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finding collateral objective met where defendant fabricated assault charges to save his job because "safeguarding one's own employment lies outside the legitimate goal of criminal process"
Summary of this case from Dolan v. New Hyde Park Fire Dist.Opinion
01 Civ. 4376 (MBM)
November 18, 2003
JON L. NORINSBERG, ESQ. New York, NY, for Plaintiff
MICHAEL A. CARDOZO, ESQ., CONCEPCION A. MONTOYA, ESQ., MARY O'FLYNN, ESQ., New York, NY, for Defendants
OPINION AND ORDER
Plaintiff Isidro Arias Hernandez sues pursuant to 42 U.S.C. § 1983 (2000), seeking damages from the City of New York, Corrections Officer Marvin Wells, and Corrections Officer Rico A. Ford for alleged civil rights violations. Defendants move for summary judgment, arguing (1) the doctrine of collateral estoppel should apply to findings made at plaintiff's parole revocation hearing; and (2) plaintiff's claims are barred by Heck v. Humphrey, 512 U.S. 477 (1994). Defendants ask in the alternative for an order limiting plaintiff's damages. In their reply papers, defendants argue also that summary judgment is appropriate because plaintiff fails to satisfy the collateral objective requirement of his malicious abuse of process claim. For the reasons set forth below, defendants' motions are denied.
Hernandez has stipulated to the dismissal of defendant: Officer Jose Perez. (Defendants' Notice of Motion at 1)
I.
The following facts are either undisputed or presented in the light most favorable to plaintiff.
On July 6, 2000, Isidro Arias Hernandez arrived at the Rikers Island correctional facility to leave a package of clothing for a friend. (Hernandez Deposition ("Hernandez Dep."), Ex. A to Declaration of Concepcion A. Montoya ("Montoya Decl."), at 90; Statement Pursuant to Rule 56.1 ("Rule 56.1 Stmt.") ¶ 1) Hernandez was on parole at the time. (Rule 56.1 Stmt. ¶ 10) When he entered the Visit House, Hernandez emptied the contents of his pockets into a blue bucket and walked through a metal detector. (Hernandez Dep. at 91) One of the items Hernandez placed in the bucket was a three-inch antique pocketknife, which was attached to a set of keys. (Id. at 91-92; Rule 56.1 Stmt. ¶ 2) As Hernandez retrieved his possessions from the bucket, Corrections Officer Parish told Hernandez that he could not bring the knife in with him, and he and Hernandez argued for four to five minutes. (Hernandez Dep. at 97; Rule 56.1 Stmt. ¶ 4-5)
After his dispute with Parish, Hernandez put the pocketknife in an "amnesty box" located outside the building. (Hernandez Dep. at 112) When Hernandez attempted to reenter the building, he was stopped by Corrections Officer Marvin Wells, who refused to allow him inside. (Id. at 118) Hernandez demanded to speak to a captain, and Wells responded by handcuffing him and telling him, "You are under arrest." (Id. at 118-19) Although Wells claims that he handcuffed Hernandez because Hernandez punched him in the face, plaintiff maintains that this assault never took place. (Incident Report Form, Ex. G. to Declaration of Jon L. Norinsberg ("Norinsberg Decl."); Plaintiff's Response to Defendants' Local Rule 56.1 Statement ("Rule 56.1 Resp.") ¶ 14). Wells then took Hernandez to another building and placed him in a "cage." (Hernandez Dep. at 121, 124) Approximately half an hour later, Corrections Officer Jose Perez told Hernandez that he was under arrest and would be taken to the 41st Precinct. (Id. at 126; Rule 56.1 Stmt. ¶ 9)
Because all inferences must be drawn in favor of the plaintiff, this statement of facts adopts Hernandez's version of events and not Wells'. Wells' description of the July 6, 2000, encounter, which this court does not adopt, is summarized as follows. Wells observed Corrections Officer Rico A. Ford escorting Hernandez out of the Visit House. (Incident Report Form, Ex. G. to Norinsberg Decl.) Hernandez was cursing and yelling that he would not throw anything away. (Id.) Wells approached Hernandez and informed him that he either must place his knife in the amnesty box or go home. (Id.) Hernandez shouted, "I'm not throwing away my knife," but after Wells explained his options again, Hernandez put the knife in the amnesty box. (Id.) Hernandez then put his hand in his pocket and told Wells that he had a second knife, and Wells told him to deposit that knife in the amnesty box as well. (Id.) In response, Hernandez cursed at Wells and punched him on the left side of the face. (Id.) Wells grabbed Hernandez's right arm, and Ford and another corrections officer grabbed Hernandez' left arm. (Id.) Ford then handcuffed Hernandez, and Hernandez was taken to a holding pen. (Id.)
