Barua v. City of New York et al
MEMORANDUM AND ORDER granting 21 Motion for Summary Judgment. For the foregoing reasons, defendants' motion is granted in all respects. The complaint is dismissed with prejudice. (Signed by Judge Naomi Reice Buchwald on 12/28/2016) (cla)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
MEMORANDUM AND ORDER
- against 14 Civ. 584 (NRB)
CITY OF NEW YORK,
“JOHN DOES” and
NAOMI REICE BUCHWALD
UNITED STATES DISTRICT JUDGE
Plaintiff Mukul Barua (“Barua”) filed this action against
the City of New York (the “City”), Nathan Cavada
(“Cavada”), and John and Jane Does, alleging violations of his
rights under 42 U.S.C. § 1983, the Constitution, and New York law.
Currently before the Court is defendants’ motion for summary
judgment dismissing Barua’s complaint in its entirety.
reasons stated below, defendants’ motion is granted.
Drawing on the parties’ Local Rule 56.1 submissions and other
submissions, we summarize the facts, noting matters in dispute.1
Defendants argue that, in light of problems with Barua’s response to their
Rule 56.1 statement, this Court should disregard Barua’s Rule 56.1 response and
each paragraph in defendants’ Rule 56.1 statement should be deemed admitted.
Barua’s Rule 56.1 response fails in many instances to cite admissible evidence
supporting its contentions, is overly argumentative and verbose, and offers
non-responsive objections to that miss the point of Local Rule 56.1. Although
the response is deficient in these respects and made deciding this motion more
complicated than it should have been, it also contained some proper responses,
On Wednesday, July 6, 2011, sometime between 5 p.m. and 6:30 p.m.,
the plaintiff and defendant Cavada, a police officer (now a
detective) with the New York City Police Department assigned to
Transit District 4, were on the southbound platform at the 42nd
Street Grand Central subway station in New York City.
a dark-skinned male of Bangladeshi descent who was 33 years old at
the time, was there to take the 4 or 5 train to Bowling Green near
his place of employment.
Cavada was on duty with NYPD police
Barua, Cavada, and Chin boarded the downtown 5 train.
14th Street Union Square station, Barua, who was standing by the
door, temporarily exited the train to let passengers off of the
train, and then re-entered the same car.
(Cavada testified at his
deposition that Barua re-entered through a different door on the
Cavada and Barua agree that the train was crowded.
Indeed, Barua acknowledged that the train was so crowded that his
and Barua has provided relevant record citations and exhibits elsewhere in his
opposition papers. “A district court has broad discretion to determine whether
to overlook a party’s failure to comply with local court rules,” Holtz v.
Rockefeller & Co., 258 F.3d 62, 73 (2d Cir. 2001), including Local Rule 56.1,
see Carrillos v. Inc. Vill. of Hempstead, 87 F. Supp. 3d 357, 365–66 (E.D.N.Y.
2015). Ultimately, as in Carrillos, “both the Defendants and the Court are
aware of the portions of the record upon which plaintiff relies in opposition
to the motions, and Defendants have not identified any prejudice arising from
plaintiff’s failure to comply with Rule 56.1 court.” Id. Therefore, this Court
denies, with some reluctance, defendants’ request.
body was touching other people’s bodies.
Barua Dep. Tr. 44:21-
Cavada testified that a woman of Asian descent, who later
gave her name to Chin but whom we will refer to as “P.S.” to
protect her anonymity, also boarded the train at 14th Street, and
that Barua got directly behind her on the train.
that he was standing “across from” Barua in the train, about seven
to ten feet away.
Cavada Dep. Tr. 18:23-19:4.
After the train
left the station, Cavada saw Barua “bump [P.S.’s] buttocks with
Cavada Dep. Tr. 17:4-7.
P.S. moved to her left and
looked behind her shoulder to see what had bumped her, Cavada
Barua then allegedly moved behind her again, grabbed
her by the waist with both hands, and continued to bump her
buttocks with his groin area.
Chin, who was in an adjacent car,
testified that he also witnessed, through the car windows, Barua
press his groin onto P.S, and believed Barua had touched her
Chin also testified that he had seen Barua
“trying to touch another female” earlier on the same train.
observations, he believed P.S. looked uncomfortable and had not
Barua testified that he does not know if he was
Chin’s testimony on this point differed from Barua’s.
ever next to an Asian woman on the train, and denied ever grabbing
or touching anyone inappropriately.
When the train arrived at Fulton Street, Cavada and Chin
Barua testified that he again stepped off the
train to let people out, and was grabbed from behind by the
Barua says the officers told him he was under arrest,
According to Barua, the officers made him sit down on the bench,
acquaintance of his, Mohammed Mamadu (“Mamadu”), on the platform
when the officers first approached him, and that Mamadu witnessed
Barua’s arrest.4 The officers then took him to the Transit District
4 station house, only then removing the blindfold, Barua claims.
There they booked him and informed him that he had been arrested
for improperly touching a woman.
The officers’ account of what transpired after the train
reached the Fulton Street station is somewhat different.
testified that, once the train arrived at Fulton Street, Chin came
up to him and told him what he had seen.
Cavada asked Barua to
get off the train, and then pulled him off the train.
told Chin to ask P.S. to exit the train, and Chin interviewed P.S.
