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Almonte v. Florio

United States District Court, S.D. New York
Jan 12, 2004
02 Civ. 6722 (SAS) (S.D.N.Y. Jan. 12, 2004)


holding that entrapment is not a constitutional offense

Summary of this case from Flynn v. Pequot


02 Civ. 6722 (SAS)

January 12, 2004

Rafael Almonte, #00-A-2216, Dannemora, New York, for Plaintiff (Pro se)

Jennifer Rossan, Assistant Corporation Counsel, New York, New York, For Defendants


Plaintiff, an inmate proceeding pro se, has sued defendants under sections 1981, 1983, 1985(3) and 1986 of Title 42 of the United States Code to redress an alleged conspiracy to deprive him of his constitutional rights on account of his race (Latino). Defendants Dawn Florio, Carlos Infante and Alan Berberich now move for summary judgment pursuant to Rule 56

Plaintiff also brings claims under sections 241 and 242 of Title 18 of the United States Code. However, these sections are federal criminal statutes that are not applicable to plaintiff's civil case. Accordingly, these claims are summarily dismissed.

Detective Berberich was never properly served with process in this action. Detective Berberich, who officially retired from the New York City Police Department ("NYPD") on December 31, 2002, has been on sick leave due to serious illness since June 10, 2002. From that date forward, Detective Berberich could not be served with process at his place of employment. As indicated by the docket sheet, on November 25, 2002, a return of service of summons and complaint executed for Detective Berberich was accepted by Detective Carlos Infante. See Docket Sheet at 3, Ex. C to the Rossan Decl. However, Detective Infante was not authorized to accept service on behalf of Detective Berberich. Only the NYPD's Legal Division can accept service for a retired member of the service. See 2/14/03 Letter from Jennifer Rossan, Ex. J to the Rossan Decl. Despite being given the Legal Division's address, see 4/7/03 Letter from Rossan to Almonte, Ex. J to the Rossan Decl., plaintiff failed to properly serve Detective Berberich through that office. See Defendants' Local Civil Rule 56.1 Statement ("Def. 56.1") ¶ 6. Because Detective Berberich was not served with 120 days of the filing of the Amended Complaint, he is dismissed from this action. See Fed.R.Civ.P. 4(m). Furthermore, because the three-year statute of limitations period applicable to section 1983 claims has passed, this dismissal is with prejudice.

of the Federal Rules of Civil Procedure. Plaintiff opposes this motion and has cross-moved for summary judgment. For the following reasons, plaintiff's cross-motion is denied, defendants' motion is granted, and this case is dismissed.


Where indicated, the following facts are taken from Defendants' Local Civil Rule 56.1 Statement. Along with defendants' motion, plaintiff received Defendants' Local Civil Rule 56.2 Notice to Pro Se Litigant Opposing Motion for Summary Judgment as well as a Notice for Pro Se Litigants Regarding Opposition to a Summary Judgment Motion. See Notice of Motion at 6-8. Plaintiff nonetheless failed to controvert defendants' statements of material fact. Accordingly, these facts are admitted for purposes of this motion. See Cox v. C.O. Colgane, No. 94 Civ. 6361, 1998 WL 148424, at *3 (S.D.N.Y. Mar. 27, 1998) (admitting facts in defendants' Rule 56.1 statement where pro se plaintiff failed to file a responsive Rule 561.1 statement after receiving notice informing him of his right to do so).

