Matthews v. City of New York et al
Filing
38
MEMORANDUM AND ORDER granting in part and denying in part defendants' Motion to Dismiss for Failure to State a Claim 35 . In summary, the only remaining claims in this action are (1) plaintiffs' Section 1983 claims for unreasonable search and seizure, (2) Matthews' Section 1983 claim for malicious prosecution in connection with the use of his allegedly coerced false confession to initiate and maintain his prosecution, (3) plaintiffs' Section 1983 claims for excessive force, and (4) plaintiffs' Section 1983 claims for failure to intervene, all against the Individual Defendants. By September 19, 2012, Matthews shall have the opportunity to file an amended complaint that adequately pleads compliance with the Notice of Claim requirements for his remaining state law claims of malicious prosecution and failure to intervene, and defendants shall respond within the time prescribed by the Federal Rules of Civil Procedure. Finally, by September 26, 2012, the parties shall file a joint status report via ECF advising the court how they wish to proceed with this case, and whether a settlement conference before Magistrate Judge Mann would be beneficial. Ordered by Judge Kiyo A. Matsumoto on 09/05/2012. (Ravi, Sagar)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------X
MKUBWA MATTHEWS and ZAMBENA
ALLAN,
Plaintiffs,
MEMORANDUM AND ORDER
-against10-CV-4991
THE CITY OF NEW YORK; POLICE
OFFICER MATTHEW T. GRANAHAN,
Shield No. 26635; SERGEANT LOUIS
MARINO, Shield No. 1597; POLICE
OFFICER KENNETH MILLER, Shield No.
18242; POLICE OFFICER VITALI; and
POLICE OFFICERS JOHN DOE and
RICHARD ROE (names and shield
numbers of whom are unknown at
present, and other unidentified
members of the New York City
Police Department),
Defendants.
---------------------------------X
MATSUMOTO, United States District Judge:
On October 29, 2010, pursuant to 42 U.S.C. § 1983
(“Section 1983”) and New York law, Mkubwa Matthews and Zambena
Allan (“plaintiffs”) filed this action against the City of New
York (“the City”) and individual defendants Sergeant Louis
Marino, Police Officers Matthew Granahan, Kenneth Miller, and
Vitali, and two unidentified members of the New York City Police
Department (“NYPD”), John Doe and Richard Roe (the “Individual
Defendants,” together with the City, the “defendants”).
Plaintiffs assert constitutional claims pursuant to Section 1983
against the Individual Defendants for unreasonable search and
1
seizure, false arrest and imprisonment, malicious prosecution,
excessive force, and failure to intervene, a Monell claim
against the City for the same constitutional violations, and
analogous claims under New York law.
Presently before the court
is defendants’ Federal Rule of Civil Procedure 12(c) motion for
judgment on the pleadings.
Having reviewed the parties’
submissions and the relevant case law, for the reasons discussed
below, defendants’ motion is granted in part and denied in part.
BACKGROUND
The following facts are drawn from plaintiffs’
complaint (see ECF No. 1, Complaint (“Compl.”)) and are accepted
as true for the purposes of this motion, drawing all inferences
in favor of the nonmoving plaintiffs.
LaFaro v. New York
Cardiothoracic Group, PLLC, 570 F.3d 471, 475-76 (2d Cir. 2009).
I.
Statement of Facts
A.
The Assault of Plaintiff Allan
On December 20, 2007, Matthews and his younger brother
Allan attended a birthday party at Secrets Restaurant Bar &
Lounge (“Secrets”) in Kings County, New York.
(Compl. ¶ 29.)
Before entering Secrets at approximately 1:00 AM, both
plaintiffs were frisked for weapons.
(Id. ¶¶ 29-30.)
A few
hours later, approximately fifteen unknown male patrons at
Secrets robbed and attacked Allan, attempting to steal a gold
chain worn around his neck.
(Id. ¶¶ 31-32.)
2
The assailants
brutally assaulted Allan, repeatedly kicking, stomping, and
punching him.
(Id. ¶¶ 31, 33.)
As a result of being badly
beaten, Allan lost consciousness and defecated on himself, his
eyes were swollen almost shut, his head was injured, and his
nose and lips were bleeding.
(Id. ¶¶ 34-35.)
Additionally,
Allan had cuts on his chest and his shirt was ripped and had
kick marks on it.
(Id. ¶ 35.)
During the assault, Matthews did not know that Allan
was being attacked because the beating occurred in a different
area of Secrets from where the birthday party was held.
¶ 38.)
(Id.
After learning of the assault, Matthews came to Allan’s
assistance and asked whether he was okay.
(Id. ¶ 40.)
Appearing dazed, Allan was unable to speak and was slipping in
and out of consciousness.
(Id. ¶ 41.)
Three friends from the birthday party offered to drive
plaintiffs a short distance to Kings County Hospital (the
“Hospital”) in their vehicle, which the friends then drove to
the entrance of Secrets to pick up the plaintiffs.
43.)
(Id. ¶¶ 42-
Matthews and one of the friends helped Allan to the
vehicle because Allan had trouble walking without assistance due
to his injuries.
(Id. ¶ 43.)
In the interim, the Individual Defendants had arrived
at Secrets in response to 911 calls reporting that a group of
individuals had assaulted a Secrets patron and, “upon
3
information and belief,” that those individuals then fired
gunshots into the air outside of the establishment.
46.)
(Id. ¶¶ 45-
Upon arrival, the Individual Defendants observed that
Allan was a badly injured assault and robbery victim and that he
had defecated on himself.
(Id. ¶ 48.)
The Individual
Defendants also observed Matthews assisting his injured brother
into their friends’ vehicle.
(Id. ¶ 49.)
The Individual
Defendants did not see a bulge that could have been a weapon in
the waistband of Matthews’ pants because his pants fit tightly
and could not have concealed a weapon in the waistband.
¶ 51.)
(Id.
Moreover, the Individual Defendants did not hear
plaintiffs say anything indicating that they were carrying a
weapon.
B.
(Id. ¶ 52.)
The Traffic Stop of Plaintiffs
With plaintiffs in the vehicle, plaintiffs’ friends
drove away from Secrets towards the Hospital, but the Individual
Defendants stopped the vehicle en route to the Hospital.
¶¶ 53-56.)
(Id.
When one of the Individual Defendants approached the
vehicle and demanded the driver’s license and registration, the
driver requested an explanation for the traffic stop.
¶¶ 57-58.)
(Id.
The officer refused to explain the purpose of the
traffic stop, and again requested the driver’s license and
registration.
(Id. ¶ 59.)
The driver then complied with the
officer’s repeated request to provide her license and
4
registration.
(Id. ¶¶ 59-60.)
Thereafter, without explanation,
the Individual Defendants ordered all of the vehicle occupants,
including plaintiffs, to exit the vehicle.
(Id. ¶ 61.)
After
the occupants had exited the vehicle, the Individual Defendants
asked Matthews their destination, and Matthews explained that
they were taking Allan to the Hospital for medical treatment
after his assault.
(Id. ¶¶ 62-64.)
Although the Individual Defendants observed Allan’s
injuries and knew he required medical assistance, they further
detained plaintiffs and searched the vehicle without the
occupants’ consent.
(Id. ¶¶ 65-66.)
The search revealed a gun
inside the pocket of a jacket located in the vehicle.
¶ 67.)
(Id.
The Individual Defendants knew that the jacket and gun
belonged to one of plaintiffs’ friends, and not to plaintiffs.
(Id. ¶ 68.)
Nevertheless, the Individual Defendants arrested
all five of the vehicle occupants and transported them to the
77th Precinct.
(Id. ¶¶ 69-70.)
In effecting the arrests, the
Individual Defendants “brutally handcuffed” plaintiffs, causing
pain and numbness to plaintiffs’ wrists.
(Id. ¶¶ 91, 97.)
Plaintiffs asked the Individual Defendants to loosen the
handcuffs, but they refused.
C.
(Id. ¶ 92.)
The Coerced Confession
At the 77th Precinct, the Individual Defendants denied
Matthews’ requests to release Allan so that he could go to the
5
Hospital and obtain medical attention.
(Id. ¶¶ 75-76.)
Although Matthews informed the Individual Defendants that the
gun was not his and that he did not know who possessed it, the
Individual Defendants attempted to coerce Matthews into signing
a written confession by withholding medical treatment from his
brother Allan.
(Id. ¶¶ 74-75.)
The Individual Defendants told
all five arrestees that they would not be released and Allan
would not receive medical attention until one of them signed a
written confession admitting to possession of the gun.
¶ 71.)
(Id.
Because the individual who possessed the gun failed to
confess, Matthews capitulated to police coercion and signed a
written confession so that Allan could receive medical
assistance.
(Id. ¶¶ 72-74, 77-78.)
At approximately 9:25 AM on December 20, 2007,1
approximately thirty minutes after Matthews signed a false
confession, Allan and the three other vehicle occupants were
released from custody.
(Id. ¶¶ 79-80.)
After his release,
Allan sought medical treatment at the Hospital and was diagnosed
with several ailments, including a detached retina from head
trauma.
(Id. ¶ 81.)
1
Although the complaint alleges that Allan was released on
December 20, 2010, it is clearly a typographical error meant to read
“December 20, 2007.” (See Compl. ¶ 80.)
6
D.
The Prosecution of Plaintiff Matthews
Matthews was subsequently charged with Criminal
Possession of a Weapon in the Second and Third Degrees.
¶ 82.)
(Id.
The Individual Defendants provided false information to
the Assistant District Attorney, the Grand Jury, and during
suppression hearings to justify the stop and search of the
vehicle occupied by plaintiffs and to explain Matthews’ arrest.
(Id. ¶¶ 84-85.)
Each of the Individual Defendants had a
different version of the events occurring after they arrived at
Secrets on the night of the arrest.
(Id. ¶ 47.)
Based on the
Individual Defendants’ fabricated testimony, however, the Grand
Jury indicted Matthews.
(Id. ¶ 86.)
Moreover, at a Mapp,
Dunnaway, and Huntley hearing on May 18 and 20, 2010, defendants
Granahan, Miller, and Marino testified falsely about the stop,
seizure, and search of the vehicle occupied by plaintiffs.
¶ 88.)
(Id.
On July 27, 2010, the charges against Matthews were
dismissed, due to the inconsistent false statements made by the
Individual Defendants.
(Id. ¶ 89.)
Before the charges were
dismissed, Matthews had appeared in court on approximately nine
occasions.
(Id. ¶ 90.)
7
E.
Other Relevant Allegations
From the time of the initial traffic stop on December
20, 2007 to the dismissal of Matthews’ charges on July 27, 2010,2
the Individual Defendants observed each other violate
plaintiffs’ rights under the United States Constitution and did
nothing to prevent the constitutional violations.
(Id. ¶ 93.)
Individual defendant Sergeant Marino has a history of
police misconduct involving substantiated allegations of
dishonesty.
(Id. ¶ 99.)
Specifically, the City and NYPD
suspended Marino for thirty days and placed him on modified duty
for three years because he failed to report and was untruthful
about an incident where a friend and fellow police officer shot
an individual.
(Id. ¶ 101.)
