Opinion
No. 03 Civ. 4638 (SAS).
November 12, 2004
William Washington, Sing Sing Correctional Facility, Ossining, New York, Plaintiff (Pro Se).
Angel Kelley, Esq., New York, New York, for the Port Authority of New York and New Jersey and P.O. Milutinovic.
OPINION AND ORDER
I. INTRODUCTION
William Washington, proceeding pro se, brings this action under section 1983 of Title 42 of the United States Code ("section 1983") seeking damages for false arrest, wrongful imprisonment and malicious prosecution. Washington alleges that his Fourth Amendment rights were violated on April 16, 2002, when Police Officer Steven Milutinovic ("P.O. Milutinovic") arrested him at the Port Authority Bus Terminal in New York City (the "Bus Terminal") for robbery and criminal possession of stolen property. After trial, Washington was acquitted of the robbery charge but was found guilty of grand larceny in the fourth degree. The Port Authority of New York and New Jersey (the "Port Authority") and P.O. Milutinovic now move for summary judgment. For the following reasons, the motion is granted.
Washington's claims against District Attorney Morganthau were dismissed by a Memorandum Opinion and Order dated April 13, 2004, for lack of personal involvement, Eleventh Amendment immunity, and prosecutorial immunity. By Order dated May 4, 2004, Commissioner Raymond Kelly was dismissed pursuant to Rule 4(m) of the Federal Rules of Civil Procedure.
The indictment charged Washington with robbery in the third degree and grand larceny in the fourth degree. See 6/14/02 Supreme Court of New York, Grand Jury Indictment, Ex. D to 6/30/04 Affidavit of Angel Kelley, attorney for defendants ("Kelley Aff.").
In his complaint, Washington named the New York City Port Authority Police Department as a defendant. The proper party is the Port Authority of New York and New Jersey. Because a pro se plaintiff's pleadings should be liberally interpreted, the Port Authority of New York and New Jersey is substituted as the proper defendant for purposes of this motion.
II. BACKGROUND
Unless otherwise indicated, the facts are taken from defendants' Rule 56.1 Statement ("Def. 56.1"). Defendants served their summary judgment motion on June 30, 2004. On August 3, 2004, because the Court had not received any papers in opposition to the motion, the Court ordered Washington to file any opposition within thirty days. The Court also provided him with a Notice for Pro Se Litigants Regarding Opposition to a Summary Judgment Motion, which explained the nature of summary judgment and what a party must do to oppose a summary judgment motion. To date, Washington has not filed any opposition to the motion.
The mission of the Port Authority is to develop terminal, transportation and other facilities of commerce within the Port of New York District, which includes the Bus Terminal. P.O. Milutinovic is a police officer employed by the Port Authority at the Bus Terminal. On April 16, 2002, at the Bus Terminal, P.O. Milutinovic arrested Washington for the theft of William Carellis' wallet. Abdoulaye Sahko, a witness who claimed he observed Washington steal Carellis' wallet, held Washington until P.O. Milutinovic arrived. On June 14, 2002, a grand jury indicted Washington for robbery in the third degree and grand larceny in the fourth degree. On October 31, 2002, Washington was convicted of grand larceny in the fourth degree after a full trial. Washington was sentenced to twenty years to life in prison as a persistent felony offender.
See Def. 56.1 ¶ 2.
See id. ¶ 3.
See id. ¶ 4.
See id.
See id. ¶ 5.
See id. ¶ 6.
See id. ¶ 7; 6/24/04 Supreme Court of New York, Certificate of Disposition Indictment, Ex. E to Kelley Aff.
Washington claims that his Fourth Amendment rights were violated when P.O. Milutinovic arrested him at the Bus Terminal for robbery and criminal possession of stolen property. Washington claims that he should only have been charged with petit larceny, a misdemeanor, because the stolen wallet found in his possession contained only $90 in cash. Washington asserts that P.O. Milutinovic knew that the robbery arrest was a "fraud" but nonetheless detained him and initiated a criminal proceeding. Washington seeks compensatory damages from both defendants.
See Complaint, Statement of Claim at 1-2; Answer at 2.
See Complaint, Statement of Claim at 1-2.
See id., Second Cause of Action at 1.
See id., Fourth Cause of Action.
