Rodriguez v. New York City Police Department et al
Filing
35
MEMORANDUM OPINION AND ORDER re: 33 MOTION for Leave to File Amended Complaint. filed by Carlos Rodriguez. For the reasons set forth above, Plaintiff's motion to amend the Complaint is granted to the extent that he seeks to 1) assert an illega l search claim based on the June 18, 2009 incident against Defendants Johnson, Diaz, Davodian, Trapani, and Rivera; 2) add Plaintiffs Velez and Seda with respect to the search claim; and 3) assert malicious prosecution claims against the NYPD Defenda nts based on the arrests of April 13, 2008 and October 22, 2008. Plaintiff's federal claims of false arrest and property deprivation from the April 25, 2007, February 13, 2008, and October 22, 2008 incidents still remain as against Defendants Bu bb and Rodriguez. The remaining Plaintiffs shall promptly file the Amended Complaint with all required signatures and information, and must effect service of the Amended Complaint on any newly added Defendants by December 24, 2011. Defendants' counsel shall advise the Court and Plaintiffs of whether they will accept service on behalf of the Jane Doe Defendant, Shield #14233. (Signed by Magistrate Judge Theodore H. Katz on 10/24/2011) Copies Mailed By Chambers. (jfe)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-- ----- -- --- --- ------- X
CARLOS RODRIGUEZ,
10 civ. 891 (BSJ) (THK)
Plaintiff,
MEMORANDUM OPINION AND
ORDER
againstNEW YORK CITY POLICE DEPARTMENT,
NEW YORK CITY POLICE COMMISSIONER,
et al.,
(Pro Se)
Defendants.
- -- ---- -- --- -------- -- -X
THEODORE H. KATZ, UNITED STATES MAGISTRATE JUDGE.
Plaintiff Carlos Rodriguez brought this action, pursuant to 42
U.S.C.
§
1983, based on the circumstances surrounding four separate
arrest incidents.
Department
He named as Defendants the New York City Police
("NYPD"),
NYPD
Officer Erik Rodriguez,
Commissioner
Raymond
Kelly,
Police
Police Officer Cecilio Cintron,
Police
Officer John/Jane Doe, Police Officer Patrick Bubb, Police Officer
Vincent Capitini,
(collectively,
the "NYPD Defendants"), and the
New York County District Attorney,
Assistant District Attorney
Albert Berry III, Assistant District Attorney Rachel Bromberg, and
Assistant
District
Defendants").
Attorney
Eve
Teipel
(collectively,
NYPD
"DA
The action was referred to this Court for general
pretrial supervision, pursuant to 28 U.S.C.
The
the
and
DA
Defendants
each
§
636(b) (1) (A).
moved
to
dismiss
1
COP[FS \P,:LED
TO COL;\SEL UF RECORD ON
Ii
/" I
IOjdCl/ /1
----",...---",...--
the
-
-
---------
Complaint, and on December 30, 2010, the District Court dismissed
all of Plaintiff's claims, with the exception of the federal and
state
law claims
for
false arrest and an unlawful
search that
Plaintiff asserted against Defendants Rodriguez, Cintron, and Bubb.
{See Memorandum
15.)
&
Order, dated Dec. 30, 2011 ("Dec. 30 Order"), at
Plaintiff later sought leave to file an amended complaint,
and he was instructed to file a Proposed Amended Complaint.
(See
Order, dated Mar. 26, 2011 ("Mar. 26 Order"), at 2.)
Plaintiff subsequently moved to amend and filed a Proposed
Amended Complaint
(see
Plaintiff's
Proposed Amended Complaint,
dated Apr. 24, 2011 ("Prop. Am. Compl."»[ in which Plaintiff:
(1)
adds his arrest of June 18, 2009 as a basis for various claims; (2)
seeks to add as defendants in relation to his June 18, 2009 arrest,
Parole Officer Beverly Johnson[ Police Officer Oscar Diaz, Police
Officer Ohmeed Davodian, Police Officer Sergeant Paul Trapani, and
Police Officer Lieutenant
Frankie Rivera;
plaintiffs with respect to the June 18,
(3)
seeks
to add as
2009 arrest and search,
Lisbeth Franco, Doris Velez, and Michelle Seda;
that are based on his arrest of October 3,
(4) drops claims
2006;
(5)
drops all
references to state law claims and refers exclusively to his rights
under the United States Constitution; and (6) omits as defendants
the
New
York
City
Police
Department;
New
York
City
Police
Commissioner Raymond Kelly; Officer Vincent Capitini; and the New
2
York County District Attorney's Office.
