Holloway v. City of Rochester et al

Filing 53

-CLERK TO FOLLOW UP-ORDER that judgment shall be awarded in favor of the defendant. The Clerk of the Court is hereby directed to enter judgment accordingly. Signed by Hon. Marian W. Payson on 7/22/13. (CAM)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

MARY HOLLOWAY,
DECISION & ORDER
Plaintiff,
10-CV-6470P
v.
DAVID JOSEPH,
Defendant.

PRELIMINARY STATEMENT
Plaintiff Mary Holloway (“Holloway”), acting pro se, has filed suit against
Rochester Police Officer David Joseph (“Joseph”) asserting claims under 42 U.S.C. § 1983 for
malicious prosecution, false arrest and false imprisonment arising from her arrest on September
6, 2007, for second degree harassment under New York Penal Law § 246.26.1 (Docket # 1).
Pursuant to 28 U.S.C. § 636(c), the parties have consented to the disposition of this case by a
magistrate judge. (Docket # 9).
A bench trial was conducted before this Court on March 7, 2013.2 Holloway
testified in her own behalf, and Joseph called himself and James Ferguson (“Ferguson”), the
individual whose complaint led to the arrest of Holloway. Based upon the findings of fact set
forth below, and for the reasons explained more fully below, judgment is granted in favor of the
defendant.

1

The City of Rochester was originally named as another defendant in the action, but was subsequently
dismissed. (Docket # 4).
2

The transcripts of the trial proceedings on March 7, 2013 shall be referred to herein as “Tr. __.” (Docket
# 52). The trial exhibits shall be referred to herein as “Def. Ex. __” or “Pl. Ex. __.”

FINDINGS OF FACT
On September 6, 2007, Joseph was twice dispatched to 274 Ames Street in the
City of Rochester in response to 911 complaints by Ferguson that he was being harassed by
Holloway. (Tr. 24-25). In the first call to 911, which occurred at approximately 10:12 a.m.,
Ferguson complained that Holloway was harassing him by repeatedly driving by his house
located at 274 Ames Street. (Tr. 24-26). Joseph drove to Ferguson’s residence, interviewed him
and determined that Holloway did not appear to be in the vicinity. (Tr. 25-26). Joseph had no
interactions with Ferguson prior to the September 6 interview. (Tr. 29).
Ferguson informed Joseph that he had an ongoing dispute with Holloway, but
did not provide any facts about the dispute. (Tr. 27). Joseph did not inquire whether either party
had an order of protection against the other.3 (Tr. 30-31). He did not file a report with respect
to the incident. (Tr. 26).
At approximately 11:14 a.m., Ferguson placed another call to 911. (Tr. 26).
Joseph again drove to Ferguson’s residence, arrived at 11:43 a.m., and met him outside his
house. (Id.). Holloway testified that at approximately 12:00 p.m., she called 911 to complain
about Ferguson’s behavior.4 (Tr. 9, 12-13 and Def. Ex. 1 at 12). No evidence exists in the
record, however, to suggest that Joseph was aware of such a call by Holloway.5

3

Ferguson testified at trial that on August 30, 2007, he was arrested and prosecuted for harassing
Holloway. (Tr. 40-43). Ferguson admitted that the charges “more than likely” resulted in an order of protection
against him. (Tr. 40).
4

At trial, Holloway testified that Ferguson drove to Holloway’s daughter’s residence, gave Holloway “the
finger” and threatened to beat her. (Tr. 9).
5
The 911 call record has an entry for 11:39 a.m. for a call by “Mary Halloway.” (D. Ex. 1 at 12). The
report is unclear whether any information was provided by the caller to the dispatcher. (Id.).

