THOMAS M. MOROUGHAN v. THE COUNTY OF SUFFOLK, ET AL.
No. 12-CV-0512 (JFB) (AKT)
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
January 20, 2021
JOSEPH F. BIANCO, Circuit Judge (sitting by designation)
MEMORANDUM AND ORDER
JOSEPH F. BIANCO, Circuit Judge (sitting by designation):
Plaintiff‘s claims arise from an incident on February 27, 2011, at approximately 1:17 a.m., on Oakwood Road in Huntington, New York, where plaintiff alleges DiLeonardo unlawfully shot and beat him while DiLeonardo was off-duty and intoxicated, and plaintiff was then falsely arrested and prosecuted to cover-up DiLeonardo‘s unconstitutional use of excessive force. In particular,
On February 26 into February 27, 2011, Defendants Nassau County Police Officer Anthony DiLeonardo and Nassau County Police Officer Edward Bienz, who were off-duty at the time, were out in Huntington Village with their respective girlfriend and wife, and consumed alcohol to the point of intoxication. While on their way home, they were driving erratically and almost ran Plaintiff, Thomas Moroughan, who was driving a taxi, off the road. His girlfriend, Kristie Mondo, was in the taxi with him. The officers got lost on the way, and shortly thereafter Moroughan happened upon them while they were stopped on the side of Oakwood Road, in Huntington, New York. Moroughan yelled at DiLeonardo regarding the dangerous manner in which DiLeonardo was driving. Bienz started [exiting] his vehicle, at which point Moroughan decided to leave the area. Thereafter, at approximately 1:17 AM, DiLeonardo took out . . . his gun and fired all five rounds at the taxi, while walking toward it. Three bullets struck the taxi, two of which hit Moroughan—one in the chest and one in the arm. DiLeonardo then ran up to the driver‘s side door, smashed the window with the butt of his gun, and assaulted Moroughan. While the two struggled, Moroughan managed to put the car in reverse, and fled to Huntington Hospital. Eventually DiLeonardo and Bienz, who were struck by Moroughan‘s open car door as he backed up and fled, were also transported to the hospital. Over two dozen police personnel, from both [the SCPD] and [the NCPD], responded to the hospital, and numerous others responded to the scene. Among them, was the SCPD Homicide Squad, the
NCPD Deadly Force Response Team (“DFRT“) which is a group of four high-ranking members of the NCPD that responds to incidences where officers use deadly physical force. Despite DiLeonardo‘s obvious signs of intoxication, and his commission of several crimes, and despite the fact that probable cause did not exist to arrest or charge Moroughan with any crimes, the NCPD[,] DFRT[,] and the SCPD[,] particularly (but not exclusively) its Homicide Squad, agreed to arrest and charge Moroughan with Assault in the Second Degree, a class D felony, and Reckless Endangerment in the Second Degree, a class B misdemeanor. Several days later, the Suffolk County District Attorney‘s Office pulled the investigation from the SCPD Homicide Squad, and several months after that, dismissed both charges against Moroughan.
(Pl.‘s Opp‘n to Hunter‘s Br. at 1-2.)
Based upon these allegations, plaintiff asserts that the individual defendants violated his constitutional rights by subjecting him to a false arrest, malicious prosecution, and/or due process violations (involving the fabrication of evidence against him) to conceal DiLeonardo‘s unconstitutional conduct. Plaintiff further asserts that these defendants conspired to violate his constitutional rights by falsely arresting, prosecuting, and imprisoning plaintiff while shielding DiLeonardo and Bienz from investigation or prosecution for their criminal acts. Plaintiff also brings a municipal liability claim under
The defendants deny these factual allegations and defend against the various claims on multiple grounds. For example, DiLeonardo contends that his use of force was lawful because plaintiff attempted to run him over with his car when DiLeonardo got out of his own car, and thus he fired his gun at plaintiff because he feared for his life. The moving defendants assert that the arrest and prosecution of plaintiff was supported by probable cause because it was based upon DiLeonardo‘s sworn statement regarding the incident, and there was no reason to question the veracity or reliability of that statement. The defendants also deny any alleged fabrication of evidence or conspiracy. In short, the defendants deny that they were involved in the violation of plaintiff‘s constitutional rights in any way.
Presently before the Court are motions for summary judgment filed by all defendants, except DiLeonardo. For the reasons set forth in detail below, the motions are granted in part and denied in part.
First, the Court concludes that the claims brought against the members of the NCPD Deadly Force Response Team (“DFRT“) (Hunter, Horace, Flanagan, and DeMartinis), as well as the claims against Marinace, cannot survive summary judgment. The DFRT is an administrative team that responds to incidents involving the use of deadly physical force by NCPD officers, conducts an investigation, and provides a written report the following day to the NCPD Commissioner. Plaintiff points to no evidence or information obtained by the DFRT, or given to the DFRT, that was inconsistent with the statements in the DFRT report. Moreover, it is uncontroverted that (1) the DFRT did not conduct an independent investigation of the incident; (2) the DFRT did not participate in any interview of plaintiff during which plaintiff claims Suffolk County officers fabricated a confession; and (3) the DFRT report was never given to the SCPD, or the Suffolk County District Attorney‘s Office, or relied upon in any way in connection with plaintiff‘s arrest and
Second, with respect to the remaining individual defendants, the summary judgment motions are denied in their entirety. As to these defendants, unlike the DFRT members and Marinace, plaintiff has put forth evidence of their involvement in some aspect of the substantive investigation, arrest, and initiation of charges against plaintiff. Moreover, the record is replete with evidence that creates material factual disputes in connection with the claims against them (and DiLeonardo) including, among others, the following: (1) whether plaintiff attempted to run DiLeonardo over with his car before DiLeonardo fired multiple shots at plaintiff, or whether DiLeonardo fired at plaintiff and assaulted him solely because of a verbal dispute; (2) whether DiLeonardo identified himself as a police officer and/or was wearing his police shield during the incident; (3) DiLeonardo‘s level of intoxication (if any) at the time of the incident; (4) whether DiLeonardo‘s demeanor and statements in the presence of Suffolk County police officers at the scene in the immediate aftermath of the incident (as well as later on at the hospital and Second Precinct) gave substantial reason to question his veracity and reliability as it related to his account of the incident; (5) whether plaintiff was placed under arrest by DiLeonardo and Bienz at the time of the incident or whether he was arrested later by Suffolk County officers; (6) whether Tavares and Leser fabricated a “confession” while interviewing plaintiff at the hospital, which plaintiff contends falsely stated that plaintiff drove towards DiLeonardo and that DiLeonardo fired at plaintiff to protect himself; and (7) whether various defendants knowingly created
These factual disputes preclude summary judgment because their resolution is critical to a determination on various elements of plaintiff‘s claims including, among others, the following: (1) whether DiLeonardo and/or Bienz were acting under color of state law during the incident; (2) whether DiLeonardo was acting within the scope of his authority as a police officer during the incident; (3) whether there was probable cause to arrest or prosecute plaintiff for assault or reckless endangerment; (4) whether there was a conspiracy to violate plaintiff‘s civil rights, including through the fabrication of evidence; and (5) whether there was a failure to intervene by one or more defendants in the alleged unconstitutional conduct of fellow law enforcement officers.
In other words, construing the facts most favorably to plaintiff and drawing all reasonable inferences in plaintiff‘s favor (as is required at the summary judgment stage), a rational jury could find that a highly intoxicated DiLeonardo shot at plaintiff multiple times without justification during an off-duty verbal dispute and that plaintiff was falsely arrested and prosecuted, as part of an effort to cover-up DiLeonardo‘s criminal conduct. A rational jury could further find that the individual defendants participated in one or more aspects of the alleged false arrest and prosecution of plaintiff, or in the concealment of the alleged unconstitutional conduct during the investigation of the incident, including through the alleged fabrication of a false confession by plaintiff, as well as by making false statements during interviews or in police documentation of the incident.
Although these defendants point to evidence in the record that they argue contradicts plaintiff‘s version of the events and undermines his claims of unconstitutional conduct, it is the role of a jury from the community, not the Court, to resolve these factual disputes and to make the credibility determinations that are inherent in the resolution of such disputes of material fact. Similarly, to the extent one or more of these defendants argue that they played no part in the alleged false arrest and prosecution or alleged cover-up, and were simply conveying information regarding the incident that they believed to be truthful based upon interviews of DiLeonardo and others, the Court concludes that there is sufficient evidence in this case (when the evidence is construed most favorably to plaintiff, including all reasonable inferences from the evidence) to require a jury to decide whether each of these defendants participated in the alleged unconstitutional conduct in some way or, at the very least, knowingly failed to fulfill their duty to intervene to prevent such conduct.
Accordingly, given these factual disputes in the record, the Court denies the defendants’ motions for summary judgment as to the claims (as asserted by plaintiff) for false arrest, malicious prosecution claims, conspiracy, and violations of due process under federal law as to Bienz and the individual Suffolk County defendants. These same factual disputes also preclude summary judgment on the issue of qualified immunity at this juncture because, construing the evidence most favorably to plaintiff, no reasonable officer would believe that these alleged actions were lawful, and the constitutional rights at issue were clearly established at the time of the incident. Thus, the following federal claims
The motions for summary judgment on the state law claims are also denied as to Suffolk County, Nassau County, Bienz, and the individual Suffolk County defendants.
I. BACKGROUND
A. Factual Background
The following facts are taken from the parties’ depositions, affidavits, and exhibits, and the parties’ respective Rule 56.1 statements of fact. Unless otherwise noted, the facts are uncontroverted. Upon consideration of the motions for summary judgment, the Court shall construe the facts in the light most favorable to plaintiff as the nonmoving party and will resolve all factual ambiguities in his favor. See Capobianco v. New York, 422 F.3d 47, 50 n.1 (2d Cir. 2005). Thus, this summary of the evidence does not constitute any findings of fact by the Court, but rather describes the evidence in the light most favorable to plaintiff, while noting material factual disputes in the record between the parties.
1. The Oakwood Road Incident
On February 26, 2011, DiLeonardo and his girlfriend, Sophia Cornia, went out to dinner with Bienz and his wife, Jillian Bienz, in Farmingdale, New York. (Nassau‘s 56.1 ¶ 10.) At the time, DiLeonardo and Bienz were Nassau County police officers and were both off duty that night. (Nassau‘s 56.1 ¶ 11.) At dinner, according to Bienz, he consumed three beers and DiLeonardo had “at least” two vodka mixed drinks. (Pl.‘s Ex. 1 ¶ 3 (Bienz Internal Affairs Unit (“IAU“) Statement).) After dinner, at around 9:30-10:30 p.m., the couples headed to Huntington Village, New York, where they visited various establishments. (Nassau‘s 56.1 ¶ 14; Pl.‘s Ex. 1 ¶ 3 (Bienz IAU Statement).) At these establishments, Bienz said he drank five more beers and DiLeonardo had five additional vodka mixed drinks.4 (Pl.‘s Ex. 1 ¶ 3 (Bienz IAU Statement).) Based on that estimation of drinks, plaintiff‘s expert submitted a report in which he determined that DiLeonardo‘s blood alcohol content at 1:16 a.m. (around the time of the incident) was between approximately .076% to .113%.5 (Pl.‘s Ex. 28 at 5-7 (Dr. Dominick A. Labianca Expert Report).)
At around 1:00 a.m., on February 27, 2011, the couples decided to go home. (Nassau‘s 56.1 ¶ 15.) DiLeonardo followed Bienz in his car as Bienz drove south, departing out of Huntington Village. (Nassau‘s 56.1 ¶ 16.) DiLeonardo drove a white Infiniti and Bienz drove a blue Acura. (Nassau‘s 56.1 ¶ 17.)
