Harrison v. State of New York et al
Filing
121
MEMORANDUM AND ORDER: For the reasons stated in the attached memorandum and order, Defendants' motion for summary judgment 116 is GRANTED and the complaint is dismissed in its entirety. The Clerk of Court is respectfully directed to mail a copy of this memorandum and order to the pro se litigant, enter judgment and close this case. Ordered by Judge LaShann DeArcy Hall on 3/29/2021. (Williams, Erica)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MALEK HARRISON,
Plaintiff,
v.
STATE OF NEW YORK, COUNTY OF NASSAU,
NASSAU COUNTY POLICE DEPT., NASSAU
COUNTY DETECTIVE RONALD RISPOLI, NASSAU
COUNTY DETECTIVE ANTHONY DICAPRIO,
NASSAU COUNTY DETECTIVE JEFFREY S.
MARSHALL, NASSAU COUNTY OFFICE OF THE
DISTRICT ATTORNEY, JHOUNELLE CUNNINGHAM,
ASSISTANT DISTRICT ATTORNEY, THE TJX
COMPANIES, INC., NILS RENNER, TJX MARMAXX,
NATIONAL TASKFORCE INVESTIGATOR,
CHRISTINE GRIMAUDO, MARSHALLS CASHIER, US
SECRET SERVICE, US SECRET SERVICE AGENT
JOSEPH GERBINO, GEOFFREY PRIME, ATTORNEY,
THE LAW OFFICE OF ELLIOT SCHLISSEL,
MEMORANDUM
AND ORDER
14-CV-01296 (LDH)(AKT)
Defendants.
LASHANN DEARCY HALL, United States District Judge:
Plaintiff Malek Harrison, proceeding pro se, brings the instant action against the County
of Nassau, Nassau County Police Department, Nassau County Office of the District Attorney,
Detective Ronald Rispoli, Detective Anthony DiCaprio, Detective Jeffrey Marshall, and
Assistant District Attorney (“ADA”) Jhounelle Cunningham,1 asserting claims for false arrest,
malicious prosecution, conspiracy to deprive him of his due process rights, and Monell liability
pursuant to 42 U.S.C. § 1983. Defendants move pursuant to Rule 56 of the Federal Rules of
Civil Procedure for summary judgment to dismiss Plaintiff’s complaint in its entirety.
1
All other Defendants named in the complaint were previously dismissed from this action. (ECF Nos. 60, 65.)
UNDISPUTED FACTS2
On January 12, 2011, a man approached a cash register at Marshalls in Elmont, NY, and
made three separate purchases using nine one-hundred dollar bills. (Reissman Decl. Supp. Mot.
Summ. J. (“Reissman Decl.”), Ex. C at 123, ECF No. 116.) The cashier who rang up the
transaction was Christine Grimaudo. (Nassau County Defendants’ Statement of Material Facts
Pursuant to Local Civ. R. 56.1 (“Defs.’ 56.1”) ¶¶ 2-3, ECF No. 116-1; Reissman Decl., Ex C.)
The transaction was reported to Nils Renner, the National Task Force Investigator for Marshalls’
affiliated company, the Marmaxx Group. (Defs.’ 56.1 ¶ 1.) Renner reviewed the bills and the
receipts from the transactions. (Reissman Decl., Ex. A at 6.) Renner observed that at least three
of the bills had identical serial numbers, and he believed all nine bills were counterfeit. (Id.) At
some point, Renner received an anonymous call from a store employee who identified the
purchaser as Plaintiff. (Id.) Renner contacted Detective Rispoli and turned over the information
related to the transaction, including the counterfeit currency. (Id., Ex. B at 9.) On February 15,
2011, Renner, under penalty of perjury, signed a statement attesting to the investigation he
conducted into the counterfeit bills. (Id., Ex. A at 6.) Detective Rispoli verified that the bills
were counterfeit, and notified U.S. Secret Service Agent Gerbino, who confirmed the bills were
counterfeit.4 (Reissman Decl., Ex. B at 9.) On February 16, 2011, Detective Rispoli showed a
The following facts are taken from Defendants’ statements of material facts pursuant to Local Rule 56.1 and
annexed exhibits. Plaintiff provided no statement of material facts, but the Court has considered exhibits that were
attached to his opposition papers. Unless otherwise noted, the facts are undisputed.
