Lanning v. The City of Glens Falls et al
MEMORANDUM-DECISION AND ORDER granting 43 Motion to Dismiss; granting 50 Motion to Dismiss for Failure to State a Claim: The Court hereby ORDERS that Defendants' motions for judgment on the pleadings are GRANTED; and the Court further ORDE RS that the Clerk of the Court shall enter judgment in Defendants' favor and close this case; and the Court further ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision and Order on the parties in accordance with the Local Rules. Signed by U.S. District Judge Mae A. D'Agostino on 3/8/2017. (ban)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
DAVID LANNING, JR.,
THE CITY OF GLENS FALLS, THE GLENS
FALLS POLICE DEPARTMENT, THE COUNTY
OF WARREN, THE WARREN COUNTY
SHERIFF'S DEPARTMENT, THE WARREN
COUNTY DISTRICT ATTORNEY'S OFFICE,
RYAN ASHE, in his official and individual
capacities, and KEVIN CONINE, JR., in his
official and individual capacities,
LAW OFFICE OF JAMES E. GROSS
90 State Street, Suite 700
Albany, New York 12207
Attorneys for Plaintiff
JAMES E. GROSS, ESQ.
MARGARET C. VIJAYAN, ESQ.
CARTER, CONBOY, CASE, BLACKMORE,
MALONEY & LAIRD, P.C.
20 Corporate Woods Boulevard
Albany, New York 12211
Attorneys for Defendants the City of Glens Falls,
the Glens Falls Police Department, and
JAMES A. RESILA, ESQ.
WILLIAM C. FIRTH, ESQ.
LEMIRE, JOHNSON & HIGGINS, LLC
P.O. Box 2485
2534 Route 9
Malta, New York 12020
Attorneys for Defendants the County of Warren,
the Warren County Sheriff's Department,
the Warren County District Attorney's Office,
and Kevin Conine, Jr.
BRADLEY J. STEVENS, ESQ.
GREGG T. JOHNSON, ESQ.
Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
On February 4, 2016, Plaintiff commenced this action pursuant to 42 U.S.C. § 1983
against the City of Glens Falls, the Glens Falls Police Department, and Ryan Ashe (collectively,
the "City Defendants"), and the County of Warren, the Warren County Sheriff's Department, the
Warren County District Attorney's Office, and Kevin Conine, Jr. (collectively, the "County
Defendants"), alleging malicious prosecution in violation of the Fourth Amendment and denial of
the right to equal protection in violation of the Fourteenth Amendment.
Currently before the Court are Defendants' motions for judgment on the pleadings
pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. See Dkt. No. 43-7; Dkt. No. 50-3.
On September 1, 2016, Plaintiff filed a memorandum of law in opposition to the County
Defendants' motion. See Dkt. No. 47. On September 9, 2016, the County Defendants filed a
reply memorandum of law in further support of their motion. See Dkt. No. 49. On October 17,
2016, Plaintiff filed a memorandum of law in opposition to the City Defendants' motion. See Dkt.
No. 54. On November 1, 2016, the City Defendants filed a reply memorandum of law in further
support of their motion. See Dkt. No. 57-2.
In 2012, Plaintiff was in the midst of a divorce and custody battle with his estranged wife,
Jamie Lanning, for custody of his daughter. See Dkt. No. 1 at ¶ 13. In February of 2012, Ms.
Lanning began dating Ryan Ashe, a police officer with the Glens Falls Police Department. See
id. at ¶ 16. At that time, Defendant Ashe's former partner Kevin Conine, Jr., worked for the
Warren County Sheriff's Department. See id. at ¶ 18.
Plaintiff alleges that Ms. Lanning misused Defendant Conine's friendship with Defendant
Ashe to harm Plaintiff. See id. at ¶ 19. Specifically, Plaintiff contends that early in the morning
of May 24, 2012 Defendant Ashe brought Ms. Lanning to the Warren County Sheriff's
Department where she falsely reported to Defendant Conine that Plaintiff had threatened over the
phone to kill her. See id. at ¶¶ 20-23. Ms. Lanning's report also noted that Plaintiff was at that
time subject to an order of protection. See Dkt. No. 43-3. At approximately 3 a.m. that day,
Defendant Conine arrested Plaintiff at Plaintiff's home based upon Ms. Lanning's report. See Dkt.
No. 1 at ¶ 24. Plaintiff was arraigned later that morning in Queensbury Town Court. See id. at ¶
44. Defendant Conine charged Plaintiff with Criminal Contempt in the First Degree and
Aggravated Harassment in the Second Degree for violation of the pre-existing order of protection.
See id. at ¶¶ 45, 122. As a result of the arrest and charges, a "no contact" order of protection was
granted against Plaintiff in favor of Ms. Lanning. See id. at ¶ 49.
On September 18, 2012, Plaintiff went to his daughter's grandmother's home for a prearranged third party custodial pick up. See id. at ¶ 64. Plaintiff alleges that Ms. Lanning and
Defendant Ashe, who was off duty at the time, were present at the grandmother's home during the
pick up in violation of the custody arrangement. See id. at ¶¶ 64-67. Plaintiff alleges that after he
departed for dinner with his daughter, Ms. Lanning and Defendant Ashe gave false statements to
the Glens Falls Police Department claiming that Plaintiff had stared at them in a threatening
manner. See id. at ¶ 75. Upon his return, Plaintiff noted that Ms. Lanning and Defendant Ashe
were sitting in Ashe's personal vehicle across the street from the drop off point. See id. at ¶ 70.
