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Oliver Salmon v. T.L. Hansen

November 30, 2011


The opinion of the court was delivered by: Mae A. D'Agostino, U.S. District Judge:



On January 8, 2010, Plaintiff commenced this action pursuant to 42 U.S.C. § 1983, alleging violations of his civil rights as a result of events that occurred on the morning of August 19, 2007. See Dkt. No. 1. The complaint contains six counts that allege federal and state-law causes of action for, among other things, false imprisonment, false arrest, illegal seizure, malicious prosecution, intentional infliction of emotional distress, and racial profiling. See id. at ¶¶ 65-83.

Currently before the Court are Defendants' motion for summary judgment and Plaintiff's cross motion for summary judgment as to liability.


On August 19, 2007, in the early morning, Plaintiff and two other men were driving on North Pearl Street, in Albany, New York. See Dkt. No. 19-2 at ¶ 7. A large crowd of people congregating in the street blocked the way, forcing the driver of the vehicle to attempt to go around. See id. at ¶ 8. Plaintiff claims that, as the driver attempted to go around the crowd, it appeared that someone in the crowd had hit the car, so the driver pulled over to investigate. See id. at ¶ 9. Thereafter, Plaintiff alleges that, as soon as he and the driver exited the car, they were attacked by the crowd. See id. at ¶ 10. Plaintiff claims that, once he was able to break free from his attackers, he first ran to Jillian's nightclub to seek help, but was refused. See id. at ¶ 16. Upon being refused, Plaintiff alleges that he found a taxicab and got inside. See id. at ¶ 17. The cab, however, refused to leave as the crowd surrounded the vehicle.

On August 19, 2007, Defendants Hansen and Kittleman were working the midnight shift. See Dkt. No. 18-17 at ¶¶ 2, 4. At some point during the early morning hours of August 19, 2007, Defendants Hansen and Kittleman were dispatched to the area near Jillian's nightclub, which is located at 59 North Pearl Street, because of a report of a fight with multiple stab victims. See id. at ¶¶ 6-7; Dkt. No. 19-2 at ¶ 18. Upon Defendant Kittleman's arrival, he was directed by Sergeant James Gallagher to act as crowd control and to prevent further incidents of violence. See Dkt. No. 18-17 at ¶ 8. Upon arriving, "Defendant Hansen observed a 'chaotic' scene with at least 100 people in the vicinity, 'running and scattering all over the place.'" See Dkt. No. 19-2 at ¶ 20 (citing Hansen deposition, pages 32, 47). Upon Defendant Hansen's arrival, however, she stopped at the area of the intersection of Pine and Pearl Streets because she was flagged down by a taxicab driver. See id. at ¶ 11; Dkt. No. 19-2 at ¶ 19. Defendant Hansen asserts that the taxicab driver told her that Plaintiff had gotten into the back seat of his taxi and told him to "get out of here." See Dkt. No. 18-17 at ¶ 12. Upon approaching the taxicab, several members of the crowd that had surrounded the car yelled that Plaintiff, the occupant of the taxi, had stabbed somebody. See id. at ¶ 16; Dkt. No. 19-2 at ¶ 28. Several other people in the crowd, however, yelled that Plaintiff had not done anything wrong and that Defendants were taking into custody the wrong person. See Dkt. No. 19-2 at ¶ 31 Plaintiff was then transported to the emergency room at Albany Medical Center for treatment of a stab wound that he sustained at some point prior to his arrest. See Dkt. No. 19-5 at 3. While at the emergency room, Defendant Hansen took Plaintiff's property and observed that he had three cell phones in his possession. Plaintiff explained that he found a third phone on the ground when he retrieved his and the driver's phones, which had both been knocked from their hands during the crowd's attack.

At the same time that Plaintiff was being treated for his stab wound at Albany Medical Center, an individual named Robert Hanks was also there for treatment of a wound that he had suffered during the same incident on Pearl Street. See Dkt. No. 19-2 at ¶¶ 42, 51. Defendant Kittleman accompanied Mr. Hanks. See id. at ¶¶ 44,58. Mr. Hanks gave Defendant Kittleman a statement concerning the morning's events. See id. at ¶ 44. In this statement, Mr. Hanks informed Defendant Kittleman that his cell phone was missing and that he dropped the phone during that morning's incident. See id. at ¶¶ 57-58.

As a result of the incidents on the morning of August 19, 2007, Plaintiff was charged with Assault in the Second Degree, Criminal Possession of a Weapon in the Fourth Degree, and Criminal Possession of Stolen Property. See Dkt. No. 19-5 at 4. Plaintiff was denied bail and he spent three additional nights in jail. See id.

