Groski et al v. The City of Albany et al

Filing 57

MEMORANDUM-DECISION and ORDER - That the Clerk terminate the John Doe defendants as parties to this action and add the City of Albany Corporation Counsel to the docket as a representative of Bailey. That defendants' 50 Motion for Summary Ju dgment is GRANTED IN PART and DENIED IN PART as follows: That plaintiffs' claims for malicious abuse of process and conspiracy to violation civil rights (Am. Compl. 92-96, 97-98) are DISMISSED. That Alison Groski's First Amendment claims (Am. Compl. 79-91) are DISMISSED. That plaintiffs' claims against City of Albany are DISMISSED and the City of Albany is terminated as a defendant in this case. That defendants' motion for summary judgment is otherwise DENIED. That the case is trial ready and the Clerk shall issue a trial scheduling order in due course. Signed by Chief Judge Gary L. Sharpe on 6/5/2014. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
ALISON GROSKI et al.,
Plaintiffs,

1:12-cv-1300
(GLS/TWD)

v.
THE CITY OF ALBANY et al.,
Defendants.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFFS:
Treyvus, Konoski Law Firm
305 Broadway, 14th Floor
New York, NY 10007

BRYAN M. KONOSKI, ESQ.

FOR THE DEFENDANTS:
City of Albany Corporation Counsel
City Hall, 24 Eagle Street
Albany, NY 12207
Rehfuss, Liguori Law Firm
40 British American Blvd.
Latham, NY 12110

JOHN JOSEPH REILLY, ESQ.

STEPHEN J. REHFUSS, ESQ.

Gary L. Sharpe
Chief Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiffs Alison Groski and Brian Groski commenced this action

against defendants the City of Albany, police officer K. Meehan, police
officer W. Pierce, Sgt. E. Donohue, and police officer Brandon M. Bailey, 1
in their official and individual capacities, pursuant to 42 U.S.C. § 1983,
alleging violations of the First, Fourth, Fifth, Eighth, and Fourteenth
Amendments, for false imprisonment, 2 malicious prosecution, excessive
force, First Amendment retaliation, and abuse of process. (Am. Compl.,
Dkt. No. 20.) Pending before the court is defendants’ motion for summary
judgment. (Dkt. No. 50.) For the reasons that follow, defendants’ motion is
granted in part and denied in part.
II. Background3
On March 12, 2011, plaintiffs were in the City of Albany for St.

1

The court notes that plaintiffs initially named five John Doe
defendants in their complaint, (Compl., Dkt. No. 1), but their amended
complaint has eliminated the John Does, (Am. Compl., Dkt. No. 20). The
Clerk is therefore directed to terminate the John Doe defendants as
parties to this action. Additionally, given Bailey’s waiver regarding
potential conflict with joint representation, (Dkt. No. 38), the Clerk is
directed to add the City of Albany Corporation Counsel to the docket as a
representative of Bailey in this action.
2

The parties frequently refer to plaintiffs’ cause of action as “false
arrest.” The correct nomenclature is “false imprisonment” because
plaintiffs were arrested without a warrant and, therefore, without process.
See Wallace v. Kato, 549 U.S. 384, 388-89 (2007).
3

Unless otherwise noted, the facts are not in dispute.
2

Patrick’s Day celebrations, and over the course of the day, they frequented
several bars on North Pearl Street in downtown Albany. (Defs.’ Statement
of Material Facts (SMF) ¶¶ 1, 4, 8, Dkt. No. 50, Attach. 1.) Albany police
had observed significant alcohol use and a number of fights among groups
of people throughout the day. (Id. ¶ 9.) Plaintiffs claim that they each
consumed three or four alcoholic drinks that day. (Id. ¶ 11.)
In the early morning hours of March 13, plaintiffs decided to dine at
Pizza 54, a restaurant located on North Pearl Street. (Id. ¶ 15.) Plaintiffs
allege that, while inside Pizza 54, three men at an adjacent table threw
various items, including pizza crust, at Alison. (Id. ¶¶ 17-18.) When this
occurred, Brian had a verbal encounter with the three men at the other
table. (Id. ¶ 19.) The men responded by saying, “let’s take this outside,”
and shortly afterward, Brian and Alison got up to leave, allegedly to avoid
any further confrontations. (Id. ¶ 20; Pls.’ SMF ¶ 17, Dkt. No. 52, Attach.
28.) As plaintiffs exited the restaurant, they were followed behind by the
three men. (Defs.’ SMF ¶ 20; Pls.’ SMF ¶ 17.)
After the time that plaintiffs left the restaurant, the facts are largely
disputed. Plaintiffs allege that upon leaving the restaurant, they were
confronted by the three men, and that Brian did not initiate any physical
3

