Johnson v. The City of New York et al

Filing 29

OPINION AND ORDER. Since there was no underlying Constitutional violation, the Court finds that it would be futile for Plaintiff to amend the Complaint to add the names of the John Doe police officers. Accordingly, the motion for summary judgment is GRANTED. The Clerk of Court is directed to terminate Docket Entry number 15 and to close the case. Re: 15 MOTION for Judgment on the Pleadings Served on May 21, 2013 filed by The City of New York. (Signed by Judge Katherine Polk Failla on 11/25/2013) (rjm)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------------------------------------X
:
ARTHUR JOHNSON,
:
:
Plaintiff,
:
:
-v.:
:
THE CITY OF NEW YORK; POLICE OFFICER
:
JOHN DOE #972799; and POLICE OFFICER
:
JOHN DOE S #1-4,
:
:
Defendants.
:
:
------------------------------------------------------------X

USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED:______________
11/25/2013

12 Civ. 4431 (KPF)
OPINION AND ORDER

KATHERINE POLK FAILLA, District Judge:
In June 2010, Plaintiff Arthur Johnson was arrested by the New York
City Police Department (the “NYPD”) on robbery and burglary charges. On
March 15, 2011, the charges were dismissed. Fifteen months later, Plaintiff
filed the instant lawsuit under 42 U.S.C. § 1983, alleging claims of false arrest
and malicious prosecution — despite the fact that police officers involved in
Plaintiff’s arrest had, prior to making that arrest, interviewed the victim of the
robbery and reviewed a surveillance video that showed Plaintiff (i) present at
the approximate time and place of the robbery, (ii) with a woman who pled
guilty to participating in the robbery, and (iii) being pursued by the victim.
Defendant City of New York (“City”), the only defendant served in this case, now
moves for a judgment on the pleadings. 1 For the reasons set forth in the
1

The defendants named in the Complaint as “Officer John Doe #972799” and “Officer
John Doe[s] #1-4” have not been identified or served. As it happens, NYPD Detective
Keith Opalick, who conducted the investigation into the robbery and participated in
Plaintiff’s arrest, has a similar, but not identical, Tax Registration Number. (See

remainder of this Opinion, the Court sua sponte converts the motion to one for
summary judgment, and grants that motion.
FACTUAL BACKGROUND
The following facts are taken from Plaintiff’s Complaint, the security
video incorporated by reference in the Complaint, 2 matters of public record of
which the Court may properly take judicial notice (such as Plaintiff's arrest
report and relevant police records), 3 and the Declaration of Detective Keith
Opalick. All of the facts contained herein are uncontroverted.
A.

The April 3, 2010 Incident and Its Investigation
The criminal charges against Plaintiff arose out of an April 3, 2010

incident at a residential hotel on West 45th Street in Manhattan (the “Hotel”).
(Ex. E, F, G). An elderly Hotel resident reported that an “unknown black male
attempted to and/or forcibly took something from him/her.” (Complaint
Declaration of Alison G. Moe in Support of Defendant’s Motion for Judgment on the
Pleadings (Dkt. #16), Exhibits C, F, G). Detective Opalick confirmed these facts, and
others, in a sworn declaration submitted in connection with this motion. (See Ex. I to
the Second Declaration of Alison G. Moe in Support of Defendant’s Motion for Judgment
on the Pleadings (Dkt. #28) (“Opalick Decl.”)).
2

The parties do not dispute that the video, which is included as Exhibit B to the Moe
Declaration, is incorporated by reference in the Complaint. (Def. Br. 4-5; Pl. Opp. 2).
All references to this exhibit are to the specific camera (1, 9, or 12) and the specific time
stamp in the video.

