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Thompson v. McEnery

United States District Court, S.D. New York

May 21, 2015

KEITH THOMPSON, Plaintiff,
v.
POLICE OFFICER McENERY, Defendant.

OPINION & ORDER

LORNA G. SCHOFIELD, District Judge.

On April 29, 2013, Defendant Police Officer McEnery issued Plaintiff Keith Thompson a parking ticket for double parking his van and a summons for disorderly conduct. Plaintiff, proceeding pro se, now brings suit against Defendant McEnery pursuant to 42 U.S.C. § 1983 and 18 U.S.C. §§ 241 and 242 in a Complaint that, liberally construed, alleges false arrest and malicious prosecution.[1] Defendant moves to dismiss under Federal Rule of Civil Procedure 12(b)(6). Plaintiff cross-moves for summary judgment under Federal Rule of Civil Procedure 56. For the reasons that follow, Defendant's motion is converted into a motion for summary judgment, and granted. Plaintiff's motion is denied.

I. BACKGROUND

A. Procedural History

On August 14, 2013, Plaintiff filed the operative Complaint. By notice of motion dated November 10, 2013, Defendant moved to dismiss the Complaint in its entirety. Defendant attached four exhibits to his motion - (1) a stipulation and order of dismissal Plaintiff entered into in Thompson v. Rodriguez, No. 13 Civ. 1991 (S.D.N.Y.) (" Rodriguez " and the " Rodriguez Stipulation"); (2) Plaintiff's complaint in Rodriguez (the " Rodriguez Complaint"); (3) the parking ticket and summons Defendant issued to Plaintiff on April 29, 2013; and (4) the Complaint in the present case. In addition, Defendant served on Plaintiff a statement required by Local Civil Rule 12.1, warning Plaintiff that "the Court may treat [Defendant's] motion as a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure" and that the "complaint may be dismissed without a trial" unless Plaintiff filed "sworn affidavits as required by Rule 56(c) and/or other documents" in response. Defendant also provided Plaintiff with a copy of Rule 56.

Plaintiff's opposition, notarized on November 17, 2014, and filed on the docket on November 18, 2014, contained a cover page, which stated as follows:

Upon Defendants motion for summary judgment pursuant to Federal Rule 56A of the civil practice laws and rules, and that upon filing of this motion by Plaintiff that the court grant summary judgment in full to Plaintiff seeing that there is no material facts that can be disputed about the legality of Plaintiffs violation of his civil rights....

Plaintiff also filed a "Brief in Support of Motion for Summary Judgment, " and submitted three exhibits: (1) a "Certificate of Disposition" from the Bronx County Criminal Court stating that on September 19, 2013, the charge of disorderly conduct was dismissed for failure to prosecute; (2) the parking ticket and summons Defendant issued to Plaintiff on April 29, 2013, which Defendant also submitted in connection with his motion; and (3) an invoice dated April 29, 2013, from Brand Copy and Paper Distributing, LLC made out to Aden Deli Grocery in the Bronx.

B. The Present Case

The following facts are drawn from the Complaint and the exhibits submitted by the parties in connection with the present motions. The facts are undisputed unless otherwise noted.

On April 29, 2013, around 12 p.m., Defendant issued Plaintiff a "Complaint/Information" for disorderly conduct and a parking citation for double parking in front of 3120 Bainbridge Avenue in the Bronx. In the "Complaint/Information, " Defendant stated that Plaintiff "stopped veh[icle] in roadway after EMS used sirens twice for veh[icle] to move. [Plaintiff] exited veh[icle] to make delivery causing traffic at intersection[, ] causing public annoyance." Plaintiff has a different explanation for what happened.

In a notarized statement that the Court construes as an affidavit, Plaintiff states that Defendant approached Plaintiff while he was "unloading products to Aden Deli, " located at 3110 Bainbridge Avenue in the Bronx, but Defendant did not approach the driver of another truck that was similarly double parked. According to Plaintiff, an emergency vehicle was waiting in traffic "in line to pass, [but] had no emergency signals to indicate any emergency at all." Only "after witnessing Officer McEnery confront Plaintiff in back of work truck, ... did the emergency vehicle decide to put on signals." According to Plaintiff, he was legally double parked because New York City traffic regulations allow commercial vehicles with commercial plates to double park for thirty minutes to load and unload the vehicle. See 34 NYC Reg. § 4-08(f)(1).

C. Thompson v. Rodriguez

On March 25, 2013, approximately five weeks before the incident at issue in this case, Plaintiff brought suit against Officers Rodriguez and Thomas of the New York City Police Department (the "NYPD") under 18 U.S.C. §§ 241, 242 and 245 alleging discrimination and harassment. The Rodriguez Complaint alleged that on March 30, 2012, more than one year before the incident at issue here, Rodriguez and Thomas stopped Plaintiff while he was driving his company truck in the Bronx. Rodriguez accused Plaintiff of speeding, and Plaintiff denied the allegation. At the request of Rodriguez, Plaintiff handed over his driver's license and the "company truck papers which were copies, not original." After receiving Plaintiff's papers, Rodriguez told Plaintiff, "Oh!! You enjoy suing police officers." Then "Rodriguez and [Plaintiff] began exchanging choice words back and ...


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