McGee v. Dunn et al
Filing
171
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT: re: 147 FIRST MOTION for Summary Judgment Notice of Motion. filed by John (Jack) Harney, Brian Karst, Christopher Fox, Michael R Johnson, Robert Ba gnarol, Michael Cazzari, 143 MOTION for Summary Judgment . filed by James Dunn. For the reasons set forth above, defendant James Dunn's motion for summary judgment (ECF No. 143) is GRANTED. Further, defendants Robert Bagnarol, M ichael Cazzari, Christopher Fox, John (Jack) Harney, Michael R. Johnson, and Brian Karst's motion for summary judgment (ECF No. 147) is GRANTED. Accordingly, the pretrial conference and trial in this civil action are VACATED. It is further ORDE RED that this civil action be DISMISSED and STRICKEN from the active docket of this Court. IT IS SO ORDERED. The Clerk is DIRECTED to transmit a copy of this memorandum opinion and order to counsel of record herein. Pursuant to Federal Rule of Civil Procedure 58, the Clerk is DIRECTED to enter judgment on this matter. (Signed by Judge Frederick P. Stamp, Jr on 12/16/2015) (rj)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------------X
JAMES P. McGEE,
Plaintiff,
v.
JAMES DUNN, individually,
CHRISTOPHER FOX, individually,
ROBERT BAGNAROL, individually,
BRIAN KARST, individually,
JOHN HARNEY, individually,
MICHAEL CAZZARI, individually, and
MICHAEL R. JOHNSON, individually,
09 Civ. 6098 (FPS)
MEMORANDUM OPINION AND ORDER
GRANTING THE DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT
Defendants.
-------------------------------------------X
I.
Procedural History1
The plaintiff originally filed a complaint in the United
States District Court for the Southern District of New York for
violations of his constitutional rights.
Those alleged violations
arose from a false arrest of the plaintiff for witness tampering in
the fourth degree.
In his initial complaint, the plaintiff
asserted claims against the following defendants: Ector Perez
Galindo (“Galindo”); the Putnam County District Attorney’s Office,
Kevin
Wright
(collectively
the
“PCDA
defendants”);
Assistant
District Attorney Robert Noah (“ADA Noah”); the Town of Carmel and
the
Carmel
1
Police
Department;
the
Carmel
Police
Officers
For a more complete factual and procedural summary, see this
Court’s prior memorandum opinions and orders. See, e.g., ECF Nos.
80 and 83.
Christopher Fox (“Fox”), John Doe, Detective Robert Bagnarol,
Lieutenant Brian Karst, Sergeant John Harney, Lieutenant Michael
Cazzari, and Chief Michael R. Johnson (collectively “the officer
defendants”); and James Dunn (“Dunn”) and J. Dunn Construction
Corp. (“Dunn Construction”).
According to the plaintiff, Dunn used his influence with the
Carmel Police Department and the District Attorney’s Office to have
the plaintiff arrested.
Dunn allegedly did that to gain an
advantage in civil litigation between Dunn and the plaintiff, which
arose from a contract dispute about home improvement work that Dunn
performed at McGee’s residence.
The plaintiff alleges that the
defendants were involved in a conspiracy to “do favors” for
friends, including Dunn, and that this conspiracy led to the false
arrest and malicious prosecution of the plaintiff.
The plaintiff
brought his claim pursuant to 42 U.S.C. § 1983 (“§ 1983”), alleging
civil rights violations caused by the defendants’ conspiracy. More
specifically, the plaintiff alleged claims of (1) conspiracy by the
defendants to violate his civil rights, (2) false arrest, and (3)
malicious prosecution.
Later, the following defendants filed motions to dismiss: (1)
Galindo; (2) PCDA defendants and ADA Noah; (3) the Town of Carmel
and the Carmel Police Department; (4) the officer defendants; (5)
Dunn Construction; and (6) Dunn. Because Dunn filed for bankruptcy
at
that
time,
the
claims
against
2
him
were
stayed
until
the
bankruptcy court lifted the automatic stay, pursuant to 11 U.S.C.
§ 362.
This Court entered a memorandum opinion and order granting
the above-listed defendants’ motions to dismiss, with the exception
of Dunn.2
ECF No. 50.
against Dunn remained.
Following that ruling, only the claim
However, the action against him was stayed
until the bankruptcy court lifted the automatic stay.
Ultimately,
Dunn filed a motion to dismiss, which this Court granted.
ECF No.
83.
The plaintiff then appealed those rulings to the United States
Court of Appeals for the Second Circuit.
The Court of Appeals
affirmed in part and vacated in part this Court’s rulings. ECF No.
93.
The Court of Appeals affirmed this Court’s rulings regarding:
(1) dismissal of claims against Galindo; (2) dismissal of claims
against the PCDA defendants and ADA Noah; and (3) dismissal of the
malicious prosecution claim as to all defendants.
Further, the
Court of Appeals found that the plaintiff abandoned the claim
against Dunn Construction.
The Court of Appeals, however, disagreed with three rulings by
this Court, and accordingly vacated them.
First, regarding the
claims
that
against
Dunn,
the
Court
2
found
the
plaintiff
Specifically, this Court dismissed the claims against Galindo
because the plaintiff failed to sufficiently plead that Galindo
conspired with the state actors as required under a § 1983 claim.
Regarding the officer defendants, the Town of Carmel and the Carmel
Police Department, this Court dismissed the claims against them due
to qualified immunity. Finally, concerning Dunn Construction, this
Court granted its motion to dismiss.
3
sufficiently stated a claim against Dunn for a § 1983 conspiracy.
Second, the Court of Appeals vacated the dismissal of the claims
against the officer defendants.
Third, the Court of Appeals
vacated this Court’s denial of the plaintiff’s initial motion to
amend the complaint.
The Court of Appeals, however, stated that
the plaintiff was not permitted to reinstate any claims against any
party whose dismissal was affirmed by the Court of Appeals.
Also,
the Court of Appeals stated that the complaint could not be amended
to add Putnam County as a party because the complaint failed to
sufficiently state that it violated any of the plaintiff’s rights.
To
summarize
the
results
of
the
appeal,
the
following
judgments were vacated in part: (1) the dismissal of the claims
against Dunn; (2) the dismissal of the claims against the officer
defendants;
and
(3)
the
denial
of
the
motion
to
amend
the
complaint.
However, the following rulings were affirmed: (1)
dismissal of the malicious prosecution claim as to all defendants;
(2) the dismissal of claims against Galindo; (3) the dismissal of
claims against the District Attorney’s Office, Wright and ADA Noah;
and (4) the dismissal of claims against Dunn Construction.
plaintiff
ultimately
filed
a
second
amended
complaint
complied with the mandate of the Court of Appeals.
The
which
ECF Nos. 124-
26. That amended complaint states the following claims against the
remaining defendants: (1) conspiracy to violate the plaintiff’s
4
civil rights by Dunn and the officer defendants, and (2) false
arrest by the officer defendants.
At issue now are the following motions: (1) defendant Dunn’s
motion for summary judgment and (2) the officer defendants’ motion
for summary judgment. ECF Nos. 143 and 147, respectively. For the
reasons discussed below, both Dunn and the officer defendants’
motions for summary judgment must be granted.3
II.
Facts
Pursuant to three construction contracts, the plaintiff and
his wife hired Dunn to perform work on their house.
On or about
May 19, 2005, Dunn collected his tools and left after a dispute
arose regarding those contracts.
