Moore v. City of New York et al
ORDER granting 25 Motion for Summary Judgment. For the reasons set forth in the enclosed Memorandum and Order, defendants' motion for summary judgment is granted in its entirety. The Clerk of the Court is respectfully requested to enter judgment in favor of defendants and close this case. Ordered by Judge Kiyo A. Matsumoto on 3/16/2015. (Alagesan, Deepa)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MEMORANDUM & ORDER
- against –
13-CV-392 (KAM) (LB)
THE CITY OF NEW YORK and NEW YORK CITY
POLICE DETECTIVE THOMAS DELACY, Shield
MATSUMOTO, United States District Judge:
Plaintiff Tysean Moore (“plaintiff”) brings this
action against the City of New York (the “City”) and New York
City Police Department (“NYPD”) Detective Thomas Delacy
(together, “defendants”), alleging violations of his civil
rights pursuant to 42 U.S.C. §§ 1983 and 1981 arising from
plaintiff’s 2012 arrest for robbery.
Presently before the court
is defendants’ motion for summary judgment pursuant to Federal
Rule of Civil Procedure 56.
For the reasons set forth below,
defendants’ motion is granted.
The following undisputed material facts are drawn from
the parties’ submissions on the instant motion, including the
Amended Complaint, depositions, affirmation and declaration,
exhibits, and defendants’ statement pursuant to Local Civil Rule
Local Civil Rule 56.1 requires that “[e]ach numbered
paragraph in the statement of material facts set forth in the
statement required to be served by the moving party will be
deemed to be admitted for purposes of the motion unless
specifically controverted by a correspondingly numbered
paragraph in the statement required to be served on the opposing
Local Civ. R. 56.1(c).
Because plaintiff has not
disputed the facts set forth by defendants and has not presented
any admissible evidence in opposition to the facts in
defendants’ Rule 56.1 Statement, those facts are deemed
On May 5, 2012, at approximately 12:05 p.m., three men
wearing hooded sweatshirts and ski masks robbed Concord Liquor
Store in Staten Island, New York at gunpoint.
¶¶ 11-17, 22-24).
(Def. 56.1 Stmt.
An employee who witnessed the robbery, D.L., 3
The parties have submitted the following memoranda and supporting documents
in connection with the instant motion: ECF Nos. 26, Declaration of Assistant
Corporation Counsel Ashley R. Garman in Support of Defendants’ Motion for
Summary Judgment (“Garman Decl.”); 27, Defendants’ Rule 56.1 Statement (“Def.
56.1 Stmt.”); 28, Defendants’ Memorandum of Law (“Def. Mem.”); 30, Joint
Deposition Transcript Appendix (“J.A.”); 31, Affirmation of Plaintiff’s
Counsel, Philip O. Ohene, Esq., in Opposition to Defendants’ Motion for
Summary Judgment (“Ohene Affirmation”); 29, Defendants’ Reply Memorandum of
Law (“Def. Reply”).
Plaintiff failed to submit a Rule 56.1 statement with his opposition, which
failure would provide a basis to conclude that defendants’ facts are
undisputed. Nonetheless, the court has liberally construed plaintiff’s
opposition and finds that the facts set forth in defendants’ Rule 56.1
statement are generally unchallenged by plaintiff (see Ohene Affirmation) and
are not controverted by the admissible evidence.
The complaining victim’s name has been partially redacted in the parties’
submissions to protect his privacy interest.
described the men as black males between the ages of 18 and 25.
(Id. ¶ 22.)
One of the men, dressed in a dark gray hooded
sweatshirt, pointed what appeared to be a shotgun at D.L., who
was behind the counter when the robbers entered the store, and
threatened to kill him.
(Id. ¶¶ 13-14; see Garman Decl. Ex. I,
The man with the gun and one of the other
men then forced the customers to the back of the store and
ordered them to lay face down on the floor.
(Def. 56.1 Stmt.
¶ 15; see Garman Decl. Ex. C, NYPD Complaint Report; Exs. D1-D2,
Complaint Follow Up Informational Reports (“DD5s”); Ex. I.)
third individual, wearing a red hooded sweatshirt, jumped over
the counter and removed cash from the registers and lottery
tickets before the three men fled together out the back door of
the liquor store on foot.
(Def. 56.1 Stmt. ¶¶ 17-18.)
footage of robbery was captured on the store’s surveillance
(See Garman Decl. Ex. L, Surveillance Video.)
