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Powell v. Murphy

United States District Court, E.D. New York

September 3, 2013

DAVID POWELL, Plaintiff,
DANIEL MURPHY, badge no. 5040, individually and in his official capacity, ROBERT SUPPA, badge no. 1359, individually and as a detective of the Suffolk County, N.Y. Police Department; OFFICER TRUESDELL, badge no. 1349, individually and in his official capacity, EILEEN O'CONNELL, individually and COUNTY OF SUFFOLK, N.Y., Defendants

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For the Plaintiff: Arthur V. Graseck, Jr., Oakdale, NY.

For the Defendants Daniel Murphy, Robert Suppa, Officer Truesdell and County of Suffolk: Paul J. Margiotta, Acting Suffolk County Attorney, Brian C. Mitchell, Assistant County Attorney, Hauppauge, NY.

For the Defendant Eileen O'Connell: Peter Basil N. Christy, Esq., of Counsel., PETROCELLI & CHRISTY, New York, NY.

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ARTHUR D. SPATT, United States District Judge.

On May 26, 2011, the Plaintiff David Powell (" the Plaintiff" ) commenced this action against (1) the Defendants Daniel Murphy (" Murphy" ), Robert Suppa (" Suppa" ) and Donald Truesdell (" Truesdell" ), individually and in their official capacities as officers of the Suffolk County Police Department; (2) the Defendant Eileen O'Connell (" O'Connell" ), individually; and (3) the County of Suffolk (" the County" ) (collectively, " the Defendants" ). Pursuant to 42 U.S.C. § § 1983, 1988 and the Fourth Amendment to the United States Constitution, the Plaintiff claims that the Defendants Murphy, Suppa, Truesdell and the County violated his Fourth Amendment rights to be free from false arrest and malicious prosecution. The Plaintiff also brings a supplemental claim under the common law of the State of New York against the Defendant O'Connell for false arrest and malicious prosecution.

Pending before the Court is the joint motion for summary judgment pursuant to Federal Rule of Civil Procedure (" Fed. R. Civ. P." ) 56 by Murphy, Suppa, Truesdell and the County. They allege that they are entitled to summary judgment because (1) probable cause existed to arrest the Plaintiff based on the sworn statement of O'Connell; (2) they are entitled to qualified

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immunity as there existed " arguable" probable cause to charge the Plaintiff; (3) Truesdell is entitled to absolute witness immunity; and (4) the Plaintiff cannot recover against the County under § 1983, since he lacks evidence that a municipal custom and/or policy caused a violation of his civil rights.

Also pending before the Court is O'Connell's motion for summary judgment. According to O'Connell, summary judgment should be granted in her favor because the Plaintiff cannot establish (1) that O'Connell initiated the criminal legal proceeding against him; (2) that O'Connell lacked probable cause; and (3) that there was actual malice on the part of O'Connell.

For the reasons that follow, the Court grants both motions for summary judgment in favor of the Defendants.


Unless otherwise stated, the following facts are drawn from the exhibits accompanying the Defendants' motions for summary judgment, the Plaintiff's opposition papers and the Defendants' replies. The facts are construed in the light most favorable to the Plaintiff as the nonmoving party.

O'Connell is a forty-two year old nurse and mother of two children, a ten year old and a nine-year old. (O'Connell Decl., ¶ 3.) She and her children reside at 249 Astor Drive, Sayville, New York, which is a residential neighborhood with other families with children. (O'Connell Decl., ¶ 3.) O'Connell has worked as a nurse for more than twenty years, and has worked as a nursing instructor for approximately seven years. (O'Connell Decl., ¶ 3.)

On September 26, 2010, at about 11:00 a.m., O'Connell was sitting outside grading papers on a chair on the front porch of her home, which was elevated above the street. (O'Connell Decl., ¶ 4.) At about that time, she observed a white commercial van pull up and park in front of her house. (O'Connell Decl., ¶ 4.) She further observed the Plaintiff inside the van with his hands down in the area of his pants and moving one of his hands up and down. (O'Connell Decl., ¶ ¶ 2, 4.)

In order to confirm what she was observing, O'Connell came down from her porch, walked through her garden and peered through some sparse bushes at the edge of her property, which separated her from the van. (O'Connell Decl., ¶ 4.) Upon closer observation, O'Connell alleges she saw the man manipulating his erect penis with his hand and that she heard " moaning or grunting noises." (O'Connell Decl., ¶ 5.) O'Connell believed the Plaintiff was masturbating. (O'Connell Decl., ¶ 2.) At this point, O'Connell wrote down the license plate number of the van on one of the papers she had been grading and ran to the back of her house, where her children were playing. (O'Connell Decl., ¶ 5.) She brought her children inside the house and locked the door. (O'Connell Decl., ¶ 5.)

O'Connell called her friend and neighbor, the Defendant Murphy, who was a police officer for the Defendant County, and asked him what she should do. (O'Connell Decl., ¶ 5.) Murphy advised that she call 911 to report what she observed. (O'Connell Decl., ¶ 5.) Based on Murphy's advice, O'Connell called 911 to report the incident and provided the 911 operator with the license plate number of the van. (O'Connell Decl., ¶ 5.) O'Connell claims that at the time, while she thought the conduct she observed and believed to be masturbation in a van on a public street was " wrong," she had no knowledge of the law and/or whether the conduct was a crime. (O'Connell Decl., ¶ 6.)

Approximately two days later, Murphy and his partner visited O'Connell at her

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home to investigate the incident. (O'Connell Decl., ¶ 6.) Allegedly afraid that the Plaintiff might come back to confront her and her family, O'Connell was uncertain as to whether to file an official complaint. Murphy advised the Plaintiff that she should proceed forward with her report and that official authorities would determine what would follow. (O'Connell Decl., ¶ 6.) Following Murphy's advice, O'Connell signed a written statement, taken by Murphy, detailing what O'Connell had observed. (O'Connell Decl., ¶ 6; O'Connell Mot., Ex. B.) In her sworn written statement, O'Connell alleged that the Plaintiff was masturbating in front of her house " where anyone could see him." (O'Connell's Mot., Ex. B.)

However, according to the Plaintiff, O'Connell falsely swore that she heard moaning and saw the Plaintiff masturbating where anyone could see him when this, in fact, was not the case. (Powell Aff., ¶ ¶ 4, 9.) In this regard, the Plaintiff takes issue with the phrase " where anyone could see him." He suggests that O'Connell could not have been a casual passerby, since (1) she admitted that she observed the Plaintiff from behind the bushes about five or six ...

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