Case Information
*0 9/22/2020 UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
--------------------------------------------------------- X
:
OMAR MINUS, :
:
Plaintiff, :
: 17-CV-4827 (VSB) - against - :
: OPINION & ORDER : CITY OF NEW YORK, and JASON :
MILLER, :
:
Defendants. :
--------------------------------------------------------- X
Appearances:
Omar Minus
Brooklyn, NY
Pro se Plaintiff
Debra M. March
Kavin Suresh Thadani
Maria Fernanda Decastro
Stephanie Michelle Vilella Alonso
New York City Law Department
New York, NY
Counsel for Defendants
VERNON S. BRODERICK, United States District Judge:
Pro se Plaintiff Omar Minus (“Plaintiff” or “Minus”) brings this 42 U.S.C. § 1983 action asserting a malicious prosecution claim. Before me is Defendants the City of New York and
Jason Miller’s (together “Defendants”) motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. (Doc. 87.) Because Defendants’ submissions leave no genuine dispute as
to whether Plaintiff can prove the elements of his § 1983 malicious prosecution claim,
Defendants’ motion is GRANTED.
Factual Background [1]
On August 13, 2011, Plaintiff was arrested on various drug-related charges, tampering with physical evidence, and resisting arrest. (Def. 56.1 ¶ 11.) [2] Plaintiff was then charged by
felony complaint with three criminal counts: (1) criminal possession of a controlled substance in
the third degree, in violation of N.Y. Penal Law § 220.16(1); (2) criminal possession of a
controlled substance in the seventh degree, in violation of N.Y. Penal Law § 220.03; and (3)
resisting arrest, in violation of N.Y. Penal Law § 205.30. (Def. 56.1 ¶ 13.) The criminal
complaint stated that on August 13, 2011, Plaintiff was observed (1) handing another individual
a small object in exchange for a sum of money, and (2) in possession of several bags of what
appeared to be crack/cocaine, which Plaintiff attempted to place in his mouth as detectives
approached him. (Vilella Decl. Ex. G, at 1.) [3] The criminal complaint also stated that a field test
of the substance in Plaintiff’s possession confirmed that the substance contained crack/cocaine.
( Id. at 2.; see also Ex. F (Property Clerk Invoice noting that article recovered from Plaintiff
contained crack cocaine).) Plaintiff confirmed during his deposition that he indeed possessed
two twist bags of crack cocaine on August 13, 2011. (Minus Dep. 50:24–51:1.) [4]
Defendants represent that Plaintiff was indicted by a Grand Jury for Criminal Possession of a Controlled Substance in the Third Degree, in violation of New York Penal Law § 220.16(1),
which is a felony under New York law. (Def. 56.1 ¶ 14.) The exhibit Defendants rely on is not
signed and does not appear to be a true bill. [5] However, previous filings do indicate that Plaintiff
was indicted, (Docs. 74-1, 74-2 (Omnibus Decision and Order dated October 26, 2011, entered
by Justice Gregory Carro, Supreme Court of the State of New York, New York County, referring
to Indictment # 4090/2011 in the matter of The People of the State of New York v. Minus , and
denying Plaintiff’s motion to dismiss the indictment), and Plaintiff’s Complaint refers to a Grand
Jury proceeding on August 18, 2011 and an “illegal” vote by the Grand Jury against him,
(Compl. at 2, 3). [6] Accordingly, for purposes of this motion I find it undisputed that Plaintiff was
indicted by a Grand Jury.
On December 16, 2011, Plaintiff was convicted by a jury of Criminal Possession of a Controlled Substance in the Third Degree pursuant to New York Penal Law § 220.16(1) in the
Supreme Court of the State of New York for New York County, and was remanded until
sentencing. (Def. 56.1 ¶ 16; Vilella Decl. Ex. I.) However, on March 10, 2015, the Supreme
Court, Appellate Division, First Department, vacated the conviction finding that Plaintiff was
denied a fair trial, and remanded the case for a new trial. ( See Minus v. Howard , No. 12-CV-
9464 (VSB) (S.D.N.Y. Mar. 31, 2015), ECF No. 66 (“12-CV-9464 (VSB), Mar. 31, 2015 Mem.