Police officers began to arrive at the liquor store
after the three men had fled.
(Id. ¶ 18.)
One officer, Officer
The surveillance system captured video from four vantage points: above the
front door, the back of the store, behind the counter, and directly overhead
of the counter. Plaintiff’s counsel states in his affirmation, without
further explanation or supporting admissible evidence, that “[a]s is evident
in the surveillance video recording, there were three(3) [sic] black males
involved in the robbery none of whom resembled the Plaintiff Tysean Moore by
height, structure or physical appearance.” (Ohene Affirmation at 2.)
Although the video captures the events of the robbery, only the most obvious
physical attributes of the robbers can be observed (e.g., the size of the
individuals relative to other customers and store furnishings, the color of
the individuals’ sweatshirts) due to the video quality and distance of the
Morales, canvassed the area around the store and encountered a
man who told Officer Morales that “Tysean” and two other people
had run past him.
(Id. ¶ 20.)
Detective Delacy and his
partner, Detective Andrew Bird, subsequently reported to the
liquor store and spoke to Officer Morales and witnesses,
(Id. ¶ 22.)
D.L. told Detective Delacy that he
was working behind the counter when the three men entered the
(Id. ¶ 22.)
He told the detectives that the man in a
red sweatshirt jumped over the counter, pushed D.L.’s boss to
the ground, and forced D.L. to the end of the counter before
leaving with cash and lottery tickets.
(Id. ¶ 24.)
After returning to the Staten Island Robbery Squad,
Detective Delacy searched an NYPD database for individuals named
“Tysean,” based on the name given to Officer Morales.
Detective Delacy’s search returned an entry for a
Tysean Moore, including his photograph and address.
(Id. ¶ 27.)
Detective Delacy then assembled a “set book” of 45 photographs
of black men under the age of 30 who had previously been
arrested in Staten Island, including the database photo of
plaintiff, Mr. Moore, and asked D.L. to come to the precinct.
(Id. ¶¶ 28-30.)
While at the precinct, D.L. looked through the
set book and reported to Detectives Delacy and Bird that Tysean
Moore was “the guy who robbed [him].”
(Id. ¶¶ 31, 33; see also
Ex. E, Mugshot Photo Viewing Report.)
D.L. specified that he
recognized Mr. Moore “through his eyes.”
(Id. ¶ 32.)
After D.L. had identified plaintiff’s photograph,
Detective Delacy issued an Investigation Card (“ICard”) to alert
the NYPD that there was probable cause to arrest plaintiff.
(Id. ¶ 34.)
On May 11, 2012, members of the Staten Island
Warrant Squad went to plaintiff’s house in Staten Island, where
he lived with his mother.
(Id. ¶ 35.)
At the time the Squad
arrived, plaintiff was not at home but was on his way to the
Staten Island Ferry with a friend.
(Id. ¶ 36.)
mother, who was at the house, called plaintiff’s cell phone to
tell him that officers were looking for him.
(Id. ¶ 37.)
officer spoke to plaintiff on the phone and told plaintiff that
there was a warrant for his arrest due to his failure to report
to his probation officer the day before.
(Id. ¶ 38.)
explained to the officer that his probation officer knew that
plaintiff was planning to report on Friday because plaintiff
attended school from Monday to Thursday.
(Id. ¶ 39; J.A. Ex. 2,
Deposition of Tysean Moore (“Moore Dep.”) at 65-66.)
provided the officer with his present whereabouts so that the
Warrant Squad could pick him up and bring him into the precinct.
(Id. ¶ 39.)
The Warrant Squad found plaintiff waiting across the
street from the 120th Precinct and brought him inside, where
Detective Delacy met plaintiff and transported him to the 122nd
Precinct Detective Squad.
(Id. ¶ 41.)
At the 122nd Precinct,
Detective Delacy told plaintiff that a witness had identified
him as being involved in a robbery and that the detective was
going to put plaintiff in a lineup.
(Id. ¶ 42.)
Delacy informed plaintiff that the identifying witness had
reported recognizing plaintiff by his eyes.
Plaintiff initialed and signed a Miranda Warning card
at approximately 7:00 p.m., indicating that he understood his
rights and was willing to answer questions from officers without
an attorney present.
