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finding a triable issue of fact regarding plaintiff's malicious prosecution claim where plaintiff alleged that defendants "pressured and/or induced" one of plaintiff's criminal associates "to provide evidence and used such evidence in the investigation and prosecution"
Summary of this case from Robinson v. City of N.Y.Opinion
Civil Action No. 98-4546 (DCP) (JCF).
January 7, 2009
Joel B. Rudin for Plaintiff.
Michael Cardozo, Marilyn Richter, Corporation Counsel of the City of New York, for Defendants.
[Plaintiff's motion to strike denied. Defendants' motion for summary judgment granted in part and denied in part.]
OPINION
POGUE, Judge: Plaintiff Zaher Zahrey ("Zahrey"), a former New York City Police Department ("NYPD") detective, was indicted, tried, and acquitted of various crimes, including robbery, attempted robbery, conspiracy, narcotics and firearms trafficking, and misprison. In this action, Zahrey now sues NYPD, Kings County District Attorney's Office ("KCDAO") employees, city officials, the City of New York, and Kings County, under 42 U.S.C. §§ 1981, 1983, and 1985, and asserts pendent state claims of malicious prosecution and negligent hiring and training. The gravamen of Zahrey's claims is that New York police officers knowingly encouraged false testimony against Zahrey by a corrupt and unreliable witness and presented this evidence to prosecutors, while suppressing exculpatory evidence.
Judge Donald C. Pogue of the United States Court of International Trade, sitting by designation.
Defendants include NYPD and KCDAO employees Robert Boyce, Kelly Wirth, Michael McWilliams, Michael Welsome, Theresa Corrigan, Charles Guria, Dennis Hawkins, Douglas Little, and Joseph Ponzi, in both their individual and official capacities (collectively, "Individual Defendants"); NYPD Commissioner Howard Safir and Kings County District Attorney Charles Hynes, solely in their official capacities (collectively, "Official Defendants"); and the City of New York and Kings County (collectively, "Municipal Defendants").
After discovery, Individual Defendants move for summary judgment and Municipal and Official Defendants move for partial summary judgment, claiming that Zahrey has failed to identify evidence that can reasonably be interpreted to support his claims.
As explained below, the court DENIES Defendants' motions in part and GRANTS their motions in part.
APPLICABLE STANDARD
A party is entitled to summary judgment if it can demonstrate "that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). On a motion for summary judgment, the court must consider "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). Once the movant has "`show[n]'" or "point[ed] out . . . that there is an absence of evidence to support the nonmovant['s] case," the burden shifts to the nonmovant. Celotex Corp. v. Catrett, 477 U.S. 317, 325-27 (1986). To discharge his burden, "a plaintiff must come forward with evidence to allow a reasonable jury to find in his favor" on each of the elements of his prima facie case. Lizardo v. Denny's, Inc., 270 F.3d 94, 101 (2d Cir. 2001).
The court must draw all factual inferences in favor of the party against whom summary judgment is sought and view the factual assertions in materials such as affidavits, exhibits, and depositions in the light most favorable to the nonmovant. Anderson, 477 U.S. at 255; Celotex Corp., 477 U.S. at 322. However, a nonmovant benefits from such factual inferences "only if there is a `genuine' dispute as to those facts."Scott v. Harris, 127 S. Ct. 1769, 1776 (2007). The law is well established that "conclusory statements, conjecture, or speculation" are insufficient to defeat a motion for summary judgment. Kulak v. City of New York, 88 F.3d 63, 71 (2d Cir. 1996). The nonmovant cannot survive summary judgment simply by proffering "some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986), or presenting evidence that "is merely colorable, or is not significantly probative." Savino v. City of New York, 331 F.3d 63, 71 (2d Cir. 2003) (quoting Anderson, 477 U.S. at 249-50, (citation omitted)). Rather, he must "set out specific facts showing a genuine issue for trial." Fed.R.Civ.P. 56(e)(2) (emphasis added); see D'Amico v. City of New York, 132 F.3d 145, 149 (2d Cir. 1998) ("the non-moving party may not rely on mere conclusory allegations nor speculation, but instead must offer some hard evidence showing that its version of the events is not wholly fanciful.").
BACKGROUND
As Defendants are moving for summary judgment, the court accepts as true, for the purposes of these motions, certain facts identified in the Plaintiff's affidavits, briefs, and motions. Based on these filings, the Court will first summarize the circumstances and incidents related to the pending motions. The court will then address Zahrey's motion to strike part of the Defendants' summary judgment filing, before turning to the issues raised by Defendants' motions.
In 1985, Zahrey joined the NYPD, and in 1991 he became involved in undercover narcotics buy-and-bust operations. Zahrey was promoted to detective in late 1992.
Growing up in Brooklyn, Zahrey befriended and played basketball with William "Supreme" Rivera, an alleged gang member involved in drugs, robbery, and murder. Following Supreme's March 10, 1994 murder, Zahrey took an interest in the NYPD investigation of Supreme's death. At the 68th Precinct, Zahrey learned from Internal Affairs Bureau ("IAB") Sergeant Robert Boyce that Supreme was killed with the handgun of off-duty police officer Jose Gutierrez. Officer Gutierrez alleged that Helder Pena grabbed the officer's gun out of its holster and fired at Supreme's car, at the same time that another criminal also fired. Because an officer was, directly or indirectly, involved in this shooting, IAB took over the investigation. Boyce expressed interest in Zahrey's assistance obtaining information and locating witnesses. Zahrey later met Boyce to identify potential witnesses to the murder, and reported that Officer Gutierrez, a friend of Pena, had been protecting a Brooklyn drug-selling location and that Gutierrez's father is a known drug-dealer. Pl.'s Exs. In Opp. To Def.'s Summ. J. Mot., Ex. D at ¶ 15 (hereinafter "Pl.'s Ex."). Zahrey also complained to Boyce that "a sergeant in the 72nd Precinct, whom [he] thought Boyce might know," as Boyce also worked at the 72nd Precinct, was "investigating and bad-mouthing [Zahrey] in an apparent effort to protect the Gutierrez family." Id. at ¶ 16. The officer referred to was Sergeant Whalen of the 72nd Precinct; at the time, Sergeant Whalen was assigned to the Robbery Identification Unit and reported hearing arrestees mention a police officer, fitting Zahrey's description, who was involved with drug-dealers. Def.'s Exs. on Their Summ. J. Motion, Ex. 6 (hereinafter "Def.'s Ex.").
Boyce did not "make a log at IAB" in response to Zahrey's concerns, although a log would arguably have been an appropriate response. Pl.'s Ex. I at 227.
I. Investigation of Zahrey
In 1994, Boyce and Whalen interviewed Carlos Torres, who claimed that Zahrey sold guns and confidential information regarding drug-selling locations to gangs. Pl.'s Ex. I at 140-41, 166-67; Def.'s Ex. 6. Torres also reported a death threat against Sergeant Whalen allegedly originating from Zahrey. Pl.'s Ex. I at 135-36; Def.'s Ex. 6. Torres's credibility, however, is questionable. Torres appeared inebriated when meeting with the detectives — Boyce testified to knowing that Torres had been drinking when Boyce interviewed him. Pl.'s Ex. H at 793-97; Pl.'s Ex. VV at 47-48. Furthermore, Torres was arrested in possession of a hand grenade at an NYPD officer's 1988 funeral. Pl.'s Ex. I at 151-52. According to Torres's daughter Becky, he is a delusional alcoholic who falsely represents himself as an agent of the FBI and CIA. Pl.'s Ex. H at 143-48. Nonetheless, Boyce opened an IAB investigation of Zahrey, and KCDAO Assistant District Attorney Charles Guria assisted.In December 1994, Sergeant Boyce interviewed Supreme's sister, Lisa Rivera, a repeating felony drug offender and heroin addict. Def.'s Ex. 6; Pl.'s Ex. L at 297. At the time, she was in jail for jumping bail on felony drug charges. Although she implicated her brother Supreme with regard to illegal drugs and a March 1992 robbery, Ms. Rivera claimed she had no knowledge that Zahrey was involved in criminal activity. Pl.'s Ex. I at 567; Def.'s Ex. 6. Meanwhile, Boyce noted a conversation with "Slick," another confidential informant, who told him a person named Angel knew "Zack [Zahery] from the block" and that "Zack is crooked" because he helps Supreme with drug rip-offs. See Def.'s Ex. 6.
IAB then turned to Sidney Quick, one of Supreme's alleged criminal associates. Quick faced possible imprisonment of 25 years to life for various robberies in Brooklyn and Manhattan, and suffered an addiction to crack cocaine. Pl.'s Ex. R at 3-4. In August, Boyce visited Quick at Rikers Island and encouraged him to cooperate with the Zahrey investigation in exchange for leniency in Quick's criminal trial. During this and other interviews, Quick fingered Zahrey as a fellow member of Supreme's gang who provided guns and inside information for fourteen of the gang's drug rip-offs and took shares in approximately $200,000 of the proceeds. Pl.'s Ex. H at 827-30; Def.'s Ex. 6. Quick provided information on specific criminal incidents:Homicide and Attempted Robbery and Kidnapping of Ismael Guadalupe on October 14, 1993 Robbery of Francisco and Migdalia Quinones on June 22, 1993 Id. "Pigeon Park" Robbery in 1992 or 1993 See See Antoine Casada Robbery in Summer 1993 id.
When interviewing witnesses like Quick and Lisa Rivera, IAB detectives took notes and drafted worksheets for use in the investigation and eventual prosecution.
Later, Quick testified before the federal grand jury that Supreme in fact threw the gun. Pl.'s Ex. EE at 50.
Despite Quick's cooperation, he was sentenced to six years to life for the Manhattan robbery. After Quick was sentenced, Sergeants Boyce and McWilliams traveled to Sing Sing Prison in March 1995. Quick provided information on yet another criminal incident:Armored Car Robbery on March 20, 1992 Id.
• : Quick said he heard about the robbery from Supreme, who allegedly told Quick that Zahrey helped and received proceeds. Def.'s Ex. 15 at 106-07; Def.'s Ex. 6. According to the police report, robbers stole $186,000 from a Vets International Armored Company car in Brooklyn. Def.'s Ex. 6. The robbers used sawed-off shotguns to kill one Vets employee and shoot another employee in the head and neck. ; Pl.'s Ex. XX at 5-17. Quick also stated that he often took drugs with Zahrey. Def.'s Ex. 6.The two detectives spoke with Quick for over two hours and taped the entire interview. During this interview, the detectives made various statements which we will discuss more thoroughly below; for example, they told Quick he could get a "very, very, very sweet deal" and they would "drive [him] home" if he gave them information on Zahrey. See Def.'s Ex. 15. The tape apparently was, for a period of time, missing, and was found later in Guria's office. Pl.'s Ex. C at 74.
Subsequently, Quick "passed" four polygraph tests. See Pl.'s Exs. LL, MM, NN, OO. Nonetheless, the detectives could not find any information that corroborated Quick's statement that Zahrey took part in any criminal activities. Quick's credibility is also less than ideal; in addition to being a career felon, he has repeatedly lied to medical and law enforcement authorities. He often used his brother Rubin's name to fool police. See, e.g., Pl.'s Ex. EE. Quick later admitted to implicating Zahrey in robberies at that time because he hoped to get a lower sentence for his robbery charge. Quick's wife, Mercedes, wrote an affidavit that Quick confessed to her that he in fact shot Guadalupe and agreed to be a government witness only because he was facing life in prison. Pl.'s Ex. JJ at ¶¶ 4-5. In his deposition, Boyce admitted to questioning Quick's veracity. Pl.'s Ex. I at 620, 635, 643.
Zahrey disputes the results reached by Investigator Douglas Little and provides an expert affidavit challenging Little's inattention to faulty galvanic skin response readings. Pl.'s Ex. EE at 50.
As a result of the investigation of Zahrey, on August 10, 1995, NYPD placed Zahrey on modified assignment. Pl.'s Ex. D at ¶¶ 20, 24. NYPD took Zahrey's weapon and shield and reassigned him, on full salary, to Manhattan Court Section. Id. According to Zahrey's affidavit, during a car ride to his brother-in-law's house to seize another weapon owned and registered by the brother-in-law, Boyce made what Zahrey considers a racial/ethnic slur: "I like to smoke a Camel." Id. at ¶ 22.
Zahrey's work time records showed that he took vacation during the Quinones robbery and left work early on the day of the Guadalupe murder. Def.'s Ex. 6. The detectives looked into Zahrey's financials, finding substantial arrears in several mortgages, equity loans, credit card, and other debt. Id. Zahrey made a large payment of $12,000 to $15,000 on one of his mortgages shortly following the armored car heist, however Zahrey insists this payment resulted from federal tax refund receipts. See Pl.'s Ex. B at 798; Pl.'s Rule 56.1 Stmt. ¶ 342.
In December 1995, the detectives again interviewed Lisa Rivera who provided more details about the armored car robbery. Ms. Rivera indicated that her brother Supreme asked her to make a telephone call to divert the police, but she refused. Pl.'s Ex. O. After the robbery, Supreme's gang met at Lisa Rivera's house. Id. Supreme had a shoe box containing money-filled envelopes with names written on them; one of the envelopes was blank. Id. But Ms. Rivera still insisted that Zahrey was "straight." Pl.'s Ex. C at 497-98. IAB detectives interviewed Ms. Rivera's mother, Maria Montanez, although Ms. Rivera had to translate as Ms. Montanez spoke little English. Pl.'s Ex. C at 524. Ms. Montanez reported that her son Supreme, Ingram, Sandoval, Mercado, and Zahrey were in her apartment a day or so after the armored car robbery acting "very jubilant." Pl.'s Ex. O. According to Ms. Montanez, Zahrey said "[t]hat is easy money, it beats working for a living." Id.
KCDAO determined it had probable cause to arrest, and NYPD arrested, Ingram, Sandoval, and Mercado for the armored car robbery. However, because of the requirements of New York state law regarding accomplice testimony without corroboration, which would severely limit the evidence admissible against Zahrey, KCDAO and IAB recommended that the United States Attorney's Office ("USAO") take the Zahrey case. USAO assigned Assistant U.S. Attorney Martin Coffey to the case and KCDAO Assistant District Attorney Theresa Corrigan assisted him.
Coffey was dismissed from the lawsuit following Zahrey's successful appeal to the Second Circuit on Coffey's affirmative defense of immunity.See Zahrey v. Coffey, 221 F.3d 342 (2d Cir. 2000).
In July and September, Quick became reticent with regard to continued cooperation, and USAO refused to prosecute without his testimony. See Pl.'s Ex. C at 430-31. Federal and state government agencies then worked to have Quick and his mother Hannah relocated and Quick's sentence reduced. The authorities also monitored Quick's phone calls, audio-taping his discussions with Corrigan and his collect calls to his mother. Corrigan sent Quick spending money for the prison commissary around September 27. Pl.'s Ex. BBB at 59817. On September 30, Quick and his lawyer signed a federal cooperation agreement. See Pl.'s Ex. CCC. According to the agreement, Quick voluntarily plead guilty to robbery conspiracy and to firearms violations between 1992 and 1994. Id. Quick's punishment could be reduced from the mandatory five-year consecutive sentence, but this depended upon Government support, specifically the Government writing a 5K1 cooperation letter after Quick's participation in Zahrey's trial. Id. IAB detectives also continued to question Lisa Rivera. Before the grand jury, Ms. Rivera testified that Supreme said the blank envelope containing money was intended for Zahrey. Pl.'s Ex. ZZ at 38.
Following Zahrey's trial, and filing of Coffey's 5K1 letter, Quick was sentenced to three years imprisonment and three years supervised release, plus special assessments of $50 on each count. Def.'s Ex. 63 at 7.
II. Zahrey's Criminal Pre-trial and Trial
A federal grand jury indicted Zahrey on October 15, 1996 for various crimes including joining a conspiracy to rob drug dealers; participating in the attempted robbery, attempted kidnapping, and the homicide of Guadalupe; participating in the robbery of Quinones; trafficking guns and narcotics; and misprison. See Def.'s Ex. 30. Zahrey was subsequently arrested at work and detained. Pl.'s Ex. C at 641-42, and NYPD suspended Zahrey from duty without pay. Pl.'s Ex. D at ¶ 27. On October 24, the court released Zahrey on $500,000 bail. See Def.'s Ex. 33.
On October 29, Quick's mother Hannah alleged that she received a threatening phone call; the caller claimed he "kn[ew] about [her] and [her] grandchildren" and that they were "dead." Def.'s Ex. 36 at 7. Quick's mother first claimed that, although the caller did not identify himself, she recognized the voice as Zahrey's. Def.'s Ex. 35 at 10, 15. Zahrey argues that Quick's mother lied about the phone call in order to help obtain government relocation to another neighborhood in New York City. On October 31, Coffey requested that the court revoke Zahrey's bail. See Def.'s Ex. 35. At the bail revocation hearing, Quick's mother testified that the caller had indeed identified himself as "Zach Zach" or "Zach Zachery." Def.'s Ex. 36 at 7. In response, Zahrey presented the alibi testimony of his mother, next-door neighbor, and wife, as well as another defense attorney. Id. at 74-107. U.S. Magistrate Judge Azrack revoked Zahrey's bail and U.S. District Judge Gershon affirmed the order on November 7. The Second Circuit also affirmed on November 26. The motion to reconsider was denied and the denial was again affirmed by the Second Circuit. Judge Gershon also denied Zahrey's motion for pre-trial release. Zahrey was thus remanded to protective custody twenty-three hours a day. Pl.'s Ex. D at ¶ 35.
Zahrey's six week federal jury trial began May 6, 1997. On June 27, the jury acquitted Zahrey of all charges. NYPD assigned him to work, at full salary, on modified assignment at an automobile impound lot. Id. at 1 33.
III. Zahrey's Departmental Trial
Pursuant to policy, NYPD issued disciplinary charges against Zahrey that mirrored his criminal indictment. Pl.'s Ex. O; Pl.'s Ex. F at 21-24. Departmental prosecutor Sergeant Dailey concluded he had sufficient evidence regarding the Guadalupe homicide to pursue disciplinary action, specifically, Quick's testimony, Zahrey's early departure from work on that day, Zahrey's shaky alibi, and eye-witness testimony of Yanira Quinones. Boyce and Quick testified at the December 1999 due process hearing. See Pl.'s Ex. H. Quick admitted on cross-examination that he lied about certain aspects of Zahrey's involvement in the Guadalupe murder, but insisted he told the truth about the rest. Id. at 350, 455. The Police Department Assistant Trial Commissioner Robert Vinal recommended dismissal of the charges, noting in his decision that he considered Quick's and Maria Montanez's testimony regarding Zahrey's alleged criminal activities incredible and unpersuasive. Commissioner Safir approved the dismissal on July 24. Def.'s Ex. 66 at 29. NYPD restored Zahrey to full duty, with weapon and shield, on September 24, 2000, and he received back pay. Def.'s Ex. 17 at 7. Zahrey requested to stay on at the automobile impound lot. Pl.'s Ex. D at ¶ 41.
