Tubbins v. Wrest et al

Filing 25

REPORT AND RECOMMENDATIONS re 19 MOTION for Summary Judgment filed by Scott R. Malec, Buffalo Police Department, The City of Buffalo, Patricia Wrest. Objections due fourteen days from receipt. DECISION AND ORDER Plaintiff's motion to compel is Denied. Signed by Hon. Leslie G. Foschio on 10/11/2016. (SDW)(Copy of R&R/D&O mailed to Attorney Bruce)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
______________________________________
CHARLES TUBBINS,
Plaintiff,
v.
PATRICIA WREST, Individually and in her
Official Capacity as a Police Officer of the
Buffalo Police Department,
SCOTT R. MALEC, Individually and in his
Official Capacity as a Police Officer of the
Buffalo Police Department,
BUFFALO POLICE DEPARTMENT, and
THE CITY OF BUFFALO,

REPORT
and
RECOMMENDATION
----------------------------DECISION
and
ORDER
14-CV-00409A(F)

Defendants.
______________________________________
APPEARANCES:

LAW OFFICE OF WAYNE C. FELLE, P.C.
Attorneys for Plaintiff
WAYNE C. FELLE, and
ELIZABETH A. BRUCE, of Counsel
6024 Main Street
Williamsville, New York 14221
TIMOTHY ALFRED BALL
CORPORATION COUNSEL, CITY OF BUFFALO
Attorney for Defendants
ROBERT EMMET QUINN, and
DAVID M. LEE, Assistant Corporation Counsel, of Counsel
City of Buffalo, Department of Law
65 Niagara Square
Buffalo, New York 14202
JURISDICTION

This case was referred to the undersigned on June 4, 2014, by Honorable
Richard J. Arcara for all pretrial matters including preparation of a report and
recommendation on dispositive motions. The matter is presently before the court on

Defendants’ motion for summary judgment (Dkt. 19), filed February 27, 2016, and
Plaintiff’s motion for discovery (Dkt. 22), filed April 13, 2016.1

BACKGROUND
On April 25, 2014, Plaintiff Charles Tubbins (“Plaintiff” or “Tubbins”), filed in New
York Supreme Court, Erie County, a complaint (Dkt. 1 at 8-20) (“Complaint”), alleging,
pursuant to 42 U.S.C. § 1983 (“§ 1983”), Defendants City of Buffalo, New York
(“Buffalo” or “the City”), Buffalo Department of Police (“the Police” or “Buffalo Police”),
Buffalo Police Officer Patricia Wrest (“Wrest”), and Buffalo Police Officer Scott R. Malec
(“Malec”), violated Plaintiff’s civil rights in connection with the arrest and detention of
Plaintiff on an indictment for a murder for which Plaintiff was later exonerated by DNA
evidence. Plaintiff asserts seven claims for relief including (1) unspecified constitutional
violations against “the individual unnamed police officer defendants,” Complaint ¶¶ 3031 (“First Claim”); (2) violations of § 1983 against the City and the Police, id. ¶¶ 32-38
(“Second Claim”); (3) false arrest and imprisonment against Defendants, id. ¶¶ 46-52
(“Third Claim”); (4) negligent hiring, training and retention against the City and the
Police, id. ¶¶ 53-63 (“Fourth Claim”); (5) intentional infliction of emotional distress
against Defendants, id. ¶¶ 64-68 (“Fifth Claim”); (6) malicious prosecution and abuse of
process against Defendants, id. ¶¶ 69-73 (“Sixth Claim”); and (7) libel and slander
against Defendants, id. ¶¶ 74-85 (“Seventh Claim”). On May 29, 2014, Defendants
removed the action to this court asserting federal question jurisdiction pursuant to 28
U.S.C. § 1331. The September 10, 2014 Scheduling Order (Dkt. 10) (“Scheduling
1

Although Defendants’ summary judgment motion is dispositive, whereas Plaintiff’s discovery motion is
nondispositive, the court addresses them in this combined Report and Recommendation/Decision and
Order in the interest of judicial economy.

