MARGO K. BRODIE, District Judge:
Plaintiff Rafael Soto commenced the above-captioned action on August 23, 2012. (Compl., Docket Entry No. 1.) On July 26, 2013, Plaintiff filed an Amended Complaint, bringing claims against the City of New York, County of Kings, District Attorney Charles J. Hynes, Detective Daniel Bonilla, Police Officer Adam Feder, Assistant District Attorney John Giannotti, Assistant District Attorney Lindsay Gerdes, Lieutenant Christophe Marrow, and Detective Brian Meichsner as Defendants. (Am. Compl., Docket Entry No. 11.) Plaintiff brings claims for: (1) violations of the Fourth, Fifth, and Fourteenth Amendments in violation 42 U.S.C. § 1983; (2) unlawful stop and search; (3) false arrest; (4) denial of substantive due process; (5) malicious abuse of process; (6) malicious prosecution; (7) failure to intervene; (8) conspiracy under 42 U.S.C. § 1983; (9) violation of the Equal Protection Clause of the Fourteenth Amendment under 42 U.S.C. § 1983; and (10) municipal liability under Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).
Plaintiff was arrested and charged with multiple counts of robbery in the second degree and burglary in the first and second degrees, and one count each of attempted assault in the first degree, assault in the second degree, kidnapping in the second degree, and unlawful imprisonment in the first degree, stemming from the October 20, 2011 robbery and kidnapping of Masahiro Yoshida (the "robbery-kidnapping"). (Defs. 56.1 ¶ 66; Pl. Resp. 56.1 ¶ 66; Pl. 56.1 ¶¶ 71-73; Defs. Resp. 56.1 ¶¶ 71-73;
In the summer of 2011, Masahiro Yoshida tried to purchase a bread delivery route from Plaintiff. (Defs. 56.1 ¶ 29; Pl. Resp. 56.1 ¶ 29; Pl. 56.1 ¶ 31(a); Defs. Resp. 56.1 ¶ 31(a).) The company, Mr. Route Incorporated ("Mr. Route"), brokered the transaction. (Defs. 56.1 ¶ 30; Pl. Resp. 56.1 ¶ 30; Pl. 56.1 ¶ 33(a); Defs. Resp. 56.1 ¶ 33(a).) As part of the process, Yoshida submitted various information to Mr. Route, including a "binder agreement" containing his home address, which was supposed to be sent to Plaintiff if "everything [was] done right." (Defs. 56.1 ¶¶ 32-33; Pl. Resp. 56.1 ¶¶ 32-33; Pl. 56.1 ¶ 33(c); Defs. Resp. 56.1 ¶ 33(c); Deposition of Masahiro Yoshida ("Yoshida Dep.") 14:20-25, annexed to Francolla Decl. as Ex. C.
Yoshida also completed a "ride along" of the bread route with Plaintiff's employee, Jonathan Mena. (Defs. 56.1 ¶ 34; Pl. Resp. 56.1 ¶ 34; Pl. 56.1 ¶ 31(b); Defs. Resp. 56.1 ¶ 31(b).) As they drove the route, Yoshida and Mena discussed their personal lives, and Yoshida extended Mena an informal job offer contingent on the route purchase. (Defs. 56.1 ¶ 34; Pl. Resp. 56.1 ¶ 34; Pl. 56.1 ¶ 34; Defs. Resp. 56.1 ¶ 34.) Yoshida may have told Mena about the purported $100,000 he had to make the purchase. (Pl. 56.1 ¶ 33(d); Defs. Resp. 56.1 ¶ 33(d).) Ultimately, negotiations broke down, and the purchase fell through. (Defs. 56.1 ¶ 41; Pl. Resp. 56.1 ¶ 41.)
In the early morning hours of October 20, 2011, Mena and his friend, Pablo Dickson,
In the early morning hours of October 20, 2011, Mena picked Dickson up in a van. (Pl. 56.1 ¶¶ 9-10, 24; Defs. Resp. 56.1 ¶¶ 9-10, 24.) At some point, Mena pulled over and covered the van's license plate with a Minnesota license plate. (Pl. 56.1
At approximately 4:30 AM, Mena and Dickson arrived at an apartment complex where they donned ski masks and confronted their target, Yoshida, at gunpoint. (Pl. 56.1 ¶¶ 14-15, 24; Defs. Resp. 56.1 ¶¶ 14-15, 24; Defs. 56.1 ¶ 3; Pl. Resp. 56.1 ¶ 3.) They hit Yoshida repeatedly with their guns, and demanded that Yoshida take them to his apartment. (Pl. 56.1 ¶¶ 16-17, 24; Defs. Resp. 56.1 ¶¶ 16-17, 24; Defs. 56.1 ¶ 3.) Yoshida proceeded to the first-floor, but Mena knew that he actually lived on the second-floor.
Mena and Dickson threw Yoshida into the back of his van and, using zip-ties, tied his ankles together and tied his hands behind his back. (Defs. 56.1 ¶ 12; Pl. Resp. 56.1 ¶ 12.) With Yoshida bound in the back, Mena and Dickson left the area in Yoshida's van. (Defs. 56.1 ¶ 13; Pl. Resp. 56.1 ¶ 13.) After responding to a potential burglary, New York City Police Department ("NYPD") officers discovered Yoshida's van while canvassing the area around his Brooklyn apartment. (Pl. 56.1 ¶ 18; Defs. Resp. 56.1 ¶ 18.) They stopped the van, found Yoshida tied up, and arrested Mena and Dickson. (Defs. 56.1 ¶ 13; Pl. Resp. 56.1 ¶ 13.) The police officers took Mena and Dickson to the 76th Precinct, and Emergency Medical Services transported Yoshida to Long Island College Hospital ("LICH") for treatment. (Defs. 56.1 ¶¶ 18-19; Pl. Resp. 56.1 ¶¶ 18-19; Pl. 56.1 ¶ 20; Defs. Resp. 56.1 ¶ 20; Deposition of Daniel Bonilla ("Bonilla Dep.") 31:2-32:3, annexed to Francolla Decl. as Ex. E.
On October 19, 2011, approximately twelve hours before the attempted robbery, Plaintiff and Mena exchanged a series of text messages. At 4:09 PM, Mena messaged Plaintiff, "Hey, what's up?" (Defs. 56.1 ¶ 54; Pl. Resp. 56.1 ¶ 54.) At 4:11 PM, Plaintiff asked Mena if he was "trying to deliver bread," and, a minute later, Mena messaged Plaintiff, "No bro, I'm at home." (Defs. 56.1 ¶¶ 55-56; Pl. Resp. 56.1 ¶¶ 55-56; Pl. 56.1 ¶¶ 60(c)-(d); Defs. Resp. 56.1 ¶¶ 60(c)-(d).) In that message, Mena continued, "[I]'m just waiting on ya for the other thing. [A]ll the bread shit we can cover tomorrow man," and, thereafter, Plaintiff messaged Mena, "Okay."
Around 8:44 PM, Mena messaged Plaintiff stating in Spanish, "Socio, yay yo tengo un tiguere que puede vajar pa ya conmigo.[] Yo le dije que nadamas le podia dar 10 por que a mi me iban a dar 20 solamenta." (Defs. 56.1 ¶ 59; Pl. Resp. 56.1 ¶ 59.) The parties dispute the translation of the Spanish word "tiguere," but agree that the message otherwise said, "Partner, I already have a dude that can travel over there with me. I told him that I can only give him 10 because I was only going to get 20." (Defs. 56.1 ¶ 59; Pl. Resp. 56.1 ¶ 59; Pl. 56.1 ¶ 60(g); Defs. Resp. 56.1 ¶ 60(g).) Fifteen minutes later, Plaintiff messaged Mena, "I think 10 dollars an hour is fair, please let him know that it's only for a couple weeks, until my wife recovers from surgery thanks." (Defs. 56.1 ¶ 60; Pl. Resp. 56.1 ¶ 60; Pl. 56.1 ¶ 60(h); Defs. Resp. 56.1 ¶ 60(h).)
Defendant Bonilla was assigned as the lead detective investigating Yoshida's robbery-kidnapping. (Defs. 56.1 ¶ 17.) Defendant Assistant District Attorney ("ADA") Gerdes was assigned to handle any prosecution arising from the robbery-kidnapping. (Defs. 56.1 ¶ 23; Pl. Resp. 56.1 ¶ 23; Gerdes Dep. 14:14-15:22.) Defendant ADA Giannotti was assigned to assist with the investigation.
