Nash v. Nassau County et al
Filing
38
ORDER granting 32 Motion for Summary Judgment. IT IS HEREBY ORDERED that for the reasons set forth herein, defendants' motion for summary judgment is granted in its entirety. The Clerk of the Court shall enter judgment accordingly and close this case. SO ORDERED. Ordered by Judge Joseph F. Bianco on 3/25/2019. (Clarke, Molly)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 16-CV-2148 (JFB) (AYS)
_____________________
GEORGE NASH,
Plaintiff,
VERSUS
COUNTY OF NASSAU, ET AL.,
Defendants.
___________________
MEMORANDUM AND ORDER
March 25, 2019
___________________
JOSEPH F. BIANCO, District Judge:
to punish.1
Plaintiff George Nash brings this case
against defendants Nassau County, the Nassau
County Police Department (“NCPD”), Acting
Police Commissioner Thomas Krumpter,
Police Officers David Ditieri, Craig Berge,
Shaun Michels, Thomas Houghton, Michael
Spadaccini, Lieutenant Marc Timpano, and
Sergeant Adam Fischer (collectively,
“defendants”). The case stems from plaintiff’s
October 4, 2013 arrest by the Nassau County
Police following a domestic disturbance at the
residence plaintiff shared with his thenspouse, Donna Nash. Plaintiff alleges that the
police lacked probable cause to arrest him and
brings claims under 42 U.S.C. § 1983 for false
arrest, malicious prosecution, official
misconduct, failure to supervise, and failure
This lawsuit focuses upon the arrest and
prosecution of plaintiff for the events on
October 4, 2013, when his then-spouse alleged
that plaintiff assaulted her at their home,
threatened her life, and made her fear for her
safety and that of their daughter.
1
At oral argument, plaintiff’s counsel made clear that
he was not attempting to assert an independent claim
for “official misconduct” or a due process claim based
upon the taking of plaintiff’s guns. In any event, any
such claims could not survive summary judgment
because no civil cause of action exists for official
misconduct and there are no allegations (or evidence)
that could support a due process claim under Section
1983.
On June 1, 2018, defendants moved for
summary judgment pursuant to Federal Rule
of Civil Procedure 56. For the reasons that
follow, defendants’ motion is granted in its
entirety. The Court concludes that, based
upon the undisputed facts, there was probable
cause to arrest plaintiff as a matter of law.
Specifically, even in plaintiff’s version of the
events, it is undisputed that, before plaintiff
was arrested, defendants Spadaccini, Ditieri,
Berge, and Michels responded to the scene
because plaintiff’s then-spouse Donna Nash
called 911 regarding a domestic disturbance,
that Donna Nash made a sworn statement that
plaintiff assaulted her, threatened her life, and
that she feared for her safety and that of her
daughter, and that defendants did not learn of,
or observe anything, at the scene that
undermined Donna Nash’s credibility. Those
sworn assertions by Donna Nash were
sufficient to establish probable cause to arrest
and prosecute plaintiff for Misdemeanor
Assault in the Third Degree With Intent to
Cause Physical Injury, in violation of New
York Penal Law § 120.00 and Misdemeanor
Menacing in the Third Degree, in violation of
New York Penal Law § 120.15. Absent
circumstances calling Donna Nash’s report
into question at the time of the arrest, the
responding officers were not required to
engage in further investigation before
arresting plaintiff.
arresting officers had any knowledge of an
alleged romantic relationship between the
neighbor and Donna Nash. In any event, even
assuming arguendo that the arresting officers
were aware of that relationship, there is no
evidence in the record (even construing the
evidence most favorably to plaintiff) from
which a rational jury could conclude that the
defendants had any basis to question the
veracity of Donna Nash’s sworn statement. In
short, there is no evidence of any agreement
by the neighbor and Donna Nash to falsely
implicate plaintiff in these crimes and, in any
event, there is no evidence that the arresting
officers would have had any knowledge of
such collusion. This wholly speculative
theory is insufficient to create a material issue
of disputed fact that would preclude summary
judgment.
Even assuming arguendo that there was not
probable cause to arrest and prosecute, the
individual defendants are entitled to qualified
immunity because, even under plaintiff’s
version of the information available to the
police on that date and drawing all reasonable
inferences in plaintiff’s favor, officers of
reasonable competence could disagree over
whether there was probable cause to arrest.
Although plaintiff would like to second guess
the officers’ decision to arrest without further
investigation, a reasonable police officer
thrust into this potentially volatile situation
even under the factual circumstances as
described by plaintiff—regarding a domestic
dispute that caused his then-spouse, per her
sworn statement, to allege assault and fear for
her safety—could reasonably conclude that
probable cause existed for the arrest and
prosecution of plaintiff for Misdemeanor
Assault in the Third Degree With Intent to
Cause Physical Injury and Misdemeanor
Menacing in the Third Degree.
