Brown v. Russo
MEMORNADUM DECISION AND ORDER dated 12/21/16 granting defendant's 37 Motion for Summary Judgment. The Court certifies pursuant to 28:1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore in forma pauperis status is denied for purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). ( Ordered by Judge Brian M. Cogan on 12/21/2016 ) c/m *forwarded for jgm. (Guzzi, Roseann)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------------------------------LESLIE E. BROWN,
- against DETECTIVE JOHN RUSSO, Tax Reg.
DECISION AND ORDER
15 Civ. 6215 (BMC) (LB)
COGAN, District Judge.
Plaintiff is a serial pro se litigant who brings this action for false arrest and related claims
pursuant to 42 U.S.C. § 1983. It may be a case of mistaken identity, in that if plaintiff did not
commit the crime that the detective was investigating, video evidence of the crime showed that
he looked an awful lot like the person who did. Plaintiff also lived right near the scene of the
crime, and an uninvolved officer who had arrested him for a prior crime also recognized him in
the video. Based on this evidence, plaintiff was not only arrested, but a Grand Jury indicted him.
I find that there was either probable cause for his arrest, or that, at the very least, this suit against
the arresting officer cannot be maintained on the ground of qualified immunity. Therefore,
defendant’s motion for summary judgment is granted.
The facts are taken from defendant’s Local Rule 56.1 statement, as plaintiff has not filed
an opposing statement. See Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d Cir.
2006) (finding “that pro se status does not exempt a party from compliance with relevant rules of
procedural and substantive law” (internal quotation marks omitted)); Wali v. One Source Co.,
678 F. Supp. 2d 170, 178 (S.D.N.Y. 2009) ("Pro se litigants are then not excused from meeting
the requirements of Local Rule 56.1."). Further, my review of the record shows that there were
no contradictions between defendant’s statement and the evidence defendant submitted in
support. See, e.g., Smith v. City of New York, No. 12-CV-4892, 2014 WL 5324323, at *1 n.1
(S.D.N.Y. Oct. 20, 2014). Moreover, I reviewed the documentary evidence that plaintiff
attached to his opposition, and none of the submissions contradict defendant’s 56.1 statement;
rather, the evidence supports defendant’s statement, as well. 1
According to the undisputed facts, an individual named Samara Williams came home one
evening to find her apartment in Queens had been robbed. Defendant Detective Russo
interviewed her the same day and learned that her front window screen had been ripped open,
making it the likely point of entry, and that the burglar had taken a television set and a gold
watch. Det. Russo then interviewed the landlord, who gave Det. Russo video footage clearly
showing the crime and the perpetrator (he is seen entering and then leaving the building carrying
a television set), which is part of my record. The perpetrator as shown in the video is a tall, bald,
clean shaven, dark-skinned, African-American male.
Four days later, Det. Russo observed plaintiff a block away from the scene of the
burglary. Plaintiff is 6’4” tall, 200 lbs., and is a dark-skinned, clean shaven, bald, AfricanAmerican male. Det. Russo approached him and spoke to him for about 15 minutes. Plaintiff
I did not consider, however, the self-serving statements that plaintiff made in his opposition that contradict his
sworn deposition testimony. See, e.g., Brown v. Henderson, 257 F.3d 246, 252 (2d Cir. 2001); Crawford v. N.Y.
Life Ins. Co., No. 04 CV 1853, 2006 WL 2792779, at *5 (E.D.N.Y. Sept. 27, 2006) (rejecting pro se plaintiff’s
affidavit as “self-serving and contradicted by her previous deposition testimony”). For example, in his opposition,
plaintiff alleges that Detective Russo confiscated his identification, that he stalked plaintiff, and that he stopped and
frisked plaintiff; however, those allegations were not shared during his deposition. In fact, in his deposition, he
testified that Det. Russo “demanded” his identification and then returned it and talked to him for 15 minutes.
Although plaintiff testified that Det. Russo was “intimidating” several times, he never once mentioned a stop-andfrisk or stalking when asked about further interactions with Det. Russo. More than that, Det. Russo’s interactions
with plaintiff on a day when he did not arrest plaintiff, when Det. Russo was merely investigating, does not give rise
to any material factual disputes as they relate to the determination that there was probable cause to arrest plaintiff,
which came ten days later.
showed or gave Det. Russo identification and told Det. Russo that he resided at an address that
After speaking with plaintiff, Det. Russo returned to his precinct and ran plaintiff’s arrest
history, learning that plaintiff had been previously arrested by one Officer Gargano. He showed
Officer Gargano still frames from the video of the burglary and asked him if the individual in the
stills looked like plaintiff. Officer Gargano confirmed that plaintiff did indeed look like the
individual depicted in the stills. Det. Russo arrested plaintiff for the burglary about ten days
later. A Grand Jury indicted plaintiff for the burglary less than a week after that.
