's identification of Gonzalez.

  Prior to Gonzalez's arrest, other than the surveillance videotape and derivative photographs, the only evidence D'Alessandro had of Gonzalez's appearance were his physical description and two photographs, each contained in the Force Field system. After Gonzalez was arrested, D'Alessandro was also able to view him in person. The only evidence in the record of the appearance of Gonzalez at the time of the corporeal line-up is a photograph, submitted by the defendants, of the line-up participants. In that photograph, Gonzalez is the individual holding a placard bearing the number "4." See Declaration of Perez, Exh. H, at 96.

  Gonzalez has not identified any physical differences between the image of the perpetrator in the surveillance videotaped recording and either the Force Field or line-up photographs of Gonzalez. The Court has reviewed the above-noted photographic evidence and perceives no differences between the pertinent photographs and videotaped recordings that would permit a reasonable trier of fact to conclude that it was unreasonable for D'Alessandro, in light of the photographic evidence, to rely upon Casilda's identification. Viewed in the light most favorable to Gonzalez, the photographic evidence could raise, at most, some doubt about whether Gonzalez is the person depicted in the surveillance video. However, a police officer need not eliminate all doubt about the guilt of a suspect before effecting an arrest; all that is required is a "reasonable basis for believing there is probable cause." See, e.g., Ricciuti, 124 F.3d at 128. Casilda identified Gonzalez in a photograph array and then again in a corporeal line-up as the person who robbed her. Unless D'Alessandro was aware of plainly contrary evidence that would make it clear that Casilda's identifications were unreliable, those identifications provided a reasonable basis for believing that there was probable cause to arrest Gonzalez.

  Gonzalez also contends that D'Alessandro nevertheless lacked probable cause to arrest him because D'Alessandro did not interview or serve a subpoena on Rijo. The plaintiff contends that doing so would have cast doubt upon his guilt. "[T]he police are not obligated to pursue every lead that may yield evidence beneficial to the accused, even though they had knowledge of the lead and the capacity to investigate it." Gisondi v. Town of Harrison, 72 N.Y.2d 280, 285, 532 N.Y.S.2d 234, 237 (1988). However, "[t]here may be extraordinary cases in which particular discrepancies are so substantive that failure to disclose them would be comparable to fraud or perjury." Id. According to Rijo's deposition testimony, she did not recognize several photographs of Gonzalez that were apparently shown to her during her deposition. Perez Declaration, Exh. D, at 30. A reasonable trier of fact could infer from this that Rijo would have provided D'Alessandro evidence tending to exculpate Gonzalez. However, there is no evidence in the record that D'Alessandro knew that Rijo would provide exculpatory evidence. Accordingly, the fact that D'Alessandro did not interview Rijo before placing Gonzalez under arrest initially or detaining him after the line-up does not, without more, provide a basis upon which to conclude that D'Alessandro lacked probable cause. As the record contains no evidence, known to D'Alessandro at the time of Gonzalez's arrest and detention, that a reasonable trier of fact could find to have clearly undermined Casilda's identification evidence, D'Alessandro is entitled to a finding that probable cause existed to arrest and detain Gonzalez. Therefore summary judgment on this claim is warranted.

  C. Malicious Prosecution

  A claim of malicious prosecution under § 1983 implicates the Fourth Amendment's proscription against unreasonable seizures. While the interests protected by a common law tort may parallel those of a constitutional right, it is only the violation of the constitutional right that is actionable and compensable under § 1983. See Singer v. Fulton County Sheriff, 63 F.3d 110, 116 (2d Cir. 1995). In order to maintain an action under § 1983, predicated on malicious prosecution, a plaintiff must demonstrate that a violation of the Fourth Amendment has occurred. See Rohman v. New York City Transit Authority, 215 F.3d 208, 215 (2d Cir. 2000). "Although § 1983 provides plaintiffs with a federal cause of action, generally we borrow the elements of the underlying malicious prosecution from state law." Washington v. Rockland, 373 F.3d 310, 315 (2d Cir. 2004). To establish a claim of malicious prosecution, a plaintiff must show that: (1) there was a sufficient post-arraignment liberty restraint to implicate his or her Fourth Amendment rights; (2) a defendant initiated a prosecution against the plaintiff; (3) the defendant lacked probable cause to believe the proceeding could succeed; (4) the defendant acted with malice; and (5) the prosecution was terminated in the plaintiff's favor. See Rohman, 215 F.3d at 215; see also Singer, 63 F.3d at 116-17.