& Order”); Def. 56.1 ¶ 17;)
see also People v. Minus
,
Specifically, The Appellate Division concluded that the prosecutor’s closing argument violated
the trial court’s pretrial ruling that evidence of a purported hand-to-hand drug transaction
involving Plaintiff could only be admitted to explain the police’s conduct and could not be
admitted as evidence of Plaintiff’s guilt. Although the Appellate Division concluded that the
conviction was supported by legally sufficient evidence, the court stated that the trial court’s
“error was not harmless, since there [was] a significant probability that [Minus] would have been
acquitted of the possession count if not for the challenged portions of the prosecutor’s
summations.”
Minus
,
remanded, the prosecution was ultimately dismissed on September 8, 2016 on speedy trial
grounds pursuant to N.Y. C.P.L. § 30.30. (Def. 56.1 ¶ 18.) The prosecution’s explanation for
the dismissal was as follows:
The People are conceding 30.30. When the assigned ADA received this transferred case, she reviewed all police witnesses, and investigated whether the case was viable to see whether the evidence still existed, et cetera . In doing so, she interviewed police officers who were still with the New York City Police Department in person and determined she could not prove the case without two retired officers. She subpoenaed their contact information from the pension section; and she interviewed them several times, and several times by phone. Initially, they were cooperative and agreed to come back to testify. As time went on, they [] became less so. And the assigned had difficulty getting them to return her calls. Ultimately, one retired police officer had some issues, which may have contributed to his diminished cooperation. Another officer relocated out of the State. As the People could not secure the appearance of those two officers in the last few months, the case could not be re-tried without them; and now, the case is 30.30, just for the record.
(Vilella Decl. Ex. K, 2:13–3:7.)
Procedural History
On December 28, 2012, Plaintiff filed a complaint in this district alleging claims of false arrest, malicious prosecution, and fabrication of evidence by New York City Police
Detectives Edward Howard (“Howard”), Anthony Bombolino (“Bombolino”), and Jason Miller
(“Miller”), inter alia . (12-cv-9464, Doc. 2.) [7] On March 30, 2015, I entered a Memorandum &
Order granting Howard, Bombolino, and Miller’s motion for summary judgment, dismissing all
claims, and in relevant part concluding that Plaintiff’s malicious prosecution claim could not
proceed because Plaintiff’s prosecution for criminal possession of a controlled substance in the
third degree had not yet been resolved in Plaintiff’s favor. (12-CV-9464 (VSB), Mar. 30, 2015
Mem. & Order.)
After Plaintiff’s criminal conviction was vacated and remanded by the First Department, and prosecution ultimately dismissed on speedy trial grounds, Plaintiff refiled his claims on June
26, 2017 in the instant case, captioned Minus v. Howard et al. , 17-cv-4827 (VSB). (Doc. 2.)
Plaintiff’s complaint named as defendants Howard, Bombolino, and Miller, inter alia , and
asserted false arrest, excessive force, and malicious prosecution claims pursuant to 42 U.S.C. §
1983. ( Id. ) On August 16, 2017, I entered an Order of Service, which concluded under the
doctrine of res judicata , or claim preclusion, that it was appropriate to dismiss certain claims
against Howard, Bombolino, and Miller, because the claims were fully adjudicated on the merits
in the 12-CV-9464 (VSB) action. ( See Doc. 6 (citing 12-cv-9464 (VSB), Mar. 30, 2015 Mem. &
Order) (holding that Plaintiff’s claims for false arrest, malicious prosecution, and fabrication of
evidence failed as a matter of law)). [8] However, my order concluded that in light of Plaintiff’s
successful First Department appeal of his criminal conviction, the malicious prosecution claim
against Miller related to Plaintiff’s prosecution for criminal possession of a controlled substance
in the third degree could proceed. ( Id. )
On November 1, 2019, Defendants filed a motion for summary judgment, supported by a declaration, Local Civil Rule 56.1 statement, and memorandum of law. (Docs. 87, 89, 90, 91.)
