Brown v. The City of New York et al

Filing 55

MEMORANDUM OPINION AND ORDER re: 30 MOTION for Summary Judgment filed by The City of New York, Police Officer Marcus McCoy, Police Officer Stephen Janee. As set forth within, Defendants' motion for summary judgment is granted. Plain tiff's federal and state law claims for false arrest, false imprisonment, and malicious prosecution, and any federal claim for illegal search, are dismissed. The Court declines to exercise supplemental jurisdiction of any remaining state law cla ims, which are dismissed without prejudice to litigation in state court. This Memorandum Order resolves docket entry number 30. The Clerk of Court is hereby requested to enter judgment in Defendants' favor and close this case. The Court certifie s pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). SO ORDERED. (See Order.) (Signed by Judge Laura Taylor Swain on 9/30/2014) (ajs)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------------------------x
ROBERT K. BROWN,
Plaintiffs,
-v-

No. 12CV3146-LTS-GWG

THE CITY OF NEW YORK et al.,
Defendants.
-------------------------------------------------------x

MEMORANDUM OPINION AND ORDER
Plaintiff Robert K. Brown (“Plaintiff”) brings this action against Defendants the
City of New York (“City of New York”) and New York City Police Department (“N.Y.P.D.”)
Officers Marcus McCoy (“McCoy”) and Stephen Janec1 (“Janec,” collectively, “Defendants”),
pursuant to 42 U.S.C. § 1983, asserting federal claims for false arrest, unlawful imprisonment
and malicious prosecution, as well as state law claims for false arrest and intentional infliction of
emotional distress, stemming from Plaintiff’s December 13, 2010, arrest and subsequent
imprisonment.2 Defendants move for summary judgment, pursuant to Federal Rule of Civil
Procedure 56, arguing that there was probable cause to arrest the Plaintiff; that any search and/or
imprisonment of the Plaintiff was lawful; that Plaintiff fails to state a claim for malicious
prosecution; and that, to the extent that Plaintiff intends to bring any state law claims, those
claims are meritless. The Court has jurisdiction of this action pursuant to 28 U.S.C. §§ 1331 and

1

Plaintiff refers to Defendant Janec as “Janee” in his papers.

2

In his Complaint and his opposition to Defendants’ Motion for Summary
Judgment, Plaintiff also appears to allege that he was subject to an unlawful
search, although he does not assert this as a separate claim.

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1367. The Court has considered carefully the parties’ submissions and arguments and, for the
following reasons, the Defendants’ motion is granted in its entirety.
BACKGROUND3
Plaintiff was arrested on December 13, 2010, shortly after 1:00 p.m., in the
vicinity of 84th Street and Park Avenue in Manhattan, New York. (Def. 56.1 St. ¶ 8.) Earlier
that day, two men, identified as E.K. and O.M., had called the authorities to report that the van
that they were using, which belonged to Wynne Plumbing and Heating, had been broken into
while it was parked on 85th Street. (Id. ¶ 6.) Defendants McCoy and Janec responded to the
complaint, which they heard about over the police radio. (Id. ¶ 7.)4

3

Facts recited as undisputed are identified as such in the parties’ statements
pursuant to S.D.N.Y. Local Civil Rule 56.1 or drawn from evidence as to which
there is no non-conclusory contrary factual proffer. Citations to the parties’
respective Local Civil Rule 56.1 Statements (“Def. 56.1 St.” or “Pl. 56.1 St.”)
incorporate by reference the parties’ citations to underlying evidentiary
submissions.

4

Plaintiff argues that there was no 911 call made to the police officers. (Pl 56.1 St.
¶ 6; see also Pl. Mem. In Opp. (ECF docket entry no. 43) at ECF pp. 40, 55.)
Although Plaintiff cites to a New York City Police Department “Stop, Question &
Frisk Report,” which indicates that the police officers were not on a radio run on
the afternoon of Plaintiff’s arrest (see id., Ex. F); the New York City Police
Complaint Report from the same incident indicates that the victims’ complaint
was received by the police over the radio (see Declaration of Aimee K. Lulich
(“Lulich Decl.”), Ex. E). For the purposes of the instant motion, it does not
matter how the police officers first heard about the complaint, as the victims
identified the Plaintiff once the officers had arrived on the scene.

