Nix v. The City of Rochester, et al

Filing 20

DECISION AND ORDER granting 13 the City Defendants Motion for Summary Judgment. The Complaint is dismissed in its entirety as to all of the defendants. The Clerk of Court is directed to close this case. Signed by Hon. Michael A. Telesca on 8/4/17. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

CORRY G. NIX,
Plaintiff,
DECISION and ORDER
No. 6:14-cv-06395(MAT)

-vsTHE CITY OF ROCHESTER, ROCHESTER
CITY POLICE DEPARTMENT, ROCHESTER
CITY POLICE OFFICER MICHAEL
JOHNSON, MICHELLE BROWN, EBONY
ARTCHETCKO, FRYE, RIVERA, WALDO and
JOHN DOE(s), intended to be another
Rochester City Police Officer(s)
whose name(s) is/are not Known to
the Plaintiff, and NELSON
JUSTIANO-DEJESUS,
Defendants.

I.

Introduction
Represented by counsel, Corry G. Nix (“Nix” or

“Plaintiff”),

instituted this action against the City of Rochester (“the City”),
the Rochester Police Department (“RPD”), various named RPD officers
(Ebony Archetko, Michelle Brown, Thomas Frye, Michael Johnson,
Rafael Rivera, and Richard Waldo), and one or more unnamed RPD
officers

(collectively,

“the

City

Defendants”),

and

Nelson

Justiano-DeJesus (“Justiano-DeJesus”), a private citizen, alleging
violations of his constitutional rights under 42 U.S.C. § 1983, as
well as state law causes of action sounding in tort.
II.

Factual Background
Unless otherwise noted, the following facts are undisputed.

On the morning of July 16, 2013, Plaintiff drove his wife’s
red Chevy truck, bearing NYS license plate number FAM 3482, to
127-129 Anthony Street in the City of Rochester. His daughter,
Shana Nix (“Shana”) lived at this address, a duplex residence, with
her infant daughter. Shana had called Plaintiff for help regarding
trouble with

her

neighbor, co-defendant

Justiano-DeJesus,

who

resided with his family on the other side of the duplex. Shana
believed that someone had broken into her apartment and had taken
some items. Upon seeing what she believed were similar items in the
possession of Justiano-DeJesus’s family, Shana called 911 to make
a report. Shana also personally spoke to the Justiano-DeJesus
family about her concerns .
When

Plaintiff

arrived

at

127-129

Anthony

Street,

he

confronted Justiano-DeJesus and his family. During his deposition,
Plaintiff admitted,
And then I was telling the guy–the older gentleman–I
forgot his name but it wasn’t Nelson Justiano. He had
some people living with him. The older guy, he came out.
And I was asking him did you guys break in to my
daughter’s house and whatnot. And I was telling him to
call the police, there is going to be a price to pay if
you got stolen goods.
(Deposition of Corry Grandel Nix (“Nix Dep.”) at 36:7-14 (Dkt #132, p. 21 of 64), Exhibit (“Ex.”) B to Declaration of Christopher
Noone, Esq. (“Noone Decl.”)).
Plaintiff’s argument with Justiano-DeJesus and his family
escalated. At approximately 9:56 a.m., a bystander called 911 and

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reported that “things are getting heated - F’s [sic] father has
arrived on scene and poss [sic] fight to start.” (911 Transcript
(Dkt #13-2, p. 54 of 64, Ex. D to Noone Decl.); capitals omitted).
Plaintiff then departed in the red Chevy truck.

Justiano-DeJesus

called 911 to report what he perceived to be threats by Plaintiff
against him and his family,1 describing what Plaintiff was wearing,
the vehicle he was driving, the license plate number, and the
direction in which he last saw Plaintiff headed.
Defendant RPD Officer Michelle Brown (“Officer Brown”) was on
duty and assigned to the neighborhood where 127-129 Anthony Street
was located. Upon hearing

the “man with a gun” dispatch call,

Officer Brown drove her marked patrol car to the area noted. En
route, she encountered Plaintiff driving in the opposite direction
on Post Avenue. Officer Brown drove her vehicle across his path,
and pulled to a stop. Immediately after Plaintiff stopped his
vehicle, Officer Brown got out of her car, drew her service
sidearm, pointed it at Plaintiff, and ordered him to keep his hands
in sight and to get out of the truck.
Defendant Officer Ebony Archetko (“Officer Archetko”) was also
in uniform and on duty that morning, was assigned to the same
patrol area as Officer Brown. She was driving her marked patrol car

1

Justiano-DeJesus reported to the 911 operator that an “unknown black male
in a long-sleeved white t-shirt” was “outside threatening him w/a gun” and that
the “susp[ect] came in a red truck[.]” (Id., p. 55 of 64); see also id.
(“comp[lainant] having prob[lem] w/ male [neighbor] – threatened to shoot
comp[lainant] – no weapons seen[.]”).