Defendants provided the pro se Plaintiff with the required Local Civil Rule Summary Judgment
Notice. (Doc. 88.) After extending Plaintiff’s time to oppose summary judgment, (Docs. 93,
94), and Plaintiff having failed to oppose Defendants’ motion, on February 4, 2020 I entered an
order deeming Defendants’ motion unopposed, (Doc. 95, 97). Plaintiff has still not filed any
opposition to Defendants’ motion or requested a further extension of the deadline to oppose.
Legal Standard Summary judgment is appropriate when “the parties’ submissions show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of
law.”
Fay v. Oxford Health Plan
,
56(a). “[T]he dispute about a material fact is ‘genuine[]’ . . . if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby,
Inc.
,
under the governing law,” and “[f]actual disputes that are irrelevant or unnecessary will not be
counted.” Id.
On a motion for summary judgment, the moving party bears the initial burden of establishing that no genuine factual dispute exists, and, if satisfied, the burden shifts to the
nonmoving party to “set forth specific facts showing that there is a genuine issue for trial,” id. at
256, and to present such evidence that would allow a jury to find in his favor, see Graham v.
Long Island R.R.
,
nonmoving party “must do more than simply show that there is some metaphysical doubt as to
the material facts.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.
,
(1986). In considering a summary judgment motion, a court must “view the evidence in the light
most favorable to the non-moving party and draw all reasonable inferences in its favor, and may
grant summary judgment only when no reasonable trier of fact could find in favor of the
nonmoving party.”
Allen v. Coughlin
,
quotation marks omitted);
see also Matsushita
,
record that could reasonably support a jury’s verdict for the non-moving party,” summary
judgment must be denied.
Marvel Characters, Inc. v. Simon
,
Pro se litigants are afforded “special solicitude” on motions for summary judgment.
Graham v. Lewinski
,
opposition papers of pro se litigants “liberally and interpret them ‘to raise the strongest
arguments that they suggest.’”
McPherson v. Coombe
,
(quoting
Burgos v. Hopkins
,
U.S. 5, 9 (1980) (stating that the submissions of pro se litigants are “held ‘to less stringent
standards than formal pleadings drafted by lawyers’” (quoting
Haines v. Kerner
,
520 (1972))). However, “pro se status does not exempt a party from compliance with relevant
rules of procedural and substantive law.”
Triestman v. Fed. Bureau of Prisons
,
477 (2d Cir. 2006) (internal quotation marks omitted); see also Jorgensen v. Epic/Sony Records ,
not relieve plaintiff of his duty to meet the requirements necessary to defeat a motion for
summary judgment” (citation omitted)).
When a motion for summary judgment is unopposed by a pro se plaintiff, courts may not grant the motion “without first examining the moving party’s submission to determine if it has
met its burden of demonstrating that no material issue of fact remains for trial,” and in doing so
“may not rely solely on the statement of undisputed facts contained in the moving party’s Rule
56.1 statement.”
Vt. Teddy Bear Co.
,
of a decision a court “must be satisfied that the citation to evidence in the record supports the
assertion.” Id . Ultimately, a district court may grant an unopposed motion for summary
judgment against a pro se plaintiff if: (1) the pro se plaintiff has received adequate notice that
failure to file a proper opposition may result in dismissal of the case; and (2) the court is satisfied
that “the facts as to which there is no genuine dispute ‘show that the moving party is entitled to a
judgment as a matter of law.’”
See Champion
,
Discussion [9]
To prove a 42 U.S.C. § 1983 claim for malicious prosecution, a plaintiff must prove “both a violation of his rights under the Fourth Amendment and the elements of a malicious
prosecution claim under state law.”
