Opinion
Civil Action 20 Civ. 7784 (LAK) (SLC)
06-06-2023
FRANK BRANDON, Plaintiff, v. CITY OF NEW YORK, NYPD OFFICER TUHIN KHAN and NYPD SERGEANT DUMANOVSKY, Defendants.
HONORABLE LEWIS A. KAPLAN, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
SARAH L. CAVE UNITED STATES MAGISTRATE JUDGE
I. INTRODUCTION
Plaintiff Frank Brandon (“Mr. Brandon”) asserts against the City of New York (the “City”), New York City Police Department (“NYPD”) Officer Tuhin Khan (“Officer Khan”), and NYPD Sergeant Dumanovsky (“Sgt. Dumanovsky”, with the City and Officer Khan, “Defendants”)), claims under the Civil Rights Act of 1871, 42 U.S.C. § 1983 (“Section 1983”), arising out of Mr. Brandon's November 19, 2019 arrest following a vehicular accident in upper Manhattan. (ECF No. 11 (the “FAC”)). Following the close of fact discovery, Defendants filed a motion for summary judgment pursuant to Federal Rule of Civil Procedure 56, (ECF No. 43 (the “Motion”)), which Mr. Brandon opposed. (ECF No. 53 (the “Opposition”)). For the reasons set forth below, I respectfully recommend that the Motion be GRANTED.
II. BACKGROUND
A. Factual Background
The following material facts are undisputed unless otherwise noted.
The record the Court has considered in preparing this factual summary consists of: (1) the FAC (ECF No. 11); (ii) Defendants' Statement of Material Facts Pursuant to Local Civil Rule 56.1 (ECF No. 44 (“Defendants' 56.1”); (iii) the Declaration of Zachary Kalmbach in support of the Motion and accompanying exhibits (ECF No. 45 (“Kalmbach Decl.”)); (iv) Mr. Brandon's Response to Defendants' 56.1 (ECF No. 51 (“Mr. Brandon's 56.1”); (v) the Declaration of Alexis G. Padilla and accompanying exhibits (ECF No. 52 (“Padilla Decl.”); and (vi) Defendants' Response to Mr. Brandon's 56.1 (ECF No. 55 (“Defendants' Reply 56.1”)). The exhibits Mr. Brandon submits include body-worn camera video that Defendants produced in discovery. (ECF No. 52-4).
1. The Accident
Shortly after 4:00 p.m. on November 19, 2019, the NYPD received a 911 call, in which the caller reported a motor vehicle accident and stated that the driver of a black vehicle was intoxicated. (ECF No. 51 at 1 ¶ 1). On arriving at the accident scene at Eighth Avenue and West 146th Street in Manhattan, Officer Khan observed two vehicles, a minivan and a black Audi, in a nearly head-on collision, with the Audi positioned on the wrong side of the street. (Id. at 1 ¶¶ 2-3; see ECF No. 45-3 at 4). The driver of the minivan, Mohamed Seek (“Mr. Seek”), told Officer Khan that he was driving north on Eighth Avenue when the Audi, driven by Mr. Brandon, entered his lane and struek his minivan. (ECF No. 51 at 1-2 ¶¶ 4-6). Offieer Khan approaehed Mr. Brandon, who was having diffieulty balaneing. (ECF Nos. 45-8 at 2; 51 at 2 ¶ 7; 55 ¶ 2). The parties dispute whether Mr. Brandon also exhibited red, watery eyes and slurred speech. (Compare ECF No. 44 ¶ 7 with ECF No. 51 at 2 ¶ 7; see ECF No. 45-11 (Officer Khan attesting in eriminal eomplaint that Mr. Brandon “had bloodshot, droopy eyes, was unsteady on his feet, and was str[]uggling with commands.”)). After Officer Khan asked Mr. Brandon for his driver's license, Mr. Brandon took “a while” to comply, dropping his wallet in the process. (ECF No. 51 at 2 ¶ 8). Based on his observations, Officer Khan suspected that Mr. Brandon had been driving while intoxicated. (ECF Nos. 45-8 at 3; 51 at 2 ¶ 9; 55 ¶ 4). Officer Khan placed Mr. Brandon under arrest and transported him to the 28th Precinct. (ECF No. 51 at 3 ¶ 10).