Plaintiff disputes the truth of Donna Nash’s
report and asserts that relationships between
Donna Nash and her neighbor, and between
the neighbor and members of the NCPD
created bias on the part of the officers, causing
them to believe Donna Nash and arrest
plaintiff absent probable cause.
As a
threshold matter, although Donna Nash called
the police from the neighbor’s home, plaintiff
has failed to put forth any evidence that the
2
Finally, because there is no underlying
constitutional violation because of the
existence of probable cause, the Monell claims
against Nassau County also cannot survive
summary judgment.
Incident Report:
I returned home from work and went
down to my office. My husband
George Nash came down and a verbal
argument ensued regarding our
divorce. George then became enraged
to the point that he grabbed me by the
face and pushed me over the chair, I
was seated when he grabbed me.
After George let go he left the room
and I grabbed my cell phone to call
911. When he found out I called 911
he said “I will kill you, I will gut you.
If you call the cops I have nothing to
lose I will kill you.” He also
threatened to harm our daughter in the
same way but I do not remember his
exact words. My lower jaw is in pain
from when he grabbed me. I am in fear
for my personal safety as well as my
daughter’s personal safety. I want him
arrested for grabbing me and
threatening mine and my daughter’s
life.
I. BACKGROUND
A. Factual Background
The following facts are taken from the
parties’ depositions, declarations, exhibits,
and respective Local Rule 56.1 statements of
facts.2 Upon consideration of a motion for
summary judgment, the Court construes the
facts in the light most favorable to the nonmoving party. See Capobianco v. City of New
York, 422 F.3d 47, 50 n.1 (2d Cir. 2005).
Thus, with regard to defendants’ motion for
summary judgment, the Court shall construe
the facts in favor of plaintiff.
On October 4, 2013, Nassau County
Police Department officers responded to a
domestic disturbance at the residence that
plaintiff shared with his then-spouse Donna
Nash. (Defs.’ 56.1 ¶ 5.) Before NCPD
officers arrived, plaintiff left the premises and
went to his mother’s home nearby. (Id. at 11.)
At the time of the incident, plaintiff had
several licensed firearms, all of which he
stored at his mother’s home. (Nash Dep. at
21:16-17.)
(Defs.’ 56.1 ¶ 5; Reissman Dec., Ex. B at 1.)
Officer Ditieri’s narrative of the investigation,
based upon the inverview of Donna Nash,
noted that plaintiff “pushed and then grabbed
victim by the face . . . let victim go and then
stated ‘I will kill you’ and ‘I will gut you,’”
“threatened to injure their daughter Megan,”
and that Donna Nash “ha[d] pain in her jaw
from the altercation and [wa]s in fear of her
safety,” “requested an arrest,” and “refused
medical treatment at scene.” (Reissman Dec.,
Ex. B at 2.)
Upon his arrival at the scene, NCPD
Officer Ditieri spoke to Donna Nash, who
provided the following sworn statement for
the purposes of the New York State Domestic
When patrol supervisor Officer Berge
arrived, Officer Ditieri reported to him that,
“[i]t’s a domestic dispute, husband and wife,
that the husband has some hand guns and he
2
Unless otherwise noted, where one party’s Local Rule
56.1 statement is cited, the opposing party does not
deny the assertion or does not support its denial or
objection with admissible evidence.
3
threatened to kill his wife and he fled the
scene and she was fearful that he was going to
come back and kill her.” (Defs.’ 56.1 ¶ 9,
quoting Berge Dep. at 7:8-18.) Donna Nash
also told Officer Berge that “in her mind,
plaintiff left the scene to go to his mother’s
house in Massapequa, where plaintiff’s
handguns were stored, and return with a
handgun to kill her.” (Defs.’ 56.1 ¶ 10, citing
Berge Dep. at 7:20-8:11.) Officers did not
interview either of the Nash children, both of
whom were home at the time of the incident.
(Pls.’ 56.1 ¶ 16.)
Donna Nash was in a romantic relationship
with their neighbor. See Pls.’ 56.1 ¶ 9
(alleging the neighbor was Donna Nash’s
“paramour”). Further, he asserts that the
neighbor was friends with defendant Marc
Timpano (id. ¶ 14), cousin of the former head
of the Patrolmen’s Benevolent Association in
the area (id. ¶ 15), and knew several of the
responding officers because they “turned out”
– that is, picked up their squad cars – at the
North Massapequa firehouse, where the
neighbor was a volunteer firefighter (id. ¶ 13).
