Opinion
No. 01 CV 2819 (SJ).
February 7, 2005
CHEDA SHEEHAN, Jackson Heights, NY, Amy B. Marion, Thomas G. Sheehan, Attorneys for Plaintiff.
NYC OFFICE OF CORPORATION COUNSEL, Law Department, New York, NY, Jonathan Morgan Houghton, Vikrant Pawar, Jessica Mila Schutzman, Attorneys for Detective Kreth.
ROSLYNN MAUSKOPF, United States Attorneys Office, Eastern District of New York, Brooklyn, NY, Richard Thomas Lunger, Jr., Timothy D. Lynch, Attorneys for Charles Schriver.
NYC OFFICE OF CORPORATION COUNSEL, Law Department, New York, NY, Jonathan Morgan Houghton, Attorney for Charles Schriver.
MEMORANDUM AND ORDER
Plaintiff Carmen Rueda ("Plaintiff" or "Mrs. Rueda") commenced this federal civil rights lawsuit against Detective Ernest Kreth of the New York City Police Department ("Detective Kreth") and United States Postal Inspector Charles Schriver ("Inspector Schriver") (collectively, "Defendants") pursuant to 42 U.S.C. § 1983 ("§ 1983") and Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 456 F.2d 1339 (2d Cir. 1972), asserting federal constitutional violations arising from a controlled delivery of a package containing heroin to her home on May 4, 1998. Plaintiff alleges that Defendants violated her Fourth Amendment and Fourteenth Amendment rights when she was arrested, prosecuted, and detained without probable cause. Currently before the Court are Defendants' motions for summary judgment, in which they assert that certain of Plaintiff's claims are time-barred and that qualified immunity entitles them to summary judgment. For the reasons set forth below, Defendants' motions are DENIED.
Plaintiff withdrew her claims against the City of New York. (See Pl.'s Opp'n to City Defs.' Mot. Summ. J. at 13.)
FACTUAL AND PROCEDURAL BACKGROUND
The following statement contains the few undisputed facts in this case. On April 30, 1998, Detective Max Polster of the New York City Police Department ("NYPD") informed Inspector Shriver, a postal inspector with the United States Postal Service, that he was in receipt of a package containing eight ounces of heroin (the "package"), which had been seized by the United States Customs Service. (Schriver Mem. Law Supp. Summ. J. at 3.) Detective Polster also informed Inspector Schriver that the Package was addressed to Noel Lopez at 32-30 60th Street in Queens, New York ("the premises"). (Id.) The building has two entrances, one addressed 32-30 and the other 32-30B. (Rueda Dep. at 19; Schriver Mem. Supp. Defs.' Mot. Summ. J. at 4.) Pursuant to their conversation, Inspector Schriver agreed to make a "controlled" delivery of the Package to the premises. On the morning of May 4, 1998, Inspector Schriver met with members of the [Queens Narcotics Squad, including Detective Kreth] to obtain the package, a body kel, and a radio for communicating with the officers. (Schriver Mem. Supp. Defs.' Mot. Summ. J. at 4; see also Tact Plan.) When Inspector Schriver reached the premises, he found that Noel Lopez was not home but that Mrs. Rueda was. (Schriver Mem. Supp. Defs.' Mot. Summ. J. at 4.) Plaintiff signed for the Package. ( Id. )
Detective Kreth's assertions that, "[P]laintiff has failed to dispute the material facts set forth in defendant's Local Rule 56.1 Statement," and that "[P]laintiff's intentional failure to dispute the material facts entitles City defendants to have those facts deemed admitted as true for this action," (Reply Mem. Supp. City Defs.' Mot. Summ. J. at 2) are entirely lacking in merit. First, although Plaintiff's counsel failed to conform with the appropriate format of a Local Rule 56.1 Statement, her declarations dated June 21, 2004 and July 2, 2004 each contain a section entitled, "Specific Facts Showing That There Is A Genuine Issue for Trial," which this Court deems Plaintiff's Local Rule 56.1 Statement and attaches exhibits in support. Second, Plaintiff's opposition briefs do dispute the material facts set forth by Defendants. Finally, even if Plaintiff failed entirely to oppose Defendants' motions for summary judgment, this Court would still be obliged to assess whether Defendants have fulfilled their burden of demonstrating the absence of genuine issues of material facts. See, e.g., Vermont Teddy Bear Co., Inc. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004) ("[W]e hold that the failure to oppose a motion for summary judgment alone does not justify the granting of summary judgment. Instead, the district court must still assess whether the moving party has fulfilled its burden of demonstrating that there is no genuine issue of material fact and its entitlement to judgment as a matter of law. . . . [The district court] may not rely solely on the statement of undisputed facts contained in the moving party's Rule 56.1 statement. It must be satisfied that the citation to evidence in the record supports the assertion.").
