Waldron v. Milana et al

Filing 60

MEMORANDUM-DECISION AND ORDER granting Defts' 50 Motion for Summary Judgment in its entirety. Signed by Senior Judge Neal P. McCurn on 9/10/2012. (amt)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
DEBBIE M. WALDRON,
Plaintiff,
-v.-

5:10-CV-0065
(NPM/DEP)

JAMES MILANA; SCOTT HENDERSON;
SEAN LYNCH; THOMAS SKARDINSKI;
DETECTIVE LAMBERTON; CITY OF
SYRACUSE, NEW YORK; CARMEL J.
RIGGS; and DANIELLE RIGGS,
Defendants.

APPEARANCES:
FOR THE PLAINTIFF:
THE GOLDEN LAW FIRM
1412 Genesee Street
Utica, New York 13502

B. BROOKS BENSON, ESQ.
LAWRENCE GOLDEN, ESQ.

FOR THE DEFENDANTS,
James Milana; Scott Henderson; Sean
Lynch; Thomas Skardinski; Detective
Lamberton; and City of Syracuse, New
York:
MARY ANNE DOHERTY, ESQ.,
CITY OF SYRACUSE CORPORATION
COUNSEL
SHANNON T. O’CONNOR, ESQ.
300 City Hall
Syracuse, New York 13202

Neal P. McCurn, Senior District Judge
Memorandum, Decision and Order
I. Introduction
Presently before the court in this civil rights action is a motion by
defendants, James Milana, Scott Henderson, Sean Lynch, Thomas Skardinski,
Detective Lamberton, and City of Syracuse, New York (“City Defendants”), for
summary judgment against plaintiff, Debbie M. Waldron (“Plaintiff”), pursuant to
Rule 56 of the Federal Rules of Civil Procedure. See Dkt. No. 50. Plaintiff
opposes the motion, and City Defendants reply. Decision is rendered is on the
submitted papers, without oral argument.
II. Procedural Background
Plaintiff originally commenced this action against the City Defendants, the
County of Onondaga, three Onondaga County Deputy Sheriffs, Carmel J. Riggs
and Danielle Riggs,1 alleging myriad claims stemming from events surrounding
Plaintiff’s arrest and detention for arson and reckless endangerment on or about
January 17, 2009. The County Defendants thereafter answered the complaint,
while the City Defendants filed a pre-answer motion to dismiss. The County
Defendants’ motion for judgment on the pleadings followed. Thereafter Plaintiff,
when opposing the City Defendants’ motion, sought leave to amend her complaint.
The County Defendants’ motion was granted in its entirety, thereby
eliminating them as defendants to this action. The City Defendants’ motion to

1

Despite each being served with a summons and complaint, both Carmel J. Riggs
and Danielle Riggs failed to appear in this matter. Consequently, upon request by
Plaintiff, the Clerk of the Court entered default against them on August 29, 2011. See
Dkt. No. 44.
2

dismiss was granted in part and denied in part, and the Plaintiff’s motion to amend
the complaint was granted in part and denied in part. Plaintiff was directed to file
her amended complaint in accordance with this court’s December 7, 2010
Memorandum, Decision and Order (“MDO”). See Dkt. No. 30.
Plaintiff thereafter filed her amended complaint, which included the
following claims against the City Defendants, consistent with this court’s MDO.
First, Plaintiff alleges claims pursuant to 42 U.S.C. § 1983 against all individually
named defendant City of Syracuse police officers for violations of Plaintiff’s right
to be free from unreasonable seizure under the Fourth Amendment; the companion
New York State common law tort claim for false arrest/detention/imprisonment
against those same defendants; and a vicarious liability claim under New York
State common law against the City of Syracuse (“the City”) for their employees’
false arrest/detention/imprisonment of Plaintiff. Also pending are § 1983 claims
against the defendant City police officers for violations of Plaintiff’s rights under
the Fourth Amendment and the companion New York State common law tort
claim for malicious prosecution against those same defendants as well as a
vicarious liability claim under New York State law against the City for its
employees’ malicious prosecution of Plaintiff. Plaintiff also alleges a § 1983
claim against defendants Milana, Henderson and Skardinski for failure to
intervene to prevent the false arrest/detention/imprisonment and malicious
prosecution of Plaintiff in violation of her rights under the Fourth Amendment.
Finally, Plaintiff alleges a New York common law tort claim for intentional
infliction of emotional distress against defendant, Lynch as well as a vicarious
liability claim under New York State law against the City for Lynch’s intentional
infliction of emotional distress of Plaintiff.
By their motion for summary judgment, City Defendants now seek
3