Although the City and its policy
makers were aware of Marino’s prior misconduct, he nevertheless
was promoted to sergeant and was given the supervisory
responsibility to ensure that police officers adhere to police
procedure, state law, and constitutional law.
(Id. ¶ 100.)
Finally, plaintiffs allege that the NYPD has a policy,
practice, or custom (1) to search vehicles and apartments
without probable cause, (2) to arrest all occupants of a vehicle
or apartment regardless of whether the police have reason to
believe weapons or contraband belong to a particular individual,
2
Plaintiffs do not allege facts regarding what occurred in the
interim period of approximately two years and seven months, beyond alleging
facts regarding the suppression hearings in May 2010.
8
and (3) to create false versions of events to justify their
actions.
F.
(Id. ¶¶ 103-06.)
Plaintiffs’ Claims
On October 29, 2010, plaintiffs filed the instant
complaint asserting constitutional claims pursuant to Section
1983 against the Individual Defendants for unreasonable search
and seizure, false arrest and imprisonment, malicious
prosecution, excessive force, and failure to intervene, and a
Monell claim against the City for the same constitutional
violations.
Additionally, plaintiffs assert analogous claims
under New York law against the Individual Defendants for false
arrest and malicious prosecution, and against the City under the
doctrine of respondeat superior.
130.)
(Compl. ¶¶ 112, 114, 117, 123,
Plaintiffs allege that, as a result of the Individual
Defendants’ conduct, plaintiffs sustained “physical pain and
suffering, as well as psychological and emotional trauma,”
feared for their safety, and suffered humiliation.
128.)
(Id. ¶¶ 98,
Plaintiffs seek $2 million in compensatory damages and $1
million in punitive damages, as well as costs and reasonable
attorney’s fees.
G.
(Id. at 22.)
The Instant Motion
Defendants’ Rule 12(c) motion for judgment on the
pleadings seeks the dismissal of plaintiffs’ claims on the
grounds that (1) plaintiffs fail to state a claim for each cause
9
of action, (2) defendants are entitled to qualified immunity,
and (3) the state law claims should be dismissed because
plaintiffs failed to file a Notice of Claim and Allan failed to
file suit within the statute of limitations.
(See ECF No. 35-5,
Memorandum of Law in Support of Defendants’ Motion for Judgment
on the Pleadings (“Defs. Mem.”) at 1-2, 19.)
Plaintiffs filed
an opposition brief to defendants’ motion (see ECF No. 33,
Plaintiffs’ Memorandum of Law in Opposition to Defendants’
Motion for Judgment on the Pleadings (“Pls. Opp’n”)), and
defendants filed a reply brief (see ECF No. 36, Defendants’
Reply Memorandum of Law in Further Support of their Motion to
Dismiss (“Defs. Reply”)).3
DISCUSSION
II.
Standard for Judgment on the Pleadings
In deciding a Rule 12(c) motion for judgment on the
pleadings, courts apply the same standard as that applicable to
a motion to dismiss, accepting the allegations in the complaint
as true and drawing all inferences in favor of the non-moving
party.
LaFaro, 570 F.3d at 475-76.
3
To survive a motion for
The court notes that plaintiffs withdrew their claim for
deliberate indifference to medical needs and so orders the dismissal of that
claim. (See Compl. ¶¶ 132-36; Pls. Opp’n at 1 n.1.) The court also notes
that plaintiffs mention assault and battery (see Compl. ¶ 98), but those
allegations appear to constitute unintended typographical errors and are not
alleged as separate causes of action. Notwithstanding, claims for assault
and battery are plainly unsupported by the facts alleged here and, thus, they
are dismissed if plaintiffs intended to assert claims for assault and
battery.
10
judgment on the pleadings, the “complaint must plead ‘enough
facts to state a claim to relief that is plausible on its
face.’”
Ruotolo v. City of New York, 514 F.3d 184, 188 (2d Cir.
2008) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)).
“A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citing Twombly, 550 U.S. at 556).
“Threadbare recitals
of the elements of the cause of action, supported by mere
conclusory statements, do not suffice”; “[w]hile legal
conclusions can provide the framework of a complaint, they must
be supported by factual allegations.”
Id. at 678-79.
III. The Section 1983 Claims
The plaintiffs bring claims pursuant to 42 U.S.C.
§ 1983 for the alleged deprivation of their rights under the
Fourth and Fourteenth Amendments to the Constitution.
In
relevant part, Section 1983 provides that:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State
. . ., subjects, or causes to be subjected, any
citizen of the United States or other person within
the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other
proper proceeding for redress . . . .
11
42 U.S.C. § 1983.
Section 1983 “is not itself a source of
substantive rights, but merely provides a method for vindicating
federal rights elsewhere conferred.”
Graham v. Connor, 490 U.S.
386, 393-94 (1989) (internal quotation marks omitted).
To state
a claim under Section 1983, a plaintiff must allege that “(1)
the challenged conduct was attributable at least in part to a
person who was acting under color of state law and (2) the
conduct deprived the plaintiff of a right guaranteed under the
Constitution of the United States.”
Snider v. Dylag, 188 F.3d
51, 53 (2d Cir. 1999).
The defendants do not appear to dispute that, at all
relevant times, the Individual Defendants were acting under
color of state law as NYPD employees.
16, 19, 22.)
(See Compl. ¶¶ 7, 10, 13,
Rather, defendants contend that plaintiffs fail to
state a plausible cause of action for each of their
constitutional and state law claims, or, in the alternative,
that the Individual Defendants are entitled to qualified
immunity.
(Defs. Mem. at 1-2.)
12
Each of plaintiffs’
constitutional claims under Section 1983 will be discussed in
turn.4
A.
Unreasonable Search and Seizure
The Fourth Amendment protects “[t]he right of the
people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures . . . .”
U.S. Const. amend. IV.
“An investigatory stop is permissible
under the Fourth Amendment if supported by reasonable suspicion,
and a warrantless search of a car is valid if based on probable
cause.”
Ornelas v. United States, 517 U.S. 690, 693 (1996)
(citation omitted) (citing Terry v. Ohio, 392 U.S. 1 (1968)
(investigatory stop); California v. Acevedo, 500 U.S. 565 (1991)
(warrantless automobile search)).
Plaintiffs allege that the
Individual Defendants initially subjected them to an
unreasonable search and seizure from the time of the traffic
stop until the discovery of the firearm.
Pls. Opp’n at 7-10.)
(Compl. ¶¶ 107-08;
Defendants argue that reasonable suspicion
existed for the traffic stop, but do not appear to oppose
plaintiffs’ argument that the Individual Defendants lacked
probable cause for the vehicle search.
4
(Defs. Reply 1-3.)
It appears that plaintiffs have incorrectly sued the Individual
Defendants in their “individual and official capacities.” (See Compl. ¶¶ 9,
12, 15, 18, 21.) It is well-settled that state officials acting in their
official capacities are not persons within the meaning of Section 1983, and,
as such, are not subject to liability under Section 1983. Will v. Michigan
Dep’t of State Police, 491 U.S. 58, 71 (1989). Accordingly, plaintiffs’
claims against the Individual Defendants in their official capacities are
dismissed.
13
1.
Reasonable Suspicion for the Terry Stop
“Temporary detention of individuals during the stop of
an automobile by the police, even if only for a brief period and
for a limited purpose, constitutes a ‘seizure’ of ‘persons’
within the meaning” of the Fourth Amendment.”
States, 517 U.S. 806, 809–10 (1996).
Whren v. United
Consistent with the Fourth
Amendment, “the police can stop and briefly detain a person for
investigative purposes.”
United States v. Sokolow, 490 U.S. 1,
7 (1989) (citing Terry, 392 U.S. at 30).
Such a detention is
known as a Terry stop and requires that “the officer [have] a
reasonable suspicion supported by articulable facts that
criminal activity ‘may be afoot,’ even if the officer lacks
probable cause.”
Id. (quoting Terry, 392 U.S. at 30); United
States v. Jenkins, 452 F.3d 207, 212 (2d Cir. 2006).
“The principal components of a determination of
reasonable suspicion or probable cause will be the events which
occurred leading up to the stop or search, and then the decision
whether these historical facts, viewed from the standpoint of an
objectively reasonable police officer, amount to reasonable
suspicion or to probable cause.”
Ornelas, 517 U.S. at 696; see
also Florida v. J.L., 529 U.S. 266, 271 (2000) (“The
reasonableness of official suspicion must be measured by what
the officers knew before they conducted their [seizure].”).
While “[a]rticulating precisely what ‘reasonable suspicion’ and
14
‘probable cause’ mean is not possible,” the Supreme Court has
“described reasonable suspicion simply as ‘a particularized and
objective basis’ for suspecting the person stopped of criminal
activity . . . .”
Ornelas, 517 U.S. at 695-96 (quoting United
States v. Cortez, 449 U.S. 411, 417–18 (1981)).
Further, “the
proper inquiry is not whether each fact considered in isolation
denotes unlawful behavior, but whether all the facts taken
together support a reasonable suspicion of wrongdoing.”
United
States v. Lee, 916 F.2d 814, 820 (2d Cir. 1990); see also United
States v. Arvizu, 534 U.S. 266, 273 (2002) (stating that courts
must look at the “totality of the circumstances” when making
reasonable-suspicion determinations).
The court evaluates the
totality of the facts from the perspective of a trained and
experienced officer.
See Cortez, 449 U.S. at 418.
When the Individual Defendants pulled over the
vehicle, they seized plaintiffs within the meaning of the Fourth
Amendment.
Whren, 517 U.S. at 809–10.
Indeed, the parties do
not dispute that the traffic stop constituted a Terry stop
requiring reasonable suspicion.
Rather, defendants argue that
reasonable suspicion supported the Terry stop (see Defs. Reply
at 1-3), and plaintiffs, in opposition, argue that “defendants
lacked articulable facts that created grounds for reasonable
suspicion of unlawful activity.”
(Pls. Opp’n at 10.)
The issue
before the court, therefore, is whether plaintiffs state a
15
plausible claim that the Individual Defendants lacked reasonable
suspicion to conduct the Terry stop.
The court finds that plaintiffs’ claim for
unreasonable seizure is supported by the allegations of the
complaint and is plausible on its face.
Specifically, the
Individual Defendants observed that Allan required medical
treatment after suffering an assault and witnessed Matthews
helping him into their friends’ waiting car.
The Individual
Defendants did not, however, see plaintiffs perform any
activity, gesture, or threat that might indicate they possessed
guns, or would or did engage in criminal activity.
Although
Individual Defendants could have “believe[d] that plaintiffs had
in fact been involved in some sort of criminal activity related
to the [violent] incident” at Secrets (Defs. Reply at 3), such
speculation, by itself, is insufficient evidence of reasonable
suspicion for purposes of a Rule 12(c) motion to dismiss.
Moreover, the Individual Defendants observed
plaintiffs exit Secrets, enter the waiting car, and drive away,
permitting plaintiffs to leave the scene.
Given that Allan
required assistance in walking to the car, the Individual
Defendants likely had ample opportunity to approach and detain
plaintiffs at Secrets if they had reasonable suspicion that
plaintiffs were engaging in criminal activity.
