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John E. Johnston and Gina Johnston v. Port Authority of New York and New Jersey

July 28, 2011

JOHN E. JOHNSTON AND GINA JOHNSTON, PLAINTIFFS,
v.
PORT AUTHORITY OF NEW YORK AND NEW JERSEY, BRIAN SULLIVAN, TIMOTHY MCGOVERN, SAMUEL PLUMERI, MICHAEL MILNE, AND
JOSE ALBA, INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIES,*FN1 DEFENDANTS.



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

MEMORANDUM AND ORDER

John E. Johnston ("Johnston"), a police officer with the Port Authority of New York and New Jersey ("Port Authority"), and his wife Gina Johnston ("Mrs. Johnston") bring this action against the Port Authority and five of its employees in connection with events surrounding Johnston's 2008 administrative suspension from the Port Authority and his subsequent criminal prosecution for possession of a forged instrument and unlawful use or possession of an official police card. Defendants have moved for summary judgment, seeking dismissal of all claims. For the reasons stated below, the motion is granted in its entirety.

BACKGROUND

A. Factual Background*fn2

1. The Halloween Prank

Johnston is a police officer in the Port Authority's Public Safety Department ("PSD"). (¶ 7.) In November 2008, he was assigned to the John F. Kennedy International Airport ("JFK") command. (Id.) In the early morning hours of November 1, 2008, Johnston was assigned to a post at JFK with fellow officer Frank Annuziata. (Johnston Dep. 95-96.) At some point that night, Annuziata engaged in what Johnston calls a Halloween prank. Specifically, Annuziata left Johnston in their patrol car, and when he returned, he told Johnston that he had smeared mustard underneath the door handle of their supervisor's car. (Id. 96-97.) The officers' supervisor, Sergeant Patrick Ryan, apparently perceived no humor in the situation, and he filed a criminal complaint report with the JFK command. (¶¶ 9-11.)

2. The Investigation, Suspension and Arrest of Johnston Detectives from the JFK command investigated the mustard caper. They recovered evidence, including a mustard jar found in a patrol car. They also searched a dumpster accessible only to the police and recovered another mustard jar, a cloth towel, paper towels, and a glove smeared with mustard. (¶¶ 12-14.) The Commanding Officer at the JFK command contacted the PSD's Internal Affairs Division ("IAD"), a component of the Internal Affairs Bureau ("IAB"). (¶ 12.) Defendants Sergeant Jose Alba, Sergeant Michael Milne and Lieutenant Timothy McGovern, all PSD employees who were assigned to the IAB, visited the JFK command on November 3, 2008. (¶¶ 5, 13.) McGovern viewed video footage showing an officer operating and walking away from the patrol car in which one of the mustard jars had been found. (¶¶ 14-15.) A supervising officer who reviewed the video with McGovern identified the officer in the video as Johnston. (¶ 15.)

Later that night, McGovern conducted a post inspection of Johnston. (¶ 16.) In violation of regulations, Johnston did not have his driver's license or Port Authority police ID card on his person. (Johnston Dep. 83-84.) McGovern arranged transportation for Johnston to return to his personal vehicle to retrieve his driver's license and ID card. (Id. 84.) With McGovern's permission, before he returned to his car, Johnston called Police Benevolent Association ("PBA") representative William Piatti, because he believed he was being harassed by McGovern. (¶ 17; Johnston Dep. 86-87, 91.) During the post inspection, McGovern also confiscated Johnston's memo book because its cover was not in good condition, and he said he would give Johnston a new one. (Johnston Dep. 85.)

The following day, November 4, 2008, McGovern spoke to his supervisor, defendant Police Inspector Brian Sullivan, about the developing investigation of Johnston. (¶ 18.) Sullivan obtained authorization from defendant Samuel Plumeri -- then Superintendent of Police and Director of PSD -- to suspend Johnston. (¶¶ 6, 18.) McGovern, accompanied by Alba and Milne, returned to the JFK command that evening to suspend Johnston. (¶ 19.) After roll call, Johnston was directed by his tour commander to report to his office and to bring a PBA representative with him. (¶ 20.) Johnston arrived with Piatti at the tour commander's office and found McGovern, Alba and Milne waiting for him there. (¶ 20-21.) McGovern handed Johnston a new memo book cover to replace the one he had taken the night before. (Johnston Dep. 25.) McGovern then asked Johnston for his Port Authority police ID card. (Id. 25-26.) When Johnston removed his Port Authority police ID from his wallet, McGovern "observed what appeared to him to be an NYPD ID card inside Johnston's wallet." (¶ 24.) McGovern asked to look at the NYPD card he had seen, but Johnston closed his wallet and returned it to his pocket. (¶ 25.) McGovern expressed his belief that he had seen an NYPD ID card and again asked to see it, at which point Piatti told him that the card was memorabilia and that Johnston did not have to turn it over. (¶ 26.) Johnston then removed the wallet from his pocket and took out an expired LaGuardia ID card from a compartment other than the one in which McGovern had glimpsed the NYPD card. (¶ 27.) McGovern said that the LaGuardia card was not what he had seen, and Piatti responded that it was. (¶ 27.) McGovern continued to ask for the card and eventually ordered that it be turned over, but Johnston refused. (¶ 28.)

