Opinion
99 Civ. 979 (GEL)
September 4, 2001
Warren S. Goodman, Esq., New York, N Y for plaintiff Tony Hall
Steven C. Stern, Esq., Assistant Corporation Counsel, New York, NYfor defendant City of New York
OPINION AND ORDER
This civil rights action against the City of New York exemplifies the amount of court time and effort that must sometimes be expended to dispose of lawsuits that the parties themselves barely take seriously.
Procedural History
Plaintiff Tony Hall, also known as Thomas Prince, brought this lawsuit pro se on September 29, 1998, against the City of New York, charging unlawful imprisonment. The extremely sketchy complaint essentially said no more than that he "was incarcerated from 11-9-95 to 6-4-98 and [his] case was dismissed with no conviction (Compl. at 3.) Later, on July 29, 1999, plaintiff, now through counsel, served on defendant (but apparently never filed with the Court) an amended complaint, somewhat fleshing out the factual and legal bases for the complaint When the case was reassigned to me in September 2000, after having been on the docket of at least two prior judges for nearly two years. the docket sheet reflected no activity whatever by either party or by the Court since the answer to the phantom amended complaint was filed seven months earlier
The complaint is dated September 29, 1998, and stamped received by the Court's pro se office on October 8, 1998. The complaint was not formally filed with the Court until February 9, 1999, when permission to proceed in forma pauperis was granted by then-Chief Judge Griesa
Although the amended complaint was apparently never filed with the Court, the parties and the Court appear to have treated it as if it had been filed. The City answered the amended complaint on February 15, 2000, after two different judges of this Court had entered orders granting the City's requests for extensions of time to answer.
On December 14, 2000, this Court held a conference to find out what was happening in the case Plaintiff's counsel advised that plaintiff, who was again in prison, was uncommunicative, and suggested that he might move to withdraw as counsel. A discovery schedule was set for the case. On March 29, 2001, the Court held another conference, because plaintiff had not responded to defendant's interrogatories as required by the December scheduling order. Plaintiff's counsel advised that plaintiff had been released from prison, but had no telephone and could not be contacted. The Court entered an order a few days later, ordering plaintiff to respond to interrogatories and document requests. and appear for a deposition, before May 28, 2001, or face dismissal of the action
On June 25, 2001, the parties appeared for yet another conference, and advised the Court that while document discovery had been completed, they had not managed to arrange a deposition Defendant stated that it had developed enough information to move for dismissal on statute of limitations grounds, and that it preferred to proceed by that route, reserving its right to depose plaintiff the motion failed. The motion was duly submitted on July 24, 2001.
Under the scheduling order entered by the Court on June 27, 2001, plaintiff's opposition papers were due on August 6, 2001, with the defendant to file a reply by August 13. On that date, the Court received a letter from defendant's counsel, representing that defendant had not received any opposition from plaintiff, and that when he had called plaintiff's counsel to inquire about the papers, plaintiff's counsel "indicated that he had not prepared any papers in opposition to the motion." (Letter of Steven C. Stern, Esq., to the Court, dated Aug. 10, 2001.) On August 15, 2001, however, plaintiff's counsel belatedly requested an extension of time to file opposition papers, unaccompanied by any explanation for his failure to meet the prior deadline. Loathe to deny plaintiff an opportunity to be heard, the Court granted an extension until August 24, 2001. On that date, plaintiff's counsel faxed a letter to chambers stating that, having reviewed defendant's motion papers, he would "not be filing any declaration in opposition to the motion," in light of his obligations under Rule II not to tile frivolous pleadings. (Letter of Warren S. Goodman, Esq., to the Court, dated August 24, 2001.) Accordingly, the Court will treat the motion as fully submitted.
Plaintiff's Claims
Plaintiff's amended complaint, though filed by an attorney, is not much more informative than the original pro se complaint. It alleges that plaintiff was arrested on November 9, 1995, and charged with burglary and criminal facilitation (Am. Compl. ¶¶ 8-9.) In conclusory terms, the complaint alleges that the arrest "and all subsequent acts, errors and omissions by Defendant complained of herein" were done in bad faith and without probable cause. (Id. ¶ 17.) The complaint also charges that unspecified "acts, errors and omissions . . . of defendant and its agents, servants and employees," committed on the date of the arrest "and thereafter," "caused to sustain personal injuries." (Id. ¶ 23) Nowhere does the complaint allege, however, that police officers or anyone else employed by the City used excessive force, or indeed any force at all, against the plaintiff. The rest of the complaint includes a series of paragraphs, remarkably prolix and repetitive for such a short and uninformative document, accusing the City and its officers of such things as "criminal indifference to civil and administrative obligations," "gross negligence" and "wanton and reckless disregard of and indifference to plaintiff's rights" (id. ¶ 29), invoking a variety of legal doctrines including "assault, battery, malicious prosecution, false arrest" (id. ¶ 32). "`transferred intent' and/or res ipsa loquitur" (id. ¶ 33), and vicarious liability (id ¶ 31), stating an intention at sonic future point to sue the individual officers responsible; and ultimately demanding $1,000,000 in damages. The entire set of allegations is titled "As and for a First Claim for Relief." and appears to attempt to state a federal cause of action pursuant to 42 U.S.C. § 1983.
