Summary
finding that the claims for failure to intervene to prevent an arrest and to prevent excessive force failed where the arrest and prosecution was supported by probable cause, and the defendants were not present at the time of the alleged use of force
Summary of this case from Boyler v. City of LackawannaOpinion
03 CIV. 1983 (DLC).
September 20, 2004
Dan Cherner, Law Offices of Dan Cherner, New York, New York, for Plaintiff.
Jennifer A. Vazquez, Assistant Corporation Counsel City of New York, New York, New York, for Defendant.
OPINION AND ORDER
Following the close of discovery, the defendants have moved for summary judgment in this action brought against three police officers and the City of New York ("City") pursuant to Title 42, United States Code, Section 1983 ("Section 1983") by Calvin Lucky ("Lucky") after his acquittal at trial on robbery and other charges. Lucky had been identified in a photospread and line-up by the robbery victim, who also signed the arrest complaint and testified before the grand jury, which returned the indictment against Lucky. For the following reasons, the defendants' motion for summary judgment is granted with respect to all claims except the plaintiff's claim against defendant Detective John Weis ("Weis") for the excessive use of force.
Background
The following facts are undisputed or taken in the light most favorable to the plaintiff. David DelValle ("DelValle") has asserted that he was robbed at knife point on January 2, 2000 at approximately 4:45 p.m., while riding the No. 4 subway (the "4 Train") in the Bronx. When DelValle exited the train he reported the robbery to a dispatcher who then called the New York City police. Defendant Officer Al Rivera ("Rivera") responded to the call and completed a field investigation worksheet (the "Worksheet"), which describes the robbery as occurring in the rear car of the subway between "Fordham and King. 4." The 4 Train runs on Jerome Avenue. When the train is traveling northbound, it arrives at the 183rd Street Station, the Fordham Road station, and the Kingsbridge Road station in that order.
The Worksheet describes the robber as a black male, aged 18 to 20, 5'5" in height, weighing 200 pounds, with normal hair length, a mustache, and thick eyebrows. He was wearing a dark baseball cap, a blue and black jacket, black jeans, and dark sneakers. No identification was made at the time, although the Worksheet reflects that Detective Fitzgerald showed photographs to DelValle. Rivera's involvement with the investigation ended upon the completion of the Worksheet.
On January 3, Sergeant Jesus Velez prepared a complaint report ("Complaint Report") describing the January 2 robbery. The Complaint Report identifies the location of the robbery as the 4 Train at East Kingsbridge Road and Jerome Avenue and describes the robber as a male black, age 20, 5'5", 200 pounds, black eyes, black hair of normal length, with a mustache and no glasses. The robber is reported to have exited the train at the Kingsbridge Road station. The Complaint Report reflects that Lieutenant Medina had been on the scene, and that Detective Fitzgerald had shown photographs to the victim.
On January 5, defendant Officer Wilfredo Ocasio ("Ocasio") contacted DelValle by telephone to discuss the January 2 incident. Ocasio's January 5 report recounts DelValle's statements that the robbery occurred on the 4 Train as it traveled north from the Fordham Road station, that the robber was a black male, 5'7", 180 pounds, with black hair, brown eyes, and a mustache, and that the man exited the train at the Kingsbridge Road station. The physical description appears to be based on the photospread identification made by DelValle that day.
DelValle made the positive identification of the robber while viewing a mechanized photospread display at the 48th precinct at 4:15 p.m. on the afternoon of January 5. The photospread display was generated by a technician based on DelValle's description of his assailant. Once the display had been generated, Ocasio walked approximately twenty yards away from DelValle and remained there while DelValle reviewed the photos. After viewing eighteen photographs — that is, 3 of the 377 pages of photographs generated — DelValle told Ocasio that he was sure that a mugshot of Lucky was a picture of the robber. Lucky's mugshot lists his date of birth as December 23, 1976, and describes him as a black male, 5'7", weighing 180 pounds, with black hair of normal length, and brown eyes.
The defendants' Rule 56.1 Statement gives the date of the photograph identification inaccurately as February 5.
On January 11, Ocasio visited Lucky's home address. Ocasio's report that day states that Lucky's sister informed him that she didn't know where Lucky was living. The January 11 report also describes a later telephone conversation with Lucky's mother in which she indicated that she didn't know where her son was living.
