Opinion
No. 04 Civ. 8265 (SAS).
July 19, 2005
Robert Milton a/k/a Robert Brown, Eastern Correctional Facility, Napanoch, New York, Plaintiff (Pro se):
Laura D. Barbieri, Esq., Schoeman, Updike Kaufman, LLP, New York, New York, For Defendant.
Sarah B. Evans, Assistant Corporation Counsel, New York, New York, For Defendant.
OPINION AND ORDER
I. INTRODUCTION
Robert Milton, an incarcerated inmate proceeding pro se, brings this action pursuant to, inter alia, section 1983 of Title 42 of the United States Code ("section 1983") alleging that he was deprived of his civil rights. Specifically, Milton seeks monetary damages for false arrest, false imprisonment, malicious prosecution, abuse of process, intentional infliction of emotional distress, and prima facie tort. Milton alleges that on October 5, 2001, he was falsely arrested for trespassing on Columbia University's campus and falsely accused of committing burglaries on that campus on September 11, 2001 and September 26, 2001. Furthermore, Milton alleges that he was maliciously prosecuted for these burglaries. In addition to New York City Police Officers Raphael Nieves and Phillip Scandale ("City defendants"), Milton also names Columbia University and Columbia University security personnel James Verdicchio and David Alvarez (collectively "Columbia University defendants") as defendants in this action. The City defendants, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, and the Columbia University defendants, pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, move to dismiss all of Milton's claims. For the reasons set forth below, defendants' motions to dismiss are granted.
Many of the documents cited herein consist of public records of which judicial notice may be taken for purposes of the instant motions. See infra Part III.
A. The Arrest
On October 5, 2001, Milton was stopped and questioned on Columbia University's campus by Columbia University security officer David Alvarez. When asked for identification, Milton could not produce a proper Columbia University identification card. Alvarez testified before a Grand Jury that his attention was directed to Milton because he observed him pull on the handle of a locked building, look into the doorway of another building, and enter a third dormitory building for a brief period. When Alvarez asked why Milton was on Columbia University's property, he responded that he was visiting a Columbia student. However, Columbia had no record of the student Milton claimed to be visiting. Alvarez handcuffed Milton and escorted him to the Security Office at Columbia University where he was detained for trespassing. After Alvarez called the New York City Police Department ("NYPD"), Officer Phillip Scandale arrived at the Security Office, spoke with Alvarez, and subsequently arrested Milton. Officer Scandale transported plaintiff to the 26th Precinct where he was processed on trespassing charges.
See Complaint, § IV ("Compl.").
See New York City Police Department Complaint Report, Details section, ("NYPD Compl."), 2001-026-004198, Ex. B of Plaintiff's Opposition to Defendants' Motions to Dismiss. See also People's Voluntary Disclosure Form, Docket No. 2001ny078593, Ex. D of Plaintiff's Opposition to Defendants' Motions to Dismiss.
See Grand Jury Testimony of Alvarez, Ex. E of Plaintiff's Opposition to Defendants' Motions to Dismiss.
See NYPD Compl.
See id.
See Compl. at § IV
See id.
See id.
B. The Criminal Charges
At the 26th Precinct, Milton claims he was questioned by Officer Raphael Nieves, a detective with the NYPD, about burglaries that occurred on Columbia University's campus on September 11, 2001 and September 26, 2001. Alvarez testified before a Grand Jury that he viewed the security tapes from September 11, 2001 and September 26, 2001, and recognized Milton as the person leaving the campus with a laptop on both days. Nieves also testified that he viewed the tapes after Milton arrived at the 26th Precinct as part of his investigation before arresting Milton for burglary. In February 2002, Milton was indicted for Burglary in the Second Degree for both burglaries (September 11 and September 26) under Indictment Number 778-2002. In addition, Milton was indicted for the crime of Burglary in the Second Degree, occurring on September 19, 2001, and Attempted Burglary in the Third Degree, occurring on October 5, 2001, under Indictment Number 6206-2001. Both indictments stemmed from Milton's arrest on October 5, 2001. The Supreme Court of the State of New York, Criminal Term, consolidated the two indictments and Milton was tried by a single jury for all charges resulting from his October 5, 2001 arrest.