3

The Court may consider matters of which judicial notice may be taken under Fed. R.
Evid. 201, including public records such as arrest reports, indictments, and criminal
disposition data. Kramer v. Time Warner Inc., 937 F.2d 767, 773-75 (2d Cir. 1991)
(holding that the Court may consider matters of which judicial notice may be taken
under Fed. R. Evid. 201); see also Awelewa v. New York City, No. 11 Civ. 778 (NRB),
2012 WL 601119, at *2 (S.D.N.Y. Feb. 23, 2012) (judicial notice may be taken of arrest
reports, criminal complaints, indictments, and criminal disposition data) (citing Wims v.
New York City Police Dep’t, No. 10 Civ. 6128 (PKC), 2011 WL 2946369, at *2 (S.D.N.Y.
July 20, 2011)). Contrary to Plaintiff’s argument, see Pl. Opp. 2, where the Court takes
judicial notice, it does so “in order to determine what statements [the public records]
contained ... not for the truth of the matters asserted.” Roth v. Jennings, 489 F.3d 499,
509 (2d Cir. 2007) (internal quotation marks and emphases omitted) (quoting Kramer,
937 F.3d at 774).

2

(“Compl.”) ¶ 18). Plaintiff was “allegedly seen leaving the building on the day of
the alleged burglary/attempted robbery.” (Compl. ¶ 19).
According to a criminal complaint sworn out by NYPD Officer John South
just after midnight on April 4, 2010, another Hotel resident, Velvet Volter, was
arrested and charged with robbery and burglary offenses on April 3, 2010.
(Ex. C). 4 The criminal complaint against her contained the victim’s account of
the robbery incident. (Id. at 1). It also recited that another NYPD officer had
viewed video surveillance of the incident, in which Volter and an
“unapprehended male” were observed leaving the area near the victim’s
apartment just after the incident occurred, with the victim following after them.
(Id. at 2).
The day after the robbery, on April 4, 2010, Detective Keith Opalick
interviewed the 72-year-old female victim. (Ex. F at 2). The victim reported
that two unknown perpetrators, at least one of whom was male and both of
whom were black, punched her, shoved her head against the door of her
apartment, and attempted to rob her, but took nothing. (Ex. F at 2-5; Ex. G at
1-2). The victim also related to Detective Opalick that, as the perpetrators left
her apartment, she followed them down the hallway. (Ex. G at 2).
In the course of Detective Opalick’s investigation, he became aware that
Volter was cohabitating with Plaintiff Johnson in the Hotel. (Opalick Decl. ¶ 5).
Detective Opalick also received a copy of an incident report, prepared on April

4

Except where otherwise noted, all references to page numbers in the Exhibits to the
Moe Declaration are to the page numbers designated by ECF.

3

3, 2010, from representatives of the Hotel. 5 (Ex. E; Opalick Decl. ¶ 7). The
report had been prepared by a company that provided security for the Hotel; it
was later submitted to the NYPD and maintained as part of the police file. (Ex.
E). The report related that the police had been contacted concerning the
robbery incident; that the perpetrators of the incident had been identified as
two “clients” at the Hotel, Velvet Volter and Arthur Johnson; and that one
client (Volter) had been arrested that day. (Id. at 1-2). Detective Opalick
subsequently obtained a picture of Plaintiff Johnson from police databases.
(Opalick Decl. ¶ 5).
On April 5, 2010, Detective Opalick and at least one other NYPD officer
went to the Hotel to review the relevant surveillance footage. (Ex. F at 3;
Opalick Decl. ¶ 6). According to his report, Detective Opalick observed two
individuals in the video “leaving the area where the incident occurred while
being followed by the [victim]” — Volter, whom Opalick knew had been
arrested, and Plaintiff, whom Opalick tried without success to find later that
day. (Ex. F at 3). Having compared the man in the video with the police photo
of Plaintiff, Detective Opalick believed that the male in the videotape was in fact
5

