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finding it objectively reasonable for police officer to "slam" the plaintiff to the stairs after the plaintiff, who was stopped for a misdemeanor sex offense, ran from officers attempting to evade arrest
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18 Civ. 6913 (VEC) (GWG)
02-26-2021
CECIL MCKENZIE, Plaintiff, v. CITY OF NEW YORK, et al., Defendants.
REPORT AND RECOMMENDATION
GABRIEL W. GORENSTEIN, UNITED STATES MAGISTRATE JUDGE
Plaintiff Cecil McKenzie, proceeding pro se, brought this action against the City of New York, and New York City Detective Marquis Cross, Police Officer Jose Calle-Palomeque and Lieutenant Robert Zevon pursuant to 42 U.S.C. § 1983 to recover damages for alleged deprivations of his constitutional rights in the course of his arrest. Defendants have moved for summary judgment on all claims. For the reasons stated below, defendants' motion should be granted.
McKenzie titles his opposition “Plaintiff Response of Motion for Summary Judgement [sic], ” but in his opening statement seeks “an order and judgement [sic] pursuant to Rule 56 of Federal Rules of Civil Proceeding or Procedures. Granting Plaintiff's motion for summary judgement [sic][.]” Pl. Opp. at *1. (* refers to pages assigned by the ECF system.) Notwithstanding McKenzie's apparent intention to bring a cross-motion for summary judgment, we do not consider it as such since he has failed to submit a Local Rule 56.1 Statement. In any event, he would not be entitled to summary judgment on any of his claims for the reasons stated herein. Motion for Summary Judgment, filed September 10, 2020 (Docket # 81); Memorandum of Law in Support of Summary Judgment, filed September 11, 2020 (Docket # 82) (“Def. Mem.”); Defendants' Rule 56.1 Statement, filed September 11, 2020 (Docket # 83); Declaration of Bridgette Nunez-Figueroa in Support of Summary Judgment, filed September 11, 2020 (Docket # 84) (“Nunez-Figueroa Decl.”); Plaintiff's Response in Opposition to Motion for Summary Judgment, filed October 8, 2020 (Docket # 88) (“Pl. Opp.”); Reply Memorandum of Law in Support of Summary Judgment, filed November 2, 2020 (Docket # 89) (“Def. Reply Mem.”). As explained in the Court's Order dated February 26, 2021 (Docket # 92), a portion of Docket # 88 now appears as Docket # 93 and is available to attorneys and the court only.
I. BACKGROUND
A. Treatment of Plaintiff's Submissions
Defendants ask that we deem their Local Rule 56.1 statement admitted because McKenzie “failed to file a response, as required by Local Civil Rule 56.1(b).” Def. Reply Mem. at 1. In McKenzie's opposition, he suggests he has attached a Local Rule 56.1 statement, see Pl. Opp. at *1, but no such statement appears in the record. McKenzie does include an unsworn statement of facts, see Pl. Opp. at *3-*6, but it does not contain any citations to admissible evidence. Despite these problems, “[a] district court has broad discretion to determine whether to overlook a party's failure to comply with local court rules.” Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 73 (2d Cir. 2001) (citations omitted). Because McKenzie is proceeding pro se, “we will not penalize him for his failing to submit a proper counterstatement under Local Civil Rule 56.1.” Wilson v. Calderon, 2017 WL 2881153, at *1 (S.D.N.Y. July 6, 2017) (collecting cases), adopted by 2017 WL 3209148 (S.D.N.Y. July 27, 2017).
Nonetheless, a party's pro se status does not relieve him of the responsibility of providing admissible evidence to dispute the opposing party's assertions that there are no genuine disputes of material fact requiring a trial. See, e.g., Wali v. One Source Co., 678 F.Supp.2d 170, 178 (S.D.N.Y. 2009) (requiring that pro se plaintiff's arguments be “actually supported by evidentiary submissions” where “plaintiff fails to submit a proper Rule 56.1 statement”). Here, defendants annexed McKenzie's deposition in this case as an exhibit to their motion, see Deposition of Cecil McKenzie, annexed as Exhibit A to Nunez-Figueroa Decl. (“Dep.”), and this deposition serves to provide a sworn statement of McKenzie's factual contentions.
