Harris v. City of New York et al
Filing
27
ORDER granting 22 motion to dismiss for failure to state a claim. For the reasons discussed in the attached Memorandum and Order, the Court grants Defendants' motion to dismiss and dismisses Plaintiff's malicious prosecution claim with prejudice and his municipal liability claim without prejudice. Ordered by Judge Margo K. Brodie on 1/4/2017. (Daugherty, Shannon)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------------------------------IAN HARRIS,
Plaintiff,
MEMORANDUM & ORDER
15-CV-06467 (MKB)
v.
CITY OF NEW YORK, THE QUEENS COUNTY
DISTRICT ATTORNEY’S OFFICE, THE NEW
YORK CITY POLICE DEPARTMENT, POLICE
OFFICER OMAR CASTILLO, POLICE OFFICER
CONWAY, DETECTIVE HABER, and POLICE
OFFICER JOHN DOES NUMBERS 1–10,
Defendants.
-------------------------------------------------------------MARGO K. BRODIE, United States District Judge:
Plaintiff Ian Harris commenced this action on November 12, 2015, against Defendants
the City of New York, the Queens County District Attorney’s Office, the New York City Police
Department (the “NYPD”), Police Officer Omar Castillo, Police Officer Conway, Detective
Haber,1 and Police Officer John Does Numbers 1–10, alleging claims for false arrest, unlawful
search and seizure, malicious prosecution and municipal liability in violation of 42 U.S.C.
§ 1983, as well as state law claims for negligent hiring, training and supervision against the City
of New York, the NYPD and the Queens District Attorney’s Office. (Compl. ¶ 1, Docket Entry
No. 1.) At a pre-motion conference on May 4, 2016, the Court dismissed Plaintiff’s state law
1
Plaintiff does not provide the full names for Officer Conway or Detective Haber.
claims and Plaintiff’s claims against the NYPD and the Queens District Attorney’s Office.2
(Min. Entry dated May 4, 2016.) Defendants move to dismiss Plaintiff’s malicious prosecution
claim, which, other than the bifurcated municipal liability claim, is Plaintiff’s sole remaining
claim. (Defs. Mot. to Dismiss (“Defs. Mot.”), Docket Entry No. 22.) For the reasons discussed
below, the Court grants Defendants’ motion to dismiss and dismisses both the malicious
prosecution claim and the municipal liability claim.
I.
Background
Plaintiff alleges that on September 3, 2011, at approximately 10:40 PM, officers Castillo
and Conway were on patrol when they saw Plaintiff smoking a cigarette on the sidewalk outside
of a residence located at 212-40 112th Road, Queens, New York. (Compl. ¶¶ 18–19.) Castillo
got out of his patrol car and followed Plaintiff, who proceeded to walk through a gate
surrounding the property and walk up the driveway of the property. (Id. ¶ 20.) Castillo observed
an “unidentified bulge” on Plaintiff. (Id. ¶ 25.) Castillo then “patted [Plaintiff] down” for a
weapon and recovered a gun. (Id. ¶¶ 20–21.) Plaintiff was arrested and charged with two counts
of criminal possession of a weapon in violation of New York Penal Law section 265.03. (Id. ¶¶
3, 21.)
According to Plaintiff, Defendants “unlawfully prosecut[ed] [him] knowing that they did
not have probable cause” to search Plaintiff and seize the weapon, and “a judicial proceeding
was commenced and prosecuted against Plaintiff despite the absence of admissible evidence
2
The Court also bifurcated the municipal liability claim pending decision on
Defendants’ motion. (Min. Entry dated May 4, 2016.) Subsequent to the pre-motion conference,
Plaintiff consented to the dismissal of his time-barred false arrest and unlawful search and
seizure claims. (See Defs. Mem. of Law in Supp. of Mot. to Dismiss (“Defs. Mem.”) 3 n.1,
Docket Entry No. 22-1.) The Court therefore orders the dismissal of Plaintiff’s false arrest and
unlawful search and seizure claims.
