Lluberes et al v. City of Troy et al

Filing 76

MEMORANDUM-DECISION and ORDER granting in part and denying in part 60 Motion for Summary Judgment; denying 62 Motion for Summary Judgment. ORDERED that plaintiffs' 62 motion for summary judgment is DENIED in its entirety. It is further ORDERED that defendants' 60 motion for summary judgment is GRANTED in part and DENIED in part. ORDERED that all claims against Anderson, Castle, Dean, Hoffman, Pirro, Negron, Evangelista, Salvatore, Sarris, Tutunjian, Troy PD, John and Jane Doe defendants, and individual defendants in their official capacities be dismissed from this action. ORDERED that Gillette's trial will proceed as scheduled on 4/28/2014 at 9:30 a.m. Upon the conclusion of that trial, the Court will set a dat e for Llubere's trial. Signed by Magistrate Judge Christian F. Hummel on 3/21/2014. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O) (dpk)

Harris v. City of New York, Slip Copy (2013)

2013 WL 4858333
Only the Westlaw citation is currently available.
United States District Court,
E.D. New York.
Demecka HARRIS, Sharon Richburg,
and Kendall Richburg, Plaintiffs,
v.
The CITY OF NEW YORK; Police
Officer Haranlal Brijbukhan and
Sergeant Michael White, Defendants.
No. 09–CV–3474 (KAM).

|

Sept. 10, 2013.

Attorneys and Law Firms
Anthony C. Ofodile, Brooklyn, NY, for Plaintiffs.
Philip S. Frank, Wesley Eugene Bauman, New York City
Law Department, New York, NY, for Defendants.
Opinion
MEMORANDUM AND ORDER
MATSUMOTO, District Judge.
*1 On May 25, 2012, Demecka Harris (“Ms.Harris”),
Sharon Richburg (“Mrs.Richburg”), and Kendall Richburg
(“Mr.Richburg”) (collectively, “plaintiffs”) filed an amended
complaint in this action against the City of New York
(“City”) and individual defendants Police Officer Haranlal
Brijbukhan, 1 and Sergeant Michael White (collectively,
“defendants”) pursuant to 42 U.S.C. § 1983 (“section 1983”)
and New York law. (ECF No. 20, Amended Complaint
(“Am.Compl.”), 5/25/2012.) Plaintiffs alleged claims of false
arrest, false imprisonment, malicious prosecution, malicious
destruction of property, and excessive use of force. (Id. ¶¶ 1,
47.)
Defendants' partial motion to dismiss the Amended
Complaint under Federal Rule of Civil Procedure 12(b)(6)
is pending before the court. (ECF Nos. 31–37, 1/23/13.)
Defendants argue that (i) plaintiff Kendall Richburg's false
arrest claim should be dismissed because he pled guilty
to attempted criminal sale of a controlled substance in
the third degree as a result of his arrest, for, inter alia,
criminal sale of a controlled substance in the third degree,
(ii) plaintiff Kendall Richburg's denial of access to courts

claim should be dismissed for failing to identify an underlying
claim that he lost, and (iii) plaintiff Demecka Harris's
federal claim for malicious prosecution under section 1983
should be dismissed because she cannot show a sufficient
post-arraignment liberty restraint that violated her Fourth
Amendment rights. (ECF No. 33, Memorandum in Support
of Defendants' Partial Motion to Dismiss the Amended
Complaint (“Mem.”), 1/23/13.) 2 After reviewing the parties'
submissions and relevant case law, defendants' partial motion
to dismiss these outstanding claims is granted for the reasons
provided below.

