Summary
noting that "probable cause" is known as "reasonable cause" under New York law
Summary of this case from Palmieri v. Town of BabylonOpinion
00-CV-6333 CJS
December 23, 2002
Jeffrey Wicks, Esq., BANSBACH, ZOGHLIN, WICKS WAHL, P.C., for the Plaintiff.
Mary Elizabeth Magee, Esq., CITY OF ROCHESTER LAW DEPARTMENT, for Defendants, City of Rochester, Rochester Police Department and Brian Tucker.
Herbert J. Lewis, Esq., for Defendant, Anderson.
DECISION AND ORDER
This case, alleging civil rights and state tort claims against the defendants, is before the Court on defendants' motions for summary judgment. For the reasons stated below, the Court grants defendants' applications.
SUMMARY JUDGMENT STANDARD
The standard for granting summary judgment is well established. Summary judgment may not be granted unless "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). A party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists. See Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970). "[T]he movant must make a prima facie showing that the standard for obtaining summary judgment has been satisfied." 11 MOORE'S FEDERAL PRACTICE, § 56.11[1][a] (Matthew Bender 3d ed.). That is, the burden is on the moving party to demonstrate that the evidence creates no genuine issue of material fact. See Amaker v. Foley, 274 F.3d 677 (2d Cir. 2001); Chipollini v. Spencer Gifts, Inc., 814 F.2d 893 (3d Cir. 1987) (en banc). Where the non-moving party will bear the burden of proof at trial, the party moving for summary judgment may meet its burden by showing the evidentiary materials of record, if reduced to admissible evidence, would be insufficient to carry the non-movant's burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
Once that burden has been met, the burden then shifts to the non-moving party to demonstrate that, as to a material fact, a genuine issue exists. FED. R. CIV. P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). A fact is "material" only if the fact has some affect on the outcome of the suit. Catanzaro v. Weiden, 140 F.3d 91, 93 (2d Cir. 1998). A dispute regarding a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. In determining whether a genuine issue exists as to a material fact, the court must view underlying facts contained in affidavits, attached exhibits, and depositions in the light most favorable to the non-moving party. U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962). Moreover, the court must draw all reasonable inferences and resolve all ambiguities in favor of the non-moving party. Leon v. Murphy, 988 F.2d 303, 308 (2d Cir. 1993); Anderson, 477 U.S. at 248-49; Doe v. Dep't of Pub. Safety ex rel. Lee, 271 F.3d 38, 47 (2d Cir. 2001); International Raw Materials, Ltd. v. Stauffer Chemical Co., 898 F.2d 946 (3d Cir. 1990). However, a summary judgment motion will not be defeated on the basis of conjecture or surmise or merely upon a "metaphysical doubt" concerning the facts. Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991) (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)); Knight v. United States Fire Ins. Co., 804 F.2d 9 (2d Cir. 1986). Rather, evidentiary proof in admissible form is required. FED. R. CIV. P. 56(e). Furthermore, the party opposing summary judgment "may not create an issue of fact by submitting an affidavit in opposition to a summary judgment motion that, by omission or addition, contradicts the affiant's previous deposition testimony." Hayes v. New York City, Department of Corrections, 84 F.3d 614, 619 (2d Cir. 1996).
With regard to the pendent state law claims, it is well settled
In applying pendent jurisdiction, federal courts are bound to apply state substantive law to the state claim. See United Mine Workers, 383 U.S. [715] at 726, 86 S.Ct. at 1139 [1966]; see also Van Gemert v. Boeing Co., 553 F.2d 812, 813 (2d Cir. 1977) ("It is the source of the right, not the basis of federal jurisdiction, which determines the controlling law.") This includes any restrictions set by the state on whether a plaintiff may bring a court action regarding the claim. If a state would not recognize a plaintiff's right to bring a state claim in state court, a federal court exercising pendent jurisdiction, standing in the shoes of a state court, must follow the state's jurisdictional determination and not allow that claim to be appended to a federal law claim in federal court. See Hunnewell v. Manufacturers Hanover Trust Co., 628 F. Supp. 759, 761 (S.D.N.Y. 1986).
Promisel v. First American Artificial Flowers, Inc., 943 F.2d 251, 257 (2d Cir. 1991).
BACKGROUND
The focal issue in this case is whether defendant Police Investigator Brian Tucker ("Tucker") had probable cause to arrest plaintiff on October 25, 1998, for the felonies of robbery, assault, or grand larceny. The determination of whether probable cause to arrest existed must be made on the basis of the information possessed or reasonably available to a law enforcement officer at the time of the arrest. See Lowth v. Town of Cheektowaga, 82 F.3d 563, 570 (2d Cir. 1996).
At approximately 11:45 p.m. on October 24, 1998, Rochester police officer Orlando Herandez ("Hernandez"), responded to 241 Ridgeway Avenue in the City of Rochester for a report of a fight. Chartier Aff. Ex. A at 4-5. As he was pulling up to 241 Ridgeway Avenue in his car, Hernandez was flagged down by defendant Alfred Anderson ("Anderson"), who was bleeding from his mouth. Anderson yelled to Hernandez, "[h]elp me. I just got jumped by these guys inside 241." Id. at 5. He then said to Hernandez, "they took my gun." Id. Hernandez put Anderson inside his car, and learned from him that he worked at Kodak with a man named "Dwayne" Rowe, who is the plaintiff in this action. According to Anderson, plaintiff had invited him to 241 Ridgeway Avenue to have a beer. Hernandez stated in his report that Anderson told him plaintiff had invited him several times previously, but Anderson kept refusing. Anderson also told Hernandez that plaintiff made his friend "Cassey" call Anderson to invite him over for a beer, and Anderson finally accepted. Id.
So spelled in Hernandez's report; the spelling of plaintiff's name in the caption of this case is Dewayne Rowe.
