Barber v. Ruzzo et al
Filing
38
MEMORANDUM-DECISION and ORDER - That Ruzzo's 27 Motion for Summary Judgment is GRANTED and Barber's Complaint is DISMISSED. Signed by Chief Judge Gary L. Sharpe on 3/12/2013. (jel, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
DANIEL W. BARBER,
Plaintiff,
1:10-cv-1198
(GLS/CFH)
v.
TIMOTHY J. RUZZO,
Defendant.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Oliver, Oliver Law Firm
156 Madison Avenue
Albany, NY 12202
LEWIS B. OLIVER, JR., ESQ.
FOR THE DEFENDANT:
HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
Albany Office
The Capitol
Albany, NY 12224
ROGER W. KINSEY
Assistant Attorney General
Gary L. Sharpe
Chief Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff Daniel W. Barber commenced this action against defendants
Timothy J. Ruzzo, Margaret L. McMullen, and Michael Spitz, asserting
claims pursuant to 42 U.S.C. § 1983 for unlawful detention, illegal search,
malicious prosecution, and restriction of free speech. (See Compl. ¶ 1,
Dkt. No. 1.) In a Memorandum-Decision and Order dated October 19,
2011, the court dismissed all but Barber’s malicious prosecution claim
against Ruzzo. (See Dkt. No. 15.) Pending is Ruzzo’s motion for summary
judgment. (See Dkt. No. 27.) For the reasons that follow, the motion is
granted.
II. Background1
Barber, a former corrections officer, was fired in October 2001 “after
an investigation” by Ruzzo, a State Police Investigator. (Def.’s Statement
of Material Facts (SMF) ¶ 1, Dkt. No. 29; Compl. ¶ 5.) Roughly six years
later, Barber “mailed a postcard from Florida to the Coxsackie Correctional
Facility.” (Def.’s SMF ¶ 5.) The postcard, which was received by
1
Barber’s response to Ruzzo’s Rule 7.1(a)(3) statement contains several
unsubstantiated denials. (See Dkt. No. 34); see also N.D.N.Y. L.R. 7.1(a)(3) (requiring that
“[e]ach denial shall set forth a specific citation to the record where the factual issue arises”).
Notwithstanding his failure to comply with the rules, the court deems admitted those facts
which are properly supported by admissible evidence pursuant to Federal Rule of Civil
Procedure 56(e)(2) and Local Rule 7.1(a)(3). The court further notes that Barber’s submission
includes an affirmative statement of material facts. (See Dkt. No. 34, Attach. 2.) Although the
rule permits a non-movant to “set forth any additional material facts that [he] contends are in
dispute,” Barber’s statement includes 163 paragraphs of facts, many of which are neither
disputed nor material. (See generally id.) Thus, the court discusses only the relevant facts,
and, in the interest of brevity, incorporates by reference its previous recitation of Barber’s
allegations. (See Dkt. No. 15 at 2-5.)
2
McMullen, a supply and mail clerk, stated:
Hello, Captain:
You probably don't know me but that’s quite alright. I just want
you to tell all my fellow officers that I, Daniel W. Barber said the
following. That I have had quite a time this last [six and a half]
years since I was fired. That the vacation I have been on is
almost over. But before I come back to work I have to bring the
following to justice, all NYS politicians and their appointed goons,
the union and the lawyers representing us. Corruption will no
longer exist when I am done. You tell them that this is an old Irish
family tradition that if you steal from the father you steal from his
children. There is nothing far greater on this earth worth dying for
than my daughter. You tell them all that hell is coming for justice.
By the way take good care of badge #1415 . . . it’s mine. Signed,
Daniel W. Barber AKA Jailbird
(See id. ¶ 6; Dkt. No. 27, Attach. 4 at 2.) After reading the card, McMullen,
who described the language as being “of a threatening nature,” forwarded it
to Spitz, her watch commander. (Def.’s SMF ¶¶ 7-8; Dkt. No. 27, Attach.
5.) In turn, Spitz, after showing the postcard to his supervisor, Captain
Dierie, was “ordered” to notify the State Police. (Dkt. No. 34, Attach. 15 at
18-21.)
Spitz called “barracks and ask[ed] if Ruzzo was” available. (Id. at
21.) Ruzzo received the call on May 3, 2007, the morning after a
uniformed trooper responded to Coxsackie and collected the postcard.
(See Dkt. No. 27, Attach. 12 at 37-38.) Believing that the postcard was
3
threatening, (see id. at 38), Ruzzo contacted the District Attorney, Terry
Wilhelm, read it to him, and asked for guidance on how to proceed. (See
Dkt. No. 27, Attach. 14 at 4, 9-10.) Wilhelm “advised [Ruzzo that] . . . there
was certainly probable cause to make an arrest for aggravated
harassment.” (Id. at 10.) Furthermore, Wilhelm “authorized the arrest” of
Barber, who admits that he sent the postcard, and directed Ruzzo “to file
the accusatory [instrument therefor].” (Id. at 12, 16; see Def.’s SMF ¶ 32;
Dkt. No. 27, Attach. 13 at 24.) Accordingly, Ruzzo arrested Barber, swore
out an Information charging him with aggravated harassment in the second
degree2 and brought him before Town Justice Robert Carl. (See Def.’s
SMF ¶ 22; Dkt. No. 27, Attach. 7.)