Five Glens Falls police officers then arrested Plaintiff for allegedly violating the "no contact"
order of protection. See id. at ¶¶ 72-74. That same night, Plaintiff was arraigned and charged
with Criminal Contempt in the First Degree. See id. at ¶¶ 83-84.
The May 24, 2012 and September 18, 2012 charges were merged, and on September 21,
2012, the Warren County District Attorney's Office secured an indictment against Plaintiff on
three counts of Criminal Contempt in the First Degree and one count of Aggravated Harassment
in the Second Degree based upon Ms. Lanning's testimony. See id. at ¶¶ 88-89.
On March 6, 2013, the Warren County District Attorney's Office transferred the charges
back to Queensbury Town Court and the Glens Falls City Court to be prosecuted separately as
misdemeanors. See id. at ¶ 98. On April 9, 2013, Plaintiff was arraigned in Glens Falls City
Court on two counts of Criminal Contempt in the Second Degree related to the September 18,
2012 events. See id. at ¶ 100. Those charges were dismissed on November 7, 2014 in the interest
of justice pursuant to section 170.40 of the New York Criminal Procedure Law. See id. at ¶ 102;
see also Dkt. No. 57-1 at 3-4. On May 24, 2013, Plaintiff was arraigned in Queensbury Town
Court on one count of Criminal Contempt in the Second Degree and one count of Aggravated
Harassment in the Second Degree related to the May 24, 2012 events. See Dkt. No. 1 at ¶ 103.
Those charges were dismissed on May 7, 2014 following a jury trial. See id. at ¶¶ 104, 129.
On May 1, 2013, Defendant Ashe issued traffic tickets against Plaintiff and charged
Plaintiff with Aggravated Unlicensed Operation of a Motor Vehicle in the Third Degree, a
misdemeanor. See id. at ¶¶ 106-07. The charge gave rise to a proceeding, which was dismissed.
See id. at ¶ 155.
Standard of Review
Rule 12(c) of the Federal Rules of Civil Procedure provides that "after the pleadings are
closed—but early enough not to delay trial—a party may move for judgment on the pleadings."
Fed. R. Civ. P. 12(c). When a party makes a Rule 12(c) motion, the court applies the same
standard as when a party files a Rule 12(b)(6) motion. See Hayden v. Paterson, 594 F.3d 150,
160 (2d Cir. 2010) (citation omitted).
A motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure tests the legal sufficiency of the party's claim for relief. See Patane v.
Clark, 508 F.3d 106, 111-12 (2d Cir. 2007) (citation omitted). In considering the legal
sufficiency, a court must accept as true all well-pleaded facts in the pleading and draw all
reasonable inferences in the pleader's favor. See ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493
F.3d 87, 98 (2d Cir. 2007) (citation omitted). This presumption of truth, however, does not
extend to legal conclusions. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).
Although a court's review of a motion to dismiss is generally limited to the facts presented in the
pleading, the court may consider documents that are "integral" to that pleading, even if they are
neither physically attached to, nor incorporated by reference into, the pleading. See Mangiafico v.
Blumenthal, 471 F.3d 391, 398 (2d Cir. 2006) (quoting Chambers v. Time Warner, Inc., 282 F.3d
147, 152-53 (2d Cir. 2002)).
To survive a motion to dismiss, a party need only plead "a short and plain statement of the
claim," see Fed. R. Civ. P. 8(a)(2), with sufficient factual "heft to 'sho[w] that the pleader is
entitled to relief[,]'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007) (quotation omitted).
Under this standard, the pleading's "[f]actual allegations must be enough to raise a right of relief
above the speculative level," id. at 555 (citation omitted), and present claims that are "plausible
on [their] face," id. at 570. "The plausibility standard is not akin to a 'probability requirement,'
but it asks for more than a sheer possibility that a defendant has acted unlawfully." Iqbal, 556
U.S. at 678 (citation omitted). "Where a complaint pleads facts that are 'merely consistent with' a
defendant's liability, it 'stops short of the line between possibility and plausibility of "entitlement
to relief."'" Id. (quoting Twombly, 550 U.S. at 557). Ultimately, "when the allegations in a
complaint, however true, could not raise a claim of entitlement to relief," Twombly, 550 U.S. at
558, or where a plaintiff has "not nudged [its] claims across the line from conceivable to
plausible, the[ ] complaint must be dismissed[,]" id. at 570.
Claims Against the Warren County District Attorney's Office, the Warren County
Sheriff's Department, and the Glens Falls Police Department
As Plaintiff concedes, the Warren County District Attorney's Office, the Warren County
Sheriff's Department, and the Glen Falls Police Department are not suable entities. See Murray v.
Williams, No. 12–CV–3240, 2012 WL 2952409, *2 (N.D.N.Y. July 19, 2012) (holding that
"plaintiff may not sue the district attorney's office as a separate legal entity") (collecting cases);
Caidor v. M&T Bank, No. 05–CV–297, 2006 WL 839547, *2 (N.D.N.Y. Mar. 27, 2006) ("'A
police department cannot sue or be sued because it does not exist separate and apart from the
municipality and does not have its own legal identity'") (alteration omitted) (quoting Baker v.