The day of the robbery, Yoshida, Dickson, and Mena were interviewed about the crime. Yoshida was interviewed twice that day: first by Bonilla at LICH, and then by Bonilla and Gerdes at the 76th Precinct. (Pl. 56.1 ¶ 30; Defs. Resp. 56.1 ¶ 30; Defs. 56.1 ¶ 27; Pl. Resp. 56.1 ¶ 27.) Yoshida described the bread route transaction, explaining that he gave Mr. Route a "binder agreement" with his address and that he falsely told Plaintiff that he had $100,000 in his apartment safe. (Defs. 56.1 ¶¶ 29, 31; Pl. Resp. 56.1 ¶¶ 29, 31; Pl. 56.1 ¶¶ 31(a), 33(a)-(c); Defs. Resp. 56.1 ¶¶ 31(a), 33(a)-(c); Yoshida Dep. 15:12-16:4.) Yoshida explained that the binder agreement with his address was supposed to be sent to Plaintiff,
Yoshida suspected Plaintiff was involved in the robbery and kidnapping, and communicated those suspicions to Defendants; however, the parties dispute the reasons for his suspicions. (Defs. 56.1 ¶ 28; Pl. Resp. 56.1 ¶ 28.) According to Defendants, Yoshida suspected Plaintiff because Plaintiff was one of only two people that knew: (1) Yoshida's address and (2) Yoshida's claim about having $100,000 in his apartment's safe. (Defs. 56.1 ¶ 28.) Plaintiff contends that Yoshida only stated that Plaintiff might have Yoshida's address if Mr. Route provided it to him, and that Plaintiff may have also told Mena about the $100,000.
Dickson was interviewed twice, first by Bonilla, and then by Gerdes and Giannotti in a videotaped interview. (Defs. 56.1 ¶ 18; Pl. Resp. 56.1 ¶ 18; Pl. 56.1 ¶ 27; Defs. Resp. 56.1 ¶ 27; Tr. of Videotaped Interview of Pablo Dickson ("Dickson Int. Tr.") annexed to Mouton Decl. as Ex. 20.) Dickson discussed his phone calls with Mena about the crime and the "cuts" of the money going to him, Mena, and a third unknown person. (Defs. 56.1 ¶¶ 19-21; Pl. Resp. 56.1 ¶¶ 19-21; Pl. 56.1 ¶ 24; Defs. Resp. 56.1 ¶ 24.) Dickson described the robbery, stating that Mena knew where Yoshida lived and that Yoshida had $100,000 in his safe. (Defs. 56.1 ¶ 22; Pl. Resp. 56.1 ¶ 22; Pl. 56.1 ¶ 24; Defs. Resp. 56.1 ¶ 24.)
During his interview with Gerdes and Giannotti, Dickson stated, "[Mena] told me while we was in the van, he was like, `Yo, my boy told me about this.' And I'm like, `Who's that?' And he was like Loco, that's cool. He just told me but I, I think down deep inside he's the one who knew."
Bonilla attempted to interview Mena, but Mena refused to speak, answering only preliminary background questions. (Defs. 56.1 ¶ 26; Pl. Resp. 56.1 ¶ 26.) It is undisputed that at some point prior to Plaintiff's arrest, Bonilla learned that Mena and Plaintiff were childhood friends and that Plaintiff hired Mena to work for him on his bread delivery route. (Defs. 56.1 ¶ 38; Pl. Resp. 56.1 ¶ 38.) Bonilla and Gerdes also learned that Mena and Dickson grew up together. (Defs. 56.1 ¶ 39; Pl. Resp. 56.1 ¶ 39.)
On the night of the robbery, Defendants Marrow and Meichsner drove to Yoshida's apartment and found the van used by Dickson and Mena, which was towed back to the 76th Precinct that night. (Defs. 56.1 ¶¶ 36-37; Pl. Resp. 56.1 ¶¶ 36-37; Dep. of Brian Meichsner ("Meichsner Dep.") 11:18-12:16, annexed to Francolla Decl. as Ex. I.) The van was registered to Plaintiff, and had a peeling FedEx logo on its side. (Defs. 56.1 ¶ 37; Pl. Resp. 56.1 ¶ 37; Meichsner Dep. 31:11-16.) On October 21, 2011, when Plaintiff went to the 76th Precinct to retrieve his van, he had his photograph taken.
On October 24, 2011, Bonilla, Marrow, and Meichsner searched Plaintiff's van pursuant to a search warrant. (Defs. 56.1 ¶ 44; Pl. Resp. 56.1 ¶ 44; Pl. 56.1 ¶ 44; Defs. Resp. 56.1 ¶ 44.) The officers found zip-ties, zip-tie packaging, and a receipt dated October 17, 2011 from a Home Depot store in New Jersey. (Defs. 56.1 ¶¶ 44-45; Pl. Resp. 56.1 ¶¶ 44-45; Pl. 56.1 ¶ 44; Defs. Resp. 56.1 ¶ 44.) The receipt listed a cash purchase of "24" "NAT TIE." (Defs. 56.1 ¶ 45; Pl. Resp. 56.1 ¶ 45; Pl. 56.1 ¶ 45; Defs. Resp. 56.1 ¶ 45.) According to Defendants, this reflected the purchase of two packages of 24-inch zip-ties. (Defs. 56.1 ¶ 45.) Plaintiff disputes this, asserting that there is no evidence in the record to explain what "24" "NAT TIE" means. (Pl. Resp. 56.1 ¶ 45.) Defendant Gerdes researched "NAT TIE" on the Home Depot website and believed it "stood for natural tie." (Gerdes Dep. 196:15-18.)
One of the officers vouchered the zip-tie packaging and Home Depot receipt along with the other property recovered from Plaintiff's van. (Property Clerk Voucher Number S037732 ("Property Clerk Voucher") annexed to Mouton Decl. as Ex. 8; Pl.
On October 25, 2011, Bonilla visited the New Jersey Home Depot store listed on the receipt. (Defs. 56.1 ¶ 46; Pl. Resp. 56.1 ¶ 46; Pl. 56.1 ¶ 46; Defs. Resp. 56.1 ¶ 46.) Bonilla viewed packages of zip-ties on Home Depot's shelves, and observed similar packaging to the zip-tie packaging recovered from Plaintiff's van.
The footage shows two men at the Home Depot's self-checkout aisle. (Defs. 56.1 ¶ 48; Pl. Resp. 56.1 ¶ 48.) Although neither man had any distinguishing marks or facial features, Bonilla believed that the larger man was Mena and "assumed" the smaller man was Plaintiff. (Pl. 56.1 ¶ 56; Defs. Resp. 56.1 ¶ 56; Bonilla Dep. 94:2-95:13.)
The parties dispute the evidentiary value of the footage. According to Defendants, the footage showed Plaintiff and Mena purchasing the zip-ties before exiting the store and departing in the same van used in the robbery. (Defs. 56.1 ¶ 48.) Plaintiff contends that Bonilla could only identify the items by referencing the receipt, and, because there is no evidence establishing what the receipt shows, Bonilla did not observe the men purchasing zip-ties.
Bonilla had still photographs made from the footage of the two men. (Pl. 56.1 ¶ 50; Defs. Resp. 56.1 ¶ 50.) Prior to Plaintiff's arrest, Gerdes and Bonilla compared the footage with the photographs and Plaintiff's October 21, 2011 photograph. (Pl. 56.1 ¶ 57; Defs. Resp. 56.1 ¶ 57; Defs. 56.1 ¶ 49; Pl. Resp. 56.1 ¶ 49.) They identified Plaintiff in the video based, at least in part, on similarities among all three. (Pl. 56.1 ¶ 57; Defs. Resp. 56.1 ¶ 57; Defs. 56.1 ¶ 49; Pl. Resp. 56.1 ¶ 49.) Specifically, the person's hairline and black hoodie under a black jacket matched Plaintiff's clothing in the October 21, 2011 photograph.
Prior to Plaintiff's arrest, Bonilla and Gerdes reviewed text messages between Mena and Plaintiff that were exchanged prior to the robbery-kidnapping, which were taken from Mena's phone.
On November 7, 2011, Plaintiff was arrested at the 76th Precinct. (Pl. 56.1 ¶ 71; Defs. Resp. 56.1 ¶ 71; Defs. 56.1 ¶ 61; Pl. Resp. 56.1 ¶ 61.) The parties dispute whether Gerdes, and Marrow and Bonilla jointly decided to arrest Plaintiff. According to Defendants, Bonilla received Gerdes' approval prior to the arrest. (Defs. 56.1 ¶ 62; Defs. Resp. 56.1 ¶ 70.) According to Plaintiff, Gerdes, Bonilla and Marrow jointly determined there was probable cause to arrest Plaintiff. (Pl. 56.1 ¶ 70; Pl. Resp. 56.1 ¶ 62.)
At the Precinct, Plaintiff spoke with Bonilla about zip-ties, generally.