2. Investigation
At the 28th Precinct, a patrol officer from the Intoxicated Driver Testing Unit conducted a series of tests on Mr. Brandon, (ECF No. 51 at 3 ¶ 11), including a Breathalyzer Test, which detected no alcohol in Mr. Brandon's blood. (ECF Nos. 52-7 at 2; 55 ¶ 5). After Mr. Brandon was unable to complete the tests, the patrol officer requested that a Drug Recognition Expert (“DRE”) conduct additional testing on Mr. Brandon. (ECF No. 51 at 3 ¶ 12). The DRE, Officer Douglas Gerber (“Officer Gerber”), observed that Mr. Brandon had droopy eyelids, foul breath, and constricted pupils, and subjected Mr. Brandon to a Romberg balancing test, a walk and turn test, a one-leg stand test, and a finger-to-nose test, none of which Mr. Brandon successfully completed. (ECF Nos. 51 at 3 ¶ 14; 52-7; see ECF No. 45-7 (listing tests performed)). Based on these observations, Officer Gerber determined that Mr. Brandon was under the influence of a narcotic analgesic and unable to operate a vehicle safely. (ECF Nos. 51 ¶ 15; 52-7 at 3; 55 ¶ 6).
Mr. Brandon was then transferred to the 32d Precinct for arrest processing. (ECF No. 55 ¶ 7). Based on Mr. Seck's statements, Officer Khan's observations, and Officer Gerber's determination, Mr. Brandon was charged with operating a motor vehicle while under the influence of drugs, in violation of New York Vehicle and Traffic Law (“VTL”) § 1192(4). (ECF Nos. 45-11 at 2; 51 at 3 ¶ 16).
While in custody, Mr. Brandon complained of a headache and was transported to the hospital, where he remained, in police custody, until November 23, 2019. (ECF Nos. 51 at 4 ¶¶ 17-18; 55 ¶¶ 8, 11). At the hospital, Mr. Brandon's blood was tested for alcohol, THC, PCP, creatine, opiates, and methadone, none of which were detected. (ECF Nos. 52-6; 55 ¶ 9). Mr. Brandon testified that, on the morning of November 20, 2019, doctors informed him that he had suffered a stroke. (ECF No. 52-2 at 62). Officer Khan did not go to the hospital during the three days Mr. Brandon was admitted. (ECF No. 51 ¶ 19).
Following his discharge from the hospital on November 23, 2019, Mr. Brandon was transported back to the 32d Precinct, where another officer informed Officer Khan that Mr. Brandon had suffered a stroke. (ECF Nos. 45-2 at 43-44, 47-48; 55 ¶¶ 12, 14). Based on his observations and Officer Gerber's determination, Officer Khan issued to Mr. Brandon a desk appearance ticket (“DAT”), for operating a vehicle while impaired by drugs, in violation of VTL § 1192(4). (ECF Nos. 51 ¶¶ 20-21; 52-8). Sgt. Dumanovsky, the desk officer at the time, signed the DAT. (ECF Nos. 51 at 4 ¶ 20; 52-8). On April 15, 2020, all charges against Mr. Brandon were dismissed. (ECF Nos. 52-9; 55 ¶ 17).
B. Procedural Background
On September 22, 2020, Mr. Brandon filed the Complaint, and on October 8, 2020, filed the first amended complaint (“FAC”), which asserted false arrest and malicious prosecution claims against Officer Khan and Sgt. Dumanovsky, and a municipal liability claim against the City. (ECF Nos. 1; 11). On December 7, 2020, Defendants filed an answer to the FAC. (ECF No. 15). Following the completion of fact discovery (ECF No. 36), on November 28, 2022, Defendants filed the Motion. (ECF Nos. 43-46). On January 6, 2023, Mr. Brandon filed the Opposition (ECF Nos. 51-53), and on January 20, 2023, Defendants filed a reply. (ECF Nos. 54-55). In response to Defendants' request, the Court held oral argument on May 22, 2023. (ECF Nos. 56-62; ECF min. entry May 22, 2023). During the oral argument, Mr. Brandon's counsel advised the Court that Mr. Brandon had abandoned his claims against the City and Sgt. Dumanovsky. (See May 22, 2023 Transcript ("Tr.") at 20-21).
As of the date of this Report and Recommendation, the Transcript has not been filed on the docket.