In his decision, Vinal noted Quick's limited credibility as a "longtime drug user," robber, and "`snitch' who has personally benefitted by receiving sentence reductions by providing information to police." Def.'s Ex. 66 at 24-25. Quick had admitted to "numerous lies . . . including that he told the parole board that he felt remorse for his crimes, that he once faked suicide while in prison in order to obtain better living arrangements, and that he has criminally impersonated his brother Ruben." Id. Vinal stated that "Quick was never completely forthcoming . . . about his own criminal activities and crimes that he was aware that others had committed calls into question the believability of anything he said about [Zahrey]." Id. In addition, "Quick had [] a strong motive to fabricate a story to inculpate [Zahrey] and he has offered so many different versions of these events that it [is] impossible to credit anything he says." Id. at 27. Finally, Vinal found Maria Montanez's testimony "unpersuasive" and "not directly probative."Id. at 29.
IV. Zahrey's Current Lawsuit
In this action, Zahrey responds to Defendants' motion for summary judgment, first, by moving to strike Defendants' statement of material facts in support of their motion. See Fed.R.Civ.P. 56.1. Zahrey argues that Defendants' papers should be stricken because of specified procedural violations, e.g., Defendants' Rule 56.1 Statement includes paragraphs with multiple assertions and the motion for summary judgment does not cite to specific paragraphs of the Statement. Zahrey's claim, however, fails to recognize that Defendants have submitted a factually annotated version of their papers sufficient to satisfy the rules.Zahrey further argues that the papers rely on inadmissible hearsay evidence and should therefore be stricken. Zahrey primarily objects to the proffered police reports as inadmissible hearsay evidence. However, the court rejects his arguments. First, the reports themselves are admissible as public records. Fed.R.Evid. 803(8)(B); see also Parsons v. Honeywell, Inc., 929 F.2d 901, 907 (2d Cir. 1991). Moreover, the substance of the reports do not implicate multiple hearsay concerns, as Defendants use the reports to establish the existence of probable cause to prosecute and Defendants' states of mind during the investigation and prosecution.See Sheikh v. City of New York, No. 03-CV-6326 (NGG), 2008 WL 5146645, at *1 n. 3 (E.D.N.Y. Dec. 5, 2008); Brewton v. City of New York, 550 F. Supp. 2d 355, 361 n. 5 (E.D.N.Y. 2008); Drummond v. Castro, 522 F. Supp. 2d 667, 674 (S.D.N.Y. 2007); Richards v. City of New York, No. 97 Civ. 7990 (MBM), 2003 U.S. Dist. LEXIS 8037, at *20-21 (S.D.N.Y. May 6, 2003).
Zahrey challenges that the reports were not "routine" police reports, but rather, records prepared for purposes of litigation. See Palmer v. Hoffman, 318 U.S. 109, 113-14 (1943). But Zahrey provides no case law to support his distinction between IAB reports and "routine" reports. All reports in some sense are prepared in anticipation of litigation, namely, the criminal trial; in this case, Zahrey relies upon unsubstantiated supposition to convince the court that the officers conspired to make misleading police reports and thus that the reports were written with the "ulterior motives" to bring criminal charges against Zahrey. Pl.'s Sur-reply Mem. 3. As is explained below, the court finds no evidence to support this assertion and finds the evidence admissible as public records.
The case on which Zahrey principally relies, Griffin v. City of New York, 287 F. Supp. 2d 392 (S.D.N.Y. 2003), is inapposite. In Griffin, the police reports were offered to prove what happened at a crime scene, i.e., that police officers had probable cause to enter a residence when arriving at the crime scene. Id. at 397 (the reports were introduced to prove that police "told Shanequa upon arriving at the house . . . that she was under arrest, that Shanequa then fled back into the house, and that the officers therefore were justified in following her in order to make the arrest."). Thus, the reports were introduced to prove their truth. In the case at hand, in contrast, Defendants are introducing the police reports to show what information they had before them in deciding to prosecute, instead of what actually happened at the scenes the reports describe.
In any event, as Zahrey has the burden to demonstrate to the court that a genuine issue of material fact exists for trial, see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986), the court is relying primarily upon evidence introduced and referenced in Zahrey's Rule 56.1 Statement, to which Zahrey can have no admissibility complaints. Zahrey's motions to strike are therefore DENIED and his objections are OVERRULED.
INDIVIDUAL DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND OFFICIAL AND MUNICIPAL DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT
Zahrey charges all Defendants with state malicious prosecution as well as constitutional equal protection violations pursuant to 42 U.S.C. §§ 1981 and 1985. In addition, Zahrey sues Individual Defendants in particular under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971) and 42 U.S.C. § 1983. Zahrey brings claims against Municipal Defendants for section 1983 violations pursuant toMonell v. Dep't of Soc. Servs., 436 U.S. 658 (1978), and state pendent claims against both Municipal and Official Defendants for negligent hiring, training, and supervision.
42 U.S.C. § 1983 reads, in part: "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subject, or causes to be subjected any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . . ."
Defendants move for summary judgment on the grounds that:
(a) as a matter of law, specifically in regards to the criminal proceedings, Zahrey cannot establish a state or federal claim for malicious prosecution, cannot establish any constitutional tort, and cannot overcome Defendants' affirmative defenses of absolute immunity, qualified immunity, and collateral estoppel;
(b) as a matter of law, specifically in regards to the departmental proceedings, Zahrey cannot establish a state or federal claim and cannot overcome Defendants' affirmative defense of qualified immunity;
(c) as a matter of law, Zahrey cannot establish an equal protection claim under 42 U.S.C. §§ 1981 and 1985; and
(d) Zahrey has presented no evidence that Individual Defendants Hawkins and Welsome were personally involved in any of the challenged conduct.
Municipal and Official Defendants have not moved for summary judgment on Zahrey's claims for negligent training, supervision, or hiring, or his section 1983 claims pursuant to Monell.
Municipal and Official Defendants have not moved for summary judgment on Zahrey's claims for negligent training, supervision, or hiring, or his section 1983 claims pursuant to Monell.
The court will analyze each of Defendants' grounds for summary judgment in turn. In accordance with Defendants' motions, the court analyzes the criminal and departmental trials separately.
I. Federal and State Malicious Prosecution Claims as Pertaining to Zahrey's Criminal Trial
Zahrey asserts claims for state malicious prosecution against Individual Defendants as well as Official and Municipal Defendants based upon the doctrine of respondeat superior. Pursuant to Bivens, Zahrey's federal section 1983 malicious prosecution claims are asserted only against Individual Defendants.
"While the tort of malicious prosecution protects against the consequences of wrongful prosecution, public policy favors bringing criminals to justice, and accusers must be allowed room for benign misjudgments. The law therefore places a heavy burden on malicious prosecution plaintiffs." Smith-Hunter v. Harvey, 734 N.E.2d 750, 752 (N.Y. 2000); see also Rothstein v. Carriere, 373 F.3d 275, 282 (2d Cir. 2004). A malicious criminal prosecution claim under either 42 U.S.C. § 1983 or New York state law requires a showing of four elements: "1) the initiation or continuation of a criminal proceeding against plaintiff; 2) termination of the proceeding in plaintiff's favor; 3) lack of probable cause for commencing the proceeding; and 4) actual malice as a motivation for defendant's actions." Russell v. Smith, 68 F.3d 33, 36 (2d Cir. 1995); see also Ricciuti v. N.Y. City Transit Auth., 124 F.3d 123, 130 (2d Cir. 1997); Martinez v. City of Schenectady, 761 N.E.2d 560, 564 (N.Y. 2001).
In addition to the state law elements of malicious prosecution, "to sustain a § 1983 malicious prosecution claim, there must be a seizure or other `perversion of proper legal procedures' implicating the claimant's personal liberty and privacy interests under the Fourth Amendment." Washington v. Rockland, 373 F.3d 310, 316 (2d Cir. 2004). Defendants do not challenge this requirement; plaintiff's arrest, other criminal detainment, and "requirements of attending criminal proceedings and obeying the conditions of bail suffice." Jocks v. Tavernier, 316 F.3d 128, 136 (2d Cir. 2003) (citing Murphy v. Lynn, 118 F.3d 938, 946 (2d Cir. 1997)); McLean v. City of Rome, No. 95-CV-1713 (RSP/DNH), 1998 U.S. Dist. LEXIS 8734, at *21-22 (N.D.N.Y June 8, 1998).
The thrust of Defendants' claim is that, after discovery, the record fails to make a sufficient showing of the first, third, and fourth elements of malicious prosecution, that is, that Zahrey cannot overcome the presumption of probable cause created by the grand jury indictment, and has not presented sufficient evidence of malice or that Defendants "initiated" the federal criminal prosecution.
As explained below, the court finds that Zahrey has provided little if any evidence to support the vast majority of his claims of malice or bad faith on the part of Defendants, with the exception of Defendants' use of Sidney Quick. Accordingly, Defendants' motions are GRANTED in part and DENIED in part.
A. Probable Cause
Probable cause is a "complete defense" to a cause of action for malicious prosecution. Savino v. City of New York, 331 F.3d 63, 72 (2d Cir. 2003). In malicious prosecution cases, probable cause constitutes "such facts and circumstances as would lead a reasonably prudent person to believe the plaintiff guilty." Boyd v. City of New York, 336 F.3d 72, 76 (2d Cir. 2003). If a grand jury returned an indictment for the charges made the subject of litigation, the court will presume the existence of probable cause. Savino, 331 F.3d at 72. Here, because Zahrey was indicted by a federal grand jury, the burden of proof shifts to Zahrey to respond with specific evidence that, taken in the light most favorable to him, rebuts the presumption of probable cause for his arrest and prosecution. See id. A plaintiff can rebut this presumption by presenting evidence sufficient for a reasonable jury to find "that the indictment was procured by fraud, perjury, the suppression of evidence or other police conduct undertaken in bad faith." McClellan v. Smith, 439 F.3d 137, 145 (2d Cir. 2006) (quoting Colon v. City of New York, 455 N.E.2d 1248, 1251 (N.Y. 1983)); Savino 331 F.3d at 73. "The burden of rebutting the presumption of probable cause requires the plaintiff to establish what occurred in the grand jury, and to further establish that those circumstances warrant a finding of misconduct sufficient to erode the `premise that the Grand Jury acts judicially.'" Rothstein, 373 F.3d at 284 (quoting Colon, 455 N.E.2d at 1250)). Zahrey must introduce "evidence establishing that the police witnesses have not made a complete and full statement of facts either to the Grand Jury or to the District Attorney, that they have misrepresented or falsified evidence, that they have withheld evidence or otherwise acted in bad faith." Colon, 455 N.E.2d at 1250-51.
The Second Circuit, in Russo, held in dicta that the presumption created by the indictment "is inapplicable . . . [where] the warrant is issued by a judge on the basis of the sworn accusations of the defendant in the malicious prosecution action." Russo v. New York, 672 F.2d 1014, 1018 (2d Cir. 1982). However, in Rothstein, the Court later qualifiedRusso. See Rothstein, 373 F.3d at 285 (Russo "did not involve a grand jury's indictment. Rather, the defendant there sought to ascribe presumptive effect to the issuance of an arrest warrant. We held, based on New York law, that the presumption is inapplicable where the warrant was issued based on the statements of the defendant in the malicious prosecution action. In this case, it cannot be said that the indictment was based on Carriere's testimony in the grand jury, let alone solely on that testimony. . . . Thus, Russo provides no reason to find the presumption inapplicable in this case." (citations omitted)). This case is like Rothstein, in that the grand jury proceeding obtaining the indictment and subsequent warrant did not rest solely on defendant police officer testimony. Rather, Sidney Quick, Lisa Rivera, and Maria Montanez made up a substantial part of the evidence introduced against Zahrey. Therefore, the court will follow Rothstein, rather than Russo, and the indictment presumption still applies. See Winn v. McQuillan, 403 F. Supp. 2d 292, 293 (S.D.N.Y. 2005).
In the alternative, the presumption "can be overcome by a showing by claimant that the conduct of the police deviated so egregiously from acceptable police activity as to demonstrate an intentional or reckless disregard for proper procedures." Hill v. Melvin, No. 05 Civ. 6645 (AJP), 2006 U.S. Dist. LEXIS 43006, at *54 (S.D.N.Y. June 27, 2006) (quoting Williams v. City of New York, No. 02 Civ. 3693 (CBM), 2003 U.S. Dist. LEXIS 19078, at *17-18 (S.D.N.Y. Oct. 23, 2003),aff'd, 120 F. App'x 388 (2d Cir. 2005)); see also Harris v. State, 756 N.Y.S.2d 302, 303 (N.Y.App.Div. 2003).
A plaintiff must provide concrete evidence to rebut the presumption, and may not rely on "mere `conjecture' and `surmise' that his indictment was procured as a result of conduct undertaken by the defendants in bad faith." Savino, 331 F.3d at 73 (quoting Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991)). "After a grand jury indictment, the case law for malicious prosecution sets a higher standard, which cannot be met by speculation or self-serving statements." Hill, 2006 U.S. Dist. LEXIS 43006, at *60.
Zahrey claims that Defendants acted in bad faith by coercing and inducing witnesses to obtain false testimony and withholding or concealing exculpatory evidence. Defendants contend that Zahrey has not satisfied his burden. If Zahrey's evidence were to suffice, Defendants argue, most other failed criminal investigations would result in malicious prosecution liability. See Gisondi v. Town of Harrison, 528 N.E.2d 157, 160 (N.Y. 1988).
The court addresses each of Zahrey's contentions separately below.
i. Alleged Coercion of Sidney Quick
According to Zahrey, Defendants coerced and induced an unreliable felon and drug-user, Sidney Quick, into implicating Zahrey. Zahrey alleges that Defendants, knowing that Quick was unreliable, and had been coerced and induced, nevertheless relied almost exclusively upon Quick's testimony to indict Zahrey. Zahrey insists that Defendants knew or in the exercise of diligent investigation should have known the extent of Quick's criminal background in addition to his history of drug abuse and lying to law enforcement and other authorities in order to obtain leniency.
Quick's criminal record reflects repeated convictions, beginning when Quick was 16, for crimes, often violent, including grand and petit larceny, robbery, attempted robbery, and criminal possession of a weapon. Pl.'s Exs. Q, S, U, W.
Quick has a history of smoking marijuana at age 9, sniffing heroin at age 14, free basing cocaine daily at age 18, and, more recently, frequent use of crack-cocaine. Pl.'s Ex. R; Pl.'s Ex. L at 1590-93; Pl.'s Ex. EE at ¶ 67, 72-73, 75, 77.
For example, Quick testified that, in order to obtain a transfer out of Rikers Island, he once pretended to suffer from schizophrenia and suicidal tendencies, cut his wrists, acted "crazy," and lied to psychiatrists. Pl.'s Ex. H 351-53. Zahrey also faults Defendants for failing to conduct "background interviews" and failing to "obtain his court, prosecution, drug rehabilitation, probation, parole, prison or employment records." See Pl.'s Ex. C at 397-98; Pl.'s Ex. B at 417; Pl.'s Ex. L at 3011-15.
A careful review of the evidence, drawing all reasonable inferences in Zahrey's favor, indicates that a reasonable jury could find that Defendants acted in bad faith in obtaining and using Quick's testimony; consequently, the court DENIES Defendants' motion for summary judgment on this point.
First, IAB detectives appear to have suggested or encouraged Quick to give them information specifically on Zahrey, before Quick recounted Zahrey's alleged criminal behaviors, rather than waiting for Quick to come forth with information. Second, there is evidence that could reasonably be read to imply that Defendants sought to pressure Quick for information about Zahrey, and particularly that Defendants' intentionally chose to question Quick after he was arrested and outside the presence of his attorney. Pl.'s Ex. H at 810-11, 826, 837-42. Third, and critically, there is also evidence that IAB detectives' interrogation techniques were leading, suggestive, and could reasonably be interpreted by a jury to offer inducements for the desired testimony. Zahrey has also presented evidence that the detectives found or in the exercise of reasonable diligence would have found Quick's stories to be at best of questionable veracity. Additionally, Zahrey has introduced evidence that Quick changed his story over time throughout his repeated interviews: See See
Zahrey has presented evidence that, in approaching Quick for information, Boyce specifically told Quick that he was from IAB and was investigating Zahrey for giving information on drug spots to Rivera and Ingram. Pl.'s Ex. I at 323-24; Pl.'s Ex. H at 820-22, 893; Pl.'s Ex. L at 1635. Quick testified that he understood that the IAB detectives wanted information on Zahrey. Pl.'s Ex. Y at 19, 27-28 (Quick "underst[ood] that Sergeant Boyce was investigating Mr. Zahrey for, among other things, giving information about drug spots"), 129-31. In his first meeting with Quick, Boyce discussed "court consideration" regarding Quick's open robbery and parole violation matters if Quick could provide information on Zahrey. Pl.'s Ex. H 823-24; Pl.'s Ex. Y at 27-28 (Quick agreed that it was "fair to say that one of the reasons that [he] gave him that information was because [he] thought that it might result in [him] getting a lower sentence").
During an interview in Sing Sing Prison, Quick communicated to IAB detectives that he was very interested in transfer to a lower-security prison or release. See Def.'s Ex. 15 at 13, 27 ("I wanna go[] home so bad . . . I'll tell you [everything] I know `cause I wanna go home"). The detectives repeatedly told Quick what they wanted from him, and, made statements that could imply an exchange. Def's Ex. 15 at 30 ("then you can put Zack as part of . . . that murder . . . you would get a very, very, very sweet deal. You understand what I'm saying."), 45 ("If you give me Zack I'll drive you home."), 48 ("If you tell me Zack was there when [Guadalupe] was killed, he's f***ed and, and you are looking at a very sweet deal."), 50 ("You ain't nailing [Zahrey] to the cross, brotha"), 55 ("Boyce: You understand what I need from you? Quick: Yeah, I know but, uh . . . Boyce: I need for you to give . . . if you give . . . Quick: Solid s**t."), 57 ("You ain't told me nothin'! . . . The best thing you told me . . . he threw the gun. That's the best you could do for me . . . so far"), 66 ("[Zahrey] is my problem. You understand that?"), 69 ("I can't go back down there and [say] he's got a little . . . itty bitty information but he's got nothin' I can, we can nail Zack with. The deal is Zack. That's what your deal is. You understand that?"), 70 ("Boyce: . . . you don't wanna admit to anything until you have something down on paper, fine. Just say, I've got first hand knowledge and I can do that. Quick: Well, there it is. Boyce: That's what? Quick: The answer. Boyce: Then you've got first hand knowledge. That Zack was involved in that? . . . Boyce: Then fine. Quick: Zack was there, man. I'm tellin' you Zack was there."), 75 (Zahrey is "our real main interest here."), 118 (Boyce and McWilliams promised to speak to the district attorney to "cut a deal" if Quick had "first hand information" about Zahrey and could get "more" information), 122 ("I'm gonna talk about relocation as well. That's a possibility. Give you a bunch of money and drop you some place.").
