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WINN v. McQUILLAN

September 30, 2005.

CAROYL WINN, Plaintiff,
v.
SHANE McQUILLAN, P.O., RENEE STROM, P.O., ANTHONY GALLO, ERIC BRZOSTEK, P.O., RAYMOND W. KELLY, Commissioner, JOSE CHU, Lieutenant, JAMES PADDOCK, Sergeant, THE CITY OF NEW YORK, Defendants.



The opinion of the court was delivered by: VICTOR MARRERO, District Judge

DECISION AND ORDER

Plaintiff Caroyl Winn ("Winn"), a New York City Police Officer, filed this action pursuant to 42 U.S.C. § 1983 (§ 1983) against the City of New York (the "City") and the various individual defendants, all of whom are or were at the relevant times officials of the City's Police Department (the "NYPD") (together, "Defendants"). The complaint describes two causes of action. The first claim asserts that Police Officers Shane McQuillan ("McQuillan"), Renee Strom ("Strom"), Anthony Gallo ("Gallo"), and Eric Brzostek ("Brzostek"), and Commissioner Raymond W. Kelly ("Kelly"), Lieutenant Jose Chu ("Chu"), and Sergeant James Paddock ("Paddock") (together, the "Individual Defendants"), in their individual and official capacities, violated Winn's right to due process under the Fourteenth Amendment to the United States Constitution by making false allegations against him, testifying falsely before a Grand Jury and at a jury trial, maliciously prosecuting him, and attempting to deprive him of his employment. The second cause of action, which is pled against Gallo, Brzostek and the City, alleges malicious prosecution under New York state law.

Defendants have filed a motion for summary judgment*fn1 seeking to dismiss both counts. For the reasons stated below, Defendants' motion is granted.

  I. FACTUAL BACKGROUND*fn2

  Winn's claims arise from an incident on August 17, 2000 that eventually resulted in Winn's arrest and prosecution in New York state court for reckless endangerment in the second degree. On that date, at approximately 2:30 a.m., Winn and several of his friends arrived by motorcycle at a night club called the Cheetah Club on West 21st Street between Fifth and Sixth Avenues in Manhattan. Winn, who was off duty and not in uniform at the time, and his friends parked their motorcycles across the street from the Cheetah Club. Shortly thereafter, Strom approached Winn and instructed him to adjust the license plate of his motorcycle. Winn claims that he attempted to explain to Strom that he could not make the requested adjustment to his license plate because he did not have the necessary tool with him at the time. Winn alleges that McQuillan soon approached and ordered him, in a verbally abusive and physically threatening manner, to remove the license plate.

  According to Winn, he and McQuillan "engaged in a conversation . . . that at times grew loud" and eventually Winn, admittedly "ignoring an instruction from defendant McQuillan that he not leave the area," mounted his motorcycle and drove away. (Plaintiff's Memorandum of Law in Opposition to Defendants' Motion for Summary Judgment dated October 29, 2004 ("Pl.'s Mem.") at 3.) Winn claims that "[e]ither or both defendant McQuillan and defendant Strom radioed a false report that [he] had struck defendant McQuillan and had either knocked him down or had attempted to run him down." (Id.) It is undisputed that Winn did not identify himself as an NYPD officer at any point during this interaction.

  Winn traveled uptown on Sixth Avenue after leaving the scene of the incident involving Strom and McQuillan. Gallo and Brzostek happened to be in their patrol car at the corner of 42nd Street and Sixth Avenue as Winn drove by on his motorcycle. Having heard a radio transmission based on the report concerning the alleged assault against McQuillan and identifying Winn by his license plate number, Gallo and Brzostek began to follow Winn. They followed him on Sixth Avenue as far north as 56th Street,*fn3 east on 56th Street and south on Park Avenue, where Winn traveled on the northbound lane, until being instructed via radio to end their pursuit.

  In January 2001, McQuillan, Gallo and Brzostek testified before a grand jury regarding these events. The Grand Jury indicted Winn for reckless endangerment in the second degree. In February 2001, Winn was arrested on the basis of this indictment. He pleaded not guilty to the charge against him and was acquitted by a jury on April 3, 2002. After Winn's acquittal, defendants Lieutenant Jose Chu ("Chu") and Sergeant James Paddock ("Paddock") of the NYPD Internal Affairs Bureau, initiated an investigation of the incidents that gave rise to the criminal prosecution. On March 1, 2004, the NYPD Deputy Commissioner of Trials held a hearing regarding the following administrative charges against Winn: (1) that he "did become involved in a verbal altercation with uniformed members of the service, did raise his voice and speak in a discourteous manner and did fail to identify himself as a member of the service;" (2) that he "did fail to obey the instruction of Police Officer McQuillan to remain at the scene and did drive away on his motorcycle in a reckless manner;" (3) that he "did fail to stop for officers who were following him in a marked RMP*fn4 in the vicinity of 6[th] Avenue and West 42[nd] Street, and did operate his motorcycle in a reckless manner by improperly changing lanes while traveling in excess of the speed limit;" and (4) that he "did operate his motorcycle in a reckless manner by driving in excess of the speed limit while traveling southbound in the northbound lane in the vicinity of Park Avenue and East 65[th] Street." (NYPD Disposition of Charges at 1-2.) Winn pleaded guilty to all four charges.*fn5 As a result, Winn was ordered dismissed from the NYPD, but his dismissal was held in abeyance for one year. In addition, Winn was suspended for 120 days.

  II. LEGAL STANDARDS

  A. SUMMARY JUDGMENT

  In order to prevail on a motion for summary judgment, the moving party must demonstrate that "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 a judgment as a matter of law." Fed.R.Civ.P. 56(c). A fact is "material" if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A motion for summary judgment should be granted unless the evidence adduced by the non-moving party is "sufficient . . . for a jury to return a verdict for that party." Id. at 249.

  In determining whether genuine issues of material fact exist, "[t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-159 (1970)). The nonmovant, however, cannot create a genuine issue of fact through "conclusory allegations, conjecture and speculation." Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998).

  B. LIABILITY UNDER § 1983

  Section 1983 creates a cause of action against any "person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any . . . person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws." 42 U.S.C. § 1983. Because "Section 1983 `is not itself a source of substantive rights,' but merely provides `a method for vindicating federal rights elsewhere conferred,' [t]he first step in any such claim is to identify the specific constitutional right allegedly infringed." Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144 n. 3 (1979)). The Second Circuit has held that "[f]reedom from malicious ...


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