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Myers v. Moore

United States District Court, S.D. New York

March 30, 2018

DEIRDRE MYERS and KENYA MYERS, Plaintiffs,
v.
THOMAS MOORE, CHARLES HAVEN, and STEVEN CARABALLO, Defendants.

          MEMORANDUM OPINION & ORDER

          Paul G. Gardephe United States District Judge.

         Plaintiff Deirdre Myers brings this action under 42 U.S.C. § 1983 against New York City Police Department ("NYPD") officers Thomas Moore, Charles Haren, [1] and Steven Caraballo.[2] (Am. Cmplt. (Dkt. No. 57)) Plaintiffs sole remaining claim is for malicious prosecution, which arises out of her July 15, 2010 arrest. (Id. ¶¶ 9-36, 43-47)

         The parties have filed cross-motions for summary judgment on Plaintiffs malicious prosecution claim. (Def. Mot. (Dkt. No. 134); Pltf. Mot. (Dkt. No. 143)) Defendants argue that they are entitled to summary judgment because Plaintiffs malicious prosecution claim is deficiently pled, and because criminal proceedings against Plaintiff were not terminated in her favor. (Def. Br. (Dkt. No. 135)) Plaintiff does not dispute that her malicious prosecution claim is deficiently pled, but argues that the Amended Complaint should be conformed to the evidence pursuant to Federal Rule of Civil Procedure 15(b). (Pltf. Opp. (Dkt. No. 148) at 6-7) For the reasons stated below, Plaintiffs malicious prosecution claim will be dismissed for failure to state a claim; Plaintiffs request that the Amended Complaint be conformed to the evidence will be denied; and Plaintiffs cross-motion for summary judgment will be denied as moot.

         BACKGROUND

         Although the parties have filed cross-motions for summary judgment, the legal issue addressed below is whether the Amended Complaint makes out a malicious prosecution claim under Section 1983. Accordingly, the Court begins with a recitation of Plaintiff s factual allegations in the Amended Complaint.

         I. THE AMENDED COMPLAINT'S FACTUAL ALLEGATIONS

         Plaintiff is African-American and lives in the Bronx. (Am. Cmplt. (Dkt. No. 57) ¶¶ 7, 9) On July 15, 2010, Plaintiff and her daughter were sitting on the stoop outside their residence, when they observed a car race up the block, going the wrong way down a one-way street. (Id. ¶¶ 9-10) The car stopped abruptly at the curb near Plaintiff and her mother, and Officer Moore, who was driving the vehicle, jumped out - leaving the driver's side door wide open - and began to run away. (Id. ¶ 11) The open door faced the curb near Plaintiffs residence. (Id.) Other cars then pulled up, and Sergeant Haren and Lieutenant Caraballo exited and gave chase, shouting, "stop, police." (Id. ¶¶ 12-13)

         As Defendants Haren and Caraballo pursued Officer Moore, Plaintiffs daughter -a fifteen-year-old high school student - got off the stoop and approached the car's open side door. (Id. ¶¶ 6, 14) She observed what appeared to be cash and cigarettes lying on the front seat, and called to Plaintiff to join her. (Id. ¶ 15) As Plaintiff and her daughter peered into the car, police officers - who had approached from the side and rear of the car with weapons drawn and pointed at Plaintiff and her daughter - ordered them to "stop and get down on the fucking ground." (Id. ¶¶ 17-18) Neither Plaintiff nor her daughter had taken anything from the vehicle. (id. ¶ 23)

         Plaintiff and her daughter were handcuffed, patted down, and held in custody on the sidewalk in front of their home. (Id. ¶ 19) After "some time, " they were brought to the 44th Precinct, where they were held for several hours. (Id. ¶¶ 19, 21, 31) Plaintiff s daughter was released once officers verified that she was fifteen years old (id. ¶ 30), but Plaintiff was transported to Central Booking. (Id. ¶ 21) After two days in custody, Plaintiff- who was charged with petit larceny - was presented to a judge and released on her own recognizance. (Id. ¶¶ 22-23)

