Herrera-Amador et al v. City of New York et al

Filing 68

ORDER ADOPTING REPORT AND RECOMMENDATIONS, For the reasons stated above, the court ADOPTS Judge Scanlon's 61 R&R in full. Defendants' Motion for Summary Judgment (Dkt. 50 ) is GRANTED as to Defendants NYPD and Sergeant Matthies and DEN IED as to Defendants Officer Lee and Detective Arias. The parties are DIRECTED to contact the chambers of Judge Scanlon concerning next steps in this case. So Ordered by Judge Nicholas G. Garaufis on 7/15/2021. (Lee, Tiffeny) (Attachment # 1 Report and Recommendation) Modified on 7/16/2021 to correct "so ordered" date (Lee, Tiffeny).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MARCOS A. HERRERA-AMADOR,

MEMORANDUM & ORDER
16-CV-5915 (NGG) (VMS)

Plaintiff,
-againstNEW YORK CITY POLICE DEPARTMENT,
POLICE OFFICER KEVIN LEE, Shield # 7655,
SERGEANT WILLIAM MATTHIES, Shield #
1291, DETECTIVE KEVIN ARIAS, Shield #
152,
Defendants.

NICHOLAS G. GARAUFIS, United States District Judge.
Plaintiff Marcos Herrera-Amador brought this action under 42
U.S.C. § 1983 against the City of New York, the New York City
Police Department ("NYPD") and three individual officers, claiming violations of his constitutional rights. Previously, the court
dismissed all of Mr. Herrera-Amador's claims except his claim for
malicious prosecution and terminated the City of New York and
Pilar Reyes, Mr. Herrera-Amador's wife, as parties to the case.
(See Minute Entry and Order of Nov. 1, 2019.) Defendants then
moved for summary judgment and the court referred the motion
to Magistrate Judge Vera M. Scanlon, who issued the annexed
Report and Recommendation ("R&R") recommending that Defendants' motion be granted in part and denied in part. (R&R
(Dkt. 61).) Defendants then filed a timely objection. (Obj. to R&R
("Obj.") (Dkt. 65).) For the following reasons, the court ADOPTS
the R&R in full.

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I.

BACKGROUND

A. Factual Summary
The court relies on the meticulously prepared "Factual Background" section of the R&R, which explains the complexities of
the case and notes which facts are contested by the parties. (See
R&R at 3-18.) To summarize the facts most relevant to the objections currently before the court: Mr. Herrera-Amador was at a
gambling club in Queens, NY after midnight on September 3,
2013. (Id. at 4.) At approximately 2:00 a.m., armed robbers entered the club and stole jewelry, cellphones, and over $12,000 in
cash from patrons. (Id. at 4-6.) The robbers fled the club at approximately 2:10 a.m. when police, including Defendants Officer
Lee and Sergeant Matthies, arrived. (Id. at 4-5.)
At the scene, Officer Lee and Sergeant Matthies saw Mr. HerreraAmador leaving the club, approached him with guns drawn, directed him to the ground, and handcuffed and searched him. (Id.
at 5-6.) The search yielded no evidence related to the robbery.
(Id.) After the search, Lee and Matthies left Mr. Herrera-Amador
handcuffed to a fence. (Id.) Matthies later testified that he could
not recall what made him believe that Mr. Herrera-Amador
might have been involved in the robbery. (Id.) Police also
stopped and detained two other suspects: Edgardo Rodriguez,
who was found climbing a fence behind the club nearby a duffel
bag containing over $9,000 in cash,jewelry, cellphones, a loaded
.40 Glock pistol and a gravity knife; and Juan Alanzo, who was
hiding in a shed within 500 feet of the club nearby a duffel bag
containing over $3,000 in cash. (Id. at 6.)
Mr. Herrera-Amador, Rodriguez, and Alanzo were arrested and
taken to the 110th precinct. (Id. at 7.) Officer Lee prepared an
arrest report, approved by Sergeant Matthies, that stated Mr.
Herrera-Amador had been "positively identified" as having been
involved in the robbery. (Id.) Lee stated that a witness, Mauriano
Paulino, identified Mr. Herrera-Amador in a sidewalk show-up at

