Freeman v. Ellis, et al

Filing 33

OPINION AND ORDER granting in part and denying in part 26 Motion for Summary Judgment. Signed by Hon. William K. Sessions III on 10/1/2020. (CGJ)

UNITED STATES DISTRICT COURT
FOR THE
WESTERN DISTRICT OF NEW YORK

MISTY FREEMAN,
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Plaintiff,
v.
CITY OF JAMESTOWN POLICE OFFICER
ELLIS, et al.,
Defendants.

Case No. 1:17-CV-683

OPINION AND ORDER
(ECF 26)
Plaintiff Misty Freeman (“Freeman”) brings this action
against several City of Jamestown police officers for allegedly
violating her constitutional rights. Now before the Court is
Defendants’ Motion for Summary Judgment on Count II, a claim of
false arrest against Defendants Ellis, Bender, and Jackson for
Freeman’s confinement and arrest on a charge of violating N.Y.
Penal Law § 210.45, and Count III, which makes a claim of
malicious prosecution against those same three defendants. 1 For
the reasons set forth below, Defendants’ Motion for Summary
Judgment is granted in part and denied in part. Summary judgment
is granted on Count III, as it relates to the malicious

1

The Court finds that Defendants inadequately addressed Counts I
and IV in their Motion for Summary Judgment.
1

prosecution claim against Defendant Ellis. Summary judgment is
otherwise denied on Counts II and III.
Background
In August of 2015, Freeman opened her home to Nicholas
Desnerck (“Desnerck”) and his girlfriend.

As Freeman explained

in her deposition, “they were around twenty years old, and I
felt bad for them” because they were homeless. Freeman Dep.
11:17-13:10, ECF No. 26-5. They stayed for less than a month.
Id. When the couple moved out they left a dog, and Freeman
rehomed it after receiving no communication from them and
calling the city dog control officer. Id. at 26:9-27:1.
Desnerck also left belongings at Freeman’s house, and
returned to look through them on the morning of September 24,
2015. Id. at 12:6-12:7, 18:21-19:2. At that time, Freeman told
him she did not want his things and asked him to bring anything
he did not want to the curb. Id. at 19:3-19:12. Freeman later
put his belongings on her front lawn, and that evening she saw
him go through them with his girlfriend. Id. at 23:2-23:10.
Aaron Ellis (“Ellis”) is employed as a police officer with
the Jamestown Police Department. ECF No. 26-2 ¶ 1. On or about
September 27, 2015, Desnerck and Ellis arrived at Plaintiff’s
home. Freeman Dep. 31:1-31:4. According to Defendants, Ellis was
called to the house to act as a peace officer while Desnerck
gathered belongings from the residence.
2

Ellis remained on the

sidewalk behind Desnerck and did not enter the residence. ECF
26-7; Ellis Dep. 9:9-11:4, 13:10-13:22, ECF No. 26-6.
According to Freeman, Ellis and Desnerck forced her door open
“causing damage to the door,” entered her residence and did not
leave despite her repeated requests that they do so. Freeman
Dep. 32:13-38:1; 45:15-50:20. Freeman reported that she tried to
answer the officer’s questions but Desnerck was a few inches
away from her face, yelling at her. Id. at 53:3-53:7.
Eventually, Ellis told Freeman that he was going to make sure
that she was the one arrested, and he and Desnerck left her
property. Id. at 54:19-54:22.
Freeman made a call to the police station because she felt
the situation should not have occurred the way it did, and she
was told that she had to come down to the Jamestown Police
Department to file a statement. Freeman Dep. 58:5-58:7, ECF No.
26-5. According to Freeman, the officer she spoke with at the
police station “called me a liar in saying that no one will
believe me because no one is going to believe against a fellow
officer, a fellow man in blue.” Id. at 60:11-60:19. According to
Defendants, Sergeant Robert Bender (“Bender”) spoke with Freeman
at the station and advised her that he “didn’t think that she
was being completely truthful” with him. Bender Dep. 13:2013:23; 21:7-21:8, ECF No. 26-9. Plaintiff then signed a written