In considering the record on the motion for judgment on the pleadings, the Court
declined to take judicial notice of the security report, although it is a part of the police
file concerning Plaintiff’s arrest, because its accuracy was not readily verifiable. See
Fed. R. Evid. 201(b); Toliver v. City of New York, No. 10 Civ. 3165 (PAC) (JCF), 2013 WL
1155293, at *2 (S.D.N.Y. Mar. 21, 2013) (declining to take judicial notice of a witness
affidavit and case history report because their accuracy was not readily verifiable).
However, having converted the motion to one for summary judgment, and upon
consideration of Detective Opalick’s Declaration, it is permissible for the Court to
consider this report —not for the truth of the matter asserted, but to determine what
the record contained. See id. Detective Opalick avers that he relied upon the security
report in his investigation, and independently corroborated its contents (i.e., that
Plaintiff was the man in the videotape) through police databases and review of the
videotape. (See Opalick Decl. ¶¶ 5-6). In fact, Plaintiff concedes that he is the man in
the videotape. (Dkt. #25).

4

Plaintiff. (Opalick Decl. ¶ 8). The officers “canvassed the building asking if
anyone recognized [Plaintiff] from the video.” (Cf. Compl. ¶¶ 19-21 (alleging
that Plaintiff had been identified by others at the Hotel as “someone they knew
but not anyone involved in the alleged burglary/robbery”)).
The Court has reviewed the video surveillance footage. (Ex. B). A portion
of that footage was taken by a camera near the doorway to the victim’s
apartment; it shows a black man and a black woman walking quickly down the
hallway during the approximate time of the robbery. (Id. at Camera 12,
17:25:47). The woman is observed stopping and entering an apartment on the
same floor as the victim’s, while the man waits for her at the stairwell. (Id. at
Camera 12, 17:26:00-05). The woman then rejoins the man and they
disappear into the stairwell. (Id.). Shortly thereafter, an older, seemingly
disoriented woman — the robbery victim — enters the hallway and attempts
without success to follow the man and the woman. (Id. at Camera 12,
17:26:10).
The man and the woman are observed several seconds later by a different
security camera on a different floor, walking together through the hallway. (Ex.
B at Camera 9, 17:26:47). A few moments later, they appear on still another
camera, walking through the lobby together and leaving the hotel. (Id. at
Camera 1, 17:27:14).
B.

Volter’s Guilty Plea
As noted, Velvet Volter was arrested on April 3, 2010, the same date as

the robbery incident. In her post-arrest statement, Volter informed her

5

arresting officer that “we knocked on the door and then I left.” (Ex. C). Volter
later admitted her involvement in the robbery and pled guilty to assault in the
third degree on May 19, 2010. (Ex. D at 3). As part of her plea allocution,
Volter answered “yes” to the question, “On April 3, 2010 at 1725 hours inside
of 317 West 45th Street in New York County, did you slam a door into the
complainant’s head causing her to suffer substantial pain?” (Id.).
C.

Johnson’s June 11, 2010 Arrest
Detective Opalick communicated with the Assistant District Attorney

(“ADA”) handling Volter’s prosecution while continuing his search for Plaintiff.
(See Ex. F at 1, 4-5). On April 5, 2010, Detective Opalick issued an NYPD
Investigation Card (or “I-Card”) directing the arrest of Plaintiff; Plaintiff was
subsequently arrested in Bronx County Criminal Court on June 11, 2010,
where he was appearing in connection with an unrelated criminal matter.
(Compl. ¶¶ 8, 9, 11; Opalick Decl. ¶ 9). 6