On December 19, 1996, plaintiff was arrested by detectives Carlos Infante and Alan Berberich for conspiracy to commit a carjacking and for possession of a loaded firearm. See Defendants' Local Civil Rule 56.1 Statement ("Def. 56.1") ¶ 7. Julio Caraballo, a confidential informant, previously provided Infante and Berberich with information regarding plaintiff's involvement in the carjacking. See id. at ¶ 8. Prior to accepting information from Caraballo, Infante and Berberich investigated him and learned that he had provided reliable in the past to a federal law enforcement agency. See id. at ¶ 9. On December 21, 1996, a criminal complaint was filed against plaintiff charging him with criminal possession of a weapon in the second and third degrees, conspiracy in the fourth degree, criminal solicitation in the fourth degree, and criminal facilitation in the fourth degree. See id. at ¶ 10. On December 24, 1996, plaintiff and four co-defendants were indicted on the following charges: attempted murder in the first and second degrees; conspiracy in the second degree; aggravated assault upon a police officer; assault in the first degree; criminal possession of a weapon in the second and third degrees; conspiracy in the fourth degree; criminal possession of a weapon in the fourth degree; and assault in the third degree. See Indictment 50/97, Ex. H to the Rossan Decl. On April 11, 2000, plaintiff pleaded guilty to conspiracy in full satisfaction of all charges against him. See Def. 56.1 at ¶ 12.

Almonte's co-defendants were Jose Ortiz, Guillermo Negron, Damien Ponce and Lorenza Payano.

An expanded version of the facts is drawn, in part, from the Complaint and puts plaintiff's claims in context. On December 15, 1996, plaintiff visited his friend, Lorenza Payano, who owned a grocery store in Manhattan. See Cmpl. at ¶ 3. Jose Rolando Vargas, a taxi driver, owed money to Payano who enlisted Almonte's help to collect it. See id. Almonte, in turn, sought the assistance of Caraballo, the confidential informant. See id. ¶ 4. The next day, Caraballo met Payano at her store and asked for her gun. See id. ¶ 5. Apparently, the plan was to take Vargas's cab and hold it hostage until he paid Payano the money he owed her. See Inmate Status Report for Parole Board Appearance, Ex. 1-B to Plaintiff's Affirmation in Support of Motion for Summary Judgment ("Pl. Aff."). These facts were corroborated by Payano during her plea allocution, where she answered the following questions:

Defense Atty: And it was your understanding that you were going to pay Rafael Almonte a certain sum of money in order for him and other individuals to take that car?

Payano: Yes.

ADA: Okay. And it was your understanding, it was [an] agreement that was made with you and other people?

"ADA" stands for Assistant District Attorney.

Payano: Yes.

ADA: Is it also true, to effectuate that taking of the car, that Rafael Almonte said to you that he was, that a gun was to be used to do that?

Payano: Yes.

ADA: And it was also your understanding that you were to give a gun to an individual so that individual could take the car from that particular person?

Payano: Yes.

Lorenza Payano 11/18/98 Plea Allocution to Indictment 50/97 ("Payano Plea"), Ex. M to the Reply Declaration of Jennifer Rossan ("Rossan Reply Decl."), at 18-19.

Indictment 50/97 only charged Payano in Counts 8 (criminal possession of a weapon in the second degree), 9 (criminal possession of a weapon in the third degree) and 10 (conspiracy in the fourth degree). See Payano Plea at 2. Payano was permitted to plead guilty to the conspiracy charge in full satisfaction of the Indictment. See id. at 7.

Caraballo, the confidential informant, recorded the conversations he had with Almonte and Payano. See Declaration of Carlos A. Infante, Jr. ("Infante Decl."), Ex. E to the Rossan Decl., ¶ 7. These conversations included discussions of the plan to carjack the taxi driver who owed Payano money. See id. ¶ 8. Based on the information provided by Caraballo, Detectives Infante and Berberich arrested plaintiff on December 19, 1996, for conspiracy to commit a robbery (carjacking). See id. ¶ 10. Almonte was later indicted on additional charges including the attempted murder of NYPD Captain Steven Plavnick. See id. ¶ 11.