Dettelis v. Sharbaugh
,
(internal quotations omitted). “Federal law defines the elements of a § 1983 malicious
prosecution claim, and [] a State’s tort law serves only as a source of persuasive authority rather
than binding precedent in defining these elements.” See Lanning v. City of Glens Falls , 908 F.3d
19, 25 (2d Cir. 2018). Under the Fourth Amendment, a malicious prosecution claim requires
proving the “perversion of proper legal procedures implicating [the plaintiff’s] personal liberty
and privacy interests[.]” Id . at 24. The elements of a malicious prosecution claim, borrowed
from New York law, 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 the defendant’s actions.”
Dettelis
,
elements of his malicious prosecution claim. Because Plaintiff’s underlying criminal proceeding
did not terminate in his favor, and because Plaintiff has failed to offer evidence sufficient to
demonstrate a genuine dispute of material fact as to a lack of probable cause, Defendants’ motion
for summary judgment must be granted. [10]
A. Whether the Proceeding Terminated in Plaintiff’s Favor In Lanning , the Second Circuit held that “a plaintiff asserting a malicious prosecution claim under § 1983 must [] show that the underlying criminal proceeding ended in a manner that
affirmatively indicates his innocence.” ,
prosecution terminated in some manner indicating that the person was not guilty of the offense
charged,” based on the “merits” rather than “on any number of procedural or jurisdictional
grounds.”
Id.
at 26, 28 (quoting
Singleton v. City of New York
,
1980)). No single type of disposition is necessary or sufficient, but the termination should be
“measured in objective terms by examining the totality of the circumstances.” Id . at 28. Here,
although Plaintiff was initially convicted by a jury, his conviction was vacated, and his criminal
prosecution ultimately dismissed on speedy trial grounds. I find that under the circumstances the
termination is not favorable to Plaintiff, and therefore conclude that he cannot prove the
favorable termination element of his malicious prosecution claim.
“Under New York law, a dismissal on speedy trial grounds, where the circumstances are otherwise not inconsistent with a plaintiff’s innocence, has long been established to be a
favorable termination.” Nelson v. City of New York , No. 18 CIV. 4636 (PAE), 2019 WL
3779420, at *11 (S.D.N.Y. Aug. 9, 2019) (citing
Smith-Hunter v. Harvey
,
(2000));
Murphy v. Lynn
,
State caselaw, like the decisions of other states, holds that dismissals for lack of timely
prosecution should generally be considered, for purposes of a claim of malicious prosecution, a
termination favorable to the accused.”). However, after its recent Lanning decision, where the
Second Circuit articulated the affirmative indication of innocence standard, the Second Circuit
has not squarely resolved, and courts in this Circuit have disagreed as to, whether a speedy trial
dismissal constitutes a favorable termination under federal law in a Section 1983 malicious
prosecution case.
Compare Alvarez v. Peters
, No. 19-CV-6789,
(E.D.N.Y. Apr. 9, 2020) (finding that speedy trial dismissal is a favorable termination under
Section 1983),
Nelson
,
5599 (PKC) (JO),
City of New York
, No. 17-CV-2697,
adopted
,
“[t]ermination of proceedings due to the expiration of time on speedy trial grounds is not a
termination in the plaintiff’s favor for the purposes of a malicious prosecution claim.”),
McKeefry v. Town of Bedford
, No. 18-CV-10386 (CS),
2, 2019), appeal dismissed (May 20, 2020) (“[I]t appears to this Court that the Lanning court’s
directive that ‘where a dismissal in the interest of justice leaves the question of guilt or innocence
unanswered, it cannot provide the favorable termination required as the basis for that claim,’
,
dismissals.”),
Roger v. Cty. of Suffolk
, No. 13-CV-5290(JS)(ARL),
(E.D.N.Y. Apr. 29, 2020) (“This Court agrees with the line of cases holding that a speedy trial
dismissal is not a favorable termination because it does not affirmatively indicate Plaintiff’s
innocence, as required under Section 1983.” (quotation marks omitted)), and Thompson v. City
of New York
, No. 17 Civ. 3064 (DLC),
that “[t]he dismissal of [plaintiff’s] case on speedy trial grounds does not affirmatively indicate
his innocence, as required under Section 1983”).