3
Pagination refers to the page numbers assigned by ECF.
4
In his opposition papers to the motion for summary judgment, Plaintiff moved the Court to reopen discovery and
requested an extension to oppose Defendants’ motion for summary judgment as he had submitted a Freedom of
Information Act Request on May 28, 2020 to the Secret Service to obtain any records of their investigation into this
incident. (Pl.’s Opp'n Defs.’ Mot. Summ. J. (“Pl.’s Opp'n”) 4, 6, ECF No. 119; Pl.’s Exs., ECF No. 119-1 at 2.)
Discovery had closed on May 1, 2020, after a period of almost three years in which Plaintiff made no meaningful
effort to complete discovery. (May 1, 2020 Order.) Nevertheless, on January 6, 2021, the Court held a status
conference and reopened discovery for 30 additional days to allow Plaintiff an opportunity to obtain any additional
information he wished the Court to consider in opposition to Defendants’ motion. (Jan. 6, 2021 Minute Entry.)
Plaintiff filed no additional discovery during this period. Moreover, on January 6, 2021, Defendants filed an
affidavit that they had collected from the Secret Service indicating that the agency has no information related to the
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photo array of six faces to Grimaudo, who, under penalty of perjury, signed a statement that
identified Plaintiff as the person who made the January 12 purchases at her register. (Defs.’ 56.1
¶¶ 2-3; Reissman Decl., Ex. C at 12.)
On February 17, 2011, Detective Rispoli arrested Plaintiff on seven charges of criminal
possession of a forged instrument. (Defs.’ 56.1 ¶ 8.) ADA Cunningham prosecuted the criminal
case against Plaintiff. (Id. ¶ 9.) Ultimately, in October 2013, the criminal charges against
Plaintiff were dismissed because the memories of witnesses, including Grimaudo’s, had faded.
(Id. ¶ 10.)
STANDARD OF REVIEW
Summary judgment must be granted when there is “no genuine dispute as to any material
fact and the movant[s] are entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see
also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986). A genuine dispute of
material fact exists “if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson, 477 U.S. at 248. The movants bear the initial burden of
demonstrating the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477
U.S. 317, 330–31 (1986); Feingold v. New York, 366 F.3d 138, 148 (2d Cir. 2004). Where the
non-movant bears the burden of proof at trial, the movants’ initial burden at summary judgment
can be met by pointing to a lack of evidence supporting the non-movant’s claim. Celotex Corp.,
477 U.S. at 325. Once the movants meet their initial burden, the non-movant may defeat
summary judgment only by producing evidence of specific facts that raise a genuine issue for
trial. See Fed. R. Civ. P. 56(e); see also Anderson, 477 U.S. at 250; Davis v. New York, 316 F.3d
93, 100 (2d Cir. 2002). The Court is to believe the evidence of the non-movant and draw all
arrest of Plaintiff. (ECF No. 120.) Accordingly, the Court closed discovery on March 3, 2021. (Mar. 4, 2021
Order.)
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justifiable inferences in his favor, Anderson, 477 U.S. at 255, but the non-movant must still do
more than merely assert conclusions that are unsupported by arguments or facts. BellSouth
Telecomms., Inc. v. W.R. Grace & Co., 77 F.3d 603, 615 (2d Cir. 1996).
“It is well established that the submissions of a pro se litigant must be construed liberally
and interpreted to raise the strongest arguments that they suggest,” Triestman v. Fed. Bureau of
Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation marks and emphasis omitted),
including when facing a summary judgment motion, Jorgensen v. Epic/Sony Records, 351 F.3d
46, 50 (2d Cir. 2003). Nevertheless, the “application of this different standard does not relieve
plaintiff of his duty to meet the requirements necessary to defeat a motion for summary
judgment.” Id. at 50 (internal quotation marks omitted).