B. Facts
Unless otherwise noted, the following facts reflect statements made by McKenzie in his deposition testimony, as well as evidence supplied by defendants that does not conflict with McKenzie's deposition.
On August 4, 2015, Cecil McKenzie decided to take the subway home even though he was prohibited from using the subway without permission from his parole officer. See Dep. at 37; 43-44. McKenzie took the subway because he had forgotten papers for a meeting and needed to return home quickly to get them. Id. at 37. Unbeknownst to McKenzie, two police officers, Officer Jose Calle-Palomeque and Detective Marquis Cross, had taken notice of him. See Declaration of Detective Marquis Cross ¶ 4, annexed as Exhibit B to Nunez-Figueroa Decl. (“Cross Decl.”); Declaration of Officer Jose Calle-Palomeque ¶ 4, annexed as Exhibit C to Nunez-Figueroa Decl. (“Calle-Palomeque Decl.”). Cross and Calle-Palomeque observed McKenzie “continuously staring at different women in the subway station, pacing the train platform, and moving up and down the stairwell[.]” Id. Calle-Palomeque and Cross followed McKenzie onto a subway train. See id. ¶ 5. McKenzie switched trains and, while on the second train, the officers allegedly saw McKenzie “arch his back and thrust his groin and midsection against [a female passenger's] lower back and buttocks.” Cross Decl. ¶¶ 7-8; Calle-Palomeque Decl. ¶¶ 7-8. While McKenzie denies doing so, see Dep. at 45-46, he was ultimately convicted of persistent sexual abuse, see Criminal Trial Transcript at 3, annexed as Exhibit G to Nunez-Figueroa Decl. (“Criminal Trial Transcript”).
Calle-Palomeque approached McKenzie and asked him to step off the train, see Calle-Palomeque Decl. ¶ 11, while Cross approached the female passenger to ask her about the incident, see Cross Decl. ¶¶ 9-10. McKenzie exited the train, and asked Calle-Palomeque why he was being removed but Calle-Palomeque did not answer. Dep. 45. After Calle-Palomeque did not respond, McKenzie “panicked and . . . ran, ” id. at 48, because he feared being arrested for violating his parole by being in the subway without permission from his parole officer, id. at 40, 48. McKenzie “made it to the stairs” where one of the officers “jumped on [his] back and slammed [him] on the ground, ” causing McKenzie to fall face down on the stairs. Id. at 49. When he felt the impact of the officer on his back, McKenzie “fell on [his] face.” Id. at 50. McKenzie “tried to get back up and run” but could not and ended up “tussling” with the officer. Id. As McKenzie put it: “Every time I tried to get up, he slammed me back down on the ground. I'm trying to get back up. They kept on slamming me back on the ground.” Id. at 51. McKenzie later saw it was Cross who had “slammed” him onto the stairs. See id. at 52. Calle-Palomeque then grabbed McKenzie's arms and held them around his back. Id. at 51.
McKenzie was “put in a chokehold, ” Dep. at 51, or a “headlock, ” by Cross, id. at 52, and punched in the face “three or four times” by Cross, while he was still on the ground, id. at 52, 54. McKenzie admits, however, that he did not stop resisting until after he was punched. Id. at 54.
Cross and Calle-Palomeque deny McKenzie was ever put in a headlock or punched. Cross. Decl. ¶¶ 20-21; Calle-Palomeque Decl. ¶¶ 20-21.
McKenzie was then taken to a police precinct, id. at 56, where another officer “took charge of the whole situation, ” id. at 59. The officer “threw [McKenzie] on the ground, slammed [McKenzie] on the ground, with handcuffs on, ” took McKenzie's possessions and “threw [McKenzie] in the cell . . . with the handcuffs on.” Id. at 59. McKenzie fails to name this officer in his deposition, but his opposition papers attribute these actions to Lieutenant Robert Zevon, see Pl. Opp. at*4-*5, which defendants do not dispute, see Def. Reply Mem. at 8-9.