Hernandez was arraigned the next day. (Rule 56.1 Stmt. ¶ 16) He was charged with two counts of felony assault, one count of misdemeanor assault, one count of obstructing governmental administration, and one count of harassment in the second degree. (Criminal Complaint, Ex. D to Norinsberg Decl., at 1)) Bail was set at $5,000, but Hernandez was not permitted to post bail because of his parole status. (Hernandez Dep. at 180; Rule 56.1 Stmt. ¶ 17) It is not clear from the record whether Hernandez could have posted the $5,000 bail even if allowed to do so. (Rule 56.1 Resp. ¶ 17) Both felony assault charges against Hernandez were dismissed on July 12, 2000. (Decision and Order of J. Sackett ("Speedy Trial Decision"), Ex. E to Norinsberg Decl., at 1)
The New York State Division of Parole ("the OOP") issued a violation of parole warrant for Hernandez on July 17, 2000. (Violation of Release Report, Ex. C to Montoya Decl.; OOP Area/Bureau Analysis, Ex. M to Norinsberg Decl.) The DOP charged Hernandez with eight violations of his conditions of release. (Violation of Release Report) Two were based on alleged drug use on June 27, 2000, and the DOP declared Hernandez parole delinquent as of that date. (Id.) The remaining six charges were connected to the July 6 events at Rikers Island and included Charge 3, physically assaulting a corrections officer and causing injury, and Charge 4, assaulting a peace officer and preventing that officer from performing his duties. (Id.)
Although defendants claim that the violation of parole warrant was issued on July 7, 2000, two different documents list July 17, 2000 as the date of the warrant. Therefore, for the purposes of this summary judgment motion, I accept Hernandez's contention that the violation of parole warrant issued on July 17, 2000. (Rule 56.1 Resp. ¶ 15)
On July 24, 2000, the DOP held a preliminary violation hearing, and the hearing officer found probable cause for Charge 3, the assault, based on the credible testimony of the victim — Wells, and a parole officer. (Rule 56.1 Stmt. ¶ 18; Preliminary Violation Hearing Decision and Summary ("Prelim. Decision"), Ex. E to Montoya Decl.) Neither Hernandez nor his attorney was present at this hearing. (Prelim. Decision)
On October 5, 2000, Hernandez received a final parole revocation hearing before Administrative Law Judge Jeanne M. Keefe ("the ALJ"). (Rule 56.1 Stmt. ¶¶ 20, 24) At this hearing, the DOP went forward on Charges 3 and 4 and withdrew all other parole violation charges. (Parole Revocation Decision Notice ("ALJ Decision"), Ex. F at Montoya Decl. at III, IV; Parole Revocation Hearing Transcript ("Tr."), Ex. P at Reply Declaration of Concepcion A. Montoya ("Montoya Reply Decl."), at 2) Hernandez was represented by attorney Matthew Myers at this proceeding, and Hernandez and Wells both testified. (Rule 56.1 Stmt. ¶¶ 22-23; Tr. at 2) The ALJ released her decision on October 20, 2000, finding that Hernandez had punched Wells and concluding that Charges 3 and 4 had been proved by a preponderance of the evidence. (Rule 56.1 Stmt. ¶ 24; ALJ Decision at IV) The ALJ explicitly noted that she found Wells' testimony credible and did not find Hernandez credible. (Rule 56.1 Stmt. ¶ 25; ALJ Decision at IV) The ALJ recommended that Hernandez be subject to a hold, the significance of which was not explained, to his maximum expiration date. (ALJ Decision at IV) As of July 6, 2000, the undischarged portion of Hernandez's sentence was one year, two months, and three days. (Rule 56.1 Stmt. ¶ 29; ALJ Decision at II)
On October 12, 2000, the charge of obstructing governmental administration in Hernandez's pending criminal proceeding was dismissed, and the misdemeanor assault charge was reduced to attempted assault, a Class B misdemeanor. (Speedy Trial Decision at 1) Following a bench trial at which Wells and Corrections Officer Rico Ford testified, Hernandez was acquitted of all criminal charges on January 25, 2001. (Rule 56.1 Stmt. ¶ 30; Hernandez Amended Complaint ("Compl.") ¶¶ 30-31) Hernandez filed a notice of appeal from his parole revocation on February 1, 2001. (Letter from DOP Appeals Unit, Ex. 1 at Norinsberg Decl.) He continued to serve his parole time in jail until his conditional release on May 2, 2001. (Rule 56.1 Stmt. ¶¶ 30-31)
