Collazo v. The City Of New York , et al
ORDER AND OPINION re: 29 JOINT MOTION for Judgment on the Pleadings on behalf of all defendants. filed by CVS Caremark Corporation. Defendants' motion for judgment on the pleadings is GRANTED. The Clerk of Court is directed to close the motion at Dkt. No. 29. SO ORDERED. (Signed by Judge Lorna G. Schofield on 11/20/17) (yv)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
THE CITY OF NEW YORK, et al.,
DATE FILED: 11/20/2017
No. 17 Civ. 1040 (LGS)
ORDER AND OPINION
LORNA G. SCHOFIELD, District Judge:
Plaintiff Orlando Collazo brings this action against Defendants the City of New York
(“City”), Detective Joseph Cirigliano and CVS Caremark Corporation (“CVS”) seeking money
damages and other relief arising from Plaintiff’s arrest at Defendant CVS’ store and his
subsequent criminal prosecution. Defendants move for judgment on the pleadings. For the
reasons below, the motion is granted.
The facts below are drawn from the Complaint and the Criminal Court Complaint, of
which the Court is entitled to take judicial notice. See Fed. R. Evid. 201(b)(2); see Int’l Star
Class Yacht Racing Ass’n v. Tommy Hilfiger, U.S.A., Inc., 146 F.3d 66, 70 (2d Cir. 1998);
accord Ackerman v. Local Union, 363, Intern. Broth. of Elec. Workers, 423 F.Supp.2d 125, 128
(S.D.N.Y. 2006). For purposes of this motion, the allegations in the Complaint are assumed to
be true and are construed in the light most favorable to Plaintiff as the non-moving party. See
Spak v. Phillips, 857 F.3d 458, 463 n.2 (2d Cir. 2017).
On October 1, 2015, Plaintiff was shopping at a CVS store in Manhattan. Two CVS
employees forcibly escorted Plaintiff to a back room of the store for allegedly having stolen three
shampoo bottles from the store on September 17, 2015. The employees restrained Plaintiff and
prevented him from leaving until Defendant Cirigliano arrived. The CVS employees told
Detective Cirigliano that they had witnessed Plaintiff stealing shampoo on September 17, 2015.
Plaintiff explained to Defendant Cirigliano that he could not have stolen shampoo on that date
because he had been incarcerated at the time. Without investigating the veracity of Plaintiff’s
explanation, Defendant Cirigliano arrested and transported Plaintiff to the police station, where
he was detained. Later the same day, Plaintiff was transported to the Criminal Court and charged
with one count of robbery in the second degree and was further detained for an additional six
On the day of Plaintiff’s arrest, Defendant Cirigliano prepared the Criminal Court
Complaint in which he swore in part that Plaintiff “forcibly stole property and in the course of
the commission of the crime and immediate flight therefrom, [and that Plaintiff] caused physical
injury to [a CVS employee].” Defendant Cirigliano also swore that “[t]he factual basis for this
charge” was that a CVS employee had told him that on September 17, 2015, “he observed
[Plaintiff] take three shampoos off of the shelf and place them into a bag he brought into the
Defendant Cirigliano’s statements were forwarded to the New York County District
Attorney, who then criminally prosecuted Plaintiff for the alleged robbery. Plaintiff was made to
return to court once before October 6, 2015, when Plaintiff’s criminal charge was dismissed.
The Court reviews a motion for judgment on the pleadings pursuant to Federal Rule of
Civil Procedure 12(c) under the same standard as a Rule 12(b)(6) motion to dismiss. Bank of
N.Y. v. First Millennium, Inc., 607 F.3d 905, 922 (2d Cir. 2010). The Court accepts as true all of
the non-moving party’s well-pleaded factual allegations and draws all reasonable inferences in
favor of the non-moving party. See Standard Inv. Chartered, Inc. v. Nat’l Ass’n of Sec. Dealers,
Inc., 637 F.3d 112, 115 (2d Cir. 2011). To survive a motion for judgment on the pleadings, the
plaintiff’s complaint must contain sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face. Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir. 2010).