3

statement describing the incident. ECF No. 26-8. In part, she
wrote the following:
On September 27, 2015 at around 7:30 pm I was in my home at
108 Pearl Avenue in Jamestown, NY. When a police officer
accompanied by Nicholas Desnerck entered into my home
without a warrant. I asked that unless they have a warrant
they need to leave my home. The officer stated he had every
right to be there as it is a part of an investigation. I
told the officer that unless he has a warrant they need to
leave my property, but that I was willing to speak with him
off of my property. The officer backed away from my door
onto the front lawn but allowed Nicholas Desnerck to remain
near my door. I repeated asked both the officer and
Nicholas to please step off of my property unless they have
a warrant. The officer said “no he doesn’t have to and
since Nicholas is with him that he doesn’t have to leave
either.” I felt very threatened by Nicholas Desnerck
standing a few inches from my face yelling in my face. I
asked Nicholas to please stop talking and to let me speak.
Nicholas would interrupt me every time the officer would
ask me a quest[ion] and I would try to answer the officer.
Both the officer and Nicholas would call me a liar and say
that’s not true every time I would try to answer the
officer’s question.
I would repeatedly ask Nicholas to please stop and I asked
the officer to please remove him from the area so that I
may answer the questions. The officer said no he doesn’t
have to remove Nicholas from the premises. The officer upon
leaving stated “that he’s going to do everything he can to
make sure I’m the one arrested and that he’s doing the
paperwork right now.” Once the officer entered in his car
is when I immediately called the Jamestown Police
Department non-emergency phone number to give an overview
of what just happened. I felt extremely scared and
terrified that they entered my home and stepped foot on my
property without a warrant.
Freeman wrote that she felt harassed by Desnerck and Ellis, and
that “[w]hen the officer and Nicholas Desnerck entered into my

4

home they entered into my front door: breaking the lock in the
process.” Id.
Bender asked Defendant Lieutenant Timothy Jackson
(“Jackson”) to investigate Freeman’s allegations. Bender Dep.
23:5-23:13, ECF No. 26-9. That same night, Jackson went to
Freeman’s residence and took photographs. Jackson Dep. 15:4-5,
ECF No. 26-10.

Jackson also spoke with a teenage male at the

residence, though the content of that conversation is disputed.
According to Jackson, the young man told him that the door had
been broken a couple of months ago and that no damage had
occurred during the incident. Id. at 15:9-15:10; 19:3-19:6.
Jackson said that he was told previously that the door had been
broken down, and that when he found that it was not he came to
the conclusion that Freeman was not telling the truth. Id. at
25:15-25:19. Jackson did not test the lock on the door. Id. at
44:15-44:21. Matthew Freeman (“Matthew”), the young man with
whom Jackson spoke, testified that Jackson did not ask about the
broken lock. Matthew Freeman Dep. 25:4-25:6, ECF 28-3. Matthew
further testified that the door was damaged that night, and that
he did not tell Jackson that the lock had been broken a couple
of months before. Id. at 25:7-25:18, ECF 28-3.
On that same night, September 27, 2015, Matthew went to the
Jamestown Police Department and filed his own statement with the
police. ECF No. 26-11. He wrote in part:
5

I was in the living room when there was a knock at the
door, my mother went to investigate. At the door there was
a lot of arguing and most of what was said was “get out.
Need a warrant.” From my mother. A bit of shuffling from
the front doorway, they were yelling in the yard and going
back and forth. After about 5 minutes the car and the
police vehicle left. My mother and the man were the ones
yelling. The man and the officer started at the doorway to
the house and they left to the yard whilst my mother and
the man continued the spat. My mother sent me down because
she was afraid of getting arrested.

Id. Desnerck also filed a statement that night. ECF No. 26-7.
Desnerck wrote:
I Nicholas Desnerck went to 108 Pearl St with Officer Ellis
who acted as a peace officer while I had attempted to
retrieve the rest of my property and my service dog. When
Officer Ellis and I arrived I had opened the outer door to
knock on the inner door and Misty Freeman had come out
before I even entered the residence. Misty had immediately
told us to leave and Officer Ellis advised her that he
acted as a peace officer to retrieve my stuff and my dog.
Misty had become agitated and began to argue with Officer
Ellis and I, Officer Ellis had tried to diffuse the
situation. At no point did Officer Ellis and I enter the
residence during the incident.
Id.
Bender recalls asking Ellis the details of what happened,
but did not ask for a statement. Bender Dep. 24:9-24:23; 25:925:11, ECF No. 26-9. Likewise Jackson recalls speaking to Ellis,
but not asking for a statement. Jackson Dep. 32:10-32:30, ECF
No. 26-10. Ellis testified that he never spoke with Jackson
about the September 27, 2015 incident and that he did not
discuss any specific questions about it with Bender. Ellis Dep.
24:13-26:3, ECF No. 28-5. Ellis also testified that he never

