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finding internal conflicts and a lack of corroboration for defendants' version of events
Summary of this case from Richardson v. City of New YorkOpinion
98 Civ. 7731 (JGK)
March 22, 2001
OPINION AND ORDER
Plaintiff Bradley J. Funnye brings this action against Paragon Sporting Goods Co. LLC ("Paragon"), the City of New York and police officers Richard Terzian and Edward Wilenski. The plaintiff charges Paragon with false imprisonment, malicious prosecution, assault and battery, and negligence. The plaintiff alleges claims of false arrest in violation of 42 U.S.C. § 1983 against defendants Terzian and Wilenski and malicious prosecution in violation of 42 U.S.C. § 1983 against defendant Terzian. The plaintiff also alleges state law claims of false arrest and malicious prosecution against defendants Terzian and Wilenski; he alleges liability by the City of New York for those claims on a respondeat superior theory. The City of New York and defendants Terzian and Wilenski (collectively the "City defendants") now move pursuant to Fed.R.Civ.P. 56 for summary judgment. Paragon is not a party to this motion.
I.
The standard for granting summary judgment is well established. Summary judgment may not be granted unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); See also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc, 477 U.S. 242, 247-48 (1986); Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1223 (2d Cir. 1994). In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)); see also Gallo, 22 F.3d at 1223. Summary judgment is improper if there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994). "In considering the motion, the court's responsibility is not to resolve disputed issues of fact, but to assess whether there are factual issues to be tried." Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986). On a motion for summary judgment, once the moving party meets its initial burden of demonstrating the absence of a genuine issue of material fact, the nonmoving party must come forward with specific facts to show there is a factual question that must be resolved at trial. See Fed.R.Civ.P. 56(e). The non-moving party must produce evidence in the record and "may not rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible." Ying Jing Gan v. City of New York, 996 F.2d 522, 532 (2d Cir. 1993); see Scotto v. Almenas, 143 F.3d 105, 114-15 (2d Cir. 1998) (collecting cases); Wyler v. United States, 725 F.2d 156, 160 (2d Cir. 1983).
II.
The following facts are undisputed except where noted. On November 1, 1997, the plaintiff went to Paragon to shop for a ladies' running jacket for a friend. (See Deposition of Bradley J. Funnye ("Funnye Dep.") at 76-77.) He arrived at Paragon between 11:00 and 11:30 a.m. and was directed to the running department, located on the basement level of the store. (See Funnye Dep. at 76, 86.) The plaintiff spent 45 minutes to an hour on the basement level looking for a jacket. (See Funnye Dep. at 91-92.) At that time, Paragon store detective Louis Sanchez, accompanied by other Paragon security personnel, approached the plaintiff and asked the plaintiff to come with him. (See Funnye Dep. at 119; Deposition of Louis Sanchez ("Sanchez Dep.") at 149.) The reason for this request remains in dispute. Sanchez alleges that he approached the plaintiff after observing him tampering with the security sensor on a ladies' running jacket. (See Sanchez Dep. at 141-42; Def.'s 56.1 Stmt. ¶ 14.) The plaintiff denies tampering with any merchandise within the store and asserts that he was standing, emptyhanded, when Sanchez approached him. (See Funnye Dep. at 115-17, 128-29.) Ultimately, the plaintiff complied with Sanchez's request and accompanied him to a holding area upstairs in the store. (See Def.'s 56.1 Stmt. ¶ 17; Pl.'s 56.1 Stmt. ¶ 17.)
When they arrived in the holding area, Sanchez and the other security personnel frisked the plaintiff. (See Sanchez Dep. at 164; Funnye Dep. at 140-41.) Sanchez received a small cut to his head when he conducted the frisk. (See Sanchez Dep. at 191-92; Funnye Dep. at 154.) The events preceding the cut are also in dispute. Sanchez testified that when he attempted to place the plaintiff's hands on the wall, the plaintiff grabbed a bulletin board and "swung it" at Sanchez, resulting in the cut. (See Sanchez Dep. at 189.) The plaintiff contends that Sanchez threw him against the wall; at that point, his hands hit the end of the bulletin board, causing it to fall on Sanchez's head. (See Funnye Dep. at 153.)