         Over the next two years, Plaintiff was required to make court appearances on several occasions. (Id. ¶ 32) She received a series of steadily more favorable plea offers, which progressed from "probation, [to] a fine, [to] a B misdemeanor, and finally [to] a violation ...." (Id. ¶ 33) Plaintiff rejected all plea offers, however, and all charges against her were dismissed on January 24, 2013. (Id. ¶¶ 34, 36) In dismissing, the court noted that "the police went through elaborate lengths to contrive this scenario to lure, bait and trap a law abiding person into taking property." id. ¶ 35)

         II. PROCEDURAL HISTORY

         A. The Complaint, Defendants' 2013 Motion to Dismiss, and the Court's 2014 Dismissal Order

         The Complaint was filed on February 13, 2013, and named the City of New York, Officer Moore, and John Does as defendants. ("See Cmplt. (Dkt. No. 1)) Plaintiff asserted Section 1983 claims for false arrest and malicious prosecution; due process violations; violations of 42 U.S.C. § 1981 (racial discrimination) and 42 U.S.C. § 1985 (conspiracy); denial of the right to a fair trial; supervisory liability; and municipal liability under Monell v. Dep't of Social Services, 436 U.S. 658 (1978). (See id. ¶¶ 29-48, 64-71) Plaintiff also asserted state law claims of negligent screening, hiring and retention; negligence; malicious abuse of process; intentional and negligent infliction of emotional distress; and municipal liability under a respondeat superior theory. (Id. ¶¶ 49-63)

         On September 13, 2013, Defendants moved to dismiss pursuant to Rule 12(b)(6) and Rule 4(m)of the Federal Rules of Civil Procedure. (Dkt. Nos. 17-19) Defendants argued that dismissal was required because (1) Plaintiff had not served Defendant Moore; (2) Plaintiff had not adequately pled a Monell claim against the City; and (3) Plaintiff had not complied with state law notice of claim requirements. (Dkt. No. 18) On October 20, 2013, Plaintiff filed her opposition, and cross-moved for leave to file an amended complaint. (See Dkt. No. 21) In a September 29, 2014 Order, this Court granted Defendants' motion to dismiss, and denied without prejudice Plaintiffs motion for leave to amend, noting that Plaintiff had not submitted a proposed Amended Complaint. (Sept. 29, 2014 Order (Dkt. No. 24) at 15-16) The Court directed Plaintiff to file a motion to amend by October 24, 2014, and to include as an exhibit a proposed Amended Complaint. (Id. at 16)

         B. Plaintiff's 2014 Motion to Amend and The Court's 2015 Order

         On October 24, 2014, Plaintiff filed a motion to amend. (Dkt. No. 26; see Proposed Am. Cmplt. (Dkt. No. 46))[3] In the proposed Amended Complaint, Plaintiff sought to reinstate Officer Moore as a defendant and to substitute Defendants Haren and Caraballo as defendants for the John Does. (See Proposed Am. Cmplt. (Dkt. No. 46)) Plaintiff also reasserted the same federal and state law claims alleged in the Complaint, and sought to add new causes of action for failure to intervene, and for violations of the New York State and City Human Rights Laws. (Id.) Defendants filed their opposition on November 19, 2014, arguing, inter alia, that amendment would be futile. (Dkt. No. 34)

         In a September 30, 2015 Order, this Court denied Plaintiffs motion to amend, except as to Plaintiffs Section 1983 malicious prosecution claim.[4] (Sept. 30, 2015 Order (Dkt. No. 48)) As to that claim, the Court granted leave to amend on the condition that Plaintiff "name the officer responsible for the alleged prosecution, and plead facts supporting that assertion." (Id. at 22) The Court gave specific instructions to Plaintiff as to what allegations were necessary to adequately plead a malicious prosecution claim against a police officer:

"In malicious prosecution cases against police officers, plaintiffs have met [the] first element [of initiation of prosecution] by showing that officers brought formal charges and had the person arraigned, or filled out complaining and corroborating affidavits, or swore to and signed a felony complaint.'" Cunninham v. New York City, No. 04 Civ. 10232 (LBS), 2007 WL 2743580, at *5 (S.D.N.Y. Sept. 18, 2007) (quoting Llerando-Phipps v. City of New York, 390 F.Supp.2d 372, 382-83 (S.D.N.Y. 2005)) (internal citations omitted). Accordingly, to state a malicious prosecution claim against any individual officer here, Plaintiff[] must allege that that officer engaged in such conduct. Allegations that he merely participated in Plaintiff['s] arrest are not sufficient.

