The opinion of the court was delivered by: Hon. Harold Baer, Jr., District Judge
The reader's familiarity with the underlying facts of this case is assumed.*fn1 Plaintiff Anthony Manganiello ("Manganiello") brought an action for malicious prosecution pursuant to 42 U.S.C. § 1983 against Defendant Luis Agostini ("Agostini"), nine other police officers of the New York City Police Department ("NYPD") and the City of New York. After this Court granted summary judgment in favor of the City and five of the police officers, a trial proceeded against Agostini, and four other NYPD officers. On June 24, 2008, a jury found only Agostini and another defendant, Shawn Abate ("Abate"), to be liable for malicious prosecution, and awarded Manganiello compensatory damages in the amount of $1,426,261. The verdict sheet asked the jury to apportion compensatory damages among the defendants, and the jury determined that Agostini was liable for 90 percent of the compensatory damages, or $1,283,634.90, and Abate, 10 percent, or $142,626.10.
On August 6, 2008, this Court granted qualified immunity to Abate based on the Court's view of the law juxtaposed with the jury's answer to a special interrogatory on the verdict sheet. That same day, following oral argument by the parties as to punitive damages, the jury assessed punitive damages against Agostini in the amount of $75,000.
Agostini moves for judgment as a matter of law in favor of Agostini pursuant to Fed. R. Civ. P. 50 and 59 and for qualified immunity. In the alternative, Agostini seeks remittitur of the damages award pursuant to Rule 59 or to set aside the verdict and order a new trial pursuant to Rule 59. Manganiello moves for attorneys' fees pursuant to 42 U.S.C. § 1988. For the reasons set forth below, Agostini's motions are denied, and Manganiello's motion is granted.
I. AGOSTINI'S MOTION FOR JUDGMENT AS A MATTER OF LAW
The Second Circuit has instructed that
[j]udgment as a matter of law may not properly be granted under Rule 50 unless the evidence, viewed in the light most favorable to the opposing party, is insufficient to permit a reasonable juror to find in her favor. . . . In deciding such a motion, the court must give deference to all credibility determinations and reasonable inferences of the jury, . . . and it may not itself weigh the credibility of witnesses or consider the weight of the evidence . . . . Thus, judgment as a matter of law should not be granted unless '(1) there is such a complete absence of evidence supporting the verdict that the jury's findings could only have been the result of sheer surmise and conjecture, or (2) there is such an overwhelming amount of evidence in favor of the movant that reasonable and fair minded [persons] could not arrive at a verdict against [the defendant].'
Galdieri-Ambrosini v. Nat'l Realty & Dev. Corp., 136 F.3d 276, 289 (2d Cir. 1998) (internal citations omitted) (quoting Cruz v. Local Union No. 3 of the Int'l Brotherhood of Electrical Workers, 34 F.3d 1148, 1154 (2d Cir.1994) (internal quotation marks and citation omitted)).
The court "cannot assess the weight of conflicting evidence, pass on the credibility of witnesses, or substitute its judgment for that of the jury." Tolbert v. Queens College, 242 F.3d 58, 70 (2d Cir. 2001) (quotation marks and citation omitted). The court must make credibility assessments, and draw all inferences, against the moving party. Piesco v. Koch, 12 F.3d 332, 343 (2d Cir. 1993).
Agostini rests his motion on several different arguments, each of which is discussed in turn below.
A. Presumption of Probable Cause Created by Grand Jury Indictment
To succeed on his claim for malicious prosecution, Manganiello shouldered the burden of proving, by a preponderance of the evidence, that Agostini initiated a prosecution against him, with malice and without probable cause to believe that it could succeed, and that the prosecution terminated in favor of Manganiello. Boyd v. City of New York, 336 F.3d 72, 76 (2d Cir. 2003). That the prosecution terminated in Manganiello's favor is not disputed, as he was acquitted by the jury at his criminal trial.