Justice Carl remanded Barber to County Jail, set bail at $1,000 and
ordered a mental health evaluation. (See Def.’s SMF ¶¶ 22-24; Dkt. No.
2
As relevant here, section 240.30(1) of the New York Penal Law provides that:
A person is guilty of aggravated harassment in the second degree when, with intent
to harass, annoy, threaten or alarm another person, he or she:
1. Either (a) communicates with a person, anonymously or otherwise, by telephone,
by telegraph, or by mail, or by transmitting or delivering any other form of written
communication, in a manner likely to cause annoyance or alarm; or
(b) causes a communication to be initiated by mechanical or electronic means or
otherwise with a person, anonymously or otherwise, by telephone, by telegraph,
or by mail, or by transmitting or delivering any other form of written communication,
in a manner likely to cause annoyance or alarm[.]
4
27, Attach. 8 at 1.) In addition, Justice Carl issued an order of protection,
which mandated that Barber “stay away from Coxsackie and Green
Correctional Facilities.” (Def.’s SMF ¶ 25; Dkt. No. 27, Attach. 8 at 2.) On
May 12, 2007, Town Justice Richard Roberg released Barber on his own
recognizance and ordered him to submit to an out-patient mental health
evaluation. (See Def.’s SMF ¶ 31; Dkt. No. 27, Attach. 9.) Just over one
year later, the charges were dismissed. (See Dkt. No. 34, Attach. 1 ¶ 94.)
III. Standard of Review
The standard of review under Federal Rule of Civil Procedure 56 is
well established and will not be repeated here. For a full discussion of the
standard, the court refers the parties to its decision in Wagner v. Swarts,
827 F. Supp. 2d 85, 92 (N.D.N.Y. 2011).
IV. Discussion
Ruzzo asserts that Barber cannot establish a prima facie case of
malicious prosecution because he had probable cause to commence the
criminal proceeding. (See Dkt. No. 27, Attach. 1 at 5-12); see Cook v.
Sheldon, 41 F.3d 73, 79 (2d Cir. 1994) (discussing the elements of
malicious prosecution). Alternatively, Ruzzo claims that he is entitled to
5
qualified immunity. (See id. at 16-20.) Though arguably misfocused,3
Barber essentially contends that Ruzzo’s motion should be denied. (See
generally Dkt. No. 34, Attach. 21.) The court agrees with Ruzzo.
Probable cause is a complete defense to a malicious prosecution
claim, see Savino v. City of N.Y., 331 F.3d 63, 72 (2d Cir. 2003), the
relevant factual inquiry for which concerns only “what information the officer
knew at the . . . outset of prosecution,” Benn v. Kissane, No. 11-5184-cv,
2013 WL 362974, at *2 (2d Cir. Jan. 13, 2013) (citing Devenpeck v. Alford,
543 U.S. 146, 152 (2004)); see also Colon v. City of N.Y., 60 N.Y.2d 78, 82
(1983) (“Probable cause[, under New York law,] consists of such facts and
circumstances as would lead a reasonably prudent person in like
circumstances to believe plaintiff guilty.”). The “officer’s state of mind
(except for the facts that he knows) is irrelevant to the existence of
probable cause.” Devenpeck, 543 U.S. at 153; see Simmons v. N.Y.C.
3
Barber devotes a substantial portion of his submission to the events culminating in
his arrest. (See, e.g., Dkt. No. 34, Attach. 2 ¶¶ 1-141; Dkt. No. 34, Attach. 21 at 13-34.)
However, as the court explained in McClellan v. Smith, No. 1:05-cv-1141, 2009 WL 3587431,
at *6 (N.D.N.Y. Oct. 26, 2009), “[i]t is erroneous to conflate probable cause to arrest with
probable cause to prosecute.” “False imprisonment asks whether the facts known to the police
officer at the time of confinement objectively establish probable cause.” Id. On the other hand,
“[m]alicious prosecution asks whether the facts objectively support a reasonable belief that a
criminal prosecution should be initiated or continued because that prosecution could succeed.”
Id. Although the crime charged and prosecuted are one in the same, Barber’s probable cause
argument is, to the extent that it focuses on anything other than the “the facts [that] objectively
support a reasonable belief that a criminal prosecution should be initiated,” irrelevant. Id.