(Id. at 22 n. 12)

The Court noted that [t]he proposed Amended Complaint does not plead facts demonstrating which officer is responsible for the alleged malicious prosecution of [Plaintiff], ... even though Plaintiff[] ha[s] access to the criminal complaint filed against her. See Dkt. No. 45. Accordingly, [Plaintiff]'s motion to amend her Section 1983 malicious prosecution claim is granted on the condition that she name the officer responsible for the alleged malicious prosecution, and plead facts supporting that assertion.

(Id. at 22) (emphasis added)

         The criminal complaint against Plaintiff is signed by Officer Moore. (Dkt. No. 45 at 2-3) The criminal complaint was available to Plaintiff from the date of her July 15, 2010 arrest, and was also produced to Plaintiff during discovery in the instant case on July 8, 2015. (See id. at 1)

         The Court directed that any amended complaint was to be filed by October 30, 2015. (Dkt. No. 49)

         On October 30, 2015, Plaintiff filed the Amended Complaint. (See Am. Cmplt. (Dkt. No. 57))[5] Inexplicably, the Amended Complaint did not contain any new allegations as to which officer had sworn out the criminal complaint against Plaintiff, and it reflected the same improper group pleading that the Court had previously ruled was insufficient. (Compare Id. ¶ 43 ("Defendants knew that by filing false charges against Plaintiff[] [, she] would very likely be held in custody, have to endure numerous court appearances, and the expense of hiring an attorney[, ] and despite such belief, the Defendants fabricated evidence that plaintiff[] w[as] engaged in criminal activity."); and Id. ¶ 45 ("Defendants' actions constituted malicious prosecution because they knowingly filed false and unsubstantiated charges against [] Plaintiff[], failed to drop them, or inform the District Attorney's office of the falsity of the charges and instead pursued the charges knowing full well that the charges were not only false but trumped up, and fabricated by the defendants.'') with Proposed Am. Cmplt. (Dkt. No. 46) ¶ 47 ("Defendants knew that by filing false charges against Plaintiff[] [, she] would very likely be held in custody, have to endure numerous court appearances, and the expense of hiring an attorney [, ] and despite such belief, the Defendants fabricated evidence that plaintiff[] w[as] engaged in criminal activity."); and Id. ¶ 49 ("Defendants' actions constituted malicious prosecution because they knowingly filed false and unsubstantiated charges against [] Plaintiff[], failed to drop them, or inform the District Attorney's office of the falsity of the charges and instead pursued the charges knowing full well that the charges were not only false but trumped up, and fabricated by the defendants.")) Indeed, the only new allegation regarding Plaintiffs malicious prosecution claim was that "Defendants [] refused to appear for Court to pursue the 'false' charge against plaintiff." (Am Cmplt. (Dkt. No. 57) ¶ 46)

         On February 2, 2016, Defendants filed a letter seeking leave to move to dismiss the Amended Complaint's malicious prosecution claim under Rule 12(b)(6) for failure to state a claim. (Feb. 2, 2016 Def. Ltr. (Dkt. No. 72)) Defendants argued that the malicious prosecution claim should be dismissed because the Amended Complaint "still fails to plead sufficient facts demonstrating which particular officer is responsible for [Plaintiffs] alleged Section 1983 malicious prosecution. . . ." (Id. at 3) Defendants pointed out that Plaintiff had "failed to cure her deficiently ple[d] Section 1983 malicious prosecution claim even though she had access to the criminal complaint against her for at least [] six months[, ] and even though the Court, in its September 30, 2015 order, provided specific instructions as to how to cure [the pleading] deficiencies." (Id. (internal citations omitted))