On a Rule 12(c) motion, the Court may consider “the complaint, the answer, any written
documents attached to them, . . . any matter of which the court can take judicial notice for the
factual background of the case[,] . . . any written instrument attached . . . as an exhibit, materials
incorporated . . . by reference, and documents that, although not incorporated by reference, are
integral” to the pleadings. L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 422 (2d Cir. 2011)
(internal quotation marks omitted).
The Complaint alleges assault and false imprisonment under New York law against
Defendant CVS. The Complaint alleges false arrest, false imprisonment and malicious
prosecution under 28 U.S.C. § 1983 and New York law against Defendants City and Cirigliano.
Defendants move for judgment on the pleadings on all counts. Because Plaintiff concedes that
his claims against CVS and his state law claims against all Defendants are time barred, only
Plaintiff’s § 1983 claims against Defendants City and Cirigliano are addressed below.
§ 1983 Claims against the City
The City’s motion for judgment on the pleadings is granted under the Monell doctrine.
Monell v. Dep’t of Soc. Servs. of N.Y., 436 U.S. 658 (1978). A municipality can be held liable
under § 1983 only if a plaintiff’s injury is the result of municipal policy or custom, id. at 694,
and a municipality is “not vicariously liable under § 1983 for [its] employees’ actions,” Connick
v. Thompson, 563 U.S. 51, 60 (2011). The Complaint does not allege that Plaintiff’s arrest and
prosecution were the result of a custom or policy. Plaintiff also concedes that there is no
vicarious liability claim against the City. Consequently, Plaintiff’s claims under § 1983 against
the City are dismissed.
§ 1983 Claims against Defendants Cirigliano
1. False Arrest and False Imprisonment under § 1983
Defendant Cirigliano’s motion for judgment on the pleadings is granted as to Plaintiff’s
false arrest and false imprisonment claims under § 1983 because Defendant Cirigliano had
probable cause to arrest Plaintiff. “Probable cause is a complete defense to a constitutional claim
of false arrest and false imprisonment.” Betts v. Shearman, 751 F.3d 78, 82 (2d Cir. 2014).
“Probable cause [to arrest] exists when the [arresting] 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.” Dancy v. McGinley, 843 F.3d 93, 107 (2d Cir. 2016) (internal quotation marks omitted).
Courts “must consider those facts available to the officer at the time of the arrest and
immediately before it, as probable cause does not require absolute certainty” and “should look to
the totality of circumstances.” Fabrikant v. French, 691 F.3d 193, 214 (2d Cir. 2012) (quoting
Panetta v. Crowley, 460 F.3d 388, 395 (2d Cir. 2006)).
An officer is entitled to rely on the putative victim or eyewitness’ allegations that a crime
has been committed, “unless the circumstances raise doubt as to the person’s veracity.”
Fabrikant, 691 F.3d at 216. “[A]n identified citizen informant is presumed to be reliable,” id.,
and “[i]t is not unreasonable for police officers to rely on the accounts provided by
[complainants] even when confronted with conflicting accounts,” Martinez v. Simonetti, 202
F.3d 625, 635 (2d Cir. 2000); accord Creighton v. City of New York, No. 12 Civ. 7454, 2017 WL
636415, at *27 (S.D.N.Y. Feb. 14, 2017).
In Curley v. Village of Suffern, the plaintiff was arrested after a barroom brawl. 268 F.3d
65, 70 (2d Cir. 2001). The plaintiff alleged that the defendant police officer lacked probable
cause because the plaintiff’s account of the brawl conflicted with that of the witnesses. Id. The
Second Circuit concluded that the witnesses’ account of the brawl provided probable cause and
that the conflicting accounts of the arrestee and the complainants did not vitiate probable cause.
Here, Defendant Cirigliano was entitled to rely on the CVS employees’ allegations that
Plaintiff stole shampoo bottles on September 17, 2015, because an eyewitness’ accounts are
presumptively reliable. Martinez, 202 F.3d at 634. Defendant Cirigliano was not required to
investigate Plaintiff’s conflicting claim of innocence, even if it was easy to do so. See Panetta,
460 F.3d at 395–96 (“[A]n officer’s failure to investigate an arrestee’s protestations of innocence
generally does not vitiate probable cause.”); Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 128
(2d Cir. 1997) (“Once a police officer has a reasonable basis for believing there is probable
cause, he is not required to explore and eliminate every theoretically plausible claim of
innocence before making an arrest.”). Plaintiff advances no other evidence to undermine the
credibility of the CVS employees, or to suggest that Defendant Cirigliano did not rely in good
faith on their account. See Jovanovic v. City of New York, 486 F. App’x 149, 152 (2d Cir. 2012)
(summary order) (“The detailed account given by [the victim] – without any obvious reason for
skepticism – provided sufficient probable cause. The circumstances of this case did not require
further investigation to support probable cause.” (internal citations omitted)).