Defendants who are presently in this action - Officers Bubb,
Cintron,
and
Rodriguez
(See Defendants'
oppose
Plaintiff's
motion
to
amend.
Opposition to Plaintiff's Motion to Amend the
complaint, dated May 12, 2011 ("Defs.' Opp. 1/) • )
For reasons discussed below, Plaintiff's motion is granted in
part and denied in part.
BACKGROUND
Plaintiff claims that he was falsely arrested and imprisoned,
maliciously prosecuted, and that he suffered unreasonable searches
during the course of four arrest incidents.
On April 25,
2007,
Plaintiff intervened in an altercation
between Hedney Bailon and Angela Cabrera,
and Defendant Officer
Bubb arrested Plaintiff on a charge of Assault in the 3rd Degree.
(See Prop. Am. Compl.
~~
12 13.)
Plaintiff contends that there was
no basis for his arrest and that the DA Defendants continued to
prosecute him for a period of two years.
(See id.
was ultimately dismissed on speedy trial grounds.
~
15.)
(See id.
The case
~
16.)
On February 13, 2008, Plaintiff was arrested by several of the
police
officer
Defendants
and
charged
with
criminal
sale
of
marijuana to an undercover officer; at the time of the arrest, the
officers recovered $338.00 from Plaintiff.
(See id.
~~
20-21.)
Defendant Cintron filed a criminal complaint, which, according to
3
Plaintiff, falsely accused Plaintiff of criminal sale of marijuana
to an informant,
though in fact
Defendant Officer Cintron was
merely relaying the facts as reported by the undercover officer.
(See
id.
,
21;
Ex.
C.)
Defendant Officer Cintron reported the
arrest to Plaintiff's parole officer, Defendant Johnson, who filed
a parole violation warrant.
(See
id.
"
26-27.)
Defendant ADA
Berry prosecuted the offense and, according to Plaintiff, falsely
told the Court he was ready for trial.
id. , 25.)
(See
plaintiff
was incarcerated from February 13, 2008 to June 9, 2008, and the
charges
were
dismissed
on
November
13,
2008,
Plaintiff, for lack of probable cause.
On October
22,
2008,
Plaintiff
"
was
trespass by Defendant Officer Rodriguez.
according
29-30.)
arrested
(See
to
for
id. , 36.)
criminal
Plaintiff
claims that he just happened to be on the street as another suspect
was eluding police pursuit. (See id. "
that
he
cause.
was
(See
32 33.)
illegally searched and arrested,
, 35.)
Plaintiff contends
without
probable
The criminal trespass charge was dismissed
on December 7, 2009, according to Plaintiff, for lack of probable
cause.
(See
"
35,
Plaintiff
38.)
contends
that
he
was
maliciously prosecuted by ADA Bromberg.
Finally, on June 18, 2009, Plaintiff was at home with proposed
plaintiffs Franco, Velez, and Seda, when Defendant Parole Officer
Johnson and Parole Officer Pitchardo came to inspect the premises.
4
(See id.
~~
39 40.)
According to Plaintiff Rodriguez, as Parole
Officer Johnson was inspecting his room, Franco left the apartment.
~
Defendant
42.)
Officers
Shortly
thereafter,
Davodian,
Trapani,
according
and
Rivera
to
Plaintiff,
entered
the
apartment with additional detectives, telling Velez and Seda not to
move or make any phone calls.
(See id.
~~
44,
47.)
After brief
questioning, Plaintiff Rodriguez produced a bottle of steroids and
mUltiple syringes; the Defendant Officers then searched the house
further, and also discovered a large quantity of marijuana, cash,
drug paraphernalia, a .45 automatic hand gun, and two large knives.
(See id.
~~
49-51,
60-61.)
Plaintiff Rodriguez and Franco were
arrested during the incident
(see id.
~~
51,
53),
Seda were "told to find somewhere else to sleep."
and Velez and
~
(See id.
55.)
Defendant Officer Diaz escorted Rodriguez and Franco to the 34th
Precinct, where they were charged with criminal possession of a
weapon and criminal possession of marijuana.
(See
id.
~
56.)
Plaintiff contends that Officers Diaz and Davodian conspired with
Parole Officer Johnson to conceal Officers Davodian, Trapani, and
Rivera's illegal search of Plaintiff's apartment.
(See id.
