Arnold v. Geary

Full title: STANLEY ARNOLD, Plaintiff, v. MARTIN GEARY, et al., Defendants.

Court: UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

Date published: Jan 4, 2012

09 Civ. 7299 (DAB) (GWG) (S.D.N.Y. Jan. 4, 2012)

Opinion

09 Civ. 7299 (DAB) (GWG)

01-04-2012

STANLEY ARNOLD, Plaintiff, v. MARTIN GEARY, et al., Defendants.

GABRIEL W. GORENSTEIN, UNITED STATES MAGISTRATE JUDGE

REPORT AND RECOMMENDATION

GABRIEL W. GORENSTEIN, UNITED STATES MAGISTRATE JUDGE

Stanley Arnold brings this action alleging false arrest and malicious prosecution against the City of Yonkers, Yonkers Public Housing, the Yonkers District Attorney's office and some employees of these entities. See Third Amended Complaint, filed Dec. 3, 2010 (Docket # 36) ("3d Am. Compl."). Defendants Yonkers Public Housing and Curtis Wegener ("Housing Authority Defendants"), and defendants City of Yonkers, Philip A. Amicone, Martin Geary, Pat Salierno¹, Bryant Pappas, and Medina ("City Defendants") have filed motions for summary judgment.²

1 In many of Arnold's papers, including his third amended complaint, Salierno is referred to as "Salerno."

2 See Notice of Motion, filed Apr. 18, 2011 (Docket # 69); Defendants Named Herein as Yonkers Public Housing and Curtis Wegener in Official Capacity's Memorandum of Law in Support of Motion for Summary Judgment, filed Apr. 18, 2011 (Docket # 67); Defendants' Rule 56.1 Statement, filed Apr. 18, 2011 (Docket # 68); Affidavit in Support of Defendants' Motion for Summary Judgment, filed Apr. 18, 2011 (Docket # 70) ("Wegener Aff."); Affidavit in Support of Defendants' Motion for Summary Judgment, filed Apr. 18, 2011 (Docket # 71); Affidavit in Support of Defendants' Motion for Summary Judgment, filed Apr. 18, 2011 (Docket # 72); Notice to Pro Se Litigant, filed Apr. 18, 2011 (Docket # 73); Notice of Motion, filed Apr. 15, 2011 (Docket # 74) ("City Mot."); Notice to Pro Se Litigant, dated Apr. 14, 2011 (annexed to City Mot.); Statement Pursuant to Local Civil Rule 56.1, dated Apr. 14, 2011 (annexed to City Mot.) ("City 56.1 Stat."); Declaration of Rory McCormick, dated Apr. 14, 2011 (annexed to City Mot.) ("McCormick Decl."); Defendants' Memorandum of Law in Support of the Motion for Summary Judgment, filed Apr. 15, 2011 (Docket # 75) ("City Mem. of Law").

For most of this case, Arnold was appearing pro se. After the defendants filed summary judgment motions, Arnold submitted opposition papers pro se, including a cross-motion for summary judgment, to which the defendants submitted responses.³ At the time defendants submitted their reply papers, an attorney, Matthew H. Goldsmith, filed a notice of appearance on behalf of Arnold. See Notice of Appearance, filed July 11, 2011 (Docket # 89). In an order dated September 9, 2011, the Court permitted Arnold's new attorney to replace Arnold's pro se papers with a new set of papers opposing the defendants' summary judgment motions. See Order, filed Sept. 9, 2011 (Docket # 113). Thereafter, Arnold submitted new opposition papers, which did not include a cross-motion, and the defendants submitted new reply papers.⁴ Inasmuch as plaintiff's new opposition papers replace the pro se submissions, the Court considers only those papers.

