PAMELA K. CHEN, District Judge.
Plaintiff Jairo Aguirre ("Plaintiff" or "Aguirre") commenced this action pursuant to 42 U.S.C. § 1983 ("Section 1983") against Defendant New York City Police Department ("NYPD") Officers Sherlon Cromwell ("Cromwell") and Travis Alexander ("Alexander"), NYPD Sergeant Daniel Casella ("Sergeant Casella") (collectively, the "Defendant Officers"), and the City of New York (the "City"), based on Plaintiff's arrest on February 17, 2015. In his Second Amended Complaint ("SAC"),
For the reasons stated below, Defendants' remaining motions as to the City, Alexander and Cromwell are granted in part and denied in part.
On the night of February 17, 2015, Plaintiff was driving his mother's car, looking for a parking spot when he was stopped by Officers Cromwell and Alexander, members of a NYPD Brooklyn South Anti-Crime Team, who were patrolling the area. (Pl. 56.1 ¶¶ 1-4.)
Plaintiff asked Cromwell the reason for having to step out of the car; Cromwell either ignored the question or told Plaintiff that an explanation would be given later. (Pl. 56.1 ¶¶ 8, 10.) Plaintiff complied by stepping out of the car, and Cromwell directed Plaintiff to go to the rear of Plaintiff's car. (Id. ¶¶ 10-11.) Alexander went to the rear of the car and remained there with Plaintiff. (Id. ¶ 12.) Cromwell then searched the car by ripping up the carpet and looking through the glove compartment and armrest. (Id. ¶ 13.) The parties dispute whether anything was found during this search. While Plaintiff claims that there were no drugs in the car, Defendants claim that Cromwell recovered a substance that was later determined to be marijuana. (Compare id., with id. at ¶ 21.) Specifically, Cromwell testified that he found multiple bags of marijuana in the car's cup holder, on the floor of the car, and in the center console armrest. (Cromwell Tr. at 30-32:9.) Once Cromwell was done searching the inside of the car, he walked over to Plaintiff, who was still by the trunk, and asked Plaintiff whether he knew anything about guns. (Iwuh Decl. Ex.
1 ("Aguirre Tr.") at 73:15-16.) Cromwell and Alexander, together, arrested and handcuffed Plaintiff. (Pl. 56.1 ¶¶ 15-16; Alexander Tr. at 10:20-22, 30:7-10.)
While the parties dispute whether a field test was done of the items Cromwell claims to have recovered from Plaintiff's car, Defendants allege that Cromwell vouchered twenty-eight bags of marijuana and two bags of hashish as arrest evidence for Plaintiff. (Pl. 56.1 ¶ 21 (Plaintiff's allegation that no substance was recovered in relation to his arrest and that the criminal complaint did not state that a field test was done); id. ¶ 22 (Defendants' allegations about Cromwell's vouchering of arrest evidence).) Cromwell generated paperwork related to Plaintiff's arrest, including a complaint report, a field test report, and property invoices. The parties dispute whether Cromwell or Alexander was responsible for generating the arrest report. (See id. ¶¶ 29-31 (disputing Defendants' assertion that Cromwell generated the arrest report and that Alexander "assisted" Cromwell by manually entering data into the NYPD online arrest report form).) Sergeant Casella, Cromwell and Alexander's supervisor, verified Plaintiff's arrest and signed Cromwell's field test report. (Id. ¶ 25.) Plaintiff spent 34 hours and 22 minutes in custody before he was released. (Pl. 56.1 ¶ 48; Iwuh Decl. Ex. 10 (Arraignment Status Sheet); Iwuh Decl. Ex. 7 (Joint Status Report).)
Cromwell faxed the completed police paperwork to the Kings County District Attorney's Office ("DA's Office") and spoke to a paralegal there, by telephone, regarding Plaintiff's arrest. (Pl. 56.1 ¶ 26.) Specifically, according to the Complaint Room Screening Sheet, Cromwell informed the DA's Office that his search of Plaintiff's car, conducted at the precinct, yielded twenty-six bags of marijuana and two bags of hashish. (Dkt. 43-12, Iwuh Decl. Ex. 8 (Complaint Room Screening Sheet); see also Cromwell Tr. at 79:23-80:11 (testifying that the Screening Sheet accurately reflected the information he gave to the DA's Office).) Based on his/her conversation with Cromwell, the paralegal drafted, and signed, as deponent, a criminal complaint charging Plaintiff with several different offenses. (Pl. 56.1 ¶ 27.) The criminal complaint named only Cromwell as a source of information concerning Plaintiff's arrest. (Id.) Neither Cromwell nor Alexander signed the criminal complaint. (Speight Decl. Ex. M (Crim. Compl.).) Even though the DA's Office generated a verification form for Cromwell to attest to, the form was never signed by anyone, and Cromwell testified that he "didn't remember seeing [the form] at all." (Pl. 56. 1 ¶ 31.)