~
58.)
In January 2010, the charges were dismissed against Franco for lack
of probable cause.
(See id.
~
61.)
Plaintiff Rodriguez, however,
pled guilty to a charge of Criminal Possession of a weapon in the
3rd Degree.
(See Defs.' Opp., Ex. C.)
5
i ;
DISCUSSION
I. Applicable Legal Standard
Rule 15(a) of the Federal Rules of Civil Procedure provides
that motions to amend are to be freely granted "when justice so
requires,"
see Fed.
R.
Civ.
P.
15 (a) (2),
but it is within the
district court's sound discretion to grant or deny leave to amend.
See McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir.
2007)
(citing Foman v.
(1962».
Davis,
371 U.S.
178,
182,
83 S.
Ct.
227
Amendments of the pleadings may be denied where there has
been undue delay or bad faith,
where the non-moving party would
suffer undue prejudice, or where the pleading would be futile. See
Foman, 371 U.S. at 182; Holmes v. Grubman,
Cir.
leave
2009)
("Generally,
[to amend]
568 F.3d 329, 334
(2d
a district court has discretion to deny
for good reason,
including futility,
undue delay, or undue prejudice to the opposing party.")
bad faith,
(internal
quotation marks and alterations omitted); Burch v. Pioneer Credit
Recovery,
Inc.,
551 F.3d 122,126
(2d Cir.
2008);
Commander Oil
Corp. v. Barlo Equip. Corp., 215 F.3d 321,333 (2d Cir. 2000)
rule
in this
Circuit
has
been
to allow a
party
("The
to amend
its
pleadings in the absence of a showing by the nonmovant of prejudice
or bad faith.").
The futility analysis follows the same standard as for Rule
12(b) (6) motions to dismiss, see Dougherty v. Town of N. Hempstead
6
Bd. of Zoning Appeals, 282 F.3d 83, 88 (2d Cir. 2002), meaning that
a plaintiff must plead enough facts to "state a claim to relief
that is plausible on its face." Bell Atl.
U.S. 544, 570, 127 S. Ct. 1955 (2007).
Corp. v. Twombly,
550
The Court "accepts as true
all of the allegations contained in a complaint," Harris v. Mills,
572 F.3d 66, 72 (2d Cir. 2009); see also Dougherty, 282 F.3d at 87,
but, as noted, Plaintiff's factual allegations must raise a right
to relief above the speculative level. See Twombly,
550 U.S.
at
555.
Defendants do not claim that they would be prejudiced by the
proposed amendments or that there has been undue delay in asserting
the proposed amendments.
Instead,
amendments would be futi
they claim that allowing the
(See Defs.' Opp. at 2 3.)
II. The June 18, 2009 Arrest and the Additional Parties
In the Proposed Amended Complaint, Plaintiff seeks to assert
claims based on a June 18, 2009 arrest, which was not discussed at
all in the original Complaint.
Based on this incident, he asserts
a claim of false arrest with respect to himself and,
proposed plaintiff Franco.
it appears,
He also asserts an unlawful search on
his own behalf and, apparently, on behalf of all of the proposed
plaintiffs.
He also seeks to add five additional defendants in
relation to this incident.
Defendants
argue
that
because
7
Plaintiff
was
arrested
and
convicted of Criminal Possession of a Weapon in the 3rd Degree
after his arrest on June 18,
claims of
search.
false
2009,
he is barred from asserting
arrest, 1 malicious prosecution,
(See Defs.' Opp. at 3.)
or an unlawful
Defendants further argue that if
Plaintiff is barred from asserting claims based on the June 18,
2009 arrest,
there is no basis to join the additional plaintiffs
and defendants.
A.
(See id. at 4.)
Plaintiff Rodriguez's Claims Stemming from the June 18,
2009 Arrest
1. False Arrest
To establish a claim of false arrest
l
Plaintiff must show that
NYPD Defendants "intentionally confined him without his consent and
without justification." Weyant v. Okst
However
1996) .
"the
I
existence
of
l
101 F.3d 845, 852 (2d Cir.
probable
cause
to
arrest
constitutes justification and is a complete defense to an action
for false arrest
under
cir.
1983.