At the time the couples were leaving Huntington Village, plaintiff was driving
On his way home, Bienz got lost in Huntington and pulled over on Oakwood Road. (Bienz Decl. ¶ 12.) Because DiLeonardo was following Bienz, he also pulled over. (Bienz Decl. ¶ 14.) While on the side of Oakwood Road, plaintiff stopped his cab next to DiLeonardo‘s vehicle. (Nassau‘s 56.1 ¶ 25; Bienz Decl. ¶¶ 14-15.) Plaintiff‘s girlfriend, Kristie Mondo, was seated in the front passenger seat of plaintiff‘s cab. (Nassau‘s 56.1 ¶ 26.) Plaintiff stopped next to DiLeonardo‘s vehicle with his front passenger door parallel to DiLeonardo‘s driver‘s side front door. (Nassau‘s 56.1 ¶ 27.) Plaintiff rolled down his passenger window and yelled at DiLeonardo for his driving. (Nassau‘s 56.1 ¶ 28.) Plaintiff made comments to the effect of: “Where did you guys learn how to drive” and “You‘re going to f**king kill somebody.” (Defs.’ Ex. C at 67:18-68:7 (Moroughan Dep.).) According to plaintiff, DiLeonardo responded: “Learn how to f**king drive a taxi, f*ggot.” (See Defs.’ Ex. D at 105:2-106:7 (Moroughan 50-h Hearing Testimony (“Moroughan 50-h“)).)
Plaintiff testified that, after the verbal exchange with DiLeonardo, plaintiff put his car into reverse and backed up. (See Defs.’ Ex. C at 88:20-25 (Moroughan Dep.).) DiLeonardo and plaintiff continued to yell at each other. (See Defs.’ Ex. D at 109:2-13 (Moroughan 50-h).) Although it is disputed in what sequence the parties exited their vehicles, the parties agree that, at some point, both plaintiff and DiLeonardo exited their vehicles and continued to yell at each other. (Nassau‘s 56.1 ¶¶ 36-37.) During the verbal exchange, Bienz also exited his vehicle to see what was going on with DiLeonardo and plaintiff. (Nassau‘s 56.1 ¶ 43.) When plaintiff witnessed Bienz exit his vehicle, plaintiff got back into his cab. (Nassau‘s 56.1 ¶ 44.)
While plaintiff was back in his car, DiLeonardo fired shots at him. (Nassau‘s 56.1 ¶¶ 46, 51.) It is highly contested as to whether plaintiff drove his car forward at DiLeonardo before the shots were fired. The Nassau County defendants point to plaintiff‘s 50-h Hearing testimony, in which he states that he put his car in reverse, backed up two to three car lengths, then put his car into drive to make a U-turn to leave, and drove forward. (Nassau‘s 56.1 ¶¶ 44-46.) Plaintiff testified that he put the car in “drive,” but rather than driving forward towards DiLeonardo, he turned the wheel to the left to make a U-turn to go south on Oakwood Road and leave the scene. (Defs.’ Ex. D at 112:9-12 (Moroughan 50-h); Defs.’ Ex. C at 91:10-18 (Moroughan Dep.).) In particular, plaintiff noted that (1) when he put the car in drive, he possibly moved forward, but no more than one or two feet; (2) the shots were fired when he put the car in drive to make the U-turn; and (3) as he put the car into drive to make a U-turn to the left, DiLeonardo was standing to the right side of plaintiff‘s car on the shoulder two to three car lengths in front. (Defs.’ Ex. D at 110:16-117:18, 118:10-121:21, 123:15-124:21 (Moroughan 50-h).)
When firing his gun at plaintiff, DiLeonardo shot all five rounds from his gun. (See Pl.‘s Ex. 13 ¶ 34 (DiLeonardo IAU Statement).) Once DiLeonardo finished shooting, DiLeonardo ran to the driver‘s side door of plaintiff‘s car. (Nassau‘s 56.1 ¶ 53.) DiLeonardo smashed the driver‘s window of the cab with the butt of his gun, opened the door, and punched plaintiff in the face at least 10 times. (Nassau‘s 56.1
2. Identification of DiLeonardo as a Police Officer
It is in dispute whether DiLeonardo identified himself as a police officer to plaintiff during the incident. (Nassau‘s 56.1 ¶¶ 57-58.) According to one post-incident interview, Bienz stated that, during the incident, DiLeonardo identified himself as “Nassau Police.” (Pl.‘s Ex. 6 (Palumbo Notes of Bienz Interview, dated Apr. 29, 2011); Pl.‘s Ex. 5 at 147:4-8 (Palumbo Dep.).) There is also evidence that Bienz told another officer that he saw DiLeonardo go to plaintiff‘s cab door and tell him that “he was a cop.” (Pl.‘s Ex. 2 at 1 (Leser Notes of Bienz Interview).) However, in a declaration, Bienz states that, “[a]t some point during their altercation I heard DiLeonardo say ‘you‘re under arrest‘” but that “[h]e did not identify himself as a police officer and he was not in uniform.” (Bienz Decl. ¶ 34.)
Jillian Bienz, who was present at the incident, testified that DiLeonardo said “[s]top, police” to plaintiff. (Pl.‘s Ex. 7 at 262:16-21 (Jillian Bienz Dep.).) DiLeonardo said that, before he fired the first shot, he “turned toward [plaintiff‘s] car and shouted, ‘stop police, don‘t move‘” and pointed his gun at plaintiff‘s car as it “headed straight for [him].” (Pl.‘s Ex. 13 ¶ 31 (DiLeonardo IAU Statement).) According to DiLeonardo, plaintiff continued to drive towards him and he then fired his gun because he “feared for [his] life.” (Pl.‘s Ex. 13 ¶¶ 32-33 (DiLeonardo IAU Statement).) According to DiLeonardo, once plaintiff‘s vehicle stopped moving after he had finished shooting, he “went to [plaintiff‘s] door, identified [himself] as a police officer, and told [plaintiff] he was under arrest.” (Pl.‘s Ex. 22 at 3 (Felony and Misd. Compl. with DiLeonardo Dep.).)
Plaintiff testified that, during the incident, he did not hear DiLeonardo indicate that he was a police officer. (Defs.’ Ex. D at 133:15-25; 167:6-13 (Moroughan Dep.).) However, plaintiff noted that, while fleeing the scene, plaintiff testified he heard what sounded like “stop, cop, stop, stop,” but did not believe the shooter was a cop at that point. (Defs.’ Ex. C at 111:8-112:9 (Moroughan Dep.).) Plaintiff‘s girlfriend Kristie Mondo told a 911 operator that “I think that kid said that he was a cop,” in reference to DiLeonardo. (Defs.’ Ex. E, Mondo 911 Call.)
It is further in dispute whether DiLeonardo was wearing a badge or a shield around his neck that identified him as a police officer. (See Pl.‘s Resp. to Nassau‘s 56.1 ¶ 72.) The Nassau County defendants highlight the testimony of Nieves, an officer on the scene, who testified in his deposition that DiLeonardo was not wearing a badge when the SCPD arrived at the scene of the incident. (Nassau‘s 56.1 ¶ 72.)
3. Arrival of SCPD Officers
DiLeonardo called 911 to report the incident. (Nassau‘s 56.1 ¶ 67.) During that 911 call, DiLeonardo told the operator that he had been shot. On the 911 call, DiLeonardo said, “I‘m bleeding, I need an ambulance . . . I don‘t know if I‘m shot.” (Defs.’ Ex. E, DiLeonardo 911 Call.) Moments later, on the same call, DiLeonardo stated again that he was shot and bleeding. (Defs.’ Ex. E, 911 Call; see Nassau‘s 56.1 ¶ 67.) DiLeonardo requested immediate assistance and repeatedly stated that his gun had been stolen by plaintiff. (Nassau‘s 56.1 ¶ 68.) SCPD Officers Channon Rocchio and Enid Nieves were the first to arrive at the scene at Oakwood Road. (Nassau‘s 56.1 ¶ 70.) Rocchio testified that, when she spoke with DiLeonardo, she smelled a slight odor of alcohol. (See Defs.’ Ex. F at 29:6-13 (Rocchio Dep.).) In speaking with DiLeonardo at the scene, DiLeonardo could not tell Rocchio whether he broke the window of plaintiff‘s car or where his gun was located. (See Defs.’ Ex. F at 22:17-22 (Rocchio Dep.).) The Suffolk County defendants point to the additional testimony of Rocchio, who stated that she did not believe DiLeonardo was intoxicated. (Defs.’ Ex. F at 30:5-13 (Rocchio Dep.).) The Suffolk County defendants further note that Rocchio testified that she had observed that DiLeonardo‘s speech was not slurred, he was not unsteady on his feet, and he gave her cognitive details of what had happened. (Defs.’ Ex. F at 30:14-21 (Rocchio Dep.).) Plaintiff disputes that DiLeonardo was not intoxicated and not mentally impaired based on, among other things, DiLeonardo‘s subsequent admission to the number of alcohol drinks he consumed that night, the smell of alcohol, and his behavior on the 911 call, at the scene, and at the hospital later that morning. (Suffolk 56.1 ¶ 5; Pl.‘s Resp. to Suffolk‘s 56.1 ¶ 5.) Ultimately, DiLeonardo‘s gun was found inside plaintiff‘s cab. (Nassau‘s 56.1 ¶ 93.)
When Rocchio and Nieves arrived at the scene of the incident, DiLeonardo identified himself as a Nassau County police officer. (Nassau‘s 56.1 ¶ 72.) Suffolk Sergeant Jack Smithers, as well as Suffolk Detectives Nicholas Favata and Eugene Geissinger, also responded to the scene.7 (Nassau‘s 56.1 ¶ 78; Pl.‘s Ex. 29 (Oakwood Road Scene Log).) DiLeonardo told Smithers that he believed that he shot himself and physically demonstrated how he might have done so. (Defs.’ Ex. H at 19:5-18 (Smithers Dep.).) Smithers described DiLeonardo immediately after the incident as “distraught, bordering on tears” and that DiLeonardo said to him, “Sarge, can you help me[?]” (Defs.’ Ex. H at 15:4-6 (Smithers Dep.).) Geissinger observed
4. Circumstances of Plaintiff‘s Arrest
It is disputed as to when and who arrested plaintiff in connection with the Oakwood Road incident. According to plaintiff, he did not hear DiLeonardo identify himself as a police officer or indicate that plaintiff was under arrest during the incident on Oakwood Road. (See Pl.‘s Resp. to Nassau‘s 56.1 ¶ 59; Defs.’ Ex. D at 167:6-9 (Moroughan 50-h).) According to the Nassau County defendants, Bienz also never told plaintiff he was under arrest during the incident. (Nassau‘s 56.1 ¶¶ 61-63.) Bienz testified that, at some point during the incident, he heard DiLeonardo say “[y]ou‘re under arrest” to plaintiff. (See Pl.‘s Resp. to Nassau‘s 56.1 ¶ 56; Defs.’ Ex. B at 320:14-19 (Bienz Dep.).) On the same day of the incident, Bienz wrote in an Incident/Accident Statement that “[w]hile acting in the scope of [his] official duties, [he] was injured in the process of assisting Police Officer DiLeonardo effect a lawful arrest.” (Pl.‘s Ex. 19 at 186:12-187:11 (Bienz Dep.); Pl.‘s Ex. 20 at 1 (Bienz Incident/Accident Statement, dated Feb. 27, 2011).) Similarly, the day of the incident, DiLeonardo wrote in a report that “[w]hile acting in the scope of [his] official duties, [he] was injured when [he] attempted to place [plaintiff] under arrest.” (Pl.‘s Ex. 21 at 1 (DiLeonardo Incident/Accident Statement, dated Feb. 27, 2011).) In a later declaration, Bienz stated that his description of “assisting DiLeonardo effect a lawful arrest” was a “poor choice of words” as he was “not attempting to assist in effecting an arrest but intended to intervene between two individuals who were fighting over a loaded handgun.” (Bienz Decl. ¶ 54.) Bienz later denied seeing plaintiff commit any crime warranting an arrest. (See Defs.’ Ex. B at 323:5-324:10 (Bienz Dep.).) Plaintiff‘s arrest paperwork states that he was arrested at 1:15 a.m. by DiLeonardo, who is listed as the “Arresting Officer.” (Pl.‘s Ex. 49 at 1, 4 (Arrest Report and Worksheets).) And, as previously noted, DiLeonardo‘s and Bienz‘s original accounts mirror each other in stating that DiLeonardo arrested plaintiff at the scene of the incident, and they were acting in the scope of their official duties. (See Pl.‘s Ex. 20 at 1 (Bienz Incident/Accident Statement, dated Feb. 27, 2011); Pl.‘s Ex. 21 at 1 (DiLeonardo Incident/Accident Statement, dated Feb. 27, 2011).)