Although the
limited shift in time and space would not negate reasonable
16
suspicion if it existed before plaintiffs left Secrets, see
Copeland v. Philadelphia Police Dept., 840 F.2d 1139, 1144 (3d
Cir. 1988), it does support plaintiffs’ claim that the
Individual Defendants permitted them to leave Secrets unimpeded
due to a lack of reasonable suspicion to detain them (see Compl.
¶ 53).
Accordingly, accepting as true plaintiffs’ allegations
and drawing all inferences in plaintiffs’ favor, the time lapse
between the assault at Secrets and the traffic stop en route to
the Hospital – during which there was no activity or conduct by
plaintiffs or their friends that would give rise to reasonable
suspicion - also weighs against a finding of reasonable
suspicion for the Terry stop.
2.
Probable Cause for the Vehicle Search
Given that the Individual Defendants lacked reasonable
suspicion for the Terry stop, they also lacked probable cause
for the automobile search.
See United States v. Navas, 597 F.3d
492, 497 (2d Cir. 2010) (“[L]aw enforcement [may] conduct a
warrantless search of a readily mobile vehicle where there is
probable cause to believe that the vehicle contains
contraband.”).
Based on plaintiffs’ allegations, the Individual
Defendants did not observe any suspicious conduct by plaintiffs
or the other vehicle occupants or learn any new information
between plaintiffs’ departure from Secrets and the traffic stop.
Consequently, the facts do not reflect any intervening
17
circumstances after the unlawful traffic stop that support a
finding of probable cause to search the vehicle; thus the search
was plausibly unreasonable.5
Accordingly, plaintiffs allege
facts that plausibly support a claim pursuant to Section 1983
for unreasonable search of the vehicle and seizure of the
plaintiffs by defendants prior to the gun discovery.
3.
Damages for Unreasonable Search and Seizure
Under Section 1983, “[v]ictims of unreasonable
searches or seizures may recover damages directly related to the
invasion of their privacy - including (where appropriate)
damages for physical injury, property damage, injury to
reputation, etc.; but such victims cannot be compensated for
injuries that result from the discovery of incriminating
evidence and consequent criminal prosecution.”
Townes v. City
of New York, 176 F.3d 138, 148 (2d Cir. 1999).
Indeed, “[t]he
fruit of the poisonous tree doctrine . . . is inapplicable to
civil § 1983 actions.”
Id. at 145.
Thus, plaintiffs must
allege damages attributable to the claims for unreasonable
search and seizure to recover under Section 1983.
Compare
Davenport v. County of Suffolk, No. 99-CV-3088, 2007 WL 608125,
at *2, *5-7 (E.D.N.Y. Feb. 23, 2007) (holding that damages from
5
Although plaintiffs allege an unlawful search of the vehicle
(Compl. ¶ 66), they do not appear to claim any damages, such as property
damage, resulting directly from the unreasonable search. Consequently, the
absence of probable cause for the search is only relevant insofar as it
caused plaintiffs to be unconstitutionally detained for a longer period of
time during the search, which may have increased plaintiffs’ alleged damages.
18
alleged unreasonable stop and seizure prior to arrest were
compensable where Section 1983 plaintiff alleged he suffered
“humiliation, ridicule, disgrace, and embarrassment, and has
sustained substantial expense, and significant physical,
emotion, and mental anguish, including substantial attorney
fee’s [sic]”), with Townes, 176 F.3d at 145 (holding that the
only actionable Fourth Amendment right for which the Section
1983 plaintiff could recover damages was for a suspicionless
taxi cab stop and the associated search and seizure of his
person, “which alone might at most support slight or nominal
damages,” and that plaintiff could not recover for his
subsequent prosecution, conviction, and incarceration).
If plaintiffs ultimately prove their claim for
unreasonable search and seizure, they are entitled only to
damages resulting directly from the invasion of privacy and not
from the discovery of the firearm and the ensuing arrests and
prosecution of Matthews.6
Here, plaintiffs adequately allege
damages attributable to the detention during the initial vehicle
stop and search, including psychological and emotional trauma,
restriction of liberty, fear for their safety, physical pain and
suffering, and humiliation.
(Compl. ¶¶ 98, 128.)
Accordingly,
plaintiffs have stated a plausible claim under Section 1983 for
6
Damages attributable to Matthews’ prosecution is appropriately
addressed in connection with his claim for malicious prosecution, discussed
infra at Section III.C. See Townes, 176 F.3d at 149.
19
damages stemming from an unreasonable stop, search, and seizure
prior to the discovery of the gun and their arrests.
See
Davenport, 2007 WL 608125, at *7 (“[S]uch damages are clearly
available to [plaintiff] if he can prove that a Fourth Amendment
violation of his rights occurred during the initial stop and
search of his person prior to arrest.
Under Second Circuit law,
[plaintiff] is entitled to a trial even if he is only able to
recover slight or nominal damages.” (citing Townes, 176 F.3d at
146)).
4.
Qualified Immunity
In the alternative, defendants argue that the
Individual Defendants are entitled to qualified immunity from
plaintiffs’ claims for unreasonable search and seizure because
“reasonable officers could disagree as to whether there was
reasonable suspicion to conduct such an investigatory stop.”
(Defs. Reply at 6.)
“Qualified immunity shields government officials from
liability for civil damages as a result of their performance of
discretionary functions, and serves to protect government
officials from the burdens of costly, but insubstantial,
lawsuits.”
Hartline v. Gallo, 546 F.3d 95, 102 (2d Cir. 2008)
(internal quotation marks omitted).
As qualified immunity is an
affirmative defense, the defendants bear the burden of proof.
Lore v. City of Syracuse, 670 F.3d 127, 149 (2d Cir. 2012).
20
In order to deny qualified immunity to a government
official, a court must find both that (1) the plaintiff has
alleged facts that comprise a violation of a constitutional
right, and (2) that the violated constitutional right was
“clearly established” at the time of the official’s alleged
misconduct.
Pearson v. Callahan, 555 U.S. 223, 232, 236 (2009)
(holding that a federal court may use “discretion in deciding
which of the two prongs of the qualified immunity analysis
should be addressed first in light of the circumstances in the
particular case at hand”).
Moreover, “‘[e]ven where the law is
‘clearly established’ and the scope of an official’s permissible
conduct is ‘clearly defined,’ the qualified immunity defense
also protects an official if it was ‘objectively reasonable’ for
him at the time of the challenged action to believe his acts
were lawful.’”
Taravella v. Town of Wolcott, 599 F.3d 129, 134
(2d Cir. 2010) (quoting Higazy v. Templeton, 505 F.3d 161, 16970 (2d Cir. 2007)).
“That is, officers are entitled to
qualified immunity if ‘officers of reasonable competence could
disagree’ as to legality of their action.”
Felmine v. City of
New York, No. 09–CV–3768, 2011 WL 4543268, at *9 (E.D.N.Y. Sept.
29, 2011) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).
The objective reasonableness inquiry of whether the shield of
qualified immunity applies to a defendant’s conduct is a mixed
21
question of law and fact.
Kerman v. City of New York, 374 F.3d
93, 109 (2d Cir. 2004).
First, as stated above, plaintiffs allege a plausible
claim for unreasonable search and seizure.
Second, “the law was
clearly established that [plaintiffs] had a constitutional right
to be free from arrest without probable cause, as well as a
constitutional right to be free from unreasonably prolonged or
intrusive investigative detention.”
Gilles v. Repicky, 511 F.3d
239, 247 (2d Cir. 2007) (reversing district court’s grant of
qualified immunity because the officer did not demonstrate an
objectively reasonable belief that he was not violating
plaintiff’s clearly established constitutional rights); see also
Kuriakose v. City of Mt. Vernon, 41 F. Supp. 2d 460, 469
(S.D.N.Y. 1999) (“[T]he law on investigative stops was clearly
established at the time of plaintiff’s stop, and the officers
should have known that such a stop required reasonable
suspicion”); Signorile v. City of New York, 887 F. Supp. 403,
412 (E.D.N.Y. 1995) (“[C]learly established as constitutional
rights are the prerogatives not to be arrested or searched,
other than in a frisk grounded in reasonable suspicion, without
probable cause.”).
At this stage, for purposes of deciding
defendants’ motion, the facts alleged do not support a finding
that it was “objectively reasonable” for the Individual
Defendants to believe there was reasonable suspicion for the
22
investigatory stop and probable cause for the vehicle search.
Indeed, on the facts alleged by plaintiffs, a reasonably
competent officer would not believe he had reasonable suspicion
to stop and search a vehicle transporting an injured assault
victim to a hospital to obtain medical care.
Accordingly, the
Individual Defendants are not entitled to qualified immunity
from plaintiffs’ unreasonable search and seizure claim at this
time.
B.
False Arrest and Imprisonment
A Section 1983 claim for false arrest sounding in the
Fourth Amendment is “substantially the same” as a claim for
false arrest under New York law.
Jocks v. Tavernier, 316 F.3d
128, 134 (2d Cir. 2003) (quoting Weyant v. Okst, 101 F.3d 845,
852 (2d Cir. 1996)).
Under New York law, the torts of false
arrest and false imprisonment are “synonymous,” Posr v. Doherty,
944 F.2d 91, 96 (2d Cir. 1991), and the elements of a false
imprisonment claim are: “(1) the defendant intended to confine
[the plaintiff], (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, 316 F.3d at 134-35 (internal quotation
marks omitted).
The existence of probable cause to arrest
constitutes a “complete defense” to an action for false arrest,
23
whether that action is brought under Section 1983 or state law.
Amore v. Novarro, 624 F.3d 522, 536 (2d Cir. 2010).
1.
The Applicability of the Fruit of the Poisonous
Tree Doctrine
Although the Individual Defendants plausibly lacked
reasonable suspicion for the stop and probable cause for the
search that led to the discovery of the firearm (see supra
Section III.A), it does not follow that the Individual
Defendants lacked probable cause to arrest the plaintiffs.
Townes, 176 F.3d at 145-46.
See
Plaintiffs’ theory of liability
amounts to a civil version of the “fruit of the poisonous tree”
doctrine for excluding evidence in criminal proceedings.
As
noted above, however, the Second Circuit has held “that the
fruit of the poisonous tree doctrine may not be invoked to
support a § 1983 civil action, because the doctrine ‘is an
evidentiary rule that operates in the context of criminal
procedure . . . and as such has generally been held to apply
only in criminal trials.’”
Lawrence v. City Cadillac, No. 10
Civ. 3324, 2010 WL 5174209, at *5 (S.D.N.Y. Dec. 9, 2010)
(quoting Townes, 176 F.3d at 145); see also Jenkins v. City of
New York, 478 F.3d 76, 91 n.16 (2d Cir. 2007) (noting that “the
fruit of the poisonous tree doctrine cannot be invoked to
support a section 1983 claim” for false arrest).
Because the
fruit of the poisonous tree doctrine is unavailable for Section
24
1983 claimants, the firearm seized by the Individual Defendants
pursuant to the allegedly unlawful traffic stop and search may
provide probable cause for plaintiffs’ arrest for purposes of
their false arrest and imprisonment claims.