§
2007)
11
l
whether that action is brought under state law or
Jenkins v. City of New York,
(quoting Weyant
I
478 F.3d 76
1
84
(2d
101 F.3d at 845) (internal citations
Plaintiff also claims that he was falsely imprisoned in
violation of his constitutional rights (see Prop. Am. Compl. ~ 63),
but this claim is subsumed under the false arrest claim because
under New York law
"[a] false imprisonment claim
is
identical to a false arrest claim." Kilburn v. Village of Saranac
413 Fed. App/x 362 363 (2d Cir. 2011) (citing Posr v. Doherty, 944
F.2d 91 96 (2d Cir. 1991)).
1
l
I
I
1
1
8
omitted) .
The NYPD Defendants can show that probable cause to
arrest existed if they had °knowledge or reasonably trustworthy
information
of
facts
and
circumstances"
that
would
lead
a
reasonable person to believe that Plaintiff had committed or was in
the process
of
committing a
crime.
id.
at
84-85
(quoting
Weyant, 101 F.3d at 852).
By Plaintiff's own admission,
the NYPD Defendants recovered
from Plaintiff's apartment, among other things, steroids, multiple
syringes and drug paraphernalia, a
was loaded,
Compl.
~
and a
.45 automatic hand gun, which
"large quantity" of marijuana.
Ex. L.)
51 i
(See Prop. Am.
At the time, Plaintiff was on parole
and subject to parole supervision.
On the facts of the Amended
Complaint, therefore, the NYPD Defendants possessed knowledge that
would lead a
reasonable person to conclude that
committed a crime. See, e.g., N.Y. Penal Law
2008) i
N.Y. Penal Law
§
§
221.25 (McKinney 2008)
Plaintiff had
265.02(1)
2
(McKinney
It follows that
N.Y. Penal Law § 265.02(1) states that, o[a] person is
guilty of criminal possession of a weapon in the third degree when:
(1) Such person commits the crime of criminal possession of a
weapon
the fourth degree as defined in subdivision one, two,
three, or five of section 265.01, and has been previously convicted
of a crime . . . . n Of particular relevance here is section one of
N.Y. Penal Law § 265.01, which defines criminal possession of a
weapon in the fourth degree as occurring when a person "possesses
any firearm."
N.Y. Penal Law § 221.25 provides that, \\ [a] person is guilty
of criminal possession of marijuana in the second degree when he
knowingly and unlawfully possesses one or more preparations,
2
9
Defendants had probable cause to arrest Plaintiff.
Moreover,
and as pointed out by Defendants,
under Heck v.
Humphrey, 512 U.S. 477, 114 S. Ct. 2364 (1994), Plaintiff may not
maintain a
the
§
1983 claim for false arrest if "a judgment in favor of
plaintiff
would
necessarily
imply
the
invalidity
of
his
conviction or sentence./I Heck, 512 U.S. at 487i see also, Skinner
U.S. _____ , 131 S. Ct. 1289, 1298 (2011).
v. Switzer,
Here,
Plaintiff was convicted of Criminal Possession of a weapon in the
3rd Degree.
(See Defs.' Opp., Ex. C.) Were Plaintiff to obtain a
judgment against Defendants for false arrest based on the June 18,
2009 arrest, it would undeniably cast doubt on the validity of his
conviction.
For these reasons
l
it would be futile for Plaintiff to proceed
with a false arrest claim based on the June 18
1
2009 arrest.
2. Malicious Prosecution
The elements of a malicious prosecution claim brought under
§
1983 are generally based on state law. See Cook v. Sheldon, 41 F.3d
73,
79
York
l
(2d Cir.
1994).
For malicious prosecution claims in New
courts place a "heavy burden" on plaintiffs in order to allow
for "benign misjudgments.
1I
Smith-Hunter v. HarveYI 95 N.Y.2d 191
1
compounds, mixtures or substances containing marijuana and the
preparations, compounds, mixtures or substances are of an aggregate
weight of more than sixteen ounces./I
10
195,
712 N.Y.S.2d 438,
malicious
440
prosecution are
(2000).
\\ (I)
The state law elements of
that
prosecution against the plaintiff,
the
(2)
defendant
initiated a
that the defendant lacked
probable cause to believe the proceeding could succeed,
(3)
that
the defendant acted with malice, and (4) that the prosecution was
terminated in the plaintiff's favor."
Transit Auth.,
federal
law
prosecution,
215 F.3d 208,
requires
215
that
in
Rohman v. City of New York
(2d Cir.
§
1983
2000).
claims
In addition,
for
malicious
a plaintiff must show that there was "a sufficient
post-arraignment liberty restraint to implicate the plaintiff's
Fourth Amendment rights." Id.