This opinion references information contained in the following documents: Declaration of Amy Marion, Plaintiff's counsel, dated June 21, 2004, attaching a copy of the transcript of Inspector Charles Schriver's deposition on February 2, 2004 (Marion Decl., Ex. A) (hereinafter "Schriver's Dep."); a copy of the transcript of Detective Ernest Kreth's deposition on February 3, 2004 (Marion Decl., Ex. B) (hereinafter "Kreth's Dep."); a copy of the Pre-Execution Search Warrant Plan (Marion Decl., Ex. C) (hereinafter "Tact Plan"); a copy of the transcript of Plaintiff Carmen Rueda's deposition on February 5, 2004 (Marion Decl., Ex. D) (hereinafter "Rueda Dep."); a copy of the Criminal Court Complaint on which Plaintiff was arraigned (Marion Decl., Ex. E) (hereinafter "Criminal Complaint"); copies of letters addressed to Noel Lopez at 32-30 60th Street, Woodside, New York (Marion Decl., Ex. I) (hereinafter "Letters to Lopez"); a copy of Inspector Shriver's notes regarding his conversation with two males outside of the premises prior to the controlled delivery regarding Noel Lopez (Marion Decl., Ex. K) (hereinafter "Schriver's Memo to File").
Plaintiff testified at her deposition that there were addresses on both doors of the premises, 32-30A and 32-30B, and that there was a studio in the back of the building, 32-30Rear, where Noel Lopez lived until two weeks prior to the controlled delivery. (Rueda Dep. at 20, 25). According to Detective Kreth's deposition testimony, during his investigation preceding the controlled delivery he did not look to see if there were any other apartments in the house or building structure of 32-30 60th Street. (Kreth Dep. at 56-57.)
There is significant dispute concerning the circumstances precipitating Plaintiff's signature for the Package.
A short while after the controlled delivery was effectuated, Detective Kreth and other NYPD officers forcibly entered Plaintiff's home, on the authority of an allegedly valid search warrant. (Id.) Inspector Schriver returned to the premises and identified Plaintiff as the woman who accepted the package. (Id. at 5.) After the positive identification by Inspector Schriver, Detective Kreth placed Plaintiff under arrest and subsequently swore out an arrest affidavit charging her with criminal possession of a controlled substance in the first degree (NY PL 220.21-1), criminal possession of a controlled substance in the third degree (NY PL 220.16-1), and criminally using drug paraphernalia in the second degree (NY PL 220.50-2). (Id.;see also Kreth Dep: 45-46; Criminal Court Complaint.) During the subsequent search by NYPD officers, Detective Kreth recovered the Package delivered to the premises by Inspector Schriver and signed for by Mrs. Rueda. (Schriver Mem. Supp. Defs.' Mot. Summ. J. at 4.) Plaintiff was incarcerated until June 4, 1998, when the criminal charges against her were dismissed upon the grand jury's vote of no true bill. (Pl.'s Opp'n to Schriver's Mot. Summ. J. at 3.)
"[The grand jury] is an accusatory body under the (almost) complete control of the prosecutor. . . . a no true bill from the grand jury might grant [the target of the prosecution] only temporary relief. The government can usually choose to empanel another grand jury. It need not even recall witnesses; but can simply present selected transcripts to a second grand jury." In re: Grand Jury Proceedings v. John Doe, 219 F.3d 175, 189 (2d Cir. 2000) (citing United States v. Williams, 504 U.S. 36, 51 (1992)). Here, the prosecutor did not re-present the charges against Mrs. Rueda to a second grand jury.
Plaintiff's brief did not contain page numbers.
