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Richardson v. City of New York

September 27, 2006


The opinion of the court was delivered by: John Gleeson, United States District Judge


Theodore Richardson sued New York City Detective Suzanne McDermott and an unnamed undercover New York City police officer, identified as UC #7404, alleging that they falsely arrested him and knowingly forwarded fabricated evidence against him to prosecutors, thereby causing him to be deprived of his liberty until he was eventually acquitted by a jury. The defendants have moved for summary judgment on the ground, among others, that Richardson has failed to produce sufficient evidence from which a jury could reasonably conclude that he was arrested and indicted without probable cause, and that, in any event, they are entitled to qualified immunity. The assigned Magistrate Judge, to whom I referred the motion for a report and recommendation, agreed with the defendants, and the plaintiff objected. For the reasons set forth below, I conclude the Magistrate Judge erred in holding that no genuine issues of material fact remain to be tried. Accordingly, the defendants' motion for summary judgment is, in large part, denied.*fn1 Jury selection and trial will occur on December 18, 2006 at 9:30 a.m. A pretrial conference will be held on December 1, 2006 at 11:00 a.m.


On the night of January 23, 2000, Detective McDermott and UC #7404 were part of a team working an undercover "buy and bust" operation. Before leaving the station house, the field team sergeant gave McDermott an amount of money with which UC #7404 was to purchase drugs, and McDermott made photocopies of the bills so they could later be identified. She then gave the money to UC #7404, and the team departed separately for the "set" of the operation, a bodega at the corner of Ferndale Avenue and Sutphin Boulevard in southeast Queens. McDermott was assigned as the arresting officer that night, and she, along with the field team sergeant, waited in an unmarked car a few blocks away while UC #7404 approached the store and attempted to make a buy. UC #7404 found two men on the corner, and she asked them if "anyone was working," Def. 56.1 Statement ¶ 29, that is, selling drugs.

According to the defendant officers, Richardson was there outside the bodega, and he responded to UC #7404's question by walking toward her with crack cocaine in his hand. UC #7404 said that she wanted "two dimes," or twenty dollars' worth, and Richardson gave her two rocks of crack cocaine. She gave him a $20 bill from the money McDermott had furnished her and walked away. After reaching a safe distance, UC #7404 used a handheld radio to notify McDermott that she had made a "positive buy" from a male black, approximately six feet tall with long dread locks; she also gave a description of the suspect's clothing.

McDermott and her field sergeant immediately proceeded to the location of the buy; she estimates it took them about one minute to arrive there. Meanwhile, UC #7404 made a second radio transmission upon reaching her vehicle, repeating her previous description and adding that the suspect had gold teeth. McDermott approached Richardson, who fit that description, and placed him in handcuffs for her own safety. McDermott brought Richardson over to her vehicle to pat him down for weapons and then radioed for UC #7404 to return to the set to make an identification. UC #7404 drove by at about 15 miles per hour and, through her tinted windows, was able to confirm that it was Richardson who sold her the crack. She radioed that information to McDermott, who formally placed Richardson under arrest. A search of his person by McDermott resulted in the seizure of approximately $45 in cash, including two $20 bills. Moments later, while still at the scene, McDermott compared the two $20 bills found on Richardson to the photocopy of the buy money and determined that one of them was a match.

Richardson has a different version of these events. He claims he went to the corner store at Ferndale and Sutphin that night at around 1 a.m. -- admittedly in violation of the 11:00 p.m. curfew that was a condition of his parole -- to buy a few cans of soda for his wife, who was feeling ill. He paid for the soda with a $50 bill and received $47.03 in change, though he does not recall in what denominations. Richardson walked out of the store with the sodas, and as he began to cross the street, two unmarked police cars pulled up quickly. Four police officers got out and approached him, Detective McDermott among them. She immediately put Richardson in handcuffs, threw him against the side of a car, and began asking, "Where are the drugs?" She also searched his person, but Richardson did not have any drugs on him. McDermott found only the $47 Richardson had just received in change from the store. Richardson maintains that he did not sell drugs to UC #7404 and did not receive any money from her.

UC #7404 and McDermott relayed their version of what happened to the Queens County District Attorney's office. The case was presented to a grand jury, resulting in Richardson's indictment for Criminal Sale of a Controlled Substance in the Third Degree. Richardson was also brought up on three charges that he violated the conditions of his parole: two dealt with the pending drug offense; the third, to which he pleaded guilty, charged that he violated his curfew the night he was arrested. He was sentenced on the curfew violation to the full remainder of his previous sentence, one year and eight days. As for the drug charge, Richardson was tried before a jury, and on February 5, 2001, he was acquitted and released. He thereupon brought this action.


Under Rule 56 of the Federal Rules of Civil Procedure, the moving party is entitled to summary judgment "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). The substantive law governing the case identifies the facts that are material, and "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Summary judgment is warranted only if "the evidence is such that a reasonable jury could not return a verdict for the nonmoving party." Id.

It is well-settled that "[r]esolutions of credibility conflicts and choices between conflicting versions of the facts are matters for the jury, not for the court on summary judgment." United States v. Rem, 38 F.3d 634, 644 (2d Cir.1994). Moreover, "the inferences to be drawn from the underlying facts ... must be viewed in the light most favorable to the party opposing the motion." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quotation marks omitted); see also, e.g., Michalski v. Home Depot, Inc., 225 F.3d 113, 116 (2d Cir. 2000) ("[W]e ... view [the facts] in the light most favorable to, and draw inferences in favor of, the non-moving party ...." (internal quotation marks omitted)). Once the moving party has met its burden, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts .... [T]he non-moving party must come forward with 'specific facts showing that there is a genuine issue for trial.'" Matushita, 475 U.S. at 586-87 (quoting Fed. R. Civ. P. 56(e)).

Richardson seeks damages pursuant to 42 U.S.C. § 1983, claiming false arrest, malicious prosecution, malicious abuse of process, and denial of a fair trial in violation of the Fourth, Fifth, and Fourteenth Amendments to the Constitution of the United States. Although his several claims are in some ways doctrinally distinct, they generally rest upon the following two assertions, which Richardson makes based on his personal knowledge: (1) he did not sell drugs to UC #7404 that night; and (2) he did not have any money from UC #7404 on his person when McDermott arrested him and claimed to recover $20 in pre-recorded buy money. As Richardson points out, at this stage of the case, he is entitled to the assumption that a jury would believe his testimony to that effect and make all reasonable inferences in his favor. Though there are important nuances, particularly to the claim against McDermott, the primary questions on summary judgment are whether a jury could reasonably infer (1) that UC #7404's misidentification of Richardson was more likely than not deliberate and (2) that McDermott more likely than not fabricated the evidence that she found the pre-recorded buy money in Richardson's pocket.

A. False Arrest

Richardson's first claim is that he was arrested without probable cause in violation of the Fourth Amendment. In making out a claim for damages upon such a violation under § 1983, Richardson bears the burden of proving by a preponderance of the evidence the elements of a state law claim for false arrest, that is, that "(1) the defendant intended to confine the plaintiff, (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." Savino v. City of New York, 331 F.3d 63, 75 (2003). The first three elements of this claim are not in dispute. As to the fourth element, the defendant officers were privileged to arrest Richardson if they had probable cause to believe he had committed a crime. If no rational juror ...

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