Caraballo not only provided information as to the carjacking but he also provided information as to the October 19, 1996 shooting of Captain Plavnick. See id. ¶ 2. Captain Plavnick was shot in the back, while on duty and dressed in uniform, outside of the 46th Precinct. See Inmate Status Report for Parole Board Appearance, Ex. 1-B to Pl. Aff. It was suspected that Captain Plavnick was shot in revenge for the state court acquittal of Police Officer Francis X. Livoti in the death of Anthony Baez. See Doubts About Tape Spur Plea Deals in Officer's Shooting, N.Y. Times, April 12, 2000, Ex. 1 to Pl. Aff

Caraballo's information implicating Almonte in Plavnick's shooting turned out to be unreliable. Before Almonte's trial on Indictment 50/97 began, a question arose concerning the authenticity of the tapes provided by Caraballo. Upon learning that one of the tapes may have been altered, the Bronx District Attorney's Office immediately hired an expert to examine them. See Declaration of Former ADA Dawn Florio ("Florio Decl."), Ex. R to the Rossan Reply Decl., ¶ 16. Former ADA Florio sent the tape in question to the Federal Bureau of Investigation ("FBI") for testing. See id. ¶ 17. The FBI concluded that the last three minutes of Tape 7-B, which recorded a conversation between Guillermo Negron, a co-defendant, and Caraballo, was not authentic. See 4/11/00 Rafael Almonte Plea Allocution ("Almonte Plea"), Ex. I to the Rossan Decl., at 23-24. Upon learning that Caraballo fabricated evidence, the state court judge interrupted the trial and excused the jurors before opening statements were made. See id. at 2. It was because of this fabrication, coupled with Plavnick's reluctance to testify, that the People extended a plea offer to Almonte permitting him to plead guilty to conspiracy in the fourth degree (for the attempted robbery of Vargas) in full satisfaction of Indictment 50/97. See id. at 23.

There is no evidence that Caraballo altered any of the tapes containing conversations Almonte had with Payano concerning the conspiracy to commit the carjacking. See Infante Decl.
¶ 14; Florio Decl. ¶ 19.

Almonte alleges that defendants knew of Caraballo's misrepresentations from the beginning. With this knowledge, defendants allegedly formed an unlawful conspiracy to entrap him for crimes he did not commit. See Cmpl., section IV (First Cause of Action-Entrapment). Almonte further claims that former ADA Florio became aware of this entrapment at the investigatory stage of the proceedings, allowed it to continue, and thereby committed fraud by concealing known misrepresentations in a willful attempt to deprive plaintiff of his constitutional rights. See id. (Second Cause of Action-Fraud). Almonte alleges that he has been designated a Central Monitoring case and has continuously been denied parole because he was falsely implicated in Captain Plavnick's shooting. See Pl. Aff. at 3 n. 1 Ex. 1-C (Central Monitoring Case Designation).


Summary judgment is permissible "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). "An issue of fact is genuine `if the evidence is such that a jury could return a verdict for the nonmoving party.'" Gayle v. Gonyea, 313 F.3d 677, 682 (2d Cir. 2002) (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986)). A fact is material when "it `might affect the outcome of the suit under the governing law.'" Id. (quoting Anderson, 477 U.S. at 248).

The party seeking summary judgment has the burden of demonstrating that no genuine issue of material fact exists. See Marvel Characters, 310 F.3d at 286 (citing Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970)). In turn, to defeat a motion for summary judgment, the non-moving party must raise a genuine issue of material fact. To do so, he "`must do more than simply show that there is some metaphysical doubt as to the material facts,'" Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir. 2002) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)), and he "`may not rely on conclusory allegations or unsubstantiated speculation/" Fujitsu Ltd. v. Federal Express Corp., 247 F.3d 423, 428 (2d Cir. 2001) (quoting Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998)). See also Gayle, 313 F.3d at 682. Rather, the non-moving party must produce admissible evidence that supports his pleadings. See First Nat'l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 289-90 (1968). In this regard, "[t]he `mere existence of a scintilla of evidence' supporting the non-movant's case is also insufficient to defeat summary judgment." Niagara Mohawk, 315 F.3d at 175 (quoting Anderson, 477 U.S. at 252).

In determining whether there is a genuine issue of material fact, a court must construe the evidence in the light most favorable to the non-moving party and draw all inferences in that party's favor. See Niagara Mohawk Power Corp. v. Jones Chem, Inc., 315 F.3d 171, 175 (2d Cir. 2003). Accordingly, a court's task is not to "weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249. Summary judgment is therefore inappropriate "if there is any evidence in the record that could reasonably support a jury's verdict for the non-moving party." Marvel Characters, Inc. v. Simon, 310 F.3d 280, 286 (2d Cir. 2002) (citing Pinto v. Allstate Ins. Co., 221 F.3d 394, 398 (2d Cir. 2000)).