After reviewing the relevant precedent, I find more persuasive the line of cases concluding that a speedy trial dismissal does not constitute favorable termination for Section
1983 purposes, particularly under the circumstances of this case. The most detailed examination
of the relevant precedent in favor of the competing view is Judge Paul A. Engelmayer’s recent
decision in
Nelson v. City of New York
, No. 18 CIV. 4636 (PAE),
Aug. 9, 2019). In Nelson , Judge Engelmayer discussed the Second Circuit’s Murphy v. Lynn ,
Court of Appeals would view, for purposes of New York state law, a “dismissal[] for lack of
timely prosecution . . . a termination favorable to the accused.” Id . at 950. Relying on New
York law and the Restatement Second of Torts, Murphy reasoned that a “failure to prosecute in a
timely fashion . . . compels an inference of such an unwillingness or inability to do so as to imply
a lack of reasonable grounds for the prosecution” and that viewing a speedy trial dismissal as
other than favorable would unfairly compel “one charged with a criminal offense to waive his
constitutional or statutory right to a speedy trial in order to preserve his right to civil retribution
for a demonstrated wrong.” Id . at a 949–50 (internal quotation marks and citations omitted).
Judge Engelmayer’s Nelson opinion noted “strong indications in that the Second
Circuit,”
1983 claims, in particular noting footnote 6 of the Lanning decision, which states the following:
Smith-Hunter
, in holding that the dismissal of a prosecution on speedy trial grounds
is a favorable termination although neutral with respect to guilt or innocence, still
reflects the traditional common law.
See
Restatement § 660 cmt. d (principle that
abandonment of a prosecution following certain types of misconduct by the accused
is not a favorable termination does “[n]ot include[ ]” terminations due to “claims
of constitutional or other privilege”);
see also Murphy
,
cases cannot be squared with each other, and that the Lanning footnote is too imprecise in light
of Lanning ’s other observations, leading to the conclusion that a speedy trial dismissal is not a
favorable termination for purposes of a Section 1983 claim without an affirmative indication of
the accused’s innocence.
First, the Murphy decision is primarily based on logic from New York Appellate Division cases that is directly contradicted by . Murphy ’s logic begins by stating that “[w]here
the prosecution did not result in an acquittal, it is deemed to have ended in favor of the accused .
. . only when its final disposition is such as to indicate the innocence of the accused.” Murphy ,
indicative of innocence depends on the nature and circumstances of the termination; the
dispositive inquiry [being] whether the failure to proceed ‘impl[ies] a lack of reasonable grounds
for the prosecution.’”
Id.
(quoting
Loeb v. Teitelbaum
,
494 (2d Dep’t 1980)). Murphy then introduces the following premise: “‘the failure to proceed to
the merits compels an inference of such an unwillingness or inability to do so as to imply a lack
of reasonable grounds for the prosecution.’”
Id.
at 949–50 (quoting
Loeb
,
N.Y.S.2d at 494); see also id. at 950 (“These intermediate appellate decisions have analyzed the
nature of . . . speedy-trial dismissals in the same manner as the state’s highest court has analyzed
other dismissals. Compare Heaney v. Purdy , 324 N.Y.S.2d [47,] 49 [(N.Y. 1971)] (to be
favorable, the disposition must “fairly impl(y) lack of a reasonable ground for the prosecution”
(internal quotation marks omitted)), and Halberstadt v. New York Life Insurance Co ., 194 N.Y.
[1,] 11 (1909) (same),
with Loeb
,
compels an inference of such an unwillingness or inability to do so as to imply a lack of
reasonable grounds for the prosecution”), and Vitellaro v. Eagle Insurance Co ., 541 N.Y.S.2d
[614,] 615 [(2d Dep’t 1989)] (speedy-trial dismissal is favorable to accused “because it implies a
lack of reasonable ground for the prosecution”). However, Lanning is explicit in negating this
premise, and therefore in rejecting Murphy ’s logic:
When a person has been arrested and indicted, absent an affirmative indication that
the person is innocent of the offense charged, the government’s failure to proceed
does not necessarily “impl[y] a lack of reasonable grounds for the prosecution.”