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when she heard the “man with a gun” dispatch call. Officer Archetko
proceeded to Post Avenue, pulled in behind Plaintiff’s truck and
got out of her vehicle with her service sidearm drawn. Just after
Officer

Archetko

arrived,

Defendant

RPD

Officer

Thomas

Frye

(“Officer Frye”) pulled up in his marked patrol vehicle in response
to “man with a gun” dispatch. Defendant Sergeant (now Lieutenant)
Richard Waldo (“Sergeant Waldo”) also responded to the “man with a
gun” dispatch.
Plaintiff did not immediately exit his car, as requested by
Officer Brown, instead demanding to know why he had been stopped at
gunpoint. Officer Brown advised him that she would explain as soon
as he complied with her direction, and she offered to have the 911
call played back over her radio. Plaintiff eventually got out of
his vehicle by himself. Officers Brown and Archetko holstered their
sidearms and began handcuffing him. Plaintiff protested that he had
a metal plate in his back, due to previous injuries, that made it
very uncomfortable for him to have his hands cuffed behind his back
with his wrists together. Officers Brown, Archetko, Frye and
Sergeant Waldo used two sets of handcuffs joined end-to-end, to
provide more distance between Plaintiff’s wrists.
After Plaintiff was handcuffed, Officer Brown called dispatch
to have the “man with a gun” 911 call played back. At deposition,
Plaintiff testified that upon hearing it, he was able to “totally

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understand” why he was stopped at gunpoint by Officers Brown and Archetko.
While the police investigated the two scenes at issue in the
incident

involving

Shana,

Plaintiff,

and

Justiano-DeJesus,

Plaintiff was offered the option of sitting in the back of a patrol
car or standing next to it, or sitting at curbside, whichever was
more comfortable for him. Plaintiff opted to sit on the curb.
Subsequently, Officer Frye transported Plaintiff to booking,
at

which

time

he

was

charged

with

second-degree

harassment.

Plaintiff did not request medical attention at any time. When he
was given the opportunity to see a nurse at the booking office, he
declined.
Plaintiff and Shana were both arrested on July 16, 2013. When
they appeared in court on July 17, 2013, they were advised that
Justiano-DeJesus had obtained “no contact” orders of protection
against both of them. Plaintiff’s attorney advised him that this
meant

he

was

to

have

no

contact

with

Justiano-DeJesus,

his

premises, or his property. Plaintiff was offered an adjournment in
contemplation of dismissal (“ACD”), but declined it. (Nix Dep. at
90:20-22 (Dkt #13-2, p. 38 of 64)).
On the morning of July 18, 2013, Shana returned to the Anthony
Street duplex to pick up some clothing for herself and her baby. At
the time, she encountered Justiano-DeJesus, who chased her into the
house while brandishing a knife. Shana called 911 to report this.
She also called Plaintiff to ask for his assistance. Plaintiff and

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his wife drove her red truck to the Anthony Street duplex in
response to Shana’s phone call.
Meanwhile, Officer Brown, along with RPD Officer Michael
Johnson (“Officer Johnson”) and RPD Officer Rafael Rivera (“Officer
Rivera”) were already on the scene. Officer Brown was attempting to
resolve the dispute between Shana and Justiano-DeJesus and convince
him not to press charges against Shana for violating the “no
contact” order of protection.
When Plaintiff arrived, he got out of the truck, at which
point Officers Brown, Johnson and Rivera ordered him to get back
into the vehicle or wait somewhere farther down the street while
they handled the situation. According to the officers, Plaintiff
got into and out of his wife’s vehicle several times; each time he
was directed to get back into the vehicle and to avoid having any
contact with Justiano-DeJesus or his family.
At some point, Plaintiff got out of the vehicle and began
recording Justiano-DeJesus, who was on the porch of the Anthony
Street duplex, with his cell phone camera. Plaintiff admits videorecording someone, but asserts that the person’s “identity was
unknown[.]” (Plaintiff’s Rule 56 Statement (Dkt #16-2), ¶ 34).
Officer Johnson then advised Plaintiff he was under arrest for
violating the order of protection.
Upon being informed by Officer Brown of Plaintiff’s physical
condition, Officer Johnson used three sets of handcuffs, joined

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end-to-end,

to

restrain

Plaintiff’s

hands

behind

his

back.

Plaintiff was placed in the back of Officer Rivera’s patrol car to
be transported to booking, where he was charged with second-degree
criminal contempt. Plaintiff did not request medical attention at
any time and, when he was given the opportunity to see a nurse at
the booking office, he declined.
Plaintiff appeared in court on July 19, 2013, and was offered
an ACD with regard to the contempt charge. However, he declined it.
At a subsequent court appearance, the prosecutor withdrew both the
second-degree

harassment

and

second-degree

criminal

contempt

charges. (Nix Dep. at 91 (Dkt #13-2, p. 39 of 64)).
III.

Procedural History
Plaintiff’s Complaint, filed on July 17, 2014, alleges eleven

causes of action. Summonses were issued as to all named defendants
on July 18, 2014. On October 22, 2014, the City Defendants filed an
Answer to the Complaint.2 On April 28, 2017, the City Defendants
filed the instant Motion for Summary Judgment. Plaintiff filed
opposition papers on July 1, 2017. The City Defendants filed reply
papers on July 12, 2017.
For the reasons discussed herein, the City Defendants’ Motion
for Summary Judgment is granted. In addition, the Court sua sponte
dismisses the sole cause of action against Justiano-DeJesus.
2

Justiano-DeJesus, who is only named in the Tenth Cause of Action, did not
file an Answer or otherwise appear in this action. The City Defendants indicate
that believe he has been deported.