On November 10, 2011, after hearing evidence, including Plaintiff's testimony, a Grand Jury returned a "no true bill" on the single first-degree robbery charge, dismissing that charge. (Pl. 56.1 ¶ 72; Defs. Resp. 56.1 ¶ 72; Gerdes Dep. 277:2-17.) Gerdes presented additional evidence, and on November 28, 2011, the Grand Jury indicted Plaintiff for multiple counts of robbery in the second degree, burglary in the first and second degrees, and one count each of attempted assault in the first degree, assault in the second degree, kidnapping in the second degree, and unlawful imprisonment in the first degree. (Defs. 56.1 ¶ 66; Pl. Resp. 56.1 ¶ 66; Pl.
Three months later, Kings County Supreme Court Judge Ruth Shillingford, dismissed the indictment for a defect in the grand jury proceedings under New York Criminal Procedure Law Section 210.35. (Defs. 56.1 ¶ 68: Pl. Resp. 56.1 ¶ 68; Feb. 28, 2011 Order of Hon. Ruth Shillingford ("Feb. 28 Order") 1, annexed to Francolla Decl. as Ex. S.)
Summary judgment is proper only when, construing the evidence in the light most favorable to the non-movant, "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); see also Tolbert v. Smith, 790 F.3d 427, 434 (2d Cir.2015); Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834, 843 (2d Cir.2013); Kwong v. Bloomberg, 723 F.3d 160, 164-65 (2d Cir.2013). The role of the court is not "to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Cioffi v. Averill Park Cent. Sch. Dist. Bd. of Educ., 444 F.3d 158, 162 (2d Cir.2006) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). A genuine issue of fact exists when there is sufficient "evidence on which the jury could reasonably find for the plaintiff." Anderson, 477 U.S. at 252, 106 S.Ct. 2505. The "mere existence of a scintilla of evidence" is not sufficient to defeat summary judgment. Id. The court's function is to decide "whether, after resolving all ambiguities and drawing all inferences in favor of the non-moving party, a rational juror could find in favor of that party." Pinto v. Allstate Ins. Co., 221 F.3d 394, 398 (2d Cir.2000).
As a preliminary matter, Defendants Gerdes and Bonilla argue that they are entitled to summary judgment because they have absolute or qualified immunity from liability for Plaintiff's false arrest and malicious prosecution claims.
Prosecutors performing duties related to their prosecutorial function are protected from liability under Section 1983 by absolute immunity. See e.g., Burns v. Reed, 500 U.S. 478, 486, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991) ("[P]rosecutors are absolutely immune from liability under § 1983 for their conduct in initiating a prosecution and in presenting the State's case." (internal quotation marks and citations omitted)); Warney v. Monroe Cty., 587 F.3d 113, 120-21 (2d Cir.2009). The immunity extends not only to the District Attorney but to all employees engaged with the judicial process. Hill v. City of New York, 45 F.3d 653, 660-61 (2d Cir. 1995) ("This includes not only officials performing discretionary acts of a judicial nature, but also individual employees who assist such an official and who act under that official's direction in performing functions closely tied to the judicial process."). However, "[p]olice and other law enforcement officers generally [only] enjoy absolute immunity from suit based on the substance of their testimony in judicial and quasi-judicial proceedings." Sclafani v. Spitzer, 734 F.Supp.2d 288, 296-97 (E.D.N.Y.2010) (citing Briscoe v. LaHue, 460 U.S. 325, 333, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983) and Rolon v. Henneman, 517 F.3d 140, 145 (2d Cir.2008)). Because absolute immunity "defeats a suit at the outset," Imbler v. Pachtman, 424 U.S. 409, 419 n. 13, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976), and bars its covered claims, it is a threshold issue and courts "are encouraged to determine" whether it is available to defendants at the start of a litigation. Anilao v. Spota, 774 F.Supp.2d 457, 476 (E.D.N.Y.2011); see Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991) ("[W]e repeatedly have stressed the importance of resolving immunity questions at the earliest possible stage in litigation.").
"To determine whether an official enjoys absolute immunity [the Court] take[s] a `functional approach,' examining `the nature of the function performed, not the identity of the actor who performed it.'" Simon v. City of New York, 727 F.3d 167, 171 (2d Cir.2013), cert. denied ___ U.S. ___, 134 S.Ct. 1934, 188 L.Ed.2d 959 (2014) (quoting Buckley v. Fitzsimmons, 509 U.S. 259, 269, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993)). "[T]he official seeking absolute immunity bears the burden of showing that such immunity is justified for the function in question." Simon, 727 F.3d at 172.
Plaintiff argues that his false arrest claim may proceed against Gerdes because Gerdes does not have absolute immunity for her acts during the investigation of Plaintiff.
"A prosecutor acting in the role of an advocate in connection with a judicial proceeding is entitled to absolute immunity for all acts `intimately associated with the judicial phase of the criminal process.'" Simon, 727 F.3d at 171 (quoting Imbler, 424 U.S. at 430, 96 S.Ct. 984). However, "[P]rosecutors receive only qualified immunity when performing `administrative duties and those investigatory functions that do not relate to an advocate's preparation for the initiation of a prosecution or for judicial proceedings.'" Id. at 172 (quoting Buckley, 509 U.S. at 273, 113 S.Ct. 2606); Bernard v. Cty. of Suffolk, 356 F.3d 495, 502 (2d Cir.2004) ("[O]nly qualified immunity applies to law enforcement officials, including prosecutors, when they perform investigative functions."). This distinction follows because investigatory acts "have historically and by precedent been regarded as the work of police, not prosecutors," Simon, 727 F.3d at 172, and "it is `neither appropriate nor justifiable that, for the same act, immunity should protect the one and not the other,'" Buckley, 509 U.S. at 273, 113 S.Ct. 2606.
"The line between a prosecutor's advocacy and investigating roles might sometimes be difficult to draw." Zahrey v. Coffey, 221 F.3d 342, 347 (2d Cir.2000). Indeed, "[g]ood prosecutors may — usually should — perform acts reasonably characterized as investigative at all phases of a criminal proceeding." Giraldo v. Kessler, 694 F.3d 161, 166 (2d Cir.2012). However, although "[a]lmost any action by a prosecutor, including his or her direct participation in purely investigative activity, could be said to be in some way related to the ultimate decision whether to prosecute," Simon, 727 F.3d at 174 (quoting Burns, 500 U.S. at 495, 111 S.Ct. 1934), the Second Circuit has emphasized that "absolute immunity is not so expansive," Id. Generally, "evaluating evidence and interviewing witnesses ... fall[s] on the absolute immunity side of the line," putting searches "for the clues and corroboration" leading to an arrest "on the qualified immunity side." Giraldo, 694 F.3d at 166 (quoting Smith v. Garretto, 147 F.3d 91, 94 (2d Cir.1998) (quoting Buckley, 509 U.S. at 273, 113 S.Ct. 2606)).
Context is critical, and "it is unhelpful to ascertain the prosecutors' functional role by isolating each specific act done or not done." Warney, 587 F.3d at 123. "The investigative acts that are entitled to only qualified immunity are those undertaken in the phase of law enforcement that involves the gathering and piecing together of evidence for indications of criminal activities and determination of the perpetrators." Giraldo, 694 F.3d at 166. The focus is on whether the act was one at the "core of the prosecutorial function." Simon, 727 F.3d at 173 n. 6 (citing Giraldo, 694 F.3d at 167).
To understand fully the functional approach to determining a prosecutor's role, two Second Circuit cases are illustrative. In Warney, the Second Circuit addressed the prosecutor's decision to conduct and disclose DNA testing in a post-conviction proceeding. Warney, 587 F.3d at 123. The Court highlighted how the decision could vacillate between functions, stating, "[i]f the testing inculpated [plaintiff], it would be a potent tool of the advocacy; if it exculpated [plaintiff], it might be deemed administrative, in the sense that it
In Giraldo, the Second Circuit considered whether absolute immunity extended to a more traditional investigative function — a witness interview. Giraldo, 694 F.3d at 161. There, after police arrested the plaintiff's boyfriend for domestic abuse, she maintained that it was an accident. 694 F.3d at 164. The police took the plaintiff "against her will" to the District Attorney's office, where the prosecutor interrogated her. Id. The Second Circuit reversed the denial of absolute immunity. Id. at 167. According to the Court, the interview was well within the "legitimate functions" of a prosecutor because once the police arrested the plaintiff's boyfriend, "legal decisions at the core of the prosecutorial function — pursuit of the charges, arraignment, bail, etc. — had to be made by [the prosecutors] and made quickly." Id. at 167. The Court further explained that a reasonable prosecutor would need to observe and confirm the plaintiff's account and her credibility in connection with the boyfriend's prosecution. Id.
