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providing that the New York City Police Department is not a suable entity
Summary of this case from Carmody v. the City of New YorkOpinion
00 Civ. 4707 (RCC) (JCF)
March 19, 2002
REPORT AND RECOMMENDATION
Edgar Montes, also known as Edguardo Rodriguez Montes, brings this action pro se. pursuant to 42 U.S.C. § 1983, alleging false arrest and malicious prosecution. The defendants have moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons set forth below, I recommend that the motion be granted and the action be dismissed.
Background
On September 24, 1997, New York City Police Officers Rhonny King and Xavier Crandell arrested the plaintiff and Mychael Hamme at 1695 Madison Avenue in Manhattan. (Defendants' Local Rule 56.1 Statement of Material Facts ("Def. Statement"), ¶ 5; Declaration of Rhonny King dated Aug. 22, 2001 ("King Decl."), ¶¶ 6, 27 Exh. A; Declaration of Xavier Crandell dated Aug. 15, 2001 ("Crandell Decl."), ¶¶ 6, 22; Plaintiff's Complaint ("Compl."), ¶ IV; Declaration in Opposition to Defendants [sic] Motion for Summary Judgment ("Pl. Decl."), Exh. B). Mr. Montes was charged with criminal possession and sale of a controlled substance, and Mr. Hamme with possession only. (Def. Statement ¶ 5; King Decl. ¶ 27 Exh. A; Crandell Decl., ¶ 22; Compl., ¶ IV; Pl. Decl., Exh. B). Mr. Montes was later indicted for criminal sale of a controlled substance in the third degree. (Def. Statement, ¶ 8; Declaration of Jessica Mila Schutzman dated Aug. 22, 2001 ("Schutzman Decl."), Exh. D).
In the complaint, Officer King's first name is misspelled as "Rhony."
The parties present different versions of the circumstances surrounding the arrest. According to the defendants, Officers King and Crandell were on duty patrolling New York City Housing Authority projects in plainclothes on the day of the incident. (King Decl., ¶¶ 4-5; Crandell Decl., ¶¶ 4-5). They followed Mr. Montes, Mr. Hamme, and another individual into a Housing Authority building located at 1695 Madison Avenue. Inside, Officer King observed Mr. Montes pull out three small plastic baggies from a larger plastic bag and give them to Mr. Hamme, who had money in one of his hands. (King Decl., ¶¶ 18-21). When Officer King identified himself, the plaintiff and Mr. Hamme dropped the bags, at which point he arrested them. (King Decl., ¶¶ 22-23, 26). The officers recovered the larger plastic bag which contained seven baggies, the three baggies from Mr. Hamme, and ten more baggies in Mr. Hamme's pants pocket. (King Decl., ¶ 25; Pl. Decl., Exhs. B, D, G). Contents of all of the baggies tested positive for cocaine. (Def. Statement, ¶ 7; King Decl., ¶¶ 28-29 Exh. B; Pl. Decl., Exh. E).
Mr. Montes, however, denies that he was selling drugs when Officers King and Crandell approached him. According to Mr. Montes, they asked what he was doing in the building and then demanded that he help them find who was selling drugs. Mr. Montes explained that he lived in the building and refused to help them identify any sellers, at which point they arrested him and two others, Mr. Hamme and Craig Ford. All three were brought back to the 23rd Precinct, although Mr. Ford was quickly released because he had only been charged with loitering. (Compl., ¶ IV)
Two years later, on April 8, 1999, Mr. Montes was again indicted, this time for the sale of ninety bags of crack cocaine. (Def. Statement, ¶¶ 9-10; Schutzman Decl., Exh. F at 5). In connection with these charges, he pled guilty to criminal sale of a controlled substance in the fourth degree. (Pl. Decl., Exh. A). However, at sentencing, he attempted to retract his plea. (Schutzman Decl., Exh. F at 2-6). In rejecting Mr. Montes' arguments, Justice Edward McLaughlin stated, "The sentence is four and a half to nine years. It's consecutive by law to parole. And so that nobody else has to go through this nonsense again, I am considering the other case by this sentence." (Schutzman Decl., Exh. F. at 6). Accordingly, Justice McLaughlin dismissed the 1997 indictment as covered by the conviction on the 1999 indictment. (Schutzman Decl., Exh. D).
Justice McLaughlin explained the practice of covering as follows:
In most cases where [a] defendant is charged with one or more indictments, the defendant pleads guilty to both indictments in exchange for concurrent sentences. But when a person refuses to plead guilty to the second indictment, the latter must then either be tried or dismissed as `covered' if the court system wishes to avoid an unnecessary trial in order to dispose of the case.
. . .