Sometime later, between several weeks to two months after that (the record is unclear),
Det. Russo advised the assistant district attorney (“ADA”) who was prosecuting plaintiff that he
had arrested another individual named Shahim Ivery for a burglary at another location, far from
the Williams burglary. However, Ivery, like plaintiff, also lived near Williams. Det. Russo
thought that Ivery also looked like the perpetrator depicted in the video, and he so advised the
ADA. The ADA concluded, in a memo to his superiors that plaintiff attached to his opposition,
that “[t]heir likeness in their similarity is striking and when comparing the mug shots to the video
surveillance it is difficult to say who may be in the video.” The ADA noted that plaintiff had
passed a polygraph, and he therefore recommended dismissal, which occurred at the next court
appearance, about three and one half months after plaintiff’s arrest.
In reviewing a motion for summary judgment, the court is to “constru[e] all evidence in
the light most favorable to the non-moving party.” Ruggiero v. Cty. of Orange, 467 F.3d 170,
173 (2d Cir. 2006). The motion should be granted “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). A dispute is not “genuine” if no reasonable jury “could return a verdict for the
nonmoving party.” Nabisco, Inc. v. Warner-Lambert Co., 220 F.3d 43, 45 (2d Cir. 2000)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510 (1986)).
Under New York law, a plaintiff claiming false arrest must establish that (1) the
defendant intended to confine him; (2) the plaintiff was conscious of the confinement; (3) the
plaintiff did not consent to the confinement; and (4) the confinement was not otherwise
privileged. See Ackerson v. City of White Plains, 702 F.3d 15, 19 (2d Cir. 2012) (quoting
Broughton v. New York, 373 N.Y.S.2d 87, 335 N.E.2d 310, 314 (1975)). A § 1983 claim for
false arrest requires “substantially the same” test. Id. 2 There is no dispute that Det. Russo
intended to confine plaintiff, that plaintiff was conscious of the confinement, and that plaintiff
did not consent to the confinement. Therefore, the legal issue is whether plaintiff’s arrest was
The test for whether an arrest is privileged is straightforward: An arrest is privileged if it
is supported by probable cause. See Covington v. City of New York, 171 F.3d 117, 122 (2d Cir.
1999) (holding that “probable cause to arrest constitutes justification and is a complete defense to
an action for false arrest”) (citing Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996)).
“[P]robable cause to arrest exists when the officers have 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.”
Gonzalez v. City of Schenectady, 728 F.3d 149, 155 (2d Cir. 2013). The test is an objective one;
an officer’s subjective belief at the time of the arrest is irrelevant. Martinez v. Simonetti, 202
F.3d 625, 633 (2d Cir. 2000). Even when probable cause is based on mistaken information,
Plaintiff initially asserted claims for false arrest and false imprisonment separately, but he does not dispute that the
claims can be treated interchangeably. See, e.g., Gaston v. City of New York, 851 F. Supp. 2d 780, 786 (S.D.N.Y.
2012) (“[F]alse arrest is considered a kind of false imprisonment, and the claims are analyzed in identical fashion.”).
probable cause can still exist so long as the arresting officer acted reasonably and in good faith in
relying on the information. Bernard v. United States, 25 F.3d 98, 102 (2d Cir. 1994).
At one level, is it tempting to find a factual issue and let a jury determine whether Det.
Russo acted reasonably in concluding that plaintiff was the person depicted in the video.
However, having reviewed the video and plaintiff’s arrest photographs, I see no way that I could
allow a verdict in plaintiff’s favor to stand because no reasonable jury could find that Det. Russo
acted unreasonably in reaching his conclusion because, as the ADA concluded, the appearance of
plaintiff and the perpetrator are strikingly similar. It must be remembered that this is not a case
of Det. Russo arresting plaintiff merely on the basis that he matched a narrative description of
the burglar given by a victim, as is often the case. See Dancy v. McGinley, No. 15-140-CV(L),
2016 WL 7118403, at *10 (2d Cir. Dec. 7, 2016). Here, instead, Det. Russo had a video of the
burglary, and he saw plaintiff face-to-face.