See, e.g.,
Lawrence, 2010 WL 5174209, at *5 (finding that the “the legality
of the traffic stop does not impact plaintiff’s claim for false
arrest”).
2.
The Statutory Automobile Presumption of
Constructive Firearm Possession
Under New York Penal Law § 265.15(3), the existence of
a firearm in an automobile creates a permissive - not mandatory
- presumption that all occupants of the vehicle have common
constructive possession of the firearm, absent specific
exceptions (the “Automobile Presumption”).7
County Ct. of Ulster
Cnty., N.Y. v. Allen, 442 U.S. 140, 162-63 (1979) (holding the
statute constitutional as applied as a permissive presumption).
The Automobile Presumption does not apply if (1) the firearm is
found on an occupant’s person; (2) the vehicle is lawfully
operated as a taxi, in which instance the duly licensed driver
7
Section 265.15(3) states as follows: “The presence in an
automobile . . . of any firearm . . . is presumptive evidence of its
possession by all persons occupying such automobile at the time such weapon .
. . is found, except under the following circumstances: (a) if such weapon .
. . is found upon the person of one of the occupants therein; (b) if such
weapon . . . is found in an automobile which is being operated for hire by a
duly licensed driver in the due, lawful and proper pursuit of his or her
trade, then such presumption shall not apply to the driver; or (c) if the
weapon so found is a pistol or revolver and one of the occupants, not present
under duress, has in his or her possession a valid license to have and carry
concealed the same.” N.Y. Penal Law § 265.15(3).
25
is not subject to the presumption; or (3) an occupant has in his
possession a valid license to have and carry a firearm.
N.Y.
Penal Law § 265.15(3).
It is well-settled under New York law that the
Automobile Presumption may provide probable cause for the arrest
of all occupants of a vehicle.
See People v. Ayen, 864 N.Y.S.2d
591, 593 (N.Y. App. Div. 4th Dept. 2008) (finding a “legitimate
basis for the arrest pursuant to the [A]utomobile [P]resumption”
where the defendant was in another person’s vehicle and the
police found a gun in the vehicle, despite defendant’s
contention that the gun belonged to the vehicle’s owner); People
v. Williams, 794 N.Y.S.2d 197, 198 (N.Y. App. Div. 4th Dept.
2005) (finding probable cause for vehicle occupant’s arrest
pursuant to the Automobile Presumption where police officers
observed a handgun in plain view on a minivan seat); People v.
Gordon, 725 N.Y.S.2d 423, 425 (N.Y. App. Div. 3d Dept. 2001)
(affirming denial of motion to suppress because the Automobile
Presumption “provided probable cause for defendant’s arrest”);
People v. Miller, 655 N.Y.S.2d 579, 579 (N.Y. App. Div. 2d Dept.
1997) (finding that, pursuant to the Automobile Presumption,
police officers had probable cause to arrest the occupants of a
vehicle upon discovering the butt of a gun sticking out from
under the driver’s seat).
Moreover, the Automobile Presumption
“may apply regardless of the length of time an occupant is in a
26
vehicle or whether an occupant knows about the presence of the
gun.”
Gomez-Kadawid v. Kirkpatrick, No. 08 Civ. 5819, 2011 WL
2581838, at *9 (S.D.N.Y. May 5, 2011) (Report and
Recommendation) (citing People v. Terry, 538 N.Y.S.2d 626, 627
(N.Y. App. Div. 2d Dept. 1989)), adopted by 2011 WL 2581835
(S.D.N.Y. June 29, 2011).
Defendants argue that the Automobile Presumption
provided probable cause for the Individual Defendants to arrest
all vehicle occupants, including plaintiffs.
8.)
(Defs. Mem. at 7-
Plaintiffs argue in response that the Individual Defendants
did not have probable cause for the arrest because they
allegedly knew of other circumstances, including that the jacket
and the gun did not belong to plaintiffs (Compl. ¶ 68), that
should have negated the Automobile Presumption (Pls. Opp’n at
12-18).
In essence, plaintiffs argue that police officers must
evaluate the totality of the circumstances before applying the
Automobile Presumption.
(Id. at 12-17, 20.)8
8
Plaintiffs further argue that “[t]he Second Circuit has held
that there is only probable cause to arrest an individual for possession of a
firearm when the gun is found in an automobile when the police officers have
reason to believe the person exercised possession or constructive possession
over the firearm.” (Pls. Opp’n at 12.) This in an incorrect statement of
law. The only case that plaintiffs cite in support of this proposition is
United States v. Patterson, 135 F. App’x 469, 474-75 (2d Cir. 2005) (summary
order), which does not address the Automobile Presumption or even discuss
probable cause to arrest a vehicle occupant where a firearm is found in the
vehicle. Rather, Patterson only discusses constructive possession in
determining whether there was sufficient evidence to sustain a jury’s verdict
convicting defendant of being a felon in possession of a firearm, where a
firearm was found in the defendant’s car. Id.
27
Here, the circumstances under which the firearm was
discovered in the vehicle do not provide a basis to apply any of
the statutory exceptions to the Automobile Presumption.
Although the firearm was discovered within a personal effect, a
jacket pocket, the jacket was located in the vehicle and was not
being worn or claimed by any of the occupants, who had exited
the vehicle before the discovery of the firearm.
The permissive
nature of the Automobile Presumption allows, but does not
require, a jury to infer possession.
Allen, 442 U.S. at 157;
People v. Lemmons, 40 N.Y.2d 505, 511-12 (N.Y. 1976).
Likewise,
contrary to plaintiffs’ position (see Pls. Opp’n at 18-20),
police officers may consider exculpatory factors when
contemplating arrest pursuant to the Automobile Presumption, but
the statutory language does not require police officers to
evaluate the totality of circumstances.
Indeed, such a
requirement goes against the legislative policy choice behind a
statutory presumption seeking to ease the burden of establishing
probable cause or constructive possession in complex
circumstances reflecting common possession.
See Lemmons, 40
N.Y.2d at 509-10 (describing the history underlying the
Automobile Presumption as an effort to resolve difficulties in
proving possession of weapons hidden in occupied automobiles).
Therefore, requiring an antecedent totality of the circumstances
test would, in essence, displace the statutory presumption and
28
circumvent its purpose.
See id. at 511 (“[T]he placement of a
weapon in a handbag does not necessarily indicate that the owner
of a handbag is in sole and exclusive possession of the weapon.
. . .
To hold that merely because the weapons were found in a
briefcase, handbag, shopping bag or carton the presumption is
nullified would defeat the legislative intent and render the
statute nugatory.”); see also Allen, 442 U.S. at 165 n.27
(“Legislative judgments such as this one [underlying the
Automobile Presumption] deserve respect in assessing the
constitutionality of evidentiary presumptions”).
In light of
the foregoing and because plaintiffs allege that none of the
vehicle occupants admitted to possessing the firearm, the
Individual Defendants acted within their discretion by arresting
all vehicle occupants pursuant to the Automobile Presumption.
Moreover, the circumstances presented here would not
dictate that a reasonable officer must exculpate plaintiffs from
common constructive possession, given that none of the occupants
claimed sole possession of the gun.
Even if, as plaintiffs
allege, the Individual Defendants knew the jacket and gun did
not belong to either of the plaintiffs (Compl. ¶ 68), this
information would not require the Individual Defendants to
exculpate plaintiffs from common possession.
See Gray v.
Babble, No. 94 CV 5123, 1998 WL 178824, at *6 (E.D.N.Y. Feb. 12,
1998) (“‘[T]he mere fact that the handbag that contained the
29
contraband belonged to the female co-defendant did not establish
that the co-defendant was in sole and exclusive possession of
the handbag at the time it was recovered by the police.’”
(quoting People v. Gray, 607 N.Y.S.2d 736, 737 (N.Y. App. Div.
2d Dep’t 1994))).
The jacket containing the gun was located in
the cabin of the vehicle and appears to have been equally
accessible to all vehicle occupants, including plaintiffs.
See
Lemmons, 40 N.Y.2d at 511 (finding that guns found in a handbag
on the floor of a vehicle constituted sufficient evidence of
common possession pursuant to the Automobile Presumption to
sustain defendants’ convictions for possession of a dangerous
weapon).
Indeed, accepting as true that neither the vehicle nor
the jacket belonged to plaintiffs, a reasonable officer may
believe that any of the occupants including plaintiffs possessed
the gun, carried it into the vehicle, and hid it in someone
else’s jacket pocket before exiting the vehicle.
The court also finds no merit in plaintiffs’ argument
that the Individual Defendants could not have reasonably
believed Allan had the capacity to exercise dominion over the
firearm because he had been seriously injured, could barely
stand or open his eyes, and could not talk.
17.)
(Pls. Opp’n at 15,
Even accepting as true that Allan may have temporarily
lost the ability to handle or use the firearm effectively or at
all due to his injuries, Allan’s condition does not fall under
30
one of the three statutory exceptions to the Automobile
Presumption and does not eliminate the possibility that he
constructively possessed the firearm.
The fact that Allan was
entitled to medical treatment before interrogation does not
dictate that he is entitled to exculpation due to his injuries.
In summary, once the firearm was discovered and
remained unclaimed, the Individual Defendants had probable cause
to arrest all vehicle occupants, including plaintiffs, and
plaintiffs cannot defeat defendants’ motion with conclusory
allegations that, inter alia, the Individual Defendants “knew
that the jacket and gun did not belong to plaintiffs.”
(See
Compl. ¶¶ 68, 74; Pls. Opp’n at 15-18); Iqbal, 556 U.S. at 681
(“[T]he allegations are conclusory and not entitled to be
assumed true.”).
Accordingly, the court dismisses plaintiffs’
claims for false arrest and imprisonment because probable cause
constitutes a complete defense.
Amore, 624 F.3d at 536.
Likewise, plaintiffs’ New York law claim for false arrest also
fails on the merits.
3.
See Jocks, 316 F.3d at 134.
Constitutionality of the Automobile Presumption
As Applied to the Instant Case
In the alternative, plaintiffs challenge the
constitutionality of the Automobile Presumption as applied to
them, arguing that police officers cannot use the presumption to
arrest all vehicle occupants without considering the totality of
31
the circumstances.
(Pls. Opp’n at 18-21.)
In support of their
argument, plaintiffs contend that the Supreme Court analyzed the
surrounding circumstances when deciding that the Automobile
Presumption was constitutional as applied in Allen.
(Id.)
In
Allen, however, the Supreme Court considered whether there was
sufficient evidence to sustain a defendant’s conviction and held
that the Automobile Presumption was constitutional as a
permissive inference for a jury to accept or reject - in light
of the evidence – in finding a defendant guilty of gun
possession.
442 U.S. at 160-64 (denying habeas corpus relief
for petitioner appealing the conviction affirmed in Lemmons, 40
N.Y.2d 505).
Consequently, that decision considered the
distinct inquiry as to the propriety of a jury instruction
regarding the circumstances under which a jury could find a
defendant guilty of gun possession when applied to the evidence
presented, and, if anything, weakens plaintiffs’ argument
because the circumstances of that case are factually comparable
to the case at bar after drawing all inferences in favor of the
plaintiffs.