As with the false arrest claim, a finding of probable cause
gives
the
NYPD
Defendants
prosecution claim.
a
complete
See Hargroves v.
App'x 378, 386 (2d Cir. 2011)
defense
to
a
City of New York,
malicious
411 Fed.
(citing Manganiello v. City of New
York, 612 F.3d 149, 161 (2d Cir. 2010)}.
Unlike the false arrest
analysis, however, Defendants here must have had probable cause for
each charge for which Plaintiff was prosecuted.
In New York, when
"an accused [is] arrested on multiple charges but convicted on only
one [he] may proceed with a claim for malicious prosecution on the
charge on which he was not convicted."
F.3d 188, 197 (2d Cir. 2002)
190
(2d
Cir.
1989)}.
Fulton v. Robinson,
289
(citing Janetka v. Dabe, 892 F.2d 187,
Furthermore,
11
the
Supreme
Court's
Heck
decision does not necessarily bar Plaintiff
from maintaining a
malicious prosecution claim that is based on charges for which he
was not convicted.
In the instant case, however, this is a distinction without a
difference.
While Plaintiff was never convicted of the marijuana
charge (see Defs.' Opp., Ex. C),
the NYPD Defendants clearly had
probable cause to proceed against Plaintiff on both the weapon and
marijuana charges, as they recovered a large quantity of marijuana
and a handgun from his apartment.
Although Plaintiff contends that
Defendants conspired to falsely state that Defendant Johnson, and
not the NYPD Defendants,
conducted the search which led to the
recovery of this contraband, that is irrelevant to whether there
was probable cause to prosecute Plaintiff.
in Plaintiff's apartment,
Defendants
acted
with
Based on what was found
there can be no plausible claim that
malice
in
prosecuting
Plaintiff
for
possession of marijuana.
Thus, it would be futile for Plaintiff to assert a malicious
prosecution claim that is based on his June 18, 2009 arrest.
3. Illegal Search
Plaintiff contends that Parole Officer Johnson and/or the NYPD
Defendants illegally searched his apartment without a warrant on
June
18,
2009.
The
only
argument
advanced by Defendants
in
opposing this claim is that because Plaintiff was convicted of
12
criminal possession of a weapon, the claim is barred under
Humphrey.
(See Defs.' Opp. at 3.) This argument is misplaced.
The Supreme Court has rejected the argument that a guilty plea
or conviction has any bearing on the legality of the underlying
search.
See Heck,
512
U.S.
at
487
n.7
("[A]
suit
for
damages
attributable to an allegedly unreasonable search may lie even if
the challenged search produced evidence that was introduced in a
state criminal trial resulting in the
1983 plaintiff's still-
§
outstanding conviction."); Haring v. Prosise, 462 U.S. 306, 318,
103 S. Ct. 2368 (1983); see also Zarro v. United States, 274 Fed.
App'x 31, 2008 WL 1790431, at *2 (2d Cir. 2008); United States v.
Gregg, 463 F.3d 160, 165 (2006)
convicted on the basis of
a
(holding that when a defendant is
guilty plea,
conviction is unaffected by subsequent
(citing
Tollett
v.
Henderson,
411
the validity of
the
Fourth Amendment claims
U.S.
258,
93
S.
Ct.
1602
(1973))) .
Accordingly, Plaintiff may amend the Complaint to assert an
unlawful search claim, arising out
the 2009 incident, against
Defendants Johnson, Diaz, Trapani, Davodian, and Rivera. 3
Although Plaintiff may proceed
significant hurdles to overcome, as he
parolee, his legitimate expectations of
are substantially reduced. See Samson v.
126 S. Ct. 2193 (2006).
3
13
on this claim, he faces
was on parole and, as a
privacy in his apartment
California, 547 U.S. 843,
B. The Addition of Plaintiffs Franco, Velez, and Seda
Motions to amend a
complaint to add new plaintiffs must
comply with Rule 20 of the Federal Rules of Civil Procedure, which
provides that "[p]ersons may join.
right to relief
jointly,
severally,
if:
(A)
they assert any
or in the al ternative with
respect to or arising out of the same transaction, occurrence, or
series of transactions or occurrenceSj and (B) any question of law
or fact common to all plaintiffs will arise in the action.
Civ. P. 20(a} (1)
(2d Cir. 1986)
i
H
Fed. R.
see also Abraham v. Volkswagen, 795 F.2d 238, 251
i
Kehr v. Yamaha Motor Corp., 596 F. Supp. 2d 821,
826 (S.D.N.Y. 2008).