2
connecting him to the crimes alleged.” (Id. ¶¶ 29, 48.) During the criminal proceeding in
Queens County Supreme Court, Plaintiff moved to suppress the physical evidence recovered
during the search as well as certain statements Plaintiff made to the officers, arguing that the
search was in violation of his Fourth and Fourteenth Amendment rights. (Id. ¶ 22.)
Judge Steen W. Paynter of the Queens County Supreme Court denied the motion to
suppress, and a jury convicted Plaintiff of two counts of criminal possession of a weapon in the
second degree. (Id. ¶ 23.) Plaintiff was subsequently sentenced to three-and-a-half years of
incarceration and two-and-a-half years of post-release supervision. (Id. ¶ 24.) Plaintiff appealed
his conviction, and on November 26, 2014, the Supreme Court, Appellate Division, Second
Department (the “Appellate Division”) reversed the Supreme Court’s ruling on Plaintiff’s
suppression motion. (Id. ¶ 4 (citing People v. Harris, 997 N.Y.S.2d 481, 481 (App. Div. 2014)).)
The Appellate Division determined that officer Castillo “lacked reasonable suspicion to believe
that Plaintiff posed a threat to the [p]olice [o]fficers’ safety to justify a pat-down, especially
when an ‘unidentified bulge’ alone was insufficient to indicate the presence of a weapon, and the
[o]fficers were not responding to a report of a crime involving a weapon.” (Id. ¶ 25 (citing
Harris, 997 N.Y.S.2d at 481).) Having suppressed the gun and certain statements made by
Plaintiff to the officers, the Appellate Division held that there was insufficient evidence to
convict Plaintiff and dismissed the indictment.3 Harris, 997 N.Y.S.2d at 481. The Appellate
3
Because Plaintiff relies upon People v. Harris, 997 N.Y.S.2d 481 (App. Div. 2014) in
alleging his malicious prosecution claim, the Court finds that it is integral to the Complaint. See
Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002) (holding that a document
is integral to the complaint where the plaintiff (1) has “actual notice” of the document and its
information and (2) has “relied upon the[ ] document[] in framing the complaint”
(quoting Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991))). Plaintiff cites
the Appellate Division opinion twice and references it a third time in support of his allegations
that the criminal proceeding was terminated in his favor. (Compl. ¶¶ 4, 25, 51.)
3
Division remitted the case to the trial court to determine whether to seal the proceedings pursuant
to New York Penal Law section 160.50. Id.
II. Discussion
a. Standard of review
In reviewing a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil
Procedure, a court must construe the complaint liberally, “accepting all factual allegations in the
complaint as true and drawing all reasonable inferences in the plaintiff’s favor.” Concord
Assocs., L.P. v. Entm’t Prop. Trust, 817 F.3d 46, 52 (2d Cir. 2016) (quoting Chambers v. Time
Warner Inc., 282 F.3d 147, 152 (2d Cir. 2002)); see also Tsirelman v. Daines, 794 F.3d 310, 313
(2d Cir. 2015) (quoting Jaghory v. N.Y. State Dep’t of Educ., 131 F.3d 326, 329 (2d Cir. 1997)).
A complaint must plead “enough facts to state a claim to relief that is plausible on its face.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is plausible “when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Matson v. Bd. of Educ., 631 F.3d 57, 63 (2d Cir. 2011) (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)); see also Pension Ben. Guar. Corp. ex rel. St.
Vincent Catholic Med. Ctrs. Ret. Plan v. Morgan Stanley Inv. Mgmt. Inc., 712 F.3d 705, 717–18
(2d Cir. 2013). Although all allegations contained in the complaint are assumed true, this
principle is “inapplicable to legal conclusions” or “[t]hreadbare recitals of the elements of a
cause of action, supported by mere conclusory statements.” Iqbal, 556 U.S. at 678.
b. Malicious prosecution claim
Plaintiff fails to establish that the criminal proceeding was terminated in his favor and
therefore, Plaintiff cannot sustain a malicious prosecution claim. Defendants argue that in order
to show that the criminal proceeding was terminated in his favor, Plaintiff must show an
4
adjudication of the merits or that the dismissal of the proceeding is indicative of Plaintiff’s
innocence, (Defs. Mem. 6). Defendants further argue that, because the procedural dismissal of
Plaintiff’s prosecution is not indicative of Plaintiff’s innocence, it is not a favorable termination.