Hernandez filed this § 1983 action on May 22, 2001, alleging deprivation of federal rights, malicious prosecution, and malicious abuse of process. (Compl. ¶¶ 34-70) During discovery, defendants provided Hernandez for the first time with portions of Wells' disciplinary history that described the following substantiated allegation of false statement. (Montoya Letter of 2/19/03, Ex. K at Norinsberg Decl., at 2) On April 17, 1996, Wells and two other officers assaulted an inmate. (Wells' Disciplinary History, Ex. F at Norinsberg Decl., at 120) A videotape from a stationary monitor revealed that the officers were the aggressors. (Id.) However, Wells filed a false Use of Force Report in which he stated that the inmate had attacked first by kicking one of the officers in the groin, requiring the officers to use force in self-defense. (Id. at 120, 127) Wells again provided false information about the incident when he testified at a hearing in August 1997. (Id. at 127) As a result of his actions, Wells received a 45-day suspension and lost 10 vacation days, pursuant to a negotiated plea agreement. (Id. at 120-21) The closing memorandum for the case stated, "[S]hould Officer Wells violate any of the Department's Rules or Regulations at any time in the future, his expeditious termination is virtually assured." (Id. at 121)
II.
In deciding whether there are no genuine issues of material fact such that a moving party is entitled to judgment as a matter of law, see Fed.R.Civ.P. 56(c), a court must draw all justifiable inferences in favor of the nonmoving party. Curry v. City of Syracuse, 316 F.3d 324, 329 (2d Cir. 2003). Summary judgment is improper if, as to the issue on which summary judgment is sought, there is evidence in the record from which a reasonable inference could be drawn in favor of the opposing party. Id. An issue of fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party in light of the evidence. DeStefano v. Emergency Hous. Group, Inc., 247 F.3d 397, 405 (2d Cir. 2001).
I note at the outset that both parties' motion papers refer repeatedly to a false arrest claim by Hernandez. (See, e.g., Plaintiff's Memorandum of Law in Opposition to Defendants' Motion for Summary Judgment ("Pl. Opp'n Memo.") at 15; Defendants' Reply Memorandum of Law in Support of Their Motion for Summary Judgment ("Def. Reply Memo.") at 16) Hernandez's Amended Complaint does not include false arrest as one of the claims for relief. To make out a claim for false arrest under § 1983, Hernandez must show: (1) the defendants intended to confine him; (2) he was conscious of the confinement; (3) he did not consent to the confinement; and (4) the confinement was not otherwise privileged. Shain v. Ellison, 273 F.3d 56, 67 (2d Cir. 2001). The facts Hernandez alleges might give rise to a colorable claim for false arrest, but this court will not discuss the particulars of a claim that has not yet been asserted. If Hernandez wants to pursue a false arrest claim, he should seek to amend his complaint pursuant to Fed.R.Civ.P. 15.
III.
Defendants argue that Hernandez cannot bring this action because Heck v. Humphrey, 512 U.S. 477 (1994), prevents plaintiff from using a § 1983 claim to mount a collateral attack on the propriety of his parole revocation. (Defendants' Memorandum of Law in Support of Their Motion for Summary Judgment ("Def. Mot.") at 12-14) In Heck, the Supreme Court held:
[I]n order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254.512 U.S. at 486-87 (footnote omitted). However, Heck's prohibition on the use of § 1983 suits to attack the validity of sentences or convictions applies only to potential plaintiffs who remain in custody. A majority of Supreme Court justices agree that a former prisoner who is no longer in custody may bring a § 1983 action to attack his prior conviction or confinement because it would be impossible for him to satisfy Heck's favorable-termination requirement after his release. See Spencer v. Kenna, 523 U.S. 1, 21, 25 n. 8 (1998) (Souter, J., concurring, and Stevens, J., dissenting) (concurrence joined by J. O'Connor, J. Ginsburg, and J. Breyer). Therefore, Heck does not bar Hernandez's § 1983 suit because his sentence has expired. See Huang v. Johnson, 251 F.3d 65, 74-75 (2d Cir. 2001) (finding that, in light of Spencer's concurrences and dissent, Heck does not bar released prisoner's § 1983 action); Davis v. Cotov, 214 F. Supp.2d 310, 316 (E.D.N.Y. 2002) (citing Spencer for the proposition that Heck does not bar a § 1983 suit when the plaintiff's sentence has expired); Dallas v. Goldberg, No. 95 Civ. 9076 (LTS), 2002 WL 1013291, at *10 (S.D.N.Y. May 20, 2002) (modifying earlier decision in light of Huang to hold that released plaintiff may use § 1983 action to seek damages relating to his incarceration upon the revocation of parole).
