United States District Court, E.D. New York
MEMORANDUM & ORDER
NICHOLAS G. GARAUFIS United States District Judge.
Dushanne Ashley brings this action pursuant to 42 U.S.C.
§ 1983 against Defendants the City of New York (the
"City"), Sergeant Luke Denesopolis, Detectives Mike
Civil and Jason Jones, and Police Officers Jane/John Doe(s)
#1-10. (Am. Compl. (Dkt. 14).) Plaintiffs lawsuit arises from
his arrest on April 19, 2013, and subsequent prosecution for
criminal possession of marijuana. He asserts the following
causes of action against Defendants: (1) false arrest; (2)
malicious prosecution; (3) failure to intervene; (4) illegal
strip search; (5) excessive pre-arraignment detention; and
(6) denial of a fair trial.
moved for summary judgment on all claims. (Defs. Mot. for
Summ. J. ("Defs. Mot.") (Dkt. 39).) Plaintiff
opposes Defendants' motion and cross-moves for partial
summary judgment on his false arrest and denial of a fair
trial claims. (Pl.Cross-Mot. for Summ. J. ("PI.
Mot.") (Dkt. 43).) The court referred Defendants'
motion for summary judgment ("Defendants'
Motion") and Plaintiffs cross-motion for partial summary
judgment ("Plaintiffs Motion" and together with
Defendants' Motion, the "Cross-Motions") to
Magistrate Judge Steven L. Gold for a Report and
Recommendation ("R&R") pursuant to 28 U.S.C.
\§ 636(b)(1)(B) and Federal Rule of Civil Procedure
72(b)(1). (Nov. 28, 2016, Order Referring Mot.) On April 17,
2017, Judge Gold issued an R&R, recommending that
Defendants' Motion be granted in part and denied in part
and that Plaintiffs Motion be denied. (R&R (Dkt. 59) at
2.) Plaintiff and Defendants each filed timely objections to
the R&R. (Defs. Objs. to R&R ("Defs.
Objs.") (Dkt. 64); Pl.Objs. to R&R ("PI.
Objs.") (Dkt. 65).)
following reasons, Plaintiff and Defendants' objections
are OVERRULED. The R&R is ADOPTED IN FULL.
Defendants' Motion is GRANTED IN PART and DENIED IN PART.
Plaintiffs Motion is DENIED.
court provides a short summary of the facts pertinent to the
Cross-Motions for summary judgment. Except as otherwise
indicated, the facts in this section are not in dispute.
November 28, 2012, Plaintiff was arrested by Jones inside of
125 East 18th Street, Apartment 51, Brooklyn, New York (the
"Apartment") for criminal possession of marijuana.
(Defs. R. 56.1 Statement ("Defs. 56.1") (Dkt. 40)
¶ 6.) Civil was also present for the arrest.
(Id. ¶ 8.) The criminal complaint for this
arrest states that Plaintiff lives at the Apartment and
"stays" in the living room. (Id. ¶
9.) On the day of the arrest, a blow-up bed was present in
the living room of the Apartment. (Id ¶ 10.)
December 13, 2012, Plaintiff was again arrested in the
Apartment for criminal possession of marijuana. (Id.
¶¶ 13-14.) Although Civil was not the arresting
officer, he was present for the arrest. (Id. ¶
15.) The criminal complaint for this incident states that on
December 28, 2012, Plaintiff resided at the Apartment.
(Id. ¶ 16.)
April 19, 2013, Defendant Civil executed a search warrant at
the Apartment.(Defs. 56.1 ¶ 20.) The search warrant
listed the address of the Apartment and the name of one
individual, Charles Patrick. (Pl.R. 56.1 Statement
("Pl.56.1") (Dkt. 44) ¶ 2.) Plaintiff was not
named on the search warrant and alleges that he did not
reside at the Apartment on April 19, 2013.
entering the Apartment on April 19, 2013, Civil observed two
individuals, Charles Patrick and Jose Carlos. (Defs. 56.1
¶ 22.) During his search, Civil found 18 small plastic
bags of marijuana in the living room of the Apartment.
(Id ¶ 23.) Several of Plaintiff s possessions,
including compact discs, a cat, and a dog, were in the
Apartment. (Id ¶ 29.) Defendants allege that
"due to his prior involvement with plaintiff and [the]
[A]partment, " Civil "believed that the room where
the marijuana was found was [Plaintiffs] room."
(Id ¶ 24.) Plaintiff denies this allegation.
