United States District Court, E.D. New York
MEMORANDUM AND ORDER
ROSLYNN R. MAUSKOPF United States District Judge.
Kishor Kumar Rao and Poornima Kishor commenced this action
pursuant to 42 U.S.C. § 1983, alleging that defendants
City of New York, Detective Kevin Warmhold, Police Officer
Yisel Cabrera, Detective Michael Riso, and Detective John
Gridley violated Rao's civil rights on September 25, 2013
by, inter alia, unlawfully arresting him and using
excessive force.Defendants now move for partial summary
judgment pursuant to Federal Rule of Civil Procedure
(“Rule”) 56, on the grounds that Rao's
federal and state law false arrest claims, his state law
false imprisonment claim, as well as his malicious abuse of
process claim, fail because the officers had probable cause
to arrest. (See Mot. for Summ. J. (Doc. No. 64).)
For the reasons stated below, the defendants' motion for
partial summary judgment is granted in part and denied in
legal troubles began on February 27, 2013, when Shahjahan
Khan visited his medicinal supplements business that she had
heard about on TV. (Defs.' Ex. C. (Doc. No. 67-3) at 3.)
Khan, a 66 year-old woman, describes herself as “not
healthy, ” and she says she has trouble remembering
things. (Id.) Hoping to restore her health, she went
to Holistic Healthcare Society and Research Center, Rao's
business. (Id.) The precise details of what happened
next are murky. In a statement Khan prepared on March 6,
2013, she wrote that the doctor, Rao, asked her questions
about her personal life, who supports her, and how much money
she has saved for retirement. (Id. at 3-4.) Rao
assured Khan that he will make her feel better. (Id.
at 4.) He then gave Khan “a medicine, ” a pill or
powder of some kind, that Khan said made her feel dizzy and
confused. (Id.) She was told that her Medicare card
was not working and that she would have to pay in cash.
(Id. at 5.) She remembered that Rao became
“very angry, ” and told her that if she does not
pay her medical bill, he “will straighten [her]
out.” (Id.) Khan described how the people at
Rao's business rummaged through her wallet and asked for
her PIN number. (Id.) Rao then allegedly called
Khan's credit card company and said Khan was in the
hospital and needed to pay her bill. (Id.) A woman
then accompanied Khan to Chase Bank, where Khan withdrew $25,
600, though she does not remember precisely how the lady got
her to withdraw the money. (Id.) Khan described
feeling scared. (Id. at 4, 6.)
week later, on March 5, 2013, Khan and her daughter, Mubiha,
filed a complaint with the New York Police Department
(“NYPD”). (Defs' 56.1 Statement (Doc. No. 65)
¶ 2.) Khan reported that Rao had
“threatened/forced” her to withdraw $25, 600 from
her bank account in exchange for medicinal supplements.
(Id. ¶ 3.) The next day, Khan made the same
complaint to the Queens County District Attorney's
Office, and the case was assigned to Assistant District
Attorney (“ADA”) Khadijah Muhammad-Starling and
Detective (then-police officer) Kevin Warmhold, who worked at
the 106th Precinct. (Id. ¶¶
3-5, 7.) Mubiha appears to have filled out a form for the
District Attorney's Office in which she described her
mother's experience of feeling “drunk” after
taking the pill Rao had given her. (Defs.' Ex. C. at 2.)
She also noted on the form that her mother is 66 years old
and had been diagnosed with “mild cognitive
impairment” a year ago. (Id.)
of his investigation, Warmhold visited the Chase Bank, where
Khan had withdrawn $25, 600. (Defs.' Ex. E. (Doc. No.
67-5) at 3.) A manager there confirmed that he had approved
Khan's transaction after a bank teller called him over to
authorize it. (Id.) He remembered that he asked Khan
why she was taking out so much money; she had responded that
she needed to pay a medical bill. (Id.) Warmhold
also interviewed Khan, who recounted her visit to Rao's
office and added that the day after the incident, she
received a phone call instructing her not to tell anyone,
including her daughter, about her visit. (Id. at 7.)
Warmhold then unsuccessfully attempted to interview Rao.