On January 18, Ocasio prepared a report reflecting a January 17 visit to Lucky's mother in which she asserted that she had not seen or talked to her son. The same day, Ocasio requested a wanted card for Lucky, which instructed the police force that Ocasio should be contacted if Lucky was arrested. Ocasio testified at his deposition that he had hoped that Lucky would contact him to explain his involvement — or lack of involvement — in the January 2 robbery. Ocasio stated that if Lucky had contacted him and provided with a "viable reason" that he was not the robber, then "the investigation might have gone in a different direction." When Lucky failed to come forward after a substantial period of time, however, Ocasio testified that he would have made an arrest.
Ocasio prepared a final report in the case on February 10, documenting that he had again failed to find Lucky at his home address and that Ocasio had confirmed with a postal employee that Lucky received mail at the address Ocasio had visited. Ocasio was transferred to another unit and had no further involvement in the investigation.
Detective Weis was assigned to the case on March 17 and, on March 21, prepared his first and only report on Lucky's arrest. The March 21 report states that Weis effected Lucky's arrest on March 20, while Lucky was visiting his probation officer. At his deposition, Lucky testified that his shoulder was sore as a result of being shoved into the back seat of the police vehicle at the time of his arrest and that there were red marks on his wrists from the handcuffs. Lucky admitted that he did not seek medical attention, that he did not sustain any other injuries, and that he suffered no permanent injuries.
Lucky is described at the time of his arrest as 23 years old, 5'7", 165 pounds, with brown eyes, long black hair, and a black mustache. The March 21 report states that William Simms ("Simms"), described as Lucky's cousin and attorney, was present at the line-up on that day, that Lucky was sitting in the sixth seat in a six-person line-up, and that DelValle identified Lucky as the person who robbed him. Weis also prepared a line-up report indicating that the line-up took place at 11:00 a.m. on March 21 and that the line-up included six individuals. This report lists Simms as Lucky's attorney and states that he was notified of the line-up at 8:30 a.m.
Simms was not actually at the line-up. Lucky asserts that he told Weis that he wanted Simms to be present at the line-up and that he overheard Weis tell Simms on the telephone that the line-up would occur the following day, March 22. Lucky asserts that shortly after the line-up occurred, Weis told Lucky that Simms had just arrived. Weis testified at a suppression hearing in state court on June 19, 2001 that he and Lucky both spoke to Simms by telephone before the line-up and that Lucky never asked that his attorney be present for the line-up.
An on-line booking system arrest worksheet lists Weis as the arresting officer. It describes the robbery as occurring at East Kingsbridge and Jerome Avenue. At his deposition in this action, Weis testified that two discrepancies in DelValle's descriptions of the robber on January 2 and 5 led him to believe that there was either a typo in the police reports or that DelValle should be interviewed again to find out which description was "more proper". Weis doesn't know why he didn't reinterview DelValle regarding the issue when he was assigned to the case.
After the line-up, DelValle signed a complaint that charged Lucky with multiple violations of law, including robbery, grand larceny and menacing. The complaint asserts that at 4:45 p.m. on January 2, 2000, while DelValle and Lucky were on the subway at East Kingsbridge Road and Jerome Avenue, Lucky placed a knife agaist DelValle's neck and stated "are you going to make this easy or are you going to make this hard for me? Give me all your money." DelValle asserted that he gave all of his cash to Lucky.
DelValle testified before the Grand Jury. On March 30, 2000, Lucky was indicted for robbery, grand larceny, criminal possession of stolen property and a weapon, and menacing, all of which were charged as having occurred on January 2 in the Bronx. Lucky remained in jail for approximately ten days following his arrest.
On June 30, Lucky's defense counsel brought motions, inter alia, to suppress physical evidence, statements, and his identification by DelValle. The motion to suppress the identification asserted that the pre-trial identification procedure was unduly suggestive because Lucky was identified "in a non-lineup corporeal procedure arranged by the police while he was surrounded by police officers." On August 22, the state court ruled that Lucky was entitled to a Wade hearing. On June 19, 2001, Ocasio and Weis testified at the Wade hearing. The motion to suppress the identification was denied.
