Brown v. City of New York et al

Filing 59

MEMORANDUM & ORDER: The Courts prior memorandum and order recognizedBoyd controls when the plaintiffs version of events is corroborated by some modicum of objective evidence. Since that is not the case here, plaintiff's motion 51 for reconsideration is denied. Ordered by Judge Frederic Block on 9/20/2013. (Innelli, Michael)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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NAEEM BROWN,
Plaintiff,
-against-

MEMORANDUM AND ORDER
08-CV-5095 (FB) (MDG)

THE CITY OF NEW YORK, New York
City Police Department Officer
(“P.O.”) EVAGELOS
DIMITRAKAKIS, and P.O. BOBBY
MOHIP,
Defendants.
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Appearances:
For the Plaintiff:
ROSE M. WEBER, ESQ.
225 Broadway, Suite 1608
New York, NY 10007

For Defendants:
MICHAEL A. CARDOZO, ESQ.
Corporation Counsel of the City of New York
100 Church Street
New York, NY 10007
By:

MORGAN D. KUNZ, ESQ.
Senior Counsel
Special Federal Litigation Division

BLOCK, Senior District Judge:
In a prior memorandum and order, the Court granted defendants’ motion for
summary judgment on plaintiff’s claim for malicious prosecution. See Brown v. City of New
York, 2013 WL 1338785, at *7 (E.D.N.Y. Apr. 1, 2013).1

Plaintiff now moves for

reconsideration on the ground that the Court overlooked the Second Circuit’s decision in
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The motion was denied as to plaintiff’s remaining claims. See Brown, 2013 WL
1338785, at *7.

Boyd v. City of New York, 336 F.3d 72 (2d. Cir. 2003).
A grand jury indictment creates a rebuttable presumption of probable cause,
which is fatal to a claim of malicious prosecution. See Savino v. City of New York, 331 F.3d
63, 72 (2d Cir. 2003). The presumption may be overcome, however, by evidence of “fraud,
perjury, the suppression of evidence or other police conduct undertaken in bad faith.” Id.
(quoting Colon v. City of New York, 60 N.Y.2d 78, 83 (1983)).
The Court concluded that plaintiff’s denial of wrongdoing was insufficient
to create a reasonable inference that the arresting office had fabricated the grounds for his
prosecution. See Brown, 2013 WL 1338785, at *4 (“[Plaintiff is required] to rebut this
presumption using ‘evidence sufficient for a reasonable jury to find that his indictment was
procured as a result of police conduct undertaken in bad faith.’” (quoting Savino, 331 F.3d
at 73. In so holding, the Court cited Simmons v. New York City Police Dep’t, 97 F. App’x 341
(2d Cir. 2004), in support of the proposition that “a plaintiff’s own testimony is insufficient
to rebut the presumption of probable cause.” Brown, 2013 WL 1338785, at *4.
The Court did not overlook Boyd, in which the plaintiff was prosecuted based
on his admission that he had purchased stolen property. See 336 F.3d at 77. The arresting
officers averred that the statement had been made prior to the plaintiff’s arrest, which had
taken place outside his apartment, while the plaintiff averred that the statement had been
made following his arrest (and without Miranda warnings), which had taken place inside
his apartment. See id. The Second Circuit held that this factual dispute was sufficient to
overcome the presumption of probable cause at the summary judgment stage, noting that
the arresting officers’ averments were inconsistent with written records reflecting that the
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arrest took place inside. See id. “When we consider the booking sheet and Boyd’s
testimony in combination with the police testimony,” the court explained, “we move
beyond a simple conflict of stories or mistaken memories, and into the possibility that the
police knew where they arrested Boyd, but lied in order to secure an indictment.” Id.
The Court summarized Boyd as holding that “a plaintiff may be able to rebut
the presumption [of probable cause] by pointing to discrepancies in the official
documents.” Brown, 2013 WL 1338785, at *4. That reading is consistent with the Second
Circuit’s in Manganiello v. City of New York, 612 F.3d 149 (2d Cir. 2010):
Where there is some indication in the police records that, as to a
fact crucial to the existence of probable cause, the arresting
officers may have “lied in order to secure an indictment,” and
“a jury could reasonably find that the indictment was secured
through bad faith or perjury,” the presumption of probable
cause created by the indictment may be overcome.
Id. at 162 (quoting Boyd, 336 F.3d at 77) (emphasis added).
In sum—and as the Court’s prior memorandum and order recognized—Boyd
controls when the plaintiff’s version of events is corroborated by some modicum of
objective evidence. Since that is not the case here, the motion for reconsideration is denied.
SO ORDERED.

_/s/Frederic Block___
FREDERIC BLOCK
Senior United States District Judge
Brooklyn, New York
September _20, 2013

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