2

When Joseph interviewed Ferguson for the second time, Ferguson told him that
Holloway had again driven by Ferguson’s residence and that this time she had thrown a bottle at
Ferguson. (Tr. 27). Ferguson reported that the bottle missed him and broke against the side of
his house. (Tr. 27, 39).6 Joseph observed broken glass in front of Ferguson’s residence. (Tr.
27).
Following this second call, Ferguson swore out a criminal complaint against
Holloway charging her with harassment in the second degree, in violation of New York State
Penal Law § 240.26(3).7 (Def. Ex. 3). The complaint alleged that Holloway “[e]ngage[d] in a
course of conduct or repeatedly commit[ed] acts which alarm[ed] or seriously annoy[ed] another
person and which serve[d] no legitimate purpose.” (Id.). Specifically, the complaint alleged that
Holloway had thrown a bottle at Ferguson that smashed against Ferguson’s house. (Id.).
Joseph and another officer went to 314 Ames Street, Holloway’s daughter’s
residence, to arrest Holloway. (Tr. 27 and Def. Ex. 2 at 2). Joseph knew Holloway from the
neighborhood and had not had any negative interactions with her. (Tr. 29). According to
Joseph, although he could have issued Holloway an appearance ticket, he chose to arrest her
because of the ongoing dispute between Ferguson and her and because the reported harassment
that morning appeared to be escalating. (Tr. 28). Joseph testified that it was customary practice
to arrest a suspect on a complaint of repeated, escalating conduct. (Id.). Joseph further
explained that he believed that it would have been imprudent to leave Ferguson and Holloway

6

During the trial, Ferguson testified that the bottle was thrown from the passenger side, although he
admitted that he had told Joseph that it was Holloway who threw the bottle. (Tr. 37).
7
Although the complaint accuses Holloway of violating subsection 3 of New York Penal Law § 240.26,
the certificate of disposition refers to subsection 1 of that statutory section. (Tr. 22; Pl. Ex. 12).

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within close proximity to each other given their history and that Holloway’s arrest would defuse
the dispute for the day. (Id.). Holloway testified that when Joseph took her to the police
headquarters following her arrest, she advised him that she had been at a doctor’s office earlier
in the day and denied harassing Ferguson. (Tr. 10).
Joseph subsequently learned that Ferguson had fabricated some of the information
he had provided to Joseph on September 6, 2007. (Tr. 28). Ferguson was later charged with
making a false sworn statement as a result of his fabrications. (Id. at 28-29 and Pl. Ex. 5). The
harassment charges against Holloway were dismissed in January 2008. (Tr. 12, 23 and Pl. Ex.
12).

DISCUSSION
To establish a claim under Section 1983, a plaintiff must demonstrate that the
challenged conduct (1) was “committed by a person acting under color of state law”; and
(2) “deprived [the plaintiff] of rights, privileges or immunities secured by the Constitution or
laws of the United States.” Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir. 1994). Section 1983
creates no substantive rights; instead, it provides a “procedure for redress for the deprivation of
rights established elsewhere.” Thomas v. Roach, 165 F.3d 137, 142 (2d Cir. 1999). Here, no
dispute exists that Joseph acted under color of state law. Rather, the central inquiry is whether
his actions violated Holloway’s constitutional rights.
A. Probable Cause to Arrest
“The Fourth Amendment protects individuals against unreasonable searches and
seizures.” Anthony v. City of New York, 339 F.3d 129, 135 (2d Cir. 2003). In order to seize a

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person without a warrant, the officers must have probable cause. United States v. Delossantos,
536 F.3d 155, 158 (2d Cir.) (“[a] warrantless arrest is unreasonable under the Fourth Amendment
unless the arresting officer has probable cause to believe a crime has been or is being
committed”), cert. denied, 555 U.S. 1056 (2008). Probable cause exists if “the facts and
circumstances within [the officers’] knowledge and of which they had reasonably trustworthy
information [are] sufficient in themselves to warrant a man of reasonable caution in the belief
that an offense has been or is being committed.” United States v. McFadden, 238 F.3d 198, 204
(2d Cir.) (alterations in original) (quoting United States v. Cruz, 834 F.2d 47, 50 (2d Cir. 1987)),
cert. denied, 543 U.S. 898 (2001); see also Curley v. Vill. of Suffern, 268 F.3d 65, 69-70 (2d Cir.
2001) (internal quotation omitted) (“[p]robable cause exists when an 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”).
In general, when a putative victim advises an officer of a crime and signs a
complaint, the officer has probable cause to arrest. Mistretta v. Prokesch, 5 F. Supp. 2d 128, 133
(E.D.N.Y. 1998). The veracity of a victim’s complaint to the police is assumed, Miloslavsky v.
AES Eng’g Soc’y, Inc., 808 F. Supp. 351, 355 (S.D.N.Y. 1992), aff’d, 993 F.2d 1534 (2d Cir.),
cert. denied, 510 U.S. 817 (1993), and a police officer is “not required to explore and eliminate
every theoretically plausible claim of innocence before making an arrest”; nor must the officer
“prove [the arrestee’s] version wrong.” Curley v. Vill. of Suffern, 268 F.3d at 70 (internal
quotation omitted). An arresting officer need not “believe with certainty” that the prosecution
will be successful. Id.