Anderson further related to Hernandez that when he arrived at the lower apartment of 241 Ridgeway at approximately 11:35 p.m., he was greeted at the door by Cassandra Fleig ("Fleig") and plaintiff. Anderson then stated that plaintiff began arguing with him. Anderson indicated that plaintiff told him, "you don't call me a punk at work." Anderson told Hernandez that he was then grabbed from behind by another male whom he did not know (subsequently identified as Girard L. Rowe ("Rowe")). Anderson also told Hernandez that while he was being held, plaintiff punched him in the mouth, causing his lip to bleed. After the punch, Anderson said that another male in the apartment joined in the fight, and all three males began beating him as he struggled to get out of the apartment through a rear door. Id. at 6. Anderson said that he managed to stumble out the door. He indicated that he ended up in the rear yard, at which time, the third male, identified as Robert E. Meadows ("Meadows"), began kicking him in the stomach. He further stated that Rowe hit him on the head with a hard object, causing him to become dazed and leaving a five-inch cut on his head.
Anderson then related to Hernandez that, while one of the males held him down, plaintiff began trying to grab his licensed pistol from his hip holster. Anderson said that plaintiff knew he carried a gun at all times, because Anderson had told plaintiff about the gun at work. Anderson informed Hernandez that plaintiff was able to wrestle the gun away from him, and that when he did so, plaintiff yelled out to the two other males, Rowe and Meadows, "I'm clear." Id. at 6. Plaintiff, according to Anderson, then ran towards the brown house next door, while Rowe and Meadows continued to beat him. Id. Anderson indicated that when Hernandez arrived in his police vehicle with the light shining, Rowe and Meadows ran into the rear door of 241 Ridgeway Avenue, and that he ran up to Hernandez's car yelling, "help me, police, help me." Id.
Hernandez then went inside 241 Ridgeway with another officer and placed plaintiff, along with Rowe and Meadows into custody without incident. As the three were taken out the front door, Anderson identified them as the men who assaulted him and who took his pistol. Chartier Aff. Ex. A at 7. The officers searched the area looking for the gun, but were unable to find it. Hernandez reported that Anderson did in fact produce a valid pistol permit listing the allegedly stolen gun. Id. at 7. Hernandez also reported that plaintiff, Rowe, and Meadows were all taken to the Public Safety Building and that other officers interviewed witnesses at the scene. Id.
Rochester Police Officer T. McCormark reported that he also responded to 241 Ridgeway Avenue for a call of three or four people fighting. Id. at 8, and he took a written "deposition" from next door neighbor, Richard Dalton ("Dalton"). In his deposition, Dalton stated that he resided at 237 Ridgeway Avenue and that he was upstairs in his room watching the weather at about 11:55 p.m. At that time, he stated that he heard a noise outside in the back, and that, since he had previously had items stolen from his shed, he ran downstairs to see what was happening. He said that once outside, he saw two or three guys hitting a third guy. Dalton stated that the guy receiving the blows bent down to pick something up, and that one of the other guys charged him, causing him to stumble back. He further indicated that the guy getting hit was larger than the other two, that he wore a Carhart jacket, and that he kept saying something about "coming around hanging out," and "I don't want no trouble." After he saw the bigger guy get hit, Dalton stated that he went inside his house and called 911. Id. at 20-21. He indicated, that while he was on the phone with 911, a police car drove up. Id. at 21. He said that he heard one of the women next door yell from the back porch, "get in the house before someone calls the cops." Id. at 9. Dalton also stated, in his deposition, that he remembered hearing a banging noise, that he thought it was a heater next door being thrown out. He indicated as well that he knew the neighbors next door a little bit through his children, but that was about it. Finally, he stated that he had seen "the police over there alot [sic]." Id. at 9.
The officer's first name is not listed in the report. Chartier Aff. Ex. A at 8.
Rochester Police Officer J.C. Hall ("Hall") also filed a report pertaining to this incident. Chartier Aff. Ex. A at 9. He took a written "deposition" from one occupant of 241 Ridgeway Avenue — Fleig. In her written deposition, Fleig stated that she resided at 241 Ridgeway Avenue in the downstairs apartment and that on Saturday night at about 8:00 p.m., she picked up her roommate's boyfriend somewhere on Genesee Street and returned to her residence. At the time, she said, her roommate, Sandy Emler ("Emler"), plaintiff and she, were also in the apartment. She said that at about 8:45 p.m., while they were watching television, Anderson paged plaintiff. Id. at 22. Fleig indicated that she called Anderson back, and that he asked what they were doing. She stated that Anderson "kinda [sic] invited himself over. . . ." Id. at 22. She further stated that after she got off the phone with Anderson, two of plaintiff's friends showed up. One was plaintiff's nephew and the other was a guy named Bobby. She said that some time passed, and then Anderson showed up. She indicated that he came to the back door while she and the others were sitting in the living room. Fleig stated that she went to answer the door and then related the following:
The officer's first name is not listed in the report. Chartier Aff. Ex. A at 9.
When [Anderson] walked in all of a sudden his attitude changed, he got nasty he started calling me whore. I have never met him face-to-face before only talked to him on the phone. [plaintiff] heard [Anderson] calling me all what he was saying, and he got up. [plaintiff] got up and said to [Anderson] "why you [sic] disrespecting this girl. This is her house." [Anderson] took a swing at plaintiff before that plaintiff said let[s] take this outside to talk about it. They were fighting in my kitchen then out on the porch then out to the backyard driveway area. All three guys went outside after [Anderson]. [plaintiff], [Rowe] and [Meadows] were all outside. I went into the bathroom with my daughter. I don't know where [Emler] went. They came out of the bathroom and all three guys walked back into the apartment. We sat down and started talking. The police told me there was a gun missing. I don't know if there was one. I never saw one.
Chartier Aff. Ex. A at 22. Hall also spoke with Anderson and noted in his report that Anderson was wearing an emopy holster. Chartier Aff. Ex. A at 9.
Tucker filed a report, reflecting information obtained by other officers, as well as some additional information. In his report, Tucker stated that he met with Dalton, and that Dalton consented to a search of his residence for the handgun, which was taken from Anderson, after a check of the yards proved negative. The gun, however, was not found inside Dalton's residence. Chartier Aff. Ex. A at 10. Tucker further reported that he met with plaintiff in the rear of a police car, advised him of his rights, obtained a waiver, and then spoke with him. Id. Tucker stated that plaintiff denied both assaulting Anderson and taking his gun. He did indicate that he worked with Anderson and knew he carried a gun, and for that reason would not fight with him. Plaintiff said that, while in the apartment, he just sat on the couch. Subsequently, Tucker obtained a consent to search 241 Ridgeway Avenue, and did so, but did not find a gun. Id.