See id.
See Grand Jury Testimony of Alvarez at 14, Ex. E of Plaintiff's Opposition to Defendants' Motions to Dismiss.
See Grand Jury Testimony of Nieves at 21-22, Ex. E of Plaintiff's Opposition to Defendants' Motions to Dismiss.
See Compl. at § IV; Grand Jury Ind. No. 778/02, Ex. B of City Defendant's Motion to Dismiss.
See Compl. at § IV; Grand Jury Ind. No. 6206/01, Ex. C of City Defendant's Motion to Dismiss.
See Memorandum Decision, ¶ 5, dated May 2, 2002, Ex. D of City Defendant's Motion to Dismiss.
C. The Jury's Verdict and Sentencing
On September 4, 2002, the jury returned a verdict. Milton was found not guilty for the September 11, 2001 burglary and trespass. The jury found Milton guilty of the September 19 Burglary in the Second Degree and the October 5 Attempted Burglary in the Third Degree. The jury hung on the burglary charge arising from the September 26, 2001 incident. All counsel agreed to accept a partial verdict and the charge of Burglary in the Second Degree based on the September 26, 2001 incident was dismissed.
See Transcript of Criminal Proceedings for Robert Milton a/k/a Robert Brown on September 4, 2002 ("Crim. Proc. Tr."), Supreme Court of the State of New York: Criminal Term, Ex. E of Columbia Defendants' Motion to Dismiss.
See id. at 372.
See id.
See id. at 370-71.
See id. at 371.
Milton was sentenced to fifteen years for Burglary in the Second Degree and to two-to-four years for Attempted Burglary in the Second Degree. The sentences were to run consecutively. Milton appealed to the New York State Supreme Court, Appellate Division, First Department. The appellate court did not reverse his convictions but, in the interests of justice, modified the trial court's sentence for Burglary in the Second Degree from fifteen years to twelve years and directed that the consecutive two-to-four year sentence for Attempted Burglary in the Third Degree run concurrently. Milton is currently serving his sentence at the Eastern Correctional Facility.
See Certificate of Disposition dated 3/21/2005, Indictment Number 3280, Ex. F of City Defendants' Motion to Dismiss.
See id.
See People v. Brown, 8 A.D.3d 144 (1st Dep't 2004).
See id.
See Compl. at § II.
III. LEGAL STANDARD
The standard governing a motion for judgment on the pleadings, pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, is the same as that applied to a Rule 12(b)(6) motion. Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a complaint should be dismissed if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." The focus is on the legal sufficiency of the complaint, not on whether a plaintiff is likely to ultimately prevail. Thus, the function of the court in ruling on a motion to dismiss "is merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof." "This standard is applied with even greater force where the plaintiff alleges civil rights violations or where the complaint is submitted pro se."
See Irish Lesbian and Gay Org. v. Giuliani, 143 F.3d 638, 644 (2d Cir. 1998).
Curto v. Edmundson, 392 F.3d 502, 503 (2d Cir. 2004) (internal quotation marks and citation omitted).
See Velez v. Levy, 401 F.3d 75, 84 (2d Cir. 2005).
Eternity Global Master Fund Ltd. v. Morgan Guar. Trust Co. of N.Y., 375 F.3d 168, 176 (2d Cir. 2004) (internal quotation marks and citation omitted).
See Thompson v. Carter, 284 F.3d 411, 416 (2d Cir. 2002).
When deciding a motion to dismiss pursuant to Rule 12(b)(6), a court accepts as true all factual allegations made in the complaint and draws all reasonable inferences in favor of the plaintiff. A district court must limit itself to a consideration of factual material presented in the plaintiff's complaint, any written instrument attached to the complaint as an exhibit, documents incorporated in the complaint by reference, and any other documents integral to the complaint. In addition, judicial notice may be taken of matters found in the public record if such facts are and records are "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned"
See Chambers v. Time Warner Inc., 282 F.3d 147, 152 (2d Cir. 2002).
See id. at 152-53; Fed.R.Civ.P. 10(c).
Fed.R.Evid. 201 (b)(2). See also Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991).
