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construing pro se plaintiff's claim against Nassau County Police Department as Monell claim against Nassau County
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No. 11-CV-3836 (JFB)(WDW)
07-09-2013
JOHN DALY, Plaintiff, v. DETECTIVES ROBERT RAGONA SHD #529, ROBERT HILLMAN SHD #455, STEPHEN KOWALSKI SHD #807, DOUGLAS SORENSON SHD #909, EDWARD BYRNES SHD #414, ROBERT GALLY SHD #687, THOMAS WASHINGTON SHD #632, NASSAU COUNTY POLICE DEPARTMENT, AND PETER SHANK, Defendants.
Plaintiff is proceeding pro se. Defendants are represented by Peter A. Laserna of the Office of the Nassau County Attorney, One West Street, Mineola, N.Y. 11501.
MEMORANDUM AND ORDER
:
Pro se plaintiff John Daly ("Daly" or "plaintiff") brings this action pursuant to 42 U.S.C. § 1983 ("Section 1983") against Detectives Robert Ragona, Robert Hillman, Stephen Kowalski, Douglas Sorenson, Edward Byrnes, Robert Gally, and Thomas Washington, as well as the Nassau County Police Department and Peter Shank ("defendants"). Plaintiff alleges that his arrest and subsequent criminal prosecution for crimes that were committed in 2001 were unconstitutional. Specifically, construing plaintiff's complaint liberally, plaintiff brings claims against the defendants for false arrest, false imprisonment, malicious prosecution, Monell liability, and Section 1983 conspiracy to deprive him of his civil rights.
On February 29, 2012, the parties filed a signed stipulation of voluntary discontinuance as to defendant Peter Shank pursuant to Rule 41(a)(1)(A)(i) of the Federal Rules of Civil Procedure. This Court signed that stipulation on March 1, 2012, thereby ordering defendant Shank's dismissal from the instant action.
Presently before the Court is defendants' motion for summary judgment made pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons discussed below, the Court grants defendants' motion for summary judgment in its entirety.
First, as to plaintiff's false arrest and false imprisonment claims, the Court grants summary judgment in defendants' favor because they are untimely. Plaintiff was arrested on February 26, 2001, meaning that the three-year statute of limitations applicable to his false arrest and false imprisonment claims accrued on that date. Accordingly, because plaintiff filed the complaint in this action more than ten years after the date of his arrest, his false arrest and false imprisonment claims are time-barred.
Second, the Court grants defendants' motion for summary judgment with respect to plaintiff's malicious prosecution claim because plaintiff has failed to establish certain requisite elements of his claim. Specifically, plaintiff has failed to rebut the presumption of probable cause created by the Grand Jury indictment in his criminal case, and has also failed to establish that his imprisonment constituted a seizure implicating his personal liberty and privacy rights under the Fourth Amendment.
Third, given that plaintiff has failed to establish an actual deprivation of his constitutional rights (via his false imprisonment, false arrest, or malicious prosecution claims), his Section 1983 conspiracy claim cannot survive summary judgment.
Fourth, with respect to plaintiff's claims against the Nassau County Police Department, the Court dismisses those claims because the Department is merely an administrative arm of a municipality - Nassau County - and, accordingly, cannot sue or be sued. Moreover, to the extent that plaintiff means to assert a Monell claim against the municipality, that claim cannot survive summary judgment because there is no evidence of an unconstitutional policy, practice, or custom by Nassau County, or a failure to supervise or train, as it relates to the issues in this case.
Finally, to the extent that plaintiff has any remaining state law claims against defendants, the Court declines to exercise supplemental jurisdiction over those claims.
I. BACKGROUND
A. Factual Background
The Court has taken the facts set forth below from the parties' affidavits and exhibits, and from the defendants' Rule 56.1 Statement of Facts. upon consideration of a motion for summary judgment, the Court shall construe the facts in the light most favorable to the non-moving party. See Capobianco v. City of N.Y., 422 F.3d 47, 50 (2d Cir. 2005). Unless otherwise noted, where a party's 56.1 Statement is cited, that fact is undisputed or the opposing party has pointed to no evidence in the record to contradict it.
The Court notes that plaintiff has failed to file a Rule 56.1 Statement of undisputed facts. Generally, a party's "'failure to respond or contest the facts set forth by the [moving party] in [its] Rule 56.1 statement as being undisputed constitutes an admission of those facts, and those facts are accepted as being undisputed." Jessamy v. City of New Rochelle, 292 F. Supp. 2d 498, 504 (S.D.N.Y. 2003) (quoting NAS Elecs., Inc. v. Transtech Elecs. PTE Ltd., 262 F. Supp. 2d 134, 139 (S.D.N.Y. 2003)). However, "[a] district court has broad discretion to determine whether to overlook a party's failure to comply with local court rules." Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir. 2001) (citations omitted); see also Gilani v. GNOC Corp., No. 04 Civ. 2935 (ILG), 2006 U.S. Dist. LEXIS 23397, at *4-5 (E.D.N.Y. Apr. 25, 2006) (exercising court's discretion to overlook the parties' failure to submit statements pursuant to Local Civil Rule 56.1). Accordingly, in the exercise of its broad discretion and given plaintiff's pro se status, the Court will overlook this defect and will deem admitted only those facts in defendants' Rule 56.1 Statement that are supported by admissible evidence and not controverted by other admissible evidence in the record. See Jessamy, 292 F. Supp. 2d at 504.
