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August F. Cornell v. Scott Kapral

January 11, 2011

AUGUST F. CORNELL, PLAINTIFF,
v.
SCOTT KAPRAL, INDIVIDUALLY AND IN HIS CAPACITY AS A POLICE OFFICER WITH THE TOWN OF DEWITT;AND TOWN OF DEWITT, DEFENDANTS.



The opinion of the court was delivered by: Hon. Glenn T. Suddaby, United States District Judge

MEMORANDUM-DECISION and ORDER

Currently before the Court in this civil rights action filed by August F. Cornell ("Plaintiff") is a motion to dismiss (or in the alternative for summary judgment) filed by the Town of DeWitt and Scott Kapral, individually and in his capacity as a police officer with the Town of DeWitt. ("Defendants"). (Dkt. No. 21.) For the reasons set forth below, Defendants' motion is granted and Plaintiff's Amended Complaint is dismissed.

I. RELEVANT BACKGROUND

A. Plaintiff's Claims

Generally, liberally construed, Plaintiff's Amended Complaint alleges, inter alia, as follows: (1) in March 2006, "Plaintiff was the Director of Teaching at the Hillbrook Detention Facility in Onondaga County"; (2) "Plaintiff was [also] the owner of Lost Erie Gem and Watch, a consignment retail establishment in the Town of DeWitt that Plaintiff owned for more than 25 years"; (3) "[o]n March 5, 2006, Plaintiff filed two letters entitled 'Observations of Concern' with the psychiatric office of the Onondaga County Corrections Department[, which] document[] several cases of children incarcerated at Hillbrook who, in his opinion, do[] not belong or who do not have police or court records to justify the[ir] detention"; (4) "[t]wo weeks later, . [D]efendant Kapral took a sudden and personal interest in Plaintiff by visiting one of Plaintiff's businesses and interrogating employees and making implications that two particular items consigned to Plaintiff had been "stolen"; (5) "[o]n March 27, 200[6],*fn1 Plaintiff[] retain[ed] counsel[, who] faxe[d] and mail[ed] exculpatory documentation to [D]efendant Kapral to establish conclusively that no thefts of consigned items had occurred and that there was a paper trail as to their whereabouts"; (6) "[o]n April 5, 2006, . . . Defendant Kapral appear[ed] at Plaintiff's classroom at Hillbrook Detention Facility and arrest[ed] Plaintiff on charges that [D]efendant Kapral [knew were] without probable cause"; (7) "[t]hereafter, . . . [D]efendant Kapral and others in the DeWitt Police Department announce[d] the arrest to the media and [sought] information from "anyone" who . . . had any transactions with . . . Plaintiff or one of Plaintiff's businesses"; (8) "[a]t the same time and on or about the same date, [D]efendant Kapral [sought] from the DeWitt Town Court an Order seizing Plaintiff's businesses . . . [and] Plaintiff's business records and personal computers"; (9) "[o]n or about and sometime during June of 2006, Plaintiff's attorney secure[d] from [D]efendant Kapral a list of the charges against Plaintiff and note[d] that the alleged victims and charges for which Plaintiff was originally arrested [were] no longer among the charges pending"; (10) "[o]n or about and sometime during June of 2006, . . . [D]efendant Kapral secure[d] an Order to wiretap Plaintiff and Plaintiff's attorney's telephone as part of an attempted 'sting operation'"; (11) "[i]n September of 2006, Plaintiff [wa]s indicted on [eleven] counts of Grand Larceny and other charges based[,] in large part, on tainted testimony and victim statements materially altered by [D]efendant Kapral"; (12) "[o]n or about and sometime during October of 2006, the Indictment against Plaintiff was dismissed by [the] Hon[orable] William Walsh"; (13) "[t]hough given the chance to do so, the District Attorney refused to re-present the case to a Grand Jury because, according to an Assistant District Attorney, they knew that Plaintiff had done no wrong, that . . . [D]efendant Kapral's allegations were just a bill of goods, and that the District Attorney's office informed . . . [D]efendant Kapral that they did not want to see any more paperwork with . . . Plaintiff . . . and . . . [D]efendant Kapral's name on it"; and (14) "[t]he District Attorney then contacted the Town of DeWitt Court and asked that all of Plaintiff's personal and business property seized at the request of . . . [D]efendant Kapral be returned to Plaintiff." (Dkt. No. 6.)

Based on these factual allegations, Plaintiff asserts the following four claims: (1) a claim of malicious prosecution against Defendant Kapral; (2) a claim of malicious abuse of process against Defendant Kapral; (3) a claim of false arrest against Defendant Kapral; and (4) a claim of municipal liability, pursuant to Monell v. Department of Social Services, 436 U.S. 658 (1978), against the Town of DeWitt. (Id.)