Although plaintiff's counsel asserts that the suppression motions were denied because "in general, and specifically in New York State Court and New York City Criminal Court, judges almost always find the officers to be credible and deny the motions to suppress," the plaintiff has submitted no evidence that DelValle's identification of Lucky occurred the way it was described in the pre-trial motion to suppress.
Lucky was arrested on September 13, 2000 for violating his probation by being indicted for the January 2, 2000 robbery. Lucky was remanded and remained in jail until his trial on the robbery charge in July 2001. At trial, DelValle testified on cross-examination that the robber exited the train at the 183rd Street station, and a friend of Lucky's gave alibi testimony for the afternoon of January 2, 2000. Lucky was acquitted and released.
On March 20, 2003, Lucky filed this action. His eight-count complaint brings Section 1983 claims for false arrest, false imprisonment, excessive use of force, malicious prosecution, abuse of process, substantive and procedural due process violations, failure to intervene, and a Monell claim against the City.
The defendants have moved for summary judgment on the grounds that there was probable cause to arrest Lucky on March 20, 2000, that Lucky cannot prove each of the elements of a malicious procecution, abuse of process or failure to intercede claim, that the claims related to the pre-indictment identification procedures and excessive force do not constitute a violation of his constitutional rights, that the individual defendants are entitled to qualified immunity, and that Lucky has not shown the existence of a City policy that led to his allegedly unlawful arrest and prosecution. Lucky resists summary judgment principally by asserting that DelValle described the robber as having short, curly hair while Lucky had long straight hair three months later at the time of his arrest, that DelValle was unable to make a photographic identification on the day of the robbery and three days later looked at only eighteen photographs out of thousands available to him before selecting Lucky's photograph, and that DelValle testified on cross-examination at trial that the robbery occurred at or before the 183d Street station but had told the police at the time of the robbery that it occured at or before the Kingbridge Road station.
The defendants also move to dismiss the plaintiff's state law claims. The plaintiff brought no state law claims.
Plaintiff refers to two discrepancies in DelValle's description of the robber but does not explain what the other alleged discrepancy is. The exhibits to which his brief refers do not help identify the alleged discrepancies. It is not clear when DelValle is supposed to have identified the robber as having short, curly hair. Rivera's Worksheet does not identify the robber as having curly hair. It does indicate that the robber wore a dark baseball cap and had "normal" length hair. The photograph used in the computer-generated photospread shows Lucky with short, curly hair.
Lucky also argues that Ocasio and Weis testified in their depositions that there was no probable cause for Lucky's arrest. To support this last contention, Lucky argues that Ocasio was willing to arrest Lucky simply because time had passed without him being able to speak to him, and argues that Weis admitted that he should have reinterviewed DelValle to confirm that he could actually identify the robber before arresting Lucky.
Discussion
Summary judgment may not be granted unless the submissions of the parties taken together "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." Rule 56(c), Fed.R.Civ.P. The moving party bears the burden of demonstrating the absence of a material factual question, and in making this determination the court must view all facts in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). When the moving party has asserted facts showing that the non-movant's claims cannot be sustained, the opposing party must "set forth specific facts showing that there is a genuine issue for trial," and cannot rest on the "mere allegations or denials" of the movant's pleadings. Rule 56(e), Fed.R.Civ.P.; accord Burt Rigid Box, Inc. v. Travelers Property Cas. Corp., 302 F.3d 83, 91 (2d Cir. 2002).
1. False Arrest and False Imprisonment
To establish a claim for false arrest pursuant to Section 1983, "a plaintiff must show that the defendant intentionally confined him without his consent and without justification." Escalera v. Lunn, 361 F.3d 737, 743 (2d Cir. 2004) (citation omitted). A claim for false arrest is a type of claim for false imprisonment.Weyant v. Okst, 101 F.3d 845, 853 (2d Cir. 1996). A claim for false arrest or false imprisonment fails when the arresting officer had probable cause to make the arrest.Escalera, 361 F.3d at 743 (false arrest); see also Boyd v. City of New York, 336 F.3d 72, 76 n. 6 (2d Cir. 2003) (false arrest and false imprisonment).
The elements of a claim for false imprisonment under New York law are "(1) the defendant intended to confine the plaintiff, (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not consent to the confinement, and (4) the confinement was not otherwise privileged." Curry v. City of Syracuse, 316 F.3d 324, 335 (2d Cir. 2003) (citation omitted).