2

Order”), set August 5, 2015 as the deadline for motions to compel, August 31, 2015 as
the discovery deadline, and February 29, 2016 as the dispositive motion deadline.
Despite the August 31, 2015 discovery cut-off, Defendants Malec and Wrest were not
deposed until January 7, 2016.
On February 27, 2016, Defendants filed the instant motion for summary judgment
(Dkt. 19) (“Defendants’ motion”), attaching in support the Declaration of Buffalo
Assistant Corporation Counsel David M. Lee (Dkt. 19-1) (“Lee Declaration”), exhibits A
through D (Dkts. 19-2 through 19-5) (“Defendants’ Exh(s). __”), the Statement of
Material Facts (Dkt. 19-6) (“Defendants’ Statement of Facts”), and the Memorandum of
Law (Dkt. 19-7) (“Defendants’ Memorandum”). On March 30, 2016, Plaintiff filed
Plaintiff’s Opposition Statement Pursuant to Rule 56(A)(2) (Dkt. 22) (“Plaintiff’s
Opposing Statement of Facts”), Plaintiff’s Memorandum of Law in Opposition to
Defendants’ Motion for Summary Judgment (Dkt. 22-1) (“Plaintiff’s Memorandum”), the
Declaration of Wayne C. Felle, Esq. (Dkt. 22-2) (“Felle Declaration”), and exhibits A
through E (Dkts. 22-4 through 22-8) (“Plaintiff’s Exh(s). __”).
On March 21, 2016, in a companion action filed by Plaintiff alleging malicious
prosecution against Erie County District Attorney Office, Erie County District Attorney
Frank Sedita, and Assistant Erie County District Attorney Gary Hackbush (“County
Defendants”), 14-CV-00403F, Tubbins v. Hackbush, (“the County Action”), Plaintiff
moved pursuant to Fed.R.Civ.P. 56(d) to compel discovery to enable Plaintiff to oppose
a summary judgment motion filed by the County Defendants in the County Action,
(“Motion to Compel”).2 Although the Motion to Compel was not filed in the instant

2

Plaintiff’s motion to compel filed in the County Action, County Action Dkt. 24, is not accompanied by an
actual notice of motion but only by papers supporting such motion. See County Action Text Order

3

action, Plaintiff listed Defendants in the instant action as well as County Defendants in
the Motion to Compel’s caption, and served a copy of the Motion to Compel on
Defendants in this action, to which Defendants, on April 13, 2016, filed in response the
Memorandum of Law (Dkt. 23) (“Defendants’ Response”), and the Declaration of
Assistant Corporation Counsel David M. Lee (Dkt. 23-1) (“Lee Response Declaration”).
In further support of summary judgment, Defendants also filed on April 13, 2016, the
Reply Memorandum (Doc. No. 24) (“Defendants’ Reply”). Oral argument was deemed
unnecessary.
Based on the following, Defendants’ motion should be GRANTED; Plaintiff’s
motion is DENIED.
FACTS3
On November 10, 2012, Rashiene Carson (“the victim”), seated in the rear,
passenger-side seat, was a passenger in a vehicle (“the vehicle”) that was stopped
outside the Getty Gas Station & Convenience Store (“the store”), at 595 Ontario Street,
in Buffalo, New York. The store’s security video camera captured images (“the security
video”), at 12:47 A.M. showing someone using his bare hand to operate the door handle
(“the door handle”) to open the vehicle’s rear passenger-side door and shoot the victim
before fleeing on foot. The victim exited the vehicle from the rear passenger-side seat,
stumbled toward the store and collapsed and died on the sidewalk in front of the store
(“the shooting” or “the homicide”). In investigating the crime scene, Buffalo Police
Department (“the police”) Crime Scene Unit (“CSU”) Detective Christopher Gerace

entered March 29, 2016 (Dkt. 25) (recognizing that Plaintiff, by papers filed March 21, 2016, moved for
discovery pursuant to Fed.R.Civ.P. 56(d)).
3
Taken from the pleadings and motion papers filed in this action.