In support of the charges, Defendants obtained the supporting deposition of John Mantynen, an alleged eyewitness to the events of that morning and Mr. Hanks' friend. See Dkt. No. 18-15. In Mr. Mantynen's sworn statement, he stated that he and Mr. Hanks were outside watching as bouncers from a nightclub were trying to get a person who was involved in a fight to leave. See id. at 1. While this was occurring, everyone observing the events "kind of ended up in the middle of the street and then a car drove by and [Mr. Mantynen] heard a thump and saw that the side mirror clipped somebody and the mirror then fell off." See id. At this point, someone in the crowd yelled at the car, which stopped as the crowd moved towards it. See id.

Mr. Mantynen then described the driver of the vehicle and a passenger, who was later identified as Plaintiff. See id. (noting that the "passenger was wearing a light brown jump suit and had his hair in a ponytail and had a baseball hat on"). Mr. Mantynen stated that, after the men in the car exited their vehicle, fighting resumed and Mr. Hanks was next to the driver and the driver was getting "pushed around." See id. At this point, Mr. Mantynen claims that he "saw the passenger who was wearing the light brown jump suit go up and cut [Mr. Hanks] on the forehead." See id. Mr. Mantynen admits, however, that he "didn't see a knife or anything sharp in the guy's hand but I saw the minute he struck [Mr. Hanks] on the forehead and slashed him blood started coming from [Mr. Hanks'] forehead." See id. After trying to get the bouncers at Jillian's nightclub to restrain Plaintiff and following the attacker while he fled the scene, Mr. Mantynen went back to the nightclub he was at to get Mr. Hanks and others they were with. See id. at 1-2. Mr. Mantynen claims that, after returning, he noticed that "[t]hey had the guy who slashed [Mr. Hanks] in cuffs in front of Jillians." See id. He then approached the police and "told him [that he] was positive that the guy they had in handcuffs was the guy who" cut his friend. See id. at 2. Despite the fact that Plaintiff was no longer wearing his hat, he was still wearing the light brown jumpsuit and ponytail, and Mr. Mantynen stated that he "was positive that the guy they had in handcuffs was the guy who" cut his friend. See id. At some point after this event, Detective Kevin Quinlivan told Mr. Mantynen that Plaintiff was the person in custody. See id.

In a decision and order dated September 16, 2008, Albany City Court Judge Rachel L. Kretser dismissed the Criminal Possession of a Weapon in the Fourth Degree charge filed against Plaintiff because the information was insufficient on its face. See Dkt. No. 19-10 at 1-2. The court noted that the supporting deposition stated that Mr. Mantynen "didn't see a knife or anything sharp in the [Plaintiff's] hand." See id. at 2. As such, the court found that the "non-hearsay allegations fail to establish, if true, every element of the offense charged." See id. (citation omitted). Thereafter, the court refused to dismiss the Criminal Possession of Stolen Property in the Fifth Degree charge because of Defendant Kittleman's sworn statement. See id. at 3.

At a hearing on May 8, 2009, the remaining charges against Plaintiff were dismissed "in the interest of justice[.]" See Dkt. No. 19-11 at 3.


A. Standard of review

1. Summary judgment standard

A court may grant a motion for summary judgment only if the court determines that there is no genuine issue of material fact to be tried and that the facts as to which there is no such issue warrant judgment for the movant as a matter of law. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36 (2d Cir. 1994) (citations omitted). When analyzing a summary judgment motion, the court "'cannot try issues of fact; it can only determine whether there are issues to be tried.'" Id. at 36-37 (quoting Donahue v. Windsor Locks Board of Fire Commissioners, 834 F.2d at 58) (other citation omitted). Furthermore, in assessing the record to determine whether any such issues of material fact exist, the court is required to resolve all ambiguities and draw all reasonable inferences in favor of the nonmoving party. See id. at 36 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 2513-14, 91 L. Ed. 2d 202 (1986)) (other citations omitted).

Federal Rule of Civil Procedure 56 provides that, if a non-moving party fails to oppose a summary judgment motion, then "summary judgment, if appropriate, shall be entered against the adverse party." Fed. R. Civ. P. 56(e)(2) (emphasis added). The Second Circuit has made clear, however, that where the non-moving party "chooses the perilous path of failing to submit a response to a summary judgment motion, the district court may not grant the motion without first examining the moving party's submission to determine if it has met its burden of demonstrating that no material issue of fact remains for trial[,]" Amaker v. Foley, 274 F.3d 677, 681 (2d Cir. 2001), and that he is entitled to judgment as a matter of law, see Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996) (quoting Fed. R. Civ. P. 56(c)).