6

provided any written documentation about the incident. Id. at
26:13-26:17.
On September 28, 2015, Bender applied for an arrest
warrant, alleging that Plaintiff intentionally made a false
statement. ECF No. 26-12. The information reported that Freeman
signed a “supporting deposition alleging facts that were found
to be not true and accurate.” Id. The information attached
Freeman’s statement, as well as the statements made on the same
night by Matthew and Desnerck. Id.
The warrant was granted on September 30, 2015. ECF No. 2613. Freeman was arrested on October 3, 2015 at her daughter’s
football game in front of a full stadium. Freeman Dep. 80:682:6. She was taken to the police station and was kept in jail
until October 4, 2015, and only learned the charges against her
when she went before a judge that day. Id. 84:4-87:23. Freeman
was told that she was not allowed to substitute teach for
Jamestown Public Schools until the charges were cleared up. Id.
92:1-93:17. The charge was ultimately dismissed without
prejudice on April 27, 2016, because the criminal information
was facially insufficient. ECF No. 26-14.
Freeman filed a Notice of Claim on June 27, 2016. ECF No.
28-4. Defendant Bender applied for a new arrest warrant on July
28, 2016. ECF No. 26-16. Freeman alleges in her complaint that
Defendants chose to apply again that day because it was the day
7

after they were served with her Notice of Claim. ECF No. 19,
¶40. According to Defendants, Assistant District Attorney
Bridget Kleinfelder sent a memorandum dated May 6, 2016 to
Bender directing him to refile an amended information against
the Freeman; however, “the memo was misplaced” and Bender did
not receive and/or act on it until the end of July 2016. ECF No.
26-1. The warrant was granted, ECF No. 26-17, and Plaintiff
turned herself in. Freeman Dep. 97:15-97:17. On November 10,
2017, the charge was dismissed because of a violation of the
speedy trial time limitations set forth in New York State
Criminal Procedure Law Section 30.30. ECF No. 26-19.
Standard of Review
A court shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law. Fed. R. Civ.
P. 56(a). In making a determination on summary judgment, the
court must “construe all evidence in the light most favorable to
the nonmoving party, drawing all inferences and resolving all
ambiguities in its favor.” Dickerson v. Napolitano, 604 F.3d
732, 740 (2d Cir. 2010). The moving party bears the initial
burden of demonstrating “the absence of a genuine issue of
material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). Once the moving party has discharged its burden the
opposing party must set out specific facts showing a genuine
8

issue of material fact for trial. Wright v. Goord, 554 F.3d 255,
266 (2d Cir. 2009).

In deciding a motion for summary judgment,

the trial court’s function “is not to weigh the evidence or
resolve issues of fact, but to decide instead whether, after
resolving all ambiguities and drawing all inferences in favor of
the nonmoving party, a rational juror could find in favor of
that party.” Pinto v. Allstate Ins. Co., 221 F.3d 394, 398 (2d
Cir. 2000).
Discussion
Freeman brings her action pursuant to 42 U.S.C. §1983 for
the violation of her Fourth and Fourteenth Amendments rights of
the United States Constitution. Pl.’s First Am. Compl. ¶1, ECF
No. 19. Her First Amended Complaint contains four counts. Count
I claims that Freeman’s constitutional rights were violated by
Ellis through unlawful entry. Count II is a claim of false
arrest asserted under 42 U.S.C. §1983 for violations of
Freeman’s Fourth and Fourteenth Amendment rights. The claim is
made against Ellis, Bender, and Jackson. Count III asserts a
claim for violations of Freeman’s Fourth and Sixth Amendment
rights under 42 U.S.C. §1983 for malicious prosecution against
those same three defendants. Count IV makes a First Amendment
retaliation claim against Bender and Jackson. Defendants did not
move for summary judgment on Counts I and IV, so the Court will
only address Counts II and III.
9