judgment in their favor dismissing all of Plaintiff’s causes of action. Principally,
City Defendants argue that there is no question of material fact as to the existence
of probable cause for Plaintiff’s arrest and prosecution, and therefore, Plaintiff’s
state law and § 1983 claims against them for false arrest and malicious prosecution
must be dismissed. In the alternative, City Defendants argue the individually
named officers are entitled to qualified immunity on these claims. Also, City
Defendants argue for the first time that Plaintiff’s state law claims for false arrest
and intentional infliction of emotional distress are time barred.
Plaintiff counters2 that there are factual issues regarding the existence of
probable cause. Plaintiff concedes, through her attorney’s affidavit, that her state
law claims for false arrest and intentional infliction of emotional distress are time
barred, but argues that encompassed in her first cause of action is a Fourteenth
Amendment claim against Lynch for violation of her right to substantive due
process.
III. Legal Standard
A motion for summary judgment shall be granted “if the movant shows that
there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). The movant has the initial
burden to show the court why it is entitled to summary judgment. See Salahuddin
v. Goord, 467 F.3d 263, 272 (2d Cir.2006) (citing Celotex Corp. v. Catrett, 477
U.S. 317, 323, 106 S. Ct. 2548 (1986)). If the movant meets its burden, the burden

2

The Court notes City Defendants’ objection to Plaintiff’s late filing of her papers
in opposition to the pending motion for summary judgment. Plaintiff asks that the court
accept her late filing for good cause. Without deciding the merits of Plaintiff’s request, as
it appears City Defendants have not been prejudiced by Plaintiff’s late filing, the Court
exercises its discretion to accept her papers in opposition and will consider them when
deciding the pending motion.
4

shifts to the non-movant to identify evidence in the record that creates a genuine
issue of material fact. See id., at 273 (citing Matsushita Elec. Indus. Co., Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348 (1986)).
When deciding whether a material issue of fact is in dispute, the court is
cognizant that “[a] fact is material when it might affect the outcome of the suit
under governing law.” Tracy v. Freshwater, 623 F.3d 90, 95 (2d Cir.2010)
(internal citation omitted). Also, a material fact is genuinely in dispute “if ‘the
evidence is such that a reasonable jury could return a verdict for the nonmoving
party.’” Bessemer Trust Co., N.A. v. Branin, 618 F.3d 76, 85 (2d Cir.2010)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505
(1986)).
“In ruling on a motion for summary judgment, the district court may rely on
any material that would be admissible or usable at trial.” Major League Baseball
Props., Inc. v. Salvino, Inc., 542 F.3d 290, 309 (2d Cir.2008) (internal quotation
and citation omitted). Finally, when the court is deciding a motion for summary
judgment, it must resolve all ambiguities and draw all reasonable inferences in the
non-movant’s favor. See Vermont Teddy Bear Co., Inc. v. 1-800 Beargram Co.,
373 F.3d 241, 244 (2d Cir.2004) (citing Adickes v. S.H. Kress & Co., 398 U.S.
144, 157, 90 S. Ct. 1598 (1970)).
Implied in the above-stated burden-shifting standard is the fact that, where a
nonmoving party fails to adequately respond to a motion for summary judgment, a
district court has no duty to perform an independent review of the record to find
proof of a factual dispute. See Amnesty Am. v. Town of W. Hartford, 288 F.3d
467, 470 (2d Cir.2002) (citations omitted). For this reason, the Court may enforce
Local Rule 7.1(a)(3) by deeming facts set forth in a moving party’s statement to

