Burgess v. DeJoseph et al
MEMORANDUM-DECISION AND ORDER granting 28 Motion for Summary Judgment; denying 38 Motion to Amend/Correct: The Court hereby ORDERS that the Defendants' motion for summary judgment is GRANTED; and the Court furtherORDERS that Plaintiff's cross-motion for leave to amend is DENIED; and the Court further ORDERS that the Clerk of the Court shall enter judgment in Defendants' favor and close this case. Signed by U.S. District Judge Mae A. D'Agostino on 3/21/17. (ban)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
FRED BURGESS, II,
CHRISTOPHER DEJOSEPH, individually and in
his official capacity, ROBERT TEATER, individually
and in his official capacity, FRED LAMBERTON,
individually and in his official capacity, Syracuse
Police Chief FRANK L. FOWLER, individually and
in his official capacity, and the CITY OF SYRACUSE,
LAW OFFICE OF ZACHARY C. OREN
401 Rutger Street
Utica, New York 13501
Attorneys for Plaintiff
ZACHARY C. OREN, ESQ.
CITY OF SYRACUSE CORPORATION
233 East Washington Street
Room 300 City Hall
Syracuse, New York 13202
Attorneys for Defendants
TODD M. LONG, ESQ.
Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
Plaintiff commenced this action pursuant to 42 U.S.C. § 1983 alleging that several
individuals and the City of Syracuse violated his constitutional rights in connection with his
January 1, 2013 arrest and subsequent prosecution. See Dkt. No. 1. Defendants filed an answer
to the complaint on January 23, 2015. See Dkt. No. 9.
Currently before the Court are Defendants' motion for summary judgment and Plaintiff's
cross-motion for leave to file an amended complaint. See Dkt. No. 28-36; Dkt. No. 38 at 19 n.18.
On October 5, 2016, Plaintiff filed a memorandum of law in opposition to Defendants' motion and
cross-moved for leave to file an amended complaint. See Dkt. No. 38. On November 21, 2016,
Defendants filed a reply memorandum of law in further support of their motion. See Dkt. No. 514.
On December 31, 2012, at 11:23 p.m., multiple officers of the Syracuse Police
Department ("SPD") responded to the fatal shooting of David A. Jones, II at 744 West Onondaga
Street in Syracuse, New York. See Dkt. No. 28-35 at ¶¶ 1-2. When SPD officers arrived at the
scene, they observed many dozens of people standing around the area. See id. at ¶ 3. SPD
officers at the scene interviewed several potential witnesses who gave descriptions of the suspect.
See, e.g., Dkt. No. 1 at ¶¶ 24, 38. One such officer, Officer John Nye, identified a male at the
scene named Jaquan Pridgen. See Dkt. No. 28-35 at ¶ 5. Pridgen informed Officer Nye that he
was an eyewitness to the murder, see id. at ¶ 6, and that the perpetrator was "a black male
approximately 6'2" weighing 200lbs with facial hair" who "was wearing an orange champion
hooded sweatshirt." Dkt. No. 28-2 at 2; see also Dkt. No. 28-35 at ¶ 34. Similarly, Pridgen
informed Officer Joseph Taylor that he observed a "20's black male approx. 6'02" tall, 200 lbs,
wearing a [sic] orange 'Champion' hooded sweatshirt." Dkt. No. 41-1 at 7. SPD Detective Tara
Galanaugh arrived at the scene at 11:45 p.m. and located Pridgen as well as another eyewitness:
Pridgen's sister, Reonnia Grady. See Dkt. No. 28-35 at ¶ 7. Pridgen and Grady were then
transported to SPD's Criminal Investigations Division where Detective Brian Williams
interviewed Pridgen and Detective Matthew Arduini interviewed Grady. See id. at ¶ 8.
