Jones v. The City Of New York City et al
MEMORANDUM DECISION AND ORDER granting 36 Motion for Summary Judgment: Defendants' motion for summary judgment is granted, and the complaint is dismissed. The Clerk is directed to enter judgment. Ordered by Judge Brian M. Cogan on 4/11/2014. (Barrett, C)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------------------------------DERRELL C. JONES,
- against THE CITY OF NEW YORK, DET. ALAN
DAAB, LT. DENNIS KLEIN, SGT. SHAUN
MARA, DET. SEAN WARD, SGT.
MCKENNA, P.O. BRYAN PIERRE, JOHN
AND JANE DOES,
DECISION AND ORDER
13 Civ. 0703 (BMC)
COGAN, District Judge.
Plaintiff brought this action under several provisions of the Civil Rights Act of 1871, 42
U.S.C. § 1983 et seq., and corresponding provisions of state law, for false arrest, malicious
prosecution, and related claims arising out of his arrest for gun possession. Plaintiff has
withdrawn his state law claims and his retaliation claim. His federal false arrest claims have
been previously dismissed, and the remaining federal claims fail because plaintiff can point to no
false statement that led to his prosecution, the decision to prosecute was made by a prosecutor,
and there is a total absence of any facts upon which a jury could reasonably find malice.
The material facts are undisputed.1 One of the police defendants, Detective Daab,
obtained information from a confidential informant that armed gang members2 were operating
out of a residence and that they were illegally in possession of firearms. He obtained a search
warrant based on that information and he and the other police defendants executed it.
The confidential information proved entirely correct. The place was awash in illegal
guns and gang members. Plaintiff was in the living room when the police entered, and one of the
people in the apartment was also in the living room holding an illegal firearm in plain view.
That person bolted towards the back of the apartment together with three other males, and the
police gave chase. One of the suspects threw a gun into a bathroom and another threw one into
the front bedroom. Upon performing a protective sweep, police found another gun in the back
bedroom, and upon a more thorough search, five guns in total were recovered: the one on the
bathroom floor; three guns in the first bedroom – the one on the floor, one under a mattress, and
There are two deficiencies with plaintiff’s dispute of defendants’ Local Rule 56.1 statement and his own
counterstatement. The first is that both consist almost entirely of argument, not factual allegations, and to the extent
plaintiff makes such arguments, I disregard them. The second is that plaintiff refuses to admit or deny many of the
statements because of an alleged lack of discovery. However, prior to this motion, the Court specifically instructed
plaintiff to bring any deficient discovery to the Court’s attention, and plaintiff never did so. In any event, nowhere
in his brief or in oral argument did plaintiff point to anything that is missing from this record.
There is some dispute as to the name of the gang provided by the confidential informant. In a written statement,
the confidential informant stated that the name of the gang operating out of the residence was “YB,” which stands
for “Young Bosses,” and “Blood.” However, defendants believed the gang to be called “Snow Gang,” “Snow
Grimey Gang,” or “Grimey Gang.” Regardless, it is undisputed that the confidential informant provided
information that a gang was operating out of the premises in which plaintiff was found.
one in a plastic bin – and the one in the rear bedroom. At least nine occupants of the apartment,
including plaintiff, were arrested.3
Detective Daab swore out a criminal complaint that describes the incident as set forth
above. The matter then proceeded to arraignment. Plaintiff was arraigned on the gun charges
together with two other defendants. As to bail, the lawyer argued, among other things, that
plaintiff and one of the other criminal defendants did not have constructive possession of the
guns. Their attorney (one attorney represented all three defendants at arraignment) asserted that
plaintiff and one of the other criminal defendants did not live in the apartment and had no
knowledge of the guns that were found in the apartment, other than the one that was held by
another person sitting in the living room of the apartment. The arraignment judge noted that
plaintiff had just pled guilty as a youthful offender on another charge of felony gun possession,
and set bail at $100,000, which plaintiff failed to make.
About two months later, the indictment came down and plaintiff was arraigned on it.