This account, however, differs considerably from what Sanchez told defendant Terzian. Both Terzian and Sanchez testified at their depositions that Sanchez informed Terzian that as a result of a struggle between Sanchez and the plaintiff, the bulletin board fell on Sanchez's head. (See Sanchez Dep. at 231; Deposition of Richard Terzian ("Terzian Dep.") at 98-99.) In their 56.1 Statement, the defendants conform to this latter version of events. See Def.'s 56.1 Stmt. ¶¶ 25-26 ("[The plaintiff's] hands hit the bottom of a corkboard, causing the corkboard to fall off of the wall . . . The corkboard fell onto Louis Sanchez's head.").)
Following the frisk, Sanchez told the plaintiff that he would be ejected from the store and that he would have to sign a "trespass form" indicating that he would not return. (See Funnye Dep. at 136-37; Sanchez Dep. at 167-68.) He also informed the plaintiff that he would take the plaintiff's picture and post it in the holding area. (See id.) The plaintiff refused to leave the store or sign a trespass notice (see Funnye Dep. at 137; Sanchez Dep. at 169), and a police officer was called to the scene. (See Funnye Dep. at 277-78.) Again, the reason for summoning the police officer remains in dispute. Sanchez contends that the police officer was called as a result of the plaintiff's refusal to comply with Sanchez's requests. (See Sanchez Dep. at 179.) The plaintiff asserts that the police officer was called at his request and that he wanted to file a complaint against Paragon. (See Funnye Dep. at 264.) When the officer arrived, he informed the plaintiff that in order to file a complaint the officer would have to call a plainclothes officer, and the officer then called defendants Terzian and Wilenski to the scene. (See Funnye Dep. at 276-77.) The events that followed comprise the main dispute between the plaintiff and the defendants.
Photographs were taken of the plaintiff. (See Sanchez Dep. at 185.)
The defendants claim that upon their arrival, Sanchez informed defendants Terzian and Wilenski that he had observed the plaintiff tampering with a security sensor in the store. (See Terzian Dep. at 94; Deposition of Edward Wilenski ("Wilenski Dep.") at 111; Def.'s 56.1 Stmt. ¶ 29.) The defendants also assert that Sanchez informed them that the plaintiff refused to sign the trespass form. SeeDef.'s 56.1 Stmt. ¶ 29-31.) According to the defendants, Sanchez took Terzian into the store itself and showed him the location where Sanchez had observed the plaintiff tampering with the security device. (See Def.'s 56.1 Stmt. ¶ 30; Terzian Dep. at 106.) When Sanchez and Terzian left the holding area, Wilenski claims that he stayed with the plaintiff and that the two of them discussed the day's events, although Wilenski asserts that he does not recall many of the details of the conversation. (See Wilenski Dep. at 115-17.) Terzian and Wilenski assert that at some point they each observed the jacket in question, which was located in the holding area. (See Def.'s 56.1 Stmt. ¶ 33-34; Terzian Dep. at 111; Wilenski Dep. at 113.) Each asserts that upon observation the security sensor appeared damaged (see Terzian Dep. at 111; Wilenski Dep. at 114), and Wilenski asserts that he noted a small tear to the jacket itself. (See Wilenski Dep. at 115.) Additionally, according to Terzian, Sanchez informed Terzian that as a result of a struggle with the plaintiff, a bulletin board "hit Mr. Sanchez on the top of the head." (See Terzian Dep. at 99.) Terzian claims that he observed a cut on the top of Mr. Sanchez's head. (See Terzian Dep. at 100.) Terzian testified that the officers had probable cause to arrest the plaintiff on charges of Assault in the Third Degree and Criminal Mischief in the Fourth Degree. (See Terzian Dep. at 107.)