Later in 2005, the plaintiff
suffered extensive water damage to his home during a storm.
After
filing a claim with his insurance carrier, Liberty Mutual, the
senior insurance inspector determined that the water damage was due
to the faulty installation of the roof by Dunn in May 2005.
Liberty Mutual paid the plaintiff for the ceiling damage and then
attempted
to
reimbursement.
pursue
a
subrogation
action
against
Dunn
for
The plaintiff then brought a small claims action
3
On December 7, 2015, the parties by counsel filed a letter,
construed as motion, wherein they request that the current
deadlines be “adjourned until after the court renders its decision
on the pending summary judgment motions.” ECF No. 168. A second
letter dated December 14, 2015 (not docketed), from other counsel
but on behalf of all parties made a similar request. Because this
Court grants the motions for summary judgment, the parties’ letter
motions are DENIED AS MOOT.
5
against Dunn in the Town of Carmel Justice Court regarding one of
the three construction contracts.
Subsequently, Dunn filed a
counterclaim against the plaintiff, and the plaintiff then brought
a second small claims action in that court regarding a second of
the three construction contracts.4
Because the amount of damages related to his two small claims
actions in the Town of Carmel Justice Court exceeded the subject
matter jurisdiction of that court, the plaintiff withdrew his two
small claims actions in order to commence an action in the New York
State Supreme Court.
However, the trial of Dunn’s counterclaim
proceeded in small claims court.
Dunn’s counterclaim was tried in
the Town of Carmel Justice Court, with the plaintiff proceeding pro
se.
By decision and order dated November 29, 2005, Judge James
Reitz
found
in
the
plaintiff’s
counterclaim in its entirety.
favor
and
dismissed
Dunn’s
On December 20, 2006, the plaintiff
brought a civil action against Dunn in the New York State Supreme
Court as to all three contracts.
This action was ultimately
concluded by way of a settlement agreement.
Over the course of the litigation described above, Dunn
notified the plaintiff that Galindo5 may be called as a potential
4
The plaintiff also brought a consumer complaint before the
Dutchess County Department of Consumer Affairs (“DCDCA”) regarding
one of the three contracts that he had entered into with Dunn, but
the DCDCA determined that the matter was beyond its scope.
5
Galindo worked as a cook at a local restaurant, and was also
allegedly employed by Dunn as a day laborer doing home improvement
6
witness in such litigation.
ECF No. 144 Exs. A and F.
The
plaintiff contacted Galindo in order to obtain his address for
Liberty Mutual on April 6, 2006.
Id. Ex. E.
In the course of that
phone call, however, the plaintiff informed Galindo that the
request for Galindo’s address related to Dunn’s dispute concerning
the water damage.
Id. Exs. E and F.
Dunn, with the aid of his
attorney, asked Galindo to provide an affidavit as to what Galindo
witnessed on the date of the incident that sparked the contract
dispute.
In the affidavit, which Galindo completed on March 21,
2007, he stated that the plaintiff called him a second time around
11:00 p.m.
During that phone call, the plaintiff allegedly stated
the following to Galindo: (1) “Do you know that Jaime [Dunn] is
using your name as a witness?”; (2) “They are going to ask you
about your residence and if you are legal here in America”; and (3)
“The court is going to ask you if you are here legally and if your
[sic] not, you will be in trouble.”
Id. Ex. I.
According to the
affidavit, Galindo responded “I told him I have my own problems and
leave me alone and hung up.”
Id.
Defendant Dunn and his attorney
both learned of the plaintiff’s phone call for the first time when
Galindo came to the attorney’s office to complete the affidavit.
Id. Ex. G.
After learning about the phone call, Dunn pointed out to
Galindo
that
the
plaintiff’s
conduct
work.
7
may
have
been
illegal.
Galindo then asked what could be done about it.
Dunn informed
Galindo that Galindo could file a voluntary statement with the
Carmel Police Department.
Galindo, on his own accord, decided to
go to the Carmel Police Department in order to file a voluntary
statement on March 27, 2007.
Dunn accompanied him to the police
department so as to show him where he could file such statement.
Other
than
accompanying
him
to
the
police
department’s
main
entrance and window, Dunn did not enter or join Galindo inside the
police department.
Id. Ex. G at 39 (Galindo stating that “No. I
didn’t see [Dunn] inside [the police department], no.
outside.
[Dunn] never went inside.”).
He was
While at the main entrance
of the police department, Dunn informed Harney, who was the liaison
to the District Attorney’s office, about why he and Galindo were at
the police department.
Following that conversation, Harney talked
to ADA Noah about the plaintiff’s telephone call to Galindo. After
their conversation, Fox was called from patrol to meet with Galindo
regarding his voluntary statement.
ECF No. 135 Ex. L.
Fox had met
Dunn for the first time on the day that Dunn escorted Galindo to
the police department.
Id. Ex. K.
After arriving at the police
department, Fox interviewed Galindo in an interview room located in
the back of the department building.
Fox was the only individual
present when Galindo filled out the voluntary statement.6
6
Id. Ex.
Although an interpreter was not present, neither the record
nor Galindo indicates that Galindo failed to understand the
questions asked during his interview.
8
11.
The voluntary statement stated the following by Galindo:
“McGee calls me around 11 p.m.
to court to testifying.
legal in USA.”
I think he try to scare me if I go
Because he ask me if I was citizen or
Id. Ex. S.
Based on Galindo’s voluntary statement, Fox arrested the
plaintiff for tampering with a witness in the fourth degree.
Defendant Fox, and only Fox, decided to arrest the plaintiff.
Id.
Ex. K at 94 (Q: “To your knowledge, you were the only person who
determined to arrest [the plaintiff], right?”
A [Def. Fox]:
“Yes.”); see id. Ex. J (Defendant Harney stating that Fox was “the
one who made the final determination” to arrest the plaintiff.).
More specifically, on the same day that Galindo filed the voluntary
statement, Fox left messages on plaintiff’s business answering
machine directing him to come down to the police station for
processing, or else a warrant would be issued for his arrest.
Nonetheless, it was Galindo’s voluntary filing of the statement
against the plaintiff that brought about the false arrest and
malicious prosecution claims at issue in this case.
On March 30, 2007, the plaintiff voluntarily reported to the
police station with his counsel at the time, Darren Fairlie (“Mr.
Fairlie”).
On April 4, 2007, Galindo was asked to return to the
police department for a second interview regarding his voluntary
statement.
Defendant Bagnarol, a detective at the time, conducted
the interview.
Bagnarol asked essentially the same questions as
9
those from Galindo’s first interview with defendant Fox.7
ECF No.
142 Ex. D at 46-47.
The plaintiff’s counsel at the time, Mr. Fairlie, sent the
police department a letter on approximately April 2, 2007. ECF No.
142 Ex. G at 8.
In that letter, Mr. Fairlie claimed that the
plaintiff did not receive access to his attorney (Mr. Fairlie),
that
the
plaintiff
was
illegally
interrogated,
and
that
the
plaintiff was being coerced into waiving his rights under Miranda
v. Arizona, 384 U.S. 436 (1966).
Defendant Johnson, as the Chief
of Police in Carmel, had an investigation conducted by Karst into
the claims of the letter.
Id. at 11.
After investigating the
matter, including video footage of the incident involving Mr.
Fairlie’s claims, Karst concluded that Mr. Fairlie’s claims lacked
merit.
findings.
Defendant Karst then contacted Mr. Fairlie as to his
Mr.