"Probable cause to arrest exists when the arresting officer has knowledge or reasonably trustworthy information of facts and circumstances that are sufficient to warrant a person of reasonable caution in the belief that the person to be arrested has committed or is committing a crime." Escalera, 361 F.3d at 743 (citation omitted). The existence of probable cause is measured as of the moment of arrest, and is therefore not affected by a later acquittal. Ricciuti v. New York City Transit Authority, 124 F.3d 123, 128 (2d Cir. 1997).
Lucky asserts that Weis is liable for his false arrest and false imprisonment. DelValle's identification of Lucky in the photospread on January 5 provided probable cause for Lucky's arrest.
Lucky has not raised issues of fact that require a trial on these claims. Lucky has not shown that Weis had reason to know that DelValle would testify at trial that the robbery occurred near the 183d Street station when he had told Rivera that the robbery occurred near the station that came two stops later on the 4 Train as it traveled north. Similarly, even if Lucky had offered evidence that he had longer hair in March than DelValle described to the police in January, a change in hair length between January and March does not raise a question of fact regarding probable cause. On the day of the robbery, DelValle described the robber as wearing a cap and having normal length hair. The photograph of the plaintiff that DelValle identified as a photograph of the robber shows Lucky with normal or short hair length. The fact that Lucky sometimes grew his hair to a longer length or even straightened it does not cast doubt on the identifications. Indeed, DelValle picked Lucky out of the line-up in March despite the fact that Lucky then had longer hair. DelValle's inability to identify Lucky from photographs shown to him on the day of the robbery has no significance whatsoever since there is no evidence that Lucky's photograph was among those shown to DelValle, and DelValle's identification of Lucky after viewing just eighteen photographs out of the thousands available to him is insufficient to raise a question of fact as to the existence of probable cause for Lucky's arrest.
Lucky asserts that Weis admitted in his deposition that he arrested Lucky without probable cause. Weis made no such admission in any of the deposition excerpts Lucky has submitted in opposition to this motion. Weis testified that two unidentified discrepancies between the descriptions of January 2 and 5 led him to believe that there may have been a typo in the police reports and that DelValle should be reinterviewed, and that he does not know why he did not reinterview DelValle before arresting Lucky. The questioning in those passages did not address whether or not probable cause existed for Lucky's arrest based on all of the information available to Weis. It is undisputed that DelValle had picked Lucky's photograph out of a display of three pages of eighteen photographs (and again identified Lucky as the robber in a line-up on the day after Lucky was arrested).
The passages of the Weis deposition that Lucky relies upon for this assertion are described above.
2. Malicious Prosecution
"To succeed on a claim for malicious prosecution, the plaintiff must show that a prosecution was initiated against him, that it was brought with malice but without probable cause to believe that it could succeed and that the prosecution terminated in favor of the accused plaintiff." Boyd, 336 F.3d at 76. In the context of malicious prosecution, probable cause refers to "facts and circumstances as would lead a reasonably prudent person to believe the plaintiff guilty." Id. A grand jury's indictment creates a presumption of probable cause that can only be overcome by a showing that "the indictment was produced by fraud, perjury, the suppression of evidence or other police conduct undertaken in bad faith." Id.
DelValle's identification of Lucky in the line-up on March 21, execution of an arrest complaint, and testimony in the grand jury provided probable cause for Lucky's prosecution. Lucky has not introduced any evidence, moreover, demonstrating that the indictment was obtained by fraud, perjury, the suppression of evidence, or bad faith. Lucky fails to raise a genuine issue of material fact with respect to his claim for malicious prosecution.
3. Abuse of Process
"A malicious abuse of process claim lies against a defendant who (1) employs regularly issued legal process to compel 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." Shain v. Ellison, 273 F.3d 56, 68 (2d Cir. 2000) (citation omitted). Lucky asserts that both Ocasio and Weis are liable for abuse of process. Ocasio's only action of consequence in this case was having DelValle view a photo display on January 5. Weis had probable cause to effect Lucky's arrest. Lucky has introduced no evidence showing that either Ocasio or Weis acted with any intent to do harm. Lucky has not raised an issue of fact requiring a trial on a claim of abuse of process.