Barua claims that he had a bag (although he could not recall what type) with
him at the time and that someone – he does not know who - took it from him.
Mamadu was never deposed and has not submitted any declaration.
on the platform while Cavada had Barua sit on the platform bench,
about 50 feet away.
to 30 feet away.)
(Chin testified that he was approximately 20
In their memorandum, defendants deny that the
officers blindfolded Barua.
According to Cavada and Chin, the
latter spoke with P.S. on the platform.
P.S., who was Korean and
whose English was limited, spoke to Chin (in English) and confirmed
to him that she did not know Barua and that Barua had touched her
At that point, according to Chin, P.S. wrote
down three short statements in his memo book: “somebody touch [sic]
me on the subway”; “he touch my waste [sic]”; and “he rubbed his
body on me.”
Chin Decl. Ex. A at 3 (memo book excerpts).
told Chin her name, date of birth, and email address but did not
want to provide any other contact information.
She wrote down her
email address in the memo book next to where Chin had written down
her name and date of birth.
Because Barua disputes P.S.’s existence and argues that the
memo book notes represent fabricated evidence, some description of
the memo book entries is in order.
Chin states in his declaration
that he is required to keep the memo book as part of his duties,
and that it reflects his activities for each shift.
that he writes his memo book entries “as soon as possible after
each activity, but in any event, no later than the end of my
Chin Decl. ¶ 6.
The memo book has lined sheets of paper,
the backs of which are unlined and are called “fly sheets.”
at ¶ 7.
Chin wrote down P.S.’s personal information on the fly
sheets above his memo book entry for July 6, 2011, and the note
written by P.S. is contained on the following fly sheet.
page opposite the first fly sheet includes a 14-line-long entry
describing the events at issue here, beginning with the time
This entry begins on the second line of the page, after
an entry with time “1725,” and is followed by entries on the same
page for later events that day.
The note written by P.S., and at
handwriting that is distinct from Chin’s handwriting on the lined
pages, and her signature appears to be in non-Roman characters.
According to the officers, after speaking with P.S., Chin
conveyed to Cavada his exchange with her, at which point Cavada
handcuffed Barua and the officers took him to the precinct.
parties agree that no police officer made any comments to Barua
about his race or ethnicity, or asked him about his religion,
during the whole episode.
At the station house, Barua was given a Desk Appearance Ticket
requiring him to appear in court on August 9, 2011, and then was
Later, Cavada testified, he (Cavada) met with the
Barua’s arrest, and gave the ADA the email address P.S. had
Cavada never spoke with P.S., nor did he ever try to
communicate with her.
Submitted by Barua with his opposition papers was a printout
of an email produced by defendants with redactions and portions of
the text cut off, but supposedly showing that an attempt by the
DA’s office to email P.S. resulted in an automated error message
and that the email address “is false or belongs to no one.”
Decl. ¶ 6, Ex. 8.
Prior to oral argument, at this Court’s request,
defendants submitted a more complete, unredacted version of the
As clarified by defense counsel at oral argument, this
version shows that, on December 22, 2011, a person (represented by
defense counsel to be a Korean-English translator retained by the
DA’s office) tried to email P.S. (according to defense counsel, at
the behest of ADA Caitlin Nolan, who worked on Barua’s prosecution,
and whose name appears in the text of the document) at the email
address P.S. gave Chin, which has a “hanmail.net” domain name.
representation in the Day Declaration that the email address “is
characterizes P.S.’s email address as an “[i]nactive inbox.”
Barua was arraigned on a misdemeanor complaint, dated July
21, 2011, charging him with Forcible Touching, in violation of
N.Y.P.L. § 130.52, and Sexual Abuse in the Third Degree, in
violation of N.Y.P.L. § 130.55.
A superseding complaint, dated
October 18, 2011, was subsequently filed, charging Barua with the
Cavada swore to both complaints.
complaint included allegations about what P.S. communicated to
Chin; the superseding complaint did not. The superseding complaint
was dismissed for facial insufficiency by the Criminal Court, New
York County, on February 28, 2012.
On April 15, 2013, the Supreme
Court, New York County, granted Barua leave to file a late Notice
Barua commenced this lawsuit on January 30, 2014, alleging a
variety of federal and state law claims, including false arrest,
supervision, and violations of 42 U.S.C. § 1983 and the First,
Fourth, Fifth, and Fourteenth Amendments.
Barua contends that he
was stopped and arrested because of his race and national origin,
that Cavada arrested him without probable cause, that he was
prosecuted without probable cause, and that P.S. is a fiction
invented by Cavada and Chin to cover up Barua’s unlawful arrest.
Defendants move for summary judgment on all of Barua’s claims.
Defendants argue that there is no genuine dispute that probable
cause existed to arrest Barua, defeating his false arrest claims;
that the malicious prosecution claim fails because probable cause
existed to prosecute Barua and because Barua did not receive a
favorable termination of his criminal case; that Cavada is entitled
to qualified immunity; and that Barua’s remaining claims fail for
II. LEGAL STANDARD
A motion for summary judgment is appropriately granted when
there is no genuine issue as to any material fact and the moving
party is entitled to judgment as a matter of law.
Fed. R. Civ. P.