DISCUSSION
I.
False Arrest
“Probable cause is an absolute defense to a false arrest claim.” Stansbury v. Wertman,
721 F.3d 84, 89 (2d Cir. 2013) (internal modification omitted). Defendants argue there is no
question of material fact as to whether there was probable cause for Plaintiff’s arrest. (Nassau
County Defs.’ Mem. L. Supp. Mot. Summ. J. (“Defs.’ Mem.”) 14-16, ECF No. 116-2.) The
Court agrees.
An officer has probable cause to arrest when he or she 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.” Jaegly v. Couch, 439 F.3d 149, 152 (2d Cir. 2006). A court “must consider only those
facts available to the officer at the time of the arrest and immediately before it.” Stansbury, 721
F.3d at 89 (internal modification omitted). “A court examines each piece of evidence and
considers its probative value, and then “looks to the totality of the circumstances to evaluate
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whether there was probable cause to arrest the plaintiff.” Id. (internal modification and
quotations omitted).
Here, Detective Rispoli had the following facts supporting probable cause: (1) nine
counterfeit bills used to purchase goods at Marshalls, which were confirmed to be counterfeit by
Secret Service Agent Gerbino, (Reissman Decl., Ex. B at 9); (2) a positive identification of
Plaintiff by Grimaudo, the cashier who rang up the three transactions, after she was shown a
photo array of six photographs, (id., Ex. C at 12); and (3) the complaint signed by Renner, (id.,
Ex. A at 6).
The positive identification of a perpetrator by a witness or a victim can form the basis for
probable cause, “unless the circumstances raise doubt as to the person’s veracity.” Curley v. Vill.
of Suffern, 268 F.3d 65, 70 (2d Cir. 2001). Plaintiff presses that the Court should doubt
Grimaudo’s veracity for several reasons. First, she was not mentioned in Renner’s statement,
and there is nothing in the record that indicates how the police identified her as the cashier in the
transaction. (Pl.’s Opp'n Defs.’ Mot. Summ. J. (“Pl.’s Opp’n”) 3, ECF No. 119.) Second,
because Grimaudo had no knowledge that the bills were counterfeit when she rang up the
transaction, she would have no reason to recall that transaction one month later out of the
potentially hundreds of transactions that occurred since then at her register. (Id.) Third,
Grimaudo’s failure to remember the incident or her identification of Plaintiff in the photo array
in 2013 casts doubt as to the veracity of her initial identification in 2011. (Id. 3-4.)
Plaintiff has cited to no caselaw to support an argument that these circumstances should
be fatal to the Court finding that probable cause existed for the arrest. That there is no evidence
about how the police identified Grimaudo as the cashier involved or that she made the
identification one month after the incident does not render the identification invalid. Grimaudo
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identified Plaintiff under penalty of perjury and had no incentive to single out Plaintiff as the
perpetrator. See Stansbury, 721 F.3d at 91 (“[The officer] had no reason to doubt the honesty of
[two witnesses], each of whom made statements under penalty of perjury and lacked incentive to
single out [the plaintiff] as the perpetrator.”). Grimaudo positively identified Plaintiff from a
photo array of the six individuals, all of whom had similar hairstyles and physical characteristics.
(Reissman Decl., Ex. C at 12.) There is nothing in the record to suggest the photo array was
improper. Cf. Stansbury , 721 F.3d at 90 (condemning use of a one-photograph array to confirm
identity); United States v. Eltayib, 88 F.3d 157, 166 (2d Cir. 1996) (“A photo array is improperly
suggestive if the picture of an accused, matching descriptions given by the witness, so stood out
from all of the other photographs as to suggest to an identifying witness that that person was
more likely to be the culprit.” (internal quotation marks and brackets omitted)). Lastly, because
the Court must only consider the facts available at the time of the arrest and immediately before
it, Grimaudo’s failure to remember the incident or the photo array two years later is irrelevant for
the inquiry into probable cause at the time of the arrest.
