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Leshontee Spencer v. Eric Ellsworth

May 10, 2011

LESHONTEE SPENCER, PLAINTIFF,
v.
ERIC ELLSWORTH, BRIAN MCCAUGHEY, NEW YORK CITY POLICE DEP'T, P.O. BISHOP, OFFICERS JOHN DOE AND JANE DOE 1-10. DEFENDANTS.



The opinion of the court was delivered by: John G. Koeltl, District Judge:

MEMORANDUM ORDER AND OPINION

The plaintiff, Leshontee Spencer, brought this action against the New York City Police Department ("NYPD"), NYPD Officers Eric Ellsworth and Brian McCaughey (the "Served Defendants"), and P.O. Bishop and Officers John Doe and Jane Doe 1-10 (the "Unserved Defendants"). The plaintiff alleges claims of malicious prosecution under 42 U.S.C. § 1983. The plaintiff also alleges claims of negligence and intentional infliction of emotional distress. The defendants move for summary judgment and dismissal pursuant to Federal Rules of Civil Procedure 56 and 12(c).

I

The standard for granting summary judgment is well established. "The Court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Gallo v. Prudential Residential Servs., LP, 22 F.3d 1219, 1223 (2d Cir. 1994). "[T]he trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution." Gallo, 22 F.3d at 1224. The moving party bears the initial burden of "informing the district court of the basis for its motion" and identifying the matter that "it believes demonstrate[s] the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323. The substantive law governing the case will identify those facts which are material and "[o]nly 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); see also Behringer v. Lavelle Sch. for Blind, No. 08 Civ. 4899, 2010 WL 5158644, at *1 (S.D.N.Y. Dec. 17, 2010).

In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)). Summary judgment is improper if there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the non-moving party. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994). If the moving party meets its burden, the non-moving party must produce evidence in the record and "may not rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible . . . ." Ying Jing Gan v. City of New York, 996 F.2d 522, 532 (2d Cir. 1993); see also Scotto v. Almenas, 143 F.3d 105, 114-15 (2d Cir. 1998) (collecting cases); Behringer, 2010 WL 5158644, at *1.

The standards to be applied to a motion pursuant to Rule 12(c) are the same as those applied to a motion pursuant to 12(b)(6). See, e.g., Cleveland v. Caplaw Enters., 448 F.3d 518, 521 (2d Cir. 2006). In deciding a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), the allegations in the complaint are accepted as true and all reasonable inferences must be drawn in the plaintiffs' favor. McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007); Gant v. Wallingford Bd. of Educ., 69 F.3d 699, 673 (2d Cir. 1995). The Court should not dismiss the complaint if the plaintiffs have stated "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). While the Court should construe the factual allegations in the light most favorable to the plaintiff, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Id.; see also SEC v. Rorech, 673 F. Supp. 2d 217, 221 (S.D.N.Y. 2009); First Am. Int'l Bank v. Comty.'s Bank, No. 10 Civ. 3775, 2011 WL 102716, at *4 (S.D.N.Y. Jan. 11, 2011).

In deciding the motion, the Court may consider documents that are referenced in the complaint, documents that the plaintiffs relied on in bringing suit and that either are in the plaintiffs' possession or were known to the plaintiffs when they brought suit, or matters of which judicial notice may be taken. Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002); see also Brass v. Am. Film Techs., Inc., 987 F.2d 142, 150 (2d Cir. 1993); Woodhams v. Allstate Fire & Cas. Co., No. 10 Civ. 441, 2010 WL 3858440, at *2 (S.D.N.Y. Sept. 28, 2010).

II

The following facts are undisputed unless otherwise noted.