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Police officers are not absolutely privileged to arrest upon a charge by a putative
victim, however, because “[s]ome people have axes to grind.” Mistretta v. Prokesch, 5
F. Supp. 2d at 133. For this reason, complaints by victims will ordinarily establish probable
cause “absent circumstances that raise doubts as to the victim’s veracity.” Id. (quoting Singer v.
Fulton Cnty. Sheriff, 63 F.3d 110, 119 (2d Cir. 1995), cert. denied, 517 U.S. 1189 (1996)). “The
most common situation in which such doubts arise is when there exists a prior relationship
between the victim and the accused that gives rise to a motive for a false accusation.” Id.
“When such a relationship exists, and is known to the arresting officer before the arrest is made,
the complaint alone may not constitute probable cause; the officer may need to investigate
further.” Id. In such situations, the victim’s statement need not be wholly ignored, but “the
police [must] have additional information to buttress the victim’s statement.” Williams v. City of
New York, 2003 WL 22434151, *5 (S.D.N.Y. 2003) (quoting McBride v. City of New Haven,
2000 WL 559087, *11 (D. Conn. 2000)), aff’d, 120 F. App’x 388 (2d Cir. 2005); see also
Jovanovic v. City of New York, 2006 WL 2411541, *7 (S.D.N.Y. 2006) (“the failure to make a
further inquiry when a reasonable person would have done so may be evidence of a lack of
probable cause”) (quoting Lowth v. Town of Cheektowaga, 82 F.3d 563, 571 (2d Cir. 1996)),
reconsidered in part on other grounds, 2008 WL 355515 (S.D.N.Y. 2008).
In other words, where the officer is aware of a relationship between the victim
and the accused, the officer is entitled to arrest the accused if the “victim precisely identifies the
alleged perpetrator . . . and there is independent corroborative evidence to support at least some
of the victim’s assertions.” Brodie v. Fuhrman, 2010 WL 1189347, *6 (E.D.N.Y. 2010)
(quoting Bullard v. City of New York, 240 F. Supp. 2d 292, 298 (S.D.N.Y. 2003)). Corroborative

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evidence may include: “(1) the officer’s observation of the putative victim’s physical injuries;
(2) the level of detail and consistency in the putative victim’s description of events; (3) the
putative victim’s identification of [the arrestee] by name and physical description; and
(4) incriminating statements by [the arrestee].” Williams v. Schultz, 2008 WL 4635383, *9
(N.D.N.Y. 2008).
B. Holloway’s Claims
In her complaint, Holloway asserts claims for malicious prosecution, false arrest
and false imprisonment. In order to prevail on these claims under Section 1983, Holloway must
establish both a violation of the Fourth Amendment and the elements of these claims under New
York state law. See, e.g., Fulton v. Robinson, 289 F.3d 188, 195 (2d Cir. 2002) (internal citation
omitted) (“[i]n order to prevail on a § 1983 claim against a state actor for malicious prosecution,
a plaintiff must show a violation of his rights under the Fourth Amendment . . . and establish the
elements of a malicious prosecution claim under state law”). “Under New York state law, to
prevail on a claim of false arrest [or false imprisonment8], a plaintiff must show that (1) the
defendant intended to confine him, (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.” Tsesarskaya v. City of New York, 843 F. Supp. 2d 446, 454 (S.D.N.Y. 2012)
(quoting Jocks v. Tavernier, 316 F.3d 128, 134-35 (2d Cir. 2003)). The existence of probable