6
Police Dep’t, 97 F. App’x 341, 343 (2d Cir. 2004) (stating that “probable
cause is an objective matter that does not depend on the subjective biases
of the arresting officer”). Equally immaterial is “whether the substance of
the information known to the officer is actually true,” Benn, 2013 WL
362974, at *2, as the court need only decide if the officer—based on the
“totality of the circumstances,” Manganiello v. City of N.Y., 612 F.3d 149,
161 (2d Cir. 2010)—possessed “‘probable cause to believe’” that a crime
was committed, Benn, 2013 WL 362974, at *2 (quoting Maryland v. Pringle,
540 U.S. 366, 370 (2003)). “Although determining what the officer knew at
the relevant time is an issue of fact, whether those known circumstances
satisfy the probable-cause standard is a mixed question of law and fact,
and [t]he ultimate determination of whether probable cause . . . existed is
essentially a legal question.” Benn, 2013 WL 362974, at *3 (internal
quotation marks and citations omitted).
Here, the totality of the circumstances overwhelmingly support
Ruzzo’s belief that a criminal prosecution should have been initiated. First,
the postcard, which Barber admits he wrote, contains language that is
alarming. (See Def.’s SMF ¶ 32; Dkt. No. 27, Attach. 4 at 2.) Irrespective
of the language’s legal significance or precisely how the staff at Coxsackie
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responded,4 (see Dkt. No. 34, Attach. 21 at 4-9, 23-27), it is undisputed that
three officials at Coxsackie—namely, McMullen, Spitz and Dierie—were
concerned enough with the contents of the postcard to contact the State
Police, (see Def.’s SMF ¶¶ 7-11; Dkt. No. 34, Attach. 15 at 21).
Furthermore, Barber concedes that Ruzzo did not initiate the criminal
proceeding on his own accord.5 (See Dkt. No. 34 ¶ 14.) Rather, Ruzzo
contacted Wilhelm, the District Attorney, who confirmed during his
deposition in this matter, that he told Ruzzo that “there was certainly
probable cause to make an arrest” and commence a criminal proceeding.
(Dkt. No. 27, Attach. 14 at 10, 12, 16; see Def.’s SMF ¶¶ 11-12, 14.)
Standing alone, these factors demonstrate that it was objectively
reasonable for Ruzzo to believe that a prosecution for aggravated
harassment should be initiated.
In addition to these factors, there are two principal flaws in Barber’s
argument. The first is the notion that Justice Carl did not find that there
4
Having reviewed the postcard, the court has little difficulty seeing how the recipients
of it would be annoyed or alarmed. (See Dkt. No. 27, Attach. 4 at 2); N.Y. Penal Law §
240.30(1) (McKinney 2008).
5
The court is unable to discern why Barber would admit that Ruzzo contacted the
District Attorney’s office, concede that Wilhelm offered legal advise, and then deny that it was
Wilhelm who spoke to Ruzzo. (See Dkt. No. 27, Attach. 14 at 9; Dkt. No. 34 ¶¶ 14-17.)
8
was probable cause. (See Dkt. No. 34, Attach. 21 at 12.) Besides stating
that he too believed that the postcard constituted probable cause for the
charge of aggravated harassment, (see Dkt. No. 27, Attach. 16 at 18),
Justice Carl was required to dismiss the Information if cause was lacking,
see N.Y. Crim. Proc. Law § 140.45. Thus, even if his present recollection
is questionable, (see Dkt. No. 34, Attach. 21 at 12), his decisions during the
arraignment to, among other things, remand Barber, confirms that he
believed probable cause existed at that time as well. (See Def.’s SMF ¶¶
22-25.) Secondly, Barber concedes that Ruzzo took no part in the
prosecution after the arraignment, (see Def.’s SMF ¶¶ 35, 36; Dkt. No. 34 ¶
35), and has never alleged that Ruzzo falsified testimony in order to
influence the prosecution, (see Compl.). Consequently, Wilhelm’s decision
to proceed absolves Ruzzo of liability for any misconduct that occurred
thereafter. See White v. Frank, 855 F.2d 956, 962 (2d Cir. 1988).
In sum, the court, having considered the totality of the
circumstances, concludes that Ruzzo had probable cause to commence
the criminal proceeding, and thus, Barber’s claim for malicious prosecution
9
fails as a matter of law.6 Even if Ruzzo did not have probable cause, “it
was objectively reasonable for [him] to believe [his] conduct did not violate”
Barber’s rights, based on, inter alia, Wilhelm’s representations. Gilles v.
Repicky, 511 F.3d 239, 244 (2d Cir. 2007); see Wagner, 827 F. Supp. 2d at
100-01 (discussing the qualified immunity standard). Qualified immunity
therefore provides an alternative basis for summary judgment.
Accordingly, Ruzzo’s motion for summary judgment is granted and
Barber’s Complaint is dismissed.
V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that the Ruzzo’s motion for summary judgment (Dkt. No.
27) is GRANTED and Barber’s Complaint is DISMISSED; and it is further
ORDERED that the Clerk shall close this case and provide a copy of
this Memorandum-Decision and Order to the parties.
IT IS SO ORDERED.
March 12, 2013
Albany, New York
6
In light of the court’s decision with respect to probable cause, it need not reach the
issue of actual malice.
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