III. LEGAL STANDARD
A. Summary Judgment
Summary judgment is permissible "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 judgment as a matter of law." "An issue of fact is 'genuine' if 'the evidence is such that a jury could return a verdict for the nonmoving party.'" A fact is material when "it 'might affect the outcome of the suit under the governing law.'" The party seeking summary judgment has the burden of demonstrating that no genuine issue of material fact exists. In turn, to defeat a motion for summary judgment, the non-moving party must raise a genuine issue of material fact. To do so, he "'must do more than simply show that there is some metaphysical doubt as to the material facts,'" and he "'may not rely on conclusory allegations or unsubstantiated speculation.'" "If the evidence presented by the non-moving party is merely colorable, or is not significantly probative, summary judgment may be granted." In this regard, "[t]he 'mere existence of a scintilla of evidence' supporting the non-movant's case is also insufficient to defeat summary judgment."
Gayle v. Gonyea, 313 F.3d 677, 682 (2d Cir. 2002) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
Id. (quoting Anderson, 477 U.S. at 248).
See Marvel Characters, Inc. v. Simon, 310 F.3d 280, 286 (2d Cir. 2002) (citing Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970)). In determining whether there is a genuine issue of material fact, a court must construe the evidence in the light most favorable to the non-moving party and draw all inferences in that party's favor. See Niagara Mohawk Power Corp. v. Jones Chem., Inc., 315 F.3d 171, 175 (2d Cir. 2003). Accordingly, a court's task is not to "weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249. Summary judgment is therefore inappropriate "if there is any evidence in the record that could reasonably support a jury's verdict for the non-moving party." Marvel Characters, 310 F.3d at 286 (citing Pinto v. Allstate Ins. Co., 221 F.3d 394, 398 (2d Cir. 2000)).
A pro se plaintiff is entitled to have his pleadings held to "less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520 (1972). Accordingly, a pro se plaintiff's papers should be interpreted "to raise the strongest arguments that they suggest." McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (quotation marks and citation omitted). Nevertheless, a plaintiff's pro se status does not allow him to rely on conclusory allegations or unsubstantiated speculation to overcome a motion for summary judgment. See Satterfield v. United Parcel Serv., Inc., No. 00 Civ. 7190, 2003 WL 22251314, at *15 (S.D.N.Y. Sept. 30, 2003).
Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir. 2002) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)).
Fujitsu Ltd. v. Federal Express Corp., 247 F.3d 423, 428 (2d Cir. 2001) (quoting Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998)).
Scotto, 143 F.3d at 114 (quotation marks, citations and alterations omitted).
Niagara Mohawk, 315 F.3d at 175 (quoting Anderson, 477 U.S. at 252).
B. When a Motion for Summary Judgment Is Unopposed
When the non-moving party "'chooses the perilous path of failing to submit a response to a summary judgment motion, the district court may not grant the motion without first examining the moving party's submission to determine if it has met its burden of demonstrating that no material issue of fact remains for trial.'" If the movant does not meet its burden of production, then the court must deny summary judgment even if the non-movant does not oppose the motion. Moreover, the court may not rely solely on the movant's statement of undisputed facts contained in its Rule 56.1 statement. The court must be satisfied that the movant's assertions are supported by the evidence in the record.
See Vermont Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004) (quoting Amaker v. Foley, 274 F.3d 677, 681 (2d Cir. 2001)).
Id. (citing Amaker, 274 F.3d at 681).
See id.
See id. (citing Giannullo v. City of N.Y., 322 F.3d 139, 140 (2d Cir. 2003)).
IV. DISCUSSION
A. False Arrest
New York law provides the frame of reference for the instant action. Under New York law, false arrest is synonymous with false imprisonment. To establish a cause of action for false arrest or false imprisonment, a plaintiff must show that "(1) the defendant intended to confine him, (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." If a person is validly convicted of the crime for which he was arrested, he is barred from bringing a claim for false arrest because the conviction is "conclusive evidence of the good faith and reasonableness of the officer's belief in the lawfulness of the arrest." In Heck v. Humphrey, the Supreme Court held that in order to recover damages under section 1983 for false arrest where there has been a conviction, a plaintiff must first show that the conviction or sentence has been reversed on direct appeal or otherwise declared invalid.
See Singer v. Fulton County Sheriff, 63 F.3d 110, 114 (2d Cir. 1995).
See Posr v. Doherty, 944 F.2d 91, 96 (2d Cir. 1991).
Id. at 97.
Cameron v. Fogarty, 806 F.2d 380, 388 (2d Cir. 1986). See also Broughton v. State, 37 N.Y.2d 451, 458 (1975) ("[A] conviction which survives appeal would be conclusive evidence of probable cause.").