Plaintiff was charged with Criminal Possession of Marijuana (N.Y. PL 221.10), Unlawful Possession of Marijuana (N.Y. PL 221.05), and traffic violation (TR 4-08). (Pl. 56.1 ¶ 49; Iwuh Decl. Ex. 11 (Cert. of Disp.).) After Plaintiff had made court appearances and rejected plea offers, on May 20, 2015, the DA's Office moved to dismiss the charges against Plaintiff for insufficient evidence. (Pl. 56.1 ¶ 33; Speight Decl. Ex. O (Cert. of Disp.); Iwuh Decl. Ex. 6 (Record of criminal court's granting of DA's Mot. to Dismiss Pl.'s criminal charge for insufficient evidence); Aguirre Tr. at 92:1-9, 106:1-6.) The charges were dismissed and sealed. (Pl. 56.1 ¶ 34; Iwuh Decl. Ex. 11 (Cert. of Disp.).)
Plaintiff filed the instant lawsuit on October 21, 2015. (Dkt. 1.) Defendants served their answer on December 28, 2015. (Dkt. 8.) Plaintiff then filed an amended complaint on January 20, 2016. (Dkt. 12.) Defendants served their answer to the amended complaint on February 9, 2016. (Dkt. 17.) Plaintiff filed a second amended complaint on June 3, 2016, and Defendants served their answer to that complaint on June 13, 2016. (Dkts. 21, 22.) On February 21, 2017, Defendants' motion for judgment on the pleadings and partial summary judgment was fully briefed.
Defendants have moved for judgment on the pleadings pursuant to Federal Rules of Civil Procedure 12(c) with respect to Plaintiff's Monell claim against the City.
A municipality may be liable under Section 1983 if a municipal "policy or custom" caused a "deprivation of rights protected by the Constitution." Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690-91 (1978); Jones v. Town of E. Haven, 691 F.3d 72, 80 (2d Cir. 2012). A municipality may not be held liable under Section 1983 on the basis of respondeat superior. Monell, 436 U.S. at 694. "To hold a city liable under § 1983 for the unconstitutional actions of its employees, a plaintiff is required to plead and prove three elements: (1) an official policy or custom that (2) causes the plaintiff to be subjected to (3) a denial of a constitutional right." Johnson v. N.Y. City Police Dep't, 651 F. App'x 58, 60 (2d Cir. 2016) (citation, internal quotation marks omitted); see also Roe v. City of Waterbury, 542 F.3d 31, 36 (2d Cir. 2008) ("[T]o prevail on a claim against a municipality under section 1983 based on acts of a public official, a plaintiff is required to prove: (1) actions taken under color of law; (2) deprivation of a constitutional or statutory right; (3) causation; (4) damages; and (5) that an official policy of the municipality caused the constitutional injury.").
The first element of a Monell claim, the existence of an official policy or custom, may be established by any of the following: "(1) a formal policy officially endorsed by the municipality; (2) actions or decisions made by municipal officials with decision-making authority; (3) a practice so persistent and widespread that it constitutes a custom through which constructive notice is imposed upon policymakers; or (4) a failure by policymakers to properly train[,] [discipline,] or supervise their subordinates, such that the policymakers exercised `deliberate indifference' to the rights of the plaintiff." Moran v. Cnty. of Suffolk, No. 11-cv-3704, 2015 WL 1321685, at *9 (E.D.N.Y. Mar. 24, 2015) (citations omitted).
Furthermore, "[a]bsent a showing of a causal link between an official policy or custom and the plaintiff['s] injury, Monell prohibits a finding of liability against the city." Cowan v. City of Mount Vernon, No. 14-cv-8871, 2017 WL 1169667, at *7 (S.D.N.Y. Mar. 28, 2017) (alterations omitted) (quoting Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983)); Batista, 702 F.2d at 397 ("The mere invocation of the pattern or plan will not suffice without [a] causal link." (citation, internal quotation marks, and alterations omitted)). At this stage, of course, Plaintiff need not prove these elements, but he must allege sufficient facts to state a plausible claim for relief. See Santos v. N.Y. City, 847 F.Supp.2d 573, 576 (S.D.N.Y. 2012) ("[A Complaint] must allege facts tending to support, at least circumstantially, an inference that such a municipal policy or custom exists."); Green v. City of Mount Vernon, 96 F.Supp.3d 263, 302 (S.D.N.Y. 2015) ("Although there is no heightened pleading requirement for complaints alleging municipal liability under § 1983, a complaint does not suffice if it tenders naked assertions devoid of further factual enhancement . . . ." (citations, internal quotation marks and alterations omitted)).