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The two complainants, E.K. and O.M., told Officer McCoy that they had seen
Plaintiff in the driver’s seat of the van, attempting to start the ignition in the van and that, when
E.K. followed Plaintiff as he attempted to flee, the Plaintiff waved a hammer near E.K.’s face
and said something to the effect of “wait a second.” (Def. 56.1 St. ¶¶ 9-11.) Officer Janec’s
memo book indicates that he watched a surveillance video of the parked van at 1:25 p.m., after
Plaintiff was arrested. (Lulich Decl., Ex. L.) In his opposition to Defendants’ motion for
summary judgment, Plaintiff repeatedly alleges that, because he cannot be seen in the video, it
exonerates him, and that McCoy violated his rights and was complicit in a false arrest and
malicious prosecution by suppressing or withholding the “exculpatory” video. The Court has
reviewed the security video, a copy of which was provided to the Court by the Defendants. It
shows only a partial view of the van and neither the passenger side door of the van, through
which the Plaintiff is accused of having entered, nor pedestrian traffic approaching the door on
that side of the vehicle is visible. (Lulich Decl., Ex. M.)
E.K. and O.M. identified Plaintiff as the person who had broken into their van and
he was arrested near the scene of the crime, at 84th Street and Park Avenue. (Def. 56.1 St. ¶¶ 79.) When he was arrested, a backpack containing, among other things, a hammer, screwdrivers
and a knife, was vouchered as evidence belonging to the Plaintiff. (Lulich Decl., Ex. H.)
Plaintiff denies that the hammer, screwdrivers and knife were his, and asserts that they were
actually plumbing tools belonging to E.K. and O.M. that were found on the ground. (Pl. 56.1 St.
¶ 7; Pl. Mem. in Opp. (ECF docket no. 43) at ECF p. 63.) Plaintiff also alleges that he had been
“in a pizzaria[sic] having coffee-tea and pastries with a woman at 86th Street and the corner of
Lexington Avenue,” and then had walked up 84th Street to Park Avenue to pick up a car that he
had borrowed, before he was arrested. (Pl. 56.1 St. ¶ 7; Pl. Mem. in Opp. at ECF p. 21.)
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Plaintiff contends that Defendants McCoy and Janec pulled up in the police car next to Plaintiff
and jumped out of the car, that one of the police officers had a gun in his hand and that they
handcuffed the Plaintiff and forcefully searched him before putting him in the back seat of the
police car. (Pl. Mem. in Opp at ECF p. 21.)
Plaintiff alleges that he was then made to wait in the police car with the heater
running full blast and that, as a diabetic with high blood pressure and asthma, he suffered from
having his blood circulation restricted by the handcuffs with the heat running so high. (Id.)
According to Plaintiff, when Defendants McCoy and Janec returned to the police car he told
them that he was having breathing problems and heart palpitations and they arranged to have an
ambulance meet them at the police station and take him to the hospital. (Id.)5 Plaintiff states
that he was returned to the police station six to eight hours later, after being treated at the
hospital, and that Defendant McCoy, while processing Plaintiff’s paperwork, made a comment to
the effect of “what was being done to the plaintiff was not right and that this is not what he
joined the police department for.” (Id. at ECF p. 24.) Plaintiff further alleges that Detective Lisa
Moran, who had been involved in an arrest of Plaintiff on November 3, 2010, told Plaintiff that
“[y]ou will not be getting out of jail this time because I will be making sure of it.” (Id.)
Plaintiff’s arrest was processed at the 19th Precinct and his pants and shirt from
the time of his arrest were vouchered as evidence. (Def. 56.1 St. ¶ 12.) Plaintiff alleges that he
remained naked (or in his underwear) and handcuffed for approximately ten minutes, before he
was given back his “Red, White and Blue Jacket, his underwear, undershirt, and tan boots along