As in Allen, where the police discovered two guns
inside a handbag belonging to one occupant but accessible to the
three other occupants, 442 U.S. at 143-44, 163, the Individual
Defendants permissibly presumed constructive common possession
after discovering a gun in a jacket accessible to the other
32
occupants.
Therefore, plaintiffs’ constitutional challenge has
no merit because the Supreme Court has found the Automobile
Presumption constitutional as applied to factually comparable
circumstances.
Id.; see also Bellavia v. Fogg, 613 F.2d 369,
371-72, 374 n.7 (2d Cir. 1979) (holding that a “nearly
identical” automobile presumption for drug possession was
constitutional when applied to a case in which undercover
officers recovered drugs from a vehicle occupied by defendant).
4.
Qualified Immunity
In the alternative, defendants argue that the
Individual Defendants are entitled to qualified immunity from
the false arrest claim because they were “objectively
reasonable” in believing all vehicle occupants constructively
possessed the firearm pursuant to the Automobile Presumption,
given that no one admitted to ownership.
(Defs. Mem. at 17.)
Qualified immunity from a false arrest claim can be established
through “arguable probable cause,” which exists “if either (a)
it was objectively reasonable for the officer to believe that
probable cause existed, or (b) officers of reasonable competence
could disagree on whether the probable cause test was met.”
Escalera v. Lunn, 361 F.3d 737, 743 (2d Cir. 2004) (internal
quotation marks omitted).
Thus, “even if an officer is
mistaken, and the arrestee did not commit the crime, the officer
will not be held liable if he acted reasonably and in good
33
faith.”
Washpon v. Parr, 561 F. Supp. 2d 394, 403 (S.D.N.Y.
2008) (citing Bernard v. United States, 25 F.3d 98, 102 (2d Cir.
1994)).
Moreover, an officer may reasonably believe that his
conduct is lawful unless “pre-existing law sufficiently
foreshadows the direction it will take such that government
officials have reasonable notice of the illegality of their
actions.”
Rodriguez v. Phillips, 66 F.3d 470, 478-79 (2d Cir.
1995); Khan v. Ryan, 145 F. Supp. 2d 280, 285 (E.D.N.Y. 2001).
In the instant case, the Individual Defendants had, at
a minimum, “arguable probable cause” to arrest plaintiffs after
discovering the firearm, given that a fair reading of N.Y. Penal
Law § 265.15(3) and the relevant case law provided that police
officers may arrest all vehicle occupants after discovering a
firearm in the vehicle, absent the applicability of any of the
statutory exceptions.
Accordingly, even if the court did not
already find that probable cause to arrest existed pursuant to
the Automobile Presumption and that the presumption is
constitutional as applied to the facts presented here, the
Individual Defendants would be entitled to qualified immunity
with regard to plaintiffs’ false arrest claim.
C.
Malicious Prosecution
A malicious prosecution action implicates the Fourth
Amendment constitutional right “to be free of unreasonable
seizure of the person-- i.e., the right to be free of
34
unreasonable or unwarranted restraints on personal liberty.”
Singer v. Fulton County Sheriff, 63 F.3d 110, 116 (2d Cir.
1995).
In order to prevail on a Section 1983 claim against a
state actor for malicious prosecution, “a plaintiff must show a
violation of his rights under the Fourth Amendment and must
establish the elements of a malicious prosecution claim under
state law.”
Manganiello v. City of New York, 612 F.3d 149, 160–
61 (2d Cir. 2010) (citations omitted).
To establish a malicious
prosecution claim under New York law, “a plaintiff must prove
(1) the initiation or continuation of a criminal proceeding
against plaintiff; (2) termination of the proceeding in
plaintiff’s favor; (3) lack of probable cause for commencing the
proceeding; and (4) actual malice as a motivation for
defendant’s actions.”
Id. at 161.
In the context of a malicious prosecution claim, the
element of malice consists of “a wrong or improper motive,
something other than a desire to see the ends of justice
served.”
Lowth v. Town of Cheektowaga, 82 F.3d 563, 573 (2d
Cir. 1996) (internal quotation marks omitted).
The absence of
probable cause raises an inference of malice sufficient for a
claim of malicious prosecution to withstand summary judgment.
Ricciuti v. New York City Transit Auth., 124 F.3d 123, 131 (2d
Cir. 1997).
35
Probable cause, however, is a complete defense to a
claim of malicious prosecution, and a grand jury indictment
“creates a presumption of probable cause that may only be
rebutted by evidence that the indictment was procured by ‘fraud,
perjury, the suppression of evidence or other police conduct
undertaken in bad faith.’”
63, 72 (2d Cir. 2003).
Savino v. City of New York, 331 F.3d
Notwithstanding, “[t]he plaintiff may
not satisfy his burden ‘with mere ‘conjecture’ and ‘surmise’
that his indictment was procured as a result of conduct
undertaken by the defendants in bad faith.’”
Felmine, 2011 WL
4543268, at *12 (quoting Savino, 331 F.3d at 73).
Moreover,
“the alleged fabrication [by police] must be both material,
i.e., ‘likely to influence a jury’s decision,’ and ‘the legally
cognizable’ cause of the post-arraignment deprivation of
liberty.”
Richardson v. City of New York, No. 02 CV 3651, 2006
WL 2792768, at *7 & n.4 (E.D.N.Y. Sept. 27, 2006) (citation
omitted).
Liberally construing plaintiffs’ complaint, the core
allegations underlying Matthews’ claim are that the Individual
Defendants:
(1) commenced a prosecution against Matthews using
an intentionally coerced false confession; (2) provided false
information to the Grand Jury to justify the traffic stop,
search of the vehicle, and the belief that Matthews possessed
the gun; and (3) testified falsely at pretrial hearings to
36
prevent suppression of the gun.
(Compl. ¶¶ 73, 78, 82, 84-88.)
In response, defendants argue that the malicious prosecution
claim should be dismissed because plaintiffs failed to plead
sufficient facts to satisfy two elements of the claim:
improper
motive (malice) and absence of probable cause to prosecute
Matthews.
(Defs. Mem. at 9-12.)
Even if plaintiffs’ complaint
alleged more than mere conclusory assertions of false testimony
prompted by the Individual Defendants’ malicious intent, that
claim must fail because the Individual Defendants are entitled
to absolute immunity for any claims arising from their allegedly
false testimony.
1.
Absolute Immunity under Section 1983 for Grand
Jury and Pretrial Hearing Testimony
The Supreme Court has held that trial witnesses,
including police officers, have absolute immunity with respect
to any Section 1983 claims arising from that testimony, even if
it is alleged that such testimony was perjured.
Briscoe v.
Lahue, 460 U.S. 325, 335-36, 341-46 (1983) (affirming dismissal
of Section 1983 claims arising from police officers’ perjured
testimony during a criminal trial).
More recently, the Supreme
Court clarified that the absolute immunity from Section 1983
claims for trial witnesses, including police officers, applies
“with equal force” to grand jury witnesses, even if falsified
information or perjury is alleged.
37
Rehberg v. Paulk, 132 S.Ct.
1497, 1505-07 (2012); see Jovanovic v. City of New York, No. 10–
4398–cv, 2012 WL 2331171, at *2 (2d Cir. June 20, 2012) (summary
order) (noting that Rehberg extends Briscoe’s absolute immunity
from Section 1983 claims to grand jury testimony).
The
rationale behind this rule of absolute immunity is that
potential civil liability is not needed to deter false testimony
before the grand jury or at trial because other sanctions – such
as a prosecution for perjury, which is a serious criminal
offense – provide a sufficient deterrent.
1505.
Rehberg, 132 S.Ct. at
Furthermore, the Second Circuit has extended absolute
immunity from Section 1983 malicious prosecution claims to
“police officers who testify at adversarial pretrial
proceedings.”
Daloia v. Rose, 849 F.2d 74, 75-76 (2d Cir. 1988)
(holding that NYPD officers have absolute immunity from
liability in an action under Section 1983 based on the officers’
allegedly perjured testimony at a pretrial suppression hearing).
Notwithstanding plaintiffs’ allegations of falsified
testimony, the Individual Defendants are entitled to absolute
immunity from liability for their testimony before the Grand
Jury and at the suppression hearings.
See Rehberg, 132 S.Ct. at
1505-06 (grand jury testimony); Daloia, 849 F.2d at 75-76
(adversarial pretrial hearing testimony).
Consequently,
Matthews’ Section 1983 claims for malicious prosecution based on
allegedly false grand jury and pretrial hearing testimony fail
38
as a matter of law.
See Jones v. Dalton, No. 09-138, 2012 WL
1134895, at *8 (D.N.J. Apr. 3, 2012) (dismissing malicious
prosecution claim on summary judgment and holding that
“[a]bsolute immunity prohibits [plaintiff] from rebutting th[e]
presumption [of probable cause that attaches to his indictment]
with evidence that [defendant] made misrepresentations to the
grand jury.” (citing Rehberg, 132 S.Ct. at 1506); Hayes v. Cnty.
of Sullivan, Nos. 07–CV–7667, 09–CV–2071, 2012 WL 1129373, at
*12 (S.D.N.Y. Mar. 30, 2012) (granting summary judgment on
Section 1983 claim in favor of defendant police officers that
allegedly committed perjury at plaintiff’s suppression hearing
because defendants “are absolutely immune from any liability
based on the testimony they provided” at the suppression hearing
(citing Daloia, 849 F.2d at 75)).
Accordingly, Matthews’
malicious prosecution claim is dismissed in part, insofar as it
is based on the Individual Defendants’ grand jury testimony and
pretrial hearing testimony.
2.
Malicious Prosecution Claim for Commencing
Prosecution with a Coerced Confession
Plaintiffs allege that the Individual Defendants
intentionally coerced a false confession from Matthews by
withholding medical treatment from his brother Allan, and then
initiated and maintained a prosecution against Matthews by
knowingly providing the false confession to prosecutors.
39
(Compl. ¶¶ 71-79, 82; Pls. Opp’n at 22-24.)
Defendants assert a
complete defense of probable cause to prosecute based on
Matthews’ arrest and subsequent grand jury indictment, and
further argue that plaintiffs cannot satisfy the element of
malice.
(Defs. Mem. at 9-12.)
“When a police officer creates false information
likely to influence a jury’s decision and forwards that
information to prosecutors, . . . the harm occasioned by such an
unconscionable action is redressable in an action for damages
under 42 U.S.C. § 1983.”
Ricciuti, 124 F.3d at 130 (reversing
grant of summary judgment on Section 1983 malicious prosecution
claim where “a jury could find that [defendant] played a role in
initiating the prosecution by preparing the alleged false
confession and forwarding it to prosecutors”).
Moreover, a
police officer may not reasonably rely on a known coerced
confession as lawful grounds for probable cause.
See id. (“No
arrest, no matter how lawful or objectively reasonable, gives an
arresting officer or his fellow officers license to deliberately
manufacture false evidence against an arrestee.”); Niemann v.
