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Gallimore v. Feliciano

United States District Court, S.D. New York

June 19, 2015

PEDRO FELICIANO, individually and DETECTIVE FRANK LORE, individually, Defendants.


NELSON S. ROMN, District Judge.

Plaintiff Malcolm Gallimore brings this action against Pedro Feliciano and Frank Lore under 42 U.S.C. § 1983 for purported violations of his Fourth Amendment, Fifth Amendment, Sixth Amendment, and Fomteenth Amendment rights in connection with a robbery-assault prosecution. Although Plaintiff had been in custody for violation of probation, he seeks to recover for the additional time that he remained in custody resulting from delays caused by the unlawful robbery-assault prosecution. Defendants have separately moved to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the following reasons, the motions are GRANTED in part and DENIED in part.


A. The Probation Violation

Feliciano is a probation officer employed by the County of Westchester. (Compl. ¶ 11, ECF No. 1.) Plaintiff, who had been on probation for three years and six months as of January 2012, was one ofFeliciano's probationers. ( Id. ¶¶ 13-15.) On January 12, 2012, Feliciano filed a petition for violation of probation against Plaintiff. ( Id. ¶¶ 16-17.) A hearing was scheduled to take place on February 8, 2012. ( Id. ¶ 21.) Before the hearing, Plaintiff had allegedly presented evidence to the Assistant District Attorney ("ADA") and Feliciano demonstrating that Feliciano had exaggerated or falsified some of the allegations against Plaintiff. ( Id. ¶¶ 22-24.)

Feliciano allegedly sought to delay the hearing to keep Plaintiff incarcerated and to avoid being exposed as having exaggerated or falsified allegations against Plaintiff. On January 25, 2012, Feliciano saw wanted posters for a robbery-assault, called the lead investor, Frank Lore, and told him that Plaintiff, his probationer, was the man on the wanted poster. ( Id. ¶¶ 29-30.) Then Feliciano allegedly told the ADA in Plaintiff's probation matter that Plaintiff had committed the robbery-assault, and as a result the February 8 hearing was adjourned, while Plaintiff remained in custody. ( Id. ¶¶ 47-48.) At all times, Feliciano allegedly knew that his 6'2½" probationer could not have been the suspect, who was described on the poster as 5'9".

B. The Robbery-Assault

The robbery-assault had occurred on October 18, 2011 at the White Plains Metro-North train station. On the date of the crime, both the victim, Robert Muriel, and the sole witness, William Bowen, gave statements to MTA employees. ( Id. ¶¶ 33-34.) Muriel described the attacker as between 5'10" and 6'0" and in his late teens to early twenties. ( Id. ¶ 34; Joseph Decl. Ex. 2, at 2, ECF No. 29-2.) Bowen described the attacker as being 5'9" and in his late teens to early twenties. (Compl. ¶ 33.) The Complaint alleges that Muriel and Bowen were intoxicated and that Muriel was under the influence of two illicit drugs. ( Id. ¶¶ 31-32.) The MTA distributed wanted posters that included screengrabs of the suspect from surveillance videos and described the suspect as 5'9". ( Id. ¶ 27.)

After receiving the tip from Feliciano based on the wanted poster, Detective Lore constructed a photo array. Lore included a seven-year-old photograph of Plaintiff in the array even though more recent photos were available, allegedly to make Plaintiff appear closer to the reported age of the suspect. ( Id. ¶¶ 34-36.) Lore also allegedly stacked the "fillers" with photographs of much older men, with the exception of one other teenager. ( Id. ) Lore met with Bowen on February 3, 2012 and Muriel on March 13, 2012, and they both selected Plaintiff from the array. ( Id. ¶¶ 37-40.) Before conducting the identification, however, Lore allegedly told Muriel and Bowen that Plaintiff was a suspect and what Plaintiff looked like. ( Id. )

Lore signed a felony complaint dated April 30, 2012 charging Plaintiff with attempted robbery. A grand jury convened and indicted Plaintiff for attempted robbery and assault on May 3, 2012 and Plaintiff was arraigned on May 16, 2012. ( Id. ¶ 63.) The grand jury based the indictment on (1) Feliciano's testimony that he was "90 percent" certain that Plaintiff was the man in the surveillance video, (2) Muriel's testimony that the perpetrator was 6'0", and (3) Bowen's testimony that the perpetrator was between 6'2" and 6'3". ( Id. ¶ 58.)

C. The Charges Are Dismissed

The case allegedly fell apart thereafter. On April 5, 2012, Lore came into possession of Plaintiff's cell phone, which showed that Plaintiff had been texting at the time of the crime; the surveillance videos allegedly show that the suspect was not texting. ( Id. ¶ 45.) Plaintiff also submitted the report of a facial recognition expert who opined that Plaintiff was not the man in the surveillance video, and the Westchester County Forensic Laboratory confirmed this finding. ( Id. ¶ 73.) Moreover, Feliciano recanted his identification. ( Id. ¶ 75.) Plaintiff was released on consent on July 25, 2012. ( Id. ¶ 74.) The prosecutor filed a motion to dismiss the charges on the merits, which was granted on December 5, 2012. ( Id. ¶¶ 76-77.)

In the probation matter, Plaintiff ultimately pled guilty to the lesser offense of a single instance of failure to report. ( Id. ¶¶ 80-81.) Plaintiff received a sentence of 5 months, which was reduced to 100 days after good time credits. ( Id. ) Plaintiff was incarcerated from February 1, 2012 to July 25, 2012 for a total of 176 days. ( Id. ) Plaintiff alleges that the additional 76 days are attributable to the robbery-assault prosecution, which violated his constitutional rights.


"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 566 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 566 U.S. at 678. Although "a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Starr v. Sony BMG Music Entm't, 592 F.3d 314, 321 (2d Cir. 2010). A court should accept non-conclusory allegations in the complaint as true and draw all reasonable inferences in the plaintiff's favor. Ruotolo v. City of N.Y., 514 F.3d 184, 188 (2d Cir. 2008). "[T]he duty of a court ...

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