BACKGROUND
I. Procedural Background
Plaintiffs commenced this action by filing suit on August
10, 2009, against City, Officer Brijbukhan, and unidentified
police officers of the New York City Police Department
(“NYPD”) identified as John Does 1–15. (ECF No. 1,
Complaint, 8/10/2009.) On September 15, 2009, defendants
moved to stay the case until the state criminal proceeding
against Mr. Richburg stemming from his arrest on July
23, 2008, was resolved. (ECF No. 3, Motion to Stay the
Case Until the Resolution of the Pending Criminal Court
Proceeding, 9/15/2009.) The court granted the stay. (Order
Granting Motion to Stay, 9/17/2009). The proceedings were
then repeatedly stayed to allow the state criminal proceeding
against Mr. Richburg to progress, and the stay was eventually
lifted on July 20, 2011. (ECF No. 9, Minute Entry for
Proceedings held before thenMagistrate Judge Andrew L.
Carter, Jr., 7/20/2011; Order Lifting Stay (noting stay lifted
at 7/20/2011 conference), 10/17/2011.) Plaintiffs filed the
Amended Complaint on May 25, 2012. (Am.Compl.)
The parties submitted a joint status report informing the
court on the status of settlement discussions and providing
a proposed briefing schedule for a motion to dismiss on
August 28, 2012. (ECF No. 24, Status Report, 8/28/2012.)
The court subsequently established a briefing schedule for
defendants to file a motion to dismiss and granted extensions
to the briefing schedule on October 1, 2012, November 5,
2012, December 26, 2012, and January 16, 2012. (Order re:
Joint Status Report, 8/29/2012; Orders granting Extension of
Time to File dated 10/1/2012, 11/5/2012, 12/26/2012, and
1/16/2012.)
*2 The fully briefed motion to dismiss, opposition, and reply
were filed on January 23, 2013. (ECF Nos. 31–37.)

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II. Factual Background
A. Judicial Notice of Documents
In deciding a motion to dismiss, the court “must accept
all allegations in the complaint as true and draw all
inferences in the non-moving party's favor.” LaFaro v. New
York Cardiothoracic Group, PLLC, 570 F.3d 471, 475 (2d
Cir.2009) (internal quotation and citation omitted). Still,
the court is “not bound to accept as true legal conclusions
couched as factual allegations.” Id. at 475–76. “It is well
established that a district court may rely on matters of public
record in deciding a motion to dismiss under Rule 12(b)(6).”
Vasquez v. City of New York, No. 99 Civ. 4606, 2000 U.S.
Dist. LEXIS 8887, at *2 n. 1, 2000 WL 869492 (S.D.N.Y.
June 28, 2000) (internal quotation and citation omitted); see
also Fed.R.Evid. 201(b). “The court may judicially notice a
fact that is not subject to reasonable dispute because it: (1) is
generally known within the trial court's territorial jurisdiction;
or (2) can be accurately and readily determined by resort to
sources whose accuracy cannot reasonably be questioned.”
Fed.R.Evid. 201(b). It is well established that this court
can take judicial notice of arrest reports and certificates of
disposition, see Wingate v. Deas, No. 11–CV–1000, 2012
U.S. Dist. LEXIS 47831, at *2 n. 1, 2012 WL 1134893
(E.D.N.Y. Apr. 2, 2012), arraignments, see Parker v. City of
New York, No. 11–cv–910, 2010 U.S. Dist. LEXIS 41415, at
*8 n. 2 (E.D.N .Y. Apr. 21, 2010), and criminal complaints
and indictments, see GarciaGarcia v. City of New York, No.
12 Civ. 1302, 2013 U.S. Dist. LEXIS 104444, at *3 n. 1, 2013
WL 3832730 (S.D.N.Y. July 22, 2013) (internal quotation
and citation omitted). Also, a “court may take judicial notice
of a document filed in another court—not for the truth of the
matter asserted in the other litigation, but rather to establish
the fact of such litigation and related filings.” Int'l Star
Class Yacht Racing Ass'n v. Tommy Hilfiger U.S.A., Inc., 146
F.3d 66, 70 (2d Cir.1998). Therefore, for purposes of this
motion, the court assumes as true the facts from the Amended
Complaint. The court further resorts to the arrest report,
certificate of disposition, arraignment records, criminal court
complaint, and indictment for the dates, charged counts, case
numbers, and other information relevant to the filing and
disposition of charges.