Fairlie
“thanked”
Karst
for
conducting
the
investigation, and after their phone call, “that was the last
[defendant Karst] heard of those specific complaints.” ECF No. 142
Ex. G at 38. Ultimately, on January 14, 2008, the tampering charge
against the plaintiff was dismissed, and the court found “no
credible
evidence
that
at
the
7
time
of
the
alleged
phone
Galindo also states that defendant Dunn did not tell him to
go back to the police department, and that defendant Dunn was not
present at the police department during that second visit. ECF No.
142 Ex. D at 46-47.
10
conversation that there was any pending action or proceeding.” ECF
No. 124 ¶ 55.
Based on the facts above, the plaintiff contends that the
defendants conspired to violate the plaintiff’s civil rights by
falsely arresting the plaintiff.
to
help
defendant
Dunn
in
The point of that conspiracy was
his
prior
litigation
against
the
plaintiff regarding the construction contracts.
III.
Applicable Law
Under Rule 56(c) of the Federal Rules of Civil Procedure,
A party asserting that a fact cannot be or is genuinely
disputed must support the assertion by:
(A) citing to particular parts of materials in the
record, including depositions, documents, electronically
stored
information,
affidavits
or
declarations,
stipulations . . . admissions, interrogatory answers, or
other materials; or
(B) showing that the materials cited do not
establish the absence or presence of a genuine dispute,
or that an adverse party cannot produce admissible
evidence to support the fact.
Fed. R. Civ. P. 56(c).
The party seeking summary judgment bears
the initial burden of showing the absence of any genuine issues of
material fact.
(1986).
See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
The burden then shifts to the nonmoving party to “set
forth specific facts showing that there is a genuine issue for
trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986);
see Amaker v. Foley, 274 F.3d 677, 681 (2d Cir. 2001); McPherson v.
Coombe, 174 F.3d 276, 280 (2d Cir. 1999).
However, as the United
States Supreme Court noted in Anderson, “Rule 56(e) itself provides
11
that a party opposing a properly supported motion for summary
judgment may not rest upon the mere allegations or denials of his
pleading, but . . . must set forth specific facts showing that
there is a genuine issue for trial.”
477 U.S. at 256.
“The
inquiry performed is the threshold inquiry of determining whether
there is the need for a trial -- whether, in other words, there are
any genuine factual issues that properly can be resolved only by a
finder of fact because they may reasonably be resolved in favor of
either party.”
Graham
v.
Id. at 250; see also McPherson, 174 F.3d at 280;
Henderson,
89
F.3d
75,
80
(2d
Cir.
1996)(“While
genuineness runs to whether disputed factual issues can reasonably
be resolved in favor of either party, materiality runs to whether
the dispute matters, i.e., whether it concerns facts that can
affect
the
outcome
under
the
applicable
substantive
law.
A
reasonably disputed, legally essential issue is both genuine and
material and must be resolved at trial.”)(internal citations and
quotations omitted).
In Celotex, the Supreme Court stated that “the plain language
of Rule 56(c) mandates the entry of summary judgment, after
adequate time for discovery and upon motion, against a party who
fails 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.
In reviewing the supported underlying facts, all inferences must be
12
viewed in the light most favorable to the party opposing the
motion. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986).
IV.
As
discussed
earlier,
Discussion
defendant
Dunn
and
defendants each filed a motion for summary judgment.
the
officer
Further, the
remaining claims in this civil action are the following: (1)
conspiring to violate the plaintiff’s civil rights by Dunn and the
officer defendants; and (2) false arrest by the officer defendants.
The defendants’ motions for summary judgment are discussed below in
the order presented.
A.
Motion for Summary Judgment by Defendant Dunn
Dunn asserts two8 main arguments in his motion for summary
judgment. First, he argues that he is not a state actor, and
therefore cannot be liable under § 1983.
he
maintained
defendants.
little,
if
any,
Second, he contends that
relationship
with
the
officer
That limited relationship and lack of supporting
evidence demonstrates that (1) Dunn did not conspire with any state
actor, and (2) no meeting of the minds existed between Dunn and the
officer defendants.
In opposition to Dunn’s motion, the plaintiff
8
Defendant Dunn also claims that the plaintiff violated Local
Rule 56.1(b) in his response by failing to provide concise counterstatements and by failing to attach cited exhibits. Based on those
alleged violations, he requests that this Court strike such
counter-statements. Because Dunn’s motion for summary judgment is
granted on the present record, this Court finds it unnecessary to
address this argument.
13
claims that the record shows an “intimate involvement [among the
defendants] in the arrest and prosecution of plaintiff.”
The
plaintiff points to the record, and claims that the facts show
defendant Dunn played a pivotal role in orchestrating the alleged
conspiracy.
In addition to explicitly orchestrating a conspiracy,
the plaintiff also invokes the collective knowledge doctrine.
Applying that doctrine to the officer defendants, the plaintiff
believes
that
litigation
the
between
officer
defendants
defendant
Dunn
and
knew
the
of
the
contract
plaintiff,
thus
demonstrating their participation in Dunn’s conspiracy.
“Section 1983 addresses only those injuries caused by state
actors or those acting under color of state law.”
Spear v. Town of
West Hartford, 954 F.2d 63, 68 (2d Cir. 1992) (citing Rendell-Baker
v. Kohn, 457 U.S. 830, 835 (1982)).
A claim against a private
actor under a § 1983 conspiracy theory requires that the plaintiff
demonstrate that the private actor “acted in concert with the state
actor to commit an unconstitutional act.” Ciambriello v. County of
Nassau, 292 F.3d 307, 324 (2d Cir. 2002). Phrased another way, the
acting “under color” of state law requirement under § 1983 “does
not require that the accused be an officer of the State.
It is
enough that he is a willful participant in a joint activity with
the State or its agents.”
794 (1966).
United States v. Price, 383 U.S. 787,
Conferring “state action” upon the actions of a
private actor can be shown by “plan, prearrangement, conspiracy,
14
custom,
or
policy[.]”
Alexis
v.
McDonald’s
Restaurants
of
Massachusetts, Inc., 67 F.3d 341 (1st Cir. 1995); see Ginsberg v.
Healey Car & Truck Leasing, Inc., 189 F.3d 268, 273 (2d Cir. 1999).
As to the specific elements of a § 1983 conspiracy claim, the
plaintiff must show the following: “(1) an agreement between two or
more state actors or between a state actor and a private entity;
(2) to act in concert to inflict an unconstitutional injury; and
(3) an overt act done in furtherance of that goal causing damages.”
Pangburn v. Culbertson, 200 F.3d 65, 72 (2d Cir. 1999) (citing
Carson v. Lewis, 35 F. Supp. 2d 250, 271 (E.D.N.Y. 1999)) (internal
citations omitted).
Therefore, the plaintiff must show that the
state actor and private actor possessed a “meeting of the minds,”
and thus “reached an understanding that” the plaintiff’s civil
rights should be violated pursuant to their action.
Adickes, 398
U.S. 144, 158 (1970). Merely providing conclusory allegations that
a private actor “acted in concert with a state actor, however, does
not suffice to state a § 1983 claim” against the private actor.
Ciambriello, 292 F.3d at 324 (citing Spear, 954 F.2d at 68).
In this case, the plaintiff alleges that Dunn conspired with
the officer defendants to violate the plaintiff’s civil rights.