In addition, although the defendants' Rule 56.1 Statement contains specific citations to the record, the Court has cited to the Rule 56.1 Statement, rather than the underlying citation to the record.
Plaintiff was arrested by members of the Nassau County Police Department on February 26, 2001 for (1) robbery and assault in connection with an incident that occurred at an Off-Track Betting ("OTB") site on January 14, 2001, and (2) attempted robbery and assault in connection with an incident that occurred at a Mobil gas station on February 26, 2001. (Defs.' 56.1 ¶¶ 9-10.) All of the individual detectives named in this action were police officers employed by the Nassau County Police Department at the time of plaintiff's arrest. (Id. ¶ 2.) On July 16, 2001, the Grand Jury of the County of Nassau indicted plaintiff on twelve counts - the first eight counts pertaining to the robbery and assault which took place at the OTB site, and the last four counts relating to the attempted robbery and assault that occurred at the Mobil gas station. (Id. ¶¶ 11-13.)
On January 6, 2003, following a jury trial in the County Court of Nassau County, plaintiff was convicted of six counts of robbery in the first degree, two counts of assault in the first degree, and two counts of attempted robbery in the first degree. (Id. ¶ 14.) Plaintiff was not convicted of the remaining two counts of the twelve count indictment - the counts that pertained to attempted murder in the first degree. (Id. ¶ 15.)
By Order dated December 8, 2008, the New York State Supreme Court, Appellate Division, Second Department, vacated the portion of the judgment rendered in County Court on January 6, 2003 that convicted plaintiff of six counts of robbery in the first degree and one count of assault in the first degree related to the robbery and assault that took place on January 14, 2001 at the OTB site. (Id. ¶ 16.) The Second Department's vacatur was based on the prosecution's failure to turn over two witness statements during the criminal proceedings, in violation of People v. Rosario, 9 N.Y.2d 286 (1961) and Brady v. Maryland, 373 U.S. 83 (1963), and the reasonable possibility that the failure to turn over such evidence contributed to the guilty verdict rendered on those counts. (Id. ¶ 18.)
Specifically, the prosecution failed to turn over (1) notes of the interview with Peter Shank, a witness at plaintiff's criminal trial, conducted on January 16, 2001, and (2) a statement of Terry Rodgers, wherein he described the perpetrator of the January 14, 2001 crimes as a dark-skinned, Italian male with long brown hair at a height of approximately 5'10'' and weight of approximately 160 lbs. (Id. ¶ 20-21.) The Second Department remitted the matter to the County Court of Nassau County for a new trial on the counts related to the OTB incident - counts one through six and count eight of the original indictment. (Id. ¶ 17.) However, the Second Department affirmed plaintiff's conviction on the counts relating to the robbery and assault that took place at the Mobil station on February 26, 2001, explicitly rejecting plaintiff's argument that there was a prejudicial spillover effect warranting the reversal of those convictions. (Id. ¶ 22.)
Plaintiff claims that he had no knowledge of the existence of this evidence until March of 2003, when his wife went to the clerk's office to view the case file and learned from a police report contained within the file that witness statements had been taken in connection with plaintiff's arrest. (See Pl.'s Opp'n to Defs.' Mot. for Summ. J. ("Pl.'s Opp'n") at 2.) Plaintiff explains that, after learning of the existence of those statements, he submitted FOIL requests and, by Order dated March 4, 2005, Judge Dunne directed that the statements be turned over to plaintiff. (Id. at 2.)
On May 19, 2010, the Nassau County District Attorney's Office moved to dismiss the seven counts against plaintiff pertaining to the January 14, 2001 assault and robbery that took place at the OTB site. (Id. ¶¶ 23-24.) Plaintiff was incarcerated until at least June 21, 2011, for his conviction on the counts related to the February 26, 2001 Mobil gas station robbery. (Id. ¶ 25.)
B. Procedural History
Plaintiff filed the complaint in this action on July 27, 2011. The defendants filed an answer to the complaint on January 9, 2012. By letter dated November 19, 2012, defendants requested a pre-motion conference in anticipation of moving for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. By Order dated November 20, 2012, this Court waived the pre-motion conference requirement and set a briefing schedule for defendants' motion for summary judgment.
Defendants filed their motion for summary judgment on February 20, 2013. Plaintiff filed his opposition on April 22, 2013, and the defendants filed their reply in further support of their motion on May 6, 2013. The Court has fully considered the parties' submissions.