5

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The claims relating to the handcuffs are mentioned for the first time in his
opposition and Plaintiff has not pleaded claims for excessive force in this case.
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with hospital pajamas to wear.” (Pl. 56.1 St. ¶ 12.) (Compare Pl. Mem. In Opp. at ECF p. 26
with Lulich Decl., Ex. B., Tr. 111:9-112:6.)
At the time of his arrest, Plaintiff was on parole and was in violation of the
conditions of his parole.6 (Def. 56.1 St. ¶¶ 4-5, 8.) On November 3, 2010, Plaintiff had been
arrested for, among other crimes, criminal possession of stolen property and unlawful use of a
motor vehicle. (Id. ¶ 4.) The November 3, 2010, charges were pending in New York County
Supreme Court under case number 2010-05448 at the time of the arrest that forms the basis of
Plaintiff’s allegations in this case. Plaintiff had not reported the November 3, 2010, arrest to his
parole officer and had missed at least four mandatory check-ins with that officer by December
13, 2010. (Id. ¶ 5.)7
On December 14, 2010, Plaintiff was arraigned for attempted grand larceny in the
fourth degree, menacing in the third degree, auto stripping in the third degree, criminal mischief
in the fourth degree, and possession of burglar’s tools under New York County Criminal Court
number 2010NY091520. (Id. ¶ 13.) E.K. and O.M. identified the Plaintiff as the perpetrator of
the break-in of their van and signed affidavits attesting to this. Plaintiff’s bail was set at $1.00

6

In 2007, Plaintiff had been convicted of unauthorized use of a motor vehicle in
the second degree, and sentenced to two to four years in prison. Plaintiff was
incarcerated from October 20, 2007, to August 31, 2010, when he was released
subject to the conditions of parole. (Def. 56.1 St. ¶ 3.) As part of his parole
conditions, plaintiff was required to report any arrest to his parole officer and to
check-in with his parole officer once a week. (Id.)

7

In his opposition submission, Plaintiff contends that he did report the November
3, 2010, arrest to his parole officer (Pl. 56.1 St. ¶ 5), and denies that his parole
was revoked, but his deposition testimony was to the contrary. See Lulich Decl.,
Ex. B., Tr. 78:121-22.

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because there was a parole hold on Plaintiff. (Def. 56.1 St. ¶ 13.)8 Following his arraignment,
Plaintiff was remanded into custody of the New York City Department of Correction (“DOC”)
for violating his parole – not because of the criminal charges arising out of the December 13,
2010, incident. (Id. ¶ 14.)
From December 13, 2010, until March 28, 2012, the charges under New York
Supreme Court case no. 2010-05448 and New York Country Criminal Court docket no.
2010NY091520 were both pending against the Plaintiff as separate actions. (Id. ¶ 15.) During
the criminal proceedings in New York County Supreme Court case no. 2010-0558, Plaintiff was
evaluated by at least two mental health professionals and found to be unfit to proceed to trial.
(Id. ¶ 16.) In July 2011, Plaintiff was transferred to the Mid-Hudson Psychiatric Center, upon an
Order of Commitment, and was treated there until September 2011, when he was transferred
back into custody at Riker’s Island. (Id.; Pl. 56.1 St. ¶ 16.)
On March 14, 2012, following a bench trial, Plaintiff was convicted of criminal
possession of stolen property in the fourth degree and unauthorized use of a vehicle in the
second degree, under case number 2010-05448. (Pl. 56.1 St. ¶ 17; Def. 56.1 St. ¶ 17.)9 On
March 28, 2012, Plaintiff was sentenced to two to four years on each charge. (Def. 56.1 St. ¶
17.) However, if Plaintiff had been tried and convicted of the charges brought under docket
number 2010NY09150, any sentence would statutorily have been required to run concurrently
8

Plaintiff disputes that the bail was set at $1.00 because there was a parole hold on
Plaintiff, but admits that it was set at $1.00. (Pl. 56.1 St. ¶ 13.)

9

Although the Certificate of Disposition proffered by Defendants refers to a
conviction upon a plea, in the sentencing transcript proffered by Plaintiff in his
opposition papers, the sentencing judge discusses a bench trial and the evidence
presented therein. (See Pl. Mem. in Opp., Ex. A, at ECF pp. 90-97; ECF docket
entry no. 43-1, at ECF pp. 1-3.)