In moving for summary judgment, Defendants argue that the
officers are entitled to qualified immunity. “[G]overnment
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). An
assertion of qualified immunity requires a court to determine
“(1) whether plaintiff has shown facts making out [a] violation
of a constitutional right; (2) if so, whether that right was
‘clearly established’; and (3) even if the right was ‘clearly
established,’ whether it was ‘objectively reasonable’ for the
officer to believe the conduct at issue was lawful.” Gonzalez v.
City of Schenectady, 728 F.3d 149, 154 (2d Cir. 2013) (quoting
Taravella v. Town of Wolcott, 599 F.3d 129, 133-34 (2d Cir.
2010)). If the Supreme Court and the Second Circuit have not
determined the precise contours of a right under a given set of
facts, that right may be clearly established if the law is
established in other circuits and the Second Circuit’s own
decisions “foreshadowed the right.” Bailey v. Pataki, 708 F.3d
391, 405 (2d Cir. 2013). “Qualified immunity is an affirmative
defense, and the burden is on the defendant-official to
establish it on a motion for summary judgment.” Id. at 404.

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I.

False Arrest Claims Against Defendants Ellis, Bender, and
Jackson
In her claim for false arrest, Freeman makes a 42 U.S.C.

§1983 claim alleging that her Fourth and Fourteenth Amendment
rights were violated by Ellis, Bender, and Jackson. The Fourth
Amendment protects “[t]he right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable
searches and seizures.” Because arrests are “seizures” of
“persons,” they must be reasonable under the circumstances. See
Payton v. New York, 445 U.S. 573, 585 (1980). “The right to be
free from arrest or prosecution in the absence of probable cause
is a long established constitutional right.” Ricciuti v. N.Y.C.
Transit Auth., 124 F.3d 123, 128 (2d Cir. 1997). “A police
officer is entitled to qualified immunity shielding him or her
from a claim for damages for false arrest where (1) it was
objectively reasonable for the officer to believe there was
probable cause to make the arrest, or (2) reasonable competent
police officers could disagree as to whether there was probable
cause to arrest.” Id.
“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.” Jenkins v. City of N.Y., 478 F.3d 76, 84 (2d Cir. 2007)
(internal quotation marks omitted). “Probable cause to arrest
11

exists when the officers have knowledge or reasonably
trustworthy information of facts and circumstances that are
sufficient to warrant a person of reasonable caution in the
belief that the person to be arrested has committed or is
committing a crime.” Id. (internal quotation marks and
alteration omitted). In determining whether an officer had
probable cause, courts consider “those facts available to the
officer at the time of the arrest and immediately before it.”
Panetta v. Crowley, 460 F.3d 388, 395 (2d Cir. 2006) (emphasis
omitted) (quoting Caldarola v. Calabrese, 298 F.3d 156, 162 (2d
Cir. 2002)).
An officer's probable cause determination is "objectively
reasonable" if there was "arguable" probable cause to make the
arrest — "that is, if officers of reasonable competence could
disagree on whether the probable cause test was met." Gonzalez
v. City of Schenectady, 728 F.3d 149, 157 (2d Cir. 2013)
(internal quotation marks omitted). With respect to false
arrest, dismissal "is appropriate when the only conclusion a
rational jury could reach is that reasonably competent police
officers could under the circumstances disagree about the
legality of the arrest." Ricciuti v. N.Y.C. Transit Auth., 124
F.3d 123, 128 (2d Cir. 1997); see also District of Columbia v.
Wesby, 138 S. Ct. 577, 589-93, 199 L. Ed. 2d 453 (2018)
(qualified immunity applies unless "existing precedent" places
12