contact with anyone else at the scene. (Pls.’ SMF ¶¶ 20-21.) Rather,
within an “instant” of one of the three men grabbing Brian, police were on
the scene; Brian alleges that shortly after exiting the restaurant, a police
officer grabbed him by the neck, choked him, threw him against a car, and
struck him in the ribs with a closed fist. (Id. ¶¶ 22-23.) Upon witnessing
this, Alison asserts that she was attempting to explain to defendants that
her husband had not done anything wrong, and that she only raised her
voice so that they could better hear her explanation. (Id. ¶ 24.) According
to plaintiffs, as Alison began walking away, an officer pushed her in the
back, and Sergeant Donohue then detained her, pushed her to a nearby
parked car, grabbed her arm, and threw her to the ground. (Id. ¶¶ 25-26.)
As a result, she claimed to suffer pain in her face and arm, as well as
bruising. (Id. ¶ 29.)
Defendants’ version of events, meanwhile, is that Officers Pierce,
Bailey, and Meehan observed a fight occurring on the sidewalk outside of
Pizza 54, and responded to the scene; at that time, they noted that Brian
was involved in the fight, shoving other people, and shouting obscenities.
(Defs.’ SMF ¶¶ 22-24, 26.) Defendants ordered the group to disperse and
leave the scene, but Brian repeatedly refused to comply with the officers’
4

orders. (Id. ¶¶ 27-28.) Specifically, Officer Pierce noted that Brian
appeared intoxicated, and would not calm down, so he brought Brian over
to a nearby parked car. (Id. ¶ 28.) At this time, defendants testify that
Alison, who was also yelling and refusing to comply with police orders,
grabbed Officer Pierce’s shoulders and jumped on his back. (Id. ¶¶ 29-30,
32-33, 35-36.) Plaintiffs, on the other hand, both testified that Alison did
not jump onto Officer Pierce’s back. (Pls.’ SMF ¶ 36.) Sergeant Donohue
ultimately decided to arrest Alison at this time, and attempted to bring her
over to a nearby parked car. (Defs.’ SMF ¶¶ 37-38.) However, defendants
assert that Alison refused to put her hands behind her back, and ignored
repeated orders to stop resisting. (Id. ¶ 38.) Sergeant Donohue then
forcibly put Alison’s hands behind her back, and at some point during this
incident, Alison tripped over the curb and fell toward the ground, but
defendants claim she did not actually hit the ground because Officer Bailey
caught her fall. (Id. ¶¶ 39-40.)
As a result of this incident, plaintiffs were each charged, by criminal
information, with disorderly conduct pursuant to N.Y. Penal Law § 240.20,
and Alison was additionally charged with resisting arrest pursuant to N.Y.
Penal Law § 205.30. (Defs.’ SMF ¶ 43; Dkt. No. 52, Attach. 8; Dkt. No. 52,
5