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with, and not have exceeded, the sentence already imposed under case 2010-05548. Therefore,
on April 10, 2012, the charges relating to the instant arrest under case number 2010NY091520
were dismissed as covered by Plaintiff’s conviction in case number 2010-05448. (Def. 56.1 St. ¶
18.)10 Neither Defendant McCoy nor Janec testified in any of Plaintiff’s criminal proceedings.
(Id. ¶ 19.) From December 14, 2010, to March 28, 2012, Plaintiff was incarcerated because he
violated parole prior to the December 13, 2010, arrest and from March 28, 2012, he was
incarcerated pursuant to his conviction in case number 2010-05448. (Id. ¶ 22.) The only period
during which Plaintiff was held on account of the charges for which he was arrested on
December 13, 2010, was from the time of the arrest until his December 14, 2010, arraignment on
the charges.
DISCUSSION
Under Federal Rule of Civil Procedure 56(a), a Court should grant summary
judgment when “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.” The moving party bears the burden of
showing that it is entitled to summary judgment, see Anderson v. Liberty Lobby, Inc., 477 U.S.
10

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Plaintiff disputes that the charges were dismissed as being “covered by his felony
conviction and sentence” and proffers his own assertion that there was a final
determination in his favor. (Pl. 56.1 St. ¶ 18.) Defendants’ version is, however,
corroborated by the disposition documentation proffered by Plaintiff in his
opposition and by Defendants in support of this motion – the Certificate of
Disposition of the charges arising from the December 13, 2010, arrest notes
“DISM-CONVICTION UNRELATED DKT 5448-2010” and a “Record of Court
Action” reads in relevant part “Dismissed as covered by Ind. 5448/2010.” (See
Pl. Opp. Mem., Ex. R., ECF docket entry no. 44-10, at ECF pp. 14-15; Lulich
Decl., Ex. J.)

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242, 256 (1986), and a “material fact” is one that might affect the outcome of a suit under
governing law. See Kinsella v. Rumsfeld, 320 F.3d 309, 311 (2d Cir. 2003). When reviewing
the record, the Court must assess the evidence in “the light most favorable to the [non-moving
party]” and resolve all ambiguities and draw all inferences in its favor. Tufariello v. Long Island
R. Co., 458 F.3d 80, 85 (2d Cir. 2006). However, the party opposing summary judgment must
put forth more than a “scintilla of evidence,” Anderson, 477 U.S. at 252, and “cannot defeat the
motion by relying on the allegations in [its] pleading, or on conclusory statements.” Gottlieb v.
Cnty. of Orange, 84 F.3d 511, 518 (2d Cir. 1986) (internal citation omitted). To defeat the
motion, the non-moving party “must set forth specific facts showing that there is a genuine issue
for trial.” Anderson, 477 U.S. at 248.
Where a plaintiff is proceeding pro se, the Court must read the plaintiff’s papers
liberally and interpret them “to raise the strongest arguments that they suggest.” Triestman v.
Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal citation omitted). However, a “pro
se party’s bald assertions cannot overcome a motion for summary judgment” and the plaintiff
must provide the court with “some basis to believe that his version of relevant events is not
fanciful.” Yearwood v. LoPiccolo, No. 95 CV 2544, 1998 WL 474073, at *3 (S.D.N.Y. Aug. 10,
1998) (internal quotation marks and citations omitted); see also Saldana v. Local 32B-32J Serv.
Emps. Int'l Union, No. 03 CV 1853, 2005 WL 66895, at *2 (S.D.N.Y. Jan. 12, 2005) (“[e]ven a
pro se plaintiff [ ] cannot withstand a motion for summary judgment by relying merely on the
allegations of a complaint”).

