Rao et al v. The City of New York et al
Filing
72
MEMORANDUM AND ORDER granting in part and denying in part 64 Motion for Summary Judgment: For the reasons stated in the attached Memorandum and Order,the defendants' motion for partial summary judgment (Doc. No. 64) is granted in part and de nied in part. Rao's false arrest claim as to all defendants is dismissed. Rao's remaining claims are: (1) abuse of process as to defendant Warmhold only; (2) excessive force, assault and battery and failure to intervene against defendants Warmhold, Gridley and Cabrera. This case is recommitted to Magistrate Judge Bloom for all remaining pre-trial proceedings. Ordered by Judge Roslynn R. Mauskopf on 3/29/2018. (Mauskopf, Roslynn)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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KISHOR KUMAR RAO and
POORNIMA KISHOR,
Plaintiffs,
- against -
MEMORANDUM AND ORDER
14-CV-7422 (RRM) (LB)
THE CITY OF NEW YORK; DETECTIVE KEVIN
WARMHOLD; POLICE OFFICER YISEL
CABRERA; DETECTIVE MICHAEL RISO;
DETECTIVE JOHN GRIDLEY; and
POLICE OFFICERS JOHN DOE #1–10,
Defendants.
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ROSLYNN R. MAUSKOPF, United States District Judge.
Plaintiffs Kishor Kumar Rao and Poornima Kishor commenced this action pursuant to 42
U.S.C. § 1983, alleging that defendants City of New York, Detective Kevin Warmhold, Police
Officer Yisel Cabrera, Detective Michael Riso, and Detective John Gridley violated Rao’s civil
rights on September 25, 2013 by, inter alia, unlawfully arresting him and using excessive force.1
Defendants now move for partial summary judgment pursuant to Federal Rule of Civil Procedure
(“Rule”) 56, on the grounds that Rao’s federal and state law false arrest claims, his state law
false imprisonment claim, as well as his malicious abuse of process claim, fail because the
officers had probable cause to arrest. (See Mot. for Summ. J. (Doc. No. 64).) For the reasons
stated below, the defendants’ motion for partial summary judgment is granted in part and denied
in part.
1
Rao and Kishor have agreed to withdraw their claims of malicious prosecution, denial of a right to a fair trial, and
all claims against Detective Riso and the City of New York. (Ltr. (Doc. No 54); Opp’n (Doc. No. 68-1) at n.5.)
They have also agreed to dismiss all of Poornima Kishor’s remaining claims. (Opp’n at n. 6.) Accordingly,
Poornima Kishor, Detective Riso, and the City of New York are dismissed as parties to this action.
BACKGROUND2
Rao’s legal troubles began on February 27, 2013, when Shahjahan Khan visited his
medicinal supplements business that she had heard about on TV. (Defs.’ Ex. C. (Doc. No. 67-3)
at 3.) Khan, a 66 year-old woman, describes herself as “not healthy,” and she says she has
trouble remembering things. (Id.) Hoping to restore her health, she went to Holistic Healthcare
Society and Research Center, Rao’s business. (Id.) The precise details of what happened next
are murky. In a statement Khan prepared on March 6, 2013, she wrote that the doctor, Rao,
asked her questions about her personal life, who supports her, and how much money she has
saved for retirement. (Id. at 3–4.) Rao assured Khan that he will make her feel better. (Id. at 4.)
He then gave Khan “a medicine,” a pill or powder of some kind, that Khan said made her feel
dizzy and confused. (Id.) She was told that her Medicare card was not working and that she
would have to pay in cash. (Id. at 5.) She remembered that Rao became “very angry,” and told
her that if she does not pay her medical bill, he “will straighten [her] out.” (Id.) Khan described
how the people at Rao’s business rummaged through her wallet and asked for her PIN number.
(Id.) Rao then allegedly called Khan’s credit card company and said Khan was in the hospital
and needed to pay her bill. (Id.) A woman then accompanied Khan to Chase Bank, where Khan
withdrew $25,600, though she does not remember precisely how the lady got her to withdraw the
money. (Id.) Khan described feeling scared. (Id. at 4, 6.)
One week later, on March 5, 2013, Khan and her daughter, Mubiha, filed a complaint
with the New York Police Department (“NYPD”). (Defs’ 56.1 Statement (Doc. No. 65) ¶ 2.)
Khan reported that Rao had “threatened/forced” her to withdraw $25,600 from her bank account
in exchange for medicinal supplements. (Id. ¶ 3.) The next day, Khan made the same complaint
2
The facts are taken from the record and are undisputed unless otherwise noted.
2
to the Queens County District Attorney’s Office, and the case was assigned to Assistant District
Attorney (“ADA”) Khadijah Muhammad-Starling and Detective (then-police officer) Kevin
Warmhold, who worked at the 106th Precinct. (Id. ¶¶ 3–5, 7.) Mubiha appears to have filled out
a form for the District Attorney’s Office in which she described her mother’s experience of
feeling “drunk” after taking the pill Rao had given her. (Defs.’ Ex. C. at 2.) She also noted on
the form that her mother is 66 years old and had been diagnosed with “mild cognitive
impairment” a year ago. (Id.)
As part of his investigation, Warmhold visited the Chase Bank, where Khan had
withdrawn $25,600. (Defs.’ Ex. E. (Doc. No. 67-5) at 3.) A manager there confirmed that he
had approved Khan’s transaction after a bank teller called him over to authorize it. (Id.) He
remembered that he asked Khan why she was taking out so much money; she had responded that
she needed to pay a medical bill. (Id.) Warmhold also interviewed Khan, who recounted her
visit to Rao’s office and added that the day after the incident, she received a phone call
instructing her not to tell anyone, including her daughter, about her visit. (Id. at 7.) Warmhold
then unsuccessfully attempted to interview Rao. (Id. at 6, 10.) He spoke with one of Rao’s
employees though, who said that Khan had “left happy.” (Id. at 13.)