Tucker then met with Rowe in the back of a police car and asked him for assistance in retrieving the gun. Id. at 11. Rowe stated he did not know where the gun was or that there even was a gun. Tucker then obtained a written "deposition" from Emler, plaintiff's girlfriend.
In her written deposition, Emler stated that she was at 241 Ridgeway that evening. Id. at 23. She indicated that when Anderson came to the back door, he started calling Fleig names. Emler said that plaintiff then got up and told Anderson not to "disrespect" Fleig and told him that he had better leave. Emler thought that Anderson had been drinking. She said that he took a swing at plaintiff, a fight broke out, and that Anderson was pushed out of the house. She then stated,
They fought briefly in the driveway behind the house and [Rowe] and [Meadows] were just there to step in if something happened. I yelled to them to come back inside and the three of them came back inside through the rear door and [Anderson] started down the driveway towards the street. We all sat down in the living room, then about five minutes later the police arrived and they put [plaintiff], [Rowe] and [Meadows] into police cars. They also asked about a gun. I never saw a gun and I don't think [Anderson] had a gun. All I can say is that [plaintiff], [Rowe] and [Meadows] were just sticking up for [Fleig].
Chartier Aff. Ex. A at 23-24.
Tucker went to the Public Safety Building where he met with Anderson and obtained a written deposition from him. Because of the importance of Anderson's deposition to the outcome of this motion, the Court will quote it in its entirety:
That I am 50 years old and I live at the above address. I am employed at Kodak and have been for the past 29 years. About one year ago this guy Dewayne started working there also, but I did not have much contact with him back then. I also own a restaurant at 211 Genesee Street and back then Dewayne came by the restaurant a couple of times and was asking me to sell him one of my guns or get him a stolen gun. I refused to do this back then. After that he got laid off for 6 months and he just started back at Kodak a couple of weeks ago. He seemed to take a liking to me and he kept coming around. He would also brag to the other guys in Kodak that he had all these girls and they would do anything for a hit of cocaine. I got in his face and told him he was nothing but a punk and was all talk, because if he was that big he would not be working at Kodak for $6. an hour. He just played that off. Then earlier this week he started having this girl, Cassey, call me and she kept asking me to come over for a beer. I refused but she kept calling and Dewayne also kept bugging me about getting together for a beer. He also came by the restaurant again and wanted a gun. While he was in the restaurant this guy came by trying to sell a 44 mag. with a 8 inch barrel. He also had a half a box of shells. I refused to buy the gun but Dewayne must have bought it. He claimed that he got it for around a $100. He even brought one of the shells into work, the other day, to prove to me that he bought the gun. Last night he was bugging me again about getting together over at that girl, Cassey's, house on Ridgeway and I was not sure if I would go. But I worked all day at the restaurant and I decided I might go have a beer to get these people off my back. Cassey called me again and said that I should come over and to use rear door because the front door did not open. I ended up driving over there around midnight or shortly after that. I walked up the driveway to 241 Ridgeway and I knocked on the door. This blond girl answered the door and Dewayne came walking into the kitchen from the livingroom. I said "hi and whats up" and he said "not much that he was just hanging out." There was another guy that was in the kitchen and he came up behind me and grabbed me from behind. Dewayne then swung at me and caught me in the face. I tried to block the punch and pull away from the guy that grabbed me. I started yelling "what's going on here" and Dewayne said "you don t call me a punk in front of the guys". I said why are you doing this to me and they kept after me. The blond[e] was yelling for them to take this outside. I tried to break free and I fell down the back porch steps and scraped my leg up. This third guy joined them and he came after me too. I did not know either of these guys. I should have fought back, but I just tried to fend them off and get away. The light skinned guy kicked me in the stomach after I fell down the stairs and the other guy hit me on the top of the head with something hard and I was dazed by that. The blow to my head caused me to bleed and I have to go to the hospital to get stitches. One guy was holding me down and Dewayne was trying to pull my hand away to get my gun. I always carry a gun and Dewayne knows this from being around me. I had my hand on the frame of the gun trying to hold onto it while this was happening. The gun was in [sic] holster and my belt goes over the holster to hold the gun in place. Dewayne told the other two "don't let him get that gun, strip that gun, get the gun". The light skinned guy struck me in the shoulder with something hard to get my hand off of the gun. Dewayne was then finally able to get the gun from my side and I saw him pick it up in the leaves and he said to the others that he was clear. He then ran towards the brown house next door. While this was all happening I saw the rear door was open on that home and I saw a white guy in the door, who said something, but I[']m not sure what it was he said. The other two guys continued to kick me for what seemed like a minute or two then I saw a police car shine his light and I yelled out for help. The other two ran back inside the rear door of the blonde[']s house. Dewayne never came back by me during this and he must have gone around the brown house to get back to the blonde[']s house. Then he must have gotten back in by using the front door. The gun that they took from me was a Tauras 9MM 10 round knickel [sic] plated seri[a]l number TLA31785, which is worth $460.00. I now feel that they set me up and their only reason to have me come over was to jump me and to take my gun and maybe even kill me. Why else would Dewayne do this to me. He works with me and knows I would identify him to the police for taking my gun. At no time did I give any of these guys cause or permission to attack me or steal my property. While we were at the scene the police walked Dewayne and the other two guys out of the front door of the blonde[']s apartment and I recognized each of them from inside the police car where I was sitting and I told the officer that they were the guys that attacked me and took my gun. The police told me that their names where Dewayne Rowe, Girard Rowe and Robert Meadows. Robert Meadows was the light skinned guy that I referred to while this was happening.
Chartier Aff. Ex. A at 18-19. Tucker also observed that Anderson was bleeding from a head injury.