To show a genuine issue of fact for trial, the non-moving
party must “cit[e] to particular parts of materials in the record”
to show that “a fact . . . is genuinely disputed.”
Fed. R. Civ.
The Court’s function is not “to weigh the evidence
and determine the truth of the matter but to determine whether
there is a genuine issue for trial.”
Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 249 (1986). Thus, in ruling on a summary
judgment motion, “the district court must resolve all ambiguities,
and credit all factual inferences that could rationally be drawn,
in favor of the party opposing summary judgment and determine
whether there is a genuine dispute as to a material fact, raising
an issue for trial.”
McCarthy v. Dun & Bradstreet Corp., 482 F.3d
allegations or unsubstantiated speculation . . . .
non-movant must produce specific facts indicating that a genuine
factual issue exists.”
Scotto v. Almenas, 143 F.3d 105, 114 (2d
Cir. 1998) (citations and internal quotation marks omitted).
colorable, or is not significantly probative, summary judgment may
To defeat a motion, ‘there must be evidence on which
the jury could reasonably find for the [non-movant].’”
(quoting Liberty Lobby, 477 U.S. at 249–50, 252, 106 S. Ct. at
B. Legal Analysis
1) False Arrest
Plaintiff alleges that he was falsely arrested and also
alleges violations of his rights under the Fourteenth Amendment.
We treat his complaint as alleging false arrest under both New
incorporated by the Fourteenth Amendment. “Claims for false arrest
or malicious prosecution, brought under § 1983 to vindicate the
Fourth and Fourteenth Amendment right to be free from unreasonable
seizures, are substantially the same as claims for false arrest or
malicious prosecution under state law.”
Jocks v. Tavernier, 316
F.3d 128, 134 (2d Cir. 2003) (internal quotation marks omitted).
Therefore, we analyze Barua’s state and federal false arrest claims
under the same rubric.
The elements of false arrest are that the defendant intended
to confine the plaintiff, the plaintiff was conscious of the
confinement and did not consent to it, and the confinement was not
Torres v. Jones, 26 N.Y.3d 742, 759, 47 N.E.3d 747,
“For purposes of the privilege element of a false
arrest and imprisonment claim, an act of confinement is privileged
if it stems from a lawful arrest supported by probable cause.”
The parties agree that the only element in dispute is whether
Barua’s arrest was privileged, that is, supported by probable
“In general, probable cause to arrest exists when the
officers have knowledge or reasonably trustworthy information of
facts and circumstances that are sufficient to warrant a person of
reasonable caution in the belief that the person to be arrested
has committed or is committing a crime.
The inquiry is limited to
whether the facts known by the arresting officer at the time of
Gonzalez v. City of Schenectady, 728 F.3d 149, 155 (2d Cir. 2013)
(citations and internal quotation marks omitted).
the existence of probable cause, we look at the facts as the
officers knew them in light of the specific elements of each crime.
While an officer need not have concrete proof of each element of
a crime to establish probable cause for an arrest, probable cause
means more than bare suspicion.”
In an action for false
arrest, “[t]he defendant has the burden of raising and proving the
affirmative defense of probable cause.”
Carrillos v. Inc. Vill.
of Hempstead, 87 F. Supp. 3d 357, 376 (E.D.N.Y. 2015) (citing New
York state case law).
At the time of Barua’s arrest, the offense of Forcible
Touching was defined as follows:
A person is guilty of forcible touching when such person
intentionally, and for no legitimate purpose, forcibly
touches the sexual or other intimate parts of another person
for the purpose of degrading or abusing such person; or for
the purpose of gratifying the actor's sexual desire.
For the purposes of this section, forcible touching includes
squeezing, grabbing or pinching.
N.Y. Penal Law § 130.52 (McKinney) (amended effective Nov. 1,
N.Y. Penal Law § 130.55 (McKinney).
Cavada and Chin on the train established, at a minimum, reasonable
suspicion to briefly detain Barua on the platform to investigate
the matter further, and that probable cause to arrest existed based
on the observations and P.S.’s report to Chin (as conveyed to
In opposition, Barua offers two broad arguments, based on
distinct factual theories. Barua’s main argument is that a genuine
dispute of material fact exists as to whether a woman corresponding
to P.S. really existed and complained to Chin about Barua’s conduct
– or whether she is actually a fiction invented by officers Cavada
and Chin to cover up that they targeted him and illegally stopped
and searched him because of his race and/or national origin, and
then to initiate criminal charges against him to force him to keep
quiet about their illegal activity.
According to this theory,
officers Cavada and Chin are both committing extensive perjury
about the circumstances of Barua’s arrest, the notes purportedly
written by P.S. in Chin’s memo book are forgeries, and the failed
attempt at emailing P.S. demonstrates that her purported email
address was “false” – another part of the elaborate cover-up scheme
concocted by Cavada and Chin.
Alternatively, Barua argues that
even if no reasonable jury could credit his fabrication theory,
probable cause still did not exist to arrest Barua “based on what
Cavada and Chin observed.”
Opp. at 14.
We first address Barua’s fabrication theory.
of the admissible evidence and granting all reasonable inferences
in Barua’s favor, we find that no reasonable jury could credit
this theory, which is hopelessly speculative and implausible.
To start, both officers Cavada and Chin testify that they
personally observed Barua improperly touch P.S.