5

have been admitted where the nonmoving party has failed to properly respond to
that statement. See N.D.N.Y. R. 7.1(a)(3). See also Figueroa v. Tri-City Highway
Prods., Inc., No. 08-CV-868, 2010 WL 3635247, at *2 (N.D.N.Y. Sept.10, 2010)
(citations omitted). Pursuant to Local Rule 7.1(a)(3), the nonmoving party must
file a response to the moving party’s Statement of Material Facts, which admits or
denies each of the moving party’s factual assertions in matching numbered
paragraphs, and supports any denials with a specific citation to the record where
the factual issue arises. N.D.N.Y. L.R. 7.1(a)(3).3
IV. Factual Background
The following facts are disputed unless otherwise noted.
At approximately 6:10 p.m. on January 17, 2009, a fire broke out at 203
Rowland Street in the City of Syracuse, New York. Multiple police officers,
including City police as well as Onondaga County deputy sheriffs, responded to
the scene as a result of 911 dispatch calls.
Defendant Milana responded to 203 Rowland Street at approximately 6:26
p.m. See Ex. E to City Defs.’ Statement of Material Facts (“SOMF”), Dkt. No. 5312, at 1.4 At that time, he observed that fire department personnel were already at
the scene and that the house was engulfed in flames. Milana then spoke with two
eyewitnesses, defendants Carmel and Danielle Riggs, both of whom resided at 201
3

Local Rule 7.1(a)(3) also provides that “[t]he non-movant’s response may also set
forth any additional material facts that the non-movant contends are in dispute in
separately numbered paragraphs.”

4

The court notes, for future reference only, that the proper way to introduce
evidence into the record on a motion for summary judgment is by way of affidavit or
declaration, not by reference to exhibits in the Statement of Material Facts. See, e.g.,
S.E.C. v. Boock, No. 09-CV-8261, 2011 WL 3792819, at *9 (S.D.N.Y. Aug. 25, 2011)
(citing Presbyterian Church Of Sudan v. Talisman Energy, Inc., 582 F.3d 244, 264 (2d
Cir. 2009)).
6

Rowland Street. According to Milana’s report, Carmel Riggs stated that at
approximately 5:55 p.m., she saw a male, whom she knew to be the son of the
owner of the house at 203 Rowland Street, break into the house. Carmel added
that the male was in the residence for a brief period of time, after which he left in a
dark colored Jeep SUV. Carmel also stated that the male was in the company of a
female, whom she knew to be the daughter of the owner. See Ex. B-1to SOMF.
In her written statement, provided to defendant Skardinski on the evening of
January 19, 2009, Carmel stated that there was a girl with the owner’s son, whom
she identified as “possibl[y] one of the granddaughters of” the owner. Carmel
reiterated that there was a dark colored Jeep parked in front of the house, but
added that she knew it to belong to the owner’s daughter. Carmel also referred to
the male, who was the owner’s son, as “Junior.” See Ex. C-1 to SOMF.
According to Milana’s report, Carmel’s daughter, Danielle, reported that she saw
the same male leave 203 Rowland Street around 6:00 p.m. in a dark colored Jeep
SUV. Danielle added that she saw five people enter the Jeep, four males and one
female, and that the female was the owner’s daughter. See Ex. B-1 to SOMF.
Thereafter, Milana drove Danielle Riggs to the Criminal Investigation
Division Office at the Syracuse Police Department (“CID”) for her to give a
statement. Milana did not go to the scene of the traffic stop and had no contact
with Plaintiff on January 19, 2009.5
Defendant Henderson also responded to the scene. When he arrived, the
fire was fast moving and extremely well involved. Henderson’s role in the arson
5

The court notes that while Plaintiff denies that Milana had no contact with her
on January 17, 2009, she fails to cite to any evidence in the record supporting her denial.
Accordingly, this statement of material fact is deemed admitted pursuant to Local Rule
7.1(a)(3). The court further notes that Plaintiff’s memorandum of law and attorney’s
affidavit are silent in this regard as well.
7

investigation was limited to scene security at 203 Rowland Street and writing the
main report for the investigation. Henderson did not transport Plaintiff to CID,
nor did he go to the scene of the traffic stop. When Henderson did report to CID
on the evening of January 17, 2009, he could smell a pungent odor of gasoline.
Defendant Lynch was at CID when he heard the dispatch call of a fire and
responded to the scene at 203 Rowland Street. Lynch took over questioning
Carmel Riggs and then transported her to CID.
Meanwhile, Onondaga Sheriff’s Deputies, T. Shields and Terrence Fischer,
went to 207 East Warrington Road in Syracuse, which was the last known address
for “Junior.” Upon arrival, the deputies observed a dark colored Jeep in the
driveway. Three people exited the house and entered the Jeep, leaving 207 East
Warrington Road. The deputies followed the Jeep, and at approximately 7:10
p.m., conducted a traffic stop. The three persons in the Jeep were identified as
Plaintiff, Anthony Waldron, and Francis Waldron.6
While en route to CID with Carmel Riggs, Lynch received a dispatch call
that Deputies Shields and Fischer had conducted a traffic stop of Plaintiff’s Jeep.
Lynch went to the traffic stop with Carmel, where she identified the Jeep and
Anthony Waldron as being at the scene of the fire.7
Defendant Skardinski never left CID on January 17, 2009 to go to the scene
6

Plaintiff’s brother, Francis Waldron, is also known as Junior.