B. The Arrest
On July 23, 2008, plaintiffs were arrested by Officer
Brijbukhan and Sergeant White outside 523 Beach 67th
Street in Queens. (Am.Compl.¶¶ 15–16.) Plaintiffs allege

that, although the police had a search warrant, (id. ¶ 21), they
did not find any drugs or money in the house or on any of the
plaintiffs, Mr. Richburg was charged with possession of drug
paraphernalia, which was “later changed to drug possession
in the 7th degree,” and Ms. Harris and Mrs. Richburg were
charged with obstruction of justice, (id. ¶ 19). At the time of
his arrest, Mr. Richburg had filed a complaint against Officer
Brijbukhan concerning another arrest. (Id. ¶ 20.)
*3 Plaintiffs acknowledge that the NYPD had a warrant to
search the house in connection with an investigation related to
Mr. Richburg, but allege that this warrant only authorized the
search and seizure of financial records and ledgers. (Id. ¶ 21.)
Thus, plaintiffs allege that “the charges against them were
malicious as they committed no crimes, they were arrested
outside of their homes, [and] no drugs or contraband were
found on them that day.” (Id. ¶ 22.) According to the arrest
report, Mr. Richburg was arrested on charges of criminal
possession of a controlled substance in the third degree,
criminal sale of a controlled substance in the third degree,
criminal use of drug paraphernalia in the second degree,
and resisting arrest. (Reply at Exhibit (“Ex.”) B.) His arrest
number was Q08641072. (Id.)

C. Disposition of Charges
A criminal complaint for the arrest of Mr. Richburg
and two other individuals, dated July 24, 2008, and
numbered 2008KNO54966, charged them with committing
the following offenses: one count of conspiracy in the fourth
degree, four counts of criminal sale of a controlled substance
in the third degree, four counts of criminal possession of
a controlled substance in the third degree, three counts of
criminal possession of a controlled substance in the seventh
degree, one count of attempted criminal possession of a
controlled substance in the third degree, and three counts
of criminal use of drug paraphernalia in the second degree.
(Reply at Ex. D.) On November 18, 2009, Mr. Richburg was
indicted under indictment number 7805/2008 on two counts
of criminal sale of a controlled substance in the third degree,
two counts of criminal possession of a controlled substance
in the third degree, two counts of conspiracy in the fourth
degree, three counts of criminal possession of a controlled
substance in the seventh degree, and two counts of criminal
use of drug paraphernalia in the second degree. (Reply at Ex.
E.)
Mr. Richburg pled guilty on January 8, 2010, to attempted
criminal sale of a controlled substance in the third degree.
(Reply at Ex. A.) According to the certificate of disposition,

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Harris v. City of New York, Slip Copy (2013)

Mr. Richburg's guilty plea resolved the charges from his July
23, 2008 arrest, numbered Q08641072, as well as the charges
alleged in criminal court complaint number 2008KNO54966,
and the counts included in case number 7805–2008, the
number of his indictment. (Id.)
After three days in custody, Ms. Harris was arraigned on July
25, 2008, as a result of her July 23, 2008 arrest. (Mem. at
Ex. D; Am. Compl. ¶ 24.) At the arraignment, the District
Attorney moved to dismiss all criminal charges against Ms.
Harris. (Mem. at Ex. D.) 3

DISCUSSION
I. Standard of Review
To survive a Rule 12(b)(6) motion to dismiss, “a complaint
must plead ‘enough facts to state a claim to relief that is
plausible on its face.’ ” Ruotolo v. City of New York, 514 F.3d
184, 188 (2d Cir.2008) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).
“A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Igbal, 556 U.S. 662, 678, 129 S.Ct. 1937,
173 L.Ed.2d 868 (2009) (citing Twombly, 550 U.S. at 556).
“Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice....
While legal conclusions can provide the framework of a
complaint, they must be supported by factual allegations.” Id.
at 678–79.

