Murphy v. Gibbons et al

Filing 22

MEMORANDUM-DECISION and ORDER - That defendants' 12 motion to dismiss is GRANTED IN PART and DENIED IN PART as follows: GRANTED with respect to Murphy's entire second and seventh causes of action, and his claims related to the retention of his property and malicious prosecution, and those causes of actions/claims are DISMISSED and DENIED in all other respects. That the parties shall contact Magistrate Judge Randolph F. Treece to schedule further proceedings in accordance with this Memorandum-Decision and Order. Signed by Chief Judge Gary L. Sharpe on 9/29/2014. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
VERNON MURPHY,
1:13-cv-1433
(GLS/RFT)

Plaintiff,
v.
THOMAS GIBBONS et al.,

Defendants.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Office of Vincent U. Uba
750 Broadway
Albany, NY 12207

VINCENT U. UBA, ESQ.

FOR THE DEFENDANTS:
HON. JOHN JOSEPH REILLY
City of Albany Corporation Counsel
City Hall, 24 Eagle Street
Albany, NY 12207

JOHN JOSEPH REILLY
Corporation Counsel
ERIC P. SUGAR
Assistant Corporation Counsel

MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff Vernon Murphy commenced this action against defendants
Thomas Gibbons, City of Albany Police Sergeant, Brian Mascaro, City of
Albany Police Officer, and unnamed John Does pursuant to 42 U.S.C.
§ 1983, alleging a host of violations of federal and state law. (Compl., Dkt.

No. 1.)1 Pending is defendants’ motion for judgment on the pleadings.
(Dkt. No. 12.) For the reasons that follow, the motion is granted in part and
denied in part.
II. Background
A.

Facts2
On November 19, 2012, Murphy provided Scott Juarez, his

neighbor’s boyfriend, a ride to a house where Juarez had been working so
that he could retrieve “some items.” (Compl. ¶¶ 1-2.) Murphy took Juarez
to the work site, located on Lark Street in the City of Albany; at no point did
Murphy enter the residence, but he approached the back gate and
“hollered” for Juarez to “hurry up.” (Id. ¶¶ 3-5.) About ten minutes after
Murphy and Juarez left the Lark Street house, they were “apprehended” by
City of Albany police officers while driving; the two were thereafter taken to
the police station. (Id. ¶ 6.)
Murphy was handcuffed, and returned to the area where he had

1

Notably, Murphy’s complaint, which is devoid of any pagination and includes
separately numbered paragraphs only for the first thirty-one allegations, is peculiar in form and
non-compliant with both the Local Rules of Practice and the Federal Rules of Civil Procedure.
See Fed. R. Civ. P. 10(b); N.D.N.Y. L.R. 10.1. Counsel should be more cautious when drafting
pleadings in future litigation.
2

The facts are drawn from Murphy’s complaint and presented in the light most
favorable to him.

2

originally taken Juarez so that he could be identified “by the neighbors.”
(Id. ¶ 7.) Upon his return to the police station, officers asked Murphy to
sign a document, to which he responded that “he would need to contact his
lawyer before signing anything.” (Id. ¶ 8.) Police permitted Murphy to call
his attorney, Vincent Uba, who also represents Murphy here, 3 and, after the
call, Gibbons told Murphy that he was “‘free to go [because] we don’t have
evidence of any wrongdoing on your part.’” (Id. ¶¶ 9-10.) Uba met Murphy
outside of the police station where the two discussed the fact that Murphy
could not afford to pay the impound fee for the return of his vehicle; Uba
thereafter unsuccessfully requested that Gibbons waive the impound fee.
(Id. ¶¶ 11-13.)
Later the same day, after he scrounged up the money needed for
release of his impounded vehicle and he retrieved the same, Murphy
realized that the police still had his driver’s license and vehicle registration,
which prompted his return to the police station to request the return of

3

It is noteworthy that, as alleged in the complaint, Uba was intimately involved with the
underlying facts of this case. (See, e.g., Compl. ¶¶ 9-13.) The court notes that in this District,
the New York Rules of Professional Conduct govern the conduct of attorneys, see N.D.N.Y.
L.R. 83.4(j), and, aside from a handful of exceptions, New York’s ethical rules generally
prohibit an attorney from acting “as advocate before a tribunal in a matter in which the lawyer is
likely to be a witness on a significant issue of fact.” N.Y. Rules of Professional Conduct rule
3.7, 22 N.Y.C.R.R. § 1200.0.