(across both their depositions and their declarations) of the whole
episode, including Chin’s conversation with P.S. and the other
events that unfolded on the platform at Fulton Street, are quite
detailed, are internally coherent, and are highly consistent with
each other in material respects.
Buttressing this testimony are
the pages from Chin’s memo book, which corroborate the officers’
account in a convincing way that Barua fails to plausibly rebut.
As described above, see supra I, the memo book contains a
rather detailed description of the circumstances of the arrest, a
description located in chronological order between entries on the
same page relating to other events, before and after Barua’s arrest
(and also located in chronological order with respect to the
material on the preceding and succeeding pages of the memo book).
See Letter of Ashley Garman in Support of Defs.’ Mot. (Mar. 9,
2016), Ex. 5 (Chin Decl., Ex. A (DEF000084)).
The entry for P.S.’s
email address is on the fly sheet opposite this page, and her
signed handwritten notes about the incident are on the following
The location of Chin’s written summary of the incident
in the memo book indicates that the summary is a genuine and
contemporaneous or nearly contemporaneous account, not one made
after the fact to support a concocted story.
The location of the
notes written by P.S. and Chin on the fly sheets is consistent
with this conclusion and with Chin’s statement that he and P.S.
made those notes on the scene.
Moreover, P.S.’s alleged writing
is in a script that is distinct from Chin’s, and appears to be in
Plaintiff’s counsel did not dispute these
facts at oral argument.
Yet another aspect of the memo book notes supporting P.S.’s
the email address
she provided, which has a
Hanmail is a Korean email service.
e.g., Benny Evangelista, “Twitter now available in South Korea,”
Seattle Post-Intelligencer, Jan. 18, 2011; “Apparent N. Korean
Spam E-mails Sent to S. Korean Officers: Military,” NORTH KOREA
NEWSLETTER NO. 160, Yonhap English News, Yonhap News Agency of
Korea, June 2, 2011.
In an attempt to rebut all of this evidence, Barua offers his
own testimony as well as various other pieces of evidence, and
relies heavily on inferences he believes can be drawn.
denial that he improperly touched anyone, he points in particular
to the fact that the DA office’s attempt to email P.S. at her
proffered address bounced back, that defendants have otherwise
been unable to locate P.S., and that Cavada testified that he first
noticed Barua at 42nd Street, then saw him step off and back onto
the train at 14th Street, which, Barua claims, shows that Cavada
“followed” him and singled him out based on his race and/or
Barua also testified that officers Cavada and
Chin blindfolded him; declares that he was carrying a bag at the
time of the incident, which someone he is unable to identify took
from him; and says that it was only upon being fingerprinted that
the officers told him that the reason for his arrest was that he
improperly touched a woman.
inconsistencies and improbabilities that no reasonable juror would
undertake the suspension of disbelief necessary to credit the
allegations made in his complaint.”
Jeffreys v. City of New York,
426 F.3d 549, 554 (2d Cir. 2005).
“While it is undoubtedly the duty of district courts not to
weigh the credibility of the parties at the summary judgment stage,
exclusively on his own testimony, much of which is contradictory
and incomplete, it will be impossible for a district court to
plaintiff,’ and thus whether there are any ‘genuine’ issues of
material fact, without making some assessment of the plaintiff’s
Id. at 554 (quoting Liberty Lobby, 477 U.S. at 252).
In Jeffreys, the Second Circuit affirmed the grant of summary
judgment against a Section 1983 plaintiff who alleged the police
had beaten him and thrown him out a third-floor window, agreeing
that there was no genuine dispute of fact that Jeffreys, a burglary
suspect, had in fact jumped out the window.
Id. at 555.
who claimed to have lost consciousness from the alleged beating
and to have come to on the pavement below the window, offered
testimony from relatives claiming he had told them the officers
threw him out the window, and his own deposition testimony and
prior statements to that effect.
However, his account was
contradicted by his earlier admissions that he had in fact jumped
out, and testimony by the officers and medical professionals who
concluded that Jeffreys had not lost consciousness.
Id. at 552-
Courts hold that granting summary judgment is appropriate to
dismiss such clearly unbelievable claims, concluding that “when
the facts alleged are so contradictory that doubt is cast upon
their plausibility, [the Court is] authorized to ‘pierce the veil
improbable allegations’, and dismiss the claim.”
Shabazz v. Pico,
994 F. Supp. 460, 468-71 (S.D.N.Y. 1998) (Sotomayor, J.) (quoting
Denton v. Hernandez, 504 U.S. 25, 32 (1992)), reconsideration
denied, 1999 WL 345596 (S.D.N.Y. May 25, 1999), aff’d in relevant
part, vacated in part, 205 F.3d 1324 (2d Cir. 2000); see also Scott
v. Harris, 550 U.S. 372, 380 (2007) (holding that “Respondent’s
version of events is so utterly discredited by the record that no
reasonable jury could have believed him”).
We note in particular the following problems with Barua’s
improper reasons is unfounded.
Cavada and Chin were
trained and experienced transit officers whose duties
included patrolling the subway.
It is unremarkable that
an officer trained to observe would be able to recall
that he had first seen an individual a few minutes
earlier on a platform while they both were waiting for
Barua has offered no direct evidence that
Cavada and Chin focused exclusively, or even close to
exclusively, on him before P.S. allegedly boarded the
train at 14th Street.