the unlawfulness "of the particular arrest beyond debate")
(internal quotation marks omitted).
In claiming that summary judgment should be granted on the
claims of false arrest, Defendants make two arguments. First,
they argue that where, as in this case, arrest warrants were
issued and filed, summary judgment should be granted because
“[i]t is well established that ‘a police officer making an
arrest pursuant to a judicially issued warrant is entitled to
qualified immunity from liability.’” Def.’s Mem. Supp. Summ. J.
7, ECF No. 26-4. Defendants cite to the case Malley v. Briggs,
475 U.S. 335 (1986), when making this claim. However, in Malley
the Supreme Court explicitly rejected the contention that an
officer is automatically entitled to qualified immunity on the
basis of a warrant for probable cause simply because a
magistrate approved the application. Id. at 345-46. Thus, though
a warrant issued by a neutral magistrate is relevant to
qualified immunity, Defendants are incorrect in asserting that
such approval is dispositive. See Messerschmidt v. Millender,
565 U.S. 535, 554-55 (2012) (explaining that though an officer
is not automatically entitled to qualified immunity for seeking
a warrant unsupported by probable cause simply because a
magistrate approved the application, the fact that an officer is
able to secure approval is “certainly pertinent” in assessing
whether he could have held a reasonable belief that the warrant
13

was supported by probable cause.) An officer can “have no
reasonable grounds for believing that [a] warrant was properly
issued” “if the magistrate or judge in issuing a warrant was
misled by information in an affidavit that the affiant knew was
false or would have known was false except for his reckless
disregard of the truth.” United States v. Leon, 468 U.S. 897,
923-24 (1984). Where an officer knows, or has reason to know,
that he has materially misled a magistrate on the basis of
finding probable cause, the shield of qualified immunity is
lost. See Malley v. Briggs, 475 U.S. 335, 344-45 (1986); see
also Rivera v. United States, 928 F.2d 592, 604 (2d Cir. 1991).
As explained below, this is precisely what Freeman is accusing
Defendants of doing.
Next, Defendants argue that the warrants themselves were
based upon probable cause, or at least upon “arguable” probable
cause. Of note, the Second Circuit has explained that
“[a]rguable probable cause should not be misunderstood to mean
almost probable cause.” Dancy v. McGinley, 843 F.3d 93, 107 (2d
Cir. 2016) (quoting Jenkins v. City of New York, 478 F.3d 76, 87
(2d Cir. 2007)). “If officers of reasonable competence would
have to agree that the information possessed by the officer at
the time of arrest did not add up to probable cause, the fact
that it came close does not immunize the officer.” Id. (quoting
Jenkins, 478 F.3d at 87).
14

Defendants argue that they had probable cause to apply for
the warrants based on “the investigation by LT Jackson and all
the additional witness statements” when “LT Jackson’s visual
observations, the statements of Plaintiff’s son, Mr. Desnerck,
and Officer Ellis were consistent and in direct contradiction to
Plaintiff’s written statement.” Def.’s Mem. Supp. Summ. J. 5,
ECF No. 26-4. Freeman counters with disputed issues of fact as
to each alleged source.

For example, while Defendants claim

that information from Ellis formed a basis for probable cause,
Ellis testified that he never spoke of the incident with
Jackson, that he was not asked specific questions about the
incident by Bender, and that he submitted no documentation
regarding the incident.

Freeman also points to Matthew’s

testimony, specifically his assertion that Jackson did not ask
about the broken lock during the investigation, and that he
would not have told Jackson that the lock had been broken a
couple of months before. Matthew F. Dep. 25:4-25:18, ECF 28-3.
When it comes to Matthew’s statement to the police, Freeman
argues that Matthew’s statement “essentially neither confirms
nor denies observing either sides’ versions of events, but is
much more consistent with Plaintiff’s version and certainly does
not discredit Plaintiff’s statement in any way.” Pl.’s First Am.
Compl. ¶29, ECF No. 19. Freeman highlights the fact that both

15

statements report that Freeman yelled at Desnerck and Ellis to
get out / leave. This issue is one best left to a jury.
Freeman also alleges that “damage was done to the locking
mechanism to the door in question, as well as the door itself”
and cites to Jackson’s photographs. Pl.’s Resp. to Def.’s
Statement of Undisputed Facts 3, ECF No. 28-1 (citing Pl.’s Ex.
D, ECF No. 28-6). It is the job of a jury, and not this Court,
to examine the photographs and determine to what extent, if any,
damage was done during the incident to the door and its locking
mechanism.
Finally, Freeman argues about the extent to which
Desnerck’s statement contradicted her own. 2 According to Freeman:
While [Desnerck] indicates he and Defendant Ellis did not
enter the residence, he does admit to opening the outer
door to knock on the inner door. Based on the layout as
given by all relevant witnesses, most notably the
Plaintiff, Desnerck’s statement is just another way of
2