On May 7, 2001 Carmen Rueda, Colon Rueda, Jessica Rueda and Jonathan Rueda (collectively, the "Ruedas") filed a Complaint against the City of New York, Ernest Kreth, unidentified New York City police officers (collectively, the "Municipal Defendants"), and Inspector Schriver pursuant to § 1983 for violations of their Fourth, Ninth and Fourteenth Amendment rights. Defendants filed motions to dismiss, which the Ruedas opposed. On February 20, 2003, this Court issued a memorandum and order: granting the Municipal Defendants' motion with respect to all claims brought by Colon, Jessica and Jonathan Rueda, thus disposing of all their claims; denying the Municipal Defendants' motion with respect to all claims brought by Carmen Rueda; denying Inspector Schriver's motion with respect to all remaining claims brought by Carmen Rueda, and construing her claims against Inspector Schriver as arising under Bivens; and directing Carmen Rueda to file an Amended Complaint within thirty (30) days of the order.
The Ninth Amendment claims against Inspector Schriver were withdrawn prior to this Court's decision on February 20, 2003. (See Pls.' Reply to Def. Schriver's Mem. Supp. Mot. to Dismiss, at 6.)
On March 7, 2003, Carmen Rueda timely filed an Amended Complaint against the Municipal Defendants and Inspector Schriver, alleging claims for illegal search, conspiracy to illegally search, failure to intervene during the allegedly illegal search, use of excessive force, false arrest, and malicious prosecution. Upon completion of discovery, Defendants filed motions for summary judgment.
Inspector Schriver argues that: (1) Plaintiff's Bivens claim is time-barred; alternatively, (2) he is entitled to summary judgment on the ground of qualified immunity; and (3) he did not personally participate in the alleged constitutional violations. Detective Kreth argues that: (1) certain of Plaintiff's claims are time-barred; (2) probable cause existed to arrest and prosecute Plaintiff and therefore her false arrest and malicious prosecution claims fail as a matter of law; and (3) he is entitled to summary judgment on the ground of qualified immunity.
STANDARD FOR SUMMARY JUDGMENT
Summary judgment is proper "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." See Fed.R.Civ.P. 56; Celotex v. Catrett, 477 U.S. 317, 322 (1986). The court's function is not to resolve disputed issues of fact, but only to determine whether there is a genuine issue to be tried. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986); Eastman Mach. Co. v. United States, 841 F.2d 469, 473 (2d Cir. 1995). Once the movant has made a showing that there are no genuine issues of material fact to be tried, the burden shifts to the nonmoving party to raise triable issues of fact. See Anderson, 477 U.S. at 250. The nonmoving party must present "significant probative supporting evidence" that a material factual dispute exists.Anderson, 477 U.S. at 249.
A genuine issue for trial exists if, based on the record as a whole, a reasonable jury could find in favor of the nonmoving party. Id. In conducting its analysis, the court must draw all reasonable inferences and resolve all ambiguities in the nonmoving party's favor, and construe the facts in the light most favorable to the nonmoving party. Id. at 254-55; Sutera v. Schering Corp., 73 F.3d 13, 16 (2d Cir. 1995). "If reasonable minds could differ as to the import of the evidence," then summary judgment is inappropriate. Anderson, 477 U.S. at 250. However, where the nonmoving party's evidence is merely colorable, conclusory, speculative, or not significantly probative, summary judgment is proper. See Parker v. Chrysler Corp., 929 F.Supp. 162, 165 (S.D.N.Y. 1996); Knight v. United States Fire Ins., 804 F.2d 9, 12 (2d Cir. 1986). Moreover, it is well established in the Second Circuit that "[c]redibility assessments, choices between conflicting versions of the events, and the weighing of evidence are matters for the jury, not for the court on a motion for summary judgment." Curry v. City of Syracuse, 316 F.3d 324 (2d Cir. 2003) (quoting Fischl v. Armitage, 128 F.3d 50, 55-56 (2d Cir. 1997)).
In addition,
A party is entitled to summary judgment on qualified immunity grounds if the court finds that the rights asserted by the plaintiff were not clearly established or no reasonable jury, looking at the evidence in the light most favorable to, and drawing all inferences most favorable to, the plaintiffs, could conclude that it was objectively unreasonable for the defendant to believe that he was acting in a fashion that did not clearly violate an established federally protected right.Lee v. Sandberg, 136 F.3d 94, 102 (2d Cir. 1997) (citing Robinson v. Via, 821 F.2d 913, 921 (2d Cir. 1987)). A police officer's actions are objectively unreasonable "when no officer of reasonable competence could have made the same choice in similar circumstances." Lennon v. Miller, 66 F.3d 416, 420-21 (2d Cir. 1995). Therefore, summary judgment is appropriate if "the only conclusion a rational jury could reach is that reasonable officers would disagree about the legality of the defendants' conduct under the circumstances." Id. at 421. However, if any rational jury could find that the officer's actions were objectively unreasonable, then summary judgment must be denied. Id. at 420.