6

The record is not clear as to whether Detective Opalick actually arrested Plaintiff.
Detective Opalick avers that he “directed” the arrest of Arthur Johnson. (Opalick Decl.
¶ 9). However, Detective Opalick stated in Plaintiff’s arrest report that “[o]n June 11,
2010, at approximately 1220 [hours] I did arrest the outstanding perp[etrator] regarding
this robbery case. The perp[etrator] was picked up at approximately 1100 [hours] at his
court appearance in the Bronx by Det. Monahan of the WAT team.” (Ex. F at 4-5).
This discrepancy is immaterial for the purposes of this Opinion. Even if Detective
Opalick were not the arresting officer, knowledge from his investigation can be imputed
to the arresting officer(s) through the collective or imputed knowledge doctrine, which
recognizes that “in light of the complexity of modern police work, the arresting officer
cannot always be aware of every aspect of an investigation; sometimes his authority to
arrest a suspect is based on facts known only to his superiors or associates.” Zellner v.
Summerlin, 494 F.3d 344, 369 (2d Cir. 2007) (quoting United States v. Valez, 796 F.2d
24, 28 (2d Cir. 1986); see also Illinois v. Andreas, 463 U.S. 765, 772 n.5 (1983) (finding,
for purposes of probable cause analysis, that “where law enforcement authorities are
cooperating in an investigation, ... the knowledge of one is presumed shared by all”
(citing Whiteley v. Warden, 401 U.S. 560, 568 (1971))); cf. United States v. Colon, 250
F.3d 130, 135 (2d Cir. 2001) (“[A]n arrest ... is permissible where the actual arresting or
searching officer lacks the specific information to form the basis for probable cause or

6

On June 13, 2010, Plaintiff was charged with burglary of a dwelling
causing injury, attempted robbery causing physical injury, and attempted
robbery aided by another. (Compl. ¶¶ 8-12; Ex. G). A grand jury did not indict
Plaintiff on these charges, however. According to the Complaint, the charges
were dismissed against Johnson on March 15, 2011. (Compl. ¶ 15).
D.

The Instant Litigation
Plaintiff filed the instant action on June 6, 2012, alleging violations of his

rights under the Fourth, Fifth, and Fourteenth Amendments to the
Constitution, as well as the New York State Constitution, and advancing claims
of false arrest and malicious prosecution, all in connection with his June 11,
2010 arrest and June 13, 2010 presentment. (Dkt. #1). Among other things,
Plaintiff contended that he had been charged on June 13, 2010, “[b]ased on the
mere fact that a resident/some residents of the building recognized Plaintiff,”
and that the police officers had never obtained a witness statement linking
Plaintiff to the incident. (Compl. ¶¶ 22, 23). Since there was no witness
statement, Plaintiff reasoned, he “could not be indicted and was not indicted
for the crimes.” (Compl. ¶ 24; see also id. ¶ 26 (“Without a complainant with
admissible evidence to link Plaintiff to the alleged burglary/robbery, the Police
Officers lacked probable cause to seek the arrest of Plaintiff and to have him
arrested....”)).
Defendant City moved for a judgment on the pleadings on June 17,
2013. (Dkt. #15). The Court held oral argument on that motion on August 20,
reasonable suspicion but sufficient information to justify the arrest or search was
known by other law enforcement officials initiating or involved with the investigation.”).

7

2013, and noted at that conference that Defendant had submitted materials
beyond what the Court could properly consider in a motion for judgment on the
pleadings, viz., the evidence related to the identification of Plaintiff as the man
in the videotape. (August 20, 2013 Transcript (“Aug. 20 Tr.”) 2). As such, the
Court notified the parties of its intention to convert the motion for judgment on
the pleadings to one for summary judgment. (Id.).
Defense counsel raised the possibility of introducing a stipulation from
Plaintiff that he was in fact the man in the videotape. (Aug. 20 Tr. 13). When
the Court asked Plaintiff’s counsel whether his client was indeed the man in
the videotape, counsel replied that he did not know because he had never met
his client in person. (Id. at 15-16). Nor had counsel made arrangements for
Plaintiff, currently incarcerated, to see the videotape, even though it was an
essential piece of evidence that had been incorporated by reference in Plaintiff’s
Complaint. (Id. at 16). Counsel also conceded that because he had never met
Plaintiff, he had carefully drafted the Complaint to elide the issue of whether
Plaintiff was the man in the videotape. (Id. at 17-18).
In light of these admissions, the Court ordered Plaintiff’s counsel to show
his client the videotape in question and to notify the Court as to whether
Plaintiff planned to contest his identification as the man in the videotape.
(Aug. 20 Tr. 22-23). On October 24, 2013, Plaintiff’s counsel notified the Court
that his client was the man in the videotape. (Dkt. #25).
Subsequently, at a conference held on November 1, 2013, the Court
asked the parties what discovery or supplemental briefing they required before

