Opinion
94 Civ. 5109 (NRB).
April 18, 2000.
Shawn R. Hines, Pro See.
Kathleen Gill Miller, Esq., Milton H. Pachter, Esq., Attorney for The Port Authority of New York and New Jersey.
OPINION AND ORDER
Plaintiff Shawn R. Hines ("plaintiff" or "Hines") filed this pro se action against the City of New York, the New York Police Department, the United States Navy, the Intrepid Sea Air Space Museum, the Port Authority of New York and New Jersey and several individual officers, alleging, inter alia, that he was falsely arrested and imprisoned and maliciously prosecuted in violation of 42 U.S.C. § 1983, 42 U.S.C. § 1985 and New York State law. Now pending, after the close of discovery, is the motion of the remaining defendants, the Port Authority of New York and New Jersey ("The Port Authority") and Port Authority police officers Richard Canale, (sued as Ralph Canale) ("Canale"), Raymond Lasak (sued as Lesak) ("Lasak") and Terry Ng ("Ng") (together, "defendants"), pursuant to Fed.R.Civ.P. 56, for summary judgment. For the reasons set forth below, defendants' motion is granted.
BACKGROUND
There is no material, if any, dispute about the factual background set out. On June 4, 1994, plaintiff visited the U.S.S. Kearsage which was docked at Pier 88 in Manhattan, operated by the Port Authority of New York and New Jersey ("the Port Authority") and then under the jurisdiction of the Port Authority Police Department ("PAPD"). The ship was open for public tours on that day as part of the Fleet Week celebration. Compl. ¶ 7; Amended Compl. ¶¶ 9-10; Affidavit of Charles E. Cochran, January 11, 2000, ("Cochran Aff.") ¶¶ 4-7. Signs were posted at intervals on the route to the ship notifying the public that visitors were subject to search of their person and belongings aboard the ship under the Internal Security Act of 1960, 50 U.S.C. § 797. Affidavit of Charles E. Cochran, January 11, 2000, ("Cochran Aff.") ¶¶ 5-7. During Fleet week, visitors to the USS Kearsage were routinely asked to open their bags for inspection. Cochran Aff. ¶ 8.
Hines boarded the USS Kearsage at approximately 3:30 p.m. Prior to his boarding the ship, the Naval Shore Patrol had observed him proceeding to the ship, notified Petty Officer Lance Baker aboard the USS Kearsage that an individual later identified as Shawn Hines was behaving strangely and described Hines' appearance. Affidavit of Petty Officer Lance Baker, January 20, 2000 ("Baker Aff.") ¶ 5. When Hines boarded the ship, Petty Officer Baker immediately told him his bag would be searched, proceeded to search Hines' black athletic bag and found a clear plastic bag containing a white powdery substance. Amended Compl. ¶¶ 12; Baker Aff. ¶¶ 6, 8. Plaintiff claims that the bag contained salt, and that when the officers found it, he told them to taste it themselves. Amended Compl. ¶ 14; Baker Aff. ¶ 9. According to Officer Baker, who had conducted numerous searches during 16 years of naval service, the substance did not resemble salt but rather appeared to be an illegal drug. Baker Aff. ¶ 9.
Chief Master-at-Arms Cochran immediately approached the scene and took custody of Hines, his gym bag and its contents. Baker Aff. ¶ 11; Cochran Aff. ¶ 11. The position of Chief Master-at-Arms is the naval equivalent of the position of chief of police for the ship. Cochran Aff. ¶ 2. As of June 1994, Cochran had served in that capacity for approximately seventeen years, during which he made over one thousand drug apprehensions. Cochran Aff. ¶ 2. Cochran also rejected Hines' statements that the substance was salt or sugar because its crystals did not resemble those found in commercial sugar or salt. Cochran Aff. ¶¶ 13-14. Cochran then took custody of Mr. Hines on suspicion of possession of illegal drugs, read him his "Miranda" rights, took him to the Naval Criminal Investigative Service ("NCIS") trailer at Pier 88 and turned him over to NCIS agents. Amended Compl. ¶ 19; Cochran Aff. ¶¶ 13-17. At the trailer, Cochran performed a Sirchie drug screen test (a drug test using the Duquenois-Levine field test kit manufactured by Sirchie) on the white powdery substance, which tested positive for heroin and opiates and negative for cocaine. Cochran Aff. ¶¶ 19-20; Affidavit of NCIS Special Agent Gavin Cooper, January 19, 2000 ("Cooper Aff.") ¶ 4.
