Opinion
04 Civ. 6676 (RJH).
February 13, 2007
MEMORANDUM OPINION AND ORDER
Plaintiff Kelvin A. Leerdam brings suit pro se under 42 U.S.C. § 1983 against the New York City Police Department ("NYPD") and Lieutenant Jose Navarro and Detective Vincenzo Buscarnera in their personal and official capacity. Plaintiff alleges defendants violated his rights under the Fourth, Fifth and Fourteenth Amendments by falsely arresting him without probable cause. Defendants move for summary judgment under Rule 56 of the Federal Rules of Civil Procedure against plaintiff's complaint in its entirety. For the reasons stated below, defendants' motion [31] is granted.
BACKGROUND
The following facts are taken from plaintiff's deposition, defendants' affidavits, and various police and court records. On March 11, 2003, at approximately 6:45 p.m., Lieutenant Jose Navarro responded to a radio call of robbery in progress at 620 Lenox Avenue in Manhattan. (Navarro Aff. ¶ 2.) Upon arrival, Navarro encountered the victim, Zoe Marin, who had been robbed approximately one hour earlier. Marin informed the police that two men had displayed a firearm and took her purse. (Morgan Decl. Ex. F.) She gave a description of the perpetrators as two black males, both wearing black coats and caps, one short, the other tall, one light-skinned, the other dark-skinned; an officer radioed this description to the NYPD Radio Dispatcher who broadcast the description to all field units in the local precinct. (Navarro Aff. ¶ 3.) Shortly thereafter, another police officer radioed that he had stopped approximately eight to ten individuals fitting that description several blocks from the scene of the crime. ( Id. ¶ 4.) Plaintiff, wearing a black coat with a hood, was one of those individuals. (Leerdam Tr. 56:15-57:5.) Along with the other individuals, he was instructed to line up with his back against a wall. ( Id. 91:2-12.)
The victim, Marin, was driven to this location, where she remained in the car approximately fifteen feet from the wall, and viewed the individuals. (Navarro Aff. ¶ 5; Leerdam Tr. 91-93.) After plaintiff was asked to step forward and a conversation ensued between Marin and the police, Marin informed Navarro that plaintiff was one of the two individuals who had robbed her. (Navarro Aff. ¶ 6; Buscarnera Aff. ¶ 2; Leerdam Tr. 93-95.) One of the defendants states in his affidavit that he believed Marin to be a credible witness, and that he did not tell Marin, nor did he observe any other officer tell Marin, to identify plaintiff as the perpetrator. (Buscarnera Aff. ¶¶ 3, 4.) Plaintiff was thereafter placed under arrest. (Morgan Decl. Ex. E; Leerdam Tr. 95:11-20.) Navarro assigned Officer Vincenzo Buscarnera as the arresting officer; he completed the paperwork and sent it to the Assistant District Attorney, who sought an indictment. (Buscarnera Aff. ¶¶ 5, 6.) On March 20, 2003, a Grand Jury dismissed the charges against plaintiff. (Morgan Decl. Ex. J.)
Buscarnera has since become a detective. (Buscarnera Aff. ¶ 1.)
Plaintiff testifies that he had been "harassed" by police officers several times in the past, in connection with a 1998 murder about which the officers believed he had information. In these exchanges, the officers had allegedly stopped him, questioned him, and illegally searched him. (Leerdam Tr. 34, 37.) However, plaintiff stated that defendants were not the same officers who had "harassed" him, although he believes he saw defendants talking to those officers in a restaurant. (Leerdam Tr. 39, 102.)
STANDARD OF REVIEW
Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In a motion for summary judgment, the Court must view the facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The moving party must demonstrate that no genuine issue of fact exists for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 331 (1986). If successful, the nonmoving party "may defeat summary judgment only by producing specific facts showing that there is a genuine issue of material fact for trial." Samuels v. Mockry, 77 F.3d 34, 36 (2d Cir. 1996).
In addition to their motion, defendants served upon pro se plaintiff a notice of the consequences of failing to oppose a motion for summary judgment, as required by Local Civil Rules 12.1 and 56.2. This notice explains to plaintiff that he may not rest on his pleadings in opposing a motion for summary judgment and warns plaintiff that his complaint may be dismissed without trial if he fails to respond. Plaintiff nonetheless failed to submit any opposition to this motion for summary judgment. Even so, a nonmoving party's failure to respond to a motion for summary judgment does not relieve the moving party of its burden on summary judgment. Instead, as the Second Circuit recently held, "Fed.R.Civ.P. 56 . . . does not embrace default judgment principles. Even when a motion for summary judgment is unopposed, the district court is not relieved of its duty to decide whether the movant is entitled to judgment as a matter of law." Vt. Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 242 (2d Cir. 2004).