Some Suffolk County defendants also corroborate that plaintiff was arrested by DiLeonardo at the scene. Suffolk Detective/Sergeant
Tavares and Leser testified that they entered plaintiff‘s hospital room at approximately 6:30 a.m. because they wanted to speak to him about the incident; they also testified that they told plaintiff at that time that he had been arrested already by Nassau. (See Defs.’ Ex. K at 210:7-25 (“[I] [t]old him he was under arrest by Nassau. . . . Nassau arrested you.“) (Tavares Dep.); Defs.’ Ex. J at 189:19-190:6 (noting that they informed plaintiff that “[Nassau County] place[d] [him] under arrest.“) (Leser Dep.).) Nassau, in contrast, points to plaintiff‘s deposition testimony in which he states that the first time he was told he was under arrest was at the SCPD Second Precinct. (Nassau‘s 56.1 ¶ 118.)
Plaintiff likewise notes that there is conflicting evidence in the record regarding when he was arrested and by whom. For example, although plaintiff testified that he did not hear DiLeonardo tell him he was under arrest at the scene of the incident, Bienz and DiLeonardo both testified that DiLeonardo did make such a pronouncement. (See Pl.‘s Resp. to Nassau‘s 56.1 ¶¶ 98, 117.) Moreover, plaintiff points out, as discussed above, Tavares and Leser testified that they told plaintiff he was already under arrest, specifically by Nassau, when they interviewed him about the incident in his hospital room at around 6:30 a.m. (See Pl.‘s Resp. to Nassau‘s 56.1 ¶¶ 98, 117-18.) Plaintiff further notes that there is evidence that Suffolk waited to process plaintiff‘s arrest only after SCPD interviewed DiLeonardo, Bienz, Cornia, and Jillian Bienz. (See Defs.’ Ex. K at 368:8-24 (Tavares Dep.).)
The Suffolk County defendants maintain that Lamb was informed by Suffolk Detective Lieutenant Gerard Pelkofsky that plaintiff was under arrest by Nassau. (Suffolk‘s 56.1 ¶¶ 18-19.) Plaintiff highlights that this assertion is disputed, and contends that there is no evidence that Pelkofsky was at Huntington Hospital at the same time as Lamb. (See Pl.‘s Ex. 38 at 1 (Huntington Hosp. Scene Log).) Plaintiff further notes the dispute regarding Tavares and Leser‘s accounts of plaintiff‘s arrest being made by Nassau. Plaintiff points to Tavares and Leser‘s deposition testimony in which both admitted that at 6:30 a.m., prior to entering plaintiff‘s hospital room to interview him, they knew they would be filing “some type of assault charge” against plaintiff. (Pl.‘s Resp. to Nassau‘s 56.1 ¶ 122; see Defs.’ Ex. K at 183:19-184:8 (Tavares Dep.); Defs.’ Ex. J at 128:22-129:13 (Leser Dep.) (“[Q.] Was [plaintiff], when you went into speak to him, under arrest for Assault 2nd degree? [A.] I would say assaulting a police officer, yes. [Q.] I[s] that Assault 2nd degree? [A.] Correct.“).)
Once Tavares and Leser provided handwritten statements regarding the incident, assault and reckless endangerment charges were entered into a Suffolk computer and the formal Felony and Misdemeanor Complaint was generated against plaintiff. (Defs.’ Ex. K at 198:3-200:12 (Tavares Dep.); Defs.’ Ex. J at 139:13-140:18,
5. Time at Huntington Hospital
Plaintiff‘s medical record reflects that he was admitted to the emergency room at Huntington Hospital at 1:30 a.m. (Nassau‘s 56.1 ¶ 113.) The SCPD created a Scene Log for the Huntington Hospital and SCPD Officer William Meaney was the first to arrive at 1:22 a.m. (Nassau‘s 56.1 ¶ 89.) Meaney spoke to plaintiff and sought to locate DiLeonardo‘s missing gun.8 Plaintiff told Meaney that DiLeonardo may have dropped his gun inside his cab. (Nassau‘s 56.1 ¶ 92.) Meaney then went outside to check and found DiLeonardo‘s gun inside plaintiff‘s cab. (Nassau‘s 56.1 ¶ 93.) Once the gun was secured, Meaney returned to the emergency room where he remained with plaintiff, sometimes in his room, but mostly outside his room for plaintiff‘s entire hospital stay. (Nassau‘s 56.1 ¶¶ 95, 99.) Meaney questioned plaintiff about what happened. Plaintiff testified that he told Meaney the following:
I got into an argument on the road and this f**king psycho just jumped out of his car and started shooting at me for no reason and that he came up to -- you know, he came up and broke my window and started hitting me in my face and that I managed to drive away and drove myself [to the hospital].
(Defs.’ Ex. C at 122:7-123:3 (Moroughan Dep.).) Suffolk points to Meaney‘s Supplementary Report about the incident that states that plaintiff told him that he “put his car in reverse and floored it” but that the vehicle “was mistakenly in drive and it did move forward toward one of the men.” (Suffolk‘s 56.1 ¶ 15.) Plaintiff disputes this and points to a Suffolk County investigator‘s notes regarding the morning of the incident, which states that Moroughan told his treating physician “[w]hen [the] guy got out of the car with a gun [I] thought [I] was going to die” and that he had been beat up and shot for no reason. (Pl.‘s Resp. to Suffolk‘s 56.1 ¶ 15.)
It is in dispute whether plaintiff was handcuffed at the hospital. The Nassau County defendants assert that plaintiff was never handcuffed the entire time Meaney was with him at the hospital. (Nassau‘s 56.1 ¶ 96.) Plaintiff, on the other hand, notes that Tavares testified that plaintiff was handcuffed to the hospital bed at about 5:30 a.m., when Tavares first entered his room, and was still handcuffed at 6:30 a.m. when Tavares reentered. (Defs.’ Ex. K at 128:5-13, 216:7-24 (Tavares Dep.).) In addition, Risco Mention-Lewis, plaintiff‘s godmother, who at the time was also a Nassau County Assistant District Attorney, testified that she arrived at the hospital at approximately 2:00 a.m. and that she “believe[d] . . . he was handcuffed the whole time” he was in the hospital. (Pl.‘s Ex. 42 at 158:18-159:3 (Mention-Lewis Dep.); see also Pl.‘s Ex. 41 at 38:3-6 (Mention-Lewis Dep.); Pl.‘s Ex. 42 at 73:14-17 (Mention-Lewis Dep.).) Meaney, who was outside of plaintiff‘s room, stated conversely that plaintiff was “[n]ever handcuffed” and “never under arrest.” (Pl.‘s Ex. 3 at 00:09-00:33 (Meaney IAB Interview).) Plaintiff testified that he did not remember ever being handcuffed while at the hospital.
As noted above, Tavares and Leser testified that, at approximately 6:30 a.m., they entered plaintiff‘s hospital room and said they wanted to speak with plaintiff regarding the incident and told plaintiff that he had been placed under arrest by Nassau County. (See Defs.’ Ex. K at 210:7-25.) It is in dispute whether Tavares and Leser advised plaintiff of his Miranda rights. According to Tavares and Leser, prior to discussing the incident with plaintiff, Tavares and Leser read him his Miranda rights and had him execute the waiver on the Advice of Rights form. (See Pl.‘s Ex. 44 (SCPD Advice of Rights); Defs.’ Ex. K at 210:7-213:9 (Tavares Dep.); Defs.’ Ex. J at 178:6-13, 186:15-190:21 (Leser Dep.).) However, plaintiff stated that he was not orally advised of his Miranda rights, and that he initialed where he was directed to sign without reading what the Advice of Rights form stated. (See Pl.‘s Ex. 16 at 178:6-23, 214:9-215:12, 335:3-338:18 (Moroughan Dep.).)
Plaintiff also points out that, though Tavares and Leser claim that plaintiff signed his Advice of Rights at 7:00 a.m., his medical records indicate that he was undergoing a CT scan at 6:34 a.m. and provided a urine sample at 7:00 a.m. (Pl.‘s Ex. 57 at 20, 32 (Moroughan Medical Records).) Therefore, plaintiff argues that Tavares and Leser did not speak with plaintiff until, at the earliest, after 7:00 a.m. Meanwhile, at 6:48 a.m., NCPD Deputy Chief of Patrol John Hunter emailed NCPD Chief of Support Lorraine Hannon, while at the hospital and expressed that “[e]verything is going very well. Both Police Officers have been released and transported to SCPD 2nd Precinct where they will begin processing the arrest of the taxicab driver for Assault 2 and menacing.” (See Pl.‘s Ex. 46 (Email from Dep. Chief Hunter to Chief Hannon, dated Feb. 27, 2011 at 6:48 a.m.).)
a. Plaintiff‘s Requests for a Lawyer
Tavares testified that plaintiff was not allowed to have visitors at the hospital because “he was under arrest.” (Defs.’ Ex. K at 94:9-95:20 (Tavares Dep.).) Tavares told Mention-Lewis that “Nassau is making the arrest, and Suffolk is processing the paperwork.” (Pl.‘s Ex. 42 at 159:4-16 (Mention-Lewis Dep.).) It is disputed as to who entered plaintiff‘s hospital room that morning. The Nassau County defendants note that Meaney (who was with plaintiff throughout his hospital stay) said he saw only SCPD personnel and medical staff enter plaintiff‘s room. (Nassau‘s 56.1 ¶ 100.) However, plaintiff contends that two men entered his hospital room and identified themselves as NCPD detectives. (Defs.’ Ex. C at 136:3-138:22, 147:9-148:25 (Moroughan Dep.).) According to plaintiff, he asked repeatedly to speak to his lawyer, but the two Nassau detectives in the room “tr[ied] to convince [plaintiff] that [he] didn‘t need a lawyer, [because] only suspects need lawyers.” (See Defs.’ Ex. C at 114:13-117:2, 138:14-20 (Moroughan Dep.).) Plaintiff testified that he was “screaming for . . . [his] lawyer the whole night.” (Pl.‘s Ex. 16 at 178:9-23 (Moroughan Dep.).) More specifically, plaintiff testified that he said, “I want my lawyer” multiple times, and was ignored. (Pl.‘s Ex. 16 at 138:14-22 (Moroughan Dep.).)
b. Injuries from the Incident and Treatment
In terms of injuries from the incident, plaintiff sustained two bullet wounds from the shooting, one in the arm and one in the chest. (Pl.‘s Ex. 16 at 117:18-22.) DiLeonardo also fractured plaintiff‘s nose. (See Defs.’ Ex. J at 154:17-155:19 (Leser Dep.); Defs.’ Ex. K at 159:16-20, 346:25-347:10
DiLeonardo bruised his shoulder, received a 0.25-centimeter puncture wound, and a 0.5-centimeter superficial laceration. (Pl.‘s Ex. 24 at 7 (DiLeonardo Medical Records).) One of the treating physicians in the emergency room, Dr. Beverly Kraszewski, said in reference to DiLeonardo, “[G]reat[,] you can get drunk shoot someone and walk out the same day.” (Pl.‘s Ex. 84 (Geissinger Notes).) According to Geissinger, an unidentified physician also said she “want[ed] [DiLeonardo‘s] blood.”9 (See Pl.‘s Ex. 34 at 162:9-165:7 (Geissinger Dep.).) Dr. Kraszewski testified that DiLeonardo had an “altered mental status,” was “slurring his speech,” and had an “odor of alcohol on his breath.” (See Pl.‘s Ex. 32 at 56:18-57:20 (Dr. Kraszewski Dep.).) Dr. Kraszewski indicated that DiLeonardo said he had been shot and run over by a car. (See Pl.‘s Ex. 32 at 57:4-57:20 (Dr. Kraszewski Dep.).) DiLeonardo‘s medical records include the following notations: “Insight & Judgement . . . impaired,” “Memory . . . impaired,” “Affect . . . hostile.” (See also Pl.‘s Ex. 24 at 6-7 (DiLeonardo Medical Records).) As part of her treatment plan, Dr. Kraszewski wanted to perform blood work because DiLeonardo was a trauma patient and doing so was standard care protocol. (See Pl.‘s Ex. 32 at 84:17-85:10 (Dr. Kraszewski Dep.).) Dr. Kraszewski testified that a nurse started an IV for DiLeonardo which was to be used to simultaneously draw his blood. (Pl.‘s Ex. 32 at 89:18-90:8 (Dr. Kraszewski Dep.).) Once the IV was in place, Dr. Kraszewski said that DiLeonardo exclaimed, “I don‘t want any blood.” (Pl.‘s Ex. 32 at 89:22-90:4 (Dr. Kraszewski Dep.).) As a result, according to Dr. Kraszewski, DiLeonardo pulled away and she and the nurse had to “calm [DiLeonardo] down and he agreed to keep the IV.” (Pl.‘s Ex. 32 at 89:22-90:4 (Dr. Kraszewski Dep.).) But DiLeonardo ultimately refused blood work. (Pl.‘s Ex. 24 at 5 (DiLeonardo Medical Records).) In terms of injuries, Bienz sustained an elbow contusion and leg abrasion. (Pl.‘s Ex. 40 at 6 (Bienz Medical Records).) According to DiLeonardo, “[plaintiff] backed up his car causing the driver‘s door to hit [DiLeonardo] knocking [him] to the ground causing [him] multiple contusions and lacerations for which [he] was treated at Huntington Hospital.” (Defs.’ Ex H at 3 (DiLeonardo‘s Supporting Deposition).)
c. Plaintiff‘s Statement at the Hospital and Other Investigation
According to plaintiff, later that morning, plaintiff was interviewed by Tavares and Leser, though he requested repeatedly to speak to his lawyer. Tavares and Leser told plaintiff he was the “victim” and that they needed a statement from him in order to arrest DiLeonardo and Bienz; otherwise, the two would be released. (Pl.‘s Ex.