The PAPD was then summoned by the NCIS agents to take custody of Hines, Cochran Aff. ¶ 20. Detectives Lasak, Ng and Detective Sgt. Canale, experienced police officers who had previously handled numerous criminal investigations involving drugs, responded. Affidavit of Raymond Lasak, January 20, 2000 ("Lasak Aff.") ¶¶ 2-3; Affidavit of Terry Ng, January 21, 2000 ("Ng Aff.") ¶¶ 2-4. Upon arrival, the detectives learned of the circumstances of plaintiff's detention, and asked Chief Cochran to perform the drug screen for heroin again. Lasak Aff. ¶¶ 4-7; Ng Aff. ¶¶ 5-6. Cochran performed the Duquenois-Levine drug screen for a second time, and the test again showed positive for heroin. Cochran Aff. ¶ 21; Lasak Aff. ¶ 7; Ng Aff. ¶ 6. Cochran then concluded there was probable cause to arrest Hines. Cochran Aff. ¶ 22. Detective Lasak performed a third test, using the NIK field test kit B. The substance again tested positive for heroin, confirming the two prior tests. Lasak Aff. ¶¶ 8-10; Ng Aff. ¶ 6; Cooper Aff. ¶ 7. Based on the information provided by the Navy, the field test results obtained by Cochran, and his own observation, Lasak believed he had probable cause to arrest Hines. Lasak Aff. ¶ 9.
At that time, the PAPD detectives took Hines into custody and brought him to the Port Authority Bus Terminal in Manhattan to process his arrest for possession of a substance believed to be heroin. Lasak Aff. ¶¶ 11-12; Hines Depo. August 27, 1997 at 42. Lasak read plaintiff his "Miranda" rights and placed a telephone call to Hines' father in New Jersey, notifying him of plaintiff's arrest. Lasak Aff. ¶¶ 12, 19; Hines Depo. 8/27/97 at 45-48. A pat-down by Detective Lasak at the bus terminal disclosed a small packet of marijuana in Hines' shoe. Lasak Aff. ¶ 13. Plaintiff does not dispute that he was in possession of marijuana. Plaintiff was arrested under Penal Law § 220.21(1) for Criminal Possession of a Controlled Substance in the First Degree (4 oz. Heroin) and under Penal Law § 221.05 for Unlawful Possession of Marijuana. Lasak Aff. ¶ 15. He was held at the bus terminal for two and a half hours and then was transferred to the custody of the New York City Police Department ("NYPD"). Lasak Aff. ¶ 17, 20. The alleged drugs (both the powdery white substance and the marijuana) were sent to the NYPD laboratory for testing. Lasak Aff. ¶ 25. Plaintiff alleges that he was then held in jail for seven days. Compl. ¶ 18; Amended Compl. ¶ 34.
Upon further testing by the NYPD neither packet in Hines' possession was found to contain heroin. However, it was confirmed that Hines possessed 10.6 grain of marijuana. See City of New York Police Laboratory Controlled Substance Analysis Certified Report, June 10, 1994. The criminal charges brought against Hines pursuant to both charges of violating Penal Law § 220.21 and Penal Law § 221.05 were adjourned in contemplation of dismissal on August 2, 1994, with a term of one year expiring on August 1, 1995, pursuant to § 170.56 of New York Crim. Pro. L. which permits adjournment in contemplation of dismissal ("ACD") in certain cases involving marijuana. See Certificate of Disposition of the Criminal Court of the City of New York, Docket # 94N040784, August 2, 1994.