8

Under New York law, “[f]alse arrest is simply false imprisonment accomplished by means of an unlawful
arrest.” Jenkins v. City of New York, 478 F.3d 76, 88 n.10 (2d Cir. 2007). “False arrest and false imprisonment are
largely synonymous because an imprisonment starts at the moment of arrest.” Id. (quoting 59 N.Y. Jur. 2d False
Imprisonment § 1). Accordingly, “[b]ecause a cause of action for false arrest is essentially the same tort as false
imprisonment,” they can be analyzed as one cause of action. See Mitchell v. Home, 377 F. Supp. 2d 361, 376
(S.D.N.Y. 2005); Mejia v. City of New York, 119 F. Supp. 2d 232, 252 (E.D.N.Y. 2000) (“[u]nder New York law,
false arrest is considered to be a species of false imprisonment, and the two claims have identical elements”).

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cause to arrest “is a complete defense to an action for false arrest.” Weyant v. Okst, 101 F.3d
845, 852 (2d Cir. 1996) (quoting Bernard v. United States, 25 F.3d 98, 102 (2d Cir. 1994)).
Similarly, probable cause is an absolute defense to a cause of action for malicious
prosecution. Prowisor v. Bon-Ton, Inc., 426 F. Supp. 2d 165, 171 (S.D.N.Y. 2006), aff’d, 232
F. App’x 26 (2d Cir. 2007). “To establish a malicious prosecution claim under New York law, a
plaintiff must show that a proceeding was commenced or continued against him, with malice and
without probable cause, and was terminated in his favor.” Fulton v. Robinson, 289 F.3d at 195.9
“Typically, a warrantless deprivation of liberty from the moment of arrest to the time of
arraignment will find its analog in the tort of false arrest, while the tort of malicious prosecution
will implicate post-arraignment deprivations of liberty.” Prowisor v. Bon-Ton, Inc., 426
F. Supp. 2d at 171.
Judged under this authority, I find that Joseph had probable cause to arrest
Holloway. The credible trial proof establishes that Joseph had received two reports from the
alleged victim, Ferguson: first, that Holloway had verbally harassed him; and, second, that she
subsequently had thrown a bottle at him. While Ferguson informed Joseph that he had an
ongoing dispute with Holloway, Joseph testified credibly that he did not know any specific
information about their dispute. During his encounter with Joseph, Ferguson identified himself,
identified the alleged perpetrator, Holloway, and swore out a complaint against her under penalty

9

Probable cause for claims involving malicious prosecution is assessed “in light of facts known or
reasonably believed at the time the prosecution was initiated, and not at the time of arrest.” Castro v. Cnty. of
Nassau, 739 F. Supp. 2d 153, 169 (E.D.N.Y. 2010) (internal quotation omitted). In this case, the prosecution was
initiated shortly after the arrest since the complaint was sworn that same day and Holloway was arraigned on the
following day. (Def. Ex. 3 and Pl. Ex.12). In any event, no evidence has been adduced to demonstrate that Joseph
was involved in the prosecution of the criminal charges after arresting her and filing the complaint.

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of perjury.10 These circumstances, coupled with Joseph’s observations of the broken glass in
front of Ferguson’s residence, constituted sufficient, although far from overwhelming, probable
cause to arrest Holloway. See, e.g., Brodie v. Fuhrman, 2010 WL 1189347 at * 6 & n.16
(photographs depicting complainant’s purported injuries sufficiently corroborated complainant’s
assertions even though officer had knowledge of the “tense history” between complainant and
arrestee); Mistretta, 5 F. Supp. 2d at 134 (officer’s observation of broken furniture corroborated
complainant’s accusations even though complainant had a motive to fabricate the accusations
against the arrestee).
Once probable cause to arrest was established, Joseph was not required to
undertake any more expansive investigation. See Rae v. Cnty. of Suffolk, 693 F. Supp. 2d 217,
224 (E.D.N.Y. 2010) (“the role of the court is not to overly scrutinize the decisions of police
officers from its vantage in chambers, long after those decisions were made, but to determine
whether the officers acted reasonably and in compliance with what the law requires based on
what they knew at the time”); McBride v. City of New Haven, 2000 WL 559087 at *11 (“[o]nce
the police have probable cause to arrest, they have no duty to continue investigating”). Nor does
the fact that Joseph later learned that Ferguson had fabricated portions of his complaint vitiate
the existence of probable cause at the time of the arrest where no evidence exists to suggest that
Joseph knew or should have known of the fabrication before the arrest or prosecution. See

10

Specifically, the complaint contains the following notice, typed in bold, capital letters:
“NOTICE: FALSE STATEMENTS MADE HEREIN ARE PUNISHABLE AS
A CLASS A MISDEMEANOR PURSUANT TO SECTION 210.45 OF THE
NEW YORK STATE PENAL LAW.”

