Flynn-Rodriguez v. The City of New York et al

Filing 120

MEMORANDUM AND ORDER granting defendants' motion to dismiss the malicious prosecution claim. Ordered by Judge Jack B. Weinstein on 7/31/2017. (Barrett, C)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
SCHARLENE FLYNN-RODRIGUEZ,
Plaintiff,

MEMORANDUM AND ORDER

14-CV-2287

- against -

LU

SERGEANT JOHNNY CHENG, and
POLICE OFFICER ANTHONY CHOW.

1LL

ôb.N.v.

* 406012017 *

Defendants.

BROOKLYN OFFICE
Parties

Appearances

Scharlene Flynn-Rodriguez

Ellie Amanda Silverman
Novo Law Firm, PC
299 Broadway
17th Floor
New York, NY 10007
Tel: [phone]
Fax: [phone]
[e-mail]

The City of New York
New York City Police Department
Police Officer Johnny Cheng
Police Officer Anthony Chow

Ashley Rebecca Garman
New York City Law Department
Office of Corporation Counsel
100 Church Street
New York, NY 10007
Tel: [phone]
Fax: [phone]
agarmanlaw.nyc.gov

JACK B. WEINSTEIN,

I.

Senior United States District Judge:

Introduction

In her original complaint Scharlene Flynn-Rodriguez brought a mélange of allegations
against two New York City Police Department ("NYPD") officers; the majority have since been
withdrawn or dismissed. At trial, the remaining claims are: (1) excessive force; (2) state assault
and battery; (3) failure to intervene; and (4) malicious prosecution based on the charge of
resisting arrest. At the close of the plaintiffs case, the defendants moved for judgment under
Rule 50 on the malicious prosecution claim.
The District Attorney had probable cause to initiate and continue this prosecution on a
number of criminal charges and would have continued it even if the police had lied about
plaintiffs resisting arrest. A post-arraignment deprivation of plaintiffs liberty cannot be
attributed to the police, or solely to the charge of resisting arrest. The motion to dismiss the
malicious prosecution claim is granted.
II.

Facts

While on patrol in a marked police car, defendants, uniformed officers Anthony Chow
and Johnny Cheng, received a radio order to arrest Ms. Flynn-Rodriguez for threatening to bomb
a "school in Pennsylvania." Trial Transcript ("Trial Tr.") 298:15 —21, July 26, 2017; Garman
Decl. attached, Ex. A (Text Messages).
The NYPD had received the request to arrest her from Pennsylvania police. Id. When
the officers arrived at Ms. Flynn Rodriguez's apartment and asked for her, they were informed
by her husband that she was not home. Id. at 237:1 - 13. The officers left the building; they
were approached by Ms. Flynn-Rodriguez on the street. Id. at 300:7 - 21. The officers asked for
her identification and confirmed that she was the person they had been sent to arrest. Id. at

2

JACK B. WEINSTEIN,

I.

Senior United States District Judge:

Introduction

In her original complaint Scharlene Flynn-Rodriguez brought a mélange of allegations
against two New York City Police Department ("NYPD") officers; the majority have since been
withdrawn or dismissed. At trial, the remaining claims are: (1) excessive force; (2) state assault
and battery; (3) failure to intervene; and (4) malicious prosecution based on the charge of
resisting arrest. At the close of the plaintiff's case, the defendants moved for judgment under
Rule 50 on the malicious prosecution claim.
The District Attorney had probable cause to initiate and continue this prosecution on a
number of criminal charges and would have continued it even if the police had lied about
plaintiff's resisting arrest. A post-arraignment deprivation of plaintiff's liberty cannot be
attributed to the police, or solely to the charge of resisting arrest. The motion to dismiss the
malicious prosecution claim is granted.
II.

Facts

While on patrol in a marked police car, defendants, uniformed officers Anthony Chow
and Johnny Cheng, received a radio order to arrest Ms. Flynn-Rodriguez for threatening to bomb
a "school in Pennsylvania." Trial Transcript ("Trial Tr.") 298:15 —21, July 26, 2017; Garman
Decl. attached, Ex. A (Text Messages).
The NYPD had received the request to arrest her from Pennsylvania police. Id. When
the officers arrived at Ms. Flynn Rodriguez's apartment and asked for her, they were informed
by her husband that she was not home. Id. at 237:1 - 13. The officers left the building; they
were approached by Ms. Flynn-Rodriguez on the street. Id. at 3 00:7 - 21. The officers asked for
her identification and confirmed that she was the person they had been sent to arrest. Id. at

