Diango v. The City of New York et al
Filing
51
MEMORANDUM OPINION AND ORDER: For the foregoing reasons, Defendants' motion for summary judgment is GRANTED, and the case is dismissed. The Clerk of Court is directed to terminate Docket No. 46; to mail a copy of this Memorandum Opinion and O rder to Diango; and to close the case. The Court certifies, pursuant to Title 28, United States Code, Section 1915(a)(3), that any appeal from this Memorandum Opinion and Order would not be taken in good faith, and in forma pauperis status is thus denied. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). Motions terminated: 46 MOTION for Summary Judgment, filed by The City of New York, Kareem Anderson, Restrepo. (Signed by Judge Jesse M. Furman on 5/15/2017) (ap)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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KIETA DIANGO,
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Plaintiff,
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-v:
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THE CITY OF NEW YORK et al.,
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Defendants.
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05/15/2017
15-CV-3106 (JMF)
MEMORANDUM OPINION
AND ORDER
JESSE M. FURMAN, United States District Judge:
On April 16, 2015, Plaintiff Kieta Diango, proceeding pro se, commenced this action
under Title 42, United States Code, Section 1983 and New York State law against the City of
New York and two New York City Police Department (“NYPD”) officers. 1 Diango’s central
claims — for false arrest and malicious prosecution — arise out of a traffic stop during which he
was arrested for having allegedly forged a thirty-day temporary registration tag for his vehicle.
On November 18, 2016, Defendants moved for summary judgment, pursuant to Rule 56 of the
Federal Rules of Civil Procedure, arguing that Diango’s arrest was lawful and, in the alternative,
that the Defendant officers are entitled to qualified immunity. (Docket Nos. 46 & 48 (“Defs.’
Mem.”)). On December 29, 2016, after Diango had failed to timely oppose the motion, the
Court issued an Order directing him to show cause in writing why Defendants’ motion should
not be deemed unopposed — and warning that a failure to do so within two weeks might result in
the dismissal of his claims for abandonment or failure to prosecute pursuant to Rule 41 of the
Although Defendants suggest that Plaintiff’s true name may be “Diango Keita” (Docket
No. 48, at 1 n.1), the Court refers to him by the name on the Complaint.
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Federal Rules of Civil Procedure. (Docket No. 50 (“Order To Show Cause”)). Diango has not
responded to the Order To Show Cause or otherwise indicated an intent to proceed with his case.
In light of the foregoing, Diango’s case is dismissed on the ground of abandonment and
failure to prosecute. It is well established that a court “may, and generally will, deem a claim
abandoned when a plaintiff fails to respond to a defendant’s arguments that the claim should be
dismissed.” Lipton v. Cnty. of Orange, N.Y., 315 F. Supp. 2d 434, 446 (S.D.N.Y. 2004); see also
Robinson v. Fischer, No. 09-CV-8882 (LAK) (AJP), 2010 WL 5376204, at *10 (S.D.N.Y. Dec.
29, 2010) (collecting cases). Moreover, the Court’s Order to Show Cause expressly warned
Diango that a failure to show good cause could result in the dismissal of the case on grounds of
abandonment or failure to prosecute. See Fed R. Civ. P. 41. In light of that Order, and the
passage of time, Diango has had ample opportunity to manifest an intent to proceed with his
case; his silence makes clear that he has abandoned it. Accordingly, the Court finds that
Diango’s claims were abandoned and dismisses them on that basis.
In the alternative, the Court grants Defendants’ unopposed summary judgment motion on
the merits. See, e.g., Trustees of IATSE Annuity Fund v. Backstage Lighting & Rigging, Omelio
LLC, No. 11-CV-6166 (JMF), 2012 WL 5974012, at *2 (S.D.N.Y. Nov. 29, 2012)
(acknowledging Second Circuit precedent stating that a court should not grant an unopposed
summary judgment motion automatically, but should “(1) determine what material facts, if any,
are disputed in the record presented on the motion; and (2) assure itself that, based on those
undisputed material facts, the law indeed warrants judgment for the moving party”).