3

those items. (Id. ¶ 14.) Upon his return to the station, Murphy was told by
Gibbons: “‘Your lawyer just left here, and he pissed me off, now I am going
to arrest you, turn around and put your hands behind your back.’” ( Id.
¶ 15.) Gibbons ordered Officer Mascaro to handcuff Murphy, and did not
contact Uba to inform him of the arrest despite Gibbons’ knowledge that
Murphy had retained Uba by virtue of their interaction earlier in the day.
(Id. ¶¶ 15-16) Murphy’s several requests to call or contact Uba were
refused by officers. (Id. ¶¶ 17-18, 23.) Murphy was also denied access to
his counsel at arraignment and a bail hearing, where, instead of retained
counsel, he was provided only with “assigned counsel from the Conflict
Defender’s Office”; defendants also ordered Murphy to be silent during
those proceedings. (Id. ¶¶ 19-20, 28-29.) During his detention at the
Albany County Jail, Murphy was denied his medication and told by an
unidentified Doe defendant to “‘pray to [his] God, Allah to give [him his]
medicine.’” (Id. ¶¶ 25-26.) On July 31, 2013, all of the charges against
Murphy were dismissed. (Id. ¶ 31.)
B.

Procedural History
Murphy filed this suit on November 18, 2013. (See generally id.)

Murphy’s complaint purports to set forth eight causes of action. ( Id. at 7-9.)
4

As best as the court can discern, Murphy alleges the following claims, all
under the banner of 42 U.S.C. § 1983: (1) denial of the right to counsel in
violation of the Sixth and Fourteenth Amendments; (2) denial of the
indelible right to counsel in violation of the New York State Constitution; (3)
denial of the right to be free from unreasonable search and seizure in
violation of the Fourth and Fourteenth Amendments and/or the laws of New
York in relation to his arrest and detention; (4) denial of the right to be free
from unreasonable search and seizure in violation of the Fourth and
Fourteenth Amendments and/or New York law in relation to the seizure and
retention of his vehicle, driver’s license, and vehicle registration “without
due process and without probable cause”; (5) a violation of the Fourth and
Fourteenth Amendments and/or New York law in relation to his
confinement and detention; (6) a violation of the Fourth and Fourteenth
Amendments and/or New York law for “maliciously instituting criminal
proceedings”; (7) denial of the right to free exercise of religion in violation of
the First and Fourteenth Amendments and/or New York law; and (8) a
violation of the Fourth and Fourteenth Amendments and/or New York law
in relation to “an overly suggestive show-up identification.” (Id.) Murphy
has not pleaded any separate causes of action rooted in state law.
5

Following joinder of issue, (Dkt. No. 10), but at some time prior to the
conclusion of discovery, defendants moved to dismiss Murphy’s pleading,
relying on certain evidence outside of the pleadings, (Dkt. No. 12).
III. Standard of Review
“The standard for addressing a Rule 12(c) motion for judgment on the
pleadings is the same as that for a Rule 12(b)(6) motion to dismiss for
failure to state a claim.” Wright v. Monroe Cmty. Hosp., 493 F. App’x 233,
234 (2d Cir. 2012) (internal quotation marks and citation omitted). For a full
discussion of that standard, the court refers the parties to its prior decision
in Ellis v. Cohen & Slamowitz, LLP, 701 F. Supp. 2d 215, 218 (N.D.N.Y.
2010).
IV. Discussion
As an initial matter, the court notes that defendants’ arguments rely
upon the notion that the court may go beyond the pleadings in deciding
their motion and consider a host of documents from the underlying criminal
investigation and prosecution, (Dkt. No. 12, Attach. 10 at 4; Dkt. No. 12,
Attachs. 5-9)—a perception that is largely unchallenged by Murphy, who
similarly relies upon some of the same documents, and others addressed
below. Defendants correctly contend that the court may look to matters of
6