Agostini asserts that Manganiello failed to prove that Agostini lacked probable cause to believe that the prosecution could succeed. Specifically, Agostini contends that Manganiello failed to elicit any evidence during trial which rebutted the presumption of probable cause created by his grand jury indictment. The rule in the Second Circuit is that:
'[o]nce a suspect has been indicted . . . the law holds that the Grand Jury action creates a presumption of probable cause.' . . . 'The presumption may be overcome only by evidence establishing that the police witnesses have not made a complete and full statement of facts either to the Grand Jury or to the District Attorney, that they have misrepresented or falsified evidence, that they have withheld evidence or otherwise acted in bad faith.' . . . Thus, in order for a plaintiff to succeed in a malicious prosecution claim after having been indicted, 'he must establish that the indictment was produced by fraud, perjury, the suppression of evidence or other police conduct undertaken in bad faith.'
Rothstein v. Carriere, 373 F.3d 275, 282-83 (2d Cir. 2004) (quoting Colon v. City of New York, 60 N.Y.2d 78, 82-83 (N.Y. 1983)) (emphasis added).
Here, the jury was properly instructed that the grand jury indictment created a presumption of probable cause and that Manganiello bore the burden to overcome the presumption, under the rule set forth in Rothstein. Manganiello provided enough evidence at trial that a reasonable juror could conclude that Agostini and Abate failed to make a "complete and full statement of facts" to the District Attorney, "misrepresented or falsified evidence," "withheld evidence or otherwise acted in bad faith." See id. For example, Manganiello testified that when Agostini questioned him at the precinct immediately after Albert Acosta ("Acosta") was shot, Manganiello told him about an earlier incident where some Blood gang members threw Acosta through a window and another where local thugs threatened to shoot Acosta. (Transcript of Trial ("Tr."), Ex. A to Okereke Decl., at 68.) A reasonable juror could conclude, since there was no evidence to dispute these allegations, that Agostini had failed to investigate the incidents and that had he investigated, he might have determined that Acosta's killer was linked to those gang members or thugs. Further, he failed to inform the District Attorney's office of such leads. Although Manganiello testified that he had cooperated with Agostini and given him his address and telephone number during their interview shortly after the Acosta murder, Agostini accused Manganiello of killing Acosta, prepared a "follow-up report," or "DD5," that implied that Manganiello was evasive when questioned, and later testified at Manganiello's criminal trial that Manganiello had been evasive. (Tr. 66-68, 200, 202-04, 217.)
The evidence at trial showed that Detective Robert Martinez created a DD5 that documented the fact that two other police officers told him that the morning of Acosta's murder Manganiello had gone to a separate apartment in the building to address an altercation that had been reported there, that Manganiello seemed normal at that time, and that he then left the building with the police officers. (Tr. 173-74, 413.) However, Agostini created a DD5 two weeks later that stated that Manganiello left the apartment before the other officers, which may have left the impression that Manganiello was alone in the other apartment building when Acosta arrived and thus had an opportunity to shoot him. (Tr. 189.) Agostini admitted during trial that his DD5 was in "stark contrast" to the DD5 created by Martinez two weeks earlier. (Tr. 190.)
Soon after Agostini had to release Manganiello because there was no probable cause for his arrest, Agostini met with Terrance Alston ("Alston"), a Bloods gang member who was incarcerated. (Tr. 243, 475.) Agostini knew that Alston was in jail on the date of Acosta's murder and for four months before Acosta was murdered. (Tr. 82, 244-45, 475.) Alston was a confidential informant to Detective Derek Parker, who specialized in crimes involving the rap and hip-hop industries. Prior to Agostini's meeting with Alston, Parker had interviewed him for an hour about the Acosta murder, and Alston did not mention that Manganiello had tried to hire him to kill another security guard. (Tr. 475-76, 484.) After Agostini met with Alston, he prepared a DD5 that stated that Alston said Manganiello had asked him to kill another security guard as a favor, that Alston asked Manganiello "how much," but Manganiello did not give a price. (Okereke Decl. Ex. G; Tr. 82.) Manganiello, however, testified that he had never met or spoken with Alston. (Tr. 78-79.)
