Towner v. County of Tioga et al
Filing
172
ORDER - That the Report and Recommendation (Dkt. No. 167) is ADOPTED in its entirety. That defendants' motion for summary judgment (Dkt. No. 159) is DENIED. That this case is deemed trial ready and a scheduling order will be issued in due course. Signed by Senior Judge Gary L. Sharpe on 3/28/2019. (jel, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
RUSSELL D. TOWNER,
Plaintiff,
3:15-cv-963
(GLS/DEP)
v.
PATRICK HOGAN et al.,
Defendants.
________________________________
ORDER
On February 15, 2019, Magistrate Judge David E. Peebles filed a
Report and Recommendation (R&R), (Dkt. No. 167), which recommends
that defendants’ motion for summary judgment, (Dkt. No. 159), be denied.
Pending are defendants’ objections to the R&R. (Dkt. No. 168.)
Although defendants list a host of objections to the R&R, (id. at 1),
the root of their objections is grounded in Judge Peebles’ finding that there
are questions of fact regarding probable cause and defendants’ personal
involvement, as well as his refusal to consider their qualified immunity
arguments. (See generally id.)
First, the portion of defendants’ objections relating to whether there
was probable cause to arrest and prosecute plaintiff Russell D. Towner,
(id. at 6-14), merely rehashes arguments previously made to Judge
Peebles, (Dkt. No. 159, Attach. 21 at 4-11), and is thus a general
objection, which triggers review for clear error only. See Almonte v. N.Y.
State Div. of Parole, No. Civ. 904CV484, 2006 WL 149049, at *5-6
(N.D.N.Y. Jan. 18, 2006). After reviewing this part of the R&R, there is no
apparent, let alone clear, error in Judge Peebles’ appropriate application of
the probable cause inquiry at this stage. (Dkt. No. 167 at 16-17, 20-32.)
The remainder of defendants’ objections are appropriately
characterized as specific objections and warrant de novo review. See
Almonte, 2006 WL 149049, at *4-6.
Defendants object to Judge Peebles’ finding that defendants’
personal involvement in the alleged constitutional violations could not be
resolved at the summary judgment stage. (Dkt. No. 168 at 22-25.)
However, Judge Peebles properly found that defendant Patrick Hogan “laid
the groundwork for the signing and filing of the accusatory instrument
against [Towner]” through his participation in the April 10, 2014 interview,
his initiation of the May 8, 2014 interview, his consultation with the Tioga
County District Attorney’s Office, his decision that Towner should be
arrested, and his request of defendant Alexander to draft and sign the
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accusatory instruments. (Dkt. No. 167 at 34, 35.) The court disagrees with
defendants’ contention, (Dkt. No. 168 at 23), that Hogan’s affidavit––which
states that he had no personal involvement after Towner’s
arrest––precludes a finding that he initiated Towner’s prosecution. See
Manganiello v. City of New York, 612 F.3d 149, 163 (2d Cir. 2010) (holding
detective initiated plaintiff’s prosecution where he actively participated in
investigation and collaborated with prosecutor in effort to ultimately bring
criminal charges). Given Hogan’s active role in the investigation and
collaboration with the District Attorney’s Office leading up to the charge
brought against Towner, Judge Peebles properly found that any lack of
involvement on Hogan’s part after Towner’s arrest was not enough to allow
the court to conclude as a matter of law that “the decision made by the
prosecutor to bring criminal charges was independent of any pressure
exerted by [Hogan].” (Dkt. No. 167 at 34 (quoting Hartman v. Moore, 547
U.S. 250, 263 (2006) (internal footnote omitted)).) As such, defendants’
objection related to Hogan’s personal involvement is rejected.
Furthermore, Hogan and defendant C.J. Alexander’s role in drafting
and signing the accusatory instrument, as pointed out by Judge Peebles,
(Dkt. No. 167 at 35), is sufficient to allow a reasonable jury to find both
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officers’ personal involvement in the alleged constitutional deprivations.