3 See Plaintiffs' Response to Curtis Wegener Reply Affidavit in Support of Summary Judgment, filed Aug. 19, 2011 (Docket # 108); Plaintiff's Response to Summary Judgment Motion by Yonkers Public Housing, filed Aug. 19, 2011 (Docket # 109); Plaintiff's Response to Summary Judgment Motion by the City of Yonkers et al., filed Aug. 19, 2011 (Docket # 110); Summary Judgment Rule 56, filed Aug. 19, 2011 (Docket # 111); Defendants Named Herein as Yonkers Public Housing and Curtis Wegener in Official Capacity's Reply Memorandum of Law in Support of Motion for Summary Judgment and in Opposition to any Purported Motion for Summary Judgment by Plaintiff, filed June 17, 2011 (Docket # 86); Reply Affidavit by Curtis Wegener in Support of Defendants' Motion for Summary Judgment and in Opposition to Plaintiff's Motion, filed June 17, 2011 (Docket # 87); Statements in Contravention of Plaintiff's Purported Rule 56.1 Statement, filed July 15 and 18, 2011 (Docket ## 98, 102); Supplemental Affidavit by Curtis Wegener in Support of Defendants' Motion for Summary Judgment and in Opposition to Plaintiff's Motion, filed July 15, 18, and 25, 2011 (Docket ## 99, 104, 106); Supplemental Affidavit by Joseph Shuldiner in Support of Defendants' Motion for Summary Judgment and in Opposition to Plaintiff's Motion, filed July 18, 2011 (Docket # 103); Defendants' Reply Declaration, filed June 16, 2011 (Docket ## 82-85); Defendants' Response to Plaintiff's Rule 56.1 Statement, filed July 14, 2011 (Docket ## 90-92).

4 See Plaintiff's Memorandum of Law in Opposition to Motion for Summary Judgment, filed Oct. 3, 2011 (Docket # 114) ("Pl. Mem. of Law"); Plaintiff's Affirmation in Opposition to Motion for Summary Judgment, filed Oct. 3, 2011 (Docket # 115) ("Pl. Affirm."); Response to Loc. Civ. R. 56.1 Statement of Material Facts, dated Sept. 23, 2011 (annexed to Pl. Affirm.) ("Pl. 56.1 Stat."); Declaration of Stanley A. Arnold in Opposition to Motion for Summary Judgment, dated Sept. 22, 2011 (annexed to Pl. Affirm.) ("Arnold Decl."); Declaration of Sylvia Pettiford in Opposition to Motions for Summary Judgment, dated Sept. 23, 2011 (annexed to Pl. Affirm.) ("Pettiford Decl."); Defendants Named Herein as "Yonkers Public Housing and Curtis Wegener in Official Capacity"'s Further Reply Memorandum of Law in Support of Motion for Summary Judgment and in Opposition to any Purported Motion for Summary Judgment by Plaintiff, filed Oct. 5 and 6, 2011 (Docket ## 118, 121); Defendants Wegener and Yonkers Housing Authority's Reply Statements in Contravention of Plaintiff's Purported Further Rule 56.1 Statement, filed Oct. 5, 2011 (Docket # 119); Defendant City of Yonkers Reply Statements in Contravention of Plaintiff's Purported Further Rule 56.1 Statement, filed Oct. 11, 2011 (Docket ## 125-27); City of Yonkers Defendants Further Reply Declaration in Support of Motion for Summary Judgment, filed Oct. 12, 2011 (Docket ## 128-30) ("City Reply").

For the reasons discussed below, the Housing Authority Defendants' motion should be granted. The City Defendants' motion should be granted in part and denied in part.

I. FACTS

Unless otherwise noted, the following recitation of the facts is either based on undisputed facts or supports Arnold's version of the events in question.

On July 7, 2008, Arnold was arraigned on charges of Robbery in the Third Degree. See Repository Inquiry for NYSID No: 4929374P, dated Dec. 15, 2009 (annexed as Ex. H to McCormick Decl.) ("Crim. History") at Cycle 27. At arraignment, he was released on his own recognizance. Arnold Decl. ¶ 11. On August 13, 2008, a bench warrant was issued in connection with that case. See Crim. History at Cycle 27.

On August 22, 2008, Arnold was standing at the corner of School Street and Park Hill Avenue in Yonkers, New York. Arnold Decl. ¶ 2. While he was standing there, Police Officers Geary and Salierno came by in a marked patrol car and stopped. Id. ¶ 3. Arnold ran away from the officers, injuring his ankle in the subsequent chase. Id. ¶ 5.