Willett, 42 F. Supp. 2d 192, 198 (N.D.N.Y. 1999)). The Court therefore dismisses all claims
against these Defendants.
Official Capacity Claims
A claim against a municipal officer in his official capacity is essentially a claim against
the municipality. See Odom v. Matteo, 772 F. Supp. 2d 377, 392 (D. Conn. 2011) (citing Curley
v. Village of Suffern, 268 F.3d 65, 72 (2d Cir. 2001)); Wallikas v. Harder, 67 F. Supp. 2d 82, 8384 (N.D.N.Y. 1999). Therefore, when a section 1983 claim is brought against a municipal entity
and an officer in his official capacity, "the official capacity claim should be dismissed as
duplicative or redundant." Odom, 772 F. Supp. 2d at 392; see also Wallikas, 67 F. Supp. 2d at 84.
In the present case, Plaintiff has alleged section 1983 claims against both the County of Warren
and Defendant Conine for (1) malicious prosecution (count one) and (2) violation of his right to
equal protection (count four). Plaintiff has also alleged section 1983 claims against both the City
of Glens Falls and Defendant Ashe for (1) malicious prosecution (count one), (2) malicious
prosecution (count two), (3) malicious prosecution (count three), and (4) violation of his right to
equal protection (count four). To the extent that Plaintiff brings any of these section 1983 claims
against Defendants Conine or Ashe in their official capacities, the Court finds they are duplicative
and, therefore, dismissed.
Malicious Prosecution (Individual Capacity)
"The Fourth Amendment right implicated in a malicious prosecution action is the right to
be free of unreasonable seizure of the person—i.e., the right to be free of unreasonable or
unwanted restraints on personal liberty." Singer v. Fulton Cty. Sheriff, 63 F.3d 110, 116 (2d Cir.
1995). The elements of malicious prosecution under section 1983 effectively mirror the elements
of the same claim under New York law. See Hygh v. Jacobs, 961 F.2d 359, 366 (2d Cir. 1992).
Accordingly, to state a cause of action for malicious prosecution in New York, the plaintiff must
prove (1) the initiation or continuation of a criminal proceeding against the plaintiff; (2)
termination of the proceeding in the plaintiff's favor; (3) lack of probable cause for commencing
the proceeding; and (4) actual malice as a motivation for the defendant's actions. See Jocks v.
Tavernier, 316 F.3d 128, 136 (2d Cir. 2003). To sustain a malicious prosecution claim under
section 1983, "the state law elements must be met, and there must also be a showing of a
'sufficient post-arraignment liberty restraint to implicate the plaintiff's Fourth Amendment
rights.'" Rutigliano v. City of New York, 326 Fed. Appx. 5, 8-9 (2d Cir. 2009) (quotation
1. Prosecution for charges resulting from Plaintiff's May 24, 2012 arrest
a. Kevin Conine, Jr.
"Probable cause is a complete defense to a malicious prosecution claim." Kanderskaya v.
City of New York, 11 F. Supp. 3d 431, 436 n.1 (S.D.N.Y. 2014), aff'd, 590 Fed. Appx. 112 (2d
Cir. 2015). "Under New York law, a grand jury indictment 'creates a presumption of probable
cause that may only be rebutted by evidence that the indictment was procured by "fraud, perjury,
the suppression of evidence or other police conduct undertaken in bad faith."'" Cornell v. Kapral,
483 Fed. Appx. 590, 592 (2d Cir. 2012) (quoting Savino v. City of New York, 331 F.3d 63, 72 (2d
Cir. 2003)). Moreover, "[i]t is well-established that an officer normally has probable cause to
arrest 'if he received his information from some person, normally the putative victim or
eyewitness, who it seems reasonable to believe is telling the truth.'" Kanderskaya, 11 F. Supp. 3d
at 436 (quoting Miloslavsky v. AES Eng'g Soc., Inc., 808 F. Supp. 351, 355 (S.D.N.Y. 1992),
aff'd, 993 F.2d 1534 (2d Cir. 1993)). In the context of a malicious prosecution claim, "'even when
probable cause is present at the time of arrest, evidence could later surface which would eliminate
that probable cause.'" Kent v. Thomas, 464 Fed. Appx. 23, 25 (2d Cir. 2012) (alteration omitted)
(quotation omitted). However, "'[i]n order for probable cause to dissipate, the groundless nature
of the charge must be made apparent by the discovery of some intervening fact.'" Kinzer v.
Jackson, 316 F.3d 139, 144 (2d Cir. 2003) (quoting Lowth v. Town of Cheektowaga, 82 F.3d 563,
571 (2d Cir. 1996)). "[T]he question is whether either the evidence gathered after arrest
undermined a finding of probable cause, or whether the [ ] [d]efendants' inquiry into the alleged
[crime] so far departed from what a reasonable person would have undertaken as to itself
constitute evidence of lack of probable cause." Rae v. County of Suffolk, 693 F. Supp. 2d 217,
227 (E.D.N.Y. 2010). "[D]efendants are not obliged to exonerate [a] plaintiff or uncover
exculpatory evidence, but the 'failure to make a further inquiry when a reasonable person would
have done so may be evidence of lack of probable cause.'" Lawrence v. City Cadillac, No.