(Id. ¶ 43; Garman Decl. Ex. G, Miranda
He was subsequently placed in the second
position holding the number “2” in the lineup with five other
(Id. ¶¶ 44-45; Garman Decl. Ex. H1, Lineup
D.L. observed the lineup while Detective
Delacy and Sergeant Aleva were in the room and told the officers
that he recognized “Number 2” as the robber.
(Id. ¶¶ 46-47; see
Garman Decl. Ex. H3, Lineup Administration Report.)
specified that he recognized plaintiff’s eyes.
Detective Delacy arrested plaintiff on charges of
First Degree Robbery and Second Degree Criminal Possession of a
(Id. ¶ 48.)
According to plaintiff’s deposition
testimony, no officer gave any indication that plaintiff was
being arrested or discriminated against because of his race in
the events leading up to plaintiff’s arrest.
Dep. at 106-107.)
(Id. ¶ 49; Moore
Plaintiff was brought back to the 120th
Precinct and held there until being transported to Criminal
Court the next morning.
(Id. ¶ 50.)
On May 12, 2012, plaintiff was arraigned on the
charges in the Criminal Complaint sworn by Detective Delacy: one
count of First Degree Robbery, two counts of Second Degree
Robbery, one count of Third Degree Grand Larceny, one count of
Second Degree Burglary, one count of Third Degree Robbery and
one count of Fourth Degree Criminal Possession of a Weapon.
(Id. ¶¶ 51-52.)
He was subsequently remanded to Rikers Island
until May 15, 2012, at which point he was transported to court
and ultimately released on his own recognizance.
Moore Dep. at 91-92.)
(Id. ¶ 53; see
According to plaintiff, corrections
officers told plaintiff he was being produced to testify before
a grand jury.
(Moore Dep. at 91.)
The charges against
plaintiff were dismissed on November 19, 2012.
(Id. ¶ 54.)
Plaintiff initiated the instant action on January 1,
2013 (see ECF No. 1) and filed his Amended Complaint on February
25, 2013 (see ECF No. 6), alleged federal and state law false
arrest and malicious prosecution claims, as well as
discrimination pursuant to 42 U.S.C. § 1981, municipal
liability, and assault and battery.
On October 30, 2013, the
parties filed a stipulation dismissing plaintiff’s state law
(ECF No. 16.)
The instant motion for summary judgment
I. Legal Standard
Summary judgment shall be granted to a movant who
demonstrates “that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter
Fed. R. Civ. P. 56.
“A fact is ‘material’ for these
purposes when it ‘might affect the outcome of the suit under the
Rojas v. Roman Catholic Diocese of Rochester,
660 F.3d 98, 104 (2d Cir. 2011) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)).
No genuine issue of
material fact exists “unless there is sufficient evidence
favoring the nonmoving party for a jury to return a verdict for
If the evidence is merely colorable, . . . or is
not significantly probative, . . . summary judgment may be
Anderson, 477 U.S. at 249-50 (internal citations
The movant carries the burden of demonstrating the
absence of a material fact issue.
Rojas, 660 F.3d at 104.
court must construe the facts in the light most favorable to the
nonmoving party and resolve all reasonable inferences and
ambiguities against the moving party.
Co., 242 F.3d 78, 83 (2d Cir. 2001).
Flanigan v. General Elec.
A moving party may
indicate the absence of a factual dispute by, inter alia,
“showing . . . that an adverse party cannot produce admissible
evidence to support the fact.”
Fed. R. Civ. P. 56(c)(1)(B).
Once the moving party has met its burden, “the nonmoving party
may not rest upon mere conclusory allegations or denials.”
Castro v. Cnty. of Nassau, 739 F. Supp. 2d 153, 165 (E.D.N.Y.
2010) (internal citations and quotation marks omitted).
Rather, “the nonmoving party must come forward with admissible
evidence sufficient to raise a genuine issue of fact for trial
in order to avoid summary judgment.”
Jaramillo v. Weyerhaeuser
Co., 536 F.3d 140, 145 (2d Cir. 2008) (citing Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986)).
As an initial matter, plaintiff’s counsel’s
affirmation in opposition to defendants’ motion is not based on
counsel’s personal knowledge, is not supported by admissible
evidence, and addresses defendants’ motion regarding only
plaintiff’s false arrest and malicious prosecution claims.
generally Ohene Affirmation)
Thus, although defendants moved
for summary judgment on all of plaintiff’s claims, including
plaintiff’s municipal liability and section 1981 discrimination
claims, it appears that plaintiff has withdrawn or abandoned
these two claims by failing to respond to all of defendants’
arguments in his opposition.