DISCUSSION
I. Timeliness of Plaintiff's Claims A. Plaintiff's Claims against Municipal Defendants for Illegal Search, Conspiracy to Illegally Search, Failure to intervene during the Allegedly Illegal Search, and Use of Excessive Force
The Municipal Defendants argue that Plaintiff's claims of illegal search, conspiracy to illegally search, failure to intervene during the allegedly illegal search, and use of excessive force are time-barred. The statute of limitations applicable to Bivens and § 1983 actions brought in federal courts in New York State is three years. Chin v. Bowen, 833 F.2d 21, 24-25 (2d Cir. 1987); Owens v. Olure, 488 U.S. 235, 250-51 (1989). While state law supplies the statute of limitations period, "federal law determines when a federal claim accrues." Krinisch v. United States, 150 F.3d 112, 123 (2d Cir. 1998) (quoting Eagleston v. Guido, 41 F.3d 865, 871 (2d Cir. 1994)). Under federal law, the claim "accrues when the alleged conduct has caused the claimant harm and the claimant knows or has reason to know of the allegedly impermissible conduct and the resulting harm." Jacobs v. Village of Tuckahoe, (S.D.N.Y. 1996) (quoting Singleton v. City of New York, 632 F.2d 185, 191 (2d. Cir. 1980)). In other words, "[t]he crucial time for accrual purposes is when the plaintiff becomes aware that he is suffering from a wrong for which damages may be recovered in a civil action." Singleton, 632 F.2d at 191.
Since the Municipal Defendants have not challenged the timeliness of Plaintiff's other claims for false arrest and malicious prosecution (City Defs.' Reply Mem. Supp. Mot. Summ. J. at 3.), this Court does not address that issue.
Plaintiff's federal claims regarding the allegedly unlawful search and use of excessive force arose on May 4, 1998, the date on which police searched Mrs. Rueda's home and allegedly used excessive force. Plaintiff did not commence the instant action until May 7, 2001, beyond the statute of limitations period. Consequently, her claims for illegal search, conspiracy to illegally search, and use of excessive force are time-barred and therefore are dismissed.
B. Plaintiff's Bivens Claims against Inspector Schriver
Inspector Schriver contends that Plaintiff's Bivens claims against him accrued on the day of the controlled delivery, May 4, 1998, and therefore are time-barred. This argument is based on: (1) Inspector Schriver's characterization of the claims against him as alleging only entrapment (Schriver Mem. of Law Supp. Summ. J. at 12) ("Other than Rueda's allegations of entrapment, she fails to allege any other conduct undertaken by Inspector Schriver that would have violated her constitutional rights."); and (2) his assertion that he did not personally participate in the alleged constitutional violations. (Id. at 13.) This Court rejects Inspector Schriver's arguments in their entirety.
At the outset, as explained in the following section, a reasonable jury could find that Inspector Schriver did participate personally, perhaps integrally, in Detective Kreth's decision to arrest Plaintiff and file criminal charges against her. See Rueda v. City of New York, 2003 WL 21143084 at *4 (E.D.N.Y. Feb. 20, 2003) ("Defendant Schriver did, in fact, work in cooperation with the Municipal Defendants in planning the controlled delivery which formed the basis for Plaintiff Carmen Rueda's arrest and [the criminal charges filed against her.]"). Accordingly, this Court construes Plaintiff's Amended Complaint to assert claims against Inspector Schriver for false arrest and malicious prosecution.
It is well settled that a Bivens claim for malicious prosecution does not accrue until criminal proceedings are terminated. See, e.g., Murphy v. Lynn, 53 F.3d 547, 548 (2d Cir. 1995) ("for claims based in malicious prosecution, this period starts to run only when the underlying criminal action is conclusively terminated") (citing Singleton, 632 F.2d at 189, 193 (2d Cir. 1980)). Here, the criminal proceedings against Mrs. Rueda were terminated on June 4, 1998, when the grand jury voted no true bill. Plaintiff filed her complaint on May 7, 2001, within the three-year limitations period, and therefore herBivens claim for malicious prosecution is timely.