Familiarity with the remaining factual allegations supporting these claims in Plaintiff's Amended Complaint is assumed in this Decision and Order, which is intended primarily for review by the parties. (Id.)

B. Statement of Undisputed Material Facts

The following is a general summary of material facts that are undisputed by the parties.(Compare Dkt. No. 21, Attach. 1 [Def.'s Rule 7.1 Statement] with Dkt. No. 24, Attach. 6 [Plf.'s Rule 7.1 Response].)

At all times relevant to this civil action, Defendant Kapral was an investigator employed by the Town of DeWitt Police Department. In March of 2006, Plaintiff was the owner of Lost Erie Gem and Watch, a consignment retail establishment in the Town of DeWitt that Plaintiff owned for more than 25 years. In or around March of 2006, a former customer of Erie Gem and Watch, Mr. Michael Hughes, contacted the Town of DeWitt Police Department about a transaction that he entered into with Plaintiff. Defendant Kapral subsequently collected voluntary sworn affidavits from Mr. Hughes and Mr. Donald Steer, an acquaintance of Mr. Hughes who had dealings with Plaintiff and assisted in the transaction between Plaintiff and Mr. Hughes. Defendant Kapral continued his investigation and spoke with several other former customers and former employees of Erie Gem and Watch.

Between March 18, 2006, and March 27, 2006, Defendant Kapral collected voluntary sworn affidavits from five more former customers of Erie Gem and Watch: Mr. Michael Fall, Ms. Laurene Solak, Ms. Dolores Thompson, Ms. Christine Peppone, and Ms. Tina Mason. In addition, during this same time period, Defendant Kapral collected voluntary sworn affidavits from two more former employees of Erie Gem and Watch. On April 5, 2006, Defendant Kapral arrested Plaintiff, whose arrest was reported in the news media shortly thereafter. Following those reports, dozens more former customers of Erie Gem and Watch came forward to report that they had been victims.

Plaintiff was arraigned on charges including grand larceny and scheme to defraud, which were ultimately dismissed because Plaintiff was denied the opportunity to testify before the Grand Jury. The Court's dismissal was without prejudice, and left the People free to re-present the case.

Familiarity with the remaining undisputed material facts of this action, as well as the disputed material facts, as set forth in the parties' Rule 7.1 Statement and Rule 7.1 Response, is assumed in this Decision and Order, which (again) is intended primarily for review by the parties. (Id.)

C. Defendants' Motion

Generally, in support of their motion to dismiss and/or for summary judgment, Defendants argue as follows: (1) the cause of action for malicious prosecution should be dismissed because, based on the factual allegations of Plaintiff's Amended Complaint and/or the admissible record evidence adduced by the parties, the prosecution against Plaintiff was supported by probable cause and the prosecution did not end in a favorable termination, as a matter of law; (2) the cause of action for malicious abuse of process should be dismissed for failure to allege facts plausibly suggesting, and/or adduce admissible record evidence establishing, either the intent or collateral-objective elements of a malicious-abuse-of-process claim; (3) the cause of action for false arrest/false imprisonment should be dismissed because, based on the factual allegations of Plaintiff's Amended Complaint and/or the admissible record evidence adduced by the parties, probable cause existed to arrest Plaintiff, as a matter of law; (4) the claims against Defendant Kapral should be dismissed because, based on the factual allegations of Plaintiff's Amended Complaint and/or the admissible record evidence adduced by the parties, he is entitled to qualified immunity, as a matter of law; and (5) the Monell claim against the Town of DeWitt should be dismissed because, based on the factual allegations of Plaintiff's Amended Complaint and/or the admissible record evidence adduced by the parties, no underlying meritorious individual § 1983 claim exists, as a matter of law. (See generally Dkt. No. 21, Attach. 11 [Defs.' Memo. of Law].)

In Plaintiff's response to Defendants' motion to dismiss (or in the alternative for summary judgment), he argues as follows: (1) Plaintiff's malicious prosecution claim should not be dismissed because (a) further discovery is needed to determine (i) whether the prosecution ended in a favorable termination, and (ii) whether an objective police officer would have believed from the evidence in front of him that a crime had been committed (i.e., whether Defendant Kapral had probable cause for commencing the proceeding against Plaintiff), and (b) Plaintiff has introduced evidence of Defendant Kapral's malice; (2) Plaintiff's malicious abuse of process claim should not be dismissed because Plaintiff has introduced evidence establishing both an intent to do harm as well as an evil motive and ulterior goal for Defendant Kapral's actions; (3) Plaintiff's false arrest/false imprisonment claim should not be dismissed because further discovery is needed to determine whether Defendant Kapral had probable cause to arrest Plaintiff; (4) Defendant Kapral is not entitled to qualified immunity; and (5) Plaintiff's Monell claim should not be dismissed because Defendants' sole argument for dismissal is premised on dismissal of Plaintiff's claims against Defendant Kapral. (See generally Dkt. No. 24, Attach. 1 [Plf.'s Response Memo. of Law].)