III.DISCUSSION
A. Legal Standards
1. Motion for Summary Judgment
"Summary judgment is warranted where the moving party shows that ‘there is no genuine dispute as to any material fact' and that it ‘is entitled to judgment as a matter of law.'" Gottesfeld v. Anderson, No. 18 Civ. 10836 (PGG), 2020 WL 1082590, at *5. (S.D.N.Y. Mar. 6, 2020) (quoting Fed.R.Civ.P. 56(a)); see Celotex Corp v. Catrett, 477 U.S. 317, 322-23 (1986) (explaining that, to grant summary judgment, a court must determine that there is no genuine issue of material fact to be tried)."A dispute about a genuine issue exists for summary judgment purposes where the evidence is such that a reasonable jury could decide in the non-movant's favor." Beyer v. Cnty. of Nassau, 524 F.3d 160, 163 (2d Cir. 2008); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254-55 (1986); see Coppola v. Bear Stearns & Co., 499 F.3d 144, 148 (2d Cir. 2007) ("Material facts are those which might affect the outcome of the suit under governing law, and a dispute is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party."). The non-moving party cannot defeat summary judgment by “simply show[ing] that there is some metaphysical doubt as to the material facts,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986), or by making a factual argument based on “conjecture or surmise.” Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991). The nonmoving party must adduce “sufficient evidence supporting the claimed factual dispute [] to require a jury or judge to resolve the parties' differing versions of the truth at trial.” First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968). “Credibility assessments, choices between conflicting versions of the events, and the weighing of evidence are matters for the jury, not for the court on a motion for summary judgment.” Fischl v. Armitage, 128 F.3d 50, 55 (2d Cir. 1997); accord Hayes v. City of New York, No. 12 Civ. 4370 (LAK), 2014 WL 4626071, at *3 (S.D.N.Y. Sept. 15, 2014) (collecting cases). “[W]here,” however, “the nonmoving party will bear the burden of proof at trial, Rule 56 permits the moving party to point to an absence of evidence to support an essential element of the nonmoving party's claim.” Bay v. Times Mirror Mags., Inc., 936 F.2d 112, 116 (2d Cir. 1991).
Internal citations and quotation marks are omitted from case citations unless otherwise indicated.
When deciding whether summary judgment is warranted, the Court must “resolve all ambiguities, and credit all factual inferences that could rationally be drawn, in favor of the party opposing summary judgment.” Cifra v. G.E. Co., 252 F.3d 205, 216 (2d Cir. 2001). “[A] judge must ask [her]self not whether [s]he thinks the evidence unmistakably favors one side or the other but whether a fair-minded jury could return a verdict for the [non-movant] on the evidence presented.” Cine SK8, Inc. v. Town of Henrietta, 507 F.3d 778, 788 (2d Cir. 2007). Entry of summary judgment is appropriate “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322. “In such a situation, there can be no genuine issue as to any material fact, since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.” Id. at 32223.
2. Section 1983 Claims
Section 1983 provides a cause of action for “the deprivation of any rights, privileges, or immunities secured by the Constitution[.]” 42 U.S.C. § 1983. A Section 1983 claim has two essential elements: “[i] the defendant acted under color of state law; and [ii] as a result of the defendant's actions, the plaintiff suffered a denial of [his] federal statutory rights, or [his] constitutional rights or privileges.” Annis v. City of Westchester, 136 F.3d 239, 245 (2d Cir. 1998). Here, Mr. Brandon alleges that, by falsely arresting and maliciously prosecuting him, Defendants violated his rights under the Fourth and Fourteenth Amendments to the United States Constitution. (ECF No. 11 ¶ 1).
Defendants do not challenge the acting-under-color-of-state-law element. (See ECF Nos. 46; 54).
B. Application
1. Abandoned Claims
In his Opposition, Mr. Brandon does not address Defendants' arguments why the claims against the City and Sgt. Dumanovsky should be dismissed. (See ECF No. 53 at 7, 17 (arguing only that Motion should be denied as to claims against Officer Khan)). See Young v. State of N.Y. Off. of Mental Retardation & Dev., 649 F.Supp.2d 282, 288 & n.24 (S.D.N.Y. 2009) (collecting cases finding claims abandoned by plaintiffs' failure to address them in opposition to defendants' summary judgment motions). At oral argument, Mr. Brandon's counsel conceded that Mr. Brandon does not intend to pursue these claims. (Tr. at 20-21). Accordingly, I respectfully recommend that Defendants' Motion as to the City and Sgt. Dumanovsky be GRANTED and the municipal liability claim against the City as well as the false arrest and malicious prosecution claims against Sgt. Dumanovsky be DISMISSED.