Much of Gerdes' conduct during the robbery investigation is undisputed. The parties agree that "Gerdes, Marrow, and Bonilla met and discussed the evidence" and "jointly investigated" the robbery. (Pl. 56.1 ¶ 69; Defs. Resp. 56.1 ¶ 69.) The day of Mena and Dickson's arrest, Gerdes interviewed Dickson and, with Bonilla, interviewed Yoshida.
Although Gerdes asserts that her conduct was focused on evaluating evidence supporting Mena and Dickson's prosecution, the record before the Court is unclear. While some of Gerdes' acts, like her interview of Yoshida, appear to be prosecutorial functions,
Gerdes' testimony provides little clarity as to her function during the investigation of Plaintiff, at times suggesting she joined with law enforcement to discover Plaintiff's identity and develop probable cause. (See Gerdes Dep. 78:22-79:8 ("[F]rom day one, the idea that there was this third person involved came to light.... [T]he evidence was pointing towards it being Rafael Soto...."); id. at 187:18-188:10 (describing her review of various evidence at the time and stating "this gave me very, very probative, relevant and powerful evidence connecting Soto to this case"); id. at 188:14-17 ("I was urging the detective to get this video to me quick. To get the results of this information quickly. I mean, [Soto] wasn't arrested."); id. at 188:19-23 ("[T]here was a period from 10/20/11 until 11/7/2011, where we were seeing, you know, what direction the evidence pointed us in." (emphasis added).) Bonilla's testimony about Gerdes' role is similarly unhelpful on this issue. (See Bonilla Dep. 19:18-20 (explaining that "ADA Gerdes" was "assisting in the investigation [of Plaintiff]."), id. at 100:25-101:17 ("Q. Was she involved in all the investigative steps taken in this matter? A. Pretty Much.... We were in constant contact in regard[s] to the steps being taken. If she had a suggestion, we would follow that.").)
Because there are disputed factual issues about Gerdes' role and conduct during Plaintiff's investigation, at this stage, the Court cannot resolve those disputes and conclude that she is entitled to absolute immunity as a matter of law. However, as discussed infra Part II.c.i., Plaintiff's false arrest claim is nevertheless dismissed as to all Defendants because there was probable cause for his arrest.
Defendants assert that Bonilla is also entitled to absolute immunity from Plaintiff's false arrest and malicious prosecution claims. According to Defendants, because
Because a Section 1983 claim is a constitutional tort, the claims are "guided by common-law principles of tort," and a plaintiff must establish causation. See Wray v. City of New York, 490 F.3d 189, 193 (2d Cir.2007) (citing Malley v. Briggs, 475 U.S. 335, 345, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)); Townes v. City of New York, 176 F.3d 138, 145 (2d Cir.1999). Applying those principles, the Second Circuit has held that an officer may escape liability for a constitutional harm where an intervening cause severs the causal connection between the officer's unlawful conduct and the harm to the plaintiff. See Townes, 176 F.3d at 146-47. However, where an officer misled or pressured the official exercising judgment, that conduct may prevent an informed decision, and the officer may still be a proximate cause of the injury. See Bermudez v. City of New York, 790 F.3d 368, 375-76 (2d Cir.2015) (finding that a reasonable jury could conclude that investigating officers' failure to inform the prosecutor "about problems in the initial questioning" of eyewitnesses "could have prevented [the prosecutor] from making an informed decision about the reliability of that evidence"); Zahrey, 221 F.3d at 344 ("[T]here is a constitutional right not to be deprived of liberty as a result of the fabrication of evidence by a government officer acting in an investigatory capacity, at least where the officer foresees that he himself will use the evidence with a resulting deprivation of liberty."); Townes, 176 F.3d at 147 (Intervening exercise of independent judgment will break the causal chain "in the absence of evidence that the police officer misled or pressured the official who could be expected to exercise independent judgment.").
Relying exclusively on a district court's unpublished opinion in Lundt v. City of New York, No. 12-CV-1737, 2013 WL 5298458 (S.D.N.Y. Sept. 20, 2013), Bonilla argues that he is entitled to absolute immunity because Gerdes exercised independent judgment. (Defs. Mem. 19-20.) In Lundt, the court considered, among other claims, a false arrest claim that "rest[ed] essentially on the assertion that [the arresting officer] ignored exculpatory evidence in his possession." Lundt, 2013 WL 5298458, at *5. The prosecutor, who received absolute immunity, authorized the arrest with full knowledge of the exculpatory evidence. Id. The court noted that if the prosecutor "ha[d] absolute immunity from any false arrest charge premised on [the prosecutor's] authorization of an arrest, then [the plaintiff] may not circumvent that immunity by bringing this claim against the investigating officer." Id.
Bonilla's reliance on Lundt is misplaced. First, unlike Lundt, where the prosecutor authorized the arrest, here, the parties dispute whether Gerdes authorized the arrest or if Gerdes, Bonilla, and Marrow jointly decided to arrest Plaintiff. (Defs. 56.1 ¶ 62; Pl. 56.1 ¶ 70.) Second, Lundt involved claims based solely on the prosecutor-authorized arrest, whereas Plaintiff relies on Gerdes' allegedly investigative acts, which would not be entitled to absolute immunity. As discussed above, given the unclear record, the Court cannot determine whether Gerdes is entitled to absolute immunity. As a result, unlike Lundt, where the court had already granted absolute immunity to the prosecutor, Plaintiff is not circumventing the prosecutor's absolute immunity. Accordingly,
Even if absolute immunity does not apply, the doctrine of qualified immunity may bar a plaintiff's claims. That doctrine "shields public officials `from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Southerland v. City of New York, 680 F.3d 127, 141 (2d Cir.2012) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). "[A] decision dismissing a claim based on qualified immunity at the summary judgment stage may only be granted when a court finds that an official has met his or her burden demonstrating that no rational jury could conclude `(1) that the official violated a statutory or constitutional right, and (2) that the right was clearly established at the time of the challenged conduct.'" Coollick v. Hughes, 699 F.3d 211, 219 (2d Cir.2012) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, ___, 131 S.Ct. 2074, 2080, 179 L.Ed.2d 1149 (2011)); see Morris v. Silvestre, 604 Fed.Appx. 22, 24-25 (2d Cir.2015); Manganiello v. City of New York, 612 F.3d 149, 164 (2d Cir.2010) (discussing the elements of qualified immunity). A right is "clearly established" when "the contours of the right are sufficiently clear that a reasonable official would understand that what he is doing violates that right." Southerland, 680 F.3d at 141 (alterations omitted) (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)); Gilles v. Repicky, 511 F.3d 239, 244 (2d Cir.2007). Defendants bear the burden of proof to establish that qualified immunity exists. Sudler v. City of New York, 689 F.3d 159, 174 (2d Cir. 2012); Jackler v. Byrne, 658 F.3d 225, 242 (2d Cir.2011).
Because the application of qualified immunity turns first on the existence of a constitutional violation, the Court addresses its applicability alongside Plaintiff's substantive claims below. Russo v. City of Bridgeport, 479 F.3d 196, 203 (2d Cir.2007) ("As in any § 1983 case on summary judgment, we first determine whether, `[t]aken in the light most favorable to the party asserting the injury, [] the facts alleged show the [defendants'] conduct violated a constitutional right,' and only thereafter consider whether qualified immunity shields individual defendants." (internal citations omitted) (quoting Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001))).
In assessing Section 1983 claims for false arrest, courts generally look to the law of the state in which the arrest occurred. Russo, 479 F.3d at 203. "Under New York law, `to prevail on a claim of false arrest a plaintiff must show that (1) the defendant intended to confine him, (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not consent to the confinement and (4) the confinement was not otherwise privileged.'" Nzegwu v. Friedman, 605 Fed.Appx. 27, 29 (2d Cir.2015) (quoting Jocks v. Tavernier, 316 F.3d 128, 134 (2d Cir.2003)).
"[P]robable cause is an absolute defense to a false arrest claim." Stansbury v. Wertman, 721 F.3d 84, 89 (2d Cir.2013) (quoting Torraco v. Port Auth. of N.Y. & N.J., 615 F.3d 129, 139 (2d Cir. 2010)); Weyant v. Okst, 101 F.3d 845, 852 (2d Cir.1996). "A police officer has probable
Here, the undisputed facts, read in the light most favorable to Plaintiff, establish that after a nearly three-week investigation into the robbery-kidnapping, Defendants developed probable cause to arrest Plaintiff for conspiracy in the second degree, robbery in the first and second degrees, assault in the first and second degrees, or unlawful imprisonment in the first degree. Gerdes and Bonilla knew from one of the perpetrators that a third person was possibly involved, and that, immediately after the incident, Yoshida suspected Plaintiff's involvement. (Defs. 56.1 ¶¶ 21, 28; Pl. Resp. 56.1 ¶¶ 21, 28; Pl. 56.1 ¶¶ 12, 24; Defs. Resp. 56.1 ¶¶ 12, 24.) They knew that during the crime the perpetrators believed Yoshida had $100,000 in a safe, and that at least one of the perpetrators knew exactly where Yoshida lived. (Pl. 56.1 ¶¶ 21-22; Defs. Resp. 56.1 ¶¶ 21-22; Defs. 56.1 ¶¶ 6, 22; Pl. Resp. 56.1 ¶¶ 6, 22) They knew that Yoshida had told Plaintiff about the $100,000 in his apartment safe, and that, if the then-pending purchase transaction had proceeded as expected, Plaintiff was supposed to have Yoshida's address.
