Rowell v. City Of New York et al

Filing 93

MEMORANDUM AND OPINION re: 76 MOTION for Reconsideration filed by Christopher Popovic, Joan Ferreira, Shane Killilea. For the reasons given above, Defendants' motion for reconsideration is DENIED in its entirety. This resol ves docket item number 76. In addition, within one week of the date of this order, the parties shall submit a letter indicating whether they seek the Court's assistance in referring the parties to a magistrate judge or mediator for settlement. SO ORDERED. Motions terminated: 76 MOTION for Reconsideration . filed by Christopher Popovic, Joan Ferreira, Shane Killilea. (Signed by Judge Alison J. Nathan on 1/22/2019) (kv)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

Hozie Rowell,
Plaintiff,
16-cv-6598 (AJN)

-vMEMORANDUM
OPINION AND ORDER

City of New York et al.,
Defendants.

ALISON J. NATHAN, District Judge:
In this civil rights action, Plaintiff Hozie Rowell brought claims under 28 U.S.C. § 1983
and state law in connection with his arrest and prosecution for possession of drugs and drug
paraphernalia. Defendants moved for summary judgment and on September 28, 2018, the Court
granted that motion as to all claims except Plaintiffs claim for the denial of his right to a fair
trial and for failure to intervene. Dkt. 75 ("Order"). On October 12, 2018, Defendants moved for
the Court to reconsider its decision as to these two remaining claims. Dkt. 76. The motion for
reconsideration is denied.

I.

Legal Standards
a. Motion for Reconsideration

"A motion for reconsideration should be granted only when the [moving paiiy] identifies
an intervening change of controlling law, the availability of new evidence, or the need to co1Tect
a clear error or prevent manifest injustice." Kole! Beth Yechiel Mechil ofTartikov, Inc. v. YLL
Irrevocable Tr., 729 F.3d 99, 104 (2d Cir. 2013) (internal quotation marks omitted). This

standard is stringent since "reconsideration of a previous order is an extraordinary remedy to be
employed sparingly in the interests of finality and conservation of scarce judicial resources."
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Seoul Viosys Co., Ltd. v. P3 Int'! Corp., 16-CV-6276 (AJN), 2018 WL 401511, at *2 (S.D.N.Y.
Jan. 12, 2018) (quoting Analytical Surveys, Inc. v. Tonga Partners, L.P., 684 F.3d 36, 52 (2d Cir.
2012)).
b. Summary Judgment
Summary judgment may not be granted unless all of the submissions taken together
"show[] that there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law." Fed. R. Civ. P. 56(a). 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." Roe v. City of Waterbury,
542 F.3d 31, 35 (2d Cir. 2008) (quoting Anderson v. Liberty Lobby, Inc., 4 77 U.S. 242, 248
(1986)). "Summary judgment is appropriate when 'the record taken as a whole could not lead a
rational trier of fact to find for the non-moving party."' Smith v. County of Suffolk, 776 F.3d
114, 121 (2d Cir. 2015) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986)). "[I]n making that determination, the comi is to draw all factual inferences in
favor of the party against whom summary judgment is sought, viewing the factual assertions in
materials such as affidavits, exhibits, and depositions in the light most favorable to the party
opposing the motion." Rodriguez v. City of New York, 72 F.3d 1051, 1061 (2d Cir. 1995).
III.

Discussion
The Court assumes the paiiies' familiarity with the facts of this case. As an initial matter,

Plaintiff asse1ied several facts in his opposition to Defendants' motion for reconsideration that
were in neither paiiies' Rule 56.1 statements. Pl. Opp. at 2-3. Defendants do not object to
Plaintiffs inclusion of these new facts, all of which cite to documents that Defendants produced
in discovery. Moreover, Defendants admit to one of the facts and do not address any of the

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others despite Plaintiffs request that they do so. And a district comt has discretion to allow a
paity to "expand the record" on a motion for reconsideration in the interest of fairness and
allowing for a full review of the issues. See Romero v. United States, No. 00 CIV. 3513(RPP),
2003 WL 1483558, at *2 (S.D.N.Y. Mar. 21, 2003). Given the circumstances and Defendants'
response, the Court will consider the new facts cited by Plaintiff for the purposes of this motion.
Turning now to the merits of Defendants' motion, the elements of a denial of the right to
a fair trial claim are: "an (1) investigating official (2) fabricates information (3) that is likely to
influence a jury's verdict, (4) forwards that information to prosecutors, and (5) the plaintiff
suffers a deprivation of life, libe1ty, or property as a result." Garnett v. Undercover Officer