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Individual Defendants McCoy and Janec
False Arrest Claim
Defendants move for summary judgment on Plaintiff’s false arrest claim, which is
asserted as a Fourth Amendment violation claim pursuant to 42 U.S.C. § 1983, as well as under
New York state law. Plaintiff opposes the motion, arguing that it should be denied because the
evidence would support a finding that the arrest was illegal, for lack of probable cause. A
section 1983 claim for false arrest is “substantially the same” in all relevant respects as a claim
for false arrest under state law. See Jocks v. Tavernier, 316 F.3d 128, 134 (2d Cir. 2003). Thus,
in order to state a claim for false arrest, a plaintiff must show that “(1) the defendant intended to
confine 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.” Savino v.
City of New York, 331 F.3d 63, 75 (2d Cir. 2003) (quoting Bernard v. United States, 25 F.3d 98,
102 (2d Cir. 1994)); see also Hart v. City of New York, No. 11 CV 4678 (RA), 2013 WL
6139648, at *3 (S.D.N.Y. Nov. 18, 2013).
“[T]he existence of probable cause is an absolute defense to a false arrest claim.”
Jaegly v. Couch, 439 F.3d 149, 152 (2d Cir. 2006). “‘Probable cause to arrest exists when the
arresting officer has 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.’” Torraco v. Port Authority of
New York and New Jersey, 615 F.3d 129, 139 (2d Cir. 2010) (quoting Escalera v. Lunn, 361
F.3d 737, 743 (2d Cir. 2004)). “[T]he probable cause standard is far below that of reasonable
doubt.” Husbands v. City of New York, 335 F. App’x 124, 127 (2d Cir. 2009). “The inquiry is
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limited to whether the facts known by the arresting officer at the time of the arrest objectively
provided probable cause to arrest.” Gonzalez v. City of Schenectady, 728 F.3d 149, 155 (2d Cir.
2013) (internal quotation marks and citation omitted). Courts must look to the totality of the
circumstances, keeping in mind that “probable cause does not require absolute certainty.”
Panetta v. Crowley, 460 F.3d 388, 395 (2d Cir. 2006) (internal quotation marks and citations
omitted).
Police officers do not have an affirmative duty to investigate allegations made by
a complaining witness prior to effectuating an arrest. See Jaegly, 439 F.3d at 153. Police have
probable cause to arrest if they receive “information from some person, normally the putative
victim or eyewitness, who it seems reasonable to believe is telling the truth.” Miloslavsky v.
AES Eng’g Soc’y Inc., 808 F. Supp. 351, 355 (S.D.N.Y. 1992), aff’d, 993 F.2d 1534 (2d Cir.
1993). “The veracity of citizen complaints [sic] who are the very victims of the very crime they
report to the police is assumed.” Id. Finally, even “the fact that an innocent explanation may be
consistent with the facts alleged . . . does not negate probable cause.” Waldron v. Milana,__F.
App’x___, 2013 WL 4733215, at *3 (2d Cir. 2013) (internal quotation marks and citation
omitted).
Here, it is undisputed that Defendants McCoy and Janec responded to a report
made by the two complaining victims, O.M. and E.K., regarding a vehicle break-in the vicinity
of 85th Street and Madison Avenue. (Def. 56.1 St. ¶¶ 6-7.) O.M. and E.K. told Defendant
McCoy that they saw the Plaintiff attempting to break into the van and E.K. told the police that
the Plaintiff held up a hammer and told him to “wait a second.” (Id. ¶¶ 8-11.) Plaintiff was
arrested in the vicinity of Park Avenue and 84th Street, within half an hour of the time of the

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break-in, after having been identified by the victims. (Id. ¶ 8.) These circumstances are
sufficient as a matter of law to establish the absolute defense of probable cause. See, e.g., Bacci
v. Fairway Mkt., No. 06 CV 2407 (DAB), 2008 WL 2139132, at *6-7 (S.D.N.Y. May 19, 2008)
(finding probable cause for petit larceny and possession of stolen property where police officers
were informed by employee that the employee observed plaintiff attempting to leave with unpaid
for items concealed on his person). Plaintiff’s argument that probable cause was lacking turns
principally on his contention that, having seen the surveillance video immediately after the
arrest, Defendant McCoy should have understood that the complainants’ accusations were
baseless. As explained above, however, the surveillance video does not exonerate Plaintiff
because, although he is not seen in it, the van door that he is alleged to have broken into and that
side of the van are not visible. Plaintiffs’ arguments thus have no evidentiary basis and are
insufficient to frame a genuine factual dispute as to the existence of probable cause.
Defendants’ motion for summary judgment on Plaintiff’s federal and state law
false arrest claims as against Defendants McCoy and Janec is granted. To the extent that
Plaintiff also asserts claims of false imprisonment, they are dismissed as well, because false
arrest and false imprisonment are synonymous under New York law. See Posr v. Doherty, 944
F.2d 91, 96 (2d Cir. 1991).
Unlawful Search Claim
Plaintiff appears to allege that he was subject to an unlawful strip search
following his arrest, but he does not assert this cause of action as a separate claim. (See, e.g.,
Compl. ¶ 4; Pl. Mem. in Opp. at ECF p. 25.) Reading Plaintiff’s papers in the light most
favorable to him, however, the Court assumes that Plaintiff intends to assert such a claim.
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According to Plaintiff, after his arrest, while he was being processed, members of the N.Y.P.D.’s
Emergency Services Unit collected his clothing and then left him alone and naked or with
underwear only for approximately ten minutes before bringing him some hospital pajamas and
telling the Plaintiff to put back on his socks, boots and heavy jacket. (Pl. Mem. in Opp. at ECF
p. 26.)11
Even drawing all inferences in Plaintiff’s favor, the search of Plaintiff was
justified as a matter of law, both as a search pursuant to a lawful arrest and as a reasonable
penological measure to protect the safety of the other inmates. See Illinois v. Lafayette, 462
U.S. 640, 645-46 (1983) (“[a] custodial arrest of a suspect based on probable cause is a
reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident
to the arrest requires no additional justification”; “[a]t the stationhouse, it is entirely proper for
the police to remove and list or inventory property found on the person or in the possession of an
arrested person who is to be jailed.”); see also Florence v. Board of Chosen Freeholders of
County of Burlington, 132 S. Ct. 1510 (2012) (holding that the practice of conducting a strip
search on all arrestees, regardless of severity of the underlying offense or individualized
suspicion of possession of contraband, does not violate the Fourth Amendment). “[I]f an
arrestee is taken to the police station, that is no more than a continuation of the custody inherent
in the arrest status. . . . The governmental interests underlying a stationhouse search of the
arrestee’s person and possessions may in some circumstances be even greater than those
supporting a search immediately following arrest.” Lafayette, 462 U.S. at 645. However, the
Fourth Amendment requires that strip searches of inmates be reasonable, see Hodges v. Stanley,
11