The plaintiff tells a very different story. The plaintiff alleges that when Terzian and Wilenski arrived in the holding area, he informed them that he was innocent of all charges. See Pl.'s 56.1 Stmt. ¶ 56; Funnye Dep. at 290-91.) The plaintiff claims that he challenged Terzian and Wilenski to inspect the jacket and to take fingerprints from it (see Funnye Dep. at 291); he further contends that Terzian responded that fingerprints might not be obtainable from the jacket's surface. (See id.) According to the plaintiff, Wilenski resisted the plaintiff's suggestion to examine the jacket. (See Funnye Dep. at 292.)
The plaintiff claims that he told Wilenski he wanted to file a complaint against Paragon (see Funnye Dep. at 294) and that he and Wilenski discussed possible charges against Paragon, including Sanchez's alleged assault on the plaintiff. (See Funnye Dep. at 296.) The plaintiff further claims that after he informed Wilenski he was a lawyer, Wilenski told the plaintiff he "didn't like lawyers" (see Funnye Dep. at 296) and became unresponsive to the plaintiff. (See Funnye Dep. at 316.) At that point, the plaintiff asserts that he asked for a piece of paper and a pen and that he began to record the names and badge numbers of Terzian and Wilenski. (See Funnye Dep. at 316-17.) According to the plaintiff, after he finished writing down Wilenski's name and badge number, Wilenski told the plaintiff, "Now I am going to arrest you." (See Funnye Dep. at 317.) The plaintiff alleges that Terzian then took Wilenski aside, where he asked Wilenski if the arrest was "really necessary" and indicated that the arrest was "unwarranted." (See Funnye Dep. at 355.) According to the plaintiff, Wilenski responded "he is getting arrested." (See Funnye Dep. at 356.) The plaintiff asserts that Wilenski then took Sanchez outside of the holding area and told him "I want you to draft a formal complaint to arrest this guy." (See Funnye Dep. at 318).
After Wilenski called a supervisor to verify the arrest (see Terzian Dep. at 114-16; Wilenski Dep. at 123-24), Terzian and Wilenski arrested the plaintiff on charges of Assault in the Third Degree and Criminal Mischief in the Fourth Degree. Sanchez prepared a Shoplifting Supporting Deposition and an Incident/Injury Report later that day. (See Def.'s 56.1 Stmt. ¶ 39.) On September 17, 1998, the criminal charges against the plaintiff were dismissed. (See Def.'s 56.1 Stmt. ¶ 41; Pl.'s 56.1 Stmt. ¶ 40.)
III.
The defendants move for summary judgment on the federal and state false arrest and malicious prosecution claims against defendants Terzian and Wilenski on two grounds. First, the defendants argue that Terzian and Wilenski had probable cause to arrest the plaintiff. Second, the defendants assert that Terzian and Wilenski are entitled to qualified immunity. The defendants also move for summary judgment on the state false arrest and malicious prosecution claims against defendant the City of New York on the grounds that no torts were committed by Terzian and Wilenski in the scope of their employment and that consequently the doctrine of respondeat superior is inapplicable.
A.
A false arrest claim under 42 U.S.C. § 1983 resting on the Fourth Amendment right to be free from unreasonable seizures, including arrest without probable cause, "is substantially the same as a claim for false arrest under New York law." Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996) (citations omitted) Under New York law, "a plaintiff claiming false arrest must show, inter alia, that the defendant intentionally confined him without his consent and without justification." Id. (citations omitted). Probable cause constitutes such justification, and therefore probable cause "is a complete defense to an action for false arrest."Bernard v. United States, 25 F.3d 98, 102 (2d Cir. 1994).