By covering [the 1997 indictment], the People and the court system did not have to take the time to provide an additional trial to an accused who had already been convicted and upon whom an adequate sentence had been promised. The opportunity for a trial could then be afforded to someone who needed a trial to resolve their case due either to their innocence or their unwillingness to accept the proffered plea. Additional considerations of witness convenience and not exposing an accused unnecessarily to an additional potential conviction also are factors which routinely are considered in deciding to cover a case.
(Declaration of the Hon. Edward J. McLaughlin dated Dec. 21, 2001 ("McLaughlin Decl."), ¶¶ 7-8).
Mr. Montes then filed the instant action on June 26, 2000, claiming false arrest and malicious prosecution arising from the events of September 1997. He maintains that he was discriminated against based on his ethnicity because the two men arrested with him on September 24, 1997 are black as are the officers. He further argues that his false arrest was motivated by an argument he had had with Officer Crandell three days before the arrest about the officer's attempts to ask Mr. Montes' sister-in-law on a date. (Compl., ¶ IV)
Although the petitioner does not specifically allege malicious prosecution, for the purposes of summary judgment, the respondent treats the complaint as raising such a claim.
The discriminatory conduct presumably is that the plaintiff was charged with a more severe crime than the other two men, although the plaintiff does not explicitly state this.
Discussion
A. Standard for Summary Judgment
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate where "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 judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Andy Warhol Foundation for Visual Arts, Inc. v. Federal Insurance Co., 189 F.3d 208, 214 (2d Cir. 1999); Tomka v. Seiler Corp., 66 F.3d 1295, 1304 (2d Cir. 1995); Richardson v. Selsky, 5 F.3d 616, 621 (2d Cir. 1993). The moving party bears the initial burden of demonstrating "the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the moving party meets that burden, the opposing party must come forward with "specific facts showing that there is a genuine issue for trial," Fed.R.Civ.P. 56 (e), by "a showing sufficient to establish the existence of [every] element essential to the party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322.
In assessing the record to determine whether there is a genuine issue of material fact, the court must resolve all ambiguities and draw all factual inferences in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Vann v. City of New York, 72 F.3d 1040, 1048-49 (2d Cir. 1995). But the court must inquire whether "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party," Anderson, 477 U.S. at 249 (citation omitted), and grant summary judgment where the nonmovant's evidence is conclusory, speculative, or not significantly probative. Id. at 249-50. "The litigant opposing summary judgment may not rest upon mere conclusory allegations or denials, but must bring forward some affirmative indication that his version of relevant events is not fanciful." Podell v. Citicorp Diners Club, Inc., 112 F.3d 98, 101 (2d Cir. 1997) (internal quotations and citations omitted); see also Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (a nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts"); Goenaga v. March of Dimes Birth Defects Foundation, 51 F.3d 14, 18 (2d Cir. 1995) (nonmovant "may not rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible"). In sum, if the court determines that "the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no `genuine issue for trial.'" Matsushita Electric Industrial Co., 475 U.S. at 587 (quoting First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 288 (1968))
Where a litigant is pro se, his pleadings should be read liberally and interpreted "`to raise the strongest arguments that they suggest.'"McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). Nevertheless, proceeding pro se does not otherwise relieve a litigant from the usual requirements of summary judgment, and a pro se party's "bald assertion," unsupported by evidence, is not sufficient to overcome a motion for summary judgment.Lee v. Coughlin, 902 F. Supp. 424, 429 (S.D.N.Y. 1995) (quoting Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991)); see also Kadosh v. TRW, Inc., No. 91 Civ. 5080, 1994 WL 681763, at *5 (S.D.N.Y. Dec. 5, 1994) ("The work product of pro se litigants should be generously and liberally construed, but [the litigant's] failure to allege either specific facts or particular laws that have been violated, renders his attempt to oppose defendants' motion ineffectual.")
B. False Arrest
1. Presumption of Probable Cause
To make out a claim for false arrest, a plaintiff must prove "(1) that the defendants 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."Bernard v. United States, 25 F.3d 98, 102 (2d Cir. 1994); see also Savino v. City of New York, 168 F. Supp.2d 172, 177 (S.D.N.Y. 2001) (elements of state law claim of false arrest apply to federal claim). "The existence of probable cause to arrest constitutes justification and is a complete defense to a claim of false arrest." Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996) (internal quotations and citations omitted); see also Covington v. City of New York, 171 F.3d 117, 122 (2d Cir. 1999). A grand jury indictment creates a presumption of probable cause, which may only be rebutted by evidence of "fraud, perjury, the suppression of evidence or other police conduct undertaken in bad faith." Savino, 168 F. Supp.2d at 178 (citations omitted); see also Weyant, 101 F.3d at 852.