II. STANDARD OF REVIEW
The standard for summary judgment is well settled. Pursuant to Federal Rule of Civil Procedure 56(a), a court may only grant a motion for summary judgment if "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The moving party bears the burden of showing that he or she is entitled to summary judgment. Huminski v. Corsones, 396 F.3d 53, 69 (2d Cir. 2005). "A party asserting that a fact cannot be or is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1). The court "is not to weigh the evidence but is instead required to view the evidence in the light most favorable to the party opposing summary judgment, to draw all reasonable inferences in favor of that party, and to eschew credibility assessments." Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 122 (2d Cir. 2004) (quoting Weyant v. Okst, 101 F.3d 845, 854 (2d Cir. 1996)); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986) (summary judgment is unwarranted if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party").
Moreover, when the plaintiff is proceeding pro se, as he is in this case, the Court is required to construe his submissions liberally, "to raise the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994); see also Ibeawuchi v. United States, 209 F.R.D. 320, 321-22 (S.D.N.Y. 2002) ("Where . . . a pro se litigant is involved, although the same standards for dismissal apply, a court should give the pro se litigant special latitude in responding to a summary judgment motion.").
Once the moving party has met its burden, the opposing party "'must do more than simply show that there is some metaphysical doubt as to the material facts . . . . [T]he nonmoving party must come forward with specific facts showing that there is a genuine issue for trial.'" Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir. 2002) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986) (emphasis in original)). As the Supreme Court stated in Anderson, "[i]f the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50, 106 S. Ct. 2505 (citations omitted). Indeed, "the mere existence of some alleged factual dispute between the parties" alone will not defeat a properly supported motion for summary judgment. Id. at 247-48, 106 S. Ct. 2505 (emphasis in original). Thus, the nonmoving party may not rest upon mere conclusory allegations or denials but must set forth "'concrete particulars'" showing that a trial is needed. R.G. Group, Inc. v. Horn & Hardart Co., 751 F.2d 69, 77 (2d Cir. 1984) (quoting SEC v. Research Automation Corp., 585 F.2d 31, 33 (2d Cir. 1978)). Accordingly, it is insufficient for a party opposing summary judgment "'merely to assert a conclusion without supplying supporting arguments or facts.'" BellSouth Telecomms., Inc. v. W.R. Grace & Co., 77 F.3d 603, 615 (2d Cir. 1996) (quoting Research Automation Corp., 585 F.2d at 33).
III. DISCUSSION
A. Plaintiff's Section 1983 Claims
Plaintiff asserts that defendants violated his constitutional rights under Section 1983. To prevail on a claim under Section 1983, a plaintiff must show: (1) the deprivation of any rights, privileges, or immunities secured by the Constitution and its laws, (2) by a person acting under the color of state law. 42 U.S.C. § 1983. Section 1983 does not itself create substantive rights; it offers "a method for vindicating federal rights elsewhere conferred." Patterson v. Cnty. of Oneida, 375 F.3d 206, 225 (2d Cir. 2004).
Here, plaintiff brings claims under Section 1983 for false arrest, false imprisonment, and malicious prosecution in violation of the Fourth and Fourteenth Amendments and for conspiracy.
1. False Arrest and False Imprisonment
Claims
Plaintiff claims that the defendants caused him to "be falsely arrested and imprisoned for the OTB robbery." (Compl. ¶ 54.) In moving for summary judgment on plaintiff's false arrest and false imprisonment claims, defendants argue, amongst other things, that plaintiff's claims are time barred by the applicable statute of limitations. The Court agrees.
A Section 1983 claim for false arrest is substantially the same as a claim for false arrest under state law. See Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996). "Under New York law, a plaintiff claiming false arrest must show, inter alia, that the defendant intentionally confined him without his consent and without jurisdiction." Id. The existence of probable cause to arrest is a "complete defense to an action for false arrest" brought under Section 1983 or state law. Id. (quoting Bernard v. United States, 25 F.3d 98, 102 (2d Cir. 1994)) (additional citation omitted). "The same holds true for [a] false imprisonment claim[] because, under New York law, the claim is identical to a false arrest claim and the federal claim looks to the elements of the state claim." Killburn v. Vill. of Saranac Lake, 413 F. App'x 362, 363 (2d Cir. 2011) (internal citations omitted).
The statute of limitations for a Section 1983 claim arising in New York is three years. See Lynch v. Suffolk Cnty. Police Dep't, Inc., 348 F. App'x 672, 674 (2d Cir. 2009). Although state law provides the statute of limitations period, federal law determines when Section 1983 claims have accrued. See Wallace v. Kato, 549 U.S. 384, 388 (2007). For Section 1983 claims of false arrest and false imprisonment, the statute of limitations begins to run "at the time the claimant becomes detained pursuant to legal process." Id. at 389; see also id. at 397 (holding that the statute of limitations for Section 1983 claims seeking damages for false arrest or false imprisonment begins to run "at the time the claimant becomes detained pursuant to legal process," i.e. when "he is bound over by a magistrate or arraigned on charges"); see also Lynch, 348 F. App'x at 675 ("[P]laintiff's claim of false imprisonment under § 1983 accrued when plaintiff was arraigned in 1997."); Lont v. Roberts, 12-CV-4960 (MKB), 2013 U.S. Dist. LEXIS 60888, at *7 (E.D.N.Y. Apr. 26, 2013) ("Plaintiff's false arrest claim accrued on October 7, 2007, the date he was arrested."). Plaintiff's false arrest and false imprisonment claims accrued, therefore, on February 26, 2001, the date upon which he was arrested. Because plaintiff waited until July 27, 2011 to file his complaint - more than 10 years after the statute of limitations on his claims began to run and more than 7 years after the limitations period expired - his false arrest and false imprisonment claims are untimely and summary judgment on those claims is granted in defendants' favor.