10–CV–3324, 2010 WL 5174209, *6 (S.D.N.Y. Dec. 9, 2010) (quoting Lowth, 82 F.3d at 571).
Moreover, where probable cause does not exist, an officer enjoys qualified immunity from suit if
there is "arguable probable cause" to charge, that is, if after "accounting for any new information
learned subsequent to an arrest, 'it was not manifestly unreasonable for the defendant officer to
charge the plaintiff' with the crime in question." Jean v. Montina, 412 Fed. Appx. 352, 354 (2d
Cir. 2011) (alterations omitted) (quoting Lowth, 82 F.3d at 572).
In the present case, Plaintiff does not allege that Defendant Conine learned new facts
between Plaintiff's arrest on May 24, 2012 and his arraignment later that same morning.
Therefore, the Court's probable cause analysis focuses on probable cause at the time of Plaintiff's
arrest. See Kanderskaya, 11 F. Supp. 3d at 436 n.1 ("The difference between wrongful arrest and
malicious prosecution is that a wrongful arrest claim is based on whether probable cause existed
at the time the plaintiff was arrested, whereas malicious prosecution is based on whether probable
cause existed at the time the prosecution of the plaintiff began. Since Kanderskaya does not
allege that there was any difference in the facts known to the police officers between arrest and
arraignment, I analyze only the existence of probable cause at the time of her arrests").
As a preliminary matter, the grand jury indictment creates a presumption of probable
cause because Plaintiff was indicted on each of the charges related to his May 24, 2012 arrest.
See Dkt. No. 1 at ¶ 88. Moreover, the complaint's allegations further support a finding of
probable cause. Defendant Conine knew prior to arresting Plaintiff that Plaintiff was subject to an
order of protection in favor of Ms. Lanning. See Dkt. No. 1 at ¶ 24; Dkt. No. 43-3. "'In cases
involving arrests for violating a protective order, courts in this circuit have found that the
arresting officer's awareness of the protective order is itself a significant factor in establishing
probable cause.'" Kanderskaya, 11 F. Supp. 3d at 438 (quoting Carthew v. County of Suffolk, 709
F. Supp. 2d 188, 197 (E.D.N.Y. 2010) (collecting cases)). The fact that Defendant Conine knew
Ms. Lanning and Plaintiff were feuding in connection with a bitter divorce, see Dkt. No. 1 at ¶
127, also supports a finding of probable cause. See Kanderskaya, 11 F. Supp. 3d at 437 (finding
"the very fact that the parties were in the process of divorcing also lent credibility to Salem's story
that his wife had threatened him because of marital discord" and "the fact that Salem and
Kanderskaya were getting divorced did not mean that the police officers could not rely on Salem's
statements without conducting an investigation"); see also Little v. Massari, 526 F. Supp. 2d 371,
377 (E.D.N.Y. 2007) ("As to plaintiff's assertion that [the complainant's] credibility was always to
be doubted because of the custody battle, that works both ways. That is, even if [the arresting
officer] had embarked a weighing of the parties' credibility, plaintiff was also a litigant in a
custody battle, and one who had Orders of Protection entered against him").
To rebut the presumption of probable cause, Plaintiff alleges the following: (1) Defendant
Conine executed Plaintiff's arrest in furtherance of his own personal objective of supporting
Defendant Ashe and Ms. Lanning, see Dkt. No. 1 at ¶ 127; (2) Defendant Conine should have
"made further inquiry into the truth of Jamie Lanning's claims following the arrest" and had he
conducted such an inquiry, "he would have discovered that there were no phone calls made to her
from [ ] [P]laintiff's phone as she claimed, bringing her story into serious doubt, and further
undermining probable cause,"1 see Dkt. No. 47 at 17; and (3) Defendant Conine should have
known that Ms. Lanning's statement was false based on his personal relationship with her and
Defendant Ashe, see Dkt. No. 1 at ¶ 123.
The significance of this revelation is unclear. In her sworn statement, Ms. Lanning did
not claim that Plaintiff placed a call to her; rather, Ms. Lanning attested that her daughter placed a
call to Plaintiff. See Dkt. No. 43-3.
First, Defendant Conine's alleged personal objective is irrelevant to a probable cause
analysis because "probable cause is an objective matter that does not depend on the subjective
biases of the arresting officer." Simmons v. N.Y. City Police Dep't, 97 Fed. Appx. 341, 343 (2d
Cir. 2004) (citing Whren v. United States, 517 U.S. 806, 812-13 (1996)); see also Aretakis v.
Durivage, No. 07–CV–1273, 2009 WL 249781, *10 (N.D.N.Y. Feb. 3, 2009) ("Even if there is a
question of [a defendant's] motivation, motivation is not a consideration in a court's objective
assessment of probable cause").
Second, Defendant Conine's failure to locate additional exculpatory evidence that was not
available to him at the time he issued his sworn statement2 does not defeat the presumption of
probable cause. See Candelario v. City of New York, No. 12–CV–1206, 2013 WL 1339102, *7
(S.D.N.Y. Apr. 3, 2013), aff'd, 539 Fed. Appx. 17 (2d Cir. 2013) ("A claim that police simply
failed to investigate or 'could have done more or could have disclosed more' is inadequate [to
rebut the presumption of probable cause] because 'plaintiff must demonstrate that the defendants
deviated egregiously from accepted practices of investigation or otherwise engaged in conduct
that shocks the conscience'") (quotation omitted); see also De Santis v. City of New York, No.