Plaintiff further asserts that Donna Nash went
to the neighbor’s house after the alleged
assault on October 4, 2013, and called 911
from his house. (Id. ¶ 10.) Plaintiff asserts
that the neighbor’s relationship with Donna
Nash and the police affected the police
officers’ decisions with respect to plaintiff,
including the decision to arrest. There is no
evidence in the record that the responding
officers were aware of any alleged relationship
between the neighbor and Donna Nash, or that
they were pressured by Lieutenant Timpano or
anyone else to effectuate plaintiff’s arrest.3
Officers Ditieri and Berge went to
plaintiff’s mother’s home, where they were
informed that he had left; while en route back
to the scene from plaintiff’s mother’s home,
they learned that plaintiff had returned to his
residence. (Berge Dep. at 9:17-10:15.) They
returned to the scene, where plaintiff was then
handcuffed and placed in the back of a squad
car. (Berge Dep. at 12:12-20.) When Officers
Spadaccini and his assisting officer, Officer
Michels, arrived, Officer Ditieri told Officer
Spadaccini that plaintiff had assaulted Donna
Nash and their daughter. (Spadaccini Dep. at
15:5-7.) Based on the information provided
by Officer Ditieri and contained in the
Domestic Incident Report, Officer Spadaccini
arrested and charged plaintiff with
Misdemeanor Assault in the Third Degree
With Intent to Cause Physical Injury in
violation of New York Penal Law § 120.00
and Misdemeanor Menacing in the Third
Degree in violation of New York Penal Law §
120.15. (Spadaccini Dep. at 28:15-30:2;
Defs.’ 56.1 ¶ 13; Reissman Dec., Ex. E.) On
September 14, 2015, plaintiff was acquitted of
all criminal charges by Judge Helen
Voutsinas. (Pls.’ 56.1 ¶ 21.)
B. Procedural History
On April 29, 2016, plaintiff brought this
action, naming Nassau County, the Nassau
County Police Department, Commissioner
Thomas Krumpter, Police Officers David
Ditieri, Craig Berge, Shaun Michels, Thomas
Houghton, Michael Spadaccini, Lieutenant
Marc Timpano, and Sergeant Adam Fischer as
3
The Court notes that plaintiff’s 56.1 Statement
contains no citations to the record. However, even
assuming there was evidence in the record to support
each of the factual assertions asserted therein (as
opposed to the speculative conclusions and arguments),
the Court concludes that the evidence does not create
material issues of disputed facts as to the claims in this
case, for reasons discussed infra.
In his 56.1 Statement, plaintiff alleges that
4
defendants. Plaintiff alleges that, under 42
U.S.C. § 1983, his arrest and prosecution
violated his Fourth and Fourteenth
Amendment rights. (Compl. ¶¶ 52-72.) He
also asserts claims under Section 1983 that
defendants engaged in official misconduct,
failed to adequately supervise their
subordinates, and that Nassau County and
Nassau County Police Department maintain
customs, policies, and practices involving
failure to train and supervise against,
investigate, and punish unconstitutional
conduct by its officers. (See id. ¶¶ 73-93.)
The court “is not to weigh the evidence but is
instead required to view the evidence in the
light most favorable to the party opposing
summary judgment, to draw all reasonable
inferences in favor of that party, and to
eschew credibility assessments.” Amnesty
Am. v. Town of W. Hartford, 361 F.3d 113,
122 (2d Cir. 2004); see Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)
(summary judgment is unwarranted if “the
evidence is such that a reasonable jury could
return a verdict for the nonmoving party”).
Once the moving party has met its burden,
the opposing party “‘must do more than
simply show that there is some metaphysical
doubt as to the material facts . . . . [T]he
nonmoving party must come forward with
specific facts showing that there is a genuine
issue for trial.’” Caldarola v. Calabrese, 298
F.3d 156, 160 (2d Cir. 2002) (quoting
Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586-87 (1986) (emphasis
in original)). As the Supreme Court stated in
Anderson, “[i]f the evidence is merely
colorable, or is not significantly probative,
summary judgment may be granted.”
Anderson, 477 U.S. at 249-50 (citations
omitted). Indeed, “the mere existence of some
alleged factual dispute between the parties”
alone will not defeat a properly supported
motion for summary judgment. Id. at 247-48
(emphasis in original). Thus, the nonmoving
party may not rest upon mere conclusory
allegations or denials but must set forth
“‘concrete particulars’” showing that a trial is
needed. R.G. Group, Inc. v. Horn & Hardart
Co., 751 F.2d 69, 77 (2d Cir. 1984) (quoting
SEC v. Research Automation Corp., 585 F.2d
31, 33 (2d Cir. 1978)). Accordingly, it is
insufficient for a party opposing summary
judgment “‘merely to assert a conclusion
without supplying supporting arguments or
Following discovery, defendants moved for
summary judgment, and the motion was fully
briefed. The Court held oral argument on the
motion on September 20, 2018. At oral
argument, plaintiff requested that he be
allowed to submit additional briefing on the
issue of any evidence in the record regarding
relationships between defendant officers and
plaintiff’s neighbor. The Court granted the
request, and plaintiff made an additional
submission on September 21, 2018. The
matter is now fully submitted.