Bienz and DiLeonardo were discharged from the hospital at 5:50 a.m. and 6:30 a.m., respectively. (Pl.‘s Ex. 40 at 6 (Bienz Medical Records); Pl.‘s Ex. 24 at 8 (DiLeonardo Medical Records).) DiLeonardo and Bienz were interviewed about the incident later that morning at 10:00 a.m. at the Suffolk Second Precinct.11 (Defs.’ Ex. J at 90:13-91:4 (Leser Dep.).) Plaintiff‘s hospital record reflects that he was discharged at 8:00 a.m. (Nassau‘s 56.1 ¶ 113.) At the time of his discharge, Huntington Hospital‘s medical staff determined that plaintiff was “fit for confinement.” (Nassau‘s 56.1 ¶ 115.) Plaintiff was then transferred in an SCPD patrol car to the Suffolk Second Precinct. (See Defs.’ Ex. C at 539:15-540:2 (Moroughan Dep.).) When plaintiff was transferred to the Suffolk Second Precinct,
6. Criminal Charges Against Plaintiff
At the Second Precinct, DiLeonardo drafted a supporting deposition in order to bring charges against plaintiff. DiLeonardo‘s deposition stated that plaintiff “backed up his vehicle and then accelerated toward me. I thought he was going to hit me with the car and I was in fear of my life.” (Pl.‘s Ex. 22 at 3 (Felony and Misd. Compl. with DiLeonardo Dep.).) DiLeonardo said at this point he shot plaintiff to “stop him from hitting me.” (Pl.‘s Ex. 22 at 3 (Felony and Misd. Compl. with DiLeonardo Dep.).) DiLeonardo explained that he “identified [himself] as a police officer, and told [plaintiff] he was under arrest.” (Pl.‘s Ex. 22 at 3 (Felony and Misd. Compl. with DiLeonardo Dep.).) DiLeonardo concluded in his statement that, as he was “trying to arrest” plaintiff, plaintiff “backed up his car causing the driver‘s door to hit me knocking me to the ground.” (Pl.‘s Ex. 22 at 3 (Felony and Misd. Compl. with DiLeonardo Dep.).)
With this supporting deposition, a complaint was filed against plaintiff. The complaint lists the arrest date and time for plaintiff as February 27, 2011, at 1:15 a.m.12 (Pl.‘s Ex. 22 at 1 (Felony and Misd. Compl.).) The complaint charged plaintiff with Assault in the Second Degree and Reckless Endangerment in the Second Degree. (Pl.‘s Ex. 22 at 1 (Felony and Misd. Compl.).) The complainant listed on the complaint is Sergeant Lamb.13 (Nassau‘s 56.1 ¶ 120.) The Nassau County defendants contend, and plaintiff disputes, that the charges brought against plaintiff were based solely on the statement from DiLeonardo about the Oakwood Road incident. (Nassau‘s 56.1 ¶ 122; Pl.‘s Resp. to Nassau‘s 56.1 ¶ 122.) Plaintiff notes that there is evidence that he was arrested at about 1:15 a.m., and detained at the hospital until his discharge, which was hours before DiLeonardo provided his statement. (Pl.‘s Resp. to Nassau‘s 56.1 ¶ 122.)
7. The DFRT Report and Firearms Discharge Report
The DFRT is a team within the NCPD that responds to incidents involving the use of deadly force by members of the NCPD. (Nassau‘s 56.1 ¶ 129.) With respect to this incident, the DFRT was made up of Deputy Chief of Patrol John Hunter, the Duty Inspector Edmund Horace, Captain Daniel Flanagan, and Detective Sergeant John DeMartinis, a Supervisor from NCPD Homicide. (Nassau‘s 56.1 ¶ 132.) Hunter served as the “team coordinator” for the DFRT on the morning at issue. (Nassau‘s 56.1 ¶ 144.) On that morning, Hunter arrived at the hospital at around 6:00 to 6:30 a.m. (Defs.’ Ex. L at 139:7-8 (Hunter Dep.).) Hunter asked DiLeonardo and Bienz how they were doing, but did not question them about the shooting incident. (Pl.‘s Ex. 47 at 146:13-147:11 (Hunter Dep.).) Hunter then directed Flanagan to leave the hospital to begin drafting a report14
[Police Officer] DiLeonardo, fearing for his life, fired at least three rounds from his off-duty .38 caliber revolver at [plaintiff], striking him through the windshield an unknown number of times. The subject vehicle now came to a stop and officer DiLeonardo approached the subject vehicle from the driver‘s side and officer Bienz approached from the passenger side. [Police Officer] DiLeonardo broke the driver‘s side window in an attempt to apprehend and arrest [plaintiff]. [Plaintiff] once again put the vehicle in reverse and backed up the subject vehicle, this time striking and dragging officer Bienz. [Plaintiff] then drove off and fled the scene.
(See Pl.‘s Ex. 50 at 3 ¶ 6 (Emails from Capt. Flanagan to Chief Hunter, dated Feb. 27, 2011 at 11:35 a.m.).) Flanagan, the author of this report, did not communicate with DiLeonardo, Bienz or plaintiff the night of the incident. (Nassau‘s 56.1 ¶¶ 150-51.) Hunter testified that all the information in the DFRT report was obtained “either from Suffolk County Police Department or via Sergeant DeMartin[is] from Suffolk County Police Department.” (See Pl.‘s Resp. to Suffolk‘s 56.1 ¶ 35 (alteration in original).)
The final DFRT report was submitted by Hunter to the Suffolk Commissioner of Police. (Nassau‘s 56.1 ¶ 156.) Plaintiff contests that the DFRT report was based solely on information provided by the SCPD and, instead, asserts that it was drafted based on facts agreed upon together by SCPD and NCPD, which forms the basis of plaintiff‘s conspiracy claims discussed below. (Pl.‘s Resp. to Nassau‘s 56.1 ¶¶ 122, 154.) The final DFRT report states:
[I]t is the opinion of the Deadly Force Response Team that the actions of all officers involved, with regard to Use of Force issues, were within Departmental guidelines pertaining to the Use of Deadly Physical Force as well as those of
Article 35 of the Penal Law of New York State . All officers involved were found fit for duty.
(Pl.‘s Ex. 51 ¶ 3 (Final DFRT Report).)
As to the basis for the information in the DFRT report, there is evidence that DeMartinis emailed Flanagan with information he received from Suffolk regarding the incident. (Nassau‘s 56.1 ¶¶ 147, 155.) Emails were exchanged also between Flanagan and Hunter during the drafting process of the DFRT report. (See Pl.‘s Ex. 50 (Emails of Flanagan to Hunter on February 27, 2011, at 11:35 a.m., 11:57 a.m., and 1:53 p.m., with attachments).) The two spoke after each of the first two drafts of the report were sent, speaking most extensively after the second draft in which the two spoke for about 28 minutes. (See Pl.‘s Ex. 50 (Emails of Flanagan to Hunter on February 27, 2011, at 11:35 a.m., 11:57 a.m., and 1:53 p.m., with attachments); Pl.‘s Resp. to Nassau‘s 56.1 ¶ 153.) Nassau maintains that, at the time the DFRT report was submitted to the NCPD Commissioner, Flanagan believed the report was a fair and accurate assessment of the Oakwood Road incident based on information received from the SCPD. (Nassau‘s 56.1 ¶ 160.)
Marinace filled out the Firearms Discharge Report. On the morning of the incident, Marinace was assigned to be the “caretaker supervisor” who, when an officer uses deadly physical force, “is assigned to ensure that he is cared for, emotionally, physically, medically.” (Defs.’ Ex. Q at
8. The Suffolk County District Attorney‘s Office
On the morning of February 27, 2011, Suffolk County Assistant District Attorney Raphael Pearl (“ADA Pearl“) was notified of the Oakwood Road incident. (See Pl.‘s Ex. 74 at 61:3-62:4 (ADA Pearl Dep.).) ADA Pearl had multiple conversations with Lamb regarding the incident. (See Pl.‘s Ex. 74 at 62:15-67:10 (ADA Pearl Dep.).) Plaintiff argues that fabricated interviews and statements were forwarded by SCPD to ADA Pearl, and that this information formed the basis of the prosecution of plaintiff. (Pl.‘s Resp. to Nassau‘s 56.1 ¶ 122, 196; see Hunter Ex. 6 at 226:10-23 (ADA Pearl Dep.) (ADA Pearl noting that he discussed plaintiff‘s statement with Detectives Tavares and Leser and “consider[ed] the substance of [it] in assessing what occurred that night“).) Charges were brought, and plaintiff was arraigned the following day. (Pl.‘s Ex. 59 (Arraignment Minutes, dated Feb. 28, 2011).) Special Investigator Anthony Palumbo, who was an employee of the Suffolk County District Attorney‘s Office, was assigned to assist ADA Pearl in the prosecution of plaintiff. (See Pl.‘s Ex. 74 at 106:13-17 (ADA Pearl Dep.).) Palumbo interviewed witnesses and relayed information to ADA Pearl as part of the prosecution of plaintiff. (Pl.‘s Ex. 25 at 6:15-21, 84:12-85:4, 94:12-16 (Palumbo Dep.).) Two months after the incident, in April, Palumbo interviewed Bienz. (Pl.‘s Ex. 6 at 3 (Palumbo Notes of Bienz Interview).) In that interview, according to Palumbo, Bienz told Palumbo that plaintiff drove his cab toward DiLeonardo and that DiLeonardo identified himself as a police officer to plaintiff. (Pl.‘s Ex. 6 at 3-10 (Palumbo Notes of Bienz Interview).) Bienz also said he heard DiLeonardo tell plaintiff he was under arrest. (Pl.‘s Ex. 6 at 10 (Palumbo Notes of Bienz Interview).) Bienz told Palumbo that based on his observations, plaintiff had committed a crime warranting arrest. (Pl.‘s Ex. 5 at 154:14-155:25 (Palumbo Dep.).) Plaintiff points out that this information from Bienz supported the criminal charges against plaintiff. (Pl.‘s Resp. to Nassau‘s 56.1 ¶ 229.) ADA Pearl testified that the interviews with Bienz corroborated what Bienz and DiLeonardo had stated regarding the Oakwood Road incident. (See Pl.‘s Ex. 75 at 279:5-280:12 (Pearl Dep.).) The next month, on May 26, 2011, plaintiff served his notice of claim on Nassau County. (See Defs.’ Ex. A at 1 (Notice of Claim on Nassau County).)