public record when considering a motion for judgment on the pleadings.
(Dkt. No. 12, Attach. 10 at 4); see Byrd v. City of N.Y., No. 04-1396-CV,
2005 WL 1349876, at *1 (2d Cir. June 8, 2005) (citing Blue Tree Hotels Inv.
(Can.), Ltd. v. Starwood Hotels & Resorts Worldwide, Inc., 369 F.3d 212,
217 (2d Cir. 2004)); Pacherille v. Burns, No. 3:13-cv-789, 2014 WL
3040420, at *1 n.3 (N.D.N.Y. July 3, 2014). “A court may take judicial
notice of a document filed in another court ‘not for the truth of the matters
asserted in the other litigation, but rather to establish the fact of such
litigation and related filings.’” Liberty Mut. Ins. Co. v. Rotches Pork
Packers, Inc., 969 F.2d 1384, 1388 (2d Cir. 1992) (quoting Kramer v. Time
Warner Inc., 937 F.2d 767, 774 (2d Cir. 1991)). Similarly, decisions of
other courts may be judicially noticed. See Pacherille, 2014 WL 3040420,
at *1 n.3. In accordance with the foregoing, the court takes judicial notice
of the following: the order of Albany County Court entered April 9, 2013,
(Dkt. No. 12, Attach. 5), the transcript of Murphy’s plea hearing, (id., Attach.
6), the order of County Court entered July 31, 2013, (id., Attach. 7), the
accusatory instruments, 4 (id., Attach. 8 at 2, 4), and the notice of
4

The court acknowledges Murphy’s allegations that one of the supporting affidavits was
“fabricated” and that none of the supporting declarations were attached as the accusatory
instruments indicated on their faces, (Dkt. No. 19, Attach. 10 at 14, 19.) While the felony
complaint plainly indicates that the sources of information and grounds for the complainant’s

7

appearance and request for the return of Murphy’s driver’s license and
vehicle registration dated November 29, 2012, (id., Attach. 9).
The following documents submitted in response by Murphy, who
appears to have a fundamental misunderstanding of what may be
considered by the court when adjudicating a motion to dismiss under Rule
12(c), are not considered: Uba’s declaration, which is rife with improper
testimony, (Dkt. No. 19), and certain telephone records, (id., Attach. 2).
These documents are clearly not public records such that the court may
take judicial notice of them. Finally, while the court could convert the
instant motion to one seeking summary judgment and consider the
evidence submitted outside of the pleadings and not otherwise falling into
the realm of judicial notice, see Fed. R. Civ. P. 12(d), it declines to do so
given the nascent nature of this action. See Toliver v. City of N.Y., No. 10
Civ. 3165, 2012 WL 7782720, at *4-5 (S.D.N.Y. Dec. 10, 2012).
With this issue settled, the court turns to the complaint. As detailed
above, Murphy separately alleges eight causes of action. Before passing

beliefs are “[a]ttached [s]upporting [d]epositions,” (Dkt. No. 12, Attach. 8 at 2), the court may
not take judicial notice of disputed matters, particularly where, as here, the issue of probable
cause is critical to a handful of Murphy’s claims. See Pina v. Henderson, 752 F.2d 47, 50 (2d
Cir. 1985). For these reasons, the court does not notice the supporting depositions heavily
relied upon by defendants in their arguments that probable cause existed. (Dkt. No. 12,
Attach. 10 at 5-8.)

8

on Murphy’s complaint and defendants’ arguments in support of dismissal,
Murphy’s reliance on violations of New York law in support of his claims, all
of which are brought pursuant to § 1983, are ignored. Indeed, § 1983
provides liability “only for the deprivation of ‘rights, privileges, or immunities
secured by the Constitution and laws’ of the United States.” Gonzaga
Univ. v. Doe, 536 U.S. 273, 283 (2002) (emphasis added) (quoting 42
U.S.C. § 1983). Murphy’s claims are addressed, in turn, below.
A.