Plaintiff was charged with criminal possession of a weapon in the second degree and other
related charges. Plaintiff’s bail was reduced to $75,000 to match that of one of his codefendants, which he still could not make. At neither this bail hearing nor the prior one did
plaintiff explain why he was in a house used as a gang hangout that was full of illegal guns.4
Plaintiff claims in his brief that only three perpetrators, including plaintiff, were arrested and charged, and that
others in the residence were not arrested, but a close review of the record demonstrates otherwise. Plaintiff is
confusing the fact that one arrest report covered plaintiff and two others, but the record indicates that a total of nine
suspects were taken into custody, and likely processed in separate arrest reports that are not in the record before me.
At his deposition, plaintiff’s story was that a person he could not identify told him there was going to be a “gettogether” at the subject address following a funeral that plaintiff had attended for a “kid” named Kyle whose last
name plaintiff did not know and had never known. He also testified that someone living at that address used to date
his late sister but he didn’t know the name of that person either. Plaintiff further testified that he did not know
anyone else who was present at this “get-together” except for one girl whose first name was Zaire.
Plaintiff’s motion to dismiss the indictment was granted two months later. Based on its
review of the grand jury testimony, the trial court reasoned that the gun held by one of the
perpetrators in the living room where plaintiff was found could not be attributed to plaintiff
because there was no evidence to show that plaintiff was acting in concert with that perpetrator.
It further reasoned that the other guns found in the apartment could not be attributed to plaintiff
because they were found in bedrooms and bathrooms, which it did not feel were common areas,
nor was plaintiff ever observed to have been in these rooms. Additionally, it found that there
was no evidence that plaintiff resided in or had any possessory interest in the subject premises.
Since there was no probable cause to support the charges, in the trial court’s view, the indictment
had to be dismissed. The trial court granted the District Attorney leave to re-present the case to
another grand jury.
Plaintiff then commenced this action and, after the conclusion of discovery, defendants
moved for summary judgment.
At oral argument on the motion, plaintiff’s counsel conceded that under these
circumstances, given the fluidity of the situation at the time of arrest and the plethora of firearms
and gang members, the defendant police officers were entitled to qualified immunity on the false
arrest claims. The Court subsequently dismissed those claims.5 The primary remaining claims
are for malicious prosecution and denial of the right to a fair trial.
The Court also dismissed plaintiff’s false arrest claims because he purported to bring them directly under the 14th
Amendment, and there is no direct action for false arrest under the 14th Amendment. See Turpin v. Mailet, 579
F.2d 152, 160 (2d Cir. 1978), vacated on other grounds, City of West Haven v. Turpin, 439 U.S. 974 (1978); see
also Albright v. Oliver, 510 U.S. 266 (1994).
“In order to prevail on a § 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) (internal 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 (citations and internal quotation marks omitted).
I cannot find any evidence in this record upon which a jury could reasonably conclude
that any of the defendant police officers acted with actual malice. Although absent from his
brief, at oral argument, plaintiff’s counsel relied heavily on the criminal complaint/affidavit filed
by Detective Daab, but plaintiff’s counsel could not point to anything in it that was false. The
criminal complaint simply described exactly what happened as set forth in the undisputed facts
above, and then concluded that plaintiff and his two fellow defendants in the criminal case were
in constructive possession of a loaded firearm. It did not state anywhere that plaintiff was in
physical possession of a firearm. Detective Daab’s complaint specifically noted who had the
firearms and who was being charged with constructive possession. Apparently, plaintiff claims
that the allegation that he was in constructive possession of a firearm was a “false” statement
sufficient to support a finding of malice.
When a police officer accurately details the facts leading to an arrest, and then states his
conclusion as to whether those facts amount to the commission of a crime, I do not see how that
can demonstrate malice. He is not a lawyer, and his conclusion of law is not a “fact” that can be
“false.” It is the prosecutor who reviews the facts as related, and then makes his own
determination as to whether the crime that the officer has identified, or some other crime, has
been committed. Beyond that, if the prosecutor reaches his own conclusion that the matter
should be pursued, a grand jury must also consider that conclusion and decide whether to adopt
it. When both the prosecutor and the grand jury, acting on accurate facts related by a police
officer, agree that there is probable cause to believe that a crime has occurred, an allegation that
the police officer acted with “malice,” made simply because a judge subsequently determined
that those accurately-related facts do not constitute probable cause, must fail. See, e.g.,
McCellan v. Smith, 439 F.3d 137, 145 (2d Cir. 2006); Green v. Montgomery, 219 F.3d 52, 60
(2d Cir. 2000).