Allegedly, Dunn sought to gain an advantage in the contract dispute
between he and the plaintiff. In order to assess whether defendant
Dunn and the officer defendants reached a “meeting of the minds,”
this Court will examine each officer defendants’ alleged role in
15
Dunn’s conspiracy.
As will be shown below, the plaintiff’s
allegations are conclusory at best, and therefore, fail to satisfy
the legal standard as set forth above.
1.
Defendant Christopher Fox
In the complaint, the plaintiff alleges that Fox acted on
behalf Dunn by agreeing to arrest the plaintiff.
The plaintiff
claims that when Galindo went to file his complaint against the
plaintiff, defendants Dunn, Harney, and Fox directed Galindo to do
so.
The
response
plaintiff
in
makes
opposition.
similar
allegations
throughout
his
Those
allegations,
however,
are
insufficient to satisfy the legal standard discussed above.
The record shows that Fox independently decided, without
approval or orders from anyone else, to arrest the plaintiff. When
asked if he was “the only person who determined to arrest [the
plaintiff],” Fox answered “Yes.”
ECF No. 135 Ex. K at 94.
When
asked if anyone “else participated in making that determination,”
he answered “No.” Id. More dispositive than the above statements,
however, is the lack of any relationship or agreement between
defendants Dunn and Fox that demonstrates a “meeting of the minds.”
In his deposition, Fox was asked if “[p]rior to March 27, 2007, had
anybody indicated to you, in words or substance, there was any
litigation or lawsuit between James Dunn and Mr. McGee,” to which
he responded “No.”
Id. at 91.
Moreover, it is undisputed that
defendant Fox “is not now and has never been a friend of Dunn.”
16
ECF No. 155 ¶ 10.
Galindo also stated in his deposition that
defendant Dunn did not accompany him into the police department,
let alone the interview room where Galindo presented his statement
to Fox.
ECF No. 135 Ex. G at 21.
Defendant Fox was the only
individual present with Galindo when Galindo provided his statement
regarding the plaintiff’s phone call.
As to deciding whether to
provide that voluntary statement, neither the record nor the
plaintiff demonstrates that Dunn directed or advised Galindo to
submit such a statement.
The plaintiff claims that Fox was part of the conspiracy,
which Dunn sought to form, to obtain an advantage for Dunn in his
ongoing contract dispute with the plaintiff.
Without knowledge of
either the contract litigation or who defendant Dunn was, and
without outside direction to arrest the plaintiff, it is clear Fox
did not conspire with Dunn to arrest the plaintiff.
As stated
earlier, the plaintiff needs to show that “(1) an agreement between
two or more state actors or between a state actor and a private
entity; (2) to act in concert to inflict an unconstitutional
injury; and (3) an overt act done in furtherance of that goal
causing damages.”
omitted).
Pangburn, 200 F.3d at 72 (internal citations
Here, the plaintiff fails to satisfy even the first
element of his § 1983 conspiracy claim.
The plaintiff provides
only conclusory allegations that Dunn, as part of the conspiracy,
ordered Fox to arrest the plaintiff.
17
As the record shows, those
allegations
are
easily
disproved,
and
the
plaintiff
offers
insufficient evidence, if any, to conclude otherwise or show a
genuine issue of material fact.
2.
Defendant Robert Bagnarol
As to Bagnarol, the plaintiff alleges the following: (1) that
Bagnarol was a friend of Dunn; (2) that he agreed to interview
Galindo a second time; and (3) that Bagnarol interviewed Galindo in
order to bolster the legal sufficiency of Galindo’s voluntary
statement.
ECF No. 124 ¶ 6.
By attempting to cure Galindo’s
allegedly deficient complaint, the plaintiff contends that Bagnarol
joined in the conspiracy to falsely arrest the plaintiff and
thereby violate his civil rights.
The record and facts, however, show no such conspiratorial
participation,
let
alone
a
“meeting
of
the
minds.”
In
his
deposition, Bagnarol points out that he only met Galindo one time,
on April 4, 2007, for purposes of the second interview.
142 Ex. F at 10.
ECF No.
As to Dunn, Bagnarol noted that other than
greeting Dunn once remotely in the past and outside the police
department
building,
between them.
he
could
not
remember
any
conversations
Id. at 37 (Q: “Did you have a conversation with
[defendant Dunn]?”
A [Bagnarol]: “No.”).
Indeed, Dunn’s counter-
statement confirms that it is undisputed that defendants Dunn and
Bagnarol are “not now and [have] never been [] friend[s].” ECF No.
155 ¶ 11.
Aside from the plaintiff’s allegations of conspiracy
18
between defendants Dunn and Bagnarol, he offers no evidence in
support of those allegations.
Such conclusory statements do not
satisfy the legal standard discussed above.
Thus, the plaintiff
has not shown a “meeting of the minds” between defendants Dunn and
Bagnarol.
3.
Defendant Brian Karst
The record shows that Karst conducted an investigation into
the claims by Mr. Fairlie, the plaintiff’s counsel at the time of
arrest.
As stated earlier, Mr. Fairlie sent the police department
a letter on approximately April 2, 2007.
ECF No. 142 Ex. G at 8.
In that letter, Mr. Fairlie claimed that the plaintiff did not
receive access to his attorney (Mr. Fairlie), that the plaintiff
was illegally interrogated, and that the plaintiff was being
coerced into waiving his rights under Miranda v. Arizona, 384 U.S.
436 (1966).
Defendant Johnson, as the Chief of Police in Carmel,
had an investigation conducted by Karst into the claims of the
letter.
Id. at 11.
After investigating the matter, including
video footage of the incident involving the alleged claims, Karst
concluded that Mr. Fairlie’s claims lacked merit.
Defendant Karst
then contacted Mr. Fairlie as to his findings.
Mr. Fairlie
“thanked” defendant Karst for conducting the investigation, and
after their phone call, “that was the last [defendant Karst] heard
of those specific complaints.”
Id. at 38.
19
In his complaint, the plaintiff alleges that Karst falsely
claimed that he investigated the plaintiff’s arrest. It is alleged
that, as a member of the conspiracy, Karst conducted a “sham”
investigation.
ECF
No.
124.
Because
his
actions
were
in
furtherance of the conspiracy, the plaintiff believes that Karst
violated
the
plaintiff’s
rights.
Nothing
in
the
record
substantiates the plaintiff’s conspiracy claim as to defendants
Dunn and Karst, or at least raises a genuine issue of material fact
about the same.
Although Karst knew of defendant Dunn, Karst
stated that “I wouldn’t call [defendant Dunn] a friend.
knew of him from the town.
I never associated with him.
ate dinner with him, never socialized with him.”
I just
I never
Id. at 56.
It is
also undisputed by the parties that defendant Karst was “not now
and has never been a friend of Dunn.”
ECF No. 155 ¶ 9.
Other than
asserting that defendants Dunn and Karst were friends as stated in
the
complaint,
the
plaintiff
offers
no
evidence
agreement or “meeting of the minds” between the two.
to
show
an
The law is
quite clear that merely providing conclusory allegations that a
private actor “acted in concert with a state actor, however, does
not suffice to state a § 1983 claim” against the private actor.
Ciambriello (citing Spear, 954 F.2d at 68).
Here, the plaintiff
provides only conclusory allegations, and thus fails to state a
§ 1983 claim.
20
As to the allegation that the investigation was a sham, the
record also does not support that claim.
Rather, defendant Karst
pointed out that he investigated the issues asserted by Mr. Fairlie
as
to
the
assessing
plaintiff’s
a
video
that
plaintiff and Fox.