Following the incident with the police officers, Arnold sought treatment for his ankle at St. John's Riverside Hospital. See id. ¶¶ 5-6; Emergency Dept. Medical Chart, dated Aug. 23, 2008 (annexed as Ex. C to Pl. Affirm.) ("Medical Records"). Arnold represented himself to be his brother, providing the hospital with his brother's name and date of birth. See Arnold Decl. ¶ 6; Medical Records; Affidavit in Support of Medical Records, dated May 13, 2011 (annexed as Ex. D to Pl. Affirm.). Arnold was diagnosed with a fractured left ankle. Medical Records at 6. His follow-up instructions included the directive: "elevation/icepacks/rest/no weight bearing." Id. at 7. Upon discharge, Arnold's girlfriend, Sylvia Pettiford, took him to her apartment. Arnold Decl. ¶¶ 6, 7; Pettiford Decl. ¶ 5. Pettiford resided at 80 School Street. Pettiford Decl. ¶ 2. Arnold remained at Pettiford's apartment until September 12, 2008. Arnold Decl. ¶ 8; Pettiford Decl. ¶ 6.

On August 28, 2008, police officers Geary and Salierno completed a police report stating that they saw a suspect enter 80 School Street. See Yonkers Police Department Crime Investigation Report, dated Aug. 28, 2008 (annexed as Ex. A to McCormick Decl.) ("Invest. Report"). When questioned by the officers, the suspect stated that his name was Stanley Arnold and he lived at 80 School Street. Id. After the officers asked what he was holding in his right hand, the suspect threw two plastic "twists" containing cocaine onto the sidewalk. Id.; Laboratory Report, dated Oct. 2, 2008 (annexed as Ex. D to McCormick Decl.) ("Lab Report"). The suspect then fled from the police. Invest. Report. Geary and Salierno, along with Pappas, went to the Yonkers Detective Division to examine past Booking Data Sheets and thereafter concluded that Arnold (whose name was also listed as Umar Taqua) was the individual they saw on August 28. Id. Arnold states in a declaration under perjury that he never left Pettiford's apartment on August 28. See Arnold Decl. ¶ 9.

At the time of the alleged incident, Curtis Wegener was "employed by the Municipal Housing Authority for the City of Yonkers ('Municipal Housing Authority') as its maintenance supervisor." Wegener Aff. ¶ 1. His responsibilities included responding to inquires from various authorities as to whether certain individuals had authority to enter or use Municipal Housing Authority property. Id. ¶ 3. On September 8, 2008, Wegener signed an owner's deposition stating that Umar Taqua did not have permission to be on the premises of 80 School Street. See Owner's Deposition, dated Sept. 8, 2008 (annexed as Ex. B to McCormick Decl.) ("Owner's Dep."). Based on this information and the August 28, 2008 report, a "warrant - misdemeanor information" was drafted stating that Umar Taqua was accused of criminal possession of a controlled substance in the seventh degree and criminal trespass in the third degree. See Warrant - Misdemeanor Information, dated Sept. 12, 2008 (annexed as Ex. E to McCormick Decl.). The warrant was signed solely by Geary. Id.

On September 12, 2008, Arnold went to court to vacate the outstanding warrant from the July 2008 case. Arnold Decl. ¶ 11. The court was closed, so he went to central booking where he was arrested. Id. During the subsequent court hearing on the felony matter, the Yonkers District Attorney's Office informed the court that there was an outstanding warrant for Arnold's arrest based on the August 28 incident. Id. ¶ 12. Arnold was remanded into custody for the July felony charge after the judge learned that the August 28 incident involved possession of a controlled substance. Id.

When Arnold was admitted into custody, his medical intake form noted that he had an ankle fracture and "uses crutches for ambulation." Westchester County/Department of Correction: Correctional Health Services: Problem List, dated Sept. 13, 2008 (annexed as Ex. E to Pl. Affirm.) at 2.

On September 12, 2008, bail was set at $1,500 for the August 28 misdemeanor case. Arnold Decl. ¶ 13. The bail was reduced to $1,000 on October 8, 2008. Id.

While in custody, Arnold met Jamie Guzman. Id. ¶ 14. Guzman said that he had been arrested on drug charges following an earlier incident with officers Geary and Salierno. Id. A police report for his arrest reflects that five days before the August 28 incident, on August 23, 2008, Guzman was found inside 80 School Street with a clear plastic bag of crack cocaine, that he dropped the bag, and eluded arrest. See Yonkers Police Department Crime Investigation Report, dated Aug. 23, 2008 (annexed as Ex. B to Pl. Affirm) ("Guzman Report").