Because the Complaint alleges facts that support a finding of probable cause, the claims
of false arrest and false imprisonment against Defendant Cirigliano are dismissed, without the
need to address his claim of qualified immunity.
2. Malicious Prosecution under § 1983
Defendant Cirigliano’s motion for judgment on the pleadings is granted as to the
malicious prosecution claim. “In order to 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 establish the elements of a malicious prosecution claim under state law.”
Fulton v. Robinson, 289 F.3d 188, 195 (2d Cir. 2002) (citations omitted). To establish malicious
prosecution under New York law, “a plaintiff must show that a proceeding was commenced or
continued against him, with malice and without probable cause, and was terminated in his
favor.” Id. To show malice, a plaintiff must show that the prosecution was based on “a wrong or
improper motive, something other than a desire to see the ends of justice served.” Rounseville v.
Zahl, 13 F.3d 625, 630 (2d Cir. 1994) (citing Nardelli v. Stamberg, 377 N.E.2d 975, 976 (N.Y.
1978)). Under § 1983 and New York law, “[t]he existence of probable cause is a complete
defense to a claim of malicious prosecution.” Manganiello v. City of New York, 612 F.3d 149,
161–62 (2d Cir. 2010). Probable cause is considered in light of the facts known or reasonably
believed at the time the prosecution was initiated. Mangino v. Incorporated Vill. of Patchogue,
808 F.3d 951, 957 n.3 (2d Cir. 2015).
For the reasons already stated, the Complaint alleges facts showing that Defendant
Cirigliano had probable cause to believe Plaintiff had committed a crime at the time he was
arrested. The Complaint does not allege any facts to suggest that this probable cause had
dissipated by the time Plaintiff was prosecuted. The Complaint also alleges no facts to show that
“the proceeding was instituted with malice.” Ricciuti, 124 F.3d at 131.
Plaintiff’s Reply argues that Defendant Cirigliano ignored allegedly exculpatory evidence
-- that Plaintiff was incarcerated at the time of the robbery -- and that this evinces Defendant’s
“awareness of conscious falsity” as to Plaintiff’s charge. D’Olimpo v. Crisafi, 718 F.Supp.2d
340, 345 n. 4 (S.D.N.Y. 2010), aff’d, 462 F. App’x 79 (2d Cir. 2012). However, the Complaint
does not allege facts showing that Defendant Cirigliano knew that Plaintiff was incarcerated on
September 17, 2015. Defendant Cirigliano’s alleged failure to investigate Plaintiff’s alibi
defense does not support an inference of malice. As noted above, once the arresting officer has
probable cause to arrest, he has no duty to investigate exculpatory defenses offered by the
arrestee or to assess the credibility of unverified claims of justification before making an arrest.
Jocks v. Tavernier, 316 F.3d 128, 135–36 (2d Cir. 2003). After the arrest, the arresting officer is
“neither required nor allowed to sit as prosecutor, judge or jury. [His] function is to apprehend
those suspected of wrongdoing, and not to finally determine guilt through a weighing of the
evidence.” Panetta, 460 F.3d at 396; accord Guerrero v. City of New York, No. 12 Civ. 2916,
2013 WL 5913372, at *4 (S.D.N.Y. Nov. 4, 2013).
Because the Complaint fails to allege facts showing the absence of probable cause and
the presence of malice, the issues of initiation or continuation of Plaintiff’s prosecution need not
For the foregoing reasons, Defendants’ motion for judgment on the pleadings is
GRANTED. The Clerk of Court is directed to close the motion at Dkt. No. 29.
Dated: November 20, 2017
New York, New York
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