An ACD under New York Crim. Pro. L. § 170.55 permits a criminal case to be adjourned, with the State retaining the option to reinstate the case within six months or to dismiss the charges. An ACD in cases involving marijuana pursuant to § 170.56 is akin to an ACD pursuant to § 170.55 with the exception of some procedural differences specified in the statute, such as the time period for adjournment.
PROCEDURAL HISTORY
Plaintiff first commenced this action, arising out of his detention and arrest aboard the U.S.S. Kearsage, against the City of New York and other defendants in July 1994, and in May 1995, amended his complaint to add the Port Authority and Officers Lasak, Ng and Canale. On May 27, 1996, plaintiff filed another Amended Complaint ("Amended Compl.") alleging false arrest, false imprisonment and malicious prosecution under 42 U.S.C. § 1983 and New York State law; denial of equal protection under 42 U.S.C. § 1981; conspiracy to violate his equal protection rights because of his race under 42 U.S.C. § 1985 (plaintiff claims that government officials conspired to have him arrested to prevent him from visiting the ship and museum); violation of his first amendment rights by denying him the free exercise of his religion while incarcerated in New York City's jail; negligence in administration of the drug screen tests; and intentional infliction of emotional distress.In 1995, Judge Martin dismissed the case against the United States Navy due to plaintiff's failure to comply with the notice of claim requirements of the Federal Torts Claims Act ("FTCA"), 28 U.S.C. § 2675(a). Hines v. City of New York et al., 1995 WL 505514, at *2 (S.D.N.Y. Aug. 24, 1995). The following year, Judge Martin granted the motions for summary judgment of the Intrepid Air Space Museum and the City of New York, holding that "[i]t is clear that neither the Museum not the City had any role in the arrest of plaintiff by the Port Authority Police. Even if the City was responsible for some delay in the analysis of the white powder taken from plaintiff at the time of his arrest, there is no showing that this delay rose to the level of a constitutional violation."Hines v. City of New York et al., 1996 WL 412857, at *1 (S.D.N Y July 22, 1996).
This holding also resolved plaintiff's first amendment claim for denial of his religious freedom during his incarceration.
The remaining defendants, The Port Authority and Port Authority police officers, Canale, Lesak and Ng, now move for summary judgment on the ground that plaintiff's claims under 42 U.S.C. § 1981, 1983 and 1985, and his state law claims for false arrest, false imprisonment and malicious prosecution fail because plaintiff's arrest was based upon probable cause, the officers are entitled to qualified immunity and the criminal proceeding was not terminated in plaintiff's favor.
DISCUSSION
Summary Judgment Standard
Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith if 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 a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The party seeking summary judgment "bears the initial responsibility of informing the district court of the basis for its motion," and identifying which materials "it believes demonstrate the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323. Once a motion for summary judgment is properly made, the burden shifts to the nonmoving party, which "`must set forth specific facts showing that there is a genuine issue for trial.'" Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (quoting Fed.R.Civ.P. 56(e)). The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. at 247.
False Arrest Claims under 42 U.S.C. § 1983 and New York Tort Law
The elements of false arrest in violation of 42 U.S.C. § 1983, resting on the Fourth Amendment right of an individual to be free from unreasonable seizures including arrest without probable cause, and false arrest under New York state tort law are essentially the same. Covington v. City of New York, 171 F.3d 117, 112 (2d Cir. 1999); Posr v. Doherty, 944 F.2d 91, 96 (2d Cir. 1991). "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 . . . The existence of probable cause to arrest constitutes justification and is a complete defense to an action for false arrest, whether that action is brought under state law or under § 1983." Covington, 171 F.3d at 112 (citations omitted).
Also, plaintiff's claim for false imprisonment is equivalent to a claim for false arrest under New York law. Jacques v. Sears Roebuck Co., 30 N.Y.2d 466, 473, 334 N.Y.S.2d 632, 638 (1992).
