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)

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

2013 WL 5988948
Only the Westlaw citation is currently available.
United States District Court,
S.D. New York.
Killian MOHR, Plaintiff,
v.
CITY OF NEW YORK, et al, Defendants.
No. 12 Civ. 00163(LGS).

|

Nov. 12, 2013.

Opinion
OPINION AND ORDER
LORNA G. SCHOFIELD, District Judge.
*1 Plaintiff Killian Mohr brings this action pursuant to
42 U.S.C. § 1983 against defendants Christopher Labate
(“Officer Labate”), Sherif Baksh (“Officer Baksh”), City of
New York and New York City Police Department (“NYPD”)
(collectively “Defendants”) for violations of his rights under
the Fourth and Fourteenth Amendments. Defendants move
for summary judgment on Plaintiff's false arrest, malicious
prosecution and state law claims, to the extent that they
are asserted. 1 For the reasons below, Defendants' motion is
granted in part and denied in part.

I. Background
A. Procedural Background
Defendants timely filed their motion for summary judgment
on June 10, 2013. Plaintiff, through counsel, failed to file
his opposition by the June 24, 2013, due date. On June 27,
2013, the Court ordered Plaintiff to submit opposition papers
no later than July 3, 2013, warning that if Plaintiff failed to
comply, the Court would decide the motion on the record
before the Court. On July 1, 2013, Plaintiff sent a copy of his
opposition and supporting documents to Chambers, but did
not file his papers on ECF until July 11, 2013, with assistance
of Chambers.
In addition to being untimely, Plaintiff's opposition is
incomplete: Plaintiff failed to oppose Defendants' Local Rule
56.1 statement of undisputed material facts as required by
Local Rules of the United States District Court for the
Southern and Eastern Districts of New York. Local Rule
56.1(b) and (d) require the non-moving party to submit a

statement in opposition to the moving party's 56.1 Statement
“responding to each numbered paragraph in the statement
of the moving party” and citing to admissible evidence in
the record. Unless specifically controverted, the statements
of fact in the moving party's 56.1 statement are generally
deemed admitted. See Local Rule 56.1(c).
Non-compliance with the Local Rules may be excused “in the
interest of justice.” Wight v. BankAmerica Corp., 219 F.3d 79,
85 (2d Cir.2000). “While a court is not required to consider
what the parties fail to point out in their Local Rule 56.1
statements, it may in its discretion opt to conduct an assiduous
review of the record even where one of the parties has failed
to file such a statement.” Holtz v. Rockefeller & Co., Inc., 258
F.3d 62, 73 (2d Cir.2001) (internal quotation marks omitted).
“A district court has broad discretion to determine whether to
overlook a party's failure to comply with local court rules.”
Id.; cf. Hollingsworth v. City of New York, No. 95 Civ. 3738,
1997 WL 91286, at *3 (S.D.N.Y. Mar.4, 1997) (noting that
it is “inappropriate to punish the client for the conduct of her
attorney, particularly when there is no evidence that the client
is aware of the problem”).
Notwithstanding Plaintiff's failure to comply with Local Rule
56.1, in the interest of justice, the Court has conducted a
thorough review of the record before it, which was submitted
in its entirety by Defendants. 2 That record confirms the facts
as stated in Defendants' 56.1 Statement, which consequently
are deemed admitted. In addition, the Court has considered
other evidence in the record, specifically the depositions
of Plaintiff Mohr and Officer Baksh, the March 4, 2009
transcript from Mohr's arraignment, a document titled “APS
DA Datasheet” and an NYPD lab report.

B. Factual Background
*2 The following facts are taken from Defendants' 56.1
Statement and the other evidence described above and are
undisputed unless noted. On March 4, 2009, Mohr stopped
by an apartment building on Cabrini Boulevard in New York
City to pick up papers that he had left in the car of an
individual named Omar. The two men met in the lobby the
building. Upon greeting each other, Mohr and Omar engaged
in a multi-step handshake: “first plaintiff and Omar's hands
closed around one another and their thumbs gripped each
other's hand; next, they opened their hands and grasp[ed] each
other's fingers while making the thumb erect and point[ing
the] forefinger at the other person.” Omar did not return the
papers to Mohr, because according to Mohr, Omar forgot to