10–CV–3508, 2011 WL 4005331, *8 (S.D.N.Y. Aug. 29, 2011) ("The only additional facts De
Santis has identified are email messages and Jimenez's telephone records. . . . Although this
information could have later been used to cast doubt on Jimenez's credibility, it was not available
to Detective Gurniak at the time he completed his sworn statement and thus did not vitiate
probable cause") (footnote omitted). To the extent Plaintiff alleges that Defendant Conine should
have credited his claim that he had not spoken with his wife in over a year, see Dkt. No. 1 at ¶ 34,
Weiner v. McKeefery, 90 F. Supp. 3d 17 (E.D.N.Y. 2015), is thus readily distinguishable.
That case involved an officer's apparent refusal to review an exculpatory recording that the
plaintiff had provided to police at the time of his arrest. See id. at 34-35.
"an arrestee's protestations of innocence will not defeat probable cause." Kanderskaya, 11 F.
Supp. 3d at 437; see also id. ("The police were not required to credit Kanderskaya's assertions
that she had moved out of the house and had not made any threatening phone calls").
Third, Ms. Lanning's relationship with Defendant Conine's former partner is insufficient to
rebut the presumption of probable cause. See Rae, 693 F. Supp. 2d at 225 (rejecting the argument
"that because [the officers who took the victim's statement] and [the victim] knew one another as
a result of being colleagues at the [Suffolk County Police Department], the Court should infer that
the investigation . . . failed to comport with what a reasonable person would have undertaken").
Even assuming that Ms. Lanning had made false claims against Plaintiff prior to February 2012,
see Dkt. No. 1 at ¶¶ 14-16, Ms. Lanning's May 24, 2012 statement was sufficiently credible to be
believed for purposes of establishing probable cause because of the order of protection, the nature
of the alleged crime, and the state of Ms. Lanning's divorce. See Kanderskaya, 11. F. Supp. 3d at
435, 438 (holding that a complainant's statements to the police concerning alleged death threats
made by his wife "were sufficiently credible to be believed" for purposes of establishing probable
cause to arrest and prosecute his spouse in light of their ongoing divorce and an order of
protection, even assuming that the complainant had previously made several false claims against
his spouse); see also id. at 438 (noting the "difficult problems for the police" posed by "situations
of domestic violence and conflicting accounts"); Little, 526 F. Supp. 2d at 377 ("Police officers in
this situation are in a delicate position that is reflected in the standard for probable cause. If an
officer accepts the view of the complaining witness, he may find himself a defendant in an action
like this. But it can be worse. If the officer determines to reject the complainant's view and the
defendant who is the subject of the Order of Protection commits an act of violence against that
complainant—and there are reported instances in which the failure to enforce led to horrific
consequences—the officer may find himself sued for not taking aggressive enough action in
enforcing the Order") (citations omitted).
Moreover, Plaintiff has failed to plead factual allegations sufficient to state a plausible
claim that Defendant Conine had reason to doubt Ms. Lanning's credibility based on her prior
false accusations. Plaintiff does not allege that Defendant Ashe knew of Ms. Lanning's prior
accusations. Rather, the complaint states that Ms. Lanning made false claims to the police before
she began dating Defendant Ashe in February 2012, at which time Defendant Conine and Ashe
had already begun to work for different departments. See Dkt. No. 1 at ¶¶ 13-15, 16-18. Thus,
since the complaint does not even allege that Defendant Ashe knew of Ms. Lanning's prior false
statements, Plaintiff's contention that Defendant Conine must have known of them because he is
friends with Ashe is "mere conjecture." Bond v. City of New York, No. 14–CV–2431, 2015 WL
5719706, *7 (E.D.N.Y. Sept. 28, 2015) ("Where, as here, a plaintiff's only evidence to rebut the
presumption of the indictment is his version of events, courts will find such evidence to be
nothing more than 'mere conjecture and surmise that [the plaintiff's] indictment was procured as a
result of conduct undertaken by the defendants in bad faith,' which is insufficient to rebut the
presumption of probable cause") (quotation omitted).
For the foregoing reasons, the Court finds that Plaintiff has failed to carry his burden of
rebutting the presumption of probable cause. Furthermore, the Court finds that officers of
reasonable competence could disagree as to the existence of probable cause, based on, inter alia,
Ms. Lanning's sworn statement and the pre-existing order of protection. Therefore, Defendant
Conine is at least entitled to qualified immunity. See Curanaj v. Cordone, No. 10–CV–5689,
2012 WL 4221042, *10, *11 (S.D.N.Y. Sept. 19, 2012) ("Notwithstanding the history of bad
blood between the Parties, the Officers could not be expected to turn a blind eye to a plausible
allegation of the threat of physical violence. Therefore, [the plaintiff's] version of the facts as
alleged in the Complaint establishes at the very least that officers of reasonable competence could
disagree on whether the probable cause test was met") (citations and quotation omitted).