On May 27, 2007, the plaintiff was arrested for the robbery of Javier Delarosa ("Delarosa"). (Defs.' 56.1 Stmt. ¶¶ 1, 5; Pl.'s 56.1 Stmt. ¶¶ 1, 5.) Prior to making this arrest, the NYPD received several 911 calls, one from Delarosa himself, reporting a robbery by two or three black males near the McDonald's Restaurant near Broadway and 145th Street in Manhattan, and stating that the perpetrators had fled the crime scene. (Defs.' 56.1 Stmt. ¶¶ 1, 2; Pl.'s 56.1 Stmt. ¶¶ 1, 2.) The NYPD dispatched officers to the crime scene, where they observed the two men, later identified as the plaintiff and his friend, Damon Neal, running away from the McDonald's, entering a car, and driving away. (Defs.' 56.1 Stmt. ¶ 3; Pl.'s 56.1 Stmt. ¶ 3.) After a short pursuit, the officers pulled over the vehicle, inside of which they found the plaintiff and three companions. (Defs.' 56.1 Stmt. ¶ 4; Pl.'s 56.1 Stmt. ¶ 4.) Officer McCaughey ("McCaughey") arrived on the scene and frisked the plaintiff, patting him down twice and removing a few items from the plaintiff's pockets. (Stavridis Decl., Ex. Q "Trial Tr." at 122-25.) While frisking the plaintiff, McCaughey did not pat down the plaintiff's groin or buttocks, and did not recover a weapon. (Trial Tr. at 123-25.) The plaintiff and his companions were arrested after Delarosa arrived and allegedly identified them as the men who had robbed him. (Defs.' 56.1 Stmt. ¶ 5; Pl.'s 56.1 Stmt. ¶ 5.)

Shortly after, Officer Ellsworth ("Ellsworth") arrived on the scene to transport the plaintiff to the precinct. (Defs.' 56.1 Stmt. ¶ 6; Pl.'s 56.1 Stmt. ¶ 6.) The plaintiff's hands were cuffed behind his back and the plaintiff was transported to the precinct in the rear of a patrol car. (Defs.' 56.1 Stmt. ¶ 7; Pl.'s 56.1 Stmt. ¶ 7.) When Ellsworth escorted the plaintiff, who remained handcuffed, into the precinct he heard a clank and saw a gun on the floor near the plaintiff's feet. (Defs.' 56.1 Stmt. ¶¶ 8-10; Pl.'s 56.1 Stmt. ¶¶ 8-10.) One of the plaintiff's companions, who was also in the precinct, made videotaped and written statements stating that he saw the gun drop from the plaintiff's shorts, although the plaintiff argues that the statements would be hearsay if offered for the truth of the statements. (Defs.' 56.1 Stmt. ¶ 11; Pl.'s 56.1 Stmt. ¶ 11; Stavridis Decl., Ex. G.) Delarosa testified before the grand jury that the plaintiff displayed a black gun during the course of robbing him.*fn1 (Defs.' 56.1 Stmt. ¶ 24; Pl.'s 56.1 Stmt. ¶ 24.) The plaintiff testified before the grand jury that he did not have a gun and that he did not drop the gun that fell by his feet at the precinct. (Defs.' 56.1 Stmt. ¶ 25; Pl.'s 56.1 Stmt. ¶ 25.)

Based in part on information from Ellsworth, McCaughey, the plaintiff's arresting officer, filed a criminal complaint against the plaintiff and his companions on May 28, 2007. (Stavridis Decl., Ex. K.) On June 15, 2007, a grand jury indicted the plaintiff on three counts of robbery and three counts of criminal possession of a weapon. (Defs.' 56.1 Stmt. ¶ 23; Pl.'s 56.1 Stmt. ¶ 23; Stavridis Decl., Ex. L.) More specifically, the plaintiff was charged with two counts of criminal possession of a weapon in the second degree for the alleged possession of a loaded firearm, and one count of criminal possession of a weapon in the third degree for the possession of a gravity knife which Delarosa claimed was displayed in the course of the robbery. (Stavridis Decl., Ex. L at 2-3, Ex. D.) Prior to trial, the Assistant District Attorney withdrew the robbery charges against the plaintiff. It is undisputed that Delarosa was not available for trial. (Defs.' 56.1 Stmt. ¶ 28; Pl.'s 56.1 Stmt. ¶ 28.) At the close of trial, the jury acquitted the plaintiff of the remaining weapons charges, namely criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree. (Defs.' 56.1 Stmt. ¶ 29; Pl.'s 56.1 Stmt. ¶ 29.)

On April 14, 2009, the plaintiff initiated this action alleging, among other claims, malicious prosecution in violation of 42 U.S.C. § 1983, as well as state claims of negligence, and intentional infliction of emotional distress. (Defs.' 56.1 Stmt. ¶ 30; Pl.'s 56.1 Stmt. ¶ 30.) The plaintiff filed a Supplemental Complaint ("Compl.") dated September ...


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