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

bring them downstairs. Mohr testified that they only shook
hands (“gave a five”) in the way they do it on his block.
There is no evidence in the record that either of the men gave
anything to the other or that a police officer observed any item
pass between the two men's hands.
The Assistant District Attorney later told the arraigning judge
that Officer Labate and other officers in an unmarked car
observed Mohr “conduct what appeared to be a hand-to-hand
sale” with an unapprehended individual. Defendants also
submitted a document with notes titled “APS DA Datasheet,”
which similarly indicates that Officer Labate and other
officers observed “what appeared to be a hand to hand drug
transaction.” There is no affidavit or testimony in the record
from Officer Labate or the other officers who reportedly
witnessed Mohr and Omar's handshake. It is undisputed that
Mohr and Omar were visible from the street through the front
door of the apartment building when they shook hands.
As Omar ascended the stairs, Plaintiff Mohr saw a black male
in a hooded sweatshirt attempt to enter the lobby through the
front entrance. The individual at the door placed his hand on
a gun held in a holster. After seeing the man at the door, Mohr
fled from the lobby through a door that led to an outdoor area
where garbage is collected. Plaintiff claims, and Defendants
do not dispute, that the individual at the door, presumably
Officer Labate, was not wearing a uniform, did not show a
badge and did not identify himself as a police officer. Mohr
testified that he believed that this individual intended to rob
him.
Upon leaving the building, Mohr encountered two more
individuals wearing hoodies attempting to enter the gate
through which he had planned to exit. Mohr believed
the individuals were also “after him” and ran in the
opposite direction, jumping over two or three gates while
running through back alleyways. Mohr emerged onto Cabrini
Boulevard, saw another individual in street clothing pursuing
him, and quickly reversed direction. After running several
blocks, Mohr stopped because he was exhausted. At some
point, while Mohr ran north, Officer Baksh, who was in a
patrol car, identified himself as an NYPD officer and ordered
Mohr to stop. Officer Baksh testified that he got out of his
car, tackled Mohr and they “fell over each other.” According
to Mohr's deposition testimony, an NYPD officer slammed
Mohr to the ground and began hitting him shortly after he
stopped running. More people, presumably officers, arrived
and, according to Mohr, also hit him while he was on the
ground.

*3 The officers thereafter handcuffed Mohr and stood him
up. It is undisputed that the officers searched Mohr after
he was handcuffed, and discovered a clear bag of creatine
powder, knotted at the top, in Mohr's pocket and $3,084.00
in cash, some of which had fallen out of Mohr's pocket onto
the street. The creatine powder, which was grape-flavored,
contained purple specs the size of grains throughout it. Mohr
told the officers repeatedly that the powdery substance was
creatine. According to Mohr's testimony, one officer said,
“you think I'm stupid, you want to run,” and then struck Mohr
in the face with a walkie-talkie. 3 There is no evidence that
the police officers saw purple grains in the white powder at
the time of Plaintiff's arrest. Police officers did not perform a
field test on the substance after Plaintiff's arrest.
Plaintiff was charged with Criminal Possession of a
Controlled Substance in the Third Degree under N.Y.P.L.
§ 220.16(1), (12) and arraigned in the New York County
Criminal Court on March 4, 2009. At the arraignment, Mohr's
counsel argued that the suspected controlled substance was
creatine and that Mohr possessed the money recovered from
him for legitimate reasons. Despite counsel's arguments, the
arraigning judge set a bail of a $3,000 bond, $2,000 cash,
with a seventy-two hour surety. Mohr did not make bail and
remained incarcerated.
On March 5, 2009, the day after his arrest, a New York City
Police Department Police Laboratory Controlled Substance
Analysis Report confirmed that the white powder was indeed
creatine and that Mohr had not possessed a controlled
substance at the time of his arrest. On or about March 9,
2009, the court dismissed the criminal complaint filed against
Plaintiff and he was released from jail.

II. Legal Standard for Summary Judgment
The standard for summary judgment is well established.
Summary judgment is appropriate where the record before
the court establishes that there is no “genuine dispute as to
any material fact and the movant is entitled to judgment as a
matter of law.” Fed.R.Civ.P. 56(a). The Court must construe
the evidence and draw all reasonable inferences in favor of the
non-moving party. Anderson v. Liberty Lobby, Inc., Ml U.S.
242, 255 (1986); In re “Agent Orange” Prod. Liab. Litig., 517
F.3d 76, 87 (2d Cir.2008). A motion for summary judgment
should be denied “if the evidence is such that a reasonable
jury could return a verdict” in favor of the non-moving party.
NetJets Aviation, Inc. v. LHC Commc'ns, LLC, 537 F.3d 168,

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

178–79 (2d Cir.2008). Summary judgment is warranted if
a party “fails to make a showing sufficient to establish the
existence of an element essential to that party's case, and on
which that party will bear the burden of proof at trial.” Celotex
Corp. v. Catrett, Ml U.S. 317, 322 (1986).