Whalen, 911 F. Supp. 656, 668-69 (S.D.N.Y. 1996) (finding that
“the issue of whether [defendants] coerced plaintiff’s
confession is material to resolving the issue of probable cause”
for plaintiff’s arrest), aff’d, 107 F.3d 3 (2d Cir. 1997); see
also Wilkins v. DeReyes, 528 F.3d 790, 800 (10th Cir. 2008)
40
(affirming denial of qualified immunity on malicious prosecution
claim because, if statements to police officers were indeed
involuntary, “the officers who carried out the alleged coercion
could not reasonably rest their determination of probable cause
upon those statements”).
Accepting as true the allegations in plaintiffs’
complaint, the Individual Defendants intentionally coerced
Matthews’ confession by taking advantage of Allan’s seriously
injured condition and the familial relationship between Allan
and Matthews.
Moreover, the Individual Defendants then
knowingly used the false confession to initiate and maintain the
prosecution of Matthews, clearly violating his constitutional
rights.
Because the Individual Defendants could not reasonably
rely on a known coerced confession to initiate and maintain a
prosecution, Niemann, 911 F. Supp. at 668-69, they lacked
probable cause to prosecute.
If proven at trial, these
allegations, which are quite serious, would certainly be
sufficient to sustain a Section 1983 claim based on the alleged
coerced confession.
Defendants’ contention that Matthew’s arrest and grand
jury indictment create a presumption of probable cause is
unavailing because, for purposes of the instant motion,
plaintiffs’ complaint adequately pleads allegations of bad faith
police coercion and use of the resulting false confession to
41
initiate a prosecution.
In addition, the alleged coerced
confession was almost certain to persuade the grand jury to
indict Matthews, satisfying the materiality requirement.
See
Richardson, 2006 WL 2792768, at *5-7 (denying summary judgment
where “jury could reasonably infer that [one officer] knowingly
misidentified him and that [a second officer] fabricated the
evidence that [plaintiff] was in possession of the pre-recorded
buy money,” and “that as a result [plaintiff] was indicted and
prosecuted”).
Given that plaintiffs plausibly allege the
absence of probable cause in initiating and continuing the
prosecution of Matthews, malice may be inferred.
124 F.3d at 131.
See Ricciuti,
Accordingly, Matthews states a plausible
malicious prosecution claim that the Individual Defendants
unconstitutionally commenced a prosecution against him using a
known coerced confession.
3.
Qualified Immunity
In the alternative, defendants claim qualified
immunity from the malicious prosecution claim.
16.)
(Defs. Mem. at
It is clearly established, however, “that a coerced
confession could not constitutionally be used against a
defendant in a criminal case.”
Higazy, 505 F.3d at 173.
“Qualified immunity is unavailable where . . . the action
violates an accused’s clearly established constitutional rights,
and no reasonably competent police officer could believe
42
otherwise.”
Ricciuti, 124 F.3d at 130 (denying qualified
immunity where defendants forwarded a known false confession to
prosecutors).
Accordingly, based on the facts alleged,
defendants are not entitled to qualified immunity because no
reasonable officer could believe that coercing a confession from
an accused by withholding medical treatment from an injured
family member and using the coerced confession to prosecute the
accused is constitutional.
D.
Excessive Force
Plaintiffs allege that, in violation of plaintiffs’
Fourth Amendment rights, the Individual Defendants: (1)
“brutally handcuffed plaintiffs, causing them pain and numbness
to their wrists” and (2) refused to loosen the handcuffs upon
plaintiffs’ request.
(Compl. ¶¶ 91-92, 110.)
Defendants argue
that these allegations are insufficient to sustain a claim that
unreasonable force was used or that plaintiffs suffered any real
injuries beyond pain.
1.
(Defs. Mem. at 13.)
The Standard for Excessive Force
An excessive force claim under Section 1983 is
governed by the “objective reasonableness” standard of the
Fourth Amendment.
Graham, 490 U.S. at 399.
The reasonableness
inquiry evaluates the degree of force necessary to effectuate an
arrest in light of the specific factual circumstances, including
“whether the suspect poses a threat, resists, or attempts to
43
evade arrest, and the severity of the crime at issue.”
Esmont
v. City of New York, 371 F. Supp. 2d 202, 214 (E.D.N.Y. 2005)
(citing Graham, 490 U.S. at 396).
“Frequently, a reasonable
arrest involves handcuffing the suspect, and to be effective
handcuffs must be tight enough to prevent the arrestee’s hands
from slipping out.”
Id.
To assess the reasonableness of the
handcuffing, a court must also consider whether “1) the
handcuffs were unreasonably tight; 2) the defendants ignored the
arrestee’s pleas that the handcuffs were too tight; and 3) the
degree of injury to the wrists.”
2.
Id. at 215.
The Injury Requirement
There is a consensus among courts in the Second
Circuit that “tight handcuffing does not constitute excessive
force unless it causes some injury beyond temporary discomfort.”
Lynch v. City of Mt. Vernon, 567 F. Supp. 2d 459, 468 (S.D.N.Y.
2008); see Drummond v. Castro, 522 F. Supp. 2d 667, 679
(S.D.N.Y. 2007) (granting summary judgment in favor of
defendants where plaintiff alleged no injury, but only that “he
was handcuffed tightly”).
“Placing handcuffs on an arrestee
tight enough to cause nerve damage may, however, constitute
excessive force in violation of the Fourth Amendment.”
Esmont,
371 F. Supp. 2d at 214-15; Simpson v. Saroff, 741 F. Supp. 1073,
1078 (S.D.N.Y. 1990) (“Since [plaintiff] alleges a punched
stomach, swollen and bleeding wrists from the tight handcuffs,
44
as well as a faintly detectable scar on her left wrist, her
complaint is sufficient to allege a § 1983 claim.”).
Moreover,
“the Second Circuit has held that even minor injuries, including
scrapes and bruises, can support an excessive-force claim.”
Richardson v. Providence, No. 09–CV–4647, 2011 WL 3701887, at *7
n.3 (E.D.N.Y. Aug. 22, 2011) (citing Maxwell v. City of New
York, 380 F.3d 106, 109–10 (2d Cir. 2004) (reversing grant of
summary judgment on excessive force claim where plaintiff was
shoved into a police car and suffered pain, bumps, scrapes,
bruises, and post-concussive syndrome); Robinson v. Via, 821
F.2d 913, 923–24 (2d Cir. 1987) (affirming denial of summary
judgment on excessive force claim where plaintiff suffered
bruising that lasted a couple weeks and for which she did not
seek medical treatment)).
The determination of whether tight handcuffing that
causes pain and numbness satisfies the injury requirement may be
presented in a motion for summary judgment.
Compare Lucky v.
City of New York, No. 03 Civ. 1983, 2004 WL 2088557, at *7
(S.D.N.Y. Sept. 20, 2004) (denying summary judgment and stating
that “[w]hile [plaintiff’s] injuries appear de minimis, his
statements that he was shoved in the police car in a manner that
injured his shoulder and that the handcuffs were placed so as to
leave red marks on his wrists [for one week] raise material
issues of fact”), with Faruki v. City of New York, No. 10 Civ.
45
9614, 2012 WL 1085533, at *2, *7 (S.D.N.Y. Mar. 30, 2012)
(granting summary judgment in favor of defendants where medical
evidence did not corroborate plaintiff’s allegation that she
suffered a hairline fracture and nerve injuries in her right
wrist and hand), and Hamlett v. Town of Greenburgh, No. 05 Civ.
3215, 2007 WL 119291, at *3 (S.D.N.Y. Jan. 17, 2003) (granting
summary judgment in favor of defendants where plaintiff only
alleged “that she suffered brief numbness as a result of the
handcuffs being too tight and that both officers held her arms
behind her back”).
But see Abdul-Rahman v. City of New York,
No. 10 Civ. 2778, 2012 WL 1077762, at *7 (E.D.N.Y. Mar. 30,
2012) (granting defendants’ motion for judgment on the pleadings
where plaintiff alleged excessively tight handcuffs causing
numbness and marks to his wrists).
In opposing a defense motion for summary judgment,
“[u]nsubstantiated claims of nerve damage, in the absence of
corroborating medical evidence, are insufficient” to sustain a
claim of excessive force from handcuffing.
Esmont, 371 F. Supp.
2d at 215; see Lynch, 567 F. Supp. 2d at 468 (granting summary
judgment in favor of defendants where tight handcuffs failed to
cause persistent injury and plaintiff never sought medical
treatment).
But see Lucky, 2004 WL 2088557, at *7 (denying
summary judgment even though plaintiff did not suffer permanent
46
injury or seek medical treatment for a painful shoulder and red
marks on his wrists).
3.
The Sufficiency of Plaintiffs’ Allegations of
Excessive Force
Here, plaintiffs allege that “brutally” tight handcuffs
caused pain and numbness to their wrists, and that they
requested the Individual Defendants to loosen their handcuffs to
no avail.
(Compl. ¶¶ 91-92.)
Moreover, plaintiffs allegedly
were compliant with police orders and not violent or resisting
arrest (id. ¶¶ 94-95), which suggests that their arrests likely
did not necessitate an unusual degree of force.
See Gonzalez v.
City of New York, No. 98-CV-3084, 2000 WL 516682, at *4
(E.D.N.Y. Mar. 7, 2000) (finding that the “abusive application
of handcuffs” was not reasonable where “plaintiff was not
charged with a serious crime, did not pose a threat to the
safety of the officers, and was not resisting arrest”).
On
these facts, plaintiffs state a plausible claim for excessive
force because they allege that (1) the handcuffs were “brutally”
tight, (2) they requested that the handcuffs be loosened to no
avail, (3) they did not resist arrest, and (4) numbness can
constitute a sufficiently severe injury.
Brief numbness is not enough, Hamlett, 2007 WL 119291,
at *3, however, and plaintiffs have not alleged the duration of
their injuries or whether it required medical attention, facts
47
about which they have knowledge and defendants may develop
during discovery.
Plaintiffs should be aware that in order to
withstand summary judgment, they must provide medical evidence
that the handcuffs caused serious, long-lasting, or persistent
injury.
See Esmont, 371 F. Supp. 2d at 215.
At this stage of
the case, however, plaintiffs have alleged facts sufficient to
sustain their excessive force claim.
4.
Qualified Immunity
In the alternative, defendants argue that the
Individual Defendants are entitled to qualified immunity because
“reasonable officers could disagree on what constitutes tight
handcuffing” (Defs. Mem. at 17), but the court finds that they
are not entitled to qualified immunity at this time.
As noted
supra, “the qualified immunity inquiry turns on whether the
defendants’ actions were objectively reasonable under clearly
established law; and the clearly established law of excessive
force itself hinges on the reasonableness of the force used.”
Felmine, 2011 WL 4543268, at *20 (citing Stephenson v. Doe, 332
F.3d 68, 77 (2d Cir. 2003)).
Here, additional facts are
required to determine whether reasonable officers could have
believed the degree of force used was reasonable and warranted.
Moreover, given that plaintiffs allegedly did not resist arrest,
the use of excessively tight handcuffs by the Individual
Defendants could have been unwarranted.