The Court notes that "this case does not present rare and exceptional circumstances that would warrant equitable tolling of the statute of limitations" for plaintiff's false arrest and false imprisonment claims. Covington v. N.Y.C. Police Dep't, 471 F. App'x 28, 29 (2d Cir. 2012). There is no evidence of extraordinary circumstances that prevented plaintiff from timely filing his false arrest and false imprisonment claims; plaintiff could have filed a complaint asserting the claims after his 2001 arrest or even after his 2003 trial, two points in time that would have fallen within the applicable limitations period. See id. ("The record here reveals no extraordinary circumstances that prevented the timely filing of Covington's false arrest claim. Covington could have filed a complaint asserting the false arrest claim after his 1990 arrest, or even after the 1991 dismissal of the case, which would have been within the limitations period established by then-controlling case law.").
Moreover, given the validity of plaintiff's conviction for the Mobile gas station robbery, which was also the basis for his arrest, any false arrest claim would be precluded by Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). See Wilkinson v. Dotson, 544 U.S. 74, 81 (2005) ("Heck specifies that a prisoner cannot use § 1983 to obtain damages where success would necessarily imply the unlawfulness of a (not previously invalidated) conviction or sentence.").
2. Malicious Prosecution Claim
Plaintiff also brings a malicious prosecution claim against defendants. Plaintiff claims that defendants' actions caused him to be "maliciously prosecuted for a crime he did not commit." (Compl. ¶ 58.) Defendants move for summary judgment on plaintiff's malicious prosecution claim, arguing the following: (1) the Grand Jury indictment establishes that there was probable cause to prosecute plaintiff for the OTB incident; (2) plaintiff has not produced any evidence of fraud or bad faith to rebut the presumption of probable cause; (3) plaintiff has failed to show that the criminal proceedings were initiated against him with malice; and (4) plaintiff has failed to establish a seizure or other perversion of proper legal procedures that implicated his personal liberty and privacy interests under the Fourth Amendment. For the reasons set forth below, the Court concludes that plaintiff has failed to put forth any evidence to rebut the presumption of probable cause created by the Indictment and, in any event, has not put forth any evidence that he was deprived of his liberty as a result of the OTB charges (given his conviction and sentence on the Mobil gas station robbery). Accordingly, summary judgment on this claim is granted in defendants' favor.
In his opposition papers, plaintiff asserts a series of new allegations in an attempt to support his malicious prosecution claim. However, as defendants describe in detail in their reply memorandum of law, there is absolutely no evidence in the record to support any of these new allegations.
a. Applicable Law
"The elements of . . . malicious prosecution under § 1983 are 'substantially the same' as the elements under New York law." Boyd v. City of N.Y., 336 F.3d 72, 75 (2d Cir. 2003) (quoting Hygh v. Jacobs, 961 F.2d 359, 366 (2d Cir. 1992)). To succeed on a malicious prosecution claim under § 1983, a plaintiff must show that (1) the defendant commenced or continued a criminal proceeding against him; (2) the proceeding was terminated in the plaintiff's favor; (3) there was no probable cause for the proceeding; and (4) the proceeding was instituted with malice. Droz v. McCadden, 580 F.3d 106, 109 (2d Cir. 2009); Drummond v. Castro, 522 F. Supp.2d 667, 677-78 (S.D.N.Y. 2007). Malicious prosecution claims under § 1983 also require that there "'be a seizure or other 'perversion of proper legal procedures' implicating the claimant's personal liberty and privacy interests under the Fourth Amendment.'" Conte v. Cnty. of Nassau, 06-CV-4746 (JFB)(ETB), 2008 U.S. Dist. LEXIS 25694, 2008 WL 905879, at *11 (E.D.N.Y. Mar. 31, 2008) (quoting Washington v. Cnty. of Rockland, 373 F.3d 310, 316 (2d Cir. 2004)). "Unreasonable seizure may be shown if a person is taken into custody, imprisoned, or physically detained." Jean v. City of N.Y., 08-CV-00157 (RER), 2009 U.S. Dist. LEXIS 98239, at *26 (E.D.N.Y. Oct. 22, 2009).
The Court notes that a malicious prosecution claim may be brought not only against prosecutors, but also against others - including police officers and investigators - who wrongfully caused a criminal defendant's prosecution. See Smith v. Almada, 640 F.3d 931, 938 (9th Cir. 2011).
