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Banno v. City of New York

United States District Court, S.D. New York

February 25, 2015

YUSUKE BANNO, Plaintiff,
CITY OF NEW YORK, et al., Defendants.


RICHARD J. SULLIVAN, District Judge.

Plaintiff Yusuke Banno ("Plaintiff") brings this action against the City of New York (the "City"), NYPD Officer John Park ("Park"), and John Doe NYPD Undercover Badge 6216[1] ("UC, " and, collectively with Park, the "Individual Defendants"), alleging claims for false arrest and malicious prosecution under 42 U.S.C. § 1983 and New York State law. (Doc No. 1 ("Compl.").) Now before the Court is Defendants' motion for summary judgment as to the entirety of the Complaint. For the reasons set forth below, Defendants' motion is granted in part and denied in part.


A. Facts[2]

This action arises out of events leading up to the 2004 Republican National Convention (the "Convention"), which was held in New York City between August 30 and September 2, 2004. (Def. 56.1 Stmt. ¶ 1.) The Convention drew hundreds of thousands of visitors to New York, and resulted in large-scale demonstrations by protestors, and, ultimately, mass arrests of protesters by members of the NYPD. ( Id. ¶ 9.) Among those demonstrations was a parade held by United for Peace and Justice (the "Parade") on August 29, 2004. ( Id. ¶ 9.) Relevant to the instant action, the Parade was marred by the torching of a papier-mache dragon float - approximately 10 feet tall and 10 feet wide, with a 20-30 foot tail - which was set ablaze in a large fire sometime before 4:00 p.m. on Seventh Avenue between 33rd Street and 34th Street in Manhattan. ( Id. ¶¶ 9, 30.) The fire ultimately led to Plaintiff's arrest. ( Id. )

The events leading up to and following the fire are disputed. At the time of the fire, Officer Park was approximately five to ten feet from the dragon float. ( Id. ¶ 67.) He observed at least ten people involved in lighting the fire. ( Id. ¶ 69.) According to Park's deposition testimony, when the fire started, Park attempted to move toward it, but encountered people blocking him in an apparent effort to stop him from getting closer to the fire ( id. ¶¶ 71-72, 75); he testified that Plaintiff was one of these people ( id. ¶ 79). Subsequently, according to Park, the group of people that included Plaintiff engaged in a struggle with Park, after which everyone but Plaintiff and Park fled the scene. ( Id. ¶¶ 82-88.) Park then put handcuffs on Plaintiff and took him to Sixth Avenue, then summoned his supervisor. ( Id. ¶¶ 88, 90.) At that time, Park's supervisor saw that Park was injured, and ordered Park to leave Plaintiff in another officer's custody and to seek medical attention. ( Id. ¶ 94.) Police Officer Orlando Rivera ("Rivera") then took custody of Plaintiff, near 34th Street and Sixth Avenue, and processed the arrest after being told by his supervisors what Plaintiff was alleged to have done. ( Id. 102-05.) Rivera also spoke with Park at that time. ( Id. ¶ 115.)

UC was also in the vicinity of the dragon at the time of the fire, and called the RNC Fusion Center to report his observations pertaining to the fire. (Def. 56.1 Stmt. ¶¶ 31, 37; Pl. Counter-Stmt. ¶¶ 31, 37.) UC asserts that he observed people trying to light the dragon on fire, and that one of the people he saw holding matches and attempting to light the dragon was Plaintiff. (Def. 56.1 Stmt. ¶¶ 32-35.) Later, when Plaintiff was at Sixth Avenue in Rivera's custody, UC identified Plaintiff to Rivera as one of the people who started the fire ( id. ¶ 40), an identification Rivera referenced in Plaintiff's arrest paperwork ( id. ¶ 117-120). For his part, Plaintiff disputes some of the deposition testimony of Park and UC, asserting that he did not participate in lighting the fire (Pl. Counter-Stmt. ¶¶ 32-33, 41), and never struggled with Park or attempted to block Park from getting to the fire ( id. ¶¶ 72, 75, 77, 79, 82-85, 87, 88).

On September 2, 2004, Plaintiff was indicted by a grand jury on charges of assault, reckless endangerment, riot, and loitering. ( Id. ¶ 18.) Rivera testified in front of the grand jury, and it is undisputed that he gave truthful answers to every question. ( Id. ¶ 123.) However, Plaintiff has not unsealed the minutes of the grand jury proceeding, and there is no evidence in the record as to what other evidence the government presented to the grand jury. ( Id. ¶ 126.) Subsequently, on May 17, 2006, the charges against Plaintiff were dismissed by the New York County District Attorney's Office. ( Id. ¶ 21.)

B. Procedural History

On March 23, 2006, Plaintiff commenced this action against Defendants by filing the Complaint, alleging a federal false arrest claim against the Individual Defendants, [3] a federal malicious prosecution claim against the Individual Defendants, a First Amendment § 1983 claim against the Individual Defendants, and a New York State law claim for malicious prosecution against all Defendants. (Compl.)[4] On May 30, 2014, Defendants filed the instant motion for summary judgment (Doc. No. 108), which was fully briefed following Defendants' reply on July 21, 2014 (Doc. No. 119).

Defendants assert that the Individual Defendants had probable cause to arrest Plaintiff, such that the false arrest claim must fail; that the grand jury indictment created a presumption of probable cause that Plaintiff cannot rebut, which is fatal to the malicious prosecution claim; that Plaintiff has not offered any evidence that Defendants were motivated by Plaintiff's exercise of free speech, as is required for a First Amendment retaliation claim; and that Plaintiff failed to comply with N.Y. Gen. Mun. Law § 50-h, such that Plaintiff's state law malicious prosecution claim cannot lie against the City. Defendants also move for summary judgment on grounds of qualified immunity, asserting that even if probable cause was lacking, the Individual Defendants had "arguable probable cause."


Pursuant to Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment should be rendered "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). There is "no genuine dispute as to any material fact" where (1) the parties agree on all facts (that is, there are no disputed facts); (2) the parties disagree on some or all facts, but a reasonable fact-finder could never accept the nonmoving party's version of the facts (that is, there are no genuinely disputed facts), see Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); or (3) the parties disagree on some or all facts, but even on the nonmoving party's version of the facts, the moving party would win as a matter of law (that is, none of the factual disputes are material), see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

In determining whether a fact is genuinely disputed, a district court "is not to weigh the evidence but is instead required to view the evidence in the light most favorable to the party opposing summary judgment, to draw all reasonable inferences in favor of that party, and to eschew credibility assessments." Weyant v. Okst, 101 F.3d 845, 854 (2d Cir. 1996). Nevertheless, to show a genuine dispute, the nonmoving party must provide "hard evidence, " D'Amico v. City of N.Y., 132 F.3d 145, 149 (2d Cir. 1998), "from which a reasonable inference in [its] favor may be drawn." Binder & Binder PC v. Barnhart, 481 F.3d 141, 148 (2d Cir. 2007) (internal quotation marks omitted). "Conclusory allegations, conjecture, and speculation, " Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998), as well as the existence of a mere "scintilla of evidence in support of the [nonmoving party's] position, " Anderson, 477 U.S. at 252, are insufficient to create a genuinely disputed fact. A moving party is "entitled to judgment as a matter of law" on an issue if (1) it bears the burden of proof on the issue and the undisputed facts meet that ...

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