4

(“Gerace”), swabbed the door handle, obtaining a DNA sample that was submitted to
the Erie County Central Police Services (“CPS”) Forensic Lab (“the Lab”) for analysis on
November 14, 2012.
On November 12, 2012,4 Buffalo Police homicide detectives, Defendants Scott
Malec (“Malec”), and Patricia Wrest (“Wrest”), approached Tibbins at the North Buffalo
Community Center, requesting Tubbins accompany the detectives to the Buffalo Police
Department’s Homicide Bureau (“Homicide Bureau”) for questioning. Tubbins agreed,
and was questioned for several hours by Malec and Wrest. During the interrogation,
Plaintiff gave an alibi consisting of inconsistent statements. Malec Dep. Tr.5 at 34.
On November 13, 14, and 15, 2012, prior to obtaining the results of the DNA
sample and fingerprint anayses, Malec, based on the security video, located and
interviewed three eyewitnesses to the shooting who identified Plaintiff from a photo
array as the shooter. Malec Dep. Tr. at 37-39, 50-53; Wrest Dep. Tr.6 at 48. Plaintiff’s
girlfriend, who was also interviewed, denied being with Plaintiff at the time of the
homicide, and also identified Plaintiff as the shooter depicted in the security video.
Malec Dep. Tr. at 51-53; Wrest Dep. Tr. at 48-49.
The homicide case was assigned for prosecution to Assistant Erie County District
Attorney (“ADA”) Gary Hackbush (“Hackbush”), who evaluated the police evidence,
watched the surveillance video, and prepared a case review (“Case Review”),
summarizing his analysis. Hackbush Dep. Tr.7 at 23-25, 43-44. Hackbush submitted
the Case Review to Assistant Erie County District Attorney Homicide Chief James
4

The date of the interview is also noted in the record as November 17, 2012.
References to “Malec Dep. Tr.” are to the pages of the deposition of Malec, filed as Defendants’ Exh. C.
6
References to “Wrest Dep. Tr.” are to the pages of the deposition of Wrest, filed as Defendants’ Exh. D.
7
References to “Hackbush Dep. Tr.” are to the pages of the deposition of Hackbush, taken by Plaintiff in
connection with the County Action, and filed in this action as Defendants’ Exh. B.
5

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Bargnesi (“Bargnesi”), and then Erie County District Attorney Frank Sedita (“Sedita”), for
review. Id. at 25, 29, 82. After reviewing the Case Review, Sedita instructed Hackbush
to present the matter to a grand jury, which returned an indictment (“the Indictment”)
against Tubbins for whom an arrest warrant was issued. Id. at 82. On November 29,
2012, while with some friends at a local bowling alley, Tubbins was arrested by Malec
and Wrest for the homicide, and detained at the Erie County Holding Center (“the
Holding Center”).
On January 22, 2013, the completed CPS Lab’s DNA analysis excluded Plaintiff
as the source of the DNA sample taken from the vehicle’s door handle. On February 5,
2013, the search results of the local Convicted Offender DNA Index System (“CODIS”)
database showed a match between the DNA sample and a defendant in an unrelated
criminal action involving four codefendants, prosecuted by ADA Christopher Jurusik
(“ADA Jurisik”) (“Jurusik’s case”). Hackbush Dep. Tr. at 72. One of the four
codefendants in Jurusik’s case, Ahkeem Huffman (“Huffman”), resembled the person
depicted in the security video, and also “bore a striking similarity” to Tubbins, and
Hackbush asked Jurusik to abtain from Huffman a buccal swab DNA sample, which
Hackbush then had the Lab compare to the DNA sample taken from the door handle.
Id. at 72-74. On February 5, 2013, Hackbush received confirmation from the Lab that
Huffman’s DNA was on the door handle as well as on the gun used in Jurusik’s case.
Id. at 73. On February 8, 2013, Plaintiff, who remained at the Holding Center, was
granted bail and released on February 9, 2013. In May 2013, Huffman confessed to the
homicide for which Huffman was indicted on June 25, 2013. The Indictment was
dismissed on July 18, 2013. This action followed.