On May 19, 2009, Arnold was informed that the misdemeanor charges stemming from the August 28, 2008 incident were dismissed. Arnold Decl. ¶ 16. On October 13, 2009, Arnold pled guilty to the felony charge. See Crim. History at Cycle 27.

II. APPLICABLE LAW

A. Standard of Review

Rule 56(a) of the Federal Rules of Civil Procedure states that summary judgment is appropriate when "the movant shows that there is no genuine dispute as to any material fact." Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed. R. Civ. P. 56(c)). A genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

In determining whether a genuine issue of material fact exists, "[t]he evidence of the non-movant is to be believed" and the court must draw "all justifiable inferences" in favor of the nonmoving party. Id. at 255 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970)). Nevertheless, once the moving party has shown that there is no genuine issue as to any material fact and that it is entitled to a judgment as a matter of law, "the nonmoving party must come forward with 'specific facts showing that there is a genuine issue for trial,'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (emphasis in original) (citation omitted) (quoting Fed. R. Civ. P. 56(e)), and "may not rely on conclusory allegations or unsubstantiated speculation," Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998) (citations omitted). In other words, the nonmovant must offer "concrete evidence from which a reasonable juror could return a verdict in his favor." Anderson, 477 U.S. at 256. Where "the nonmoving party bears the burden of proof at trial, summary judgment is warranted if the nonmovant fails to 'make a showing sufficient to establish the existence of an element essential to [its] case.'" Nebraska v. Wyoming, 507 U.S. 584, 590 (1993) (alteration in original) (quoting Celotex, 477 U.S. at 322). Thus, "[a] defendant moving for summary judgment must prevail if the plaintiff fails to come forward with enough evidence to create a genuine factual issue to be tried with respect to an element essential to its case." Allen v. Cuomo, 100 F.3d 253, 258 (2d Cir. 1996) (citing Anderson, 477 U.S. at 247-48).

B. Law Governing § 1983 Claims

While Arnold's pro se complaint lists various claims for relief, see 3d Am. Compl. at 2, Arnold's brief makes clear that he pursues claims only for false arrest and malicious prosecution under 42 U.S.C. § 1983, see Pl. Mem. of Law at 1, 6-11. To state a claim under § 1983, the plaintiff must show that he was denied a constitutional or federal statutory right and that the deprivation of such right occurred under color of state law. See 42 U.S.C. § 1983; West v. Atkins, 487 U.S. 42, 48 (1988). Section 1983 does not grant any substantive rights but rather "provides only a procedure for redress for the deprivation of rights established elsewhere," such as in the Constitution or federal statutes. See Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993) (citation omitted), cert. denied, 512 U.S. 1240 (1994).

Additionally, "[i]t is well settled in this Circuit that personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983." Farrell v. Burke, 449 F.3d 470, 484 (2d Cir. 2006) (internal quotation marks and citation omitted). Personal liability under § 1983 cannot be imposed upon a state official based on a theory of respondeat superior. See, e.g., Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir. 2003) ("supervisor liability in a § 1983 action depends on a showing of some personal responsibility, and cannot rest on respondeat superior"), cert. denied, 543 U.S. 1093 (2005); accord Poe v. Leonard, 282 F.3d 123, 140 (2d Cir. 2002); Black v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996). A claim against an official in his individual capacity under § 1983 will fail if the plaintiff fails to establish the personal involvement of the defendant. See Koehl v. Dalsheim, 85 F.3d 86, 89 (2d Cir. 1996) (citing Al-Jundi v. Estate of Rockefeller, 885 F.2d 1060, 1065 (2d Cir. 1989)). The Second Circuit has held:

[t]he personal involvement of a supervisory defendant may be shown by evidence that: (1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference . . . by failing to act on information indicating that unconstitutional acts were occurring.

Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995); accord Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 127 (2d Cir. 2004). More recently, the Supreme Court held in Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937 (2009), that "[b]ecause vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution." Id. at 1948. Iqbal held that "[a]bsent vicarious liability, each Government official, his or her title notwithstanding, is only liable for his or her own misconduct." Id. at 1949.⁵

5 Iqbal rejected the argument that, "a supervisor's mere knowledge of his subordinate's discriminatory purpose amounts to the supervisor's violating the Constitution." 129 S. Ct. at 1949. This holding has caused some courts to question whether all five of the personal involvement categories mentioned in Colon survive that decision. See generally D'Olimpio v. Crisafi, 718 F. Supp. 2d 340, 347 (S.D.N.Y. 2010) (citing cases and concluding that the five categories were not necessarily preempted by Iqbal). Thus, "[s]ome district court judges . . . have observed that Iqbal has narrowed the grounds upon which supervisors may be held liable" and have held that only the first and third Colon categories survive Iqbal. Rahman v. Fischer, 2010 WL 1063835, at *4 (S.D.N.Y. Mar. 22, 2010) (citing Spear v. Hugles, 2009 WL 2176725, at *2 (S.D.N.Y. July 20, 2009); Young v. N.Y. Office of Mental Retardation & Dev. Disabilities, 649 F. Supp. 2d 282, 293-94 (S.D.N.Y. 2009)) (other citations omitted). Others have continued to apply the five Colon categories without limitation. See, e.g., Pierce v. N.Y. State Police, 2011 WL 1315485, at *13 n.11 (N.D.N.Y. Apr. 4, 2011); Germano v. Dzurenda, 2011 WL 1214435, at *13 n.3 (D. Conn. Mar. 28, 2011); Rahman, 2010 WL 1063835, at *5 (assuming that "all five categories described in Colon remain appropriate grounds for imposing liability on supervisors when there are sufficient allegations that the supervisors' conduct proximately caused the violation of rights").
This Court agrees with those courts that have concluded that Iqbal must be viewed in light of the fact that it was dealing with an intentional discrimination claim, and that Iqbal was rejecting an argument that the supervisor's mere knowledge of the subordinate's intent is tantamount to proof that the supervisor himself committed a discriminatory act. See Delgado v. Bezio, 2011 WL 1842294, at *9 (S.D.N.Y. May 9, 2011); accord Sash v. United States, 674 F. Supp. 2d 531, 544 (S.D.N.Y. 2009). "Thus, where the claim does not require a showing of discriminatory intent, the Colon analysis should still apply, insofar as it is 'consistent with the particular constitutional provision alleged to have been violated.'" Delgado, 2011 WL 1842294, at *9 (quoting Qasem v. Toro, 737 F. Supp. 2d 147, 151-52 (S.D.N.Y. 2010)).

III. DISCUSSION

A. Housing Authority Defendants

Arnold's third amended complaint lists two claims against the Housing Authority Defendants. The first claim is that the Housing Authority defendants "submitted [a] falsified accusatory instrument with [the] Yonkers Police Dept. which was used as documentation to hold the plaintiff incarcerated." See Third Amended Complaint: Defendants and Complaint (annexed to 3d Am. Compl.) ("Def. and Compl.") ¶ 4. The second claim accuses "Yonkers Public Housing Employee Curtis Wegener" of submitting a "falsified accusatory instrument Owner's Deposition with the above listed [City defendants]." Id. ¶ 7.

Arnold has not opposed the Housing Authority defendants' Rule 56.1 statement. Indeed, the Housing Authority defendants are only mentioned in passing in Arnold's opposition papers - and only in the context of his discussion of the actions of the City Defendants. See Pl. Mem. of Law at 10-11 (referring to the City Defendants' "procuring an owner's affidavit from Wegener, who admittedly cannot recall its facts"). Thus, Arnold does not provide any evidence or argument as to why Wegener's affidavit is "false." Notably, the owner's deposition signed by Wegener does not claim that Arnold trespassed on August 28, 2008. Rather, it merely states that Wegener - as the "owner or other person entitled to possession of" the property - had not given Arnold permission to "take, use, possess, exercise control over, enter, or damage" the property on August 28, 2008. See Owner's Dep. Arnold has provided no admissible evidence that anything contained within the owner's deposition is false. Inasmuch as this claim of falsity formed the only basis for any claim against any of the Housing Authority defendants, all claims against them must be dismissed.