Fairlie’s
arrest.
captured
That
the
investigation
interaction
and
Karst
found
those
complaints
inconsistent with what was captured by the video.
Nothing
between
the
record
indicates
that
the
were
ECF No. 142 Ex.
Karst contacted Mr. Fairlie as to his findings.
in
the
The interaction formed the basis of Mr.
complaints,
G at 38.
included
investigation
Id.
was
conducted either as a sham or in bad faith, and the plaintiff
offers nothing that contradicts the record before this Court.
The
plaintiff has neither satisfied the legal standard for his § 1983
conspiracy claim against Dunn nor shown that genuine issues of
material fact exist.
4.
Defendant John “Jack” Harney
The plaintiff argues that triable issues of fact remain as to
defendant Harney’s involvement in the alleged conspiracy.
In the
complaint
Harney
and
response,
the
plaintiff
contends
essentially acted as “Dunn’s police liaison.”
that
ECF No. 154 at 7.
The plaintiff points to a conversation that defendant Harney and
ADA Noah had concerning the voluntary statement filed by Galindo.9
9
As mentioned earlier, defendant Harney was the detective
sergeant for the Carmel Police Department, and acted as a liaison
between the department and District Attorney’s office. ECF No. 142
21
The plaintiff relies primarily on portions of the conversation
between defendant Harney and ADA Noah to prove that defendant
Harney conspired with defendant Dunn.
The conversation occurred
after Galindo provided his voluntary statement but before the
plaintiff’s arrest.
In the conversation, the plaintiff points to
two key portions: the reference to a “plan” and the alleged
presence of Dunn at the police department.
ADA Noah and Harney
stated the following:
Sergeant Harney: I’ve got James Dunn down here[.] . . .
Sergeant Harney: [Dunn]’s got a pretty good booklet of
that four or five different -- actually more than that
statements that -Mr. Noah: Statements.
Sergeant Harney: -- he sworn [sic] statements that could
be proved to be sworn false statements in court. What I
had suggested is we wait until that civil proceeding is
done, and then we could follow up on that and determine
whether or not that they were proved to be false
statements. But we’re -- he’s going to get copies of
everything by Thursday, and I’m going to include all of
those, because it’ll give a motive as to why this guy was
trying to get [Galindo] to absent himself from that
hearing.
Mr. Noah: “Sounds like a plan.”
ECF No. 142 Ex. H at 14-17 (emphasis added).
Based on those
portions of the conversation, the plaintiff believes that “it is
obvious that Harney was actively engaged in a dialogue with Dunn
regarding alternative criminal prosecutions for Plaintiff.
It is
equally evident that Harney engaged in that dialogue before the
date of Plaintiff’s arrest.”
The plaintiff also believes that
Ex. H at 25.
22
Galindo used the affidavit he swore out at the office of Marin,
Dunn’s prior counsel, as a “script” for his voluntary statement.
In addition to using it as a script, the plaintiff contends that
defendant Dunn provided Harney with the affidavit in furtherance of
the conspiracy to falsely arrest the plaintiff.
After reviewing the record and facts, it is clear that the
plaintiff’s arguments are conclusory at best.
Regarding the
transcript, that conversation fails to show that a conspiracy
existed between defendants Dunn and Harney. Harney was asked about
the phrase “I’ve got James Dunn down here,” to which he stated “I
don’t recall him being with me at the time, physically, no.”
No. 142 Ex. H at 19.
ECF
The plaintiff believes that Harney’s
statement means that Dunn was at the police department and in the
interview room with Galindo.
In addition to defendant Harney’s
statement, however, the record contradicts the plaintiff’s belief.
Galindo stated in his deposition that Dunn did not accompany him
into the police department beyond the main entrance, let alone the
interview room where Galindo gave his statement to Fox.
135 Ex. G at 21.
ECF No.
Fox was the only individual present with Galindo
when Galindo provided his statement regarding the plaintiff’s phone
call.
Defendant
Dunn
only
escorted
Galindo
to
the
police
department, and the plaintiff offers no evidence to show that Dunn
coerced,
forced,
or
advised
Galindo
statement.
23
to
provide
a
voluntary
As to the reference to a “plan,” the evidence does not support
the argument that the word “plan” referenced an alleged conspiracy.
Rather, the record shows that Harney had little involvement with
the case against the plaintiff.
Fox, and no one else, made the
decision to arrest the plaintiff. When asked about his involvement
of the case, Harney stated the following: “This -- the only
dealings I had with this case were within this general, you know,
few minutes.
This wasn’t my case.
Fox; so, no, I didn’t.
police officer.”
This was handled by Officer
This [case] was followed-up on by another
ECF No. 142 Ex. H at 25.
Counsel for the
plaintiff then asked Harney the following: “If you had so little to
do with this case, why did you have the conversation with Noah?”,
to which Harney answered “I am the liaison to the [District
Attorney’s] office.
That’s my job as detective sergeant.”
Id.
When asked whether he spoke to Fox about the plaintiff’s arrest,
Harney responded “No.
I never did.”
Id. at 58.
Defendant Harney
further stated that he could not recall an instance when Dunn
stated
to
him
the
following:
(1)
that
he
and
the
plaintiff
maintained pending litigation concerning a contract dispute; (2)
that he wanted the plaintiff arrested or prosecuted; or (3) that he
wanted the plaintiff jailed.
Id. at 73.
The record shows that Harney only learned about the contract
dispute between Dunn and the plaintiff when Galindo filed his
voluntary statement, which was partially determined by inferring
24
Galindo’s statement about a trial.
See id. at 49 and 52.
Prior to
that occurrence, Harney only knew that Dunn “[s]aid he got thrown
off his job [for the plaintiff].”
Id. at 50.
That statement was
made when Dunn added a master bedroom to Harney’s home in 2005.
Id. at 38.
Other than that interaction, Harney and Dunn were at
most friends of friends.
The facts above, and the record in its
entirety, shows that the reference to a “plan” in no way insinuated
or referred to an alleged conspiracy.
To connect the above
isolated references from Harney’s conversation with ADA Noah to a
conspiracy with defendant Dunn is a stretch, to say the least.
Similar
to
most
of
plaintiff’s
arguments,
only
conclusory
allegations are offered in support of the conspiracy claim between
Dunn and Harney.
That statement fails to demonstrate a meeting of
the minds or any such agreement.
In addition to the conversation discussed above, the plaintiff
believes that Dunn gave Harney the affidavit given by Galindo “in
an attempt to find a pending case or proceeding which could be
linked to plaintiff’s dateless phone call.”
argument fails for two reasons.
ECF No. 154.
That
First, it is somewhat unclear
whether Dunn gave Harney the affidavit.
Second, even if defendant
Harney received the affidavit, that fact has no bearing on Fox’s
decision to arrest the plaintiff.
The record shows that Fox
decided to arrest the plaintiff, and that decision was made by him
alone.
The
plaintiff
offers
no
25
evidence,
other
than
bald
assertions, that Harney actively participated in or engaged in the
arrest of the plaintiff, let alone a conspiracy.
Therefore, the
plaintiff has not satisfied the legal standard previously discussed
because he failed to demonstrate “an agreement between two or more
state actors or between a state actor and a private entity,” in
addition to the remaining elements.
(internal citations omitted).
Pangburn, 200 F.3d at 72
Moreover, the plaintiff has not
shown that genuine issues of material fact exist.