At the station, Pridgen described the perpetrator to Detective Williams as "approximately
25-30 years old, 5'07" – 6'00" tall, wearing a dark orange/mustard orange sweatshirt with a large
'C' on the front, and possibly wearing a half facemask or having some type of facial hair." Id. at ¶
33. According to a narrative supplement prepared by Detective Williams, Pridgen "said that he
does not believe that he would be able to identify the black male suspect if he saw pictures" but
"was willing to try." Dkt. No. 28-2 at 7-8. During her interview with Detective Arduini, Grady
described the suspect as "a dark skinned black male wearing a mask over the lower portion of his
face" and a "'goldish/yellow' hooded sweatshirt with a big 'C' on the front side of the shirt" who
was approximately 5'07" and "chunky" but not "fat." Dkt. No. 28-35 at ¶ 41. According to a
narrative supplement prepared by Detective Arduini, Grady "was unsure if she would be able to
identify the suspect, but added that she was will trying to try and would further cooperate with the
investigation." Dkt. No. 28-2 at 19. After their interviews, Pridgen and Grady were transported
home by the police. See Dkt. No. 1 at ¶ 34.
At approximately 9 a.m. on January 1, 2013, Pridgen and Grady were transported by SPD
officers back to the station. See id. at ¶ 35. There, Detective Christopher DeJoseph interviewed
and secured a statement from Pridgen, and Detective Fred Lamberton interviewed and secured a
statement from Grady. See Dkt. No. 28-35 at ¶ 42. In his sworn statement, Pridgen claimed that
he "clearly saw [the suspect's] face" and described the suspect as "dark skinned with a goatee or
beard." Dkt. No. 28-7 at 1. Pridgen also noted that "[a]fter the whole thing happened some
people were saying the guy had a mask on, but I don't remember that." Id. Defendant DeJoseph
then showed Pridgen a photo array of six photographs. See Dkt. No. 28-35 at ¶ 47. Pridgen
positively identified Plaintiff as the individual who shot Jones. See id. at ¶ 48. In his sworn
statement, Pridgen stated that he "recognized" Plaintiff "right away" as the suspect after seeing
the photos. Dkt. No. 28-7 at 2. In her sworn statement, Grady attested that she "did see [the
suspect's] face" and described the shooter as "a black male, in his early thirties, 5'08" tall with a
medium build . . . wearing a [sic] orange in color hooded zip up sweatshirt" which "had a large 'C'
across the chest area." Dkt. No. 28-35 at ¶ 53. According to Defendant Lamberton's narrative
supplement, Grady "was certain that if given the opportunity she would be able to identify the
suspect." Dkt. No. 28-4 at 4. Defendant Lamberton then showed Grady a photo array of six
photographs. See Dkt. No. 28-35 at ¶ 55. According to her sworn statement, Grady "immediately
identified" Plaintiff as the person who shot Jones after seeing the photos. Dkt. No. 28-6 at 2.
At 1:14 p.m. that same day, Officer Robert Teater and Sergeant John Savage brought
Plaintiff in for questioning, see Dkt. No. 28-35 at ¶¶ 60, 68, where he was interviewed by
Defendants DeJoseph and Lamberton as well as Detectives Rory Gilhooley and Daniel Walsh, see
id. at ¶ 71. Plaintiff was then arrested and charged with Murder in the First Degree, Attempted
Robbery in the First Degree, and Criminal Possession of a Weapon in the Second Degree. See id.
at ¶¶ 81-82. The arrest report identifies Defendant DeJoseph as the arresting officer and
Defendant Lamberton as the assisting officer. See Dkt. No. 28-3 at 1. Also according to the
arrest report, Plaintiff was 5'7", weighed 180 pounds, and was 34 years old as of January 1, 2013.
See id. Detective VanSlyke signed the felony complaint related to the murder and weapon
possession charges, and Detective Von Knoblauch signed the felony complaint related to the
robbery charge. See Dkt. No. 28-35 at ¶ 84. The felony complaints were received on January 2,
2013, see id., and Plaintiff was arraigned in Syracuse City Court on that same day, at which time
he plead not guilty to all charges, see Dkt. No. 28-22 at 16.
On January 4, 2013, grand jury proceedings were held at the direction of Chief ADA
Matthew J. Doran. See Dkt. No. 28-35 at ¶ 93. The grand jury indicted Plaintiff on all counts.