Plaintiff appears to base his Monell claim on an alleged "custom" by the City to engage in various forms of unlawful conduct, including false arrests, illegal searches, and fabrication of evidence, and on the City's alleged failure to supervise and discipline its officers.
"[A]n act performed pursuant to a `custom' that has not been formally approved by an appropriate decision maker may fairly subject a municipality to liability on the theory that the relevant practice is so widespread as to have the force of law." Bd. of Cnty. Comm'rs of Bryan Cnty., 520 U.S. 397, 404 (1997); see also Miller v. Cnty. of Nassau, 467 F.Supp.2d 308, 314 (E.D.N.Y. 2006) (noting that a plaintiff may establish municipal liability by demonstrating that a policy maker "indirectly caused the misconduct of a subordinate municipal employee by acquiescing in a longstanding practice or custom which may fairly be said to represent official policy").
The SAC alleges a myriad of unlawful customs or policies by the City: (a) "wrongfully arresting individuals on the pretext that they [a]re/were involved in illegal vice transactions; (b) manufacturing evidence against individuals allegedly involved in illegal vice transactions; (c) unlawfully searching detainees and/or their property in the absence of any reasonable suspicion that said individuals were concealing weapons or contraband; (d) arresting innocent persons in order to meet `productivity' goals (i.e. arrest quotas); and (e) wrongfully and unreasonably brutalizing innocent members of the public, despite the lack of probable cause to do so." (SAC ¶ 95.) Plaintiff also alleges that there is a custom of falsifying evidence by arresting officers. (See id. ¶ 102.) Allegations (a), (b), and (e) require little discussion because, as Defendants pointed out, nothing in the SAC suggests that Plaintiff was arrested or prosecuted for "vice transactions," or was brutalized and subjected to excessive force; thus, even if these allegations of a "custom" were sufficiently alleged, there could be no causal link between them and Plaintiff's arrest. The Court, therefore, examines whether the facts alleged in the SAC are sufficient to plausibly infer that there is a widespread custom of (1) unlawfully searching detainees or their property in the absence of any reasonable suspicion that the detainees were concealing weapons or contraband, (2) fabricating evidence—more specifically, planting drugs on innocent arrestees—and (3) wrongfully arresting people to fulfill arrest quotas.
Setting aside many of the conclusory allegations in the SAC,
(SAC ¶ 38; see also id. ¶ 102 (repeating discussion of the decision). Additionally, in support of his Monell claims alleging a widespread unlawful custom, Plaintiff offers material from Exhibit 13, which he attached to his opposition brief. However, none of the facts in Exhibit 13 were explicitly asserted in Plaintiff's SAC, and thus it would be improper for the Court to consider them for the purpose of a motion to dismiss.
Specifically, Plaintiff argues that a widespread unlawful custom of police misconduct by the City can be inferred from (1) an excerpt of a New York City Civilian Complaint Review Board ("CCRB") report on Improper Entries and Searches by the NYPD from January 2010 to October 2015; (2) an excerpt from a 1994 report by the New York City Commission about allegations of police corruption, perjury, and falsification of documents; (3) an article entitled "Afterword: The Neglected Mollen Commission's Finding on Perjury, Manufactured Facts, and [F]alsification" written by Harry G. Levine, a sociology professor at Queens College, City University of New York; (4) a Huffington Post article that discusses a former New York City narcotics detective's court testimony about the NYPD's planting of drugs on innocent people to boost arrest numbers; and (5) articles about a conviction of a Brooklyn South narcotics detective who was found guilty of planting drugs on innocent people. (See Pl. Br. at 13-16.)
As other courts in this Circuit have found in similar Section 1983 actions, Plaintiff's reliance on reports and articles regarding misconduct by NYPD officers are "inadequate to allege a policy or custom of the City, let alone allege that that policy or custom is the one that gave rise to Plaintiff's alleged violation." Peterec v. City of N.Y., No. 14-cv-309, 2015 WL 1027367, at *7 (S.D.N.Y. Mar. 6, 2015) (emphasis added) (rejecting plaintiff's argument that two suits, which were unrelated to plaintiff's and one of which was a class action suit regarding the City's "stop and frisk" policy, showed "a clear-cut pattern of abuse, that is unconstitutional and a policy and custom of the City of New York that [plaintiff] fell victim to"); see also Hickey v. City of N.Y., No. 01-cv-6506, 2004 WL 2724079, at *21 (S.D.N.Y. Nov. 29, 2004) (explaining that court cannot "take judicial notice of a number of highly-publicized episodes of alleged police abuse . . . and extrapolate from those assumptions an effect on the present episode"), aff'd, 173 F. App'x 893 (2d Cir. 2006); Tchatat v. City of N.Y., No. 14-cv-2385, 2015 WL 5091197, at *11 (S.D.N.Y. Aug. 28, 2015).