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IV.

Summary Judgment Standard
Summary judgment should be granted when there is no genuine

dispute as to any material fact, and the moving party demonstrates
entitlement to judgment as a matter of law. See Fed. R. Civ.
P. 56(a). The party moving for summary judgment initially bears the
burden of demonstrating the absence of a genuine issue of material
fact. Adickes v. S.H. Kress and Co., 398 U.S. 144, 157 (1970). The
non-movant then has the burden of coming forward with “specific
facts showing that there is a genuine issue for trial,” Fed. R.
Civ. P. 56(e), which requires “a showing sufficient to establish
the existence of [every] element essential to that party’s case,
and on which that party will bear the burden of proof at trial.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In determining
whether there is a genuine issue of material fact requiring trial,
the court is “‘required to resolve all ambiguities and draw all
permissible factual inferences in favor of the party against whom
summary judgment is sought.’” Johnson v. Killian, 680 F.3d 234, 236
(2d Cir. 2012) (quoting Terry v. Ashcroft, 336 F.3d 128, 137
(2d Cir. 2003); internal quotation marks omitted in original).
“Where the record taken as a whole could not lead a rational trier
of fact to find for the non-moving party, there is no ‘genuine
issue for trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986) (quotation omitted).

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V.

Discussion
A.

Assault and Battery (First, Second, Third, and Fourth
Causes of Action)

In the First and Third Causes of Action in his Complaint,
Plaintiff asserts that on the morning of July 16, 2013, Officers
Brown, Archetko and Frye assaulted him by intentionally placing him
in imminent fear of forceful, harmful contact without his consent,
and then intentionally subjected him to harmful and offensive
contact by allegedly grabbing him, forcing his arms behind his
back, handcuffing him, and subduing him. In the Second and Fourth
Causes of Action, he makes the same allegations against Officers
Johnson, Brown, and Rivera and Sergeant Waldo regarding the events
of the morning of July 18, 2013.
“[E]xcept for § 1983’s requirement that the tort be committed
under color of state law, the essential elements of [excessive
force and state law assault and battery] claims . . . [are]
substantially identical.” Posr v. Doherty, 944 F.2d 91, 94-95 (2d
Cir.

1991)

(citation

omitted);

see

also

Lowth

v.

Town

of

Cheektowaga, 82 F.3d 563, 573 (2d Cir. 1996) (claims against
officers for assault and battery under state law “correspond[ed]”
to claims asserting Fourth Amendment violations). “To succeed on a
Fourth Amendment excessive force claim, a plaintiff must show that
the amount of force used was ‘objectively unreasonable.’” Lowth, 82
F.3d at 573 (quoting Finnegan v. Fountain, 915 F.2d 817, 821, 823
(2d Cir. 1990)). In making this determination, the court “must
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consider the perspective of the officer at the time of the arrest,
taking into account the fact that the officer may have been
required to make a split-second decision.” Id. (citing Graham v.
Connor, 490 U.S. 386, 397 (1989) (“As in other Fourth Amendment
contexts, however, the ‘reasonableness’ inquiry in an excessive
force case is an objective one: the question is whether the
officers’ actions are ‘objectively reasonable’ in light of the
facts and circumstances confronting them, without regard to their
underlying intent or motivation.”)).
1.

The July 16, 2013 Incident

This incident involved Officers Brown, Archetko and Frye. As
noted above, Officers Brown and Archetko pulled Plaintiff over in
response to the “man with a gun” 911 dispatch. When Plaintiff got
out of his truck, Officers Brown and Archetko initially attempted
to place a single set of handcuffs him. However, as soon as he
advised them that he had a physical condition that made it too
painful and uncomfortable to have has hand secured in that manner,
the officers joined two sets of handcuffs end-to-end to provide
additional distance between his wrists.
“[W]ith respect to an excessive force claim based on the use
of handcuffs, courts evaluate the reasonableness of the force used
in light of the following factors: (1) whether the handcuffs were
unreasonably tight; (2) whether the defendants ignored pleas that
the handcuffs were too tight; and (3) the degree of injury to the

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wrists.” Mayes v. Vill. of Hoosick Falls, 162 F. Supp.3d 67, 88
(N.D.N.Y. 2016) (citing, inter alia, Lynch ex rel. Lynch v. City of
Mount Vernon, 567 F. Supp.2d 459, 468 (S.D.N.Y. 2008)).