As their investigations progressed, ADA Starling and Warmhold conferred. Warmhold’s
police notes suggest that on April 4, 2013, Starling informed Warmhold that she intended to seek
a grand jury indictment of Rao. (Id. at 14.) Three weeks after that conversation, on April 25,
2013, Warmhold activated an Investigation Card (“I-card”),3 identifying Rao as a wanted
perpetrator with probable cause to arrest. (Id. at 16.) Warmhold alleges that he went to Rao’s
3
“An I-Card is a device detectives use to notify patrol officers that a person is wanted for questioning either as a
witness or suspect.” Keith v. City of New York, No. 11-CV-3577 (KPF), 2014 WL 6750211, at *2 (S.D.N.Y. Dec. 1,
2014) (internal citations omitted). It specifies whether there is probable cause to arrest.
3
residence that day to arrest him, but Rao would not answer the door. (Id. at 17.) Rao denies that
he “ever refuse[d] to cooperate with any part of the investigation.” (Pl.’s 56.1 Statement (Doc.
No. 68-1) at 4.)
One month later, on June 24, Warmhold contacted Officer Remson of Customs and
Border Patrol at JFK Airport, who placed “a hold” on Rao should he try to leave the country.
(Defs.’ Ex. E at 20.) At some point afterwards, Starling again spoke with Warmhold. In her
deposition, Starling says that she told him that she was hoping to “get medical evidence to
substantiate the mental health of Mrs. Khan.” (Defs.’ Ex. D (Doc. No. 67-4) at 12.) Because she
was “waiting to see if there was any additional evidence,” she was under the impression that she
and Warmhold “would have communicated” prior to any arrest. (Id.) In his deposition,
Warmhold says that Starling informed him that she was waiting on financial records, rather than
medical ones. (Defs.’ Ex. X (Doc. No. 71) at 6–7.) Though the record is not clear as to when
this conversation took place, Warmhold’s notes relate that on July 31, Starling informed him that
her office would not be prosecuting Rao’s case “at this time.” (Defs.’ Ex. E at 21.)
At some point during the investigation – possibly in June or August – Detective Riso
visited Rao at his home.4 (Pl.’s Ex. J (Doc. No 69-9) at 2.) Rao invited him in, but the record
does not reveal what they discussed. Riso explained at his deposition that Warmhold told him
not to bring Rao to the precinct at that time. (Id. at 3.) On September 7, 2013, Warmhold
administratively closed his investigation “C-12,” which the defendants assert signified that “the
next step in the investigation was to locate plaintiff Rao.” (Defs.’ 56.1 Statement ¶ 20.)
Warmhold left the I-card for Rao’s arrest active. (Id. ¶ 19.)
4
In his response to the defendants’ 56.1 Statement, Rao says that Riso visited his home on August 22. (Pl.’s 56.1
Statement at 4.)
4
On September 25, 2013, Warmhold received a call from Customs and was notified that
Rao was at John F. Kennedy Airport. (Pl.’s Ex. G (Doc. No. 69-7) at 7.) Warmhold “was
working on another case at the time,” and told Officers Cabrera and Gridley to arrest Rao at the
airport for Grand Larceny in the Fourth Degree. (Defs.’ 56.1 Statement ¶ 21; Pl.’s Ex. G at 7.)
Rao testified at his deposition that, in a holding cell following his arrest, Warmhold tried to
extort a $100,000 bribe from him, payable to the “police welfare society.” (Rao Dep. (Doc. No.
69-12) at 5.) In exchange, Warmhold would let Rao carry on his business “as [he] want[s].”
(Id.) When Rao refused “again and again,” Warmhold allegedly hit him in the face with the butt
of his gun and “smashed [Rao’s] head” into the wall. (Id. at 6.) The defendants deny that any
such exchange took place. Rao has undergone extensive dental surgery since the alleged assault,
and his dentist wrote that the dental problems are consistent with “severe facial trauma.” (Pl.’s
Ex. T (Doc. No. 69-20) at 1.)5 The Queens District Attorney’s Office declined to prosecute Rao,
and he was released prior to arraignment. (Defs’ 56.1 Statement ¶¶ 29–30.)
STANDARD OF REVIEW
Summary judgment is appropriate when the pleadings, depositions, interrogatories,
admissions, and affidavits demonstrate that there are no genuine issues of material fact in dispute
and that one party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986). A genuine issue of material fact exists “if the
evidence is such that a reasonable jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
In determining whether a genuine issue of material fact exists, the evidence of the nonmovant “is to be believed,” and the court must draw all “justifiable” or “reasonable” inferences
5
Rao has also brought an excessive force claim, which the defendants have not moved against.
5
in favor of the non-moving party. Id. at 255 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144,
158–59 (1970)); see also Brosseau v. Haugen, 543 U.S. 194, 195 n.2 (2004). Nevertheless, once
the moving party has shown that there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law, “the nonmoving party must come
forward with ‘specific facts showing that there is a genuine issue for trial,’” Matsushita Elec.
Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed. R. Civ. P. 56(e))
(emphasis in original), and “may not rely on conclusory allegations or unsubstantiated
speculation,” Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998) (citing cases). In other words,
the nonmovant must offer “concrete evidence from which a reasonable juror could return a
verdict in his favor.” Anderson, 477 U.S. at 256.