It is difficult to discern from the Amended Complaint what
claims are being asserted by each of the proposed new Plaintiffs.
Construing
the
Amended
plausible
claim
that
Plaintiffs
Velez
and
Complaint
is
shared
Seda's
liberally,
with
potential
however,
Plaintiff
the
Rodriguez
Fourth Amendment
arising from the apartment search on June 18,
2009.
only
is
claims
Velez and
Seda, but not Franco, list 101 Post Avenue, Apartment 4A as their
residence.
(See Prop. Am. Compl. at 17.)
Velez and Seda's illegal
search claims, therefore, would qualify for joinder under Rule 20
because these claims are clearly "logically related" to Plaintiff
Rodriguez's Fourth Amendment claim, and it is likely that common
14
issues of law or fact will arise. 4
Defendants correctly note that the proposed Plaintiffs did not
sign the Amended Complaint and have not secured
status from the Court.
forma pauperis
Plaintiff Rodriguez points outf however f
that they did sign a sworn verification of the Amended Complaint
and f given the opportunitYf
that
is
filed
and will
they will sign the Amended Complaint
file
applications
to
proceed
in forma
pauperis.
Plaintiffs Rodriguez f Velez f and Seda are hereby directed to
amend the Complaint in accordance with the requirements of Rule
11(a) f namelYf each Plaintiff must sign the Complaint and state his
or her address
Civ.
P.
paying
11(a)
Court
1
Fed. R.
email address f and telephone number.
In addition
filing
fees
l
if they intend to proceed without
and
other
costs f
they
must
submit
applications to the Court/s Pro Se Office seeking leave to proceed
forma pauperis.
III. Malicious Prosecution
The December 30
1
2011 Order stated that Plaintiff/s federal
and state law tort claims of false arrest and property deprivation
which
arose
from
incidents
that
occurred
on
April
25
1
l
2007 f
4 Because Rodriguez does not have a plausible false arrest or
malicious prosecution claim there are no other common issues of
fact or law with the other proposed Plaintiffs.
l
15
February 13,
Officers
2008,
and October 22,
Rodriguez,
Cintron,
and
2008,
remain as to Defendant
Bubb.
The
District
Court
dismissed Plaintiff's malicious prosecution claims against the NYPD
Defendants on the grounds that Plaintiff did not meet the Twombly
and Iqbal standards for the minimum threshold of plausibility in
his pleading.
(See Dec.
30 Order at
9.)
Here,
Plaintiff has
omitted his state law claims, referring only to his rights under
the united States Constitution, but he seeks to reassert his claims
of malicious prosecution, which were dismissed by the December 30
Order.
Defendants mistakenly argue that, as a result of the December
30 Order, Plaintiff is barred by res judicata from re asserting his
claims
of
malicious
Defendants
December
30
ignore
prosecution.
that
Order,
fact
Plaintiff
that
was
(See
after
Defs.'
the
granted
Complaint with additional facts and parties.
Opp.
Court
leave
to
at
2.)
issued
its
amend
his
In an Order dated
March 26, 2011, the District Court specifically advised Plaintiff
to file a Proposed Amended Complaint, with the warning that, "[i]f
Plaintiff
Is to file a Proposed Amended Complaint by May 9, 2011
then this matter will proceed with only the remaining claims listed
in the
December
30,
December 30 Order,
2010
order."
(Mar.
26
Order at
2.)
The
in other words, did not preclude the possible
amendment of the failed malicious prosecution claims.
16
The Court
will
therefore
address
the viability of
the
amended malicious
prosecution claims.
To reiterate, the state law elements of malicious prosecution
are -(I)
that the defendant initiated a prosecution against the
plaintiff,
(2) that the defendant lacked probable cause to believe
the proceeding could succeed,
malice,
and
(4)
that
plaintiff's favor.
/I
the
Rohman,
(3)
that the defendant acted with
prosecution
215 F. 3d at 215.
1983 claims for malicious prosecution,
there
was
"a
sufficient
was
terminated
in
In addition,
the
in
§
Plaintiff must show that
post arraignment
liberty
restraint
to
implicate the plaintiff's Fourth Amendment rights."
see also
Manganiello v.
(2d Cir.
2010)
i
City of New York,
612 F.3d 149,
160 61
Cameron v. City of New York, 598 F.3d 50, 63 (2d Cir. 2010).