C0039, 838 F.3d 265,279 (2d Cir. 2016) (internal quotation marks omitted). In the Court's
summary judgment Order, it concluded based on a number of suspicious facts about the police
search of Plaintiffs apaitment that Plaintiff had put forth sufficient evidence to raise a genuine
issue of material fact as to his denial of a fair trial claim. Order at 6-8.
Defendants argue that the Court overlooked the fifth element of the fair trial analysis.
They assert that because the Court found that Plaintiffs arrest and prosecution were supp01ted
by independent probable cause, even if the evidence in question had been fabricated, Plaintiff
cannot show that this fabrication caused any deprivation of liberty. Def. Mot., Dkt. 77, at 3-5.
And if Plaintiff fair trial claim fails, Defendants argue, his failure to intervene claim based on
denial of a fair trial must fail as well. Id. at 5 n. 2. Plaintiff counters that Defendants' alleged
fabrication resulted in a libe1ty deprivation by affecting the post-arrest charging decision and bail
determination. Pl. Opp. at 3-5. 1 For the reasons given below, the Court continues to conclude
that there was a genuine issue of material fact on this claim.

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Plaintiff also argues that the Court should not address Defendants' argument as it was raised for the first
time in Defendants' reply papers during summary judgment briefing. Pl. Opp. at 1-3. Because the Comt finds that

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Even if independent probable cause exists, fabricated evidence can cause a liberty
deprivation for the purposes of a fair trial claim. In a situation in which an arrest or prosecution
were supported by probable cause, a plaintiff can still prevail on a fair trial claim if fabricated
evidence causes some "further deprivation." Ganek v. Leibowitz, 874 F.3d 73, 91 (2d Cir. 2017)
(quoting Garnett, 838 F.3d at 277); Hoyos v. City of New York, 650 F. App'x 801, 803 (2d Cir.
2016) ("[T]he district court's statement that independent probable cause rules out the possibility
that fabricated evidence proximately caused the deprivations stemming from his prosecution is
not, as a general matter, correct."). The Second Circuit in Garnett gave as examples of further
deprivations "the setting of bail, which may make the difference between freedom and
confinement pending trial, and the prosecutor's decision to pursue charges rather than to dismiss
the complaint without further action" since these "may depend on the prosecutor's and
magistrate's assessments of the strength of the case, which in turn may be critically influenced
by fabricated evidence." Garnett, 838 F.3d at 277. Other examples of liberty deprivations
include "the number of comi appearances a plaintiff made post-anaignment, constraints such as
bail requirements, a period of incarceration or travel restrictions." Hanson v. New York City, No.
15-CV-1447 (MKB), 2018 WL 1513632, at *17 (E.D.N.Y. Mar. 27, 2018) (citing Singer v.
Fulton Cty. Sheriff, 63 F.3d 110, 117 (2d Cir. 1995)). The Court will apply this standard here.

There is a genuine issue of fact as to whether the allegedly fabricated evidence in this
case caused the prosecution to pursue charges against Plaintiff. If fabricated evidence is the
basis of the charges brought against an individual, a jury could reasonably conclude that this
evidence caused the prosecutor's decision to pursue charges. Loftin v. City of New York, No. 15CV-5656 (MKB), 2017 WL 3614437, at *9 (E.D.N.Y. Aug. 21, 2017) ("[B]ecause the

Plaintiff prevails on the merits of the argument, it is unnecessary to address whether Defendants waived this claim
by only raising it in their reply briefing.

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information provided by the officers was the basis for the charges against Plaintiff, the officers'
statements influenced the decision of the District Attorney's Office to charge Plaintiff in the
Criminal Complaint."); Ashley v. City of New York, No. 14-CV-5559 (NGG), 2017 WL 2972145,
at *7-9 (E.D.N.Y. July 12, 2017) (even where probable cause for prosecution existed sufficient
to deny a malicious prosecution claim, because a jury could conclude that a prosecutor might
have dropped the charges after discovering that some of the statements relied on in the complaint
were false, plaintiffs fair trial claim survived a motion for summary judgment); Thompson v.
Clark, No. 14-CV-7349 (JBW), 2018 WL 3128975, at *14-15 (E.D.N.Y. June 26, 2018)