Plaintiff further presses that the Court should not consider Renner’s sworn statement
because it was falsified. (Pl.’s Opp’n 2-3.) Plaintiff argues that he contacted Renner during
discovery and Renner refused to sign an affidavit affirming that Renner was the author of the
statement he submitted to Detective Rispoli. (Id. 2.) Plaintiff offers a theory that Detective
Rispoli forged Renner’s signature. (Id.) Moreover, Plaintiff argues that relying on Renner’s
complaint to support probable cause for his arrest “proves the entire system [is] altogether rigged
. . . in favor of maintaining a corrupt judicial process against people of African descent.” (Id. 3.)
However, none of Plaintiff’s arguments regarding Renner are supported by citations to
admissible evidence or go beyond conclusory allegations or unsubstantiated speculation. See
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Fujitsu Ltd. v. Fed. Exp. Corp., 247 F.3d 423, 428 (2d Cir. 2001) (“While all factual ambiguities
must be resolved in favor of the nonmoving party, the nonmoving party may not rely on
conclusory allegations or unsubstantiated speculation.” (internal quotations omitted)).
Accordingly, these arguments fail and the claim against Defendants Rispoli, Marshall, and
Dicaprio for false arrest is dismissed.
II.
Immunity
Defendants argue that the claims against Assistant District Attorney Cunningham for
malicious prosecution and conspiracy to deprive Plaintiff of due process rights must be
dismissed as she is immune from suit. (Defs.’ Mem. 11-14.) The Court agrees.
Absolute immunity bars civil suits against a prosecutor for advocatory conduct that is
“intimately associated with the judicial phase of the criminal process.” Giraldo v. Kessler, 694
F.3d 161, 165 (2d Cir. 2012) (quoting Imbler v. Pachtman, 424 U.S. 409, 430 (1976)).
Immunity attaches to conduct “preliminary to the initiation of a prosecution and actions apart
from the courtroom.” Id. This is because “[t]he efficient, and just, performance of the
prosecutorial function would be chilled if Government attorneys were forced to worry that their
choice of trial strategy and tactics could subject them to monetary liability, or at best, the
inconvenience of proving a ‘good faith’ defense to a § 1983 action.” Taylor v. Kavanagh, 640
F.2d 450, 452 (2d Cir. 1981). This conduct to which immunity attaches includes decisions about
“whether to present a case to a grand jury, whether to file an information, whether and when to
prosecute, whether to dismiss an indictment against particular defendants, which witnesses to
call, and what other evidence to present.” Giraldo, 694 F.3d at 165 (quoting Imbler, 242 U.S. at
341 n.33). The question asked is “whether a reasonable prosecutor would view the acts
challenged by the complaint as reasonably within the functions of a prosecutor.” Ogunkoya v.
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Monaghan, 913 F.3d 64, 69 (2d Cir. 2019). An official claiming immunity bears the burden of
showing that immunity applies. Giraldo, 694 F.3d at 165.
Here, Plaintiff argues that ADA Cunningham relied on the allegedly forged complaint
made by Renner in deciding to bring charges against Plaintiff. (See Pl.’s Opp’n 3.) Moreover,
Plaintiff argues ADA Cunningham failed to request certain records from Marshalls because she
knew that no such records existed—or, in other words, that she was somehow complicit in a
scheme to prosecute Plaintiff for a crime he did not commit. (Pl.’s Mem. 4-5.) However, these
are claims against ADA Cunningham for conduct that is squarely within her function as a
prosecutor—namely her decisions about whether to prosecute, and what evidence to collect and
present. And, even assuming that Plaintiff had adduced any evidence to support these wild
conjectures, relying on falsified evidence does not take a prosecutor outside of the protection of
immunity. See Taylor, 640 F.2d at 452 (observing that falsification of evidence, coercion of
witnesses, failure to drop charges until immediately before trial, the solicitation and subornation
of perjured testimony, the withholding of evidence, or the introduction of illegally-seized
evidence at trial does not create liability in damages). Accordingly, the claims against ADA
Cunningham are dismissed.
III.