McKenzie began requesting medical treatment due to bleeding from his nose. Dep. at 59-60. Despite McKenzie's multiple requests for help, the officers in the precinct (who are unidentified) refused to call medical assistance and told McKenzie his nose would stop bleeding after he calmed down. Id. at 60. Only after McKenzie hit the back of his head against his cell bars “constantly” did Cross come back to check on McKenzie and eventually call for medical attention. Id. at 61-63. McKenzie was transported to Bellevue Hospital Center where he was diagnosed with a right orbital “floor fracture, ” which required surgery to repair. See Bellevue Hospital Records, annexed as Exhibit E to Nunez-Figueroa Decl.
C. Procedural History
McKenzie filed his Complaint in this case on August 1, 2018. (Docket # 1) (“Comp.”). Thereafter, McKenzie's attorney withdrew, see Memo Endorsement, filed April 24, 2019 (Docket # 38), and McKenzie continued the case pro se. McKenzie filed an Amended Complaint on May 7, 2019. (Docket # 42). The Amended Complaint focuses on the actions of Cross and Calle-Palomeque, eliminating many of the allegations in the original complaint. See id. at 4-5. Interpreting McKenzie's Amended Complaint liberally, McKenzie alleges violations of his federal constitutional rights to be free of excessive force and to not be the subject of malicious prosecution.
II. SUMMARY JUDGMENT STANDARD
Rule 56(a) of the Federal Rules of Civil Procedure provides that a court shall grant summary judgment when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A genuine issue of material fact exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In determining whether a genuine issue of material fact exists, “[t]he evidence of the non-movant is to be believed” and the court must draw “all justifiable inferences” in favor of the nonmoving party. Id. at 255 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970) superseded on other grounds by Celotex Corp. v. Catrett, 477 U.S. 317 (1986)); accord Morales v. Quintel Ent., Inc., 249 F.3d 115, 121 (2d Cir. 2001) (“[A]ll reasonable inferences must be drawn against the party whose motion is under consideration.”) (citation omitted).
Once the moving party has shown that there is no genuine issue as to any material fact and that it is entitled to a judgment as a matter of law, “the nonmoving party must come forward with ‘specific facts showing that there is a genuine issue for trial[, ]'” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (emphasis in original) (quoting Fed.R.Civ.P. 56(e)), and “may not rely on conclusory allegations or unsubstantiated speculation[, ]” Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998) (citing cases). In other words, the nonmovant must offer “concrete evidence from which a reasonable juror could return a verdict in his favor[.]” Anderson, 477 U.S. at 256. Where “the nonmoving party bears the burden of proof at trial, summary judgment is warranted if the nonmovant fails to make a showing sufficient to establish the existence of an element essential to its case.” Nebraska v. Wyoming, 507 U.S. 584, 590 (1993) (citation and internal quotation marks omitted). Thus, “[a] defendant moving for summary judgment must prevail if the plaintiff fails to come forward with enough evidence to create a genuine factual issue to be tried with respect to an element essential to its case.” Allen v. Cuomo, 100 F.3d 253, 258 (2d Cir. 1996) (citing Anderson, 477 U.S. at 247-48).
Because McKenzie is appearing pro se, we construe his papers “liberally to raise the strongest arguments that they suggest.” Willey v. Kirkpatrick, 801 F.3d 51, 62 (2d Cir. 2015) (citation and internal quotation marks omitted). Nonetheless, “our application of this different standard does not relieve plaintiff of his duty to meet the requirements necessary to defeat a motion for summary judgment.” Jorgensen v. Epic/Sony Records, 351 F.3d 46, 50 (2d Cir. 2003) (citation and internal quotation marks omitted); accord Bennett v. James, 737 F.Supp.2d 219, 226 (S.D.N.Y. 2010) (“Notwithstanding the deference to which a pro se litigant is entitled, as well as the deference accorded to a non-movant on a summary judgment motion, ” the nonmovant “must produce specific facts to rebut the movant's showing and to establish that there are material issues of fact requiring a trial.”) (citations, alteration, and internal quotation marks omitted), aff'd, 441 Fed.Appx. 816 (2d Cir. 2011).