See id. at ¶¶ 99-100. On April 25, 2013, the Honorable Thomas J. Miller presided over a
Wade/Huntley hearing concerning Plaintiff's challenge to the admissibility of the eyewitness
identifications of Pridgen and Grady. See id. at ¶ 108. Judge Miller found "that the People have
met their burden of showing the reasonableness of the police conduct and absence of
suggestiveness of the identification procedures." Dkt. No. 28-22 at 12-13. By decision dated July
15, 2013, Judge Miller denied a request by Plaintiff to dismiss or reduce the indictment, finding
that "the evidence presented to the Grand Jury was legally sufficient to support the offenses
contained in the indictment, the proceedings were not defective and proper legal instructions were
given to the Grand Jury." Id. at 6. On October 31, 2013, Plaintiff was acquitted by a jury on all
counts related to the murder of Mr. Jones. See Dkt. No. 28-35 at ¶ 116.
Standard of review
A court may grant a motion for summary judgment only if it determines that there is no
genuine issue of material fact to be tried and that the facts as to which there is no such issue
warrant judgment for the movant as a matter of law. See Chambers v. TRM Copy Ctrs. Corp., 43
F.3d 29, 36 (2d Cir. 1994). When analyzing a summary judgment motion, the court "'cannot try
issues of fact; it can only determine whether there are issues to be tried.'" Id. at 36-37 (quotation
omitted). Moreover, it is well-settled that a party opposing a motion for summary judgment may
not simply rely on the assertions in its pleading. See Celotex Corp. v. Catrett, 477 U.S. 317, 324
(1986) (quoting Fed. R. Civ. P. 56(c), (e)).
In assessing the record to determine whether any such issues of material fact exist, the
court is required to resolve all ambiguities and draw all reasonable inferences in favor of the
nonmoving party. See Chambers, 43 F.3d at 36 (citing Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986)) (additional citations omitted). Where the non-movant either does not respond to
the motion or fails to dispute the movant's statement of material facts, the court may not rely
solely on the moving party's Rule 56.1 statement; rather, the court must be satisfied that the
citations to evidence in the record support the movant's assertions. See Giannullo v. City of New
York, 322 F.3d 139, 143 n.5 (2d Cir. 2003) (holding that not verifying in the record the assertions
in the motion for summary judgment "would derogate the truth-finding functions of the judicial
process by substituting convenience for facts").
"A § 1983 claim for false arrest, resting on the Fourth Amendment right of an individual
to be free from unreasonable seizures, including arrest without probable cause, . . . is substantially
the same as a claim for false arrest under New York law." Weyant v. Okst, 101 F.3d 845, 852 (2d
Cir. 1996) (citations omitted). Under New York law, the elements for a claim for false arrest are
as follows: "'(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)
(quoting Broughton v. State, 37 N.Y.2d 451, 456 (1975)); Bernard v. United States, 25 F.3d 98,
102 (2d Cir. 1994).
A warrantless arrest is "presumptively unlawful." See Raysor v. Port Auth. of New York
and New Jersey, 768 F.2d 34, 40 (2d Cir. 1985) (stating that "the plaintiff need not prove either
malice or want of probable cause"); see also Jenkins v. City of New York, 478 F.3d 76, 88 (2d Cir.
2007). However, "[t]here can be no federal civil rights claim for false arrest where the arresting
officer had probable cause." Singer, 63 F.3d at 118 (citing Bernard, 25 F.3d at 102).
Accordingly, the presumption that a warrantless arrest is unlawful can be rebutted by the
defendant if it is established that there was probable cause for the arrest. See Jenkins, 478 F.3d at
88. The existence of probable cause is a complete defense, for which the defendant bears the
burden of proof. See Dickerson v. Napolitano, 604 F.3d 732, 751 (2d Cir. 2010); Weyant, 101
F.3d at 852 (citing Bernard, 25 F.3d at 102).
There is "probable cause to arrest . . . when the officers have knowledge or reasonably
trustworthy information of facts and circumstances that are sufficient to warrant a person of
reasonable caution in the belief that the person to be arrested has committed or is committing a
crime." Weyant, 101 F.3d at 852 (citations omitted). The standard is "a practical, nontechnical
conception that deals with the factual and practical considerations of everyday life on which
reasonable and prudent men, not legal technicians, act." United States v. Delossantos, 536 F.3d
155, 159 (2d Cir. 2008) (internal quotation marks omitted) (quoting Maryland v. Pringle, 540
U.S. 366, 370 (2003)).