(Defs. Mem. 6–7; Defs. Reply 2–3, Docket Entry No. 25.) Plaintiff argues that he is only
required to establish that the termination of the criminal proceeding was not “inconsistent with
innocence.” (Pl. Opp’n 4–5, Docket Entry No. 24.) Plaintiff further argues that the reversal and
dismissal of the indictment by the Appellate Division was a termination in his favor because
dismissals that “include constitutional privilege assertions” are considered favorable
terminations. (Pl. Opp’n 4–5 (citing Anilao v. Spota, 774 F. Supp. 2d 457, 508 (E.D.N.Y.
2011)).)
“[T]o 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) (citations and internal quotation marks omitted). Under
New York law, the elements of a malicious prosecution claim are “(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.” Morris v. Silvestre, 604 F. App’x 22, 24
(2d Cir. 2015) (quoting Manganiello, 612 F.3d at 161). In a claim for malicious prosecution
under Section 1983, “the plaintiff must also show ‘that there was . . . a sufficient postarraignment liberty restraint to implicate the plaintiff’s Fourth Amendment rights.’”
Higginbotham v. City of New York, 105 F. Supp. 3d 369, 375 (S.D.N.Y. 2015) (alteration in
original) (quoting Rohman v. N.Y.C. Transit Auth., 215 F.3d 208, 215 (2d Cir. 2000)).
5
Favorable termination requires a plaintiff to “demonstrate a final termination of the
criminal proceeding in [his] favor, or at least ‘not inconsistent with [his] innocence.’” Okoi v. El
Al Israel Airlines, 378 F. App’x 9, 11 (2d Cir. 2010) (quoting Smith-Hunter v. Harvey, 95
N.Y.2d 191, 196 (2000)). The standard to determine favorable termination is governed by the
applicable state law. See Hygh v. Jacobs, 961 F.2d 359, 367 (2d Cir. 1992). Generally, under
New York law, “a criminal proceeding is terminated favorably to the accused when ‘there can be
no further proceeding upon the complaint or indictment, and no further prosecution of the
alleged offense.’” Smith-Hunter, 95 N.Y.2d at 195–96 (quoting Robbins v. Robbins, 133 N.Y.
597, 599 (1982)). However, even where a termination is final, it will only be a favorable
termination if the termination “is not inconsistent with innocence.” Rothstein v. Carriere, 373
F.3d 275, 286 (2d Cir. 2004) (first citing Smith-Hunter, 95 N.Y.2d at 198–99; and then citing
Cantalino v. Danner, 96 N.Y.2d 391, 396 (2001)); Anilao, 774 F. Supp. 2d at 508 (collecting
cases illustrating various circumstances that are not favorable terminations). Although in some
instances courts have determined that the favorable-termination test requires a showing of the
defendant’s actual innocence, the New York Court of Appeals has clearly explained that a
defendant’s burden is only to demonstrate a final termination that is “not inconsistent with
innocence.”4 The determination of whether the termination is “not inconsistent with innocence”
4
The Second Circuit has applied both the stringent standard, requiring that the
disposition indicate the accused’s innocence, and the more lenient standard, requiring that the
disposition not be inconsistent with innocence. Compare Fulton v. Robinson, 289 F.3d 188, 196
(2d Cir. 2002) (“Where a prosecution did not result in an acquittal, it is generally not deemed to
have ended in favor of the accused, for purposes of a malicious prosecution claim, unless its final
disposition is such as to indicate the accused’s innocence.”) with Rothstein v. Carriere, 373 F.3d
275, 286 (2d Cir. 2004) (“[T]he plaintiff's burden is to demonstrate a final termination that is not
inconsistent with innocence.” (citing Smith-Hunter v. Harvey, 95 N.Y.2d 191, 198–99 (2000)));
see also Gem Fin. Serv., Inc. v. City of New York, No. 13-CV-1686, 2014 WL 1010408, at *10
n.10 (E.D.N.Y. Mar. 17, 2014) (noting the “apparent fissure amongst Second Circuit opinions
6
depends on the “circumstances of each case,” Cantalino, 96 N.Y.2d at 396, and courts “have
reached varying results that are difficult to reconcile” in determining whether a case has been
favorably terminated, O’Brien v. Alexander, 101 F.3d 1479, 1486 (2d Cir. 1996) (quoting Lopez
v. City of New York, 901 F. Supp. 684, 688 (S.D.N.Y. 1995)).