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the scene. (Id. at 6-7.) Paulino later testified that the show-up
identification never happened and that he only identified Alanzo
for police. (Id.)
Later in the day on September 3, Defendant Detective Arias was
assigned to "enhance" Officer Lee's arrest by conducting a further
investigation. (Id. at 8.) Detective Arias conducted only one interview, of Paulino. (Id.) Paulino told Arias that he could only
describe one of the robbers and then positively identified Alanzo
from a lineup. (Id.) Arias and Lee did not present Paulino with a
lineup that included Rodriguez or Mr. Herrera-Amador. (Id.)
Arias then produced an investigative report which stated that
Paulino was able to identify Alanzo but did not document any
more about the interview or mention that Paulino was unable to
identify the other two suspects in custody. (Id. at 9.) Later, at his
deposition, Paulino testified that he was "all the way to the back"
of the club; that he could not see the front of the club because
there was a large table with "a crowd of people" blocking his
view; and that the scene was poorly lit. (See Dep. of Mauriano
Paulino (Dkt. 52-19) at 128:6-24, 132:3-9.) Detective Arias's report contained none of that information.
On September 4, Mr. Herrera-Amador was arraigned on a sixcount criminal complaint sworn against him, Rodriguez, and
Alanzo. (See Criminal Compl. (Dkt. 52-9.)) In the complaint, Officer Lee stated that Paulino informed him that the three codefendants entered the club together. (See Criminal Compl. (Dkt.
52-9.)) The complaint also alleged that Alanzo told everyone to
get down, put a gun to the head of a club patron, handed the gun
to Rodriguez who was standing by the door, and searched the
pockets of other club patrons who were on the floor at knifepoint.
(Id. at ECF p. 3-4.) Lee further stated that, according to Paulino,
the three co-defendants fled through the rear door together after
the robbery. (Id.) There are no allegations against Mr. HerreraAmador in the complaint other than that, according to Paulino,

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he entered and fled the club along with Rodriguez and Alanzo--statements that Paulino later testified he did not make. (See id.;
R&R at 7.)
At the time of his arrest, Mr. Herrera-Amador, a citizen of the
Dominican Republic, was free on bond in connection with a
charge pending in federal court for remaining in the United
States past the date for which he was given immigration authorization. (R&R at 16-17.) After his arraignment on the armed
robbery charges, he spent one month in New York state custody
before he was able to make bail. (Id. at 17.) However, upon his
release from state custody, Mr. Herrera-Amador's federal bail
was revoked, and he was taken into federal custody. (Id.) He was
later returned to state custody to facilitate court appearances. (Id.
at 17-18.)
Rodriguez and Alanzo were both indicted by the grand jury before the end of 2013. (Id. at 16.) Mr. Herrera-Amador was never
indicted. (Id.) At a court appearance on August 5, 2014-11
months after Mr. Herrera-Amador was first taken into custodyan Assistant District Attorney stated: "This matter is being held
by ADA Shorts. He has investigated the case. The People cannot
go forward, therefore, we move to dismiss the docket." (Tr. of
Aug. 5, 2014 Proceeding (Dkt. 55-12) .) Defendants claim in their
Rule 56.1 Statement of Facts that, "the criminal case against
plaintiff was dismissed because the statutory period had expired
for the prosecutor to present a case to the Grand Jury." (Defs.'
56.1 Statement (Dkt. 51) 'I 29.) In his 56.1 Counterstatement,
Mr. Herrera-Amador disputes Defendants' assertion and claims
the District Attorney moved to dismiss the case "after an investigation provided no grounds to proceed." (Pl.'s 56.1
Counterstatement (Dkt. 55) '129.)

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B. Procedural History
On October 25, 2016, Mr. Herrera-Amador initiated this case.
(See Compl. (Dkt. 1).) After discovery, Defendants requested a
pre-motion conference in advance of a motion for summary judgment, arguing that all of Mr. Herrera-Amador's claims, save for
his malicious prosecution claim, were time-barred or procedurally flawed. (See Defs.' Letter of Oct. 19, 2018 (Dkt. 34) .) The
court dismissed those claims and the parties briefed Defendants'
summary judgment motion as to the malicious prosecution
claim. (See Minute Entry and Order of Nov. 1, 2019; Defs.' Mem.
in Supp. of Mot. for Summ. J. (Dkt. 53); Pl.'s Mem. in Opp. to
Summ. J. (Dkt. 56); Defs.' Reply (Dkt. 58).) On November 5,
2020, the court referred the motion to Judge Scanlon who issued
the R&R on February 20, 2021. (See Order Ref. Mot. of Nov. 5,
2020; R&R.) In the R&R, Judge Scanlon recommended that the
court:
Grant the summary judgment motion as to Defendant
NYPD.
Grant the summary judgment motion as to Defendant
Sergeant Matthies.
Deny the summary judgment motion as to Defendants
Officer Lee and Detective Arias and find that they were
not entitled to qualified immunity.
(R&R at 44.)