b. Ryan Ashe
The first element of a malicious prosecution claim requires a defendant to have initiated a
prosecution. Under New York law, "'[i]n order for a civilian complainant to be considered to
have initiated a criminal proceeding, it must be shown that the complainant played an active role
in the prosecution, such as giving advice and encouragement or importuning the authorities to
act.'" Fiedler v. Incandela, ___ F. Supp. 3d ___, 2016 WL 7406442, *11 (E.D.N.Y. Dec. 6, 2016)
(quotation omitted). "Therefore, 'a defendant may be said to commence or continue a prosecution
if that defendant knowingly provides false information or fabricated evidence that is likely to
influence the prosecutors or the grand jury.'" Id. (quotation omitted). On the other hand, "[i]n
malicious prosecution cases against police officers, plaintiffs have met this first element by
showing that officers brought formal charges and had the person arraigned, or filled out
complaining and corroborating affidavits, or swore to and signed a felony complaint." LlerandoPhipps v. City of New York, 390 F. Supp. 2d 372, 382-83 (S.D.N.Y. 2005) (citations omitted).
In the present matter, the Court need not resolve whether Defendant Ashe was acting as a
civilian or a police officer in connection with Plaintiff's May 24, 2012 arraignment because it
finds that Plaintiff has failed to allege Defendant Ashe's "personal involvement" in the alleged
malicious prosecution. In "all section 1983 claims, 'personal involvement of defendants in [the]
alleged constitutional deprivations is a prerequisite to an award of damages.'" Barber v. Ruzzo,
No. 10–CV–1198, 2011 WL 4965343, *2 (N.D.N.Y. Oct. 19, 2011) (quoting Blyden v. Mancusi,
186 F.3d 252, 264 (2d Cir. 1999)). The complaint only identifies a single specific action
Defendant Ashe took with respect to Plaintiff's May 24, 2012 arrest and related prosecution: Ashe
drove Ms. Lanning to the police station shortly after midnight on May 24, 2012 to make her
report. See Dkt. No. 1 at ¶¶ 22-23. Aside from that claim, the complaint contains only
conclusory allegations that Defendant Ashe "prosecuted" Plaintiff throughout 2012 and provided
"assistance" to Defendant Conine. See id. at ¶¶ 105, 122. Plaintiff has not alleged that Defendant
Ashe participated in the May 24, 2012 arrest, provided a sworn statement, encouraged Ms.
Lanning to provide a false statement, or submitted evidence before the grand jury. Rather, the
crux of count one is that Defendant Conine initiated the prosecution by charging Plaintiff with
Criminal Contempt in the First Degree and Aggravated Harassment in the Second Degree. See id.
at ¶ 122.
The Court therefore finds that Plaintiff has failed to plausibly allege that Defendant Ashe
personally participated in Plaintiff's prosecution. See Leibovitz v. Barry, No. 15–CV–1722, 2016
WL 5107064, *11 (E.D.N.Y. Sept. 20, 2016) ("Officer Bennett initiated plaintiff's prosecution by
filing an accusatory instrument (i.e., her sworn statement) in support of the September 24, 2014
superseding information. However, the Complaint does not allege the specific, personal
involvement of Major Lowe or Deputy Clerk Barry in plaintiff's prosecution. Instead, plaintiff
makes the conclusory assertion th[at] Lowe and Barry 'conspired' with the Assistant District
Attorney and others to 'gain [sic] complaining witness Defendant Bennett into falsely accusing
the Plaintiff.' This allegation – which does not allege the particular actions Lowe and Barry took
to conspire or maliciously prosecute plaintiff – is insufficient to state a plausible malicious
prosecution cause of action") (citations omitted); see also Hanly v. Powell Goldstein, L.L.P., 290
Fed. Appx. 435, 440 (2d Cir. 2008) (finding the allegations that a defendant provided "substantial
assistance" and "additional assistance" to the person who filed a criminal complaint "were too
conclusory to pass muster" for purposes of a malicious prosecution claim).
2. Prosecution for charges resulting from the September 18, 2012 arrest
A dismissal "in the interest of justice" under New York Criminal Procedure Law § 170.40
may not provide the favorable termination required as the basis for a claim of malicious
prosecution. See Lynch v. Suffolk Cty. Police Dep't, Inc., 348 Fed. Appx. 672, 674 (2d Cir. 2009).
On November 7, 2014, the Glens Falls City Court sua sponte dismissed the charges related to
Plaintiff's September 18, 2012 arrest in the interest of justice pursuant to New York Criminal
Procedure Law § 170.40. See Dkt. No. 1 at ¶ 102; see also Dkt. No. 57-1 at 3-4. The City Court
explained that conviction or continued prosecution of Plaintiff "would constitute and result in
injustice" in part because Plaintiff and Ms. Lanning "had continued to litigate the issues of their
marriage through Family Court and Supreme Court" and a decision was then "imminent from a
Supreme Court as to all the marital issues after a matrimonial trial." Dkt. No. 57-1 at 3, 5, 6. The
City Court also considered that "no actual harm was caused by the offenses" and that Plaintiff had
"not been charged with any new crimes and ha[d] not been charged with violating the order of
protection" in the interim between his September 2012 arrest and the date of the court's decision.