7

Plaintiff responds to this statement as follows, without any citation to the record:
“Plaintiff admits Riggs wrongly and falsely identified the [J]eep, denies that the [J]eep
was at Rowland [S]treet just prior to the fire as alleged by the Riggs[es], admits she
wrongly identified Anthony, and denies that Anthony was at Rowland Street shortly
before the fire.” Pl.’s Resp. to Defs.’ SOMF, ¶ 14, Dkt. No. 55-3. As this is not a proper
response to City Defendants’ statement, nor does it contain a specific citation to the
record where a factual issue may be found, the court deems this statement of fact
admitted.
8

of the fire at 203 Rowland Street. Skardinski was assigned to, and did, take the
statement of Carmel Riggs at CID that evening. Skardinski later signed Plaintiff’s
arrest report at 11:30 p.m. Skardinski testified that the probable cause
determination was based on (1) Carmel’s identification of Anthony and the Jeep
during the traffic stop, (2) the fire department’s determination at 203 Rowland
Street that some accelerant started the fire; and (3) test results indicating
accelerants on all three suspects. See Dep. of Thomas Skardinski, Nov. 21, 2011,
at 42-43, Dkt. No. 50-19.
Defendant Lamberton also never left CID on January 17, 2009 to go to the
scene of the fire at 203 Rowland Street. Lamberton’s involvement in the arson
investigation that evening was to interview Danielle Riggs. He conducted a photo
array procedure with Danielle, during which she identified Anthony Waldron,
Francis Waldron and Maurice Waldron as being present at 203 Rowland Street at
5:45 p.m. that evening. Danielle’s statement to Lamberton indicates that at
approximately 4:30 p.m. that evening, she “saw one of the Waldr[o]n girls park
her Jeep in front of their residence” and that the Jeep was still parked there around
5:45 p.m. Ex. C-2 to SOMF.8
According to a fire investigation report submitted by Lieutenant Tony
Morgan, a fire investigator for the City of Syracuse Fire Department, Lt. Morgan
8

Plaintiff denies this statement, again without citation to the record. Plaintiff
correctly points out that Danielle’s statement to Lamberton does not indicate that “she
knew the Jeep” belonged to one of the daughters of the owner of 203 Rowland Street as is
presented by City Defendants’ Statement of Material Fact, Paragraph 20. The court,
accordingly, included the exact language from Danielle’s statement. Plaintiff goes on to
dispute the truth of Danielle’s statement, referring, without specific citation, to Danielle’s
deposition wherein she allegedly “backed away” from her statement to Lamberton.
Whether, in fact, Danielle later “backed away” from the statement she gave to police on
January 17, 2009 is not material to the issues presented by the pending motion for
summary judgment, and therefore need not be considered.
9

was “requested by CID detectives to process the clothing of three suspects that
were being detained for questioning” regarding the fire at 203 Rowland Street.
See Ex. D to SOMF. Morgan reports receiving a “positive reading from a [G]race
hydrocarbon detector” on the suspects’ clothing, as well as under each suspects’
fingernails. See id. Another fire investigator for the Syracuse Fire Department,
Kenneth Heffernan, testified that he took readings of the clothing of the three
suspects with a Grace hydrocarbon detector and that he received a positive reading
on each item. See Dep. of Kenneth Heffernan, May 16, 2012, at 6, 12, Dkt. No.
50-21.9 Plaintiff denies, again without any citation to the record, that a positive
reading was received from her clothing. The Court’s review of Plaintiff’s
attorney’s affidavit reveals his assertion that only her socks and sneakers received
a positive reading at CID on the evening of January 17, 2009, not her “clothing”
and therefore, according to Plaintiff’s counsel, “it stands to reason that there was
no positive reading obtained on any of the clothing of [Plaintiff] when Heffernan
tested the items that night!” See Aff. of B. Brooks Benson (“Benson Aff.”), Aug.
27, 2012, ¶¶ 38-39, Dkt. No. 56. The court will therefore only deem admitted the
statement that a positive reading was received on Plaintiff’s socks and sneakers at
CID on the evening of January 17, 2009.
At 11:30 p.m. on January 17, 2009, Skardinski arrested Plaintiff for third
degree arson and first degree reckless endangerment. Lamberton thereafter filed
the felony complaint against Plaintiff in Criminal Court for the City of Syracuse.
Plaintiff had no contact with any of the individually named City Defendants
prior to January 17, 2009, and has had no contact with them since that day.
9