In addition to arguing that Heck does not apply to plaintiffs who are no longer in custody, Hernandez contends that he would have been imprisoned until January 2001 on criminal charges whether or not his parole was revoked. (Pl. Opp'n Memo. at 13) Therefore, he argues, he need not challenge the unfavorable parole revocation decision for the first six and one-half months of his incarceration. (Id.) Because a challenge to the parole revocation would not be barred by Heck for the reasons described above, I need not address this second argument.
IV.
Defendants argue also that Hernandez should be collaterally estopped to relitigate the existence of probable cause for the assault charge because the ALJ's finding that an assault occurred has preclusive effect. (Def. Mot at 8-11) However, defendants did not raise this issue in their answer or during pretrial proceedings, and Hernandez first asks this court to find that any collateral estoppel defense has been waived. (Pl. Opp'n at 6-7)
Collateral estoppel is an affirmative defense that can be waived if not pleaded in a timely manner. Curry, 316 F.3d at 330-31. Earlier this year, the Second Circuit held that a district court may consider a collateral estoppel defense that was raised for the first time during summary judgment proceedings, provided the plaintiff is given notice and an opportunity to respond. See id. at 331. In this case, Hernandez's arguments about collateral estoppel have been heard; after defendants first raised the issue, plaintiff fully briefed the applicability of this doctrine to his case. (See Pl. Opp'n at 6-13) Hernandez does not argue that he has been harmed in any way by defendants' failure to raise this affirmative defense at an earlier date. Therefore, because Hernandez has not been prejudiced by defendants' failure to plead collateral estoppel in their answer, the court may analyze the merits of this defense. See Curry, 316 F.3d at 331
Because parole was revoked in a state proceeding, New York law determines the preclusive effect of the ALJ's findings in this case. See Sullivan v. Gagnier, 225 F.3d 161, 166 (2d Cir. 2000). Under New York law, collateral estoppel may be invoked only when (1) the identical issue was necessarily decided in the prior action and would decide the current action, and (2) the party to be estopped had a full and fair opportunity to contest the earlier decision. Kosakow v. New Rochelle Radiology Assocs., P.C., 274 F.3d 706, 730 (2d Cir. 2001) (citing Schwartz v. Pub. Adm'r of Bronx County, 24 N.Y.2d 65, 71, 298 N.Y.S.2d 955, 960 (1969)). Collateral estoppel is grounded on notions of fairness and should not be rigidly or mechanically applied. In re Sokol, 113 F.3d 303, 306 (2d Cir. 1997) (citing D'Arata v. New York Cent. Hut. Fire Ins. Co., 76 N.Y.2d 659, 664, 563 N.Y.S.2d 24, 26 (1990)). Because the doctrine of collateral estoppel places termination of litigation ahead of the correct result, its application "has been narrowly tailored to ensure that it applies only where the circumstances indicate the issue estopped from further consideration was thoroughly explored in the prior proceeding, and that the resulting judgment thus has some indicia of correctness." Johnson v. Watkins, 101 F.3d 792, 795 (2d Cir. 1996).
In this case, defendants claim that plaintiff is collaterally estopped to relitigate the ALJ's finding that assault was proved by a preponderance of the evidence. (Def. Mot. at 9) Hernandez does not dispute that this issue necessarily was decided in the prior action and would decide some of his claims here, but he contends that he should not be estopped because he did not have a full and fair opportunity to litigate the alleged assault before the ALJ. (Pi. Opp'n at 7-8) Because Hernandez is opposing collateral estoppel, he bears the burden of proving that he did not have a full and fair opportunity to contest this issue at his parole revocation hearing. See Kosakow, 274 F.3d at 730 (citing Schwartz, 24 N.Y.2d at 71, 298 N.Y.S.2d at 960).