II. Section 1983 Claims
*4 In relevant part, section 1983 provides that:
Every person who, under color of
any statute, ordinance, regulation,
custom, or usage, of any State ...
subjects, or causes to be subjected,
any citizen of the United States or
other person within the jurisdiction
thereof to the deprivation of any rights,
privileges, or immunities secured by
the Constitution and laws, shall be
liable to the party injured in an action
at law, suit in equity, or other proper
proceeding for redress....

42 U.S.C. § 1983. Section 1983 “is not itself a source
of substantive rights, but merely provides a method for
vindicating federal rights elsewhere conferred.” Graham v.
Connor, 490 U.S. 386, 393–94, 109 S.Ct. 1865, 104 L.Ed.2d
443 (1989) (internal quotation omitted). To state a claim
under section 1983, “a plaintiff must allege that (1) the
challenged conduct was attributable at least in part to a
person who was acting under color of state law and (2) the
conduct deprived the plaintiff of a right guaranteed under the
Constitution of the United States.” Snider v. Dylag, 188 F.3d
51, 53 (2d Cir.1999).
There is no dispute that Officer Brijbukhan and Sergeant
White were acting under color of state law as NYPD
employees during the alleged incident. Instead, defendants
claim that plaintiffs fail to state a plausible cause of action
as to certain claims that cannot survive a motion to dismiss.
These claims will be discussed below.

III. Claims Subject to Partial Motion to Dismiss
A. Mr. Richburg's False Arrest Claims
The first issue for the court is whether Mr. Richburg's claims
of false arrest under section 1983 and New York law should
be dismissed because he pled guilty to a charge in connection
with his arrest, thereby acknowledging that probable cause
existed for his arrest.

1. Legal Standard
A section 1983 claim for false arrest has substantially the
same elements as a claim for false arrest under New York
law. See Weyant v. Okst, 101 F.3d 845, 852 (2d Cir.1996). A
plaintiff alleging false arrest “must show ... that the defendant
intentionally confined him without his consent and without
justification.” Id. “The 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 New York, 478 F.3d 76,
84 (2d Cir.2007) (internal quotation and citation omitted).
In addition, the Second Circuit has adopted “the common-law
rule, equally applicable to actions asserting false arrest, false
imprisonment, or malicious prosecution ... that the plaintiff
can under no circumstances recover if he was convicted of
the offense for which he was arrested.” Cameron v. Fogarty,
806 F.2d 380, 387 (2d Cir.1986). The Second Circuit has
explained that “[w]here the civil rights plaintiff has been

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Harris v. City of New York, Slip Copy (2013)

convicted of the offense for which he was arrested, we have
in effect accepted the fact of that conviction as conclusive
evidence of the good faith and reasonableness of the officer's
belief in the lawfulness of the arrest.” Id. at 388; see also
Gordon v. City of New York, No. 10–cv–5148, 2012 U.S. Dist.
LEXIS 44251, at *8–9, 2012 WL 1068023 (same) (E.D.N.Y.
Mar. 29, 2012).
*5 Moreover, “[a] valid prosecution resulting in conviction
is conclusive evidence that probable cause existed for an
arrest ... even if the conviction is the result of a guilty plea
to a lesser charge than that for which plaintiff was arrested.”
Hope v. City of New York, No. CV–08–5022, 2009 U.S.
Dist. LEXIS 123767, at *2 (E.D.N.Y. Jan. 22, 2009) (internal
citation omitted); see also Feurtado v. Gillespie, No. 04–
CV3405, 2005 U.S. Dist. LEXIS 30310, at *13–14, 2005
WL 3088327 (E.D.N.Y. Nov. 17, 2005) (an examination of
the totality of the circumstances known to the officer at the
time of arrest is not required if plaintiff is convicted after
trial or pleads guilty to the underlying or a lesser charge);
Sealey v. Fishkin, No. 96–CV6303, 1998 U.S. Dist. LEXIS
20142, at *13, 1998 WL 1021470 (E.D.N .Y. Dec. 2, 1998)
(“A plaintiff suing for false arrest must show that the police
lacked probable cause to arrest him for any unlawful conduct.
By pleading guilty to [a lesser charge], plaintiff necessarily
acknowledged that he was engaged in some unlawful activity
for which the police could properly take him into custody.
Thus, as long as that conviction stands, plaintiff cannot pursue
a § 1983 claim for false arrest.”) (emphasis added); Roundtree
v. City of New York, 778 F.Supp. 614, 619 (E.D.N.Y.1991)
(section 1983 claim for false arrest barred for plaintiff who
had been arrested for possession of cocaine and pleaded guilty
to disorderly conduct); Keyes v. City of Albany, 594 F.Supp.
1147, 1152, 1155 (N.D.N.Y.1984) (guilty plea to disorderly
conduct on assault charge barred plaintiff's false arrest claim).