On June 6, 2011, more than three months after the arrest, the criminal charges against plaintiff were dismissed. (See Pl.‘s Ex. 31 (Dismissal Minutes, dated June 6, 2011).) ADA Pearl explained to the court that there was a “significant deficiency in the proof” that would “impact [the state‘s] ability to prove beyond a reasonable doubt the elements of the charges . . . pending against [Moroughan].” (Pl.‘s Ex. 31 at 3 (Dismissal Minutes, dated June 6, 2011).) ADA Pearl further stated that there was “conflicting evidence surrounding the facts and circumstances which led to the discharge of a firearm by off duty Police Officer Anthony DiLeonardo.” (See
9. Additional Investigation into the Oakwood Road Incident and State Court Proceedings Against DiLeonardo
The same day the charges were dismissed, the NCPD Commissioner directed the NCPD Internal Affairs Unit (“IAU“) to open an investigation into the Oakwood Road incident. (Nassau‘s 56.1 ¶¶ 245-46.) The NCPD IAU investigation made findings and recommendations; particularly, it found that both DiLeonardo and Bienz committed unlawful conduct and violated department rules during the Oakwood Road incident. (Pl.‘s Ex. 87 at 1-2 (NCPD IAU Report).) Plaintiff asserts that, if the DFRT report had arrived at a similar conclusion, then DiLeonardo would have been subject to discipline, including termination, and plaintiff would not have been charged. (See Defs.’ Ex. N at 153:5- 154:18 (Flanagan Dep.).) Plaintiff further posits that, because the DFRT report concluded that DiLeonardo‘s force was justified under New York state law and in compliance with NCPD procedures, DiLeonardo and Bienz were deemed “fit for duty.” (Pl.‘s Ex. 51 ¶ 3 (Final DFRT Report).) As a result, plaintiff believes that an NCPD IAU investigation into the incident was not opened when the incident occurred, and was only investigated after the matter was referred to the NCPD IAU by the Suffolk County District Attorney‘s Office. (See Pl.‘s Resp. to Nassau‘s 56.1 ¶ 246.)
As a result of the NCPD IAU investigation, a disciplinary hearing was held and DiLeonardo‘s employment was terminated. (See Def.‘s Ex. U (Short Form Order, Index No. 8686-14, dated Oct. 22, 2014).) The NCPD Indemnification Board conducted hearings and concluded that DiLeonardo‘s acts were not committed while in the proper discharge of his duties and DiLeonardo was not acting within the scope of his employment. (Defs.’ Exhibit W (Indemnification Board‘s Determination, dated March 6, 2012).) Accordingly, the NCPD Indemnification Board determined that Nassau County would not indemnify DiLeonardo. (See Exhibit W, (Indemnification Board‘s Determination dated March 6, 2012).) DiLeonardo unsuccessfully challenged these findings and the termination of his employment in state court proceedings under New York‘s
B. Procedural History
Plaintiff filed the complaint on February 3, 2012. (ECF No. 1.) Plaintiff filed the first amended complaint on December 17, 2012. (ECF No. 54.) Later, plaintiff filed the second amended complaint on April 14, 2015.15 (ECF No. 177.) Over the past several
II. STANDARD OF REVIEW
The standard for a motion for summary judgment is well-settled. Pursuant to
The moving party bears the burden of showing that he is entitled to summary judgment. See Huminski v. Corsones, 396 F.3d 53, 69 (2d Cir. 2005).
[A] party asserting that a fact cannot be or is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.
Once the moving party meets its burden, the opposing party “must do more than simply show that there is some metaphysical doubt as to the material facts. . . . [T]he nonmoving party must come forward with specific facts showing that there is a genuine issue for trial.” Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir. 2002) (alteration and emphasis in original) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)). As the Supreme Court stated in Anderson, “[i]f the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” 477 U.S. at 249-50 (citations omitted). Indeed, “the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment.” Id. at 247-48. Thus, the nonmoving party may not rest upon mere conclusory allegations or denials, but must set forth “concrete particulars” showing that a trial is needed. R.G. Grp., Inc. v. Horn & Hardart
Co., 751 F.2d 69, 77 (2d Cir. 1984) (quoting SEC v. Rsch. Automation Corp., 585 F.2d 31, 33 (2d Cir. 1978)). Accordingly, it is insufficient for a party opposing summary judgment “merely to assert a conclusion without supplying supporting arguments or facts.” BellSouth Telecomms., Inc. v. WR. Grace & Co.-Conn., 77 F.3d 603, 615 (2d Cir. 1996) (quoting Rsch. Automation Corp., 585 F.2d at 33).
III. DISCUSSION
To prevail on a claim under
A. “State Action” Requirement
The Nassau County defendants argue that Bienz and DiLeonardo were not acting under color of state law at the time of the incident, and DiLeonardo was not acting within the scope of his employment. Thus, according to the Nassau County defendants, any
1. Applicable Law
The central question in examining the “under color of state law” requirement is whether the alleged infringement of federal rights is “fairly attributable to the State.” Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982); see also Wyatt v. Cole, 504 U.S. 158, 161 (1992) (“The purpose of
It is axiomatic that private citizens and entities are not generally subject to
For example, the district court in Mosca found that the plaintiff plausibly alleged that the defendant acted under color of law because the defendant “(1) identified himself as an officer of the law; (2) flashed his badge; and (3) detained Plaintiff when he stated that ‘I‘m with the NYPD, you‘re not going anywhere.‘” Mosca v. City of New York, No. 17-CV-4327, 2018 WL 3151704, at *4 (E.D.N.Y. Apr. 24, 2018), report and recommendation adopted, 2018 WL 2277837 (E.D.N.Y. May 18, 2018). The Second Circuit has stated that there is “no doubt that when an officer identifies himself as a police officer and uses his service pistol, he acts under color of law.” Jocks v. Tavernier, 316 F.3d 128, 134 (2d Cir. 2003).
In Davis, which is a case with allegations similar to those asserted here, the district court found that, in viewing all the evidence in the light most favorable to the plaintiff and drawing all reasonable inferences in plaintiff‘s favor, a jury could rationally conclude that the police officer was acting under color of state law. See Davis v. Lynbrook Police Dep‘t, 224 F. Supp. 2d 463, 475-76 (E.D.N.Y. 2002). Specifically, the district court noted that the officer began initially acting “in the ambit of his personal pursuit” because the officer was “dressed in civilian clothes and went to a local bar where he played darts and drank alcohol for approximately four hours.” Id. The district court explained, however, that the nature of the officer‘s conduct changed when he encountered the plaintiff because he informed the plaintiff that he was a police officer and flashed his badge invoking the real or apparent authority of the police department. Id.
2. Analysis
As a threshold matter, the Nassau County defendants request that this Court take judicial notice of the New York Appellate Division‘s decision affirming the denial of DiLeonardo‘s request for defense or indemnification in the instant case. In that case, the state court concluded that “[t]he record supports the Board‘s determination that the petitioner was not acting while in the proper discharge of his duties or within the scope of his employment, since there is a factual basis for the conclusion that the alleged misconduct arose from an altercation that was personal in nature and was not undertaken in the exercise of his public responsibility as a police officer.” Dileonardo, 49 N.Y.S.3d at 468 (quotation marks and citations omitted). Thus, the Nassau County defendants argue that this Court, taking judicial notice of that ruling, should similarly conclude here, on summary judgment, that DiLeonardo was not acting as a state actor during this incident, but rather as a private citizen in a personal dispute. However, as discussed below, the Court concludes that the Appellate Division‘s ruling has no preclusive effect in this case and does not impact this Court‘s determination that there is sufficient evidence to create a material issue of fact on the issue of state action.
Moreover, in light of the longstanding doctrines of res judicata and collateral estoppel, if a party was not in privity with any party to such earlier proceeding and did not have a fair and full opportunity to litigate, the party is not precluded from bringing the claim in another court. Under the doctrine of res judicata, a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action. See Leather v. Eyck, 180 F.3d 420, 424 (2d Cir. 1999). For collateral estoppel,
In a federal
Turning to the evidence in this record, the Court concludes that genuine disputes of material fact preclude summary judgment on the issue of whether DiLeonardo and Bienz acted under color of law. In other words, viewing the evidence in the light most favorable to plaintiff and drawing all reasonable inferences in his favor, the Court concludes that a reasonable jury could find that DiLeonardo and Bienz asserted their authority as police officers during the Oakwood Road incident to arrest plaintiff and ultimately bring criminal charges against him, and were therefore acting under color of law for purposes of
First, there is evidence in the record that, both during and after the Oakwood Road incident, DiLeonardo identified himself as a police officer to plaintiff and others. For example, there is evidence that DiLeonardo identified himself as “Nassau Police,” and told plaintiff “[y]ou‘re under arrest,” as the argument escalated and DiLeonardo pulled out his gun. (Pl.‘s Ex. 6 (Palumbo Notes of Bienz Interview, dated Apr. 29, 2011); Pl.‘s Ex. 5 at 147:4-8 (Palumbo Dep.); Defs.’ Ex. B at 320:14-19 (Bienz Dep.).) According to DiLeonardo, Sophia Cornia, and Jillian Bienz, DiLeonardo identified himself as a police officer before he shot plaintiff. For example, DiLeonardo‘s
Second, aside from the evidence that DiLeonardo verbally alerted plaintiff and others that he was a police officer, Sophia Cornia, Jillian Bienz, and eyewitness Eric Klug made statements that support the contention that DiLeonardo had his shield out to identify himself as a police officer when confronting plaintiff during the incident on Oakwood Road. Additionally, in DiLeonardo‘s statement, he represented that, during the incident, he “immediately pulled out [his police] shield” to show plaintiff. (Pl.‘s Ex. 13 ¶¶ 38-39 (DiLeonardo IAU Statement).) Such evidence in the record demonstrates a genuine dispute of material fact as to whether DiLeonardo was acting under color of state law because he identified himself as, and invoked the authority of, a Nassau police officer to plaintiff and others.
Further, as discussed in detail supra, there is evidence in the record that, if credited, supports a finding that DiLeonardo, in addition to identifying himself as a police officer, arrested plaintiff. That evidence also raises a genuine dispute of material fact as to whether Bienz also was acting under color of state law during the Oakwood Road incident. Bienz stated that he ran over to help DiLeonardo get Moroughan out of the taxi, and “assist[ed] Police Officer DiLeonardo effect a lawful arrest.” (Pl.‘s Ex. 19 at 186:12-187:11, 258:24-259:11 (Bienz Dep.); Pl.‘s Ex. 20 at 1 (Bienz Incident/Accident Statements, dated Feb. 27, 2011).) As plaintiff also points out, Bienz testified that (in general) he and DiLeonardo were assigned to the same patrol, and together made arrests, prepared paperwork, and went to court. Based upon this evidence, a reasonable jury could conclude that the assistance Bienz provided to arrest plaintiff was in his capacity as a police officer—as he had many times before with DiLeonardo—and accordingly, could find that Bienz too was acting under color of state law.17
Finally, the Nassau County defendants further argue that “[p]laintiff was not aware that Bienz or DiLeonardo were police officers.” (Nassau Br. at 12). But a person‘s subjective reaction to the conduct at issue is not relevant to determining whether an officer acted under color of state law. Davis, 224 F. Supp. 2d at 476 (holding plaintiff‘s subjective reaction to defendant‘s conduct is not the subject of the inquiry to determine whether the officer acted under color of state law).
In sum, a rational jury could conclude that DiLeonardo and Bienz were acting under color of state law (and within the scope of their authority as police officers) and, thus, the Nassau County defendants’ summary judgment motion on those grounds is denied.18
B. False Arrest Claims
Plaintiff asserts false arrest/false imprisonment claims under federal and state law against Bienz, Lamb, Tavares, Leser and non-moving defendant DiLeonardo. As set forth below, the summary judgment motions on these claims are denied.
1. Applicable Law
To prevail on a false arrest claim, a plaintiff must prove four elements: “(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.” Broughton v. New York, 335 N.E.2d 310, 314 (N.Y. 1975). Under
It is well settled that “[a]n officer need not necessarily have directly seized and handcuffed an individual to be liable for false arrest.” Bryant v. Serebrenik, No. 15-CV-3762, 2016 WL 6426372, at *3 (E.D.N.Y. Oct. 28, 2016) (quotation marks omitted); see also Malley v. Briggs, 475 U.S. 335, 344 n.7 (1986) (“[Section] 1983 ‘should be read against the background of tort liability that makes a man responsible for the natural consequences of his actions.’ Since the common law recognized the causal link between the submission of a complaint and an ensuing arrest, we read
On the issue of probable cause, the Second Circuit has made clear that “[t]he existence of probable cause to arrest ... is a complete defense to an action for false arrest.” Jenkins v. City of New York, 478 F.3d 76, 84 (2d Cir. 2007) (quoting Weyant, 101 F.3d at 852). At the summary judgment stage, “[t]he question of whether or not probable cause existed may be determinable as a matter of law if there is no dispute as to the pertinent events and the knowledge of the officers, or may require a trial if the facts are in dispute.” Weyant, 101 F.3d at 852 (citation omitted).