2. False Arrest Claim
a. Legal Standard
“Under the Fourth Amendment, made applicable to the states by the Fourteenth Amendment, the people are ‘to be secure in their persons . . . against unreasonable searches and seizures . . . .'” Maryland v. Pringle, 540 U.S. 366, 369 (2003) (quoting U.S. CONST. amend. IV). “A [Section] 1983 claim for false arrest, resting on the Fourth Amendment right of an individual to be free from unreasonable seizures, including arrest without probable cause, is substantially the same as a claim for false arrest under New York law.” Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996); see Ali v. City of New York, No. 11 Civ. 5469 (LAK), 2012 WL 3958154, at *1 (S.D.N.Y. Sept. 5, 2012) (“The standards governing claims of unconstitutional arrest under Section 1983 are identical to those applicable to state law false arrest claims.”). “To establish a false arrest claim under New York law, ‘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.'” Costello v. Milano, 20 F.Supp.3d 406, 413 (S.D.N.Y. 2014) (quoting Jocks v. Tavernier, 316 F.3d 128, 134-35 (2d Cir. 2003)).
“The existence of probable cause for the arrest is a complete defense” to a false arrest claim. Ali, 2012 WL 3958154, at *1; see Mitchell v. City of New York, 841 F.3d 72, 77 (2d Cir. 2016). “[P]robable cause is not a high standard, and requires only the possibility of criminal activity or the possibility that evidence of a crime will be found.” Ali, 2012 WL 3958154, at *3. “[P]robable cause exists when 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.'” Bayne v. Provost, No. 04 Civ. 44 (TJM) (RFT), 2005 WL 1871182, at *6 (N.D.N.Y. Aug. 4, 2005) (quoting Posr v. Ct. Officer Shield No. 207, 180 F.3d 409, 414 (2d Cir. 1999)). “Whether probable cause exists depends upon the reasonable conclusion to be drawn from the facts known to the arresting officer at the time of the arrest.” Devenpeck v. Alford, 543 U.S. 146, 152 (2004); see Kerman v. City of New York, 261 F.3d 229, 235 (2d Cir. 2001) (“For Fourth Amendment purposes, the reasonableness of an officer's belief must be assessed in light of the particular circumstances confronting the officer at the time.”). “[T]he eventual disposition of the criminal charges is irrelevant to the probable cause determination.” Bayne, 2005 WL 1871182, at *6.
“Police officers may rely upon information gained from other officers in making their probable cause assessment,” as well as “on information gained from witnesses or private citizens.” Bayne, 2005 WL 1871182, at *6. “The fact that a complaining witness has identified herself, as opposed to remaining anonymous, is an important factor in assessing the weight officers may reasonably put on information received from private citizens.” Id. “If policemen arrest a person on the basis of a private citizen's complaint that if true would justify the arrest, and they reasonably believe it is true, they cannot be held liable . . . merely because it later turns out that the complaint was unfounded.” Lee v. Sandberg, 136 F.3d 94, 103 (2d Cir. 1997); see Caldarola v. Calabrese, 298 F.3d 156, 165 (2d Cir. 2002) (“[W]hen an average citizen tenders information to the police, the police should be permitted to assume that they are dealing with a credible person in the absence of special circumstances suggesting that might not be the case.”) And “once a police officer has probable cause, he [or she] need not explore ‘every theoretically plausible claim of innocence before making an arrest.'” Bayne, 2005 WL 1871182, at *6 (quoting Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 128 (2d Cir. 1997)); see Panetta v. Crowley, 460 F.3d 388, 397 (2d Cir. 2006) (“Once an officer has probable cause, her or she is neither required nor allowed to continue investigating, sifting and weighing information.”); Curley v. Vill. of Suffern, 268 F.3d 65, 70 (2d Cir. 2001) (“The arresting officer does not have to prove plaintiff's version wrong before arresting him . . . [n]or does it matter that an investigation might have cast doubt upon the basis for the arrest.”). Ultimately, “the issue in a false arrest case is not whether someone with the benefit of perfect information and of hindsight would think that there was probable cause at the time of the arrest. It is whether a reasonably cautious person in the position of the individual who made the arrest, at the time he or she made it, would have been justified in believing that an offense had been or was being committed by the person being arrested.” Ali, 2012 WL 3958154, at *4; accord Weyant, 101 F.3d at 852 (“In general, probable cause to arrest 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 arrested has committed or is committing a crime.”).