See Johnson v. FedEx Home
Delivery, No. 04-CV-4935, 2011 WL 6153425, at *8 (E.D.N.Y. Dec.
Nevertheless, the Court has considered on the merits
the substance of each of plaintiff’s federal claims and finds
that defendants are entitled to summary judgment on all claims.
False Arrest 5
Defendants argue that they are entitled to summary
judgment on plaintiff’s false arrest claim because there was
probable cause for plaintiff’s arrest – specifically, the
repeated identifications of plaintiff by D.L., the liquor store
clerk who witnessed the robbery.
(Def. Mem. at 6.)
responds that there was no probable cause for his arrest because
Detective Delacy possessed video surveillance footage from the
liquor store that would have exonerated, and did ultimately
(Ohene Affirmation at 4-6.)
however, fails to submit any evidence as to the reasons that the
criminal charges against him were dismissed.
It is well-established that “probable cause is an
absolute defense to a false arrest claim.”
Wertman, 721 F.3d 84, 89 (2d Cir. 2013) (internal citations and
quotation marks omitted).
Probable cause to arrest exists when
“Claims for false arrest or malicious prosecution, brought under § 1983 to
vindicate the Fourth and Fourteenth Amendment right to be free from
unreasonable seizures, are ‘substantially the same’ as claims for false
arrest or malicious prosecution under state law.” Jocks v. Tavernier, 316
F.3d 128, 134 (2d Cir. 2003) (citing Weyant v. Okst, 101 F.3d 845, 852 (2d
Cir. 1996) (false arrest) and Conway v. Vill. of Mount Kisco, 750 F.2d 205,
214 (2d Cir. 1984) (malicious prosecution)).
an officer “has knowledge or reasonably trustworthy information
of facts and circumstances that are sufficient to warrant a
person of reasonable caution in the belief that the person to be
arrested has committed . . . a crime.”
Id. at 89.
Significantly, the “validity of an arrest does not
depend upon an ultimate finding of guilt or innocence.”
Peterson v. County of Nassau, 995 F. Supp. 305, 313 (E.D.N.Y.
1998) (citing Pierson v. Ray, 386 U.S. 547, 555 (1967),
overruled on other grounds by Harlow v. Fitzgerald, 457 U.S. 800
Instead, the relevant inquiry is into the information
in possession of the arresting officer at the time of the
Id. (citing Anderson v. Creighton, 483 U.S. 635, 641
“‘The question of whether or not probable cause
existed may be determinable as a matter of law if there is no
dispute as to the pertinent events and the knowledge of the
officers, or may require a trial if the facts are in dispute.’”
Castro, 739 F. Supp. 2d at 166 (quoting Weyant, 101 F.3d at
The Second Circuit has held that “a victim’s
identification is typically sufficient to provide probable
cause,” absent indications of untruthfulness.
F.3d at 89.
The evidence in the record indicates that D.L., the
liquor store clerk who was behind the counter for the duration
of the robbery, twice identified plaintiff as having been
involved in the robbery: once from the 45 photographs that
Detective Delacy compiled in a set book, and again through a
lineup of six African-American men.
Both times, he explained to
Detective Delacy that he recognized plaintiff’s eyes.
identifications alone are sufficient to provide probable cause
for plaintiff’s arrest.
See Garrett v. City of New York, No. 10
CIV. 2689, 2011 WL 4444514, at *4 (S.D.N.Y. Sept. 26, 2011).
Plaintiff does not identify any evidence in the
record that calls into question D.L.’s veracity.
plaintiff contends that probable cause to arrest him was lacking
due to the video surveillance recording of the liquor store,
which plaintiff asserts, without supporting evidence, “clearly
showed that the individual identified by the eyewitness was not
involved in the crime.”
(Ohene Affirmation at 4.)
relies on a string of cases, including Russo v. City of
Bridgeport, 479 F.3d 196 (2d Cir. 2007), to support his argument
that the surveillance video was exculpatory and therefore
defeated probable cause.