"The existence of probable cause is a complete defense to a claim of malicious prosecution in New York, and indictment by a grand jury creates a presumption of probable cause." Manganiello v. City of N.Y., 612 F.3d 149, 161-62 (2d Cir. 2010) (alterations, internal citations, and quotation marks omitted). That presumption of probable cause created by a grand jury indictment "may be rebutted only by evidence that the indictment was procured by fraud, perjury, the suppression of evidence or other police conduct undertaken in bad faith." Id. (citation and internal quotation marks omitted) (explaining that "[w]here there is some indication in the police records that, as to a fact crucial to the existence of probable cause, the arresting officers may have lied in order to secure an indictment, and a jury could reasonably find that the indictment was secured through bad faith or perjury, the presumption of probable cause created by the indictment may be overcome" (citation and internal quotation marks omitted)); see also Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 130 (2d Cir. 1997) ("Like a prosecutor's knowing use of false evidence to obtain a tainted conviction, a police officer's fabrication and forwarding to prosecutors of known false evidence works an unacceptable 'corruption of the truth-seeking function of the trial process' . . ., and the harm occasioned by such an unconscionable action is redressable in an action for damages under 42 U.S.C. § 1983." (quoting United States v. Agurs, 427 U.S. 97, 104 (1976)) (additional citations omitted)).
"[T]he plaintiff [] bears the burden of proof in rebutting the presumption of probable cause that arises from [an] indictment." Savino v. City of N.Y., 331 F.3d 63, 73 (2d Cir. 2003) (explaining that, to survive summary judgment, the plaintiff must submit evidence "sufficient for a reasonable jury to find that his indictment was procured as a result of police conduct undertaken in bad faith," and finding that the district court erroneously shifted the burden to defendants by permitting plaintiff to rebut the presumption with mere "conjecture" and "surmise"); see also Bernard v. United States, 25 F.3d 98, 104 (2d Cir. 1994) (explaining that the criminal defendant is the one who "must establish that the indictment was produced by fraud, perjury, the suppression of evidence or other police conduct undertaken in bad faith" to negate a presumption of probable cause (citation and quotation marks omitted)). Accordingly, to adequately rebut the presumption of probable cause that is otherwise created by an indictment, a plaintiff must present more than mere "conjecture and surmise that his indictment was procured as a result of conduct undertaken by the defendants in bad faith." Id. (citation and internal quotation marks omitted).
As to the element of malice, it "may be shown by proving that the prosecution complained of was undertaken from improper or wrongful motives, or in reckless disregard of the rights of the plaintiff." Pinsky v. Duncan, 79 F.3d 306, 313 (2d Cir. 1996) (citation omitted); see also Lowth v. Town of Cheektowaga, 82 F.3d 563, 573 (2d Cir. 1996) (explaining that malice may be proven by demonstrating "that the defendant must have commenced the criminal proceeding due to a wrong or improper motive, something other than a desire to see the ends of justice served" (citation and quotation marks omitted)). A lack of probable cause generally creates an inference of malice. Manganiello, 612 F.3d at 163; Lowth, 82 F.3d at 573 ("In most cases, the lack of probable cause - while not dispositive - tends to show that the accuser did not believe in the guilt of the accused, and malice may be inferred from the lack of probable cause." (citation and internal quotation marks omitted)).
b. Analysis
Plaintiff was indicted by a Grand Jury on July 16, 2001. (Defs.' 56.1 ¶¶ 11-13.) Thus, there exists a presumption of probable cause for the criminal proceedings commenced against plaintiff. As discussed supra, the burden to rebut this presumption of probable cause rests with the plaintiff and, in this case, plaintiff has failed to come forward with evidence sufficient to rebut the presumption.
There is simply no evidence in the record tending to show that the indictment was secured through bad faith or perjury on the part of the named defendants. Plaintiff points to the fact that certain evidence was withheld during his criminal prosecution, and seems to argue that this later withholding of evidence proves that his Grand Jury indictment was procured in the absence of probable cause. (See Pl.'s Opp'n at 2-3.) However, the Assistant District Attorneys who presented this case to the grand jury "had the discretion and authority to decide what evidence to present to the grand jury," and were "under no duty to present every item of arguable exculpatory evidence in seeking an indictment." Savino, 331 F.3d at 75 (citing People v. Mitchell, 82 N.Y.2d 509, 515 (1993) ("The People maintain broad discretion in presenting their case to the Grand Jury and need not seek evidence favorable to the defendant or present all of their evidence tending to exculpate the accused.")); see also People v. Lancaster, 69 N.Y.2d 20, 25-26 (1986) ("The People generally enjoy wide discretion in presenting their case to the Grand Jury and are not obligated . . . to present all evidence in their possession that is favorable to the accused . . . . In the ordinary case, it is the defendant who, through the exercise of his own right to testify and have others called to testify on his behalf before the Grand Jury, brings exculpatory evidence to the attention of the Grand Jury." (internal citations omitted)).