Heffernan also explained that a Grace hydrocarbon detector is an instrument,
manufactured by Grace Industries, that is used to identify the potential presence of an
ignitable liquid. See Dep. of Kenneth Heffernan, May 16, 2012, at 9, Dkt. No. 50-21.
10

On July 13, 2009, the charges against Plaintiff were dismissed due to lack
of evidence, without opposition by the Onondaga County District Attorney’s
Office.
Plaintiff filed a notice of claim with the City of Syracuse on October 13,
2009.
V. Discussion
Initially, the court notes, and the parties agree, that Plaintiff’s New York
common law claims for false arrest, detention and imprisonment and intentional
infliction of emotional distress are time-barred, as Plaintiff filed her notice of
claim more than ninety days after these claims arose. See N.Y. GEN. MUN. LAW
§§ 50-e, 50-i (McKinney’s 2010). Accordingly, the City Defendants’ motion for
summary judgment regarding those claims is granted.
Also, the court is constrained to acknowledge Plaintiff’s specious argument
that the facts underlying her intentional infliction of emotional distress claim
against defendant Lynch equally support a § 1983 claim against him for the
violation of her right to substantive due process under the Fourteenth Amendment,
which is somehow encompassed in her “first federal law cause of action.” Aff. of
B. Brooks Benson, Aug. 27, 2012, ¶ 48, Dkt. No. 56. Nowhere in Plaintiff’s
amended complaint, however, does she allege such a claim. In fact, the words,
“due process” do not appear, even once, in her pleading. Moreover, as Plaintiff’s
counsel is well aware, this court clearly identified the claims that were left to be
adjudicated after deciding the pre-discovery motions in this case. See Dkt. No.
30. Absent from this court’s MDO regarding those motions is any mention of a
substantive due process claim. Because Plaintiff’s argument that such a claim
exists is unsupported, the court will not address the issue further.

11

B. False Arrest/Detention/Imprisonment
A claim for false arrest, detention or imprisonment is evaluated pursuant to
the Fourth Amendment right to be free from unreasonable searches and seizures.
See Smith v. City of New York, 388 F. Supp. 2d 179, 184 (S.D.N.Y. 2005) (citing
Hygh v. Jacobs, 961 F.2d 359, 366 (2d Cir. 1992)). The elements of such a claim
are that “(1) the defendant intentionally confined the plaintiff; (2) the plaintiff was
aware of the confinement; (3) the plaintiff did not consent to the confinement; and
(4) the confinement was not otherwise privileged.” Id. (citing Bernard v. United
States, 25 F.3d 98, 102 (2d Cir. 1994). “The existence of probable cause to arrest
constitutes justification and is a complete defense to an action for false arrest[.]”
Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996) (internal citation and quotation
omitted). “Probable cause to arrest a person exists if the law enforcement official,
on the basis of the totality of the circumstances, has sufficient knowledge or
reasonably trustworthy information to justify a person of reasonable caution in
believing that an offense has been or is being committed by the person to be
arrested.” United States v. Valentine, 539 F.3d 88, 93 (2d Cir. 2008).
Here, there is no dispute as to the first three elements of Plaintiff’s Fourth
Amendment claim for false arrest. What is disputed is the fourth element, whether
Plaintiff’s confinement was otherwise privileged. City Defendants argue that
there was probable cause to arrest Plaintiff, and therefore, they are entitled to
summary judgment on this claim. Plaintiff counters that there are questions of fact
for a jury to decide regarding whether the defendant officers were aware of
exculpatory evidence that would have negated probable cause, and therefore, the
City Defendants’ motion for summary judgment on Plaintiff’s false arrest claim
should be denied.