Alston told Agostini that his friend, Johnny Baker, had sold Manganiello a .22 caliber gun, the same caliber as the weapon used in Acosta's murder. (Tr. 250-51.) However, when Agostini interviewed Baker, Baker said that Alston had lied, and Agostini believed Baker that Alston had lied. (Tr. 251, 258.) When Agostini confronted Alston about his lie, Alston said that he did not want Agostini to interview any witnesses that Alston produced without Alston being present. Alston indicated to Agostini that he would find a witness who would implicate Manganiello within four weeks, if Alston could be released from jail. (Tr. 248, 251-52, 255, 258.) Agostini testified that he thought that Alston was playing games to get out of jail. (Tr. 248, 252-56, 312, 314-15.) However, Agostini never brought this to the attention of the District Attorney's office, nor did Agostini memorialize his impression that Alston was lying to get out of jail or that Alston did not want the witnesses that he produced to be interviewed without Alston being present. (Tr. 253-57, 330, 457, 647.) Agostini further admitted that he was supposed to cease working with informants who were not credible. (Tr. 249.) Agostini testified that he later told the Assistant District Attorney ("Assistant DA") that Alston knew someone who had sold Manganiello a gun but wanted to get out of jail before revealing that information. (Tr. 315.) The Assistant District Attorney testified that Alston was released from jail in exchange for his testimony against Manganiello. (Tr. 647.)
Once Alston was released, Alston produced another witness, Mark Damon, who met with Agostini and the Assistant DA and told them that he had sold Manganiello a .22 caliber gun. (Tr. 259.) Agostini prepared a DD5 that reported that Damon said, "with permission from [Alston]," that in January 2001 he had sold a .22 caliber gun to an Italian, white, male, heavy-set security guard, i.e., a person matching Manganiello's description. (Tr. 86, 258-60.) Manganiello testified that he had never met Damon and never purchased a .22 caliber handgun. (Tr. 86.) Damon subsequently admitted that he had lied because Alston had "made him say it." (Tr. 261, 641.)
Agostini and Abate approached Michael Booth, a local bookie and/or loan shark. (Tr. 268-69.) Agostini told Booth that he had information that a security officer for the Parkchester South Condominium Security Department ("Parkchester"), where Manganiello was a security officer, tried to buy a gun from him. (Tr. 272-73.) At first, Booth said he knew nothing about this and did not want to talk with the detectives. (Tr. 271-72.) Agostini and Abate brought Booth to the precinct, searched him, found a knife and betting slips with names and monetary amounts on them. (Id.) Agostini told Booth that they would tell the organized crime bureau about him, and only then did Booth write a statement to the effect that Manganiello had tried to buy a gun from him. Agostini created a DD5 that documented this statement. (Tr. 84, 272-73.) Manganiello testified that he had never had such a conversation with Booth. (Tr. 84.) After Booth signed the statement, the detectives gave him back his knife, he left the precinct, no charges were filed, the gambling slips disappeared and Booth's name was not given to the organized crime bureau. (Tr. 273-74.) Agostini informed the Assistant DA of Booth's statement, and ultimately the Assistant DA called Booth to testify at Manganiello's murder trial that Manganiello had tried to buy a gun from him. The Assistant DA testified that she never authorized Agostini or any other detective to withhold criminal charges against Booth in exchange for a statement implicating Manganiello. (Tr. 638.)
Further, approximately two weeks after Acosta's homicide, a cab driver told Agostini that he had overheard one of his passengers, Alfred Vasquez ("Vasquez"), tell someone over his cell phone that he had witnessed the murder. (Tr. 233.) Agostini questioned Vasquez, and Vasquez told him that although he had told someone on his cell phone that he had witnessed the murder, he was just making it up. However, Agostini did not investigate Vasquez further or even have his fingerprints compared with those found at the scene. (Tr. 234-35.)