b. Application
As set forth above, “[t]he existence of probable cause . . . is a complete defense” to a false arrest claim. Ali, 2012 WL 3958154, at *1. The question for the Court, then, is whether there is any genuine issue of material fact as to “whether a reasonably cautious person” in Officer Khan's position, “at the time he” arrested Mr. Brandon, “would have been justified in believing that” he had committed an offense. Id. The Court finds that the undisputed evidence demonstrates that at the time of the arrest, Officer Khan was justified in believing that Mr. Brandon committed the crime for which he was arrested.
Mr. Brandon was arrested on the single charge of operating a motor vehicle while his ability was impaired by drugs. (ECF Nos. 45-11 at 2; 51 at 3-4 ¶ 16). See N.Y. VTL § 1192(4). To determine whether an arrest under this statute was proper, “‘[t]he only valid inquiry on this issue is whether, viewing the facts and circumstances as they appeared at the time of arrest, a reasonable person in the position of the officer could have concluded that the motorist had operated the vehicle while under the influence of [an] intoxicating [drug].'” Hoyos v. City of New York, 999 F.Supp.2d 375, 386-87 (E.D.N.Y. 2013) (quoting People v. Farrell, 89 A.D.2d 987, 988 (2d Dep't 1982)). Thus, “‘[t]he legality of [such] an arrest . . . is not conditioned upon whether the arresting officer specified the correct subdivision of Vehicle and Traffic Law § 1192, or upon his belief as to which subdivision had been violated. All that is required is that [the officer] have had reasonable cause to believe that the defendant violated [VTL] § 1192.'” Id. at 387 (quoting People v. Gingras, 22 Misc.3d 22, 23 (N.Y. App. Term. 2008)). “[T]o have probable cause” to arrest a person for violating VTL § 1192, “an objectively reasonable officer must have been warranted in the belief that, at a minimum, [the defendant] had operated a motor vehicle while his ability to do so as a reasonable and prudent driver was impaired . . . .” Id.
Although Mr. Brandon disputes that his eyes were bloodshot and his speech was slurred (ECF No. 51 at 2 ¶ 7), the other, undisputed evidence was sufficient to cause an officer of reasonable caution to believe that Mr. Brandon was operating his vehicle while impaired by drugs, thereby justifying his arrest. It is undisputed that, at the scene of the accident, Officer Khan observed Mr. Brandon having difficulty balancing, (id.), and that at the 28th Precinct, Officer Gerber observed that Mr. Brandon had droopy eyelids and constricted pupils and was unable to pass any of the sobriety tests. (Id. at 2-3 ¶¶ 7, 14). Based on his evaluation, Officer Gerber determined that Mr. Brandon was under the influence of a narcotic analgesic. (Id. at 3 ¶ 15).
In addition to Officer Khan's observations and Officer Gerber's determinations, it is also undisputed that Mr. Seck told Officer Khan that Mr. Brandon drove into his lane and struck his vehicle. (ECF No. 51 at 2 ¶ 6). An eyewitness's statement, absent circumstances that “raise doubt as to the person's veracity,” can establish probable cause. See Curley, 268 F.3d at 69-71; see also Aberra v. City of New York, No. 18 Civ. 1138 (LAK) (SLC), 2021 WL 4805462, at *9 (S.D.N.Y. June 30, 2021) (collecting cases holding that “[e]yewitness statements alone can provide probable cause to arrest”), adopted as modified on other grounds, 2021 WL 4805494 (S.D.N.Y. Aug. 2, 2021), aff'd, No. 21-1992, 2023 WL 221096 (2d Cir. Jan. 18, 2023). Mr. Brandon points to no circumstances casting doubt on Mr. Seck's description of the accident, and does not dispute that his vehicle traveled into Mr. Seck's lane. (ECF No. 51 at 1-2 ¶¶ 3, 6). See Curley, 268 F.3d at 70 (“To defeat summary judgment, plaintiff was required to come forward with more specific facts creating a genuine issue with respect to probable cause.”). In evaluating a claim for false arrest, the Court “focus[es] on the validity of the arrest, ” and therefore, Mr. Seck's undisputed statement supported probable cause to arrest Mr. Brandon for the alternative charge of driving on the wrong side of the road in violation of VTL § 1120. Jaegly v. Couch, 439 F.3d 149, 154 (2d Cir. 2006). As the Second Circuit held in Jaegly, “a claim for false arrest turns only on whether probable cause existed to arrest a defendant, and that it is not relevant whether probable cause existed with respect to each individual charge, or, indeed, any charge actually invoked by the arresting officer at the time of the arrest.” Id.; see Carty v. City of New York, No. 16 Civ. 1294 (FB) (RML), 2019 WL 1428368, at *3 (E.D.N.Y. Mar. 29, 2019) (in evaluating whether probable cause existed, “[a]ll that matters is that the facts known to [the officers] were sufficient for a person of reasonable caution . . . to believe that the defendants committed either crime-or, indeed, any other crime[]”); Raymond v. Bunch, 136 F.Supp.2d 71, 79 (N.D.N.Y. 2001) (dismissing false arrest claim on summary judgment based on “[t]he undisputed fact . . . that [the officer] relied upon the independent observations of . . . nonparty witnesses [] in deciding that he had probable cause to arrest [the plaintiff]” for driving while intoxicated).