Id. at 5-6. That court further noted that "[a]s stated by the Court of Appeals, a dismissal in the
furtherance of justice is neither an acquittal of the charges nor any determination of the merits.
Rather it leaves a question of guilt or innocence unanswered." Id. at 6-7. The City Court also
denied and dismissed a cross motion by Plaintiff to dismiss the charges on alternative grounds.
See id. at 7. Accordingly, the Court finds that the prosecution related to Plaintiff's September 18,
2012 arrest was not favorably terminated. Therefore, count two of the complaint is dismissed.
3. Prosecution based upon the May 1, 2013 traffic stop
"[T]he issuance of a pre-arraignment, non-felony summons requiring a later court
appearance, without further restrictions, does not constitute a Fourth Amendment seizure." Burg
v. Gosselin, 591 F.3d 95, 98 (2d Cir. 2010). With respect to traffic tickets in particular, numerous
courts have held that "'issuance of a traffic ticket or court summons alone does not constitute a
seizure under the Fourth Amendment for the purposes of establishing a . . . malicious prosecution
claim.'" Ramdath v. Favata, No. 11–CV–395, 2014 WL 12586843, *7 (N.D.N.Y. July 23, 2014)
(quotation omitted); see also LoSardo v. Ribaudo, No. 14–CV–6710, 2015 WL 502077, *5
(E.D.N.Y. Feb. 5, 2015) ("Courts, however, have repeatedly held that the issuance of a traffic
ticket or court summons alone does not constitute a seizure under the Fourth Amendment for the
purposes of establishing a false arrest or malicious prosecution claim") (collecting cases).
In the present matter, Plaintiff alleges that Defendant Ashe issued three traffic tickets and
charged Plaintiff with Aggravated Unlicensed Operation of a Motor Vehicle in the Third Degree,
a misdemeanor. See Dkt. No. 1 at ¶¶ 106-07. All three tickets were dismissed just one month
later on June 13, 2013. See id. at ¶ 108. Although Plaintiff contends the charge gave rise to a
proceeding, see id. at ¶ 155, he does not specify whether he was ultimately required to attend the
proceeding. Furthermore, Plaintiff does not allege that he was arrested, required to post bail, or
that his ability to travel was limited. Accordingly, the Court finds that Plaintiff's allegations
related to the issuance of the May 1, 2013 traffic tickets do not constitute a Fourth Amendment
seizure. Moreover, the Court rejects Plaintiff's attempt to bootstrap allegations concerning
discrete prosecutions to bolster his claim for malicious prosecution based on the traffic charge.
See Posr v. Doherty, 944 F.2d 91, 100 (2d Cir. 1991) (noting "the need to separately analyze the
charges claimed to have been maliciously prosecuted"). Therefore, count three of the complaint is
Equal Protection Claim
"The Equal Protection Clause of the Fourteenth Amendment commands that no State shall
'deny to any person within its jurisdiction the equal protection of the laws,' which is essentially a
direction that all persons similarly situated should be treated alike." City of Cleburne v. Cleburne
Living Ctr., 473 U.S. 432, 439 (1985). To prevail on an equal protection claim based on a theory
of selective enforcement, plaintiffs must show both that "(1) the person, compared with others
similarly situated, was selectively treated, and (2) the selective treatment was motivated by an
intention to discriminate on the basis of impermissible considerations, such as race or religion, to
punish or inhibit the exercise of constitutional rights, or by a malicious or bad faith intent to
injure the person." Zahra v. Town of Southold, 48 F.3d 674, 683 (2d Cir. 1995) (quoting FSK
Drug Corp. v. Perales, 960 F.2d 6, 10 (2d Cir. 1992)).
In a selective enforcement claim, "plaintiffs 'must identify comparators whom a prudent
person would think were roughly equivalent[, but] [p]laintiff[s] need not show an exact
correlation between [themselves] and the comparators.'" Mosdos Chofetz Chaim, Inc. v. Village
of Wesley Hills, 815 F. Supp. 2d 679, 696 (S.D.N.Y. 2011) (quotation omitted). "Put another
way: 'The test is whether a prudent person, looking objectively at the incidents, would think them
roughly equivalent and the protagonists similarly situated. . . . Exact correlation is neither likely
or necessary, but the cases must be fair congeners.'" Id. (quoting T.S. Haulers, Inc. v. Town of
Riverhead, 190 F. Supp. 2d 455, 463 (E.D.N.Y. 2002)). At the motion to dismiss stage, "a court
must determine whether, based on a plaintiff's allegations in the complaint, it is plausible that a
jury could ultimately determine that the comparators are similarly situated. Thus, '[w]ell-pled
facts showing that the plaintiff has been treated differently from others similarly situated remains
an essential component of such a claim [and] [c]onclusory allegations of selective treatment are
insufficient to state an equal protection claim.'" Id. at 698 (quotation omitted).
In the present case, Plaintiff alleges that he is similarly situated to "others in a similar
situation, that situation being the Warren County Sheriff's Department and the Glens Falls Police
Department responding to reports of potential criminal activity." See Dkt. No. 1 at ¶ 162.
