Opinion
98 Civ. 3115 (RCC)
November 14, 2001
Opinion Order
Plaintiff, William Laham ("Plaintiff' or "Laham"), brings this malicious prosecution and due process action, pursuant to 42 U.S.C. § 1983, 1988, and the Fourth, Fifth and Fourteenth Amendments, against Defendants Howard Safir ("Safir"), William Bratton ("Bratton"), Patrick Kelleher ("Kelleher"), James O'Brien ("O'Brien"), Sentoria Sutherland ("Sutherland"), Thomas Ong ("Ong"), and the City of New York (collectively "Defendants"). Defendants now move for summary judgment. For the reasons explained below, Defendants' motion is granted and Plaintiffs case is dismissed.
I. Background
Plaintiff became a New York City Police Officer in 1983. In December 1994 he had been a sergeant for approximately eight years and was serving as a supervisor on the midnight shift in the 48th Precinct in the Bronx. Defendants' 56.1 Statement ¶¶ 1, 2. While on patrol on December 18, 1994, Plaintiff responded to a radio transmission regarding suspected drug activity at 2068 Daley Avenue and, as a result, arrested Enrique DeLeon ("DeLeon") and Juan Carlos Perez ("Perez"). Id. ¶¶ 4-11. Although witnesses claimed that DeLeon had no apparent injuries at the time of his arrest, paramedics were summoned to treat injuries he allegedly sustained during the arrest, in the patrol car and at the 48th Precinct station house. Id. ¶¶ 11-12.
A. The Criminal Prosecution
The Bronx County District Attorney's Office convened a Grand Jury on the matter in April 1995 to hear testimony regarding the circumstances of DeLeon's arrest and subsequent injuries. DeLeon and Police Officer James Vasquez ("Vasquez") both testified that police officers, including Laham, beat DeLeon in the patrol car after the arrest and in the prisoner holding cell at the station house. Id. ¶¶ 17, 18, 20, 21, 25, 26, 27 (citing Grand Jury Transcripts). The Grand Jury returned an indictment on April 21, 1995 and charged Plainitff with two counts of assault in the third degree, two counts of official misconduct, menacing in the second degree and intimidating a victim or witness in the third degree.
Plaintiff proffers an account of the December 18 arrest that the Grand Jury did not hear. First, Plaintiff states that his union counsel failed to appear to defend him before the Grand Jury and, as a result, DeLeon's testimony was not challenged. Plaintiffs Memo in Opp. at 3-4. Plaintiff explains that DeLeon injured himself while under the influence of crack cocaine at the time of his arrest, as he behaved in a "violent and . . . irrational manner, repeatedly striking his own head and face on the floor of the holding cell." Plaintiffs Memo in Opp. at 2. Moreover, Plaintiff submits that Vasquez was a "corrupt" officer working for the Internal Affairs Bureau and that he lied about Laham in an effort to secure lement treatment in his own criminal prosecution. Id. at 2; Plaintiffs 56.1 Statement ¶¶ 7-8.
While testifying at the criminal trial Vasquez admitted to lying to the Internal Affairs Bureau about hearing Perez being beaten in the precinct holding cell and lying to the Grand Jury about seeing paramedics take DeLelon out of the station house. Trial Transcript at 461, 564-66. Similarly, during the course of his cross examination, DeLeon admitted to lying to Police Department investigators and to the Grand Jury on numerous occasions regarding his allegation that Laham beat him and threatened him with a gun. Trial Transcript at 772-73 (admitting he lied to police investigators and the grand jury), 920-21 (agreeing he may have lied to the grand jury thirty-two times). Plaintiff was acquitted of all criminal charges on November 1, 1996.
B. The Police Department Proceedings
As a result of his indictment, in May 1995 the Police Department suspended Plaintiff for one month. Defendants' 56.1 Statement ¶ 30. On May 4, 1995, the Police Department served Laham with twelve charges and specifications, which included causing injury to DeLeon in the patrol car, placing a firearm in DeLeon's mouth in the prisoner cell, failing to prevent other officers from beating DeLeon in the cell and neglecting to notify his commanding officer of the misconduct. Id. ¶ 31. On December 10, 1996, Assistant Deputy Commissioner Ellen Kay Schwartz recommended that the twelve charges against Plaintiff be dismissed. Defendant Police Commissioner Safir adopted that recommendation. Id. ¶ 49.
Laham continues to serve as a sergeant in the 48th Precinct and currently supervises a group of officers who are not permitted to carry weapons on duty. He filed the instant action in July 1998, claiming malicious prosecution and violation of his due process rights arising out of Defendants' investigation into the December 18, 1995 arrest and the resulting administrative charges. The parties have stipulated to the withdrawal of the pendent state law claims and the federal claim of false arrest. Defendants now move for summary judgment.