Tucker stated that he then interviewed Rowe and obtained a statement from him. In that statement, Rowe said that on Saturday, October 25, 1998, while visiting his grandmother, he was invited by plaintiff, his uncle, to a house on Ridgeway Avenue. Id. at 26. He indicated that he and his other uncle, Meadows, obtained a ride to the Ridgeway Avenue house, and, within approximately one-half hour of their arrival, there was a knock on the door. Rowe said that an older black man entered and started having words with Fleig. Rowe related that he had just come out of the bathroom, and that plaintiff was in the kitchen talking with the man. Rowe said he saw the man take a swing at plaintiff and that plaintiff swung back. He indicated that he could hear Fleig saying take it outside and stated, "we ended up on the porch. I was pushing the guy [Anderson] out [of the door]. Then they fell down the stairs and on to the driveway." Id. at 26. He stated that they rolled around on the ground, and then Anderson was told to leave, however, he just stood there and mumbled. Rowe stated that was when a police car came up, and at that point, he, Meadows and plaintiff went back into the house. Rowe stated that he never saw a gun or even heard any mention of a gun until after the police put them in cars and asked them about it. He ended his statement with, "we never took the guy[']s gun."
Tucker then took a statement from Meadows, who said that he had been at his mother's house when plaintiff invited him and Rowe over to his girlfriend's house on Ridgeway Avenue. Meadows stated that he and Rowe got a ride and picked up some beer on the way, and that a short time after they arrived at Ridgeway, there was a knock at the back door. Meadows stated,
this guy came in and there seemed to be a problem between him and my brother [plaintiff]. I don't know what the relationship is[,] but it seemed to be about the girl that lived there. I did not pay much attention, but then they grabbed each other and [Rowe] jumped up and headed towards the kitchen. I also got up. They were struggling pretty good for the girl was yelling for them to take outside. I opened the door and ended up in the enclosed porch. Then they fell down the stairs into the driveway. I saw [Rowe] pulling [plaintiff] off of the guy and I ended up on the ground in the fight as well. Both [plaintiff] and the other guy were throwing swings. Somehow the guy ended up back on his feet we kept [plaintiff] away from him and he told him to leave. He put my hat on his head and I took back. Then he started asking where his gun was. I never saw a gun and I told him I did not know what he was talking about. I then walked back in the rear door as I saw a police car pull up out front. I don't know how I got caught up in this and I do not know what it is all about. I never stole a gun or even saw one for that matter. I also never saw anyone strike this guy in the head with any hard objects. . . . I also want to say that I was inside the house with [plaintiff] and [Rowe] after the fight and I never saw them talking about hiding anything or trying to get rid of a gun.
Chartier Aff. Ex. A at 25.
Tucker concluded his report by relating, "I also met with [plaintiff] again to interview him about the incident and he again denied any involvement in anything. I noted at that time that his knuckles were bloody and his glasses were broken and I had the officers collect his glasses and take photos of his injuries. I then completed the information and the three (S)'s were transported to booking. Case closed by arrest." Id. at 11.
Tucker charged plaintiff with the felonies of Robbery in the First Degree (New York Penal Law § 160.15(2)), Assault in the Second Degree (New York Penal Law § 120.05(6)), and two counts of Grand Larceny in the Fourth Degree (New York Penal Law § 155.30(5) (7)). Tucker Aff. ¶ 16 and Ex. A at 17. Subsequently, a Monroe County Grand Jury dismissed the original felony charges against plaintiff, but returned a prosecutor's information charging him with the class A misdemeanor of Assault in the Third Degree. On April 16, 1999, plaintiff was acquitted of that charge after trial. Magee Aff. at ¶ 9 and Ex. F.
Plaintiff commenced this suit by filing a Complaint with this Court on July 14, 2000. In his Complaint, plaintiff asserts seven causes of action and on each claim seeks compensatory damages in the amount of $500,000 and seeks punitive damages in the amount of $500,000 against each defendant, along with reasonable attorney's fees, costs and disbursements. His first cause of action is for malicious prosecution against all defendants. His second cause of action is for false arrest, again against all defendants. His third cause of action is against the City of Rochester, the Rochester Police Department, and Tucker for false imprisonment. His fourth cause of action is against the City of Rochester, the Rochester Police Department and Tucker for intentional infliction of emotional distress and his fifth cause of action is against the same defendants for negligent infliction of emotional distress. His sixth cause of action is against the City of Rochester, the Rochester Police Department and Tucker for negligent supervision and training. Finally, his seventh cause of action is against the City of Rochester, the Rochester Police Department and Tucker for violations of his civil rights under 42 U.S.C. § 1983.
Plaintiff states the jurisdiction for this action is pursuant to 42 U.S.C. § 1983 and 1988 and the Fifth, Sixth and Fourteenth Amendments to the United States Constitution as well as 28 U.S.C. § 1331 and 1341(30) and (4). Plaintiff alleges that he has complied with New York General Municipal Law § 50-e and further alleges compliance with the statute of limitations set forth in N.Y. C.P.L.R. § 214 (McKinney 1990 Supp. 2001).
Section 1341 of Title 28 prohibits district courts from enjoining, suspending, or restraining the assessment, levy or collection of any tax under State law under certain circumstances. It does not have any subdivisions. Reference in the Complaint to this statute is obviously an error. This Court exercises jurisdiction here pursuant to 28 U.S.C. § 1331 and 1367.
DISCUSSION
As a preliminary matter, plaintiff stated at oral argument that his causes of action for intentional and negligent infliction of emotional distress and negligent training and supervision (the Fourth, Fifth and Sixth causes of action) were withdrawn. Thus, the Court will address the remaining causes of action, below.
A. False Arrest and Unlawful Imprisonment Under New York and Federal Law
The Eastern District's decision in Mejia v. City of New York, 119 F. Supp.2d 232, 252-53 (E.D.N.Y. 2000), thoroughly lays out the New York and federal civil rights law relating to claims of false arrest and false imprisonment.