5.
Defendant Michael Cazzari
The plaintiff alleged in his complaint that Cazzari destroyed
certain evidence in furtherance of the conspiracy.
¶ 9.
ECF No. 124
At defendant Cazzari’s deposition, however, counsel for the
plaintiff suggested that counsel for the officer defendants prepare
a stipulation of discontinuance for Cazzari.
39-40; ECF No. 140.
ECF No. 142 Ex. C at
However, the record does not show that such a
stipulation was filed as part of the docket.
To the extent that any claims of conspiracy remain against
defendant Cazzari, the record shows that such claims lack merit.
At his deposition, Cazzari pointed out the following: (1) that he
has never met or spoken to Galindo; (2) that he was never “involved
in an investigation, of any aspect, in the arrest or processing of”
the plaintiff; (3) that he has never met or spoken to Dunn; and (4)
that he did not learn of the contract dispute between Dunn and the
plaintiff until speaking with his attorney as to the above-styled
26
civil action.
ECF No. 142 Ex. C. at 7, 15 and 26 (respectively).
Further, it is undisputed that Cazzari has never met Dunn. ECF No.
155.
It is difficult to form a meeting of the minds without having
met. The record shows that Cazzari had little, if any, involvement
in the dispute between Dunn and the plaintiff.
Therefore, the
plaintiff has not met his burden as to the conspiracy claim against
defendants Dunn and Cazzari, and he has not shown that genuine
issues of material fact exist.
6.
Defendant Michael R. Johnson
Defendant Johnson served as the Chief of Police during the
time that the alleged conspiracy occurred.
that
Johnson
ignored
the
complaints
The plaintiff argues
that
Mr.
Fairlie,
the
plaintiff’s counsel at the time of arrest, raised in the letter to
the police department.
ECF No. 154 at 10.
By intentionally
ignoring that letter, the plaintiff argues that Johnson aided the
defendants in furtherance of the conspiracy.
As stated earlier, Mr. Fairlie submitted a letter to the
police department.
ECF No. 152 Ex. 10.
In that letter, Mr.
Fairlie claimed that defendant Fox refused Mr. Fairlie access to
the
plaintiff,
attempted
to
interrogate
the
plaintiff,
and
attempted to coerce the plaintiff to waive his Miranda rights. Id.
The plaintiff also asserted that defendant Dunn sought to use his
“personal relationships within the Town of Carmel Police Department
to
unlawfully
use
the
criminal
27
justice
system
to
obtain
an
advantage over [the plaintiff] in a civil dispute.”
Id.
The
plaintiff then concluded his letter with a description of the
elements of tampering with a witness in the fourth degree, and that
the plaintiff’s conduct failed to amount to such offense.
Id.
Defendant Johnson directed Karst to conduct an investigation of the
claims asserted by Mr. Fairlie. As stated earlier, Karst conducted
such investigation and found evidence, including video footage,
that directly contradicted Mr. Fairlie’s claims.
However, the
plaintiff now believes that Johnson furthered the conspiracy by
“ignoring” Mr. Fairlie’s claim that Dunn improperly conspired with
the police department.
After reviewing the record and the filings, it is clear that
the plaintiff’s argument as to Johnson lacks merit.
The plaintiff
baldly claims that Johnson participated in this conspiracy by
ignoring Mr. Fairlie’s letter.
Upon
receipt
of
the
letter,
The facts show a different story.
Johnson
had
Karst
conduct
an
investigation into the claims concerning a waiver of Miranda
rights, illegal interrogation, and obstructing access to counsel.
Defendant Karst conducted an investigation, and found a video of
the plaintiff’s arrest that refuted Mr. Fairlie’s accusations. The
plaintiff also contends that Johnson did not directly respond to
the claims of Dunn’s conspiracy within the police department.
Therefore, the plaintiff believes that “by refusing to investigate
these critical aspects of counsel’s letter, [defendants Johnson and
28
Karst] and the Department knowingly advanced Dunn’s plan to have
Plaintiff prosecuted.” ECF No. 154. The record, however, does not
support that belief.
After conducting an investigation into Mr.
Fairlie’s claims, Karst informed him of his findings.
Further,
Johnson was asked if “anyone on behalf of Dunn [told him] that Dunn
wanted [the plaintiff] arrested, prosecuted and jailed.”
142 Ex. I at 65.
He answered “No.”
Id.
ECF No.
Further, defendant
Johnson was asked if “[p]rior to the arrest, did [he] ever speak
with James Dunn about Galindo,” and if he ever spoke “with James
Dunn prior to the arrest with respect to [the plaintiff].” ECF No.
135 Ex. P. at 12.
questions.
Id.
Defendant Johnson responded “No” to both
Based on the facts discussed above, the record
shows no evidence of an agreement, let alone a conspiracy between
Dunn and Johnson.
Other than conclusory and misguided assertions,
the plaintiff provides insufficient evidence, if any, to either
satisfy the legal standard described above, or at least show the
existence of genuine issues of material fact.
7.
Collective Knowledge Doctrine Does Not Apply
To the extent that the plaintiff attempts to invoke the
collective knowledge doctrine, such an attempt is without merit.
Here, the plaintiff believes that pursuant to the doctrine, the
officer defendants were aware of Dunn and the plaintiff’s ongoing
contract dispute.
dispute,
they
were
Because the officer defendants knew of such
aware
of
defendant
29
Dunn’s
conspiracy
and
actively
participated
in
furtherance
of
it.
However,
the
collective knowledge doctrine does not apply in this case.
The
doctrine applies when, “for the purpose of determining whether an
arresting
officer
had
probable
cause
to
arrest,
‘where
law
enforcement authorities are cooperating in an investigation . . .
the knowledge of one is presumed shared by all.’”
Savino v. City
of New York, 331 F.3d 63, 74 (2d Cir. 2003) (quoting Illinois v.
Andreas, 463 U.S. 765, 772 n.5 (1983)).
The purpose behind the
doctrine is 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.’”
Savino, 331 F.3d at 74 (quoting
United States v. Valez, 796 F.2d
24, 28 (2d Cir. 1986)). Most important, however, is the following:
[T]he doctrine has traditionally been applied to assist
officers in establishing probable cause -- not to impute
bad faith to one member of an enforcement team on the
basis of another member’s knowledge. In fact, in Valez,
we clearly stated that this doctrine cannot be used to
impute to an officer “facts known to some [other] members
of the police force which exonerate an arrestee.”
[Valez, 796 F.2d at 28]. In addition to our holding in
Valez, common sense dictates that the collective
knowledge doctrine cannot be applied in the circumstances
presented here: Certainly, one cannot establish that an
officer engaged in “conduct undertaken in bad faith,”
[internal citation omitted], simply by presenting
evidence of another officer’s knowledge or state of mind.
Savino, 331 F.3d at 74 (emphasis added).
The United States Court
of Appeals for the Second Circuit has made it clear that the
30
collective knowledge doctrine does not apply in the way that the
plaintiff attempts to invoke it.
The plaintiff here seeks to use
the doctrine to impute the knowledge of some, if any, of the
officer defendants to the police department in order to demonstrate
their bad faith conduct.
That conduct in this case is the
participation in and furtherance of Dunn’s alleged conspiracy to
violate the plaintiff’s civil rights.
The plaintiff has presented
no evidence that shows that the officer defendants all knew of the
contract dispute, or that Dunn informed them of the same for
purposes of his alleged conspiracy.