Prior to Plaintiff's arrest, Gerdes and Bonilla also knew that Dickson's post-arrest statements and Plaintiff and Mena's text messages from the night of the crime corroborated each other in important respects. Specifically, Gerdes and Bonilla knew that "in the early evening" before the crime, Dickson spoke with Mena briefly but called him back before agreeing to commit the robbery. (Defs. 56.1 ¶ 19 Pl.
Gerdes and Bonilla also connected Plaintiff to evidence from the crime scene prior to Plaintiff's arrest. After discovering Yoshida zip-tied, and finding zip-tie packaging and a Home Depot receipt in Plaintiff's van, Bonilla and Gerdes obtained and reviewed the video footage from Home Depot. (Defs. 56.1 ¶¶ 13, 45-49; Pl. Resp. 56.1 ¶¶ 13, 45-49; Pl. 56.1 ¶¶ 46, 57; Defs. Resp. 56.1 ¶¶ 46, 57.) From that footage, they knew that two men went to Home Depot in a van with a FedEx logo, matching Plaintiff's van, made a purchase, and then left in the same van. After reviewing the footage alongside still frame images from the footage and a photograph of Plaintiff, they concluded that Mena and Plaintiff were the two men in the video. (Defs. 56.1 ¶ 49; Pl. Resp. 56.1 ¶ 49; Pl. 56.1 ¶¶ 50, 56-57; Defs. Resp. 56.1 ¶¶ 50, 56-57.)
Bonilla and Gerdes also concluded, prior to Plaintiff's arrest, Mena and Plaintiff purchased zip-ties at Home Depot based on the Home Depot surveillance footage. (Defs. 56.1 ¶ 48; Gerdes Dep. 187:18-188:10.) While Plaintiff challenges the reliability of the evidence that formed the basis of Bonilla and Gerdes' conclusion that Mena and Plaintiff were the two individuals in the footage, Plaintiff does not challenge the fact that they reached this conclusion prior to his arrest. (Pl. 56.1 ¶¶ 54-59; Pl. Resp. 56.1 ¶ 49.) In addition, although Plaintiff argues that this conclusion was mistaken, unreasonable or unreliable, he fails to dispute facts supporting the reasonableness of their conclusion. First, Plaintiff does not dispute that Bonilla saw the zip-tie packaging recovered from Plaintiff's van. Second, Plaintiff does not dispute that Bonilla knew that the Home Depot receipt, also found in Plaintiff's van, listed a purchase of "24" "NAT TIE." Third, Plaintiff does not dispute that Gerdes researched "NAT TIE" on the Home Depot website and believed it "stood for natural tie," (Gerdes Dep. 196:15-18), or that after reviewing the receipt, Bonilla went to Home Depot and specifically looked at zip-ties, (Pl. 56.1 ¶¶ 45-47; Defs. Resp. 56.1 ¶¶ 45-47). Fourth, Plaintiff does not dispute that Bonilla observed the two men in the footage purchasing two packages that were "white," although it was only through the receipt that Bonilla could "definitely" know what the men were purchasing. (Bonilla Dep. 98:4-11.) These undisputed facts support the reasonableness of Bonilla's and Gerdes' belief that the footage revealed Plaintiff and Mena purchasing zip-ties before the crime.
Based on the totality of facts known by Defendants prior to Plaintiff's arrest, they had probable cause to arrest him for conspiracy to kidnap and for the other substantive offenses he may have "solicit[ed], request[ed], commanded importune[ed] or intentionally aid[ed]." N.Y. Penal Law § 20.00; N.Y. Penal Law § 105.15.
Plaintiff asserts that Defendants' conclusions were unreasonable because they ignored alternative or innocent explanations for Plaintiff's conduct, particularly as to Mena and Plaintiff's text messages and Mena's use of a decoy license plate the night of the robbery. (Pl. Opp'n 6, 10-11.) As discussed below, these arguments are insufficient to defeat the reasonableness of Defendants' conclusion that there was probable cause to believe Plaintiff was involved in criminal activity, because "[t]he fact that an innocent explanation may be consistent with the facts alleged ... does not negate probable cause." Crowley, 460 F.3d at 395 (quoting Fama, 758 F.2d at 838).
Plaintiff asserts that Defendants ignored messages and statements that showed the text messages were about the bread route.
Plaintiff also argues that although Mena concealed the license plate on Plaintiff's van during the crime, this was only to conceal Mena's identity. (Pl. Opp'n 6.) However, it was reasonable for Defendants to infer Plaintiff's involvement from this fact. Bonilla and Gerdes knew (1) that concealing the license plate was to ensure the van was untraceable, (Defs. 56.1 ¶ 40; Pl. Resp. 56.1 ¶ 40), and (2) that the van's
Plaintiff also argues that Defendants' alleged failures to investigate certain leads undermine probable cause. According to Plaintiff, Defendants failed to investigate (1) exculpatory information that the third person involved in the robbery-kidnapping was "Loco," (2) whether Plaintiff actually received Yoshida's address from Mr. Route, and (3) whether the broker from Mr. Route was involved. (Pl. Opp'n 4-5.) "[T]he failure to make a further inquiry when a reasonable person would have done so may be evidence of a lack of probable cause." Lowth v. Town of Cheektowaga, 82 F.3d 563, 571 (2d Cir. 1996). Indeed, "[r]easonable avenues of investigation must be pursued ... [to establish probable cause]." BeVier v. Hucal, 806 F.2d 123, 128 (7th Cir.1986) (quoted approvingly in Oliveira v. Mayer, 23 F.3d 642, 647 (2d Cir.1994)). However, law enforcement is "not required to `explore and eliminate every theoretically plausible claim of innocence before making an arrest,'" Wiltshire v. Williams, 576 Fed. Appx. 48, 49 (2d Cir.2014) (quoting Curley v. Vill. of Suffern, 268 F.3d 65, 70 (2d Cir.2001)), and after establishing probable cause, "an officer is not required to continue investigating, sifting and weighing information," Celestin v. City of New York, 581 F.Supp.2d 420, 432 (E.D.N.Y.2008) (citing Panetta, 460 F.3d at 396-98). See Weiner v. McKeefery, 90 F.Supp.3d 17, 32, 2015 WL 1055890, at *9 (E.D.N.Y.2015) (rejecting argument that officer's failure to review tape recording of underlying incident eliminated probable cause where the sworn statements and interview of victim provided "reasonably trustworthy information" of Plaintiff's crime).
Here, Plaintiff's arguments about Defendants' failures to investigate are insufficient to vitiate the probable cause for his arrest. Even assuming a jury would believe that Dickson told Defendants that "Loco" was the third person involved,
Similarly, failing to obtain direct proof that Plaintiff obtained Yoshida's address or that Mr. Route was not involved in the crime did not vitiate probable cause that
Given the volume of evidence supporting Plaintiff's involvement, the alleged failures to investigate did not negate probable cause. Waldron, 541 Fed.Appx. at 9; O'Brien v. City of Yonkers, No. 07-CV-3974, 2013 WL 1234966, at *16 (S.D.N.Y. Mar. 22, 2013) ("Plaintiff has not raised a genuine issue of material fact regarding whether Defendants' alleged investigative failures `so far departed from what a reasonable person would have undertaken as to ... constitute evidence of lack of probable cause.'" (alteration in original) (quoting Rae v. Cty. of Suffolk, 693 F.Supp.2d 217, 227 (E.D.N.Y.2010)).
Plaintiff attempts to discredit the officers' identification of Plaintiff in the Home Depot footage in support of his argument that there was no probable cause for his arrest. (Pl. Opp'n 7-10; Pl. Mem. 4-6.) According to Plaintiff, Defendants unreasonably identified him in the footage because: (1) many people share Plaintiff and Mena's physical appearance and attire; (2) Defendants did not establish that (a) the receipt reflected zip-tie purchase, or (b) the cash-register and security camera were synchronized; and (3) the license plate on the Fed Ex-marked van was hidden. Even assuming Plaintiff's assertions were true, and drawing all reasonable inferences in his favor, Bonilla and Gerdes were nevertheless reasonable in identifying Plaintiff as one of the individuals in the footage.