Attach. 9; Dkt. No. 52, Attach. 10.) In Albany City Court, plaintiffs made
motions to dismiss the criminal informations which charged them with
disorderly conduct and resisting arrest on the grounds that they were
facially insufficient. (Dkt. No. 50, Attach. 13 at 2, 8.) Judge Rachel Kretser
of Albany City Court granted Alison’s motion to dismiss the resisting arrest
charge for facial insufficiency, (id. at 4), but denied plaintiffs’ motions to
dismiss the disorderly conduct charges, finding that the elements of the
offense were “sufficiently pleaded in the [i]nformation[s],” (id. at 4-5, 9-10).
Ultimately, at a bench trial, plaintiffs were acquitted of the disorderly
conduct charges, with Judge Kretser stating that plaintiffs’ guilt was not
established beyond a reasonable doubt. (Dkt. No. 52, Attach. 7 at 112-13.)
III. Standard of Review
The standard of review pursuant to Fed. R. Civ. P. 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), aff’d sub nom. Wagner v.
Sprague, 489 F. App’x 500 (2d Cir. 2012).
IV. Discussion
At the outset, the court notes that plaintiffs have consented to the
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dismissal of their claims for abuse of process, (Am. Compl. ¶¶ 92-96), and
conspiracy to violate civil rights, (id. ¶¶ 97-98). (Dkt. No. 52 at 20.)
Accordingly, these claims are dismissed, and plaintiffs’ remaining claims
consist of claims of false imprisonment, malicious prosecution, and
excessive force against the individually named defendants, a Monell claim
against the City of Albany, and Alison’s First Amendment claims against
Donohue. The court will address each of these in turn. 4
A.

False Imprisonment and Malicious Prosecution
In general, the torts of false arrest and false imprisonment under 42

U.S.C. § 1983 and New York State law are “substantially the same” except
for “the requirement that the constitutional tort be under color of state law.”
Posr v. Doherty, 944 F.2d 91, 96 (2d Cir. 1991) (internal quotation marks
4

The court also notes that, in their reply brief, defendants have
argued that a video of the events at issue, submitted as an exhibit to
plaintiffs’ response to the summary judgment motion, should not be
considered by the court as it has not been properly authenticated. (Dkt.
No. 55 at 1-2.) Pursuant to Federal Rule of Evidence 901, in order to
authenticate evidence, “the proponent must produce evidence sufficient to
support a finding that the item is what the proponent claims it is.” Fed. R.
Evid. 901(a). This requirement may be satisfied by, among other things,
testimony of a witness with knowledge. Fed. R. Evid. 901(b). Plaintiffs
satisfied that requirement here with an affidavit from Alison, swearing that
“the video contains a fair and accurate depiction of what transpired” during
the incident in question. (Dkt. No. 52, Attach. 24 ¶ 3.) The probative
value of the video offered will ultimately be an issue for the jury.
7

and citation omitted); see Jacques v. Sears, Roebuck & Co., 30 N.Y.2d
466, 473 (1972). A claim for false arrest or imprisonment brought pursuant
to § 1983 “rest[s] on the Fourth Amendment right of an individual to be free
from unreasonable seizures, including arrest without probable cause.”
Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996) (citation omitted). To
establish a false arrest claim under either federal or New York law, a
plaintiff must demonstrate that: “(1) the defendant intended to confine [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 privileged.” Singer v. Fulton Cnty. Sheriff, 63 F.3d 110, 118 (2d
Cir. 1995) (internal quotation marks and citations omitted).
“An arrest is justified, or otherwise privileged, if there was probable
cause to arrest.” Sulkowska v. City of N.Y., 129 F. Supp. 2d 274, 287
(S.D.N.Y. 2001) (citation omitted). In other words, “[t]he existence of
probable cause to arrest constitutes justification and is a complete defense
to an action for false arrest.” Weyant, 101 F.3d at 852 (internal quotation
marks and citation omitted). “Thus, a claim for false arrest must fail if
probable cause to arrest existed.” Martinetti v. Town of New Hartford
Police Dep’t, 112 F. Supp. 2d 251, 252 (N.D.N.Y. 2000) (citation omitted).
8