Defendants objected in part to Judge Scanlon's recommendation.
Specifically, they argue that Mr. Herrera-Amador cannot establish two necessary elements of a malicious prosecution claim: (1)
that the proceeding against him was terminated in his favor, and
(2) that Detective Arias was personally involved in the alleged
malicious prosecution. See Frost v. New York. City Police Dep't, 980

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F.3d 231, 242 (2d Cir. 2020); (Obj. at 6-11.) Mr. Herrera-Amador filed a response to Defendants' objection but did not object
to any portion of the R&R. (See Pl.'s Obj. (Dkt. 67).)
II. LEGAL STANDARD

"The district judge must determine de nova any part of the magistrate judge's disposition that has been properly objected to."
Fed. R. Civ. P. 72(b)(3); see also 28 U.S.C. § 636(b)(l) ("Ajudge
of the court shall make a de novo determination of those portions
of the report or specified proposed findings or recommendations
to which objection is made.") The court reviews the portions of
the R&R to which no party made an objection for clear error. See
Velasquez v. Metro Fuel Oil Corp., 12 F. Supp. 3d 387, 397
(E.D.N.Y. 2014).
III. DISCUSSION

The court finds no clear error in the portions of the R&R to which
no party has objected. Accordingly, Defendants' motion for summary judgment is granted as to Defendant NYPD and Defendant
Sergeant Matthies. (See R&R at 1, n.2; 32-33.)
To succeed on his malicious prosecution claims against Officer
Lee and Detective Arias, Mr. Herrera-Amador must establish four
elements: (1) the initiation or continuation of a criminal proceeding against him by the defendants; (2) termination of the
proceeding in his favor; (3) lack of probable cause for commencing the proceeding; and (4) actual malice as a motivation for the
defendant's actions. See Frost, 980 F.3d at 242. Here, the analyses
under the first and fourth elements are specific to each defendant; the analyses under the second and third elements are the
same for both. If Defendants show, as a matter of law, that no
reasonable jury could find in Mr. Herrera-Amador's favor on any
one of the four elements, they are entitled to summary judgment.
See Fed. R. Civ. P. 56(a) (''The court shall grant summary judgment if the movant shows that there is no genuine dispute as to

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any material fact and the movant is entitled to judgment as a
matter of law."); Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986) ("summary judgment will not lie if the dispute about
a material fact is 'genuine,' that is, if the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party''). 1
The court adopts Judge Scanlon's finding, without objection from
the parties, that triable issues of fact exist as to whether Mr. Herrera-Amador's arrest was supported by probable cause. (See R&R
at 36-42.) Whether the officers personally involved in his prosecution acted with malice and whether they are protected by
qualified immunity depends on resolving the factually contested
probable cause issue and therefore neither analysis is suitable for
summary judgment. (See id. at 42-44.)
The court now turns to the contested portions of Judge Scanlon's
recommendation: first, whether a reasonable jury could conclude
that the proceedings against Mr. Herrera-Amador were terminated in his favor; and second, whether a reasonable jury could
conclude that Detective Arias was personally involved in initiating the criminal proceedings against Mr. Herrera-Amador.