"[T]he probable cause inquiry is based upon whether the facts known by the arresting
officer at the time of the arrest objectively provided probable cause to arrest." Jaegly v. Couch,
439 F.3d 149, 153 (2d Cir. 2006) (citing Devenpeck v. Alford, 543 U.S. 146, 153 (2004)). The
significance of those facts can be enhanced or diminished by the surrounding circumstances of the
arrest, see Jenkins, 478 F.3d at 90, because the standard is fluid and contextual, see Delossantos,
536 F.3d at 159. The circumstances "must be considered from the perspective of a reasonable
police officer in light of his training and experience." Id. Whether there was probable cause is a
question that can be determined as a matter of law on summary judgment "if there is no dispute as
to the pertinent events and the knowledge of the officers." Weyant, 101 F.3d at 852; see also
Jenkins, 478 F.3d at 88. Summary judgment should be granted in favor of the defendants where
the facts, construed in favor of the plaintiff, establish that the officer's probable cause
determination was objectively reasonable. See Jenkins, 478 F.3d at 88.
"Absent circumstances that cast doubt on the reliability of an identification, such as an
unduly suggestive procedure, 'positive photo identification by an eyewitness is normally
sufficient to establish probable cause to arrest.'" Williams v. City of New York, No. 14–CV–7158,
2016 WL 3194369, *4 (S.D.N.Y. June 7, 2016) (collecting cases) (quoting Celestin v. City of New
York, 581 F. Supp. 2d 420, 431 (E.D.N.Y. 2008)). "'Under New York law an identified citizen
informant is presumed to be reliable.'" Stansbury v. Wertman, 721 F.3d 84, 91 n.5 (2d Cir. 2013)
(quoting Caldarola v. Calabrese, 298 F.3d 156, 165 (2d Cir. 2002)). "The same rule applies to
identifications of the perpetrator from photographic arrays." Id.
Drawing all reasonable inferences in Plaintiff's favor, the Court finds that there was
probable cause to arrest Plaintiff. Pridgen and Grady independently selected Plaintiff from a
photo array as the individual who shot Jones. See Dkt. No. 28-35 at ¶¶ 48, 56. Although Plaintiff
does not contend that the photo array was suggestive, Plaintiff argues that the following
circumstances cast doubt on Pridgen's and Grady's reliability: the two eyewitnesses (1) "upon
being re-interviewed gave materially inconsistent statements," (2) were "contaminated" at the
time they identified Plaintiff in the photo array because they were allowed to return home
together after Detective Williams interviewed Pridgen and Detective Arduini interviewed Grady
in the early morning of January 1, 2013, and (3) gave testimony "materially inconsistent . . . with
other eyewitness testimony." Dkt. No. 38 at 7, 10.
Plaintiff argues that Defendants should have questioned Grady's veracity because she told
Detective Arduini that Plaintiff was "wearing a mask over the lower portion of his face" and that
she "was unsure if she would be able to identify the suspect, but added that she was willing to
try," Dkt. No. 28-2 at 19, yet later indicated to Defendant Lamberton that she was "certain that if
given the opportunity she would be able to identify the suspect," Dkt. No. 28-4 at 4. However,
there is no question of material fact that prior to Plaintiff's arrest on January 1, 2013, Defendants
were not aware of the statements concerning Grady contained in Detective Arduini's report.1 At
his deposition, Defendant DeJoseph testified that he "hadn't reviewed anyone else's supplemental
narratives by the end of the week," i.e., by January 4, 2013, and that nobody had asked him to
reconcile the reports. Dkt. No. 28-30 at 46-47. Detective Lamberton testified at his deposition
that he "[n]ever did" read anyone else's narrative supplement except for one of Detective
DeJoseph's and that he had not talked to the officers who had previously interviewed Pridgen and
Grady. Dkt. No. 28-31 at 21; see also id. at 13. Similarly, at the Wade/Huntley hearing held on
April 25, 2013, Defendant Lamberton testified that he was not aware that Grady had told
Detective Arduini that she was unsure whether she could identify the suspect. See Dkt. No. 28-20
at 48. Therefore, the alleged inconsistencies are irrelevant because only information known to the
arresting officers at the time of the arrest can affect the probable cause determination. See
O'Brien v. City of Yonkers, No. 07–CV–3974, 2008 WL 9355521, *8 (S.D.N.Y. Dec. 9, 2008),
report and recommendation adopted, 2013 WL 1234966 (S.D.N.Y. Mar. 22, 2013) ("Although
conflicting accounts of the robbery and the suspect are memorialized in several police
memoranda, there is no evidence in the record that suggests that these inconsistencies were
Plaintiff contends that Defendants Lamberton and DeJoseph must have been "well aware
of the height inconsistency reported by [ ] Pridgen, originally reporting the shooter height to be 6
foot 2 inches" because Lamberton indicated to Plaintiff during Plaintiff's interrogation that some
witnesses had described the suspect as six feet tall. Dkt. No. 38 at 11; see also Dkt. No. 28-16 at
213-14. Even assuming this is sufficient to raise a factual dispute as to whether Defendants
Lamberton and DeJoseph were aware prior to the arrest that Pridgen had claimed the suspect was
6'02", it does not raise a question of fact as to whether Defendants Lamberton and DeJoseph
reviewed Detective Arduini's report prior to arresting Plaintiff.