While discussing the Guadalupe murder in particular, because Quick was a suspect, Quick conveyed his fear of being prosecuted for the murder. Def.'s Ex. 15 at 29-30, 70 (he was afraid that detectives were "walkin' around showin' [his] picture"), 74. Although the detectives did notMirandize Quick before the Sing Sing interview, see Def.'s Ex. 6, they later threatened to use the information from the interview to prosecute Quick if he did not testify against Zahrey. Pl.'s Ex. Y at 92, 97-101, 105-07.
Boyce testified that "had his doubts about" aspects of Quick's story and questioned whether Quick was telling the truth. Pl.'s Ex. I at 597, 600-01, 620, 635, 643. Quick was a suspect in the Guadalupe homicide. Def.'s Ex. 6. The detectives were aware of this fact, and used it to their advantage in questioning Quick regarding Zahrey. Pl.'s Ex. I at 606-07; Pl.'s Ex. L at 3025; Def.'s Ex. 15 at 63 (Boyce told Quick: "You think nobody called in and your name wasn't mentioned, you never came up in [the Guadalupe] case? . . . Your name was all over that f***in' case. All over it!"). ADA Corrigan testified that Quick was the only witness that she was aware of with personal knowledge regarding Zahrey's alleged crimes. Pl.'s Ex. B at 780.
Compare Pl.'s Ex. L at 2933, and Def.'s Ex. 6 (Quick, Supreme, Ingram, and Sandoval followed Quinones from his store to his home), with Pl.'s Ex. C at 373, and Def.'s Ex. 6 (Quick and others met at a basketball court and then went to Quinones's home to wait for him there).
Compare Pl.'s Ex. 6 (Zahrey only provided information about Quinones), and Def.'s Ex. 15 at 51 (Zahrey not present), with Pl.'s Ex. C at 374, and Def.'s Ex. 6 (Zahrey was a lookout during the robbery and waited in a black Porsche).
Def.'s Ex. 6; Pl.'s Ex. C at 328.
Quick first stated that he stole a "Mack 10 or 11 machine gun," but later claimed he instead stole a .380 caliber handgun. See Def.'s Ex. 6.
Further, it does not appear that IAB detectives or prosecutors could corroborate several of Quick's described criminal incidents, see Pl.'s Ex. L at 3101; Pl.'s Ex. C at 318, or any of Quick's contentions that Zahrey was present at any crime. See Pl.'s Ex. I at 612-13; Pl.'s Ex. B at 996; Pl.'s Ex. C at 374, 377; Pl.'s Ex. H at 844-46; see also Richards v. City of New York, No. 97 Civ. 7990 (MBM), 2003 U.S. Dist. LEXIS 8037, at *55 (S.D.N.Y. May 6, 2003) (refusing to grant defendants summary judgment when "[b]oth Richards' arrest and her prosecution were predicated on the children's statements inculpating her. Indeed, at the time Richards was arrested and charged with O'Connor's murder, there was no forensic evidence directly supporting the theory that Richards shot O'Connor."). Nevertheless, Quick was the star witness in the Zahrey prosecution, after the IAB detectives passed on the Quick evidence to KCDAO and USAO for indictment and prosecution. See Richardson v. City of New York, No. 02 CV 3651 (JG), 2006 U.S. Dist. LEXIS 69577, at *20-21 (E.D.N.Y. Sept. 27, 2006).
Quick's stories varied somewhat from eye-witness reports. However, conflicting eye-witness reports do not necessarily indicate bad faith. See Gil v. County of Suffolk, No. CV 06-1683 (LDW) (ARL), 2008 U.S. Dist. LEXIS 90813, at *21 (E.D.N.Y. Nov. 6, 2008); Ramashwar v. Espinoza, No. 05 Civ. 2021 (AJP), 2006 U.S. Dist. LEXIS 130, at *29-32 (S.D.N.Y. Jan. 5, 2006); Colon v. City of New York, 455 N.E.2d 1248, 1251 (N.Y. 1983). In addition, "discrepancies between the plaintiff's appearance and the descriptions of the perpetrator are insufficient to overcome the presumption" created by the indictment. Carthens v. City of New York, 562 N.Y.S.2d 534, 535 (N.Y.App.Div. 1990) (citing Gisondi v. Town of Harrison, 528 N.E.2d 157, 160 (N.Y. 1988)).
Officers Amundson and Kelly Wirth both testified that, without Quick, the prosecution would not have had a case against Zahrey. Pl.'s Ex. C at 419; Pl.'s Ex. N at 43-44. Wirth had joined in the IAB investigation in May 1995.
Moreover, Zahrey has presented evidence to indicate that Quick may have repeatedly lied to police, prosecutors, and the grand jury. Prior to Zahrey's acquittal, Quick admitted to Wirth and Corrigan that he had simply "picked a figure" and exaggerated the amount of money that Zahrey had allegedly received from the robberies. Pl.'s Ex. B at 111-12. Quick additionally admitted to Corrigan that he lied about using drugs with Zahrey. Pl.'s Ex. B at 428-29. Although Quick, during the Sing Sing interview, accused Zahrey of disposing of the gun used to kill Guadalupe, Quick later testified that he made the story up. Pl.'s Ex. Y at 50 ("if I helped them out, they helped me out. . . . [the story that Zahrey tossed the gun] wasn't true, but I just went along with the questions that I was answering"), 131 (all Quick had to do was "lie, just put [Zahrey] there"), 135. According to Quick's wife, Mercedes, Quick confessed to her that he in fact shot Guadalupe. Pl.'s Ex. JJ. In July 22, 1996, prior to Zahrey's indictment, Quick appeared to recant his story and told Coffey, Wirth, and Corrigan that "everything that [Quick] had said previously was made up." Pl.'s Ex. Y at 91-92. But after IAB officers and Corrigan told Quick that they would attempt to get him transferred to a more desirable facility, that they would arrange for a reduction in Quick's then-current sentence, that they would appeal to state parole authorities on Quick's behalf, and that they would prosecute Quick if he did not cooperate, Quick decided to sign the federal cooperation agreement and testify against Zahrey. Pl.'s Ex. BBB at 59817-19; Pl.'s Ex. B at 894-97; Pl.'s Ex. C at 362-63; Pl.'s Ex. CCC; Pl.'s Ex. Y at 92, 97-101, 105-07.
Although the fact that a witness perjured himself before the grand jury is not normally enough to show bad faith on the part of Defendants, see Jenkins v. City of New York, No. 98 Civ. 7170 (JGK) (DFE), 1999 U.S. Dist. LEXIS 15353, at *24 (S.D.N.Y. Sept. 29, 1999), aff'd, No. 99-9304, 2000 U.S. App. LEXIS 12551 (2d Cir. June 6, 2000), a plaintiff can survive summary judgment on bad faith if he can proffer evidence that this alleged perjury was in some part "attributable to the police." Id. "[M]ere allegations that defendants used interviewing techniques that were in some sense improper . . . without more, cannot serve as the basis for a claim under [section] 1983." Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (en banc). However, Defendants can be liable if they "used investigative techniques that were so coercive and abusive that they knew or should have known that those techniques would yield false information." Id.
The foregoing evidence is consistent with other malicious prosecution cases in this circuit finding a triable issue of fact as to witness coercion. See Blake v. Race, 487 F. Supp. 2d 187, 195, 209 (E.D.N.Y. 2007) (denying summary judgment to defendant police officers, as "Garner testified that he told [Officer] Race that he did not know who did it. Garner also testified that Race first mentioned Blake. Race allegedly proceeded to describe the details of the crime, or, according to Garner, `paint[] a picture' for Garner. . . . According to Garner, Race then told Garner how the police had helped him with Garner's case, and Race then instructed Garner to help them charge Blake. Garner stated that Race threatened to charge him if he did not help them. Garner understood that Race wanted him to repeat the details regarding Blake's alleged involvement in the Denny/Felix Homicides." (citations omitted)); Manganiello, 2008 U.S. Dist. LEXIS 44765, at *17-18, *21 (finding sufficient evidence that witness Booth "may have been coerced": "Agostini testified that if Booth had not told him anything about Plaintiff during their interview, Agostini would have made `inquiries' about the gambling slips that he found in Booth's pocket. Agostini did not `think' he made any inquiries, once Booth told Agostini what he wanted, i.e., that Plaintiff had asked him if he had a `rod' (gun)")); Richards, 2003 U.S. Dist. LEXIS 8037, at *54-55 ("Wydeia has offered a sworn statement that the police `made' her implicate her mother. On its own, this bald assertion by a minor carries little weight. However, there is also evidence in the record that Detectives McCann and Paul . . . spoke to the children before the audio tape began. At the end of the transcript of her recorded interview, Shanealya told the detectives that there was a man in the apartment on the night of the shooting. When Shanealya stated that she did not know what the man looked like, an officer responded: `Didn't you say what his hair look like?' No explanation has been provided for the officer's reference to a prior conversation. Although it is possible that there was no prior conversation between the detectives and the children, a reasonable juror, with evidence that statements by the children that incriminated their mother were drawn from an incomplete transcript, could discount those statements."). Thus, taking Zahrey's evidence in the light most favorable to him, as the court must, a reasonable jury could conclude that Defendants interrogated and elicited testimony from Quick in bad faith.
Compare Jovanovic v. City of New York, No. 04 CV 8437 (PAC), 2006 U.S. Dist. LEXIS 59165, at *20-22 (S.D.N.Y. Aug. 17, 2006) (holding that the presumption of probable cause was rebutted by evidence of bad faith: "there were reasons to doubt Ruzcek's veracity when she made her statement to police. Not only were her accounts to [Officer] Bonilla inconsistent, but [also] the medical and forensic evidence did not support her allegations. Furthermore, Ruzcek had a history of making false sexual accusations against men, a fact that Bonilla could have discovered with reasonable investigation."), reh'q granted on other grounds, No. 04 CV 8437 (PAC), 2008 U.S. Dist. LEXIS 8974 (S.D.N.Y. Feb. 7, 2008), and Reid v. City of New York, No. 00 Civ. 5164 (RCC) (JCF), 2004 U.S. Dist. LEXIS 5030, at *25-26 (S.D.N.Y. Mar. 29, 2004) ("[d]uring the Grand Jury proceedings, Mr. Cruz testified that he saw Mr. Reid pointing a gun at a Hispanic person, and that Mr. Gonzales was lying on the floor next to the Hispanic person. During the trial, however, Mr. Cruz said that he lied to the Grand Jury after being encouraged by Detective Rafferty to identify Mr. Reid. At trial, Mr. Cruz testified that he was brought into the station to make an identification on the night that Mr. Reid was arrested. Detective Rafferty placed Mr. Reid in a lineup room by himself and asked Mr. Cruz if he would be surprised to be told that Mr. Reid was the shooter. Mr. Cruz contends that Detective Rafferty led him to believe that Mr. Reid was going to admit to shooting Mr. Gonzales, but would claim that he did so in self defense. Mr. Cruz further asserts that Detective Rafferty told him the only way to help Mr. Reid was to claim that he witnessed the shooting and that Mr. Reid shot Mr. Gonzales in self defense. . . . Mr. Cruz's testimony could tend to show that the indictment in this case was obtained on the basis of improper conduct by Detective Rafferty." (citations omitted)), with Brown v. City of New York, 306 F. Supp. 2d 473, 476, 480 (S.D.N.Y. 2004) ("According to Brown, after the line-up, Detective Bavolar . . . allegedly instructed Evans to identify someone as the offender and threatened to charge Evans with the crime if he failed to do so. While reviewing more photographs two weeks later, Evans identified a picture of Brown as the person who had shot Smith. . . . [However,] Brown's allegation of Bavolar's coercive threat to Evans to identify a perpetrator [is not] substantiated by any admissible, non-hearsay evidence of a reliable witness.").
It follows that the presumption of probable cause that results from Zahrey's indictment has been rebutted, and Zahrey has presented summary judgment evidence that Defendants did not have probable cause to initiate the prosecution.
To be precise, although questions of fact may exist as to an informant's credibility, this alone will not defeat probable cause. See Corona v. Lunn, No. 00 Civ. 7330 (GEL), 2002 U.S. Dist. LEXIS 6351, at *19-20 (S.D.N.Y. Apr. 10, 2002), aff'd, 56 F. App'x 20 (2d Cir. 2003). This circuit "has frequently found probable cause to exist even after discounting the informant's testimony because of criminal records or psychiatric problems." Id. at *20 (collecting cases) (citations omitted). However, this does not end the inquiry. The appropriate question for the court is "whether a person of reasonable caution, taking into account the potential questions about [the informant's] veracity, would be warranted" in finding probable cause. Id. at *20-21 (finding probable cause when police "did not merely take [informant's] account at face value, but explicitly questioned [her] in follow-up interviews about her initial denial of any sexual encounter with Corona and other apparent discrepancies in her story. The investigators independently sought to corroborate the essential details of her story by examining prison records . . ., inspecting the premises of the Women's Unit, and interviewing other witnesses. That investigation revealed that [the informant] accurately had described the specific details [of the criminal incident]"). See also Oliveira v. Mayer, 23 F.3d 642, 647-48 (2d Cir. 1994) (a single informant's report of a defendant's criminal activity can establish probable cause "when that information is sufficiently reliable and corroborated." But "a report of a crime alone will not necessarily establish probable cause." (citations omitted));BeVier v. Hucal, 806 F.2d 123, 128 (7th Cir. 1986) ("[r]easonable avenues of investigation must be pursued [to establish probable cause] especially when, as here, it is unclear whether a crime had even taken place."). But see Fulton v. Robinson, 289 F.3d 188, 195 (2d Cir. 2002) (finding ample probable cause as plaintiff "proffered no evidence to suggest that the officers had any reason to doubt [the victim's] veracity."); Bernard v. United States, 25 F.3d 98, 103 (2d Cir. 1994) ("probable cause exists even where it is based upon mistaken information, so long as the arresting officer was reasonable in relying on that information"); Gil v. County of Suffolk, No. CV 06-1683 (LDW) (ARL), 2008 U.S. Dist. LEXIS 90813, at *16 (E.D.N.Y. Nov. 6, 2008) ("even viewed in a light most favorable to Gil, the evidence does not suggest that it was unreasonable for the officers to believe that Short was telling the truth in positively identifying Gil as the robber.").
Quick was the only testifying witness with personal knowledge of those crimes for which Zahrey was indicted. Considered in light of the evidence challenging Quick's credibility, in addition to the evidence of inducement, there is evidence that a person of reasonable caution would not have relied upon Quick to find probable cause.
Thus, to the extent Zahrey claims that Defendants pressured and/or induced Quick to provide evidence and used such evidence in the investigation and prosecution, Zahrey has raised a triable issue of fact in his malicious prosecution claim.
ii. Alleged Bribery and Coercion of Other Witnesses
Zahrey also complains that Defendants bribed and/or coerced witnesses other than Quick to provide false testimony against him. However, Zahrey has not presented the court with more than suggested inferences that such bribery or coercion took place. As such, the court GRANTS the Defendants' motion for summary judgment on this issue.
Zahrey states that "[i]t may be inferred that the defendants induced [Lisa Rivera, a] heroin addict[,] to change her story by repeatedly meeting with her and promising her valuable personal benefits." Pl.'s Rule 56.1 Stmt. ¶ 426. However, Zahrey presents no hard facts and offers the court no more than a "surmise" or "conjecture" as to the alleged coercion or bribery of Lisa Rivera. See Savino v. City of New York 331 F.3d 63, 73 (2d Cir. 2003). Specifically, the evidence before the court only demonstrates that Lisa Rivera had a history a drug abuse and criminal behavior, see Pl.'s Ex. L 297-98, 304, 316, 317-18, 329, and that her statements to police varied from her grand jury testimony. Even if Zahrey could somehow show that Lisa Rivera committed perjury, again, the fact that a witness perjured herself before the grand jury will not suffice to show bad faith on the part of Defendants. See Jenkins v. City of New York, No. 98 Civ. 7170, 1999 U.S. Dist. LEXIS 15353, at *24 (S.D.N.Y. Sept. 29, 1999), aff'd, No. 99-9304, 2000 U.S. App. LEXIS 12551 (2d Cir. June 6, 2000). Unlike the case of police questioning of Quick, Zahrey has provided the court with no evidence from which a reasonable jury could infer that this possible perjury was in some part "attributable to the police." Id.; see also United States v. Bortnovsky, 879 F.2d 30, 33 (2d Cir. 1989) ("[p]resentation of a witness who recants or contradicts his prior testimony is not to be confused with [eliciting] perjury." (quotingUnited States v. Holladay, 566 F.2d 1018, 1019 (5th Cir. 1978) (per curiam))).
Zahrey argues that Defendants obtained this testimony through coercion and bribery, as Lisa awaited sentencing on two felony convictions, was in drug rehabilitation, and feared losing custody of her children. Shortly after her testimony, she moved into a new residence several months early and KCDAO and NYPD contributed to her security deposit, rent, living expenses, and her mother's airfare to Puerto Rico. Her drug convictions were reduced to misdemeanors and she served no prison time.
In earlier interviews with police, Lisa Rivera insisted that Zahrey was "straight." Pl.'s Ex. RR; Pl.'s Ex. C at 498. In contrast, Lisa Rivera testified before the grand jury that Zahrey had received money from the armored car robbery. Pl.'s Ex. ZZ at 38.
Zahrey also suggests that Defendants bribed Lisa Rivera to have her mother, Maria Montanez, "miraculous[ly]" testify to corroborate Lisa's story that Supreme and his gang were involved in the armored car heist. Pl.'s Rule 56.1 Stmt. ¶¶ 365-66. While Wirth interviewed Ms. Montanez — a Spanish-speaker, Lisa Rivera translated — Ms. Montanez told Wirth that Zahrey was present in her apartment while Supreme split up the proceeds from the robbery. Pl.'s Ex. C at 399-400, 527-28. Later, however, Ms. Montanez told Wirth, Corrigan, and McWilliams that in fact no money was split in her apartment, but that she had heard Zahrey state, in English, "[t]hat is easy money, it beats working for a living" and told the others "not to mention his name because he might lose his job." Pl.'s Ex. O. Zahrey appears to find this story incredible, and insinuates that Ms. Montanez's story could only be the result of subornation of perjury either by Lisa Rivera or Defendants. See Pl.'s Rule 56.1 Stmt. ¶ 385 ("Ms. Montanez acknowledged that she was not well and was hoping her daughter would get out of prison and regain custody from Ms. Montanez of her four children."). Just as with Lisa Rivera, however, Zahrey presents the court with no evidence from which a reasonable jury could infer that Defendants played any part in molding Ms. Montanez's testimony.