The portion of the CCRB report offered in support of Plaintiff's Monell claim is inadequate to plausibly suggest that there is a custom of planting drugs on arrestees, conducting illegal searches, and arresting people to meet quotas. The portion of the report discussed by Plaintiff boils down to the fact that sixteen officers, over the course of five years, were referred by the CCRB to the NYPD's Internal Affairs Bureau ("IAB") for further investigation of potential false official statements made in the context of improper entry or search or failure to show a warrant. (Pl. Exhibit 13 at 77.)
Failure to "supervise city employees may constitute an official policy or custom if the failure amounts to `deliberate indifference' to the rights of those with whom the city employees interact." Wray v. City of N.Y., 490 F.3d 189, 195 (2d Cir. 2007). In addition, "municipal inaction such as the persistent failure to discipline subordinates who violate civil rights [can] give rise to an inference of an unlawful municipal policy of ratification of unconstitutional conduct within the meaning of Monell." Batista, 702 F.2d at 397; see also Boddie v. City of N.Y., No. 15-cv-4275, 2016 WL 1466555, at *3 (S.D.N.Y. Apr. 13, 2016) (citing Batista). When pleading a claim of municipal liability under a theory of failure to supervise or discipline, a plaintiff must allege that the municipal policymaker acted with "deliberate indifference." See City of Canton v. Harris, 489 U.S. 378, 388 (1989) (setting out the "deliberate indifference" standard in a failure to train case); see also Reynolds v. Giuliani, 506 F.3d 183, 192 (2d Cir. 2007) ("[O]nly where the need to act is so obvious, and the inadequacy of current practices so likely to result in a deprivation of federal rights, [can] the municipality or official . . . be found deliberately indifferent to the need." (citing City of Canton, 489 U.S. at 390)); Pipitone v. City of N.Y., 57 F.Supp.3d 173, 191 (E.D.N.Y. 2014) (applying the "deliberate indifference" standard to failure to supervise or discipline claims (citing City of Canton, 489 U.S. at 388-89)).
Plaintiff urges the Court to infer the City's deliberate indifference based on conclusory allegations about the flawed process by which complaints filed with the CCRB are handled. Plaintiff claims that the review and investigation processes by the CCRB and the NYPD Commissioner are designed to yield inadequate disciplining of police misconduct. For example, Plaintiff alleges that the City has failed to adequately discipline police officers for fabricating evidence and conducting unlawful searches. (See SAC ¶¶ 96-101.) Plaintiff also claims that the City and its police commissioner ignore the numerous complaints filed with the CCRB and "the judicial rulings suppressing evidence and finding officers incredible as a matter of law"; that there are "well-documented failures of the [CCRB] . . . to substantiate obviously meritorious citizen complaints"; that "the CCRB virtually never initiates their own findings of false statements against officers who have made false statements to the CCRB in their own defense"; that the "CCRB has no enforcement mechanisms once making a finding against an officer"; and that the NYPD fails to adequately discipline officers for misconduct even after receiving a substantiated complaint by the CCRB. (SAC ¶¶ 96-98.) Furthermore, Plaintiff alleges that the NYPD Department Advocate, the division responsible for following up on substantiated CCRB charges, is understaffed and under-utilized, and that even when the Department Advocate "proves the case in an internal trial against an officer, the police commissioner still maintains the power to reduce the discipline against such an officer, which has been done on many occasions." (SAC ¶ 98.)