4. Substantive Due Process
Lucky asserts Ocasio and Weis are liable because their arrest of Lucky without probable cause was shocking and extreme. Since the evidence demonstrates that there was probable cause for Lucky's arrest, there is no issue of fact requiring trial on this claim.
5. Procedural Due Process
A suggestive identification may give rise to a due process violation if admitted at trial, but the procedure "does not in itself intrude upon a constitutionally protected interest." Wray v. Johnson, 202 F.3d 515, 525 (2d Cir. 2000) (citing Manson v. Brathwaite, 432 U.S. 98, 113 n. 13 (1977)). A defendant does not have a right to counsel at an identification procedure prior to the initiation of adversary judicial proceedings, such as arraignment or filing of an indictment. United States v. Edwards, 342 F.3d 168, 182 (2d Cir. 2003); see Moore v. Illinois, 434 U.S. 220, 226 (1977). Lucky's claims that the pictures viewed by DelValle in the January 5 photo display were generated randomly rather than tailored to a description of the robber and that the March 21 line-up was held without his attorney present do not set forth due process violations.
6. Excessive Force
Police officers' use of force may be found excessive, in violation of the Fourth Amendment, "if it is objectively unreasonable in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation."Maxwell v. City of New York, 380 F.3d 106, 108 (2d Cir. 2004) (citing Graham v. Connor, 490 U.S. 386, 397 (1989)). "[N]ot every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates the Fourth Amendment."Maxwell, 380 F.3d at 108 (citation omitted). This determination requires analysis of circumstances specific to the arrest, including "the severity of the crime at issue, whether the subject poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Amnesty America v. Town of West Hartford, 361 F.3d 113, 123 (2d Cir. 2003) (citation omitted).
Neither party has referred to evidence concerning Lucky's behavior at the time of his arrest on March 20. Lucky submitted an affidavit in opposition to summary judgment but did not describe any force used at his arrest. The parties have relied on the defendants' Rule 56.1 Statement and its references to Lucky's deposition testimony that handcuffs were tight and that he had marks on his wrists for a week and a sore shoulder for two weeks because Weis "pushed" him into a police car by grabbing the back of his arm. While Lucky's injuries appear de minimis, his statements that he was shoved in the police car in a manner that injured his shoulder and that the handcuffs were placed so as to leave red marks on his wrists raise material issues of fact not addressed by the defendants. Summary judgment is therefore inappropriate on Lucky's claim for excessive force.
The plaintiff's papers do include a portion of the deposition testimony of Weis concerning the initial moment of arrest, but any testimony from Weis concerning Lucky's placement in the police vehicle is omitted.
7. Failure to Intervene
"A police officer has an affirmative duty to intercede on the behalf of a citizen whose constitutional rights are being violated in his presence by other officers. Ricciuti, 124 F.3d at 129 (citation omitted). The defendants have demonstrated that there was probable cause for Lucky's arrest and prosecution, defeating Lucky's claim that any of the defendants had a duty to prevent that arrest. Lucky's claim that Rivera and Ocasio had a duty to intervene to prevent the use of excessive force at the time of Lucky's arrest fails since they were not present.
8. Monell
The plaintiff seeks to hold the City liable for allowing witnesses to make an identification without looking at all of the computer-generated photographs, for using only pictures of persons who have been arrested in the photospread, and for not training officers to pursue discrepancies in a witness' identification of a criminal. To prevail in a Section 1983 claim against a municipality, a plaintiff must "show that the challenged acts were performed pursuant to a municipal policy or custom." Patterson v. County of Oneida, 375 F.3d 206, 226 (2d Cir. 2004). To show a policy, custom or practice, a plaintiff may introduce evidence of an express rule or regulation, a practice so widespread as to constitute a custom with the force of law, or a failure to train employees that displays a deliberate indifference to human rights. Id.
Lucky's only surviving claim in this action is his claim for excessive force. Lucky has not argued that any municipal policy, custom or practice was the cause of the alleged act of excessive force. There is no issue of fact requiring a trial of his claims against the City.
Conclusion
The defendants' motion for summary judgment is granted with respect to all claims except the plaintiff's claim against defendant Weis for the excessive use of force.
SO ORDERED.