Accordingly, even if the Court assumes that the evidence that was withheld during plaintiff's latter criminal prosecution (the witness statements that the Second Department found were improperly held back in violation of Brady and Rosario) was also withheld from the Grand Jury proceedings, the decision not to present such information to the Grand Jury does not amount to conduct undertaken in bad faith and, therefore, does not rebut the presumption of probable cause created by the indictment. In any event, the only defendants in this case are police officers who cannot be held liable for any independent decisions by the prosecutors. "In the absence of sufficient evidence that defendants - or any other officer - acted in bad faith, no reasonable juror could find that [plaintiff] has overcome the presumption of probable cause that arises from his indictment." Savino, 331 F.3d at 75. Because no rational jury could conclude that plaintiff has proven this essential element of his malicious prosecution claim - that there was no probable cause for the commencement or continuation of his criminal proceedings - plaintiff's malicious prosecution claim cannot survive summary judgment.
The Court recognizes that police officer conduct may not simply be shielded by the acts of the prosecutor. Said another way, the decisions a prosecutor makes while presenting a case to a grand jury will not shield a police officer who deliberately supplied misleading information that influenced those decisions from liability. See Pierce v. Gilchrist, 359 F.3d 1279, 1292 (10th Cir. 2004) (quoting Jones v. City of Chicago, 856 F.2d 985, 994 (7th Cir. 1988)). Here, however, plaintiff has come forward with no evidence tending to prove that the police officers named in the complaint concealed or failed to turn over the evidence in question to the prosecution in the first instance, let alone that they did so deliberately. See Savino, 331 F.3d at 73 (explaining that it is the plaintiff's burden to come forward with evidence sufficient to rebut the presumption of probable cause). Instead, in his opposition to summary judgment, plaintiff simply states, in a conclusory fashion, that the defendants withheld evidence from the prosecutor and the Grand Jury. (See Pl.'s Opp'n at 2.) Without any evidentiary support, such statements amount to the type of "conjecture" and "surmise" that is insufficient to rebut a presumption of probable cause. See Savino, 331 F.3d at 73. Plaintiff has, therefore, failed to rebut the presumption of probable cause created by the indictment under any theory that the named police officers deliberately withheld exculpatory evidence from the prosecution before the case was presented to the Grand Jury in order to secure an indictment.
Even assuming arguendo that plaintiff could rebut the presumption of probable cause created by the Grand Jury indictment, plaintiff's malicious prosecution claim would still fail because he was not subject to a "deprivation of liberty consistent with the concept of seizure . . . that resulted from the initiation or pendency of judicial proceedings." Faruki v. City of N.Y., 12-1750-cv, 2013 U.S. App. LEXIS 2619, at *3 (2d Cir. Feb. 7, 2013) (internal citations and quotation marks omitted). The criminal proceedings against plaintiff covered charges related to both the Mobil gas station and the OTB incidents. At the conclusion of the proceedings, plaintiff was convicted of charges related to both incidents, and was sentenced to a term of imprisonment based upon his involvement in both episodes. When the charges pertaining to the OTB incident were subsequently vacated, plaintiff's term of imprisonment was shortened. Specifically, a twelve and a half year sentence (for the charges related to the Mobil gas station incident) remained intact following the vacatur of the charges related to the OTB incident. (See Defs.' Mem. of Law in Supp. of Mot. for Summ. J. Ex. C., Minutes of Proceeding before N.Y. Sup. Ct. May 19, 2010, at 2.) Plaintiff's imprisonment began in 2003, his charges related to the OTB incident were vacated in 2008, and he continued to be imprisoned until he was released on parole in November of 2011. Given that plaintiff received a twelve and a half year sentence for the Mobil gas station incident charges alone, it is undisputed that he would have served the term of imprisonment that he actually served even if he had not been prosecuted for the OTB incident. Plaintiff has, therefore, failed to show that there was a seizure implicating his personal liberty and privacy interests under the Fourth Amendment. See, e.g., Walker v. Sankhi, 494 F. App'x 140, 143 (2d Cir. 2012) ("[E]ven if he could overcome the presumption of probable cause, Walker could not have suffered a deprivation of liberty as a result of the Bellamy burglary charge because, throughout the pendency of that charge, he was already in custody, and remained in custody, for a completely separate burglary charge, of which he was ultimately convicted."); English v. Pero, 07-CV-00230F, 2011 U.S. Dist. LEXIS 34518, at *13-14 (W.D.N.Y. Mar. 31, 2011) (finding no Fourth Amendment seizure because, although plaintiff was acquitted of drug and weapons possession charges, he "would still have endured a deprivation of his liberty as a result of the detention order pertaining solely to the weapons possession charge" of which he was convicted). Accordingly, plaintiff has failed to establish "a harm cognizable under § 1983," Singer v. Fulton Cnty. Sheriff, 63 F.3d 110, 116 (2d Cir. 1995), and summary judgment is granted in defendants' favor on plaintiff's malicious prosecution claim on this independent ground.
See Dep't of Corrections and Cmty. Supervision Inmate Information for John Daly, http://nysdoccslookup.doccs.ny.gov/GCA00P00/WIQ3/WINQ130 (last visited Jun3 12, 2013).