Plaintiff alleges no facts to substantiate these conclusory assertions. The Court, therefore, need not, and does not, accept them as true. See Milan v. Wetheimer, 808 F.3d 961, 963 (2d Cir. 2015) ("We accept as true all facts described in the complaint but need not accept `conclusory allegations or legal conclusions couched as factual allegations.'" (alteration omitted) (quoting Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014))). For example, although Plaintiff alleges that policy and custom can be inferred from the CCRB's and the NYPD Commissioner's history of "[ignoring] numerous complaints filed with the CCRB," the SAC does not allege any other facts regarding the number of filed complaints that the CCRB or NYPC Commissioner ignored. Nor does the SAC allege any particular instances of "well-documented" failures of the CCRB to substantiate "obviously" meritorious citizen complaints. Additionally, even assuming it to be true that the Department Advocate is "understaffed" or that the police commissioner has the authority to reduce the discipline against an officer found to have committed misconduct, those allegations alone are far from sufficient to allege a plausible Monell claim based on a theory that the City fails to properly discipline police officers. Thus, the allegations in the SAC are "naked assertion[s] devoid of further factual enhancement" and are insufficient to state a Monell claim. See Iqbal, 556 U.S. at 678 (alteration in original); see also Triano v. Town of Harrison, 895 F.Supp.2d 526, 536 (S.D.N.Y. 2012) (explaining that plaintiff's claims that police officers investigating incidents "systematically fail to credit testimony by non-police officer witnesses and . . . fail to include in their reports relevant factual information [that would] tend to contradict the statements of the police officer involved" were "naked assertions" given the absence of any facts substantiating the allegations). In short, Plaintiff has not alleged enough facts to plausibly raise an inference that any "failure to discipline" was a result of "a deliberate or conscious choice by a municipality." See Mahan v. City of N.Y., No. 00-cv-6645, 2005 WL 1677524, at *3 (E.D.N.Y. July 19, 2005) (quoting City of Canton, 489 U.S. at 389).
Furthermore, as previously discussed supra, Plaintiff has not adequately alleged facts in support of his assertion that the City's deliberate indifference and failure to discipline and supervise the Defendant Officers were the "moving force" behind Plaintiff's constitutional injuries. See Peterec, 2015 WL 1027367, at *7; Hickey, 2004 WL 2724079, at *21. In fact, based on the allegations in the SAC, it is ambiguous whether the Defendant Officers avoided any type of disciplinary proceedings. (See SAC ¶ 98 ("[I]n the extraordinarily rare event, such as the matter at bar, that the CCRB substantiates a complaint and the Department Advocates proves the case in an internal trial against an officer, the police commissioner still maintains the power to reduce the discipline against such an officer. . . .").) Not only is it unclear, based on the SAC, whether the City actually failed to discipline the Defendant Officers, but, even assuming that the Defendant Officers were not disciplined, the SAC does not include sufficient facts to plausibly raise an inference that there was a nexus between any of the purported flaws in the City's disciplinary system for police officers, the failure to discipline Defendants, and Plaintiff's arrest and prosecution. "[T]he stringent causation and culpability requirements set out [by the Supreme Court in City of Canton] have been applied to a broad range of supervisory liability claims, including claims for failure to supervise and failure to discipline." Triano, 895 F. Supp. 2d at 534 (citations and internal quotation marks omitted).
Defendants move for partial summary judgment as to Plaintiff's claims of malicious prosecution, fabrication of evidence, and failure to intervene against Alexander, and the claim of failure to intervene against Cromwell.
A defendant seeking summary judgment must establish that "there is no genuine dispute as to any material fact," and that they are thus "entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "Material" facts are facts that "might affect the outcome of the suit under the governing law." Roberts v. Univ. of Rochester, 573 F. App'x 29, 31 (2d Cir. 2014) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A "genuine" dispute exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 32 (quoting Anderson, 477 U.S. at 248). "The moving party bears the burden of establishing the absence of any genuine issue of material fact." Zalaski v. City of Bridgeport Police Dep't, 613 F.3d 336, 340 (2d Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). Once a defendant has met his initial burden, the plaintiff must "designate specific facts showing that there is a genuine issue for trial." Celotex Corp., 477 U.S. at 323-24 (internal quotation marks omitted). In ruling on a motion for summary judgment, a court must resolve all ambiguities and draw all factual inferences in favor of the nonmoving party. McClellan v. Smith, 439 F.3d 137, 144 (2d Cir. 2006) (citing Anderson, 477 U.S. at 255).
The Court's inquiry upon summary judgment is "determining whether there is the need for a trial—whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson, 477 U.S. at 250; see also id. at 251-52 ("In essence, though, the inquiry . . . [is] 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."). "Summary judgment is appropriate only `[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party.'" Donnelly v. Greenburgh Cent. Sch. Dist. No. 7, 691 F.3d 134, 141 (2d Cir. 2012) (alteration in original) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
Plaintiff asserts a federal malicious prosecution claim against both Cromwell and Alexander, and as previously noted, Defendants move for summary judgment only as to the claim against Alexander. To prevail on a Section 1983 claim of malicious prosecution, a plaintiff must prove the four elements of malicious prosecution under New York law—"(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"—as well as a violation of the plaintiff's rights under the Fourth Amendment. Manganiello v. City of N.Y., 612 F.3d 149, 160-61 (2d Cir. 2010) (citations and quotation marks omitted); see also Singer v. Fulton Cnty. Sheriff, 63 F.3d 110, 116-117 (2d Cir. 1995) (relying in part on common law and New York State malicious prosecution law in analyzing Section 1983 malicious prosecution claim).
