Pinter v. The City of New York et al

Filing 112

MEMORANDUM OPINION AND ORDER: For the foregoing reasons, plaintiff's request for certification is denied. (Signed by Judge Shira A. Scheindlin on 11/25/2013) (cd)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

ROBERT PINTER,
Plaintiff,
MEMORANDUM
OPINION AND ORDER

- againstTHE CITY OF NEW YORK, et at.,

09 Civ. 7841 (SAS)

Defendants.

---------------------------------------------------------

)(

SHIRA A. SCHEINDLIN, U.S.D.J.:
I.

BACKGROUND
This Court issued an Opinion and Order on October 10, 2013 ("the

October 10 Order") granting in part and denying in part defendants' motion for
summary judgment. I The Court ruled that plaintiff "may proceed on his false
arrest, malicious prosecution, excessive force, and abuse of process claims against
the City under Monell [and] on his excessive force claim against the individual

Pinter v. City ofNew York, No. 09 Civ. 7841, 2013 WL 5597545, at
* 16 (S.D.N.Y. Oct. 10,2013). Familiarity with the facts and procedural history of
the case is presumed.
1

NYPD personnel in the van."2 The Court dismissed plaintiffs state law abuse of
process claim as well as all other claims against the individual defendants. 3
Previously, in an unpublished Summary Order, the Second Circuit
dismissed plaintiffs false arrest and malicious prosecution claims against
individual defendants based on qualified immunity and went on to dismiss
plaintiff s Monell claims because "any claims dismissed as against the individual
defendants must also be dismissed as against the City.,,4 However, in a subsequent
published opinion, Askins v. Doe No.1, the Second Circuit held that "the
entitlement of ... individual municipal actors to qualified immunity because at the
time of their actions there was no clear law or precedent warning them that their
conduct would violate federal law is ... irrelevant to the liability of the
municipality."S In the October 10 Order, I recognized that Askins conflicts with the

Id. On October 21, plaintiff voluntarily dismissed the excessive force
2
claims against individual defendants. See 10/21113 Memorandum in Support of
Plaintiff s Motion for Reconsideration of Aspects of this Court's October 10, 2013
Opinion and Order and for Such Other and Further Relief as Is Required (" 10121
PI. Mem."), at 1-3.
3

See Pinter, 2013 WL 5597545, at *16.

4
Pinter v. City ofNew York, 448 Fed. App'x 99, 106 (2d Cir. 2011),
cert. denied, 133 S.Ct. 191 (20 12) (citing City ofLos Angelesl v. Heller, 475 U.S.
796, 799 (1986)).
5

Askins v. Doe No.1, 727 F.3d 248, 254 (2d Cir. 2013).

2

Second Circuit's previous decision in the instant case. Acknowledging that I could
not "proceed without violating one of the two Second Circuit authorities," I
followed Askins v. Doe as "a subsequent and more authoritative statement of
Second Circuit law."6

II.

DISCUSSION

A.

The City's Request for Certification
On October 31, 2013, the City requested that the Court "certify its

recent decision to the Second Circuit for clarification as to whether Askins
overrules" the Second Circuit's prior ruling in Pinter. 7 The City argues that this
issue is the "heart of the conflict expressed in this Court's October 10 Order."g If
the Second Circuit rules that Pinter controls, it may dismiss plaintiffs abuse of
process claims "for the same reasons that it [previously] dismissed the false arrest
and malicious prosecution claims .... [leaving] only ... [the] excessive force
claims for trial."q Plaintiff opposes the City's request for certification on the
grounds that it would further delay the litigation and that there will "still be a trial

6

Pinter, 2013 WL 5597545, at *7.

10/31/13 Letter from Dara aIds, Senior Counsel, New York City Law
Department, to the Court, at 1.
7

8

1117/13 Letter from aIds to the Court, at 1.

9

Jd. at 2.

3

on remand [of the excessive force Monell claim] and the evidence presented at the
future trial will be largely the same evidence as the evidence which would be
presented ... at this time."lo
Section 1292(b) of Title 28 of the United States Code allows a district
judge to certify a question or order to the appellate court when it is "not otherwise
appealable under this section" if she is "of the opinion that such order involves a
controlling question of law as to which there is substantial ground for difference of
opinion and that an immediate appeal from the order may materially advance the
ultimate termination of the litigation." The instant case involves a controlling
question of law where two panels of the Second Circuit have reached contlicting
conclusions. Furthermore, immediate appeal would materially advance the
ultimate termination of the litigation. If the Second Circuit holds that its prior
ruling in Pinter controls despite the more recent conflicting holding in Askins, it
may find that any claim where lack of probable cause is an element must be
dismissed - that is, the false arrest, malicious prosecution and abuse of process
claims against the City. This would leave only Pinter's excessive force claim for

1114/13 Letter from James I. Meyerson, Counsel for Plaintift~ to the
Court (" 1114113 Meyerson Ltr."), at 2-3. Plaintiff also asserts that the malicious
prosecution and malicious abuse of process claims would be included in a trial on
remand, but as discussed below, if the Second Circuit follows its previous ruling in
Pinter, those claims would be dismissed.
10

4

trial, which is a claim based on a much narrower and more limited set of facts than
the other three.
I am sympathetic to plaintiffs argument that this case already has a
lengthy and complicated history and that this will be the second interlocutory
appeal to the Second Circuit. However, proceeding with trial before the Second
Circuit rules on this issue puts the Court at risk of expending scarce judicial
resources by trying what may be unviable claims. For the foregoing reasons, the
following question is certified for appeal to the United States Court of Appeals for
the Second Circuit:
Is the Second Circuit's decision in Pinter v. City o/New York,
448 Fed. Appx. 99 (2d Cir. 2011) overruled by its decision in
Askins v. Doe No. J, 727 F.3d 248 (2d Cir. 2013)?
B.