III. False Arrest
Defendants are not entitled to summary judgment on Mohr's
claim for false arrest because there are genuine issues of
disputed fact as to whether the police officers had probable
cause to search Mohr and arrest him for criminal sale of a
controlled substance.

A. Legal Standard
*4 The Fourth Amendment “includes the right to be free
from arrest absent probable cause.” Torraco v. Port Auth.
of N.Y. & N.J., 615 F.3d 129, 139 (2d Cir.2010) (internal
quotation marks omitted); see U.S. Const. amend. IV. “ ‘In
analyzing § 1983 claims for unconstitutional false arrest,
[courts generally look] to the law of the state in which the
arrest occurred.’ “ Jaegly v. Couch, 439 F.3d 149, 151–52 (2d
Cir.2006) (quoting Davis v. Rodriguez, 364 F.3d 424, 433 (2d
Cir.2004)). In order to state a claim for false arrest, a plaintiff
must show that: (1) the defendant intentionally confined the
plaintiff; (2) the plaintiff was conscious of the confinement;
(3) the plaintiff did not consent to the confinement; and (4) the
confinement was not otherwise justified. See Posr v. Doherty,
944 F.2d 91, 97 (2d Cir.1991). Under both New York and
federal law, “the existence of probable cause is an absolute
defense to a false arrest claim.” Jaegly, 439 F.3d at 152.
“ ‘Probable cause to arrest exists when the arresting officer
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.’ “ Torraco, 615
F.3d at 139 (quoting Escalera v. Lunn, 361 F.3d 737, 743 (2d
Cir.2004)). “The inquiry is limited to whether the facts known
by the arresting officer at the time of the arrest objectively
provided probable cause to arrest.” Gonzalez v. City of Sc hen
ectady, 728 F.3d 149, 155 (2d Cir.2013) (internal quotation
mark omitted). In the context of false arrest claims, courts
look to the totality of the circumstances and “must consider
those facts available to the officer at the time of the arrest
and immediately before it, as probable cause does not require
absolute certainty.” Pan etta v. Crowley, 460 F.3d 388,
395 (2d Cir.2006) (emphasis omitted) (citation and internal
quotation marks omitted). “ ‘[N]o probable cause exists to

arrest where a suspect's actions are too ambiguous to raise
more than a generalized suspicion of involvement in criminal
activity.’ “ Gonzalez, 728 F.3d at 155 (quoting United States
v. Valentine, 539 F.3d 88, 94 (2d Cir.2008)).

B. Application of Law to Facts
Here Defendants argue that the officers had probable cause
to arrest Mohr because (1) Officer Labate observed what he
believed to be a hand-to-hand drug transaction, (2) Mohr fled
and (3) the officers recovered a bag of white powder and cash
from Mohr.
As an initial matter, the probable cause determination for
Mohr's arrest can be based only on facts known to Defendants
prior to their arrest of Mohr-and Mohr was undeniably
arrested by the time he was handcuffed. See California
v. Hodari D., 499 U.S. 621, 624, 111 S.Ct. 1547, 113
L.Ed.2d 690 (1991) (“To constitute an arrest, however—
the quintessential ‘seizure of the person’ under our Fourth
Amendment jurisprudence—the mere grasping or application
of physical force with lawful authority ... was sufficient.”).
Facts acquired after the arrest are irrelevant to a determination
of probable cause. See, e.g., Gonzalez, 728 F.3d at 155
(“The inquiry is limited to whether the facts known by the
arresting officer at the time of the arrest objectively provided
probable cause to arrest.” (internal quotation mark omitted));
Stansbury v. Wertman, 721 F.3d 84, 89 (2d Cir.2013) (“A
court must consider only those facts available to the officer
at the time of the arrest and immediately before it.” (internal
quotation marks omitted)); Williams v. City of Rome, No. 08
Civ. 14, 2009 WL 2156914, at *3 (N.D.N.Y. July 15, 2009)
(finding that plaintiff's failure to produce identification when
asked for it “is irrelevant for purposes of determining whether
there was probable cause to believe plaintiff was committing
a crime because the questioning did not occur until after
plaintiff was placed in handcuffs”); Brewton v. City of New
York, 550 F.Supp.2d 355, 365–66 (E.D.N.Y.2008). (“[T]he
facts relevant ... to the probable cause inquiry are those facts
known ... prior to th[e] earliest alleged confinement,” that
is, before the detective threatened to handcuff the plaintiff
if she attempted to leave). The undisputed evidence on the
record establishes that Mohr was arrested and handcuffed
before the search that uncovered the bag of white powder and
the money. Consequently, they are irrelevant to the probable
cause determination for Plaintiff's unlawful arrest claim.
*5 The question for the Court then is whether the interaction
that Officer Labate observed between Mohr and Omar
coupled with Mohr's flight created probable cause for his