Plaintiff isolates each fact to argue that Defendants unreasonably identified him, but it is undisputed that Defendants did not rely on any single aspect of the Home Depot footage to conclude it depicted Plaintiff and Mena purchasing zip-ties. Instead, as Gerdes testified at her deposition in this case — and Plaintiff does not dispute — they considered the context and all available facts. (Gerdes Dep. 324:18-326:11.) That context included the fact that they found the Home Depot receipt in Plaintiff's van, that Bonilla had requested footage from the date and time on the receipt, that two men arrived in a van with a Fed Ex logo and Plaintiff's van had a Fed Ex logo, that Bonilla had previously
Viewing the evidence in the light most favorable to Plaintiff, and examining the totality of undisputed facts, Defendants had probable cause to arrest Plaintiff. Moreover, even if the Court were to find probable cause lacking, as discussed immediately below, it would at least find arguable probable cause to arrest Plaintiff, which entitles the Individual Defendants to qualified immunity.
Even assuming that Defendants did not have probable cause to arrest Plaintiff, the Individual Defendants nevertheless are entitled to summary judgment as to Plaintiff's false arrest claim based on qualified immunity. The Individual Defendants are entitled to qualified immunity because "it was objectively reasonable for them to believe their acts did not violate [Plaintiff's constitutional] rights." Southerland, 680 F.3d at 141.
As discussed above, the Court finds that the Individual Defendants had probable cause to arrest Plaintiff, therefore, Plaintiff has not shown a violation of a constitutional right. However, assuming, arguendo, that the Individual Defendants lacked probable cause to arrest Plaintiff — an act violating a clearly established constitutional right, Jenkins v. City of New York, 478 F.3d 76, 86-87 (2d Cir. 2007) ("[T]here is no doubt that the right to be free from arrest without probable cause was clearly established....") — whether they are entitled to summary judgment based on qualified immunity would turn on whether the Individual Defendants' probable cause determination was objectively reasonable. Gonzalez, 728 F.3d at 157. For Fourth Amendment violations, including false arrest, "[a]n officer's determination is objectively reasonable if there was `arguable' probable cause at the time of the arrest — that is, if officers of reasonable competence could disagree on whether the probable cause test was met." Gonzalez, 728 F.3d at 157 (quoting Jenkins, 478 F.3d at 86-87) (internal quotation marks omitted); Morris, 604 Fed.Appx. at 24-25 ("Arguable probable cause exists if either (a) it was objectively reasonable for the officer to believe that probable cause existed, or (b) officers of reasonable competence could disagree on whether the probable cause test was met." (quoting Escalera v. Lunn, 361 F.3d 737, 743 (2d Cir.2004)) (false arrest and malicious prosecution).
Taking the undisputed facts in the light most favorable to Plaintiff, the Individual Defendants had, at least, arguable probable cause to arrest Plaintiff. They knew Dickson and Mena would split their robbery proceeds with a third person who would get more of the proceeds than them. They knew that Mena and Plaintiff had discussed non-work-related plans on the afternoon of the robbery-kidnapping, and discussed payments to Mena and a third-party that were similar to Mena's and Dickson's shares of the proceeds. They knew that Yoshida told Plaintiff that he had $100,000 in his apartment and that Mena and Dickson sought $100,000 from Yoshida and believed he had it in his
As discussed above, that Plaintiff proffers alternative conclusions and alternative inferences from those undisputed facts does not vitiate probable cause or arguable probable cause. Accordingly, even if Defendants could not establish probable cause, they would be entitled to qualified immunity as to Plaintiff's false arrest claims. Therefore, as to Plaintiff's false arrest claim, the Court denies Plaintiff's cross-motion for summary judgment grants Defendants' motion for summary judgment, and dismisses the claim.
Plaintiff asserts a malicious prosecution claim based on the initiation of criminal proceedings against him. Plaintiff argues that because Defendants lacked probable cause to arrest him, an inference of malice attached to their subsequent prosecution, which terminated in his favor. (Pl. Mem. 10-11.) He further argues that the Individual Defendants knew the prosecution would fail because it was "based on assumptions and uninvestigated leads." (Id. at 11.) Defendants assert that Plaintiff has failed to produce any evidence to show a lack of probable cause or actual malice to support his malicious prosecution claim. (Defs. Mem. 10-14.)
Under New York law, the elements of a malicious prosecution claim are "(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." Morris, 604 Fed.Appx. at 24 (quoting Manganiello, 612 F.3d at 161). In addition, to maintain a Section 1983 claim, a plaintiff must also establish "a `sufficient post-arraignment liberty restraint to implicate the plaintiff's Fourth Amendment rights.'" Rutigliano v. City of New York, 326 Fed. Appx. 5, 9 (2d Cir.2009) (quoting Rohman v. City Transit Auth., 215 F.3d 208, 215 (2d Cir.2000)).
Here, it is undisputed that the proceedings initiated against Plaintiff terminated in his favor when the Kings County District Attorney's Office dismissed all charges against Plaintiff on April 2, 2012, and the charges were subsequently sealed pursuant to New York Criminal Procedure Law Section 160.50. (Defs. 56.1 ¶ 69; Certificate of Disposition.) Defendants argue that Plaintiff cannot establish that Bonilla and Gerdes lacked probable cause to prosecute him. (Defs. Mem. 11.) Accordingly, the Court addresses the probable cause element of Plaintiff's malicious prosecution claim. Because the Court finds that there was probable cause, it declines to address whether Defendants were motivated by malice. The Court also addresses whether Defendants Bonilla and Marrow are entitled to qualified immunity as to Plaintiff's malicious prosecution claim.
"[T]he existence of probable cause is a complete defense to a claim of malicious prosecution in New York, and indictment by a grand jury creates a presumption of probable cause." Lewis v. City of New York., 591 Fed.Appx. 21, 22 (2d Cir. 2015) (quoting Manganiello, 612 F.3d at 161). However, where a grand jury indicts on some, but not all charges, the presumption attaches only to those charges in the indictment. Bermudez, 790 F.3d at 377 ("Where, as here, a grand jury indicted the plaintiff on the relevant criminal charge, New York law creates a presumption of probable cause...." (emphasis added)); Lowth, 82 F.3d at 571 ("Because there is no dispute as to the first two [malicious prosecution] elements, the questions we must address are whether sufficient probable cause existed to charge Mrs. Lowth with each of the crimes." (emphasis added)); Knox v. Cty. of Putnam, No. 10-CV-1671, 2012 WL 4462011, at *4 (S.D.N.Y. Sept. 27, 2012) ("This is insufficient to defeat a claim for malicious prosecution. Defendants here must have had probable cause for each charge for which Plaintiff was prosecuted." (internal quotation marks omitted)); see also Posr v. Doherty, 944 F.2d 91, 100 (2d Cir.1991) (granting a new trial because district court erroneously instructed the jury that probable cause to prosecute as to one charge was sufficient to defeat malicious prosecution claim for three different charges).
Here, it is undisputed that the grand jury indicted Plaintiff on some, but not all, of the charges presented. Because the grand jury returned a "no true bill" on the first degree robbery charge, the probable cause presumption does not attach. See Bermudez, 790 F.3d at 377; Lowth, 82 F.3d at 571. As to the remaining charges, the indictment creates a presumption of probable cause to prosecute Plaintiff, and Plaintiff must overcome that presumption. As discussed below, Plaintiff cannot show a lack of probable cause.
"The probable cause standard in the malicious prosecution context is slightly higher than the standard for false arrest cases." Stansbury, 721 F.3d at 95 (citing Boyd v. City of New York, 336 F.3d 72, 76 (2d Cir.2003)). In the malicious prosecution context, probable cause is the totality of "facts and circumstances as would lead a reasonably prudent person to believe the plaintiff guilty." Id. (quoting Boyd, 336 F.3d at 76); Phillips v. DeAngelis, 331 Fed.Appx. 894, 895 (2d Cir.2009) ("We agree with the District Court that in light of the totality of the evidence, Zell had a sufficient basis of probable cause to initiate the prosecution." (alteration and internal quotation marks omitted)). This inquiry considers the "facts known or reasonably believed at the time the prosecution was initiated, and not at the time of arrest." Castro v. Cty. of Nassau, 739 F.Supp.2d 153, 169 (E.D.N.Y.2010) (internal quotation marks omitted) (quoting Drummond v. Castro, 522 F.Supp.2d 667, 678 (S.D.N.Y.2007)). Where there was probable cause to arrest, plaintiff must show that the defendants learned of some "intervening facts" undermining probable cause "between arrest and initiation of prosecution, [or the] claim[] of malicious prosecution cannot survive." Thomas v. City of New York, 562 Fed.Appx. 58, 60 (2d Cir.2014) (citing Manganiello, 612 F.3d at 161-62, and Lowth, 82 F.3d at 571); Lowth, 82 F.3d at 571 ("In order for probable cause to dissipate [between arrest and prosecution], the groundless nature of the charges must be made apparent by the discovery of some intervening fact."); Weiner, 90 F.Supp.3d at 34, 2015 WL 1055890, at *10 ("[P]laintiff must show that
Here, no reasonable jury could find that the Bonilla and Marrow lacked probable cause to prosecute Plaintiff for first degree robbery. As discussed above, probable cause existed for Plaintiff's arrest, and Plaintiff has produced no evidence even suggesting that Gerdes, Bonilla or Marrow became aware of exculpatory evidence that could undermine that probable cause. See Powell v. Murphy, 593 Fed.Appx. 25, 28 (2d Cir.2014) ("[Plaintiff] concedes that defendants did not learn of any intervening facts between arrest and initiation of prosecution to undermine that probable cause, claims of malicious prosecution cannot survive."). Instead, the undisputed facts show that after Plaintiff's arrest, there was even more evidence to support a finding of probable cause for Plaintiff's prosecution, when, in December 2011, Dickson confirmed that Plaintiff was the third person who was to receive a "cut."