Moreover, the Second Circuit has held that, “[i]n general, probable cause to arrest exists when the officers have knowledge or reasonably trustworthy information of facts and circumstances that are sufficient to warrant a person of reasonable caution in the belief that the person to be arrested has committed or is committing a crime.” Id. With respect to an officer‘s basis for probable cause, it is well-established that “[w]hen information [regarding an alleged crime] is received from a putative victim or an eyewitness, probable cause exists, unless the circumstances raise doubt as to the person‘s veracity.” Curley v. Village of Suffern, 268 F.3d 65, 70 (2d Cir. 2001) (citation omitted) (citing Singer v. Fulton Cnty. Sheriff, 63 F.3d 110, 119 (2d Cir. 1995)). The reliability or veracity of a person and the basis of that person‘s knowledge regarding what happened are two important factors to consider when evaluating veracity. Panetta v. Crowley, 460 F.3d 388, 395 (2d Cir. 2006). The “validity of an arrest does not depend upon an ultimate finding of guilt or innocence.” Peterson v. County of Nassau, 995 F. Supp. 305, 313 (E.D.N.Y. 1998) (citing Pierson v. Ray, 386 U.S. 547, 555 (1967)). “Rather, the court looks only to the information that the arresting officer had at the time of the arrest.” Id. (citing Anderson v. Creighton, 483 U.S. 635, 641 (1987)). Where probable cause does not otherwise exist, however, it cannot be manufactured by an officer‘s knowingly false statements. See Golino v. City of New Haven, 950 F.2d 864, 870 (2d Cir. 1991) (holding that a magistrate judge‘s finding of probable cause will not immunize an arresting officer if the plaintiff shows that the officer “knowingly and intentionally, or with reckless disregard for the truth, made a false statement in his affidavit and that the allegedly false statement was necessary to the finding of probable cause” (quotation marks omitted)); Weinstock v. Wilk, 296 F. Supp. 2d 241, 247 (D. Conn. 2003) (“A plaintiff can overcome this heavy, but not insurmountable burden by demonstrating that his right not to be arrested without probable cause was violated when the officer submitting the probable cause affidavit knowingly or intentionally, or with reckless disregard for the truth, made a false statement in his affidavit, or omitted material information, and that such false information was necessary to the finding of probable cause.” (quotation marks omitted)); Hibbard v. Gallivan, No. 99-CV-145, 1999 WL 782174, at *1 (W.D.N.Y. Sept. 15, 1999) (“[A]n officer may not insulate himself from liability by procuring an arrest warrant based on false statements.” (quotation marks omitted)).
2. Analysis
The two counties, Nassau and Suffolk, sharply contest who was responsible for plaintiff‘s arrest. On the one hand, the Nassau County defendants argue that plaintiff‘s claims for false arrest fail because DiLeonardo and Bienz did not detain or confine plaintiff and did not cause the arrest. Instead, the Nassau County defendants argue that Suffolk officials detained and arrested plaintiff based solely on a statement from DiLeonardo. On the other hand, the Suffolk County defendants maintain that plaintiff‘s arrest was effectuated by DiLeonardo when he approached plaintiff‘s vehicle immediately after shooting plaintiff. In particular, the Suffolk County defendants point to DiLeonardo‘s and Bienz‘s sworn statements wherein they asserted that DiLeonardo approached the vehicle and told plaintiff he was under arrest. Thus, the Suffolk County defendants contend that DiLeonardo arrested plaintiff and, in any event, the arrest was supported by probable cause because Suffolk did not learn of any reasons why they could not rely on DiLeonardo‘s representations about what had happened that night. As set forth below, there are numerous disputes of material fact that preclude summary judgment on the false arrest and false imprisonment claims against the moving defendants, including on the issues of who was responsible for plaintiff‘s arrest and whether that arrest was supported by probable cause.19
With respect to who was responsible for the arrest, there is conflicting evidence that the jury will need to weigh to resolve the many factual disputes.20 First, there is evidence in the record that would support the Suffolk County defendants’ position that DiLeonardo (a Nassau officer) was responsible for the initial arrest of plaintiff. For example, the Suffolk County defendants rely on DiLeonardo‘s written statement, made roughly nine or ten hours after the shooting, as well as Bienz‘s deposition testimony, which both reflect that DiLeonardo arrested plaintiff at the scene. Moreover, there is paperwork which lists DiLeonardo as the “Arresting Officer” and indicates that the arrest took place at 1:15 a.m. (Pl.‘s Ex. 49 at 1 (Arrest Report and Worksheets).) In addition, several Suffolk officers (Lamb, Tavares, and Leser, for example) testified that they were advised at Huntington Hospital that “Nassau” had arrested plaintiff. The Suffolk County defendants also note that, according to Mention-Lewis, Tavares and Leser told her that Nassau arrested plaintiff and that Suffolk would be processing the arrest. In short, if certain evidence is credited, a rational jury could find that DiLeonardo arrested plaintiff and Suffolk processed the paperwork for his arrest based on DiLeonardo‘s and Bienz‘s actions as police officers.
As to Bienz, the Nassau County defendants contend that Bienz never spoke to plaintiff, let alone detained or confined him. However, putting aside
However, there is also evidence that could rationally support a finding that Suffolk was responsible for the decision to arrest plaintiff. First, plaintiff disputes that DiLeonardo announced that he was under arrest at the scene and, instead, testified in his deposition that the first-time he was told he was under arrest was at the SCPD Second Precinct. Second, plaintiff notes that “[o]ther than Det. Tavares, Det. Leser, and D/Sgt. Lamb, everyone else from the SCPD testified that at the hospital, [plaintiff] was never under arrest or handcuffed.” (Pl.‘s Opp‘n to Suffolk Br. at 5.) In addition, plaintiff points to evidence that Lamb, who was in charge of the investigation into the shooting, directed that plaintiff be transferred to the Suffolk Second Precinct where his Prisoner Activity Log was started at 8:48 a.m. Plaintiff further notes that Tavares and Leser admitted that they did not speak with DiLeonardo, his girlfriend, Bienz, or his wife, prior to the interviews of DiLeonardo and Bienz at the Second Precinct at around 10:00 a.m. or 11:00 a.m. Thus, plaintiff contends that “no one from the SCPD who was either present at Oakwood Road and communicated with DiLeonardo and/or Bienz, or present at the hospital as of 4:15 AM, was ever advised that DiLeonardo had arrested or attempted to arrest the taxi driver, and there is no source for that information.” (Pl.‘s Opp‘n to Suffolk Br. at 4.) In sum, if certain evidence is
Finally, there is an alternative theory of liability that survives summary judgment as to these individual Suffolk County defendants even if they were not directly involved in the decision to arrest and charge plaintiff—namely, failure to intervene. As to the ability to void the arrest (even if the arrest was made by DiLeonardo), plaintiff cites to the sworn testimony from Leser in which he stated that authority existed for Suffolk County to void the arrest if their investigation determined that DiLeonardo‘s arrest was not supported by probable cause. (See Defs.’ Ex. J, at 153:14-154:16 (Leser Dep.).) In short, even if not involved in the decision to arrest or charge plaintiff, there is evidence that would allow a rational jury to infer that one or more of these individual Suffolk County defendants (Tavares, Leser, and Lamb) were aware that DiLeonardo‘s version of events was highly questionable based upon information they acquired from their own investigation and observations and/or what they learned from fellow officers. In other words, construing the evidence most favorably to plaintiff, there are material questions of fact that preclude summary judgment on the issue of whether these officers had the opportunity to intervene in an arrest they knew was not supported by probable cause, and failed to take any action to prevent such an arrest prior to the initiation of the charges.22
The Court similarly concludes that the issue of probable cause to arrest cannot be decided on summary judgment because of the existence of numerous factual disputes that impact that analysis. Most fundamentally, as noted above, there is a factual dispute about whether DiLeonardo was so obviously intoxicated and in an altered mental state that morning such that the police should not have relied on the veracity of any of his (or Bienz‘s) statements, in order to arrest plaintiff. For example, with respect to intoxication, one of the first officers to arrive on the scene, Rocchio, testified that, when she spoke to DiLeonardo she smelled a slight odor of alcohol. Geissinger, who rode in the ambulance with DiLeonardo stated that he definitely smelled a “moderate” odor of alcohol from him. (Pl.‘s Ex. 34 at 69:6-70:9 (Geissinger Dep.).)23
In addition to the proof regarding DiLeonardo‘s demeanor and conduct at the scene, plaintiff offers further evidence in the record as to DiLeonardo‘s mental state witnessed by Nassau and Suffolk personnel later at Huntington Hospital to call into question the foundation of probable cause to arrest or charge plaintiff. For example, Geissinger admitted to hearing an unidentified physician raise her voice stating that she wanted to take a sample of DiLeonardo‘s blood. Geissinger‘s own notes memorialized that Dr. Kraszewski said, “[t]his is great you can get drunk [and] shoot someone and walk out the same day.” (Pl.‘s Ex. 84 (Geissinger Notes).) DiLeonardo‘s medical records include the following notations: “Insight & Judgement ... impaired,” “Memory ... impaired,” “Affect ... hostile.” (See also Pl.‘s Ex. 24 at 6-7 (DiLeonardo Medical Records).)
On this issue of whether officers had reason to question DiLeonardo‘s veracity regarding his verbal account or written statement as to what transpired on Oakwood Road, plaintiff also highlights that DiLeonardo‘s version of events was false on its face in several material respects, whether due to intoxication or otherwise. For example, on the 911 call, DiLeonardo represented that he had been shot when he had actually only sustained minor scrapes and cuts. He also made no mention on the 911 call of shooting plaintiff.
In sum, when the evidence is viewed collectively and construed most favorably to plaintiff as each individual issue is examined, there are factual issues regarding whether the officers involved in the arrest of plaintiff would, through their own observations and/or information provided to them, have had a basis to question the veracity of DiLeonardo‘s claim that plaintiff tried to run him over or assault him in
C. Malicious Prosecution Claims
Plaintiff asserts malicious prosecution claims under federal and state law against Bienz, Lamb, Tavares, Leser, and Ciccotto, and non-moving defendant DiLeonardo. As set forth below, the summary judgment motions on these claims are denied.
1. Applicable Law
Claims for malicious prosecution brought under
a. Initiating a Proceeding
The initiation or continuation of a criminal proceeding can be satisfied by, inter alia, showing that the defendant filed formal charges and caused the plaintiff to be arraigned. Phillips v. DeAngelis, 571 F. Supp. 2d 347, 353-54 (N.D.N.Y. 2008). It is well settled that “[i]n order for a civilian complainant to be considered to have initiated a criminal proceeding, ‘it must be shown that [the complainant] played an active role in the prosecution, such as giving advice and encouragement or importuning the authorities to act.‘” Barrett v. Watkins, 919 N.Y.S.2d 569, 572 (App. Div. 2011) (second alteration in original) (quoting Viza v. Town of Greece, 463 N.Y.S.2d 970, 971 (App. Div. 1983)). Importantly, “[m]erely furnishing information to law enforcement authorities, who are then free to exercise their own judgment as to whether criminal charges should be filed, and giving testimony at a subsequent trial are insufficient to establish liability.” Id.
b. Probable Cause
“[P]robable cause” for malicious prosecution purposes is assessed “in light of facts known or reasonably believed at the time the prosecution was initiated” and not at the time of arrest. Drummond v. Castro, 522 F. Supp. 2d 667, 678-79 (S.D.N.Y. 2007) (quoting Carson v. Lewis, 35 F. Supp. 2d 250, 263 (E.D.N.Y. 1999)); see also Mejia v. City of New York, 119 F. Supp. 2d 232, 254 (E.D.N.Y. 2000) (“[T]he existence, or lack, of probable cause is measured as of the time the judicial proceeding
c. Malice
Concerning the fourth element, malice, “[i]n most cases, the lack of probable cause—while not dispositive—‘tends to show that the accuser did not believe in the guilt of the accused, and malice may be inferred from the lack of probable cause.‘” Id. at 573 (quoting Conkey v. New York, 427 N.Y.S.2d 330 (App. Div. 1980)); see Cunninham v. New York City, No. 04-CV-10232, 2007 WL 2743580, at *6 (S.D.N.Y. Sept. 18, 2007) (same); Mesiti v. Wegman, 763 N.Y.S.2d 67, 70 (App. Div. 2003) (“[T]he jury was able to ‘infer the existence of actual malice from the fact that there was no probable cause to initiate the proceeding.‘” (quoting Martin v. City of Albany, 364 N.E.2d 1304, 1307 (1977))).