To sustain a § 1983 claim based on malicious prosecution, a plaintiff must demonstrate conduct by the defendant that is tortious under state law and that results in a constitutionalry cognizable deprivation of liberty. See Singer v. Fulton County Sheriff, 63 F.3d 110, 116 (2d Cir. 1995); see also Jenkins v. City of New York, Nos. 98 Civ. 7170 JGK DFE, 98 Civ. 7338 JGK, 1999 WL 782509, at *10 (S.D.N.Y. Sept. 30, 1999),aff'd, 216 F.3d 1072 (2d Cir. 2000). To state a claim for malicious prosecution under New York State law, "a plaintiff must prove (1) the initiation or continuation of a criminal proceeding against plaintiff; (2) termination of the proceeding in plaintiff's favor; (3) lack of probable cause for commencing the proceeding; and (4) actual malice as a motivation for defendant's actions." Murphy v. Lynn, 118 F.3d 938, 947 (2d Cir. 1997) (quoting Russell v. Smith, 68 F.3d 33, 36 (2d Cir. 1995)); see also Jenkins, 1999 WL 782509, at *11. Thus the existence of probable cause to commence a proceeding is also a complete bar to a claim of malicious prosecution. See Jenkins, 1999 WL 782509, at *11.
Probable cause to arrest 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 by the person to be arrested." Singer, 63 F.3d at 119 (internal quotation marks omitted). The amount of evidence required to establish probable cause to arrest "need not reach the level of evidence necessary to support a conviction . . . but it must constitute more than rumor, suspicion, or even a strong reason to suspect." United States v. Fisher, 702 F.2d 372, 375 (2d Cir. 1983) (internal citations and quotation marks omitted). "The 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. In contrast, "[w]here the question of whether an arresting officer had probable cause is predominantly factual in nature . . . the existence . . . of probable cause is to be decided by the jury." Murphy, 118 F.3d at 947.
The Court of Appeals has explained that "[am arresting officer advised of a crime by a person who claims to be the victim, and who has signed a complaint or information charging someone with the crime, has probable cause to effect an arrest absent circumstances that raise doubts as to the victim's veracity." Singer, 63 F.2d at 119. "Information about criminal activity provided by a single complainant can establish probable cause when the information is sufficiently reliable and corroborated. Yet, even if bystander witnesses are considered presumptively reliable, a report of a crime alone will not necessarily establish probable cause."Oliveira v. Mayer, 23 F.3d 642, 647 (2d Cir. 1994) (internal citations omitted); see also Wu v. City of New York, 934 F. Supp. 581, 587 (S.D.N Y 1996) ("Second Circuit case law stresses the importance of investigation and corroboration"); Marin v. Viggiani, No. 92 Civ. 3836 (LMM), 1993 WL 404098, at *6 (S.D.N.Y. Oct. 5, 1993) ("[W]hen a putative victim precisely identifies the alleged perpetrator of a crime and there is independent evidence to support at least some of the victim's assertions, a person of reasonable caution is warranted in believing that an offense has been committed by the alleged perpetrator.").
The City defendants claim that based on Sanchez's account of the events in question and the independent corroboration of that account, defendants Terzian and Wilenski had probable cause to arrest the plaintiff both on charges of Assault in the Third Degree and Criminal Mischief in the Fourth Degree. The flaw in the City defendants' argument, however, is that it requires the Court to accept the accounts of the events on the day in question as given by defendants Terzian and Wilenski. But those accounts are disputed by the plaintiff and contain various internal conflicts. Moreover, the defendants' accounts lack any corroboration. There are plainly issues of fact as to whether there was probable cause to arrest the plaintiff and those issues cannot be resolved on this motion for summary judgment.
The City defendants assert that the information provided by Sanchez, combined with Terzian's observation of a cut on Sanchez's head, constituted probable cause for the arrest of the plaintiff on the charge of Assault in the Third Degree. Construing the evidence in the light most favorable to the plaintiff, however, there exist genuine issues of material fact as to whether probable cause existed to arrest the plaintiff on this charge.
N.Y. Penal Law § 120.00 provides: "[a] person is guilty of assault in the third degree when . . . (2) He recklessly causes physical injury to another person."