New York law requires that a court consider the following factors in determining whether Hernandez had a full and fair opportunity to litigate the issue: the size of the claim; the forum of the prior litigation; the use of initiative; the extent of the litigation; the competence and experience of counsel; the availability of new evidence; indications of a compromise verdict; differences in the applicable law; and foreseeability of future litigation. Id. at 734 (citing Schwartz, 24 N.Y.2d at 72, 298 N.Y.S.2d at 961). Hernandez argues that he did not have full and fair opportunity to litigate the alleged assault at the parole hearing because: (1) he discovered after the hearing that Wells had previously made a false claim of assault; (2) his appeal of the parole hearing did not receive appellate review; and (3) his attorney had little experience with parole hearings. (PI. Opp'n at 8-12)
Hernandez's first claim — that collateral estoppel is inappropriate because he did not know at or before the parole revocation hearing that Wells had been disciplined in 1998 for falsely claiming that an inmate assaulted him — is a powerful one. (Id. at 8-10) If significant new evidence has been uncovered since the parole revocation hearing, I cannot find that Hernandez had a full and fair opportunity to present his case at that hearing in without that evidence.See Khandar v. Elfenbein, 943 F.2d 244, 249 (2d Cir. 1991) (citingHampton Heights Dev. Corp. v. Bd. of Water Supply of City of Utica, 519 N.Y.S.2d 438, 443 (Sup.Ct. Oneida County 1987), aff'd as modified, 140 A.D.2d 958, 531 N.Y.S.2d 421 (4th Dep't 1988)). Defendants contend that information about Wells' disciplinary history does not constitute significant new evidence because (1) a past disciplinary incident is not exculpatory as to Hernandez, and (2) plaintiff's counsel could have discovered this information at the parole hearing by cross-examining Wells about past discipline. (Def. Reply Memo, at 5-6)
I disagree with defendants' suggestion that Wells' disciplinary history is not significant evidence that could have helped Hernandez's case and changed the ALJ's decision. After listening to the testimony of Hernandez and Wells, the ALJ adopted Wells' version of events, finding that Wells was credible and Hernandez was not. (Rule 56.1 Stmt. ¶ 25; ALJ Decision at IV) The ALJ did not learn that Wells had made a false claim in the past about being assaulted on the job, and it is at least likely that such evidence would have affected her evaluation of Wells' credibility. Furthermore, Wells' disciplinary history suggests a motive for him to lie about the July 6 incident, as Wells was told in 1998, after he had filed a false report of an assault and then lied about it, that he would almost certainly be fired if he transgressed again. (See Wells' Disciplinary History at 121) Because Wells' credibility was central to the ALJ's determination that an assault had occurred, Wells' disciplinary history amounts to significant evidence that certainly could have altered the ALJ's factual findings.
Defendants argue also that this evidence was available during the parole revocation hearing because Hernandez's attorney could have found out about it by cross-examining Wells. (Def. Reply Memo, at 6) Defendants do not claim that Hernandez could have obtained information about Wells' disciplinary history before the parole revocation hearing, and they do not dispute that Hernandez did not learn of Wells' prior false claim until after the ALJ's decision. Instead, defendants apparently believe that Hernandez's attorney should have explored Wells' background during cross-examination with no advance information. I disagree. Because Hernandez's attorney had no good-faith basis for asking whether Wells had a disciplinary history at the time of the parole revocation hearing, it is not reasonable to expect him to have pursued this line of questioning. Thus, Wells' disciplinary history is significant new evidence that was not available to Hernandez during the prior action.
Hernandez advances two more arguments against the application of collateral estoppel, but these are less convincing. First, Hernandez claims that he was denied appellate review of the parole revocation hearing because he was released from custody before any appeal could be heard. (Pi. Opp'n at 10-11) Collateral estoppel does not bar reconsideration of an issue when there is "an inability to obtain review or there has been no review, even though an appeal was taken." Johnson, 101 F.3d at 795. Hernandez does not dispute that prisoners may obtain review of their parole revocation hearings, but he claims that collateral estoppel is inappropriate in his case because his appeal never actually received review. (Pl. Opp'n at 11) However, Hernandez's appeal was never reviewed because Hernandez himself never perfected an appeal of the ALJ's decision.