presented to Defendants McCabe and Skully at the time they arrested Plaintiff or were known to
Defendants McCabe and Skully when they interviewed [the witness]. . . . Plaintiff's argument that
the mere existence of these conflicts in the abstract required Defendants McCabe and Skully to
conduct a further investigation is contrary to well-established Second Circuit case law").
Moreover, even assuming Defendants Lamberton and DeJoseph were aware prior to the arrest
that Pridgen had described the suspect as 6'02", it was not unreasonable under the circumstances
for Defendants to take Pridgen's independent selection of Plaintiff's photograph into account. See
Newton v. City of New York, 640 F. Supp. 2d 426, 446 (S.D.N.Y. 2009) ("The fact that V.J. had
been drinking on the night of the incident does damage the reliability of her identification of
Newton and the reasonableness of defendants' having relied on her selection of Newton's photo
from the photo array. Had defendants relied on V.J.'s selection alone, there would be a more
legitimate question as to the existence of probable cause. But defendants showed another photo
array to Mrs. Gonzalez and got a consistent result. Based on the totality of facts known to
defendants, there is no genuine dispute of material fact that defendants had probable cause to
arrest Newton prior to the lineup").
The Court also rejects Plaintiff's claim that Grady and Pridgen colluded to identify
Plaintiff. Where, as here, there are no credible allegations that the witnesses personally knew the
suspect, had ever seen the suspect prior to identifying him, or had a hidden motive, courts will not
presume that the witnesses' independent photo identifications were contaminated merely because
they had the opportunity to communicate. See Vasquez v. City of New York, No. 14–CV–491,
2014 WL 5810111, *10 (S.D.N.Y. Nov. 6, 2014) (rejecting the argument that a witness's photo
identification "'was tainted because she could not independently identify [the alleged perpetrator]
as the person who committed the crime'" and "'was in fact relying on the accusation of her
boyfriend'" where the plaintiff failed to "allege that [the witness] had ever encountered or
otherwise seen [the alleged perpetrator] prior to the photo array"); see also Drummon v. Castro,
522 F. Supp. 2d 667, 675 (S.D.N.Y. 2007) (finding probable cause to arrest where "the witness
maintained in all his statements that he did not know the shooter" and there was no "evidence of a
prior relationship between the witness and Plaintiff that would tend to suggest a hidden motive on
the part of the witness or cast doubt on the witness's veracity"). To the extent Plaintiff argues
Grady and Pridgen had a motive to lie to protect their neighbor Quantell Young—whom Plaintiff
contends the Court should infer to be the perpetrator for purposes of summary judgment, see Dkt.
No. 38 at 13-15—and that Defendants knew Grady and Pridgen had such a motive because all
three witnesses are acquainted, the Court rejects that argument as pure conjecture.2
Finally, the fact that other witnesses gave inconsistent statements is not extraordinary and
does not undermine the probable cause established by Pridgen's and Grady's independent
identifications. See Gisondi v. Town of Harrison, 72 N.Y.2d 280, 285 (1988) ("In any
investigation the police are likely to encounter discrepancies, particularly in cases involving
eyewitness identification. These matters may impair their ability to prove guilt beyond a
reasonable doubt at trial, but they generally have little bearing at preliminary stages where the
only relevant concern is whether there is sufficient evidence to show probable cause to believe the
defendant committed the crime"); see also Radin v. City of New York, 14–CV–7347, 2016 WL
Moreover, the undisputed facts do not bear out Plaintiff's theory. For example, Plaintiff
argues that Pridgen and Young could have colluded to change Pridgen's description of the suspect
from 6'02" to a shorter height because Young is 6'02". See id. at 13-14. Although it is true
Pridgen originally described the suspect as 6'02", police records show that Pridgen identified the
suspect in the early morning hours of January 1, 2013 as approximately 5'07" to 6'00", see Dkt.