2

301:14 - 302:14. They succeeded in handcuffing her, forced her into their car, and drove her to
the 62nd Precinct house. Id. Defendants contend that plaintiff resisted handcuffing, struggled,
flailed her arms, and twisted and stiffened her body, refusing to enter the police car. Id. at
275:11-14; 303:1-7.
She testified that she was never told that she was being arrested. See Trial Tr. 31:15, July
25, 2017. She stated that the officers pressed into her shoulders and back while handcuffing her
and placing her in the police car, causing serious injuries. Id. at 37:16 - 18.
After the arrest, Officer Cheng spoke with Rose Flynn, Ms. Flynn-Rodriguez's sister in
law in Pennsylvania, over the phone. Dee!. of Ashley R. Garman in Supp. of Defs.' Mot. for
Partial Summ. J., Feb. 25, 2016, ECF No. 35 ("Garman Dee!."), at Ex. L (Apr. 9 DIR). She told
Officer Cheng that Ms. Flynn-Rodriguez had sent her text messages threatening her children and
the lives of the children at their school with a bomb. Id.
A misdemeanor criminal complaint, signed by Officer Cheng, was filed in Kings County
Criminal Court. It charged Ms. Flynn-Rodriguez with the following crimes in connection with
Rose Flynn's March 6, 2013 complaint and Ms. Flynn-Rodriguez's alleged behavior on April 9,
2013:
• Criminal Contempt in the Second Degree, N.Y.P.L. § 2 15.50(3);
• Two counts of Aggravated Harassment in the Second Degree, N.Y.P.L. §
240.30(l)(A)-(B);
• Harassment in the Second Degree, N.Y.P.L. § 240.26(1); and
• Resisting Arrest, N.Y.P.L. § 205.30.
See Garman Dee!. at Ex. I (Criminal Complaint); Court Ex. 16 (Certificate of Disposition).
Two days after her arrest, plaintiff was released on her own recognizance by the state
court. Defs.' Local Civ. R. 56.1 Statement of Undisputed Material Facts, Feb. 25, 2016, ECF
3

No. 37 ("56.1 Statement"), at ¶ 47. Plaintiff had returned to court five times between April 11
and July 14, 2014, when the district attorney moved to dismiss all charges against her; her sisterin-law had never appeared to press charges. Id. at ¶ 48-49; Court Ex. 16 (Certificate of
Disposition).
III. Law
A. Rule 50 Motion

At a jury trial, once a party has been fully heard on an issue the opposing party may move
for judgment as a matter of law. See Fed. R. Civ. P. 5 0(a). The court may grant judgment as a
matter of law if it finds "there is no legally sufficient evidentiary basis for a reasonable jury to
find for the opposing party on an issue essential to a claim." See Fed. R. Civ. P. 50(a)(1);
Tolbert v. Queens Coil., 242 F.3d 58, 70 (2d Cir. 2001).
B. Malicious Prosecution

To establish a claim for malicious prosecution a plaintiff must prove: (1) the initiation or
continuation of a state criminal proceeding; (2) termination of the state criminal proceeding in
plaintiff's favor; (3) lack of probable cause; (4) actual malice by the defendant; and (5) an
independent deprivation of liberty. See Murphy v. Lynn, 118 F.3d 938, 944-47 (2d Cir. 1997).
The contested criminal charge allegedly causing the deprivation of liberty must be
independent from other legally sufficient charges arising out of the same incident. Coleman v.
City of New York, No. 16-915, 2017 WL 1422485, at *1 (2d Cir. Apr. 21, 2017). Where other
charges are of equal or similar magnitude, and are supported by probable cause, there is no
"independent deprivation of liberty." Id. at 3 (finding that an assault charge did not give rise to
an independent deprivation of liberty where it was conceded that other charges arising out of the
same incident were supported by probable cause). See also Walker v. Sankhi, 494 F. App'x 140,

II

143 (2d Cir. 2012) (summary order) (dismissing claim of malicious prosecution because plaintiff
could not show an independent deprivation of liberty where he was already in custody for a
burglary charge for which he was later convicted); Othman v. City of New York, No. 13-CV-4771
NGG RLM, 2015 WL 1915754, at *6 (E.D.N.Y. Apr. 27, 2015) (dismissing claim of malicious
prosecution because plaintiff failed to allege a "deprivation of liberty that stems exclusively from
those charges that may have terminated in his favor.").
IV. Application of Law to the Facts

In view of the serious nature of the allegations against plaintiff, including a bomb-threat
to a school, there was probable cause to initiate and continue criminal proceedings against her.
In addition to resisting arrest, Ms. Flynn Rodriguez had been charged with criminal contempt in
the second degree, aggravated harassment in the second degree, and harassment in the second
degree—all arising out of the Pennsylvania bomb allegations.
The assistant district attorney was impelled to open and continue a prosecution with
respect each of these charges. Nothing the defendants in this case could have said as to the
nature of the interference with the arrest by the plaintiff could have had any effect on the district
attorney's decision to commence the case and continue with it until the Pennsylvania matter had
been sufficiently resolved. See Trial Tr. 41-43, July 31, 2017. An earlier dismissal with a
subsequent bombing could not be chanced by the prosecution. Id.
Though Ms. Flynn-Rodriguez suffered a deprivation of liberty, the resisting arrest charge
was not the sole cause of that deprivation; the deprivation was also caused by other charges that
were supported by probable cause. The malicious prosecution claim is dismissed.

5

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SO ORDERED

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/ fc ack B. Weinstein
JSenior United States District Judge
Date: July 31, 2017
Brooklyn, New York

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