Plaintiff’s attorney appeared to recognize this at oral argument. He combed through the
police file, and after failing to demonstrate anything false in Detective Daab’s complaint, looked
for something that might contain a false factual statement. He seized upon two documents,
although neither is mentioned in his brief. One is the arrest report, created by a Detective Alden,
who is not a defendant, apparently based on information given by the arresting officer, Detective
Haber, who is also not a defendant, and approved by the supervisor, defendant Sargent Mara. In
one field of this form, the question is stated: “Gang/Crew Affiliation,” under which appears
“Name.” Detective Alden inputted “yes” in answer to the first question and “Grimy Gang” in
answer to the second.
Plaintiff goes to considerable effort to show that he is not a Grimy Gang or other gang
member and defendants offer evidence to show that he is, but this disputed fact is immaterial to
the determination of whether a genuine issue exists regarding malicious intent. First of all,
neither Detective Alden nor Detective Haber is a defendant, so their motives are irrelevant. As
to Sargent Mara, a jury could not reasonably conclude that he had actual malice towards plaintiff
simply because he approved a form listing plaintiff as a gang member when plaintiff was
arrested in a house full of gang members. Although, unlike Detective Daab’s conclusion that
plaintiff was in constructive possession of the firearms, Sargent Mara’s conclusion, or, more
properly, his approval of some other officer’s conclusion, that plaintiff was a Grimy Gang
member is a factual as opposed to legal conclusion, it is one that is reasonably based on a known
fact – plaintiff was in a Grimy Gang hangout flooded with illegal weapons. The conclusion of
membership may have been a mistake; it might have been dispelled with further investigation
(although defendants’ submissions suggest there is, at least, considerable evidence to show that it
is right), but under the circumstances, no jury could see it as evidence of malice, nor of a degree
of recklessness amounting to malice.
Finally, and again only at oral argument, and not in his brief, plaintiff points to a postarrest “search result” form that he alleges Detective Daab completed (defendants deny that it was
Detective Daab that completed the form), the purpose of which is describe what was recovered in
the search and tied to an arrestee.6 In this very lengthy form pertaining to plaintiff, there is a row
of questions that asks “Gang Affiliation,” “Gang Name,” and “Gang Identifier.” Detective Daab
answered “Yes,” “Unknown,” and “Loyalty Tattoo,” respectively. At his deposition, Detective
Daab testified in a way that plaintiff interprets as stating that plaintiff had the word “Loyalty”
tattooed on him, when in fact, although plaintiff has resplendent tattoos, he does not have one
with the word “Loyalty.”
It is not at all clear to me that Detective Daab’s testimony was that plaintiff actually had
the word “Loyalty” tattooed on him or even that Detective Daab was the officer who filled out
the form. Plaintiff’s attorney asked him, “Was it, for example, Krips or Blood or Loyalty,” to
In fact, plaintiff’s attorney did not initially cite to this document. It was referred to by defendants’ counsel.
which Detective Daab answered, “It says loyalty.” Plaintiff’s limited follow up questioning
could well indicate that Detective Daab was simply referring to what was stated on the form, not
what he believed was tattooed on plaintiff. But even drawing the inference in favor of plaintiff’s
interpretation of the testimony, I cannot see what difference it makes. If Detective Daab had
written “tear drop,” a tattoo that plaintiff actually has, instead of “Loyalty,” it is impossible to
contemplate the circumstance where this difference would have caused the prosecutor to decide
not to prosecute, especially where the form did not tie the word “Loyalty” to the Grimy Gang
(avoiding this by listing plaintiff’s gang membership as “Unknown”). There is no evidence in
this record that Grimy Gang members tattoo themselves with the word “Loyalty,” and plaintiff
was prosecuted not because of the presence or absence of a particular tattoo, but because he was
apprehended in a house full of guns and gang members. There is no indication at all that any of
the arrestees from this incident had the word “Loyalty” tattooed on them. Thus, the single word
“Loyalty” on the form not only fails to indicate any malice, but was immaterial to plaintiff’s
prosecution. Indeed, at neither of plaintiff’s bail hearings did the prosecutor ever mention that
plaintiff had any connection to the Grimy Gang. Even a false statement cannot be used to show
malice if the statement is immaterial. See Golino v. City of New Haven, 950 F.2d 864, 870 (2d
The absence of evidence of malice and materiality is not the only problem with
plaintiff’s malicious prosecution claim. First, the prosecutor’s decision to prosecute and the
grand jury’s decision to indict, based on what I have found to be materially accurate information
provided by defendants, creates a presumption of probable cause which plaintiff has failed to
overcome. See Manganiello, 612 F.3d at 161-62; Savino v. City of New York, 331 F.3d 63, 72
(2d Cir. 2003).