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

arrest. Defendants argue that the police had probable cause to
arrest Mohr, but-in contrast to the present case where there
is no evidence that the officers observed Mohr and Omar
exchange any item-in the cases relied upon by Defendants,
the officers actually observed objects or cash exchanged
between suspects. See Smith v. City of New York, No. 04 Civ.
3286, 2010 WL 3397683, at *1,8 (S.D.N.Y. Aug. 27, 2010)
(granting defendants summary judgment on false arrest claim
in § 1983 suit for damages where officer arrested plaintiff
after observing an individual hand “money to plaintiff and in
return plaintiff handed an object” to the individual); United
States v. Washington, No. 02 Cr. 1574, 2003 WL 21250681,
at *1 (S.D.N.Y. May 29, 2003) (motion to suppress denied
because probable cause to arrest existed where officer
observed defendant hand an item “smaller than a tea bag” to
another individual in exchange for money); Sam v. Brown,
No. 00 Civ. 4170, 2002 WL 31102644, at *3–4 (E.D.N.Y.
Sept.10, 2002) (writ of habeas corpus denied on false arrest
claim where officer observed the defendant engage in what
appeared to be the sale of drugs and where “the incriminating
character of the green bags” was “immediately apparent”);
Hartzog v. Rabideau, No. 05 Civ. 0554, 2010 WL 2010948,
at *9 (W.D.N.Y. May 18, 2010) (denying writ of habeas
where officer observed actions that “seemed to indicate that
[defendant] was handing something to the man in brown,
and the man in brown was handing currency” to defendant);
cf. Pennsylvania v. Dunlap, 555 U.S. 964, 964, 129 S.Ct.
448, 172 L.Ed.2d 321 (2008) (Roberts, C.J., dissenting from
the denial of a cert. petition) (“[T]he core fact pattern is the
same” in cases where police officers had probable cause to
arrest suspected drug dealers after observing a hand-to-hand
exchange: “experienced police officers observing hand-tohand exchanges of cash for small, unknown objects in highcrime neighborhoods.”).
Here, the evidence in the record indicates only that the
two men shook hands as a form of greeting, and not that
an officer witnessed any item or cash pass between them.
Notably absent is any direct statement from the officers who
observed Mohr's interaction with Omar. Instead, Defendants
rely on a statement by the Assistant District Attorney that
Officer Labate observed “what appeared to be a hand-tohand transaction” between the two men. Defendant's evidence
consists of multiple levels of hearsay with no indicia of
reliability-a written transcript contains the DA's statement,
which may have been based on notes from an “APS
DA Datasheet,” which contains, among many handwritten
notes, a typed notation that “PO Labate and other POs
are in an unmarked car and observe the defendant and an