Under New York law, false arrest is considered to be a species of false imprisonment, and the two claims have identical elements. See Singer v. Fulton County Sheriff, 63 F.3d 110, 118 (2d Cir. 1995) (citing Broughton v. State, 37 N.Y.2d 451, 456, 373 N.Y.S.2d 87, 93, 335 N.E.2d 310 (1975)). Moreover, a "§ 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, 101 845, 852 (2d Cir. 1996). Therefore, the elements of a cause of action for false arrest under both 42 U.S.C. § 1983 and New York law are: "'(1) the defendant intended to confine [the plaintiff], (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not consent to the confinement and (4) the confinement was not otherwise privileged.'" Singer, 63 F.3d at 118 (quoting Broughton, 37 N.Y.2d at 456, 373 N.Y.S.2d at 93, 335 N.E.2d 310).
Where, as here, an arrest is made without a warrant, the existence of probable cause is an affirmative defense that must proved by the defendant. See Broughton, 37 N.Y.2d at 458, 373 N.Y.S.2d at 95, 335 N.E.2d 310; see also Weyant, 101 F.3d at 852 (holding that "existence of probable cause to arrest constitutes justification and 'is a complete defense to an action for false arrest'" (quoting Bernard v. United States, 25 F.3d 98, 102 (2d Cir. 1994))). Probable cause, or reasonable cause as it is known in New York law, "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 about to be arrested has committed or is committing a crime." Weyant, 101 F.3d at 852 (citations omitted); see Raysor v. Port Auth. of N.Y. N.J., 768 F.2d 34, 39-40 (2d Cir. 1985) (holding that New York law "reasonable cause" standard is equivalent to Fourth Amendment's "probable cause" standard). Since the law seeks to protect citizens against unlawful arrest, the determination of whether probable cause existed must be made on the basis of the information possessed or reasonably available to the defendant at the time of the arrest. See Lowth v. Town of Cheektowaga, 82 F.3d 563, 570 (2d Cir. 1996). It is, therefore, axiomatic that subsequently discovered evidence cannot be used to cure an arrest that was made without probable cause. Cf. People v. Gomcin, 265 A.D.2d 493, 495, 697 N.Y.S.2d 93, 95 (2d Dep't 1999) (search incident to arrest) ("[I]t is beyond cavil that the fruit of a search incident to an arrest cannot be used to establish probable cause to arrest."); cf. also Johnson v. United States, 333 U.S. 10, 16-17, 68 S.Ct. 367, 370, 92 L.Ed. 436 (1948) (holding that reasoning which would "justify the arrest by the search and at the same time justify the search by the arrest . . . will not do").
Mejia v. City of New York, 119 F. Supp.2d 232, 252-53 (E.D.N.Y. 2000) (footnotes omitted).
In Singer v. Fulton County Sheriff, 63 F.3d 110, 118-19 (2d Cir. 1995), the Second Circuit observed:
There can be no federal civil rights claim for false arrest where the arresting officer had probable cause. See Bernard v. United States, 25 F.3d 98, 102 (2d Cir. 1994). Probable cause is established "when the arresting officer has 'knowledge or reasonably trustworthy information sufficient to warrant a person of reasonable caution in the belief that an offense has been committed by the person to be arrested.'" O'Neill v. Town of Babylon, 986 F.2d 646, 650 (2d Cir. 1993) (quoting Calamia v. City of New York, 879 F.2d 1025, 1032 (2d Cir. 1989)). . . .
An arresting officer advised of a crime by a person who claims to be the victim, and who has signed a complaint or information charging someone with the crime, has probable cause to effect an arrest absent circumstances that raise doubts as to the victim's veracity. See Hebron v. Touhy, 18 F.3d 421, 422-423 (7th Cir. 1994); Miloslavsky v. AES Engineering Soc., Inc., 808 F. Supp. 351, 355 (S.D.N.Y. 1992), aff'd, 993 F.2d 1534 (2d Cir.), cert. denied, 510 U.S. 817, 114 S.Ct. 68, 126 L.Ed.2d 37 (1993).
Singer, 63 F.3d at 118-19.
In Johnston v. Town of Greece, 983 F. Supp. 348 (W.D.N.Y. 1997), the court held that the existence of probable cause at the time of the plaintiff's arrest and prosecution is a complete defense to both false arrest and false imprisonment. In that regard, the court used this definition of probable cause:
Probable cause has been defined as the "facts and circumstances 'sufficient to warrant a prudent man in believing that the [suspect] had committed or was committing an offense.'" Gerstein v. Pugh, 420 U.S. 103, 111, 95 S.Ct. 854, 861, 43 L.Ed.2d 54 (1975) (citations omitted). Stated differently, probable cause exists where the arresting party possesses knowledge of facts, actual or apparent, strong enough to justify a reasonable man in the belief that he has lawful grounds for prosecuting the defendant in the manner complained of. See Rounseville v. Zahl, 13 F.3d 625, 629 (2d Cir. 1994). "Although an arrest cannot be based on a mere hunch . . . 'a probable cause determination does not require proof beyond a reasonable doubt, it is the mere probability of criminal activity, based on the totality of circumstances, that satisfies the Fourth Amendment.'" Dale v. Kelley, 908 F. Supp. 125, 133 (W.D.N.Y. 1995) (citations omitted), aff'd, 95 F.3d 2 (2d Cir. 1996). Indeed, the eventual disposition of the criminal charges is irrelevant to the probable cause determination.
Id. at 353.
B. Probable Cause
In the case before the Court, Tucker arrested plaintiff and filed a criminal complaint charging him with Robbery in the First Degree (New York Penal Law § 160.15(2)), Assault in the Second Degree (New York Penal Law § 120.05(6)), and two counts of Grand Larceny in the Fourth Degree (New York Penal Law § 155.30(5) (7)). Tucker Aff. ¶ 16 and Ex. A at 17. The elements of those offenses are:
Robbery in the first degree
A person is guilty of robbery in the first degree when he forcibly steals property and when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime:
* * *
2. Is armed with a deadly weapon. . . .
Assault in the Second Degree
A person is guilty of assault in the second degree when:
* * *
6. In the course of and in furtherance of the commission or attempted commission of a felony, other than a felony defined in article one hundred thirty which requires corroboration for conviction, or of immediate flight therefrom, he, or another participant if there be any, causes physical injury to a person other than one of the participants. . . .Grand Larceny in the Fourth Degree
A person is guilty of grand larceny in the fourth degree when he steals property and when:
* * *
5. The property, regardless of its nature and value, is taken from the person of another; or
* * *
7. The property consists of one or more firearms, rifles or shotguns, as such terms are defined in section 265.00 of this chapter. . . .