First Claim—Denial of Right to Counsel
Defendants seek dismissal of Murphy’s first cause of action because,

as Murphy alleges, he was represented by counsel at every stage of the
criminal proceedings, 5 and his complaint fails to meet the basic pleading
standard. (Dkt. No. 12, Attach. 10 at 14-15.) As pleaded, Murphy claims
violations of the Sixth and Fourteenth Amendments when defendants
“willfully and deliberately den[ied him] access to his retained counsel in a
felony criminal proceeding.” (Compl. at 7.) The allegations in the
complaint indicate that Murphy takes issue with the fact that he was denied
representation by his chosen attorney at the outset of his prosecution. ( Id.
5

Defendants also confusingly assert, without any explanation as to why it is important
or relevant in this case, that the right to counsel “does not apply in civil cases.” (Dkt. No. 12,
Attach. 10 at 14.) It is clear here that the underlying case was criminal in nature and that
Murphy was constitutionally entitled to counsel.

9

¶¶ 16-19.)
The constitutional right to counsel encompasses the right of the
accused to be represented by counsel of his own choice free from state
interference—in particular without the prosecutor or police “‘act[ing] in a
manner that circumvents and thereby dilutes the protection afforded by the
right to counsel.’” See United States v. Stein, 541 F.3d 130, 154 (2d Cir.
2008) (quoting Maine v. Moulton, 474 U.S. 159, 171 (1985)). Despite the
fact that the right to counsel does not attach until “‘at or after the time that
adversary judicial proceedings have been initiated against [the accused],’”
Neighbour v. Covert, 68 F.3d 1508, 1511 (2d Cir. 1995) (quoting Kirby v.
Illinois, 406 U.S. 682, 688 (1972)), and that “the right to counsel of one’s
choice is not absolute,” Greene v. Brown, No. 06 Civ. 5532, 2007 WL
1589449, at *15 (E.D.N.Y. June 4, 2007), Murphy’s factual allegations
minimally support a claim that the named defendants acted with unnamed
defendants to deny or interfere with Murphy’s right to retained counsel of
his choice. While certainly not a model of clarity, the complaint asserts that
“defendants” colluded with employees of Albany County Jail to deny
Murphy the ability to contact Uba, his lawyer, through denied requests to
contact Uba and orders that Murphy was “not to speak in front of the court.”
10

(Compl. ¶¶ 16-24.) Collectively, these allegations plausibly support the
claim that Murphy was denied the right to counsel of his choice for some
early portion of his criminal case until Uba filed a notice of appearance in
late November.6 (Dkt. No. 12, Attach. 9 at 2.)
Defendants’ arguments that the complaint fails to state a claim of
§ 1983 conspiracy is inapposite. (Dkt. No. 12, Attach. 10 at 13-14.) At this
juncture, it is unclear whether any of the Doe defendants are private— i.e.,
non-state—actors such that Murphy’s complaint must be measured against
the elements of a private actor/state actor § 1983 conspiracy as urged by
defendants. See, e.g., Ciambriello v. Cnty. of Nassau, 292 F.3d 307, 32425 (2d Cir. 2002). Accordingly, defendants’ motion to dismiss Murphy’s
first cause of action is denied.
B.

Second Claim—Denial of Indelible Right to Counsel
Even though not specifically addressed by defendants, 7 consistent

6

It is apparent from both the complaint, (Compl. ¶ 31), and public documents of which
the court takes judicial notice, (Dkt. No. 12, Attachs. 5, 6, 7, 9), that Uba appeared as Murphy’s
counsel at some point in the criminal case.
7

In fairness, defendants generically argue that, to the extent that the court reads the
complaint to allege state law claims, they are subject to dismissal for failure to comply with the
notice of claim requirements engrafted in New York General Municipal Law §§ 50-e and 50-i.
(Dkt. No. 12, Attach. 10 at 17-18.) As explained above, the attorney-drafted complaint, which
clearly identified § 1983 as the basis for all claims asserted, does not assert any state law
claims; instead, it erroneously and, in some instances, fatally pleads violations of state law in
support of a § 1983 claim.