6

DISCUSSION
Preliminarily, the court addresses Plaintiff’s motion pursuant to Fed.R.Civ.P.
56(d) (“Rule 56(d)”) seeking discovery to oppose summary judgment. In opposition to
summary judgment, Plaintiff moves for discovery pursuant to Rule 56(d), asserting that
without affording Plaintiff discovery, Defendants’ motion is premature. Plaintiff’s Motion
to Compel at 3-4. In opposition, Defendants maintain that Plaintiff, in moving to compel,
has failed to comply with the requirements of Fed.R.Civ.P. 56(d). Defendants’
Response at 2. Defendants argue both the August 31, 2015 discovery cut-off and the
August 5, 2015 deadline for moving to compel had long expired prior to Plaintiff’s filing
of his motion to compel, and that despite such deadlines, Defendants already agreed to
produce both Malec and Wrest for deposition after the close of discovery, and Plaintiff
did not assert any need for additional discovery until after Defendants’ pending
summary judgment motion was filed. Defendants’ Response at 3; Lee Response
Declaration ¶¶ 5-8. Although Plaintiff verbally requested to depose Buffalo Police
Detective Gerace, and Defendants did not object to such deposition given that
scheduling conflicts had delayed the depositions of Malec and Wrest, Plaintiff never
actually scheduled Gerace’s deposition. Defendants’ Response at 3; Lee Response
Declaration ¶¶ 8-9. Plaintiff has not argued in further support of the motion.
Rule 56 provides, in pertinent part, that “[i]f a nonmovant shows by affidavit or
declaration that, for spedified reasons, it cannot present facts essential to justify its
opposition, the court may . . . allow time to obtain affidavits or declarations or to take
discovery . . . .” Fed.R.Civ.P. 56(d)(2). A Rule 56(d) affidavit however, must “include

7

the nature of the uncompleted discovery; how the facts sought are reasonably expected
to create a genuine issue of material fact; what efforts the affiant has made to obtain
those facts; and why those efforts were unsuccessful.” Paddington Partners v.
Bouchard, 34 F.3d 1132, 1138 (2d Cir. 1994) (citing cases). In the instant case, not
only has Plaintiff not filed the motion to compel in this action, but in filing the motion to
compel in the County Action, Plaintiff failed to submit the required affidavit in support of
his motion, and it is not apparent from the papers why Plaintiff was unable to obtain the
information he now seeks within the time set by the court for discovery.
Accordingly, Plaintiff’s motion is DENIED.
As for Defendants’ motion seeking summary judgment, summary judgment of a
claim or defense will be granted when a moving party demonstrates that there are no
genuine issues as to any material fact and that a moving party is entitled to judgment as
a matter of law. Fed. R. Civ. P. 56(a) and (b); Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51 (1986); Miller v.
Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir. 2003). The court is required to
construe the evidence in the light most favorable to the non-moving party. Collazo v.
Pagano, 656 F.3d 131, 134 (2d Cir. 2011). The party moving for summary judgment
bears the burden of establishing the nonexistence of any genuine issue of material fact
and if there is any evidence in the record based upon any source from which a
reasonable inference in the non-moving party's favor may be drawn, a moving party
cannot obtain a summary judgment. Celotex, 477 U.S. at 322; see Anderson, 477 U.S.
at 247-48 (“summary judgment will not lie if the dispute about a material fact is
"genuine," that is, if the evidence is such that a reasonable jury could return a verdict for

8

the nonmoving party”). “A fact is material if it ‘might affect the outcome of the suit under
governing law.’” Roe v. City of Waterbury, 542 F.3d 31, 35 (2d Cir. 2008) (quoting
Anderson, 477 U.S. at 248).
“[T]he evidentiary burdens that the respective parties will bear at trial guide
district courts in their determination of summary judgment motions.” Brady v. Town of
Colchester, 863 F.2d 205, 211 (2d Cir. 1988)). A defendant is entitled to summary
judgment where “‘the plaintiff has failed to come forth with evidence sufficient to permit
a reasonable juror to return a verdict in his or her favor on’” an essential element of a
claim on which the plaintiff bears the burden of proof. In re Omnicom Group, Inc., Sec.
Litig., 597 F.3d 501, 509 (2d Cir. 2010) (quoting Burke v. Jacoby, 981 F.2d 1372, 1379
(2d Cir. 1992)). Once a party moving for summary judgment has made a properly
supported showing of the absence of any genuine issue as to all material facts, the
nonmoving party must, to defeat summary judgment, come forward with evidence that
would be sufficient to support a jury verdict in its favor. Goenaga v. March of Dimes
Birth Defects Foundation, 51 F.3d 14, 18 (2d Cir. 1995). “[F]actual issues created
solely by an affidavit crafted to oppose a summary judgment motion are not ‘genuine’
issues for trial.” Hayes v. New York City Dept. of Corrections, 84 F.3d 614, 619 (2d Cir.
1996).
In support of summary judgment, Defendants argue that because Defendants
had probable cause to arrest Plaintiff, as established by the Indictment, the federal and
state law claims asserted against Defendants Malec and Wrest (“Individual
Defendants”), for false arrest, false imprisonment, malicious prosecution, and abuse of
process are barred. Defendants’ Memorandum at 2-7. According to Defendants,