II. Discussion
A. Summary Judgment Standard
Summary judgment is appropriate where the parties' submissions demonstrate "that there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986) ("In our view, the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial."). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment."Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The party seeking summary judgment bears the initial burden of showing that no genuine issue of fact exists. Celotex, 477 U.S. at 323. The court must resolve all ambiguities and draw all inferences in favor of the non-moving party. Anderson, 477 U.S. at 255. Once the moving party makes the required showing, the opposing party "may not rest upon . . . mere allegations or denials," rather the party must present "specific facts showing there is a genuine issue for trial." Fed.R.Civ.P. 56(e);Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998) (noting "the non-moving may not rely on conclusory allegations or unsubstantiated speculation" to defeat the motion).
B. Malicious Prosecution
To prevail in his § 1983 malicious prosecution claim, Plaintiff must demonstrate that (1) Defendants "either commenced or continued a criminal proceeding against him; (2) that the proceeding terminated in his favor; (3) that there was no probable cause for the criminal proceeding; and (4) that the criminal proceeding was instituted with actual malice." Bonhide Prods., Inc. v. Cahill, 223 F.3d 141, 145 (2d Cir. 2000) (quoting Posr v. Doherty, 944 F.2d 91, 100 (2d Cir. 1991)). Additionally, Laham "must show a violation of his rights under the Fourth Amendment." Id. (quoting Murphy v. Lynn, 118 F.3d 938. 944 (2d Cir. 1997)).
The Second Circuit has explained that "for an individual to "initiate' a prosecution for these purposes, "[t]he mere reporting of a crime to police and giving testimony are insufficient; it must be shown that defendant played an active role in the prosecution, such as giving advice and encouragement or importuning the authorities to act.'"Rohman v. New York City Transit Auth., 215 F.3d 208, 217 (2d Cir. 2000) (collecting New York cases).
The Second Circuit has stated that "[a] civil regulatory action, even if broad-based and aggressive, does not involve the deprivation of personal liberty or invasion of privacy that attends a criminal prosecution," and has declined to extend § 1983 to allegations of malicious civil prosecution. Easton v. Sundram, 947 F.2d 1011, 1018 (2d Cir. 1991) ("We do not hold that civil malicious prosecution can never give rise to a cause of action under § 1983, although we suspect that it normally will not."). Here, Plaintiffs malicious prosecution claim is based on the Police Department's administrative proceedings against him.See Plaintiffs Memo in Opp. at 6. Accordingly, since Plaintiffs claim for malicious prosecution arises from a civil, rather than criminal, proceeding, Defendants argue that Plaintiff has failed to state an actionable constitutional claim.
Plaintiff disagrees and argues that, in certain circumstances, a civil proceeding can support a § 1983 malicious prosecution claim. See Dillon v. Boyce, No. 94 Civ. 1363 (CPS), 1995 WL 116476, at *5-6 (E.D.N.Y. Mar. 8, 1995). In Dillon, the court explained that while civil proceedings could not normally support a constitutional malicious prosecution claim, the plaintiff therein had alleged violations of her substantive due process rights. Thus, in denying the defendants' motion to dismiss, the court determined that "the claim of civil malicious prosecution deserve[d] further inquiry." Id. at *5 Plaintiff argues that he, too, has alleged violations of substantive due process and that his malicious prosecution claim should stand.
The Court does not agree. In a subsequent case, with facts very similar to the present one, an Eastern District court unequivocally announced that "[a] constitutional violation premised on a claim of malicious prosecution, and sufficient to support an action under § 1983, must arise out of a criminal, not a civil proceeding, even where state tort law recognizes an action for malicious prosecution on the basis of the latter." Mistretta v. City of New York, No. 98 Civ. 2589 (ILG), 1999 WL 1129618, at *7 (E.D.N.Y. Oct. 15, 1999) (citing Easton v. Sundram, 947 F.2d 1011, 1017 (2d Cir. 1991)). Moreover, the Second Circuit has held that "the Fourteenth Amendment right to substantive due process will not support a federal claim for malicious prosecution." Singer v. Fulton County Sheriff, 63 F.3d 110, 114 (2d Cir. 1995) (citing Albright v. Oliver, 510 U.S. 266 (1994)). The Court is similarly unconvinced by Plaintiffs reliance on cases in which New York courts sustain malicious prosecution claims based on civil proceedings. See, e.g., Manti v. New York City Transit Auth., 568 N.Y.S.2d 16 (App.Div. 2d Dep't 1991); Groat v. Town Board, 426 N.Y.S.2d 339 (App.Div. 3d Dep't 1980); Glenn v. State, 543 N.Y.S.2d 632 (N.Y. Ct.Cl. 1989). The courts in these cases were considering state malicious prosecution claims, not § 1983 claims. "Simply because New York state affords a tort of civil malicious prosecution does not transform [this] claim into a constitutional cause of action." Easton, 947 F.2d at 1017. Accordingly, while the Court is sympathetic to Plaintiffs position, it finds that Plaintiff cannot satisfy the elements of a constitutional malicious prosecution claim and grants summary judgment in favor of all of the Defendants on that claim.