Moreover, Barua does not offer any
other probative evidence of improper discrimination.
comments to Barua about his race, or asked him about his
religion, during the whole episode.
Barua states in his
declaration that “no one else of any other race” was
arrested despite the fact that the train was crowded,
Barua Decl. ¶ 28, but this point is not meaningfully
suggestive of racial discrimination.
Barua’s declaration suggests that Cavada handcuffed him
immediately after they got off the train at Fulton
Barua Decl. ¶ 5.
In contrast, Barua testified
in his deposition that he was not handcuffed until after
he was told to sit on the bench at Fulton Street, Barua
Dep. Tr. 56.1-13, suggesting that the officers indeed
engaged in the investigation they claim to have engaged
in before taking Barua into full custody.
testified in his deposition that he did not remember
which officer handcuffed him. Id. at 54:20-21.) Barua’s
deposition testimony controls because “[a] party may
not, in order to defeat a summary judgment motion, create
a material issue of fact by submitting an affidavit
disputing his own prior sworn testimony.”
Servs. Gas Holding Co. v. Bank of Am., N.A., 626 F.3d
699, 736 (2d Cir. 2010).
Barua declares that Chin could not have spoken with P.S.
Barua Decl. ¶ 5.
This claim is
contradicted by Barua’s deposition testimony that he did
not see if both officers were standing right next to him
while he was sitting down on bench, because he was
blindfolded, and that he did not know which officer
Barua Dep. Tr. 57:3-6, 55.
There are numerous innocuous reasons why the email to
P.S. may have bounced back.
For example, P.S. may have
given an incorrect email address because she did not
want to give her real email address – after all, she did
Alternatively, the email address may have been hers when
she gave it, but she may have closed the account in the
intervening five months before the DA’s office tried
Or perhaps the account did not accept
messages from the sender’s domain or account.
In essence, Barua offers a highly speculative conspiracy
theory that Cavada and Chin engaged in an elaborate, sophisticated
scheme to fabricate evidence against him.
This scheme supposedly
entailed, among other things, the invention of a Korean victim and
details as to her identity, the forgery of her handwriting and (in
non-Roman script) signature, the generation of an email address
for her using a Korean email provider’s domain name, the conveyance
of all of this misinformation to the DA, and extensive and wellcoordinated perjury by both Cavada and Chin before multiple courts
But Barua’s theory is contradicted by his own deposition
testimony, by Cavada’s and Chin’s testimony, and by documentary
Nor has Barua proffered a credible motive for the alleged
According to Barua, it was designed to cover up the
illegal stop and search he was subjected to, even though Barua
admittedly suffered no physical injury and was detained for just
a few hours.
As acknowledged by plaintiff’s counsel, see Oral
Arg. Tr. 18:18-19:1 (agreeing that the alleged scheme “doesn’t
make any sense”), the total disproportion between the risks and
the benefits to the officers of engaging in such a scheme is
another factor rendering it fantastic.5
See Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 596 (1986) (“[T]he
absence of any plausible motive to engage in the conduct charged
Barua’s claim that the officers blindfolded him on the subway platform is
contradicted by Barua’s own testimony wherein he claims that Chin could not
have talked with P.S. and wherein he claims that he saw his acquaintance Mamadu
during his detention.
is highly relevant to whether a genuine issue for trial exists
within the meaning of Rule 56(e).” (internal quotation marks
Having found it beyond genuine dispute that P.S. existed and
spoke to officer Chin, we turn to Barua’s alternative theory, that
the officers lacked probable cause to arrest him at any point,
even after receiving corroboration from P.S.
that, at a minimum, reasonable suspicion existed to stop Barua
based solely on what the officers observed in the train, that
Cavada had probable cause to arrest Barua based on the officers’
alternative, that Cavada is entitled to qualified immunity.
“[I]t is well-established that a law enforcement official has
probable cause to arrest if he received his information from some
person, normally the putative victim or eyewitness, unless the
circumstances raise doubt as to the person’s veracity.
Crowley, 460 F.3d 388, 395 (2d Cir. 2006) (citations and internal
quotation marks omitted).
Moreover, under the “fellow officer”
rule, “even if an arresting officer lacks personal knowledge
sufficient to establish probable cause, the arrest will be lawful
if the officer acts upon the direction of or as a result of
communication with a superior or [fellow] officer or another police
department provided that the police as a whole were in possession
of information sufficient to constitute probable cause to make the
People v. Ramirez-Portoreal, 88 N.Y.2d 99, 113, 666
N.E.2d 207, 215 (1996); accord United States v. Colon, 250 F.3d
130, 135 (2d Cir. 2001)).
The arresting officer’s corroboration
of such a report with his or her own observations further supports
probable cause in such a situation.
See Panetta, 460 F.3d at 397.
We reject Barua’s argument that, even after Chin’s exchange
with P.S., the officers lacked probable cause to believe that
Barua’s touching of P.S. was offensive and non-consensual.
has specifically testified that P.S. confirmed to him that the
offensive nature of the touching. The officers’ belief was further
supported by their experience and visual observations, and by the
statement could have been more explicit about the offensiveness.