Following oral argument, the Court asked the parties to specifically address two issues: first, what impact, if any, the Grand Jury's finding of probable cause for Assault in the Third Degree had on plaintiff's claims of false arrest and false imprisonment; and second, what impact, if any, plaintiff's parole detainer had on his false imprisonment claim. Tucker and the City of Rochester and its police department ("City Defendants") submitted authority only on the first issue. They cited two cases, Luthe v. City of Cape May, 49 F. Supp.2d 380, 390-91 (D.N.J. 1999), and Lieberman v. Dudley, No. 3:95CV2437(AHN), 1998 U.S. Dist. LEXIS 16809, *5 n. 1, 1998 WL 740827, *5 n. 1 (D.Conn., Jul. 27, 1998). In Luthe, the district court held that even if the police did not have probable cause to arrest the plaintiff for the felony crime of burglary, they had probable cause to arrest him for criminal mischief and harassment, arising out of the same incident, and therefore, granted the defendants' motion for summary judgment on the unlawful arrest and false imprisonment causes of action. In Lieberman, the court held,
As to the first issue, since it is well-settled that the return of an indictment by a grand jury precludes a cause of action for either false arrest or false imprisonment, the Court questioned whether the grand jury's return of a prosecutor's information had a similar effect. As to the second issue, the Court observed that from the point the prosecution decided not to proceed with a preliminary hearing the only thing holding plaintiff in custody was a parole detainer lodged as a result of his arrest. Since the parole detainer was followed by an administrative hearing revoking plaintiff's parole based on the conduct for which he was arrested, the Court questioned what damages flowed from plaintiff's arrest, even if it was unlawful.
[p]robable cause requires only a probability or substantial chance of criminal activity. But a finding of probable cause is not contingent on whether the officer articulated the correct basis for the arrest. Thus, the jury was charged in this case that even if the defendants did not have probable cause to arrest the plaintiff for interference with a police officer, the arrest could be found legal if there was probable cause to arrest the plaintiff on the lesser included offense of disorderly conduct.
Id. This Court considers the decisions in these cases well reasoned and concludes that an officer need only have probable cause to arrest for lesser conduct encompassed within the original charge or charges. Here, the Grand Jury's finding is dispositive of the City Defendants' claim that Tucker had probable cause to arrest plaintiff for Assault in the Third Degree, a charge clearly included within the conduct for which plaintiff was originally arrested.
There is no issue here implicating New York's prohibition that a police officer may not arrest for a violation (as opposed to a crime) not committed in his presence. N.Y. CRIM. PROC. LAW § 140.10(1)(b).
Plaintiff submitted a memorandum as to both issues raised by the Court. As to the first, he relies on People v. Jensen, 86 N.Y.2d 248, 251-52 (1995), which held that, "[t]he Grand Jury must have before it evidence legally sufficient to establish a prima facie case, including all the elements of the crime, and reasonable cause to believe that the accused committed the offense to be charged. Id. (citation omitted). However, the Court finds his reliance misplaced since whether a Grand Jury indictment would have been supported by legally sufficient evidence here does not address the question posed.
On the second issue, plaintiff asserts that whether he would have been held in jail on a parole detainer, if the arrest charge had been only for a misdemeanor, is speculative. However, where the non-moving party will bear the burden of proof at trial, the party moving for summary judgment may meet its burden by showing the evidentiary materials of record, if reduced to admissible evidence, would be insufficient to carry the non-movant's burden of proof at trial. Celotex Corp., 477 U.S. at 327. Plaintiff has submitted no evidentiary proof in admissible form from which the Court could conclude that he would be able to show that, absent an arrest on felony charges, he would not have been detained for a parole violation.
Anderson also submitted authority in response to the Court's queries. Specifically, he cited Gisondi v. Town of Harrison, 72 N.Y.2d 280 (1988), where the New York Court of Appeals held,
The plaintiff could not prevail on either cause of action [false arrest and imprisonment and malicious prosecution] if the police had probable cause to believe that the defendant, the plaintiff in the civil action, was the person who committed the rape (Broughton v. State of New York, 37 N.Y.2d 451, 373 N.Y.S.2d 87, 335 N.E.2d 310). In this case the victim positively identified the plaintiff and the car, and two courts held in successive proceedings that probable cause existed to arrest the plaintiff and hold him for the Grand Jury. Under these circumstances there is a presumption that the police acted with probable cause (Colon v. City of New York, 60 N.Y.2d 78, 468 N.Y.S.2d 453, 455 N.E.2d 1248; Broughton v. State of New York, supra, 37 N.Y.2d at 458, 373 N.Y.S.2d 87, 335 N.E.2d 310; Langley v. City of New York, 34 N.Y.2d 885, 359 N.Y.S.2d 281, 316 N.E.2d 716). That presumption is not overcome by the fact that the Grand Jury later voted to dismiss the charges (cf., Colon v. City of New York, supra, 60 N.Y.2d at 84, 468 N.Y.S.2d 453, 455 N.E.2d 1248). It could only be rebutted by proof the court orders were the result of fraud, perjury or the suppression of evidence by the police (Colon v. City of New York, supra, at 82-83, 468 N.Y.S.2d 453, 455 N.E.2d 1248; Lee v. City of Mount Vernon, 49 N.Y.2d 1041, 1042, 429 N.Y.S.2d 557, 407 N.E.2d 404; Broughton v. State of New York, supra; Langley v. City of New York, supra).
Id. at 283-84.