Hernandez did file a notice of appeal with the DOP's Appeals Unit on February 1, 2001, and on March 8, 2001, that Unit obtained the transcript of his parole revocation hearing. (Letter from DOP Appeals Unit; Tr. Cover Page) To perfect his appeal, Hernandez needed to file by June 1, 2001, a document explaining the grounds for his appeal and the specific rulings challenged. (Letter from DOP Appeals Unit) Hernandez provides this court with no evidence to indicate that he completed this last requirement. Instead, Hernandez appears to argue that it would have been futile for him to perfect an appeal because his conditional release, which occurred almost a month before the June 1 deadline, rendered any appeal moot. (Pl. Opp'n at 11) This assumption is misplaced; had Hernandez pursued his appeal, it is conceivable that his claims would have been reviewed, particularly since he was released before he had served the entire undischarged portion of his sentence. See Parsons v. Chairman of New York State Div. of Parole, 249 A.D.2d 616, 616, 670 N.Y.S.2d 937, 938 (3d Dep't 1998) (finding that prisoner's challenge to parole revocation determination is not moot following his conditional release because "the impact of the parole violation charges does not end with petitioner's release from prison, but may continue to affect matters such as the maximum parole expiration date"). Hernandez's decision not to pursue his appeal cannot be characterized as an inability to obtain review or a failure to receive review after an appeal was taken; rather, Hernandez's case was never reviewed because Hernandez chose to abandon the appeal.
Hernandez argues also that the inexperience of Myers, his attorney at the parole revocation hearing, weighs against the application of collateral estoppel. (Pl. Opp'n Memo, at 11-12) Myers did tell the ALJ that he was not very familiar with parole, but he also stated that he had been a trial lawyer in Manhattan for 12 years. (Tr. at 3) Although Hernandez suggests that his attorney's alleged inexperience deprived him of a full and fair opportunity to litigate, he does not identify any deficiencies in Myers' performance. Because Hernandez does not allege that his attorney's inexperience had any identifiable effect on the outcome of the parole revocation hearing, he does not demonstrate that Myers' supposed failings denied him a full and fair opportunity to litigate. See Vega v. State Univ. of New York Bd. of Trs., 67 F. Supp.2d 324, 336-37 (S.D.N.Y. 1999) (finding that alleged incompetence of attorney did not deprive party of fair and full opportunity to litigate when plaintiff failed to specify how attorney's incompetence affected the outcome).
Although I am unpersuaded by Hernandez's arguments about the unavailability of appeal and the inexperience of counsel, I agree that Wells' disciplinary history is significant new evidence that was not available at the parole revocation hearing. Because Hernandez presented his case to the ALJ without the benefit of this important information, he did not have a full and fair opportunity to litigate the assault at the parole revocation hearing. Accordingly, the ALJ's findings will not receive collateral estoppel effect, and Hernandez may relitigate the ALJ's finding that an assault had been proved by a preponderance of the evidence.
V.
In their reply papers, defendants argue for the first time that summary judgment is appropriate on Hernandez's malicious abuse of process claim because Hernandez does not allege facts that satisfy the collateral objective requirement for that claim. (Def. Reply Memo, at 12-14) For the reasons outlined below, I decline to grant summary judgment on this basis.To establish a § 1983 claim for malicious abuse of process, a plaintiff must show that the defendant: (1) employed regularly issued process to compel the performance or forbearance of some act (2) with intent to do harm without excuse or justification, and (3) in order to obtain a collateral objective that is outside the legitimate ends of process. Cook v. Sheldon, 41 F.3d 73, 80 (2d Cir. 1994) Defendants claim that Hernandez fails to satisfy the third requirement because he does not allege that defendant Wells sought an objective which is outside the legitimate ends of process. (Def. Reply Memo, at 12-14)
I note that defendants raise arguments only about defendant Wells' alleged collateral objective; they do not argue as to any other defendants' collateral objective.
Hernandez does assert that defendant Wells had an improper objective when he fabricated the assault charges: Wells wanted to save his job. (Pl. Opp'n Memo, at 13 n. 9) According to Hernandez, Wells feared that he would be fired if his treatment of Hernandez came to light, and so he concocted the assault story to conceal the improper arrest. (Id.) Defendants argue that Hernandez is merely speculating about Wells' possible motives and has no independent proof to support this claim. (Def. Reply Memo, at 13-14) Defendants further contend that Wells had no reason to lie because his past disciplinary incident occurred seven years ago and involved improper use of force, which Hernandez has not alleged here. (Id. at 13)
The evidence gives rise to a reasonable inference that Wells reported Hernandez in order to save his own job. Three years before his encounter with Hernandez, Wells had been told that he would be fired if he violated any rules or regulations at any time in the future. (Wells' Disciplinary History at 121) Even though Wells is not accused of excessive force in this case, Hernandez's account of July 6 incident suggests that Wells may have violated other rules. For instance, Parole Revocation Specialist Simpson, the OOP's representative at Hernandez's parole revocation hearing, alludes to a general prohibition against a corrections officer acting alone to take someone into custody. (See Tr. 42) Wells' disciplinary history and Hernandez's version of events create a genuine issue of material fact about Wells' purpose in claiming that Hernandez assaulted him.