(plaintiffs fair trial claim survived summary judgment because the allegedly false evidence was
"forwarded to the prosecutor ... , placed in the criminal court complaint, used as the basis for
charging him with resisting arrest, and served to deprive him of his liberty"). By Defendants'
own admission, the allegations that drugs and plastic baggies were recovered from Plaintiffs
apartment were virtually the entire basis for the criminal complaint against Plaintiff.
Defendants' Statement Pursuant to Rule 56.1, Dkt. 62,

~

30; Criminal Court Complaint, Thadani

Deel., Dkt. 61, Ex. S. It is true that the Court found that probable cause existed for the arrest and
search based on statements from a confidential informant, and therefore concluded there was
probable cause for commencing proceedings. Order at 11-12. Yet as an initial matter, it would
be contrary to Garnett for this Court to find that, as a matter of law, probable cause for an arrest
and search are a complete defense to a fair trial claim based on the decision to continue pursuing
a prosecution. Garnett, 838 F.3d at 277; see also Ashley, 2017 WL 2972145, at *7-9. Moreover,
the criminal complaint in this case was based on the allegedly fabricated evidence, making no
mention of any information from a confidential informant. Criminal Cami Complaint, Thadani
Deel., Dkt. 61, Ex. S. The decision to continue to prosecute Plaintiff plainly resulted in a liberty

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deprivation, as Plaintiff was required to appear in court sixteen times before the charges were
ultimately dismissed. Pl. Opp. at 4; see Hanson, 2018 WL 1513632, at * 17 (a significant
number of court appearances weighs in favor of finding of a liberty deprivation). It may be that
without the allegedly false evidence in the complaint, the prosecutor in this case would have
simply pursued the same charges based on the confidential informant. But a reasonable jury
could find otherwise.
There is also a genuine dispute of fact as to whether the purpmiedly fabricated evidence
resulted in a deprivation of liberty by causing bail to be set. In addition to the fact that the
complaint was based on the allegedly fabricated evidence, the prosecutor cited this evidence at
the arraignment where Plaintiffs bail was set. Pl. Opp. 2-3, 4-5. Plaintiff was then required to
post bail and detained for three days before his family did so. Id at 2-3. In these circumstances,
"[t]he jury could well find that the officers' allegedly false statements influenced the prosecutors
in their request for bail." Shepherd v. Mayer, No. 13 CV 6142 (NG), 2018 WL 679456, at *5
(E.D.N.Y. Jan. 31, 2018). A jury could also find that the evidence before Judge DiBiase
influenced her sense of the strength of the case and therefore the bail she set, resulting in
Plaintiffs three-day confinement. These outcomes plainly constitute liberty deprivations.
Garnett, 838 F.3d at 277; Haskins v. City of New York, No. 15-CV-2016 (MKB), 2017 WL
3669612, at *11 (E.D.N.Y. Aug. 24, 2017) ('"[T]here can be no question' that a plaintiff suffered
a deprivation of liberty when he was 'physically detained following arraignment.'" (quoting
Murphy v. Lynn, 118 F.3d 938, 945 (2d Cir. 1997)). Defendants argue that based on the
confidential informant, Plaintiff could have been charged with a felony, and, at the very least,
bail would have been no lower in that hypothetical scenario. But this cannot undo what actually
took place: the allegedly fabricated evidence was the basis for the criminal complaint, the

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prosecutor cited to that evidence at the arraignment at which bail was set, and this resulted in a
deprivation of Plaintiffs liberty. On that basis, a reasonable jury could conclude that the alleged
fabrication caused Plaintiffs post-arraignment detention. The Court therefore continues to
conclude that a genuine issue of material fact exists on Plaintiffs fair trial claim.
Because the Court denies Defendants' motion to reconsider as to Plaintiffs fair trial
claim, it will also deny their motion to reconsider as to Plaintiffs failure to intervene claim.
III.

Conclusion

For the reasons given above, Defendants' motion for reconsideration is DENIED in its
entirety. This resolves docket item number 76. In addition, within one week of the date of this
order, the parties shall submit a letter indicating whether they seek the Court's assistance in
referring the parties to a magistrate judge or mediator for settlement.
SO ORDERED.
Dated: January �1,, 2019
New York, New York
United States District Judge

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