512 U.S. 477, 487-88 (1994).
A grand jury indicted Washington for both robbery in the third degree and grand larceny in the fourth degree. This indictment alone creates a presumption of probable cause. Although Washington was not convicted of the more serious robbery charge, he was convicted of the grand larceny charge, which is also a felony. Because Washington has offered no evidence, nor even alleged, that his conviction has been overturned or declared invalid, his conviction establishes that P.O. Milutinovic had probable cause for his arrest.
See Marshall v. Sullivan, 105 F.3d 47, 54 (2d Cir. 1996). This presumption is rebuttable by a showing "that the indictment was the product of fraud, perjury, the suppression of evidence by the police, or other police conduct undertaken in bad faith." Id. Washington makes no such allegation.
Further, Washington concedes that he could have been arrested for petit larceny, a misdemeanor. However, an arrest is valid if an officer has probable cause to believe that the suspect has committed any crime, including a misdemeanor. Similarly, under New York law, a police officer may make a warrantless arrest if he has reasonable cause to believe that the suspect has committed a "crime," which New York law defines as either "a misdemeanor or a felony." Because Washington acknowledges that P.O. Milutinovic had probable cause to arrest him for a misdemeanor, Washington's arrest was valid. Consequently, Washington's false arrest claim against the Port Authority and P.O. Milutinovic must be dismissed.
See Complaint, Statement of Claim at 1 ("[I]n reality, the plaintiff's only charge should have been petty [sic] larceny a misdemeanor.").
See Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001) ("If an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender.").
B. Malicious Prosecution
In order to prevail on a section 1983 claim against a state actor for malicious prosecution, a plaintiff must establish the elements of a malicious prosecution claim under state law. To prove malicious prosecution under New York law, a plaintiff must show: (1) the defendant either commenced or continued a criminal proceeding against him; (2) that the proceeding terminated in plaintiff's favor; (3) that there was no probable cause for the criminal proceeding; and (4) that the criminal proceeding was instituted with actual malice. The Heck v. Humphrey requirement — that a section 1983 plaintiff show that his conviction was overturned or otherwise declared invalid — also applies to a malicious prosecution claim. However, in Janetka v. Dabe, the Second Circuit held that a defendant convicted of one offense but acquitted of another during the same proceedings may bring a malicious prosecution claim with respect to the acquitted offense if the two charges are "distinct offenses involving distinct allegations." In that case, the court held that the severity and the distinctiveness of the charge for which the plaintiff was convicted has to be compared with the charges for which plaintiff was acquitted in determining whether a malicious prosecution claim could go forward with respect to the acquitted charges.
See Fulton v. Robinson, 289 F.3d 188, 195 (2d Cir. 2002).
See DiBlasio v. City of New York, 102 F.3d 654, 657 (2d Cir. 1996) (applying state tort law elements to a section 1983 malicious prosecution claim).
See 512 U.S. at 487-88.
892 F.2d 187, 190 (2d Cir. 1989). See also Posr, 944 F.2d at 100 (" Janetka is useful in highlighting the need to separately analyze the charges claimed to have been maliciously prosecuted."). In Posr, the Second Circuit overturned the district court's ruling that if the jury found probable cause supporting any of the three charges against Posr, then no liability for malicious prosecution could be found for any of the charges filed. The Second Circuit noted that upholding the district court's ruling would allow "an officer with probable cause as to a lesser offense [to] tack on more serious, unfounded charges which would support a high bail or a lengthy detention, knowing that the probable cause on the lesser offense would insulate him from liability for malicious prosecution on the other offenses." Id.
See Janetka, 892 F.2d at 190.
Washington was tried for robbery in the third degree and grand larceny in the fourth degree. Both charges are felonies, which is significant because Washington was sentenced to twenty years to life as a persistent felony offender. The elements of each charge are quite similar. The robbery charge consists of forcibly stealing property. The grand larceny charge consists of stealing property by taking it from the person of another. Although Washington was acquitted on the robbery charge, the grand larceny charge was based on virtually identical allegations. Accordingly, even with the acquittal, Washington cannot meet the requirement that the criminal proceeding terminated in his favor.
Third degree robbery is a class D felony. See N.Y. Penal Law § 160.05. Fourth degree grand larceny is a class E felony. See N.Y. Penal Law § 155.30.
