The opinion of the court was delivered by: Hon. Glenn T. Suddaby, United States District Judge
Currently before the Court in this pro se civil rights action filed by Junet Jean Caidor ("Plaintiff") is a motion for summary judgment filed by Syracuse City Police Officers Michael Harrington and Christopher Devito ("Defendants"). (Dkt. No. 49.) In their motion, Defendants request the dismissal of Plaintiff's claims against them, specifically, his Fourth Amendment claims of false arrest, unlawful strip search, and malicious prosecution. (Id.) For the reasons set forth below, Defendants' motion is granted and Plaintiff's Complaint is dismissed.
Plaintiff filed his Complaint in this action on March 8, 2005. (Dkt. No. 1.) Generally, his Complaint asserted claims arising under the First, Fourth, Fifth, Eighth and Fourteenth Amendments, against eleven (11) persons, corporations and entities, based on his arrest and prosecution for the violation of trespass (under N.Y. Penal Law § 140.05) at M&T Bank in the spring of 2004. (Id.) The majority of those claims were dismissed on March 27, 2006, and March 14, 2007, by Senior District Judge Frederick J. Scullin, Jr. (at the time the district judge presiding over the action). See Caidor v. M&T Bank, 05-CV-0297, 2006 WL 839547, at *14-15 & n.33 (N.D.N.Y. March 27, 2006) (Scullin, J.); Caidor v. M&T Bank, 05-CV-0297, Memorandum-Decision and Order, at 2, 8 (N.D.N.Y. filed March 14, 2007) (Scullin, J.). Remaining after Judge Scullin's Orders of Dismissal were Plaintiff's Fourth Amendment claims of false arrest, unlawful strip search, and malicious prosecution against Defendants. See Caidor v. M&T Bank, 05-CV-0297, Memorandum-Decision and Order, at 8 & n.3 (N.D.N.Y. filed March 14, 2007) (Scullin, J.). Defendants' current motion for summary judgment requests the dismissal of each of those remaining claims. (Dkt. No. 49.)
For the sake of brevity, the Court will not repeat the well-known legal standard governing motions for summary judgment pursuant to Fed. R. Civ. P. 56, but will refer the parties to its decision in Proctor v. Kelly, 05-CV-0692, 2008 WL 5243925, at *3-4 (N.D.N.Y. Dec. 16, 2008) (Suddaby, J.).
"To state a claim for false arrest under New York law, a plaintiff must show that (1) the defendant intended to confine him, (2) that plaintiff was conscious of the confinement, (3) the plaintiff did not consent to the confinement, and (4) the confinement was not otherwise privileged or justified." Caidor v. M&T Bank, 05-CV-0297, 2006 WL 839547, at *4 (N.D.N.Y. March 27, 2006) (Scullin, J.) [internal quotation marks and citations omitted]. "Probable cause to arrest constitutes justification; and, if it exists, it is a complete defense to false arrest." Caidor, 2006 WL 839547, at *4 [internal quotation marks and citations omitted]. "Probable cause exists when the officers have knowledge or reasonably trustworthy information of facts and circumstances that are sufficient to warrant a person of reasonable caution in the belief that the person to be arrested has committed or is committing the crime." Id. [internal quotation marks and citations omitted]. "All that is needed is the mere probability of criminal activity based on the totality of the circumstances to satisfy the Fourth Amendment." Id. [citation omitted].
Although Plaintiff alleges in his Complaint that Defendants initially arrested him for criminal trespass in the third degree (under N.Y. Penal Law § 140.10), he correctly concedes in his memorandum of law that the appropriate charge to be analyzed (in order to determine whether probable cause existed for his arrest) is trespass (under N.Y. Penal Law § 140.05). (Compare Dkt. No. 1, ¶ 20 [Plf.'s Compl.] with Dkt. No. 52, Part 3, at 5 [Plf.'s Opp. Memo. of Law].)*fn1 As a result, the issue presented by Defendants' motion (with regard to Plaintiff's false arrest claim) is whether Defendants have met their burden of showing that, based on the current record, no rational fact-finder could conclude that Defendants lacked probable cause to arrest Plaintiff for the violation of trespass (under N.Y. Penal Law § 140.05) at the South Warren Street branch of M&T Bank on March 8, 2004.*fn2 "A person is guilty of trespass when he knowingly enters or remains unlawfully in or upon premises." N.Y. Penal Law § 140.05.