8

proceeding to summary judgment. Neither party wished to reopen discovery
fully, and neither party sought to supplement the briefing. Plaintiff waived the
right to additional discovery and sought to have the motion decided on the
record as it stood. 7 Defendant sought to submit a declaration from Detective
Opalick. (November 1, 2013 Transcript (“Nov. 1 Tr.”) 11).
Defendant submitted that declaration on November 8, 2013 (Dkt. #28),
and Plaintiff did not respond to, much less controvert, any facts averred in that
Declaration. The Court now considers the motion for judgment on the
pleadings, which it converts to one for summary judgment.
DISCUSSION
A.

The Standard of Review
1.

Conversion of a Rule 12(c) Motion to a Rule 56 Motion

Rule 12(d) of the Federal Rules of Civil Procedure provides, “If, on a
motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are
presented to and not excluded by the court, the motion must be treated as one
for summary judgment under Rule 56. All parties must be given a reasonable

7

Plaintiff’s counsel initially stated that “[m]y client is not basically willing or able to start
spending money to conduct depositions. He would be willing to stipulate that the Court
make a decision on the record as it is now, if that is enough for the Court to make a
decision.” (Nov. 1 Tr. 4-5). Counsel later stated that
plaintiff doesn’t want to invest much more resources on the matter at
this time. If in fact the detective would say that and that is what
happened, plaintiff will really have no position to the Court considering
such an affidavit in converting the case from a motion to dismiss to a
summary judgment motion. On our part, we are not going to be
submitting any further papers and we will rely on what we already
submitted.
(Id. at 6). Still later in the conference, counsel reiterated that “as counsel, based on
where I think the case is, hopefully I wouldn't have to do anything else.” (Id. at 12).

9

opportunity to present all the material that is pertinent to the motion.” Fed. R.
Civ. P. 12(d). Thus, a district court may convert a motion for judgment on the
pleadings into a motion for summary judgment when the motion presents
matters outside the pleadings, but the court must give “sufficient notice to an
opposing party and an opportunity for that party to respond.” Groden v.
Random House, Inc., 61 F.3d 1045, 1052 (2d Cir. 1995).
“Care should, of course, be taken by the district court to determine that
the party against whom summary judgment is rendered has had a full and fair
opportunity to meet the proposition that there is no genuine issue of material
fact to be tried, and that the party for whom summary judgment is rendered is
entitled thereto as a matter of law.” Ramsey v. Coughlin, 94 F.3d 71, 73-74 (2d
Cir. 1996) (quoting 6 James W. Moore, Moore’s Federal Practice ¶ 56.12, at 56165 (2d ed. 1995)).
Defendant City presented matters outside the pleadings in its motion for
judgment on the pleadings. Significantly, however, there are no material facts
in dispute; indeed, Plaintiff has not controverted any facts put forth by
Defendant. The Court provided notice of its intention to convert the motion at
the August 20, 2013 conference. At the subsequent November 1, 2013
conference, the parties notified the Court that they did not wish to conduct any
further discovery, and that only Defendant sought to supplement the record
with an affidavit from Detective Opalick. Accordingly, it is appropriate for the
Court to convert the motion to one for summary judgment.

10

2.