No. 28-35 at ¶ 33, before he first returned home from the police station and allegedly colluded
with Young. Similarly, Grady described the suspect as approximately 5'07" before she first
returned home from the police station. See id. at ¶ 41.
3982463, *3 (E.D.N.Y. July 22, 2016) ("Similarly, in this case, that some victims did not identify
plaintiff does not vitiate the probable cause that resulted from the identifications by Shuler and
Terzulli"); Parker v. Hogan, 09–CV–910, 2011 WL 1988070, *3 (E.D.N.Y. May 20, 2011) ("The
evidence of inconsistent descriptions of the events surrounding the murder of Blakney is neither
unusual nor troubling").
Based on the foregoing, the Court finds that Defendants had probable cause to arrest
Plaintiff. Therefore, Defendants' motion for summary judgment is granted as to counts one, three,
and five of the complaint.
"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, 63 F.3d at 116. 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 omitted).
"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).
In the present matter, the grand jury indictment creates a presumption of probable cause
because Plaintiff was indicted on each of the charges related to his arrest. See Dkt. No. 28-35 at ¶
100. Plaintiff argues that the presumption is rebutted for the following reasons: (1) Defendants
withheld exculpatory evidence from the prosecutor, see Dkt. No. 38 at 20-27; (2) Defendants
made fraudulent representations to the grand jury, see id.; and (3) evidence surfaced after
Plaintiff's arrest sufficient to dissipate probable cause, see id. at 27-32. Drawing all reasonable
inferences in Plaintiff's favor, the Court finds that Plaintiff has failed to rebut the presumption of
Plaintiff asks the Court to infer that Defendant DeJoseph intentionally suppressed
evidence by failing to provide Chief ADA Doran with the police report of Officer James O'Brien
in which Officer O'Brien noted that a witness failed to identify Plaintiff from a photo array, see
id. at 24, because the report was not part of a host of materials Chief ADA Doran provided to
Plaintiff in response to Plaintiff's request for all records, memoranda, reports, evidence,
recordings, and transcripts regarding Plaintiff's criminal matter, see Dkt. No. 28-21. As a
preliminary matter, there is no evidence that Defendant DeJoseph suppressed any evidence.
Fappiano v. City of New York, No. 01–CV–2476, 2015 WL 94190, *13 (E.D.N.Y. Jan. 7, 2015),
aff'd, 640 Fed. Appx. 115 (2d Cir. 2016) ("Likewise, the purported suppression of Photo
Showings 1 and 2 does not rebut the presumption of probable cause. As a preliminary matter,
there is no evidence that Gottlieb, as opposed to Dunbar and Sciallo, who allegedly administered
the photo showings, suppressed Photo Showings 1 or 2"). On the contrary, Defendant DeJoseph
testified to his belief that Chief ADA Doran "gets all the reports" and "would have known" about
Officer O'Brien's report. See Dkt. No. 28-30 at 71. Thus, the "[t]he most [Plaintiff] has presented
the [C]ourt is evidence of mistake of fact or possible negligence," which "cannot sustain a cause
of action for malicious prosecution." Zahrey v. City of New York, No. 98–CV–4546, 2009 WL
54495, *17, *17 n.33 (S.D.N.Y. Jan. 7, 2009) (finding that the presumption of probable cause was
not rebutted despite allegations that "the defendants intentionally withheld from [the prosecutor]
the inconsistent statements of witnesses"); Stukes v. City of New York, No. 13–CV–6166, 2015
WL 1246542, *7 (E.D.N.Y. Mar. 17, 2015) ("[P]ossible negligence in failing to . . . forward
exculpatory evidence is insufficient to rebut the presumption created by the indictment"); see also
Savino, 331 F.3d at 74 (finding the presumption of probable cause unrebutted where the plaintiff
failed to present evidence that exculpatory information was "intentionally withheld" from
prosecutors). Moreover, the omission of Officer O'Brien's report "does not rise to the level of
egregious deviations from statutory requirements or accepted practices required to overcome the
grand jury presumption," O'Brien, 2013 WL 1234966, at *15, because the fact that some
witnesses "did not identify [P]laintiff does not vitiate the probable cause that resulted from the
identifications by [Pridgen and Grady]," Radin, 2016 WL 3982463, at *3.
