United States District Court, S.D. New York
Plaintiff Pro Se Jimmy Ribot
Attorneys for Defendants ZACHARY W. CARTER By: Daniel Oliner,
W. SWEET U.S.D.J.
City of New York, Raymond Alicea, and James Gillespie
("Defendants") moved pursuant to Rule 56, F. R.
Civ. P. for summary judgment dismissing the complaint of
plaintiff Jimmy Ribot ("Ribot" or the
"Plaintiff"). Based upon the findings and
conclusions set forth below, Defendants' motion for
summary judgment is granted.
pro se Plaintiff initiated this civil rights action
on December 24, 2013. The Complaint was amended three times,
most recently on September 1, 2014. On December 29, 2015,
Defendants filed a letter, which the Court treated as a
motion for summary judgment in a January 25, 2016 scheduling
order. However, on May 13, 2016 the Court denied that motion
for summary judgment with leave to renew, finding that
compliance with Federal Rule of Civil Procedure 56.1 was
appropriate for this case. Defendants filed the instant
motion for summary judgment on September 2, 2016. The motion
was taken on submission and marked fully submitted on October
facts have been set forth in the Defendants' Rule 56.1
statement of material facts and Plaintiffs affidavit in
opposition to the motion, which are not in dispute except as
15, 2012 at approximately 10:55 p.m., two Hispanic males
entered the Duane Reade store located at 100 Delancey Street
in Manhattan and approached the cash register, pulled out a
firearm, and instructed the cashier to give them the money in
the register. When the cashier was unable to do so, the
individual carrying the firearm shot once in the direction of
the cashier and the two men fled the scene of the crime.
Detectives from the Seventh Precinct investigated this
incident, but closed that investigation in September 2012
because all leads had been exhausted. See Oliner Decl., Exs.
D, E, and 0.
February 2013, Detective Alicea interviewed a confidential
informant ("Confidential Informant"), who told the
Detective that he or she had seen a video of the June 15,
2012 attempted robbery on YouTube and was able to identify
the individuals involved in that robbery as Plaintiff and
non-party Victor Irizary. Oliner Decl., Ex. 0 at ¶¶
3-4. Confidential Informant provided the basis for that
knowledge, and further informed Detective Alicea that
Confidential Informant had previously made a tip to the Crime
Stoppers tip line. Oliner Decl., Ex. 0 at ¶¶ 5-6.
Detective Alicea later verified that Confidential Informant
had made a tip. After reviewing the video of the robbery,
Detective Alicea found no basis to discredit Confidential
Informant's identifications. Oliner Decl., Ex. 0 at
¶ 9. Detective Alicea then activated an I-Card for
Plaintiff. Oliner Decl., Ex. 0 at ¶ 11.
February 27, 2013, Plaintiff was detained on the I-Card, and
subsequently arrested at or around 1:45 p.m. Oliner Decl.,
Ex. 0 at ¶ 12; see also Ex. K. On February 28, 2013 the
cashier from the Duane Reade store on the night of the
attempted robbery participated in a line-up and identified
Plaintiff as looking "very familiar, " because
"he looks like the one that was holding the gun."
Oliner Decl., Ex. M at DEF 4, 6, 8/ Ex. 0 at ¶ 13. The
cashier clarified his earlier statements by telling the
detective that "he resembles the one that was holding
the gun." Oliner Decl., Ex. M at DEF 6.
on February 28, 2013, Plaintiff was arraigned on charges of
Robbery in the First and Second Degrees in New York County
Criminal Court. Oliner Decl., Exs. N, Q. However, on August
30, 2013 the criminal action against Plaintiff was dismissed
on motion by the District Attorney. Oliner Decl., Ex. N. Any
involvement by Detective Gillespie was to assist Detective
Alicea and was relying on Detective Alicea's knowledge
and representations. Oliner Decl., Ex. P.
judgment is appropriate only where "there is no genuine
issue as to any material fact and . . . the moving party is
entitled to a judgment as a matter of law." Fed.R.Civ.P.
56(c). A dispute is "genuine" if "the evidence
is such that a reasonable jury could return a verdict for the
nonmoving party." Anderson v. Liberty Lobby,
Inc.,477 U.S. 242, 248 (1986). The relevant inquiry on
application for summary judgment is "whether the
evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one
party must prevail as a matter of law." Id. at
251-52. A court is not charged with weighing the evidence and
determining its truth, but with determining whether there is
a genuine issue for trial. Westinghouse Elec. Corp. v.
N.Y. City Transit Auth.,735 F.Supp. 1205, 1212
(S.D.N.Y. 1990) (quoting Anderson, 477 U.S. at 249).
"[T]he mere existence of some alleged factual dispute
between the ...