2. Application
Plaintiffs argue that Mr. Richburg “did not plead guilty to an
offense for which he was arrested on July 23, 2008, [so] his
guilty plea for an offense resulting from a subsequent grand
jury indictment does not establish probable cause for the July
23, 2008 arrest, and therefore it does not” bar Mr. Richburg's
section 1983 false arrest claim. (Opp. at 4.) The record shows
that plaintiffs are incorrect.
Mr. Richburg was arrested on July 23, 2008, on a charge of
criminal sale of a controlled substance in the third degree,
among other charges. (Reply at Ex. B.) He was subsequently
charged with criminal sale of a controlled substance in the

third degree, as well as other offenses, in a criminal complaint
dated July 24, 2008, (Reply at Ex. D), and indicted on a count
for criminal sale of a controlled substance in the third degree,
in addition to other counts, on November 18, 2009, (Reply
at Ex. E). According to the certificate of disposition, Mr.
Richburg pled guilty to one count of attempted criminal sale
of a controlled substance in the third degree in satisfaction
of the counts in the indictment with case number 7805–2008,
and the charges in criminal court complaint 2008KN054966,
which originated from arrest number Q08641072 on July 23,
2008. (See Reply, Exs. A, B, D, E.) When viewed together,
these records clearly show that Mr. Richburg's arrest on
July 23, 2008 initiated a criminal prosecution that included
the filing of a criminal complaint dated July 24, 2008, an
indictment on November 18, 2009, and ended with his guilty
plea on January 8, 2010.
*6 Accordingly, because Mr. Richburg pled guilty to a
charge to resolve a criminal prosecution that began with
his July 23, 2008 arrest, he “necessarily acknowledged that
he was engaged in some unlawful activity for which the
police could properly take him into custody ... and cannot
pursue” false arrest claims related to that arrest. Sealey, 1998
U.S. Dist. LEXIS 20142, at *13, 1998 WL 1021470 . Mr.
Richburg's false arrest claims are dismissed with prejudice.

B. Mr. Richburg's Denial of Access to Courts and First
Amendment Retaliation Claims
The second issue for the court is whether Mr. Richburg's
denial of access to courts claim and First Amendment
retaliation claim should be dismissed.

1. Legal Standard
“To succeed on an access-to-court claim, a plaintiff must
demonstrate ‘actual injury’ by proving that the denial of
access ‘hindered his efforts' to pursue a non-frivolous legal
claim.” Whitfield v. Imperatrice, 477 F. App’ x 806, 809
(2d Cir.2012) (summary order). Additionally, a party “must
demonstrate that the alleged deprivation actually interfered
with his [or her] access to the courts or prejudiced an existing
action.” Cathedral Church of the Intercessor v. Inc. Vill. Of
Malverne, 353 F.Supp.2d 375, 388 (E.D.N.Y.2005) (internal
quotation and citation omitted) (alteration in original); Cancel
v. City of New York, No. 07 CV 4670, 2010 U.S. Dist. LEXIS
144938, at *14–15, 2010 WL 8965889 (E.D.N.Y. Mar. 3,
2010) (“Plaintiff in essence must have ‘effectively lost’ or
been ‘severely hampered’ in filing a lawsuit.”) (quoting