         On February 8, 2016, Plaintiff filed a letter in opposition, arguing that her pleading was sufficient and claiming that "Defendants ... have refused to provide discovery, forcing plaintiffs to play a guessing game as to which of the individual defendant continued the prosecution and which individual defendant directed that a criminal complaint be filed." (Feb. 8, 2016 Pltf. Ltr. (Dkt. No. 75) at 2) Plaintiff did not deny that she had access to the criminal complaint signed by Defendant Moore, but claimed that "it is inconceivable that defendant Moore (the lowest ranked member of the group), signed the criminal court complaint and did not do so without being directed by a superior officer." (Id. at 2 n.2) Plaintiff did not seek leave to further amend her malicious prosecution claim at this time. Instead, she sought leave to file a Second Amended Complaint to assert a Monell claim based on "newly discovered evidence." (Id. at 3-4)

         On April 7, 2016, the Court conducted a conference to discuss, inter alia, Defendants' request for leave to file another Rule 12(b)(6) motion. At that conference, the Court addressed the proposed motion as follows:

[T]here is a pre-motion letter pending before me seeking permission to file a motion to dismiss Plaintiff[']s malicious prosecution claim[, ] and . . . my inclination on that score would be given that we are now in April and we have a fact discovery deadline of May 12th, it seems to me that the case should be moving towards dispositive motions and I just don't know that another motion to dismiss really makes any sense given that if there is going to be a summary judgment motion, I am going to want to set a schedule for that pretty quickly, and to the extent the malicious prosecution claim is defective then it obviously can be addressed in the context of that motion. I am not sure that seriatim motions -1 mean, I have already addressed [the defective malicious prosecution claim] once on a motion to dismiss. I know that the City claims that it is still defective and maybe they're right, maybe they're wrong. I don't know. But, what I would suggest is it get wrapped in into a summary judgment motion.

(April 7, 2016 Tr. at 4 (emphasis added)) Defendants subsequently withdrew their request to file a Rule 12(b)(6) motion. (See June 17, 2016 Def. Ltr. (Dkt. No. 113) at 2 ("[W]hen defense counsel sought permission from the Court to file a second motion to dismiss, Your Honor, at the April 7, 2016 conference, suggested that defendants proceed with discovery and renew their arguments in their summary judgment motion, which defendants agreed to do."))

         In a May 25, 2016 letter, Defendants sought leave to file a motion for summary judgment, renewing their argument that Plaintiffs "insufficiently pled malicious prosecution [claim] should be dismissed." (May 25, 2016 Def. Ltr. (Dkt. No. 110) at 3) That same day, Plaintiff filed a letter seeking, inter alia, leave to file a cross-motion for summary judgment, and leave to amend her pleadings "to conform to the evidence gathered from testimony and remove or highlight which defendant took part in which claims advanced by plaintiff." (May 25, 2016 Pltf. Ltr. (Dkt. No. 109) at 5) Following two additional letters from Plaintiff- one opposing Defendants' proposed motion for summary judgment (June 1, 2016 Pltf. Ltr. (Dkt. No. Ill)), and another requesting an order directing Defendants to participate in preparing a joint pre-trial order (June 15, 2016 Pltf. Ltr. (Dkt. No. 112)) - Defendants reiterated in a June 17, 2016 letter that "Plaintiff [] has failed to .. . cure her pleadings despite ample opportunity to do so." (June 17, 2016 Ltr. (Dkt. No. 113) at 2)

         In a July 13, 2016 letter, Plaintiff elaborated on her request for leave to file a Second Amended Complaint ("SAC"), promising that it would "articulate[] the role(s) played by the individual defendants, a feat that could not have been accomplished absent exchange of discovery which started early in 2016 and after the complaint was amended on October 30, 2015." (July 13, 2016 Pltf Ltr. (Dkt. No. 114) at 1 ...


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