The allegations in a pro se plaintiff's complaint should be liberally construed. However, "`[a]lthough less stringent standards apply where, as here, a litigant is pro se, dismissal is nevertheless appropriate where it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'"
See Haines v. Kerner, 404 U.S. 519, 520-21 (1972). See also McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (stating pro se plaintiff's papers are interpreted to raise the strongest arguments that they suggest).
Washington v. Kelly, No. 03 Civ. 4638, 2004 WL 830084, at *2 (S.D.N.Y. Aug. 13, 2004) (quoting Rodriguez v. Weprin, 116 F.3d 62, 65 (2d Cir. 1997)).
IV. DISCUSSION
A. The State Action Requirement for a Section 1983 Claim
By enacting section 1983, Congress provided a remedy for a claimed violation of the Fourteenth Amendment's guarantee that no state shall deprive any person of life, liberty or property without due process of law. Two allegations are required to state a claim under section 1983. First, a plaintiff must allege a deprivation of a federal right. Second, a plaintiff must demonstrate that the person who caused the deprivation of that right was either a state actor or acted under color of state law. The Supreme Court has noted that in cases arising under section 1983, under color of law has been treated as equivalent to state action required by the Fourteenth Amendment.
See Dahlberg v. Becker, 748 F.2d 85, 88 (2d Cir. 1984).
See Gomez v. Toledo, 446 U.S. 635, 640 (1980). See also Dwyer v. Regan, 777 F.2d 825, 828 (2d Cir. 1985) (requiring that plaintiff allege conduct causing the deprivation of "a right, privilege, or immunity secured by the Constitution or laws of the United States").
See Gomez, 446 U.S. at 640.
See Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 928 (1982).
Columbia University and its employees comprise a private, rather than a state-created, entity. For private action to be considered state action, "the conduct allegedly causing the deprivation of a federal right [must] be fairly attributable to the State." "A merely conclusory allegation that a private entity acted in concert with a state actor does not suffice to state a [section] 1983 claim against the private entity." Instead, there must be a sufficiently high level of entanglement between the state and the private actor such that the latter can be considered the state itself.
See Encyclopedia Britannica Online (last visited July 6, 2005) (stating Columbia University is a private university), available at http://www.britannica.com/ebc/article?tocId=9361194query=Columbia%20Univ ersityct=.
Lugar, 457 U.S. at 937.
Ciambriello v. County of Nassau, 292 F.3d 307, 324 (2d Cir. 2002).
See Jackson v. Metropolitan Edison Co., 419 U.S. 345, 350 (1974) ("[T]he inquiry must be whether there is a sufficiently close nexus between the State and the challenged action of the . . . [private] entity so that the action of the latter may be fairly treated as that of the State itself."); Leeds v. Meltz, 85 F.3d 51, 54 (2d Cir. 1996) (requiring that the state exert coercive power over, or provide significant encouragement to, the private entity before the latter's conduct will be deemed state action).
Milton's Complaint does not allege sufficient state action by the Columbia University defendants to satisfy the entanglement standard. The complaint is silent as to any facts indicating that the state is pervasively entwined with Columbia University and its employees. Milton has made no allegation that the state has played any role whatsoever in Columbia University's day-to-day operations. Without facts specifically demonstrating a high level of entanglement between the state and Columbia University, the Columbia University defendants cannot be considered state actors. Therefore, because Columbia University and its employees are not state actors, and Milton has not alleged sufficient facts to support the conclusion that they acted under color of state law, his section 1983 claims against the Columbia University defendants must be dismissed.
See Brentwood Acad. v. Tennessee Secondary Sch., 531 U.S. 291, 296 (2001) (identifying a number of criteria demonstrating that private conduct is fairly attributable to the state, such as an activity resulting from the state's coercive power, the state providing significant encouragement to the private entity, the private actor acting as a wilful participant in a joint activity with the state the delegation to the private entity of a traditionally public function, the private entity's entwinement with the state's policies, and the state's entanglement in the private actor's management or control).
Even assuming that the Columbia University defendants were state actors, plaintiff's claims against them would still be dismissed for the reasons discussed below.
B. False Arrest and Malicious Prosecution
A section 1983 claim for false arrest arises under the Fourth Amendment right to be free from unreasonable seizures and is identical to a claim for false arrest under New York law. False arrest and false imprisonment are synonymous under New York law. To establish a claim for false arrest or false imprisonment, a plaintiff must show that "(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."
See Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996). See also Hygh v. Jacobs, 961 F.2d 359, 366 (2d Cir. 1992).
See Singer v. Fulton County Sheriff, 63 F.3d 110, 118 (2d Cir. 1995) (noting false arrest and false imprisonment have identical elements). See also Posr v. Doherty, 944 F.2d 91, 96 (2d Cir. 1991).
Bernard v. United States, 25 F.3d 98, 103 (2d Cir. 1994).
A claim for malicious prosecution is distinct from an action for false arrest or false imprisonment because each is composed of different elements and protects a different interest. In order to establish a claim for malicious prosecution under section 1983, a plaintiff must also allege all the elements of malicious prosecution under state law. Under New York law, to prevail on a claim of malicious prosecution, a plaintiff must show "(1) that the defendant initiated a prosecution against the plaintiff, (2) that the defendant lacked probable cause to believe the proceeding could succeed, (3) that the defendant acted with malice, and (4) that the prosecution was terminated in the plaintiff's favor."
See Weyant, 101 F.3d at 853.
See Fulton v. Robinson, 289 F.3d 188, 195 (2d Cir. 2002). See also Janetka v. Dabe, 892 F.2d 187, 189 (2d Cir. 1989) ("A claim of malicious prosecution brought pursuant to section 1983 . . . is governed by state law in the absence of federal common law.").
Posr v. Court Officer Shield No. 207, 180 F.3d 409, 417 (2d Cir. 1999) (citing Ricciuti v. N.Y.C Transit Auth., 124 F.3d 123, 130 (2d Cir. 1997)).
The existence of probable cause to arrest is a complete defense to both a false arrest and a malicious prosecution claim. "In general, probable cause to arrest exists when the officers have 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."
See Gaskins v. City of New York, No. 03 Civ. 0605, 2004 WL 1777585, at *2 (S.D.N.Y. Aug. 6, 2004) (citing Hyde v. Arresting Officer Caputo, No. 98 Civ. 6722, 2001 WL 521699, at *2-4 (E.D.N.Y May 11, 2001)).
Id. (internal quotation marks and citation omitted). Accord Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001) ("If an officer has probable cause to believe than an individual has committed even a very minor criminal offense . . . he may, without violating the Fourth Amendment, arrest the offender.").
The facts which this Court is permitted to consider establish, as a matter of law, that defendants had probable cause to arrest Milton on October 5, 2001. Alvarez detained Milton after apprehending him on Columbia University's campus without a proper student identification card. Milton was questioned after Alvarez saw him pulling the handle of a locked building, looking into the doorway of another building, and entering a student dormitory for a brief period. In addition, there was no record of the student whom Milton claimed he was visiting. "[P]robable cause for an arrest must be determined on the basis of the information reasonably available to the arresting officer at the time of the arrest. . . ." Based on the facts provided to Officer Scandale by security officer Alvarez upon his arrival, it was reasonable for Officer Scandale to conclude that Milton had committed a crime on Columbia University's property.
Lowth v. Town of Cheektowaga, 82 F.3d 563, 570 (2d Cir. 1996).
Probable cause is not proof beyond a reasonable doubt. These facts could lead a reasonable officer to conclude that Milton committed, or planned to commit, a burglary on Columbia University's campus. Therefore, based on the information available at the time of arrest, there was probable cause to arrest Milton for both trespassing and burglary.
The fact that Milton was indicted by a Grand Jury for all charges stemming from the October 5, 2001 arrest provides further evidence of the existence of probable cause. In order to rebut the presumption of probable cause created by an indictment, a plaintiff must produce evidence showing that the indictment was procured "by fraud, perjury, the suppression of evidence or other police conduct undertaken in bad faith." Because Milton has made no such allegation, the presumption of probable cause to arrest stemming from the indictment is not refuted. In conclusion, because defendants had probable cause to arrest Milton, his false arrest and malicious prosecution claims are dismissed as to all defendants.
See Bernard, 25 F.3d at 104 (noting that an indictment returned by a Grand Jury creates a presumption that the arrest was procured with probable cause).
Id.