It is worth noting that the warrants eventually issued were
for “PL-210.45”, “making a punishable false written statement.”
ECF No. 26-13; 26-17. Section 210.45 of the New York Penal Law
states that “[a] person is guilty of making a punishable false
written statement when he knowingly makes a false statement,
which he does not believe to be true, in a written instrument
bearing a legally authorized form notice to the effect that the
false statements made therein are punishable.” N.Y. Penal Law §
210.45 (Consol. 2020). Section 210.50 of the New York Penal Law
states that “In any prosecution […] for making a punishable
false written statement, falsity of a statement may not be
established by the uncorroborated testimony of a single
witness.” N.Y. Penal Law § 210.50 (Consol. 2020). Thus, if
Desnerck’s statement were the only thing establishing the
falsity of Plaintiff’s statement, § 210.50 would not allow
conviction.
16

saying that he had entered through the exterior door…
walked into the hallway… and then knocked on the inner
door into the living room. Which in turn, is another way
of saying that he had entered the residence…just not the
primary living area of said residence.

Pl.’s Resp. to Def.’s Statement of Undisputed Facts 3-4, ECF No.
28-1. Freeman argues that if Defendants had done more
investigation into the statement made by the very person who
brought the police to her house, they would have seen that it
was not contradictory.
The Second Circuit does not impose a general duty to
investigate all potentially-exculpatory evidence. See Walczyk v.
Rio, 496 F.3d 139, 160 (2d Cir. 2007) (“[W]e have specifically
ruled that a police officer is not required to explore and
eliminate every theoretically plausible claim of innocence
before making an arrest.” (internal quotation marks and
citations omitted)); see also Panetta v. Crowley, 460 F.3d 388,
395-96 (2d Cir. 2006); Jocks v. Tavernier, 316 F.3d 128, 135-36
(2d Cir. 2003). Nonetheless, “under some circumstances, a police
officer’s awareness of the facts supporting a defense can
eliminate probable cause,” Jocks, 316 F.3d at 135, and “an
officer may not disregard plainly exculpatory evidence,”
Panetta, 460 F.3d at 395. See, e.g., Sankar v. City of New York,
867 F. Supp. 2d 297, 306 (E.D.N.Y. 2012) (holding that an
officer may need to investigate a victim’s complaint when he

17

becomes aware of facts that “give[] rise to a motive for a false
accusation” (alteration in original) (quoting Mistretta v.
Prokesch, 5 F. Supp. 2d 128, 133 (E.D.N.Y. 1998))). Here,
viewing the facts in a light most favorable to the non-moving
party, the statements and evidence available to the police did
not directly contradict Freeman’s claims that Ellis and Desnerck
“entered into my front door: breaking the lock in the process,”
and a reasonable juror could conclude that probable cause was
lacking. ECF No. 26-8.
“To determine whether a false statement was necessary to a
finding of probable cause, we consider a hypothetical corrected
affidavit, produced by deleting any alleged misstatements from
the original warrant affidavit and adding to it any relevant
omitted information.” Ganek v. Leibowitz, 874 F.3d 73, 82 (2d
Cir. 2017). If there is no probable cause after the correction,
then the “false statement was ‘necessary’ to secure issuance of
the warrant.” Id. In performing the correction, the court must
“examine all of the information the officers possessed when they
applied for the arrest warrant.” Escalera v. Lunn, 361 F.3d 737,
744 (2d Cir. 2004). Construing the facts in favor of Freeman, as
the Court must on summary judgment, a corrected affidavit would
not have supported the granting of a warrant. Consequently,
Defendants have not carried their burden of demonstrating the

18

absence of a genuine issue of material fact, and are not
entitled to summary judgment on Freeman’s claim of false arrest.
II.