In addition, Zahrey alleges that police "kidnapped" Eric Sandoval to "coerce his cooperation against" Zahrey. Pl.'s Rule 56.1 Stmt. ¶¶ 184-92. However, constitutional violations are personal in nature, and Zahrey cannot sue on behalf of any alleged constitutional violations committed against Sandoval. See Los Angeles Police Dep't v. United Reporting Publ'g Corp., 528 U.S. 32, 39 (1999); United States v. Raines, 362 U.S. 17, 22 (1960) ("a litigant may only assert his own constitutional rights or immunities"); V.S. v. Muhammad, No. 07-cv-213 (DLI) (JO), 2008 U.S. Dist. LEXIS 77540, at *60 (E.D.N.Y. Sept. 30, 2008). Further, Zahrey has presented no proof that any of Sandoval's statements were in any way used before the grand jury or in his criminal or departmental trials. See Zahrey v. Coffey, 221 F.3d 342, 348 (2d Cir. 2000) ("[t]he manufacture of false evidence, `in and of itself,' . . . does not impair anyone's liberty, and therefore does not impair anyone's constitutional right."); see also Bernard v. County of Suffolk, 356 F.3d 495, 506-07 (2d Cir. 2004) (holding that if a coerced witness never testified against criminal defendant, no violation of the criminal defendant's constitutional rights has occurred). Hence, the alleged treatment of Sandoval is irrelevant for the purposes of this litigation.
Therefore, Defendants' motions for summary judgment are GRANTED as to Zahrey's allegations of bad faith in coercing or bribing witnesses other than Quick.
iii. Alleged Fabrication of Other Evidence
The court also GRANTS the Defendants' motions for summary judgment as to Zahrey's claims that Defendants fabricated evidence other than Quick's testimony.
First, Zahrey claims that police officers on the case "manufactured" evidence in their worksheets, by not recording information both unfavorable and favorable to the investigated officer as required per IAB policy, knowing full well that supervisors and prosecutors would rely on these worksheets in building the case against Zahrey. However, Zahrey has not presented evidence that the challenged omissions resulted from such "egregious[] [deviations] from acceptable police activity as to demonstrate an intentional or reckless disregard for proper procedures."Hill v. Melvin, No. 05 Civ. 6645 (AJP), 2006 U.S. Dist. LEXIS 43006, at *54 (S.D.N.Y. June 27, 2006). Zahrey has only provided the court with testimony as to what IAB superiors like Amundson and Welsome looked for in these worksheets, and indications that perhaps the worksheets created in the Zahrey prosecution did not pass muster. Zahrey's allegations appear to stem from a disconnect between what IAB officers thought relevant to put in the worksheets and what IAB supervisors expected to read in such worksheets. This is not enough to show bad faith. See Gil v. County of Suffolk, No. CV 06-1683 (LDW) (ARL), 2008 U.S. Dist. LEXIS 90813, at *20-21 (E.D.N.Y. Nov. 6, 2008) ("[a]ny alleged failure . . . [to] apply all procedures that could have been followed does not amount to fraud, bad faith or the suppression of evidence and is insufficient to overcome the presumption."); Ramos v. City of New York, 729 N.Y.S.2d 678, 692 (N.Y.App.Div. 2001) ("[t]o whatever extent individual officers failed to follow some leads or failed to accurately take notes evinces only carelessness rather than malice"); Lee v. City of Mount Vernon, 407 N.E.2d 404, 405 (N.Y. 1980) (mem.) ("[w]hile the evidence suggests that not all procedures that could have been followed were followed in fact, it does not establish that the omissions were improper, much less egregious, given the positive identifications and exact description referred to above"). Furthermore, Zahrey has presented no evidence that these worksheets were in any way used before the grand jury or in his criminal or departmental trials. As such, they cannot serve as a basis for relief here. See Coffey, 221 F.3d at 348; Richardson v. City of New York, No. 02 CV 3651 (JG), 2006 U.S. Dist. LEXIS 69577, at *14 (E.D.N.Y. Sept. 27, 2006) ("[a]s the classic example goes, writing a false confession and locking it away in a drawer is no constitutional violation.").
There do appear to be a few inconsistencies between the facts written down in notes and those placed in the eventual worksheet. First, Boyce's worksheet that reports threats against Whalen allegedly made by Zahrey contrast with Boyce's handwritten notes that only indicate that Torres reported that teenagers in the Latin Kings gang threatened Whalen. Pl.'s Ex. I at 118-19, 129, 135-36; Pl.'s Ex. G; Def.'s Ex.6. Second, Wirth's worksheet reflecting his conversations with Lisa Rivera report her describing Zahrey as a "planner and manipulator," that he told her not to "mention [his] name or [his] friendship with [her] brother," and that he would "dissociate himself" from Supreme's gang; but Wirth's notes do not reflect these statements and in fact only record Lisa's statement that "Zahrey was straight" and she "did not see him with Supreme or [his] gang." Pl.'s Ex. O; Pl.'s Ex. RR; Pl.'s Ex. C at 498, 508, 511. Third, Wirth wrote, in his worksheet regarding his interview with Alexander Vasquez, that Vasquez called Zahrey a "planner and manipulator." Pl.'s Ex. O. Again, Wirth's interview notes did not record this statement. See Pl.'s Ex. UU.
Supervisor's testified as to what they "expected" to be included in the worksheets (as opposed to officers' notes). Pl.'s Ex. M at 28-29 (Welsome described what he "expected" in the worksheets); Pl.'s Ex. N at 108 (Amundson testified that he expected officers to include "whatever information [they] obtain[ed]," whether "favorable or unfavorable"). Officers Boyce and Wirth testified that they knew to include all relevant or "significant" information in the worksheets, but seemed to be under the impression that supervisors and prosecutors would look at the complete file, including notes and tapes. Pl.'s Ex. I at 28-29; Pl.'s Ex. C at 36, 59.
Second, Zahrey argues that Boyce's reliance upon Torres in opening up an investigation against Zahrey was unwarranted, given that Torres was "inebriated" during interviews and only reported information from "street sources" or what he "overhear[d]" at bars. Pl.'s Ex. H at 794-98; Pl.'s Ex. I at 59-60, 117-18. Other facts indicate potential problems with Torres's reliability. But Zahrey was never charged with threatening Whalen, nor has Zahrey presented the court with any evidence that Torres's testimony was used against him in his criminal or departmental trials. See Coffey, 221 F.3d at 348.
Finally, Zahrey claims that Little and Ponzi helped manufacture false evidence by creating false polygraph tests of Quick interviews. Wirth testified that he told Coffey, when presenting the Zahrey case to him for federal prosecution, that Quick had "passed" these polygraphs. Pl.'s Ex. C at 143-46. However, polygraphs are of questionable admissibility in court and there is no evidence that the tests were used in Zahrey's prosecution or departmental proceedings. Zahrey has presented no evidence that these polygraphs in any way caused the grand jury to indict him.See Simmons v. N.Y. City Police Dep't, 97 F. App'x 341, 343 (2d Cir. 2004) (plaintiff presented no proof "establishing that the indictment was procured through the use of th[e] allegedly tainted evidence."); Savino v. City of New York, 331 F.3d 63, 73 (2d Cir. 2003). Thus, these tests are irrelevant as to the "bad faith" necessary to rebut the indictment's presumption of probable cause.
See United States v. Fraser, 206 F. App'x 100, 101 n.* (2d Cir. 2006); Richards v. City of New York, No. 97 Civ. 7990 (MBM), 2003 U.S. Dist. LEXIS 8037, at *21-22 (S.D.N.Y. May 6, 2003).
Accordingly, the court GRANTS summary judgment as to Zahrey's claims that Defendants' alleged fabrication of evidence rebuts the presumption of probable cause created by the indictment.
iv. Alleged Lying to and/or Keeping Exculpatory Evidence from Prosecutors and from the Grand Jury
According to Zahrey, Defendants intentionally covered up exculpatory information and lied to prosecutors and to the grand jury, and this behavior also rebuts the presumption of probable cause created by the indictment. The court notes that "[t]he prosecutor has a duty to present, and the police have the duty to supply, `exculpatory evidence to the Grand Jury where such evidence is substantial and where it might reasonably be expected to lead the jury not to indict.'" Celestin v. City of New York, No. 04-CV-3009 (ILG), 2008 U.S. Dist. LEXIS 81112, at *33-34 (E.D.N.Y. Oct. 14, 2008) (quotingUnited States v. Casamento, 887 F.2d 1141, 1183 (2d Cir. 1989) (internal quotation marks omitted)). In addition, police cannot "ignore exculpatory evidence that would void probable cause if taken into account." Id. at *29. However, "[w]hether the conduct complained of is serious enough to constitute fraud, perjury, suppression, or bad faith turns heavily on the factual context of the case." Id. at *34.
First, Zahrey intimates that the tape of the Sing Sing interview with Quick was covered up. He points to the fact that Boyce never vouchered the tape or made a copy for police files, as is consistent with police procedure. Pl.'s Ex. I at 520-21; Pl.'s Ex. C at 231, 234, 827-28. Second, Zahrey argues that the defendants intentionally withheld from Coffey the inconsistent statements of witnesses. See Pl.'s Rule 56.1 Stmt. ¶¶ 526-38, 530. Third, Zahrey claims that the defendants actively and maliciously concealed some of the IAB worksheets from Coffey until after the indictment. See id. ¶ 512. Wirth testified that, at the time of Zahrey's indictment, he "d[id not] think that [Coffey] had every copy of every worksheet." Pl.'s Ex. C at 296-97. Upon further questioning from Zahrey's counsel, Wirth stated that he provided Coffey with "what he was asking for," and had "no memory of what [Coffey] specifically asked for."Id. at 297. Fourth and finally, Zahrey claims that Defendants "lied" to prosecutors by falsely claiming that Zahrey received some of the proceeds from the armored car robbery. See Pl.'s Ex. B at 793-95 (Wirth and Corrigan informed Coffey that his mortgage and other debt, and the timing of his payments of such debt, "tends to connect [Zahrey] to the armored car" robbery); Pl.'s Ex. AA at 854-55. At Zahrey's arraignment, Coffey, on information from Defendants, accused Zahrey of obtaining $12,000 to $15,000 in robbery proceeds to pay off mortgage and other debt. Def.'s Ex. 32 at 7. Wirth also presented Zahrey's bank and mortgage records to the grand jury. Pl.'s Ex. XX. According to Zahrey, his tax records prove that he received the money from a legitimate source.
Zahrey first complains that Defendants did not present the grand jury with Ms. Montanez's statements "exonerating [Zahrey] or any other impeachment information." Pl.'s Rule 56.1 Stmt. ¶ 424; see also Pl.'s Ex. YY (Ms. Montanez's testimony before the grand jury). For example, Zahrey refers to conflicting statements made by Lisa Rivera that the armored car proceeds were split up in Supreme's apartment, rather than Ms. Montanez's apartment, as she testified. See Pl.'s Rule 56.1 Stmt. ¶ 373 (citing Pl.'s Ex. O). He also points to an inconsistency, in that Ms. Montanez "made some mention" in one of her three interviews, inconsistent with her other two interviews with police, that she had in fact had no knowledge that Zahrey was involved in the armored car robbery. Pl.'s Ex. C at 541.
Zahrey additionally takes issue with Wirth's testimony before the grand jury that Quick's statements "corresponded" to police reports on the crimes Quick described. Pl.'s Ex. XX at 6-7, 9-10, 11-12. As to the Quinones robbery, Wirth testified that "the only difference was whether or not there were drugs." Pl.'s Ex. XX at 6-7, 9-10. Zahrey points out that Quick's stories conflicted with accounts of victims and other eye-witnesses. Wirth also did not present the grand jury with any of Quick's inconsistent statements, with information regarding the detectives' "improper" questioning techniques, with Zahrey's alleged alibi information for the Guadalupe homicide, or with the fact that "the defendants had fully investigated [Zahrey's] financial and other activities and had developed no evidence he had suspicious telephone or personal contact with any of his alleged co-conspirators or had received or spent any funds derived from unlawful activities." See Pl.'s Rule 56.1 Stmt. ¶¶ 493-97, 499.
See, e.g., id. at *35 (holding that "[n]one of the evidence allegedly withheld from ADA Ridges was substantial enough to rebut the presumption of probable cause. If the police did not inform ADA Ridges of the differences between Celestin's description and the suspect's description, Officer Padilla's observations of Celestin in the hospital, or the uncorroborated hospital entrance log, the failure to do so would not warrant a finding of fraud, perjury, suppression, or bad faith. The plaintiff has not proffered evidence from which even an inference can be drawn that Officer Padilla fabricated his story and identified him fraudulently."); Richards, 2003 U.S. Dist. LEXIS 8037, at *50-53 (finding the presumption rebutted when officers withheld conflicting eyewitness statements about the murderer's identity and a statement by the leading eyewitness that someone else committed the crime); Williams v. City of New York, No. 02 Civ. 3693(CBM), 2003 U.S. Dist. LEXIS 19078, at *19, *22 (S.D.N.Y. Oct. 23, 2003) (holding that "the possibility that [the police officer] did not tell the Grand Jury about victim's potential possession of a razor blade and that officers at the scene did not identify Williams in a photo display falls short of the required showing of fraud, perjury, or bad faith"; "Unlike eyewitness testimony that someone else had committed the crime, the information here does not negate the possibility that plaintiff had in fact stabbed O'Hern"), aff'd, 120 F. App'x 388 (2d Cir. 2005); Gisondi v. Town of Harrison, 528 N.E.2d 157, 160 (N.Y. 1988) (holding that the police's failure to investigate the defendant's solid alibi or to disclose to the grand jury that he differed greatly from some aspects of the suspect's description did not suffice: "There may be extraordinary cases in which particular discrepancies are so substantive that failure to disclose them would be comparable to fraud or perjury. For instance, if the police knew that a person identified as a rapist by the victim was in fact in custody in the police station at the time of the rape, they could not withhold that evidence from the court with impunity. But there are no such discrepancies in this case. On the contrary, the discrepancies which the police `failed' to disclose here are not at all unusual, nor was it unusual or improper for them to do so. If the failure to disclose this type of discrepancy were held to constitute withholding of evidence, virtually every failed prosecution in which the police applied for an arrest warrant or testified at a felony hearing without noting every discrepancy revealed during the investigation, would give rise to suit and trial for false arrest and imprisonment or malicious prosecution").
A prosecutor is under no obligation to "present every item of arguably exculpatory evidence in seeking an indictment." Savino, 331 F.3d at 75;Richards, 2003 U.S. Dist. LEXIS 8037, at *44 ("the government has no constitutional obligation to present exculpatory material to a grand jury"), *49 ("[i]n any investigation the police are likely to encounter discrepancies, particularly in cases involving eyewitness identification. These matters may impair their ability to prove guilt beyond a reasonable doubt at trial, but they generally have little bearing at preliminary stages where the only relevant concern is whether there is sufficient evidence to show probable cause to believe the defendant committed the crime." (quoting Gisondi, 528 N.E.2d at 160));People v. Mitchell, 626 N.E.2d 630, 633 (N.Y. 1993) ("[t]he People maintain broad discretion in presenting their case to the Grand Jury and need not seek evidence favorable to the defendant or present all of their evidence tending to exculpate the accused." (citation omitted)); Gisondi, 528 N.E.2d at 160 ("the police and prosecutors cannot be said to have improperly concealed evidence every time the plaintiff is able to show that they could have done more or could have disclosed more. What is required is proof that the police conduct deviated egregiously from statutory requirements or accepted practices applicable in criminal cases").
In any event, "[a] decision not to present arguably exculpatory evidence does not amount to conduct undertaken in bad faith." Sargent v. County of Nassau, No. 04-4274 (DRH) (AKT), 2007 U.S. Dist. LEXIS 17474, at *26 (E.D.N.Y. Mar. 13, 2007) (citing Savino, 331 F.3d at 75 (footnote omitted)). Accordingly, Zahrey has not presented the court with anything more than "conjecture" that Defendants knowingly told untruths or withheld evidence. See Savino, 331 F.3d at 74 (granting summary judgment for defendant as plaintiff "presented no evidence that this information was intentionally withheld" from prosecutors); see also Husbands v. City of New York, No. 05 Civ. 9252 (NRB), 2007 U.S. Dist. LEXIS 61042, at *28-29 (S.D.N.Y. Aug. 16, 2007) ("[w]ith the benefit of hindsight, there is certainly a basis for doubt as to whether Officer Wong's initial identification of Darryl was mistaken. That, however, is not the correct inquiry for a probable cause determination."). Zahrey has not provided the court with evidence "which establishes that . . . witnesses willfully and corruptly gave false testimony under oath as to a matter material to the issue or point in question." Brogdon v. City of New Rochelle, 200 F. Supp. 2d 411, 422 (S.D.N.Y. 2002) (quoting Scheiner v. Wallace, No. 93 Civ. 0062 (RWS), 1996 U.S. Dist. LEXIS 16315, at *23 (S.D.N.Y. Oct. 31, 1996)). "Conclusory" allegations that a police officer perjured himself before the grand jury is insufficient to rebut the strong presumption of probable cause created by the indictment. Id.
The most Zahrey has presented the court is evidence of mistake of fact or possible negligence. Malicious prosecution cases from this circuit differentiate between circumstances where plaintiffs "merely suggest[] that the police could have found more evidence to support their case or that a specific piece of evidence relied on by the police would not have survived closer scrutiny" and when a plaintiff "offer[s] proof that defendants had evidence in their possession . . . that negated probable cause." Richards, 2003 U.S. Dist. LEXIS 8037, at *54-57 (collecting cases). This case falls under the former scenario. Because mere negligence cannot sustain a cause of action for malicious prosecution, see Williams, 2003 U.S. Dist. LEXIS 19078, at *23; Savino, 331 F.3d at 74, especially given the existence of the indictment, the court GRANTS the Defendants' motion for summary judgment on this issue.