48
See Gonzalez, 2000 WL
516682, at *5 (denying qualified immunity on an excessive force
claim because “no reasonable officer could believe that the
abusive application of handcuffs was constitutional, given the
fact that [plaintiff] did not resist arrest”).
Accordingly,
whether the Individual Defendants are entitled to qualified
immunity on the excessive force claim cannot be determined based
on the facts alleged.
E.
Failure to Intervene
Defendants argue that plaintiffs’ failure to intervene
claim fails as a matter of law because plaintiffs allege that
all of the Individual Defendants directly violated their
constitutional rights and failed to intervene while other
officers violated their rights.
(Defs. Mem. at 14.)
Defendants
thus argue that the claim must be dismissed because a police
officer can only be personally involved in one manner or the
other.
(Id.)
Plaintiffs’ failure to intervene claim is grounded in
the widely recognized rule that “all law enforcement officials
have an affirmative duty to intervene to protect the
constitutional rights of citizens from infringement by other law
enforcement officers in their presence.”
F.3d 552, 557 (2d Cir. 1994).
Anderson v. Branen, 17
Moreover, the failure to
intervene claim is contingent upon the disposition of the
primary claims underlying the failure to intervene claim.
49
See
Coleman v. City of New York, No. 07 Civ. 1051, 2010 WL 571986,
at *5 (S.D.N.Y. Feb. 2, 2010) (dismissing failure to intervene
claims against police officers where no underlying
constitutional violation was alleged).
Because plaintiffs
properly allege at least one constitutional violation,
plaintiffs are entitled to discovery to determine which officers
participated directly in the alleged constitutional violations
and which officers were present and failed to intervene.
See
Biggs v. City of New York, No. 08 Civ. 8123, 2010 WL 4628360, at
*6 n.12 (S.D.N.Y. Nov. 16, 2010) (noting that police officers
can be personally involved in violating constitutional rights
through either means – direct participation or failure to
intervene).
Qualified immunity from this cause of action is
unavailable at this time because additional facts, which
discovery should reveal, are required concerning what the
officers who failed to intervene observed regarding the other
officers’ alleged violations of plaintiffs’ constitutional
rights.
F.
Municipal Liability (Monell Claim)
Plaintiffs allege that the City is liable for
constitutional violations under Section 1983.
To impose
liability under Section 1983 on a municipality for the acts of
its employees, a plaintiff must plead “(1) an official policy or
custom that (2) causes the plaintiff to be subjected to (3) a
50
denial of a constitutional right.”
Torraco v. Port Auth., 615
F.3d 129, 140 (2d Cir. 2010) (internal quotation marks omitted);
see Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S.
658, 694 (1978).
“Following Monell and its progeny, a
municipality cannot be held liable under § 1983 under a theory
of respondeat superior.
Rather, there must be a ‘direct causal
link between a municipal policy or custom and the alleged
constitutional deprivation.’”
Abreu v. City of New York, 657 F.
Supp. 2d 357, 360 (E.D.N.Y. 2009) (citations omitted) (quoting
City of Canton v. Harris, 489 U.S. 378, 385 (1989)).
“[A]
plaintiff may establish this required causal link by showing
that a defendant was deliberately indifferent to the training,
supervision, or discipline of its employees.”
Id. (citing
Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 127-30 (2d
Cir. 2004)).
In the context of a motion for judgment on the
pleadings, “[t]o allege the existence of an affirmative
municipal policy, a plaintiff must make factual allegations that
support a plausible inference that the constitutional violation
took place pursuant either to a formal course of action
officially promulgated by the municipality’s governing authority
or the act of a person with policymaking authority for the
municipality.”
Missel v. Cnty. of Monroe, 351 F. App’x 543, 545
(2d Cir. 2009) (summary order) (citing Vives v. City of N.Y.,
51
524 F.3d 346, 350 (2d Cir. 2008)).
Mere “boilerplate”
assertions that a municipality has such a custom or policy that
resulted in a deprivation of the plaintiffs’ rights is
insufficient to state a Monell claim.
See Bradley v. City of
New York, No. 08–CV–1106, 2009 WL 1703237, at *3 (E.D.N.Y. June
18, 2009).
First, plaintiffs claim that the City, through the
NYPD, has a policy of searching vehicles and apartments without
probable cause.
(Compl. ¶ 139; Pls. Opp’n at 27.)
Such
“boilerplate” assertions, however, are plainly insufficient to
sustain a Monell claim.
See Duncan v. City of New York, No. 11-
CV-3826, 2012 WL 1672929, at *2-3 (E.D.N.Y. May 14, 2012)
(dismissing Monell claim alleging that the City has a “custom
and policy of making illegal and false arrests with excessive
force [and] without probable cause”); Bradley, 2009 WL 1703237,
at *3 (dismissing Monell claim alleging that the City “fail[ed]
to adequately train, discipline, and supervise” employees and
“fail[e]d to promulgate and put into effect appropriate rules
and regulations applicable to the duties and behavior” of its
employees as “insufficient to raise an inference of the
existence of a custom or policy, let alone that such a policy
caused Plaintiff to be arrested without probable cause”).
Plaintiffs do not allege any facts supporting a custom or
practice, and their allegation of “only a single constitutional
52
deprivation . . . is insufficient to establish a policy or
practice.”
Tangredi v. N.Y. City Dept. of Envtl. Prot., No. 09
CV 7477, 2012 WL 834580, at *6 (S.D.N.Y. Feb. 16, 2012) (citing
Oklahoma City v. Tuttle, 471 U.S. 808, 823–24 (1985))
(dismissing Monell claim under Section 1983 where plaintiff
alleged that the absence of a policy for conducting searches of
women’s locker rooms reflects a policy of neglect).
This
“[t]hreadbare recital[] of the elements of [the] cause of
action” does not suffice.
See Iqbal, 556 U.S. at 678.
Accordingly, plaintiffs’ Monell claim regarding police searches
without probable cause is dismissed.
Second, plaintiffs claim that the City has a policy of
permitting its police officers to apply the Automobile
Presumption in an unconstitutional manner by “arrest[ing] all
occupants of the vehicle or apartment regardless of whether the
police have reason to believe weapons or contraband belong to a
particular individual.”
(Compl. ¶ 139.)
This claim fails as a
matter of law because plaintiffs’ false arrest claim, which
underlies this Monell claim, is dismissed.
See Pinter v. City
of New York, 448 F. App’x 99, 106 (2d Cir. 2011) (summary order)
(dismissing Monell claims that are derivative of plaintiff’s
claims against individual defendants because the latter claims
were dismissed); Sullivan v. City of New York, No. 10 Civ. 0038,
2011 WL 3806006, at *6 (S.D.N.Y. Aug. 29, 2011) (“[P]laintiff
53
has failed to plead a viable constitutional claim.
Accordingly,
there is no predicate for a Monell claim and therefore it is
dismissed.”)
Moreover, the Supreme Court reviewed the New York
State legislature’s policy decision to streamline possession
jurisprudence and found the Automobile Presumption
constitutional as an evidentiary device applied to facts similar
to the case at bar.
Allen, 442 U.S. at 163-65 & n.27.
Accordingly, plaintiffs’ Monell claim that the City’s deliberate
indifference to the NYPD’s application of the Automobile
Presumption is dismissed because the policy is constitutional
and plaintiffs’ constitutional rights were not violated in that
regard.
Third, plaintiffs allege that the City is deliberately
indifferent to its police officers’ practice of creating false
versions of events to justify their actions.
04.)
(Compl. ¶¶ 103-
Specifically, plaintiffs allege that the City was
deliberately indifferent when it retained and promoted Sgt.
Marino despite knowing that, at least three years prior, Sgt.
Marino “did not report and was untruthful about an incident
where a friend of his, who also happened to be a police officer,
shot an individual.”9
(Id. ¶¶ 100-01.)
9
To the extent that
Although the time at which Sgt. Marino’s prior misconduct
occurred is not specified, the incident appears to have occurred more than
three years before December 20, 2007 because plaintiffs allege that Sgt.
Marino was suspended and placed on modified duty for three years prior to his
promotion. (Compl. ¶ 101.)
54
plaintiffs seek to impose municipal liability for a single
employment decision by the City, namely the decision to retain
and promote Sgt. Marino, they “must demonstrate that [the]
municipal decision reflects deliberate indifference to the risk
that a violation of a particular constitutional or statutory
right will follow the decision.”
Bd. of Cnty. Comm’rs of Bryan
Cnty. v. Brown, 520 U.S. 397, 398, 411 (1997).
In Brown, the Supreme Court recognized that “[e]very
injury suffered at the hands of a municipal employee can be
traced to a hiring decision in a ‘but-for’ sense,” and that
“[t]o prevent municipal liability for a hiring decision from
collapsing into respondeat superior liability, a court must
carefully test the link between the policymaker’s inadequate
decision and the particular injury alleged.”
Id. at 410.
Therefore, “‘deliberate indifference’ is a stringent standard of
fault, requiring proof that a municipal actor disregarded a
known or obvious consequence of his action. . . .
Only where
. . . a reasonable policymaker [would] conclude that the plainly
obvious consequence of the [employment] decision . . . would be
the deprivation of a third party’s federally protected right can
the official’s [act or omission] constitute ‘deliberate
indifference.’”
Id. at 410-11 (emphasis added); see also Jones
v. Town of East Haven, Nos. 10–4731–cv, 10–4894–cv, 2012 WL
3104523, at *7 (2d Cir. Aug. 1, 2012) (“We have held that
55
demonstration of deliberate indifference requires a showing that
the official made a conscious choice, and was not merely
negligent.”).
Here, plaintiffs argue that the City’s retention and
promotion of Sgt. Marino after his prior misconduct caused a
violation of their constitutional rights “because defendant
Marino continued his prior practice of lying to cover up
wrongful acts and permitting and encouraging his subordinates to
do the same.”
(Pls. Opp’n at 29.)
The constitutional violation
underlying this Monell claim appears most closely linked to
Matthews’ malicious prosecution claim.
Whether plaintiffs rely
on the alleged perjured testimony10 or on the alleged coercion of
Matthews and the use of his false confession to prosecute him as
the constitutional bases for their Monell claim, the claim fails
to satisfy the “stringent standard” of deliberate indifference.
10
In Rehberg, the Supreme Court clarified that “this rule [of
absolute immunity from any Section 1983 claim based on a grand jury witness’
testimony] may not be circumvented . . . by using evidence of the witness’
testimony to support any other § 1983 claim concerning the initiation or
maintenance of a prosecution.” Rehberg, 132 S.Ct. at 1506 (emphasis added).
Here, plaintiffs’ Monell claim alleging a policy of police dishonesty is
based on the malicious prosecution claim, which was dismissed in part as
barred by absolute immunity of the Individual Defendants for their alleged
false testimony. See supra Section III.C.1; Rehberg, 132 S.Ct. at 1506
(grand jury testimony); Briscoe, 460 U.S. at 335-36, 341-46 (trial
testimony); Daloia, 849 F.2d at 75-76 (adversarial pretrial hearing
testimony). Consequently, the rationale behind absolute immunity from
Section 1983 claims for trial and grand jury witnesses suggests that
plaintiffs’ Monell claim may be barred by absolute immunity insofar as
plaintiffs rely on grand jury or pretrial hearing testimony as evidence for
the Monell claim. Notwithstanding, the court need not apply absolute
immunity in this case because the Monell claim fails on the merits, as
discussed infra.