B. City Defendants

A liberal reading of Arnold's third amended complaint suggests that he is suing the City Defendants for violations of his constitutional rights under 42 U.S.C § 1983 stemming from his alleged false arrest and imprisonment. See 3d Am. Compl. More specifically, Arnold alleges that Amicone, and therefore the City of Yonkers, allowed police corruption to occur, Def. and Compl. ¶ 1, and that the individual police officer defendants, Geary, Salierno, Medina, and Pappas, submitted a falsified accusatory instrument and evidence to the court which led to his false arrest and malicious prosecution, id. ¶¶ 3, 6. We discuss each group of defendants individually.

1. Amicone and the City of Yonkers

Arnold's claim against Amicone, the Yonkers Mayor, and the City of Yonkers appears to be that they allowed police corruption to flourish unchecked, and that therefore they are liable for his false arrest. See id. ¶ 1.

Municipalities may be treated as "persons" for the purpose of § 1983 claims "where . . . the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by [the municipality's] officers." Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690 (1978); accord Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 124-25 (2d Cir. 2004). A municipality may not, however, be held liable under § 1983 on the basis of respondeat superior. See Monell, 436 U.S. at 694-95; accord Roe v. City of Waterbury, 542 F.3d 31, 36 (2d Cir. 2008), cert. denied, 130 S. Ct. 95 (2009); Plair v. City of New York, 789 F. Supp. 2d 459, 468 (S.D.N.Y. 2011). "Rather, a plaintiff must establish both a violation of his or her constitutional rights and that the violation was caused by a municipal policy or custom; that is, that the policy or custom was the actual 'moving force' behind the alleged wrongs." Jouthe v. City of New York, 2009 WL 701110, at *7 (E.D.N.Y. Mar. 10, 2009) (citing Monell, 436 U.S. at 690-91; Bd. of the Cnty. Comm'rs v. Brown, 520 U.S. 397, 403-04 (1997)).

To establish a policy, the plaintiff must show one of the following:

(1) a formal policy, promulgated or adopted by the City, Monell, 436 U.S. at 690; (2) that an official with policymaking authority took action or made a specific decision which caused the alleged violation of constitutional rights, Pembaur v. City of Cincinnati, 475 U.S. 469, 483-84 (1986); or (3) the existence of an unlawful practice by subordinate officials was so permanent or well settled so as

to constitute a 'custom or usage' and that the practice was so widespread as to imply the constructive acquiescence of policymaking officials, City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988).

Jouthe, 2009 WL 701110, at *7; accord Dilworth v. Goldberg, 2011 WL 3501869, at *25 (S.D.N.Y. July 28, 2011).

Arnold marshals no evidence to support any of the methods under which a Monell claim can be proven. See Pl. Mem. of Law at 11. Instead, he points to a single instance in which a warrant was issued for another individual who was caught at 80 School Street with crack cocaine and who fled from the police. See Arnold Decl. ¶ 14; Guzman Report. Even if there were evidence that the other individual was the victim of a false arrest, the single incident is insufficient to show a "widespread" practice.

Any claims against Amicone personally must also fail because plaintiff has presented no evidence whatsoever regarding Amicone's conduct and has obviously not shown that he was "personally involved" in any constitutional violation.

2. Individual Police Officers

Arnold asserts a claim against the individual police officers for false arrest and malicious prosecution. Def. and Compl. ¶¶ 3, 6.

a. False Arrest

Arnold was arrested in connection with the August 28 incident after the Yonkers District Attorney's Office informed the court that a warrant had been issued based on that incident. Arnold Decl. ¶ 12. However, the City Defendants do not rely on the warrant in their summary judgment motion. Therefore, we analyze Arnold's claim under the standard for a warrantless arrest.