Turning now to the accrual of Plaintiff's Bivens claim for false arrest, this Court concludes, as explained more fully below, that it did not accrue until June 4, 1998, when the criminal charges against Mrs. Rueda were dismissed. See Covington v. City of New York, 171 F.3d 171 (2d Cir. 1999). InCovington, the Second Circuit held that if success on plaintiff's § 1983 claim would necessarily have implied the invalidity of any conviction which might have stemmed from the criminal proceedings arising from the arrest, then plaintiff's false arrest claim would not accrue, for statute of limitations purposes, until after the charges were dismissed. Id. at 124. The Court of Appeals remanded the case to the district court because the record before it was undeveloped "as to the nature of the evidence which might have been available against [plaintiff] in those [criminal] proceedings." Id. at 123.
The record before this Court is completely devoid of any reference to evidence, other than the mere fact of the recovery of the package in Plaintiff's home, upon which a criminal prosecution against Mrs. Rueda would be based. Thus, this Court concludes that the instant case is analogous to those in which "the only evidence for conviction was obtained pursuant to an arrest" and therefore "recovery in a civil case based on false arrest would necessarily impugn any conviction resulting from the use of that evidence." Id. It follows then that Mrs. Rueda's claims did not accrue until June 4, 1998, when the criminal charges against her were dismissed. See id. at 124; see also Tavarez v. Reno, 54 F.3d 109, 110 (2d Cir. 1995) (concluding that the similarity between § 1983 and Bivens actions extends to the analysis of Heck v. Humphrey, 512 U.S. 477 (1994), in which the Supreme Court held that a claim for damages under § 1983 is not cognizable until a plaintiff proves that the conviction or sentence has been resolved in plaintiff's favor). Plaintiff filed her Complaint on May 7, 2001, well within the three-year statute of limitations period. Therefore, Plaintiff's Bivens claim for false arrest against Inspector Schriver is timely.
II. Material Issues of Fact Regarding Plaintiff's False Arrest and Malicious Prosecution Claims
This Court notes first that actions under Bivens and § 1983 share similarities "in terms of the interests being protected, the relief which may be granted, and the defenses which may be asserted," Chin, 833 F.2d at 23, and therefore "federal courts have typically incorporated § 1983 law into Bivens actions."Tavarez, 54 F.3d at 110. Additionally, a "§ 1983 claim for false arrest, resting on the Fourth Amendment right of an individual to be free from unreasonable seizures, including arrest without probable cause, is substantially the same as a claim for false arrest under New York Law." Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996). Therefore, the elements of a cause of action for false arrest under both federal and state 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." Singer, 63 F.3d at 118 (internal citations omitted). To prevail on federal and state claims of malicious prosecution, a plaintiff must meet the following elements: "(1) institution or continuation of a criminal proceeding by the defendant against the plaintiff; (2) termination of such proceeding in the plaintiff's favor; (3) malice in commencing the proceeding; and (4) lack of probable cause for the proceeding." Brome v. City of New York, 2004 WL 502645 at *5 (S.D.N.Y. March 15, 2004) (internal citations omitted).
A. Genuine Issues of Material Fact Regarding Probable Cause
Detective Kreth has asserted the affirmative defense of probable cause as providing relief from liability under Plaintiff's false arrest and malicious prosecution claims; thus, he has the burden of proving the existence of probable cause.See Broughton v. State, 37 N.Y.2d 451, 458 (1975). In order to defeat Plaintiff's claims of false arrest and malicious prosecution on a motion for summary judgment, Detective Kreth must show that probable cause existed and that there was "no dispute as to the pertinent events and the knowledge of the officers." Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996);see also Murphy v. Lynn, 118 F.3d 938, 947 (2d Cir. 1997). Therefore, this Court must make a factual inquiry into the issue of probable cause. Probable cause to arrest exists when 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." Weyant, 101 F.3d at 852. In the context of a claim of malicious prosecution, probable cause focuses on a belief that criminal charges could be successfully prosecuted. See Posr v. Court Officer Shield No. 207, 180 F.3d 409, 417 (2d Cir. 1999). "[T]he existence of probable cause to arrest is a complete defense to a claim of malicious prosecution." Savino v. City of New York, 331 F.3d 63, 75 (2d Cir. 2003).