III. DISCUSSION
To establish a claim under 42 U.S.C. § 1983, a plaintiff must show that there has been a denial of a right, privilege, or immunity secured by the Constitution or laws of the United States and that the deprivation of such right occurred under color of state law. See 42 U.S.C. § 1983; West v. Atkins, 487 U.S. 42, 48 (1988). Section 1983 does not in and of itself create any substantive rights; rather, a plaintiff bringing a § 1983 claim must demonstrate a violation of an independent federal constitutional or statutory right. See Chapman v. Hous. Welfare Rights Org., 441 U.S. 600, 617-18 (1979). We discuss the rights at issue in this case next.
A. Excessive Force
“The Fourth Amendment prohibits the use of excessive force in making an arrest, and whether the force used is excessive is to be analyzed under that Amendment's ‘reasonableness standard.'” Brown v. City of New York, 798 F.3d 94, 100 (2d Cir. 2015) (citing Graham v. Connor, 490 U.S. 386, 395 (1989)). “A determination of whether the force used was reasonable ‘requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.'” Lennox v. Miller, 968 F.3d 150, 155 (2d Cir. 2020) (quoting Graham, 490 U.S. at 396). “The ‘reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham, 490 U.S. at 396 (citation omitted). This “standard is one of objective reasonableness, and the officer's state of mind, whether evil or benign, is not relevant.” Brown, 798 F.3d at 100-01 (citation omitted).
Construing McKenzie's arguments liberally, McKenzie's excessive force claim is based on four actions: (1) Cross tackling him to the ground; (2) Calle-Palomeque holding his arms behind his back; (3) Cross placing him in a headlock/chokehold and punching him in the face; and (4) Zevon throwing or slamming him to the ground at the precinct.
i. Detective Cross
First, with respect to the claim that Cross “slammed” McKenzie to the stairs after he ran from officers, by McKenzie's own admission, was “attempting to evade arrest by flight[, ]” Lennox, 968 F.3d at 155, when Cross “slammed” him to the stairs of the subway, see Dep. at 48-49. “The fact that a person whom a police officer attempts to arrest resists . . . no doubt justifies the officer's use of some degree of force[.]” Sullivan v. Gagnier, 225 F.3d 161, 165-66 (2d Cir. 2000). It was therefore objectively reasonable for Cross to prevent McKenzie from fleeing by forcing him down even if it was on the stairs. See Tracy v. Freshwater, 623 F.3d 90, 97-98 (2d Cir. 2010) (finding the officer's use of force reasonable where the officer jumped on the plaintiff and injured him “as [plaintiff] attempted to flee”). McKenzie gives no elaboration of what he means by “slammed” and, importantly, never suggests that it should have been apparent to Cross that some lesser degree of force would have succeeded in stopping his flight. Notably, McKenzie concedes he was capable of trying to get up and run away even after this use of force. Dep. at 51.
Turning next to Cross' placing McKenzie in a headlock/chokehold and punching him, McKenzie testified that after Cross had him on the ground, McKenzie continued to attempt to get up in order to get away. Dep. at 51. McKenzie testified as follows:
Q. What happened directly after you landed on the stairs?
A. So I tried to get back up and run. Me and the officer, I guess we was kind of tussling. Then next thing I knew I felt my arms being grabbed around my back by somebody else.
Q. When you say you were kind of tussling with the person that had grabbed you,
what were you doing? Were you moving your arms?
A. I was still trying to get away. After I got slammed on the ground, I was still trying to get away. He had me -- he was pushing me back down on the ground. Every time I tried to get up, he slammed me back down on the ground. I'm trying to get back up. They kept on slamming me back on the ground.Id. at 50-51 (emphasis added).
