Opinion
Case No. 01-CV-4015
December 1, 2003
BRIAN SHEEHAN, New York, N.Y., for the Plaintiff
MICHAEL A. CARDOZO, RUSSELL WEST, New York, N.Y., for the Defendant
MEMORANDUM AND ORDER
Pro se plaintiff Brian Sheehan ("Sheehan") brings claims, pursuant to 42 U.S.C. § 1983, against five New York City police officers. Defendant Detective Rivera ("Rivera") moves to dismiss pursuant to Fed.R.Civ.P. 12(b)(6); the other defendants for summary judgment. For the reasons that follow, both motions are granted.
Service upon Rivera was not complete until February 26, 2003, see Aff. of Russell West, Jr. at ¶ 5; thus, unlike the other defendants, Rivera has moved to dismiss under Fed.R.Civ.P. 12(b)(6). The Court notes that Sheehan was appropriately given notice regarding the summary judgment motion, pursuant to Local Rule 56.2, and has responded with his own affidavit and exhibits.
BACKGROUND
The following facts are undisputed, unless otherwise indicated. On June 10, 1998, Alexandra Kaniecki ("Kaniecki"), the mother of Sheehan's child, reported harrassing phone calls she received from Sheehan since February 1998, memorialized in a police complaint report: "Comp[lainant] present at [station house] states that common law husband has call[ed] comp[lainant] home/work on several occaccions [sic] and has stated to comp[lainant] that he was going to have comp[lainant] put in mental hospital and take their child away placing comp[lainant] in fear." Aff. of Russell West, Jr., Exh. E. ("Complaint Report," dated June 10, 1998). Kaniecki or her boyfriend recorded, and subsequently transcribed, these calls. See id. Exh F (transcription of calls).On the following day, June 11, 1998, Detective Donald Faust ("Faust") spoke with Kaniecki to confirm her allegations. See id. Exh. H ("Complaint Follow Up," dated June 12, 1998). Based upon the complaint, Faust and his partner Detective David Phillips ("Phillips") arrested Sheehan, without a warrant, outside of Kaniecki's home. Sheehan was charged with Aggravated Harrassment in the Second Degree and arraigned the next day. All charges were dismissed on July 17, 1998. Sergeant Joseph Gugliemi ("Gugliemi") and Rivera were not involved in Sheehan's arrest.
While Sheehan contends that he only called Kaniecki with the intention of speaking to his daughter, it is undisputed, as Sheehan admitted in his deposition testimony, that he called the house, spoke to Kaniecki, told her "she needed to stop drinking," threatened "institutionaliz[ation]," and "losing custody" of their daughter. Sheehan Dep. at 232-33.
Sheehan filed this action on June 11, 2001, asserting claims for violations of his Fourth, Sixth and Fourteenth Amendment rights, false arrest, malicious prosecution, defamation and intentional infliction of emotional distress. He contends that defendants Rivera and Gugliemi violated his constitutional rights when they failed to investigate and report a child abuse complaint he and his daughter filed at the 78th precinct on May 23, 1998 against Kaneicki's boyfriend John Inconterera ("Inconterera"), a retired NYPD officer.
Sheehan also brings claims against Faust, Phillips and Lieutenant Kevin J. Barry ("Barry") (the supervising officer) — the officers involved in his arrest — contending that he was arrested without probable cause and that he was arrested and prosecuted in retaliation for the filing of the child abuse complaint. Sheehan's defamation and intentional infliction of emotional distress claims are stated generally against all defendants.
All defendants dispute whether the child abuse complaint was ever filed; furthermore, each deposed defendant testified that he had no knowledge of Sheehan's child abuse complaint and denied knowing Inconterera. In their depositions, both Sheehan and his daughter, Clare, testified to filing the complaint; Sheehan also submitted an affidavit reflecting a conversation with Lt. Richard Murphy, Precinct Integrity Officer of the 78th Precinct, whereby Lt. Murphy confirmed that records relating to the complaint were located at the precinct.
DISCUSSION
A motion for summary judgment may not be granted unless the court determines that there is no genuine issue of material fact to be tried and that the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Once the moving party has carried its burden to demonstrate the absence of a genuine issue of material fact, see Celotex Corp., 477 U.S. at 323, the opposing party "must come forward with `specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-587 (1986) (quoting Fed.R.Civ.P. 56(e)) (other citations omitted). Furthermore, the submissions of a pro se plaintiff must be read liberally and interpreted "to raise the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). The "non-moving party may not rely on mere conclusory allegation s nor speculation, but instead must offer some hard evidence showing that its version of the events is not wholly fanciful." D'Amico v. City of New York, 132 F.3d 145, 149 (2d Cir. 1998).