Even when viewing the evidence in the light most favorable to plaintiff, the Court finds that Tucker had probable cause to arrest plaintiff for the felonies charged. Not only did Tucker have a sworn statement from Anderson that his gun had been taken during the fight, but Anderson was also wearing an empty holster, possessed a license for the gun allegedly stolen and had a bloody gash on his head, all corroborating his rendition of what had happened. In addition, an impartial witness corroborated that he was being attacked by at least two other men. Even plaintiff's relatives and friends corroborated that a fight took place. Further, Rowe and Meadows admitted their own involvement in the fight with Anderson, and also said that plaintiff was involved. Nothing in Anderson's rendition of the events to Tucker would have caused a reasonably prudent man to disbelieve Anderson, or question his veracity at that time. Further, plaintiff's denial of involvement in anything was severely undermined by his broken glasses and bloodied knuckles, not to mention the friends and relatives (Fleig, Emler, Meadows and Rowe) who implicated him in the fight with Anderson. Tucker repeatedly asked plaintiff about the fight, and plaintiff "repeatedly denied involvement in the fight." Tucker Reply Aff. at ¶ 10. Even when Tucker confronted plaintiff with the information from his relatives and friends that he was involved in the altercation, he continued to deny it. The Court finds that a reasonably prudent police investigator, possessed of the information that Tucker had while at the Public Safety Building, would have believed he had probable cause to arrest plaintiff for robbery, assault and grand larceny. The law is clear that the Grand Jury's failure to indict does not in itself prove that Tucker had no probable cause to arrest plaintiff for robbery and grand larceny. Phillips v. Corbin, 132 F.3d 867, 869 (2nd Cir. 1998).
With respect to Anderson, the complaining witness, the law requires that plaintiff show he intended that plaintiff be arrested, not merely that his words caused a police officer to arrest plaintiff. See Du Chateau v. Metro-North Commuter RR Co., 253 A.D.2d 128 (N.Y.App.Div. 1st Dept. 1999). In Du Chateau the court held that,
It is well settled in this State's jurisprudence that a civilian complainant, by merely seeking police assistance or furnishing information to law enforcement authorities who are then free to exercise their own judgment as to whether an arrest should be made and criminal charges filed, will not be held liable for false arrest or malicious prosecution. (See, Celnick v. Freitag, 242 A.D.2d 436, 437 [1st Dept]; Schiffren v. Kramer, 225 A.D.2d 757, 758-759 [2d Dept].) Nor does identifying plaintiff as the perpetrator of a crime, signing the summons or testifying at trial give rise to tort liability. (See, Collins v. Brown, 129 A.D.2d 902; Pugach v. Borja, 175 Misc.2d 683.)
Id. at 131. Nothing before the Court on this motion shows that Anderson directed the police to arrest anyone. However, as Anderson concedes, a civilian complainant who testifies falsely can be held liable for false arrest and malicious prosecution. See Dicerkson v. Monroe County Sheriff's Dept., 114 F. Supp.2d 187, 189-91 (W.D.N.Y. 2000). Although as to this ground, Anderson disputes that any material factual issue has been raised, there are, as he himself admits, "plentiful" inconsistencies among his various depositions and testimonies in the criminal and parole violation cases against plaintiff. Nevertheless, the Court need not consider this basis, since Anderson, in a supplemental memorandum, has raised a statute of limitations defense, which the Court finds dispositive.
C. Anderson's Statute of Limitations Defense
For the first time in this action, Anderson raised a statute of limitations defense in his "Supplemental Memorandum of Law Supporting Motion for Summary Judgment Pursuant to FRCP 56(b)" (docket #20, filed Jan. 31, 2002) ("supplemental memorandum"). As to this, plaintiff responded that Anderson failed to plead the statue limitations defense in his Answer, and therefore should be precluded from raising it now. See Chartier Aff. at ¶ 40; FED. R. CIV. P. 8. In his supplemental memorandum, Anderson alleges that plaintiff was arrested on October 25, 1998, and acquitted of the remaining assault charge on October 24, 1999. During oral argument, all parties agreed that the action was commenced on July 14, 2000. See Complaint at 1. Anderson argues that the New York statute of limitations for claims of false arrest and false imprisonment require that the suit be brought within one year after the arrest. For malicious prosecution, Anderson states that the statute of limitations requires suit be brought within one year of the date the prosecution ended successfully for the plaintiff. Regarding the statute of limitations, Anderson is correct as to the false arrest; however, it is clear that as to false imprisonment, the accrual date is the day of the prisoner's release. Thus, the latest date for an action against Anderson for false arrest, which accrued upon his arraignment, see Jastrzebski v. City of New York, 423 F. Supp. 669, 672 (S.D.N.Y. 1976), was October 26, 1999. The latest date for filing a suit for false imprisonment, which accrued upon plaintiff's release from imprisonment, id., was September 20, 2000. Finally, since plaintiff was acquitted of the assault charge on April 16, 1999, the latest date for filing a suit for malicious prosecution was April 16, 2000. Inasmuch as plaintiff's Complaint was not filed until July 14, 2000, only the false imprisonment claim is not barred by the statute of limitations. However, plaintiff did not name Anderson as a defendant on the false imprisonment claim. If Anderson has successfully raised a statute of limitations defense, the two causes of action plead against him are barred.
He cites no statute or case law in his memorandum; however, the Court takes judicial notice that New York Civil Procedure Law and Rules § 215(3) limits actions for false imprisonment and malicious prosecution to one year, with the exception of civil rights claims under 42 U.S.C. § 1983, which are limited to three years. See Wilson v. Garcia, 471 U.S. 261 (1985); N.Y.C.P.L.R. § 214(5). This same one-year limitation applies to causes of action for false arrest. See Jastrzebski v. City of New York, 423 F. Supp. 669 (S.D.N.Y. 1976).
However, the Court has found authority indicating that a cause of action for false imprisonment accrues when the confinement terminates. Boose v. City of Rochester, 71 A.D.2d 59, 65 (N.Y.App.Div. 4th Dept. 1989). Further, the court in Boose implies that the torts of false arrest and false imprisonment are one and the same. See id. at 67 ("[t]hus, the cause of action for false arrest and imprisonment should not have been submitted to the jury because it was time barred. . . ."). However, at least one federal court has distinguished between the two causes of action for the purpose of determining whether the cause of action has accrued. See Jastrzebski v. City of New York, 423 F. Supp. 669, 672 (S.D.N.Y. 1976). Plaintiff has not provided any authority to the Court on this issue. See plaintiff's Mem. of Law at 17.