Where “the nonmoving party bears the burden of proof at trial, summary judgment is
warranted if the nonmovant fails to make a showing sufficient to establish the existence of an
element essential to [its] case.” Nebraska v. Wyoming, 507 U.S. 584, 590 (1993) (quoting
Celotex, 477 U.S. at 322) (internal quotation marks omitted). Thus, “[a] defendant moving for
summary judgment must prevail if the plaintiff fails to come forward with enough evidence to
create a genuine factual issue to be tried with respect to an element essential to its case.” Allen v.
Cuomo, 100 F.3d 253, 258 (2d Cir. 1996) (citing Anderson, 477 U.S. at 247–48).
DISCUSSION
I.
False Arrest
The elements of a Section 1983 claim for false arrest are “substantially the same” as
those of a “claim for false arrest under New York law.” Weyant v. Okst, 101 F.3d 845, 852 (2d
Cir. 1996), cert. denied, 528 U.S. 946 (1999). “Under New York state law, to prevail on a claim
of false arrest a plaintiff must show that ‘(1) the defendant intended to confine him, (2) the
6
plaintiff was conscious of the confinement, (3) the plaintiff did not consent to the confinement
and (4) the confinement was not otherwise privileged.’” Jocks v. Tavernier, 316 F.3d 128, 134–
35 (2d Cir. 2003) (quoting Broughton v. State, 37 N.Y.2d 451, 456 (N.Y.), cert. denied, 423 U.S.
929 (1975)). “Under New York law, the existence of probable cause is an absolute defense to a
false arrest claim.” Jaegly v. Couch, 439 F.3d 149, 152 (2d Cir. 2006).
Here, Rao brings a false arrest claim against Detective Warmhold and arresting officers
Cabrera and Gridley. The defendants argue that Warmhold had probable cause to arrest Rao
based on Kahn’s complaint that Rao defrauded her. (Defs.’ Mem. (Doc. No. 66) at 14–18.) Rao
argues that Kahn’s complaint alone was insufficient for probable cause; and even if the
complaint gave rise to probable cause, intervening facts in the subsequent six months vitiated
probable cause, including ADA Starling’s decision not to prosecute. (Opp’n (Doc. No. 68) at
12–23.) For the reasons stated below, Rao’s arguments are unavailing, and the officers had
probable cause to arrest Rao.
A. Probable Cause at the Time of Kahn’s Complaint
An officer has probable cause to arrest when he 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 or is committing a
crime.” Jocks, 316 F.3d at 135 (internal quotation marks omitted). Applying that standard here,
Warmhold had probable cause to arrest Rao for grand larceny in the fourth degree, as well as
other possible crimes. Under New York law, a person is guilty of grand larceny in the fourth
degree when “he steals property,” such as money, and “[t]he value of the property exceeds one
thousand dollars” or “the property, regardless of its nature and value, is obtained by extortion.”
7
N.Y.P.L § 155.30. In addition, there was probable cause to arrest Rao for a scheme to defraud in
the second degree, N.Y. Penal Law § 190.60.6
The Second Circuit has repeatedly held that “an arresting officer advised of a crime by a
person who claims to be the victim, and who has signed a complaint or information charging
someone with the crime, has probable cause to effect an arrest . . .” Singer v. Fulton Cty. Sheriff,
63 F.3d 110, 116 (2d Cir. 1995); Panetta v. Crowley, 460 F.3d 388, 395 (2d Cir. 2006). Here,
the complaining victim’s claims that Rao’s medicine made her feel dizzy or drunk, her
description of feeling intimidated, and the large sum of money involved, all indicated possible
criminal activity. The police corroborated much of Khan’s account by visiting Rao’s business
and the Chase Bank where she withdrew the $25,600. This was sufficient to create probable
cause.
B. Intervening Facts
The question then becomes whether there were any intervening facts between March 5,
when Khan went to the police, and September 25, when Rao was arrested, that vitiated probable
cause. Even when probable cause exists “at the time of arrest, evidence could later surface
which would eliminate probable cause.” Lowth v. Town of Cheektowaga, 82 F.3d 563, 571 (2d
Cir. 1996) (internal quotation marks omitted). Ultimately, the Court finds there were no such
intervening facts, but considers each possibility in turn.
A victim’s statements about an alleged crime give officers probable cause “absent
circumstances that raise doubts as to the victim’s veracity.” Singer, 63 F.3d at 119. The
“reliability or veracity” of the complaining victim is an important factor for the police to
6
“A person is guilty of a scheme to defraud in the second degree when he engages in a scheme constituting a
systematic ongoing course of conduct with intent to defraud more than one person or to obtain property from more
than one person by false or fraudulent pretenses, representations or promises, and so obtains property from one or
more of such persons.” N.Y.P.L § 190.60.
8
consider. Panetta, 460 F.3d at 395. “The failure to make a further inquiry when a reasonable
person would have done so may be evidence of a lack of probable cause.” Lowth, 82 F.3d at 571
(internal quotation marks omitted). There came a point during Warmhold’s investigation that he
may well have developed reason to doubt Khan’s reliability. Specifically, ADA Starling testified
at her deposition that she spoke with Warmhold and told him that she was hoping to receive
medical records that would substantiate Khan’s mental stability. (Defs.’ Ex. D at 12.)
Warmhold’s account of their conversation differs: he remembers Starling telling him that she
wanted financial records. (Defs.’ Ex. X at 6–7.) However, taking the record in the light most
favorable to Rao, Starling’s possible concerns about Khan’s mental stability should have given
Warmhold pause. Because the reliability of the complaining witness is an important factor,
Warmhold had a duty to investigate.