12

Plaintiff was arrested for third degree arson and first degree reckless
endangerment. Under New York Penal Law, “[a] person is guilty of arson in the
third degree when [s]he intentionally damages a building or motor vehicle by
starting a fire or causing an explosion[,]” N.Y. PENAL LAW § 150.10 (McKinney
2012), and “[a] person is guilty of reckless endangerment in the first degree when,
under circumstances evincing a depraved indifference to human life, he recklessly
engages in conduct which creates a grave risk of death to another person[,]” N.Y.
PENAL LAW § 120.25 (McKinney 2012).
Under New York law, an arrest without a warrant is presumptively
unlawful. See Curry v. City of Syracuse, 316 F.3d 324, 335 (2d Cir. 2003). Thus,
a defendant to a claim of false arrest where, as here, the arrest was made without a
warrant, has the burden of proving compliance with New York Criminal
Procedure Law § 140.10 (McKinney 2010), which requires “reasonable cause,”
the equivalent of probable cause. Raysor v. Port Authority of New York and New
Jersey, 768 F.2d 34, 40 (2d Cir. 1985). Pursuant to § 140.10, a person may be
arrested for a crime without a warrant where a police officer “has reasonable cause
to believe such person has committed such crime, whether in his presence or
otherwise[,]” N.Y. CRIM. PROC. LAW § 140.10(1)(b) (McKinney 2010). Under
New York law, “reasonable cause” is defined as follows:
Reasonable cause to believe that a person has committed
an offense exists when evidence or information which
appears reliable discloses facts or circumstances which are
collectively of such weight and persuasiveness as to
convince a person of ordinary intelligence, judgment and
experience that it is reasonably likely that such offense was
committed and that such person committed it. Except as
otherwise provided . . ., such apparently reliable evidence
may include or consist of hearsay.
13

N.Y. CRIM. PROC. LAW § 70.10(2).
Whether probable cause existed may be determined as a matter of law
where “there is no dispute as to the pertinent events and the knowledge of the
officers.” See Weyant, 101 F.3d at 852. “[C]ourts must consider those facts
available to the officer at the time of the arrest and immediately before it.” Panetta
v. Crowley, 460 F.3d 388, 395 (2d Cir. 2006) (quoting Caldarola v. Calabrese, 298
F.3d 156, 162 (2d Cir. 2002)). “[P]robable cause is a fluid concept – turning on
the assessment of probabilities in particular factual contexts – not readily, or even
usefully, reduced to a neat set of legal rules.” Id. While the Court of Appeals for
the Second Circuit has observed that “[o]nce a police officer has a reasonable
basis for believing there is probable cause, he is not required to explore and
eliminate every theoretically plausible claim of innocence before making an
arrest[,]” Curley v. Village of Suffern, 268 F.3d 65, 70 (2d Cir. 2001) (quoting
Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 128 (2d Cir. 1997)), at the same
time, the officer “may not disregard plainly exculpatory evidence[,]” Panetta, 460
F.3d at 395. Exculpatory evidence is evidence that eliminates culpability. See
Jocks v. Tavernier, 316 F.3d 128, 135 (2d Cir. 2003). The existence of
exculpatory evidence should thus negate probable cause. See id. However,
probable cause may still exist where police do not know the validity of an
exculpatory defense. See id.
It is true that “information provided by an ‘identified bystander with no
apparent motive to falsify’ has ‘a peculiar likelihood of accuracy[,]’” Panetta, 460
F.3d at 395 (quoting Caldarola, 298 F.3d at 163), and thus supports a finding of
probable cause. However, if “the circumstances raise doubt as to the person’s
veracity,” any such information gleaned from the witness may not form the basis