Since Smith-Hunter, the Second Circuit, the New York Court of Appeals and at least two
district courts have all held that a dismissal of a conviction or a dismissal of a case because
evidence is suppressed, particularly when the evidence was suppressed on appeal, is not a
favorable termination.5 See Gonzalez v. City of Schenectady, 728 F.3d 149, 162 (2d Cir. 2013)
(affirming a district court’s grant of summary judgment dismissing a malicious prosecution claim
where the plaintiff’s conviction was reversed and the indictment was dismissed by the Appellate
Division based on evidence that should have been suppressed because “the officers found crack
with respect to the proper standard for assessing a favorable termination”). However, the less
stringent test is appropriate based on the Second Circuit instruction that state law governs section
1983 malicious prosecution claims and because the New York Court of Appeals specifically
cautioned against setting a high bar for the favorable termination standard, instead, stressing that
the termination need only be “not inconsistent with innocence.” Smith-Hunter, 95 N.Y.2d at
198–99 (“We reject the notion — as contrary to the common law and our longstanding
precedents — that, under the particular circumstance here, plaintiff must demonstrate innocence
in order to satisfy the favorable termination prong of the malicious prosecution action.”);
Cantalino v. Danner, 96 N.Y.2d 391, 410 (2001) (“[W]e reject defendant's argument that the
‘inconsistent with innocence’ standard is limited to speedy trial dismissals, like the one at issue
in Smith-Hunter. The rule announced in Smith-Hunter is one of general application, and we see
no reason to deviate from it here.”); Smith-Hunter, 95 N.Y.2d at 200–02 (Rosenblatt, J.,
concurring) (explaining how the favorable termination test morphed to require a showing of
actual innocence but maintaining that the “not inconsistent with innocence” test is the proper
one).
5
Before the New York Court of Appeal’s decision in Smith-Hunter clearly articulated
that the standard to show favorable termination did not require a dismissal indicative of
innocence, the Second Circuit affirmed the decision of a district court that found that termination
was not favorable because “the suppression of inculpatory evidence [did] not establish or imply
appellant’s innocence because it was not related to or based upon the reliability or unreliability
of the evidence.” Miller v. Cuccia, 201 F.3d 431, 431 (2d Cir. 1999).
7
cocaine in [the plaintiff’s] rectum, eliminating any doubt that [the plaintiff] was, in fact, guilty of
at least criminal possession of a controlled substance.”); Martinez v. City of Schenectady, 97
N.Y.2d 78, 84–85 (2001) (“[The] [p]laintiff's felony conviction was reversed not because of her
lack of culpability — indeed, her guilt was proven beyond a reasonable doubt — but because the
evidence that formed the basis for her conviction was obtained pursuant to a faulty search
warrant. There is plainly no favorable termination here for purposes of malicious prosecution.”);
Peters v. City of New York, No. 14-CV-1361, 2015 WL 3971342, at *2–3 (E.D.N.Y. June 30,
2015) (“Nevertheless, the claim for malicious prosecution fails because the charges against [the
plaintiff] were dismissed as a result of the suppression of the evidence found on [the plaintiff’s]
person and in his apartment.”); Layou v. Crews, No. 11-CV-0114, 2013 WL 5494062, at *2
(N.D.N.Y. Sept. 30, 2013) (denying request to amend complaint to include a malicious
prosecution claim because the “[p]laintiff's prosecution was reversed by the [Appellate Division]
because the evidence was tainted by an unlawful search and seizure, and/or the chain of custody
over the evidence could not be established. . . . As a matter of law, this is not a favorable
termination permitting the accused to bring a malicious prosecution action.” (internal quotation
marks omitted) (citing Martinez, 97 N.Y.2d at 84–85)); but see Penree v. City of Utica, New
York, No. 13-CV-1323, 2016 WL 915252, at *17 (N.D.N.Y. Mar. 4, 2016) (finding that the
plaintiff’s case was favorably terminated where the trial court judge dismissed the case because
there were no exigent circumstances to enter the plaintiff’s residence and arrest him); Smalls v.