Summary Judgment Generally

Under Fed. R. Civ. P. 56(a), summary judgment may be granted only if all
the submissions taken together “show[] that there is no genuine issue as to any
material fact and the movant is entitled to judgment as a matter of law.” See
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-48 (1986).
The moving party bears the initial burden of demonstrating “the absence
of a genuine issue of material fact.” Celotex, 477 U.S. at 323. A fact is
“material” if it “might affect the outcome of the suit under the governing law,”
and is genuinely in dispute “if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248; see also
Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005) (citing Anderson).
The movant may discharge this burden by showing that the nonmoving party
has “fail[ed] to make a showing sufficient to establish the existence of an
element essential to that party’s case, and on which that party will bear the
burden of proof at trial.” Celotex, 477 U.S. at 322; see also Selevan v. N.Y.
Thruway Auth., 711 F.3d 253, 256 (2d Cir. 2013) (finding summary judgment
appropriate where the non-moving party fails to “come forth with evidence
sufficient to permit a reasonable juror to return a verdict in his or her favor on
an essential element of a claim” (internal quotation marks omitted)).
If the moving party meets this burden, the nonmoving party must “set
out specific facts showing a genuine issue for trial” using affidavits or
otherwise, and cannot rely on the “mere allegations or denials” contained in the

11

pleadings. Anderson, 477 U.S. at 248, 250; see also Celotex, 477 U.S. at 32324; Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009). The nonmoving party
“must do more than simply show that there is some metaphysical doubt as to
the material facts,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 586 (1986) (internal quotation marks omitted), and cannot rely on “mere
speculation or conjecture as to the true nature of the facts to overcome a
motion for summary judgment,” Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 12 (2d
Cir. 1986) (quoting Quarles v. General Motors Corp., 758 F.2d 839, 840 (2d
Cir.1985)). Furthermore, “[m]ere conclusory allegations or denials cannot by
themselves create a genuine issue of material fact where none would otherwise
exist.” Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010) (quoting Fletcher v.
Atex, Inc., 68 F.3d 1451, 1456 (2d Cir. 1995) (internal quotation marks and
citations omitted)).
B.

Application
1.

Plaintiff’s Section 1983 Claims for False Arrest and Malicious
Prosecution Fail as a Matter of Law

Section 1983 establishes liability for deprivation, under the color of state
law, “of any rights, privileges, or immunities secured by the Constitution.” 42
U.S.C. § 1983. Plaintiff here alleges violations of his Fourth, Fifth, and
Fourteenth Amendment rights, and brings claims for false arrest and malicious
prosecution in connection with his June 11, 2010 arrest and his June 13,
2010 presentment. A claim for false arrest, under Section 1983 or New York
State law, requires a plaintiff to show “that the defendant intentionally confined
him without his consent and without justification.” Weyant v. Okst, 101 F.3d
12

845, 852 (2d Cir. 1996). A claim for malicious prosecution, by contrast,
requires, a showing that: (i) the defendant initiated a criminal proceeding;
(ii) that was terminated favorably to the plaintiff; (iii) there was no probable
cause for the criminal charge; and (iv) the defendant acted maliciously. See
Rothstein v. Carriere, 373 F.3d 275, 282 (2d Cir. 2004) (citing Savino v. City of
New York, 331 F.3d 63, 72 (2d Cir. 2003)); accord Bernard v. United States, 25
F.3d 98, 104 (2d Cir. 1994). Since probable cause is a complete defense to
claims of both false arrest and malicious prosecution, the Court considers
whether the NYPD had probable cause to arrest Plaintiff on June 11, 2010.
See Weyant, 101 F.3d at 852 (false arrest); Manganiello v. City of New York,
612 F.3d 149, 161–62 (2d Cir. 2010) (malicious prosecution).
A police officer has probable cause when he 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.” Escalera v.
Lunn, 361 F.3d 737, 743 (2d Cir. 2004) (internal quotation marks omitted)
(quoting Weyant, 101 F.3d at 852). The Second Circuit has held that “police
officers, when making a probable cause determination, are entitled to rely on
the victims’ allegations that a crime has been committed.” Martinez v.
Simonetti, 202 F.3d 625, 634 (2d Cir. 2000) (citing Singer v. Fulton Cnty. Sherriff,
63 F.3d 110, 119 (2d Cir. 1995)); see also Curley v. Village of Suffern, 268 F.3d
65, 70 (2d Cir. 2001) (holding that an arrest may be proper “[w]hen information
is received from a putative victim ... unless the circumstances raise doubt as to