A pro se plaintiff is entitled to have his pleadings held to "less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520 (1972). Accordingly, a pro se plaintiff's papers should be interpreted "to raise the strongest arguments that they suggest." McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (internal quotation marks and citation omitted). Nevertheless, a plaintiff's pro se status does not allow him to rely on conclusory allegations or unsubstantiated speculation to overcome a motion for summary judgment. See Satterfield v. United Parcel Serv., Inc., No. 00 Civ. 7190, 2003 WL 22251314, at *15 (S.D.N.Y. Sept. 30, 2003).


1. Entrapment

A. Plaintiff's Federal Claims as Stated in the Complaint

Plaintiff claims that defendants violated his civil rights by entrapping him. This is the basis for one of his claims under section 1983 of Title 42 of the United States Code ("section 1983"). Assuming, arguendo, that plaintiff could establish that his arrest was the result of entrapment, which he has not, a claim of entrapment cannot be the basis for a section 1983 claim. "[A]n investigative officer's participation in an entrapment does not violate the target's constitutional rights, even though entrapment might be established as a defense to the criminal charge." Smith v. Garretto, 147 F.3d 91, 94 (2d Cir. 1998). Furthermore, entrapment is not a constitutional offense. See DiBlaso v. City of New York, 102 F.3d 654, 656 (2d Cir. 1996) (citing Hampton v. United States, 425 U.S. 484, 488-91 (1976) (plurality) and United States v. Russell, 411 U.S. 423, 433 (1973)). See also Jones v. Bombeck, 375 F.2d 737, 738 (3d Cir. 1967) (per curiam) ("While entrapment may be a proper defense in a criminal action, a police officer's participation in such activity does not constitute a constitutional violation."). Because entrapment does not rise to the level of a constitutional violation, plaintiff's section 1983 claim predicated on entrapment must be dismissed.

Section 1983 states:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, 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. . . .
42 U.S.C. § 1983.

2. Conspiracy

Plaintiff alleges that defendants, with full knowledge that Caraballo was misrepresenting facts to save himself from going to prison, unlawfully conspired to deprive him of his civil rights in violation of sections 1983 and 1985 of Title 42 of the United States Code. Specifically, plaintiff states:

Section 1985 states, in relevant part, as follows:

[I]n any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators.
42 U.S.C. § 1985(3).

The authorities learned of Mr. Caraballo's 4 open cases. He [Caraballo] made an agreement with the police that he would give information about the shooting of the Police Captain in the Bronx, in exchange [for] him not going to jail. Mr. Caraballo was transported to the 46th Precinct and recruited to lead the police in identifying and arresting the culprits. Cmpl., section III-A. The above agreement, however, is entirely lawful given that law enforcement agencies use information from confidential informants on a daily basis. Nowhere does plaintiff allege that any member of the NYPD, or any other defendant, agreed with Caraballo to falsify evidence against him in connection with the shooting of Captain Plavnick.
The essence of a conspiracy claim is a combination of two or more persons acting in concert to commit an unlawful act, the principal element of which is an agreement by the parties to inflict wrong upon or injure another. See Perez v. City of New York, No. 97 CV 2915, 1999 WL 1495444, at *4 (E.D.N.Y. Nov. 16, 1999) (recognizing that an essential element of a claim of conspiracy is an agreement among co-conspirators to violate plaintiff's constitutional rights). However, a conspiracy claim cannot exist in a vacuum. A plaintiff alleging a conspiracy under section 1983 must prove an actual violation of constitutional rights. As stated by the Second Circuit,
[s]ection 1983 is only a grant of a right of action; the substantive right giving rise to the action must come from another source. Therefore, although the pleading of a conspiracy will enable a plaintiff to bring suit against purely private individuals, the lawsuit will stand only insofar as the plaintiff can prove the sine qua non of a § 1983 action: the violation of a federal right. See Adickes v. S.H. Kress Co., 398 U.S. 144, 150 (1970) (one of the necessary elements of a § 1983 action is "that the defendant has deprived [the plaintiff] of a right secured by the `Constitution and laws' of the United States.").
Singer v. Fulton County Sheriff, 63 F.3d 110, 119 (2d Cir. 1995) (parallel citations omitted). Because entrapment does not rise to the level of a constitutional violation and because plaintiff has not and cannot bring claims for false arrest or malicious prosecution, see infra Part II.B, his conspiracy claim under section 1983 fails as a matter of law.