unapprehended individual conduct what appears to be a
hand to hand drug transaction.” It is unclear who typed this
statement, what the source of their knowledge was, whether
it was one of the police officers involved or someone else
adding yet another layer of hearsay. Even if these hearsay
statements were somehow admissible at trial, they are not
evidence that the officers observed an object or cash pass
between Mohr and Omar. Defendants have failed to establish
that Officer Labate or any other officer observed anything
more than a handshake, and witnessing a handshake does not
give rise to probable cause for arrest. See Perez v. Duran,
No. 11 Civ. 5399, 2013 WL 3357166, at *5 (S.D.N.Y. July 3,
2013) (denying summary judgment where “the parties dispute
whether an exchange—other than a handshake—occurred at
all”).
*6 Second, given the circumstances of the present case,
Mohr's flight from the apartment complex was insufficient
to establish probable cause at the time of his arrest as a
matter of law. Although flight alone is generally not sufficient
to establish probable cause, an individual's flight “may be
considered in conjunction with other attendant circumstances
such as time and location, as well as the police officers'
knowledge that a crime had been committed, to establish
probable cause.” Morgan v. Superintendent, 88 F.Supp.2d
312, 317 n. 48 (S.D.N.Y.2000) (citing Sibron v. State of New
York, 392 U.S. 40, 66–67 (1968)); cf. Illinois v. Wardlow, 528
U.S. 119, 125–26, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000)
(holding that an individual's unprovoked flight from an area
of expected criminal activity upon observing police may
provide reasonable suspicion for an investigatory stop, but not
probable cause for arrest) (emphasis added). The significance
of Plaintiff's flight “may be enhanced or diminished by
surrounding circumstances.” Jenkins v. City of New York,
478 F.3d 76, 90 (2d Cir.2007); see also Wardlow, 528 U.S.
at 129–35 (Stevens, J., concurring in part and dissenting
in part) (“Among some citizens, particularly minorities and
those residing in high crime areas, there is also the possibility
that the fleeing person is entirely innocent, but, with or
without justification, believes that contact with the police
can itself be dangerous, apart from any criminal activity
associated with the officer's sudden presence.”). Moreover,
“when an officer insufficiently or unclearly identifies his
office or his mission,” an individual's flight “must be regarded
as ambiguous conduct.” Wong Sun v. United States, 371 U.S.
471, 482, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).
Here, it is not disputed that Mohr fled from Omar's apartment
building upon observing a non-uniformed man in hoodie

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

with his hand near a firearm attempting to enter the lobby
of the apartment building. At his deposition, Mohr testified
that Officer Labate did not show a badge or otherwise
identify himself as a police officer and that Mohr believed
the unidentified individual, and the other unidentified officers
who joined the chase, were attempting to rob him. Given
these circumstances, it is far from clear that Mohr's flight was
“unprovoked.” In any event, even if Defendants could argue
that Mohr's flight provided reasonable suspicion for a brief
investigatory detention, see, e.g., Terry v. Ohio, 392 U.S. 1,
17, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), it did not, without
more, provide grounds for his arrest. Under the totality of
the circumstances test, a reasonable jury could conclude that
Defendants lacked probable cause to arrest Mohr.
Accordingly, Defendants' motion for summary judgment on
the claim of false arrest in violation of § 1983 is denied.

IV. Malicious Prosecution
Genuine issues of material fact preclude summary judgment
on Plaintiff's malicious prosecution claim.

A. Legal Standard
Malicious prosecution claims “vindicate[ ] the right to
‘freedom from unjustifiable litigation.’ “ Rothstein v.
Carriere, 373 F.3d 275, 292 (2d Cir.2004) (citing Broughton,
373 N.Y.S.2d 87, 335 N.E.2d at 314). “In order to prevail on
a § 1983 claim against a state actor for malicious prosecution,
a plaintiff must show a violation of his rights under the
Fourth Amendment, and establish the elements of a malicious
prosecution claim under state law.” Fulton v. Robinson,
289 F.3d 188, 195 (2d Cir.2002) (citation omitted). Under
New York law, the elements of a malicious prosecution
claim are: “(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.” Jocks v. Tavernier, 316 F.3d 128,
136 (2d Cir.2003). Additionally, Plaintiff must assert that
there was “a sufficient post-arraignment liberty restraint to
implicate the plaintiff's Fourth Amendment rights.” Rohman
v. N.Y.C. Transit Auth., 215 F.3d 208, 215 (2d Cir.2000).

B. Application of Law to Facts
*7 Defendants challenge only the third and fourth prongs
of the malicious prosecution claim: the existence of probable
cause and malice.