In their Rule 7.1 Statement, Defendants assert numerous facts that they support with accurate record citations. (See generally Dkt. No. 49, Part 15.) While Plaintiff denies some of these facts (and admits others) in his Rule 7.1 Response, he does not support any of the denials with accurate record citations, as required by Local Rule 7.1(a)(3) of the Local Rules of Practice for this Court. (See generally Dkt. No. 52, Part 4.) As a result, those facts are deemed "admitted." N.D.N.Y. L.R. 7.1(a)(3). While Defendants' "Local Rule 56.2 Notice" to Plaintiff (of the consequences of failing to respond properly to their summary judgment motion) may leave something to be desired in terms of specificity (see Dkt. No. 49, Part 2), the Court notes that, by the time that Plaintiff responded to Defendants' motion on June 12, 2008, he had repeatedly received detailed notice of the consequences of failing to properly oppose a summary judgment motion, including the consequences of failing to properly oppose a Rule 7.1 Statement. See, e.g., Caidor v. Berg, 03-CV-1163, Defendant's Local Rule 56.2 Notice to Plaintiff, at 1-11 (N.D.N.Y. filed Apr. 5, 2007) (containing three pages of warnings and attaching a complete copy of both Local Rule 7.1 and Fed. R. Civ. P. 56); Caidor v. Onondaga County, 03-CV-0031, Defendant's Notice to Plaintiff, at 2 (N.D.N.Y. filed Oct. 28, 2004) (containing page of warnings); Caidor v. Chase Manhattan Bank Plan Administrator, 98-CV-5018, Defendants' Rule 56 Notices to Plaintiff (S.D.N.Y. filed May 28, 1999, and May 1, 2000);Caidor v. Chase Manhattan Bank, NA, 97-CV-0227, Court's Notice to Plaintiff (S.D.N.Y. filed Apr. 30, 1997) (containing warnings); see also N.D.N.Y. L.R. 7.1(a)(3) [containing notice of consequences]; United States District Court for the Northern District of New York Pro Se Handbook, at 16, 41, http://www.nynd.uscourts.gov/documents/ProSeHandbook2008.pdf (containing notice of consequences).*fn3 For these reasons, the Court concludes that Plaintiff (who is proceeding pro se in this action) had adequate notice of the consequences of failing to properly respond to Defendants' Rule 7.1 Statement, in satisfaction of the notice requirement imposed by Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996), and Local Rule 56.2.
As a result, the following material facts are undisputed: (1) on March 8, 2004, Plaintiff went to the Erie Boulevard branch of M&T Bank in Syracuse, NY, and unsuccessfully tried to retrieve a credit card that had been taken by an automatic teller machine two days before;*fn4 (2) in a further attempt to retrieve the credit card on March 8, 2004, Plaintiff then went to the South Salina Street branch of M&T Bank, where he became so disruptive and uncooperative that M&T Bank Regional Security Manager John Doyle--in Defendants' presence--closed Plaintiff's bank account (pursuant to M&T Bank's policy and procedures), offered him a check for the amount that had been in his account (which Plaintiff refused, saying, "Keep it"), and told him not to go back into M&T Bank or he would be arrested;*fn5 (3) in yet a further attempt to challenge the action taken by the bank on March 8, 2004, Plaintiff then went to the South Warren Street branch of M&T Bank;*fn6 (4) after being advised that Plaintiff was at the South Warren Street branch, Mr. Doyle then arrived there and told Plaintiff--in Defendants' presence--to leave the bank;*fn7 (5) however, Plaintiff refused to leave, stating that he intended to talk to the Branch Manager, Paul Bacher;*fn8 and (6) as a result, Mr. Doyle then told Defendants to arrest Plaintiff for trespass, only after which did Plaintiff offer to leave.*fn9
Based on these undisputed facts, the Court concludes that no rational fact-finder could conclude that Defendants lacked probable cause to arrest Plaintiff for the violation of trespass (under N.Y. Penal Law § 140.05) at the South Warren Street branch of M&T Bank on March 8, 2004. The Court reaches this conclusion for the reasons offered by Defendants in their memorandum of law. (Dkt. No. 49, Part 16, at 8-13 [Defs.' Memo. of Law].) The Court would add five points to Defendants' analysis.
First, whether Plaintiff is correct that bank personnel would have given him the credit card in question back if they had more quickly "checked his account" (a fact of which the Court is suspicious given the undisputed difference between the name on the credit card and the name on the account) is immaterial to Defendants' motion, because the grounds giving rise to ...