Arrest pursuant to probable cause "requires the arresting officer to have "knowledge or reasonably trustworthy information sufficient to warrant a person of reasonable caution in the belief than an offense has been committed by the person to be arrested."Martinez v. Simonetti et al., 202 F.3d 625, 634 (2d Cir. 2000) (citing Singer v. Fulton County Sheriff, 63 F.3d 110, 119 (2d Cir. 1995)); Posr v. Court Officer Shield # 207, 180 F.3d 409, 414 (2d Cir. 1999) (citing Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996)). The question of whether probable cause existed may be determinable as a matter of law if there is no dispute as to pertinent events and the knowledge of the officers. Weyant v. Okst, 101 F.3d at 852. Thus, if in the exercise of reasonable caution, the arresting officers were warranted in believing that Hines had committed or was committing a crime, the false arrest claim fails.
Specifically, "it is well-established that a law enforcement official has probable cause to arrest if he received his information from some person, normally the putative victim or eyewitness." Martinez, 202 F.3d at 634. "In evaluating the probable cause determination, "we consider the facts available to the officer at the time of the arrest.'" Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 128 (2d Cir. 1997).
Here, probable cause was based upon the information provided by U.S. Naval personnel who searched plaintiff aboard a U.S. Navy vessel under the authority of the Internal Security Act of 1960, 50 U.S.C. § 757, after having furnished notice that all visitors aboard the ship would be subject to search, as well as results of two field tests conducted by U.S. Navy personnel showing the white powdery substance plaintiff was carrying in a ziplock bag tested positive for heroin, and results of subsequent testing conducted by PAPD detectives which confirmed this finding. Based on the information provided by U.S. Navy personnel, their own observations, and the various test results, the Port Authority defendants had ample probable cause to take plaintiff into custody.See Pennington v. Hobson, 719 F. Supp. 760, 767-69 (S.D. Ind. 1989) (use of drug identification field test as basis of probable cause violated no constitutional rights).
Once a police officer has a reasonable basis for believing there is probable cause, he is not required to explore and eliminate every theoretically plausible claim of innocence before making an arrest. Ricciuti, 124 F.3d at 128; Krause v. Bennett, 887 F.2d 362, 372 (2d Cir. 1989) ("It is up to the factfinder to determine whether a defendant's story holds water, not the arresting officer"). Nor does the evidence required to establish probable cause need to reach the level necessary to support a conviction. Even subsequent acquittal would have no bearing on the determination of whether probable cause to arrest existed. Krause, 887 F.2d at 370. Even though the NYPD laboratory eventually found the white powder negative for heroin, this does not negate the existence of probable cause at the time of Hines' arrest. See Pennington, 719 F. Supp. at 760 (probable cause to arrest existed where field test indicated powder was cocaine even though subsequent laboratory test identified powder as aspirin and record contains no evidence defendants were disingenuous in performing field test); Dukes v. City of New York, 879 F. Supp. 335 (S.D.N Y 1995) (granting summary judgment after finding that despite plaintiff's subsequent acquittal of the crime, officers had probable cause to arrest plaintiff based on eyewitness identification). Because defendants had probable cause to arrest Hines, his false arrest claim fails.
Malicious Prosecution Claim under Section 1983 and New York Law
A claim of malicious prosecution brought pursuant to 42 U.S.C. § 1983 shares the same elements as a malicious prosecution claim under New York State law. For both, a plaintiff alleging malicious prosecution must establish that (1) defendant initiated a criminal proceeding against him; (2) that the proceeding terminated in plaintiff's favor; (3) that there was no probable cause for the criminal proceeding; and (4) that the criminal proceeding was instituted in malice. Posr v. Court Officer Shield # 207, 180 F.3d 409, 417 (2d Cir. 1999); Ricciuti, 124 F.3d at 130. For purposes of determining whether proceedings have been terminated in plaintiff's favor so as to enable him to bring a malicious prosecution action, the proceedings' final disposition must indicate that the accused was not guilty of the offense charged.Singleton v. City of New York, 632 F.2d 185, 193-95 (2d Cir. 1980). Hines' malicious prosecution claim fails because he cannot satisfy the second element since the underlying proceeding against him did not terminate favorably.