The complaint also includes a stray reference to 42 U.S.C. § 1981, which prohibits both public and private acts of racial discrimination. The complaint contains no allegation of racial discrimination nor does it identify the race of any of the participants. The complaint thus does not state any kind of claim under § 1981.
The primary thrust of these allegations appears to be that plaintiff was unconstitutionally arrested and detained without probable cause. But, as noted above, plaintiff also alludes to causes of action for assault and battery, false arrest, and malicious prosecution, all common-law torts under New York State law. Notably, however, the amended complaint, ostensibly drafted by a lawyer does not set forth actual facts supporting tnost of these ancillary claims, and plaintiff's original pro se complaint, no matter how liberally construed, says nothing that might indicate a claim for excessive force in violation of plaintiff's constitutional rights, or any claim that would sound in assault or battery.
Plaintiff's Arrest(s)
Plaintiff's twelve-page long New York rap sheet, dating back to 1969, details numerous arrests and at least a dozen convictions under five or more different names, mostly for property crimes of one or another description. With commendable diligence, counsel for defendant has attempted to unearth the state court records underlying the arrest(s) at issue in plaintiff's complaint. This was evidently no easy task, in light of the number of charges brought against plaintiff at various times. It appears, however, that plaintiff was indeed arrested in the early morning hours of November 10, 1995. A complaint was filed later that day, charging him with burglary and possession of stolen property. In the complaint, Police Officer Douglas Hicks swore, among other things, that he was informed by an apparent bystander witness that at about 2:27 am., the witness had observed Hall and another man inside a building on First Avenue, where a candy store is located, and that Hall and his companion had removed several cases of beverages from the building and put them into a car. The officer further averred that another witness, the owner of the store, advised that neither Hall nor the other man had permission to enter or remain in the premises or to possess the beverages. The complaint also described the burglary the previous night of two fast-food restaurants, and alleged that Hall had confessed to having driven three unidentified persons to the location of those burglaries, and observed the break-ins, for which he was paid $75.00. (Stern Aff. Ex. I.)
The complaint does not allege that Hall confessed to the candy store theft.
On November 21, 1995, a grand jury indicted Hall and his co-defendant on charges of burglary, possession of stolen property and possession of burglar tools, arising from the First Avenue incident. (Stern Aff. Ex. J.) Oddly, the City has not been able to locate a record of any disposition of' this indictment, and therefore accepts for purposes of this motion plaintiff's allegation that the indictment was dismissed and plaintiff released from custody on June 4, 1998.
During approximately the same period in 1995, plaintiff had other cases pending. On August 25, 1995, he was arrested and charged with burglary, having been found hiding inside a residential building in the midnight hours by the building's superintendent. (Stern Aff. Ex. E.) That charge was dismissed in February of 1996 (Stern Aff. Ex. F.) Plaintiff was also arrested at some point on a bench warrant from New Jersey. Although the complaint in that matter does not bear a date (Stern Aff. Ex. G.). the disposition sheet recording its dismissal on December 22, 1995, indicates that it was filed on November 10, 1995, at the same time as the arrest discussed in the text (Stern Aff. Ex. H) Though they are discussed at length in defendant's papers, it is not clear that these arrests bear on the validity of Hall's original arrest and extended detention, which appear to have been based on the November 10, 1995, burglary.
Discussion
I. Statute of LimitationsThe statute of limitations applicable to § 1983 claims for arrest without probable cause is borrowed from the state's residual personal injury statute of limitations — in New York, three years Owens v. Okure, 488 U.S. 235, 251 (1989). Defendant contends that any claim arising from plaintiff's arrest on November 10, 1995, accrued on that date, citing Covington v. City of New York, 171 F.3d 117 (2d Cir. 1999), and therefore that the complaint filed on February 9, 1999, was untimely (Def. Mem. at 4 ) But defendant appears to be wrong about both the beginning and the end of the limitations period.