(Def. Ex. 3).

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Bernard v. United States, 25 F.3d at 102 (“probable cause can exist even where it is based on
mistaken information, so long as the arresting officer acted reasonably and in good faith in
relying on that information”); Castro v. Cnty. of Nassau, 739 F. Supp. 2d at 169 (“if there was
probable cause to arrest a suspect, [the element of lack of probable cause to prosecute] can be
met only if facts emerge following the arrest showing that the charges against the suspect are
groundless”).
Even if I were to conclude that probable cause was lacking, I would nonetheless
find that Joseph is entitled to qualified immunity. “[Q]ualified immunity shields police officers
acting in their official capacity from suits for damages under 42 U.S.C. § 1983, unless their
actions violate clearly-established rights of which an objectively reasonable official would have
known.” Thomas v. Roach, 165 F.3d at 142. “‘[Q]ualified immunity serves to protect police
from liability and suit when they are required to make on-the-spot judgments in tense
circumstances,’ and officers are entitled to the defense unless the officers’ judgment was so
flawed that no reasonable officer would have made a similar choice.” Martin v. Tatro, 2005 WL
2489905, *7 (N.D.N.Y. 2005) (alterations in original) (quoting Lennon v. Miller, 66 F.3d 416,
424-25 (2d Cir. 1995)). Where the claim is for arrest without probable cause, the defendant is
entitled to a finding of qualified immunity “if either (a) it was objectively reasonable for the
officer to believe that probable cause existed, or (b) officers of reasonable competence could
disagree on whether the probable cause test was met.” Golino v. City of New Haven, 950 F.2d
864, 870 (2d Cir. 1991), cert. denied, 505 U.S. 1221 (1992).

10

Where probable cause is required, the qualified immunity standard will require
“something less than actual probable cause.” See Prowisor, 426 F. Supp. 2d at 173. This
standard of “arguable probable cause” has been described by the Second Circuit as follows:
Arguable probable cause exists when a reasonable police officer in
the same circumstances and possessing the same knowledge as the
officer in question could have reasonably believed that probable
cause existed in the light of well established law. It is inevitable
that law enforcement officials will in some cases reasonably but
mistakenly conclude that probable cause is present, and we have
indicated that in such cases those officials—like other officials
who act in ways they reasonably believe to be lawful—should not
be held personally liable.
Cerrone v. Brown, 246 F.3d 194, 203 (2d Cir. 2001) (internal quotations and citations omitted).
On the basis of the facts established at trial, I conclude that arguable probable
cause for Holloway’s arrest existed, and Joseph is thus entitled to qualified immunity for his
actions in arresting and prosecuting Holloway. Under these circumstances described above, I
find that, at a minimum, “officers of reasonable competence could disagree as to whether there
was probable cause to arrest [Holloway] based solely on the accusation of [Ferguson].” Rae v.
Cnty. of Suffolk, 693 F. Supp. 2d at 225-26 (“[e]ven if there could be some question as to
whether [complainant’s] status as a fellow officer indicated a potential need for corroboration of
her accusations prior to the arrest of [p]laintiff, it is equally clear that officers of reasonable
competence could disagree on the matter, thereby entitling the . . . [d]efendants to qualified
immunity with respect to [p]laintiff’s claim of false arrest”); see McBride, 2000 WL 559087 at
*15 (finding officers entitled to qualified immunity where they relied, in part, on statements of
alleged victim whom they knew to have a history of animosity with suspect).

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CONCLUSION
For the reasons stated above, judgment shall be awarded in favor of the defendant.
The Clerk of the Court is hereby directed to enter judgment accordingly.
IT IS SO ORDERED.

s/Marian W. Payson
MARIAN W. PAYSON
United States Magistrate Judge
Dated: Rochester, New York
July 22 , 2013

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