In this case, Mr. Montes was indicted for the charges stemming from the September 24, 1997 arrest. Accordingly, there is a presumption that the officers had probable cause to arrest him. The plaintiff attempts to rebut this presumption by arguing that Officer King committed fraud and perjury. Specifically, Mr. Montes contends that Officer King changed his testimony about the number of baggies involved in the alleged drug sale in order to incriminate him. (Pl. Decl. at ii-iii)
First, the plaintiff contrasts a sworn statement of Officer King and a Narcotics Data Sheet which both state that the officer observed Mr. Montes sell ten baggies to Mr. Hamme, with Officer King's testimony before the grand jury and during an evidentiary hearing, in which he stated that he saw Mr. Montes hand over only three baggies of crack. (Pl. Decl. at ii-iii Exhs. B, C, D, F). This discrepancy, the plaintiff argues, is important because the officers only recovered $38.00 from him, which reflects the cost of three baggies of crack, not ten. (Pl. Decl. at iii). The plaintiff maintains that Officer King modified his testimony to conform with the recovery of only $38.00. (Pl. Decl. at iii).
However, Mr. Montes misconstrues Officer King's testimony. Although the plaintiff provided the Court with only portions of Officer King's testimony before the grand jury and from the hearing, it is clear that the officer testified to recovering a larger bag containing seven baggies in addition to the three baggies. (Pl. Decl., Exhs. B, F). Furthermore, there is no indication from the selections of Officer King's testimony that he ever said that only three baggies were sold. Indeed, despite having seen the exchange of just three baggies and having recovered only $38.00, Officer King has consistently maintained that Mr. Montes sold ten baggies to Mr. Hamme.
In the felony complaint for Mr. Montes, Officer King stated under oath "that he observed . . . Mychael Hamme hand money to [Mr. Montes], and that in exchange, [Mr. Montes] began to hand over 10 bags containing cocaine to Mychael Hamme." (King Decl., Exh. A (emphasis added)). Additionally, in the misdemeanor complaint for Mr. Hamme, Officer King averred "that he observed [Mr. Hamme] hand [Mr. Montes] . . . a sum of U.S. currency in exchange for 10 plastic baggies containing crack cocaine." (Pl. Decl., Exh. B). That ten baggies were involved in the drug transaction is also supported by non-testimonial evidence, including a police lab report on the ten baggies recovered from the ground. (King Decl., Exh. B).
Mr. Montes' allegations of perjury and fraud stem from his confusion about where the narcotics were found and the quantity recovered. He points to various documents and testimony that alternately indicate that three, ten, and twenty baggies were involved in the events of September 24. (Pl. Decl. at ii-iv). However, all of these documents are consistent. Twenty baggies of crack were vouchered on September 24, 1997. (Pl. Decl., Exh. G) Ten of those baggies were involved in the sale and were found on the ground. Mr. Montes confuses these with the other ten recovered from Mr. Hamme's right front pants pocket. (Pl. Decl. at iii Exhs. B, D, E, G).
There are two possible minor inconsistencies in Officer King's statements. However, neither of them are mentioned by the plaintiff, nor do they indicate perjury or fraud.
The first discrepancy arises from Officer King's assertion before the grand jury that all ten baggies were recovered from the ground. (Pl. Decl., Exh. F). This contrasts with his testimony during the evidentiary hearing that Officer Crandell recovered three baggies from Mr. Hamme's hand. (Pl. Decl., Exh. C). Officer King, however, indicated at the hearing that he did not observe Officer Crandell recovering the baggies. (Pl. Decl., Exh. C).
The second apparent inconsistency is in Officer King's sworn statement in the complaint against Mr. Hamme. Officer King claims that he observed Mr. Montes sell ten baggies to Mr. Hamme and that ten baggies were later recovered from Mr. Hamme's pants pocket, implying that the baggies sold were the same ones found in the pants pocket. (Pl. Decl., Exh. B). However, the documentary evidence makes clear that the ten baggies recovered from Mr. Hamme' s pocket are not the same baggies that the officer observed being sold. (Pl. Decl., Exhs. D, E, G; King Decl., Exh. B).
The plaintiff has, therefore, not demonstrated that Officer King perjured himself or committed fraud; rather the documents he has identified are consistent with Officer King's contention that the drug sale involved ten baggies. (Pl. Decl., Exhs. B, D) Accordingly, the presumption of probable cause remains intact.
2. Probable Cause Without the Presumption
Even if the plaintiff had overcome the presumption and Officer King's testimony were found to be incredible, there was other credible evidence to support a finding of probable cause. "[P]robable cause to arrest exists when an officer has knowledge or reasonably trustworthy information of facts and circumstances that are sufficient in themselves to warrant a person of reasonable caution in the belief that the person to be arrested has committed or is committing a crime." Marshall v. Sullivan, 105 F.3d 47, 54 (2d Cir. 1996); see also Savino, 168 F. Supp.2d at 178.