In their reply, Defendants essentially reiterate previously advanced arguments. (See generally Dkt. No. 25, Attach. 3 [Defs.' Reply Memo. of Law].) More specifically, Defendants argue as follows: (1) Plaintiff's false arrest and malicious prosecution claims should be dismissed because it is undisputed that Defendant Kapral had probable cause to arrest Plaintiff; (2) his malicious abuse of process claim should be dismissed because Plaintiff's response memorandum of law offers no plausible motive for Defendant Kapral's alleged malice; and (3) his Monell claim should be dismissed because Plaintiff's Amended Complaint fails to allege facts plausibly suggesting that the Town of DeWitt had a policy of failing to train or supervise its police officers. (Id.)

II. RELEVANT LEGAL STANDARDS

Although discovery has not been completed, Defendants have moved to dismiss under Fed. R. Civ. P. 12(b)(6), or in the alternative, for summary judgment under Fed. R. Civ. P. 56. In support of their motion, Defendants have submitted record evidence in the form of affidavits and exhibits.

"Where parties submit extra-pleading material such as affidavits and exhibits in connection with a motion to dismiss, a court has two options: it may either disregard such material or treat the motion as one for summary judgment." Amerol Corp. v. Am. Chemie-Pharma, Inc., 04-CV-0940, 2006 WL 721319, at *4 (E.D.N.Y. Mar. 17, 2006). "The latter option requires notice to the parties and the opportunity to present evidence outside the pleadings." Amerol Corp., 2006 WL 721319, at *4 (citing Groden v. Random House, Inc., 61 F.3d 1045, 1052 [2d Cir. 1995]). "Notice need not be express: '[t]he essential inquiry is whether the [party] should reasonably have recognized the possibility that the motion might be converted into one for summary judgment or was taken by surprise and deprived of a reasonable opportunity to meet facts outside the pleadings.'" Id. (quoting Groden, 61 F.3d 1053 [quoting In re G. & A. Books, Inc., 770 F.2d 288, 294-95 [2d Cir. 1985], cert. denied, 475 U.S. 1015 [1986]). "Formal notice is not required where both sides have supplied the court with matters outside the pleadings." Id. "Where a plaintiff submits an affidavit in connection with his opposition to the defendant's motion to dismiss, the plaintiff has invited the conversion and is deemed to have notice of it." Id. (citing Gurary v. Winehouse, 190 F.3d 37, 43 [2d Cir. 1999]). "Finally, although the decision of whether to disregard extra-pleading materials or convert a dismissal motion into one for summary judgment is committed to the district court's discretion, such conversion may not be appropriate before the parties have completed discovery. Id. (citing Lucas v. Planning Bd. of Town of LaGrange, 7 F. Supp.2d 310, 319 [S.D.N.Y. 1998]); Mann v. Meachem, 929 F. Supp. 622, 627-28 (N.D.N.Y. 1996) (McAvoy, J.) (treating motion to dismiss, or, in the alternative, for summary judgment, as motion for summary judgment because "[d]iscovery [wa]s nearly completed . . . and affidavits ha[d] been submitted").

Here, Plaintiff has submitted affidavits and exhibits in connection with his opposition to Defendants' motion to dismiss. In addition, despite arguing (both in his memorandum of law and in an attorney affidavit) that further discovery is necessary to address certain issues, Plaintiff has not provided the Court with an affidavit that satisfies the requirements of Fed. R. Civ. P. 56(d).*fn2

Instead, Plaintiff's attorney submitted a letter-brief, which indicated a need for further discovery (Dkt. No. 22, Attach. 1), and an affidavit, filed with in opposition to Defendants' motion for summary judgment, which indicated, inter alia, as follows: (1) he has not yet been able to depose . . . [D]efendant or his supervisors; (2) he has not yet been able to locate for deposition Patrick Quinn, the prosecutor who handled Plaintiff's criminal matter; (3) Mr. Quinn's testimony "is critical to the defense and ultimate resolution of some fundamental factual and legal issues"; (4) "Plaintiff has not had the chance to investigate the veracity of [Defendant] Kapral's claims or his methodology . . . [and], there is a substantial question as to the veracity, completeness, and reliability of the documents [D]efendants provided . . . as being the basis for their motion"; and (5) evidence exists that Defendant Kapral "manufactur[ed] criminal charges against Plaintiff," which necessitates further discovery. (Dkt. No. 24.) At best, these facts indicate how a genuine issue of material fact may exist with regard to certain elements of Plaintiff's claims. However, the Court cannot conceive of how these facts help establish a ...


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