14

of a probable cause determination. See Curley, 268 F.3d at 70 (citing Singer v.
Fulton County Sheriff, 63 F.3d 110, 119 (2d Cir. 1995)). But even doubts about a
witness’s veracity will not completely derail the presence of probable cause. See
Jocks, 316 F.3d at 138 (false information will not dissipate probable cause);
Curley, 268 F.3d at 70 (does not matter if the investigation casts doubt on the basis
of arrest).
This court previously denied the City Defendants’ motion to dismiss
Plaintiff’s false arrest claim, noting that in her amended complaint, Plaintiff
alleged sufficient facts that, if proved true, could establish a lack of probable cause
for her arrest based on the existence of exculpatory evidence. Specifically,
Plaintiff alleged that the defendant officers were aware that (1) she had in her
possession a store receipt that would prove she was in Green Hills Farm market at
the time the fire broke out; (2) there was a security video that would show that she
was in Green Hills Farm market at the time the fire broke out; and (3) Plaintiff had
prior problems with one of the eyewitnesses, Carmel Riggs, which resulted in
assault charges being filed against Carmel by Plaintiff, thereby providing Carmel
with a motive to falsely identify Plaintiff. The court therefore concluded that
Plaintiff adequately pled a lack of probable cause, considering the totality of the
evidence allegedly before the City officers at the time of her arrest. See Dkt. No.
30.
Now, in opposing the City Defendants’ motion for summary judgment,
Plaintiff produces evidence, in the form of her testimony, that the City Defendants
knew of the existence of the store receipt and store video, and that they knew that
Plaintiff and Carmel Riggs had problems in the past, which resulted in Carmel
being charged with assault. Plaintiff essentially argues that the store receipt and

15

video prove that she could not have been at the scene of the fire when it broke out,
and that the previous assault against her by Carmel is evidence of the Riggses’
motivation to lie, which renders their statements to the police totally unreliable,
thus eliminating her culpability and consequently, eliminating probable cause for
her arrest.
However, the evidence, even viewed in a light most favorable to Plaintiff,
belies her characterization of it as exculpatory. First, the store receipt and video
would tend to prove only that Plaintiff was in Green Hills Farm market on January
17, 2009 at approximately 6:00 p.m. The store receipt reflects that someone,
assumed to be Plaintiff, checked out her groceries at Green Hills Farm market at
6:01:54 p.m. on January 17, 2009, and the video reflects that Plaintiff was at the
checkout area on that date between 6:02:40 p.m. and 6:05:37 p.m. While Plaintiff
alleges she was there for at least an hour prior to checking out, “the arresting
officer does not have to prove plaintiff . . . wrong before arresting [her].” Curley,
268 F.3d at 70 (citing Krause v. Bennett, 887 F.2d 362, 372 (2d Cir. 1989). “Nor
does it matter that an investigation might have cast doubt upon the basis for the
arrest.” Curley, 268 F.3d at 70 (citing Krause, 887 F.2d at 371). Moreover, the
officers had evidence, albeit in the form of the allegedly questionable eyewitness
testimony, that Plaintiff, and her vehicle, were at the scene of the fire at 5:45 p.m.,
shortly before it erupted. Consequently, even if the officers considered the store
receipt and video, the other evidence before them at the time, which would support
a conclusion that Plaintiff was at the scene of the fire at 5:45 p.m., was not
inconsistent with Plaintiff being present at Green Hills Farm market,
approximately five miles away, at approximately 6:00 p.m. that same evening.
Regarding the veracity of the eyewitnesses, Carmel and Danielle Riggs,

16

Plaintiff’s own testimony is that an altercation occurred between Plaintiff and
Carmel Riggs, not Danielle Riggs, that the altercation occurred eight years prior to
the events underlying this case, and that as a result, both Plaintiff and Carmel were
charged with assault, not just Carmel. Accordingly, even assuming the fact of the
altercation and resulting assault charge would provide Carmel with motivation to
misidentify Plaintiff’s vehicle, and would provide Danielle with motivation to
misidentify Plaintiff and her vehicle, “motivation is not a consideration in
assessing probable cause.” Singer, 63 F.3d at 119 (citing Mozzochi v. Borden,
959 F.2d 1174, 1179-1180 (2d Cir.1992)) (noting that even where circumstances
of an arrest raised questions regarding the motivation of the arresting officer and
the witnesses, probable cause still existed to arrest the plaintiff).
Here, to be sure, the evidence linking Plaintiff to the scene initially
consisted of the Riggses’ statements. Danielle Riggs reported that someone
matching Plaintiff’s description left the scene of the fire at 203 Rowland Street in
a vehicle matching the description of Plaintiff’s vehicle, at around 5:45 p.m.,
shortly before the fire erupted. Danielle Riggs also stated that someone matching
Plaintiff’s description was at 203 Rowland Street at 4:30 p.m. that evening, and a
second eyewitness, Carmel Riggs, identified Plaintiff’s Jeep as the Jeep that was
present at 203 Rowland Street. However, it is important to note that, in addition to
the eyewitness statements linking Plaintiff and her vehicle to the scene of the
crime, the evidence also reflects that the City fire department received a positive
reading for the potential presence of an ignitable liquid from Plaintiff’s shoes and
socks and from underneath her fingernails. To be sure, Plaintiff argues that she
may have gotten gas on her shoes in myriad innocent ways. However, as the
Second Circuit has made clear, “the fact that an innocent explanation may be