(Pl.R. 56.1 Counter Statement ("Pl.56.1 Counter
Statement") (Dkt. 45) ¶ 24.)
was not present at the Apartment when the search was
conducted but he arrived shortly thereafter while officers
were still in the Apartment and was placed under arrest.
(Defs. 56.1 ¶ 27-28, 32-33.) Plaintiff was then
transported to the police precinct where he alleges he was
subjected to a strip search. (Id. ¶ 34-35.)
Plaintiff was in custody for approximately 35 hours following
his arrest. (Id ¶ 38.)
was charged in state court with Criminal Possession of
Marijuana in the Fourth Degree, Criminal Possession of
Marijuana in the Fifth Degree, and Unlawful Possession of
Marijuana. (Id. ¶ 39.) The criminal complaint
(the "Original Complaint"), which was signed by
Civil, inaccurately stated that, at the time the marijuana
was discovered, Civil observed Plaintiff and his co-defendant
Carlos sitting in the room where the marijuana was recovered.
(Id ¶ 40-42.) The prosecution filed a
superseding information (the "Superseding
Complaint") to correct this error. (Id. ¶
43.) The Superseding Complaint included the same charges as
the Original Complaint but stated that Plaintiff entered the
Apartment only after the search was conducted and added that
upon his arrival, Plaintiff made the following statement:
"this is what happens when you let strange people into
our apartment." (Id. ¶ 44.) Plaintiff
denies having said this. (Pl.56.1 ¶ 27.) Plaintiff was
required to make a number of court appearances in relation to
the Original and Superseding Complaint. (Id ¶
18, 2014, the charges stemming from Plaintiffs April 19,
2013, arrest were dismissed by the state court. (Defs. 56.1
¶ 45.) Defendant asserts that the charges were dismissed
due to "facial insufficiency" of the Superseding
Complaint. (Id. ¶ 46.) Plaintiff counters that
the charges were "dismissed on the merits" and in
dismissing the charges, the state court just "happened
to refer to the Superseding Criminal Court Complaint as
facially insufficient." (PI. 56.1 Counter Statement
Review of R&R
reviewing an R&R regarding a dispositive matter from a
magistrate judge, the district court "may adopt those
portions of the Report to which no objections have been made
and which are not facially erroneous." Romero v.
Bestcare Inc.. No. 15-CV-7397 (JS) (GRB), 2017 WL
1180518, at *2 (E.D.N.Y. Mar. 29, 2017) (internal citation
omitted); see Impala v. U.S. Dep't of
Justice, 670 F' App'x 32, 32 (2d Cir. 2016)
(summary order) ("[F]ailure to object timely to a
magistrate's report operates as a waiver of any further
judicial review of the magistrate's decision ...."
(internal citation omitted)); Gesualdi v. Mack Excavation
& Trailer Serv.. Inc.. No. 09-CV-2502 (KAM) (JO),
2010 WL 985294, at *1 (E.D.N.Y. Mar. 15, 2010) ("Where
no objection to the [R&R] has been filed, the district
court need only satisfy itself that there is no clear error
on the face of the record." (internal quotation marks
and citation omitted)). "A decision is 'clearly
erroneous' when the Court is, 'upon review of the
entire record, left with the definite and firm conviction
that a mistake has been committed.'" DiPilato v.
7-Eleven, Inc., 662 F.Supp.2d 333, 339-40 (S.D.N.Y.
2009) (quoting United States v. Snow, 462 F.3d 55,
72 (2d Cir. 2006)).
district court must review de novo "those
portions of the report... to which objection is made."
28 U.S.C. § 636(b)(1). To obtain this de novo
review, however, an objecting party "must point out the
specific portions of the [R&R] that they are objecting
to." Sleepy's LLC v. Select Comfort Wholesale
Corp., 222 F.Supp.3d 169, 174 (E.D.N.Y. 2016); see
also Fed. R. Civ. P. 72(b)(2) ("[A] party may serve
and file specific written objections to the
[R&R]."). If a party "makes only conclusory or
general objections, or simply reiterates his original
arguments, the Court reviews the [R&R] only for clear
error." Pall Corp. v. Entegris, Inc., 249
F.R.D. 48, 51 (E.D.N.Y. 2008) (citations omitted); see
also Mario v. P&C Food Mkts., Inc., 313 F.3d 758,
766 (2d Cir. 2002) (holding that plaintiffs objection to an
R&R was "not specific enough" to
"constitute an adequate objection under... Fed.R.Civ.P.
judgment must be granted when "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).