In light of this evidence, Barua’s attempt to attach significance
to the fact that P.S. did not “cry out,” e.g., Day Decl. at ¶ 7;
Barua Decl. ¶ 25, is deeply misplaced.
Second, Cavada had a sufficient basis to initially stop Barua
for purposes of further investigation based on his observations of
Barua’s conduct in the train.
See, e.g., United States v. Diaz,
802 F.3d 234, 238-39 (2d Cir. 2015) (“The Fourth Amendment permits
brief investigative stops . . . when a law enforcement officer has
a particularized and objective basis for suspecting the particular
person stopped of criminal activity . . . .
suspicion standard . . . asks . . . whether a reasonable officer
circumstances.” (citations and internal quotation marks omitted)).
Indeed, plaintiff’s counsel essentially acknowledged this point at
oral argument, though they incongruously proceeded to dispute that
the officers’ observations were sufficient here.
Oral Arg. Tr.
Cavada testified that he saw Barua press
his groin area against P.S. twice, once initially and then again
after she moved and glanced over her shoulder.
Cavada, who had
training and experience in patrolling the subway, also believed
that P.S. looked uncomfortable.
These observations established a
reasonable suspicion that Barua had engaged in unlawful touching.
We further conclude that any reasonable jury would find that
the officers’ handling of the situation prior to Barua’s being
handcuffed was reasonable and therefore proper under the Fourth
“A Fourth Amendment reasonableness inquiry asks ‘would
the facts available to the officer at the moment of the seizure or
the search warrant a man of reasonable caution in the belief that
the action taken was appropriate?’”
United States v. Newton, 369
F.3d 659, 673–75 (2d Cir. 2004) (quoting Terry v. Ohio, 392 U.S.
1, 21 (1968) (internal quotation marks omitted))).
the reasonableness standard, officers conducting stops on less
reasonably available’ to effect their legitimate investigative
purposes.” Id. (quoting Florida v. Royer, 460 U.S. 491, 500 (1983)
recognizes the ‘important need to allow authorities to graduate
their responses to the demands of any particular situation.’”
(internal quotation marks omitted)).
Here, Barua was detained only briefly on the platform, so
that Chin could speak to P.S. to investigate further, before he
was handcuffed and taken to the precinct. Barua was not handcuffed
until after the corroboration.
Although the officers did restrain
Barua and show him their badges, and, according to Barua, Cavada
drew his gun partially out of the holster, Barua Decl. ¶ 7,6 these
actions were justifiable in the circumstances.
was the only practical way to insure that he would not leave the
area, and, given that the officers were in plainclothes, it was
necessary for them to demonstrate their authority.
reasonableness of the officers’ actions is confirmed by Barua’s
testimony that he “was shocked at being suddenly apprehended,”
“verbally protested, screaming that Cavada let me go,” Barua Decl.
¶ 7, not “know[ing] if they are [sic] police officers or not” but “[w]hen they showed ID and pistol, then I understand [sic].”
Barua Dep. Tr. 47:21-48:1.).
Thus, even when we construe the
Barua also states in his declaration that Cavada “threatened to shoot [him]”
at this time. Decl. at ¶ 7. But in his deposition Barua was repeatedly asked
what the officers said to him when they grabbed him, and his answers included
no mention of any verbal threat to shoot. The deposition testimony controls.
AEP Energy, 626 F.3d at 736.
evidence in the light most favorable to
reasonably for purposes of the Fourth Amendment, not subjecting
Barua at any point to an unlawful seizure.7
false arrest claims are dismissed.
2) Malicious Prosecution
“[T]o prevail on a § 1983 claim against a state actor for
malicious prosecution, a plaintiff must show a violation of his
rights under the Fourth Amendment, and must establish the elements
of a malicious prosecution claim under state law.”
City of New York, 612 F.3d 149, 160–61 (2d Cir. 2010) (citations
The elements of malicious prosecution under New York
proceeding against plaintiff; (2) termination of the proceeding in
plaintiff's favor; (3) lack of probable cause for commencing the
proceeding; and (4) actual malice as a motivation for defendant’s
Manganiello, 612 F.3d at 160-61.
Defendants argue that there was probable cause to prosecute
Barua and that the criminal proceeding was not terminated in
The Court agrees that probable cause existed to
support the prosecution and/or that the named defendants cannot be
We also believe that, even if the initial stop were considered an arrest,
Cavada would be entitled to qualified immunity because there was “arguable
probable cause at the time of the arrest — that is, . . . officers of reasonable
competence could disagree on whether the probable cause test was met.” Gonzalez
v. City of Schenectady, 728 F.3d 149, 157 (2d Cir. 2013).
said to have “continued” the prosecution against Barua after its
initiation; therefore, we do not reach defendants’ other argument.
Probable cause in the malicious prosecution context has been
circumstances as would lead a reasonably prudent person to believe
the plaintiff guilty,” Boyd v. City of New York, 336 F.3d 72, 76
(2d Cir. 2003), and, on the other, “probable cause to believe that
[the prosecution] could succeed,” id.
The Second Circuit in Boyd
found no conflict between these two formulations but applied the
latter one in finding that the question of whether there was
probable cause to prosecute turned on a disputed question of fact
about whether the arrestee made a key inculpating statement before
he was arrested (in which case it would have been admissible) or
after (which would have made it inadmissible).
Id. at 76-77, n.7.