Defendants' only basis for seeking summary judgment on Plaintiff's malicious prosecution claim against Alexander is that the first element is not met because Alexander was not personally involved in initiating or continuing criminal proceedings against Plaintiff.
Here, while Cromwell filled out the complaint report, Alexander entered data into the NYPD online arrest report form. (Cromwell Tr. at 78:8-13; Alexander Tr. at 32:22-33:8; see also Iwuh Decl. Ex. 17 ("Arrest Report"); Speight Decl. Ex. H ("Complaint Report").) Both the arrest and complaint reports noted that Plaintiff possessed controlled substances—a fact that Plaintiff contends to be false. (See Arrest Report; Complaint Report.) Cromwell faxed the completed police paperwork to the DA's Office. (Pl. 56.1 ¶ 26.) Although there is no evidence that Alexander signed the criminal complaint or completed any corroborating affidavits, given that Alexander completed an arrest report in furtherance of Plaintiff's arrest, which allegedly contained false information that was "likely to influence a jury's decision," the Court denies Defendants' summary judgment motion as to Plaintiff's malicious prosecution claim against Alexander. See Ross v. Township of Woodbridge, No. 09-cv-1533, 2010 WL 1076275, at *4 (D.N.J. Mar. 23, 2010) (denying summary judgment as to malicious prosecution claim where defendant officer completed an arrest report, even though he did not fill out the complaint or testify at a grand jury proceeding or before a judge in any proceeding related to plaintiff's criminal case); see also Brown v. Mazurski, No. 99-cv-2194, 2000 WL 1745242, at *4 (N.D. Ill. Nov. 28, 2000) (finding "sufficient evidence by which the trier of fact could conclude that knowing misstatements by [defendant officer] led to the initiation of criminal proceedings against [plaintiff]" where defendant signed the arrest report and criminal complaint); accord Zahrey v. Coffey, 221 F.3d 342, 352 (2d Cir. 2000) ("[I]t is not readily apparent why the chain of causation should be considered broken where the initial wrongdoer can reasonably foresee that his misconduct will contribute to an `independent' decision that results in a deprivation of liberty.").
"When a police officer creates false information likely to influence a jury's decision and forwards that information to prosecutors, he violates the accused's constitutional right to a fair trial, and the harm occasioned by such an unconscionable action is redressable in an action for damages under 42 U.S.C. § 1983." Ricciuti, 124 F.3d at 130; see also Morse v. Fusto, 804 F.3d 538, 548 (2d Cir. 2015) (citing Ricciuti); Zahrey, 221 F.3d at 355 ("It is firmly established that a constitutional right exists not to be deprived of liberty on the basis of false evidence fabricated by a government officer.").
To succeed on a Section 1983 claim alleging violation of a right to a fair trial, a plaintiff must prove that "an (1) investigating official (2) fabricat[ed] information (3) that is likely to influence a jury's verdict, (4) forward[ed] that information to prosecutors, and (5) the plaintiff suffer[ed] a deprivation of life, liberty, or property as a result." Id. at 279 (citing Ricciuti, 124 F.3d at 130 and Jocks v. Tavernier, 316 F.3d 128, 138 (2d Cir. 2003)). Defendants move for summary judgment on Plaintiff's fair trial claim arguing that Plaintiff cannot establish that Alexander forwarded fabricated information to prosecutors. Defendants also argue that because some courts have found that a "§ 1983 claim for denial of the right to a fair trial requires that a trial have actually been conducted" and no trial ever occurred in Plaintiff's case, the claim should be dismissed. As the Court has already addressed the issue of Alexander's personal involvement in forwarding false information to the prosecutor in its discussion of the malicious prosecution claim, the Court turns to Defendants' argument that Plaintiff must have gone to trial to assert a fair trial claim.
Although not fully articulated as such in their brief, Defendants' argument relies on the third element of the claim, i.e., the requirement that the fabricated information was one that was "likely to influence a jury's verdict." The logic, presumably, is that because there was no trial, information—even if it were fabricated—could not have influenced a jury's verdict and thus the information was not "likely to influence a jury's decision."