1. Probable Cause
Defendants argue that they are entitled to summary judgment
because, after discovering the bag of white powder on Mohr,
the officers had probable cause to file the criminal complaint
against him. ‘ “The existence of probable cause is a complete
defense to a claim of malicious prosecution in New York.’
“ Manganiello v. City of New York, 612 F.3d at 161–62
(quoting Savino v. City of New York, 331 F.3d 63, 72 (2d
Cir.2003). Probable cause “must be evaluated in light of the
facts known or believed at the time the prosecution initiated
rather than at the time of the arrest.” Gaston v. City of New
York, 851 F.Supp.2d 780, 793 (S.D.N.Y.2012) (emphasis
added) (internal quotations marks omitted); see Townes v.
City of New York, 176 F.3d 138, 145 (2d Cir.1999) (“The fruit
of the poisonous tree doctrine ... is inapplicable to civil § 1983
actions.”).
Here there are genuine issues of disputed fact as to whether
Defendants had probable cause to prosecute Mohr. First,
Mohr testified that his creatine powder contained purple
grape-flavored specs throughout, which arguably should have
been visible upon inspection. Second, at the time of Mohr's
arrest, he told the officers repeatedly that the substance that
they discovered on him was creatine and not a controlled
substance. While officers are not required to investigate every
protestation of innocence, see, e.g., Pan etta, 460 F.3d at
395–96, this fact is still relevant. See Lowth v. Town of
Cheektowaga, 82 F.3d 563, 571 (2d Cir.1996) (“ ‘[F]ailure
to make a further inquiry when a reasonable person would
have done so may be evidence of lack of probable cause.’
“ (quoting Colon v. City of New York, 60 N.Y.2d 78, 468
N.Y.S.2d 453, 455 N.E.2d 1248, 1250 (N.Y.1983))). Third,
Plaintiff testified that the officers punched and hit him at
the time of his arrest, even prior to discovering the white
bag of powder, because they were angry that Plaintiff had
fled making a chase necessary. It is also undisputed that the
officers did not perform a field test, although there is no
evidence on the record whether a field test would have been
feasible or appropriate under the circumstances.
When inferences are drawn in Plaintiff's favor, a jury could
conclude that the officers were aware that the white powder
likely was creatine, and not a controlled substance, when they
initiated the prosecution, and consequently lacked probable
cause to prosecute Mohr.

2. Malice

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The fourth element of malicious prosecution requires a
showing that “the proceeding was instituted with malice.”
Ricciuti v. N .Y.C. Transit Authority, 124 F.3d 123, 131 (2d
Cir.1997). ‘ “[A] lack of probable cause generally creates an
inference of malice.’ “ Manganiello, 612 F.3d at 163 (quoting
Boyd v. City of New York, 336 F.3d 72, 78 (2d Cir.2003)).
Under New York law, “malice does not have to be actual
spite or hatred, but means only ‘that the defendant must
have commenced the criminal proceeding due to a wrong or
improper motive, something other than a desire to see the ends
of justice served.’ “ Lowth, 82 F.3d at 573 (quoting Nardelli
v. Stamberg, 377 N.E.2 975, 976 (N.Y.1978)).
*8 Here, drawing inferences in Mohr's favor, a reasonable
jury could conclude that, knowing the powder recovered
from Mohr likely was not a controlled substance, the officers
commenced the proceedings against him for some reason
other than to see the ends of justice served. See id. (“Given
that [the officer] lacked probable cause to charge [plaintiff],
and given also that ... [the officer] might have been acting out
of anger for what [the plaintiff] had put him through, we think
that enough evidence of malice, as defined by New York, can
be inferred to survive a motion for summary judgment.”).
Consequently, summary judgment on Plaintiff's malicious
prosecution claim is denied.

3. Damages
Defendants argue that Plaintiff should be precluded from
seeking damages for his post-arraignment detention due
to the intervening acts of the Assistant District Attorney
and the judge. Specifically Defendants argue that (1) the
prosecutor exercised independent judgment in initiating the
prosecution and (2) the arraigning judge made an independent
determination in setting bail and remanding Plaintiff.
“It is well settled that the chain of causation between a
police officer's unlawful arrest and a subsequent conviction
and incarceration is broken by the intervening exercise of
independent judgment,” at least “in the absence of evidence
that the police officer misled or pressured the official
who could be expected to exercise independent judgment.”
Townes, 176 F.3d at 147. Despite the presumption that a
prosecutor exercises independent judgment, see Hartman v.
Moore, 547 U.S. 250, 263, 126 S.Ct. 1695, 164 L.Ed.2d 441
(2006), “ ‘courts have found a triable issue of fact as to the
initiation element where the defendant-officer brought formal
charges and had the person arraigned, filled out complaining
and corroborating affidavits, swore to and signed a felony