Plaintiff clarifies in his briefing that he is similarly situated to "the typical citizen in Warren
County," Dkt. No. 47 at 21, by which he means "citizens against whom reports of potential
criminal activity were made," id. at 22, or "individuals involved in ordinary run of the mill
domestic disputes," id. at 22-23. Even assuming the class is defined as the most narrow of the
above iterations, the Court finds that Plaintiff has failed to plausibly allege that he was similarly
situated to anyone who was treated differently because the underlying domestic dispute was not
"run of the mill." Rather, Ms. Lanning attested that Plaintiff had threatened her life and violated
an order of protection. See Brisbane v. Milano, 443 Fed. Appx. 593, 594 (2d Cir. 2011) (finding
that the plaintiffs failed to plausibly plead sufficient similarity to two named individuals where
the plaintiffs were charged with more serious crimes and one set of arrests occurred in response to
a life-threatening situation based on a report later shown to be false); see also Liang v. City of
New York, No. 10–CV–3089, 2013 WL 5366394, *11 (E.D.N.Y. Sept. 24, 2013) ("[T]he City
defendants arrested Liang on all three occasions after specific allegations of criminal
behavior—physical abuse, verbal harassment, theft of property, violations of the orders of
protection, making threatening statements, and brandishing a weapon—had been leveled against
him by the putative victims. By contrast, Liang does not allege that he or anyone else ever made
complaints about criminal behavior against Tan at or around the time of his arrests, let alone the
kinds of allegations that would cause her to be 'similarly situated in all material respects.' On this
ground alone, his selective enforcement claim is subject to dismissal").
Plaintiff has also failed to plausibly state that similarly situated persons were treated
differently by Defendants. See Burns v. City of Utica, 2 F. Supp. 3d 283, 293 (N.D.N.Y. 2014),
aff'd, 590 Fed. Appx. 44 (2d Cir. 2014) (granting motion to dismiss where the plaintiff failed to
allege "any facts that even plausibly suggest that [the defendants] had investigated [similar]
claims . . . any differently"). More fundamentally, Plaintiff's equal protection claim is improper
insofar as Plaintiff alleges Defendants violated his right to equal protection by maliciously
prosecuting him. See Dkt. No. 1 at ¶ 166 ("[T]he defendants violated Mr. Lanning's legal rights
protecting him from malicious prosecution based on the above-referenced factors and in doing so
further violated the [sic] Mr. Lanning's right to equal protection under the law"). Defendants'
alleged malicious prosecution does not give rise to a separate claim for selective enforcement.
See Jennejahn v. Village of Avon, 575 F. Supp. 2d 473, 482 (W.D.N.Y. 2008) ("Jennejahn has
cited no authority, and this Court is aware of none, supporting his unusual contention that the law
was selectively enforced against him when he was unlawfully subjected to the use of excessive
force during his arrest. To accept his argument would broaden every excessive use of force claim
into a separate equal protection claim").
Municipal Liability Claims
"Although municipalities are within the ambit of section 1983, municipal liability does not
attach for actions undertaken by city employees under a theory of respondeat superior." Birdsall
v. City of Hartford, 249 F. Supp. 2d 163, 173 (D. Conn. 2003) (citing Monell v. New York City
Dep't of Soc. Servs. of New York, 436 U.S. 658, 691 (1978)). Despite the fact that respondeat
superior liability does not lie, a municipal entity or employee sued in his or her official capacity
can be held accountable for a constitutional violation that has occurred pursuant to "a policy
statement, ordinance, regulation, or decision officially adopted and promulgated by [the
municipality's] officers . . . [or] pursuant to governmental 'custom' even though such a custom has
not received formal approval through the body's official decision-making channels." Monell, 436
U.S. at 690-91. Municipal liability can be established in a case such as this in several different
ways, including through proof of an officially adopted rule or widespread, informal custom
demonstrating "a deliberate government policy or failing to train or supervise its officers."
Bruker v. City of New York, 337 F. Supp. 2d 539, 556 (S.D.N.Y. 2004) (quoting Anthony v. City
of New York, 339 F.3d 129, 140 (2d Cir. 2003)). A plaintiff may also show that the allegedly
unconstitutional action was "taken or caused by an official whose actions represent an official
policy," or when municipal officers have acquiesced in or condoned a known policy, custom, or
practice. See Jeffres v. Barnes, 208 F.3d 49, 57 (2d Cir. 2000), cert. denied sub nom., County of
Schenectady v. Jeffes, 531 U.S. 813 (2000); see also Wenger v. Canastota Cent. Sch. Dist., No.
95–CV–1081, 2004 WL 726007, *3 (N.D.N.Y. Apr. 5, 2004).
In the present matter, since Plaintiff has failed to plausibly allege any unconstitutional
conduct against Defendants Ashe or Conine, Plaintiff's municipal liability claims must also be
dismissed. See Segal v. City of New York, 459 F.3d 207, 219 (2d Cir. 2006) ("Because the district
court properly found no underlying constitutional violation, its decision not to address the
municipal defendants' liability under Monell was entirely correct"). Therefore, the Court
dismisses Plaintiff's claims against the City of Glens Falls and the County of Warren.
Accordingly, the Court hereby
ORDERS that Defendants' motions for judgment on the pleadings are GRANTED; and
the Court further
ORDERS that the Clerk of the Court shall enter judgment in Defendants' favor and close
this case; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision
and Order on the parties in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: March 8, 2017
Albany, New York
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