According to Inspector Schriver's testimony at his deposition, shortly after he arrived at the premises Plaintiff looked out the top window and asked if he had a package for Noel Lopez, to which Inspector Schriver answered affirmatively. (Schriver's Dep: 64.) Plaintiff informed him that Lopez was not home but that Lopez said she could sign for it, and she instructed a young male to sign for it. (Id.: 65A, 66A, 68.) Inspector Schriver informed her that an adult had to sign for it, so she came downstairs, signed for, and received the package. (Id.: 67.) He left the premises after notifying the field team of what had transpired. (Id.: 66.)
There is even an implicit dispute between Defendants' versions of facts. Whereas Inspector Schriver maintains that he reported the information contained in his Memo to File (regarding his conversation with two males outside the premises, during which he learned that Noel Lopez lived next door at 32-30B 60th Street and that Lopez would return home around 6 p.m.) to Detective Kreth and the other officers (Schriver Dep: 58-66), Detective Kreth testified that Inspector Schriver never informed him that Noel Lopez did, in fact, exist; that Noel Lopez lived next door to Plaintiff; or that Noel Lopez usually returned home around 6 p.m. (Kreth Dep: 52-54, 76.) When asked at his deposition whether his decision to arrest Plaintiff would change if he had information prior to the arrest that there was an actual Noel Lopez who lived in the residence next door to Mrs. Rueda, Detective Kreth testified, "Yes. I would have conducted an investigation into that Nole [sic] Lopez and she [sic] if they were connecting [sic] that is part of being an investigator." (Id.: 52-54.)
Mrs. Rueda tells a strikingly different story about the events leading up to her arrest and prosecution. Plaintiff alleges that she knew nothing about the package and that Inspector Schriver coerced her into signing for the package under the pretense that he had already attempted delivery twice before and did not want to make another trip.
Plaintiff testified,
I went downstair[s] and I told [Inspector Schriver], what happened with the mail. He said, ["] I have mail for Noel Lopez.["] And I told him, ["] He is going to come back later on. But if you want to leave the yellow paper . . . ["] — because he said that I have to sign and I didn't want to sign. I told him I don't sign anything. And I told him, ["] look, I have more mail for him over here.["] Because he had come over almost to the staircase and I had told him I have more mail for him over here. And he said, ["] well don't be bad now. I mean, why don't you sign this because I don't want to come back because this has to be signed.["] And I told him, ["] no, I don't like signing for anybody.["] And he told me ["] there's no problem, plus he is going to pick up the rest of the mail. Why don't you just sign it so he doesn't have to [come] back."
(Rueda Dep: 16, 31, 45-46.) Mrs. Rueda claims that after she signed for the package, she put it with the rest of the mail on top of the table in the hallway that goes towards the third floor. (Id.: 50-52.) However, Detective Kreth maintains that he recovered the package from the second floor, where "[i]t was in the front bedroom wrapped up in like a poncho, tapestry thing, wrapped up in the front room" (Kreth Dep:41-42) and that "[the package] was tucked away on the chest and right next to the bed. . . . It was wrapped in a way that someone was hiding it from somebody like nobody should mess with that package." (Id.: 67.) These statements are also reflected in his sworn arrest affidavit. (See Criminal Court Complaint.)
Drawing all inferences in favor of Mrs. Rueda, as this Court must on summary judgment, Tenenbaum v. Williams, 193 F.3d 581, 593 (2d Cir. 1999), factual questions remain as to: the extent and reasonableness of Defendants' investigations prior to effectuating the controlled delivery; Inspector Schriver's representations to Plaintiff during the controlled delivery and Detective Kreth's knowledge of those representations; Plaintiff's motivations to sign for the package; Plaintiff's knowledge of the contents of the package; and the location where the package was recovered by Detective Kreth. If a jury were to believe Mrs. Rueda's account, then it could find that Plaintiff was not the intended recipient of the package, did not know it contained heroin, only signed for the package because of the misrepresentations concerning previous attempts at delivery, and did not conceal or attempt to conceal the package. In those circumstances, the presence of the package in Mrs. Rueda's home alone would not constitute evidence of probable cause to reasonably believe she had committed any of the crimes with which she was charged.