9

Plaintiff’s Second Claim is barred as against the Buffalo Police because the Police do
not have an identity separate from The City and cannot be sued, Defendants’
Memorandum at 7, and as against the City of Buffalo because municipalities are not
subject to liability under § 1983 based on respondeat superior resulting in a violation of
Plaintiff’s civil rights, a factor absent in the instant case. Id. at 7-8 Defendants further
maintain the court should decline to exercise supplemental jurisdiction over the state
law claims, id. at 8-9, and Plaintiff’s claims for negligent hiring, training, and retention,
intentional infliction of emotional distress, and libel and slander are also barred by the
probable cause supporting the arrest. Id. at 9-10. Plaintiff argues summary judgment
should be denied because the undisputed fact that Plaintiff was wrongfully arrested and
detained for the homicide which he did not commit establishes there exists a genuine
issue of material fact as to whether such arrest and detention were the result of (1) a
policy or procedure of the Buffalo Police manifesting reckless indifference to the
constitutional rights of individuals, including Plaintiff, (2) improper hiring, training, and
supervision by the Buffalo Police detectives with regard to proper investigative
procedures, or (3) a culture within the Buffalo Police promoting reckless indifference to
the rights of individuals, including Plaintiff, by promoting and favoring quick arrests over
more thorough investigation and analysis of the evidence. Plaintiff’s Memorandum at
12. Plaintiff further challenges the investigatory tools Defendants employed, including
the use of an allegedly suggestive identification process, i.e., a photo array conducted
by the same detective involved in the investigation, id. at 12-20, and Defendants should
have delayed arresting Plaintiff for the 70 days it took to obtain the DNA sample
analysis. Id. at 2, 13-14, 17-18. In further support of summary judgment, Defendants

10

argue there are no genuine issues of material fact disputing that Defendants’ arrest of
Plaintiff was supported by probable cause, Defendants’ Reply at 3-7, the § 1983 claims
must be dismissed as against the Buffalo Police which does not have an identity
separate from the City, id., at 7-8, the claims against the City must be dismissed in the
absence of any violation of Plaintiff’s constitutional rights, id., and the court should, in its
discretion, refrain from exercising supplemental jurisdiction over Plaintiff’s pendent state
claims, id. at 8, or, alternatively, dismiss the state law claims on their merits. Id. at 8-10.
To be meritorious, Plaintiff’s § 1983 claims are for false arrest, unlawful
imprisonment, and malicious prosecution all require the absence of probable cause.
See Maye v. New York, 517 Fed.Appx. 56, 58 (2d Cir. 2013) (holding where an arrest is
supported by probable cause, there can be no cause of action for unlawful
imprisonment); Gonzalez v. City of Schenectady, 728 F.3d 149, 155 (2d Cir. 2013)
(“‘The existence of probable cause to arrest constitutes justification and is a complete
defense to an action for false arrest, whether that action is brought under state law or
under § 1983.’” (quoting Weyant v. Okst, 101 F.3d 845, (2d Cir. 1996))), and Savino v.
City of New York, 331 F.3d 63, 72 (2d Cir. 2003) (“the existence of probable cause is a
complete defense to a claim of malicious prosecution. . . .”). Further, it is settled that
“indictment by a grand jury creates a presumption of probable cause.” Manganiello v.
City of New York, 612 F.3d 149, 161-62 (2d Cir. 2010) (citation and internal quotation
marks omitted). The presumption of probable cause “may only be rebutted by evidence
that the indictment was procured by ‘fraud, perjury, the suppression of evidence or other
police conduct undertaken in bad faith.’” Savino, 331 F.3d at 72 (italics in original)
(quoting Colon v. City of New York, 455 N.E.2d 1248 (1983)). Here, Plaintiff has not