Plaintiff's Req uest for Certification
Separately, plaintiff asks the Court to certify its ruling that Pinter did

not properly plead a fabrication-based due process claim under the Fourteenth
Amendment. I I Plaintiff first raised this as an allegedly pleaded claim in his
opposition papers to defendants' motion for summary judgmentY In the October
10/28/13 Letter from Meyerson to the Court (" 10/28/ 13 Meyerson
Ltr."), at 1-3. Accord 1114/13 Meyerson Ltr. at 7-9.
II

See 07116/13 Plaintiffs Memorandum in Response and Opposition to
the Collective City Defendant Parties' Motion for Judgment on Some of the
Plaintiffs Claims and in Support of the Plaintiffs Multiple Claims, at 6 ("The
12

5

10, 2013 Order, I ruled that "[b]ecause this newly raised fabrication-based due
process claim does not appear in the Second Amended Complaint, it has not been
properly pleaded, and need not be considered.,,13 On October 21, plaintiff filed a
motion for reconsideration of this ruling stating that because he pled specific facts
about the fabrication in his Second Amended Complaint and the first cause of
action in his Second Amended Complaint stated that Pinter "was unlawfully
stopped and detained and entrapped and arrested in violation of his rights under
both the Fourth and Fourteenth Amendments," he had properly pled the
fabrication-based due process claim. 14 In denying plaintiffs motion for
reconsideration, I ruled on October 23, 2013 that "the COUl1 properly analyzed the
false arrest and unlawful stop claims under the Fourth Amendment" and that "there
is no cause of action for false arrest or an unlawful stop under the Due Process
Clause of the FOUl1eenth Amendment.,,'5 In his letters of October 28 and

Plaintiff asserts that ... his Fourteenth Amendment constitutional right to due
process was violated by the very fact of UC 3111 O1's fabrication of evidence
because the very fact ofUC 31101's fabricated narrative ... interfered with the
Plaintiffs right to a fair trial.").
13

Pinter, 2013 WL 5597545, at *1, n. 14.

14

10/21113 Pl. Mem. at 5-7.

Pinter v. City a/New York, No. 09 Civ. 7841, Dkt. No. 106 (S.D.N.Y.
Oct. 23, 2013), at 3-4.
15

6

November 4, 2013, plaintiff clarifies that the fabrication-due process claim is
actually "independent of any and all claims asserted by the Plaintiff under the
Fourth Amendment ... and is a claim independent of a Fourth Amendment based
malicious prosecution claim." 16
Plaintiff cites a Second Circuit case, Ricciuti v. New York City Transit
Authority, 17 and a recent district court case, Perez v. Duran,18 in support of his
assertion that the Fourteenth Amendment fabrication-based due process claim is
separate from the Fourth Amendment false arrest, unlawful stop and malicious
prosecution claims. Ricciuti and Perez do support plaintiffs' argument that
fabricated evidence can, in certain circumstances, implicate a defendant's
constitutional right to a fair trial. 19 However, in both those cases, the plaintiffs had
adequately pled a claim that the fabrication deprived them of a constitutional right
to a fair trial. As I stated in the October 10 Order, Pinter has never pled that the
fabrication deprived him of a constitutional right to a fair trial, and in fact,

16

10/28113 Meyerson Ltr. at 2. Accord 1114/13 Meyerson Ltr. at 8.

17

See 124 F.3d 123 (2d Cir. 1997).

18

See No. 11 Civ. 5399,2013 WL 3357166 (S.D.N.Y. Jul. 22, 2013).

19
See Ricciuti, 124 F.3d at 130 ("When a police officer creates false
information likely to influence a jury's decision and forwards that information to
prosecutors, he violates the accused's constitutional right to a fair trial ...."). See
also Perez, 2013 WL 3357166, at *9-10.

7

articulated this theory as a separate claim for the first time in his opposition papers
to defendants' motion for summary judgment, almost eighteen months after the
Second Amended Complaint was filed.
Only "exceptional circumstances justity a departure from the basic
policy of postponing appellate review until after the entry of a final judgment.,,2o
Certj fication for interlocutory appellate review is appropriate when 1) an order
"involves a controlling question of law as to which there is substantial ground for
difference of opinion" and 2) "an immediate appeal from the order may materially
advance the ultimate termination of the litigation.,,21 While resolution of this issue
could certainly advance the termination of this litigation, Pinter's request does not
raise a controlling question of law. Whether a party adequately pled a claim is a
standard issue for appeal, but it is not "a new legal question or [a legal issue] of
special consequence" appropriate for interlocutory review. 22 For the foregoing
reasons, plaintiffs request for certification is denied.

20

Coopers & Lybrand v. Livesay, 437 U.S. 463, 475 (1978).

21

28 U.S.c. § 1292(b).

22

lvfohawk Indus. Inc. v. Carpenter, 558 U.S. 500, 511 (2009).

8

SO ORDERED:

Dated:

New York, New York
November 25,2013

9

- Appearances ­
For Plaintiff:
James I. Meyerson, Esq.

64 Fulton Street, Suite 502

New York, NY 10038

[phone]

Jeffrey A. Rothman, Esq.

315 Broadway, Suite 200

New York, NY 10007

[phone]

For Defendants:
Dara Olds

Senior Counsel

Special Federal Litigation Division

Law Department

City of New York

100 Church Street, Room 3-198

New York, NY 10007

[phone]

10