"A 'material' fact is one capable of influencing
the case's outcome under governing substantive law, and a
'genuine' dispute is one as to which the evidence
would permit a reasonable juror to find for the party
opposing the motion." Figueroa v. Mazza. 825
F.3d 89, 98 (2d Cir. 2016) (citing Anderson v. Liberty
Lobby. Inc.. 477 U.S. 242, 248 (1986)).
moving party bears the initial burden to show an absence of
genuine factual dispute. See Adickes v. S.H. Kress &
Co.. 398 U.S. 144, 157 (1970). Summary judgment will be
granted if the opposing party then "fails to make a
showing sufficient to establish the existence of an element
essential to that party's case, and on which that party
will bear the burden of proof at trial." Celotex
Corp. v. Catrett. 477 U.S. 317, 322 (1986). To defeat
summary judgment, the opposing party must do more than
demonstrate "some metaphysical doubt as to the material
facts, " Matsushita Elec. Indus. Co.. Ltd. v. Zanith
Radio Corp.. 475 U.S. 574, 586 (1986), and may not rely
on "conclusory allegations." Twin Labs.. Inc.
v. Weider Health & Fitness. 900 F.2d 566, 568 (2d
Cir. 1990); see Joseph v. N. Shore Univ. Hosp.. 473
F.App'x 34, 36 (2d Cir. 2012) (summary order)
("Conclusory allegations, conjecture, and speculation,
... are insufficient to create a genuine issue of fact."
(quoting Shannon v. N.Y.City Transit Auth.. 332 F.3d
95, 99 (2d Cir. 2003)). "[T]he Court 'must construe
the facts in the light most favorable to the non-moving party
and must resolve all ambiguities and draw all reasonable
inferences against the movant.'" Fireman's
Fund Ins. Co. v. Great Am. Ins. Co. of N.Y., 822 F.3d
620, 631 n.12 (2d Cir. 2016) f quoting Beyer v. Ctv. of
Nassau, 524 F.3d 160, 163 (2d Cir. 2008)).
issuing his recommendations on the Cross-Motions, Judge Gold
first considered Plaintiff's six claims against the
individual Defendants one by one, and then separately
addressed Plaintiff's claims for municipal liability.
This decision is organized in the same manner.
for false arrest under Section 1983 "are analyzed
pursuant to the same standards as the applicable state
law's false arrest tort." Nzegwu v.
Friedman, 605 F.App'x 27, 29 (2d Cir. 2015) (summary
order) (citing Jocks v. Tavernier. 316 F.3d 128, 134
(2d Cir. 2003)). To prevail on a false arrest claim under New
York law, "a plaintiff must show that (1) the defendant
intended to confine him, (2) the plaintiff was conscious of
the confinement, (3) the plaintiff did not consent to the
confinement and (4) the confinement was not otherwise
privileged." Id. (quoting Jocks, 316
F.3d at 134-35).
existence of probable cause to arrest constitutes
justification and is a complete defense to an action for
false arrest." Gonzalez v. City of Schenectady,
728 F.3d 149, 155 (2d Cir. 2013) (quoting Wevant v.
Okst, 101 F.3d 845, 852 (2d Cir. 1996)). "Probable
cause to arrest exists when the authorities have knowledge or
reasonably trustworthy information sufficient to warrant a
person of reasonable caution in the belief that an offense
has been committed by the person to be arrested."
Schwartz v. Marcantonatos, 567 F.App'x 20, 22
(2d Cir. 2014) (summary order) (quoting Lennon v.
Miller, 66 F.3d 416, 424 (2d Cir. 1995)).
"The question of whether or not probable cause existed
may be determinable as a matter of law if there is no dispute
as to the pertinent events and the knowledge of the
officers." Wevant, 101F.3dat852.
"under both New York and federal law, summary judgment
dismissing a plaintiffs false arrest claim is appropriate if
the undisputed facts indicate that the arresting
officer's probable cause determination was objectively
reasonable, " entitling an officer to qualified
immunity. Jenkins v. City of N.Y., 478 F.3d 76,
87-88 (2d Cir. 2007). "An officer's determination is
objectively reasonable if there was 'arguable'
probable cause at the time of arrest-that is, if
'officers of reasonable competence could disagree on
whether the probable cause test was met.'"
Id. at 87 (quoting Lennon v. Miller.