DISCUSSION
Plaintiff alleges that defendants did not have probable cause to arrest him, and that therefore his arrest was false and improper. Defendants argue that since the undisputed facts support a finding of probable cause to arrest plaintiff, any claim for false arrest must be rejected as a matter of law. To state a claim for false arrest, a plaintiff must show that: "(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." Savino v. City of New York, 331 F.3d 63, 75 (2d Cir. 2003) (quoting Bernard v. United States, 25 F.3d 98, 102 (2d Cir. 1994)). The Second Circuit has stated clearly that there can be no federal civil rights claim for false arrest where the arresting officer had probable cause. See Savino, 331 F.3d at 76; Bernard, 25 F.3d at 102.
Courts have recognized that claims of false arrest in violation of the Fourth Amendment to the Constitution may be brought under § 1983. See Albright v. Oliver, 510 U.S. 266 (1994); Posr v. Doherty, 944 F.2d 91, 98 (2d Cir. 1991).
Probable cause to arrest exists when the officers have knowledge or reasonably trustworthy information sufficient to warrant a person of reasonable caution to believe that an offense has been committed by the person to be arrested. See Dunaway v. New York, 442 U.S. 200, 208 n. 9 (1979); Posr v. Court Officer Shield No. 207, 180 F.3d 409, 414 (2d Cir. 1999). The existence of probable cause is determined objectively — the officer's subjective beliefs and motivations at the time of arrest are irrelevant — based on the totality of the circumstances. See Illinois v. Gates, 462 U.S. 213, 230-32 (1983); Martinez v. Simonetti, 202 F.3d 625, 633 (2d Cir. 2000). Therefore, a probable cause determination must be made by considering what the officer knew at the time of the arrest and whether the officer was reasonable in relying on that knowledge. See Fox v. City of New York, No. 03 Civ. 2268 (FM), 2004 U.S. Dist. LEXIS 6844, 2004 WL 856299, at *5 (S.D.N.Y. Apr. 20, 2004).
Particularly relevant in this case, it is well-established that a law enforcement official has probable cause to arrest if he received "information from some person — normally the putative victim or an eye witness — who it seems reasonable to believe is telling the truth." Daniels v. City of New York, No. 03 Civ. 809 (GEL), 2003 U.S. Dist. LEXIS 19765, 2003 WL 22510379, at *3 (S.D.N.Y. Nov. 3, 2003); accord Martinez, 202 F.3d at 634; Singer v. Fulton County Sheriff, 63 F.3d 110, 119 (2d Cir. 1995) (arresting officer may rely upon victim's information absent circumstances raising doubts as to victim's veracity). On the undisputed record before the Court, the officers clearly had probable cause to arrest plaintiff based on the totality of information available to them. Plaintiff was detained several blocks away from the scene of the crime, within one hour of the crime, wearing clothes that matched the description given by the victim. The victim made a positive identification of plaintiff at the "show-up," chosen from among eight to ten suspects. She was in close proximity to plaintiff and the lighting conditions were good. (Leerdam Tr. 94-95; Navarro Aff. ¶ 5.) The police believed the victim to be credible and had no apparent reason to doubt the victim's truthfulness. (Buscarnera Aff. ¶ 4.) It was thus reasonable for the police to believe she was truthfully and accurately identifying the perpetrator. The officers therefore had probable cause to arrest plaintiff and plaintiff's claim for false arrest must be dismissed as a matter of law.
Defendant has also sued the NYPD, but the NYPD is not a suable entity. See New York City Charter, Ch. 16, § 396; Rossi v. New York City Police Department, No. 94 Civ. 5113 (JFK), 1998 U.S. Dist. LEXIS 1717, 1998 WL 65999, at *5 (S.D.N.Y. Feb. 17, 1998) ("[T]he New York City Police Department is an organizational subdivision of the City of New York, lacking independent legal existence and as such is not a suable entity."). Even if plaintiff had properly named the City of New York as a defendant, he has not alleged any official policy or custom that caused his constitutional injury, nor demonstrated that any individual decision-maker violated his rights, and therefore any claims against the city would be dismissed. See Monell v. Dep't of Social Servs., 436 U.S. 658, 694-95 (1978).
CONCLUSION
For the foregoing reasons, defendants' motion for summary judgment [31] is granted and plaintiff's complaint [2] is dismissed in its entirety with prejudice. The Clerk of the Court is directed to close the case.SO ORDERED.