II. STANDARD OF REVIEW
The standards for summary judgment are
well settled. Pursuant to Federal Rule of Civil
Procedure 56(c), summary judgment is
appropriate only if “the pleadings, the
discovery and disclosure materials on file, and
any affidavits show that there is no genuine
issue as to any material fact and that the
movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(c); Reiseck v.
Universal Commc’ns of Miami, Inc., 591 F.3d
101, 104 (2d Cir. 2010). The moving party
bears the burden of showing that he or she is
entitled to summary judgment. See Huminski
v. Corsones, 396 F.3d 53, 69 (2d Cir. 2005).
5
facts.’” BellSouth Telecomms., Inc. v. W.R.
Grace & Co., 77 F.3d 603, 615 (2d Cir. 1996)
(quoting Research Automation Corp., 585
F.2d at 33).
municipality and cannot sue or be sued.’”
(quoting Hall v. City of White Plains, 185 F.
Supp. 2d 293, 303 (S.D.N.Y. 2002))); Davis v.
Lynbrook Police Dep’t, 224 F. Supp. 2d 463,
477 (E.D.N.Y. 2002) (dismissing claim
against Lynbrook Police Department because
“[u]nder 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”). Accordingly, summary
judgment is warranted in favor of the Nassau
County Police Department.
III. DISCUSSION
A. Plaintiff’s Claims Under 42 U.S.C.
§ 1983
Plaintiff brings claims under 42 U.S.C.
§ 1983 for false arrest, malicious prosecution,
official misconduct, failure to supervise, and
failure to punish. As set forth below,
defendants are entitled to summary judgment
on these claims because the responding
officers had probable cause to arrest and
prosecute plaintiff based upon the
uncontroverted evidence in the case regarding
the sworn statement by Donna Nash and the
absence of any basis to question her veracity.
2. Claims for False Arrest and Malicious
Prosecution
To prevail on a claim under § 1983, a
plaintiff must show: (1) the deprivation of any
rights, privileges, or immunities secured by
the Constitution and laws, (2) by a person
acting under the color of state law. 42 U.S.C.
§ 1983. “Section 1983 itself creates no
substantive rights; it provides only a
procedure for redress for the deprivation of
rights established elsewhere.” Sykes v. James,
13 F.3d 515, 519 (2d Cir. 1993) (citing City of
Oklahoma City v. Tuttle, 471 U.S. 808, 816
(1985)). “Claims for false arrest or malicious
prosecution, brought under § 1983 to
vindicate the Fourth and Fourteenth
Amendment right to be free from
unreasonable seizures, are ‘substantially the
same’ as claims for false arrest or malicious
prosecution under state law.” Jocks v.
Tavernier, 316 F.3d 128, 134 (2d Cir. 2003)
(citing Weyant v. Okst, 101 F.3d 845, 852 (2d
Cir. 1996) (false arrest) and Conway v. Village
of Mount Kisco, 750 F.2d 205, 214 (2d Cir.
1984) (malicious prosecution)).
1. Nassau County Police Department
As a threshold matter, the Court concludes
that the Nassau County Police Department is
not a proper defendant for any of plaintiff’s
Section 1983 claims.4 It is well settled that an
entity such as the Nassau County Police
Department is an “administrative arm” of the
same municipal entity as Nassau County and
thus lacks the capacity to be sued. See, e.g.,
Caidor v. M&T Bank, No. 5:05-CV-297, 2006
U.S. Dist. LEXIS 22980, at *6-7 (N.D.N.Y.
Mar. 27, 2006) (“‘Under New York law,
departments which are merely administrative
arms of a municipality, do not have a legal
identity separate and apart from the
4
The Court notes that plaintiff did not address this
argument in his opposition, and thus, while the Court
has the discretion to deem it abandoned, it nonetheless
has conducted the applicable analysis.
6
a. False Arrest
(1982)). “The question of whether or not
probable cause existed may be determinable
as a matter of law if there is no dispute as to
the pertinent events and the knowledge of the
officers, or may require a trial if the facts are
in dispute.” Weyant, 101 F.3d at 852
(citations omitted).
i. Applicable Law
The Second Circuit has established that
“‘[t]he existence of probable cause to arrest
constitutes justification and is a complete
defense to an action for false arrest, whether
that action is brought under state law or under
§ 1983.” Jenkins v. City of N.Y., 478 F.3d 76,
84 (2d Cir. 2007) (quoting Weyant, 101 F.3d
at 852). In general, probable cause is
established where “the [arresting] officer has
‘knowledge of, or reasonably trustworthy
information as to, facts and circumstances that
are sufficient to warrant a person of
reasonable caution in the belief that an offense
has been or is being committed by the person
to be arrested.’” Finigan v. Marshall, 574
F.3d 57, 62 (2d Cir. 2009) (quoting Zellner v.