However, Warmhold had already corroborated Khan’s story by visiting Chase Bank and
interviewing Khan and one of Rao’s employees. In addition, the bank manager’s version lined
up with Khan’s account – Khan went to Chase with another woman and requested $25,600 to
pay for a medical bill.7 This investigation sufficiently substantiated Khan’s accusations to give
rise to probable cause.
Rao also suggests that a letter he sent to Warmhold in April vitiated probable cause.
(Rao Ltr. (Doc. No. 69-21) at 1–2.) The letter explains that Kahn told him that her daughter
Mubiha wants the money for herself and that her husband wants to spend any reimbursement on
7
It is perhaps odd that Warmhold instructed Riso not to arrest Rao when Riso was at Rao’s home. This delay in
effectuating Rao’s arrest could evidence Warmhold’s skepticism about Khan’s reliability. See, e.g., Jovanovic v.
City of New York, No. 04-CV-8437 (PAC), 2006 U.S. Dist. LEXIS 59165, at *20 (S.D.N.Y. Aug. 17, 2006) (a nineday delay in arresting the suspect contributed to the court’s determination that probable cause did not exist because,
in light of the victim’s graphic and violent account, a reasonable officer would not have waited nine days to arrest).
Nothing else in the record indicates that Warmhold doubted Khan’s story, however, and instead the record appears
to corroborate much of her account. Accordingly, the delay in arresting Rao does not by itself vitiate probable
cause.
9
his six children from his first wife. (Id.) As a result, “all family members” were forcing Khan to
“make false complaints” against Rao so that they could get a refund from him while Khan
continues to use a “large quantity of purchased Merchandise.” (Id.)
This letter, without more, amounts to a suspect’s denial to an investigating officer that he
is guilty. “Generally, a suspect’s denials are insufficient to obviate probable cause.” Weiner v.
McKeefery, 90 F. Supp. 3d 17, 31 (E.D.N.Y. 2015) (internal citations and quotation marks
omitted). That is, “an officer’s failure to investigate an arrestee’s protestations of innocence
generally does not vitiate probable cause.” Panetta, 460 F.3d at 395–96 (internal quotation
marks omitted); accord Curley v. Village of Suffern, 268 F.3d 65, 70 (2d Cir. 2001). (“[T]he
arresting officer does not have to prove the plaintiff’s version wrong before arresting him. Nor
does it matter that an investigation might have cast doubt upon the basis for the arrest.”).8 Thus,
Rao’s letter to Warmhold did not undermine probable cause to arrest Rao based on Kahn’s
victim complaint.9
Rao’s final theory is that ADA Starling’s decision not to prosecute Rao prior to his arrest
vitiated any probable cause to arrest. (Opp’n at 18–19.) Starling told Warmhold in July that she
no longer intended to prosecute the case, and yet, Rao was arrested at the end of September.
Nevertheless, a prosecutor’s determination not to file an indictment, even if made prior to an
arrest, does not eliminate probable cause. The existence of probable cause turns on whether
8
To the extent that Rao wishes to admit the letter for the truth of Mubiha’s statements, those statements are
inadmissible hearsay. See Fed. R. Evid. 801, 803; Presbyterian Church of Sudan v. Talisman Energy, Inc., 582 F.3d
244, 264 (2d Cir. 2009) (“[O]nly admissible evidence need be considered by the trial court in ruling on a motion for
summary judgment.”).
9
Rao also asserts two inconsistencies based on the differences between statements that Kahn made to Detective
Warmhold and that she made to her daughter, Mubiha. However, statements that Kahn made to Mubiha about
which Detective Warmhold was unaware cannot have any effect on the probable cause determination based on what
Detective Warmhold knew at the time of arrest.
10
there is sufficient evidence that a crime has been committed; the likelihood of proving guilt
beyond a reasonable doubt is not relevant. See Walczyk v. Rio, 496 F.3d 139, 156 (2d Cir. 2007)
(Probable cause “requires only such facts as make wrongdoing or the discovery of evidence
thereof probable.”). An “officer’s awareness of facts supporting a defense” – self-defense, for
instance – “can eliminate probable cause” because the facts eliminate the presence of a crime.
Jocks, 316 F.3d at 135. An ADA’s decision not to prosecute, by contrast, does not eliminate the
presence of a crime, but rather indicates that she may need additional evidence to convince a jury
beyond a reasonable doubt. See Quinn v. City of New York, No. 99-CV-7068 (JBW), 2003 WL
1090205 at *4 (E.D.N.Y. Mar. 12, 2003) (“The District Attorney’s failure to prosecute furnishes
no support to plaintiff’s claim of false arrest. The validity of an arrest does not depend on a
finding of innocence or any other disposition.”); see also Bini v. City of Vancouver, No. 16-CV5460 (BHS), 2017 U.S. Dist. LEXIS 77680, at *19–20 (W.D. Wash. May 22, 2017) (holding that
an officer’s decision not to withdraw an investigation card to arrest after learning that the
“prosecutor would not pursue the case” without additional witnesses had no bearing on the
court’s probable cause inquiry).10
Nothing in the record indicates that Starling declined to prosecute because she had
concerns about probable cause. In her conversations with Warmhold, she suggested that she
would not prosecute because she did not have enough evidence to prove Rao’s guilt beyond a
reasonable doubt. In her deposition testimony, she clarified that “there was probable cause for
an arrest, based on the complaint of Mrs. Khan. However, we were developing this case as we
10
The defendants cite to an out-of-circuit case, which notes that the mere fact that “the City prosecutor declines to
prosecute the homeless for public intoxication does not divest the City police of the authority to arrest individuals
whom they have probable cause to suspect have violated the law.” Church v. City of Huntsville, 30 F.3d 1332, 1346
n.8 (11th Cir. 1994). The opinion suggests that the City did not enforce certain public intoxication crimes. This
case presents a somewhat different context, but helps lend support to the notion that probable cause determinations
are independent of any decision to prosecute.