Compare Savino, 331 F.3d at 74 ("even if other officers were aware that Sergeant Brooks had observed Savino continuously while he was alone in the room and that she did not see him take the ring, Savino has presented no evidence that this information was intentionally withheld from ADA Sullivan" (emphasis in original)), 75 ("even if we assume for the sake of argument that Sergeant Brooks was watching the bag the entire time Savino was alone in the room and that ADA Sullivan was made aware of her observations, his decision not to present this information to the grand jury would not amount to . . . bad faith"), and Gonzalez v. City of New York, No. 02 Civ. 4055 (BSJ) (KNF), 2005 U.S. Dist. LEXIS 20645, at *23-24 (S.D.N.Y. Sept. 16, 2005) ("Gonzalez contends that D'Alessandro misled ADA Bristol-Paolella by not providing her access to the surveillance videotape. However, the only evidence Gonzalez offers in support of that contention is the deposition testimony of ADA Bristol-Paolella, who said that she could not remember when she had first seen the videotape, and the deposition testimony of D'Alessandro, who said that he did not follow the usual procedures for storing and recording the existence of the videotape. Without more, this does not demonstrate that ADA Bristol-Paolella was unaware of the contents of the surveillance videotape before she presented Gonzalez's case to the grand jury. More significantly, Gonzalez presents no evidence that ADA Bristol-Paolella would have chosen not to prosecute Gonzalez had she been aware of the surveillance videotape's contents. Indeed, ADA Bristol-Paolella continued to prosecute Gonzalez for seven months . . . after she had gained access to the videotape."), with Boyd v. City of New York, 336 F.3d 72, 77 (2d Cir. 2003) ("Boyd was arrested in his apartment before uttering the incriminating statement [so] there is sufficient evidence to support the inference that the indictment was secured by bad faith conduct on the part of the police. . . . Detectives . . . testified repeatedly that they did not arrest Boyd until he was outside, and until after he had made the incriminating [] statement. However, the [police worksheet] indicates that the arrest location was [inside Boyd's building]. Additionally, Boyd has testified consistently that he was arrested inside his apartment, before giving his incriminating answer. [Hence,] we move beyond a simple conflict of stories or mistaken memories, and into the possibility that the police knew where they arrested Boyd, but lied in order to secure an indictment" (citation omitted)), and Stewart v. City of New York, 06 Civ. 15490 (RMB) (FM), 2008 U.S. Dist. LEXIS 30632, at *24-25 (S.D.N.Y. Apr. 8, 2008) ("Stewart contends that he played no role in the drug transaction, a position that stands in stark contrast to UC 3583s testimony that Stewart not only vouched for him, but also acted as a lookout. While the tape recorded conversation casts considerable doubt on Stewart's suggestion that he was not a voucher, a jury could conceivably conclude that Stewart's undisputed statements did not rise to the level necessary for him to become a party to any drug deal. Similarly, if a jury chooses to credit Stewart rather than UC 3583, it could find that UC 3583 lied when he told the district attorney's office and the grand jury that Stewart acted as a lookout." (emphasis in original)), and Sutton v. Duquid, No. 05-CV-1215 (JFB) (JMA), 2007 U.S. Dist. LEXIS 35853, at *34-35 (E.D.N.Y. May 16, 2007) ("[t]hough Detective Duguid's later inability to recall whether he had announced himself is not itself necessarily indicative of plaintiff's argument that Detective Duguid perjured himself before the grand jury, there is a disputed issue of fact . . . as to whether Detective Duguid did in fact announce himself and thus, whether the grand jury testimony was truthful. If plaintiff's version of the events is taken as true — that is, that Detective Duguid did not announce himself as an officer, but told the grand jury that he did — a jury could reasonably conclude that the indictment was secured through bad faith or perjury"), and Richards, 2003 U.S. Dist. LEXIS 8037, at *52-53 ("based on Greco's memo book, it is apparent that Wydeia told her grandmother soon after the shooting that someone besides Richards killed O'Connor. That salient fact . . . `might have affected the results' of the probable cause determination. Faced with Wydeia's statement exculpating Richards . . . a reasonable juror could conclude that defendants lacked probable cause to . . . prosecute Richards." (citation omitted)).
v. Alleged Failure to Investigate Exculpatory Evidence
The court likewise GRANTS the Defendants' motion for summary judgment as to Zahrey's claims that Defendants' alleged inadequate investigation rebutted the presumption of probable cause created by the indictment. First, Zahrey faults Defendants for failing to investigate more into the Pigeon Park robbery. Zahrey secondly argues that it was "impossible," under Quick's scenario of the Guadalupe homicide, for Zahrey to have left work at 7:00 pm and been present at the shooting at 7:33 p.m. Pl.'s Rule 56.1 Stmt. ¶ 226. Zahrey complains that this exculpatory "fact" was not sufficiently investigated and prioritized in the case against him. Thirdly, Zahrey complains that police relied on conflicting accounts from Lisa Rivera and her mother Maria Montanez regarding the armored car robbery. Id. ¶¶ 365-85. Finally, Zahrey argues that Defendants failed to adequately investigate Zahrey's financial records. If they had, Zahrey contends, they would have discovered that the $12,500 to $15,000 payments came from his tax refunds and not from robbery proceeds.
Quick claimed that, following the robbery, he and the others went to the apartment of Gladys Moran, but detectives "made no attempt to find [Gladys]." Pl.'s Rule 56.1 Stmt. ¶ 249.
However, it is not the duty of the police or prosecutors in a criminal action to uncover exculpatory facts for the defendant. This is especially true with regard to Zahrey's financial records, of which he had possession and ample opportunity to provide to police and others involved in his prosecution. See Mitchell, 626 N.E.2d at 633 (granting summary judgment when "[d]efendant failed to exercise her right to bring exculpatory evidence to the Grand Jury's attention by her own testimony or that of others testifying on her behalf"). Moreover, Zahrey has presented the court with no evidence that Defendants in fact knew about the monies from his tax return prior to or during his prosecution. Again, the most Zahrey can argue is possible negligence on part of Defendants. See Santiago v. City of Rochester, 796 N.Y.S.2d 811, 812-13 (N.Y.App.Div. 2005) ("[t]here is no cause of action in New York for negligent investigation of a crime."), appeal denied, 837 N.E.2d 734 (N.Y. 2005)); see also Ramashwar v. Espinoza, No. 05 Civ. 2021 (AJP), 2006 U.S. Dist. LEXIS 130, at *35 n. 12 (S.D.N.Y. Jan. 5, 2006). As such, the court GRANTS summary judgment on this issue.
See Gisondi v. Town of Harrison, 528 N.E.2d 157, 160 (N.Y. 1988) ("the police are not obligated to pursue every lead that may yield evidence beneficial to the accused, even though they had knowledge of the lead and the capacity to investigate it."); Gil v. County of Suffolk, No. CV 06-1683 (LDW) (ARL), 2008 U.S. Dist. LEXIS 90813, at *20-21 (E.D.N.Y. Nov. 6, 2008) ("[a]ny alleged failure to conduct further investigation . . . does not amount to fraud, bad faith or the suppression of evidence and is insufficient to overcome the presumption."); Celestin v. City of New York, No. 04-CV-3009 (ILG), 2008 U.S. Dist. LEXIS 81112, at *29-30 (E.D.N.Y. Oct. 14, 2008) ("once the evidence establishes probable cause, an officer is not required to continue investigating, sifting and weighing information, nor is an officer obligated to investigate the suspect's plausible claims of innocence. It is not the role of police officers `to sit as prosecutor, judge, or jury. Their function is to apprehend those suspected of wrongdoing'" (quoting McDermott v. City of New York, No. 94 CV 2145, 1995 WL 347041, at *4 (E.D.N.Y. May 30, 1995) (internal citations omitted))); see also Ricciuti v. N.Y. City Transit Auth., 124 F.3d 123, 128 (2d Cir. 1997) ("[o]nce a police officer has a reasonable basis for believing there is probable cause, he is not required to explore and eliminate every theoretically plausible claim of innocence before making an arrest."); Krause v. Bennett, 887 F.2d 362, 372 (2d Cir. 1989) ("[i]t would be unreasonable and impractical to require that every innocent explanation for activity that suggests criminal behavior be proved wrong, or even contradicted, before an arrest warrant could be issued with impunity.").
See Savino, 331 F.3d at 73 (finding insufficient evidence to survive summary judgment, as plaintiff "adduced no evidence, circumstantial or otherwise" that police or prosecutors knew the substance of allegedly exculpatory witness testimony prior to trial);Rhodes v. City of Plattsburgh, No. 99-9284, 2000 U.S. App. LEXIS 8848, at *9 (2d Cir. May 3, 2000) ("Rhodes does not introduce evidence (or even allege) that the gun was actually inoperable, much less that the police knew it. . . . Rhodes's claim of malicious prosecution fails."); Martinez v. Golding, 499 F. Supp. 2d 561, 568 (S.D.N.Y. 2007) (granting summary judgment to defendants because "no evidence exists that anyone from the New York State Police had knowledge of [alleged exculpatory] information, including defendants").
vi. Wirth's and Boyce's Opinions About the Lack of Probable Cause
Lastly, Zahrey cites to testimony by both Wirth and Boyce that they doubted, at various points in the investigation, the existence of probable cause to arrest or prosecute Zahrey. See Pl.'s Ex. C at 87, 243-44; Pl.'s Ex. I at 553-54. Despite this doubt, the two officers proceeding in investigating and encouraging the prosecution of Zahrey.
The court does not find these statements after the fact to prove bad faith. First, these statements are of limited relevance to the issue of probable cause, as the grand jury returned an indictment. Again, to rebut the indictment's presumption of probable cause, a plaintiff must present evidence that Defendants "have not made a complete and full statement of facts either to the Grand Jury or to the District Attorney, that they have misrepresented or falsified evidence, that they have withheld evidence or otherwise acted in bad faith." Rothstein v. Carriere, 373 F.3d 275, 283 (2d Cir. 2004) (quoting Colon v. City of New York, 455 N.E.2d 1248, 1250-51 (N.Y. 1983)). Mere doubt as to the persuasiveness of the evidence does not appear to the court to suffice here. Moreover, as probable cause is an "objective matter," the "subjective" opinions of police officers involved do not raise a fact issue to survive summary judgment. See Singer v. Fulton County Sheriff, 63 F.3d 110, 120 (2d Cir. 1995) ("if the officer . . . had probable cause . . . then we will not examine the officer's underlying motive in arresting and charging the plaintiff"); Simmons v. N.Y. City Police Dep't, 97 F. App'x 341, 343 (2d Cir. 2004) ("Simmons testified that the arresting officer addressed him using racial epithets and told him that the officers would falsify evidence and manipulate line-ups in order to implicate him, this allegation is not, without more, sufficient to raise an inference that the indictment was procured by fraud or bad faith conduct. . . . [P]robable cause is an objective matter that does not depend on the subjective biases of the arresting officer. Simmons has therefore failed to rebut the presumption of probable cause created by his indictment, and the district court correctly granted summary judgment on his malicious prosecution claim." (citing Whren v. United States, 517 U.S. 806, 812-13 (1996) (citation omitted)); Perez v. City of New York, No. 01-CV-5384 (SLT) (MDG), 2006 U.S. Dist. LEXIS 94211, at *35-36 (E.D.N.Y. Dec. 29, 2006); but see McClellan v. Smith, 439 F.3d 137, 146 (2d Cir. 2006) ("[w]here evidence shows that a police officer, knowing that no crime has been committed, presses the prosecution of criminal charges `solely in order to further [the officer's] own personal goals,' a claim of `bad faith' survives summary judgment." (quoting Marshall v. Sullivan, 105 F.3d 47, 55 (2d Cir. 1996))); Cipolla v. County of Rensselaer, 129 F. Supp. 2d 436, 453-54, 455-56 (N.D.N.Y 2001) (denying summary judgment in light of witness affidavits that defendant police officers asked potential witnesses to lie before the grand jury and to file false sexual harassment claims against plaintiff in order to "tarnish" his character).
Summary judgment is therefore GRANTED on this issue.
vii. Conclusion with Regard to Probable Cause
Even viewing the evidence in the light most favorable to Zahrey, there is insufficient evidence that Defendants violated Zahrey's rights by intentionally concealing exculpatory evidence in police reports or covering up the Sing Sing tape to mislead prosecutors, intentionally manufacturing Quick's polygraph tests, or coercing or manipulating Lisa Rivera or Maria Montanez to produce false testimony. See Hill v. Melvin, No. 05 Civ. 6645 (AJP), 2006 U.S. Dist. LEXIS 43006, at *57 (S.D.N.Y. June 27, 2006); Hathaway v. County of Essex, 995 F. Supp. 62, 69 (N.D.N.Y. 1998), aff'd, No. 98-7298, 1999 U.S. App. LEXIS 22308 (2d Cir. Feb. 10, 1999). Rather, Zahrey is piling supposition on supposition, and expecting a jury to make numerous unsubstantiated inferences. Zahrey does not point to evidence that amounts to any more than a "surmise" or "conjecture" in order to create an issue of fact. See Savino, 331 F.3d at 73; see also Carlisle v. City of New York, No. 05 Civ. 6825 (SAS), 2007 U.S. Dist. LEXIS 24695, at *11-12 (S.D.N.Y. Apr. 2, 2007) ("[t]he problem with [plaintiff's theory that police fabricated and planted evidence] is that plaintiff has no evidence to support it — only wishful thinking. [Plaintiff] fails to offer even a scintilla of support for these allegations. . . . Plaintiff's unsupported, conclusory allegation that someone must have planted the evidence because there is no other way it could have gotten into his apartment is not sufficient to defeat a motion for summary judgment."). At the same time, Zahrey has presented sufficient evidence on Defendants' bad faith regarding Quick's questioning and grand jury testimony.
Accordingly, the court DENIES Defendants' motions as to the alleged coercion and/or inducement of Sidney Quick, but otherwise GRANTS Defendants' motions as to the issue of probable cause.
B. Malice
A plaintiff demonstrates evidence of malice, not necessarily by showing "actual spite or hatred," but evidence of "a wrong or improper motive, something other than a desire to see the ends of justice served" will suffice. Lowth v. Town of Cheektowaga, 82 F.3d 563, 573 (2d Cir. 1996) (quoting Nardelli v. Stamberg, 377 N.E.2d 975, 976 (N.Y. 1978)). Where "a jury could find that probable cause for the charges against the plaintiff[] was lacking . . . that finding alone would support an inference of malice." Ricciuti v. N.Y. City Transit Auth., 124 F.3d 123, 131 (2d Cir. 1997). The element of malice can be inferred from the absence of probable cause. Boyd v. City of New York, 336 F.3d 72, 78 (2d Cir. 2003); Haynes v. City of New York, 815 N.Y.S.2d 143, 146 (N.Y.App.Div. 2006); Maxwell v. City of New York, 554 N.Y.S.2d 502, 505 (N.Y.App.Div. 1990). Zahrey primarily relies upon this inference, but additionally argues that the court can infer malice from "improper motives," such as Defendants' desires "to enhance their careers by making a police corruption case" or "to persuade federal authorities to take over an ill-conceived State criminal case they feared they were going to lose." Pl.'s Mem. in Opp. to Def.'s Mot. for Summ. J. 48 (hereinafter "Pl.'s Mem. in Opp.").
Another of the alleged "improper motives" was "to neutralize [Zahrey] as a whistle-blower concerning police corruption at the 72nd Precinct." Id.
An issue of fact as to probable cause results in an issue of fact as to malice. See Boyd, 336 F.3d at 78; Ricciuti, 124 F.3d at 131. Moreover, Zahrey presented additional evidence to indicate that Defendants acted with malice in questioning Quick. See Blake v. Race, 487 F. Supp. 2d 187, 212 (E.D.N.Y. 2007) ("Blake not only proffers circumstantial evidence of malice due to an alleged lack of probable cause, but also argues malice through direct evidence from Garner that one or more of the defendants engaged in intentional misconduct by pressuring Garner to implicate him, and feeding him details of the homicides, even though they did not believe in Blake's guilt."). Accordingly, the court DENIES summary judgment on malice as to the procurement and use of Quick's testimony, but otherwise GRANTS Defendants' motions.
C. Initiation of Proceedings
A malicious prosecution plaintiff additionally must show that defendants "initiated" the prosecution. See Ricciuti, 124 F.3d at 130. Even if a defendant does not formally file the charges, the defendant still "may be held liable" if he "gave information which he knew to be false and so unduly influenced the authorities" or if his "persuasion was the determining factor in inducing the [government's] decision" to prosecute. V.S. v. Muhammad, No. 07-cv-213 (DLI) (JO), 2008 U.S. Dist. LEXIS 77540, at *39 (E.D.N.Y. Sept. 30, 2008) (quoting Whittaker v. Duke, 473 F. Supp. 908, 911 (S.D.N.Y. 1979)). In other words, "it must be shown that defendant played an active role in the prosecution, such as giving advice and encouragement or importuning the authorities to act." Rohman v. N.Y. City Transit Auth., 215 F.3d 208, 217 (2d Cir. 2000). Defendants argue the USAO five-month investigation and decision to prosecute as well as the grand jury indictment cut off their liability. In response, Zahrey argues that Defendants purposefully "deceived, misled, or pressured [USAO and the grand jury] to act." Pl.'s Mem. in Opp. 36.
Zahrey has presented sufficient evidence on this point. Because of Defendants' involvement in seeking the federal prosecution, a reasonable jury could find that Defendants could reasonably foresee that Quick's testimony would result in that federal prosecution and indictment. See Zahrey v. Coffey, 221 F.3d 342, 352 (2d Cir. 2000); White v. Frank, 855 F.2d 956, 962 (2d Cir. 1988). Moreover, it would be reasonable for a jury to conclude that Zahrey's prosecution would not have gone forward in the absence of Quick's testimony.
Defendants actively met with USAO to seek Zahrey's federal indictment and prosecution. Pl.'s Ex. O; Pl.'s Ex. AA 510-11. Coffey testified that he was never informed of the problems with Quick's stories and credibility. See Pl.'s Ex. Z at 141; Pl.'s Ex. AA at 730-33.
See supra note 26.
* * *
In accordance with the foregoing, the court DENIES Defendants' summary judgment motions as to Zahrey's allegations of bad faith, malice, and initiation, insofar as they refer to Defendants' procurement and use of Quick's testimony against Zahrey. Otherwise, Defendants' motions are GRANTED as to Zahrey's remaining federal and state malicious prosecution claims with regard to his criminal prosecution.II. Federal and State Malicious Prosecution Claims as Pertaining to Zahrey's Departmental Trial
Defendants' motions also claim that Zahrey has failed to establish a state or federal claim of malicious prosecution in connection with the NYPD proceedings. Defendants' motions on this issue are GRANTED.
A. Federal Malicious Prosecution
As to this issue, Defendants first argue that the departmental trial, being a civil proceeding, cannot support a federal malicious prosecution claim. Laham v. Safir, No. 98 Civ. 3115 (RCC), 2001 U.S. Dist. LEXIS 18617, at *8-9 (S.D.N.Y. Nov. 14, 2001); see also Washington v. County of Rockland, 373 F.3d 310, 315-17 (2d Cir. 2004); Mistretta v. City of New York, No. 98-Civ.-2589 (ILG), 1999 U.S. Dist. LEXIS 18493, at *22 (E.D.N.Y. Oct. 15, 1999) (citing Easton v. Sundram, 947 F.2d 1011, 1018 (2d Cir. 1991)). Zahrey does not appear to challenge this assertion.
While this circuit will sometimes entertain section 1983 malicious prosecution claims based on civil proceedings, "such claims must . . . be premised on a violation of Fourth Amendment rights." Washington, 373 F.3d at 317. In Washington, the Second Circuit held that a corrections officer's disciplinary proceeding did not implicate these rights, stating that "it is unlikely that a civil proceeding of the kind at issue here would implicate constitutional rights in a manner that would warrant redress under § 1983." Id. Similarly, the departmental disciplinary proceeding in this case did not violate Zahrey's "personal liberty and privacy interests" pursuant to the Fourth Amendment. Id. at 316; accord Laham, 2001 U.S. Dist. LEXIS 18617, at *9-11; Mistretta, 1999 U.S. Dist. LEXIS 18493, at *22. Thus, Zahrey's federal malicious prosecution claim fails and Defendants' motions on this point are GRANTED.