Summerlin, 494 F.3d 344, 368 (2d Cir. 2007));
see also Weyant, 101 F.3d at 852 (citing
Dunaway v. New York, 442 U.S. 200, 208 n.9
(1979) (additional citations omitted)).
Furthermore, “[t]he validity of an arrest does
not depend upon an ultimate finding of guilt
or innocence.” Peterson v. Cty. of Nassau,
995 F. Supp. 305, 313 (E.D.N.Y. 1998) (citing
Pierson v. Ray, 386 U.S. 547, 555 (1967)).
“Rather, the court looks only to the
information the arresting officer had at the
time of the arrest.” Id. (citing Anderson v.
Creighton, 483 U.S. 635, 641 (1987)).
Moreover, a determination of probable cause
is based upon the “totality of the
circumstances, and where law enforcement
authorities are cooperating in an investigation
. . . , the knowledge of one is presumed shared
by all.” Calamia v. City of N.Y., 879 F.2d
1025, 1032 (2d Cir. 1989) (internal citations
and quotations omitted); see also Bernard v.
United States, 25 F.3d 98, 102 (2d Cir. 1994)
(citing Illinois v. Gates, 462 U.S. 213, 230
ii. Application
Applying that standard here, even
construing the evidence most favorably to
plaintiff, no reasonable jury could find that the
responding officers lacked probable cause to
arrest plaintiff based upon the undisputed
facts.
Plaintiff does not dispute that, when
Officer Ditieri arrived at the scene, Donna
Nash told him that plaintiff had assaulted her,
threatened her life, and that she feared for her
safety and that of her daughter; specifically,
that she thought plaintiff had gone to his
mother’s house to retrieve a firearm. (Defs.’
56.1 ¶ 10.) Further, Donna Nash made a
sworn statement recorded in the Domestic
Incident Report narrating the assault and
threat. (Reissman Dec., Ex. B.) With regard
to the threat, in addition to asserting in her
sworn statement that plaintiff had said “I will
kill you, I will gut you,” (id.), Donna Nash
told Officer Ditieri that plaintiff “threatened to
kill [her] and he fled the scene and she was
fearful that [plaintiff] was going to come back
and kill her,” which Officer Ditieri relayed to
Officer Berge, (Berge Dep. 7:8-18), and which
Officer Spadaccini recorded as the basis for
plaintiff’s arrest (Reissman Dec., Ex. A).
Thus, it is undisputed that Donna Nash
reported to the police that plaintiff had
assaulted her and threatened her life.
It is well settled that probable cause can
7
exist solely based on information from an
alleged victim—such as Donna Nash
here—“unless circumstances raise doubt as to
the person’s veracity.” Curley v. Village of
Suffern, 268 F.3d 65, 69-70 (2d Cir. 2001)
(affirming district court’s grant of summary
judgment to defendants on false arrest claim
because statements from alleged assault
victims established probable cause); see, e.g.,
Martinez v. Simonetti, 202 F.3d 625, 634 (2d
Cir. 2000) (“We have previously held that
police officers, when making a probable cause
determination, are entitled to rely on the
victims’ allegations that a crime has been
committed.”); Stokes v. City of N.Y., 05-cv0007(JFB)(MDG), 2007 WL 1300983, at *5
(E.D.N.Y. May 3, 2007) (“[T]he Second
Circuit and other courts have found probable
cause to exist where, in the absence of
circumstances raising doubts as to the victim’s
veracity, the police received information
directly from a purported victim of a crime
without a formal written complaint.”).
it remains undisputed that she alleged that the
assault occurred and complained of resulting
pain in her jaw (Reissman Dec., Ex. B.).
Accordingly, the Court concludes that the
record contains no evidence of any
information made known to the officers that
would have been sufficient to undermine the
credibility of Donna Nash’s sworn report of
domestic abuse.
Thus, the undisputed facts establish that,
before arresting plaintiff, officers had learned
that Donna Nash complained that plaintiff had
assaulted her and threatened her life, had
made a sworn statement to that effect, and that
no facts were known to the officers at the
scene that would undermine the credibility of
Donna Nash’s statements. Based on these
undisputed facts, officers had probable cause
to arrest plaintiff for assault and menacing as
a matter of law. Under New York law, the
crime of assault in the third degree requires
that defendant either (1) “[w]ith intent to
cause physical injury, . . . causes such injury,”
(2) “recklessly causes physical injury,” or (3)
“[w]ith criminal negligence, . . . causes
physical injury . . . by means of a deadly
weapon or a dangerous instrument.” See N.Y.