Plaintiff's conspiracy claim under section 1985 also fails. The four elements of a section 1985(3) claim are: "(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, or of equal privileges and immunities under the laws; (3) an act in furtherance of the conspiracy; (4) whereby a person is either injured in his person or property or deprived of any right of a citizen of the United States." Mian v. Donaldson, Lufkin Jenrette Sec. Corp., 7 F.3d 1085, 1087 (2d Cir. 1993) (per curiam). Moreover, the conspiracy must be motivated by racial animus. See id. at 1088.

Other than vague, conclusory and speculative allegations, plaintiff has submitted no evidence to support the existence of the alleged conspiracy. Plaintiff has failed to provide any evidence relating to when, where or with whom an unlawful agreement was made. Nor does he describe any specific acts performed in furtherance of the alleged unlawful agreement. The only agreement that is mentioned anywhere is the lawful agreement by Caraballo to provide the NYPD with information relating to the shooting of Captain Plavnick. See Cmpl., section III-A. Nowhere is there any mention of any agreement between Caraballo and any defendant to alter tapes or otherwise fabricate evidence, much less an agreement motivated by racial animus. Given the complete lack of proof in support of the alleged conspiracy, plaintiff's conspiracy claims under sections 1983 and 1985 are dismissed. See Eastway Constr. Corp. v. City of New York, 762 F.2d 243, 251 (2d Cir. 1985) ("[W]here a plaintiff fails to produce any specific facts whatsoever to support a conspiracy allegation, a district court may . . . grant summary judgment.") (internal quotation marks and citation omitted).

For this reason alone, plaintiff's conspiracy claims, which are vague, conclusory and not supported by admissible evidence, must be dismissed. See Leon v. Murphy, 988 F.2d 303, 311 (2d Cir. 1993) (affirming summary judgment dismissing conspiracy claim where plaintiff's only evidence was that defendants met and communicated on several occasions and there was nothing suspicious or improper in such meetings); San Filippo v. U.S. Trust Co., 737 F.2d 246, 256 (2d Cir. 1984) (upholding summary judgment in section 1983 conspiracy action where plaintiff's conclusory allegations were unsupported by any specific facts and were flatly contradicted by defendant's evidence).

A claim brought pursuant to section 1986, which permits suits against persons who neglect or refuse to prevent the commission of a section 1985 violation, must be predicated on a valid section 1985 claim. See Brown v. City of Oneonta, 221 F.3d 329, 341 (2d Cir. 2000), cert. denied, 534 U.S. 816 (2001). Because plaintiff has failed to make out a violation under section 1985, any claim under section 1986 necessarily fails.

3. Section 1981

To establish a claim under section 1981, a plaintiff must allege the following elements: (1) that he is a members of a racial minority; (2) defendants' intent to discriminate on the basis of race; and (3) discrimination concerning one of the statute's enumerated activities. See Mian, 7 F.3d at 1087. Those enumerated activities include the rights "to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property." 42 U.S.C. § 1981 (a). Furthermore, section 1981 only prohibits intentional racial discrimination. See General Building Contractors Ass'n v. Pennsylvania, 458 U.S. 375, 391 (1982); see also Albert v. Carovano, 851 F.2d 561, 573 (2d Cir. 1988) (holding that to plead a section 1981 claim alleging selective enforcement, plaintiff must allege instances in which "similarly situated" non-minorities were treated differently).