“Probable cause exists when an officer has knowledge or reasonably
trustworthy information sufficient to warrant a person of reasonable caution
in the belief that an offense has been committed by the person to be
arrested.” Savino v. City of N.Y., 331 F.3d 63, 76 (2d Cir. 2003) (internal
quotation marks and citation omitted). “Whether probable cause exists
depends upon the reasonable conclusion to be drawn from the facts known
to the arresting officer at the time of the arrest.” Devenpeck v. Alford, 543
U.S. 146, 152 (2004) (citation omitted). “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).
Like false arrest and imprisonment, the elements of malicious
prosecution under § 1983 and New York law are the same. See Cook v.
Sheldon, 41 F.3d 73, 79 (2d Cir. 1994). To prevail on a malicious
prosecution claim, a plaintiff must establish that: “(1) the defendant
commenced a criminal proceeding against him; (2) the proceeding ended
in the plaintiff’s favor; (3) the defendant did not have probable cause to
believe the plaintiff was guilty of the crime charged; and (4) the defendant
9

acted with actual malice.” Id. (citation omitted); see Rothstein v. Carriere,
373 F.3d 275, 282 (2d Cir. 2004).
As with false arrest, the existence of probable cause is a complete
defense to a malicious prosecution claim. See Savino, 331 F.3d at 72; see
also Lewis v. United States, 388 F. Supp. 2d 190, 195 (S.D.N.Y. 2005).
Probable cause to commence a criminal proceeding exists when a
defendant has “knowledge of facts, actual or apparent, strong enough to
justify a reasonable man in the belief that he has lawful grounds for
prosecuting the defendant in the manner complained of.” Rounseville v.
Zahl, 13 F.3d 625, 629 (2d Cir. 1994) (internal quotation marks and
citations omitted).
As the court explained in McClellan v. Smith, No. 1:02-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.
10

Here, defendants argue that they are entitled to summary judgment
on plaintiffs’ false imprisonment and malicious prosecution claims,
because, in denying plaintiffs’ motions to dismiss the criminal informations
charging them with disorderly conduct, Judge Kretser found that the
informations were facially sufficient, and therefore this determination
created a presumption that probable cause existed. (Dkt. No. 50, Attach. 2
at 12-17); see DiMascio v. City of Albany, No. 93-CV-0452, 1999 WL
244648, at *3 (N.D.N.Y. Apr. 21, 1999). As defendants point out, “a pretrial
determination of probable cause creates a presumption of probable cause”
that must be overcome by the plaintiff. DiMascio, 1999 WL 244648, at *3.
However, this presumption “‘applies only in causes of action for malicious
prosecution,’” and not in actions for false arrest or imprisonment. Savino,
331 F.3d at 75 (quoting Broughton v. State, 37 N.Y.2d 451, 456 (1975)).
Further, this presumption may be rebutted “by evidence establishing that
the police witnesses have not made a complete and full statement of
facts[,] that they have misrepresented or falsified evidence[,] or otherwise
acted in bad faith.” Boyd v. City of N.Y., 336 F.3d 72, 76 (2d Cir. 2003)
(internal quotation marks and citation omitted).
With regard to whether a presumption of probable cause applies to
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plaintiffs’ malicious prosecution claims, given the standard under which
Judge Kretser reviewed the criminal informations for facial sufficiency, her
denial of the motions to dismiss and finding that the informations were
facially sufficient, appears to be a determination that probable cause
existed. See N.Y. Crim. Proc. Law § 100.40(1) (“An information . . . is
sufficient on its face when . . . [t]he allegations . . . provide reasonable
cause to believe that the defendant committed the offense charged”).
However, even if a presumption of probable cause applied, the subsequent
acquittal of plaintiffs on the disorderly conduct charges indicates that the
facts ultimately adduced at trial did not sufficiently support a conviction on
the charges brought against plaintiffs. Therefore, as to plaintiffs’ claims,
given the disputes between the parties as to the nature of the events
leading to plaintiffs’ arrest and prosecution, there are genuine issues of fact
with respect to probable cause. In other words, the court cannot determine
as a matter of law, based on this record, whether there was in fact probable
cause, and therefore defendants’ motion for summary judgment on this
basis is denied.
B.