Moreover, in determining whether the moving party has met its burden of showing the absence of a genuine issue for trial, the district court may not rely solely on the statement of undisputed facts contained in the moving party's Rule 56.1 statement. Rather, the court must be satisfied that the citations to evidence in the record support the movant's assertions. See Giannullo v. City of N.Y., 322 F.3d 139, 143 n.5 (2d Cir. 2003) (holding that not verifying in the record the assertions in the motion for summary judgment "would derogate the truth-finding functions of the judicial process by substituting convenience for facts").

2. Relief under 42 U.S.C. § 1983

Section 1983 imposes liability for "conduct which 'subjects, or causes to be subjected' the complainant to a deprivation of a right secured by the Constitution and laws." Rizzo v. Goode, 423 U.S. 362, 370-71 (1976) (quoting 42 U.S.C. § 1983). Not only must the conduct deprive the plaintiff of rights and privileges secured by the Constitution, but the actions or omissions attributable to each defendant must be the proximate cause of the injuries and consequent damages that the plaintiff sustained. See Brown v. Coughlin, 758 F. Supp. 876, 881 (S.D.N.Y. 1991)(citing Martinez v. California, 444 U.S. 277, 100 S. Ct. 553, 62 L. Ed. 2d 481, reh. denied, 445 U.S. 920, 100 S. Ct. 1285, 63 L. Ed. 2d 606 (1980)). As such, for a plaintiff to recover in a section 1983 action, he must establish a causal connection between the acts or omissions of each defendant and any injury or damages he suffered as a result of those acts or omissions. See id. (citing Givhan v. Western Line Consolidated School District, 439 U.S. 410, 99 S. Ct. 693, 58 L. Ed. 2d 619 (1979)) (other citation omitted).

B. False arrest

"A § 1983 claim for false arrest, . . . including arrest without probable cause, . . . is substantially the same as a claim for false arrest under New York law[.]" Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996) (internal citations omitted). Under both New York law and the Fourth Amendment to the United States Constitution, the elements of a false arrest action are as follows: "'(1) the defendant intended to confine [the plaintiff], (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not consent to the confinement and (4) the confinement was not otherwise privileged.'" Curry v. City of Syracuse, 316 F.3d 324, 335 (2d Cir. 2003)(quotation omitted).

Defendants do not contest the first three elements. Accordingly, the only question is whether Plaintiff's arrest was "privileged" or "justified." "'Justification may be established by showing that the arrest was based on probable cause.'" Savino v. City of N.Y., 331 F.3d 63, 76 (2d Cir. 2003) (quotation omitted). Probable cause exists "when the arresting officer has '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 a crime or is committing a crime.'" Escalera v. Lunn, 361 F.3d 737, 743 (2d Cir. 2004) (quotation omitted). "The existence of probable cause must be determined on the basis of the totality of the circumstances, . . . and 'where law enforcement authorities are cooperating in an investigation . . . , the knowledge of one is presumed shared by all.'" Calamia v. City of New York, 879 F.2d 1025, 1032 (2d Cir. 1989) (internal citation and quotation omitted). "An officer retains probable cause to arrest a plaintiff 'even if the probable cause was for a crime different from what the police officers believed to have been committed.'" Davis v. City of New York, 373 F. Supp. 2d 322, 330 (S.D.N.Y. 2005) (quotation and other citations omitted).

Defendants assert that Defendant Hansen had probable cause to arrest Plaintiff for committing the crimes of assault and criminal possession of a weapon. See Dkt. No. 18 at 4. Further, Defendants contend that Defendant Kittleman had probable cause to arrest Plaintiff for criminal possession of stolen property. See id. at 5-6. Plaintiff argues that Defendants did not have probable cause to arrest him because, among other things, the alleged probable cause resulted from hearsay statements that failed to satisfy both parts of the Aguilar-Spinelli test. See Dkt. No. 19-5 at 7-8.

The Court agrees with Defendants. Considering the totality of the circumstances, Defendants had probable cause to arrest Plaintiff for the assault charge based on the allegations proffered by the witnesses when Defendants arrived at the scene.*fn1 As the Second Circuit has held, "'a claim for false arrest turns only on whether probable cause existed to arrest a defendant, and that it is not relevant whether probable cause existed with respect to each individual charge, or, indeed, any charge actually invoked by the arresting officer at the time of arrest.'" Rutligliano v. City of New York, 326 Fed. Appx. 5, 8 (2d Cir. 2009) (quoting Jaegly v. Couch, 439 F.3d 149, 154 (2d Cir. 2006)) (other citation omitted).

For example, although not charged with this crime, in New York, a person is guilty of assault ...

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