Here, the only hint of any conceivable discrimination is the allegation that Caraballo entered into an agreement with police officers to "seek-out, tape record and incriminate persons of the Latino race/class, into making statements against police officers in general and for the purpose of making each individual a suspect, their eventual arrest and prosecution for the shooting of a police captain in the Bronx." Pl. Aff. at 2. Even if the singling out of Latinos as potential police targets is considered discrimination, such discrimination does not relate to any of the activities enumerated in section 1981. In addition, plaintiff fails to allege that any similarly-situated, non-Latino person was treated differently. Plaintiff's section 1981 claim thus fails as a matter of law.

B. Plaintiff's Implied Federal Claims

Plaintiff has stated that he is not asserting claims for either false arrest or malicious prosecution. See 2/5/03 Letter from Almonte to Rossan, Ex. K to the Rossan Decl, at ¶ 1 (" Allegations such as false arrest and malicious prosecution are not my causes of action. These are merely underlying circumstances, such as libel, slander and defamation."). However, interpreting the pro se pleadings liberally as required by Haines v. Kerner, these claims can be considered as if implicitly brought given the facts alleged by plaintiff.

1. False Arrest

The elements of a false arrest claim include a showing that: "1) the defendant[s] intended to confine plaintiff: 2) the plaintiff was conscious of the confinement; 3) the plaintiff did not consent to the confinement; and 4) the confinement was not otherwise privileged." Bernard v. United States, 25 F.3d 98, 102 (2d Cir. 1994). A finding of probable cause is a complete defense to an action for false arrest. See Zanghi v. Incorporated Vill. of Old Brookville, 752 F.2d 42, 45 (2d Cir. 1985). Accordingly, following a guilty plea or conviction at trial, a plaintiff is barred from bringing a false arrest claim without first showing that his conviction has been invalidated. The Supreme Court has held that to recover damages for false arrest, a section 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determinations, or called into questions by a federal court's issuance of a writ of habeas corpus. See Heck v. Humphrey, 512 U.S. 477, 486-87 (1994).

Here, plaintiff was indicted by a grand jury on December 24, 1996, on charges including those for which he was arrested. The grand jury's indictment of plaintiff creates a presumption of probable cause that Almonte has failed to rebut. See Bernard, 25 F.3d at 104 (holding that a grand jury indictment creates a presumption that the arrest was procured with probable cause). Furthermore, plaintiff pleaded guilty to conspiracy in the fourth degree, one of the offenses for which he was arrested and indicted. Under no circumstances can a plaintiff alleging false arrest recover if he was convicted of the offense for which he was arrested. See Cameron v. Fogarty, 806 F.2d 380, 388-89 (2d Cir. 1986) ("[W]here law enforcement officers have made an arrest, the resulting conviction is a defense to a § 1983 action asserting that the arrest was made without probable cause").

As long as the police officer had probable cause to arrest plaintiff for any criminal offense, he is entitled to a complete defense to actions for false arrest and malicious prosecution. See United States v. Martinez, 465 F.2d 79, 81 (2d Cir. 1972) ("When the crime under which the arrest is made and a crime for which probable cause exists are in some fashion related, the arrest is valid.") (internal quotation marks and citation omitted); see also Allison v. Farrell, No. 97 Civ. 2247, 2002 WL 88380, at *4 (S.D.N.Y. Jan. 22, 2002) (finding false arrest claim for resisting arrest barred by plaintiff's conviction by guilty plea to attempted assault in the third degree).

A guilty plea is the equivalent of a conviction. See Saddler v. United States, 531 F.2d 83, 85-86 (2d Cir. 1976).

In sum, because plaintiff was indicted for conspiracy in the fourth degree for attempted robbery, and subsequently pleaded guilty to this charge, any claim for false arrest based on the other charges in Indictment 50/97 cannot succeed. Although plaintiff may not be guilty of attempted murder, he was guilty of conspiracy in the fourth degree. And because his arrest for conspiracy in the fourth degree was supported by probable cause, the fact that he was subsequently indicted on other charges is irrelevant for purposes of any false arrest claim. Plaintiff's reference to "the fruits of the poisonous tree" is therefore inapposite. See Pl Aff at 3 n. 1. Because plaintiff cannot maintain a viable claim for false arrest, he will not be granted leave to amend. Additionally, if plaintiff brings a suit for false arrest in the future, such case will be dismissed on grounds of res judicata.

