United States District Court, E.D. New York
MEMORANDUM & ORDER
K. BRODIE UNITED STATES DISTRICT JUDGE.
Robert Lebron commenced the above-captioned action on August
26, 2015 and filed an Amended Complaint on February 26, 2016,
against Defendants the City of New York (the
“City”), and Police Officers Joseph Nicosia and
Francisco Avveato of the New York City Police Department
(“NYPD”), (Compl., Docket Entry No. 1; Am.
Compl., Docket Entry No. 11). Plaintiff asserts, inter alia,
claims pursuant to 42 U.S.C. § 1983 against Defendants
Nicosia and Avveato for false arrest and the denial of his
right to a fair trial. (Am. Compl. ¶¶ 29-47).
Plaintiff's claims arise from his arrest on April 22,
2014 for, inter alia, criminal possession of a controlled
substance and resisting arrest. (Id. ¶¶ 7,
14, 18, 24.) Defendants Nicosia and Avveato
(“Defendants”) moved for summary judgment
pursuant to Rule 56 of the Federal Rules of Civil Procedure.
(Defs. Mot. for Summ. J. (“Defs. Mot.”), Docket
Entry No. 32; Defs. Mem. in Supp. of Defs. Mot. (“Defs.
Mem.”), Docket Entry No. 32-7; Decl. of Paul Johnson in
Supp. of Defs. Mot. (“Johnson Decl.”), Docket
Entry No. 32-1.) By Memorandum and Order dated March 31,
2018, the Court granted the motion in part and denied it in
part. (Mem. and Order dated Mar. 31, 2018
(“March 2018 Decision”) 35, Docket Entry No. 38.)
The Court also ordered Plaintiff to show cause why summary
judgment should not be granted in favor of Officer Avveato as
to the denial of the right to a fair trial claim based on
Officer Avveato's lack of personal involvement.
(Id.) The parties have submitted additional briefing
on the issue. (Resp. to Order to Show Cause, Docket Entry No.
40; Reply to Order to Show Cause, Docket Entry No. 41.) For
the reasons discussed below, the Court grants summary
judgment in favor of Officer Avveato as to Plaintiff's
claim for the denial of the right to a fair trial.
Court assumes familiarity with the facts as detailed in the
March 2018 Decision and provides only a summary of the
pertinent facts. (March 2018 Decision.) The following facts
are undisputed unless otherwise noted.
April 22, 2014, Plaintiff had an encounter with Officers
Nicosia and Avveato, resulting in his arrest and prosecution.
At the time of the incident, Plaintiff resided on Sunnyside
Avenue in Brooklyn, New York, and worked at a garage located
nearby. (Dep. of Robert Lebron (“Pl. Dep.”)
11:22-24, annexed to Decl. of Michael Lumer (“Lumer
Decl.”) as Ex. 1, Docket Entry No. 34-1.) On the
morning of April 22, 2014, Plaintiff was at the home of his
longtime girlfriend, Tiffany Simon, who resided on Dumont
Avenue in Brooklyn with their children. (Pl. Dep. 18:11-14,
49:6-8.) Plaintiff drove his children to school, drove Simon
to work, and ORDER eventually went to work at the garage.
(Pl. Dep. 18:11-23, 19:3-13, 20:5-8.) Plaintiff was driving
his grandfather's Dodge Caravan (the
“vehicle”), which his grandfather had loaned to
Plaintiff and Simon. (Pl. Declaration (“Pl.
Decl.”) ¶¶ 3-4, Docket Entry No. 35.)
to Plaintiff, he encountered Defendants at lunchtime when he
went to Golden Krust restaurant to buy food. (Pl. Dep.
20:20-24.) As he was entering the restaurant, Plaintiff tried
to give a panhandler money, when one of the Defendants told
Plaintiff not to do so and threatened to arrest him if he
did. (Pl. Dep. 21:6-11.) When leaving the restaurant,
Plaintiff gave the panhandler money and the officer told
Plaintiff he could go to jail if he acted
“stupid[ly].” (Pl. Dep. 22:9-11.) Defendants
denied ever having this encounter with Plaintiff. (Defs. Dep.
of Officer Nicosia (“Defs. Nicosia
Dep.”) 128:5-20, annexed to Johnson Decl. as Ex.
E, Docket Entry No. 33-3; Defs. Response to Pl. Statement of
Material Facts Pursuant to Local Rule 56.1 (“Defs.