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consistent with the facts alleged ... does not negate probable cause ... and an
officer’s failure to investigate an arrestee’s protestation of innocence generally
does not vitiate probable cause.” Panetta, 460 F.3d at 396 (quoting United States
v. Fama, 758 F.2d 834, 838 (2d Cir. 1985) and citing Curley, 268 F.3d at 70).
Police officers are not required to look at each piece of evidence in a
vacuum. Instead, they must assess the collection of evidence as a whole to
determine whether it appears likely that a crime was committed and that the person
suspected of committing that crime did commit it. See N.Y. Crim. Proc. Law §
70.10(2). Here, the officers were presented with eyewitness testimony that would
place Plaintiff at the scene of the crime, notwithstanding Plaintiff’s evidence that
she was approximately five miles away from the scene fifteen minutes later.
While officers had information that may have created a question as to the
motivation of the eyewitnesses in providing their statements, that information cast
just as much doubt on Plaintiff’s veracity, and nonetheless, motivation is not a
proper consideration for the court is assessing probable cause. See Singer, 63 F.3d
at 119. Finally, the officers had evidence from the fire department’s investigators
that the potential of an ignitable liquid was detected underneath Plaintiff’s
fingernails and on her shoes and socks. Here, there is no dispute as to the relevant
events and the officers’ knowledge before making an arrest. Considering the
whole of the officers’ knowledge, they had probable cause to arrest Plaintiff as a
matter of law.
Accordingly, City Defendants’ motion for summary judgment is granted as
to Plaintiff’s Fourth Amendment claim for false arrest.
C. Malicious Prosecution
City Defendants also seek summary judgment in their favor on Plaintiff’s

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malicious prosecution claim against them.
The elements of a claim for malicious prosecution, whether brought under §
1983 or New York common law, are as follows: “(1) the initiation or continuation
of a criminal proceeding against plaintiff; (2) termination of the proceeding in
plaintiff’s favor; (3) lack of probable cause for commencing the proceeding; and
(4) actual malice as a motivation for defendant’s actions.” Manganiello v. City of
New York, 612 F.3d 149, 161 (2d Cir. 2010).
City Defendants argue that they had probable cause to commence the
criminal proceeding against Plaintiff and that consequently, there was no actual
malice associated with same. Therefore, City Defendants argue, they are entitled
to summary judgment on Plaintiff’s malicious prosecution claim. Plaintiff
counters that even where an officer had probable cause to make an arrest, the
officer will be liable where he later discovers exculpatory evidence prior to the
formal charge by the prosecutor or grand jury. Plaintiff’s argument regarding
exculpatory evidence mirrors that which she made in opposition to summary
judgment regarding her false arrest claim. As the court has already considered,
and disposed of, those arguments, Plaintiff’s opposition to summary judgment on
her malicious prosecution claim must fail as well. Accordingly, City Defendants’
motion for summary judgment is granted as to Plaintiff’s claim of malicious
prosecution.
Because Plaintiff’s final claim of failure to intervene against defendants
Milana, Henderson and Skardinski is dependent on the success of either her false
arrest or malicious prosecution claim, it too fails. Accordingly, City Defendants’
motion for summary judgment against Plaintiff is granted, dismissing the entire
action against them. For this reason, the court need not consider the parties’

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arguments regarding the City Defendants’ affirmative defense of qualified
immunity.
VI. Conclusion
In accordance with the foregoing discussion, it is hereby
ORDERED that the motion for summary judgment by defendants, James
Milana, Scott Henderson, Sean Lynch, Thomas Skardinski, Detective Lamberton,
and City of Syracuse, New York against Plaintiff, Debbie M. Waldron, see Dkt.
No. 50, is GRANTED in its entirety, and it is further
ORDERED that the Clerk of the Court shall terminate the following as
defendants to this action: James Milana, Scott Henderson, Sean Lynch, Thomas
Skardinski, Detective Lamberton, and City of Syracuse.

IT IS SO ORDERED.

DATED:

September 10, 2012
Syracuse, New York

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