Lanning
,
1984)). Accordingly, in the wake of Lanning , I do not agree with the holding in Nelson and find
that courts should no longer rely on Murphy ’s assumption that the prosecution’s “failure to
proceed to the merits . . . impl[ies] a lack of reasonable grounds for the prosecution” and
therefore suggests a favorable termination, but should instead look to affirmative indications of
innocence to conclude that a termination is favorable to the accused.
In addition to its logic, Murphy relies on a comment in the Restatement Second of Torts, also cited in Lanning , for its conclusion that a speedy trial dismissal constitutes a favorable
termination. However, I find the readings of the Restatement in both Murphy and Lanning to be
imprecise and contradicted by other observations in . Murphy stated as follows:
The matter of whether the prosecution’s effective abandonment of a prosecution, resulting in a termination “with prejudice” and thus foreclosing a new prosecution of the accused on the same charges, constitutes a termination favorable to the accused for purposes of a malicious prosecution claim generally depends on the cause of the abandonment. The prevailing view is that if the abandonment was the result of a compromise to which the accused agreed, or an act of mercy requested or accepted by the accused, or misconduct by the accused, it is not a termination in favor of the accused for purposes of a malicious prosecution claim. See, e.g. , Restatement § 660 . . . An abandonment brought about by the accused’s assertion of a constitutional or other privilege, however, such as the right to a speedy trial, does not fall within these categories, for the accused should not be required to relinquish such a privilege in order to vindicate his right to be free from malicious prosecution. See, e.g. , . . . Restatement § 660 comment d.
Murphy
,
that [the] abandonment of a prosecution following certain types of misconduct by the accused is
not a favorable termination does ‘[n]ot include[ ]’ terminations due to ‘claims of constitutional or
other privilege.’” ,
immediately preceding section of the Restatement specifies instances in which “criminal
proceedings are terminated in favor of the accused,” including, inter alia , “the formal
abandonment of the proceedings by the public prosecutor,” such as entry of a nolle prosequi or
motion to dismiss the complaint. Restatement § 659 & cmt. e. The Restatement further provides
that Section 559 “should be read together with []§ 660 . . . , which deal[s] with exceptional
situations in which the termination of the proceeding is indecisive and not in favor of the
accused.” Id. cmt. a. Thus, the Restatement’s observation in Section 660, comment d—styled as
an exception to an exception—is not a pronouncement that terminations on constitutional
grounds necessarily favor the accused. Instead, this comment merely notes that terminations due
to constitutional or other privileges are exempted from the generally unfavorable terminations
brought on by the accused to avoid trial.
Notably, the comments in Section 660 reaffirm that “[p]roceedings are ‘terminated in favor of the accused,’ as that phrase is used [in the Restatement’s malicious prosecution] Topic,
only when their final disposition is such as to indicate the innocence of the accused.” Id. § 660
cmt. a. The Second Circuit similarly made this observation in Lanning when observing that the
New York Court of Appeals deviated from “the traditional common law of torts, which, as
reflected in the Restatement, requires that a favorable termination affirmatively indicate the
innocence of the accused,” when New York’s highest court concluded that a termination could
be deemed favorable so long as a dismissal was “‘not inconsistent with . . . innocence.’”
Lanning
,
this reason, and because Lanning is explicit in requiring circumstances “affirmatively indicating
[a Plaintiff’s] innocence” to satisfy the favorable termination element, id. at 22, Lanning ’s
footnote 6, stating that the New York Court of Appeal’s holding in Smith-Hunter —“that the
dismissal of a prosecution on speedy trial grounds is a favorable termination although neutral
with respect to guilt or innocence”—“still reflects the traditional common law,” is contradicted
by Lanning itself. Id. at 27 n.6. Because, what is “neutral with respect to guilt or innocence”
cannot “affirmatively indicat[e] [a Plaintiff’s] innocence,” and is explicit in stating that
“where a dismissal . . . ‘leaves the question of guilt or innocence unanswered[,] . . . it cannot
provide the favorable termination required as the basis for [that] claim.’”