3. Conspiracy Claim
Plaintiff also brings a Section 1983 conspiracy claim against the defendants. Plaintiff claims that the defendants (1) "conspired to arrest and charge Plaintiff with the January 14, 2001 OTB robbery by concealing and disregarding Brady material" (Compl. ¶ 44), and (2) "conspire[d] to deprive Plaintiff of his clearly established constitutional rights by concealing Brady material and knowingly relying on defendant Shank's unreliable identification to crate probable cause to arrest and charge Plaintiff for the OTB robbery on February 26, 2001" (id. ¶ 50). Construing these allegations liberally, the Court understands plaintiff to be asserting that the individual County defendants conspired either with each other or with members of the Nassau County District Attorney's Office (the Office that prosecuted plaintiff in the underlying criminal matter) to conceal Brady material in order to arrest and imprison plaintiff.
To prove a Section 1983 conspiracy claim, a plaintiff must show "(1) an agreement between two or more state actors or between a state actor and a private entity; (2) to act in concert to inflict an unconstitutional injury; and (3) an overt act done in furtherance of that goal causing damages." Pangburn v. Culbertson, 200 F.3d 65, 72 (2d Cir. 1999). Unsubstantiated allegations of purported collaboration between a state actor and a private party are insufficient to defeat a motion for summary judgment. See Scotto v. Almenas, 143 F.3d 105, 115 (2d Cir. 1998); Leon v. Murphy, 988 F.2d 303, 311 (2d Cir. 1993) (affirming grant of summary judgment in defendants' favor because plaintiff's allegations of conspiracy were "unsupported by any specifics, and many of them [were] flatly contradicted by the evidence proffered by defendants").
As discussed supra, plaintiff has failed to prove an actual deprivation of his constitutional rights. Because a plaintiff must establish both a conspiracy and an actual deprivation of rights in order to prove a Section 1983 conspiracy, plaintiff's conspiracy claim cannot survive summary judgment. See Shultz v. Inc. Vill. of Bellport, 479 F. App'x 358, 360 (2d Cir. 2012) ("Because Shultz was unable to establish an underlying violation of his constitutional rights . . ., his conspiracy claim . . . necessarily fail[s] as well." (citing Droz, 580 F.3d at 109 ("Because neither of the underlying section 1983 causes of action can be established, the claim for conspiracy also fails.")) (additional citation omitted)); see also Landrigan v. Warwick, 628 F.2d 736, 742 (1st Cir. 1980) ("In order to state an adequate claim for relief under Section 1983, plaintiff must allege and prove both a conspiracy and an actual deprivation of rights; mere proof of a conspiracy is insufficient to establish a section 1983 claim. The gist of the section 1983 cause of action is the deprivation and not the conspiracy." (internal citations and quotation marks omitted)).
Even assuming arguendo that plaintiff could prove a violation of his constitutional rights, because the Court finds that the evidence in the record does not support plaintiff's "conclusory allegations" and "unsubstantiated speculation" in regards to his conspiracy claims, the Court concludes that plaintiff has failed to prove the existence of a conspiracy between the individual County defendants named in this action or between the County defendants and members of the Nassau County District Attorney's Office to defeat summary judgment. See Scotto, 143 F.3d at 114 ("The non-moving party may not rely on conclusory allegations or unsubstantiated speculation."). Accordingly, summary judgment on plaintiff's Section 1983 conspiracy claim is granted in defendants' favor.
B. Plaintiff's Monell Claims
Plaintiff has also named the Nassau County Police Department as a defendant in this Section 1983 action. To the extent plaintiff seeks to recover against the Nassau County Police Department and/or Nassau County under Monell, his claims cannot survive summary judgment.
The Supreme Court has explained that a municipal entity may be held liable under Section 1983 where a plaintiff demonstrates that the constitutional violation complained of was caused by a municipal "policy or custom." Monell v. Dep't of Soc. Servs. of N.Y., 436 U.S. 658, 694 (1978). "The policy or custom need not be memorialized in a specific rule or regulation." Kern v. City of Rochester, 93 F.3d 38, 44 (2d Cir. 1996) (citing Sorlucco v. N.Y.C. Police Dep't, 971 F.2d 864, 870 (2d Cir. 1992)). Instead, constitutional violations by city officials that are "persistent and widespread" can be "so permanent and well settled as to constitute a custom or usage with the force of law, and thereby generate municipal liability." Sorlucco, 971 F.2d at 870-71 (citing Monell, 436 U.S. at 691) (internal quotation marks omitted). Moreover, a policy, custom, or practice of the entity may be inferred where "'the municipality so failed to train its employees as to display a deliberate indifference to the constitutional rights of those within its jurisdiction.'" Patterson, 375 F.3d at 226 (quoting Kern, 93 F.3d at 44). However, a municipal entity may only be held liable where the entity itself commits a wrong: "a municipality cannot be held liable under § 1983 on a respondeat superior theory." Monell, 436 U.S. at 691; see also Segal v. City of N.Y., 459 F.3d 207, 219 (2d Cir. 2006) ("Monell does not provide a separate cause of action for the failure by the government to train its employees; it extends liability to a municipal organization where that organization's failure to train, or the policies or customs that it has sanctioned, led to an independent constitutional violation.").