13

the person’s veracity” (citing Singer, 63 F.3d at 119)); Miloslavsky v. AES Eng’g
Soc., Inc., 808 F. Supp. 351, 355 (S.D.N.Y. 1992) (“The veracity of citizen
complaints who are the victims of the very crime they report to the police is
assumed.” (citing Adams v. Williams, 407 U.S. 143, 146-47 (1972))).
Furthermore, officers are “not required to explore and eliminate every
theoretically plausible claim of innocence before making an arrest.” Martinez,
202 F.3d at 635 (internal quotation marks omitted) (quoting Ricciuti v. N.Y.C.
Transit Auth., 124 F.3d 123, 128 (2d Cir. 1997)); accord Awelewa, 2012 WL
601119, at *3; see also Koester v. Lanfranchi, 288 F. App’x 764, 766 (2d Cir.
2008) (summary order) (concluding that an “officer is not required to eliminate
every possible line of impeachment that might apply to a victim complainant”
(internal quotation marks omitted) (quoting Krause v. Benett, 887 F.2d 362,
372 (2d Cir. 1989))).
i.

Probable Cause Existed for Plaintiff’s Arrest

The material, non-disputed facts make plain that probable cause existed
for Plaintiff’s arrest. The record indicates that, at the time he directed that
arrest, Detective Opalick had
•

Been assigned to investigate the April 3 attempted robbery
incident and had interviewed the victim of that incident (Ex. F
at 2; Opalick Decl. ¶ 4);

•

Understood that the incident involved two perpetrators, one of
whom was male and both of whom were black (Ex. F at 2);

•

Become aware that Velvet Volter had been arrested the day the
attempted robbery took place (Ex. C; Opalick Decl. ¶ 5; Ex. F at
1, 4-5);

14

•

Learned that, at the time of the attempted robbery, Volter was
cohabitating with Plaintiff in the Hotel where the incident took
place (Ex. G at 2; Opalick Decl. ¶ 5);

•

Become aware that the perpetrators in the videotape had been
identified by the Hotel as “Velvet Volter” and “Arthur Johnson”
(Compl. ¶¶ 18-21; Ex. G at 2);

•

Obtained a picture of Plaintiff from police databases (Opalick
Decl. ¶ 5); and

•

Reviewed the Hotel’s security video footage from the date and
time in question, which showed “Volter” and “Johnson” — who
matched the victim’s description of the perpetrators — walking
down the hallway from the victim’s apartment at the
approximate time of the attempted robbery, followed by the
victim (Ex. F at 3; see also Ex. B at Camera 12 17:25:47-26:10,
Camera 9 17:26:47, Camera 1 17:27:14). The male perpetrator
also matched the photograph of Plaintiff that Detective Opalick
had obtained from the police database (Opalick Decl. ¶¶ 6, 9).

All of these facts, taken together, 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,” thus establishing probable cause for Plaintiff’s
arrest. See Escalera, 361 F.3d at 743.
The additional record evidence known to the NYPD at the time of
Plaintiff’s arrest confirms the Court’s conclusion that probable cause existed
for that arrest. This evidence included supplemental information about Velvet
Volter; Volter was reported to have admitted in a post-arrest statement that
“we knocked on the door,” thereby corroborating the victim’s account of two
perpetrators being involved. (Ex. C at 2 (emphasis added)). Volter also pled
guilty to the offense in May 2010, a month prior to Plaintiff’s arrest. (Ex. D at
3). In her allocution, Volter confirmed that she assaulted the victim at the time

15

and place of the April 3 robbery, presumably before being caught on video with
Plaintiff fleeing down the hallway. (Ex. B, D). 8
Plaintiff argues that because the video camera was not fixed directly on
the victim’s door, there was no probable cause for the arrest. (Pl. Opp. 3). This
argument is unpersuasive. The video need not show the actual crime in
question in order to support probable cause for arrest. The camera recorded
the area near the victim’s door, and showed two perpetrators at or about the
time and place of the robbery incident — one of whom pled guilty to assaulting
the victim that day and the other of whom was identified by several people as
Plaintiff — walking away from the victim’s apartment and the victim chasing
after them. Detective Opalick was entitled to credit the victim’s account of the
crime, particularly when that account was corroborated by the security footage
he reviewed and the other information he obtained in the course of his
investigation. See Martinez, 202 F.3d at 634. Even taking the facts in the light
most favorable to Plaintiff, the Court holds that no reasonable jury could find
that the police lacked probable cause to arrest Plaintiff.
ii.