A. Failure to Investigate Child Abuse Complaint
Sheehan asserts constitutional claims against defendants Rivera and Guglielmi regarding their failure to investigate and report the child abuse complaint he allegedly filed on May 23, 1998. These defendants contend that Sheehan's claims are untimely because the three year statute of limitations began to run on the day that Sheehan allegedly filed the complaint. See Covington v. City of New York, 171 F.3d 117, 121 (2d Cir. 1999) (three year statute of limitations for claims brought under § 1983 generally accrues at "that point in time when the plaintiff knows or has reason to know of the injury which is the basis of his action.") (internal citations and quotations omitted). This argument seems implausible. If a duty to investigate complaints exists, surely the investigators cannot be expected to act the very day of filing; they must be afforded some reasonable amount of time in which to conduct the investigation.
Timely or not, Sheehan's claims lack merit. While parents may legitimately expect assistance when they seek aid from the police, an officer's failure to investigate or respond to a complaint of child abuse does not constitute a federal statutory or constitutional claim under § 1983. See DeShaney v. Winnebago County Dept. of Soc. Servs., 489 U.S. 189, 196 (1989) (a "[s]tate's failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause"); Sealed v. Sealed, 332 F.3d 51, 55 (2d Cir. 2003) ("states have no substantive due process obligation to protect children against private violence"). While states may not "selectively deny its protective services to certain disfavored minorities," See DeShaney, 289 U.S. at 196 n. 3, Sheehan has not provided any "hard evidence," short of conclusory allegations, D'Amico, 132 F.3d at 149, that the officers' decision not to investigate his complaint violated equal protection. Accordingly, the Court grants Rivera's 12(b)(6) motion and Guglielmi's summary judgment motion. With regard to Rivera's motion, although pro se litigants should normally be afforded the opportunity to amend their complaint, "[l]eave to amend need not be granted . . . where the proposed amendment would be futile." See Advanced Magnetics Inc. v. Bayfront Parnters Inc., 106 F.3d 11, 18 (2d Cir. 1997). Such is the case here.
B. False Arrest, Malicious Prosecution and Substantive Due Process
Sheehan's claims regarding his arrest and subsequent prosecution are brought against Faust, Phillips and Barry; Rivera and Guglielmi were not involved in his arrest. Probable cause is a "complete defense" to both false arrest and malicious prosecution claims under § 1983. Curry v. City of Syracuse, 216 F.3d 324, 335 (2d Cir. 2003) (false arrest); Jocks v. Taverneir, 316 F.3d 128, 136 (2d Cir. 2003) (malicious prosecution). Probable cause exists "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," Lee v. Sandberg, 136 F.3d 94, 102 (2d Cir. 1997), and is determined by the "facts available to the officers" at the time of arrest. See Ricciuti v. New York City Transit Authority, 124 F.3d 123, 128 (2d Cir. 1997).
Generally, "[a]n arresting officer advised of a crime by a person who claims to be the victim . . . has probable cause to effect an arrest absent circumstances that raise doubts as to the victim's veracity." Singer v. Fulton County Sheriff, 63 F.3d 110, 119 (2d. Cir. 1995). Further, the "veracity of citizen complaints" brought by victims of "the very crime they report . . . is assumed." Miloslavsky v. AES Eng'ring Soc'y, 808 F. Supp. 351, 355 (S.D.N.Y. 1992), aff'd, 993 F.2d 1534 (2d Cir. 1993).
Sheehan contends that probable cause was lacking because the officers should have questioned Kaneicki's veracity, given her alleged alcohol abuse and their continuing family court problems. Further, Sheehan maintains that the officers were under a duty to release him, once he gave them information that put her credibility in doubt, and that their decision not to do so was in retaliation for the filing of the child abuse complaint.
N.Y. Penal Law § 240.30 provides, in relevant part, that a person commits Aggravated Harassment in the Second Degree when:
[W]ith intent to harass, annoy, threaten or alarm another person, he or she:(1) [C]ommunicates with a person . . . by telephone . . . in a manner likely to cause annoyance or alarm . . . or . . . (2) Makes a telephone call, whether or not a conversation ensues, with no purpose of legitimate communication.