City of New York, 181 F. Supp. 3d 178, 188 (E.D.N.Y. 2016) (finding that reversal of the
plaintiff’s conviction by the Appellate Division based upon failure to suppress evidence because
the initial pursuit of the plaintiff was unlawful was a favorable termination where defendant
maintained his innocence).
8
Here, the parties do not dispute the reason for the termination of Plaintiff’s criminal
prosecution, only whether the termination is favorable as a matter of law. (See Compl. ¶¶ 4, 25,
51; Defs. Mem. 6.) Plaintiff is correct that the standard for favorable termination is not so high
to require that the termination establish innocence, but rather, only that the termination is “not
inconsistent with innocence;” however, even under the more lenient standard, Plaintiff’s claim
nevertheless fails.
The Second Circuit and the New York Court of Appeals have established that a plaintiff’s
underlying criminal case does not terminate favorably where a conviction is reversed because
evidence is suppressed in a post-conviction proceeding. In the underlying criminal proceedings
in Gonzalez6 and Martinez, the searches that were later determined to be unlawful led to tangible
evidence of the plaintiffs’ guilt, and the sole reason for reversing the trial courts’ denial of the
motions to suppress and the judgments of conviction was that the evidence obtained as a result of
the unlawful searches should have been suppressed. See People v. Gonzalez, 870 N.Y.S.2d 529,
530 (App. Div. 2008) (granting the motion to suppress and remitting to the trial court because
“the police were not justified in conducting a visual cavity inspection of defendant, and the
6
In Gonzalez, the Second Circuit applied the higher standard requiring the plaintiff to
establish that the termination of his case indicated his innocence and, applying that standard,
found that the evidence discovered by the illegal search “eliminat[ed] any doubt” that the
plaintiff was guilty. Gonzalez v. City of Schenectady, 728 F.3d 149, 162 (2d Cir. 2013). Even
though the Court declines to apply the higher standard here, the Court nevertheless relies on
Gonzalez for its precedential value because, as in Gonzalez, the discovery of the gun on
Plaintiff’s person eliminates any doubt of Plaintiff’s guilt, which satisfies the more lenient
standard that Plaintiff’s termination not be inconsistent with his innocence. Although, the New
York Supreme Court’s Appellate Division did not dismiss the indictment in Gonzalez but instead
remitted the proceedings to the trial court, see People v. Gonzalez, 870 N.Y.S.2d 529, 530 (App.
Div. 2008), the Second Circuit relied on the failure to establish innocence, rather than the finality
of the termination, as the basis for finding that the termination was not favorable, see Gonzalez,
728 F.3d at 162.
9
evidence related to the inspection should have been suppressed”); People v. Martinez, 80 N.Y.2d
549, 552 (1992) (granting the motion to suppress, reversing the conviction and dismissing the
indictment because “the probable cause necessary for the issuance of a search warrant is lacking
where the application for the warrant is supported by the affidavit of a confidential informant
who has not been questioned by the issuing court and whose reliability has not been
established”). Similarly, the search of Plaintiff, although later determined to be unlawful,
produced the gun that was used to prosecute Plaintiff. (Compl. ¶ 21.) Plaintiff does not dispute
that the officers recovered a gun from his person. (Id. ¶¶ 21, 29.) Thus, as in Gonzalez and
Martinez, there is no question that Plaintiff is guilty of criminal possession of a weapon, and the
termination of his criminal proceeding is therefore inconsistent with innocence.7 See SmithHunter, 95 N.Y.2d at 200 (Rosenblatt, J., concurring) (noting that the court “foreclose[s]
malicious prosecution actions by those who carry even an aroma of guilt”).