“This

particularized standard reflects the need to balance the ‘right to
use some degree of coercion,’ including the use of tight handcuffs
‘to prevent the arrestee’s hands from slipping out,’ Esmont v. City
of N.Y., 371 F. Supp.2d 202, 214 (E.D.N.Y. 2005) (internal citation
omitted), with the use of ‘overly tight handcuffing’ that could
constitute excessive force[.]” Dunkelberger v. Dunkelberger, No.
14-CV-3877 KMK, 2015 WL 5730605, at *14 (S.D.N.Y. Sept. 30, 2015)
(citing Lynch, 567 F. Supp.2d at 468).
Here, none of the three foregoing factors favor Plaintiff. The
RPD officers did not “ignore[ ] pleas that the handcuffs were too
tight[,]” Mayes, 162 F. Supp.3d at 88. Instead, in response to
Plaintiff’s assertions of discomfort, they attempted to accommodate
him by joining two sets of handcuffs together, end-to-end, so as to
provide more space between Plaintiff’s wrists. The fact that two
sets of handcuffs were used fatally undermines his claim that the
handcuffs “were unreasonably tight[,]” Mayes, 162 F. Supp.3d at 88.
Plaintiff asserts that this use of two sets of handcuffs “wasn’t
accommodating [him]” because he “was still in pain.” (Deposition of
Corry Nix at 15:7-15 (Dkt #13-3), Ex. J to Noone Decl.).3 However,

3

It appears that this deposition was conducted as part of the RPD’s
administrative investigation into Plaintiff’s complaint against the officers.

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he does not allege any injury as a result of the handcuffing, and
he has admitted that he “never asked for any medical attention.”
(Id.). “There is a consensus among courts in this circuit that
tight handcuffing does not constitute excessive force unless it
causes some injury beyond temporary discomfort.” Lynch, 567 F.
Supp.2d at 468 (collecting cases).
There is no evidence that the handcuffing on July 16, 2013,
injured Plaintiff, and he does not claim any consequences flowing
from the handcuffing apart from temporary discomfort. The Court
finds that, as a matter of law, Officers Brown, Archetko, and Frye
did not use excessive force in handcuffing Plaintiff on July 16,
2013.
2.

The July 18, 2013 Incident

According to Plaintiff’s own testimony, only Officer Johnson
was involved in the application of handcuffs when he was arrested
on July 18, 2013. It is undisputed that Officer Johnson was
informed by Officer Brown of Plaintiff’s physical impairments which
prevented

use of

a single

set

of

handcuffs.

Officer

Johnson

therefore joined three sets of handcuffs together, end to end, to
provide additional distance between Plaintiff’s wrists. It is also
undisputed that Plaintiff not request medical attention on July 18,
2013, from Officer Johnson or any of the other defendants. When he
had the opportunity to see a nurse in the booking office, he did
not do so because he had posted bail and instead opted to leave.

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Again, there is no evidence that the handcuffing on July 18,
2013, injured Plaintiff, and he does not claim any consequences
flowing from the handcuffing apart from temporary discomfort. The
Court finds that, as a matter of law, Officer Johnson did not use
excessive force in handcuffing Plaintiff on July 18, 2013.
B.

False Arrest and False Imprisonment (Fifth and Sixth
Causes of Action)

In his Fifth and Sixth Causes of Action, Plaintiff alleges
that he was falsely arrested and falsely imprisoned on July 16,
2013, and July 18, 2013, respectively.
The Second Circuit has explained that “[t]he common law tort
of false arrest is a species of false imprisonment[,]” Singer, 63
F.3d at 118; see also Budgar v. State, 414 N.Y.S.2d 463, 466 (Ct.
Cl. 1979) (“The tort of false arrest is essentially the same as the
tort of false imprisonment, and every false arrest is itself a
false imprisonment, with the imprisonment commencing with the
arrest.”) (internal and other citations omitted).

“Under New York

law, the elements of a false imprisonment claim are: ‘(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, 63 F.3d at 118 (quoting Broughton v. State,
373 N.Y.S.2d 87, 93 (1975)). “There can be no federal civil rights
claim for false arrest where the arresting officer had probable
cause.” Singer, 63 F.3d at 118 (citation omitted).
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1.

The July 16, 2013 Incident

On July 16, 2016, defendant Justiano-DeJesus, made a 911 call
reporting that Plaintiff threatened to shoot him with a gun.
Justiano-DeJesus described Plaintiff to the 911 operator, as well
as the make, model, and license plate number of Plaintiff’s truck,
and the direction in which he was last seen traveling. JustianoDeJesus later swore out a complaint charging Plaintiff with a
violation of Harassment in the Second Degree under New York Penal
Law (“P.L.”) § 240.26(1)). The complaint alleged that Plaintiff
said to Justiano-DeJesus, “‘I’m gonna shoot you up’ and ‘I’m gonna
get you[,]’” which “cause[d] [him] to feel threatened and alarmed.”
(Dkt #13-3, p. 7 of 45).
Defendants argue that Officers Archetko and Brown had probable
cause to arrest Plaintiff for second-degree harassment based on
Justiano-DeJesus’s 911 call, the accurate description of Plaintiff,
Plaintiff’s vehicle and its license plate number, and the direction
Plaintiff was traveling when last seen. Defendants argue that
although no gun was found on his person or in his truck, his
admission to Officer Archetko4 supported his arrest and the charge
of second-degree harassment.
An officer has probable cause to make an arrest when he or she
has “knowledge or reasonably trustworthy information of facts and
4

Officer Archetko testified that Plaintiff “actually admitted to [her] that
he threaten to shoot” Justiano-DeJesus. (Deposition of Ebony Archetko at 7-8
(Dkt #13-3), Ex. H to Noone Decl.).