N.Y. Penal Law § 240.30(a)-(b).
Detective Faust had probable cause to arrest Sheehan based upon both Kaniecki's report of telephone calls that placed her in fear — calls Sheehan admits making — and his conversation with Kaniecki, whereby he verified her allegations. See Illinois v. Gates, 462 U.S. 213, 244 n. 13 (probable cause requires only a "probability or a substantial chance of criminal activity, not an actual showing of such activity"). Furthermore, he had no reason to doubt Kaniecki's veracity at the time of arrest. Even accepting Sheehan's allegations regarding her credibility, the officers were under no duty to release him based upon self-serving, exculpatory statements made during and after the arrest, nor were they under any investigatory obligation in respect thereto. See Carson v. Lewis, 35 F. Supp.2d 250, 261 (E.D.N.Y. 1999) ("once probable cause is established the police do not have to endeavor to negate it") (citing Baker v. McCollan, 443 U.S. 137, 149 (1979)).
Sheehan's allegation that he was arrested in retaliation for his child abuse complaint is nothing but conclusory; further, "the subjective motivations of the officers are not relevant to the determination of probable cause." Middelem v. County of Suffolk, 2003 WL 145247, *9 (E.D.N.Y. Jan 9, 2003) (citing Whren v. United States, 517 U.S. 806, 813 (1996)). Since probable cause existed for his arrest, Sheehan's false arrest and malicious prosecution claims must fail. Sheehan also attempts to frame his arrest and prosecution as substantive due process claims; however, his allegation that false evidence was manufactured and provided to the prosecutors is conclusory and unsubstantiated.
Even if the Court were to determine that probable cause did not exist, summary judgment should be granted because Faust, Phillips, and Barry would be entitled to qualified immunity. See Ricduti, 124 F.3d at 128 (officer entitled to qualified immunity if "reasonably competent police officers could disagree as to whether there was probable cause to arrest").
C. False Imprisonment
Sheehan alleges that he was "deliberately held for more than twenty-four hours," Sheehan Aff. in Opposition at 16, in violation of his Sixth Amendment rights. His claim is more appropriately construed as one for false imprisonment. The record discloses that Sheehan was arrested in the evening, held overnight, and arraigned the next day; in short, he was subject only to routine processing, which was certainly not "[un]reasonable in length." Diesel v. Town of Lewisboro, 232 F.3d 92, 105 (2d Cir. 2000) (dismissing false imprisonment claim because detention and investigation was reasonable in length and scope).
D. Defamation and Intentional Infliction of Emotional Distress
In respect to his defamation claim, Sheehan alleges that "defendant(s) have made false and defamatory statements concerning the plaintiff," Compl. at ¶ 18, but does not allege which defendant made defamatory statements, nor what those statements were. As an initial matter, the Court notes that his defamation claim is insufficiently pled. See Ahmed v. Gelfand, 160 F. Supp.2d 408, 416 (E.D.N.Y. 2001) (dismissing defamation claim that failed to meet the pleading requirements). Regardless, the claim must fail because Sheehan has not presented any evidence demonstrating the "falsity of the statement[s]" made by any of the defendants. Savino v. City of New York, 168 F. Supp.2d 172, 179 (S.D.N.Y. 2001), rev'd on other grounds, 331 F.3d 63 (2d Or. 2003).
Sheehan's claim for intentional infliction of emotional distress also fails because he has not produced any evidence to support this claim — namely, that any of the defendants' conduct was "extreme and outrageous" and calculated to cause him distress. Savino, 168 F. Supp.2d at 179-80 ("If a defendant's primary purpose was to advance some other interest and the harm to the plaintiff was incidental, then liability for intentional infliction of emotional distress does not attach.").
E. Municipality as Defendant
While not addressed by the parties, the Court construes Sheehan's action as brought against only the individual officers, not the City of New York. To the extent that Sheehan's allegations could be liberally construed to state a claim against the municipality, the Court sua sponte dismisses the claim because there is no allegation of a municipal policy, custom, pattern or practice that would subject it to liability under Monell v. Dept. of Soc. Servs, 436 U.S. 658, 690-91 (1978), and there is no basis to believe that an amended complaint would satisfy Monell.
CONCLUSION
Defendants' motions are granted and the complaint is dismissed.SO ORDERED.