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Defendants argue that neither of the named Defendant officers conducted the
search, but this is a disputed issue of fact, as Plaintiff claims that the Defendants
were personally involved or, at the very least, failed to intervene.
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712 F.2d 34, 35 (2d Cir. 1983) (per curiam) (citing Bell v. Wolfish, 441 U.S. 520, 559 (1979))
and that “the need for a particular search [ ] be balanced against the resulting invasion of
personal rights,” Florence, 132 S. Ct. at 1516 (2012) (citation omitted). In determining whether
a particular strip search is reasonable, a court “must consider the scope of the particular
intrusion, the manner in which it is conducted, the justification for initiating it, and the place in
which it is conducted.” Bell, 441 U.S. at 559 (collecting cases).
Here, there was a reasonable suspicion that Plaintiff was engaged in criminal
activity as he was found with burglar’s tools and a knife at the time of his arrest near the vicinity
of the crime, and was identified by two complaining witnesses. After his arrest, it was
reasonable to search Plaintiff when processing him, both for evidence from the alleged crime and
for safety reasons. Arnold v. Westchester Cnty., No. 09 CV 3727, 2012 WL 336129, at *11
(S.D.N.Y. Feb. 3, 2012) (“prison officials have an obligation to take reasonable measures to
protect the safety of the prison’s inmates.”), report & rec. adopted by 2012 WL 841484
(S.D.N.Y. Mar 13, 2012). The approximately ten-minute delay in which Plaintiff was naked or
wearing underwear that Plaintiff contends occurred while he was waiting for his clothing to be
returned, while likely unpleasant for the Plaintiff, does not make the search unreasonable or
unlawful. Defendants’ motion for summary judgment is granted as to Plaintiff’s unlawful search
claim as against Defendants McCoy and Janec.
Malicious Prosecution Claim
Plaintiff also asserts a section 1983 claim for malicious prosecution in violation
of his Fourth Amendment rights. The law imposes “a heavy burden on malicious prosecution
plaintiffs.” Rothstein v. Carriere, 373 F.3d 275, 282 (2d Cir. 2004) (citation omitted). To
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prevail on a section 1983 claim for malicious prosecution, a plaintiff must first establish the
elements of a malicious prosecution claim under state law. See, e.g., Janetka v. Dabe, 892 F.2d
187, 189 (2d Cir. 1989). “To recover on a claim of malicious prosecution under New York law,
a plaintiff must establish four elements: that (1) the defendant either commenced or continued a
criminal proceeding against him; (2) that the proceeding terminated in his favor; (3) that there
was no probable cause for the criminal proceeding; and (4) that the criminal proceeding was
instituted in actual malice.” Russo v. State of N. Y. , 672 F.2d 1014, 1018 (2d Cir. 1982)
(internal citations omitted). In addition to satisfying the state law elements, for a section 1983
claim to succeed there must also be a showing of “a sufficient post-arraignment liberty restraint
to implicate the plaintiff's Fourth Amendment rights.” See Rohman v. New York City Transit
Authority (NYCTA), 215 F.3d 208, 215 (2d Cir. 2000). Defendants are entitled to summary
judgment dismissing Plaintiff’s malicious prosecution claim for three principal reasons: there is
no evidence that Defendants “initiated” the prosecution within the meaning of the relevant legal
standards; there was probable cause to support the prosecution; and the prosecution was not
terminated in Plaintiff’s favor.
“Initiation in [the context of malicious prosecution] is a term of art,” involving
more than merely reporting a crime and giving testimony. “It must be shown that defendant
played an active role in the prosecution, such as giving advice and encouragement or
importuning the authorities to act . . . One who does no more than disclose to a prosecutor all
material information within his knowledge is not deemed to be the initiator of the proceeding.”
Rohman, 215 F.3d at 217 (internal quotation marks and citations omitted). An arrest alone
“cannot serve as the predicate deprivation of liberty required by the Fourth Amendment because
it occurred prior to [a defendant’s] arraignment and without a warrant.” Singer v. Fulton County
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Sheriff, 63 F.3d 110, 116-17 (2d Cir. 1995). “Once a criminal defendant has been formally
charged, the chain of causation between the officer’s conduct and the claim of malicious
prosecution is broken by the intervening acts of the prosecutor, thereby abolishing the officer’s
responsibility for the prosecution.” Jouthe v. City of New York, No. 05 CV 1374 (NGG), 2009
WL 701110, at *11 (E.D.N.Y. March 10, 2009) (internal quotation marks and citation omitted).
Plaintiff argues that Defendant McCoy initiated the prosecution against the
Plaintiff by signing the criminal complaint and that Defendant Janec helped to initiate the
prosecution by signing the supporting affidavit. However, although McCoy swore out the
criminal court complaint, the information regarding Plaintiff’s alleged activities was obtained
from the two complaining victims. Merely signing the criminal complaint and/or reporting the
material information known to the officer does not override the independent prosecutorial
judgment of the assistant district attorney in deciding whether to bring charges. Plaintiff also
seems to allege that Defendants McCoy and Janec initiated the prosecution by withholding the
security video from the District Attorney’s Office Office, when the video would have allegedly
exonerated him. However, there is no evidence in the record to support this contention. In fact,
the Voluntary Disclosure Form, signed by the assistant district attorney, indicates that the
District Attorney’s Office was in possession of the video. (See Lulich Decl., Ex. N. “Voluntary
Disclosure Form.”) There is also no evidence to support Plaintiff’s contention that the video
exonerates him.
Even if Defendants McCoy and Janec could be found to have “initiated”
Plaintiff’s prosecution, the “existence of probable cause is a complete defense to a claim of
malicious prosecution in New York.” Savino, 331 F.3d at 72 (2d Cir. 2003). “The