11

proffered any such evidence to rebut the presumption that the indictment of Plaintiff for
the homicide was properly obtained.
Nor is a different result required by the fact that the Buffalo Police, after Plaintiff
was exonerated by the DNA evidence, changed their photo array procedure to “double
blind” photo arrays where photo arrays are not conducted by the same police detective
involved in the investigation so as to ensure the police detective presenting the photo
array to the witness does not know in which of the array’s photos is the suspect
depicted. In particular, there is no evidence that the photo array shown to the three
witnesses who identified Plaintiff as the suspect was unduly suggestive. Not only has
Plaintiff failed to produce a copy of the photo array from which Plaintiff’s picture was
selected by a witness as the shooter, but Plaintiff also fails to explain how the photo
array was suggestive. Significantly, there is nothing in the record indicating whether
Plaintiff ever sought, in the underlying criminal proceedings, to suppress the witnesses’
identification because the photo array was unduly suggestive, and “[i]n the context of
unduly suggestive arrays, only a violation of the core right – the right to a fair trial – is
actionable under § 1983. Pace v. City of Des Moines, 201 F.3d 1050, 1055 (8th Cir.
2000) (dismissing claim for malicious prosecution based on an alleged unduly
suggestive lineup identification because “[t]he jurisprudential doctrine described in
Manson v. Brathwaite, 432 U.S. 98, 113, n. 13 (1977), against the admission of unduly
suggestive lineups is only a procedural safeguard, and does not establish a
constitutional right to be free of suggestive lineups.”). Compare Bermudez v. City of
New York, 790 F.3d 368, 373, 375-76 (2d Cir. 2015) (reversing district court’s decision
that wrongly convicted plaintiff could not establish a due process violation based on use

12

of an impermissibly suggestive identification procedure where such procedure was the
basis for the plaintiff’s eventual exoneration for the crime). Moreover, Plaintiff was not
arrested based solely on his identification from the photo array, but also based on his
then girlfriend’s positive identification of Plaintiff in the security video, as well as based
on Plaintiff’s inconsistent statements given during the November 12, 2012 interrogation
regarding Plaintiff’s whereabouts at the time of the homicide.
Nor has Plaintiff explained why Hackbush was required to wait until the DNA and
fingerprint analysis results were obtained before presenting the case to the grand jury.
Significantly, as Malec explained, Malec Dep. Tr. at 59-62, that the DNA results were
not a positive match for Plaintiff did not exclude Plaintiff as the suspect, who had been
identified by four witnesses, but only excluded Plaintiff as the source of the DNA
sample. Not only did the Individual Defendants not have any authority to request the
analysis of a DNA sample be expedited, Malec Dep. Tr. at 62, but Plaintiff fails to
present any evidence supporting his assertion that such a request should have been
made and the court cannot conceive of any reason, especially given that Plaintiff was
identified as the shooter by three eyewitnesses, his then girlfriend identified the shooter
shown in the security video as Plaintiff, and Plaintiff gave inconsistent statements
regarding his location at the time of the homicide. Plaintiff also presents no evidence
that under the circumstances, the arresting officers’ decision to arrest Plaintiff
constituted bad faith.
Accordingly, the presumption of probable cause supporting the Indictment is not
rebutted, and such probable cause is fatal to Plaintiff’s § 1983 claims for false arrest,