  It is uncontested that Gonzalez suffered a sufficient post-arraignment liberty restraint and that D'Alessandro initiated a prosecution against Gonzalez. Under New York law, an indictment returned by a grand jury creates a presumption of probable cause for the purpose of defending against a claim of malicious prosecution. See Green v. Montgomery, 219 F.3d 52, 60 (2d Cir. 2000). However, that presumption may be rebutted, by evidence that the indictment was a product of fraud, perjury, the suppression of evidence, or some other police conduct undertaken in bad faith. See Bernard v. United States, 25 F.3d 98, 104 (2d Cir. 1994). Alternatively, the presumption "`can be overcome by a showing by claimant that the conduct of the police deviated so egregiously from acceptable police activity as to demonstrate an intentional or reckless disregard for proper procedures.'" Richards v. City of New York, No. 97 Civ. 7990, 2003 WL 21036365 at *14 (S.D.N.Y. May 7, 2003) (quoting Harris v. State, 302 A.D.2d 716, 717, 756 N.Y.S.2d 302, 303 [App. Div. 3rd Dep't 2003]).

  With respect to the third element that must be established to prevail upon a claim for malicious prosecution, Gonzalez contends that D'Alessandro's alleged withholding of the surveillance videotape from ADA Bristol-Paolella and from the grand jury rebuts any presumption of probable cause created by his indictment. However, it must be remembered that the law presumes that "[w]here law enforcement authorities are cooperating in an investigation, . . . the knowledge of one is presumed shared by all." Illinois v. Andreas, 463 U.S. 765, 772 n. 5, 103 S. Ct. 3319, 3324 n. 5 (1983). A police officer is not liable for malicious prosecution on this basis unless there is evidence that he misled the prosecuting attorney. See Townes v. City of New York, 176 F.3d 138, 147 (2d Cir. 1999); Williams v. City of New York, No. 02 Civ. 3693, 2003 WL 22434151, at *6 (S.D.N.Y. Oct. 23, 2003). ("Once a criminal defendant has been formally charged, the chain of causation between the officer's conduct and the claim of malicious prosecution is broken by the intervening actions of the prosecutor, thereby abolishing the officer's responsibility for the prosecution."). Furthermore, "the prosecution maintains broad discretion in presenting [its] case to the Grand Jury and need not seek evidence favorable to the defendant or present all of their evidence tending to exculpate the accused." People v. Mitchell, 82 N.Y.2d 509, 515, 605 N.Y.S.2d 655, 658 (1993). "[T]he police and prosecutors cannot be said to have improperly concealed evidence every time the plaintiff is able to show that they could have done more or could have disclosed more. What is required is proof that the police conduct deviated egregiously from statutory requirements or accepted practices applicable in criminal cases." Gisondi, 72 N.Y.2d at 285, 532 N.Y.S.2d at 237.

  In order to rebut the presumption of probable cause created by his indictment and the presumption that ADA Bristol-Paolella was aware of any evidence known to D'Alessandro, Gonzalez contends that D'Alessandro misled ADA Bristol-Paolella by not providing her access to the surveillance videotape. However, the only evidence Gonzalez offers in support of that contention is the deposition testimony of ADA Bristol-Paolella, who said that she could not remember when she had first seen the videotape, and the deposition testimony of D'Alessandro, who said that he did not follow the usual procedures for storing and recording the existence of the videotape. Without more, this does not demonstrate that ADA Bristol-Paolella was unaware of the contents of the surveillance videotape before she presented Gonzalez's case to the grand jury.

  More significantly, Gonzalez presents no evidence that ADA Bristol-Paolella would have chosen not to prosecute Gonzalez had she been aware of the surveillance videotape's contents. Indeed, ADA Bristol-Paolella continued to prosecute Gonzalez for seven months after she provided the videotape to Gonzalez's criminal defense counsel — and thus at least seven months after she had gained access to the videotape.