B. State Malicious Prosecution
In a malicious prosecution action arising out of civil proceedings, New York state law still requires, despite some criticism, that a plaintiff prove "special injury," i.e., a "highly substantial and identifiable interference with person, property or business" involving "some concrete harm that is considerably more cumbersome than physical, psychological or financial demands of defending a lawsuit." Engel, 711 N.E.2d at 631. New York courts have also required concreteness and specificity in plaintiffs' cases for special injury. See, e.g., Thryoff v. Nationwide Mut. Ins. Co., No. 05-CV-6607T, 2006 U.S. Dist. LEXIS 71706, at *12 (W.D.N.Y. Sept. 29, 2006) ("severe emotional harm which required both psychological counseling and medication" sufficed to show special injury); Dudick v. Gulyas, 716 N.Y.S.2d 407, 410 (N.Y.App.Div. 2000) (finding that chiropractor's loss of business was special injury resulting from disciplinary action brought by defendant);Strumpf v. Asdourian, No. 110141/06, 2006 N.Y. Misc. LEXIS 3976, at *9-10 (N.Y.Sup.Ct. Dec. 12, 2006) ("`specific, verifiable loss of business' c[an] constitute special injury" (quoting Engel, 711 N.E.2d at 632)); see also Brown v. Brown, 343 F. Supp. 2d 195, 198 (E.D.N.Y. 2004) ("bare allegations of emotional distress, pain, and suffering" do not suffice);Kidder, Peabody Co. v. IAG Int'l Acceptance, Group N.V., No. 94 Civ. 4725 (CSH), 1997 U.S. Dist. LEXIS 12976, at *11 n. 1 (S.D.N.Y. Aug. 27, 1997) (holding that plaintiff must show more than "the potential consequences of an action, as opposed to the actual consequences of an action" (quoting Engel v. CBS, Inc., 961 F. Supp. 660, 664 (S.D.N.Y. 1997)).
See generally Engel v. CBS, Inc., 711 N.E.2d 626, 629-30 (N.Y. 1999).
Such injury may also be demonstrated "through provisional remedies [such] as arrest, attachment, replevin or injunction." Arum v. Miller, 331 F. Supp. 2d 99, 113 (E.D.N.Y. 2004) (citing O'Brien v. Alexander, 101 F.3d 1479, 1484 (2d Cir. 1996)).
It follows that a malicious prosecution plaintiff must show more than mere "injury to reputation" or "defamation of character." Campion Funeral Home, Inc. v. State, 569 N.Y.S.2d 518, 521 (N.Y.App.Div. 1991), appeal denied, 580 N.E.2d 1058 (N.Y. 1991); Drago v. Buonagurio, 402 N.Y.S.2d 250, 251 (N.Y.App.Div. 1978), rev'd on other grounds, 386 N.E.2d 821 (N.Y. 1978) (mem.). However, courts have held that officers suspended without pay and "disgraced in the department and in the community" allege sufficient "special injury."See, e.g., Groat v. Town Bd. of Glenville, 426 N.Y.S.2d 339, 341 (N.Y.App.Div. 1980), appeal dism'd, 50 N.Y.2d 928 (N.Y. 1980); Fulton v. Ingalls, 151 N.Y.S. 130, 132 (N.Y.App.Div. 1914) (citing Matter of Greenebaum v. Bingham, 94 N.E. 853 (N.Y. 1911); Halberstadt v. N.Y. Life Ins. Co., 86 N.E. 801 (N.Y. 1909); People ex rel. Shiels v. Greene, 71 N.E. 777 (N.Y. 1904)), aff'd, 108 N.E. 1094 (N.Y. 1915). But see Howard v. City of New York, 741 N.Y.S.2d 687 (N.Y.App. Div. 2002) (holding that plaintiff corrections officer did not assert special injury when she was the subject of disciplinary proceedings, eventually dropped and allegedly deficiently investigated, charging that she appeared in a pornographic video).
Zahrey suggests that he has suffered special injury consistent with New York case law. He contends that he was "suspended without pay for nearly nine months, was `modified' for three years while his back pay continued to be withheld, was denied the opportunity to earn overtime . . . and suffered severe psychological harm." Pl.'s Mem. in Opp. 65. Zahrey claims to be "disgraced in the department" but he provides no evidence that this is so other than his assertion that he no longer trusts his former colleagues and does not feel comfortable returning to his former job. Moreover, as both parties agree, Zahrey was subsequently given "back pay" salary for his incarceration, and still received "full pay" while on modified assignment. Def.'s Reply Mem. in Supp. of Their Mot. for Summ. J. 27. Defendants also point out that, after being acquitted of departmental charges, Zahrey chose not to return to his position as a detective and has not sought out promotions. Id. Zahrey has offered no other explanations for his choices to stay at the automobile impound lot and to refrain from seeking promotions.
On this showing, Zahrey's assertions are not sufficient to create a material issue of fact. Therefore, the court GRANTS Defendants' motions.
III. Zahrey's Remaining 42 U.S.C. § 1983 Claims Pertaining to His Criminal Prosecution
Zahrey's complaint alleges the following violations of his constitutionally-based rights: (1) pursuant to the Fourth and Fourteenth Amendments, not to be subject to "unreasonable search and seizure" or deprived of his liberty without probable cause; (2) to disclosure of exculpatory evidence pursuant to the Fifth and Fourteenth Amendments as well as Brady v. Maryland, 373 U.S. 83 (1963); (3) pursuant to the Fifth and Fourteenth Amendments, to be free from fabricated or coerced evidence used against him; (4) pursuant to the Fifth and Fourteenth Amendments, to a grand jury indictment; (5) pursuant to the Fifth, Sixth, and Fourteenth Amendments, to a fair trial; and (6) to reasonable bail under the Fifth, Eighth, and Fourteenth Amendments. Zahrey also asserts that Defendants "conspired" to deprive him of the above rights.
After addressing causation, the court will address each of Zahrey's alleged constitutional torts in turn.
A. Causation
A tort claim, of course, makes defendants "responsible for the `natural consequences' of their actions." Higazy v. Templeton, 505 F.3d 161, 175 (2d Cir. 2007) (citing Townes v. City of New York, 176 F.3d 138, 146 (2d Cir. 1999)). Accordingly, as constitutional torts, section 1983 andBivens claims require proof of "proximate" or "legal" causation. Higazy, 505 F.3d at 175; Wray v. City of New York, 490 F.3d 189, 193-94 (2d Cir. 2007). Consequently, here, Defendants may show a break in causation between their actions and the ensuing prosecution by establishing the existence of a superseding cause, that is, "an act of a third person or other force which by its intervention prevents the actor from being liable for harm to another which his antecedent [tortious behavior] is a substantial factor in bringing about." Higazy, 505 F.3d at 175; Townes, 176 F.3d at 147; Restatement (Second) of Torts § 440 (1965). A third person's exercise of "independent judgment" can break the chain of causation. Higazy, 505 F.3d at 176; Zahrey v. Coffey, 221 F.3d 342, 351 (2d Cir. 2000). In this case, the independent third party would be the federal prosecutors who brought the criminal claims against Zahrey.
But the chain of causation is not broken due to "acts of subsequent participants in the legal system [e.g., trial judges, grand juries, or prosecutors]," Coffey, 221 F.3d at 351, if the subsequent actors were "deceived by the defendant's actions" or if the defendant could "reasonably foresee that his misconduct [would] contribute to an `independent decision'" that results in a constitutional violation. Higazy, 505 F.3d at 177 (quoting Coffey, 221 F.3d at 352). On the other hand, "[t]he initial wrongdoer might avoid liability where the intervening decision-maker would have precipitated the deprivation of liberty, even in the absence of the antecedent misconduct; in that circumstance, `but for' causation could be claimed to be lacking." Id. (quoting Coffey, 221 F.3d at 352 n. 8). "[F]oreseeability and causation . . . are issues generally and more suitably entrusted to fact finder adjudication." Lombard v. Booz-Allen Hamilton, Inc., 280 F.3d 209, 216 (2d Cir. 2002) (quoting Palka v. Servicemaster Mgmt. Servs. Corp., 634 N.E.2d 189, 192 (N.Y. 1994)).
Accordingly, the court must examine causation with regard to separate aspects of Zahrey's claims, which we consider in turn. i. Zahrey's Detention Prior to Hearing on Bail
Defendants argue that Zahrey, instead of pursuing an immediate hearing, chose to postpone his detention hearing in order for the parties to prepare a bail package. Thus, Defendants claim that they are not liable for causing Zahrey's eight-day incarceration following his arrest before his release on bail. Zahrey objects that his "choice" was a result of Defendants' improper conduct, and thus is not an independent cause.
Contrary to Defendants' claim, a plaintiff's actions will not break the chain of causation unless they are extraordinary and unforeseeable. See Kriz v. Schum, 549 N.E.2d 1155, 1161 (N.Y. 1989). Cf. Am. Jur. 2d Negligence § 601 ("an intervening or intermediate cause does not become a superseding cause if it is a normal response to what might be expected as a reaction to the original wrongful act"). Zahrey's postponement of his hearing on bail in order to adequately prepare himself hardly seems an extraordinary or unforeseeable event, and the court cannot so hold as a matter of law.
ii. Zahrey's Post-Bail-Revocation Incarceration
Defendants argue that Zahrey's alleged threatening telephone call to Hannah Quick and the subsequent bail revocation proceeding serve as independent causes for his post-bail-revocation incarceration. Zahrey maintains that he did not make the phone call, that the bail revocation proceeding was improper, and that Defendants encouraged Hannah Quick to lie.
Defendants also raise the defense of collateral estoppel, noting that the issue was litigated repeatedly before Judges Azrack and Gershon, whose decisions were twice affirmed by the Second Circuit. In addition, in the original November 4th bail revocation hearing, Zahrey's attorney had the opportunity to cross-examine Hannah Quick and offer the competing testimony of Zahrey alibi witnesses. When Zahrey moved the district court to reopen the bail hearing, Judge Gershon noted that Zahrey could have obtained and used the "new" evidence he put forth in his application in the original hearing and denied the motion — again, the Second Circuit affirmed. Given Zahrey's allegations of unfairness and fraud, Zahrey maintains that the bail revocation is not the type of proceeding to which this court should give preclusive effect. Under the doctrine of collateral estoppel or issue preclusion, an "issue of law or fact actually litigated and decided by a court of competent jurisdiction in a prior action may not be relitigated in a subsequent suit between the same parties or their privies." Ali v. Mukasey, 529 F.3d 478, 489 (2d Cir. 2008) (quoting United States v. Alcan Aluminum Corp., 990 F.2d 711, 718-19 (2d Cir. 1993) (emphasis omitted)).
However, because the court finds that Hannah Quick's reported telephone call broke the chain of causation, the court need not reach the issue of collateral estoppel.
Hannah Quick's testimony about the threatening phone call, whether credible or concocted and whether caused by Zahrey or someone else, served as an independent cause for the bail revocation hearing and Zahrey's subsequent incarceration. Defendants need not prove the existence of an intervening cause as an affirmative defense. See Nat'l Mkt. Share, Inc. v. Sterling Nat'l Bank, 392 F.3d 520, 526-27 (2d Cir. 2004). Rather, it is Zahrey's responsibility, as part of his case-in-chief, to establish proximate cause and also the lack of intervening or superseding cause. See id. But Zahrey has provided the court with no evidence, other than the insufficient fact that Corrigan often called Sidney Quick in jail, which could ground an inference that the Defendants had any improper involvement in Hannah Quick's testimony. Moreover, Zahrey has produced absolutely no evidence of any fraud or perjury in the bail revocation proceeding. See Hill v. Melvin, No. 05 Civ. 6645 (AJP), 2006 U.S. Dist. LEXIS 43006, at *58-60 (S.D.N.Y. June 27, 2006); Colon v. City of New York, 455 N.E.2d 1248, 1251 (N.Y. 1983).
Accordingly, the court GRANTS Defendants' motions for summary judgment insofar as Zahrey has failed to provide evidence of proximate causation as to his incarceration following the bail revocation hearing. The court otherwise DENIES Defendants' motions on proximate cause.
B. Fourth Amendment Claims
Citing the Fourth Amendment, Zahrey claims deprivation of his liberty without probable cause and subjection to "unreasonable search[] and seizure." Pl.'s Fifth Amended Comp. ¶ 60. The court reads Zahrey's separately-asserted Fourth Amendment cause of action as a claim for false arrest.
The Fourth Amendment, applicable to the states through the Fourteenth Amendment, guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures" and "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation." U.S. Const. amend. IV.
Despite Zahrey's pleadings, however, because Zahrey was arrested pursuant to an arrest warrant issued after an indictment, his Fourth Amendment claims arise only as a claim for malicious prosecution and no action for false arrest lies. See Townes v. City of New York, 176 F.3d 138, 149 (2d Cir. 1999) (malicious prosecution is the only action to obtain "damages for confinement imposed pursuant to legal process." (quoting Heck v. Humphrey, 512 U.S. 477, 484 (1994))); Posr v. N.Y. State Court Officer, No. 96 CV 5200 (CLP), 2006 U.S. Dist. LEXIS 13934, at *15 n. 5 (E.D.N.Y. Mar. 13, 2006) ("the distinction between a claim for false arrest and a claim for malicious prosecution depends on the existence of a warrant. If the arrest is effected pursuant to a warrant . . . then the appropriate claim sounds in malicious prosecution." (internal citation omitted)); Perez v. City of New York, No. 01-CV-5384 (SLT) (MDG), 2006 U.S. Dist. LEXIS 94211, at *1-42 (E.D.N.Y. Dec. 29, 2006); Broughton v. State, 335 N.E.2d 310, 314 (N.Y. 1975) ("[w]hen an unlawful arrest has been effected by a warrant an appropriate form of action is malicious prosecution."). For this reason, the court GRANTS summary judgment as to Zahrey's claims for false arrest.
C. Sixth Amendment Fair Trial Claims
There seems to be some question in this circuit as to whether evidence fabrication creates a section 1983 cause of action separate and apart from a malicious prosecution action. See Richardson v. City of New York, No. 02 CV 3651 (JG), 2006 U.S. Dist. LEXIS 69577, at *17-21 (E.D.N.Y. Sept. 27, 2006) (citing Ricciuti v. City of New York, 124 F.3d 123, 130-31 (2d Cir. 1997), and Jocks v. Tavernier, 316 F.3d 128, 138 (2d Cir. 2003)); Jovanovic v. City of New York, No. 04 CV 8437 (PAC), 2006 U.S. Dist. LEXIS 59165, at *36-37 (S.D.N.Y. Aug. 17, 2006),reh'g granted on other grounds, No. 04 CV 8437 (PAC), 2008 U.S. Dist. LEXIS 8974 (S.D.N.Y. Feb. 7, 2008); see also Blake v. Race, 487 F. Supp. 2d 187, 214-15 n. 19 (E.D.N.Y. 2007). Whether Zahrey's evidence merely amounts to a claim for malicious prosecution, as opposed to a separate constitutional tort for fabrication of evidence or denial of a fair trial, is "a matter of some doctrinal ambiguity." Richardson, 2006 U.S. Dist. LEXIS 69577, at *17; see also Schiller v. City of New York, No. 04 Civ. 7922 (RJS) (JCF), 2008 U.S. Dist. LEXIS 4253, at *37-40 (S.D.N.Y. Jan. 23, 2008). In Ricciuti, the court considered evidence fabrication to constitute a separate constitutional tort. See Ricciuti, 124 F.3d at 129-30. But a more recent decision appears to suggest otherwise. In Jocks, the court read Ricciuti to hold that the existence of probable cause at the time of the arrest could not exonerate defendants for their post-arrest falsification of evidence. See Jocks, 316 F.3d at 138. The court did not appear to view Ricciuti as creating a separate due process right, but instead characterized Ricciuti as a malicious prosecution case. Id.; see also Schiller, 2008 U.S. Dist. LEXIS 4253, at *37-40 (discussing Jocks and Ricciuti); Richardson, 2006 WL 2792768, at *17-21 (same). In light of this ambiguity, district courts within the Second Circuit appear to treat fair trial and malicious prosecution as separate claims for purposes of summary judgment or 12(b)(6) motions. See, e.g., Blake, 487 F. Supp. 2d at 215-16 n. 19;Jovanovic, 2006 U.S. Dist. LEXIS 59165, at *36-37; see also Schiller, 2008 U.S. Dist. LEXIS 4253, at *39-40 (allowing plaintiffs to amend petition for malicious prosecution to add a claim for violation of fair trial). Accordingly, this court will treat Zahrey's claims as asserting separate constitutional tort causes of action.
A police officer violates a plaintiff's right to fair trial if he "creates false information likely to influence a jury's decision and forwards that information to prosecutors." Ricciuti, 124 F.3d at 130;Coffey, 221 F.3d at 355; Abreu v. City of New York, No. 04-CV-1721 (JBW), 2006 U.S. Dist. LEXIS 6505, at *16 (E.D.N.Y. Feb. 22, 2006). The existence of other, non-fabricated evidence does not constitute a defense. Richardson, 2006 U.S. Dist. LEXIS 69577, at *21. Most of Zahrey's allegations, as explained above, demonstrate that Defendants were, at worst, negligent in their reviews of police records, notes, and interview tapes. Negligence is not a basis for liability for constitutional torts. See Bryant v. Maffucci, 923 F.2d 979, 984 (2d Cir. 1991); O'Neill v. Krzeminski, 839 F.2d 9, 11 n. 1 (2d Cir. 1988). However, because Zahrey has also cited evidence regarding malicious prosecution, i.e., evidence that Defendants coerced or induced Quick and presented Quick's testimony in Zahrey's prosecution, the court finds that Zahrey has raised a material issue of fact and DENIES summary judgment as to violations of his fair trial rights insofar as Quick's testimony was used against him. Defendants' motions for summary judgment are otherwise GRANTED.
D. Fifth Amendment Claims for Evidence Fabrication
Zahrey also attempts to bring a Fifth Amendment claim for evidence fabrication. However, the Second Circuit analyzes such claims under the rubric of a criminal defendant's Sixth Amendment right to a fair trial.See, e.g., Ricciuti, 124 F.3d at 130; Schiller, 2008 U.S. Dist. LEXIS 4253, at *36-40. The Supreme Court has repeatedly held that "[w]here a particular Amendment provides an explicit textual source of constitutional protection against a particular sort of government behavior, that Amendment, not the more generalized notion of substantive due process, must be the guide for analyzing these claims." County of Sacramento v. Lewis, 523 U.S. 833, 842 (1998); Albright v. Oliver, 510 U.S. 266, 273 (1994); see also Murphy v. Lynn, 118 F.3d 938, 945-46 (2d Cir. 1997). Thus, because the more specific Sixth Amendment claim lies, Defendants' motions for summary judgment on Zahrey's more generalized Fifth Amendment due process claims must be GRANTED. See Blake, 487 F. Supp. 2d at 212 n. 18.