The elements of a false arrest claim under 42 U.S.C. § 1983 are substantially the same as the elements under New York law. See Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996). To state a claim for false arrest under New York law, "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 "existence of probable cause to arrest constitutes justification and 'is a complete defense to an action for false arrest.'" See Weyant, 101 F.3d at 852 (quoting Bernard, 25 F.3d at 102). Probable cause exists when an officer has "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 to be arrested has committed or is committing a crime." Id.; accord Gerstein v. Pugh, 420 U.S. 103, 111 (1975) ("The standard for arrest is probable cause, defined in terms of facts and circumstances sufficient to warrant a prudent man in believing that the suspect had committed or was committing an offense.") (citation and internal punctuation and quotation marks omitted); Dorman v. Castro, 347 F.3d 409, 412 (2d Cir. 2003); Shain v. Ellison, 273 F.3d 56, 67-68 (2d Cir. 2001); Singer v. Fulton Cnty. Sheriff, 63 F.3d 110, 119 (2d Cir. 1995) cert. denied, 517 U.S. 1189 (1996); Golino v. City of New Haven, 950 F.2d 864, 870 (2d Cir. 1991), cert. denied, 505 U.S. 1221 (1992). In evaluating these matters, the court should "consider the facts available to the officer at the time of the arrest." Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 128 (2d Cir. 1997). The existence of probable cause must be determined based on the totality of the circumstances, see Calamia v. City of New York, 879 F.2d 1025, 1032 (2d Cir. 1989), and evaluated under an "objective standard," United States v. Tramontana, 460 F.2d 464, 467 (2d Cir. 1972); Bulanov v. Town of Lumberland Constable Meehan, 2002 WL 181365, at *4 (S.D.N.Y. Feb. 6, 2002). It is an open question in the Second Circuit as to whether the defendant bears the burden of establishing the existence of probable cause or whether the plaintiff bears the burden of establishing its absence. See Davis v. Rodriguez, 364 F.3d 424, 434 n.8 (2d Cir. 2004); accord Merring v. The Town of Tuxedo, N.Y., 2009 WL 849752, at *9 (S.D.N.Y. Mar. 31, 2009).⁶ Finally, "[t]he question of whether or not probable cause existed may be determinable as a matter of law if there is no dispute as to the pertinent events and the knowledge of the officers." Weyant, 101 F.3d at 852; accord Bulanov, 2002 WL 181365, at *4.

6 The burden of showing lack of probable cause in a false arrest claim arising under New York state law is on the defendant. See Dickerson v. Napolitano, 604 F.3d 732, 751 (2d Cir. 2010).

The City Defendants argue that Arnold was not falsely arrested or imprisoned because the officers had probable cause to arrest him. City Mem. of Law at 4. The sole evidence they offer in support of this argument is the Yonkers Police Department Investigation Report relating to the arrest. See id.; City 56.1 Stat. ¶ 3; Invest. Report. The report and subsequent laboratory report provide probable cause to believe that an individual who stated his name as "Stanley Arnold" committed the crimes of trespass and drug possession. See id.; Lab Report. But it provides almost no evidence showing that the officers had probable cause to believe this individual was plaintiff. The report states only that the officers viewed "past Booking Data Sheets in an attempt to identify [the suspect]." See Invest. Report. It then states that the officers "obsereved [sic] a past Booking sheet under the name of Umar Taqua AKA Stanely A Arnold (DOB 06/27/1966) as [the suspect]." Id. There is no explanation of how the officers were able to determine from the "Booking Data Sheets" that the individual associated with any of the booking sheets was the suspect at 80 School Street. There is no evidence as to what these "Booking Data Sheets" are. Nor is there any evidence that the booking sheets contained a photograph of Arnold or some other data that identified Arnold. Obviously, there is no evidence if there were a photograph in a booking sheet associated with Arnold that it resembled the suspect whom they saw on August 28, 2008. In light of this absence of evidence, and in light of Arnold's sworn affidavit that he was not present at 80 School Street that day, see Arnold Decl. ¶ 9, a reasonable jury could conclude that the officers did not in fact have reason to believe that Arnold was the person they saw at that location. For the same reason, the officers are not entitled to qualified immunity, as there is an issue of fact as to whether it was "objectively reasonable," see Jenkins v. City of New York, 478 F.3d 76, 87 (2d Cir. 2007), for the officers to have believed that probable cause for Arnold's arrest existed. Defendants do not make any other argument that Arnold's claim for false arrest is defective. City Mem. of Law at 4-6.⁷ Accordingly, it cannot be dismissed as to the individual police officers.