In the alternative, defendants argue that Hernandez's allegations, even if true, do not amount to an improper collateral objective because Wells' desire to save his job is merely an improper motive, which is insufficient to raise an abuse of process claim. (Def. Reply Memo, at 12-13) When a defendant pursues a purpose within the legitimate ends of process, there is no abuse of process even if the defendant acted with malice in his heart. See Chamberlain v. Lishansky, 970 F. Supp. 118, 122 (N.D.N.Y. 1997) (finding that evidence tampering is not abuse of process when its objective — convicting the defendant — is within the scope of the legitimate intended use of process); O'Brien v. Alexander, 898 F. Supp. 162, 168 (S.D.N.Y. 1995), aff'd 101 F.3d 1479 (2d Cir. 1996) ("For a plaintiff to prevail on an abuse of process claim based on the issuance of a subpoena, the plaintiff must allege and show that the subpoena was issued not to obtain material and necessary testimony but to achieve the collateral objective of exerting economic pressure on the other party to the action."). However, Hernandez alleges more than a malicious motive in this case; he claims that defendant Wells manipulated process to save his job. This purpose would be an improper collateral objective because safeguarding one's own employment lies outside the legitimate goal of criminal process.
Defendants' final argument in favor of summary judgment on the abuse of process claim is that a showing of probable cause can be a defense to an abuse of process claim. (Def. Reply. Memo, at 13) See Granato v. City of New York, 98 Civ. 667 (ILG), 1999 WL 1129611, at *7 (E.D.N.Y. Oct. 18, 1999) ("[A] showing of probable cause at the time process issued suffices also to establish `excuse or justification' for the purposes of a defense to abuse of process.") — However, Hernandez has raised a genuine issue of material fact about whether Wells had probable cause to assert that Hernandez assaulted him. A reasonable jury could believe Hernandez's account of July 6 and find that Wells fabricated the assault incident. Therefore, summary judgment is inappropriate on this basis as well.
VI.
Defendants claim in the alternative that they are entitled to an order limiting damages, arguing that Hernandez may recover damages only for the 24-hour period following his arrest on July 6, 2000. (Def. Mot. at 15) For the reasons stated below, defendants' arguments are without merit, and I decline to issue the requested order.
Defendants argue first that the OOP's decision to place a parole hold on Hernandez on July 7, 2000, was an intervening act that broke the chain of causation that began with defendant Wells' conduct on July 6. (Id.) It is not clear from the record that the OOP took any action on July 7, but Hernandez appears to concede that he was subject to a parole hold on that date. (See Pl. Opp'n at 16) Therefore, I assume arguendo that the DOP did place a parole hold on Hernandez on July 7 that prevented him from being released following his arraignment. According to defendants, they are "not responsible for the decision of DOP to issue a parole hold on plaintiff immediately after his arrest." (Def. Mot. at 15)
In support of their claim that the DOP placed a parole hold on Hernandez on July 1, 2000, that prevented him from making bail, defendants cite only Hernandez's deposition testimony. (Rule 56.1 Stmt. ¶ 17) This testimony, set forth below, is inconclusive, particularly because it reflects only Hernandez's understanding of what occurred at the arraignment:
Q. Were you held for any of the parole violations?
A. No.
Q. Was bail ever set for you?
A. They set bail, yes. But I couldn't — because I had parole, I couldn't bail out.
Q. What was the bail set at?
A. 5,000.
Q. Do you know what judge set that bail?
A. No.
(Hernandez Dep. at 180) In their original motion, defendants appear to assume that the parole hold originated from the violation of parole warrant. (See Def. Mot. at 15) This assumption is misplaced because that warrant did not issue until ten days after the arraignment. (Violation of Release Report, Ex. C to Montoya Decl.; DOP Area/Bureau Analysis, Ex. M to Norinsberg Decl.) A CJA Interview Report form from July 7, 2000, does indicate that a bench warrant was attached to Hernandez's NYSID by that date, but defendants provide no further information about the circumstances under which it was issued. (CJA Interview Report, Ex. D at Montoya Decl.) Defendants thus fail to support their claim that the bench warrant issued because of Hernandez's alleged drug violations on June 27, 2000, and not because of the July 6, 2000, incident with Wells. (See Def/Mot. at 13)
It is true that an intervening exercise of independent judgment breaks the chain of causation between a police officer's unlawful arrest and a subsequent conviction and incarceration. Townes v. City of New York, 176 F.3d 138, 147 (2d Cir. 1999). However, defendants in § 1983 actions are liable for consequences caused by reasonably foreseeable intervening forces. See Zahrey v. Coffey, 221 F.3d 342, 351 (2d Cir. 2000). The Second Circuit suggests that the chain of causation should not be considered broken "where the initial wrongdoer can reasonably foresee that his misconduct will contribute to an `independent' decision that results in a deprivation of liberty." Id. at 352.