First contrary to defendant's argument. Covington does not hold that constitutional claims for arrest without probable cause simply accrue on the date of the arrest. That position was persuasively advocated by Judge Glasser in dissent. See Covington, 71 F.3d at 125-29. But the majority opted for a more complicated rule, holding that the Supreme Court's decision in Heck v. Humphrey, 512 U.S. 477 (1994) — which held that a § 1983 cause of action that would impugn the validity of a state criminal conviction does not accrue until the criminal proceedings terminate in defendant's favor — can apply to certain claims for false arrest. As the Court of Appeals majority put it, "[t]he inquiry as to whether a recovery on the § 1983 false arrest claim in this case would necessarily imply the invalidity of any conviction or sentence resulting from the criminal proceedings against Covington is inherently a factual one." Covington, 171 F.3d at 122. Citing Woods v. Candela, 47 F.3d 545 (2d Cir. 1995) ("Woods II"), the Court observed that, at least where the facts supporting a false arrest claim had led to the suppression of evidence and dismissal of the charge against a criminal defendant, the false arrest claim would not arise until the dismissal of the underlying criminal charge. Covington, 171 F.3d at 123.
Thus, Covington's actual holding is more limited than the defendant suggests. Under Covington, a wrongful arrest claim would not necessarily undermine a criminal conviction, and would therefore accrue at the time of the arrest, "if there were independent evidence upon which a conviction could be obtained that was not in any way tainted by the unlawful arrest. On the other hand, in a case where the only evidence for conviction was obtained pursuant to an arrest, recovery in a civil case based on false arrest would necessarily impugn any conviction resulting from the use of that evidence." Covington, 171 F.3d at 123 (emphasis in original). See also Amaker v. Weiner, 179 F.3d 48, 52 (2d Cir. 1999) ("where the viability of the plaintiff's claim depends on his conviction being invalidated, the statute of limitations begins to run upon the invalidation, not the time of the alleged government misconduct").
The unworkability of this rule is signaled by the result in Covington itself, where the Court of Appeals conceded that it was "unable to determine" how the rule applied, having insufficient information in the record before it as to what "evidence . . . might have been available" against Covington in the criminal case Covington, 171 F.3d at 123. The Court does not pause to pity the would-be plaintiff's effort to determine how long he has to bring a suit. Nor does the Court concern itself with the challenge to the district court that must now determine not a straightforward question of whether three years has past since a police office made a decision to arrest, which can be judged from the undisputed date of arrest and the date suit was filed, but the more convoluted question, rarely to be conclusively answered by the paper record, whether a challenge to the legality of the arrest might have led to the suppression of critical evidence in the case. In the instant matter, for example, even after discovery and a diligent search by the authorities, the record does not disclose why, or even precisely when, the criminal case was dismissed, and certainly does not reveal in any conclusive way whether any evidence was seized at the time of arrest or how important that evidence might have been to the prosecution's case. The criminal complaint appears to disclose that there were witnesses who could have provided testimony against plaintiff had the case gone to trial, but the record does not disclose what became of those witnesses, what led the officer initially to arrest plaintiff, or whether anything was seized from him at the time of the arrest. Given that, at least according to the officer's complaint, it does not appear that the "only evidence for conviction was obtained pursuant to [plaintiff's] arrest," id. (emphasis in original), this Court would be inclined to find that the cause of action accrued on the date of arrest, but given Covington, that is hardly a foregone conclusion.
Nor is it so clear when the case was filed, for purposes of the statute of limitations. Assuming the cause of action accrued on November 10, 1995, defendant had until November 9, 1998, to bring the action. As defendant notes, the complaint here was filed on February 9, 1999, after the limitations period so calculated would have expired. But plaintiff's original pro se complaint was actually received by the Court's pro se office on October 8, 1998, within the three-year limitations period even accepting defendant's view of when that period began to run, and was signed and dated by plaintiff even earlier. Because prisoners without legal representation cannot effect filing of a suit except via the prison authorities, an action by a pro se prisoner is deemed to run from the time his petition is given to those authorities to be mailed. Tapia-Ortiz v. Doe, 171 F.3d 150, 152 (2d Cir. 1999). In this case, the record does not reflect whether Hall was incarcerated in September and October of 1998. Accepting arguendo plaintiff's claim that the November 1995 burglary charges were dismissed in June of 1998, he apparently was no longer then incarcerated on those charges. But his rap sheet appears to reflect a further arrest in August 1998 for an unspecified "violent felons," leading to an apparent indictment on November 2, 1998. No further disposition data appears in the record. (Stern Aff. Ex. K.) It thus appears reasonably likely that plaintiff's complaint was filed from state detention, in which case it would be deemed filed on whatever date before October 8, 1998, that it was mailed to the Court.
Accordingly, material issues of fact exist about both the accrual date and the date of filing that prevent an authoritative conclusion that the petitioner's challenge to his arrest can be dismissed as untimely.