66 F.3d 416, 423-24 (2d Cir. 2005)).
person is guilty of criminal possession of marijuana in the
fourth degree when he "knowingly and unlawfully
possesses" more than two ounces of marijuana. N.Y. Penal
Law § 221.15. A person is guilty of criminal possession
of marijuana in the fifth degree when he "knowingly and
unlawfully possesses" more than 25 grams of marijuana.
Id. § 221.10. Finally, a person is guilty of
the lesser charge of unlawful possession of marijuana when he
"knowingly and unlawfully possesses" marijuana.
Id. § 221.05. To "possess" marijuana
means to "have physical possession or otherwise exercise
dominion or control" over the marijuana. Id.
§ 10.00(8). Knowing possession of marijuana (or other
contraband) can be inferred where an individual has
"dominion or control" over the area where the drugs
are found. Chalmers v. Mitchell. 73 F.3d 1262, 1272
(2d Cir. 1996) (discussing N.Y. Penal Law § 10.00(8)).
and Defendants have each moved for summary judgment on
Plaintiffs false arrest claim. (See Defs. Mem. in
Supp. of Defs. Mot. ("Defs. Mem.") (Dkt. 42) at
5-12; PI. Mem. in Supp. of PI. Mot. and in Opp'n to Defs.
Mot. (Dkt. 46) ("PI. Mem.") ¶¶ 11-15.)
Judge Gold determined that there was probable cause for
Plaintiffs arrest and therefore recommends that the court
grant summary judgment in favor of Defendants on this count.
(R&R at 8-9.) He noted that even if the court were to
find that there was not probable cause to arrest Plaintiff,
the individual Defendants would be entitled to qualified
immunity because there was at least arguable probable cause
to make the arrest. (Id. at 11.)
objects to this portion of the R&R, arguing that there is
a genuine dispute of material fact as to whether the
arresting officer, Civil, was "in possession of
sufficient facts which would lead a reasonable police officer
to believe there was probable cause to arrest
Plaintiff." (PI. Objs. at 7.) In Plaintiffs view, Judge
Gold "engaged in improper and unfounded judicial-fact
finding in favor of the [Defendants]" where he
attributed knowledge of certain facts to Civil. Id.
court reviews this portion of the R&R de novo.
See 28 U.S.C. § 636(b)(1). The relevant
question is whether there exists a genuine dispute of
material fact as to what Civil knew at the time of the
arrest. At his deposition, Civil testified that on April 19,
2013, he recovered drugs from Plaintiffs room in the
Apartment. (See Ex. 1 to Zelman Decl. in Supp. of
PI. Objs. ("Civil Dep. Tr.") (Dkt. 66-1) 20:21-24.)
Civil explained that he knew the room was Plaintiffs because
(1) he had arrested Plaintiff in that room on two prior
occasions and Plaintiff had been "sleeping in the bed
both times"; (2) he knew the "whole setup of
[Plaintiffs] room"; and (3) Plaintiffs possessions,
including his clothes, weights, Aero bed, and a "picture
of him and a girl" were in the room. (Id.
46:10-47:8, 71:4-22.) Based on these facts, the court finds
that it was reasonable for Civil to conclude that Plaintiff
exercised dominion and control over the area where the
marijuana was found and, accordingly, that there was probable
cause to believe that Plaintiff constructively possessed the
marijuana. See Chalmers, 73 F.3d at 1272.
challenges the veracity of Civil's testimony, arguing
that: (1) Civil could not recall "a litany of obvious
facts" concerning the April 19, 2013, arrest; and (2)
the Original Complaint, which was signed by Civil, contained
false allegations against Plaintiff. (See PI. Objs. at
6.) Plaintiff argues that "[b]ased on these undisputed
facts alone, a jury would be entitled to find Civil's
testimony incredible, and disregard CiviPs professed
recollections about Plaintiffs belongings being inside the
apartment." (Id. at 7.)
court finds that Plaintiffs attack on Civil's credibility
does not create a genuine dispute of material fact sufficient
to defeat summary judgment. "Broad, conclusory attacks
on the credibility of a witness will not, by themselves,
present questions of material fact." Island Software
and Comput Serv.. Inc. v. Microsoft Corp..413 F.3d 257,
261 (2d Cir. 2005). If a defendant "has made a properly
supported [summary judgment] motion, the plaintiff may not
respond simply with general attacks upon the defendant's
credibility, but rather must identify affirmative
evidence from which a jury could find that the plaintiff
has carried his or her burden." Crawford-El v.
Britton,523 U.S. 574, 600 (1998) (emphasis added);
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