11
like to do in our investigative division, so that we knew that we could also prove beyond a
reasonable doubt.” (Defs.’ Ex. D. at 12.) Accordingly, there was probable cause to arrest Rao.
C. Collective Knowledge
Under the “collective knowledge” doctrine, or the “fellow officer” rule, Cabrera and
Gridley were entitled to rely on an I-card as providing probable cause for Rao’s arrest at the
airport. On the basis of Kahn’s corroborated victim complaint, Warmhold activated an I-card for
Rao’s arrest.11 The collective knowledge doctrine provides that “arresting officers do not need to
independently determine that probable cause exists as long as the officer ordering the arrest
possesses sufficient probable cause to direct it.” Watkins v. Ruscitto, No. 14-CV-7504 (AJP),
2016 U.S. Dist. LEXIS 89499, at *15 (S.D.N.Y. July 11, 2016); see also United States v. Colon,
250 F.3d 130, 135 (2d Cir. 2001) (“Under the collective or imputed knowledge doctrine, an
arrest or search is permissible where the actual arresting or searching officer lacks the specific
information to form the basis for probable cause or reasonable suspicion but sufficient
information to justify the arrest or search was known by other law enforcement officials
initiating or involved with the investigation.”).
Kahn’s corroborated victim complaint provided Warmhold with probable cause to arrest
Rao. The I-card specified that Rao was wanted as a suspect, and that there was probable cause to
arrest. (Defs.’ Ex. E at 16.) It was appropriate for Cabrera and Gridley to rely on this active Icard. See Watkins, 2016 WL 3748498, at *6 (granting summary judgment on a false arrest
claim where an officer with knowledge sufficient to support probable cause activated an I-card,
11
Rao highlights that the I-card was activated in April 2013, but the arrest was not effectuated until September 2013.
“While probable cause could dissipate if the groundless nature of the charge [were] made apparent by the discovery
of some intervening fact,” here, as noted above, “there is no evidence in the record to support an inference that the
defendant-officers had any intervening facts at their disposal.” Wieder v. City of New York, 569 F. App’x 28, 29 (2d
Cir. 2014) (internal quotation marks and citations omitted).
12
and other officers relied on that I-card in effectuating an arrest). Moreover, Warmhold, who had
probable cause to arrest, specifically instructed Cabrera and Gridley to go arrest Rao. (Pl.’s Ex.
F at 7.) Because probable cause is a complete defense to a false arrest claim, the defendants’
motion for summary judgment as to Rao’s claim for false arrest against Warmhold, Cabrera, and
Gridley is granted. Jaegly, 439 F.3d at 152; Johnson v. City of New York, No. 15-CV-1625
(SMG), 2017 U.S. Dist. LEXIS 62042 (E.D.N.Y. Apr. 24, 2017) (finding that (1) an officer had
probable cause to arrest based on a victim complaint; (2) probable cause did not dissipate when,
as here, the officer closed the case “C-12” but kept an I-card active; and (3) the arresting officers
were entitled to rely on an I-card indicating probable cause to arrest based on the collective
knowledge doctrine).
For the same reasons, the defendants are entitled to summary judgment on Rao’s state
law claims for false arrest and false imprisonment. See, e.g., Zanghi v. Inc. Vill. of Old
Brookville, 752 F.2d 42, 45 (2d Cir. 1985) (“It is abundantly clear that a finding of probable
cause will defeat state tort claims for false arrest [and] false imprisonment . . .”).
D. Qualified Immunity
Even if the sum of these circumstances – questions about Khan’s reliability, Rao’s letter
about Khan’s false allegations, Starling’s decision not to prosecute, and the delay in Rao’s arrest
– vitiated probable cause, the defendants had “arguable probable cause.” They therefore are
entitled to qualified immunity, which shields government defendants if their “action was
objectively legally reasonable in light of the legal rules that were clearly established at the time it
was taken.” Taravella v. Town of Wolcott, 599 F.3d 129, 133 (2d Cir. 2010) (internal quotation
marks omitted). In the context of a false arrest claim, an officer is entitled to qualified immunity
if he had at least “arguable probable cause.” Dufort v. City of New York, 874 F.3d 338, 354 (2d
13
Cir. 2017) (internal quotation marks omitted). Arguable probable cause exists when “officers of
reasonable competence could disagree on whether the probable cause test was met.” Id. (internal
quotation marks omitted).
Warmhold attempted to corroborate Khan’s story by visiting the Chase Bank where she
withdrew $25,600, interviewing one of Rao’s employees, and sending another officer to
interview Rao at his home. Even if Warmhold should have done more to investigate the
circumstances surrounding Khan’s payment to Rao, the work he undertook certainly gave him
arguable probable cause. This entitles Warmhold, and, by extension, Cabrera and Gridley, to
qualified immunity, and summary judgment is therefore appropriate. Similarly, under the New
York common-law equivalent of qualified immunity, summary judgment on the defendants’ state
law claims is appropriate. See Jenkins v. City of New York, 478 F.3d 76, 86 (2d Cir. 2007).