McKenzie alleges that Cross then placed him in a headlock or chokehold and punched him “like three or four times.” Dep. at 52-53. But, once again, this was during a period when McKenzie continued to struggle and resist. See id. at 54. This is made apparent from the following testimony: “I know after I got punched in the face, I just gave up.” Id. (emphasis added). McKenzie describes how the punches caused him to be “bleeding all over” but states again that he gave up only after the punching. Id. As he put it, “after” the punching, “I gave up resisting. They got me. They put me in my cuffs. After that I gave up.” Id. (emphasis added).
In order to determine whether Cross' actions were reasonable under the Fourth Amendment on these facts we must consider “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Lennox, 968 F.3d at 155. McKenzie was originally stopped by Cross and Calle-Palomeque for forcible touching per New York Penal Law § 130.52, a class A misdemeanor. See NYPD Arrest Report, annexed as D to Nunez-Figueroa Decl. While the crime was not at the highest level of severity, it was serious. McKenzie was also charged with persistent sexual abuse per New York Penal Law § 130.53, a class E felony. See id.
As to the second factor, McKenzie admits he got into a “tussle” with Cross in a crowded subway station and then tried to run away. Dep. at 50-51. His efforts were nearly successful inasmuch as he had to be tackled to the stairs in order to be stopped. Eventually, McKenzie was face down on the stairs with Calle-Palomeque holding his arms behind his back. Id. at 51. Given his continued admitted efforts to resist, McKenzie certainly represented a threat to escape, and thus was potentially a threat to others were he able to break free from the officers.
Finally, and critically, it is undisputed McKenzie continued to resist arrest at the time Cross placed him in a chokehold or headlock and punched him. As described above, McKenzie continually tried to get away as he was being “slammed” on the stairs. Dep. at 51. Once his arms were behind his back, McKenzie continued to resist and did not give up until after he was punched. As McKenzie testified: “I know after I got punched in the face, I just gave up.” Dep. at 54 (emphasis added). Or, as McKenzie put it, after the punching: “I gave up resisting. They got me. They put me in my cuffs. After that I gave up.” Id. (emphasis added).
Additionally, these events happened relatively quickly, see Dep. at 101-102, in a crowded subway station, id. at 50, forcing Cross to make a quick decision regarding the amount of force necessary in order to subdue McKenzie and effectuate the arrest. See Graham, 490 U.S. at 396-97 (reasonableness calculus “must embody allowance for the fact that police officers are often forced to make split-second judgments - in circumstances that are tense, uncertain, and rapidly evolving - about the amount of force that is necessary in a particular situation”).
In light of these circumstances, and taking McKenzie's testimony as true, a reasonable jury could not find based on McKenzie's testimony that Cross' use of force was excessive. While the crime McKenzie was originally suspected of was not the most serious, the situation escalated after McKenzie fled from officers and resisted arrest. See Tracy, 623 F.3d at 98 (“the crime in question was . . . arguably more serious because [the plaintiff] was unquestionably resisting arrest”). Additionally, Cross was forced to make a quick decision in a crowded subway station after McKenzie had fled from officers and continued to resist. McKenzie's continued resistance, even after he was on the ground, justifies the use of some degree of force by Cross. See Sullivan, 225 F.3d at 166-67. Even after Calle-Palomeque placed McKenzie's arms behind his back, McKenzie continued to resist arrest. See Dep. at 54. It was therefore reasonable for Cross to increase his use of force in attempting to subdue McKenzie by punching him. See Felix v. City of New York, 408 F.Supp.3d 304, 311 (S.D.N.Y. 2019) (defendants could believe “an intentional head slam and chokehold” were necessary where the individual was suspected of a serious crime and the defendants' “previous attempts to subdue [the suspect] were inadequate”); Jennings v. Decker, 359 F.Supp.3d 196, 206 (N.D.N.Y. 2019) (defendants' use of force may have been reasonable if plaintiff “continued to resist arrest until after [defendant] punched him.”) (denying summary judgment because of a dispute as to whether the plaintiff had resisted arrest in the first place); Rivera v. City of Yonkers, 470 F.Supp.2d 402, 407 (S.D.N.Y. 2007) (a hard punch to plaintiff's jaw, which resulted in significant injury, found reasonable where “[f]ollowing an extended pursuit of a vehicle that was driving erratically and endangering the safety of civilians and police officers, Plaintiff, . . . was flailing his arms and taking swings at [defendant].”). We recognize that cases finding the use of punches on a resisting arrestee to be reasonable frequently involve a single punch rather than three or four. But in light of McKenzie's admission that he had repeatedly tried to get up in order to escape even after having been “slammed” onto the stairs, and the absence of any testimony from McKenzie that the punches were in any way unnecessary to stop his flight, a reasonable jury could not find that the officer's use of three or four punches was unreasonable under the circumstances.