Specifically, the Court finds — substantially for the reasons stated in Defendants’ memorandum
of law (see Defs.’ Mem 5-12) — that there was probable cause to arrest and prosecute Diango.
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An officer has probable cause to arrest if he has “knowledge or reasonably trustworthy
information sufficient to warrant a person of reasonable caution in the belief that an offense has
been committed by the person to be arrested.” Martinez v. Simonetti, 202 F.3d 625, 634 (2d Cir.
2000). Upon review of the record, the Court finds that that standard was easily met here: The
allegedly forged tag identified Diango as the owner of the vehicle even though Diango admitted
to the officer that he was not the owner; Diango is a New York resident and the officer knew that
New York residents could not receive that form of temporary vehicle registration from the state
of New Jersey; and the other documentation provided by Diango to the officer included several
other discrepancies relating to ownership of the vehicle. (See Defs.’ Mem. 7-8). In light of these
circumstances, probable cause certainly existed to arrest and prosecute Diango for forgery.
The existence of probable cause is fatal to Diango’s false arrest, false imprisonment, and
malicious prosecution claims against the Defendant officers. See, e.g., Torraco v. Port Auth. of
N.Y. and N.J., 615 F.3d 129, 139 (2d Cir. 2010) (“Probable cause is an absolute defense to a false
arrest claim”); Jocks v. Tavernier, 316 F.3d 128, 136 (2d Cir. 2003) (requiring as “lack of
probable cause for commencing the proceeding” to sustain a malicious prosecution claim);
Posner v. City of New York, No. 11-CV-4859 (JMF), 2014 WL 185880, at *7 (S.D.N.Y. Jan. 16,
2014) (finding probable cause to be a “complete defense to [p]laintiff’s claims of false arrest and
false imprisonment”). Similarly, Diango’s claim against the City of New York must fail because
he cannot make out a claim for any constitutional violation. See, e.g., Schultz v. Inc. Vill. of
Bellport, 479 F. App’x 358, 360 (2d Cir. 2012) (summary order) (“Because [Plaintiff] was
unable to establish an underlying violation of his constitutional rights . . . his . . . Monell claim
necessarily fail[s] as well.” (footnote omitted)). And, even assuming arguendo there was no
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probable cause, there was certainly “arguable probable cause” such that the Defendant officers
would be entitled to qualified immunity. In general, qualified immunity shields government
officials from civil suits for damages “insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would have known.”
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Given the Court’s discussion above, it follows
that a reasonable person in the officers’ positions would not have understood that arresting
Diango under these circumstances violated his constitutional rights and that they are entitled to
qualified immunity. See, e.g., Saucier v. Katz, 533 U.S. 194, 202 (2001); Sullivan v. City of New
York, No. 14-CV-1334 (JMF), 2015 WL 5025296, at *8 (S.D.N.Y. Aug. 25, 2015).
Finally, to the extent Diango asserts any claims under New York state law, those claims
must be and are dismissed. First, a claim for false arrest or malicious prosecution under New
York law is substantially the same as under the comparable claims under Section 1983. See
Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996) (false arrest); Posr v. Doherty, 944 F.2d 91,
100 (2d Cir. 1991) (malicious prosecution). Because Diango’s federal claims fall short, his state
claims fall short as well. Second, and in any event, the Court would decline to exercise
supplemental jurisdiction over any surviving state law claims under Title 28, United States Code,
Section 1367. See, e.g., In re Merrill Lynch Ltd. P’ships Litig., 154 F.3d 56, 61 (2d Cir. 1998);
see also United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966).
For the foregoing reasons, Defendants’ motion for summary judgment is GRANTED,
and the case is dismissed. The Clerk of Court is directed to terminate Docket No. 46; to mail a
copy of this Memorandum Opinion and Order to Diango; and to close the case.
The Court certifies, pursuant to Title 28, United States Code, Section 1915(a)(3), that any
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appeal from this Memorandum Opinion and Order would not be taken in good faith, and in
forma pauperis status is thus denied. See Coppedge v. United States, 369 U.S. 438, 444-45
(1962).
SO ORDERED.
Dated: May 15, 2017
New York, New York
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