Accordingly, the defendants’ motion for summary judgment on Rao’s state and federal
false arrest claim, as well as his state false imprisonment claim, is granted.
II.
Malicious Abuse of Process12
The focus of Rao’s abuse of process claim is that he was arrested so that Warmhold could
extort a bribe from Rao. (Opp’n at 25.) The sum of Rao’s allegations is that while he was under
arrest, Warmhold pressured him to pay $100,000 and, in exchange, would allow Rao “to do [his]
business as [he] wants.” (Rao Dep. at 5.) The defendants argue that Rao has failed to state a
claim of abuse of process, and that probable cause to arrest is dispositive with respect to Rao’s
abuse of process claim. (Defs.’ Mem. at 19.) For the reasons stated below, the Court grants
summary judgment on this claim as to Cabrera and Gridley, but denies it as to Warmhold.
12
In Cook v. Sheldon, the Second Circuit held that Section 1983 liability “may lie for malicious abuse of criminal
process” as a violation of the Due Process Clause of the Fourteenth Amendment. 41 F.3d 73, 80 (2d Cir. 1994).
14
New York law recognizes an abuse of process claim against a defendant who “(1)
employs regularly issued legal process to compel performance or forbearance of some act (2)
with intent to do harm without excuse or justification, and (3) in order to obtain a collateral
objective that is outside the legitimate ends of the process.” Savino v. City of New York, 331
F.3d 63, 76 (2d Cir. 2003) (internal quotation marks omitted). “The crux of a malicious abuse of
process claim is the collateral objective element.” Kraft v. City of New York, 696 F. Supp. 2d
403, 416 (S.D.N.Y. 2010). To survive a motion for summary judgment in this case, the Court
must find that, taking the record in the light most favorable to Rao, the facts suggest that the
defendants misused process for an improper purpose.
There is an initial question of whether the Court can even consider Rao’s allegations of
extortion. The defendants urge the Court to ignore the accusations, arguing that “nothing in the
record” supports Rao’s claim and that no facts “substantiate this self-serving statement.” (Defs.’
Mem. at 20.) The defendants cite D’Amico v. City of New York for the proposition that Rao
“may not rely on merely conclusory allegations nor speculation. . .” 132 F.3d 145, 149 (2d Cir.
1998). Rao’s allegation that Warmhold pressured him to make a $100,000 payment, however, is
neither conclusory nor speculative because it is contained in sworn testimony and would be
admissible at trial. See Fed. R. Evid. 801(d)(2). Whether Warmhold said what Rao claims he
said raises “a question of ‘he said, she said,’ on which the court cannot . . . take a side at the
summary judgment stage.” Fincher v. Depository Trust & Clearing Corp., 604 F.3d 712, 726
(2d Cir. 2010); Fischl v. Armitage, 128 F.3d 50, 55 (2d Cir. 1997) (“[C]redibility assessments,
choices between conflicting versions of the events, and the weighing of evidence are matters for
the jury, not for the court on a motion for summary judgment.”).
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A. Legal Process
An arrest may constitute legal process for the purposes of a malicious abuse of process
claim. The Second Circuit has described the tort as limited to abuses of legal proceedings and
“court issued” process. See, e.g., Weiss v. Hunna, 312 F.2d 711, 716 (2d Cir. 1963); Cook v.
Sheldon, 41 F.3d 73, 80 (2d Cir. 1994) (citing Mormon v. Baran, 35 N.Y.S.2d 906, 909 (Sup. Ct.
1942) for the proposition that legal process means that a court issued the process). Courts have
construed this definition broadly, however, and have read “court-issued process” to include
arraignments, summonses, and, notably, arrests. See, e.g., TADCO Constr. Corp. v. Dormitory
Auth. of N.Y., 700 F. Supp. 2d 253, 272 (E.D.N.Y. 2010) (arrest constitutes legal process for the
purposes of a malicious abuse of process claim); Widget v. Town of Poughkeepsie, No. 12-CV3459 (ER), 2013 U.S. Dist. LEXIS 37138, at *24 (S.D.N.Y. Mar. 18, 2013) (same); Crockett v.
City of N.Y., No. 11-CV-4378 (PKC), 2015 WL 5719737, at *10 (E.D.N.Y. Sept. 29, 2015)
(same); Pinter v. City of New York, 976 F. Supp. 2d 539, 569 (S.D.N.Y. 2013) (same); Goldring
v. Zumo, No. 14-CV-4861 (BMC), 2015 WL 148451, at *3 (E.D.N.Y. Jan. 12, 2015).
In Crockett, for instance, the plaintiff alleged that the defendants had arrested him in
order to “conceal their own misconduct” and “escape disciplinary charges and potential loss of
employment.” 2015 WL 5719737, at *11. The court found that the arrest was legal process and
concluded that a jury could find in the plaintiff’s favor. Here too, the Court finds that Rao’s
arrest, “if executed by the [defendants] for a collateral objective outside the legitimate ends of
the process, satisfies the first element of an abuse of process claim.” Id. at *10 (internal
quotation marks omitted). As Rao alleges, Warmhold sought to extort Rao by issuing process –
the arrest. Cf. Widget, 2013 U.S. Dist. LEXIS 37138, at *24 (“While arrest may constitute
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regularly issued process subject to abuse, Plaintiff does not allege that Defendants tried to
compel or prevent any act by issuing process.”).