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determination of probable cause in the context of malicious prosecution is essentially the same
as for false arrest, ‘except that [a claim for malicious prosecution] must be evaluated in light of
the facts known or believed at the time the prosecution is initiated, rather than at the time of
arrest.’” Danielak v. City of New York, No. 02 CV 2349, 2005 WL 2347095 at *10 (E.D.N.Y.
Sept. 26, 2005) (internal quotation marks and citation omitted), aff'd, 209 F. App’x 55 (2d Cir.
2006). “In order for probable cause to dissipate, the groundless nature of the charges must be
made apparent by the discovery of some intervening fact.” Lowth v. Town of Cheektowaga, 82
F.3d 563, 571 (2d Cir. 1996). Here, no new facts came to light after Plaintiff’s arrest, and both
E.K. and O.M. remained consistent in their identification of plaintiff and their accusations
against him. N.Y.P.D. records further show that Defendant McCoy vouchered evidence (e.g.
screwdrivers, a hammer etc.) that supported the complaining victims’ allegations following
plaintiff’s arrest, suggesting that the strength of the evidence against plaintiff increased after his
arrest. Nor does the record support Plaintiff’s allegation that the security video proves his
innocence.
As Plaintiff has not established the first two elements of his malicious prosecution
claim, the claim necessarily fails. However, there are also no facts from which the Court could
infer that defendants were motived by actual malice, see, e.g., Fulton v. Robinson, 289 F.3d 188,
198 (2d Cir. 2002) (affirming grant of summary judgment for defendants after the plaintiff failed
to present evidence of actual malice), or that the proceedings were terminated in Plaintiff’s
favor, which only occurs when the final disposition of the case: (1) involves the merits and (2)
tends to indicate the accused’s innocence as opposed to a dismissal of cumulative charges. See,
e.g., Murphy v. Lynn, 118 F.3d 938, 948 (2d Cir. 1997). “Where a prosecution did not result in
an acquittal, it is generally not deemed to have ended in favor of the accused, for purposes of a
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malicious prosecution claim, unless its final disposition is such as to indicate the accused's
innocence.” Fulton, 289 F.3d at 196. As explained above, the record indicates that the charges
were dismissed as duplicative for sentencing purposes of charges on which Plaintiff had already
been convicted and sentenced. That outcome is not indicative of Plaintiff’s innocence of the
dismissed charges. Accordingly, the Court grants Defendants’ motion for summary judgment as
to Plaintiff’s claim for malicious prosecution against Defendants McCoy and Janec and that
claim is dismissed.
Municipal Liability
Plaintiff also asserts a claim under 42 U.S.C. § 1983 against the City of New
York. In order to state a claim against a municipality under section 1983, a plaintiff must
adequately allege that a deprivation of his constitutional rights was caused by an official policy
or custom of that municipality. Monell v. Dep’t of Social Servs., 436 U.S. 658, 692-94 (1978).
Because Plaintiff has failed to present evidence that demonstrates that his constitutional rights
were violated, the city is entitled as a matter of law to summary judgment dismissing Plaintiff’s
section 1983 claims against it. See Askins v. Doe No. 1, 727 F.3d 248, 253 (2d Cir. 2013)
(“[u]nless a plaintiff shows that he has been the victim of a federal law tort committed by
persons for whose conduct the municipality can be responsible, there is no basis for holding the
municipality liable[;] Monell does not create a stand-alone cause of action under which a
plaintiff may sue over a governmental policy, regardless of whether he suffered the infliction of
a tort resulting from the policy”). If a plaintiff fails to plausibly allege that municipal employees
violated his or her constitutional rights, the plaintiff’s Monell claim “necessarily fails as well” as
against the municipal entity. Kajoshaj v. New York City Dep’t of Educ., ___F. App’x___, 2013