Where, as here, “probable cause existed for the arrest itself,
a plaintiff pursuing a malicious prosecution claim must establish
that probable cause somehow ‘dissipated’ between the time of arrest
and the commencement of the prosecution. ‘In order for probable
cause to dissipate, the groundless nature of the charges must be
made apparent by the discovery of some intervening fact.’” Johnson
v. City of New York, No. 08 CIV. 5277 (SHS), 2010 WL 2292209, at
*6 (S.D.N.Y. June 7, 2010) (quoting Lowth v. Town of Cheektowaga,
82 F.3d 563, 571 (2d Cir. 1996)).
primarily relies again on his fabrication theory, claiming that
the defendants and Chin “fabricated evidence . . . and fabricated
the charges in order to intimidate [Barua] from coming forward to
speak about their illegal and unconstitutional conduct.”
Because, as discussed above, no reasonable jury could find
Barua’s fabrication theory credible, that theory cannot sustain
his malicious prosecution claim.
Alternatively, Barua argues that even “if a trier of fact
believes there was probable cause to stop him, the probable cause
dissipated between time [sic] of the arrest and the initiation of
Id. at 18.
Specifically, Barua argues that the
defendants unlawfully “continued to prosecute although the alleged
witness stated that she did not want to give her address and
telephone number,” and “even after it was evident that the email
address was false.”
We have already held that probable cause existed to arrest
Barua after P.S. registered her complaint with Chin.
the suggestion that probable cause to prosecute was nevertheless
lacking from the outset because P.S. did not leave her address and
telephone number, even though she left her name and email address.
The facts and circumstances available at that point in time were
As for the second prong of plaintiff’s dissipation argument,
any factual basis for it is no longer viable.
The email bounced
back because the account was “inactive,” not “false.”
significant at this juncture was the fact that that the prosecution
was in the hands of the District Attorney, not the police.
initial matter, the record is devoid of competent evidence to
suggest that Cavada learned while the prosecution was ongoing that
the email bounced back.8
Even if he did learn of that fact then
and continued to participate in the prosecution as a witness (as
plaintiff’s counsel represented at oral argument), he cannot be
held liable for malicious prosecution on that basis.
that the prosecution has immunity is not a basis to sue Cavada.
See White v. Frank, 855 F.2d 956, 961-62 (2d Cir. 1988).
3) Racial Profiling and Discrimination
The complaint alleges that defendants discriminated against
Barua because of his race and national origin in violation of his
constitutional and statutory rights.
We construe the complaint as
alleging, pursuant to Section 1983,9 violations of Barua’s rights
At oral argument, Barua’s counsel represented that Barua moved for the
superseding complaint’s dismissal, and that officers Cavada and/or Chin
responded by affidavit to the motion, showing that they continued to participate
in the prosecution. However, the evidentiary record does not make clear when
Barua moved for dismissal or show that (or when) Cavada and/or Chin responded
to the motion by affidavit. Cavada testified in his deposition that he recalled
appearing in court once for Barua’s case.
Defendants also address Barua’s discrimination claim under 42 U.S.C. § 1981,
which allows an action at law against a “person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State . . . subjects, or causes
to be subjected, any citizen of the United States . . . to the deprivation of
under the Fourteenth Amendment’s Equal Protection Clause to be
free from impermissible racial or national origin discrimination.
Defendants argue that Barua’s Equal Protection claims fail because
he “has not adduced any evidence in discovery of similarly-situated
persons who were treated differently from him.”
Mot. at 17.
Defendants further argue that plaintiff has put forth no evidence
that his arrest was motivated by race or any other impermissible
Plaintiff contends in opposition that he was
subjected to racial profiling and that a genuine issue of fact
plaintiff’s protected class would not have been stopped under the
Opp. at 26.
selective adverse treatment of individuals compared with other
similarly situated individuals if such selective treatment was
based on impermissible considerations such as race . . . .”
Bizzarro v. Miranda, 394 F.3d 82, 86 (2d Cir. 2005) (internal
quotation marks omitted).
“[R]acial discrimination under the
Equal Protection Clause requires a racially discriminatory purpose
any rights, privileges, or immunities secured by the Constitution and laws.”
To establish a claim for a violation of Section 1981, a plaintiff must establish
(1) that he is a member of a racial minority; (2) defendants’ intent to
discriminate on the basis of race; and (3) discrimination concerning one of the
statute’s enumerated activities. Brown v. City of Oneonta, 221 F.3d 329, 339
(2d Cir. 2000).
Because the standard for establishing discrimination under
Section 1981 is the same as that under the Equal Protection Clause, see id.,
our analysis of Barua’s equal protection claim applies equally to any claim he
may allege under Section 1981.
. . . .”
Howard v. Senkowski, 986 F.2d 24, 26 (2d Cir. 1993)
(internal quotation marks omitted). “[T]he test is whether a
Id. at 27 (internal quotation marks omitted).
the issue is . . . whether or not an impermissible consideration
motivated the challenged action, . . . pretext analysis employs
the familiar three-step approach [of McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L.Ed.2d 668 (1973)].”
Thus, “the claimant must present a prima facie case sufficient to
establish an inference of improper motivation; the party accused
of discrimination must then articulate race-neutral reasons for
the challenged action; the claimant then bears the ultimate burden
of persuasion to show that the articulated reasons are pretextual
and that the ‘real’ reason is the impermissible one.”