This statute provides that, except in certain enumerated circumstances, “[u]pon all roadways of sufficient width a vehicle shall be driven upon the right half of the roadway[.]” N.Y. VTL § 1120(a).
Therefore, Officer Khan's own observations, combined with Officer Gerber's determinations and Mr. Seck's “report of [Mr. Brandon's] erratic driving, . . . are sufficient to give [Officer Khan] probable cause for the arrest.” Hoyos, 999 F.Supp.2d at 387-88; see Bobolakis v. DiPietrantonio, 523 Fed.Appx. 85, 87 (2d Cir. 2013) (affirming summary judgment dismissing false arrest claim where, although plaintiff passed breathalyzer test, he was unable to pass other sobriety tests, displayed other physical evidence of being under the influence of drugs, and was reported to have been driving erratically into opposing lane) (summary order); Peterec v. Hilliard, No. 12 Civ. 3944 (CS), 2014 WL 6972475, at *4 (S.D.N.Y. Dec. 8, 2014) (finding probable cause supported arrest for VTL § 1192 violation where the defendant officer “was informed that a fellow officer observed Plaintiff driving erratically” and, after exiting his vehicle, the “Plaintiff- by his own admission-walked in an uncoordinated manner”). (See ECF No. 51 at 2 ¶ 6).
Notwithstanding the undisputed facts concerning Mr. Seck's account, Officer Khan's observation of Mr. Brandon's difficulty balancing, and Officer Gerber's evaluation, Mr. Brandon argues that Officer Khan lacked probable cause because he otherwise “ignored signs” that Mr. Brandon “may have been suffering a medical episode and neglected to investigate further once he learned that [Mr. Brandon] had been hospitalized for a stroke[.]” (ECF No. 53 at 8). The problem with this argument, however, is that, “[i]n this Circuit, an officer in possession of credible information sufficient to effect an arrest is under no obligation to conduct further investigation.” Guerrero v. City of New York, No. 12 Civ. 2916 (RWS), 2013 WL 5913372, at *4 (S.D.N.Y. Nov. 4, 2013) (citing Curley, 268 F.3d at 70); see Krause v. Bennett, 887 F.2d 362, 372 (2d Cir. 1989) (“Once officers possess facts sufficient to establish probable cause, they are neither required nor allowed to sit as prosecutor, judge or jury. Their function is to apprehend those suspected of wrongdoing, and not to finally determine guilt through a weighing of the evidence.”); see also Oquendo v. City of New York, 774 Fed.Appx. 703, 705 (2d Cir. 2019) (rejecting argument that officer should have conducted additional investigation of plaintiff's sobriety) (summary order). Officer Khan was “not required to explore and eliminate every theoretically plausible claim of innocence before making an arrest” of Mr. Brandon for the observable violations of the VTL. Curley, 268 F.3d at 70.
Accordingly, the “totality of the circumstances” available to Officer Khan at the time of Mr. Brandon's arrest demonstrate that there was probable cause to believe Mr. Brandon violated the VTL, and therefore, no Fourth Amendment violation occurred. Thus, I respectfully recommend that the Motion be GRANTED as to the false arrest claim.