Penal L. § 120.00. The crime of menacing in
the third degree requires that defendant, “by
physical menace, . . . place[] or attempt[] to
place another person in fear of death,
imminent serious physical injury or physical
injury.” N.Y. Penal L. § 120.15. Here, it is
undisputed that the officers knew that Donna
Nash claimed plaintiff grabbed her by the jaw,
causing significant pain, during an argument
regarding their contentious pending divorce.
Officers could reasonably infer plaintiff’s
intent to cause the injury from the nature of
Donna Nash’s allegations, but even absent
intent to injure, the circumstances support, at
the very least, recklessness by plaintiff
Although plaintiff argues that the
circumstances surrounding the incident—
namely, plaintiff’s allegations that Donna
Nash had stated she would “get [plaintiff] out
of the house by whatever means necessary,”
(Pls.’ 56.1 ¶ 4), and her alleged romantic
relationship with the neighbor—create an
issue of fact as to whether the officers should
have doubted her veracity, the Court
disagrees. There is no evidence that the
responding officers had any knowledge of a
romantic relationship between the neighbor
and Donna Nash or, even if they were aware
of that relationship, how that relationship
would have undermined the veracity of her
sworn statement. Plaintiff also argues that
Donna Nash’s refusal of medical attention at
the scene should have prompted further
investigation by officers (Pls.’ 56.1 ¶ 18), but
8
resulting in Donna Nash’s injuries. Cf.
Krause v. Bennett, 887 F.2d 362, 371 (2d Cir.
1989) (noting that “it is impossible” for
arresting officer to say with certainty that an
individual possessed a given state of mind and
finding that officer was “entitled to rely on the
implications of the information known to him
in assessing whether” arrestee possessed a
particular mental state). With regard to
menacing, is it undisputed that Donna Nash
claimed that plaintiff said “I will kill you, I
will gut you,” in the aftermath of a physical
altercation, after which she believed that
plaintiff had gone to his mother’s house to
retrieve his firearms. (Reissman Dec., Ex. B at
2.) Taken together, these undisputed facts
gave the responding officers probable cause to
believe that plaintiff had committed the crimes
of assault in the third degree and menacing in
the third degree.
defendant’s story holds water, not the
arresting officer. Once officers possess facts
sufficient to establish probable cause, they are
neither required nor allowed to sit as
prosecutor, judge, or jury.”) (internal citation
omitted); Rae v. Cty. of Suffolk, 693 F. Supp.
2d 217, 225 (E.D.N.Y. 2010) (“While, in
hindsight, it may be that Voight could have
asked additional questions, or conducted a
fuller investigation, the role of the court is not
to overly scrutinize the decisions of police
officers from its vantage in chambers, long
after those decisions were made, but to
determine whether the officers acted
reasonably and in compliance with what the
law requires based on what they knew at the
time.”).
In a related point, plaintiff argues that
defendants’ decision not to investigate further
was based on bias created by the relationships
he alleges to have existed between responding
officers and the neighbor (who was Donna
Nash’s alleged paramour), or pressure placed
on them by others in the NCPD with whom
the neighbor had a relationship as a volunteer
firefighter. In particular, plaintiff argues that
the “coincidences” of the relationships he
alleges are in themselves triable issues of fact.
As noted above, the evidence in the record
does not support these conclusory allegations
and speculative theories. Even assuming
arguendo that one or more of the responding
officers had a personal relationship with the
neighbor or had been contacted by someone
who did, these facts do not ultimately affect
the validity of the officers’ finding of probable
cause in this case because, under New York
law, Donna Nash’s statement as a
complaining witness was sufficient to create
probable cause absent circumstances creating
doubt as to her veracity at the scene. As noted
supra, even assuming arguendo that officers
were aware of a relationship between Donna
Plaintiff asserts that there are disputed
issues of material fact as to whether the
responding officers had probable cause. First,
plaintiff faults officers for failing to
investigate further before effectuating his
arrest, particularly in failing to interview
plaintiff and the Nash children. The Court
disagrees. Probable cause does not require
that the police rule out innocent explanations
for the suspect’s activities. Ricciuti v. N.Y.C.
Transit Auth., 124 F.3d 123, 128 (2d Cir.
1997) (“Once a police officer has a reasonable
basis for believing there is probable cause, he
is not required to explore and eliminate every
theoretically plausible claim of innocence
before making an arrest.”); Curley, 268 F.3d
at 70 (“Although a better procedure may have
been for the officers to investigate plaintiff’s
version of events more completely, the
arresting officer does not have to prove
plaintiff’s version wrong before arresting
him.”); Krause, 887 F.2d at 372 (“It is up to
the factfinder to determine whether a
9
Nash and the neighbor, there is no evidence
that any such relationship undermined her
veracity with respect to her sworn statement of
domestic abuse.
third element, “probable cause” for malicious
prosecution purposes is assessed “‘in light of
facts known or reasonably believed at the time
the prosecution was initiated,’” and not at the
time of arrest. Drummond, 522 F. Supp. 2d at
678 (quoting Carson v. Lewis, 35 F. Supp. 2d
250, 263 (E.D.N.Y. 1999)). However, if the
police had probable cause to arrest, a plaintiff
in a malicious prosecution case must show
that facts emerged following the arrest to
vitiate probable cause. Id. (granting summary
judgment to defendants on malicious
prosecution claim because police had probable
cause to arrest plaintiff and plaintiff’s alibi
and character reference from employer did not
defeat probable cause); see also Torraco v.