Malicious Prosecution
Plaintiff also bring a malicious prosecution claim against Detective Rispoli. The
elements of a malicious prosecution claim are: “(1) the commencement or continuation of a
criminal proceeding by the defendant against the plaintiff, (2) the termination of the proceeding
in favor of the accused, (3) the absence of probable cause for the criminal proceeding and (4)
actual malice.” Dufort v. City of New York, 874 F.3d 338, 350 (2d Cir. 2017). Probable cause,
in the context of malicious prosecution, exists where “facts and circumstances [] would lead a
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reasonably prudent person to believe the plaintiff guilty.” Stansbury, 721 F.3d at 95.
Defendants argue that the Court should grant summary judgment on this claim because probable
cause existed for the prosecution. (Defs.’ Mem. 16-17.) The Court agrees.
The Court has already found there was probable cause for the arrest. Where there was
probable cause to arrest, plaintiff must show that the defendant learned of some “intervening
facts” undermining probable cause “between arrest and initiation of prosecution, [or the] claim[ ]
of malicious prosecution cannot survive.” Thomas v. City of New York, 562 F. App’x. 58, 60 (2d
Cir. 2014); see also Lowth v. Town of Cheektowaga, 82 F.3d 563, 571 (2d Cir. 1996), as
amended (May 21, 1996) (“In order for probable cause to dissipate [between arrest and
prosecution], the groundless nature of the charges must be made apparent by the discovery of
some intervening fact.”). Plaintiff has adduced no evidence that Detective Rispoli learned of any
intervening facts undermining probable cause that came to light after his arrest. Such lack of
evidence warrants dismissal. See Soto v. City of New York, 132 F. Supp. 3d 424, 53 (E.D.N.Y.
2015) (granting summary judgment for defendants where plaintiff produced no evidence that law
enforcement officers became aware of exculpatory evidence that could undermine that probable
cause after arrest); Leogrande v. Suffolk Cty., No. 08-CV-3088, 2016 WL 889737, at *4
(E.D.N.Y. Mar. 9, 2016) (granting summary judgment to defendant officers where, in part,
plaintiff adduced no post-arrest facts that would alter the initial finding of probable cause).
Plaintiff’s malicious prosecution claim is therefore dismissed.
IV.
Monell5
Plaintiff has adduced no evidence to support his constitutional claims, and accordingly,
any claim pursuant to Monell v. Department of Social Services, 436 U.S. 658 (1978) cannot lie.
As Defendants argue, (Defs.’ Mem. 7-8), neither the Nassau County Police Department nor the Nassau County
District Attorney’s Office are suable entities and the claims against them are therefore dismissed. See, e.g., Allen v.
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See City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986) (observing that Monell liability does
not lie where a municipality’s officer does not inflict constitutional harm); Segal v. City of New
York, 459 F.3d 207, 219 (2d Cir. 2006) (“[Monell] extends liability to a municipal organization
where that organization’s failure to train, or the policies or customs that it has sanctioned, led to
an independent constitutional violation.”). Moreover, even if Plaintiff had adduced evidence to
support any of his constitutional claims, a single incident, like the one alleged here, cannot form
the basis for a Monell claim. See City of Oklahoma City v. Tuttle, 471 U.S. 808, 823–24 (1985)
(“Proof of a single incident of unconstitutional activity is not sufficient to impose liability under
Monell, unless proof of the incident includes proof that it was caused by an existing,
unconstitutional municipal policy, which policy can be attributed to a municipal policymaker.”).
CONCLUSION
For the foregoing reasons, Defendants’ motion for summary judgment is GRANTED and
the complaint is dismissed in its entirety.
SO ORDERED.
Dated: Brooklyn, New York
March 29, 2021
/s/ LDH
LASHANN DEARCY HALL
United States District Judge
New York, No. 15-CV-3653 JS AYS, 2015 WL 6507477, at *3 (E.D.N.Y. Oct. 27, 2015) (dismissing claims against
police department and district attorney’s office because “[i]t is well-established that under New York law,
departments that are merely administrative arms of a municipality do not have a legal identity separate and apart
from the municipality and, therefore, cannot sue or be sued”).
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