For similar reasons, this case is distinguishable from Penree and Smalls. See Penree,
7
The Appellate Division’s remittal to the Supreme Court to allow the court to enter an
order pursuant to New York Penal Law section 160.50 is of no consequence to the analysis. See
Harris, 997 N.Y.S.2d at 481. Section 160.50 is titled “Order upon termination of criminal action
in favor of the accused.” The use of “in favor” under section 160.50 is not coterminous with the
standard required for malicious prosecution. See Russo v. State of New York, 672 F.2d 1014,
1021 (2d Cir. 1982) (noting that the return of a defendant’s fingerprint card pursuant to section
160.50 would indicate the criminal proceeding had been dismissed, but, “it would not establish a
favorable termination” (citing Cardi v. Supermarket Gen. Corp., 453 F. Supp. 633, 635
(E.D.N.Y. 1978))); see also Manbeck v. Micka, 640 F. Supp. 2d 351, 372 n.19 (S.D.N.Y. 2009)
(“But favorable termination for purposes of sealing . . . is considerably broader than favorable
termination for purposes of a malicious prosecution claim or the like, and thus the sealing of the
file has no relevance to whether [the plaintiff] should be permitted to pursue a malicious
prosecution claim.” (citation omitted) (first quoting Coakley v. Jaffe, 49 F. Supp. 2d 615, 623 n.4
(S.D.N.Y. 1999); and then quoting Cardi, 453 F. Supp. at 635)); Cardi, 453 F. Supp. at 635
(“Nothing in the language or history of [section] 160.50 suggests any intent by the legislature
either to change New York’s long standing requirement that favorable termination be a
precondition for a malicious prosecution claim, or to extend the effect of its ‘termination’
language beyond its carefully expressed and limited purpose.”).
10
2016 WL 915252, at *17; Smalls, 181 F. Supp. 3d at 188. In Penree, the criminal action was
terminated by the trial court before the defendant was convicted, and the court noted that “[t]here
is no indication that the evidence recited would result in a conviction but for the unlawful arrest.”
Penree, 2016 WL 915252, at *17. Here, Plaintiff was convicted at trial, and the Appellate
Division’s holding makes clear that the only reason for the reversal was failure to suppress the
evidence discovered by the unlawful search because, without that evidence, there was
insufficient evidence to support the jury’s verdict. Harris, 997 N.Y.S.2d at 481.
In Smalls, which Defendants correctly argue is distinguishable, (Defs. Reply 3), the
plaintiff had been convicted of two counts of criminal possession of a weapon based on an
officer’s testimony that, after pursuing the plaintiff and a group of his friends, he saw the
plaintiff in possession of a gun that was later recovered in the area where the plaintiff was
arrested. 181 F. Supp. 3d at 183; People v. Smalls, 922 N.Y.S.2d 461, 462–63 (App. Div. 2011).
No gun was recovered from the plaintiff’s person. Smalls, 181 F. Supp. 3d at 182. The
Appellate Division found that the trial court improperly denied a motion to suppress the gun
because the initial pursuit, which occurred prior to the officer’s observation of the plaintiff with a
gun, was unlawful. Id. at 182, 188. In the plaintiff’s civil action, the court found that the
dismissal by the Appellate Division was neutral at best because it “in no way affirm[ed] that
[the] plaintiff was guilty of the underlying crimes, and it would be entirely consistent for the
plaintiff to have also been innocent.” Id. at 188. In a footnote immediately following that
sentence, the court noted that the Appellate Division did not find that Smalls possessed a gun.
Id. at 188 n.2. The court went on to reason that the officer’s testimony that the plaintiff
possessed a gun “cannot be used to stamp out the claim before it can take root” because the
plaintiff maintained his innocence and “[a] contrary rule would permit a reversed conviction that
11
was based on false testimony to categorically prevent a malicious prosecution inquiry.” Id. at
188. Plaintiff does not allege that the officers made false statements that led to a false
conviction.8 Instead, Plaintiff’s malicious prosecution claim is based solely on the unlawful
search that produced a gun on Plaintiff’s person, and there is no risk, as in Smalls, that
conflicting testimony will foreclose Plaintiff’s malicious prosecution claim because there is no
dispute that Plaintiff possessed a gun.