Excessive Force
Defendants argue that Alison’s excessive force claim should be
12

dismissed because she was lawfully arrested with probable cause and her
injuries were only minor in nature. 5 (Dkt. No. 50, Attach. 2 at 17-18.)
Plaintiffs counter that the record evidence demonstrates that summary
judgment on this claim is inappropriate. (Dkt. No. 52 at 16-18.) The court
agrees with plaintiffs.
“In order to establish that the use of force to effect an arrest was
unreasonable and therefore a violation of the Fourth Amendment, [a]
plaintiff [ ] must establish that the government interests at stake were
outweighed by the nature and quality of the intrusion on [the plaintiff’s]
Fourth Amendment interests.” Barlow v. Male Geneva Police Officer Who
Arrested Me on Jan. 2005, 434 F. App’x 22, 26 (2d Cir. 2011) (internal
quotation marks and citation omitted). “‘In other words, the factfinder must
determine whether, in light of the totality of the circumstances faced by the
arresting officer, the amount of force used was objectively reasonable at
the time.’” Id. (quoting Amnesty Am. v. Town of W. Hartford, 361 F.3d 113,
123 (2d Cir. 2004)).
5

The court notes that, although both plaintiffs have brought
excessive force claims, (Am. Compl. ¶¶ 18-20, 75-78), defendants have
only addressed Alison’s claim in their motion papers, and have not argued
that Brian’s excessive force claim should be dismissed, (Dkt. No. 50,
Attach. 2 at 17-18; Dkt. No. 55 at 6-7).
13

“[C]laims of excessive force arising in the context of an arrest under
the Fourth Amendment’s objective reasonableness test,” are analyzed
“paying ‘careful attention to the facts and circumstances of each particular
case, including the severity of the crime at issue, whether the suspect
poses an immediate threat to the safety of the officers or others, and
whether he is actively resisting arrest or attempting to evade arrest by
flight.’” Phelan v. Sullivan, 541 F. App’x 21, 24 (2d Cir. 2013) (quoting
Graham v. Connor, 490 U.S. 386, 396 (1989)). The entirety of the record
must be evaluated “‘from the perspective of a reasonable officer on the
scene, rather than with the 20/20 vision of hindsight.’” Jones v. Parmley,
465 F.3d 46, 61 (2d Cir. 2006) (quoting Graham, 490 U.S. at 396)); accord
Tracy v. Freshwater, 623 F.3d 90, 96 (2d Cir. 2010). Indeed, “‘[n]ot every
push or shove, even if it may later seem unnecessary in the peace of a
judge’s chambers, violates the Fourth Amendment.’” Tracy, 623 F.3d at 96
(quoting Graham, 490 U.S. at 397).
“[T]he Second Circuit and district courts in the Circuit recognize the
concept of de minimis injury and, when the injury resulting from alleged
excessive force falls into that category, the excessive force claim is
dismissed.” Jackson v. City of N.Y., 939 F. Supp. 2d 219, 231 (E.D.N.Y.
14

2013) (internal quotation marks and citation omitted). “‘[S]hort-term pain,
swelling, and bruising, brief numbness from tight handcuffing, claims of
minor discomfort from tight handcuffing, and two superficial scratches from
a cut inside the mouth’” have been held to be de minimis, and, thus
unactionable. Id. (quoting Lemmo v. McKoy, No. 08-CV4264, 2011 WL
843974, at *5 (E.D.N.Y. Mar. 8, 2011)).
The parties have provided conflicting accounts as to whether
defendants initiated the use of force, how much force was used by each,
whether any force used was necessary, and the extent of plaintiffs’ injuries.
For example, Alison testified that as she was complying with police
instructions and walking away from the scene, she was pushed in the back,
(Dkt. No. 50, Attach. 7 at 84-85), grabbed by the arm and tossed to the
ground, (id. at 87), and then had her head forcibly held against the hood of
a car, (id. at 89-90). She claimed that as a result of the use of force, she
suffered bruising on her arm, leg, and face which required her to miss
several days of work. (Id. at 36, 40.) Brian also testified that the
responding officers grabbed him by the neck, threw him against a car, and
hit him in the ribs with a closed fist. (Dkt. No. 50, Attach. 8 at 49-50.)
Defendants, on the other hand, testified that plaintiffs were refusing to
15