3. Malicious Prosecution Claim
a. Legal Standard
Section 1983 claims for malicious prosecution are “substantially the same as claims for . . . malicious prosecution under state law.” Jocks, 316 F.3d at 134; accord Conway v. Vill. of Mt. Kisco, 750 F.2d 205, 214 (2d Cir. 1984). A plaintiff asserting a Section 1983 malicious prosecution claim “must prove that (1) the defendant initiated a prosecution against the plaintiff, (2) the defendant lacked probable cause to believe the proceeding could succeed, (3) the defendant acted with malice, and (4) the prosecution was terminated in the plaintiff's favor.” Hayes, 2014 WL 4626071, at *10 (citing Rohman v. N.Y.C. Transit Auth., 215 F.3d 208, 215 (2d Cir. 2000)); accord Rodriguez v. City of New York, 535 F.Supp.2d 436, 443 (S.D.N.Y. 2008). The plaintiff must also demonstrate a “sufficient post-arraignment liberty restraint to implicate the plaintiff's Fourth Amendment rights.” Rohman, 215 F.3d at 215; accord Hoyos, 999 F.Supp.2d at 389.
The existence of probable cause to support an arrest precludes a plaintiff from establishing a malicious prosecution claim “unless [he] can point to facts uncovered after the arrest that negated that probable cause by making apparent the ‘groundless nature of the charges.'” Rodriguez, 535 F.Supp.2d at 443 (quoting Lowth v. Town of Cheektowaga, 82 F.3d 563, 571 (2d Cir. 1996)); see Betts v. Shearman, 751 F.3d 78, 82 (2d Cir. 2014) (explaining that “continuing probable cause is a complete defense to a constitutional claim of malicious prosecution”). For purposes of a malicious prosecution claim, the question is whether probable cause existed “as of the time the judicial proceeding is commenced,” not at the time of the arrest. Davis v. City of New York, 373 F.Supp.2d 322, 333 (S.D.N.Y. 2005). Information officers obtain “after the arrest, but before the commencement of proceedings, is relevant to the determination of probable cause[].” Hoyos, 999 F.Supp.2d at 390.
“Qualified immunity protects officials from liability for civil damages as long as ‘their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'” Gilles v. Repicky, 511 F.3d 239, 243 (2d Cir. 2007) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “[A] police officer is entitled to qualified immunity where (1) his conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known, or (2) it was objectively reasonable for him to believe that his actions were lawful at the time of the challenged act.” Jenkins v. City of New York, 478 F.3d 76, 87 (2d Cir. 2007). “Qualified immunity gives government officials breathing room to make reasonable but mistaken judgments about open legal questions.” Lane v. Franks, 573 U.S. 228, 243 (2014). An arresting officer is entitled to qualified immunity from a malicious prosecution claim if “(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.” O'Neill v. Town of Babylon, 986 F.2d 646, 649-50 (2d Cir. 1993). Officer Khan is thus “entitled to qualified immunity if the arrest was supported by ‘arguable probable cause.'” Hayes, 2014 WL 4626071, at *9 (quoting Escalera v. Lunn, 361 F.3d 737, 743 (2d Cir. 2004)); accord Betts, 751 F.3d at 81. The test for arguable probable cause is “more favorable to the officers than the one for probable cause[.]” Escalera, 361 F.3d at 743.
b. Application
Defendants do not dispute that they initiated a criminal proceeding against Mr. Brandon, that that proceeding was resolved in his favor when all charges were dismissed, and that he was in police custody from the time of his arrest until the DAT was issued. (ECF Nos. 51 at 4 ¶¶ 2021; 52-8; 52-9; 55 ¶¶ 11-13, 15, 17). See Thompson v. Clark, 142 S.Ct. 1332, 1335 (2022) (“To demonstrate a favorable termination of a criminal prosecution for purposes of the Fourth Amendment claim under [Section] 1983 for malicious prosecution, a plaintiff need only show that his prosecution ended without a conviction.”); Walker v. Carrozzo, No. 21 Civ. 2975 (KMK), 2023 WL 2664610, at *13 (S.D.N.Y. Mar. 28, 2023) (explaining that dismissal of criminal charges was “sufficient to establish that the proceedings ended in Plaintiff's favor” under Thompson). Therefore, the viability of Mr. Brandon's malicious prosecution claim turns on whether probable cause supported the charge and whether Officer Khan acted with malice.