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Ponterio v. Kaye, No. 06 Civ. 6289, 2007 U.S. Dist. LEXIS
4105, at *34, 2007 WL 141053 (S.D.N.Y. Jan. 22, 2007)).
To adequately plead a First Amendment retaliation claim
under section 1983, “a plaintiff must allege that: (1) he
has a right protected by the First Amendment; (2) the
defendant's actions were motivated by or substantially caused
by plaintiff's exercise of that right; and (3) the defendant's
actions effectively chilled the plaintiff's exercise of his
rights.” Whitfield, 477 F. App'x at 808–809 (citing Connell
v. Signoracci, 153 F.3d 74, 79 (2d Cir.1998)). A plaintiff
also “must show ... that his First Amendment rights were
‘actually chilled.’ ” Bartels v. Inc. Vill. Of Lloyd Harbor,
751 F.Supp.2d 387, 401 (E.D.N.Y.2010) (quoting Curley
v. Vill. Of Suffern, 268 F.3d 65, 73 (2d Cir.2001)). “If
the plaintiff continues to engage in the protected speech
that allegedly motivated unconstitutional retaliation, then
[he or she has] failed to establish an actual chilling of [ ]
speech.” New England Health Care, Emp. Union, District
1199, SEIU/AFL–CIO v. Rowland, 221 F.Supp.2d 297, 343
(D.Conn.2002); see also Singer v. Fulton County Sheriff, 63
F.3d 110, 120 (2d Cir.1995) (no actual chilling where plaintiff
continued to print newspaper criticizing village government).
Certain courts in the Second Circuit have held, however,
that a plaintiff “need not show a chilling effect” to prevail
on a First Amendment retaliatory prosecution claim if he
can “demonstrate that the prosecution was not supported by
probable cause.” Bradley v. City of New York, No. 04 Civ.
8411, 2007 U.S. Dist. LEXIS 7811, at *21–22, 2007 WL
232945 (S.D.N.Y. Jan. 25, 2007); see also Chi Chao Yuan v.
Rivera, 48 F.Supp.2d 335, 351 n. 6 (S.D.N.Y.1999) (stating
that a plaintiff need only show actual chilling if alleging
a restraint on future speech but not if probable cause for
prosecution is in dispute).

2. Application
*7 Mr. Richburg alleged that defendants “violated his
constitutional rights to seek redress in courts by retaliating
against him for filing a previous lawsuit against Defendant
Brijbukhan.” (Opp. At 7 (citing Am. Compl. ¶ 47).) Mr.
Richburg based this claim on the allegations that he had
previously been arrested by Officer Brijbukhan, that he had
filed a complaint against Officer Brijbukhan, which was still
pending, (Am.Compl.¶ 20), and that he was subsequently
arrested without probable cause in retaliation, in violation
of his First Amendment, Fifth Amendment, and Sixth
Amendment rights, (Opp. at 7).

Mr. Richburg does not allege any facts to suggest that he
somehow lost access to the court system or that he was
unable to pursue his complaint against Office Brijbukhan. To
the contrary, Mr. Richburg acknowledges in the Amended
Complaint that his complaint against Officer Brijbukhan “is
still pending.” (Am.Compl.¶ 20.) Because Mr. Richburg has
not pled any facts to show that this claim, or any other claim,
was affected by his arrest, he has failed to “demonstrate
that the alleged deprivation actually interfered with his [or
her] access to the courts or prejudiced an existing action.”
Malverne, 353 F.Supp.2d at 388 (internal quotation and
citation omitted) (alteration in original).
Second, Mr. Richburg has failed to show a violation of
his First Amendment rights because he has not alleged any
facts that suggest his First Amendment rights were “actually
chilled.” Curley, 268 F.3d at 73 (internal quotation and
citation omitted). As explained above, plaintiffs concede
that Mr. Richburg's previous complaint against Officer
Brijbukhan was still active. Moreover, as pointed out by
defendants, since his arrest in this action, Mr. Richburg has
filed at least three lawsuits in the Eastern District of New York
against City and police officer employees. (Reply at 9.) 4 This
demonstrates that Mr. Richburg “continue[d] to engage in
the protected speech that allegedly motivated unconstitutional
retaliation,” Rowland, 221 F.Supp.2d at 343, and thus cannot
show an actual chilling of his First Amendment rights. 11–
cv–2554 (E.D.N.Y. filed May 26, 2011);
Finally, plaintiffs assert that Mr. Richburg need not allege
that his First Amendment Rights were actually chilled if he
shows a lack of probable cause for his prosecution. (Opp.
at 8–9.) This argument has no merit. As explained, supra,
in Discussion section III.A.2, Mr. Richburg pled guilty to a
charge for which he was arrested, thereby “acknowledg[ing]
that he was engaged in some unlawful activity for which the
police could properly take him into custody,” and that police
had probable cause for his arrest. Sealey, 1998 U.S. Dist.
LEXIS 20142, at *13, 1998 WL 1021470 .
Therefore, Mr. Richburg's claims that his First Amendment,
Fifth Amendment, and Sixth Amendment Rights were
violated as a result of retaliatory prosecution are also
dismissed with prejudice.