Although the existence of probable cause to arrest is fatal to a plaintiff's malicious prosecution claim, two other essential elements are absent from Milton's claim. First, his claim does not allege any specific facts showing the existence of malice on the part of any of the defendants. In addition, the absence of a final determination in Milton's favor precludes recovery for malicious prosecution. In order to establish that a termination was favorable, "the plaintiff must show that the final disposition is indicative of innocence." The jury found Milton guilty on the charges of Burglary in the Second Degree (September 19, 2001) and Attempted Burglary in the Third Degree (October 5, 2001). Although the jury found Milton not guilty of Burglary in the Second Degree for the September 11, 2001 incident, the jury hung on the charge of Burglary in the Second Degree for the September 26, 2001 incident. "A prosecution based on probable cause which results in a hung jury, as was the case here, does not deprive the defendant of civil rights within the meaning of section 1983." A hung jury leaves the defendant's guilt open and a claim for malicious prosecution based on that prosecution must fail. Thus, because Milton has not and cannot plead a favorable termination of the charges stemming from the events of September 26, 2001, his malicious prosecution claim must be dismissed.
Russell v. Smith, 68 F.3d 33, 36 (2d Cir. 1995). Accord Singleton v. City of New York, 632 F.2d 185, 193 (2d Cir. 1980) (requiring that a favorable termination indicate that the accused is not guilty).
In Janketa, the Second Circuit highlighted the importance of separately analyzing the charges a plaintiff claims were maliciously prosecuted. A termination that was not favorable on one charge should not preclude a claim of malicious prosecution for another charge in the same proceeding. This is especially true where the charges have distinct facts and arise from separate occurrences. However, here the two burglary incidents are too factually similar to apply the holding of Janketa.
Singleton, 632 F.2d at 195.
See id.
C. Intentional Infliction of Emotional Distress, Abuse of Process and Prima Facie Tort
Under New York law, to state a valid claim for intentional infliction of emotional distress, a plaintiff must show: "(1) extreme and outrageous conduct, (2) intent to cause severe emotional distress (3) a causal connection between the conduct and the injury, and (4) severe emotional distress." To satisfy the first element, the conduct must have been "so outrageous in character, and so extreme in degree, as to go beyond all bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Milton's Complaint does not allege any conduct that meets this high standard of outrageousness. As a result, Milton's claim for intentional infliction of emotional distress is dismissed.
Bender v. City of New York, 78 F.3d 787, 790 (2d Cir. 1996).
Murphy v. American Home Prods. Corp., 461 N.Y.S.2d 232, 236 (1983).
"Abuse of process has three essential elements: (1) regularly issued process, either civil or criminal, (2) an intent to do harm without excuse or justification, and (3) use of process in a perverted manner to obtain a collateral objective." A valid claim for abuse of process requires an allegation of an improper use of process that is inconsistent with its normal use. Milton's Complaint alleges that he was falsely identified as a suspect in the September 11, 2001 and the September 26, 2001 burglaries. However, the Complaint fails to allege that any defendant intended to cause harm or intended to use the process in a perverted manner or for a collateral objective. Therefore, Milton's abuse of process claim must be dismissed.
Curiano v. Suozzi, 480 N.Y.S.2d 466, 468 (1984).
See id.
"Prima facie tort is defined as the infliction of intentional harm, resulting in damages, without excuse or justification, by an act or series of acts which would otherwise be lawful." An essential element of the cause of action for prima facie tort is an allegation of special damages. Milton's Complaint fails to plead any special damages. In addition, similar to his abuse of process claim, Milton's prima facie tort claim fails to allege the infliction of intentional harm by any of the defendants. Thus, Milton's prima facie tort claim is dismissed.
Howard v. Block, 454 N.Y.S.2d 718, 719 (1st Dep't 1982). Accord Curiano, 480 N.Y.S.2d at 469.
See Howard, 454 N.Y.S.2d at 719.
V. CONCLUSION
For the reasons stated above, City defendants' motion to dismiss plaintiff's claims pursuant to Rule 12(b)(6) and Columbia University defendants' motion to dismiss pursuant to Rule 12(c) are granted. The Clerk of the Court is directed to close these motions [Document # 15] and this case.
SO ORDERED.