  The defendants contend that Gonzalez also has not presented evidence that would satisfy the fourth element of a malicious prosecution claim, malice. Malice in this context means commencing a criminal action due to "a wrong or improper motive, something other than a desire to see the ends of justice served." Lowth, 82 F.3d at 573. Gonzalez has not offered any evidence that any of D'Alessandro's alleged acts or omissions were motivated by a wrong or improper motive.

  With respect to the fifth element of the malicious prosecution claim, the defendants contend that Gonzalez has not provided evidence that he received a favorable termination in his underlying criminal case. "Where a prosecution did not result in an acquittal, it is generally not deemed to have ended in favor of the accused, for purposes of a malicious prosecution claim, unless its final disposition is such as to indicate the accused's innocence. Fulton v. Robinson, 289 F.3d 188, 196 (2d Cir. 2002). Where criminal proceedings are terminated in a manner that does not establish either guilt or innocence, that is without a decision on the merits, "the plaintiff must show that the final disposition is indicative of innocence." Russell v. Smith, 68 F.3d 33, 36 (2d Cir. 1995).

  Gonzalez has not presented evidence that the criminal proceedings against him were terminated for any other reason than the prosecution's inability to secure Casilda's participation at the trial. Nothing in ADA Bristol-Paolella's recommendation for dismissal or in the transcript of the proceeding at which the indictment was dismissed suggests that Gonzalez was innocent of the charged offense. Accordingly, dismissal of the indictment against Gonzalez as a consequence of the prosecution's inability to locate Casilda is not a favorable termination for purposes of a malicious prosecution claim.

  Inasmuch as Gonzalez has not presented evidence that supports three of the five elements of his malicious prosecution claim, D'Alessandro is entitled to summary judgment on that claim.

  D. Qualified Immunity

  D'Alessandro contends that the doctrine of qualified immunity shields him from suit for the two claims discussed above. The doctrine of qualified immunity shields "government officials performing discretionary functions . . . from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known," Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738 (1982), or insofar as it was objectively reasonable for them to believe that their acts did not violate those rights. See Anderson v. Creighton, 483 U.S. 635, 641, 107 S. Ct. 3034, 3039-40 (1987); Lennon v. Miller, 66 F.3d 416, 423, 425 (2d Cir. 1995). The doctrine of qualified immunity may shield a government official from personal liability in a § 1983 action.

  Even if probable cause to arrest is ultimately found not to have existed, an arresting officer is still entitled to qualified immunity from liability in a suit for damages if he can establish that he had "arguable probable cause" to arrest and cause the criminal prosecution of the plaintiff. Arguable probable cause exists "if either (a) it was objectively reasonable for the officer to believe that probable cause existed, or (b) officers of reasonable competence could disagree on whether the probable cause test was met." Golino v. City of New Haven, 950 F.2d 864, 870 (2d Cir. 1991); see also Caldarola v. Calabrese, 298 F.3d 156, 162 (2d Cir. 2002). Summary judgment on the basis of qualified immunity is appropriate when "the only conclusion a rational jury could reach is that reasonable officers disagree about the legality" of the arrest under the circumstances. Lennon, 66 F.3d at 421.

  As discussed above, D'Alessandro is entitled to a finding that there was probable cause to arrest and prosecute Gonzalez. A fortiori, there was also arguably probable cause to do the same. D'Alessandro's arrest of Gonzalez and his subsequent role in Gonzalez's prosecution were acts performed by D'Alessandro in his official capacity as a government employee. Accordingly, D'Alessandro is also entitled to qualified immunity from suit on the above-noted claims, and is entitled to summary judgment on that basis.


  For the foregoing reasons, I recommend that the defendants' motion for summary judgment be granted.


  Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Barbara S. Jones, 40 Foley Square, Room 2103, New York, New York 10007, and to the chambers of the undersigned, 40 Foley Square, Room 540, New York, New York 10007. Any requests for an extension of time for filing objections must be directed to Judge Jones. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Hermann, 9 F.2d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).


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