C. Ms. Harris's Malicious Prosecution Claim
*8 The third issue for the court is whether Ms. Harris's
malicious prosecution claim under section 1983 should be

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dismissed because, according to defendants, she was not
subject to a post-arraignment deprivation of liberty that
constitutes a Fourth Amendment seizure.

1. Legal Standard
A plaintiff alleging a malicious prosecution claim under New
York law must show (1) the initiation or continuation of a
criminal proceeding against plaintiff; (2) termination of the
proceeding in plaintiff's favor; (3) lack of probable cause
for commencing the proceeding; and (4) actual malice as a
motivation for defendant's actions. Kinzer v. Jackson, 316
F.3d 139, 143 (2d Cir.2003). Additionally, “[t]o sustain a
§ 1983 malicious prosecution claim, the state law elements
must be met, and there must also be a showing of a ‘sufficient
postarraignment liberty restraint to implicate the plaintiff's
Fourth Amendment rights.’ ” Rutigliano v. City of New York,
326 F. App'x 5, 8–9 (2d Cir.2009) (summary order) (quoting
Rohman v. New York City Transit Auth., 215 F.3d 208, 215
(2d Cir.2000)).
In the Second Circuit, courts have consistently held that “a
single court appearance, as an alleged deprivation of liberty, is
insufficient to support a Section 1983 malicious prosecution
claim.” Porat v. Lincoln Towers Cmty. Ass'n, No. 04 Civ.
3199, 2005 U.S. Dist. LEXIS 4333, at *7–8 (S.D.N.Y. Mar.
17, 2005); see also Richardson v. N.Y. City Health & Hosps.
Corp., No. 05 Civ. 6278, 2009 U.S. Dist. LEXIS 25247, at
*43, 2009 WL 804096 (S.D.N.Y. Mar. 25, 2009) (“The single
court appearance was not a Fourth Amendment ‘seizure’
caused by the initiation of criminal proceedings, and ... cannot
support a constitutional claim for malicious prosecution”);
Wang v. City of New York, No. 05 Civ. 4679, 2008 U.S. Dist.
LEXIS 50278, at *15, 2008 WL 2600663 (S.D.N.Y. June 26,
2008) (“[a] § 1983 malicious prosecution claim requires more
than a ‘single court appearance’ to constitute a deprivation of
liberty.”) (citation omitted).
Additionally, while an action for false arrest accrues at
the time of detention, a malicious prosecution claim only
commences at arraignment. See Jaegly v. Couch, 439 F.3d
149, 154 (2d Cir.2006) (“A cause of action for false arrest
accrues at the time of detention ... and damages for that
claim cover the time of detention up until issuance of
process or arraignment, but not more. From that point on,
any damages recoverable must be based on a malicious
prosecution claim.”) (internal quotation and citation omitted);
see also Wallace v. Kato, 549 U.S. 384, 389–390, 127
S.Ct. 1091, 166 L.Ed.2d 973 (2007) (“Reflective of the fact
that false imprisonment consists of detention without legal

process, a false imprisonment ends once the victim becomes
held pursuant to such process-when, for example, he is bound
over by a magistrate or arraigned on charges.... Thereafter,
unlawful detention forms part of the damages for the
entirely distinct tort of malicious prosecution, which remedies
detention accompanied, not by absence of legal process, but
by wrongful institution of legal process.”) (internal quotation
and citation omitted) (emphasis in original).