Occasionally in his papers Plaintiff refers to Defendants' role in his criminal prosecution. See, e.g., Plaintiffs Memo in Opp. 11. Plaintiff does not appear to have pleaded a malicious prosecution claim with respect to the criminal proceeding. To the extent Plaintiff bases his malicious prosecution claim on the criminal proceeding, however, the claim is dismissed. Plaintiff cannot demonstrate that there was no probable cause for the criminal proceeding. "[T]he fact that a grand jury indicts a person of a crime creates a presumption of probable cause for the purposes of defending against a malicious prosecution claim." Green v. Montgomery, 219 F.3d 52, 60 (2d Cir. 2000) (citing Marshall v. Sullivan, 105 F.3d 47, 54 (2d Cir. 1996)). However, that presumption can be overcome with "evidence that the indictment was the product of fraud, perjury, the suppression of evidence by the police, or other police conduct undertaken in bad faith." Id. (quoting Marshall, 105 F.3d at 54). Although DeLeon admitted to lying to the grand jury, Trial Transcript 772-73, 920-21, Plaintiff does not connect his perjury to the Defendants. Jenkins v. City of New York, No. 98 Civ. 7170 (JGK), 1999 WL 782509, at *9 (S.D.N.Y. Sept. 30, 1999), aff'd 216 F.3d 1072 (2d Cir. 2000) (holding that the fact that a witness lied to the grand jury does not overcome the presumption of probable cause, rather the "perjury must be attributable to the police").
C. Substantive Due Process
Although it is not clear if he is doing so in addition to, or in conjunction with, his malicious prosecution claim, Plaintiff alleges that he suffered violation of his substantive due process rights. Specifically, Plaintiff claims that his suspension without pay, the removal of his weapons, the administrative proceeding and his loss of opportunity for promotion amounts to deprivation of his property interest. Plaintiff Memo at 9-10. To state a claim for violation of substantive due process, Plaintiff must demonstrate that Defendants "exercise[d] . . . power without any reasonable justification in the service of a legitimate governmental objective." SeaAir NY, Inc. v. City of New York, 250 F.3d 183, 187 (2d Cir. 2001) (quoting County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998)). The Defendants' actions must be "arbitrary, conscience-shocking, or oppressive in a constitutional sense." Id. (quoting Kaluczky v. City of White Plains, 57 F.3d 202, 211 (2d Cir. 1995));see also Singer v. Fulton County Sheriff, 63 F.3d 110, 115 (2d Cir. 1995) (noting the "protections of substantive due process have for the most part been accorded to matters relating to marriage, family, procreation, and the right to bodily integrity").
The Court finds Plaintiff has not met his burden to sustain this claim. Only in his brief in opposition to summary judgment does Plaintiff suggest that his stagnated career is a violation of his property interest. However, Plaintiff has not lost his job, he remains employed with the New York City Police Department, he retains the rank of sergeant and his salary has not been affected. See Sutton v. Village of Valley Stream, 96 F. Supp.2d 189, 193 (E.D.N.Y. 2000) (finding changes in job responsibilities and salary reduction do not constitute gross abuse of governmental authority). Further, the Police Department was not acting in an arbitrary or capricious manner when it instituted administrative proceedings against him. The Department has a legitimate interest in protecting and ensuring its integrity and that of its officers. At the time, Plaintiff had been indicted by a grand jury and was under arrest. Although it is gravely unfortunate that DeLeon lied before the grand jury, there is no indication that any Defendant knew DeLeon was lying at the time the Police Department initiated the administrative proceeding. Substantive due process does not protect against government action that is incorrect." Kaluczky v. City of White Plains, 57 F.3d 202, 211 (2d Cir. 1995) (internal citations omitted). Accordingly, since Plaintiffs papers are devoid of any support of his substantive due process claim, summary judgment is granted in favor of Defendants.
III. Conclusion
For the reasons explained above, Defendants' motion for summary judgment is granted and Plaintiffs case is dismissed.