Milne contacted the NYPD, which confirmed that it wanted the ID card returned. (¶ 29.) McGovern contacted Sullivan, who in turn spoke with two Queens Assistant District Attorneys ("ADAs"). (¶ 29-30.) The ADAs told Sullivan that he had probable cause to arrest Johnson for possession of the NYPD ID card. (¶ 30.) After these phone calls had been placed, Sullivan, PBA counsel John McAusland, and PBA vice president Bobby Morris arrived at the JFK tour commander's office. (¶¶ 31; Johnston Dep. 45, 48, 51-52.) Sullivan instructed Johnston to turn over the NYPD ID card, and when he did not comply, Sullivan told Milne to arrest him. (¶ 31.) Milne turned Johnston around and rear handcuffed him. (Johnston Dep. 79.) The wallet was recovered from his pants (¶ 32; Johnston Dep. 62-63), and Milne seized the NYPD ID card from the wallet (¶ 32). Officials of the NYPD Internal Affairs Bureau, who had arrived at the JFK command, examined the card and concluded that it was a forgery. (¶ 33.) McAusland, Piatti and Morris accompanied Johnston to a rear office, where one of them informed him that he was charged with criminal possession of a forged instrument. (Johnston Dep. 61-62; ¶ 34.) Johnston was issued a desk appearance ticket with a February 2009 return date and told that he was now under full suspension. (Johnston Dep. 63-64; ¶ 34.)*fn3

3. The Criminal Case

Johnston was charged with criminal possession of a forged instrument in the third degree and unlawful use or possession of official police cards. (¶ 35.) The criminal information by which he was charged contained a sworn statement by McGovern that he had recovered an NYPD ID card from Johnston and had shown the card to an officer in the IAB, who informed him after an examination that the card was not genuine and that the police commissioner had not given permission for the card to be reproduced. (See Denalli Decl. Ex. K 118, 129, May 18, 2011, ECF No. 28-11 ("Ex. K").)On January 28, 2009, a Queens Criminal Court judge denied Johnston's motion to dismiss the information for facial insufficiency. (Ex. K 118-22.) After granting a request for reargument of Johnston's motion to dismiss, the court on April 13, 2009 deemed the information facially insufficient because it contained insufficient factual evidence of the requisite intent to defraud and insufficient non-hearsay facts indicating that the card was forged and issued without the police commissioner's permission. (Ex. K 128-132.) The information was dismissed. (Ex. K 142.)

The Queens County District Attorney's Office then filed a superseding information. (¶ 36-37.) This information was accompanied by an affidavit of Investigator Diane Klass of the NYPD Identification Card Unit, who had examined the card and, based on its color, text, shape, and texture, determined it to be a forgery. Klass also noted that the card bore an expiration date of December 31, 2006. Detective Thomas Janow of the NYPD also submitted an affidavit stating that his review of NYPD personnel records revealed that Johnston had resigned from the NYPD on July 16, 2002 and had surrendered his valid NYPD ID card to the NYPD at that time. (Ex. K 138-142.) Johnston moved for dismissal of the superseding information, and on June 12, 2009, it was dismissed as facially insufficient. (Ex. K 143-46.) This time, the court found that sufficient facts had been alleged that the card was forged and that the defendant knew it was forged, but held that the information contained insufficient allegations that Johnston intended to defraud another with the card. (Id.) The District Attorney's Office did not appeal the dismissal and did not file a new superseding information. (¶ 38.)

4. Johnston's Federal Case

Johnston and his wife commenced this action on October 16, 2009 by filing a complaint against the Port Authority, Sullivan, McGovern, Plumeri, Milne, and Alba. Johnston asserts claims pursuant to 42 U.S.C. § 1983 for false arrest, malicious prosecution, and violation of his right to free speech. He also brings state common-law claims for assault, false arrest, false imprisonment, malicious prosecution, abuse of process, intentional infliction of emotional distress, and defamation. Mrs. Johnston brings a claim for loss of consortium. Both plaintiffs seek compensatory and punitive damages plus attorneys' fees and costs.

On May 18, 2011, the defendants filed a motion for summary judgment pursuant to Fed. R. Civ. P. 56, seeking dismissal of all claims. As required by Rule 56.1 of the Local Civil Rules of the United States District Court for the Eastern District of New York, the defendants annexed to their motion a statement "of the material facts as to which the moving party contends there is no genuine issue to be tried." Local R. 56.1(a). Rule 56.1 instructs a party opposing summary judgment to submit a response to the moving party's Rule 56.1 statement. Id. 56.1(b). Each factual statement set forth in the movant's Rule 56.1 statement "will be deemed to be admitted for purposes of the motion unless specifically controverted" in the opposing Rule 56.1 statement. Id. 56.1(c) (emphasis in original). In opposing defendants' summary judgment motion, plaintiffs have failed to respond to defendant's Rule 56.1 statement. Accordingly, all facts contained in that statement are deemed admitted for the purposes of this motion.

DISCUSSION

A. Legal Standard for a Rule 56 Motion for Summary Judgment

A motion for summary judgment should be granted only if the pleadings and documentary evidence "show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c)(2). "An issue of fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Fincher v. Depository Trust & Clearing Corp., 604 F.3d 712, 720 (2d Cir. 2010). "A fact is material if it might affect the outcome of the suit under the governing law." Id. When applying this standard, the court must "resolve all ambiguities, and credit all factual inferences that ...


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