Adjournment in Contemplation of Dismissal
The disposition of the criminal case against Hines by ACD mandates dismissal of plaintiff's malicious prosecution claim and provides a second dispositive reason to dismiss his false arrest claim. An individual granted an ACD cannot maintain a Section 1983 action sounding in false arrest or malicious prosecution. Johnson v. Bax, 63 F.3d 154 (2d Cir. 1995). An ACD under New York criminal law leaves open the question of the accused's guilt and does not constitute termination in favor of plaintiff for purposes of a malicious prosecution claim. Murphy v. Lynn, 118 F.3d 938 (2d Cir. 1997) (adjournment in contemplation of dismissal deemed not favorable to accused to be indicative of innocence for purposes of malicious prosecution claim). See also Roesch v. Otarola, 980 F.2d 850, 853-54 (2d Cir. 1992) ("The policy considerations that motivated the Court in Singleton [holding that ACD bars malicious prosecution claim] are equally appropriate in the context of a section 1983 claim sounding in false imprisonment or false arrest."); Singleton, 632 F.2d at 193-95 (malicious prosecution claim not cognizable after acceptance of an ACD under New York law); Bowles v. State of New York, 37 F. Supp.2d 608 (S.D.N Y 1999) (plaintiff could not maintain false arrest or malicious prosecution claims under Section 1983 after accepting an ACD because under New York law ACD is not considered termination of prosecution in plaintiff's favor); Copeland v. City of New York, 1999 WL 1201737, at *2 (S.D.N.Y. Dec. 14, 1999) ("It is well-settled in this Circuit that acceptance of an "adjournment in contemplation of dismissal' under New York C.P.L. § 170.55, which leaves open the question of the accused's guilt, does not constitute a termination in favor of plaintiff. A lawsuit for false arrest and malicious prosecution may not proceed where the underlying arrest and prosecution results in such a disposition.")
Plaintiff's Claim of Racial Discrimination under 42 U.S.C. § 1981
To state a claim under 42 U.S.C. § 1981, plaintiff must set forth facts establishing (1) membership in a racial minority; (2) intent to discriminate on the basis of race by defendant; and (3) discrimination concerning one or more of the activities enumerated in the statute. Mian v. Donaldson, Lufkin Jenrette Secs. Corp., 7 F.3d 1085, 1087 (2d Cir. 1993). Mere conclusory allegations do not suffice to support a § 1981 claim. Yusuf v. Vassar College, 35 F.3d 709, 713-14 (2d Cir. 1994). Plaintiff's § 1981 claim fails because he failed to raise a genuine issue of material fact, none of his constitutional rights were violated, and he has put forth no evidence of specific actions demonstrating racial animus towards plaintiff.
Hines' Claim of Conspiracy under 42 U.S.C. § 1985 42 U.S.C. § 1985 prohibits conspiracies to violate a person's civil rights because of his race. Hines claims that government officials conspired to have him arrested and to prevent him from visiting the USS Kearsage. To state a cause of action under § 1985(3) a plaintiff must allege (1) a conspiracy (2) for the purpose of depriving a person or class of persons the equal protection of the laws or the equal privileges and immunities under the laws; (3) an overt act in furtherance of the conspiracy; and (4) an injury to the plaintiff's person or property, or a deprivation of a right or privilege of a citizen of the United States. Thomas v. Roach, 165 F.3d 137, 146 (2d Cir. 1999) (citingGriffin v. Breckenridge, 403 U.S. 88, 102-03 (1971)). "Furthermore, the conspiracy must also be motivated by "some racial or perhaps otherwise class-based, invidious discriminatory animus behind the conspirators' action.'" Thomas, 165 F.3d at 146 (citing Mian v. Donaldson, Lufkin Jenrette Secs. Corp., 7 F.3d 1085, 1088 (2d Cir. 1993). A valid claim must set forth the facts and circumstances of the alleged conspiracy. Mass. v. McClenahan, 893 F. Supp. 225, 231 (S.D.N.Y. 1995).
Here plaintiff, whose false arrest and malicious prosecution claims fail, suffered no injury cognizable under federal or state law and no deprivation of constitutional rights. Therefore, plaintiff has no cause of action for conspiracy. Hines also alleged no facts in support of his general allegations of conspiracy, and presented no evidence showing that the officers acted with race-based discriminatory animus. He "did not demonstrate that the officers selected their course of action because of his race. The defendants [are] entitled to summary judgment on this claim." Thomas, 165 F.3d at 147.