Therefore, as made clear in
Savino, the doctrine does not apply in circumstances like those
that exist in this case.
In sum, the plaintiff must satisfy the following elements to
prevail on his § 1983 conspiracy claim: “(1) an agreement between
two or more state actors or between a state actor and a private
entity; (2) to act in concert to inflict an unconstitutional
injury; and (3) an overt act done in furtherance of that goal
causing damages.”
omitted).
Pangburn, 200 F.3d at 72 (internal citations
Merely providing conclusory allegations that a private
actor “acted in concert with a state actor, however, does not
suffice to state a § 1983 claim” against the private actor.
Ciambriello, 292 F.3d at 324 (citing Spear, 954 F.2d at 68). Based
on the record and the filings of the parties, the plaintiff has not
met his burden.
At a minimum, the plaintiff has failed to
31
establish at least an agreement or “meeting of the minds” among the
defendants.
Relying on conclusory allegations, as the plaintiff
has done here, does not satisfy the necessary elements for his
claim.
Furthermore, he has not shown that genuine issues of
material fact exist.
Therefore, defendant James Dunn’s motion for
summary judgment is GRANTED.
B.
Motion for Summary Judgment by Officer Defendants
The remaining motion at issue is the officer defendants’
motion for summary judgment.
ECF No. 147.
In their motion, the
officer defendants contend that qualified immunity applies with
respect to the plaintiff’s arrest.
Further, they assert that Fox
had probable cause to arrest the plaintiff, and that insufficient
evidence
exists
conspiracy
to
claims.
support
The
the
plaintiff’s
plaintiff
argues
false
that
arrest
the
and
officer
defendants are not entitled to qualified immunity, and that the
collective knowledge doctrine applies.
Moreover, the plaintiff
believes that his conspiracy claim and false arrest claims present
genuine issues of material fact.
1.
Conspiracy Claim
This Court previously addressed the plaintiff’s conspiracy
claim as to defendant Dunn’s motion for summary judgment.
After
analyzing each officer defendant’s relationship with defendant Dunn
in
light
of
the
record,
this
Court
determined
that
no
such
conspiracy existed. That same reasoning and those findings equally
32
apply to the officer defendants’ motion for summary judgment.
For
the reasons stated earlier in this memorandum opinion and order, no
genuine issues of material fact exist as to the plaintiff’s
conspiracy claim.
Thus, the officer defendants’ motion as to the
conspiracy claim must be granted.
2.
False Arrest Claim
The plaintiff’s remaining claim is for false arrest by the
officer defendants.
The officer defendants argue that qualified
immunity applies, and that they had probable cause to arrest the
plaintiff.
This Court will first address the application of
qualified immunity, and then turn to the merits of the claim.
As
will be discussed below, the officer defendants are entitled to
qualified immunity.
Even if qualified immunity did not apply, the
officer defendants had probable cause to arrest the plaintiff.
a.
The
Qualified Immunity
Supreme
Court
of
the
United
States
has
held
that
“government officials performing discretionary functions generally
are shielded from liability for civil 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); see
McCardle v. Haddad, 131 F.3d 43, 50 (2d Cir. 1997).
Qualified
immunity shields government officials “from liability for civil
damages if their actions were objectively reasonable, as evaluated
33
in the context of legal rules that were clearly established at the
time.”
Loria v. Gorman, 306 F.3d 1271, 1281 (2d Cir. 2002).
It
should be noted, however, that qualified immunity serves as “‘an
immunity from suit rather than a mere defense to liability.’”
Pearson v. Callahan, 555 U.S. 223, 232 (2009) (quoting Mitchell v.
Forsyth, 472 U.S. 511, 526 (1985)).
“The purpose of this immunity
is to allow government officials to carry out their discretionary
duties
without
the
fear
of
personal
liability
or
harassing
litigation, protecting from suit all but the plainly incompetent or
one who is knowingly violating the federal law.”
Lee v. Ferraro,
284 F.3d 1188, 1194 (11th Cir. 2002) (internal quotation marks and
citations omitted). The defense of qualified immunity is available
only to an official sued in his individual or personal capacity,
and not to an official sued in his official capacity.
Kentucky v.
Graham, 473 U.S. 159, 165–68 (1985).
Under Saucier v. Katz, 533 U.S. 194, 201 (2001), an analysis
of a qualified immunity defense requires a two-part inquiry.
The
first question is whether the facts alleged, when viewed in the
light most favorable to the injured party, “show the officer’s
conduct violated a constitutional right.”
Id.
If the facts
alleged fail to make this showing, the inquiry is at an end, and
the official is entitled to summary judgment.
Id.
If, however,
the facts alleged do show a constitutional injury, the second
question
is
whether
the
constitutional
34
right
was
clearly
established at the time of the violation.
Id.
Accordingly,
qualified immunity is abrogated only upon a showing that the
officer’s conduct violated a constitutional right and that such
right was clearly established at the time the conduct occurred.
Id.; Hill, 737 F.3d at 321.
To determine whether a right is
“clearly established in a qualified immunity case, ‘the contours of
the right must be sufficiently clear that a reasonable officer
would understand that what he is doing violates that right.’”
Hill, 727 F.3d at 321 (quoting Wilson v. Layne, 526 U.S. 603, 615
(1999)).
Within the context “‘of a qualified immunity defense to an
allegation of false arrest, the defending officer need only show
“arguable” probable cause.’” Caldarola v. Calabrese, 298 F.3d 156,
162 (2d Cir. 2002) (quoting Martinez v. Simonetti, 202 F.3d 625,
634 (2d Cir. 2000)).
“Probable cause to arrest exists when the
authorities have 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.”
Golino v. City of New Haven, 950 F.2d 864, 870 (2d Cir. 1991)
(citing Dunaway v. New York, 442 U.S. 200, 208 n.9 (1979)).
As
stated by the United States Court of Appeals for the Second
Circuit, “[a]n arresting officer is entitled to qualified immunity
from a claim for unlawful arrest if ‘either (a) it was objectively
reasonable for the officer to believe that probable cause existed,
35
or (b) officers of reasonable competence could disagree on whether
the probable cause test was met.’” Wachtler v. County of Herkimer,
35 F.3d 77, 80 (2d Cir. 1994) (quoting Golino, 950 F.2d at 870).
“In order to be entitled to summary judgment on such a defense, the
officer must adduce sufficient facts that no reasonable jury,
looking at the evidence in the light most favorable to, and drawing
all inferences most favorable to, the plaintiff, could conclude
that it was objectively unreasonable for the officer to believe
that probable cause did not exist.”
Golino, 950 F.2d at 870.
Using the analysis provided under Saucier, it is clear that
the officer defendants’ conduct, particularly Fox’s conduct, did
not violate a constitutional right because probable cause existed.
It is true that the “right not to be arrested or prosecuted without
probable cause has, of course, long been a clearly established
constitutional right.”
Id.
The record shows, however, that
probable cause did exist. Here, Fox received a voluntary statement
from Galindo, which Galindo provided on his own accord, with only
Fox present.
In that statement, the elements of tampering in the
fourth degree10 are listed, as well as the following statement of
10
The elements for tampering with a witness in the fourth
degree are the following: “A person is guilty of tampering with a
witness when, knowing that a person is or is about to be called as
a witness in an action or proceeding, (a) he wrongfully induces or
attempts to induce such person to absent himself from, or otherwise
to avoid or seek to avoid appearing or testifying at, such action
or proceeding, or (b) he knowingly makes any false statement or
practices any fraud or deceit with intent to affect the testimony
of such person. Tampering with a witness in the fourth degree is
36
facts by Galindo:
to scare me.