13

false imprisonment, and malicious prosecution. Summary judgment should be
GRANTED in favor of the Individual Defendants as to Plaintiff’s § 1983 claims.
The Buffalo Police Department is merely an arm of the City of Buffalo without a
legal identity separate and apart from the City. Yancey v. City of Buffalo, 2012 WL
6016890, at * 3 (W.D.N.Y. Nov. 30, 3012) (citing cases). Accordingly, the Buffalo Police
cannot be sued. Id.
Insofar as Plaintiff asserts his § 1983 claims against the City, municipalities are
treated as “persons” for § 1983 claims “where . . . the action that is alleged to be
unconstitutional implements or executes a policy statement, ordinance, regulation, or
decision officially adopted and promulgated by [the municipality’s] officers. Monell v.
Dep’t. of Social Services, 436 U.S. 658, 690 (1978); accord Amnesty America v. Town
of West Hartford, 361 F.3d 113, 125 (2d Cir. 2014). A municipality, however, may not
be held liable under § 1983 based on respondeat superior. Monell, 436 U.S. at 694-95;
accord Roe v. City of Waterbury, 542 F.3d 31, 36 (2d Cir. 2008), cert. denied, 558 U.S.
933 (2009). Rather, “[t]o hold a city liable under § 1983 for the unconstitutional actions
of its employees, a plaintiff is required to plead and prove three elements: (1) an official
policy or custom that (2) causes the plaintiff to be subjected to (2) a denial of a
constitutional right.” Wray v. City of New York, 490 F.3d 189, 195 (2d Cir. 2007)
(internal citation, quotation marks, and alterations omitted). As such, the plaintiff must
“demonstrate that, through its deliberate conduct, the municipality was the moving force
behind the alleged injury.” Roe, 542 F.3d at 37. In the instant case, because Plaintiff’s
§ 1983 claims against the Individual Defendants are barred by the existence of probable
cause supporting Plaintiff’s arrest, imprisonment, and prosecution, Plaintiff cannot

14

establish the requisite denial of a constitutional right to support his § 1983 claim against
the City. Accordingly, summary judgment should be GRANTED as to Plaintiff’s § 1983
claim against the City.
Finally, with regard to Plaintiff’s remaining state law claims, “[i]n general, where
the federal claims are dismissed before trial, the state claims should be dismissed as
well.” N.Y. Mercantile Exch. Inc. v. Intercontinental Exch., Inc., 497 F.3d 109, 119 (2d
Cir. 2007) (internal quotation omitted). See also Carnegie-Mellon University v. Cohill,
484 U.S. 343, 350 n. 7 (1988) (noting where all federal claims have been dismissed
under federal law, the district court has discretion whether to exercise supplemental
jurisdiction over pendent state law claims, based on consideration of several factors,
including “judicial economy, convenience, fairness, and comity”). Accordingly, tn the
instant case, the court should refrain from exercising pendent jurisdiction over the state
law claims. Defendants’ motion should be GRANTED with regard to the state law
claims.

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CONCLUSION
Based on the foregoing, Defendants’ motion (Dkt. 19), should be GRANTED;
Plaintiff’s motion is DENIED. The Clerk of the Court should be directed to close the file.
Respectfully submitted, as to Defendants’ motion
for summary judgment,
/s/ Leslie G. Foschio
______________________________________
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE

SO ORDERED.
/s/ Leslie G. Foschio
______________________________________
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
DATED:

October 11, 2016
Buffalo, New York

16

ORDERED that this Report and Recommendation be filed with the Clerk of the
Court.
ANY OBJECTIONS to this Report and Recommendation must be filed with the
Clerk of the Court within fourteen (14) days of service of this Report and
Recommendation in accordance with the above statute, Rules 72(b), 6(a) and 6(d) of
the Federal Rules of Civil Procedure and Local Rule 72.3.
Failure to file objections within the specified time or to request an
extension of such time waives the right to appeal the District Court's Order.
Thomas v. Arn, 474 U.S. 140 (1985); Small v. Secretary of Health and Human
Services, 892 F.2d 15 (2d Cir. 1989); Wesolek v. Canadair Limited, 838 F.2d 55 (2d
Cir. 1988).
Let the Clerk send a copy of this Report and Recommendation to the attorneys
for the Plaintiff and the Defendants.
SO ORDERED.
/s/ Leslie G. Foschio
______________________________________
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
DATED:

October 11, 2016
Buffalo, New York

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