Probable Cause Existed for Plaintiff’s Prosecution

Because the Court finds that there was probable cause to arrest Plaintiff,
in order to prevail on his malicious prosecution claim, Plaintiff must show that
the discovery of some intervening fact made the probable cause “dissipate”
between the time of the arrest and the commencement of the prosecution.
8

Since Detective Opalick remained in contact with the ADA responsible for the
prosecution of Volter’s case, and since Volter’s guilty plea occurred one month prior to
Plaintiff’s arrest, Opalick may well have had actual knowledge of Volter’s guilty plea.
(See, e.g., Ex. F at 1, 4-5).

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Lowth v. Town of Cheektowaga, 82 F.3d 563, 571 (2d Cir. 1996) (“In order for
probable cause to dissipate, the groundless nature of the charges must be
made apparent by the discovery of some intervening fact.” (citing Callan v.
State, 73 N.Y.2d 731 (1998))).
Plaintiff argues that since the victim was unable to identify the
perpetrators, the prosecution was malicious and without probable cause. (Pl.
Opp. 4). As Defendant notes, this requires the Court to accept the dubious
proposition that there can be probable cause to prosecute only if the victim can
identify the attacker. (Def. Reply 2). Though the victim could not identify the
perpetrators, her account was corroborated by other evidence, which, taken
together, established probable cause for the prosecution. Quite simply, no
intervening fact was discovered between Plaintiff’s arrest and prosecution that
made the charges against him appear groundless. Therefore, Plaintiff’s
malicious prosecution claim fails.
2.

Plaintiff Has Failed to State a Monell Claim

Plaintiff has also failed to state a claim for municipal liability under
Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978). Significantly, “Monell does
not provide a separate cause of action for the failure by the government to train
its employees; it extends liability to a municipal organization where that
organization’s failure to train, or the policies or customs that it has sanctioned,
led to an independent constitutional violation.” Segal v. City of New York, 459
F.3d 207, 219 (2d Cir. 2006) (citing Monell, 436 U.S. at 694). Because
Plaintiff’s potential claims against the City of New York presuppose the

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existence of an independent constitutional violation, and because this Court
has found that none has been identified, Plaintiff’s Monell claims must be
dismissed. See, e.g., Mitchell v. Cnty. of Nassau, 786 F. Supp. 2d 545, 563
(E.D.N.Y. 2011) (“In order to state a viable Monell claim ... plaintiff must
establish some constitutional violation.” (collecting cases)).
3.

The Court Declines to Exercise Jurisdiction over Plaintiff’s
Remaining State Law Claims

As Johnson’s federal law claims have been dismissed, the Court declines
to exercise jurisdiction over his state law claims. See Kolari v. N.Y.Presbyterian Hosp., 455 F.3d 118, 122 (2d Cir. 2006) (holding that if no federal
claims remain for trial, a court may decline to exercise supplemental
jurisdiction over state law claims (citing 28 U.S.C. § 1367(c)(3))).
CONCLUSION
Since there was no underlying Constitutional violation, the Court finds
that it would be futile for Plaintiff to amend the Complaint to add the names of
the John Doe police officers. Accordingly, the motion for summary judgment is
GRANTED. The Clerk of Court is directed to terminate Docket Entry number
15 and to close the case.
SO ORDERED.
Dated: November 25, 2013
New York, New York
__________________________________
KATHERINE POLK FAILLA
United States District Judge

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