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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.” Davis v. Rodriguez, 364 F.3d 424, 433
(2d Cir. 2004). The Second Circuit has “found probable cause where
a police officer was presented with different stories from an
alleged victim and the arrestee.” Curley v. Vill. of Suffern, 268
F.3d 65, 70 (2d Cir. 2001) (citation omitted). “Probable cause to
arrest may exist even if the arresting officers do not possess
firsthand knowledge of the suspect’s alleged criminal activity.”
Watkins v. Ruscitto, No. 14 CIV. 7504 (AJP), 2016 WL 3748498, at *6
(S.D.N.Y. July 11, 2016) (citing Zellner v. Summerlin, 494 F.3d
344, 369 (2d Cir. 2007) (“The existence of probable cause need not
be assessed on the basis of the knowledge of a single officer.”)).
Here, Officer Brown heard the 911 dispatch based on the call
made by Justiano-DeJesus regarding Plaintiff’s alleged threats.
During the course of the traffic stop minutes later, Officer
Archetko testified that while Plaintiff maintained he did not have
a gun, he did admit to telling Justiano he was going to get a gun
and shoot him. (See Archetko Dep. at 7-8 (Dkt #13-3), Ex. H to
Noone Decl.). The Court finds that the officers had “reasonably
trustworthy information of facts and circumstances” sufficient to
warrant their belief that Plaintiff in fact had committed the crime
of second-degree harassment.

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The Court notes, however, that the fact that the arrest was
made based on conduct committed outside of the officers’ presence
raises an issue of New York State law that has been treated
differently by district courts in this Circuit. Second-degree
harassment is only a violation under New York Penal Law. See N.Y.
Penal

Law

§

240.26

(“Harassment

in

the

second

degree

is

a

violation.”); id. § 10.00(3) (“‘Violation’ means an offense, other
than a ‘traffic infraction,’ for which a sentence to a term of
imprisonment in excess of fifteen days cannot be imposed.”). As a
matter of New York Criminal Procedure Law police officers are not
authorized to make a warrantless arrest for a violation unless the
officer

has

“reasonable

cause”

to

believe

the

violation

has

occurred in their presence. See N.Y. Crim. Proc. Law § 140.10(1)(a)
(“[A] police officer may arrest a person for . . . [a]ny offense
when he or she has reasonable cause to believe that such person has
committed such offense in his or her presence[.]”) (emphasis
supplied). Most of the district courts in this Circuit have found
the

rule

embodied

in

N.Y.

Crim.

Proc.

Law

§

140.10

to

be

inapplicable in the context of a § 1983 false arrest claim. Mikulec
v. Town of Cheektowaga, 909 F. Supp.2d 214, 225 (W.D.N.Y. 2012)
(collecting cases).5

In Hotaling v. LaPlante, 167 F. Supp.2d 517,

5

See also, e.g., Cooper v. California, 386 U.S. 58, 61 (1967) (whether a
seizure is reasonable under the Fourth Amendment is a different question than
whether a seizure is authorized by state law); United States v. Becerra-Garcia,
397 F.3d 1167, 1174 (9th Cir. 2005) (“[W]e . . . have declined to consider state
law in determining the reasonableness of seizures [under the Fourth

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522 (N.D.N.Y. 2001), for instance, the plaintiff argued that his
arrest

for

second-degree

harassment

under

N.Y.

Penal

Law

§ 240.26(1) violated his Fourth Amendment rights because it was
effected in violation of N.Y. Crim. Proc. Law § 140.10(1). The
district court rejected this argument, explaining that
[t]here is no requirement under the Fourth Amendment that
a police officer personally witness the conduct upon
which he or she relies to establish the existence of
probable cause. In considering a plaintiff’s claims under
Section 1983, “[t]he question is whether there has been
a violation of a federal right, which here is claimed to
be the Fourth Amendment.”
Hotaling,

167

F.

Supp.2d

at

522–23

(internal

citations

and

quotation omitted; brackets in original). As the district court in
another case relying on Hotaling observed, it is well settled that
“[a] violation of a state law, in and of itself, does not give rise
to

liability

under

42

U.S.C.

§

1983.”

Williams

v.

Schultz,

No. 9:06-CV-1104, 2008 WL 4635383, at *8 & n. 49 (N.D.N.Y. Oct. 16,
2008) (emphasis omitted). This is an action under 42 U.S.C. § 1983,
and, as such, it is governed by the Federal Constitution (e.g., the
Fourth Amendment) and an Act of Congress (i.e., 42 U.S.C. § 1983).
Therefore, the substantive law to be applied is not the substantive
law of New York State. Williams, 2008 WL 4635383, at *9. “While it

Amendment].”); United States v. Smith, 9 F.3d 1007, 1014 (2d Cir. 1993) (validity
of search in federal prosecution is whether federal, not state, constitution is
satisfied); Fields v. City of South Houston, 922 F.2d 1183, 1189 (5th Cir. 1991)
(“[A] civil rights action [under 42 U.S.C. § 1983] will not lie for a warrantless
misdemeanor arrest in violation of state law.”); Street v. Surdyka, 492 F.2d 368,
371 (4th Cir. 1974) (“Even if [the plaintiff] violated Maryland arrest law, he
cannot be liable under section 1983 unless he also violated the federal
constitutional law governing warrantless arrests.”).