Plaintiff’s reliance on Anilao, 774 F. Supp. 2d at 508, to support his argument that the
reversal was favorable because it “include[d] constitutional privilege assertions,” is unavailing.
(Pl. Opp’n 4–5.) In Anilao, the criminal proceeding was dismissed by writ of prohibition in the
plaintiffs' favor prior to their conviction. 774 F. Supp. 2d at 465. The Appellate Division found
that the plaintiffs were being threatened with prosecution for actions protected by the plaintiffs’
First and Thirteenth Amendment rights for which they could not constitutionally be tried. Id. at
465–66, 471–73. In contrast, Plaintiff alleges that his conviction was a favorable termination
because the Appellate Division reversed the Supreme Court’s order denying the motion to
suppress the evidence and dismissed the indictment. (Compl. ¶ 51.) That does not establish that
the initiation of the prosecution violated Plaintiff’s constitutional rights. See, e.g., Peters, 2015
WL 3971342, at *2–3 (dismissing the argument that termination should be considered favorable
because a criminal defendant should not have to choose between “winning dismissal of his
8
Plaintiff alleges for the first time in the Opposition Memorandum that, “Defendant
Officers lied in initiating and furthering the prosecution.” (Pl. Opp’n 3, 7.) However, no similar
allegations appear in the Complaint and Plaintiff cannot rely on allegations in his opposition to a
motion to dismiss to amend the Complaint. See Ace Arts, LLC v. Sony/ATV Music Pub., LLC,
56 F. Supp. 3d 436, 451 (S.D.N.Y. 2014) (disregarding allegations raised for the first time in the
plaintiff’s opposition to a motion to dismiss); O'Brien v. Nat’l Prop. Analysts Partners, 719 F.
Supp. 222, 229 (S.D.N.Y. 1989) (“It is axiomatic that the Complaint cannot be amended by
the briefs in opposition to a motion to dismiss.”). Moreover, these conclusory allegations are not
supported by any facts.
12
criminal prosecution on evidentiary grounds and preserving his malicious prosecution claim”).
Accordingly, the factual circumstances of Plaintiff’s prosecution are inconsistent with
innocence as a matter of law because Plaintiff concedes that the officers recovered a gun from
his possession and the only basis for reversal of his conviction was the failure to suppress the
unlawfully obtained evidence. See Gonzalez, 728 F.3d at 162; Martinez, 97 N.Y.2d at 81. Thus,
the termination of Plaintiff’s criminal proceeding was not a favorable termination and, as a
result, Plaintiff’s malicious prosecution claim fails.9
c.
Municipal liability
Because the Court dismisses Plaintiff’s sole remaining claim, the Court also dismisses
Plaintiff’s municipal liability claim. See Urbina v. City of New York, --- F. App’x ---, ---, 2016
WL 6990019, at *3 (2d Cir. Nov. 29, 2016) (“Having concluded that [the plaintiff] fails to allege
any deprivation of federal rights, we hold that the District Court properly dismissed [the
plaintiff’s] Monell claim.”); Garcia v. Bloomberg, --- F. App’x ---, ---, 2016 WL 5944727, at *1
(2d Cir. Oct. 13, 2016) (“The ‘City cannot be liable under Monell where [a plaintiff] cannot
establish a violation of his constitutional rights.’” (alteration in original) (quoting Askins v. Doe
No. 1, 727 F.3d 248, 253 (2d Cir. 2013))).
9
Because the Court finds as a matter of law that Plaintiff’s criminal proceeding was not
favorably terminated thereby defeating his malicious prosecution claim, the Court declines to
consider Defendants’ alternative arguments for dismissal.
13
III. Conclusion
For the foregoing reasons, the Court grants Defendants’ motion to dismiss and dismisses
Plaintiff’s malicious prosecution claim with prejudice and his municipal liability claim without
prejudice.
SO ORDERED:
s/ MKB
MARGO K. BRODIE
United States District Judge
Dated: January 4, 2017
Brooklyn, New York
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