E. Grand Jury Indictment Claims
F. Brady v. Maryland[fn49] Claims[fn50]
See United States v. Mills 995 F.2d 480487FifthSee Kulak v. City of New York88 F.3d 6371 Brady Brady373 U.S. at 87Brady Walker v. City of New York 974 F.2d 293298-99
The Fifth Amendment Indictment Clause instructs that "[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment of a Grand Jury. . . ." U.S. Const. amend. V.
In order to show a Brady violation, the plaintiff must demonstrate that "exculpatory or impeachment evidence favorable to that party was suppressed . . . either willfully or inadvertently, and that there is a reasonable probability that the suppressed evidence, had it been presented at trial, would have produced a different verdict." Burt v. Aleman, No. 05-CV-4493 (NGG), 2008 U.S. Dist. LEXIS 35846, at *20 (E.D.N.Y. Apr. 29, 2008) ("[t]he evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued." (citing Strickler v. Greene, 527 U.S. 263, 281-82 (1999))).
Zahrey has provided the court with no evidence, nor has he even argued, that he was denied any Brady materials prior to trial or that such undisclosed materials affected his verdict in any way. Compare Blake, 487 F. Supp. 2d at 217 (holding that plaintiff survived summary judgment because he demonstrated a fact issue as to police officers' evidence fabrication and concealment from prosecutors that would have affected the jury's decision to convict him); see also Johnston v. Town of Greece, 983 F. Supp. 348, 358 n. 5 (W.D.N.Y. 1997) (refusing to import Brady "from the trial context, where guilt or innocence ultimately is determined, into the warrant application process, where no such determination is made." (discussing United States v. Colkley, 899 F.2d 297, 300-03 (4th Cir. 1990))). Accordingly, because Zahrey has not provided sufficient evidence to create an issue of fact, the court GRANTS Defendants' summary judgment motions as to Zahrey's claims for Brady violations.
G. Reasonable Bail Claims
Zahrey claims that Defendants' actions in provoking the bail revocation proceeding denied him his constitutional right to reasonable bail. However, as stated above, Zahrey has provided no evidence that Defendants were in any way responsible for Hannah Quick's testimony that ultimately resulted in his bail revocation. Thus, the court GRANTS summary judgment on this claim.
H. Conspiracy under Section 1983
Finally, Zahrey claims that Boyce, Whalen, and other Defendants entered into a corrupt scheme to violate Zahrey's section 1983 rights. Zahrey maintains that, after he spoke with Boyce regarding the Supreme Rivera investigation, Zahrey later met with Boyce to give him specific incriminating evidence against Officer Gutierrez. During this discussion, according to Zahrey, he informed Boyce that another officer at the 72nd Precinct, whom Boyce later discovered to be Officer Whalen, was "investigating" Zahrey to somehow frame him. Pl.'s Ex. D at ¶¶ 15-17; Pl.'s Ex. H at 788-89. Although Boyce did tell others at IAB about Zahrey's allegations against Zahrey, Boyce did not formally report them. Pl.'s Ex. I at 227; Pl.'s Ex. H at 788. In contrast, when Whalen reported to Boyce that several arrestees had recounted Zahrey's alleged criminal behavior, and one had reported that Zahrey had threatened to "whack" Whalen, Boyce did open a formal IAB log. Pl.'s Ex. I at 38-39. Zahrey also insists that IAB detectives lied to prosecutors about Zahrey's assistance with the Supreme investigation. See Pl.'s Rule 56.1 Stmt. par; 513 (citing Pl.'s Ex. AA at 645-46 (Coffey testified that Boyce and Wirth denied "enlisting" Zahrey's help)).
Zahrey purported to have evidence: that Gutierrez's father sold drugs; that Gutierrez was "friends" with Rivera's shooters; and that, at the time of the shooting, Gutierrez was protecting a drug-selling location. Pl.'s Ex. D at ¶ 15.
However, the only evidence that Zahrey presents to the court that could link Defendants in such a conspiracy to protect Officer Gutierrez is that "Boyce and Whalen knew each other: Whalen's office was located at the 72nd Pct. across the hall from Boyce's, and they had worked together on other matters." Id. ¶ 24 (citing Pl.'s Ex. K at 14-16 (Whalen testified that he and Boyce had a "business relationship")). This evidence is simply not enough to provide a basis for an inference of an agreement and any such inference therefore rests on nothing more than speculation that an agreement existed between Boyce and Whalen, much less between other Defendants, to violate Zahrey's rights. See Dawkins v. Williams, 511 F. Supp. 2d 248, 253-54 (N.D.N.Y. 2007) ("without more, Mr. Catalano's friendship with Defendant's partner, John Dolan, is not evidence of Defendant's bad faith."); Montes v. King, No. 00 Civ. 4707 (RCC) (JCF), 2002 U.S. Dist. LEXIS 14464, at *8 n. 5 (S.D.N.Y. Aug. 5, 2002) (holding that "unsubstantiated speculation" that officer acted in bad faith is not enough to survive summary judgment); see also Gil v. County of Suffolk, No. CV 06-1683 (LDW) (ARL), 2008 U.S. Dist. LEXIS 90813, at *24 (E.D.N.Y. Nov. 6, 2008) (noting that plaintiff "offers no more than vague and conclusory assertions of conspiracy, which are not even sufficient to withstand a motion to dismiss." (citing Leon v. Murphy, 988 F.2d 303, 311 (2d Cir. 1993); Polur v. Raffe, 912 F.2d 52, 56 (2d Cir. 1990))).
Therefore, summary judgment must be GRANTED in favor of Defendants on Zahrey's section 1983 conspiracy claim.
IV. Zahrey's Remaining 42 U.S.C. § 1983 Claims as Pertaining to His Departmental Trial
Defendants contend that Zahrey cannot show that the departmental proceedings violated his due process rights, either substantive or procedural. The court agrees with Defendants, and therefore GRANTS summary judgment on both issues.
A. Substantive Due Process
"The Due Process Clause of the Fourteenth Amendment is not a guarantee against incorrect or ill-advised personnel decisions." Bishop v. Wood, 426 U.S. 341, 350 (1976). Instead, "[s]ubstantive due process is an outer limit on the legitimacy of governmental action," Natale v. Town of Ridgefield, 170 F.3d 258, 263 (2d Cir. 1999), and limits "government action that infringes a protected right." O'Connor v. Pierson, 426 F.3d 187, 200 n. 6 (2d Cir. 2005) (emphasis in original).
To succeed on his substantive due process theory, Zahrey must demonstrate that the challenged action was "arbitrary, conscience-shocking, or oppressive in a constitutional sense," rather than merely "incorrect or ill-advised." Kaluczky v. City of White Plains, 57 F.3d 202, 211 (2d Cir. 1995) (internal quotation marks omitted). "While the measure of what is conscience-shocking is no calibrated yard stick, it does, as Judge Friendly put it, `poin[t] the way.'" County of Sacramento v. Lewis, 523 U.S. 833, 847 (1998) (citing Johnson v. Glick, 481 F.2d 1028, 1033 (2nd Cir. 1973)).
Zahrey has failed to present evidence from which a jury could reasonably infer that his departmental proceeding "shock[ed] the conscience." According to the evidence submitted, NYPD policy called for the filing of departmental charges identical to those in the criminal indictment. After the criminal acquittal, the departmental prosecutor reviewed the evidence and dismissed all but one of the charges. "Principles of substantive due process apply only to a narrow band of extreme misbehavior by government agents acting under color of law: mistreatment of a person that is `so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.'" Arar v. Ashcroft, 532 F.3d 157, 204 (2d Cir. 2008) (quoting Lombardi v. Whitman, 485 F.3d 73, 79 (2d Cir. 2007)), reh'g granted (Aug. 12, 2008). "Overzealous" or "erroneous" government action alone does not constitute a due process violation. Interport Pilots Agency v. Sammis, 14 F.3d 133, 145 (2d Cir. 1994). Zahrey has not shown this type of "conscience-shocking" evidence. See Laham v. Safir, No. 98 Civ. 3115 (RCC), 2001 U.S. Dist. LEXIS 18617, at *13-14 (S.D.N.Y. Nov. 14, 2001) ("Plaintiff has not lost his job, he remains employed with the New York City Police Department, he retains the rank of sergeant and his salary has not been affected. Further, the Police Department was not acting in an arbitrary or capricious manner when it instituted administrative proceedings against him. The Department has a legitimate interest in protecting and ensuring its integrity and that of its officers. At the time, Plaintiff had been indicted by a grand jury and was under arrest." (internal citation omitted)); Sutton v. Village of Valley Stream, 96 F. Supp. 2d 189, 193-94 (E.D.N.Y. 2000) (finding that changes in job responsibilities and salary reduction do not constitute "gross abuse[s] of governmental authority"); see also Komlosi v. N.Y. State Office of Mental Retardation Developmental Disabilities, 64 F.3d 810, 816 (2d Cir. 1995).
B. Procedural Due Process
Defendants also move for summary judgment on procedural due process grounds. But Zahrey's claims do not comfortably fit within the procedural due process mold. Procedural due process violations involve the adequacy of government procedures that "effect[] the deprivation of liberty or property . . . in light of the affected interest." Pittsley v. Warish, 927 F.2d 3, 6 (1st Cir. 1991). In contrast, substantive due process "imposes limits" on government action "regardless of what procedural protection is provided." Id. (citing Monroe v. Pape, 365 U.S. 167, 171-72 (1961); Rochin v. California, 342 U.S. 165, 169 (1952)). Here, likePittsley, Zahrey challenges government and government employees' conduct, rather than the adequacy of the procedure of the disciplinary proceeding. See Pittsley, 927 F.2d at 7.
Furthermore, Zahrey has failed to present any property or liberty interest sufficient to invoke a procedural due process claim. Defendants argue that transfer of assignments and modified assignments do not implicate sufficient property interests. See Bernheim v. Litt, 79 F.3d 318, 322-23 (2d Cir. 1996); but see Ezekwo v. N.Y. City Health Hosps. Corp., 940 F.2d 775, 783 (2d Cir. 1991); Garrett v. Mazza, No. 97 Civ. 9148 (BSJ), 2001 U.S. Dist. LEXIS 1210, at *12-13 (S.D.N.Y. Feb. 13, 2001). Zahrey agrees that he was compensated for all back pay and benefits missed while on suspension, Def.'s Ex. 17 at 7, but he maintains that his suspension without pay implicates a federally-protected property interest. Zahrey argues that he was not compensated for his "lost opportunity to earn additional income from overtime work and for lost income from promotions he otherwise would have received." Pl.'s Resp. To Def.'s Rule 56.1 Stmt. ¶ 478 (citing Pl.'s Ex. D at ¶¶ 39, 42).
Whereas suspension without pay could implicate a protected property right, Zahrey has not pointed the court to any case law that would find a deprivation of constitutionally-protected rights in light of his receipt of back pay. On the contrary, courts have rejected other plaintiffs' similar claims for "economic loss from missed raises, loss of private duty jobs, loss of promotional opportunities, and loss of over-time." Weg v. Macchiarola, 729 F. Supp. 328, 337 (S.D.N.Y. 1990) (quoting Gates v. Sicaras, 706 F. Supp. 169, 172-73 (D. Conn. 1989)), rev'd on other grounds, 995 F.2d 15 (2d Cir. 1993); see also Rolon v. Henneman, 517 F.3d 140, 148-49 (2d Cir. 2008). Just like these other plaintiffs, Zahrey does not "offer any evidence pointing to a claim of entitlement to such benefits of employment beyond his regular salary" and he "was eventually reinstated and his personnel record cleared." Weg, 729 F. Supp. at 337 (quoting Gates, 706 F. Supp. at 172-73).
Defendants' motions on substantive and procedural due process, in regards to the departmental trial, are therefore GRANTED.
V. Personal Involvement of Officers Welsome and Hawkins
In order to establish individual liability under section 1983, a plaintiff must show (a) that the defendant is a "person" acting "under the color of state law," and (b) that the defendant caused the plaintiff to be deprived of a federal right. Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 122 (2d Cir. 2004). A section 1983 claim will not lie absent evidence that a supervisory official had "personal involvement" in the alleged constitutional violations. Farrell v. Burke, 449 F.3d 470, 484 (2d Cir. 2006).
Individual Defendants Hawkins and Welsome, who both hold supervisory positions, contend that Zahrey has put forth no evidence that they were personally involved in any of the conduct at issue in the suit. In response, Zahrey may demonstrate "personal involvement" by providing evidence that (1) Hawkins and Welsome participated directly in the alleged constitutional violation, (2) they, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) they created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) they were grossly negligent in supervising subordinates who committed the wrongful acts, or (5) they exhibited deliberate indifference to Zahrey's rights by failing to act on information indicating that unconstitutional acts were occurring. Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995).
According to Defendants, Zahrey has not produced any evidence that Hawkins or Welsome took part in any of the challenged conduct, much less that they had any "personal involvement" sufficient for section 1983 liability. Zahrey responds that, as a supervisor, Welsome had the responsibility to oversee and review Boyce, Wirth, and McWilliams's wrongful behavior. He also maintains that Welsome "played a direct, personal role in [Zahrey's] administrative and criminal prosecution" by making various presentations to the IAB and Police Commissioner, helping in Zahrey's modification, and authorizing Zahrey's arrest, suspension without pay, and departmental charges. Pl.'s Mem. in Opp. 51. Zahrey also asserts that Hawkins, as KCDAO Chief of Investigations, supervised the KCDAO Zahrey investigation, attended meetings, and read IAB worksheets. Hawkins, Zahrey alleges, sought authorization from the District Attorney to begin a federal prosecution. At meetings regarding the change of command from state to federal, Hawkins "personally lobbied" federal prosecutors to take the Zahrey case without disclosing exculpatory information. Pl.'s Mem. in Opp. 54. Finally, Zahrey points to Hawkins' deposition testimony that, during the investigation, he was aware of Quick's credibility issues: "it was a general topic that the fact that he had changed stories was an obvious weakness in the prosecution of the case." Pl.'s Ex. AAA at 38.
In his presentations, Welsome relied upon Boyce's worksheets and a flow chart prepared by Boyce and Wirth. See Pl.'s Ex. M at 44-47, 49-50; Pl.'s Ex. C at 799-801; Pl.'s Ex. DD.
Zahrey also stresses that neither Hawkins nor Welsome presented an affidavit denying they had knowledge of their subordinates' alleged behavior. Zahrey confuses the burden of proof when pointing to Hawkins's and Welsome's failures to file affidavits. Zahrey himself, as the plaintiff, must present evidence to create an issue of fact in order to survive summary judgment. Lizardo v. Denny's, Inc., 270 F.3d 94, 101 (2d Cir. 2001).
However, the court finds that Zahrey has not provided sufficient evidence to raise a material issue of fact as to Hawkins's and Welsome's direct involvement; he is unable to provide evidence that could ground an inference that either officer "participated directly" in or even had any indication of the alleged coercion/inducement of Sidney Quick prior to prosecution. See Patterson v. County of Oneida, 375 F.3d 206, 229 (2d Cir. 2004) ("[a]s to Middaugh, Paravati, and Chapple, there is no evidence in the record indicating that they had any involvement in any of the harassing incidents of which Patterson complains."); Celestin v. City of New York, No. 04-CV-3009 (ILG), 2008 U.S. Dist. LEXIS 81112, at *21-22 (E.D.N.Y. Oct. 14, 2008) ("the Court finds no evidence of Det. Boyle's . . . personal involvement with Celestin's prosecution. Det. Boyle merely interviewed Celestin and other witnesses, collected evidence, and passed the information he learned on to the other officers participating in the investigation."). Zahrey thus has not demonstrated the requisite "personal involvement in the challenged conduct." Blake v. Race, 487 F. Supp. 2d 187, 208 n. 15 (E.D.N.Y. 2007) (citing Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994)) (emphasis added).
Moreover, because the Second Circuit has insisted that section 1983 liability is limited to "intentional participation in the conduct constituting a violation of the victim's rights by one who knew of the facts rendering it illegal," Provost v. City of Newburgh, 262 F.3d 146, 155 (2d Cir. 2001) (footnote omitted), Zahrey's action as to Hawkins and Welsome cannot be sustained. Indeed, Zahrey's theory of the case is that Boyce, McWilliams, and Wirth concealed the tape and fabricated worksheets to mislead their superiors as well as prosecutors.
Furthermore, Zahrey has presented the court with no evidence of any "policy or custom" that Hawkins or Welsome created that encouraged such coercion, nor has he shown any acts of "gross negligence" on the part of Hawkins or Welsome. See Turpin v. Mailet, 619 F.2d 196, 202 (2d Cir. 1980) ("absent more evidence of supervisory indifference, such as acquiescence in a prior pattern of conduct, a policy could not ordinarily be inferred from a single incident of illegality such as a first arrest without probable cause or with excessive use of force" (citations omitted)); Brogdon v. City of New Rochelle, 200 F. Supp. 2d 411, 426 (S.D.N.Y. 2002) ("Brogdon does not allege that any of the named defendants in this case were violent or used excessive force against him. His claim here is that he was arrested without probable cause. He proffers no evidence of any departmental policy of fostering or condoning arrests without probable cause" (citation omitted)).
Accordingly, the court GRANTS Defendants' motions on this ground.
VI. Absolute Immunity
Absolute immunity is reserved for prosecutors, and persons working under their direction, when working as advocates in circumstances "intimately associated with the judicial phase of the criminal process."Imbler v. Pachtman, 424 U.S. 409, 430 (1976); see also Hill v. City of New York, 45 F.3d 653, 660 (2d Cir. 1995). But when performing investigative functions, law enforcement officials — including prosecutors — are protected only by qualified immunity. Mangiafico v. Blumenthal, 471 F.3d 391, 396 (2d Cir. 2006); see also Zahrey v. Coffey, 221 F.3d 342, 346-48 (2d Cir. 2000). In this analysis, courts "apply a `functional approach,' examining `the nature of the function performed, not the identity of the actor who performed it.'" Doe v. Phillips, 81 F.3d 1204, 1209 (2d Cir. 1996) (quoting Buckley v. Fitzsimmons, 509 U.S. 259, 269 (1993)). A prosecutor acts in an investigative capacity "before he has probable cause to have anyone arrested." Buckley, 509 U.S. at 274.