Claims against the Port Authority under 42 U.S.C. § 1983
The Port Authority of New York and New Jersey was created as an agency or instrumentality of the two states for purpose of developing the port of New York. N.Y. Unconsol. L. § 6451 (McKinney, 1999). For a plaintiff to prevail on a § 1983 claim against a local government entity, he must show that the entity implemented a policy or custom that caused plaintiff's injuries, and that his injuries rise to the level of a `constitutional tort.'Monell v. Department of Social Services, 436 U.S. 658, 691 (1978). Moreover, as a predicate to a claim against a municipal authority, plaintiff must show that his constitutional rights were violated during the incident. Ricciuti v. N.Y.C. Transit Authority, 796 F. Supp. 84, 85 (S.D.N.Y. 1992). Because Hines' § 1983 and § 1985 claims fail, he has not shown that his constitutional rights were violated and thus has no claims against the governmental body. Id. See also Breland v. Abate, 917 F. Supp. 220, 224 (S.D.N.Y. 1996) ("Monell claim cannot survive in light of above rulings granting summary judgment on the underlying § 1983 in favor of the individual defendants"); Leone v. Creighton, 948 F. Supp. 192, 197 (E.D.N.Y. 1996) (claim against county is dismissed since under Monell, liability against county has no separate viability in the absence of underlying individual constitutional liability). For this reason, Hines' claims against the Port Authority under 42 U.S.C. § 1983 are dismissed.
Negligence and Intentional Infliction of Emotional Distress Claims
Hines claims that defendants acted negligently in failing to fulfill their duty to administer the heroin test fairly and accurately. To establish a prima facie case of negligence under New York law, plaintiff must show that: (1) the defendant owed the plaintiff a cognizable duty of care as a matter of law; (2) the defendant breached that duty; and (3) plaintiff suffered damage as a proximate result of that breach. Curley v. AMR Corp., 153 F.3d 5, 13 (2d Cir. 1998); McCarthy v. Olin Corp., 119 F.3d 148, 156 (2d Cir. 1997). Hines' claim fails because he cannot show that he suffered any damage because even if, as plaintiff contends, defendants did not perform the field test accurately and fairly (Compl. ¶ 33), defendants still had probable cause to arrest him based on the two prior drug screen tests conducted by the Naval officers, both of which yielded positive results for heroin.
Given the two tests performed by the Navy, a negative test would not have eliminated probable cause. An arresting officer is not required to resolve disputed fact issues before effecting the arrest. Krause, 887 F.2d at 372 ("Once officers possess facts sufficient to establish probable cause, they are neither required nor allowed to sit as prosecutor, judge or jury. Their function is to apprehend those suspected of wrongdoing, and not to finally determine guilt through a weighing of the evidence.").
Hines also alleges that defendants' conduct amounted to intentional infliction of emotional distress. Under New York law, a claim for intentional infliction of emotional distress requires a showing of (1) extreme and outrageous conduct; (2) intent to cause, or reckless disregard of a substantial probability of causing, severe emotional distress; (3) a causal connection between the conduct and the injury; and (4) severe emotional distress.Stuto v. Fleishman, 164 F.3d 820, 827 (2d Cir. 1999) (citing Howell v. New York Post Co., 81 N.Y.2d 115, 122, 596 N.Y.S.2d 350 (1993)). "Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society . . . Whether the conduct alleged may reasonably be regarded as so extreme and outrageous as to permit recovery is a matter for the court to determine." Id. (internal quotations omitted). Because there is no evidence here that defendants intentionally or recklessly engaged in conduct that was so extreme as to be regarded as atrocious and utterly intolerable in a civilized society, Hines' claim of intentional infliction of emotional distress is dismissed.
CONCLUSION
For the reasons set forth above, defendants motion for summary judgment is granted in its entirety. and plaintiff's complaint is dismissed. The Clerk of the Court is directed to close this case.
IT IS SO ORDERED.
DATED: New York, New York April 17, 1999.