(quoting
Hygh v. Jacobs
,
To be clear, I do not hold here that a speedy trial dismissal can never be favorable to the accused; instead, a court should examine the circumstances of the speedy trial dismissal for
affirmative indications of the Plaintiff’s innocence, “measured in objective terms by examining
the totality of the circumstances.”
Id.
at 28;
see also Thompson v. Clark
,
42 (2d Cir. 2020) (stating that Lanning requires “affirmative indications of innocence to establish
favorable termination,” and that in Lanning , “the complaint did not specify a basis for the
dismissal,” and affirming dismissal of malicious prosecution claim noting that “neither the
prosecution nor the court provided any specific reasons about the dismissal on the record,” and
that defense counsel “was unable to point to any affirmative indication of innocence”). This
makes sense since as a practical matter a favorable determination logically requires some notion
that a defendant did not commit the crime of which she was accused, i.e ., some evidence of
innocence.
In this case, Plaintiff has not identified any affirmative indications of innocence, and the state court record dispels any contention that Plaintiff’s “prosecution terminated in some manner
indicating that [he] was not guilty of the offense charged,” based on the “merits” rather than “on
[a] procedural [] ground[].” ,
95). First, Plaintiff was initially convicted by a unanimous jury verdict, and the First Department
found on appeal “that the verdict was based on legally sufficient evidence” despite a fair trial
concern which prompted the vacating of the verdict.
Minus
,
78. Second, the prosecution’s statements leading up to the speedy trial dismissal do not
affirmatively indicate Plaintiff’s innocence, rather, the statements indicate that the failure to
timely bring the prosecution resulted from the prosecutor’s inability to secure the appearances of
necessary witnesses for the retrial. (Vilella Decl. Ex. K, 2:13–3:7.) Indeed, the prosecutor
conceding the speedy trial issue noted that after the case was remanded for retrial, the assigned
ADA “reviewed all police witnesses, and investigated whether the case was viable to see
whether the evidence still existed,” ( id. ), and determined that the prosecution could proceed with
the cooperation of certain retired NYPD officers. These circumstances do not reveal evidence of
Plaintiff’s innocence, and therefore Plaintiff cannot prove the favorable termination element of
his malicious prosecution claim.
B. Lack of Probable Cause Because lack of probable cause is an element of the cause of action, “the existence of probable cause is a complete defense to a claim of malicious prosecution in New York.”
Manganiello v. City of New York
,
New York
,
presumption of probable cause,” which “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.’”
Id.
(quoting
Savino
,
283 (2d Cir. 2004) (“The grand jury’s . . . indictment presumptively established . . . probable
cause. [Plaintiff] was required to rebut that presumption by proving fraud, perjury, suppression
of evidence or other misconduct in the grand jury.”). “The burden of rebutting the presumption
of probable cause requires the plaintiff to establish what occurred in the grand jury, and to
further establish that those circumstances warrant a finding of misconduct sufficient to erode the
‘premise that the Grand Jury acts judicially.’”
Rothstein
,
N.E.2d at 1250);
see also Savino
,
proof in rebutting the presumption of probable cause that arises from the indictment.” (citing
Bernard v. United States
,
indicted on the charge that forms the basis of a malicious prosecution claim, “[i]n order to
survive a motion for summary judgment . . . [the plaintiff] must have submitted evidence
sufficient for a reasonable jury to find that his indictment was procured as a result of police
conduct undertaken in bad faith.”