56
Neither perjured testimony nor the use of a coerced
false confession is the “plainly obvious consequence” of
retaining and promoting a police officer who allegedly
previously participated in a cover-up for a friend and fellow
officer’s misconduct.
See Brown, 520 U.S. at 412-14 (finding
that the use of excessive force by a police officer was not a
“plainly obvious consequence” of a failure to adequately screen
his background before hiring him).
That is, the prior incident,
involving Sgt. Marino allegedly failing to report, and lying
about, a police shooting involving his friend, is not predictive
of a tendency to engage in conduct that violates a person’s
right to be free from an unreasonable seizure occasioned by
malicious prosecution, namely using an intentionally coerced
false confession and testifying falsely in front of the Grand
Jury and at pretrial hearings to commence and sustain a
prosecution.
The alleged deprivations in this case cannot
reasonably be found to be a known plainly obvious consequence of
retaining and promoting Sgt. Marino after the alleged incident.
Plaintiffs are essentially asking the court to impose
Monell liability where the City retains and promotes a police
officer after a single instance of misconduct – for which the
officer was reprimanded and suspended - and then that officer
commits a constitutional violation more than three years after
the previous misconduct.
The Monell doctrine cannot, however,
57
be applied as broadly as plaintiffs assert given the factual
circumstances.
Accordingly, because the link between the City’s
decision to retain and promote Sgt. Marino and the alleged
violations of plaintiffs’ constitutional rights is too tenuous
to sustain a Monell claim against the City, this Monell claim is
therefore dismissed as well.
IV.
State Law Claims
Plaintiffs also bring claims under New York law
against the Individual Defendants for false arrest and malicious
prosecution (Compl. ¶¶ 112, 117), and against the City under the
doctrine of respondeat superior for false arrest, malicious
prosecution, and failure to intervene (id. ¶¶ 114, 123, 130).
As discussed supra in Section III.B.2, plaintiffs’ federal and
state law false arrest claims fail on the merits and are
dismissed.
Defendants further argue that all of plaintiffs’ state
law claims should be dismissed for failure to comply with the
Notice of Claim requirements as mandated by New York General
Municipal Law §§ 50-e and 50-i, and that Allan’s state law
claims are also barred by the corresponding statute of
limitations.
(Defs. Mem. at 19-20.)
Notably, plaintiffs do not
oppose dismissal of their state law claims on these grounds.
Indeed, plaintiffs argue only that they “alleged sufficient
facts to state plausible claims for relief under federal law”
58
and decline to defend the state law claims in their opposition
brief.
(See Pls. Opp’n at 1 (emphasis added).)
The court will
address the statute of limitations argument first.
A.
Statute of Limitations
Section 50-e of New York General Municipal Law
“requires a plaintiff asserting state tort law claims against a
municipal entity or its employees to file a Notice of Claim
within ninety days after such claim arises and to commence the
action within a year and ninety days from the date of which the
cause of action accrues.”
Faruki, 2012 WL 1085533, at *9; see
Caceres v. Port Auth. of New York and New Jersey, 631 F.3d 620,
624-25 (2d Cir. 2011) (dismissing vicarious liability claims
arising under state law because plaintiff failed to satisfy
commencement of suit requirements analogous to N.Y. Gen. Mun. L.
§ 50-e).
The statute of limitations for all of Allan’s claims
began to run on December 20, 2007, the day of the stop and
search and his release from police custody.11
See Wallace v.
Kato, 549 U.S. 384, 391 (2007) (“Under the traditional rule of
accrual . . . the tort cause of action accrues, and the statute
of limitations commences to run, when the wrongful act or
omission results in damages.” (internal quotation marks
omitted)).
Consequently, Allan’s state law claims against the
11
As noted supra n.1, Allan’s release occurred on December 20,
2007, despite a typographical error in the complaint. (See Compl. ¶ 80.)
59
City and its employees became time-barred on March 20, 2009,
long before the complaint was filed on October 29, 2010.
Accordingly, Allan’s state law claims are dismissed as timebarred.
Because Allan’s state law claims are time-barred, it
would be futile for him to amend the complaint to plead
compliance with the Notice of Claim requirements.
See Grace v.
Rosenstock, 228 F.3d 40, 53 (2d Cir. 2000) (“Amendment would
likely be futile if, for example, the claims the plaintiff
sought to add would be barred by the applicable statute of
limitations.”).
B.
Notice of Claim
New York state courts strictly construe Notice of
Claim requirements, AT&T v. N.Y. City Dep’t of Human Res., 736
F. Supp. 496, 499 (S.D.N.Y. 1990), which federal courts must
apply in exercising supplemental jurisdiction over state law
claims, Excell v. City of New York, No. 12 Civ. 2874, 2012 WL
2675013, at *4 (E.D.N.Y. July 5, 2012) (citing Promisel v. First
Am. Artificial Flowers, 943 F.2d 251, 257 (2d Cir. 1991) (“In
applying pendent jurisdiction, federal courts are bound to apply
state substantive law to the state claim.”)).
In order to
satisfy the Notice of Claim requirements, a plaintiff asserting
state tort law claims against a municipal entity or its
employees must plead in the complaint that: (1) the Notice of
Claim was timely served within ninety days after such claim
60
arose; (2) at least thirty days have elapsed since the Notice of
Claim was filed and before the complaint was filed; and (3) the
defendant failed to satisfy the claim in that time.
Horvath v.
Daniel, 423 F. Supp. 2d 421, 423 (S.D.N.Y. 2006); see N.Y. Gen.
Mun. L. §§ 50-e(1), 50-i(1).
“The burden is on the plaintiff to demonstrate
compliance with the Notice of Claim requirement.”
Horvath, 423
F. Supp. 2d. at 423 (citing Rattner v. Planning Comm’n of Vill.
of Pleasantville, 548 N.Y.S.2d 943, 948 (N.Y. App. Div. 2d Dept.
1989)).
Because timely service of a Notice of Claim is “a
condition precedent to commencement of a tort action against New
York City or its employees, . . . failure to do so is grounds
for dismissal.”12
Excell, 2012 WL 2675013, at *4 (dismissing
state law torts claims against police officers, including false
arrest and malicious prosecution, for failure to file a timely
Notice of Claim); see also Griffin v. City of New York, No. 10
CV 2592, 2012 WL 3090295, at *19 (E.D.N.Y. July 31, 2012)
(dismissing state tort law claim against police officers for
failure to file a timely Notice of Claim).
12
The Notice of Claim requirements “[do] not apply to claims
asserted against municipal employees in their individual capacities that
allege injuries resulting from intentional wrongdoing or recklessness -misconduct for which the City has no obligation to indemnify.” Brenner v.
Heavener, 492 F. Supp. 2d 399, 405 (S.D.N.Y. 2007). Here, because plaintiffs
sue the City directly and do not assert intentional tort claims against the
Individual Defendants, who were acting within the scope of their employment
throughout the relevant period, the Notice of Claim requirements apply.
61
Here, plaintiffs may not assert state tort law claims
against the City and its employees because they fail to plead
compliance with the Notice of Claim requirements and do not
oppose defendants’ request for dismissal on this ground.
See
Petway v. City of New York, No. 10–TV–01048, 2012 WL 2254246, at
*8 (E.D.N.Y. June 14, 2012) (dismissing state law tort claims
where plaintiff failed to “plead that he filed a notice of
claim, . . . respond to defendants’ argument, or offer any
evidence suggesting that he did file a notice of claim”).
The
court therefore grants the motion to dismiss plaintiffs’ state
law claims on this ground; however, with respect to plaintiff
Matthews, whose state law claims for malicious prosecution and
failure to intervene have not been dismissed on other grounds,
the dismissal of those claims is without prejudice, and with
leave for Matthews to amend the complaint to plead timely
compliance with the Notice of Claim requirements, if Matthews
did indeed timely comply with those requirements and can
substantiate that claim with credible evidence.13
13
Because
Defendants submitted a declaration stating that a search of the
City’s records revealed that neither plaintiff filed a Notice of Claim for
the claims herein. (ECF No. 35-3, Declaration of Gregory Mouton ¶ 3; Defs.
Mem. at 19.) Consequently, it appears unlikely that plaintiffs can amend
their complaint in good faith to plead compliance with the Notice of Claim
requirements. If plaintiffs cannot provide evidence to establish compliance
with the Notice of Claim requirements, amendment will be futile. See
Horvath, 423 F. Supp. 2d. at 424 (“Even if plaintiff were permitted to amend
the Complaint . . . , he could apparently produce no evidence other than his
own word that he had done so. That testimony would be contradicted by the
testimony of a number of County officials, supported by the documentary
62
Matthews’ state law claims for malicious prosecution and failure
to intervene are dismissed for failure to plead compliance with
the Notice of Claim requirements, the court need not otherwise
address the merits of these claims at this stage.
CONCLUSION
For the reasons set forth herein, defendants’ motion
for judgment on the pleadings pursuant to Rule 12(c) is:
1)
Denied with respect to plaintiffs’ Section 1983 claims
for unreasonable search and seizure;
2)
Granted with respect to plaintiffs’ Section 1983
claims for false arrest and imprisonment;
3)
Denied in part and granted in part with respect to
Matthews’ Section 1983 claim for malicious
prosecution;
4)
Denied with respect to plaintiffs’ Section 1983 claims
for excessive force;
5)
Denied with respect to plaintiffs’ Section 1983 claims
for failure to intervene;
6)
Granted with respect to plaintiffs’ Monell claims for
municipal liability; and
7)
Granted with respect to plaintiffs’ state law claims,
with leave granted for Matthews to file an amended
complaint alleging compliance with the Notice of Claim
requirements for his remaining state law claims of
malicious prosecution and failure to intervene.
In summary, the only remaining claims in this action are (1)
plaintiffs’ Section 1983 claims for unreasonable search and
seizure, (2) Matthews’ Section 1983 claim for malicious
record. . . . Therefore, it is futile to allow plaintiff to amend his
complaint and his motion to amend is denied.”).
63
prosecution in connection with the use of his allegedly coerced
false confession to initiate and maintain his prosecution, (3)
plaintiffs’ Section 1983 claims for excessive force, and (4)
plaintiffs’ Section 1983 claims for failure to intervene, all
against the Individual Defendants.
By September 19, 2012,
Matthews shall have the opportunity to file an amended complaint
that adequately pleads compliance with the Notice of Claim
requirements for his remaining state law claims of malicious
prosecution and failure to intervene, and defendants shall
respond within the time prescribed by the Federal Rules of Civil
Procedure.
Finally, by September 26, 2012, the parties shall
file a joint status report via ECF advising the court how they
wish to proceed with this case, and whether a settlement
conference before Magistrate Judge Mann would be beneficial.
SO ORDERED.
Dated: Brooklyn, New York
September 5, 2012
____________/s/______________
KIYO A. MATSUMOTO
United States District Judge
Eastern District of New York
64
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