As defendants correctly point out,
plaintiff’s opposition mischaracterizes Russo and its
application to this case. 6
As an initial matter, in Russo, the
For the reasons discussed below, the other cases cited by plaintiff on this
point, one from within this circuit and three from without, are also
inapposite. See Sanders v. English, 950 F.2d 1152 (5th Cir. 1992) (the
plaintiff adduced evidence that the defendant knowingly and willfully ignored
and failed to disclose to the prosecutor substantial exonerative evidence in
the underlying criminal proceeding); Clipper v. Takoma Park, MD, 876 F.3d 17
(4th Cir. 1989) (affirming 1983 verdict for plaintiff due to totality of
evidence before the jury and noting that the officer’s failure to investigate
Second Circuit granted summary judgment to the defendants on the
plaintiff’s false arrest claim after finding that there was no
factual dispute that the plaintiff’s arrest was supported by
probable cause, namely, a positive photo identification by the
cashier in a gas station robbery – similar to one of D.L.’s
identifications of plaintiff in this case.
See Russo, 479 F.3d
The Russo court found that summary judgment was
precluded, however, on the plaintiff’s unreasonable 217-day
detention claim, a claim not asserted here, as to two officers
who actively hid and misrepresented evidence for approximately
six months that was in fact exculpatory (the video in question
showed that the robber did not have tattoos on his forearms,
while Russo did have tattoos prior to the robbery).
Id. at 206.
The Court found that the defendants’ conduct satisfied the
“shock the conscience” standard for substantive due process
claims and, accordingly, a reasonable fact-finder could find
that the plaintiff’s constitutional rights had been violated.
Id. at 209-210.
the leads provided by plaintiff was not itself sufficient to negate probable
cause); BeVier v. Hucal, 806 F.2d 123 (7th Cir. 1986) (finding officer lacked
probable cause to arrest parents for child neglect where he had no indication
of their intent, a necessary element, after failing to solicit information
from multiple people at the scene); Carbajal v. Vill. of Hempstead, No. 02CV-4270, 2006 WL 845384, at *4 (E.D.N.Y. Mar. 29, 2006) (finding issue of
qualified immunity from malicious prosecution claim inappropriate for summary
judgment where police officer arrested plaintiff months after the crime
without viewing videotape of drug transaction or getting positive
identification from the confidential informant in the transaction).
In this case, unlike in Russo and the other cases
cited by plaintiff, there is nothing in the factual record that
indicates that the surveillance video form Concord Liquor Store
was (1) exculpatory on its face, (2) ignored by Detective
Delacy, (3) withheld from or misrepresented to other police
officers and/or prosecutors, or (4) the ultimate reason for the
dismissal of charges against plaintiff.
testified in his deposition that he had reviewed the
surveillance video numerous times prior to plaintiff’s arrest
and was unable to determine whether or not plaintiff was one of
the three individuals involved in the robbery based on the video
Specifically, Detective Delacy testified that he viewed
the surveillance video more than once prior to plaintiff’s
arrest, “knew [the video] well,” could not make any
identification due to the camera angles of the video, but could
compare plaintiff upon seeing him with individuals in the video
and was not surprised that an eyewitness identified plaintiff as
one of the perpetrators.
(J.A. Ex. 1, Deposition of Detective
Thomas Delacy (“Delacy Dep.”) at 30-33.)
Thus, the evidence
before the court establishes that the surveillance videos were
not exculpatory as plaintiff contends, and plaintiff presents no
Most importantly, there is no evidence to
dispute the material fact that plaintiff’s arrest was supported
by probable cause, based on the positive identifications by D.L.
See Rush v. Astacio, 159 F.3d 1348 (2d Cir. 1998); see also
Russo, 479 F.3d at 204 (applying Connecticut law).
Finally, plaintiff’s actual innocence is irrelevant to
the determination of whether probable cause existed at the time
of plaintiff’s arrest.
Thus, plaintiff’s assertion that there
is a disputed factual issue that needs to be presented to a
factfinder regarding whether plaintiff was one of the three men
who robbed Concord Liquor Store on May 5, 2012 is mistaken.
(See Ohene Affirmation at 6.)
Rather, the relevant question is
whether there is a disputed issue of material fact regarding the
existence of probable cause to arrest plaintiff.
above, defendants have established with undisputed admissible
evidence that there was probable cause to arrest plaintiff.
There is nothing in the record, other than unsupported legal
assertions to raise a factual dispute on the material issue of
Accordingly, because the court finds that defendants
have satisfied their burden of demonstrating that probable cause
existed for plaintiff’s arrest and plaintiff has not contravened
defendants’ evidence, defendants’ motion for summary judgment on
plaintiff’s false arrest claim is granted.