Savino
,
Here, by failing to oppose Defendants’ motion for summary judgment, and failing to file a Local Civil Rule 56.1 statement with supporting evidence, Plaintiff has not submitted any
evidence as to Miller’s participation in the Grand Jury process that could be used to rebut the
presumption of probable cause created by the Grand Jury indictment. “Accordingly, defendants
are entitled to summary judgment on plaintiff[’s] malicious prosecution claim[], because
plaintiff[] ha[s] not submitted sufficient evidence of fabrication, falsification, or suppression of
evidence, or of any other bad faith conduct, in connection with the procurement of plaintiff[’s]
indictment[].”
McClennon v. New York City
, No. 13-CV-128(KAM)(SMG),
at *20 (E.D.N.Y. June 11, 2018).
Conclusion
Because Plaintiff has failed to set forth any facts showing that there is a genuine dispute for trial regarding his § 1983 malicious prosecution claim, I need not reach the questions of
whether Miller is entitled to qualified immunity on this claim, or whether the City of New York
is subject to municipal liability. For the foregoing reasons, Defendants’ motion for summary
judgment is GRANTED. The Clerk of Court is respectfully directed to terminate the open
motion at Document 87, and is further directed to close this case. The Clerk is also directed to
mail a copy of this Opinion & Order to the pro se Plaintiff.
SO ORDERED.
Dated: September 22, 2020
New York, New York
______________________ Vernon S. Broderick United States District Judge
Notes
[1] I make these factual findings based upon Defendants’ Local Rule 56.1 statement, declarations, and exhibits submitted in connection with summary judgment. I also cite to allegations in Plaintiff’s Complaint. My reliance on these allegations is for purposes of presenting a coherent factual background, but is not intended to constitute findings of undisputed facts.
[2] “Def. 56.1” refers to Defendants’ Local Civil Rule 56.1 statement. (Doc. 90.) Plaintiff has been warned of the
risks of failing to comply with Local Civil Rule 56.1 and Federal Rule of Civil Procedure 56, (
see
Doc. 88), and “[a]
pro se
plaintiff . . . cannot defeat a motion for summary judgment by simply relying on the allegations of his
complaint; he must present admissible evidence from which a reasonable jury could find in his favor.”
Belpasso v.
Port Auth. of New York & New Jersey
,
[3] “Vilella Decl.” refers to the Declaration of Stephanie Michelle Vilella Alonso in support of Defendants’ motion for summary judgment. (Doc. 89.)
[4] “Minus Dep.” refers to the Deposition of Omar Minus, filed as Exhibit B to the Vilella Declaration. (Doc. 89-2.)
[5] I made a similar observation in my March 30, 2015 Memorandum & Order in Plaintiff’s previous case. (12-CV- 9464 (VSB), Mar. 30, 2015 Mem. & Order, at 3 n.5 (“Although Defendants assert in their reply memorandum that Plaintiff was indicted and Plaintiff introduces evidence that his case was before a grand jury, I was unable to find a copy of an actual indictment in the record.”).)
[6] Additionally, I recognize that the filing of a felony complaint serves only to commence a criminal action in New York state court, and in order for a felony prosecution to follow, an indictment must be obtained. See N.Y. Crim. Pro. L. § 100.10(5); id . § 210.05.
[7] Citations to docket 12-cv-9464 refer to documents originally filed in Plaintiff’s previous case, Minus v. Howard , No. 12-CV-9464 (VSB).
[8] My order also substituted and named as a defendant in this case the City of New York in place of the New York City Police Department.
[9] Because this motion is deemed unopposed, I do not have the benefit of Plaintiff’s responses to Defendants’ Local Civil Rule 56.1 statement. ( See supra Part II and Doc. 97.)
[10] Plaintiff has also entirely failed to present competent summary judgment evidence that could be used to prove that Defendant Miller acted with actual malice. This is an independent basis on which I would grant Defendants’ motion.
[11]
Murphy
further notes that “to view a dismissal for failure to prosecute within the time allowed as a termination not
favorable to the accused would have the effect of unfairly compelling one charged with a criminal offense to waive
his constitutional or statutory right to a speedy trial in order to preserve his right to civil retribution for a
demonstrated wrong.”
Murphy
,