B. Improper Purpose
The question remains, then, whether Rao was arrested for an improper purpose – that is,
with an intent to do harm and with a collateral purpose. The case law distinguishes between a
malicious motive and an improper purpose. The former, by itself, is insufficient to state a claim
of abuse of process; the plaintiff must also allege that the defendant acted primarily to achieve an
improper objective. See, e.g., Savino, 331 F.3d at 77. Plaintiffs must claim that the defendants
“aimed to achieve a collateral purpose beyond or in addition to” the arrest. Id. Courts have
permitted abuse of process claims to go forward where, for example, the defendant allegedly
arranged for the plaintiff to be arrested for trespassing in order to influence a separate contract
dispute. TADCO Constr. Corp., 700 F. Supp. 2d at 272. Similarly, allegations that a defendant
manufactured false assault charges in an attempt to save his job satisfied the collateral objective
requirement because “safeguarding one’s own employment lies outside the legitimate goal of
criminal process.” Hernandez v. Wells, No. 01-CV-4376 (MBM), 2003 WL 22771982, at *8–9
(S.D.N.Y. Nov. 24, 2003). By contrast, arresting someone as retaliation reveals a malicious
motive, but does not by itself reflect “a collateral purpose beyond or in addition to . . . criminal
prosecution.” Savino, 331 F.3d at 77. In short, a malicious abuse of process claim requires “an
ulterior purpose such as the infliction of economic harm, extortion, blackmail, or retribution.”
Hoyos v. City of New York, 999 F. Supp. 2d 375, 391 (E.D.N.Y. 2013).
Here, a jury could credit Rao’s allegation that Warmhold effected Rao’s arrest in order to
extort a bribe from him. At his deposition, Rao testified that, at the station following his arrest,
Warmhold suggested that he and Rao “talk business,” and that Warmhold pressured Rao to make
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a $100,000 payment to the “police welfare society.” (Rao Dep. at 5.) In exchange, Warmhold
offered to allow Rao to “do your business as you want.” (Id.) When he refused to pay,
Warmhold hit him in the face with the butt of his gun. (Id. at 6.) By its terms, this is precisely
the type of harm that an abuse of process claim is meant to remedy.
In addition, Warmhold taunted Rao, asking him “Where is your DA now, where is your
attorney now,” and then informed him that “We don’t work for anybody. We don’t work for
[the] DA or anybody.” (Rao Dep. at 5.) This too lends some support to the notion that
Warmhold arrested Rao not as part of his joint, legitimate investigation with the District
Attorney’s Office into Khan’s complaint, but to accomplish a malicious objective. Of course,
the defendants dispute that any of this happened. But this material dispute of fact precludes the
grant of summary judgment.
C. Probable Cause
The defendants argue that Rao’s abuse of process claim fails because probable cause is a
defense. (Defs.’ Mem. at 19.) They point out that to state a claim, the plaintiff must show that
the defendant has acted with an “intent to do harm without excuse or justification.” (Id., quoting
Savino, 331 F.3d at 76.) Some district courts have interpreted this element to mean that probable
cause – a type of legal justification – is a defense to a malicious abuse of process claim. See,
e.g., Sforza v. City of New York, No. 07-CV-6122 (DLC), 2009 WL 857496, at *17 (S.D.N.Y.
Mar. 31, 2009); Pinter, 976 F. Supp. 2d at 570; Widget, 2013 U.S. Dist. LEXIS at *25; Almonte
v. City of New York, No. 03-CV-5078 (ARR), 2005 WL 1229739, at *5 (E.D.N.Y. 2005);
Granato v. City of New York, No. 98-CV-667, 1999 WL 1129611, at *7 (E.D.N.Y. Oct. 18,
1999); Hickey v. City of New York, No. 01-CV-6506 (GEL), 2004 WL 2724079, at *6 (S.D.N.Y.
Nov. 29, 2004).
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Other district courts have concluded the opposite. See, e.g., Ying Li v. City of New York,
246 F. Supp. 3d 578, 618 (E.D.N.Y. 2017) (“The Second Circuit has long recognized that
probable cause is not a complete defense to malicious abuse of process.”); TADCO Constr.
Corp., 700 F. Supp. 2d. at 272; Goldring v. Zumo, No. 14-CV-4861, 2015 WL 148451, at *5
(E.D.N.Y. Jan. 12, 2015); Mangino v. Inc. Vill. of Patchogue, 814 F. Supp. 2d 242, 247
(E.D.N.Y. 2011). The Second Circuit has recently acknowledged this disagreement in the
district courts, but declined to resolve it.13 Mangino v. Inc. Vill. of Patchogue, 808 F.3d 951, 959
(2d Cir. 2015). For several reasons, the Court agrees with those opinions that hold that probable
cause is not a defense.
First, there is clear, albeit fairly old, Second Circuit case law that explicitly rejects the
notion that probable cause defeats an abuse of process claim. See, e.g., Lodges 743 and 11746,
Int’l Ass’n of Machinists & Aerospace Workers, AFL-CIO v. United Aircraft Corp., 534 F.2d
422, 465 n.85 (2d Cir. 1975) (“Abuse of process . . . does not depend upon whether or not the
action was brought without probable cause.”); Weiss, 312 F.2d at 717 (the “gist of the tort of
abuse of process” is the “misusing or misapplying process justified in itself for an end other than
that which it was designed to accomplish.”).
Moreover, many of the district courts that have held that probable cause is a defense have
done so because the plaintiff argued the court should infer malice or intent to harm from a lack of
probable cause. On those facts, once the court finds probable cause, there is no evidence of an
13
In Mangino, the Second Circuit offered some insight regarding the confusion surrounding the role of probable
cause in an abuse of process claim. Mangino, 808 F.3d at 19–20 n.8. Namely, New York state courts have
explained that plaintiffs are required to show that the defendant acted with intent to do harm without “economic or
social excuse or justification.” Bd. of Educ. v. Farmingdale Classroom Teachers Assoc., 38 N.Y.2d 397, 403
(1975). The Second Circuit has on occasion echoed the instruction that the excuse or justification be social or
economic, but, in other cases, it has referred merely to “excuse or justification” and has dropped the additional
descriptors. See, e.g., Cook, 41 F.3d at 80.