Accordingly, the claim against Cross for excessive force should be dismissed.
ii. Officer Jose Calle-Palomeque
McKenzie appears to argue Calle-Palomeque used excessive force when he held McKenzie's arms behind his back while Cross allegedly punched McKenzie. See Pl. Opp. at *12 (distinguishing the instant case from case law because “[i]t doesn't indicate it is responsible for restraining a plaintiff simply by holding the arm behind there [sic] back while being punch [sic] repeatedly in the faces [sic]”).
A reasonable jury would be compelled to find that Calle-Palomeque's restraint of McKenzie after Cross had slammed him to the ground was a reasonable use of force. As discussed above, at the point Calle-Palomeque restrained McKenzie, McKenzie was resisting arrest, and his continued attempts to escape presented a threat to others. McKenzie himself admits he continued to try to run and “tussled” with Cross after he had been slammed to the stairs, Dep. at 50. See Sullivan, 225 F.3d at 166-67 (“The fact that a person whom a police officer attempts to arrest resists . . . no doubt justifies the officer's use of some degree of force”). Accordingly, the claim against Calle-Palomeque for excessive force should be dismissed.
iii. Lieutenant Robert Zevon
With respect to his arrival at the precinct, McKenzie gave only the most meager testimony on what occurred. His description occurred during the following exchange:
Q. How long were you at the precinct before you were placed in a cell? A. I got thrown in the cell with the handcuffs on. I got slammed to the ground. In the precinct, they wasn't telling me what I was being charged with or anything, and I got upset. . . . That's when one of the officers in the precinct, not the arresting officer, one of the officers in the precinct, took charge of the whole situation. He threw me on the ground, slammed me on the ground, with handcuffs on, went in my pockets, took my phone, my wallet, and then threw me in the cell, the holding pen, and locked me up with the handcuffs on.
Dep. at 59. Plaintiff's unsworn filing is equally conclusory. See Pl. Opp. at *4-*5 (“Lt. Robert Zevon grab me and slammed me on the ground took my property I had in my pockets and shoved me in a holding cell while still being handcuff.”). McKenzie gives no further description of the “slamming” or “thr[o]w[ing]” and makes no connection between this conduct and any of his injuries.
In light of the conclusory nature of plaintiff's testimony and the failure to connect the “slamming” or “thr[o]w[ing]” with any of his injuries, a reasonable jury could not find Lt. Zevon liable for excessive force. See Mayes v. Village of Hoosick Falls, 162 F.Supp. 3D 67, 89-90 (N.D.N.Y. 2016) (summary judgment granted for defendants on plaintiff's claim that he was subjected to excessive force when he was “thrown around” by defendants because plaintiff's claim was vague, inconsistent, and plaintiff had suffered no injury as a result). Accordingly, the claim against Lieutenant Robert Zevon for excessive force should be dismissed.
McKenzie does not claim to be seeking damages for deliberate indifference to his medical needs. In any event, while McKenzie states that he was bleeding from his nose when he arrived at the precinct and there was a 30-45 minute delay before he was taken to the hospital, Dep. at 60, such a delay would not support a claim of deliberate indifference. See, e.g., Crispin v. Roach, 2020 WL 6263185, at *5 (D. Conn. Oct. 23, 2020) (no constitutional violation where victim of assault was not treated for “less than an hour” where it was not shown that “his condition, during this delay, worsened or that he was subject to increased risk of harm”); Palacio v. Ocasio, 2006 WL 2372250, at *11 (S.D.N.Y. Aug. 11, 2006) (delay of two hours did not constitute deliberate indifference where “nothing in the record suggest[ed] that [plaintiff] suffered from a life-threatening or fast-degenerating condition or that prison officials deliberately delayed his treatment as a form of punishment”) aff'd, 345 Fed.Appx. 668 (2d Cir. 2009).