Defendants argue that they are protected by absolute immunity for actions associated with the bail revocation proceedings, transferring the case to the USAO, and post-Zahrey-indictment safety-related accommodations offered and given to Hannah and Sidney Quick, Maria Montanez, and Lisa Rivera. See Pinaud v. County of Suffolk, 52 F.3d 1139, 1149 (2d Cir. 1995) ("actions in connection with a bail application are best understood as components of the initiation and presentation of a prosecution, and therefore are protected by absolute immunity"). Zahrey responds that he does not seek to hold Defendants liable for their actions during the bail revocation proceedings or while assisting USAO in prosecuting Zahrey. Instead, Zahrey sues Defendants for their "prior, extrajudicial, pre-indictment role in manufacturing false evidence and in causing federal authorities to initiate a wrongful prosecution [resulting] in [Zahrey's] injuries, including his bail revocation and pretrial detention." Pl.'s Mem. in Opp. 55. In addition, Zahrey contends, because Defendants allegedly had barely enough evidence for an investigation, they were engaged in investigative functions when transferring the case to the USAO.
To the extent that Zahrey wishes to hold Defendants liable for post-indictment actions, including but not limited to the bail revocation proceedings and IAB officer testimony in the criminal trial, absolute immunity applies to protect Defendants. See Rolon v. Henneman, 517 F.3d 140, 145 (2d Cir. 2008) (a police officer has absolute immunity when testifying at trial); Pinaud, 52 F.3d at 1149; see also Coffey, 221 F.3d at 347. Defendants' decision not to conduct a state prosecution and to present the case to USAO is likewise protected by absolute immunity. See Ying Jing Gan v. City of New York, 996 F.2d 522, 530 (2d Cir. 1993) (decision whether or not to prosecute is covered by absolute immunity).
However, the court has found a question of material fact with regard to probable cause. Quick's interviews began and continued through the investigatory phase of Defendants' actions. See Wray v. City of New York, 490 F.3d 189, 194 (2d Cir. 2007) (citing Coffey, 221 F.3d at 353). Zahrey has presented evidence that police officers and Corrigan, after bringing the case to USAO, continued to work with USAO and to question Quick, Lisa Rivera, and Reverend Del Rio in order to corroborate Quick's allegations prior to federal indictment. See Campbell v. Giuliani, No. 99-CV-2603 JG, 2000 WL 194815, at *4 (E.D.N.Y. Feb. 16, 2000) (holding that absolute immunity applied if "all of the [exculpatory] evidence . . . was already before the prosecutor, and, thus, no further investigation was necessary"). Hence, Defendants have failed to conclusively establish as a matter of law that any acts prior to indictment, other than the choice not to commence a state prosecution, were prosecutorial in nature and therefore warrant absolute immunity. Therefore, Defendants' motions for summary judgment on absolute immunity are DENIED with respect to acts of Defendants prior to the issuance of the indictment by the federal grand jury, including Wirth's grand jury testimony but excluding Defendants' decision to transfer the case to USAO. Otherwise, with respect to Defendants' affirmative defense of absolute immunity, their summary judgment is GRANTED.
Grand jury testimony by police officers who are alleged to have fabricated their testimony is protected only by qualified immunity. See White v. Frank, 855 F.2d 956, 961 (2d Cir. 1988).
VII. Qualified Immunity
The doctrine of qualified immunity dictates that "a government official performing discretionary functions is shielded from liability for civil damages if his conduct did not violate plaintiff's clearly established rights or if it would have been objectively reasonable for the official to believe that his conduct did not violate plaintiff's rights." Savino v. City of New York, 331 F.3d 63, 72 (2d Cir. 2003) (quoting Mandell v. County of Suffolk, 316 F.3d 368, 385 (2d Cir. 2003)); see also Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In regards to the objective element, the court must "look beyond the generalized constitutional protection" and decide whether the law is "clearly established in a more particularized sense." Kerman v. City of New York, 261 F.3d 229, 236 (2d Cir. 2001) (citing Anderson v. Creighton, 483 U.S. 635, 640 (1987)). "The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson, 483 U.S. at 640. "[T]he matter of whether a defendant official's conduct was objectively reasonable, i.e., whether a reasonable official would reasonably believe his conduct did not violate a clearly established right, is a mixed question of law and fact." Higazy v. Templeton, 505 F.3d 161, 170 (2d Cir. 2007) (quoting Kerman v. City of New York, 374 F.3d 93, 109 (2d Cir. 2004) (citation omitted)). While "a conclusion that the defendant official's conduct was objectively reasonable as a matter of law may be appropriate where there is no dispute as to the material historical facts, if there is such a dispute, the factual questions must be resolved by the factfinder." Kerman, 374 F.3d at 109 (citations omitted). "Though `immunity ordinarily should be decided by the court,' that is true only in those cases where the facts concerning the availability of the defense are undisputed; otherwise, jury consideration is normally required."Oliveira v. Mayer, 23 F.3d 642, 649 (2d Cir. 1994) (quoting Hunter v. Bryant, 502 U.S. 224, 228 (1991)) (citation omitted). Because qualified immunity is an affirmative defense, Defendants have the burden of proof.Huminski v. Corsones, 386 F.3d 116, 143 (2d Cir. 2004).
Defendants contend that they are entitled to qualified immunity for any federal claims arising from Zahrey's criminal trial on the basis that it was objectively reasonable for them to believe that their conduct did not violate Zahrey's rights. For the majority of Zahrey's contentions, the court has found insufficient evidence to support malicious prosecution or other constitutional tort. However, the court has already found an issue of fact as to Defendants' bad faith in interrogating Quick, and consequently cannot hold as a matter of law that it was objectively reasonable to coerce or induce Quick and use his testimony against Zahrey. "The right not to be arrested or prosecuted without probable cause has, of course, long been a clearly established constitutional right." Golino v. City of New Haven, 950 F.2d 864, 870 (2d Cir. 1991). The Second Circuit has also clearly held that Zahrey had a clearly established right "not to be deprived of liberty as a result of the fabrication of evidence by a government officer acting in an investigating capacity." Coffey, 221 F.3d at 349;see also Ricciuti v. N.Y. City Transit Auth., 124 F.3d 123, 130 (2d Cir. 1997) (finding qualified immunity unavailable because conspiring to fabricate and forward to prosecutors a known false confession "violates an accused's clearly established constitutional right, and no reasonably competent police officer could believe otherwise"); Blake v. Race, 487 F. Supp. 2d 187, 213 (E.D.N.Y. 2007) (refusing to find qualified immunity when the court found a material issue of fact as to the police's "fabrication of evidence-including allegedly feeding facts to a key witness and pressuring the witness to implicate the Blake"). Thus, the court cannot conclude that it was objectively reasonable for Defendants to believe that their conduct did not cross this line.
Defendants specifically claim qualified immunity for opening an investigation after interviewing Torres; using drug-addicts, criminals, or co-conspirators as informants; using particular wording in police reports; questioning Sandoval and Mercado; relying on inconsistent witness statements; interviewing Quick at Rikers and Sing Sing; relying on Quick and Lisa Rivera to build their case; using a cooperation agreement to obtain Quick's testimony; and Wirth's testimony before the grand jury. See White, 855 F.2d 961; Illinois v. Gates, 462 U.S. 213, 246 (1983) (even anonymous tips may serve as the basis for opening an investigation); United States v. Bortnovsky, 879 F.2d 30, 34-35 (2d Cir. 1989) (an omission of a potentially key fact in a police report does not violate due process).
Therefore, as to Zahrey's causes of action involving Defendants' dealings with Quick, Defendants' summary judgment motions as to qualified immunity are DENIED. The rest of the Defendants' motions pertaining to qualified immunity are GRANTED.
VIII. Equal Protection and Sections 1981 and 1985
Zahrey finally asserts that Defendants have violated 42 U.S.C. §§ 1981 and 1985, in that Defendants "conspired, acted in concert, and/or aided and abetted each other in depriving, or attempting to deprive, [Zahrey] of the equal protection of the law, and of equal privileges and immunities under the law." Pl.'sFifth Amended Comp. ¶ 360.
A. Section 1981
In order to establish a claim under 42 U.S.C. § 1981, Zahrey must allege facts supporting the following elements: (1) he is a member of a racial minority; (2) Defendants intended to discriminate against him on the basis of race; and (3) the discrimination concerned one of the statute's enumerated activities. Brown v. City of Oneonta, 221 F.3d 329, 339 (2d Cir. 2000). The enumerated activities include the rights "to make and enforce contracts" and "the full and equal benefit of all laws and proceedings for the security of persons and property." 42 U.S.C. § 1981(a).
Discrimination claims brought pursuant to the equal protection clause, Title VII, and section 1981 involve virtually the same evidentiary requirements and utilize the same analytical framework.Enwonwu v. Fulton-Dekalb Hosp. Auth., 386 F. App'x 586, 600 (11th Cir. 2008) (per curiam) (citing Standard v. A.B.E.L. Servs., 161 F.3d 1318, 1330 (11th Cir. 1998)); see also McCray v. Pee Dee Reg'l Transp. Auth., 263 F. App'x 301, 305 (4th Cir. 2008), cert. denied, 128 S. Ct. 2963 (2008);Humphries v. CBOCS West, Inc., 474 F.3d 387, 403-04 (7th Cir. 2007),aff'd, 128 S. Ct. 1951 (2008); English v. Colo. Dep't of Corr., 248 F.3d 1002, 1007 (10th Cir. 2001). Yet, unlike actions under Title VII, section 1981 violations cannot be shown merely by proof of disproportionate impact and thus require proof of intentional and purposeful discrimination. See Gen. Bldg. Contractors Ass'n v. Pennsylvania, 458 U.S. 375, 391 (1982).
Zahrey is of Palestinian ancestry, and he specifically claims that a jury could reasonably infer intentional racial discrimination given Boyce's statement that he "like[s] to smoke a Camel" and Boyce's:
complicity with his co-defendants and others in the Department to pursue a contrived corruption complaint against [Zahrey] while simultaneously violating departmental rules to ignore an equally serious complaint by [Zahrey] against Boyce's fellow Caucasian, Sgt. Whalen.
Pl.'s Mem. in Opp. 67. Such discrimination, Zahrey argues, impaired Zahrey's equal enjoyment of his NYPD employment contract. Zahrey analogizes his case to Tomassi v. Insignia Fin. Group, Inc., 478 F.3d 111 (2d Cir. 2007).
Defendants argue that, other than the isolated remark Zahrey allegedly heard from Boyce that Boyce "like[s] to smoke a Camel," Zahrey cannot point to any evidence of intentional racial discrimination. According to Defendants, "stray" remarks alone will not support a claim of discrimination. See Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 468 (2d Cir. 2001). Although when "other indicia of discrimination are properly presented, the remarks can no longer be deemed `stray'" and thus a jury "has a right to conclude that [the remarks] bear a more ominous significance," Abdu-Brisson, 239 F.3d at 468 (quoting Danzer v. Norden Syst., Inc., 151 F.3d 50, 56 (2d Cir. 1998)), Defendants argue that Zahrey has provided no such "other indicia" to survive summary judgment.
Defendants also move for summary judgment in that Zahrey has not provided evidence to sustain his section 1981 cause of action under either the "selective prosecution" or "class of one" theories of relief. As the court finds that Zahrey has presented insufficient evidence of Defendants' intent to discriminate on the basis of race, the court need not address these particular theories of relief.
After its decision in Abdu-Brisson, the Second Circuit has disapproved somewhat of district courts' use of the "stray" remarks analysis. See Tomassi, 478 F.3d at 115. Instead, district courts are to focus on how remote the remarks are from the decision-maker, and how much any remark "evinces a discriminatory state of mind." Id. In addition, the "relevance of discrimination-related remarks does not depend on their offensiveness, but rather on their tendency to show that the decision-maker was motivated by assumptions or attitudes relating to the protected class." Id. at 116. If remarks could be construed as "explaining why that decision was taken," then the comments could not be considered "stray." Id. In Tomassi, the plaintiff presented evidence that her manager made constant discriminatory remarks, actively sought younger clientele, and fired plaintiff and replaced her with a younger worker — all the while recognizing plaintiff's skill at her job. Id. at 116-17 ("Tomassi's evidence included that (1) Stadmeyer made age-related remarks to Tomassi every month or so; (2) he hired younger employees while seeking to attract a younger clientele to PCV/ST; (3) he affirmed the quality of Tomassi's job performance, evidenced by the promotion, raises, and praise she received throughout her employment, including praise at the time of her firing; (4) Stadmeyer made age-related comments at Tomassi's firing, especially to the effect that she was well suited to work with seniors; and (5) she was replaced by a worker 38 years younger. We see no reason why the jury could not reasonably find, on the basis of the evidence, that Stadmeyer was motivated by age discrimination in terminating Tomassi. The evidence in the aggregate raises a triable question as to whether Stadmeyer's actions were motivated by age." (footnote omitted)). The Second Circuit concluded that, with the other evidence, the district court erred in considering the discriminatory remarks as "stray."
In applying this case law, the court must consider whether all evidence "in the aggregate raises a triable question" as to whether the prosecution was motivated by discrimination. Id. However, unlike Tomassi, Zahrey has presented no other evidence indicating that Boyce and other Defendants prosecuted Zahrey because of his race. While Zahrey argues that Whalen was similarly situated but treated differently, it is the law of the Second Circuit that, "where a plaintiff seeks to make out her prima facie case by pointing to the disparate treatment of a purportedly similarly situated employee, the plaintiff must show that she shared sufficient employment characteristics with that comparator so that they could be considered similarly situated." McGuinness v. Lincoln Hall, 263 F.3d 49, 53 (2d Cir. 2001). The alleged similar circumstances need not be identical, but "there should be a reasonably close resemblance of facts and circumstances." Lizardo v. Denny's, Inc., 270 F.3d 94, 101 (2d Cir. 2001). What is key is that they be similar in "significant aspects."Khan v. Costco Wholesale Inc., No. 99 CV 3944(SJ), 2001 WL 1602168, at *7-8 (E.D.N.Y. Dec. 13, 2001) (holding that plaintiff's alleged similarly situated individuals were not similar enough in significant respects because plaintiff had specifically worked as a manger of loss prevention and was charged with credit card fraud of a significant magnitude, whereas the white employees had been low-level workers in the bakery or pharmacy accused of stealing).
The court does not deem Whalen and Zahrey as similarly situated for the purposes of this analysis. In deciding whether to open an investigation, Boyce could reasonably consider the seriousness of the allegations against Zahrey and the existence of corroborating evidence. Zahrey made allegations to Boyce that Whalen was questioning Lyndell Ingram, a friend of Supreme Rivera's, and spreading false corrupt rumors about Zahrey in order to protect Gutierrez. See Pl.'s Ex. D at ¶¶ 15-17. Upon questioning by Boyce, Whalen admitted questioning Ingram about Zahrey based upon other information Whalen had received from other arrestees. Pl.'s Ex. K at 97-98. In contrast, Whalen's case against Zahrey involved a death threat as well as specific and corroborated information from confidential informants and Whalen himself. Whalen represented to Boyce that Carlos Torres reported to another detective a threat by Zahrey against Whalen's life. Torres was reported as giving particular information regarding Whalen's home address and family, the accuracy of which Whalen confirmed, see Def.'s Ex. 6; Def.'s Ex. 8, and Whalen reported that he and his mother began receiving anonymous telephone calls. See Def.'s Ex. 8.
Zahrey has presented the court with no other evidence, other than one single arguably racist remark, to demonstrate that Defendants prosecuted him because of his race or ethnicity. He has failed to raise a triable issue of fact that Defendants were motivated in their actions by racial animus. Therefore, the court GRANTS summary judgment to Defendants on Zahrey's section 1981 cause of action.
B. Section 1985
To obtain relief under section 1985, Zahrey must establish: "(1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of equal protection of the laws, . . .; (3) an act in furtherance of the conspiracy; (4) whereby a person is . . . deprived of any right of a citizen of the United States."Brown, 221 F.3d at 341 (quoting Mian v. Donaldson, Lufkin Jenrette Sec. Corp., 7 F.3d 1085, 1087 (2d Cir. 1993) (per curiam)). The basis for Zahrey's section 1985 complaint appears to be "different treatment of [Zahrey], in comparison to [Sergeant] Whalen, motivated by discriminatory animus." Pl.'s Mem. in Opp. 68. Zahrey "must provide some factual basis supporting a meeting of the minds, such that defendants entered into an agreement, express or tacit, to achieve the unlawful end." Rodriguez v. City of New York, No. 05 Civ. 10682 (PKC) (FM), 2008 U.S. Dist. LEXIS 78870, at *45 (S.D.N.Y. Sept. 25, 2008) (quoting Webb v. Goord, 340 F.3d 105, 110 (2d Cir. 2003)). Once more, to survive summary judgment, a plaintiff cannot rely upon "unsubstantiated speculation." Id. (citing Scotto v. Almenas, 143 F.3d 105, 114-15 (2d Cir. 1998); San Filippo v. U.S. Trust Co., 737 F.2d 246, 256 (2d Cir. 1984)).
Similar to Zahrey's allegations of section 1983 conspiracy, Zahrey's section 1985 conspiracy claims are not supported by sufficient evidence; "no reasonable jury could find, on this record, that an agreement — tacit or otherwise — existed among any of the defendants to either inflict `an unconstitutional injury' or to achieve an `unlawful end.'" Id. Zahrey has failed to present the court with "competent evidence" that could ground an inference that "defendants acted in a willful manner, culminating in agreement, understanding or `meeting of the minds' that violated [Zahrey's] rights, privileges or immunities secured by the Constitution or the federal courts." Id. at *45-46 (quoting Shabazz v. Pico, 994 F. Supp. 460, 467 (S.D.N.Y. 1998)).
Moreover, the conspiracy "must also be motivated by `some racial or perhaps otherwise class-based, invidious[ly] discriminatory animus behind the conspirators' action.'" Mian, 7 F.3d at 1088 (quoting United Bhd. of Carpenters Joiners, Local 610 v. Scott, 463 U.S. 825, 829 (1983)). As the court has already held, the record contains insufficient evidence that Defendants' acts or inactions were motivated by Zahrey's race.
As such, the court GRANTS Defendants' summary judgment motions on Zahrey's section 1985 claims for the same reasons as Zahrey's section 1981 claims.
CONCLUSION
The court concludes that: Sixth
• Plaintiff's motion to strike is DENIED; • Defendants' motions concerning Defendants' procurement and use of Quick's testimony in Zahrey's criminal trial, as related to: (1) Zahrey's claims for federal and state malicious criminal prosecution and violations of his Amendment right to a fair trial and (2) Defendants' affirmative defense of qualified immunity, are DENIED; • Defendants' motions concerning proximate causation as to Zahrey's detention prior to his initial hearing on bail are DENIED; • Defendants' motions concerning absolute immunity, as related to Defendants' actions prior to grand jury indictment but not including Defendants' decision to commence federal rather than state prosecution, are DENIED; • OTHERWISE, Defendants' motions for summary judgment are GRANTED in their entirety. The parties are directed to consult and, by February 11, 2009, to file a proposed order governing preparation for trial.It is so ORDERED.