Second, I respectfully disagree with the state court’s conclusion that there was
insufficient evidence of probable cause to support arrest and prosecution. It is axiomatic that
probable cause must be determined based on the totality of the circumstances known to the
police officers, see Caldarola v. Calabrese, 298 F.3d 156, 162 (2d Cir. 2002), but what the state
court did was to effectively isolate each factor and thereby lose sight of the whole.7
It is true that just because plaintiff was in a common area (the living room) where another
person had a gun does not make plaintiff liable for constructive possession. It is also true that
the ultimate resting place of other guns in bedrooms cannot be attributed to plaintiff without
information that he had some residency or regular access to a particular bedroom where a gun
was found. But there was a lot more going on here. Police had accurate information that this
was a gang gathering. See Panetta v. Crowley, 460 F.3d 388, 295 (2d Cir. 2006). And perhaps
most importantly, the sheer quantity of guns and the scrambling of the occupants upon the police
entry made it perfectly reasonable, in my view, for the police, and later the prosecutor, to
conclude that there was probable cause to believe that each of the occupants had knowledge and
the potential to access one of the many guns that was found, and that it was for a jury to
determine whether to accept plaintiff’s story that he had just stopped by for a post-funeral party.
See United States v. Heath, 455 F.3d 52, 57 (2d Cir. 2006); see also Jenkins v. City of New
York, 478 F.3d 76, 90 (2d Cir. 2007). Thus, while I am content to rely on plaintiff’s concession
of qualified immunity to dismiss the false arrest claims, I have no difficulty holding that there
was indeed probable cause for prosecution.
Additionally, it is important to note that in dismissing the charges against plaintiff, the state court authorized the
prosecution to re-present the charges to another grand jury, making it unlikely that the state court proceedings
terminated in plaintiff’s favor for purposes of his malicious prosecution claim. See Russell v. Smith, 68 F.3d 33, 36
(2d Cir. 1995).
The dismissal of the malicious prosecution claim defeats the denial of a fair trial claim
for the same reasons. That claim requires the making of a material false statement in the context
of a prosecution, see Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 130 (2d Cir. 1997), and
there is none here.
Plaintiff’s claim under 42 U.S.C. § 1981 is frivolous and borderline sanctionable. There
is no evidence whatsoever of racial discrimination in this case. See Brown v. City of Oneonta,
221 F.3d 329, 339 (2d Cir. 1999) (noting that to establish a claim under Section 1981, a plaintiff
must present facts demonstrating defendants’ intent to discriminate on the basis of race); see also
Albert v. Carovano, 851 F.2d 561, 571 (2d Cir. 1988).
Similarly, there can be no conspiracy claim under 42 U.S.C. § 1985 since plaintiff’s
constitutional rights were not violated, and without an underlying constitutional tort, plaintiff’s
conclusory Monell claim also fails. His “retaliation” claim fails for the same reason, and for the
additional reason that he seeks to proceed directly under the 14th Amendment for that claim
which, as noted above, he may not do.
In addition, because plaintiff’s state law claims fail for the same reason as his federal
claims, and for the additional reason, which plaintiff has not disputed, that he failed to file a
notice of claim to pursue those state law claims, they are dismissed as well.
Defendants’ motion for summary judgment is granted, and the complaint is dismissed.
The Clerk is directed to enter judgment.
Digitally signed by Brian M.
Dated: Brooklyn, New York
April 11, 2014
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