Plaintiff also argues that the presumption of probable cause is rebutted because
Defendants failed to testify at the grand jury to certain exculpatory evidence, including
inconsistencies in Pridgen's statements, inconsistencies between the statements of Pridgen and
Grady and those of other witnesses, and Plaintiff's alibi. See Dkt. No. 1 at ¶¶ 75-129. The Court
rejects this argument because it was the prosecutor, not the Defendant officers, "who had the
discretion and authority to decide what evidence to present to the grand jury," and he "was under
no duty to present every item of arguably exculpatory evidence in seeking an indictment."
Savino, 331 F.3d at 75; see also Daly v. Ragona, No. 11–CV–3836, 2013 WL 3428185, *7
(E.D.N.Y. July 9, 2013) ("Accordingly, even if the Court assumes that the evidence . . . was also
withheld from the Grand Jury proceedings, the decision not to present such information to the
Grand Jury does not amount to conduct undertaken in bad faith and, therefore, does not rebut the
presumption of probable cause created by the indictment. In any event, the only defendants in
this case are police officers who cannot be held liable for any independent decisions by the
prosecutors"). More fundamentally, Plaintiff cannot use Defendants' grand jury testimony to
overcome the presumption of probable cause. See Brown v. City of New York, No. 08–CV–5095,
2013 WL 1338785, *4 n.3 (E.D.N.Y. Apr. 1, 2013) (finding that a "plaintiff cannot . . . use [an
officer's] grand jury testimony to rebut the presumption of probable cause") (citing Rehberg v.
Paulk, 566 U.S. 356, 369 (2012)); see also Peterson v. Regina, 935 F. Supp. 2d 628, 643
(S.D.N.Y. 2013) ("Even if Peterson had been able to marshal evidence sufficient to show that
Officer Regina lied in the grand jury, he would still fail to make out a claim for malicious
prosecution because police officers are entitled to absolute immunity for their testimony before
the grand jury") (citing Rehberg, 566 U.S. at 375).
Finally, the Court rejects Plaintiff's argument based on evidence that came to light after
the initiation of the prosecution3 because such evidence was not available when Plaintiff was
arraigned on January 2, 2013. See Kanderskaya, 11 F. Supp. 3d at 436 n.1 (finding that malicious
prosecution depends upon whether probable cause existed at the time of arraignment); see also
Specifically, Plaintiff contends that (1) an SPD officer received exculpatory security
video footage on January 4, 2013, see Dkt. No. 39 at ¶ 236; (2) a search of Plaintiff's phone on
January 28, 2013 revealed no connections between Plaintiff and Mr. Jones, see Dkt. No. 23-10 at
3; (3) an SPD officer processed Mr. Jones's vehicle for fingerprints on January 9, 2013, which
resulted in the issuance of a report on October 18, 2013 finding that no prints matched Plaintiff's,
see Dkt. No. 39 at ¶¶ 242-47; (4) lab reports dated April 15, 2013 and October 15, 2013 revealed
that no blood was found on any of Plaintiff's clothes, see Dkt. No. 44-2; and (5) a DNA report
issued May 5, 2013 concluded that DNA collected from Mr. Jones's left-hand fingernail scrapings
excluded Plaintiff as a possible contributor of the DNA profile, see Dkt. No. 39 at ¶¶ 256, 259.
Varela v. City of Troy, No. 10–CV–1390, 2014 WL 2176148, *5 (N.D.N.Y. May 22, 2014)
(finding that "for a malicious prosecution claim, probable cause is measured at the time of the
arraignment"). Rather, by the time such evidence came to light, it was Chief ADA Doran's
prerogative to pursue the charges. See Fappiano, 640 Fed. Appx. at 120 ("The police officer
Defendants, furthermore, are not liable for the prosecutors' decision to pursue the charges after
the [serology] results failed to link Fappiano to the crime") (citing Bernard, 25 F.3d at 104).