Resp. to Pl. 56.1”) ¶¶ 10-11, Docket Entry
that day, while returning to the garage after lunch,
Plaintiff drove past Defendants as they sat in a marked
police car on Sunnyside Avenue. (Pl. Dep. 31:2-20, 45:4-13;
Pl. Dep. of Officer Nicosia (“Pl. Nicosia Dep.”)
25:9-15, annexed to Lumer Decl. as Ex. 4, Docket Entry No.
34-4.) Plaintiff's garage was less than one block from
where he saw Defendants. (Pl. Nicosia Dep. 83:8-84:16;
Initialed Google Street Map, annexed to Lumer Decl. as Ex. 5,
Docket Entry No. 34-5.) Plaintiff pulled up to his garage,
parked the vehicle, and walked to the gate of his garage with
his keys in hand to open the gate. (Pl. Dep. 23:14-17,
minutes after arriving at the garage, while Plaintiff was
standing at the gate with his keys, Defendants appeared at
the garage and told Plaintiff to “get the f - - k
back” in the vehicle. (Pl. Dep. 23:18-19.) Plaintiff
was shocked and did not understand the command or why
Defendants were approaching him. (Pl. Dep. 24:1-8.)
parties dispute whether Plaintiff was driving recklessly or
violating vehicle or traffic laws while driving to his
garage. According to Defendants, they approached Plaintiff
because he was speeding, driving recklessly, and violating
vehicle and traffic laws. (Defs. Resp. to Pl. 56.1
¶¶ 20-22.) Defendants contend that Plaintiff was
“traveling at a high rate of speed, ” above the
speed limit, and was “driving recklessly” because
Sunnyside Avenue is narrow and abuts a park where Plaintiff
could have hit someone while traveling at the high rate of
speed. (Defs. Nicosia Dep. 27:6-25.) Plaintiff
denies speeding, driving recklessly, or violating any vehicle
or traffic laws while driving along Sunnyside Avenue. (Pl.
admit that they ordered Plaintiff to get back into the
vehicle but deny using any profanity. (Defs. Resp. to Pl.
56.1 ¶ 25.) Plaintiff understood the command but did not
get back into the vehicle. (Defs. Resp. to Pl. 56.1 ¶
26; Defs. Statement of Material Facts Pursuant to Local Rule
56.1 (“Defs. 56.1”) ¶ 5, Docket Entry No.
32-6.) Plaintiff also concedes that he did not re-enter his
vehicle after Defendants approached him. (Pl. Dep. 24:1-3.)
handcuffed Plaintiff after he refused to get back into the
vehicle, placed him in a police vehicle, seized his keys, and
one or both of the officers searched the vehicle. (Pl. Dep.
25:6-11, 26:5-7, 48:14-19; Defs. 56.1 ¶¶ 6, 7.)
While searching the vehicle, one of the officers told
Plaintiff that he found a bottle of pills in the vehicle, and
displayed the bottle to Plaintiff. (Pl. Dep. 29:8-10.)
Plaintiff told the officer that the pills belonged to his
“wife.” (Pl. Dep. 29:14-17.)
the parties agree that one of the officers found the bottle
of pills in the vehicle, they dispute where in the vehicle
the officer found the bottle and whether there was a
prescription label on the bottle. Plaintiff contends that the
bottle of pills was in the locked glove compartment of the
vehicle. (Pl. Dep. 43:9-44:5; Pl. Decl. ¶¶ 6-8.)
Plaintiff also claims that the pills were in the original
pill bottle provided by the pharmacy, (Pl. Dep. 26:13-27:6,
43:9-18), but that one of the officers tore the label from
the bottle after showing it to him. (Pl. Dep. 44:6- 16.)
Defendants deny removing any label from the pill bottle.
(Defs. Resp. to Pl. 56.1 ¶ 35.) Defendants claim to have
found the pill bottle in the center console of the vehicle,
and that the bottle did not have a label. (Defs. Nicosia Dep.
47: 8-10, 47:20-35, 68:14-69:10.)
parties also dispute whether Plaintiff resisted arrest.
Defendants contend that Plaintiff refused to produce his
hands when asked to do so and turned his body away from the
officers while being placed under arrest. (Defs. Nicosia Dep.
63:16-20.) Plaintiff denies resisting arrest. (Pl. Decl.
took Plaintiff to the 75th precinct and later to Central
Booking. (Pl. Statement of Material Facts Pursuant to Local
Rule 56.1 (“Pl. 56.1”) ¶ 53, Docket Entry
No. 37; ...