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is

true that

federal

courts

addressing a false

arrest

claim

asserted against a state official under the Fourth Amendment ‘look
to’ a state’s substantive law to define the elements of a false
arrest claim (and the elements of the crime for which the plaintiff
was arrested), ultimately the substantive law that is being applied
is the Fourth Amendment of the United States Constitution.” Id. at
n.51 (citing Russo v. City of Bridgeport, 479 F.3d 196, 203
(2d Cir. 2007) (stating that court was “look[ing] to” the state’s
substantive criminal law to analyze plaintiff’s false arrest claim,
but that the claim was “arising under the Fourth and Fourteenth
Amendments”) (quotation and citation omitted)).
The Court finds the reasoning of cases such as Hotaling and
Williams to be persuasive. Because Officers Brown and Archetko did
have a sufficient factual basis to conclude that probable cause
existed for the arrest of Plaintiff for second-degree harassment,
the mere fact that they did not personally witness the alleged
conduct and may have acted in violation of a state procedural law
is not sufficient to establish a violation of the Fourth Amendment
of the United States Constitution. Hotaling, 167 F. Supp.2d at 523.
Accordingly, because the officers had probable cause to arrest
Plaintiff,

and

because

the

arrest

was

not

otherwise

constitutionally invalid, the City Defendants’ motion for summary
judgment must be granted as to this cause of action. Id.

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C.

Malicious Prosecution (Eighth, Ninth and Tenth Causes of
Action)

Plaintiff’s Eighth and Ninth Causes of Action assert claims of
malicious prosecution against the City Defendants with regard to
the July 16, 2013, and July 18, 2013, incidents, respectively.
Plaintiff’s Tenth Cause of Action asserts a claim of malicious
prosecution against Jusintiano-DeJesus with regard to the incident
on July 16, 2013.
“In order to prevail on a § 1983 claim against a state actor
for malicious prosecution, a plaintiff must show a violation of his
rights under the Fourth Amendment, and must establish the elements
of a malicious prosecution claim under state law[.]” Manganiello v.
City of N.Y., 612 F.3d 149, 160–61 (2d Cir. 2010) (internal and
other citations omitted). “Under New York law, a plaintiff suing
for malicious prosecution must establish: (1) the initiation or
continuation

of

a

criminal

proceeding

against

plaintiff;

(2) termination of the proceeding in plaintiff’s favor; (3) lack of
probable cause for commencing the proceeding; and (4) actual malice
as a motivation for defendant’s actions.” Russell v. Smith, 68 F.3d
33, 36 (2d Cir. 1995) (citation omitted). “[T]he existence of
probable cause is a complete defense to a claim of malicious
prosecution in New York.” Savino v. City of N.Y., 331 F.3d 63, 72
(2d Cir. 2003) (citation omitted). “Probable cause, in the context
of malicious prosecution, has . . . been described as such facts
and circumstances as would lead a reasonably prudent person to
-19-

believe the plaintiff guilty.” Boyd v. City of N.Y., 336 F.3d 72,
76 (2d Cir. 2003) (citation and footnote omitted).
Although probable cause must exist at the time a criminal
proceeding is initiated—and not only at the time of arrest—in order
to be a complete defense to a malicious prosecution claim, “in the
absence of exculpatory facts which became known after an arrest,
probable cause to arrest is a complete defense to a claim of
malicious prosecution.” D’Angelo v. Kirschner, 288 Fed. Appx. 724,
726 (2d Cir. 2008) (summary order) (emphasis supplied); see also
Smith v. City of N.Y., 04 Civ. 3286, 2010 WL 3397683 at *9
(S.D.N.Y.

Aug. 27,

2010)

(“Once

probable

cause

to

arrest

is

established, a claim for malicious prosecution is barred ‘unless
plaintiff can demonstrate that at some point subsequent to the
arrest, additional facts came to light that negated probable
cause.’”) (quoting Dukes v. City of N.Y., 879 F. Supp. 335, 342
(S.D.N.Y. 1995) (citing Oakley v. City of Rochester, 421 N.Y.S.2d
472, 474 (4th Dep’t 1979)).
As discussed above, this Court has found that there was
probable cause for Plaintiff’s arrest. In these circumstances, and
“‘[i]n the absence of some indication that the authorities became
aware of exculpatory evidence between the time of the arrest and
the subsequent prosecution that would undermine the probable cause
which supported the arrest, no claim for malicious prosecution may
lie.’” Rae v. Cty. of Suffolk, 693 F. Supp.2d 217, 226 (E.D.N.Y.