(Id. at 6, 10.) He spoke with one of Rao's
employees though, who said that Khan had “left
happy.” (Id. at 13.)
their investigations progressed, ADA Starling and Warmhold
conferred. Warmhold's police notes suggest that on April
4, 2013, Starling informed Warmhold that she intended to seek
a grand jury indictment of Rao. (Id. at 14.) Three
weeks after that conversation, on April 25, 2013, Warmhold
activated an Investigation Card (“I-card”),
identifying Rao as a wanted perpetrator with probable cause
to arrest. (Id. at 16.) Warmhold alleges that he
went to Rao's residence that day to arrest him, but Rao
would not answer the door. (Id. at 17.) Rao denies
that he “ever refuse[d] to cooperate with any part of
the investigation.” (Pl.'s 56.1 Statement (Doc. No.
68-1) at 4.)
month later, on June 24, Warmhold contacted Officer Remson of
Customs and Border Patrol at JFK Airport, who placed “a
hold” on Rao should he try to leave the country.
(Defs.' Ex. E at 20.) At some point afterwards, Starling
again spoke with Warmhold. In her deposition, Starling says
that she told him that she was hoping to “get medical
evidence to substantiate the mental health of Mrs.
Khan.” (Defs.' Ex. D (Doc. No. 67-4) at 12.)
Because she was “waiting to see if there was any
additional evidence, ” she was under the impression
that she and Warmhold “would have communicated”
prior to any arrest. (Id.) In his deposition,
Warmhold says that Starling informed him that she was waiting
on financial records, rather than medical ones. (Defs.'
Ex. X (Doc. No. 71) at 6-7.) Though the record is not clear
as to when this conversation took place, Warmhold's notes
relate that on July 31, Starling informed him that her office
would not be prosecuting Rao's case “at this
time.” (Defs.' Ex. E at 21.)
point during the investigation - possibly in June or August -
Detective Riso visited Rao at his home. (Pl.'s Ex. J
(Doc. No 69-9) at 2.) Rao invited him in, but the record does
not reveal what they discussed. Riso explained at his
deposition that Warmhold told him not to bring Rao to the
precinct at that time. (Id. at 3.) On September 7,
2013, Warmhold administratively closed his investigation
“C-12, ” which the defendants assert signified
that “the next step in the investigation was to locate
plaintiff Rao.” (Defs.' 56.1 Statement ¶ 20.)
Warmhold left the I-card for Rao's arrest active.
(Id. ¶ 19.)
September 25, 2013, Warmhold received a call from Customs and
was notified that Rao was at John F. Kennedy Airport.
(Pl.'s Ex. G (Doc. No. 69-7) at 7.) Warmhold “was
working on another case at the time, ” and told
Officers Cabrera and Gridley to arrest Rao at the airport for
Grand Larceny in the Fourth Degree. (Defs.' 56.1
Statement ¶ 21; Pl.'s Ex. G at 7.) Rao testified at
his deposition that, in a holding cell following his arrest,
Warmhold tried to extort a $100, 000 bribe from him, payable
to the “police welfare society.” (Rao Dep. (Doc.
No. 69-12) at 5.) In exchange, Warmhold would let Rao carry
on his business “as [he] want[s].” (Id.)
When Rao refused “again and again, ” Warmhold
allegedly hit him in the face with the butt of his gun and
“smashed [Rao's] head” into the wall.
(Id. at 6.) The defendants deny that any such
exchange took place. Rao has undergone extensive dental
surgery since the alleged assault, and his dentist wrote that
the dental problems are consistent with “severe facial
trauma.” (Pl.'s Ex. T (Doc. No. 69-20) at
The Queens District Attorney's Office declined to
prosecute Rao, and he was released prior to arraignment.
(Defs' 56.1 Statement ¶¶ 29-30.)
judgment is appropriate when the pleadings, depositions,
interrogatories, admissions, and affidavits demonstrate that
there are no genuine issues of material fact in dispute and
that one party is entitled to judgment as a matter of law.
See Fed. R. Civ. P. 56(c); Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). A genuine issue of
material fact exists “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).
determining whether a genuine issue of material fact exists,
the evidence of the non-movant “is to be believed,
” and the court must draw all “justifiable”
or “reasonable” inferences in favor of the
non-moving party. Id. at 255 (citing Adickes v.
S.H. Kress & Co., 398 U.S. 144, 158-59 (1970));
see also Brosseau v. Haugen, 543 U.S. 194, 195 n.2
(2004). Nevertheless, once the moving party has shown that
there is no genuine issue as to any material fact and that
the moving party is entitled to judgment as a matter of law,
“the nonmoving party must come forward with
‘specific facts showing that there is a genuine
issue for trial, '” Matsushita Elec.
Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986) (quoting Fed.R.Civ.P. 56(e)) (emphasis in
original), and “may not rely on conclusory allegations
or unsubstantiated speculation, ” Scotto v.
Almenas, 143 F.3d 105, 114 (2d Cir. 1998) (citing
cases). In other words, the nonmovant must offer
“concrete evidence from which a reasonable juror could
return a verdict in his favor.” Anderson, 477
U.S. at 256.
“the nonmoving party bears the burden of proof at
trial, summary judgment is warranted if the nonmovant fails
to make a showing sufficient to establish the existence of an
element essential to [its] case.” Nebraska v.
Wyoming, 507 U.S. 584, 590 (1993) (quoting
Celotex, 477 U.S. at 322) (internal quotation marks
omitted). Thus, “[a] defendant moving for summary
judgment must prevail if the plaintiff fails to come forward
with enough evidence to create a genuine factual issue to be
tried with respect to an element essential to its
case.” Allen v. Cuomo, 100 F.3d 253, 258 (2d
Cir. 1996) (citing Anderson, 477 U.S. at 247-48).
elements of a Section 1983 claim for false arrest are
“substantially the same” as those of a
“claim for false arrest under New York law.”
Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996),
cert. denied, 528 U.S. 946 (1999). “Under New
York state law, to prevail on a claim of false arrest 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.'” Jocks v. Tavernier, 316 F.3d
128, 134- 35 (2d Cir. 2003) (quoting Broughton v.
State, 37 N.Y.2d 451, 456 (N.Y.), cert. denied,
423 U.S. 929 (1975)). “Under New York law, the
existence of probable cause is an absolute defense to a false
arrest claim.” Jaegly v. Couch, 439 F.3d 149,
152 (2d Cir. 2006).
Rao brings a false arrest claim against Detective Warmhold
and arresting officers Cabrera and Gridley. The defendants
argue that Warmhold had probable cause to arrest Rao based on
Kahn's complaint that Rao defrauded her. (Defs.' Mem.
(Doc. No. 66) at 14-18.) Rao argues that Kahn's complaint
alone was insufficient for probable cause; and even if the
complaint gave rise to probable cause, intervening facts in
the subsequent six months vitiated probable cause, including
ADA Starling's decision not to prosecute. (Opp'n
(Doc. No. 68) at 12-23.) For the reasons stated below,
Rao's arguments are unavailing, and the officers had
probable cause to arrest Rao.
Probable Cause at the Time of Kahn's Complaint
officer has probable cause to arrest when he has
“knowledge or reasonably trustworthy information of
facts and circumstances that are sufficient to warrant a
person of reasonable caution in the belief that the person to
be arrested has committed or is committing a crime.”
Jocks, 316 F.3d at 135 (internal quotation marks
omitted). Applying that standard here, Warmhold had probable
cause to arrest Rao for grand larceny in the fourth degree,
as well as other possible crimes. Under New York law, a
person is guilty of grand larceny in the fourth degree when
“he steals property, ” such as money, and
“[t]he value of the property exceeds one thousand
dollars” or “the property, regardless of its
nature and value, is obtained by extortion.” N.Y.P.L
§ 155.30. In addition, there was probable cause to
arrest Rao for a scheme to defraud in the second degree, N.Y.
Penal Law § 190.60.
Second Circuit has repeatedly held that “an arresting
officer advised of a crime by a person who claims to be the
victim, and who has signed a complaint or information
charging someone with the crime, has probable cause to effect
an arrest . . .” Singer v. Fulton Cty.
Sheriff, 63 F.3d 110, 116 (2d Cir. 1995); Panetta v.
Crowley, 460 F.3d 388, 395 (2d Cir. 2006). Here, the
complaining victim's claims that Rao's medicine made
her feel dizzy or drunk, her description of feeling
intimidated, and the large sum of money involved, all
indicated possible criminal activity. The police corroborated
much of Khan's account by visiting Rao's business and
the Chase Bank where she withdrew the $25, 600. This was
sufficient to create probable cause.
question then becomes whether there were any intervening
facts between March 5, when Khan went to the police, and
September 25, when Rao was arrested, that vitiated probable
cause. Even when probable cause exists “at the time of
arrest, evidence could later surface which would eliminate
probable cause.” Lowth v. Town of Cheektowaga,
82 F.3d 563, 571 (2d Cir. 1996) (internal quotation marks