As set forth above, Officer Khan had probable cause to arrest Mr. Brandon on November 19, 2019 for violation of the VTL. (See § III.B.2.b, supra). The sole intervening fact to which Mr. Brandon points as vitiating the probable cause that existed when he was arrested on is Officer Khan's testimony that, on the day Mr. Brandon returned to the 32d Precinct on November 23, 2019, another officer told him that Mr. Brandon had suffered a stroke. (ECF Nos. 45-2 at 43-44, 47-48; 55 ¶¶ 12, 14). Officer Khan, however, did not recall whether he learned about Mr. Brandon's stroke before or after he issued the DAT (ECF No. 45-2 at 47), and Mr. Brandon has not adduced any evidence showing that Officer Khan learned of it before he issued the DAT. (ECF No. 53 at 13-17). Even taken in the light most favorable to Mr. Brandon, this unidentified statement does not create a genuine issue of fact as to whether probable cause continued to exist at the time Officer Khan issued the DAT. See Rodriguez, 535 F.Supp.2d at 443 (granting summary judgment as to malicious prosecution claim where plaintiffs failed to point to intervening facts vitiating probable cause). Given Officer Khan's observations of Mr. Brandon's physical condition on November 19, 2019, combined with Mr. Seck's eyewitness statements and Officer Gerber's evaluation and the results of the tests he administered at the 28th Precinct, “no rational jury could conclude that there was not probable cause to believe that the prosecution could succeed.” Hoyos, 999 F.Supp.2d at 390; see Barua v. City of New York, No. 14 Civ. 584 (NRB), 2016 WL 7494875, at *10 (S.D.N.Y. Dec. 29, 2016) (where eyewitness's statement provided probable cause to arrest, finding that “[t]he facts and circumstances available at that point in time were certainly sufficient to believe that a prosecution could be successful[]”).
In addition, “there is no evidence of malice in the record.” Hayes, 2014 WL 4626071, at *11. “[M]alice may be shown by proving that the prosecution complained of was taken from improper or wrongful motives, or in reckless disregard of the rights of the plaintiff.” Manganiello v. City of New York, 612 F.3d 149, 163 (2d Cir. 2010). Mr. Brandon repeats his argument that probable cause dissipated when the unnamed officer told Officer Khan that Mr. Brandon had suffered a stroke (ECF No. 53 at 14-15; see Tr. at 15), but does not offer any evidence that Officer Khan acted “with improper or wrongful motives” or that he acted “in reckless disregard of [his] rights[]” in issuing the DAT based on his observations of Mr. Brandon and Officer Gerber's determination. Hayes, 2014 WL 4626071, at *11.
Finally, even if a genuine issue of material fact existed as to the elements of a malicious prosecution claim, Officer Khan would be entitled to qualified immunity as to Mr. Brandon's malicious prosecution claim. While “[t]he right to be free from an arrest without probable cause was clearly established at the time of [Mr. Brandon's] arrest[,]” Jenkins, 478 F.3d at 87, Mr. Brandon's arrest was supported by, at least, “arguable probable cause.” Escalera, 361 F.3d at 743. First, based on Mr. Seck's eyewitness statements, Officer Khan's observations of Mr. Brandon's conduct on November 19, 2019, and Officer Gerber's determinations, “it was objectively reasonable for [Officer Khan] to believe that probable cause existed” to believe that Mr. Brandon had violated one or more provisions of the VTL. Id. Second, notwithstanding the second-hand information that Mr. Brandon had suffered a stroke at some indefinite point before, during, or after the accident, “reasonable officers could at least disagree about whether probable cause to prosecute [Mr. Brandon] existed,” such that Officer Khan is entitled to qualified immunity. Hoyos, 999 F.Supp.2d at 391.
Accordingly, because Mr. Brandon has not come forth with evidence demonstrating a genuine issue of material fact exists as to either probable cause to prosecute or Officer Khan's state of mind, and, in the alternative, Officer Khan is entitled to qualified immunity because arguable probable cause existed, I respectfully recommend that the Motion be GRANTED as to the malicious prosecution claim.
IV.CONCLUSION
For the reasons set forth above, I respectfully recommend that the Motion be GRANTED and Mr. Brandon's claims be DISMISSED.
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a), (d) (adding three additional days when service is made under Fed.R.Civ.P. 5(b)(2)(C), (D) or (F)). A party may respond to another party's objections within fourteen (14) days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections, and any response to objections, shall be filed with the Clerk of the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), (d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Kaplan.
FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), (d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).