Defendants argue that damages stemming from Hernandez's parole revocation are inappropriate in part because they were not foreseeable to any of the defendants, since defendant Wells did not know that Hernandez was on parole during their July 6, 2000, encounter. (Def. Reply Memo, at 16-17) However, the key inquiry is whether this subsequent deprivation of liberty was reasonably foreseeable, see Zahrey, 221 F.3d at 351, not whether defendants actually foresaw all possible damages.
Defendants claim that the parole hold placed on Hernandez on July 7, 2000, resulted from Hernandez's own behavior — his alleged parole delinquency as of June 27, 2000, his decision to bring a knife to Riker's Island, and his "long history as a parole violator and absconder." (Def. Mot. at 16) Defendants produce no evidence to support their contention that these were the factors that motivated the DOP to issue the parole hold, and they do not dispute that Hernandez was taken into custody on July 6 as a result of Wells' allegations. There is a genuine issue of material fact as to why Hernandez was subjected to a parole hold on July 7, 2000. Based on the evidence in the record, a reasonable jury could conclude that Wells lied about the assault and that his false account played a pivotal role in subjecting Hernandez to police custody and the DOP's parole hold. Because the jury could reasonably conclude that defendant Wells' misleading information influenced the DOP decision to issue a parole hold, that decision does not necessarily constitute an intervening act of independent judgment that breaks the chain of causation.
Defendants argue that "[t]here is no evidence whatsoever that defendant Wells participated in the decision of the New York State Division of Parole to issue a parole warrant against plaintiff. Defendant Wells' only participation in plaintiff's parole problems was to testify at the parole revocation hearing when he was notified to do so by the New York State Division of Parole." (Def. Reply Memo, at 15) Even if Wells did not participate directly in the DOP's decision, his assault claim resulted in criminal charges against Hernandez, and those charges may well have induced the DOP to impose the parole hold.
For the first time in their reply brief, defendants suggest that the ALJ's revocation of Hernandez's parole qualifies as a second intervening exercise of independent judgment that breaks the chain of causation. (Def. Reply. Memo, at 17) Defendants assert that Towne has no application to this proceeding because "plaintiff has not shown any proof that defendant Wells misled, coerced, or influenced the administrative law judge in any manner." (Id.) I disagree. Wells had made a false claim of assault in the past, and the evidence in the record could lead a reasonable jury to conclude that Wells lied about his encounter with Hernandez. If Wells testified falsely before the ALJ, he did mislead an official who could expected to exercise independent judgment, which is precisely the type of behavior that keeps the chain of causation unbroken. See Townes, 176 F.3d at 147. Accordingly, defendants have not proved that either the DOP's decision to impose a parole hold or the ALJ's decision to revoke Hernandez's parole was independent of Wells' alleged fabrication so as to break the chain of causation that began with that fabrication.
Defendants next argue that Hernandez has suffered no cognizable damages from malicious prosecution and malicious abuse of process because he claims damages only from his arrest and criminal prosecution, not from the revocation of his parole. (Def. Reply Memo, at 16) According to defendants, Hernandez's incarceration after July 7, 2000, stemmed from his parole revocation alone, and he served no additional time — and hence suffered no additional damages — because of the arrest and criminal charges. (Id.; Def. Mot. at 16-17) Again, I disagree. A reasonable jury could conclude that Hernandez's incarceration resulted from Wells' claim that Hernandez punched him; if Hernandez had not been arrested and charged with assault, his parole may not have been revoked based on the alleged assault. Therefore, defendants' request for an order limiting damages is denied.
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For the reasons stated above, defendants' summary judgment motion is denied, and an order limiting damages will not issue. The parties will attend a conference on December 21, 2003, at 9:15 a.m. in Room 21B to set a schedule for submission of a pretrial order and related materials.SO ORDERED.