complaint, or created false information and forwarded it to
prosecutors.’ “ Alcantara v. City of New York, 646 F.Supp.2d
449, 457–58 (S.D.N.Y.2009) (quoting Espada v. Schneider,
522 F.Supp.2d 544, 553 (S.D.N.Y.2007)); see Cameron v.
City of New York, 598 F.3d 50, 63 (2d Cir.2010) (noting
that “generally in malicious prosecution actions alleging that
a police officer provided false information to a prosecutor,
what prosecutors do subsequently has no effect whatsoever
on the police officer's initial, potentially tortious behavior”);
Zahrey v. Coffey, 221 F.3d 342, 352 (2d Cir.2000) (“ ‘A
prosecutor's decision to charge, a grand jury's decision to
indict, a prosecutor's decision not to drop charges but to
proceed to trial-none of these decisions will shield a police
officer who deliberately supplied misleading information that
influenced that decision.’ “ (quoting Jones v. City of Chicago,
856 F.2d 985, 994 (7th Cir.1988))); cf. Higazy v. Templeton,
505 F.3d 161, 177 (2d Cir.2007) (“[E]ven if the intervening
decision-maker (such as a prosecutor, grand jury, or judge)
is not misled or coerced, it is not readily apparent why the
chain of causation should be considered broken where the
initial wrongdoer can reasonably foresee that his misconduct
will contribute to an ‘independent’ decision that results in a
deprivation of liberty.”) (internal quotation marks omitted).
*9 Here, when inferences are drawn in Plaintiff's favor, the
evidence is sufficient for a reasonable factfinder to conclude
that the police officers misled the Assistant District Attorney
and the judge by filing a complaint asserting that they
recovered a controlled substance from Mohr at the time of
his arrest, when the officers knew that the powder likely was
not a controlled substance. The jury could also conclude that
the police officers deceived the subsequent decision makers,
and that Plaintiff's damages were reasonably foreseeable.
Consequently Defendants' motion to limit damages to
Plaintiff's pre-arraignment detention is denied.

V. Qualified Immunity
Officers Labate and Baksh are not entitled to summary
judgment on their qualified immunity defense for either the
false arrest or malicious prosecution claims as a matter of
law at this stage. “Under federal law, a police officer is
entitled to qualified immunity where ‘(1) his conduct does not
violate clearly established statutory or constitutional rights
of which a reasonable person would have known, or (2)
it was objectively reasonable for him to believe that his
actions were lawful at the time of the challenged act.’ “
Jenkins, 478 F.3d at 87 (quoting Cerrone v. Brown, 246
F.3d 194, 199 (2d Cir.2001)). There is no doubt that the
rights to be free from false arrest and malicious prosecution

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were clearly established by March 4, 2009. See Cook v.
Sheldon, 41 F.3d 73, 78 (2d Cir.1994) (“It is now far
too late in our constitutional history to deny that a person
has a clearly established right not to be arrested without
probable cause.”); Manganiello v. City of New York, 612
F.3d 149, 164–65 (2d Cir.2010) (“ ‘[F]reedom from malicious
prosecution is a constitutional right that has long been clearly
established.’ “ (quoting Kinzer v. Jackson, 316 F.3d 139, 143
(2d Cir.2003))). Therefore, Mohr's false arrest and malicious
prosecution claims turn on whether the officers' probable
cause determinations at the time of arrest and at the initiation
of prosecution were objectively reasonable.
“An officer's determination is objectively reasonable if
there was arguable probable cause ... that is, if officers
of reasonable competence could disagree on whether the
probable cause test was met, [but not if they] would have
to agree that the information ... did not add up to probable
cause.” Gonzalez, 728 F.3d at 157 (internal quotation marks
omitted). In other words, if “on the undisputed facts the
officer would be unreasonable in concluding probable cause
existed, or if the officer's reasonableness depends on material
issues of fact, then summary judgment is inappropriate.”
Jenkins, 478 F.3d at 88.
The Court cannot determine, at this stage and as a matter of
law, that it was objectively reasonable for the officers to find
probable cause to arrest or prosecute Mohr, or that reasonable
officers could disagree about whether or not the probable
cause test was met in either instance. The same factual
disputes that preclude summary judgment on the substance of
Mohr's claims for false arrest and malicious prosecution also
prevent summary judgment as to qualified immunity.