In this case, Officer Crandell independently saw the drug transaction between Mr. Montes and Mr. Hamme. He observed Mr. Montes handing Mr. Hamme a baggie and Mr. Hamme receiving the baggie in one hand while holding money in the other. (Crandell Decl., ¶¶ 16-20). This is sufficient to lead a reasonable person to belief that an illegal drug sale was taking place. See. e.g., United States v. Rosario, 638 F.2d 460, 462 (2d Cir. 1980) (finding probable cause where DEA agent observed exchange of plastic bag containing white powder); Howard v. Schoberle, 907 F. Supp. 671, 678 (S.D.N.Y. 1995) ("There is no question that probable cause exists to arrest a person found to be in possession of what appears to be narcotics."); People v. McRay, 51 N.Y.2d 594, 604, 435 N.Y.S.2d 679, 684 (1980) (inference of probable cause sufficient for arrest exists where currency is exchanged for glassine envelopes). Accordingly, since probable cause existed this claim should be dismissed.
C. Malicious Prosecution
To establish liability for malicious prosecution under New York law, the plaintiff must demonstrate "(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." Posr v. Court Officer Shield # 207, 180 F.3d 409, 417 (2d Cir. 1999) (citation omitted). To qualify for relief under section 1983, the plaintiff must also show that there was "a sufficient post-arraignment liberty restraint to implicate the plaintiff's Fourth Amendment rights." Rohman v. New York City Transit Authority (NYCTA), 215 F.3d 208, 215 (2d Cir. 2000) (citations omitted)
To make a showing of lack of probable cause, Mr. Montes must demonstrate that the officers had no "knowledge of facts, actual or apparent, strong enough to justify a reasonable man in the belief that he has lawful grounds for prosecuting the defendant in the manner complained of." Rounseville v. Zahl, 13 F.3d 625, 629 (2d Cir. 1994) (quotation and citation omitted). As discussed above, the officers had a sufficient basis to arrest Mr. Montes, and there is no claim that they later learned exculpatory information that would have undermined probable cause. Thus, the malicious prosecution claim, too, should be dismissed.
The defendants also argue that this claim fails because the proceedings did not terminate favorably to the plaintiff, since the indictment was simply dismissed as "covered" by a subsequent conviction. But the parties have identified no case in any court in New York, and I have found none, that addresses whether dismissal of charges as covered constitutes a favorable termination for purposes of a subsequent malicious prosecution claim. On one hand, such an outcome does not in itself indicate that Mr. Montes was innocent, see Murphy v. Lynn, 118 F.3d 938, 948 (2d Cir. 1997), or "imply a lack of reasonable grounds for the prosecution." Loeb v. Teitelbaum, 77 A.D.2d 92, 101, 432 N.Y.S.2d 487, 494 (2d Dep't 1980),modified on other grounds, 80 A.D.2d 838, 439 N.Y.S.2d 300 (2d Dep't 1981). On the other hand, the plaintiff may not be further prosecuted on these charges, and the dismissal was not the result of any compromise on his part. See Posr, 180 F.3d at 418; Murphy, 118 F.3d at 949. In light of the unsettled state of the law on this issue, it is appropriate not to reach it, but to rely instead exclusively on Mr. Montes' failure to establish a lack of probable cause.
D. New York City Police Department
The claims against the New York City Police Department (the "NYPD") should also be dismissed because under section 396 of the New York City Charter, the NYPD is not a suable entity. Williams v. New York City Police Department, 930 F. Supp. 49, 53-54 (S.D.N.Y 1996) ("The New York City Charter provides: All actions and proceedings for the violation of any law shall be brought in the name of City of New York and not in that of any agency, except where otherwise provided by law. N.Y. City Charter § 396.") (quoting East Coast Novelty Co. v. City of New York, 781 F. Supp. 999, 1010 (S.D.N.Y. 1992)). Even if the plaintiff had named the City as a defendant, the result would be the same. Because the plaintiff has not alleged any injuries other than those arising from the actions of the individual police officers, the liability of the officers is a prerequisite for establishing municipal liability, and, as discussed above, the claims against the individual defendants fail. See Barrett v. Orange County Human Rights Commission, 194 F.3d 341, 350 (2d Cir. 1999) ("municipal liability for constitutional injuries may be found to exist even in the absence of individual liability, at least so long as the injuries complained of are not solely attributable to the actions of named individual defendants")
Conclusion
For the reasons set forth above, I recommend that the defendants' motion for summary judgment be granted. Pursuant to 28 U.S.C. § 636 (b)(1) and Rules 72, 6(a), and 6(e) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from this date to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Richard C. Casey, Room 1950, and to the chambers of the undersigned, Room 1960, 500 Pearl Street, New York, New York 10007. Failure to file timely objections will preclude appellate review.
Respectfully submitted,