11

with the notion that Murphy’s reliance on violation of New York law to
support his § 1983 claims is bogus, his second cause of action, alleging
only a violation of the New York Constitution’s guarantee to the indelible
right to counsel, see N.Y. Const. art. I, § 6, must be dismissed.
C.

Third Claim—False Arrest
Defendants contend that Murphy’s false arrest claim should be

dismissed because the arrest was supported by probable cause. (Dkt. No.
12, Attach. 10 at 5-8.) The court disagrees that dismissal is required.
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 federal 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). “‘The existence of probable cause
to arrest constitutes justification and is a complete defense to an action for
12

false arrest, whether that action is brought under state law or under
§ 1983.’” Gonzalez v. City of Schenectady, 728 F.3d 149, 155 (2d Cir.
2013) (quoting Weyant, 101 F.3d at 852).
“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). More particularly, when confronted with a motion to
dismiss under Rule 12(c), a court may find probable cause based upon the
pleadings and other matters of which the court may take judicial notice.
See Silver v. Kuehbeck, 217 F. App’x 18, 22 (2d Cir. 2007); EVO Merch.
Servs., LLC v. Fire USA Inc., No. CV 12-6152, 2014 WL 3950653, at *1
13

(E.D.N.Y. Aug. 11, 2014). Indeed, the fact that a grand jury has returned
an indictment provides a presumption of probable cause that may be
rebutted “only . . . by evidence that the indictment was procured by ‘fraud,
perjury, the suppression of evidence or other police conduct undertaken in
bad faith.’” Savino, 331 F.3d at 72 (quoting Colon v. City of N.Y., 60
N.Y.2d 78, 83 (1983)).
Here, the complaint alleges sufficient facts to support a claim of false
arrest. (Compl. ¶¶ 10, 15.) Turning to the question of whether the
confinement was privileged, which would eviscerate the claim, it is clear
from documents of which the court has taken judicial notice, and Murphy’s
concession, that an indictment was handed up by a grand jury. (Dkt. No.
12, Attach. 5 at 1; Dkt. No. 19, Attach. 10 at 19.) The fact of indictment
gives rise to a presumption of probable cause. See Savino, 331 F.3d at
72. However, Murphy’s allegation that defendants arrested him in bad faith
out of agitation that Uba visited the police station, (Compl. ¶ 15), requires
that this branch of defendants’ motion to dismiss be denied at this early
stage of the litigation.
A few other comments are warranted in light of defendants’
arguments that probable cause existed because of eyewitness
14

identification implicating Murphy as one of the assailants in the charged
crimes, information obtained from the owner of the building from which
copper pipes were taken, and Murphy’s guilty plea. (Dkt. No. 12, Attach.
10 at 6-8; Dkt. No. 20 at 4.). As for the witness identification, as mentioned
above, the court does not take judicial notice of the exhibits that would
support this argument. See supra note 4. Murphy’s guilty plea, which is
judicially noticed, (Dkt. No. 12, Attach. 6), was subsequently vacated, (Dkt.
No. 12, Attach. 7). Under these circumstances, the court will not rely upon
Murphy’s subsequently vacated guilty plea for the establishment of
probable cause.
D.