For the reasons stated below, the Court finds that Plaintiff
has stated a plausible claim for the incidents arising on February
13,
2008 and on October 22,
2008.
However,
Plaintiff has not
stated a plausible claim arising from the April 25, 2007 incident,
and he may not, therefore, proceed on that claim.
A. April 25, 2007 Incident
With respect to the April 25, 2007 incident, Plaintiff merely
contends that ADAs Bromberg and Teipel commenced and continued
prosecuting Plaintiff without probable cause and -falsely informed
the court that
the
were ready for trial
People
17
1/
(Proposed Am. Compl. ~ 15.)
The latter statement, even if false,
has no bearing on whether Plaintiff was maliciously prosecuted.
The only change in Plaintiff's Proposed Amended Complaint, from the
original Complaint,
is that he asserts that the prosecution was
without probable cause and the case was dismissed in plaintiff's
favor.
Plaintiff is,
therefore,
merely reciting the
elements of a claim of malicious prosecution without making the
claim
factually
more
plausible
than
it
was
in
the
original
Complaint. s
B. February 13, 2008 Incident
With respect to the February 13, 2008 arrest for criminal sale
of marijuana, the Court is satisfied that Plaintiff has alleged a
claim that is plausible on its face.
Plaintiff contends that he
was approached by an unknown undercover officer and asked where he
could find "AI.
unknown officer
id.
If
to
the
~
18.)
building
After Plaintiff directed the
complex
in which Al
resided,
5
It does not appear that Plaintiff is asserting a malicious
prosecution claim against Detective Bubb.
If he is, the Amended
Complaint fails to add any additional facts that suggest that Bubb
acted maliciously and without probable cause to arrest Plaintiff.
The misdemeanor complaint filed by Bubb, charging Plaintiff with
assault in the third degree, states that he was advised by the
victim that Plaintiff struck him repeatedly, and that the victim
suffered a ruptured ear drum, a bruised and swollen eye, a broken
orbital bone and substantial pain.
Although Plaintiff contends
that he was acting in self defense, in light of the complainant's
injuries, there can be no plausible claim that Bubb acted
maliciously in arresting Plaintiff.
18
Plaintiff claims that he walked the other way and, without further
incident, was apprehended by several officers.
(See id.
~
20.)
Plaintiff argues that a prosecution was initiated against him
by Defendant ADA Berry.
complaint
(See id.
filed against
~
25.)
Plaintiff,
According to the criminal
it was
alleged that he was
observed receiving two clear plastic ziplock bags of marijuana,
which he then handed to the undercover officer.
id., Ex. C.)
Plaintiff claims, however, that Defendants lacked probable cause to
believe the prosecution for the underlying charge would succeed,
and that,
fact,
Defendants created false charges in order to
secure Plaintiff's imprisonment for parole violations.
26.)
Plaintiff
further
contends
that
the
prosecution
was
terminated in his favor for a lack of probable cause on November
13, 2008
(see id.
~
29), which,
in addition to Plaintiff's other
claims, would allow for an inference of
612 F.3d at 163
was
no
malice.
Manganiello,
(noting that courts may infer malice where there
probable
Finally,
cause).
Plaintiff's
liberty
was
restrained post-arraignment in that he was detained from February
13, 2008 until June 9, 2008.
The Court,
therefore,
(See Proposed Am. Compl. ~ 30.)
concludes that Plaintiff has stated a
claim for malicious prosecution arising from the February 13, 2008
incident, with one caveat.
Though Plaintiff claims that Defendant
Cintron falsely accused Plaintiff regarding this incident, in fact,
19
Defendant Cintron was not present during the events in issue and
merely reported the accusations as they were reported to him by
Undercover Officer #14233. (See id., Ex. C.)
finds
that
Plaintiff
has
not
asserted
The Court, therefore,
a
plausible
claim
of
malicious prosecution against Defendant Cintron.
C. October 22, 2008 Incident
The Court is similarly satisfied that Plaintiff has stated a
malicious
prosecution claim arising
incident.
against
Plaintiff
him
for
states
criminal
Defendant Bromberg.
that
a
trespass
id.
~~
from
the
October 22,
prosecution was
by
Defendant
36-37.)
2008
initiated
Rodriguez
and
Plaintiff argues that
Defendants did not have probable cause to believe the prosecution
would succeed in that Plaintiff was an invited guest and, further,
that
he
Further,
lived within
the
the
building
complex.
34.)
charges were ultimately terminated in Plaintiff's
favor on December 7, 2009
id.