Further, the fact that Defendants did not locate a murder weapon or the orange hooded "C"
sweatshirt described by eyewitnesses Pridgen and Grady between the time of Plaintiff's arrest and
arraignment is not sufficient to defeat probable cause because the failure to uncover such
evidence does not establish that the charges against Plaintiff were "'groundless.'" Kinzer, 316
F.3d at 144 (quoting Lowth, 82 F.3d at 571).
For the foregoing reasons, the Court finds that Plaintiff has failed to carry his burden of
rebutting the presumption of probable cause. Therefore, Defendants' motion for summary
judgment is granted as to counts two, four, and six of the complaint.
"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).
As a preliminary matter, 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, 83-84 (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 identical Monell claims
against the City of Syracuse and Defendant Fowler in his official capacity. Therefore, the Court
finds the claim against Defendant Fowler in his official capacity is duplicative. Moreover, since
Plaintiff has failed to plausibly allege any unconstitutional conduct against the individual
Defendants, Plaintiff's municipal liability claim must 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, Defendants' motion for summary judgment is granted
as to count seven of the complaint.
Leave to amend
"Although Rule 15(a) of the Federal Rules of Civil Procedure provides that leave to
amend 'shall be freely given when justice so requires,' it is within the sound discretion of the
district court to grand or deny leave to amend. A district court has discretion to deny leave for
good reason, including futility, bad faith, undue delay, or undue prejudice to the opposing party."
McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir. 2007) (quotation and citations
In the present matter, Plaintiff seeks to add (i) four additional officers as parties for
purposes of all counts of the complaint other than Plaintiff's Monell claim and (ii) a new cause of
action for failure to intervene with Plaintiff's arrest and prosecution against all current and
proposed individual Defendants. See Dkt. No. 45-11. However, Plaintiff has failed to provide
any explanation as to why he delayed requesting leave to amend until after Defendants had filed
their motion for summary judgment—more than a year after the deadline to amend pleadings,
months after the close of discovery, and nearly two years after filing the complaint. See
McCarthy, 482 F.3d at 202 ("Plaintiffs sought to amend their complaint after an inordinate delay.
By that time, discovery had closed, defendants had filed for summary judgment, and nearly two
years had passed since the filing of the original complaint").
Moreover, it would be futile to add the proposed individuals because the Court has found
probable cause for Plaintiff's arrest and prosecution, and Plaintiff has failed to plead any facts
either establishing that the proposed defendants lacked probable cause for Plaintiff's arrest or
rebutting the presumption of probable cause to prosecute Plaintiff. See Morgan v. County of
Nassau, No. 13–CV–06524, 2017 WL 664027, *19 (E.D.N.Y. Feb. 17, 2017) ("Based on the
current record, the police had probable cause to arrest plaintiffs, and plaintiffs have not rebutted
the presumption of probable cause for their malicious prosecution claim. Plaintiffs, therefore, do
not have viable causes of action against any police officers who may have been involved in the
arrest and prosecution. Accordingly, amending the complaint to add the names of more police
officers would be futile"). It would also be futile to add a failure to intervene claim because the
Court has found that Plaintiff's underlying constitutional claims fail. See Briukhan v. City of New
York, 147 F. Supp. 3d 56, 62 (E.D.N.Y. 2015) ("His failure to intervene claim, premised on
officer Fesinstine's failure to interrupt alleged constitutional violations, is derivative of the
underlying claims of unlawful stop, false arrest, fabrication of evidence, and malicious
prosecution. Because his underlying claims fail, so does failure to intervene").
For the foregoing reasons, Defendants' cross-motion for leave to amend is denied.
After carefully considering the entire record in this matter, the parties' submissions and
the applicable law, and for the above-stated reasons, the Court hereby
ORDERS that the Defendants' motion for summary judgment is GRANTED; and the
ORDERS that Plaintiff's cross-motion for leave to amend is DENIED; and the Court
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 all parties in accordance with Local Rules.
IT IS SO ORDERED.
Dated: March 21, 2017
Albany, New York
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