Further, Washington's conviction establishes probable cause for his arrest. Washington offers no evidence of malice on the part of either the Port Authority or P.O. Milutinovic. Malicious prosecution requires the showing of actual malice, defined as "a wrong or improper motive, something other than a desire to see the ends of justice served." Washington asserts that "P.O. Milutinovic arrested [Washington] with malice for purposes of a malicious prosecution in order to receive a collar for a felony . . . for self gain a [sic] malice." This assertion has no evidentiary support, particularly since Washington was convicted of a felony. As such, there is no genuine issue of material fact because Washington offers nothing more than mere speculation to support his claim of malicious prosecution. Consequently, Washington's claim of malicious prosecution must be dismissed.
Lowth v. Town of Cheektowaga, 82 F.3d 563, 573 (2d Cir. 1996) (quoting Nardelli v. Stamberg, 44 N.Y.2d 500, 503 (1978)).
Complaint, Third Cause of Action at 1-2.
C. Qualified Immunity
"Qualified immunity protects government officials from the 'costs of trial' and 'broad reaching discovery' by shielding them from liability 'insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" "[W]hether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the 'objective legal reasonableness' of the action . . . assessed in light of the legal rules that were 'clearly established' at the time it was taken." As explained by the Second Circuit:
Glass v. Mayas, 984 F.2d 55, 57 (2d Cir. 1993) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 817-18 (1982)).
Anderson v. Creighton, 483 U.S. 635, 639 (1987) (quoting Harlow, 457 U.S. at 818-19).
[E]ven where the plaintiff's federal rights and the scope of the official's permissible conduct are clearly established, the qualified immunity defense protects a government actor if it was objectively reasonable for him to believe that his actions were lawful at the time of the challenged act.
Anthony v. City of New York, 339 F.3d 129 (2d Cir. 2003) (quotation marks and citations omitted). See also Weyant v. Okst, 101 F.3d 845, 857 (2d Cir. 1996) ("[P]ublic officials are entitled to qualified immunity if (1) their conduct does not violate clearly established constitutional rights, or (2) it was objectively reasonable for them to believe their acts did not violate those rights.").
"The objective reasonableness test is met — and the defendant is entitled to immunity — if 'officers of reasonable competence could disagree' on the legality of the defendant's actions." Qualified immunity protects "all but the plainly incompetent or those who knowingly violate the law."
Lennon v. Miller, 66 F.3d 416, 420 (2d Cir. 1995) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).
Malley, 475 U.S. at 341.
Here, even if P.O. Milutinovic's actions were not supported by probable cause, they were objectively reasonable under the circumstances. At his deposition, Washington admitted to having Carellis' wallet in his possession at the time of the incident. He also stated that both Carellis and an eyewitness told P.O. Milutinovic that Washington had taken Carellis' wallet. In light of the information possessed by P.O. Milutinovic at the time, it was objectively reasonable for him to arrest Washington and charge him with robbery and possession of stolen property. Accordingly, P.O. Milutinovic is entitled to qualified immunity which is an alternative basis to dismiss Washington's claims of false arrest and malicious prosecution against him.
See 6/4/04 Deposition of William Washington at 49-51, Ex. C to Kelley Aff.
See id.
D. The Port Authority's Liability
It is well established that a municipality cannot be held liable under section 1983 on the theory of respondeat superior. The Supreme Court has held:
See, e.g., Monell v. Department of Soc. Servs., 436 U.S. 658, 691 (1978).
[A] local government may not be sued under [section] 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under [section] 1983.
Id. at 694.
Where a complaint fails to allege that the governmental agency has directly inflicted an injury, a plaintiff must demonstrate: 1) the existence of a municipal policy or custom; and 2) the existence of a casual connection between that policy or custom and the deprivation of the plaintiff's constitutional rights.
See Sarus v. Rotundo, 831 F.2d 397, 400 (2d Cir. 1987) (citations omitted).
As discussed earlier, P.O. Milutinovic did not deprive Washington of any constitutional right. Because Washington does not allege that the Port Authority inflicted any direct injury upon him, he has no claim against the Port Authority. Moreover, even if there had been a deprivation of his constitutional rights, Washington does not allege a connection between a Port Authority policy or custom and P.O. Milutinovic's actions. Consequently, Washington's claims against the Port Authority must be dismissed.
V. CONCLUSION
For the reasons stated above, defendants' motion for summary judgment is granted. The Clerk of the Court is directed to close this motion (# 17 on the docket sheet) and this case.
SO ORDERED.