As to the Nassau County Police Department, plaintiff simply cannot maintain a Monell claim against that entity, no matter what his theory of liability may be. The County Police Department is "merely [an] administrative arm[] of a municipality" - Nassau County - and "do[es] not have a legal identity separate and apart from the municipality and therefore, cannot sue or be sued." David v. Lynbrook Police Dep't, 224 F. Supp. 2d 463, 477 (E.D.N.Y. 2002); see also Melendez v. Nassau Cnty., No. 10-CV-2516 (SJF)(WDW), 2010 WL 3748743, at *5 (E.D.N.Y. Sept. 17, 2010) (dismissing plaintiff's claims against the Nassau County Sheriff's Department Division of Correction and the Nassau County Correctional Center because those entities are "administrative arms of Nassau County, and therefore are not suable entities"). Thus, because plaintiff cannot raise a plausible Monell claim against the Nassau County Police Department, his claim against the Department is dismissed.
Even if the Court construes plaintiff's claim against the Nassau County Police Department as a Monell claim against Nassau County, plaintiff's claim does not survive summary judgment. As discussed supra, plaintiff cannot prevail on any of his Section 1983 claims against the individual County defendants in this case. Finding no underlying constitutional violation to have been committed, the Court need not address the County's liability under Monell. See Segal v. City of N.Y., 459 F.3d 207, 219 (2d Cir. 2006) ("Because the district court properly found no underlying constitutional violation, its decision not to address the municipal defendants' liability under Monell was entirely correct."); see also Bernshtein v. City of N.Y., 496 F. App'x 140, 144 (2d Cir. 2012) ("To the extent that Bernshtein cannot establish Brockmann violated her constitutional rights (through false arrest, malicious prosecution, or excessive detention), the City of New York likewise is not liable on the Monell claims asserting those violations." (citations omitted)). Even assuming arguendo that the absence of an underlying constitutional violation did not preclude a Monell claim against the County in this case, the Court concludes that the County would still be entitled to summary judgment on that claim because of the absence of any evidence of an unconstitutional policy, practice, or custom by the County, or a failure to supervise or train, as it relates to the issues in this case.
Plaintiff's claims in this case are largely predicated on the fact that evidence related to the OTB robbery was improperly withheld from him during the course of his underlying criminal trial. Even construing plaintiff's submissions liberally, as the Court is required to do when a plaintiff is proceeding pro se, there is simply no evidence that the County had established a policy or custom of withholding exculpatory evidence from criminal defendants, or that the County failed to supervise or train its employees with regard to Rosario and Brady material. See, e.g., Jean-Laurent v. Wilkerson, 461 F. App'x 18, 22-23 (2d Cir. 2012) (affirming district court's decision to grant summary judgment in defendants' favor on plaintiff's Monell claim because plaintiff "did not carry [his] burden, inasmuch as he offered no relevant or admissible evidence in support of his assertion that the City of New York had established a policy or custom of use of excessive and brutal physical force against inmates/detainees by correctional officers, and he did not establish that the deprivation of his constitutional rights was caused by any such policy").
Accordingly, summary judgment is granted in defendants' favor on plaintiff's Monell claims against the Nassau County Police Department and Nassau County.
IV. CONCLUSION
For the foregoing reasons, the Court grants defendants' motion for summary judgment as to the federal claims, and declines to exercise supplemental jurisdiction over any state law claims. The Court certifies, pursuant to 28 U.S.C. § 1915 (a)(3), that any appeal from this order would not be taken in good faith; therefore, in forma pauperis status is denied for purposes of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of the Court shall close this case and enter judgment accordingly.
In their moving papers, defendants request that the Court dismiss plaintiff's state law claims for failure to file a notice of claim. (See Defs.' Mem. of Law in Supp. of Mot. for Summ. J. at 2, 14.) Based upon its review of the Complaint, the Court does not construe any state law causes of action. However, to the extent that plaintiff means to bring state law claims against the defendants, the Court, in its discretion, declines to exercise supplemental authority over those claims because it has determined, as discussed supra, that plaintiff's federal claims do not survive judgment. 28 U.S.C. § 1367(c)(3); United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966); Birch v. Pioneer Credit Recovery, Inc., 06-CV-6497T, 2007 U.S. Dist. LEXIS 41834, at *15 (W.D.N.Y. June 8, 2007) ("In the interest of comity, the Second Circuit instructs that 'absent exceptional circumstances,' where federal claims can be disposed of pursuant to Rule 12(b)(6) or summary judgment grounds, courts should 'abstain from exercising pendent jurisdiction.'" (quoting Walker v. Time Life Films, Inc., 784 F.2d 44, 53 (2d Cir. 1986))). Accordingly, pursuant to 28 U.S.C. § 1367(c)(3), the Court declines to retain jurisdiction against defendants over any remaining state law claims given the absence of any federal claims that survive summary judgment, and dismisses such state law claims without prejudice.
SO ORDERED.
/s/_________
JOSEPH F. BIANCO
United States District Judge Dated: July 9, 2013
Central Islip, NY
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Plaintiff is proceeding pro se. Defendants are represented by Peter A. Laserna of the Office of the Nassau County Attorney, One West Street, Mineola, N.Y. 11501.