Port Auth. of N.Y. & N.J., 539 F. Supp. 2d
632, 652-53 (E.D.N.Y. 2008) (granting
summary judgment to defendants on malicious
prosecution claim because probable cause
existed for arrest and plaintiff’s allegations
regarding additional, post-arrest information
were “speculation”); Coyle v. Coyle, 354 F.
Supp. 2d 207, 213 (E.D.N.Y. 2005)
(dismissing malicious prosecution claim
where defendants had probable cause to arrest
plaintiff and were not made aware of any facts
that would negate probable cause). In this
case, plaintiff has not made the Court aware of
any post-arrest facts that would alter the initial
finding of probable cause at the time of the
arrest. As such, the Court grants summary
judgment to the defendants on this claim.
Given these undisputed facts, no
reasonable jury could find that the responding
officers lacked probable cause to arrest
plaintiff.
In sum, based upon the
uncontroverted evidence in the record,
defendants are entitled to summary judgment
on plaintiff’s § 1983 false arrest claim.
b. Malicious Prosecution
The Court also concludes that defendants
should be granted summary judgment on
plaintiff’s malicious prosecution claim. To
succeed on a malicious prosecution claim
under § 1983, a plaintiff must show (1) that
the defendant commenced or continued a
criminal proceeding against him; (2) that the
proceeding was terminated in the plaintiff’s
favor; (3) that there was no probable cause for
the proceeding; and (4) that the proceeding
was instituted with malice.
Droz v.
McCadden, 580 F.3d 106, 109 (2d Cir. 2009);
Drummond v. Castro, 522 F. Supp. 2d 667,
677-78 (S.D.N.Y. 2007).
Malicious
prosecution claims under § 1983 also require
that there “‘be a seizure or other ‘perversion
of proper legal procedures’ implicating the
claimant’s personal liberty and privacy
interests under the Fourth Amendment.’”
Conte v. Cty. of Nassau, 06-CV-4746
(JFB)(ETB), 2008 WL 905879, at *11
(E.D.N.Y. Mar. 31, 2008) (quoting
Washington v. Cty. of Rockland, 373 F.3d 310,
316 (2d Cir. 2004)).
c. Qualified Immunity
Even assuming arguendo that the
responding officers lacked probable cause and
the arrest and prosecution violated plaintiff’s
rights under the Fourth and Fourteenth
Amendments, they would still be entitled to
summary judgment on qualified immunity
grounds. As set forth below, even taking
plaintiff’s version of the information available
Here, the first two elements are satisfied.
It is undisputed that a criminal proceeding was
instituted against plaintiff and that this
proceeding terminated in his favor. As to the
10
to the police that day as true and drawing all
reasonable inferences in plaintiff’s favor,
officers of reasonable competence could
disagree on whether the probable cause test
was met. Thus, qualified immunity is
warranted.
“reasonableness” for purposes of qualified
immunity. See Kerman v. City of N.Y., 374
F.3d 93, 116 (2d Cir. 2004); see also
Anderson v. Creighton, 483 U.S. 635, 641
(1987) (“It simply does not follow
immediately from the conclusion that it was
firmly established that warrantless searches
not supported by probable cause and exigent
circumstances violate the Fourth Amendment
that [the] search was objectively legally
unreasonable.”)). In Anderson, the Supreme
Court held that “it is inevitable that law
enforcement officials will in some cases
reasonably but mistakenly conclude that
probable cause is present, and we have
indicated that in such cases those
officials—like other officials who act in ways
they reasonably believe to be lawful—should
not be held personally liable.” 483 U.S. at
641.
The doctrine of qualified immunity shields
government officials from civil liability if
their “conduct does not violate clearly
established statutory or constitutional rights of
which a reasonable person would have
known.” Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982). As the Second Circuit has noted,
“[t]his doctrine is said to be justified in part by
the risk that the ‘fear of personal monetary
liability and harassing litigation will unduly
inhibit officials in the discharge of their
duties.’” McClellan v. Smith, 439 F.3d 137,
147 (2d Cir. 2006) (quoting Thomas v. Roach,
165 F.3d 137, 142 (2d Cir. 1999)). Thus,
qualified immunity is not merely a defense but
rather is also “an entitlement not to stand trial
or face the other burdens of litigation.”
Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).