-20-

2010) (quotation and citations omitted). In response to the City
Defendants’ summary judgment motion, Plaintiff has come forward
with no facts to suggest that the RPD officers became aware of any
exculpatory

evidence

between

subsequent

prosecution

that

the

time

of the

undermined

the

arrest

and

probable

the

cause

supporting Plaintiff’s arrest. Indeed, none are discernable on the
record. Therefore, the probable cause that existed to arrest
Plaintiff serves as a complete defense to his claim of malicious
prosecution. See, e.g., Williams v. City of N.Y., 02 Civ. 3693,
2003 WL 22434151 at *6 (S.D.N.Y. Oct. 23, 2003) (“Because there was
probable

cause

to

arrest

plaintiff,

and

plaintiff

has

not

introduced evidence to suggest that the defendants had different
information available to them between the time of [plaintiff’s]
arrest and his grand jury indictment, defendants had probable cause
to prosecute plaintiff . . . .”), aff’d, 120 Fed. Appx. 388 (2d
Cir. 2005) (summary order); Jouthe v. City of N.Y., No. 05–CV–1374,
2009 WL 701110 at *12 (E.D.N.Y. Mar. 10, 2009) (“Courts in this
circuit
probable

have

found

cause

prosecution.’”)

for

that

‘[a]bsent

arrest

(quoting

new

countervailing

establishes

Harper

v.

Port

probable
Auth.,

facts,

cause
No.

for

05-CV-

5534(BSJ), 2009 WL 398127, at *4 (S.D.N.Y. Feb. 19, 2002); citing
Espada v. Schneider, 522 F. Supp.2d 544, 553 (S.D.N.Y. 2007))..
Since there is no dispute of material fact as to whether the
City

Defendants

and

Justiano-DeJesus

-21-

had

probable

cause

to

institute

criminal

proceedings

against

Plaintiff,

and

since

probable cause is a complete defense to a claim of malicious
prosecution,

the

Court

does

not

reach

the

other

elements

of

Plaintiff’s malicious prosecution claims. See, e.g., Sullivan v.
LaPlante, No. 03–CV–359, 2005 WL 1972555, at *8 & n. 17 (N.D.N.Y.
Aug.

16,

2005)

(granting

summary

judgment

as

to

malicious

prosecution claim because “probable cause is a complete defense[;]”
court “[did] not reach the parties’ arguments on the favorable
termination

and

malice

elements

of

the

claim

for

malicious

prosecution”). Accordingly, the Eighth, Ninth, and Tenth Causes of
Action fail as a matter of law.
D.

Negligent Hiring, Training, and Supervision by the RPD
and the City (Seventh Cause of Action) and Municipal
Liability (Eleventh Cause of Action)

In his Seventh Cause of Action, Plaintiff alleges that the
City and the RPD, jointly and severally, failed to exercise due
care in the hiring, supervision, and training of police personnel
with respect to the proper treatment of suspects and persons in
custody, and the use of physical force.
1.

The Claims Against the RPD Are Redundant

“[M]unicipalities

and

other

local

government

units”

are

“included among those persons to whom § 1983 applies.” Monell v.
Dep’t

of

Social

Servs.,

436

U.S.

658,

690

(1978)

(footnote

omitted). “Under New York law, a city is a municipal corporation
capable of bringing suit and being sued.” Reinhart v. City of
-22-

Schenectady Police Dep’t, 599 F. Supp.2d 323, 325 n. 4 (N.D.N.Y.
2009) (citing N.Y. Gen. Mun. Law § 2). “A police department is an
administrative arm of the municipal corporation.” Baker v. Willett,
42 F. Supp.2d 192, 198 (N.D.N.Y. 1999) (citation omitted). Because
“it does not exist separate and apart from the municipality and
does not have its own legal identity,” a police department “cannot
sue or be sued[.]” Id.; accord, e.g., Loria v. Town of Irondequoit,
775 F. Supp. 599, 606 (W.D.N.Y. 1990); East Coast Novelty Co. v.
City of N.Y., 781 F. Supp. 999, 1010 (S.D.N.Y. 1992)). The RPD has
no legal identity separate and apart from the City of Rochester.
Therefore, Plaintiff’s Monell claims against the RPD are dismissed
as redundant of his Monell claims against the City. See Baker, 42
F. Supp.2d at 198 (citing Curran v. City of Boston, 777 F. Supp.
116 (D. Mass. 1991)).
2.

The Claims Against the City Fail as a Matter of Law

Under the standards set forth in Monell, 436 U.S. 658, “a
municipality

can

be

held

liable

under

Section

1983

if

the

deprivation of the plaintiff's rights under federal law is caused
by a governmental custom, policy, or usage of the municipality.”
Jones v. Town of E. Haven, 691 F.3d 72, 80 (2d Cir. 2012) (citing
Monell, 436 U.S. at 690; Connick v. Thompson, 563 U.S. 51, 61
(2011)

(municipalities

can

be

held

liable

for

“practices

so

persistent and widespread as to practically have the force of

-23-

law”)). Absent such a custom, policy, or usage, a municipality
cannot be held liable on a respondeat superior basis for the tort
of its employee.” Id. (citing Monell, 436 U.S. at 691; Bd. of Cnty.
Comm’rs of Bryan Cnty., Okla. v. Brown, 520 U.S. 397, 404 (1997)
(“[I]t is not enough for a § 1983 plaintiff merely to identify
conduct properly attributable to the municipality. The plaintiff
must also demonstrate that, through its deliberate conduct, the
municipality was the ‘moving force’ behind the injury alleged.”);
other citation omitted).
As an initial matter, the plaintiff must “prove the existence
of

a

municipal

policy

or

custom

in

order

to

show

that

the

municipality took some action that caused his injuries beyond
merely employing the misbehaving officer.”