A. Favorable Termination
In Lanning v. City of Glens Falls, the Second Circuit clarified that
for malicious prosecution claims brought pursuant to 42 U.S.C. §
1983, the relevant state's tort law "serves only as a source of persuasive authority rather than binding precedent in defining" the
elements of the claim. Lanning v. City of Glens Falls 908 F.3d 19,
25 (2d Cir. 2018). Thus, although New York law requires only
that the termination of a criminal proceeding is "not inconsistent
with the innocence of the accused" in order to be favorable, federal law requires the proceeding to be terminated "in a manner
When quoting cases, and unless otherwise noted, all citations and quotation marks are omitted, and all alterations are adopted.
1

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that is indicative of Plaintiff's innocence." Id. at 25, 27 (quoting
Cantalino v. Danner, 96 N.Y.2d 391, 395 (2001)).
The issue at bar is how to consider a dismissal on speedy trial
grounds under Lanning. Under New York law, it is clear that a
dismissal on speedy trial grounds "is not inconsistent" with innocence and satisfies the favorable termination element of a
malicious prosecution claim. See Rogers v. City ofAmsterdam, 303
F.3d 155, 160 (2d Cir. 2002). However, since Lanning, district
courts in this circuit have differed on the question of whether a
speedy trial dismissal is affirmatively indicative of innocence, so
as to support a malicious prosecution claim under Section 1983.
Compare Minus v. City of New York, 488 F. Supp. 3d 58, 66
(S.D.N.Y. 2020) (concluding that "speedy trial dismissal is not a
favorable termination for purposes of a Section 1983 claim without an affirmative indication of the accused's innocence");
Jamison v. Cavada, 17-cv-1764 (LTS) (SDA), 2019 WL 6619328
at *5 (S.D.N.Y. Dec. 5, 2019) ("[B]ecause a dismissal on speedy
trial grounds does not affirmatively indicate that Plaintiff was innocent of the charges, Plaintiff cannot demonstrate that the
proceedings were terminated in his favor."); Thompson v. City of
New York, 17-cv-3064 (DLC), 2019 WL 162662 at *4 (S.D.N.Y.
Jan. 10, 2019) (''The dismissal of [Plaintiffs] case on speedy trial
grounds does not affirmatively indicate his innocence....") with
Scott v. City of New York, 16-cv-834 (NGG) (ST), 2020 WL
208915 at *7 (E.D.N.Y. Jan. 14, 2020) (finding that plaintiffs,
whose charges were dismissed on speedy trial grounds, "may . .
. proceed with their § 1983 malicious prosecution claims");
Blount v. City of New York, 15-cv-5599 (PKC) (JO); 2019 WL
1050994, at *5 (E.D.N.Y. Mar. 5, 2019) ("While Lanning may
raise the bar for establishing favorable termination under § 1983
in certain cases, the dismissal of a prosecution on speedy trial
grounds in this case easily clears that bar."); Nelson v. City of New
York, 18-cv-4636 (PAE), 2019 WL 3779420, at *12 (S.D.N.Y.
Aug. 9, 2019) (finding "strong indications in Lanning that the

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Second Circuit would regard a dismissal under the state speedy
trial provision as a favorable termination").
The court does not read Lanning to foreclose federal malicious
prosecution claims for all cases dismissed on speedy trial
grounds. As the Second Circuit has held, "the dispositive inquiry
is whether the failure to proceed implies a lack of reasonable
grounds for the prosecution." Murphy v. Lynn, 118 F.3d 938, 948
(2d Cir. 1997). 2 A speedy trial dismissal may not support a malicious prosecution claim without more, but to find that it
automatically defeats a malicious prosecution claim runs afoul of
the Second Circuit's admonition that "[f]ailure to treat a speedy
trial dismissal as a favorable termination 'would encourage state
officials, hoping to shield wrongdoing officers from liability, to
commence criminal prosecutions against the victims of that
wrongdoing and simply hold the criminal charges in abeyance
until a court is forced to dismiss the case after six or more
months."' Rogers, 303 F.3d at 160 (quoting Murphy, 118 F.3d at
849) (alteration adopted). If the speedy trial clock expires because a lack of evidence leaves prosecutors unable to build a case
against someone arrested without probable cause, it would be
nonsensical and pernicious to bar malicious prosecutions claims
that would have been available if the prosecutors freed the accused sooner.
Here, a reasonable jury could conclude that the circumstances
surrounding the dismissal of Mr. Herrera-Amador's case were indicative of innocence. First, although his co-defendants were
indicted promptly after their arrest, Mr. Herrera-Amador was
never indicted and the charges against him may never have been
presented to the grand jury. Cf Lanning, 908 F.3d at 28 ("When
Lanning favorably cited Murphy for the proposition that under traditional
common law, a speedy trial dismissal is a "favorable termination." Lanning,
2