The Grand Jury indicted Plaintiff on multiple counts of robbery in the second degree, burglary in the first and second degrees, and one count each of attempted assault in the first degree, assault in the second degree, kidnapping in the second degree, and unlawful imprisonment in the first degree, creating a presumption of probable cause as to each. Bermudez, 790 F.3d at 377; Manganiello, 612 F.3d at 161-62. "That presumption may be rebutted only `by evidence that the indictment was procured by fraud, perjury, the suppression of evidence or other police conduct undertaken in bad faith.'" Manganiello, 612 F.3d at 162 (internal quotation marks omitted) (quoting Colon v. City of New York, 60 N.Y.2d 78, 83, 468 N.Y.S.2d 453, 455 N.E.2d 1248 (1983)); see Bermudez, 790 F.3d at 377. Defendants argue that Plaintiff cannot overcome this presumption. There is a threshold question, however, as to whether the presumption applies given the indictment's dismissal for a grand jury defect.
The trial court dismissed the indictment against Plaintiff under New York Criminal Procedure Law 210.35(5), a "catch all" provision permitting the "exceptional remedy" of dismissal in "those instances where prosecutorial wrongdoing, fraudulent conduct or errors potentially prejudice the
New York courts have generally recognized that dismissal of an indictment does not negate the presumption of probable cause. See Hernandez v. City of New York., 100 A.D.3d 433, 953 N.Y.S.2d 199, 201 (2012) (The indictment "raised a presumption of probable cause, even though the indictment was subsequently dismissed."); Lawson v. City of New York., 83 A.D.3d 609, 922 N.Y.S.2d 54, 55 (2011) ("The dismissal of the indictment upon the People's motion, based on the conclusion that the evidence against plaintiff was too weak to establish guilt beyond a reasonable doubt ... does not negate the finding of probable cause." (citing Colon, 60 N.Y.2d at 84, 468 N.Y.S.2d 453, 455 N.E.2d 1248); Eisenkraft v. Armstrong, 172 A.D.2d 484, 567 N.Y.S.2d 840, 841 (1991) ("The indictment ... created the presumption of probable cause to commence the prosecution against the plaintiff. The dismissal of the indictment failed to overcome this presumption." (internal citations omitted) (citing Colon, 60 N.Y.2d at 78, 468 N.Y.S.2d 453, 455 N.E.2d 1248)). Similarly, the Second Circuit has noted "the fact that the indictment was subsequently dismissed on procedural grounds does not vitiate the presumption of probable cause that arises from the issuance of the indictment." Cornell v. Kapral, 483 Fed.Appx. 590, 592 (2d Cir.2012); see Lopez v. City of New York, No. 14-CV-1660, 2014 WL 5090041, at *2 (S.D.N.Y. Oct. 10, 2014) (The "presumption holds even if the indictment was subsequently dismissed." (citing Eisenkraft, 567 N.Y.S.2d at 841)).
Although the Second Circuit has noted that dismissals for procedural violations do not preclude the presumption of probable cause, at least one court in this Circuit has held that a dismissal on other grounds can negate the presumption. See Cox v. Cty. of Suffolk, 827 F.Supp. 935, 937 (E.D.N.Y. 1993). In Cox, a grand jury indicted the plaintiff, but, after reviewing the grand jury minutes, the trial court dismissed the indictment, citing a lack of evidence that the defendant possessed the mens rea to commit the crime. Id. at 937. In a subsequent Section 1983 action, the district court held that the indictment's presumption of probable cause did not apply. Id. at 939. The court interpreted New York state precedent to conclude that where a state court reviews and dismisses an indictment "due to total lack of evidence in support of one of the elements of the crime charged, the presumption of probable cause raised by that indictment will fall." Id. (citing Boose v. City of Rochester, 71 A.D.2d 59, 421 N.Y.S.2d 740, 744 (1979)). However, the court noted the tension between its decision and the New York Court of Appeals' decision in Colon, which stated that the presumption "may be overcome only by 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,
Defendants argue that the probable cause presumption applies in this case, relying on Minott v. Duffy, No. 11-CV-1217, 2014 WL 1386583 (S.D.N.Y. Apr. 8, 2014) and Jones v. City of New York, No. 13-CV-0703, 2014 WL 1427855 (E.D.N.Y. Apr. 14, 2014). In Minott, the state court dismissed the plaintiff's indictment because there was "not enough evidence against him." Minott, 2014 WL 1386583, at *2 (internal quotation marks omitted). In the subsequent malicious prosecution action, the district court distinguished Cox, and applied the presumption of probable cause. Id. at *16-17. The court found Cox's result "surprising" given that the New York Court of Appeals has clearly stated that "the presumption of probable cause may be unseated `only by evidence establishing that the police witnesses' acted in bad faith in connection with the grand jury proceeding." Id. at *16 (internal quotation marks omitted) (quoting Rothstein v. Carriere, 373 F.3d 275, 283 (2d Cir.2004) (quoting Colon, 60 N.Y.2d at 82, 468 N.Y.S.2d 453, 455 N.E.2d 1248)). The court distinguished Cox's facts as the state court in Minott dismissed the indictment for a lack of sufficient evidence rather than a "total lack of evidence," as in Cox. Id. at *17. As a result, the court applied the presumption. Id.
In Jones, the state court reviewed the grand jury testimony and dismissed the plaintiff's indictment because there was no probable cause to support the charges. Jones, 2014 WL 1427855 at *2. In the subsequent suit for malicious prosecution, the district court applied the presumption of probable cause to the grand jury indictment despite the dismissal, stating that it disagreed with the state court's conclusion that there was no probable cause. Id. at *4-5.
None of these cases — Jones, Minott, and Cox — however, involved a dismissal under New York Criminal Procedure Law Section 210.35(5). Indeed, Jones is entirely inapposite because the district court did not address whether the prior dismissal for lack of probable cause affected the presumption of probable cause, and instead determined that there was probable cause, and therefore the dismissal was wrong. Cox is likewise inapplicable, because, even if an indictment "lack[ing][] evidence in support of one of the elements of the crime" is not entitled to a presumption of probable cause, Cox, 827 F.Supp. at 939, that was not Judge Shillingford's finding in Plaintiff's case. Although the Court recognizes New York courts' emphasis on the serious and unique nature of dismissals for grand jury defects, as the court in Minott recognized, the New York Court of Appeals has been clear as to when and how a plaintiff may overcome an indictment's presumption of probable cause. Grucci v. Grucci, 20 N.Y.3d 893, 898, 957 N.Y.S.2d 652, 981 N.E.2d 248 (2012) ("[I]n cases in which the grand jury has returned an indictment, there is a presumption of probable cause, and the plaintiff can therefore only succeed on a malicious prosecution claim if he can prove that the indictment was procured by fraud, perjury, suppression of evidence, or other bad-faith conduct." (quoting Colon, 60 N.Y.2d at 82-83, 468 N.Y.S.2d 453, 455 N.E.2d 1248)). Based on the explicit directive from the New York Court of Appeals, and in the absence of any New York State precedent to suggest that a lesser standard should be applied to dismissals under Criminal Procedure Law Section 210.35, the Court adheres to the New York Court of Appeals' explicit instruction and
A plaintiff may overcome the presumption of probable cause by presenting evidence that "the indictment was the product of fraud, perjury, the suppression of evidence by the police, or other police conduct undertaken in bad faith." Bermudez, 790 F.3d at 377 (internal quotation marks omitted); Manganiello, 612 F.3d at 162. Raising doubts about probable cause is insufficient. Ramashwar v. City of New York, 231 Fed.Appx. 26, 27 (2d Cir.2007) (Plaintiff "raised some questions of fact" that "merely tend[ed] to show the absence of probable cause." (citing Colon, 60 N.Y.2d at 83, 468 N.Y.S.2d 453, 455 N.E.2d 1248)); Banno v. City of New York, No. 06-CV-2270, 2015 WL 845709, at *5 (S.D.N.Y. Feb. 25, 2015) (finding that plaintiff did not overcome the presumption where he "merely assert[ed] that for the same reason[s] there [was] a question of fact as to probable cause for the false arrest claim" (citing Colon, 60 N.Y.2d at 83, 468 N.Y.S.2d 453, 455 N.E.2d 1248)); Dukes v. City of New York, 879 F.Supp. 335, 343 (S.D.N.Y.1995) (finding that plaintiff could not overcome the presumption by "merely claim[ing] that [the officer] failed to interview witnesses and to discover additional evidence"). Likewise, where a plaintiff offers merely his version of events to rebut the presumption, this is nothing more than "mere `conjecture' and `surmise' that [the plaintiff's] indictment was procured as a result of conduct undertaken by the defendants in bad faith," and is insufficient. Savino v. City of New York, 331 F.3d 63, 73 (2d Cir.2003) (quoting Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991)); see Peterson v. Regina, 935 F.Supp.2d 628, 643 (S.D.N.Y.2013) ("Peterson has supplied only his suspicions of impropriety as proof of the defendants' misconduct before the grand jury.").