VI. Claims Against Defendant City of New York
*10 Defendants' motion for summary judgment on Mohr's
claims against Defendant City of New York pursuant to 42
U.S.C. § 1983 is granted because there is no evidence on the
record to sustain this claim. The municipality cannot be held
responsible under § 1983 based only on a theory of respondeat
superior. Monell v. Dep't of Soc.l Servs. ., 436 U.S. 658, 694,
98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). In order to establish
municipal liability under § 1983, Plaintiff must show that
“the municipality itself cause[d] the constitutional violation at
issue.” Jenkins, 478 F.3d at 93–94. “A plaintiff must establish
that the violation of his constitutional rights resulted from
a municipal custom or policy.” Vann v. City of New York,
72 F.3d 1040, 1049 (2d Cir.1995). If Plaintiff is unable to
establish that a municipal policy or practice was the moving

force behind the constitutional violation, the municipality
cannot be held liable. See Monell, 436 U.S. at 694.
There is no evidence on the record to support a claim that
Mohr's rights were violated as a result of municipal policy or
practice. Plaintiff's argument that the City has a supervisory
policy of benign neglect is not evidence and is insufficient to
defeat summary judgment. Consequently, the claims against
the City of New York are dismissed.

VII. Claims against New York City Police Department
The claims against the New York City Police Department also
are dismissed. “It is well settled in this Court that, as a general
matter, agencies of New York City are not suable entities
in § 1983 actions.” Nnebe v. Daus, 644 F.3d 147, 158 n. 6
(2d Cir.2011); see N.Y.C. Admin. Code & Charter Ch. 17 §
396; Valade v. City of New York, No. 10 Civ. 2831, 2013 WL
2460186, at *11 (S.D.N.Y. June 6, 2013) (“The law is clear
that the New York City Police Department is not a suable
entity.”).

VIII. State Law Claims
Defendants argue that, to the extent that Plaintiff's allegations
in the Complaint can be construed to include claims brought
under New York state law, they should be dismissed for
failure to comply with conditions precedent to suit pursuant to
New York General Municipal Law §§ 50–e and 50–i. Indeed,
while Plaintiff argues that he has complied with the relevant
requirements, he has not come forward with evidence that
he filed a notice of claim in the form required by § 50–e,
or within the time required by § 50–i. 4 Nevertheless, even
construing Plaintiff's complaint liberally, the Court concludes
that no state law claims are alleged. Consequently, there are
no claims to dismiss.

IX. Conclusion
For the reasons stated above, Defendants' motion is
GRANTED in part to the extent that Plaintiff's claims against
the City of New York and the New York City Police
Department are dismissed. Defendants' motion for summary
judgment is otherwise DENIED.
The Clerk of Court is directed to close the motion at docket
number 29.
SO ORDERED.

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Footnotes

1

2
3
4

In addition, although not addressed in Defendants' motion, Plaintiff also arguably asserts a claim for excessive force under the Fourth
Amendment. In his complaint, Plaintiff alleges that, at the time of his arrest, he was “thrown to the ground, punched and kicked,”
and that Defendants “unfairly, unjustly, and mercilessly beat him up.” These allegations are sufficient to put Defendants on notice of
Plaintiff's excessive force claim pursuant to Federal Rule of Civil Procedure 8(a). See Sullivan v. Andino, No. 09 Civ. 3668, 2012 WL
4714766, at *5 n. 2 (S.D.N.Y. Sept.18, 2012) (finding that plaintiff's complaint adequately put defendants on notice of his excessive
force claim even though the words “excessive force” were not used).
Counsel for Plaintiff submitted one exhibit with his opposition-the transcript from Mohr's March 4, 2009 arraignment-which was
previously submitted as an exhibit to Defendants' motion.
Mohr stated that another police officer scraped his face against a rock wall. Officer Baksh testified that he did not see anybody hit
Mohr, and did not see any “marks” on Mohr's face when Officer Baksh first saw him, but did see marks on his face and that he was
bleeding from a scrape when Officer Baksh again saw Mohr at the precinct.
The Court notes that, if Plaintiff had asserted state law claims, the failure to file a notice of claim would preclude those state law claims
against the City of New York, but not necessarily against the individual defendants. See Matthews v. City of New York, 889 F.Supp.2d
418, 448 (E.D.N.Y.2012) (noting that the “Notice of Claim requirements ‘[do] not apply to claims asserted against municipal
employees in their individual capacities that allege injuries resulting from intentional wrongdoing or recklessness-misconduct for
which the City has no obligation to indemnify.’ “ (quoting Brenner v. Heavener, 492 F.Supp.2d 399, 448 n. 12 (S.D.N.Y.2007))).

End of Document

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