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WL 5614113, at *4 (2d Cir. Oct 15, 2013).12 Plaintiff’s state law claims against the city based
on respondeat superior or agency theories, for false arrest, false imprisonment and malicious
prosecution are also dismissed, for lack of evidence indicating commission of the underlying
violations.
Remaining State Law Claim
Plaintiff’s papers may be read liberally to assert a state law claim for intentional
infliction of emotional distress. As the Court is granting summary judgment dismissing all of
Plaintiff’s federal causes of action, the Court declines to exercise jurisdiction of any remaining
state law claims. See 28 U.S.C. § 1367(c)(3); see also, Marcus v. AT & T Corp., 138 F.3d 46,
57 (2d Cir. 1998) (“where the federal claims are dismissed before trial, the state claims should be
dismissed as well”).
CONCLUSION
For the foregoing reasons, Defendants’ motion for summary judgment is granted.
Plaintiff’s federal and state law claims for false arrest, false imprisonment, and malicious
prosecution, and any federal claim for illegal search, are dismissed. The Court declines to
exercise supplemental jurisdiction of any remaining state law claims, which are dismissed
without prejudice to litigation in state court.
This Memorandum Order resolves docket entry number 30.

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Furthermore, aside from naked boilerplate allegations against the City of New
York in his opposition, the Plaintiff has also not sufficiently demonstrated that the
City of New York had a custom, policy, or practice of conducting unlawful
arrests, searches, or engaging in malicious prosecution so as to sustain a section
1983 claim.
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The Clerk of Court is hereby requested to enter judgment in Defendants’ favor
and close this case.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this
order would not be taken in good faith, and therefore in forma pauperis status is denied for the
purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
SO ORDERED.

Dated: New York, New York
September 30, 2014
/s/ Laura Taylor Swain
LAURA TAYLOR SWAIN
United States District Judge

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