When evaluating probable cause, a jury must consider the facts available to the officers at the time of arrest. See Ricciuti v. N.Y.C. Transit Authority, 124 F.3d 123, 128 (2d Cir. 1997). Terzian testified that when Terzian and Wilenski arrived at Paragon, Sanchez told them that a cork board "fell" on his head as a result of a "struggle" with the plaintiff; Sanchez confirmed this account in his deposition testimony. (See Sanchez Dep. at 231; Terzian Dep. at 98-99.) The City defendants assert that Terzian noted a cut on Sanchez's head (see Terzian Dep. at 100) and that this corroboration, coupled with Sanchez's story, constituted probable cause to arrest.
The plaintiff testified that when the defendants arrived he told Wilenski that he was thrown against a wall by Sanchez and that he wished to file a complaint against Sanchez for assault. (See Funnye Dep. at 296.) There is no evidence that the defendants investigated this allegation. Moreover, Sanchez evinced no desire to file a complaint against the plaintiff (see Sanchez Dep. at 233-35), and the fair inference from the plaintiff's testimony was that Sanchez only filed a complaint after Wilenski took him aside and told him to file a complaint and after Terzian told Wilenski that an arrest was unjustified.
Subsequent events cast more doubt on the version of events given by Sanchez, Terzian and Wilenski and on which the City defendants now rely. Neither the Shoplifting Supporting Deposition nor the Incident/Injury Report Sanchez filed on November 1 refers to the plaintiff's alleged assault on Sanchez. While Sanchez later testified at his deposition that the plaintiff "swung" a cork board at him (see Sanchez Dep. at 189), even that version is inconsistent with his alleged statement to Terzian and Wilenski at the time that the corkboard "fell" on his head. A jury could doubt Sanchez's credibility and that of the arresting officers and conclude that Sanchez only filed a complaint after he was instructed to do so by Wilenski (see Funnye Dep. at 318) and that the complaint was made to substantiate what was, in fact, a retaliatory arrest, and that Terzian and Wilenski did not have probable cause to believe that the plaintiff recklessly caused physical injury to Sanchez.
Only by disregarding the plaintiff's testimony could a jury conclude that the level of evidence defendants had at the time of arrest rose above the "rumor, suspicion, or even . . . strong reason to suspect" referenced in Fisher, 702 F.2d at 375. Because a reasonable jury could find that at the time of the plaintiff's arrest for assault the defendants did not have probable cause to arrest for assault, the City defendants are not entitled to summary judgment on the basis of alleged probable cause for assault.
The City defendants also assert that they had probable cause to arrest the plaintiff on the charge of Criminal Mischief in the Fourth Degree. The defendants claim that Sanchez's complaint regarding the plaintiff's alleged tampering with the security device, coupled with the defendants' independent corroboration of Sanchez's statement, constituted probable cause to make the arrest. Construing the evidence in the light most favorable to the plaintiff, however, genuine issues of material fact exist with respect to both Sanchez's statement and the defendants' corroboration of that statement.
N.Y. Penal Law § 145.00 provides: "[a] person is guilty of criminal mischief in the fourth degree when, having no right to do so nor any reasonable ground to believe that he has such right, he: (1) . . . Intentionally damages property of another person."
Terzian and Wilenski claim that when they arrived, Sanchez told them that he had seen the plaintiff tampering with a security device. (See Terzian Dep. at 94; Wilenski Dep. at 111.) Terzian testified that he was shown the location from where Sanchez observed the plaintiff (see Terzian Dep. at 106), and Terzian and Wilenski both testified that upon observation of the jacket in question, each noted damage to the security sensor. (See Terzian Dep. at 111; Wilenski Dep. at 114.) The defendants contend that this corroboration confirmed Sanchez's account and constituted probable cause for arrest.
Wilenski asserts that he also noted a small tear to the jacket itself. See Wilenski Dep. at 115.)