comply with police orders, (Dkt. No. 50, Attach. 9 at 32), were being
resistant and combative, (Dkt. No. 50, Attach. 10 at 32-34; Dkt. No. 50,
Attach. 11 at 18-20), and that only minimal force was used in order to
control plaintiffs and place them under arrest, (Dkt. No. 50, Attach. 11 at
24-25).
Resolution of these conflicting versions of the relevant events is a
matter for the jury and is not properly decided by a court on summary
judgment. Therefore, defendants’ motion for summary judgment on the
excessive force claims is denied.
C.

First Amendment
Defendants next argue that Alison’s First Amendment claims against

Donohue should be dismissed because she cannot demonstrate that any
adverse action was taken because of her exercising her First Amendment
rights, and that she has not established that her First Amendment rights
were chilled by Donohue’s conduct. (Dkt. No. 50, Attach. 2 at 18-20.)
To maintain a claim for First Amendment retaliation, a plaintiff must
prove: “(1) [s]he has an interest protected by the First Amendment; (2)
defendants’ actions were motivated or substantially caused by [her]
exercise of that right; and (3) defendants’ actions effectively chilled the
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exercise of [her] First Amendment right.” Kuck v. Danaher, 600 F.3d 159,
168 (2d Cir. 2010) (internal quotation marks and citation omitted). Plaintiffs
who allege a violation of their right to free speech must prove that official
conduct actually deprived them of that right. See Colombo v. O’Connell,
310 F.3d 115, 117 (2d Cir. 2002). To prove this deprivation, a plaintiff must
come forward with evidence showing either that (1) defendants silenced
her or (2) “defendant[s’] actions had some actual, non-speculative chilling
effect” on her speech. Id.; see Spear v. Town of W. Hartford, 954 F.2d 63,
68 (2d Cir. 1992). “Where a party can show no change in [her] behavior,
[s]he has quite plainly shown no chilling of [her] First Amendment right to
free speech.” Curley v. Vill. of Suffern, 268 F.3d 65, 73 (2d Cir. 2001).
Here, even assuming that Alison’s speech was protected First
Amendment activity and that Donohue acted against her because of that
activity, she has not produced any evidence showing that Donohue’s
actions chilled her speech or otherwise prevented her from speaking. Her
testimony does not establish that she stopped advocating for her husband
because of her arrest. Donohue’s testimony indicates that Alison
continued yelling and screaming even after he asked her to put her hands
behind her back and began to place her under arrest. (Dkt. No. 50, Attach.
17

11 at 22.) In fact, Alison’s own testimony indicates that she continued
having conversations with defendants after her arrest at the police station.
(Dkt. No. 50, Attach. 7 at 92-96.) Her conclusory and unsupported
assertions in response to defendants’ motion, that her speech was chilled,
are insufficient to support her First Amendment claim, and it is therefore
dismissed.
D.

Qualified Immunity
Defendants further argue that the individual defendants are entitled to

qualified immunity. (Dkt. No. 50, Attach. 2 at 25-27.) Plaintiffs argue that
the outstanding questions of fact render qualified immunity inappropriate in
this case. (Dkt. No. 52 at 23-25.) The court agrees with plaintiffs.
“A government official is entitled to qualified immunity for his actions
unless his conduct violates a clearly established constitutional or statutory
right of which a reasonable person would have known.” Rivers v. Fischer,
390 F. App’x 22, 23 (2d Cir. 2010). “A right is clearly established if (1) the
law is defined with reasonable clarity, (2) the Supreme Court or the Second
Circuit has recognized the right, and (3) ‘a reasonable defendant [would]
have understood from the existing law that [his] conduct was unlawful.’”
Anderson v. Recore, 317 F.3d 194, 197 (2d Cir. 2003) (quoting Young v.
18

Cnty. of Fulton, 160 F.3d 899, 903 (2d Cir. 1998)).
In the present case, the legal principles governing defendants’
conduct, discussed above, were well established. However, the matter of
whether it was reasonable for the officers to believe their actions met the
standards set by those principles depends on whether one believes their
version of the facts. That version is sharply disputed, and the matter of the
officers’ qualified immunity therefore cannot be resolved as a matter of law.
See Weyant, 101 F.3d at 857-58.
E.