The Court will construe Anderson's supplemental memorandum as a motion for leave to amend his answer to raise the defense of the statute of limitations. See Block v. First Blood Associates, 988 F.2d 344, 350 (2d Cir. 1993). Pursuant to Federal Rule of Civil Procedure 15(a), Anderson cannot amend his answer without leave of the Court. The leading case on the issue of whether to grant leave is Foman v. Davis, 371 U.S. 178 (1962). In Foman, the Supreme Court set out several factors for a court to consider when deciding whether to grant leave to amend. Among them are: undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party, and futility of the amendment. The rule in this Circuit is that leave to amend will be granted absent a showing by the nonmovant of prejudice or bad faith. See Block, 988 F.2d at 350.
In the present case, plaintiff evidently relies only on the undue prejudice he claims will occur if the Court were to allow the assertion of a defense of the statute of limitations. See Chartier Aff. at ¶ 40. After reviewing the facts, the Court can find no undue prejudice. The Complaint was not filed until July 14, 2000, eight months and 19 days after the statute expired for the false arrest claim, and two months and 29 days after the statute expired for the malicious prosecution claim. Although Anderson delayed in raising the defense, as the Second Circuit held, "'[m]ere delay, . . . absent a showing of bad faith or undue prejudice, does not provide a basis for a district court to deny the right to amend.'" Block, 988 F.2d 344, 350 (2d Cir. 1993) (quoting State Teachers Retirement Bd. v. Fluor Corp., 654 F.2d 843, 856 (2d Cir. 1981)). Here, even if Anderson had raised the statute of limitations defense in his answer, filed on January 2, 2001, the fact remains that plaintiff could not have cured the problem with earlier notice, or brought suit in the state courts. Thus, the Court grants Anderson's motion to amend his answer and raise the affirmative defense of the statute of limitations, and grants Anderson's motion to dismiss the first and second causes of action alleged against him.
Plaintiff points out in his attorney's affirmation only that Anderson failed to raise the defense in his answer. He elaborates more in his memorandum of law, where he also cites to the New York Civil Procedure Law and Rules §§ 3018(b) and 3211(a)(5). However, this Court is not bound by New York procedural law. See Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 427 (1996).
Even if plaintiff had received notice of Anderson's statute of limitations defense in his answer, the statute of limitations for false imprisonment, the latest of the three state causes of action, had already expired the previous September.
D. New York Malicious Prosecution Cause of Action
In New York, the fact that the Grand Jury returned an indictment creates a presumption that the arrest and indictment were procured with probable cause. See Bernard v. United States, 25 F.3d 98 (2d Cir. 1994); Colon, 468 N.Y.S.2d at 456, 455 N.Ed.2d at 1251 ("[T]he trial court may not weigh the evidence upon which the police acted . . . after the indictment has issued"). To rebut this presumption, the plaintiff "must establish that the indictment was produced by fraud, perjury, the suppression of evidence or other police conduct undertaken in bad faith." Id., 468 N.Y.S.2d at 456, 455 N.E.2d at 1251.
The evidence before the Court on this motion clearly shows that the prosecution in this case was initiated by Tucker, who was the named complainant in the felony complaint. Also undisputed is the fact that the prosecution of plaintiff for Assault in the Third Degree resulted in his acquittal of the charge. At issue is whether the prosecution was brought without probable cause and with malice. See Cantalino v. Danner, 96 N.Y.2d 391, 394-95 (2001). Tucker learned of no new facts between the time he interviewed everyone at the Public Safety Building and the time he prepared the criminal complaint which commenced the action against plaintiff. The felony complaint he swore out is dated October 25, 1998 and the police reports establish that the last interview took place at 4:25 a.m. that morning. See Chartier Aff. Ex. A at 17 28. Thus, the prosecution was initiated by Tucker before he knew of Anderson's inconsistent testimony before the Grand Jury and the state parole board. Plaintiff argues that because Tucker lacked probable cause to arrest him, the Court may, for the purposes of summary judgment, imply that Tucker had actual malice. See plaintiff's Memorandum of Law at 12. However, because the Court finds Tucker had probable cause to arrest plaintiff, the presumption of malice does not exist. Clearly, then, plaintiff's proof has failed in at least two elements of this cause of action. Consequently, the City Defendants have shown their entitlement to judgment. Since the Court has already ruled that plaintiff's claim of malicious prosecution against Anderson is barred by the statute of limitations, it will not be addressed on the merits.
E. Qualified Immunity Defense
Defendant Tucker argues in the alternative that he is entitled to qualified immunity. The Second Circuit has held that police officers are entitled to qualified immunity if their conduct does not violate clearly established constitutional rights, or, it was objectively reasonable for them to believe their acts did not violate those rights. See Marshall v. Sullivan, 105 F.3d 47, 53 (2d Cir. 1996) (citations omitted). "The availability of the defense depends on whether "'a reasonable officer could have believed'" his action "'to be lawful, in light of clearly established law and the information [he] possessed.'"" Marshall, 105 F.3d at 53 (quoting Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per curium), quoting Anderson v. Creighton, 483 U.S. 635, 641 (1987)). plaintiff bears the burden of showing that, "no reasonable competent officer would have concluded that a[n arrest] should issue" under the circumstances of this case. Robinson v. Via, 821 F.2d 913, 921 (2d Cir. 1987). The Court finds, based on the facts viewed in a light most favorable to plaintiff, that a reasonable officer would have believed his actions to be lawful in light of clearly established law and the information possessed by Tucker. Therefore, the Court concludes, that Tucker is entitled to qualified immunity.
CONCLUSION
In light of the above findings and conclusions, the Court recognizes the withdrawal of the Fourth, Fifth and Sixth causes of action and grants Defendants' motions (Docket # #12 and 15) to dismiss the remaining causes of action for the reasons stated above. The Clerk is directed to close this case.
IT IS SO ORDERED.