Moreover, although Agostini testified that he had given the Assistant DA the entire homicide case file, including his handwritten notes, he had previously testified at a pretrial hearing in the criminal proceedings that he never gave the Assistant DA his spiral notebook, which contained his handwritten notes, including notes of his interview with Manganiello hours after the murder. (Tr. 167-68, 170.) The Assistant DA testified that the homicide case file disappeared when she asked Agostini to bring it to her so that she could copy it. (Tr. 616-17.) The Assistant DA told the jury that she had represented to the criminal trial judge that she never had possession of the homicide case file. (Tr. 610-12.) She also testified that Agostini never gave her copies of the handwritten interview and investigative notes for her to maintain as part of her file. (Tr. 614.) She testified that, consequently, such notes were never turned over to Manganiello's criminal defense lawyer. (Tr. 615-18.)
Finally, in Manganiello's criminal proceedings, and keeping in mind that he was a security guard, Agostini testified at a pretrial hearing that he had found a note in Manganiello's locker that said, "I feel like killing somebody." In fact, the note said, "I pray every day that I will never have to kill someone." (Tr. 266-67.)
The testimony described above is just some of the testimony from which a reasonable jury could find that Manganiello successfully rebutted the presumption of probable cause that was created by the grand jury indictment.
Agostini mistakenly relies on a statement by the Second Circuit in Rothstein that was particular to the facts of that case, and which neither expresses the general rule nor applies to this case. In Rothstein, the Circuit explained that the plaintiff was required "to establish what occurred in the grand jury, and to further establish that those circumstances warrant a finding of misconduct sufficient to erode the premise that the Grand Jury acts judicially." 373 F.3d at 284 (quotation marks and citation omitted). Because the content of the defendant's grand jury testimony was unknown, and the plaintiff's counsel conceded that he had no idea what happened before the grand jury, the Circuit in Rothstein held that the plaintiff could not rebut the presumption created by his grand jury indictment and the district court should have granted summary judgment for the defendant. Id. at 284-85. Agostini argues that Manganiello failed to rebut the presumption because he failed to establish at trial that Agostini testified in bad faith to the grand jury. However, the crucial difference between Rothstein and this case is that the defendant in Rothstein was a cooperating witness, not a police officer. Id. at 279. Where the defendant is a police officer, like Agostini, as the Circuit articulated in Rothstein, the plaintiff's avenue for rebuttal is not limited to proof of misconduct in the grand jury alone. Rather, the plaintiff may show that the officer misrepresented the facts to the District Attorney or otherwise acted in bad faith in a way that led to the indictment. Id. at 282-83. Here, Manganiello met this burden.
B. Elements of Malicious Prosecution
Agostini argues that Manganiello failed to prove that Agostini commenced or continued a criminal proceeding against him without probable cause and with malice. To support his argument, Agostini relies primarily on his own trial testimony, but this carries little weight as the Court must make credibility assessments, and draw all inferences, against the moving party. See Piesco,12 F.3d at 343. On this score, Agostini's credibility before me, coupled with his demeanor on the stand and at defense table, was at least questionable and at most perjurious, while Manganiello appeared in all respects credible.
1. Initiation or Commencement of Criminal Proceeding
Manganiello was required to prove that Agostini played an active role in the prosecution, which could include giving advice, encouraging the authorities to act, filing criminal charges against the plaintiff, being instrumental in bringing about the criminal charges, or providing false information to the prosecutors. See, e.g., Rohman v. New York City Transit Auth., 215 F.3d 208, 217 (2d Cir. 2000); Ricciuti v. New York City Transit Auth., 124 F.3d 123, 130 (2d Cir. 1997).