Id. at 25.
plaintiff who . . . alleges that a facially neutral law or policy
has been applied in an intentionally discriminatory race-based
manner . . . is not obligated to show a better treated, similarly
situated group of individuals of a different race in order to
establish a claim of denial of equal protection.”
258 F.3d 107, 110 (2d Cir. 2001).
However, “a plaintiff alleging
Pyke v. Cuomo,
similarly situated individuals who were not prosecuted; that is
because courts grant special deference to the executive branch in
the performance of the ‘core’ executive function of deciding
whether to prosecute.”
Id. at 109.
recognized that most claims brought under the Equal Protection
Clause on the basis of racial discrimination fall into one of two
In the first category are claims in which a plaintiff
asserts that she was innocent of wrongdoing but has nonetheless
been the subject of some wrongful action (arrest, termination or
employment, disciplinary proceeding, etc.) because of race.
the second category are claims by a plaintiff asserting that
regardless of her guilt or innocence, certain laws or penalties
were applied to her because of her membership in a group whereas
they were not applied to others similarly situated individuals who
are outside her group.
Powell v. Bucci, No. 04-CV-1192, 2006 WL
2052159, at *8 (N.D.N.Y. July 21, 2006) (citations omitted).
Barua has offered no evidence to support a pure selective
justification for his arrest and prosecution, he was singled out
on account of his race or national origin.
Barua states in his
declaration that “no one else of any other race” was arrested
despite the fact that the train was crowded, Barua Decl. ¶ 28, but
offers no evidence that any other person had been observed and
accused by a victim to have engaged in improper touching.10
is there any reason to assume that multiple crimes of a similar
nature had been committed on the same subway car.
The gist of Barua’s theory, rather – without any evidence –
is that he was stopped, arrested, and prosecuted simply because of
his race and/or national origin and without permissible legal
prosecution were legally justified, however.
have offered a legitimate, non-discriminatory justification for
As discussed above, see supra II.B.1, in light of
discriminatory intent can be drawn from the facts here to show
that the “the articulated reasons” given by Cavada and Chin for
Barua’s arrest “are pretextual.”
Howard, 986 F.2d at 26; see also
(affirming denial of motions to suppress, finding insufficient
reasonable suspicion for stopping defendant); Miller v. City of
New York, No. 11 CIV. 6663 JSR, 2012 WL 2524248, at *6–7 (S.D.N.Y.
June 26, 2012) (on insufficiently developed record, holding that
police officer “may, in his deposition, identify a legitimate,
non-discriminatory reason for stopping Miller that would preclude
He also does not offer any probative evidence of the races or national origins
of the other passengers.
Therefore, Barua’s discrimination claims are dismissed.
4) Other claims
Defendants are also entitled to dismissal of Barua’s Monell,
negligence and negligent hiring and supervision, First Amendment,
and Fifth Amendment claims.
Barua’s Monell claim fails because, as concluded above, no
reasonable jury could find an underlying constitutional violation
here, see Wray v. City of New York, 490 F.3d 189, 195 (2d Cir.
2007); moreover, Barua has failed to offer any evidence of “an
official policy or custom,” id.
supervision claims also fail for several independent reasons.
Under New York law, a plaintiff “may not recover under general
negligence principles” for damages arising from her arrest and
imprisonment and malicious prosecution.”
Ferguson v. Dollar Rent
A Car, Inc., 102 A.D.3d 600, 601, 959 N.Y.S.2d 55, 56 (1st Dep’t
2013); Bernard v. United States, 25 F.3d 98, 103 (2d Cir. 1994).
Moreover, for the reasons discussed above, no reasonable jury could
find an underlying tort to underpin Barua’s claim for negligent
hiring or supervision.
Ehrens v. Lutheran Church, 385 F.3d 232,
Even assuming that Barua could establish the other
elements of a negligent hiring or supervision claim against the
City and that governmental immunity should not apply, Barua has
not offered any evidence that the City knew or should have known
of any propensity on the part of Cavada or Chin to engage in the
allegedly unlawful conduct.
The negligence-based claims are also
time-barred under the one year and 90 day statute of limitations
of New York General Municipal Law ¶ 50-i(1)(c).
As for Barua’s First Amendment claim, defendants are also
correct – and Barua does not dispute – that Barua has pleaded no
facts in his Complaint, and has adduced no evidence, regarding any
conduct, or that Cavada’s actions were “motivated or substantially
caused by plaintiff’s exercise of his First Amendment right[s],”
as required for a First Amendment retaliatory arrest claim.
Kuck v. Danaher, 600 F.3d 159, 168 (2d Cir. 2010).
Finally, Barua invokes the equal protection component of the
Fifth Amendment’s Due Process Clause in support of his racial
discrimination claim, but we have already concluded that Barua’s
discrimination claim fails.
(The Fifth Amendment’s Due Process
clause, including its equal protection component, applies only to
the federal government, not to the states. See Dusenbery v. United
States, 534 U.S. 161, 167, 122 S. Ct. 694, 699, 151 L. Ed. 2d 597
(2002); Bolling v. Sharpe, 347 U.S. 497, 498-500, 74 S. Ct. 693,
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