See Llerando-Phipps v. City of New York, 390 F. Supp. 2d 372, 382-83
(S.D.N.Y. 2005) (finding police officers may initiate criminal proceedings by
having plaintiff arraigned, filling out complaining and corroborating
affidavits, or signing accusatory instruments). As such, defendants’
objection related to Alexander, (Dkt. No. 168 at 24), is also rejected. To
the extent that defendants argue that “[Judge Peebles] assumed the
argument specific to . . . Alexander was that he did not personally
participate in the arrest and prosecution, rather than that he was privy to a
much more circumscribed set of facts for purposes of the probable cause
analyses,” (id.), the court finds no error with Judge Peebles’ probable
cause analysis, as noted above.
Next, defendants tersely argue, for the same reasons as Hogan,
Wayne Moulton was not personally involved in initiating Towner’s
prosecution. (Dkt. No. 168 at 23.) However, the court would have
exercised the same discretion as Judge Peebles––considering that the
false arrest and conspiracy claims against Moulton remain––in finding that
Moulton’s “significant involvement in the investigation” leading up to his
arrest, sufficiently “laid the groundwork for [Towner]’s . . . prosecution.”
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(Dkt. No. 167 at 35.) As such, defendants’ objection related to Moulton’s
personal involvement is rejected.
Lastly, defendants argue that Judge Peebles should have considered
their qualified immunity arguments, but, in any event, they argue that the
court has discretion to now consider their arguments. (Dkt. No. 168 at
15-21.) However, in light of the fact that defendants did not raise these
arguments until their reply papers––as noted by Judge Peebles, (Dkt. No.
167 at 20 n.8),––he appropriately declined to consider these arguments.
See Tillery v. N.Y. State Office of Alcohol and Substance Abuse Servs.,
No. 1:13–CV–1528, 2014 WL 2434954, at *3 n.6 (N.D.N.Y. May 30, 2014);
Nuss v. Sabad, 976 F. Supp. 2d 231, 246 n.5 (N.D.N.Y. 2013). The court
disagrees with defendants’ contention that alluding to defendants’
reasonableness in believing probable cause existed was sufficient to
properly raise the question of qualified immunity in their initial
memorandum of law. (Dkt. No. 168 at 16 (citing Dkt. No. 159, Attach. 21 at
8-9).) To be sure, although defendants devoted nearly half a page to
quotes from Pulp Fiction, (Dkt. No. 168 at 10), they did not once mention
the term qualified immunity. Given that defendants are represented by
counsel and not entitled to the liberality reserved for pro se litigants, Judge
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Peebles properly construed their initial motion papers as failing to raise a
qualified immunity argument.
Furthermore, the court is skeptical that the questions of material fact
precluding summary judgment in the probable cause context, (Dkt. No. 167
at 25-30), do not also foreclose a finding of qualified immunity at this stage.
See Jones v. Howard, 6:15-cv-902, 2018 WL 3432713, at *3 (N.D.N.Y.
July 16, 2018) (declining to address qualified immunity at summary
judgment stage despite “strong argument that defendants had at least
arguable probable cause,” in part because there were “pertinent factual
issues to resolve”); Hillary v. Village of Potsdam, No. 7:12–cv–1669, 2015
WL 902930, at *6 (N.D.N.Y. Mar. 3, 2015) (finding resolution of a disputed
fact “crucial to any analysis of probable cause—or arguable probable
cause, in the qualified immunity context”). Therefore, the court declines
defendants’ invitation to exercise its discretion to allow them a second
crack at qualified immunity. However, defendants are free to renew their
arguments in connection with trial.
Accordingly, it is hereby
ORDERED that the Report and Recommendation (Dkt. No. 167) is
ADOPTED in its entirety; and it is further
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ORDERED that defendants’ motion for summary judgment (Dkt. No.
159) is DENIED; and it is further
ORDERED that this case is deemed trial ready and a scheduling
order will be issued in due course; and it is further
ORDERED that the Clerk provide a copy of this Order to the parties.
IT IS SO ORDERED.
March 28, 2019
Albany, New York
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