2. Malicious Prosecution

To the extent that plaintiff's Amended Complaint is construed to contain a cause of action for malicious prosecution, that claim must be dismissed. To state a claim for malicious prosecution, a plaintiff must show: "(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 Posr v. Doherty, 944 F.2d 91, 100 (2d Cir. 1991). `Termination of the criminal charges in plaintiff's favor is an essential element of the claim." Russell, 68 F.3d at 36.

Plaintiff cannot demonstrate that the criminal proceeding against him resulted in a favorable termination. Although plaintiff states that the attempted murder charge and related offenses were ultimately dismissed in a favorable determination, see Pl. Aff. at 3, that is not the case. Because plaintiff pleaded guilty to conspiracy in the fourth degree in full satisfaction of all counts in Indictment 50/97, see Almonte Plea at 6, the criminal proceeding did not terminate in his favor. It is well settled that "if the outcome was the result of a compromise to which the accused agreed, or an act of mercy requested or accepted by the accused, . . . it is not a termination in favor of the accused for purposes of a malicious prosecution claim." Posr v. Court Officer Shield # 207, 180 F.3d 409, 418 (2d Cir. 1999) (internal quotation marks and citation omitted). Because the criminal proceeding did not terminate in plaintiff's favor, despite the fact that the overall result may have been favorable to plaintiff, any claim for malicious prosecution must fail as a matter of law. As with the claim for false arrest, leave to amend will not be granted and any malicious prosecution claim brought in a subsequent suit will be summarily dismissed.

The transcript of plaintiff's plea allocution makes clear that the Bronx District Attorney's Office did not dismiss or contemplate dismissal of any of the charges contained in Indictment 50/97. See Almonte Plea at 3 ("With respect to defendant Rafael Almonte and Damien Ponce, the People would permit those two defendants to plead guilty to the tenth count in the indictment, Penal Law Section 105.10, which is Conspiracy in the Fourth Degree, to satisfy the other counts of the indictment.")

C. Plaintiff's State Law Claims

Plaintiff has expressly brought a cause of action for fraud. Construing his pleadings liberally, he has also alleged libel, slander and defamation. See Cmpl., section III-A (`Therefore, [Caraballo] was their tool for an entrapment, causing innocent persons to be arrested, indicted, prosecuted, made to be objects of libel, slander, and defamation, only to have those charges and accusations thrown-out by a Court of law, based on its falsity."). These are all state law claims. Because all of plaintiff's federal claims have been dismissed, this Court declines to exercise jurisdiction over plaintiff's state law claims. See 28 U.S.C. § 1367(c)(3). See also Pitchell v. Callan, 13 F.3d 545, 549 (2d Cir. 1994) ("[I]t is axiomatic that a court should decline to exercise jurisdiction over state-law claims when it dismisses the federal claims prior to trial.").

[D]istrict courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if —

(1) the claim raises a novel or complex issue of State law,
(2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction,
(3) the district court has dismissed all claims over which it has original jurisdiction, or
(4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction.
28 U.S.C. § 1367(c) (emphasis added).


For the foregoing reasons, plaintiff's cross-motion for summary judgment is denied, defendants' motion for summary judgment is granted, and this case is dismissed. Any appeal from this Order would not be taken in good faith under 28 U.S.C. § 1915(a)(3). See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of the Court is directed to close these motions and this case.


Summaries of

Almonte v. Florio

United States District Court, S.D. New York
Jan 12, 2004
02 Civ. 6722 (SAS) (S.D.N.Y. Jan. 12, 2004)

holding that entrapment is not a constitutional offense

Summary of this case from Flynn v. Pequot
Case details for

Almonte v. Florio

Case Details


Court:United States District Court, S.D. New York

Date published: Jan 12, 2004


02 Civ. 6722 (SAS) (S.D.N.Y. Jan. 12, 2004)

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