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improper collateral purpose, and, accordingly, the claim fails. See Mangino, 814 F. Supp. 2d at
251 (collecting cases). But even in those cases, probable cause is not an absolute defense to an
abuse of process claim. Instead, it functions as a defense when the only evidence of an improper
purpose is the alleged lack of probable cause, and the court finds that there was, in fact, probable
cause. See id. at 249 (“If plaintiff can demonstrate the elements of abuse of process – including
intent to harm and a collateral objective – without relying on any inference from a lack of
probable cause, then such a claim can survive even with probable cause.”).
Here, though Rao argues that the Court should infer malice from a lack of probable
cause, his argument does not rest on the absence of probable cause alone. Instead, he
emphasizes that Warmhold knew Starling did not intend to prosecute Rao prior to Rao’s arrest
and points to the extortion allegations as substantive evidence from which a jury could infer that
the defendants arrested him only to extort money from him. (Opp’n at 25.) Even though the
defendants had probable cause to arrest Rao, this is not fatal to the malicious abuse of process
claim.
Rao has provided no evidence, however, that arresting officers Cabrera and Gridley had
any improper objective in effectuating his arrest. Nothing in the record indicates that Cabrera
and Gridley arrested Rao for any collateral purpose, and Rao has not indicated that they were
present for or involved in Warmhold’s attempts to extort him. See Iqbal, 556 U.S. 662, 677
(2009) (“Absent vicarious liability, each Government official . . . is only liable for his or her own
misconduct.”); accord Raspardo v. Carlone, 770 F.3d 97, 116 (2d Cir. 2014). Accordingly, Rao
does not have a viable abuse of process claim against Cabrera and Gridley.
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D. Qualified Immunity
Is someone who is alleged to have solicited a bribe entitled to qualified immunity? The
question nearly answers itself. Qualified immunity protects government actors from liability for
civil damages by giving “officials breathing room to make reasonable but mistaken judgments
about open legal questions.” Ziglar v. Abbasi, 137 S. Ct. 1843, 1866 (2017) (internal quotation
marks omitted). It shields “all but the plainly incompetent and those who knowingly violate the
law.” Rodriguez v. City of New York, 72 F.3d 1051, 1065 (2d Cir. 1995) (quoting Malley v.
Briggs, 475 U.S. 335, 341 (1986)). No objectively reasonable officer would have thought that
extorting a bribe was justified under these circumstances – or any circumstances. As a result,
qualified immunity does not protect Warmhold from liability in this case. See, e.g., Tellier v.
Fields, 280 F.3d 69, 85 (2d Cir. 2000) (finding that keeping an inmate in solitary confinement for
514 days without affording him any of the procedural protections outlined in 28 U.S.C. § 541.22
was a knowing violation of the law, and therefore defendants were not entitled to qualified
immunity); Dufort, 974 F.3d at 354 (finding that qualified immunity is inappropriate where the
defendant is alleged to have placed the plaintiff in a defective lineup, extracted an identification,
and then withheld the suspect nature of the identification from prosecutors and the grand jury
because such “knowing” violations of the plaintiff’s constitutional rights would “be enough to
overcome the protection of qualified immunity” if proven at trial).
The Second Circuit’s decision in Mangino does not displace this conclusion, as the
defendants urge the Court to find. 808 F.3d at 959. In Mangino, the plaintiff received
summonses for failure to obtain a rental permit and then challenged the summonses in court.
While his case was pending, the Village prosecutor allegedly told the plaintiff that he “would be
hit with a barrage of summonses” if he did not settle the litigation. Id. at 953. The court
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acknowledged the “confusion” among the district courts about whether probable cause
constitutes a defense to an abuse of process claim, and found that the “very existence” of this
confusion entitled the defendant to qualified immunity. Id. at 959. The court concluded that, in
light of the probable cause to issue the summonses in the first place, a reasonable officer, and
even reasonable judges, could have thought that issuing the additional tickets was lawful.
This case is quite different. Unlike the issuance of additional summonses in Mangino,
the “unlawfulness” of Warmhold’s alleged bribe is “apparent.” Connell v. Signoracci, 153 F.3d
74, 80 (2d Cir. 1998). Every reasonable officer knows that he cannot use an arrest as a vehicle
for extortion. The open legal question about whether and when probable cause is a defense to an
abuse of process claim does not change the fact that the unlawfulness of soliciting a bribe is
apparent. Qualified immunity does not protect those who “knowingly violate the law,” and,
therefore, Warmhold is not entitled to qualified immunity on Rao’s abuse of process claim.
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CONCLUSION
For the reasons stated above, the defendants’ motion for partial summary judgment (Doc.
No. 64) is granted in part and denied in part. Rao’s false arrest claim as to all defendants is
dismissed. Rao’s remaining claims are: (1) abuse of process as to defendant Warmhold only;
(2) excessive force, assault and battery and failure to intervene against defendants Warmhold,
Gridley and Cabrera. This case is recommitted to Magistrate Judge Bloom for all pre-trial
proceedings.
SO ORDERED.
Dated: Brooklyn, New York
March 29, 2018
Roslynn R. Mauskopf
____________________________________
ROSLYNN R. MAUSKOPF
United States District Judge
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