Fourth Claim—Unlawful Seizure and Retention of Property
Defendants, who construe Murphy’s fourth cause of action as

implicating due process rights, next contend that, because Murphy had
certain state remedies, his claim regarding the return of his property must
be dismissed. (Dkt. No. 12, Attach. 10 at 10.) Murphy counters that his
unlawful arrest demonstrates an unlawful search and seizure, and that,
with respect to the retention of his personal property, the state court
remedies are not the exclusive means of redress. (Dkt. No. 19, Attach. 10
at 15-16.) The court agrees with defendants that Murphy’s claim regarding
15

the illegal retention of his property must be dismissed.
The Due Process Clause of the Fourteenth Amendment “requires
that once a criminal proceeding is terminated or it has been found that
seized property is not related to or needed for those proceedings, the
property must be returned to its owner, unless the government can
establish an alternative basis for holding the property.” Escobar v. City of
N.Y., No. 05-cv-3030, 2008 WL 5157011, at *4 (E.D.N.Y. Dec. 8, 2008)
(citing McClendon v. Rosetti, 460 F.2d 111, 116 (2d Cir. 1972)); see
Herbert v. City of N.Y., No. 12-CV-1096, 2012 WL 3779230, at *1-2
(E.D.N.Y. Aug. 30, 2012). It is also true that a claimant seeking the return
of property seized in connection with a New York prosecution may seek
return of the property by way of a N.Y. C.P.L.R. art. 78 proceeding. See In
re Lipscomb v. Prop. Clerk of City of Newburgh Police Dep’t, 188 A.D.2d
993, 993-94 (3d Dep’t 1992). Where an adequate post-deprivation remedy
exists in state court, no due process claim lies. See Parratt v. Taylor, 451
U.S. 527, 543-44 (1981), overruled on other grounds by Daniels v.
Williams, 474 U.S. 327 (1986).
Here, even though the complaint plainly alleges that Murphy’s
property was not returned despite the termination of the criminal case and
16

his verbal and written demands for return, (Compl. ¶¶ 30, 31), the
availability of an adequate post-deprivation remedy, see N.Y. C.P.L.R. art.
78; Grullon v. Reid, No. 97 CIV. 7616, 1999 WL 436457, at *10 (S.D.N.Y.
June 24, 1999), aff’d sub nom. Grullon v. United States, 22 F. App’x 70 (2d
Cir. 2001), requires dismissal of Murphy’s due process claim.
E.

Fifth Claim—False Imprisonment
The same framework and result as recited above with respect to false

arrest applies to Murphy’s claim of false imprisonment. See supra Part
IV.C. Accordingly, defendants’ motion to dismiss this claim is denied.
F.

Sixth Claim—Malicious Prosecution and Abuse of Process
As to Murphy’s sixth claim, defendants argue that dismissal is

required as to a malicious prosecution claim because the indictment
handed up by a grand jury created a presumption of probable cause that
Murphy cannot rebut, and the proceeding, which was disposed of by
dismissal of the indictment in the interests of justice, was not terminated in
his favor. (Dkt. No. 12, Attach. 10 at 8-10.) No claim for abuse of process
lies because, according to defendants, Murphy’s prosecution was
supported by probable cause, which serves as an excuse or justification to
the claim, and no collateral objectives—an essential element—have been
17

pleaded. (Id. at 11-13.) The court agrees that dismissal is appropriate as
to Murphy’s claim of malicious prosecution, but disagrees as to abuse of
process.
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 acted with actual malice.” Cook v. Sheldon, 41 F.3d 73,
79 (2d Cir. 1994) (citation omitted); see Rothstein v. Carriere, 373 F.3d
275, 282 (2d Cir. 2004). “In New York, a malicious abuse of process claim
lies against a defendant who (1) employs regularly issued legal process to
compel performance or forbearance of some act (2) with intent to do harm
without excuse or justification, and (3) in order to obtain a collateral
objective that is outside the legitimate ends of the process.” Cook, 41 F.3d
at 80.
Here, the indictment was dismissed in Murphy’s criminal case “in the
interest of justice” pursuant to N.Y. C.P.L. § 170.40. (Dkt. No. 12, Attach.
7.) Because it is beyond dispute that such dismissals “‘cannot provide the
favorable termination required as the basis for a claim of malicious
18