908 F.3d at 27 n.6. See also Nelson, 2019 WL 3779420, at ''12 (concluding
that Murphy is still good law after Lanning).

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a person has been arrested and indicted, absent an affirmative
indication that the person is innocent of the offense charged, the
government's failure to proceed does not necessarily imply a lack
of reasonable grounds for the prosecution.") (emphasis added).
Moreover, the prosecutor's statement at the dismissal proceeding
that the case "cannot go forward" after the office conducted an
investigation could reasonably be understood to mean that the
case against Mr. Herrera-Amador was too weak to continue. If
so, the fact that the District Attorney only dropped the case when
the statutory period to bring an indictment expired does not provide immunity from a malicious prosecution claim. 3

B. Claim Against Defendant Arias
For the purposes of a malicious prosecution claim, "police officers
can 'initiate' prosecution by filing charges or other accusatory instruments." Cameron v. New York, 598 F.3d 50, 63 (2d Cir.
2010). "A police officer can also initiate a prosecution by creating
material, false information and forwarding that information to a
prosecutor or by withholding material information from a prosecutor." Costello v. Milano, 20 F. Supp. 3d 406, 415 (S.D.N.Y.
2014). An officer who "misrepresented the evidence to the prosecutors, or failed to provide the prosecutor with material
Contrary to Defendants' assertion, it is appropriate for the court to leave
for the jury the question of whether the prosecution was favorably terminated, because that issue turns on a contested question of fact. (See Obj. at
4.) Defendants quote Rodriguez v. City of New York, 291 F. Supp. 3d 396,
413-14 (S.D.N.Y. 2018): "In general, the question of whether a termination was favorable to the accused is a matter of law for the court." The full
quotation reads: "In general, the question of whether a termination was
favorable to the accused is a matter oflaw for the court, but where questions
remain as to the reason for the termination, this becomes an issue of fact for
the jury." (Emphasis added.) Defendants quote from Rodriguez in a manner
that seems designed to obscure the existence and applicability of a clear
exception to the general rule they urge the court to follow. The court encourages Defendants to argue their case under the law as it exists, rather
than attempting to mislead the court as to the state of the law.
3

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evidence or information ... while knowing that he was making
a material misrepresentation or omission" can also be held to
have initiated a prosecution for the purposes of a malicious prosecution claim. See Morse v. Fausto, 804 F.3d 538, 548 (2d Cir.
2015); Manganiello v. City of New York, 612 F.3d 149, 163 (2d
Cir. 2010).
Officer Lee, indisputably, satisfies the initiation element because
he executed the criminal complaint against Mr. Herrera-Amador.
However, Defendants argue that Judge Scanlon erred in finding
the same for Detective Arias, because "Plaintiffs Complaint is devoid of any particularized allegation as to how [he] actually
participated in the allegedly malicious prosecution." (Obj. at 9.)
Unlike every case cited in Defendants' objection on this point, this
is a motion for summary judgment, not a motion to dismiss, and
the court considers the record in its entirety, not only the pleadings. A reasonable jury could find that Detective Arias conducted
a selective and targeted investigation by only interviewing one
witness and failing to record that witness's professed inability to
reliably identify any suspects other than Alanzo, and that his view
of the scene was obstructed in significant respects. See Dufort v.
City of New York, 874 F.3d 338, 353 (2d Cir. 2017) ("The 'initiation' requirement is met when the plaintiff can establish that
police officers forwarded statements to a prosecutor without
sharing that the statements were suspect.") The record establishes Detective Arias worked closely with Officer Lee,
particularly with regard to Paulino, and Defendants are not entitled to summary judgment on the malicious prosecution claim
against him.
IV. CONCLUSION

For the reasons stated above, the court ADOPTS Judge Scanlon's
R&R in full. Defendants' Motion for Summary Judgment (Dkt.
SO) is GRANTED as to Defendants NYPD and Sergeant Matthies
and DENIED as to Defendants Officer Lee and Detective Arias.

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The parties are DIRECTED to contact the chambers of Judge
Scanlon concerning next steps in this case.
SO ORDERED.
Dated:

Brooklyn, New York
July 15, 2021

I sl Nicholas G. Garaufis
NICHOLAS G. GARAUFIS
United States District Judge

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