B. Malicious Prosecution
“To sustain a § 1983 claim of malicious prosecution, a plaintiff must demonstrate conduct by the defendant that is tortious under state law and that results in a constitutionally cognizable deprivation of liberty.” Kinzer v. Jackson, 316 F.3d 139, 143 (2d Cir. 2003) (citation omitted). To prevail on a claim of malicious prosecution under New York tort law, “a plaintiff must show: (1) that the defendant commenced or continued a criminal proceeding against [the plaintiff]; (2) that the proceeding was terminated in the plaintiff's favor; (3) that there was no probable cause for the proceeding; and (4) that the proceeding was instituted with malice.” Id. (citations omitted); see also O'Brien v. Alexander, 101 F.3d 1479, 1484 (2d Cir. 1996); De Lourdes Torres v. Jones, 26 N.Y.3d 742, 760 (2016).
McKenzie alleges, with no evidentiary support, that Detective Cross “coerce [sic] or force [the victim] to make a statement against [McKenzie] and to come to court and testify against [McKenzie] at trial.” Pl. Opp. at *10. Defendants argue that there was probable cause for the proceeding and that it did not terminate in McKenzie's favor inasmuch as he was convicted at trial. Def. Mem. at 6-7.
In Heck v. Humphrey, 512 U.S. 477 (1994), the Supreme Court held that a claim for damages is not cognizable under § 1983 if “a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence[.]” Id. at 487. Thus, in order for a plaintiff to prevail on a malicious prosecution claim under § 1983, the “plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus[.]” Id. at 486-87.
Because McKenzie was found guilty at trial, see Criminal Trial Transcript at 3, the criminal proceeding did not terminate in his favor. See Fulton v. Robinson, 289 F.3d 188, 196 (2d Cir. 2002) (“Where a prosecution did not result in an acquittal, it is generally not deemed to have ended in favor of the accused”). McKenzie offers nothing to prove his conviction has been called into question. Because McKenzie was convicted at trial, the case against him in state court did not terminate in his favor, and the claim against defendants for malicious prosecution should be dismissed. See Washington-Steele v. City of New York, 2020 WL 4017938, at *3 (S.D.N.Y. July 16, 2020) (finding Heck to be a complete bar where plaintiff's convictions remained valid, and any finding otherwise “would imply the invalidity of [plaintiff's] conviction”) (citation and quotation marks omitted).
C. Municipal Liability Claim
“[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 East Haven, 691 F.3d 72, 80 (2d Cir. 2012) (citing Monell v. Dep't of Social Services, 436 U.S. 658, 690-91 (1978)). McKenzie has offered no evidence of any “governmental custom, policy or usage of the municipality[, ]” Jones, 691 F.3d at 80, that caused the alleged deprivation of his rights. Thus, any municipal liability claim fails. See Washington v. O'Mahony, 2020 WL 1285851, at *8 (S.D.N.Y. Mar. 18, 2020) (dismissing plaintiff's § 1983 municipal liability claim where plaintiff failed to allege “any City policy, custom, or practice that caused any [constitutional right] violation.”). Accordingly, the claim against the City of New York should be dismissed.
IV. CONCLUSION
For the foregoing reasons, defendants' motion for summary judgment (Docket # 81) should be granted. The Clerk is requested to mail a copy of this Report and Recommendation to the plaintiff.
PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file any objections. See also Fed.R.Civ.P. 6(a), (b), (d). A party may respond to any objections within 14 days after being served. Any objections and responses shall be filed with the Clerk of the Court. Any request for an extension of time to file objections or responses must be directed to Judge Caproni. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).