prosecution,’” Lynch v. Suffolk Cnty. Police Dep’t, Inc., 348 F. App’x 672,
674 (2d Cir. 2009) (quoting Hygh v. Jacobs, 961 F.2d 359, 368 (2d Cir.
1992)), Murphy’s malicious prosecution claim must be dismissed. His
abuse of process claim, however, is another matter. For the same reasons
explained above, probable cause, which would serve as a justification to
this claim, is not apparent on the record now before the court. See supra
Part IV.C. As for the “collateral objective” element, the complaint alleges
that defendants arrested Murphy because Gibbons was “pissed” about Uba
visiting the police station. (Compl. ¶ 15.) The pleading also asserts that
defendants had a “goal of unjustly punishing” Murphy. (Id. ¶ 21.) These
allegations, taken together, plausibly suggest that defendants used legal
process—causing Murphy to be arraigned on charges, (id. ¶ 19)—for the
purpose of retribution, which meets the pleading requirement for the
collateral objective prong. See Cook, 41 F.3d at 80; Savino, 331 F.3d at
77-78. Thus, Murphy’s abuse of process claim survives.
G.

Seventh Claim—Free Exercise of Religion
Defendants seek dismissal of Murphy’s seventh claim because he

has failed to allege the necessary elements and the claim is not directed at
any named defendant. (Dkt. No. 12, Attach. 10 at 15-16.) The court
19

agrees.
A plaintiff alleging a violation of his right to free exercise “must allege
that (i) he has an interest protected by the First Amendment; (ii) the
defendant’s actions were motivated by or substantially caused by the
plaintiff’s exercise of that right; and (iii) the defendant’s action effectively
chilled the exercise of the plaintiff’s First Amendment rights.” Connell v.
Signoracci, 153 F.3d 74, 79 (2d Cir. 1998) (citations omitted). Here,
Murphy alleges in his complaint that a Doe defendant at the County Jail
denied him blood pressure medication, stating: “‘I am not going to give you
your medicine, pray to your God , [sic] Allah to give you your medicine.’”
(Compl. ¶ 26.) There is absolutely no indication that Murphy practices any
religion or was otherwise engaged in religious activity. Murphy’s post hoc
contention that “[i]t can be reasonably inferred that defendant knew [he] is
of the Muslim faith, perhaps by noticing [him] carrying out his religious
activities,” (Dkt. No. 19, Attach. 10 at 21), is not sufficient to save his claim.
The pleading fails to allege that Murphy had any protected interest. For
this simple reason, the claim must be dismissed.
H.

Eighth Claim—Unduly Suggestive Showup Identification
Murphy’s last claim, for which defendants make no specific argument
20

in support of dismissal, alleges that his Fourth and Fourteenth Amendment
rights were violated when defendants “deliberately conduct[ed] an overly
suggestive show-up identification . . . , thereby incriminating [him] in an
alleged crime which [he] was innocent of.” (Compl. at 9.) While the court
has serious doubts about the viability of such a claim given the pleaded
facts, in the absence of any arguments from defendants as to why this
claim is infirm, and considering that, under certain circumstances, a plaintiff
may have a § 1983 claim related to an improper showup, see, e.g., Wray v.
City of N.Y., 490 F.3d 189, 192-93 (2d Cir. 2007), Murphy’s eighth cause of
action is not dismissed at this juncture.
I.

Qualified Immunity
Defendants argue that they are entitled to qualified immunity under

the “arguable probable cause” standard. (Dkt. No. 12, Attach. 10 at 16-17.)
As the court has discussed above, however, probable cause has not been
established, and, for the same reasons it is not apparent on the record
properly before the court, arguable probable cause is not shown either.
This argument is therefore rejected at this juncture.
V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
21

ORDERED that defendants’ motion to dismiss (Dkt. No. 12) is
GRANTED IN PART and DENIED IN PART as follows:
GRANTED with respect to Murphy’s entire second and seventh
causes of action, and his claims related to the retention of his
property and malicious prosecution, and those causes of
actions/claims are DISMISSED; and
DENIED in all other respects; and it is further
ORDERED that the parties shall contact Magistrate Judge Randolph
F. Treece to schedule further proceedings in accordance with this
Memorandum-Decision and Order; and it is further
ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties.
IT IS SO ORDERED.
September 29, 2014
Albany, New York

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