2. Analysis
Here, although it was Lamb who initiated the criminal proceedings against plaintiff—evidenced by him being listed as the “Complainant” and having signed both the Felony and Misdemeanor complaints—plaintiff has created a material issue of fact as to whether other Suffolk County defendants (namely, Tavares and Ciccotto), as well as Bienz, played a role in the initiation of the charges and alleged malicious prosecution of plaintiff.
The Nassau County defendants argue that Nassau officers did not commence or continue criminal proceedings against plaintiff. Instead, the Nassau County defendants state that it was Suffolk that commenced, conducted, and controlled the entire investigation into the Oakwood
Here, plaintiff has demonstrated issues of fact as to the roles of DiLeonardo and Bienz in the initiation and continuation of the prosecution of plaintiff. A reasonable jury could conclude that DiLeonardo and Bienz, (both NCPD police officers) helped to initiate the prosecution of plaintiff and supported its continuation by supplying false information regarding the incident. Although Bienz did not personally prepare the documents at the Suffolk Second Precinct, a jury could rationally find that he knew that DiLeonardo was intoxicated at the time of the shooting, that plaintiff had not driven toward DiLeonardo, and that the verbal and written statements recounting otherwise used to form the bases of the arrest and subsequent charges were false. A rational jury could further find that Bienz‘s corroboration of DiLeonardo‘s account of what transpired on Oakwood Road is a critical reason why the criminal prosecution was able to proceed for several months. As noted supra, there is also some evidence that formal charges against plaintiff were not filed until after DiLeonardo and Bienz were interviewed by Tavares and Leser, and therefore, that the charges were drafted based on information Bienz and DiLeonardo allegedly knew to be false.
In addition to speaking with Tavares and Leser about the Oakwood Road incident, there is evidence that Bienz also corroborated DiLeonardo‘s story to Palumbo, an investigator with the Suffolk County District Attorney‘s Office, who ADA Pearl had assigned to the case. According to Palumbo, Bienz told Palumbo that he saw plaintiff drive at DiLeonardo, heard DiLeonardo identify himself as a police officer to plaintiff, and that plaintiff knocked him and DiLeonardo to the ground causing them injury. Also, as plaintiff highlights, Bienz said that he ran up to plaintiff‘s taxi to assist DiLeonardo in arresting plaintiff. However, Bienz later recanted this account and denied ever seeing plaintiff drive at DiLeonardo, denied hearing DiLeonardo identify himself as a police officer, and denied seeing plaintiff commit any crime warranting arrest. Plaintiff has provided sufficient evidence in the record to create triable issues of material fact as to whether DiLeonardo and Bienz provided fabricated evidence to both Nassau and Suffolk officials to secure and continue charges against plaintiff.
Similarly, as mentioned above, Bienz may be held liable for the malicious prosecution of plaintiff, just as he may be for the false arrest claim, based upon his alleged failure to intervene in connection with the charges being filed against plaintiff. Branen, 17 F.3d at 557 (“An officer who fails to intercede is liable for the preventable harm caused by the actions of the other officers where that officer observes or has reason to know: (1) that
As is the case with Bienz, there exist genuine issues of material fact as to the culpability of Tavares and Leser for malicious prosecution beyond Lamb‘s initiation of the charges. In particular, plaintiff argues that, taken together, the evidence would allow a jury to rationally find the following: “Det. Tavares and Det. Leser initiated the criminal proceedings against [plaintiff] given that, among other things, they determined which charges should be filed against him, prepared the charging documents, fabricated documents to . . . support the charges, misrepresented the true facts to the prosecutor, and otherwise acted in bad faith, and Det. Ciccotto did so by knowingly eliciting and fabricating inculpatory statements.” (Pl.‘s Opp‘n to Suffolk Br. at 11). To support his theory, plaintiff points to several different pieces of evidence, and notes reasonable inferences that could be drawn from such evidence. First, based upon plaintiff‘s own testimony, plaintiff asserts that Tavares and Leser fabricated his “confession” (which the two detectives used to corroborate DiLeonardo‘s account that he believed that he was in danger when he shot plaintiff) and had DiLeonardo prepare a false statement, which were relied upon to justify the charges brought against plaintiff. Further, plaintiff contends that, together with Ciccotto, Tavares and Leser agreed to tailor DiLeonardo‘s, Sophia Cornia‘s, Jillian Bienz‘s, and Edward Bienz‘s accounts to falsely incriminate plaintiff and maliciously prosecute him. Plaintiff also argues that it was Tavares and Leser who determined the charges against him, facilitated DiLeonardo‘s supporting deposition, and ultimately signed the charging paperwork. In particular, Tavares and Leser took DiLeonardo‘s deposition to Lamb, and thereafter processed plaintiff‘s paperwork, themselves writing out the to-wit clauses for the two charges to generate the Felony and Misdemeanor Complaint that Lamb ultimately approved and signed. Plaintiff also points to evidence that Tavares and Leser spoke directly to ADA Pearl, who was assigned to prosecute the case against plaintiff, from the date he was arraigned throughout the time period the prosecution was pending. ADA Pearl asked Tavares and Leser to give her “[e]verything you know about the case. Everything you know specifically. Tell me about alcohol consumption,” (Pl.‘s Ex. 74 at 163:10-17 (Pearl Dep.)), and inquired about “what [they] kn[ew] about who was drinking alcohol that night,” (Pl.‘s Ex. 74 at 151:14-152:2 (Pearl Dep.)). ADA Pearl discussed Tavares and Leser‘s interviews with DiLeonardo and Bienz and their admissions to consuming alcohol the night of the Oakwood Road incident. Tavares and Leser told ADA Pearl that the two had consumed “a couple” of drinks. (See Pl.‘s Ex. 74 at 147:16-149:5, 170:25-177:17 (Pearl Dep.).) As plaintiff points out, DiLeonardo‘s and Bienz‘s alcohol consumption was important to ADA Pearl in his evaluation of the case given that he did not himself interview DiLeonardo and Bienz, and thus, he was relying on information gathered
In short, having reviewed the record, the Court concludes that there is sufficient evidence in the record to create a disputed factual issue as to the roles in the initiation and continuation of charges against plaintiff of not only Lamb, but also Tavares, Leser, and Ciccotto from Suffolk County, as well as Bienz and DiLeonardo from Nassau County. As with the false arrest claim, these defendants also may alternatively be liable on a failure to intervene theory, when all the evidence is construed most favorably to plaintiff.
In addition, there are many disputed material facts as to the issue of probable cause as it relates to the malicious prosecution claim. As discussed above in connection with the false arrest claims, there is sufficient evidence that there was knowledge of the levels of intoxication of both DiLeonardo and Bienz that evening, as well as inconsistencies in DiLeonardo‘s account of the events and his altered mental state at the time of the incident, such that a rational jury could conclude that those involved in the initiation and continuation of the charges against plaintiff were aware of information that should have caused them to doubt the veracity of DiLeonardo‘s account, and that they should not have relied on such statements to prosecute plaintiff.
Finally, with respect to malice, it is well settled that a jury may infer actual malice from the absence of probable cause. See, e.g., Maxwell v. City of New York, 554 N.Y.S.2d 502, 505 (App. Div. 1990). Thus, given the factual disputes about probable cause (as well as the other evidence in the record discussed supra, including the alleged fabrication of evidence), summary judgment on the malice requirement is unwarranted. Accordingly, summary judgment on the malicious prosecution claims under
D. Excessive Force Claim
1. Applicable Law
A police officer‘s use of force is excessive and in violation of the Fourth Amendment, “if it is objectively unreasonable ‘in light of the facts and circumstances confronting [the officer], without regard to [the officer‘s] underlying intent or motivation.‘” Maxwell v. City of New York, 380 F.3d 106, 108 (2d Cir. 2004) (quoting Graham v. Connor, 490 U.S. 386, 397 (1989)). More specifically, “[d]etermining whether the force used to effect a particular seizure is ‘reasonable’ under the Fourth Amendment requires a careful balancing of the nature and quality of the intrusion on the individual‘s Fourth Amendment interests against the countervailing governmental interests at stake.” Graham, 490 U.S. at 396 (quotation marks omitted). Physical force is often necessary, and thus, “not every push or shove” is unconstitutionally excessive, “even if it may later seem unnecessary in the peace of a judge‘s chambers.” Maxwell, 380 F.3d at 108 (alteration and quotation marks omitted).
“The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham, 490 U.S. at 396; accord Jones v. Parmley, 465 F.3d 46, 61 (2d Cir. 2006). The court must inquire about the totality of the circumstances, “including the severity of the crime at issue, whether the suspect posed
With respect to deadly force, “an officer‘s decision to use deadly force is objectively reasonable only if the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.” Cowan ex rel. Estate of Cooper v. Breen, 352 F.3d 756, 762 (2d Cir. 2003) (quotation marks omitted); see also Garner, 471 U.S. at 11 (“Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so.“).
2. Analysis
DiLeonardo has not moved for summary judgment, including as to the excessive force claim against him. As discussed in detail supra with respect to the analysis of the other claims against the moving defendants, there is sufficient evidence submitted by plaintiff to raise a genuine dispute of material fact as to whether DiLeonardo‘s use of force against plaintiff was reasonable. In particular, although DiLeonardo asserts that his use of force was justified because plaintiff drove towards him with his car and he feared for his safety, plaintiff has testified that DiLeonardo‘s version of the events is false and that the force was used without justification. Plaintiff‘s testimony alone, if credited, would support a rational jury finding in plaintiff‘s favor on this claim, and is therefore sufficient to preclude summary judgment on this issue. In any event, the jury will need to consider all the evidence with respect to the incident and the surrounding circumstances to resolve this issue, including testimony from law enforcement officers, medical personnel, and other third parties. In sum, in light of these disputed factual issues on the various elements of the excessive force claim, that claim against DiLeonardo shall proceed to trial.
E. Conspiracy
Plaintiff has asserted conspiracy claims under
1. Applicable Law
To prove a
2. Analysis
a. The DFRT and Marinace
Plaintiff alleges that the DFRT members and Marinace were involved in a conspiracy with Suffolk County police officials with the “goal of falsely arresting and maliciously prosecuting MOROUGHAN to avoid criminal and administrative sanctions against DILEONARDO and BIENZ,” as well as the goals of “fabricating evidence against MOROUGHAN” and “inflicting unconstitutional injury upon MOROUGHAN.” (Second Amended Compl. ¶¶ 125, 149, 152.) As noted supra, the DFRT is a NCPD administrative team that (1) responds to incidents involving the use of deadly force by a member of the NCPD, and (2) conducts an administrative investigation and prepares a written report of the initial account of the incident, which then must be provided to the NCPD Commissioner by the end of the next business day after the deadly force incident occurred. The DFRT members—namely, Horace, Flanagan, and DeMartinis—were coordinated by Hunter.
In the instant case, Chief of Patrol Hunter reported to the NCPD Commissioner both verbally and via the DFRT Report that DiLeonardo‘s and Bienz‘s use of force was within departmental guidelines and that the officers were fit for duty. More specifically, the DFRT report stated:
The investigation consisted of an on scene evaluation and a review of the investigation by the Suffolk County Police Department‘s Homicide Squad and Second Squad. All preliminary information was received from SCPD investigators. Interviews with police officers DiLeonardo and Bienz have not yet been conducted. As a result of this preliminary investigation, it is the opinion of the Deadly Force Response Team that the actions of all officers involved, with regard to Use of Force issues, were within Departmental guidelines pertaining to the Use of Deadly Physical Force as well as those of
Article 35 of the Penal Law of New York State . All officers involved were found fit for duty.
(Pl.‘s Ex. 51 ¶ 3 (Final DFRT Report).)