Defendants also move for summary judgment on
plaintiff’s malicious prosecution claim on the grounds that
(1) there was probable cause for plaintiff’s prosecution and (2)
there is no evidence that actual malice motivated Detective
(Def. Mem. at 10.)
Plaintiff again argues
that there was no probable cause to arrest plaintiff because
Detective Delacy had access to the purportedly exculpatory
(See Ohene Affirmation at 4-6 (discussing
probable cause to arrest).)
“To succeed on a malicious prosecution claim under
section 1983, a plaintiff must show (1) that the defendant
commenced or continued a criminal proceeding against him; (2)
that the proceeding was terminated in the plaintiff’s favor; (3)
that there was no probable cause for the proceeding; and (4)
that the proceeding was instituted with malice.”
Supp. 2d at 168 (internal citation omitted).
Castro, 739 F.
Defendants do not
dispute that Detective Delacy commenced a criminal proceeding
against plaintiff or that the proceeding terminated in
plaintiff’s favor when the charges against him were dismissed.
As to the third element, “the determination of
probable cause is assessed in light of the facts known or
reasonably believed at the time the prosecution was initiated,
as opposed to at the time of arrest.”
Drummond v. Castro, 522
F. Supp. 2d 667, 677-78 (S.D.N.Y. 2007) (internal citations and
quotation marks omitted).
“[A] malicious prosecution claim will
be defeated by a finding of probable cause to arrest, unless the
plaintiff can demonstrate mitigating facts to vitiate probable
cause which were first uncovered after the arrest.”
Plaintiff fails to identify any evidence uncovered
after his arrest that would defeat probable cause.
above, the surveillance video from the liquor store was
available to Detective Delacy prior to plaintiff’s arrest and
was not dispositive of the issue of plaintiff’s potential
involvement in the robbery.
Thus, because defendants have
satisfied their burden of establishing Detective Delacy’s
probable cause to arrest plaintiff, the court finds that there
is no outstanding factual issue regarding the existence of
probable cause to prosecute plaintiff.
Plaintiff has also failed to adduce evidence that
Detective Delacy was motivated by actual malice.
need not “prove that the defendant was motivated by spite or
hatred” to establish actual malice, but must demonstrate that
the criminal proceeding was initiated “due to a wrong or
improper motive, something other than a desire to see the ends
of justice served.”
Castro, 739 F. Supp. 2d at 169-70 (quoting
Rounseville v. Zahl, 13 F.3d 625, 630 (2d Cir. 1994)) (internal
quotation marks omitted).
Actual malice may be inferred from a
lack of probable cause to commence a criminal proceeding.
Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 131 (2d Cir.
Based on the factual record, no reasonable jury could
find that the actual malice element is met, because there is no
evidence that Detective Delacy was motivated by “something other
than a desire to see the ends of justice served.”
as set forth in greater detail above, the record is replete with
undisputed facts, supported by admissible evidence, that
indicate that there was probable cause to arrest and initiate
the prosecution against plaintiff.
Therefore, the court grants
summary judgment to defendants on plaintiff’s malicious
Defendants argue that, even if the court were to find
disputed issues of material fact regarding plaintiff’s section
1983 claims, summary judgment is warranted on those claims
because Detective Delacy is entitled to qualified immunity.
(Def. Mem. at 12-14.)
Although the court finds that defendants
are entitled to summary judgment on the merits of plaintiff’s
false arrest and malicious prosecution claims, the court also
finds that, in the alternative, Detective Delacy is entitled to
qualified immunity as a matter of law.
The doctrine of qualified immunity protects government
officials from civil liability when their “conduct does not
violate clearly established statutory or constitutional rights
of which a reasonable person would have known.” Harlow, 457 U.S.
An arresting officer lacking probable cause to arrest
is nonetheless entitled to qualified immunity on false arrest
and malicious prosecution if it was objectively reasonable for
the officer to believe that probable cause existed or officers
of reasonable competence could disagree on whether the probable
cause test was met.
Walczyk v. Rio, 496 F.3d 139, 163 (2d Cir.
This standard, often referred to as “arguable probable
cause,” is met “when a reasonable police officer in the same
circumstances and possessing the same knowledge as the officer
in question could have reasonably believed that probable cause
existed in the light of well established law.”
Brown, 246 F.3d 194, 203 (2d Cir. 2001) (internal citations and
quotation marks omitted) (emphasis in original).