The plaintiff alleges that he informed the defendants of his innocence upon their arrival. (See Pl.'s 56.1 Stmt. ¶ 56.) There is no evidence that the defendants investigated this allegation. Although it is true that an officer "is not required to explore and eliminate every theoretically plausible claim of innocence before making an arrest,"Ricciuti, 124 F.3d at 128, in the present case the plaintiff — as an additional eyewitness to the events in question — directly disputed Sanchez's statements. Additionally, Sanchez testified in his deposition that he told Terzian and Wilenski that he did not want the plaintiff to be arrested for tampering with the security device (see Sanchez Dep. at 205, 211); instead, he wanted the plaintiff to sign the trespass notice. (See Sanchez Dep. at 211.) Terzian confirmed this account in his deposition, stating that Sanchez told him "he didn't want to have [the plaintiff] prosecuted." (See Terzian Dep. at 95.)
Although Terzian and Wilenski contend that each observed the security sensor on the jacket in question and found it compromised (see Terzian Dep. at 111; Wilenski Dep. at 114), the plaintiff's testimony that he never tampered with the sensor casts doubt of the allegation that the sensor could have disclosed any tampering. (See Funnye Dep. at 116.) Moreover, the plaintiff testified that he urged Terzian and Wilenski to take fingerprints from the jacket, which they declined to do. (See Funnye Dep. at 291.) Neither the jacket nor any photograph of the jacket has been produced for inspection to confirm the testimony of Terzian and Wilenski. Additionally, it is unclear how Terzian's observation of the location where Sanchez saw the plaintiff supports the defendants' contention of probable cause.
As with the assault charge, subsequent events raise genuine issues as to the credibility of the accounts of Sanchez, Terzian and Wilenski. The Shoplifting Supporting Deposition filed by Sanchez stated that the plaintiff "removed the sensormatic from the jacket." In his deposition, however, Sanchez testified that this statement was untrue and that he only saw the plaintiff attempt to remove the security sensor. (See Sanchez Dep. at 223-24.) Given that Sanchez did not originally seek to have the plaintiff arrested, there are issues of fact as to whether the plaintiff was arrested for retaliatory purposes and whether the defendants colluded with Sanchez to produce evidence substantiating the charges.
Construing the evidence on this motion in the light most favorable to the plaintiff, therefore, a reasonable jury could find that defendants Terzian and Wilenski did not have probable cause to arrest the plaintiff on charges of Criminal Mischief in the Fourth Degree. Accordingly, the City defendants are not entitled to summary judgment based on their argument that Terzian and Wilenski had probable cause to arrest the plaintiff on charges of Criminal Mischief in the Fourth Degree.
The city defendants correctly point out that defendants Terzian and Wilenski only needed probable cause to arrest the plaintiff for any criminal offense related to the crimes for which the plaintiff was arrested. See, e.g., Trejo v. Perez, 693 F.2d 482, 485 (5th cir. 1982);United States v. Martinez, 465 F.2d 79, 81 (2d cir. 1972); Mills v. Wainwright, 415 F.2d 787, 790 (5th cir. 1969).
However, the city defendants do not suggest any crime other than Assault in the Third Degree and criminal Mischief in the Fourth Degree for which there was probable cause to arrest. Given the conflicting testimony and the plaintiff's testimony that he was not responsible for any criminal conduct, the city defendants are not entitled to summary judgment finding that there was probable cause to believe that the plaintiff had committed some unspecified crime.
The city defendants have only argued that there was probable cause to arrest, and have assumed that the same probable cause would be a defense to the claim of malicious prosecution. Because no other argument is made to justify summary judgment on the malicious prosecution claims, and because the city defendants have not established that there was probable cause to arrest, the city defendants are also not entitled to summary judgment dismissing the claims for malicious prosecution under 42 U.S.C. § 1983 and state law.
B.
Defendants Terzian and Wilenski also argue that they are entitled to summary judgment under the doctrine of qualified immunity. Under the doctrine of qualified immunity, "government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). "A right is clearly established when the contours of the right are sufficiently clear that a reasonable official would understand that what he is doing violates that right. The unlawfulness must be apparent." McEvoy v. Spencer, 124 F.3d 92, 97 (2d Cir. 1997) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987) (internal quotation marks, ellipses, and brackets omitted)). see also Durven D. v. Giuliani, No. 98 Civ.0523 (JGK), 2000 WL 1145425, at *8 (S.D.N.Y. Aug. 11, 2000).