Accordingly, the availability of qualified
immunity should be decided by a court “at the
earliest possible stage in litigation.” Hunter v.
Bryant, 502 U.S. 224, 227 (1991).
The Second Circuit has defined this
standard, which is often referred to as
“arguable probable cause,” as follows:
Arguable probable cause exists
when a reasonable police
officer in the same
circumstances and possessing
the same knowledge as the
officer in question could have
reasonably believed that
probable cause existed in the
light of well established law.
It is inevitable that law
enforcement officials will in
some cases reasonably but
mistakenly conclude that
probable cause is present, and
we have indicated that in such
cases those officials—like
other officials who act in ways
they reasonably believe to be
lawful—should not be held
An arresting officer is entitled to qualified
immunity on claims of false arrest and
malicious prosecution 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. Walczyk v. Rio, 496 F.3d 139, 163
(2d Cir. 2007); Posr v. Court Officer Shield
No. 207, 180 F.3d 409, 416 (2d Cir. 1999)
(quoting Golino v. City of New Haven, 950
F.2d 864, 870 (2d Cir. 1991)). The issue of
“reasonableness” for purposes of probable
cause is distinct from the issue of
11
personally liable.
believed that probable cause existed” to arrest
plaintiff. Cerrone, 246 F.3d at 203.
Cerrone v. Brown, 246 F.3d 194, 203 (2d Cir.
2001) (quotations and citations omitted)
(emphasis in original). Moreover, under this
standard, “an ‘arresting officer is entitled to
qualified immunity as a matter of law if the
undisputed facts and all permissible inferences
favorable to the plaintiff show . . . that
officers of reasonable competence could
disagree on whether the probable cause test
was met.’” McClellan v. Smith, 439 F.3d 137,
147-48 (2d Cir. 2006) (quoting Robison v.
Via, 821 F.2d 913, 921 (2d Cir. 1987)).
Accordingly, even assuming arguendo that
probable cause was lacking, responding
officers are entitled to summary judgment on
qualified immunity grounds because there was
arguable probable cause to arrest.
3. Monell Claims
Plaintiff also asserts § 1983 claims against
Nassau County for failing to adequately
supervise, train, and punish police officers
with regard to probable cause required for
arrests.5 As set forth below, the County is
entitled to summary judgment on these claims.
For the same reasons that the Court
concludes that probable cause existed to arrest
plaintiff, the Court also finds that responding
officers, at the very least, had arguable
probable cause to arrest plaintiff. Both the
Supreme Court and the Second Circuit have
emphasized that “[n]ormally, it is only the
‘plainly incompetent or those who knowingly
violate the law’—those who are not worthy of
the mantle of the office—who are precluded
from claiming the protection of qualified
immunity.” Moore v. Andreno, 505 F.3d 203,
214 (2d Cir. 2007) (quoting Malley v. Briggs,
475 U.S. 335, 341 (1986)). Here, there is no
evidence that the responding officers’ conduct
was plainly incompetent or that they engaged
in a knowing violation of the law, and, thus,
they are entitled to qualified immunity. As
noted earlier, it is undisputed that, before
arresting plaintiff, Donna Nash had alleged in
a sworn statement that: (1) during an
argument, plaintiff grabbed her face, injuring
her jaw; (2) plaintiff threatened her life; and
(3) she feared for her safety and that of her
daughter and that there were no circumstances
at the scene that gave officers reason to doubt
the veracity of her report. On these facts, even
drawing all reasonable inferences in plaintiff’s
favor, officers “could have reasonably
Under Monell v. Department of Social
Services, 436 U.S. 658 (1978), a municipal
entity may be held liable under § 1983 where
a plaintiff demonstrates that the constitutional
violation complained of was caused by a
municipal “policy or custom.” Monell, 436
U.S. at 694-95; Patterson v. Cty. of Oneida,
375 F.3d 206, 226 (2d Cir. 2004) (citing Jett
v. Dallas Indep. Sch. Dist., 491 U.S. 701, 73336 (1989) and Monell, 436 U.S. at 692-94).
“The policy or custom need not
5
First, the Court notes that plaintiff failed to oppose
defendants’ motion on these claims and accordingly has
the discretion to deem them abandoned, but it has
nonetheless conducted an analysis on the merits.
Second, to the extent plaintiff also seeks to hold the
individual defendants liable on these claims in their
official capacities, those claims are duplicative of the
municipal liability claim lodged against the County.
See, e.g., Tsotesi v. Bd. of Educ., 258 F. Supp. 2d 336,
338 n.10 (S.D.N.Y. 2003) (dismissing claims against
officials sued in their official capacities where plaintiff
also sued municipality (citing Kentucky v. Graham, 473
U.S. 159, 165-66 (1985))); see also Monell, 436 U.S. at
691 (holding that “official-capacity suits generally
represent only another way of pleading an action
against an entity of which an officer is an agent”).
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