7 The City Defendants mention in passing that Arnold might have been incarcerated due to his prior felony case regardless of his arrest. See City Mem. of Law at 6; City Reply ¶ 10. However, it is unclear if they are arguing that this could defeat Arnold's false arrest claim. As the issue has not been briefed, we do not reach the question of whether or not this argument could constitute a defense to the false arrest claim.

b. Malicious Prosecution

To prevail on a claim of malicious prosecution, a plaintiff must show four elements: (1) the defendant initiated a prosecution against the plaintiff, (2) the matter terminated in the plaintiff's favor, (3) there was not probable cause to believe the proceeding could succeed, and (4) the proceeding was begun with malice. See Kinzer v. Jackson, 316 F.3d 139, 143 (2d Cir. 2003); accord O'Brien v. Alexander, 101 F.3d 1479, 1484 (2d Cir. 1996). Defendants make only one argument for dismissal of this claim: that the lack of probable cause element has not been met. City Mem. of Law at 7. The probable cause determination relevant to a malicious prosecution claim differs from that of a false arrest claim in that "the existence, or lack, of probable cause is measured as of the time the judicial proceeding is commenced . . . , not the time of the preceding warrantless arrest." Mejia v. City of New York, 119 F. Supp. 2d 232, 254 (E.D.N.Y. 2000); see also Davis v. City of New York, 373 F. Supp. 2d 322, 329 (S.D.N.Y. 2005). Here, the judicial proceedings commenced at the same time as Arnold's warrantless arrest. See Arnold Decl. ¶ 12. Because there is an issue of fact as to whether the police officers had probable cause to arrest Arnold, an issue of fact also exists as to whether there was probable cause to believe the proceeding could succeed. Accordingly, this claim cannot be dismissed. Additionally, for the reasons already stated, defendants are not entitled to qualified immunity on this claim either.

C. Additional Matters

Although not addressed by either party, we note that Arnold has also asserted claims against the Yonkers District Attorney's Office for malicious prosecution and infringement of his right to a fair trial. See Def. and Compl. ¶¶ 2, 7. There is no proof that the Yonkers District Attorney's Office was ever served and thus the case against them would have to be dismissed under Federal Rule of Civil Procedure 4(m). Additionally, prosecutors enjoy absolute immunity for activities that are "intimately associated with the judicial phase of the criminal process." Imbler v. Pachtman, 424 U.S. 409, 430 (1976); accord Van de Kamp v. Goldstein, 555 U.S. 335, 340-41 (2009). As Arnold's claims are based on such activities, they must be dismissed.

Finally, while defendants do not make the argument, the facts in the record would not allow Officer Medina to be held responsible for Arnold's arrest as there are no allegations of his involvement in the arrest whatsoever.⁸

8 While Medina signed a form that is part of the laboratory report, see Lab Report at 2, his name does not appear in Arnold's Rule 56.1 statement, see Pl. 56.1 Stat., and there are no facts connecting him personally to Arnold's arrest.

IV. Conclusion

For the foregoing reasons, the Housing Authority Defendants' motion for summary judgment (Docket # 69) should be granted. The City Defendants' motion for summary judgment (Docket # 74) should be granted in part and denied in part. Specifically, all claims should be dismissed except the claims for false arrest and malicious prosecution under 42 U.S.C. § 1983 against defendants Geary, Salierno and Pappas.

PROCEDURE FOR FILING OBJECTIONS TO THIS

REPORT AND RECOMMENDATION

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have fourteen (14) days including weekends and holidays from service of this Report and Recommendation to serve and file any objections. See also Fed. R. Civ. P. 6(a), (b), (d). Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with copies sent to the Hon. Deborah A. Batts, and to the undersigned, at 500 Pearl Street, New York, New York 10007. Any request for an extension of time to file objections must be directed to Judge Batts. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010). Dated: January 4, 2012

New York, New York

/s/_________

GABRIEL W. GORENSTEIN

United States Magistrate Judge Copies sent to: Matthew H. Goldsmith
Goldsmith & Associates, PLLC
350 Broadway, 10^th Floor
New York, NY 10013 Rory McCormick
Corporation Counsel, City of Yonkers
City Hall, Room 300
Yonkers, NY 10701 Martin S. Tackel
Tackel & Varachi, LLP
445 Hamilton Avenue, Suite 1501
White Plains, NY 10601