The right not to be arrested without probable cause is a clearly established right. Cook v. Sheldon, 41 F.3d 73, 78 (2d Cir. 1994) ("It is now far too late in our constitutional history to deny that a person has a clearly established right not to be arrested without probable cause."). Nevertheless, "even where the plaintiff's federal rights and the scope of the official's permissible conduct are clearly established, the qualified immunity defense protects a government actor if it was `objectively reasonable' for him to believe that his actions were lawful at the time of the challenged act." Lennon v. Miller, 66 F.3d 416, 420 (2d. Cir. 1995) (citing Anderson, 483 U.S. at 641, and Robison v. Via, 821 F.2d 913, 921 (2d. Cir. 1987)). The Court of Appeals has held that on a summary judgment motion, a defendant is entitled to summary judgment on these grounds only when
no reasonable jury, looking at the evidence in the light most favorable to, and drawing all inferences most favorable to, the plaintiffs, could conclude that it was objectively unreasonable for the defendant to believe that he was acting in a fashion that did not clearly violate an established federally protected right.Lee v. Sandberg, 136 F.3d 94, 102 (2d Cir. 1997) (internal citations omitted); Lennon, 66 F.3d at 420. Thus "if any reasonable trier of fact could find that the defendants' actions were objectively unreasonable, then the defendants are not entitled to summary judgment." Lennon, 66 F.3d at 420. An officer's actions are objectively unreasonable when "no officer of reasonable competence could have made the same choice in similar circumstances." Id. at 420-21. "[I]f . . . the only conclusion a rational jury could reach is that reasonable officers would disagree about the legality of the defendants' conduct under the circumstances, summary judgment for the officers is appropriate." Id. at 421.
In the present case, construing the evidence in the light most favorable to the plaintiff, a reasonable trier of fact could find that the defendants' actions were objectively unreasonable. The plaintiff alleges that the defendants had no probable cause to arrest him and asserts that Terzian and Wilenski arrested him in retaliation for the plaintiff's recording of their names and badge numbers. No reasonable law enforcement officer could think it lawful to arrest a person for a crime without probable cause and for the sole purpose of retaliation. See Cook, 41 F.3d at 79. There are issues of fact as to whether defendants Terzian and Wilenski had probable cause. Compare Lennon, 66 F.3d at 421 (reasonableness for purposes of summary judgment can be decided when the facts are not in dispute). In this case, a reasonable jury accepting the plaintiff's testimony about the facts could find that defendants Terzian and Wilenski violated a clearly established federal right and that they are not entitled to the protection of the qualified immunity defense.
C.
The City defendants also assert that this Court should dismiss the plaintiff's claims against the City of New York because there are no underlying torts for which the City can be vicariously liable. Because defendants Terzian and Wilenski are not entitled to summary judgment dismissing the state law claims against them, the City of New York remains potentially liable under a respondeat superior theory for the plaintiff's state tort claims against Terzian and Wilenski. Accordingly, the City's motion is denied.
The City also moved to dismiss any claims against it for a violation of 42 U.S.C. § 1983 because the plaintiff has not alleged any custom of practice sufficient to establish municipal liability. See Monell v. Dep't of Soc. Serv., 436 U.S. 658 (1978). However, the amended complaint asserts no claim against the City for a violation of 42 U.S.C. § 1983 and only alleges claims based on vicarious liability for the state law torts. The City also contended that the Court should decline to assert supplemental jurisdiction over the state law claims if the Court dismissed all claims under 42 U.S.C. § 1983. Because the claims under 42 U.S.C. § 1983 are not dismissed, the argument is rejected as moot.
CONCLUSION
For the foregoing reasons, the motion by the City defendants for summary judgment is denied.SO ORDERED.