Here, despite alleging misconduct, Plaintiff has failed to adduce any evidence from which a reasonable juror to conclude that Defendants procured his indictment through fraud, perjury, or other bad faith. While Plaintiff relies on Judge Shillingford's dismissal of the indictment to show bad faith conduct in rebutting the presumption, Judge Shillingford's order provides little detail as to the actual Grand Jury proceeding, and Plaintiff merely surmises there was bad faith. In addition, Plaintiff has neither sought nor produced the grand jury minutes in this matter precluding any further evaluation of what occurred before the grand jury.
Plaintiff's malicious prosecution claim against Defendants Bonilla and Marrow
Defendants argue that they are entitled to summary judgment on Plaintiff's denial of the right to fair trial claim because Plaintiff cannot point to evidence suggesting that any of the Individual Defendants made material false statements or fabricated evidence during Plaintiff's prosecution. (Defs. Mem. 23.) Defendants assert that Plaintiff cannot avoid summary judgment based on conclusory assertions. (Defs. Reply 8-9.) Plaintiff argues that the Individual Defendants "created false translations meanings [sic] of text messages between Mena and [Plaintiff], among other things." (Pl. Opp'n 21.)
To establish a fair trial claim, a plaintiff must show that "an (1) investigating official (2) fabricates evidence (3) that is likely to influence a jury's decision, (4) forwards that information to prosecutors, and (5) the plaintiff suffers a deprivation of liberty as a result." Jovanovic v. City of New York, 486 Fed.Appx. 149, 152 (2d Cir.2012) (citing Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 130 (2d Cir.1997)); see Jocks, 316 F.3d at 138. Unlike a false arrest or malicious prosecution claim, "[p]robable cause is not a defense" to a fair trial claim Jovanovic, 486 Fed.Appx. at 152 (citing Ricciuti, 124 F.3d at 129-130).
Plaintiff claims that the Individual Defendants "created false translations meanings [sic] of text messages between Mena and [Plaintiff]." (Pl. Opp'n 21-22; Pl. Mem. 12.) Plaintiff challenges only the translation of Mena's text message to Plaintiff the night of the robbery-kidnapping that states, "Socio, yay yo tengo un tiguere que puede vajar pa ya conmigo. []Yo le dije que nadamas le podia dar 10 por que a mi me iban a dar 20 solamenta." (Defs. 56.1 ¶ 59; Pl. Resp. 56.1 ¶ 59.) For support, Plaintiff highlights two undisputed facts: (1) that Gerdes' interpreted "tiguere" as "bad guy or thug" after reference to "urbandictonary.com," and (2) that the sworn interpretation Gerdes later submitted to the grand jury interpreted "tiguere" as "dude." (Pl. Opp'n 10; Pl. Resp. 56.1 ¶ 59; see Notarized Certificate of Interpretation and Attached Sworn Translation ("Grand Jury Translation") annexed to Mouton Opp'n Decl. as Ex. 9.)
This is insufficient to create a genuine issue of material fact as to Plaintiff's fair trial claim. Drawing all inferences in
In addition, the undisputed facts preclude any finding that a "fabricated" translation caused a deprivation of Plaintiff's liberty. Plaintiff concedes that the interpretation presented to the Grand Jury used the same translation Plaintiff admits is accurate. That translation stated, "Partner, I already have a dude that can travel over there with me. I told him that I can only give him 10 because I was going to only going to [sic] get 20." (Grand Jury Translation 2.) Because the evidence presented to the Grand Jury is identical to Plaintiff's claim as to what the evidence is, Plaintiff's claim that Gerdes fabricated a translation that resulted in a deprivation of liberty is without merit, and is frivolous. The Court denies Plaintiff's cross-motion for summary judgment and grants Defendants' motion for summary judgment as to Plaintiff's denial of fair trial claim.
Plaintiff claims that the Individual Defendants failed to intervene to prevent his unlawful arrest, and now argues he is entitled to summary judgment because "there is a clear violation of [Plaintiff's] rights," and a "clear opportunity" for the Individual Defendants to "prevent the harm done to Plaintiff...." (Pl. Mem. 13.) Defendants also move for summary judgment on Plaintiff's failure to intervene claim, noting that Plaintiff does not identify the people who failed to intervene, or the violations they failed to prevent. (Defs. Mem. 25-26.) They argue that the claim nevertheless fails because there are no constitutional violations. (Defs. Mem. 25-26.)
"[L]aw 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), cert. denied ___ U.S. ___, 135 S.Ct. 1842, 191 L.Ed.2d 723 (2015) (quoting Anderson v. Branen, 17 F.3d 552, 557 (2d Cir.1994) (collecting cases)). An officer may be liable for the preventable harm caused by his or her failure to intervene during a constitutional violation where the officer had "a realistic opportunity" to intervene and prevent the harm. See Terebesi, 764 F.3d at 244 (citing Anderson, 17 F.3d at 557); Graham v. City of New York, 928 F.Supp.2d 610, 622 (E.D.N.Y.2013) (Liability may attach "where that officer observes or has reason to know ... that any constitutional violation has been committed by a law enforcement official." (quoting Anderson, 17 F.3d at 557)). However, "[a]n underlying constitutional violation is
Here, Plaintiff's failure to intervene claim fails as a matter of law, because there is no underlying constitutional violation. As discussed above, Plaintiff's false arrest, malicious prosecution, and fair trial claims fail as a matter of law. As a result, lacking a predicate violation, his failure to intervene claims fails as well. Accordingly, as to Plaintiff's failure to intervene claim, the Court denies Plaintiff's cross-motion for summary judgment, and grants Defendants' motion for summary judgment.
The Municipal Defendants move for summary judgment dismissing Plaintiff's municipal liability claims brought under Monell, 436 U.S. at 658, 98 S.Ct. 2018. They argue that Plaintiff's claim fails because there is no underlying constitutional violation or facts supporting liability. (Defs. Mem. 29-30.) Plaintiff cross-moves for summary judgment, arguing that the Individual Defendants' committed "egregious violation of rights" and Municipal Defendants "failed to take any steps regarding" Bonilla's "fail[ure] to fill out mandated paperwork and safeguard his notes and evidence." (Pl. Mem. 13-14; Pl. Opp'n 23-24.)
A municipal defendant may be liable for a Section 1983 claim where there is a direct causal connection between the municipality's official policy or custom and the constitutional violation. See Monell, 436 U.S. at 694-95, 98 S.Ct. 2018; Torraco, 615 F.3d at 140 (To establish liability "[the] 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." (quoting Wray, 490 F.3d at 195)). This is an extension of liability, not an independent cause of action, and therefore requires an underlying constitutional violation. See Segal v. City of New York, 459 F.3d 207, 219 (2d Cir.2006) (Monell "extends liability to a municipal organization.... [Without an] underlying constitutional violation, [the court's] decision not to address the municipal defendants' liability under Monell was entirely correct.")
Here, because there is no underlying constitutional violation by the Individual Defendants, the Municipal Defendants cannot be liable for a constitutional violation under Monell. Therefore, the Court grants Defendants' motion for summary judgment as to municipal liability.
Plaintiff seeks sanctions against Defendants for alleged spoliation of the zip-tie packaging, which he was not able to view during discovery. Given the resolution
For the forgoing reasons, the Court denies Plaintiff's motions for summary judgment and sanctions and grants Defendants' motion for summary judgment as to all of Plaintiff's claims. The Clerk of Court is directed to close the case.
SO ORDERED.