~
38), and because the charge
was dismissed for a lack of probable cause,
infer malice.
Plaintiff
~
id.
a fact-finder could
See Manganiello l 612 F.3d at 163.
was
released
on
his
own
FinallYl while
recognizance
after
his
arraignment on october 23, 2008 (see Prop. Am. Compl., Ex. J), at
this
stage,
sufficient
the
Court
is
post-arraignment
satisfied
liberty
that
Plaintiff
restraint
alleges
because
he
a
was
required to return to court multiple times to answer for this
20
charge.
See Rohman,
215 F.3d at 215-16
sufficiently pled a
post-arraignment
(finding that Plaintiff
restraint
in
that
he
was
required to return to court five times to answer the charge).
Plaintiff may, therefore, amend the Complaint to assert a malicious
prosecution claim arising from the October 22, 2008 incident.
IV. DA Defendants Bromberg, Teipel, and Berry
The District Court dismissed all claims against DA Defendants
Bromberg, Teipel, and Berry in the December 30 Order.
Order at 12-14.)
Plaintiff has reasserted his claims against the
DA Defendants in his Proposed Amended Complaint,
Compl.
~
6.),
(See Dec. 30
(see Prop. Am.
but Plaintiff provides no additional arguments or
facts that would undermine the December 30 Order and subsequent
dismissal of the DA Defendants from this action.
In the December 30 Order,
the malicious prosecution claims
against the DA Defendants were dismissed because Plaintiff failed
to plead any
facts
tending
to
suggest
that
the DA Defendants
wrongfully prosecuted the charges against Plaintiff.
Order at 12.)
(See Dec. 30
The Proposed Amended Complaint does not remedy that
defect.
In
addition,
the
DA Defendants
are
entitled
to
absolute
prosecutorial immunity with respect to the malicious prosecution
claims.
"It is .
. well established that 'a state prosecuting
attorney who acted within the scope of his duties in initiating and
21
pursuing a criminal prosecution .
for damages under
§
1983.'" Imbler v. Pachtman, 424 U.S. 409, 410,
4 31, 96 S. Ct. 984 (1976) .
of
a
criminal
is immune from a civil suit
" [B]ecause the initiation and pursuit
prosecution
are
quintessential
prosecutorial
functions, the prosecutor has absolute immunity for the initiation
and conduct of a prosecution unless
[he]
proceeds in the clear
absence of all jurisdiction." Shmueli v. City of New York, 424 F.3d
231, 237 (2d Cir. 2005)
(quoting Barr v. Abrams, 810 F.3d 358, 361
(2d Cir. 1987)) (internal quotations and citations omitted).
Here, the DA Defendants are not accused of acting outside the
bounds
of
the
"quintessential
initiating and pursuing a
CompI.
~~
prosecutorial
criminal prosecution.
15,25,29,37.)
Because
the
functions"
(See
Prop.
DA Defendants
of
Am.
enj oy
absolute immunity from Plaintiff's malicious prosecution claims, it
would be futile to allow him to proceed against them.
Accordingly,
Plaintiff may not amend the Complaint to pursue claims against the
DA Defendants.
CONCLUSION
For the reasons set forth above, Plaintiff's motion to amend
the Complaint is granted to the extent that he seeks to 1) assert
an illegal search claim based on the June 18, 2009 incident against
Defendants Johnson,
Diaz,
Davodian,
Trapani,
and Rivera;
2)
add
Plaintiffs Velez and Seda with respect to the search claim; and 3)
22
assert malicious prosecution claims against the NYPD Defendants
based on the arrests of April 13,
2008 and October 22,
2008.
Plaintiff's federal claims of false arrest and property deprivation
from the April 25, 2007, February 13, 2008, and October 22, 2008
incidents still remain as against Defendants Bubb and Rodriguez.
***
The
remaining
Plaintiffs
shall promptly
file
the Amended
Complaint with all required signatures and information, and must
effect
service
of
the
Amended
Complaint
on
any
newly
added
Defendants by December 24, 2011.
Defendants' counsel shall advise the Court and Plaintiffs of
whether
they
will
accept
service
on
behalf
of
the
Jane
Defendant, Shield #14233.
SO ORDERED.
Ii ;f
L
--J/
//~~-;
p
7
t5
THEODORE H. KA12;
UNITED STATES MAGISTRATE JUDGE
Dated:
October 24, 2011
New York, New York
23
Doe
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