II. Failure to State a Claim
Defendant further argues that plaintiff's claim must be dismissed because there was probable cause for his arrest. The motion here must be treated as one for summary judgment, since plaintiff's original and amended complaints, fairly interpreted, allege that the arresting officers did not have probable cause. So treated, however, the motion is meritorious.
Defendant provides documentary evidence that appears to establish probable cause. The criminal complaint sworn to by the officer in 1995 alleges that an eyewitness observed Hall removing property from a premises at about two o'clock in the morning, and that the owner of the premises stated that Hall had no authority to be there or to remove the property. (Stern Aff. Ex. I.) This constitutes ample probable cause to arrest Hall for burglary Moreover, a grand jury subsequently indicted Hall for burglary, establishing a presumption that, at least as of the time that criminal prosecution was instituted, probable cause existed. (Stern Aff Ex. J.) See Bernard v. United States, 25 F.3d 98. 104 (2d Cir. 1994).
In almost three years of desultory litigation, plaintiff has not presented any evidence whatever to cast any doubt on the officer's account of the evidence that justified his arrest. He has instead rested on his own simple assertion that the charges were "false" (Compl. at 5), and his lawyer's scarcely more detailed claim that the arrest was made "in bad faith, without probable cause and without legally sufficient justitication." (Am. Compl. ¶ 17.) Plaintiff has provided no evidence, by way of document or affidavit, disputing the information provided by the defendant, and has avoided appearing for a deposition. As a capstone to this pattern of litigation by avoidance, he has declined even to respond in any way to the present motion to dismiss, let alone to provide any evidence to support his allegations or refute defendant's prima facie showing of probable cause.
Under these circumstances, plaintiff has failed to provide any evidence suggesting that there is an issue of fact regarding probable cause for his arrest, and judgment for defendant dismissing the complaint is appropriate.
In addition to the claim of arrest without probable cause, defendant also addresses what it takes to be claims of excessive force and malicious prosecution. As already noted, plaintiff's pro se complaint makes no allegations that can in any way be construed as alleging the use of excessive force by the arresting officer or anyone else, and the counseled amended complaint neither makes any factual allegations regarding the use of force nor makes a federal constitutional claim of this nature. The bare conclusory references in the amended complaint to "assault" and "battery," without any supporting facts, might be sufficient in a pro se complaint to raise the issue of excessive force, but in a document prepared by counsel less liberal interpretation is in order. Accordingly, I find that neither complaint states a constitutional cause of action for excessive force in violation of the Fourth Amendment. As to the claim of malicious prosecution, the Supreme Court has rejected the claim that the Constitution provides any protection against the institution of a prosecution without probable cause, separate and apart from the Fourth Amendment's protection against unreasonable seizure discussed above. Albright v. Oliver, 510 U.S. 266, 274-75 (1994). To the extent that plaintiff seeks to invoke common-law tort causes of action under the law of New York, the Court declines to exercise supplemental jurisdiction over such claims, given the dismissal of the only federal claim asserted. See 18 U.S.C. § 1367(c)(3).
III. Municipal Liability
Judgment for defendant is also appropriate on another ground. Plaintiff has sued the City of New York. Despite much language in the amended complaint threatening to sue various "John Doe" police officers, after the close of discovery and the provision by the City of documents revealing the identity of the arresting officer, the City remains the only defendant named in the case, and plaintiff has made no move to amend the complaint or otherwise name any individual defendant. In order to prevail on a § 1983 claim against the City, plaintiff must plead and prove that a municipal policy, practice or custom caused a deprivation of his constitutional rights. Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690-91 (1978), Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983). "A single incident alleged in a complaint, especially if it involved only actors below the policymaking level, generally will not suffice to raise an inference of the existence of a custom or policy. See, e.g., City of Oklahoma City v. Tuttle, 471 U.S. 808, 823-24 (1985), Fiacco v. City of Rensselaer, 783 F.2d [319,] 328 [(2d Cir. 1986)]; Turpin v. Mailet, 619 F.2d 196, 202 (2d Cir. [1980]), cert denied, 449 U.S. 1016 (1980)."Dwares v. City of New York, 985 F.2d 94, 100 (2d Cir. 1993)
Plaintiff has neither presented any evidence that this single arrest resulted from any unconstitutional policy of the City of New York, nor made any effort to amend his complaint to sue any individual officers instead, now that the arresting officer has been identified. Therefore, dismissal of the claims against the City, the only claims that have been made in the case, is required.
Conclusion
For the reasons set forth above, defendant's motion for judgment dismissing the complaint will be treated as a motion for summary judgment and granted, and judgment will be entered for the defendants.
SO ORDERED