There is a disagreement in this Circuit on this issue. Although some district courts, as Defendants have indicated, find it necessary that a plaintiff has gone to trial in order to sustain a fair trial claim, this Court has previously found that "[a] plaintiff need not have gone to full trial on the merits in order to have an actionable Section 1983 claim based on the denial of a fair trial." Li v. City of N.Y., No. 15-cv-1599 (PKC), 2017 WL 1208422, at *27 (E.D.N.Y. Mar. 31, 2017) (citation and quotations omitted).
Ricciuti, 124 F.3d at 130.
As Judge Woods explained in Garnett v. Undercover Officer C0039, "[i]n Ricciuti, the phrase `likely to influence a jury's decision' evidently describes the materiality of the information. It does not require that the falsified evidence be likely to be presented to a jury—again, the cause of action accrues when the information is presented to the prosecutor, not when it is presented to the jury." No. 13-cv-7083, 2015 WL 1539044, at *4 (S.D.N.Y. Apr. 6, 2015); accord Nnodimele v. Derienzo, No. 13-cv-34611, 2016 WL 337751, at *12 (E.D.N.Y. Jan. 27, 2016) (finding that defendants "misconstrue[d] language" from Ricciuti "as requiring a likelihood that the allegedly fabricated evidence actually influence a jury's decision, meaning that the criminal case must proceed to trial, and the manufactured evidence must reach the jury, and the manufactured evidence must influence the jury's decision").
Here, the conflicts and discrepancies in the evidence relating to the alleged discovery of drugs in Plaintiff's car create a genuine dispute of fact regarding whether Alexander and Cromwell manufactured evidence. Cromwell initially vouchered twenty-eight bags of marijuana and two bags of hashish as evidence for Plaintiff's arrest. (Speight Decl. Ex. K (Property Clerk Invoice).) Subsequently, however, Cromwell informed the DA's Office that a search of the car yielded twenty-six bags of marijuana and two bags of hashish. (Iwuh Decl. Ex. 8 (Complaint Room Screening Sheet).) Although Cromwell testified that the drugs were recovered when he searched the car at the arrest scene, and that nothing else was found when he later again searched the car at the precinct, he noted in the Complaint Room Screening Sheet that the drugs were found in the car's armrest during the search back at the precinct. (Compare Cromwell Tr. at 37:12-18, with Iwuh Decl. Ex. 8 (Complaint Room Screening Sheet).) Furthermore, Alexander testified that he saw the bags of marijuana Cromwell allegedly recovered from Plaintiff for the first time at the precinct. (Pl. 56.1 ¶ 42; Alexander Tr. at 33:9-34:5; Cromwell Tr. at 32:15-33:24.) Alexander also testified that the reason Plaintiff was directed to step out of his car was because Cromwell smelled marijuana, whereas Cromwell testified that the reason was that he saw marijuana on the armrest. (Pl. 56.1 ¶ 45; Alexander Tr. at 28:18-29:25; Cromwell Tr. at 27:20-28:12.) Even though Alexander helped Cromwell arrest and handcuff Plaintiff, according to Cromwell's testimony, at no point did the two officers discuss anything about the recovered drugs. (Cromwell Tr. at 32:18-22; 33:16-20.) Viewing the evidence in the light most favorable to the non-moving party and drawing all factual inferences in the non-moving party's favor, Anderson, 477 U.S. at 252, the Court finds that a reasonable jury could find that Cromwell and Alexander did not find drugs in the car before arresting Plaintiff, but nevertheless arrested him and then falsely reported to the DA's Office that drugs were recovered from the car. Therefore, a genuine issue of material fact exists as to whether Alexander (and Cromwell) fabricated evidence against Plaintiff, and Plaintiff's fabrication of evidence claim against Alexander and Cromwell will proceed to trial.
Defendants seek summary judgment on Plaintiff's failure to intervene against both Alexander and Cromwell with respect to the alleged false arrest, unlawful search, and malicious prosecution of Plaintiff, as well as the alleged denial of his right to a fair trial.
"It is widely recognized that law enforcement officials have an affirmative duty to intervene to protect the constitutional rights of citizens from infringement by other law enforcement officers in their presence." Terebesi v. Torreso, 764 F.3d 217, 243 (2d Cir. 2014) (quoting Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994)). An officer who fails to intervene is liable if "(1) the officer had a realistic opportunity to intervene and prevent the harm; (2) a reasonable person in the officer's position would know that the victim's constitutional rights were being violated; and (3) the officer does not take reasonable steps to intervene." Cook v. City of N.Y., No. 15-cv-6559, 2017 WL 1434493, at *11 (E.D.N.Y. Mar. 20, 2017) (citation and internal quotation marks omitted).