Municipal Liability
With respect to plaintiffs’ claim against the City of Albany alleging

municipal liability for constitutional violations, defendants argue that
dismissal is warranted because plaintiffs have not put forth sufficient
evidence to establish a custom, policy, or practice by the city which caused
the alleged violations. (Dkt. No. 50, Attach. 2 at 23-25.) The court agrees.
A municipality may be liable for the constitutional violations of its
employees provided that any such violations occurred pursuant to an
official policy or custom. See Mayo v. Cnty. of Albany, No. 07-cv-823,
2009 WL 935804, at *2 (N.D.N.Y. Apr. 3, 2009); see also Monell v. Dep’t of
Soc. Servs. of N.Y., 436 U.S. 658, 692 (1978). A successful claim of
19

municipal liability under section 1983, therefore, requires the plaintiff “‘to
plead and prove three elements: (1) an official policy or custom that (2)
causes the plaintiff to be subjected to (3) a denial of a constitutional right.’”
Zherka v. City of N.Y., 459 F. App’x 10, 12 (2d Cir. 2012) (quoting Wray v.
City of N.Y., 490 F.3d 189, 195 (2d Cir. 2007)). Although this rule “does
not mean that the plaintiff must show that the municipality had an explicitly
stated rule or regulation, a single incident alleged in a complaint, especially
if it involved only actors below the policy-making level, does not suffice to
show a municipal policy.” Ricciuti v. N.Y.C. Transit Auth., 941 F.2d 119,
123 (2d Cir. 1991) (citations omitted).
Here, in response to defendants’ argument that plaintiffs have not
and cannot establish a municipal custom, usage, or policy of the City of
Albany, (Dkt. No. 50, Attach. 2 at 23-25), plaintiffs have simply pointed to
two isolated incidents involving Officers Pierce and Meehan in arguing that
the City has failed to address prior instances of constitutional violations,
such that a municipal policy was established, (Dkt. No. 52 at 20-23).
However, the evidence with respect to Meehan consists solely of
allegations from a prior civil rights lawsuit in which Meehan was named as
a defendant, which did not result in any finding of liability as against him.
20

See Moore v. Meehan, No. 1:08-CV-0357, 2010 WL 841007 (N.D.N.Y.
Mar. 11, 2010). Therefore, the remaining incident of prior alleged
misconduct by Pierce is insufficient, by itself, to establish a municipal policy
or a repeated failure to address alleged violations. See Ricciuti, 941 F.2d
at 123; DeCarlo v. Fry, 141 F.3d 56, 61-62 (2d Cir. 1998). Accordingly,
defendants’ motion is granted with respect to the City of Albany, and
plaintiffs’ claims against the City of Albany are dismissed.
V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that the Clerk terminate the John Doe defendants as
parties to this action and add the City of Albany Corporation Counsel to the
docket as a representative of Bailey; and it is further
ORDERED that defendants’ motion for summary judgment (Dkt. No.
50) is GRANTED IN PART and DENIED IN PART as follows:
ORDERED that plaintiffs’ claims for malicious abuse of process
and conspiracy to violate civil rights (Am. Compl. ¶¶ 92-96, 97-98) are
DISMISSED; and it is further
ORDERED that Alison Groski’s First Amendment claims (Am.
Compl. ¶¶ 79-91) are DISMISSED; and it is further
21

ORDERED that plaintiffs’ claims against the City of Albany are
DISMISSED and the City of Albany is terminated as a defendant in this
case; and it is further
ORDERED that defendants’ motion for summary judgment is
otherwise DENIED; and it is further
ORDERED that the case is trial ready and the Clerk shall issue a trial
scheduling order in due course; and it is further
ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties.
IT IS SO ORDERED.
June 5, 2014
Albany, New York

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