D.L.’s repeated identifications of plaintiff provided
Detective Delacy with at least arguable probable cause for
Based on the representations D.L. made to
the police officers, the certainty with which he made his
identifications, and the basis he gave for recognizing
plaintiff, a reasonable police officer certainly could have
believed that there was probable cause to arrest plaintiff.
Plaintiff cannot demonstrate otherwise.
The only argument that
plaintiff has set forth in his opposition to defendants’ motion
with regard to any of defendants’ arguments is that the
surveillance video was plainly exculpatory.
The court has reviewed the liquor store
surveillance videos and finds that there is nothing in the
videos, however, that indicates that it would have been
unreasonable for Detective Delacy to believe that he had
probable cause to arrest plaintiff.
Therefore, even if
Detective Delacy lacked probable cause to arrest plaintiff, the
court concludes that there are no disputed issues of material
fact as to whether he had arguable probable cause.
As a result,
Detective Delacy is entitled to qualified immunity on
plaintiff’s false arrest and malicious prosecutions claims.
Section 1981 Discrimination
As noted above, plaintiff appears to have abandoned
his claim for discrimination under Section 1981.
argue that they are entitled to summary judgment on this claim
because it is plainly contradicted by plaintiff’s deposition
In his deposition, plaintiff testified that he did
not believe that Detective Delacy or any other officer arrested
plaintiff or discriminated against plaintiff on the basis of
(Def. 56.1 Stmt. ¶ 49; Moore Dep. at 106-107.)
Furthermore, plaintiff has failed to identify any evidence in
support of his section 1981 claim.
Thus, the court grants
summary judgment to defendants on plaintiff’s claim under
Defendants also moved for summary judgment on
plaintiff’s claims against the City and plaintiff failed to
(See Def. Mem. at 14-16; see generally Ohene
Thus, the court treats this claim as abandoned.
Moreover, even if plaintiff intended to pursue his municipal
liability claim, the court finds that summary judgment on this
claim is appropriate because will be unable to prove this claim
based on his lack of discovery of any evidence in support of
such a claim.
A municipality will be liable for constitutional
claims under section 1983 only if the alleged offending conduct
was undertaken pursuant to “a policy statement, ordinance,
regulation, or decision officially adopted and promulgated by
[the municipal] officers” or a government custom, “even though
such a custom has not received formal approval through the . . .
[municipality’s] official decisionmaking channels.”
Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 690
It is well-settled that municipal liability under
section 1983 cannot be based on a theory of respondeat superior.
See, e.g., Matusick v. Erie Cnty. Water Auth., 757 F.3d 31, 62
(2d Cir. 2014); Monell, 436 U.S. at 690-91.
To satisfy the “municipal policy or custom” element, a
plaintiff must establish one of the following: “(1) the
existence of a formal policy which is officially endorsed by the
municipality; (2) actions taken or decisions made by municipal
officials with final decision making authority, which caused the
alleged violation of plaintiff’s civil rights; (3) a practice so
persistent and widespread that it constitutes a custom of which
constructive knowledge can be implied on the part of the
policymaking officials; or (4) a failure by policymakers to
properly train or supervise their subordinates, amounting to
“deliberate indifference” to the rights of those who come in
contact with the municipal employees.”
Naples v. Stefanelli,
972 F. Supp. 2d 373, 387 (E.D.N.Y. 2013) (internal citations
Because plaintiff has failed to raise a material fact
issue as to his false arrest, malicious prosecution, and
discrimination claims, his municipal liability claim also fails.
See Matican v. City of New York, 424 F. Supp. 2d 497, 508
(E.D.N.Y. 2006), aff’d, 524 F.3d 151 (2d Cir. 2008) (“municipal
liability cannot exist if the individual defendants have not
violated the plaintiff's constitutional rights”).
however, plaintiff has not identified any evidence whatsoever
that would indicate, or allow an inference of, the existence of
either any policy, practice, or custom, formal or otherwise, or
any act that may fairly be said to represent official policy,
connected to the alleged unconstitutional acts by Detective
Accordingly, the court grants summary judgment in favor
of defendants on plaintiff’s Monell claim.
For the foregoing reasons, defendants’ motion for
summary judgment is granted in its entirety.
The Clerk of the
Court is respectfully requested to enter judgment in favor of
defendants and close this case.
Dated: Brooklyn, New York
March 16, 2015
KIYO A. MATSUMOTO
United States District Judge
Eastern District of New York
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