In Mejia v. City of New York, 119 F. Supp. 2d 232 (E.D.N.Y. 2000), the court observed that witnesses may be considered complaining witnesses if they falsely give the prosecutor information that induced the prosecutor to act.*fn2 Id. at 272. It was significant to the Mejia court that "[p]laintiffs' claim is not that [the defendants] simply went to prosecutors and related the facts as they honestly believed them to be and then let the prosecutor make his or her determination whether to commence proceedings." Id. (emphasis added). Instead, the plaintiff alleged that the defendants misrepresented to prosecutors the true circumstances leading to the arrest and, "thus, induced the prosecutor to commence proceedings based on manufactured evidence [and] further induced the prosecutor to continue the proceedings by giving testimony before the grand jury that was false and/or contained material omissions." Id. See also Ricciuti,124 F.3d at 130 ("initiation" of prosecution may include preparing false evidence, forwarding it to prosecutors, suborning perjury and committing perjury).
Assessing credibility against Agostini and drawing all inferences in favor of Manganiello, as this Court must, there was enough evidence for the jury to reasonably conclude that Agostini commenced or initiated the criminal prosecution. For example, in addition to the testimony described above, Abate testified that Agostini provided the District Attorney's office with all the information that led to the authorization for Manganiello's arrest. (Tr. 386.) Agostini also signed the felony complaint. (Tr. 658.) See Ricciuti,124 F.3d at 130 (holding that "a jury could clearly find" that the defendant initiated the prosecution "because no one disputes that he started the prosecution by filing the charges of second-degree assault").
2. Absence of Probable Cause
Manganiello was required to prove that Agostini did not have probable cause to commence or continue criminal proceedings against him. Probable cause is the knowledge of facts strong enough to justify a reasonable belief that there are lawful grounds for prosecuting a person for a crime. Rounseville v. Zahl, 13 F.3d 625, 629 (2d Cir. 1994). Probable cause requires more than rumor or suspicion. United States v. Fisher, 702 F.2d 372, 375 (2d Cir. 1983).
Where officers fabricate evidence, there is sufficient evidence of a lack of probable cause to support a malicious prosecution finding. See Richardson v. City of New York, No. 02 Civ. 3651, 2006 WL 2792768, at *5 (E.D.N.Y. Sept. 27, 2006). Assessing the witnesses' credibility and drawing inferences in favor of Manganiello, a jury could reasonably conclude that Agostini provided false information to the Assistant DA and fabricated evidence. For example, Agostini knew that his main witness, Alston, was not credible and yet failed to provide such evidence to the prosecutor. Further, Agostini's failure to inquire further into various leads, when a reasonable person would have done so, evidences a lack of probable cause. See Lowth v. Town of Cheektowaga, 82 F.3d 563, 571 (2d Cir. 1996) (citing Colon, 60 N.Y.2d at 82).
The jury was instructed that it could not return a verdict in favor of Manganiello, unless it found, inter alia, "the absence of probable cause" for the criminal proceeding against him. The jury's verdict in Manganiello's favor means that it found an absence of probable cause, and thus chose to credit Manganiello's version of the events and to discredit Agostini's testimony. Here, there was not "such an overwhelming amount of evidence in favor of" the notion that Agostini had probable cause to initiate and continue the prosecution, and the jury's verdict was not the result of "sheer surmise and conjecture." See Galdieri-Ambrosini,136 F.3d at 289.
Manganiello was required to show that Agostini commenced or continued the criminal prosecution out of malice. "Malice may be shown by proving that the prosecution complained of was undertaken from improper or wrongful motives, or in reckless disregard of the rights of the plaintiff." Pinsky v. Duncan, 79 F.3d 306, 313 (2d Cir. 1996) (quotation marks and citation omitted). Moreover, "[m]alice may be inferred from the lack of probable cause." Id.
The jury was instructed that if they found that Agostini did not have probable cause to believe that Manganiello committed the crime, they could, but were not required, to infer that Agostini acted maliciously. See Ricciuti, 124 F.3d at 131 ("[A] jury could find that probable cause for the charges against the plaintiffs was lacking, and that finding alone would support an inference of malice."); Lowth,82 F.3d at 573 ("In most cases, the lack of probable cause-while not dispositive-'tends to show that the accuser did not believe in the guilt of the accused, and malice may be inferred from the lack of probable cause.'") (quoting Conkey v. State, 427 N.Y.S.2d 330, ...