Malicious Prosecution Claims Against Defendants Ellis,
Bender, and Jackson

To sustain a §1983 claim for malicious prosecution, a
plaintiff must show “a seizure or other perversion of proper
legal procedures implicating the claimant’s personal liberty and
privacy interests under the Fourth Amendment.” Washington v.
County of Rockland, 373 F.3d 310, 316 (2d Cir. 2004) (quotation
marks omitted). A plaintiff must also proffer evidence that
shows that “criminal proceedings were initiated or continued
against him, with malice and without probable cause, and were
terminated in his favor.” Lanning v. City of Glens Falls, 908
F.3d 19, 24 (2d Cir. 2018).
Defendants do not dispute that both criminal proceedings
were commenced against Freeman. Freeman has agreed that the
first proceeding, which was dismissed due to facial
insufficiency, did not terminate in her favor. Pl.’s Mem. in
Opp’n to Def.’s Mot. Summ. J. 11, ECF No. 28; see also Neal v.
Fitzpatrick, 250 F.Supp.2d 153 (E.D.N.Y. 2003); Russell v. The
Journal News, 672 Fed.App’x 76, 78-79 (2d Cir. 2016) (holding
that plaintiff’s prosecution did not terminate in his favor when
“the state court dismissed the charges without prejudice based
on facial insufficiency.”). The second proceeding, however, was
19

dismissed for lack of a speedy trial under New York law. ECF No.
26-19. “Both New York law and Second Circuit precedents hold
that a dismissal of criminal charges pursuant to N.Y. Crim.
Proc. Law. §30.30, for lack of a speedy trial, constitutes a
favorable termination” of a criminal proceeding for an accused
who subsequently files an action alleging malicious prosecution.
Golub v. City of New York, 334 F. Supp. 2d 399, 407 (S.D.N.Y.
2004). 3
Defendants have not alleged that any new information came
to light between the decision to apply for the warrant and the
decision to prosecute, so this Court cannot conclude that the
government is entitled to summary judgment on the issue of
probable cause. See Walsh v. City of New York, 742 Fed. Appx.
557, 562 (2d Cir. 2018) (concluding that where “a reasonable
juror could believe that probable cause did not exist” for the
plaintiff’s arrest, “it follows that a reasonable juror could
also believe” that probable cause did not exist for the

3

In 2018, the Second Circuit clarified its position on the
favorable termination element of a §1983 malicious prosecution
claim, explaining that a plaintiff must plausibly allege that
the criminal proceedings filed against him “were terminated in a
manner indicating his innocence.” Lanning v. City of Glens
Falls, 908 F.3d 19, 29 (2d Cir. 2018). However, this Court
agrees with the persuasive reasoning of the court in Blount v.
City of New York that “Lanning makes clear that, as the Circuit
consistently held pre-Lanning, dismissals on speedy trial
grounds are terminations in the favor of the accused.” No. 15CV-5599 (PKC) (JO), 2019 WL 1050994 at *5 (E.D.N.Y. Mar. 5,
2019).
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plaintiff’s prosecution.). Finally, with regard to the malice
element, the Second Circuit has noted that “lack of probable
cause generally raises an inference of malice sufficient to
withstand summary judgment.” Ricciuti v. N.Y. City Transit
Auth., 124 F.3d 123, 131 (2d Cir. 1997). Freeman also argues
that Bender’s statement attacking her credibility raises a
genuine issue of material fact regarding malice.
However, nowhere in her amended complaint nor her
memorandum of law in opposition to Defendants’ summary judgment
motion does Freeman explain how Ellis was involved in the
prosecution. Ellis himself says that he only learned of the
charges against Freeman after the warrant application was issued
and the paperwork came through the police department. Ellis Dep.
26:18-27:4; 28:9-28:17. Because there is no genuine issue of
material fact relating to whether Ellis was involved, the
malicious prosecution claim against him is dismissed.
For the reasons set forth above, Defendants’ motion for
summary judgment as to the malicious prosecution claim against
Ellis is granted, but summary judgment as to the malicious
prosecution claim against Bender and Jackson is denied.
Conclusion
For the reasons set forth above, Defendants’ Motion for
Summary Judgment is granted in part and denied in part. Summary

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judgment is granted on Count III as it relates to Ellis. Summary
judgment is otherwise denied.

DATED at Burlington, Vermont, this 1st day of October, 2020.

/s/ William K. Sessions III
William K. Sessions III
U.S. District Court Judge

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