“McGee calls me around 11 p.m.
I think he try
If I go to the court to testify because he ask me if
I was citizen or legal in USA.”
ECF No. 152 Ex. 8.
Nothing in the
record indicates that the officer defendants should have viewed
Galindo’s statements as untrustworthy.
Rather, comparing the
statement of Galindo to the elements of the statute created a
reasonably
trustworthy
belief,
at
the
time
of
arrest
and
immediately before it, that the plaintiff committed an offense.
See
Caldarola,
298
F.3d
at
162
(quoting
Lowth
v.
Town
of
Cheektowaga, 82 F.3d 563, 569 (2d Cir. 1996) (“When determining
whether probable cause exist courts ‘must consider those facts
available to the officer at the time of the arrest and immediately
before it.’”).
It does not matter that the charge was later dismissed.
As
the Supreme Court of the United States stated in Michigan v.
DeFillippo, “[t]he validity of the arrest does not depend on
whether the suspect actually committed a crime; the mere fact that
the suspect is later acquitted of the offense for which he is
arrested is irrelevant to the validity of the arrest.”
31, 36 (1979).
443 U.S.
Therefore, it was objectively reasonable for the
officer defendants to believe that probable cause existed, and
thus, they are “entitled to qualified immunity.” Wachtler, 35 F.3d
at 80.
Because the facts, “viewed in the light most favorable to
a class A misdemeanor.”
N.Y. Penal Law § 215.10 (McKinney 2015).
37
the injured party,” show that the officer defendants did not
violate a constitutional right, “the inquiry is at an end, and the
official is entitled to summary judgment.”
201.
Saucier, 533 U.S. at
Thus, the officer defendants are entitled to qualified
immunity.
b.
Merits of the False Arrest Claim
This Court now turns to the merits of the plaintiff’s false
arrest claim.
that
he
was
As found in the complaint, the plaintiff alleges
falsely
arrested
by
the
officer
violation of his Fourth Amendment rights.
defendants,
in
The United States Court
of Appeals for the Second Circuit has stated that a Ҥ 1983 claim
for false arrest, resting on the Fourth Amendment right of an
individual to be free from unreasonable seizures, including arrest
with out probable cause . . . is substantially the same as a claim
for false arrest under New York law.”
Weyant v. Okst, 101 F.3d
845, 852 (2d Cir. 1996) (internal citations omitted).
A false
arrest claim maintains the following elements: “(1) the defendant
intended
to
confine
[the
plaintiff],
(2)
the
plaintiff
was
conscious of the confinement, (3) the plaintiff did not consent to
the
confinement
and
(4)
the
confinement
was
not
otherwise
privileged.” Singer v. Fulton County Sheriff, 63 F.3d 110, 118 (2d
Cir. 1995) (internal citation omitted).
Phrased another way, New
York law requires a plaintiff who asserts a claim of false arrest
to show “that the defendant intentionally confined him without his
38
consent and without justification.”
Weyant, 101 F.3d at 852.
Probable cause, if it exists, establishes such justification, and
operates as a “complete defense to an action for false arrest . . .
whether that action is brought under state law or under § 1983.”
Id.
(internal
citations
and
quotations
omitted).
As
stated
earlier, probable cause exists “when the arresting officer 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.’” O’Neill
v. Town of Babylon, 986 F.2d 646, 650 (2d Cir. 1993) (quoting
Calamia v. City of New York, 879 F.2d 1025, 1032 (2d Cir. 1989)).
Ordinarily, “subjective intentions play no role in . . . probablecause Fourth Amendment analysis.” Whren v. United States, 517 U.S.
806, 813 (1996).
In this case, the facts show that defendant Fox, and the
officer defendants collectively, had probable cause to arrest the
plaintiff.
As
discussed
above,
Galindo
went
to
the
department on his own accord to give a voluntary statement.
police
That
statement contained the elements of the tampering charge, as well
as Galindo’s handwritten statement.
The plaintiff argues that the
voluntary statement lacked a specific date, which allegedly raises
issues about the statement’s credibility.
Under the statement,
however, it provides “Nov. ‘06” as the date of the phone call to
Galindo by the plaintiff.
ECF No. 152 Ex. 8.
39
Although the
statement does not contain an exact date, the relevant penal code
maintains no such requirement.
It is worth noting that Galindo’s
statement about the phone call in the voluntary statement align
with those Galindo swore to in his affidavit.
8 and 135 Ex. I.
See ECF Nos. 152 Ex.
Although the existence of probable cause was
properly based on the voluntary statement by Galindo, the fact that
such statement mirrors his statements under his affidavit further
supports the trustworthiness of the information relied on by Fox.
To the extent that the plaintiff relies on the collective
knowledge doctrine, such argument also lacks merit.
As discussed
earlier, the doctrine applies when, “for the purpose of determining
whether an arresting officer had probable cause to arrest, ‘where
law enforcement authorities are cooperating in an investigation
. . .
the knowledge of one is presumed shared by all.’”
331 F.3d at 74 (quoting Andreas, 463 U.S. at 772 n.5).
Savino,
The purpose
behind the doctrine is 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
associates.’”
28).
on
facts
known
only
to
his
superiors
or
Savino, 331 F.3d at 74 (quoting Valez, 796 F.2d at
However, as this Court quoted above, “the doctrine has
traditionally been applied to assist officers in establishing
probable cause -- not to impute bad faith to one member of an
enforcement team on the basis of another member’s knowledge.”
40
Savino, 331 F.3d at 74 (emphasis added).
The United States Court
of Appeals for the Second Circuit has made it clear that the
collective knowledge doctrine does not apply in the way that the
plaintiff attempts to invoke it as to the officer defendants.
The
plaintiff has not shown that any of the officer defendants, let
alone Fox, acted in bad faith.
The plaintiff also has not shown
that any of the officer defendants possessed knowledge that the
plaintiff’s arrest would occur or be arranged in bad faith.
Notwithstanding the Second Circuit’s position on the use of the
collective knowledge doctrine, the plaintiff has established no
evidence that any of the officer defendants acted in bad faith.
More importantly, the plaintiff has pointed to no evidence
that meets the standard for a false arrest claim described above.
The plaintiff instead relies on conclusory allegations that do not
raise doubts as to the reliability or trustworthiness of either
Galindo or his voluntary statement.
The record shows that at the
moment of arrest and immediately before it, Fox reasonably believed
that the plaintiff committed an offense.
Therefore, this Court
finds that probable cause existed, and accordingly, the officer
defendants’ motion for summary judgment is GRANTED.
V.
Conclusion
For the reasons set forth above, defendant James Dunn’s motion
for summary judgment (ECF No. 143) is GRANTED. Further, defendants
Robert Bagnarol, Michael Cazzari, Christopher Fox, John (Jack)
41
Harney, Michael R. Johnson, and Brian Karst’s motion for summary
judgment (ECF No. 147) is GRANTED.
Accordingly, the pretrial
conference and trial in this civil action are VACATED.
It is
further ORDERED that this civil action be DISMISSED and STRICKEN
from the active docket of this Court.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein. Pursuant to Federal
Rule of Civil Procedure 58, the Clerk is DIRECTED to enter judgment
on this matter.
DATED:
December 16, 2015
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
42
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