Regarding Alexander's and Cromwell's failure to intervene with respect to the alleged false arrest and malicious prosecution of Plaintiff, Defendants argue that Plaintiff has failed to adduce evidence that Defendants were aware that Plaintiff's arrest and prosecution lacked probable cause. However, as previously discussed, Plaintiff alleges that he was arrested for no valid reason and was subsequently prosecuted based on fabricated evidence. The record evidence indicates that both officers were present at the time Plaintiff's car was pulled over and searched. (Cromwell Tr. at 15:12-18, 18:7-14.) Both officers were present when Plaintiff was handcuffed and arrested. (Alexander Tr. at 30:7-10.) The record also indicates that both Cromwell and Alexander took part in preparing police paperwork that was faxed to the DA's Office. (Cromwell Tr. at 28:6-17; see also Pl. 56.1 ¶ 26.) Thus, a reasonable jury, crediting Plaintiff's version of the facts, could find that there were no drugs in Plaintiff's car to justify his arrest, that the officers, indeed, took part in fabricating information, and that both officers knew that Plaintiff's constitutional rights were being violated when he was arrested and later prosecuted. See Graham v. City of N.Y., 928 F.Supp.2d 610, 622 (E.D.N.Y. 2013) (denying summary judgment noting that the two officer defendants were partners and "present at the scene of the incident"). Thus, the Court denies summary judgment as to Plaintiff's failure to intervene claim based on false arrest and malicious prosecution.
With respect to Plaintiff's failure to intervene claim based on the alleged denial of his fair trial right, Defendants argue that Plaintiff has failed to adduce evidence that either Defendant was aware that fabricated evidence was forwarded to a prosecutor. The Court agrees as to Alexander, but not as to Cromwell. Although Alexander completed an arrest reports, there is no evidence that he was aware that the allegedly false report[s] by him or Cromwell were being transmitted to the DA's Office, such that he could have intervened. By contrast, Cromwell himself testified that the information contained in the criminal complaint was based on information he gave to the DA's Office. (Cromwell Tr. at 61:20-62:5.) As for Alexander, however, Plaintiff has not addressed this particular argument by Defendants, nor has he directed the Court to evidence supporting an inference that Alexander was aware of Cromwell's forwarding of false information to the DA's Office.
Defendants also put forth a more general argument that Plaintiff's failure to intervene claim should be dismissed in its entirety because Plaintiff is relying on a theory of direct participation as to both Cromwell and Alexander. It is true that if both officers are found to be liable under a theory of direct participation by the jury at trial, they would not be liable for failing to intervene. See Chepilko v. City of N.Y., No. 06-cv-5491, 2012 WL 398700, at *8 n.5 (E.D.N.Y. Feb. 6, 2012); see also Anderson, 17 F.3d at 557 ("[A]ll law enforcement officials have an affirmative duty to intervene to protect the constitutional rights of citizens from infringement by other law enforcement officers in their presence." (emphasis added)). At this juncture, however, the undisputed facts do not allow the Court to determine, as a matter of law, which officers should be liable as direct participants and which as non-intervenors. Because there are genuine issues of material fact as to the extent of each officer's participation in the alleged misconduct, Defendants are not entitled to summary judgment on Plaintiff's failure to intervene claim on this basis. See Bryant v. Serebrenik, No. 15-cv-3762, 2016 WL 6426372, at *8 (E.D.N.Y. Oct. 28, 2016).
In sum, Plaintiff's failure to intervene claim relating to the alleged false arrest, unlawful search, and malicious prosecution of Plaintiff will proceed against both Defendants, and Plaintiff's failure to intervene claim relating to the alleged denial of his right to a fair trial will proceed against Cromwell only. Plaintiff's failure to intervene claim against Alexander based on violation of his right to a fair trial is dismissed.
The Court therefore grants Defendants' motion for judgment on the pleadings as to Plaintiff's municipal liability claim against the City and Defendants' partial motion for summary judgment only as to Plaintiff's failure to intervene claim against Alexander relating to the alleged violation of Plaintiff's right to a fair trial. However, Defendants' partial summary judgment motion is denied as to Plaintiff's (1) malicious prosecution claim against Alexander, (2) violation of the right to a fair trial against both Cromwell and Alexander, and (3) failure to intervene claim against Cromwell and Alexander with respect to the alleged false arrest, unlawful search, and malicious prosecution of Plaintiff, and against Cromwell with respect to Alexander's alleged violation of Plaintiff's right to a fair trial.
SO ORDERED.