Vippolis v. Vill. of

Haverstraw, 768 F.2d 40, 44 (2d Cir. 1985) (internal citation
omitted).

Plaintiff’s

allegations

of

Complaint

merely

unconstitutional

policies

contains
and

boilerplate

practices.

For

instance, Plaintiff alleges that the City and the RPD, “through its
[sic] agents, servants, employees and officers, as a matter of
official

policy

through

its

[sic]

actions

and

inactions

deliberately and/or recklessly authorized and permitted Defendant
Officers Michael Johnson, Michelle Brown, Ebony Artchetcko, Frye,
Rivera,

Waldo

and

other

Rochester

City

Police

Officers,

to

disregard and violate” Plaintiff’s rights, and “permitted them to
do so out of personal animosity through malice against” Plaintiff.

-24-

(Compl. (Dkt #1), ¶ 66). Plaintiff’s Complaint lacks sufficient
factual detail to plausibly allege the existence of a municipal
policy or custom and cannot survive a motion to dismiss, much less
a motion for summary judgment. See, e.g., Plair v. City of N.Y.,
789

F.

Supp.2d

459,

469

(S.D.N.Y.

2011)

(finding

that

the

plaintiff failed to state a plausible Monell claim where the
complaint conclusorily alleged that the city “permitted, tolerated
and was deliberately indifferent to a pattern and practice of staff
brutality and retaliation by DOC staff at the time of plaintiff’s
beatings [which] constituted a municipal policy, practice or custom
and

led

to

plaintiff’s

assault”);

Ying

Li

v.

City

of

N.Y.,

No. 15-CV-1599(PKC), 2017 WL 1208422, at *35 (E.D.N.Y. Mar. 31,
2017) (similar).
Furthermore, Plaintiff’s failure to raise a triable issue of
fact as to any of his other constitutional claims is fatal to
Monell claim. “Monell does not provide a separate cause of action
for the failure by the government to train its employees; it
extends liability to a municipal organization where . . . the
policies or customs that it has sanctioned, led to an independent
constitutional violation.” Segal v. City of N.Y., 459 F.3d 207, 219
(2d Cir. 2006) (emphasis in original; citing Monell, 436 U.S. at
694 (municipal policy was “the moving force of the constitutional
violation” asserted by the plaintiff); other citation omitted).
Here,

the

Court

has

dismissed,

-25-

as

a

matter

of

law,

all

of

Plaintiff’s constitutional claims arising under § 1983. That there
are no “independent constitutional violation[s]” to remedy in this
case is an alternative basis for dismissal of Plaintiff’s Monell
claim. See, e.g., Mangino v. Inc. Vill. of Patchogue, 739 F.
Supp.2d 205, 259 (E.D.N.Y. 2010) (“[B]ecause plaintiffs have not
demonstrated any constitutional violations by the Fire Department
defendants, there is no basis on which they could predicate Monell
liability against the Fire Department. When plaintiffs lack any
underlying claim of a deprivation of a constitutional right, the
claim of municipal liability on the part of the municipal defendant
must be dismissed as well.”) (citing Segal, 459 F.3d at 219–20
(holding that district court did not need to reach municipal
liability claim where due process claims failed); other citations
omitted). Accordingly, Plaintiff’s Seventh and Eleventh Causes of
Action fail as a matter of law.
E. State Law Claims
“It is well settled that where, as here, the federal claims
are eliminated in the early stages of litigation, courts should
generally decline to exercise pendent jurisdiction over remaining
state law claims.” Klein & Co. Futures v. Bd. of Trade of City of
N.Y.,

464

F.3d

255,

263

(2d

Cir.

2006)

(citing

Kolari

v.

New York–Presbyterian Hosp., 455 F.3d 118, 122 (2d Cir. 2006)
(noting that “‘in the usual case in which all federal-law claims
are eliminated before trial, the balance of factors . . . will

-26-

point toward declining to exercise jurisdiction over the remaining
state-law claims’”)(quotation and further citation omitted)). None
of the pertinent factors—judicial economy, convenience, fairness,
and comity—favor the retention of jurisdiction over Plaintiff’s
state law claims. Accordingly, the Court dismisses them without
prejudice. See Klein & Co. Futures, 464 F.3d at 262 (after district
court dismissed claims under the federal Commodity Exchange Act for
lack of standing, it declined to exercise jurisdiction over the
plaintiff’s

supplemental

state

law

claims

and

dismissed

them

without prejudice; circuit court affirmed).
IV.

Conclusion
For the foregoing reasons, the City Defendants’ Motion for

Summary Judgment is granted. The Complaint is dismissed in its
entirety as to all of the defendants. The Clerk of Court is
directed to close this case.
SO ORDERED.
S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
Dated:

August 4, 2017
Rochester, New York.

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