Moreover, he obtained the concurrence of Officer Gargano, who also had interacted with
plaintiff personally from having previously arrested him and who also saw still frames from the
video. Further, plaintiff lived very near to where the burglary occurred. The combination of
plaintiff’s striking similarity to the person in the video, his residential proximity to the burglary
location, his prior arrest record, and the fact that an uninvolved police officer who had arrested
him previously also thought he was depicted in the video was sufficient reason for Det. Russo to
believe that he had identified the individual who committed the burglary.
This is further confirmed by the Grand Jury’s indictment of plaintiff. It is axiomatic that
indictment by a Grand Jury creates a presumption of probable cause, see, e.g., Savino v. City of
New York, 331 F.3d 63, 68 (2d Cir. 2003), and plaintiff has offered no facts to rebut that
Finally, as to the false arrest claim, even if there were no probable cause, Det. Russo is
entitled to qualified immunity. “An officer is entitled to qualified immunity against a suit for
false arrest if he can establish that he had ‘arguable probable cause’ to arrest the plaintiff,” which
is the case “if either (a) it was objectively reasonable for the officer to believe that probable
cause existed, or (b) officers of reasonable competence could disagree on whether the probable
cause test was met.” Garcia v. Does, 779 F.3d 84, 92 (2d Cir. 2015).
The qualified immunity doctrine “provides a broad shield.” Zalaski v. City of Hartford,
723 F.3d 382, 389 (2d Cir. 2013). It gives an arresting officer “breathing room to make
reasonable but mistaken judgments” without fear of liability. Id. (quoting Messerschmidt v.
Millender, 132 S. Ct. 1235, 1244 (2012)). Qualified immunity is “a deliberately forgiving
standard of review that provides ample protection to all but the plainly incompetent or those who
knowingly violate the law.” Id. (internal quotations and citation omitted). Qualified immunity is
available if an officer’s conduct “does not violate clearly established constitutional rights of
which a reasonable person would have been aware.” Id. at 388 (citing Ashcroft v. al-Kidd, 563
U.S. 731, 735, 131 S. Ct. 2074, 2080 (2011)).
Here, plaintiff’s physical similarity to the person in the video is so striking that if it is not
him, it is clear that Det. Russo made nothing more than an understandable mistake. This is
further confirmed by (a) Det. Russo’s decision not to arrest plaintiff based solely on the video,
but to investigate his background and, on learning of his prior arrest, to obtain the opinion of
Officer Gargano as to whether it was plaintiff who was depicted in the video; and (b) the fact that
it was Det. Russo who called the arrest of Ivery to the ADA’s attention. These steps confirm that
Det. Russo was acting reasonably and is therefore entitled to qualified immunity.
Regarding plaintiff’s myriad other claims, his complaint begins by listing a series of
claims by name, in addition to false arrest, including, inter alia, abuse of process and malicious
prosecution. The dismissal of his false arrest claim disposes of these claims, as well. Abuse of
process requires a showing of malice, see, e.g., Savino, 331 F.3d at 76, and for the same reason
that Det. Russo is entitled to qualified immunity, there is an absence of any evidence indicating
malice (in fact, quite the contrary). Similarly, his malicious prosecution claim fails for the same
reason and also because the existence of probable cause bars his claim for malicious prosecution.
See id. at 72; cf. Kafanu v. Burrows, No. 07-cv-1520, 2009 WL 1457153 (D. Conn. May 21,
2009) (where witnesses identified plaintiff in a video, the individual in the video resembled
plaintiff, and the state prosecutor noted the physical similarities between plaintiff and the
individual in the video, “no reasonable juror could find that Defendants’ identification amounted
to procurement of criminal proceedings.”).
Finally, plaintiff’s list of claims includes various common law torts. Under most
circumstances, I would dismiss these without prejudice to pursuit in state court. See 28 U.S.C.
§ 1367. However, dismissal with prejudice is appropriate here for two reasons. First, many of
his common law claims precisely overlap with the federal claims that he has asserted under 42
U.S.C. § 1983, and there is no reason to expose either side to the burden of continued litigation
over those claims. In addition, plaintiff acknowledged in his deposition that he failed to file a
notice of claim with the City of New York, as would be required to pursue any of these claims,
and thus it is clear that he has no right to pursue them under state law.
Defendant’s motion for summary judgment is granted. The Clerk of Court is directed to
enter judgment, dismissing the complaint. The Court certifies pursuant to 28 U.S.C.
§ 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore in
forma pauperis status is denied for purpose of an appeal. See Coppedge v. United States, 369
U.S. 438, 444-45 (1962).
Digitally signed by Brian
Dated: Brooklyn, New York
December 21, 2016
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