In addition, Plaintiff's submissions have identified a material factual discrepancy as to whether Inspector Schriver merely furnished information to Detective Kreth, who was then free to exercise his own judgment as to whether an arrest should be made and criminal charges filed, or whether Inspector Schriver intended or instigated Plaintiff's arrest, prosecution, and confinement by providing knowingly false accusations against her. Inspector Schriver's representations to Detective Kreth formed the very basis of the Detective's sworn statement in the criminal complaint against Mrs. Rueda. (Criminal Complaint, at 2.) ("Deponent is informed by Inspector Schriver that the Defendant, Carmen Rueda, did come to the window and state `[D]o you have a package for Noel Lopez[?]' Deponent is informed by Inspector Schriver that the Defendant did then state `[H]e is not home, but he said I can sign for it.'") Furthermore, Detective Kreth testified in his deposition that "[he] had probable cause to arrest [Plaintiff] due to the fact that she signed for that package" (Kreth Dep: 52, 69) and that Plaintiff's willingness to sign factored into his determination that probable cause existed for her arrest. (Id.)
Q: Is part of [your determination that probable cause existed to arrest Plaintiff] that she is very willing to sign for the package, is that something that went into the equation for you?
A: Of course.
Q: Is there anything else that went into the equation?
A: Other than the postal inspector told me she signed for the package and went into the house is they go to a house that no one even lives at that address we didn't find a Nole [sic] Lopez was found or lived there.
Q: Did you investigate as to whether or not there was a Nole [sic] Lopez who lived there?
A: We had people to ask around for Nole [sic] Lopez.
Q: Who?
A: I believe the inspector.
* * * *
Q: Did the postal inspector tell you when he went to the house that Nole [sic] Lopez lived next door?
A: No.
(Kreth Dep: 52-54.)
The fact that Inspector Schriver was wearing a body kel (see Tact Plan) also supports this Court's finding of a material factual dispute regarding Detective Kreth's knowledge of the circumstances giving rise to Plaintiff's signature for the package. In addition, if, as she stated, Mrs. Rueda placed the package with the other mail, then a juror could reasonably believe that Detective Kreth's affidavit, in which he swore that the package was concealed under a bed, was false and intended to mislead the prosecutor. On this version of facts, a reasonable jury may conclude that Detective Kreth is liable for malicious prosecution. See Brome v. City of New York, 2004 WL 502645 at *5 (S.D.N.Y. March 15, 2004) ("although there is a presumption that a prosecutor exercises independent judgment in deciding whether to initiate and continue a criminal proceeding, an arresting officer may be held liable for malicious prosecution `when a police officer creates false information likely to influence a jury's decision and forwards that information to prosecutors'") (citing Ricciuti v. N.Y.C. Transit Authority, 124 F.3d 123, 130 (1997)). Given the sharp dispute over the material facts regarding the issue of probable cause to arrest and to prosecute Plaintiff, this Court is precluded from entering summary judgment in favor of Defendants. See, e.g., Mejia;Curry v. City of Syracuse, 316 F.3d 324, 333 (2d Cir. 2003) (denying summary judgment where officer's version of arrest conflicted with plaintiff's version); Ricciuti, 124 F.3d at 129-30 (denying summary judgment where material question of fact existed as to whether police officers falsified circumstances of arrest); Moore v. Comensas, 32 F.3d 670, 673 (2d Cir. 1994) ("The issue of probable cause, which was predominantly factual in nature, was properly presented to the jury.")
B. Qualified Immunity
The factual dispute described above is also dispositive of the qualified immunity inquiry. See, e.g., Weyant, 101 F.3d at 858 (holding that where officers' version of facts is "sharply disputed . . . the matter of the officers' qualified immunity therefore cannot be resolved as a matter of law"); Hemphill v. Schott, 141 F.3d 412, 418 (2d Cir. 1998) ("[s]ummary judgment based either on the merits or on qualified immunity requires that no dispute about material factual issues remain"); Cowan ex rel. Estate of Cooper v. Breen, 352 F.3d 756, 761 (2d Cir. 2003). Accordingly, Defendants' motions for summary judgment on the basis of qualified immunity are denied.
CONCLUSION
For the reasons stated herein, Plaintiffs claims against the Municipal Defendants for illegal search, conspiracy to illegally search, failure to intervene during the allegedly illegal search, and use of excessive force are time-barred and therefore are dismissed. Detective Kreth's motion for summary judgment on the false arrest and malicious prosecution claims, and on the basis of qualified immunity is DENIED. Inspector Schriver's motion for summary judgment is denied in its entirety. In addition, the parties are directed to appear before this Court on March 25, 2005 at 9:30 a.m. for a pretrial conference.
SO ORDERED.