2. Application
*9 In this case, Ms. Harris was arrested on July 23, 2008 and
arraigned on July 25, 2008. (Mem. at Ex. D.) Plaintiffs argue
that Ms. Harris has sufficiently alleged that she was deprived
of her liberty because she was incarcerated from her arrest
until her arraignment. (Opp. at 6 (citing Am. Compl. ¶ 24).)
Any damages resulting from this detention, however, are the
subject of a false arrest claim, not a malicious prosecution
claim. As the Second Circuit has stated, a claim for false
arrest accrues at the time of detention and continues until
arraignment, but any damages from the arraignment onward
“must be based on a malicious prosecution claim.” Jaegly,
439 F.3d at 154 (internal quotation and citation omitted).
All criminal charges against Ms. Harris were dismissed upon
motion of the District Attorney's Office at her arraignment.
(Mem. at Ex. D.) Because Ms. Harris only made a single
court appearance, at which the charges against her were
dismissed, she cannot sustain a malicious prosecution claim
under section 1983 because such a claim “requires more
than a ‘single court appearance’ to constitute a deprivation
of liberty.” Wang, 2008 U.S. Dist. LEXIS 50278, at *15,
2008 WL 2600663 (internal citation omitted). Therefore,
Ms. Harris's section 1983 claim for malicious prosecution is
dismissed with prejudice.

CONCLUSION
For the foregoing reasons, defendants' partial motion to
dismiss pursuant to Rule 12(b)(6) is granted. Plaintiff Kendall
Richburg's claims of false arrest under the first, second,
and third causes of action are dismissed with prejudice.
Plaintiff Kendall Richburg's denial of access to courts and
retaliatory prosecution claims under the tenth cause of action
are dismissed with prejudice. Plaintiff Demecka Harris's
malicious prosecution claim under the fourth cause of action
is dismissed with prejudice. As plaintiffs have withdrawn

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Harris v. City of New York, Slip Copy (2013)

their section 1983 Monell claim against City, the ninth cause
of action is dismissed.
The parties are ordered to file a joint status report via ECF by
October 1, 2013 advising the court how they wish to proceed

with this case and whether a settlement conference before
Magistrate Judge Vera M. Scanlon would be beneficial.
SO ORDERED.

Footnotes

1
2
3
4

The Amended Complaint identifies Officer Brijbukhan's first name as Haranlal but counsel for defendants has consistently identified
him as “Karanlall.” For the purposes of this memorandum and order, Officer Brijbukhan will be identified as “Officer Brijbukhan.”
Defendants also argued that plaintiffs fail to state a claim under section 1983 against City, (Mem. at 10–11), and plaintiffs withdrew
this claim in their Memorandum in Opposition to the Partial Motion to Dismiss (ECF No. 34, Memorandum in Opposition re: Fully
Briefed Motion to Dismiss, 1/23/13 (“Opp.”) at 9.) Thus, plaintiffs' claim is dismissed.
Mrs. Richburg was incarcerated for approximately five days before making bail, made court appearances over the next two years,
and ultimately accepted an adjournment in contemplation of dismissal. (Am.Compl.¶ 24.)
Cooper v. City of New York, Richburg v. City of New York, 11–cv–2556 (E.D.N.Y. filed May 26, 2011); Richburg v. City of New
York, 12–cv–5590 (E.D.N.Y. filed Nov. 13, 2012).

End of Document

© 2014 Thomson Reuters. No claim to original U.S. Government Works.

© 2014 Thomson Reuters. No claim to original U.S. Government Works.

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