As set forth below, plaintiff has failed to point to evidence in the record from which a rational jury could conclude that the DFRT was involved in any conspiracy to violate his constitutional rights. Instead, the claims are based upon speculation
First, there is no evidence that the DFRT members learned of any information during their brief and limited investigation of the incident in the hours following the incident that would place them on notice that DiLeonardo and/or Bienz were involved in an unconstitutional use of deadly force against plaintiff. For example, there is no specific evidence in the record that, when they arrived at Oakwood Road several hours after the incident, the DFRT members learned any information that would make them aware of DiLeonardo‘s and/or Bienz‘s levels of intoxication at the time of the shooting, or any similar information that would suggest that the use of deadly force was unjustified. Moreover, there is no evidence that DiLeonardo or Bienz appeared intoxicated to Hunter at the time he spoke with them at Huntington Hospital sometime after 6:30 a.m. on February 27, 2011, which was more than five hours after the incident occurred. Similarly, there is no evidence that anyone at Huntington Hospital advised any member of the DFRT that either DiLeonardo or Bienz was intoxicated at the time of the shooting. In short, plaintiff cannot point to any evidence in the record that establishes that any DFRT member personally received any information that was inconsistent with the statements contained in the DFRT report.
Second, there is no evidence that any DFRT member participated in plaintiff‘s arrest or in any of the investigative acts performed by the Suffolk County officers in the aftermath of the incident. For example, there is no evidence that any DFRT member was present when plaintiff allegedly requested an attorney, was questioned by Suffolk County officers, and allegedly was directed to sign a false statement about the incident. There is also no evidence that any DFRT member spoke to plaintiff at any time about the incident, or even learned plaintiff‘s version of the events prior to submission of the DFRT report. In addition, with regard to Hunter‘s brief meeting with DiLeonardo and Bienz in the hospital, the uncontroverted evidence is that Hunter asked them how they were doing and did not question them about the shooting incident, which was under investigation by Suffolk County.
Third, there is no evidence that the DFRT report was ever given to the SCPD or the Suffolk County District Attorney‘s Office, or even viewed or considered by them. Instead, the uncontroverted evidence is that the DFRT report was provided to the NCPD Commissioner the day after the incident, and the DFRT‘s involvement with this incident then ended. In short, there is no evidence that the DFRT report played any role whatsoever in plaintiff‘s arrest or prosecution.
Given the lack of any evidence that any DFRT member had any knowledge of facts inconsistent with the statements in the DFRT report or had any involvement in the arrest, investigation, or prosecution, plaintiff seeks to establish such knowledge and participation by pointing to the DFRT members’ mere presence at the scene after the shooting, in Huntington Hospital, and at the Second Precinct in the hours following the incident, as well as communication with Suffolk County officers at those locations. For instance, plaintiff points to a meeting in the Second Precinct detectives’ squad room between DFRT members and various SCPD police officers “where the Homicide Squad discussed the status of the case.” (Pl.‘s Opp‘n to Hunter Br. at 15.) However, it is well settled that generalized allegations that a meeting took place, without details regarding the substance of the meeting that can establish—either directly or circumstantially—an unlawful
In other words, here, plaintiff has produced no evidence that DFRT members were given information in any meeting or communication that demonstrated that the use of force was unjustified, or that they gave direction or advice to SCPD regarding whether or not plaintiff should be charged with any crimes and, if so, which crimes. Instead, plaintiff seeks to draw such inferences simply from the fact of the meetings themselves. Conspiracy claims under
speculation and conjecture.27 The Court recognizes that “an agreement may be inferred from the relationship of the parties, their overt acts and concert of action, and the totality of their conduct.” Am. Fed‘n of Labor & Cong. of Indus. Orgs. v. City of Miami, 637 F.3d 1178, 1192 (11th Cir. 2011) (quotation marks omitted). However, even construing all of the evidence together in the light most favorable to plaintiff, no rational jury could find on this record that any DFRT member was involved in a conspiracy to falsely arrest, maliciously prosecute, and/or otherwise violate plaintiffs constitutional rights in any way.
Finally, the Court reaches the same conclusion as to Marinace. Marinace was not a member of the DFRT; rather, he was assigned to be the caretaker supervisor for DiLeonardo and Bienz while they were at Huntington Hospital, and arrived there at 2:11 a.m. Again, by his general presence in the hospital, plaintiff speculates that Marinace must have heard alleged comments that indicated DiLeonardo‘s intoxication level, and thus, he was part of a conspiracy with Suffolk County officials to violate plaintifrs constitutional rights. For the same reasons discussed supra as to the DFRT members, in the absence of any evidence suggesting participation in any conversation about DiLeonardo‘s consumption of alcohol, his general presence in the hospital does not establish, or even provide a rational inference, that he overheard such comments. Moreover, there is no evidence in the record that
Accordingly, summary judgment in favor of defendants Hunter, Horace, Flanagan, DeMartinis, and Marinace on these conspiracy claims is granted.
b. Bienz and the Suffolk County Defendants
With respect to DiLeonardo, Bienz, and the individual Suffolk County defendants, the Court concludes that material issues of fact preclude summary judgment on these conspiracy claims. In essence, plaintiffs conspiracy claims as to these defendants are that: (1) DiLeonardo and Bienz provided a false narrative to Suffolk County regarding the circumstances surrounding DiLeonardo‘s use of force on plaintiff, including fabricating that plaintiff attempted to run over DiLeonardo with his car before DiLeonardo shot him; (2) the Suffolk County defendants had substantial reasons to believe that DiLeonardo was highly intoxicated and in an altered mental state at the time of the incident, such that there was no factual basis to conclude that plaintiff had done anything warranting DiLeonardo‘s deadly use of force, and that DiLeonardo‘s narrative, as well as the statement by Bienz, were false; (3) the Suffolk County defendants, at a minimum, tacitly agreed with DiLeonardo and Bienz to support this false narrative in the investigation, arrest, and prosecution of plaintiff; and (4) various Suffolk County defendants committed one or more overt acts in furtherance of this conspiracy by, inter alia, denying plaintiffs request for an attorney, fabricating evidence against him, falsely arresting plaintiff, and providing false or incomplete evidence to the District Attorney‘s Office as part of a malicious prosecution of plaintiff.
Unlike the DFRT members and Marinace, plaintiff does not simply rely upon the Suffolk County defendants’ mere presence at Huntington Hospital and/or the Second Precinct, or at meetings, to support these conspiracy claims. Instead, for each of these defendants, plaintiff has pointed to specific evidence in the record that, if credited, could prove that they were aware of information that undermined any purported probable cause to arrest and prosecute plaintiff and then took some overt act—such as fabricating evidence, participating in plaintiffs arrest, or supplying fabricated evidence to others—or, at a minimum, concealed material exculpatory evidence from those involved in the investigation, arrest, and/or prosecution of plaintiff as part of the conspiracy.
For example, Geissinger, Smithers, and Favata responded to the scene at Oakwood Road shortly after the shooting and there was evidence that DiLeonardo was highly intoxicated and in an altered mental state at that time, such that he could not recall whether he broke the window of plaintiffs car or where his gun was located, and erroneously believed he had been shot. For example, Favata described DiLeonardo as not “know[ing] if he was shot or not” and that he “didn‘t really know what was going on.” (Pl.‘s Ex. 3, at 03:51-04:07 (Recording of Favata IAB Interview).) Geissinger, who rode in the ambulance with DiLeonardo stated that he definitely smelled a “moderate” odor of alcohol from
With respect to the fabrication of evidence, plaintiff asserts that Tavares, Leser, and Meaney falsely attributed certain statements to plaintiff during the interview in the hospital, including falsely indicating that plaintiff admitted that he drove his car towards DiLeonardo.28 Plaintiff asserts that these statements were fabricated as part of the conspiracy to conceal DiLeonardo‘s unconstitutional use of force and justify plaintiffs arrest and prosecution. Plaintiff also asserts that Faya prepared a Supplementary Report of plaintiffs statements containing the same false information (about perhaps mistakenly putting the car in drive and hitting DiLeonardo), which plaintiff denies ever stating. (See Pl.‘s Ex. 65 (Faya Supp. Report).) With respect to Ciccotto, plaintiff points to, among other things, the fact that Mondo denies making many of the statements that Ciccotto attributed to her in the statement he drafted of her interview. (See Pl.‘s Ex. 9 at 252:2-261:10 (Mondo Dep.); Pl.‘s Ex. 67 (Mondo Statement).) Plaintiff further highlights that many of the witness statements prepared by Ciccotto contain very similar language that suggests an attempt to make the statements consistent.
Plaintiff also contends, as part of the conspiracy, various Suffolk County defendants concealed critical facts in preparing documentation. For example, plaintiff points to Supplementary Reports prepared by Meaney and Faya which contain no reference to what plaintiff contends Rocchio learned at the scene, including the odor of alcohol, the frazzled demeanor of DiLeonardo and Bienz, or that DiLeonardo thought he had been shot.
In short, when all the evidence is taken together and is construed most favorably to plaintiff, a rational jury could conclude, as to each of the individual Suffolk County defendants, based upon their own personal observations during the investigation and/or what was conveyed to them by other officers, as well as their alleged conduct or inaction in connection with the fabrication of evidence and/or plaintiffs arrest and prosecution, that they conspired with DiLeonardo and Bienz to violate plaintiffs constitutional rights in an effort to cover-up DiLeonardo‘s unconstitutional use of force against plaintiff. See, e.g., Ali v. Connick, 136 F. Supp. 3d 270, 282 (E.D.N.Y. 2015) (“If a jury finds in favor of Plaintiff on his excessive force claim, then a reasonable juror could also find that the Medical Treatment of Prisoner document shows an agreement to falsify testimony and cover up an unconstitutional use of force.“); Hill v. City of New York, No. 03-CV-1283, 2005 WL 3591719, at *5 (E.D.N.Y. Dec. 30, 2005) (“Given that a jury may rationally infer that the defendant officers participated in a conspiracy to cover-up unconstitutional acts, summary judgment is not appropriate on plaintiffs conspiracy claim.“).
The Court emphasizes that this claim cannot be defeated by arguing that each piece of evidence, such as knowledge of DiLeonardo‘s intoxication, alone would be insufficient to establish that conspiracy. That is not how a court or a jury is to evaluate the evidence under the law. In other words, although no single piece of evidence might be sufficient to support the claim, all of the evidence must be examined in totality, not in isolation. When that approach is taken as to the evidence in this case, and all reasonable inferences from the evidence are drawn in plaintiffs favor (as required on a summary judgment motion), the collective evidence is more than sufficient to create genuine issues of material fact as to whether such a conspiracy existed in this case as to these defendants.
Finally, to the extent any of the moving defendants attempt to rely upon the intracorporate conspiracy doctrine to defeat this claim on summary judgment, the Court finds that argument unpersuasive. The intracorporate conspiracy doctrine posits that the officers, agents, and employees of a single corporate or municipal entity, each acting within the scope of his or her employment, are legally incapable of conspiring with each other. See, e.g., Farbstein v. Hicksville Pub. Library, 254 F. App‘x 50, 51 (2d Cir. 2007) (summary order) (affirming dismissal of conspiracy complaint “at the first step of analysis” because complaint made reference only to employees of same corporation); Herrmann v. Moore, 576 F.2d 453, 459 (2d Cir. 1978) (“[T]here is no conspiracy [under Section 1985] if the conspiratorial conduct challenged is essentially a single act by a single corporation acting exclusively through its own . . . officers[ ] and employees, each acting within the scope of his employment.“); Cameron v. Church, 253 F. Supp. 2d 611, 623 (S.D.N.Y. 2003); Quinn v. Nassau Cnty. Police Dep‘t, 53 F. Supp. 2d 347, 359-60 (E.D.N.Y. 1999); Rini v. Zwirn, 886 F. Supp. 270, 292 (E.D.N.Y. 1995) (“lntracorporate immunity has also been extended to the context of conspiracies between a public entity and its employees.“). Here, because there is sufficient evidence to preclude summary judgment on the conspiracy claims as to DiLeonardo, Bienz, and the individual Suffolk County defendants, the alleged conspiracy does not involve one single municipal entity; rather, it allegedly involves police officials from both Nassau County and Suffolk County. Thus, the intracorporate conspiracy doctrine does not preclude this claim from proceeding to trial. See, e.g., Vlahadamis v. Kiernan, 837 F. Supp. 2d 131, 157 (E.D.N.Y. 2011) (intracorporate conspiracy doctrine did not apply to alleged conspiracy between Town of Southampton employees and member of the New York State Division of Alcohol Beverage Control).
Accordingly, summary judgment is denied as to the conspiracy claims against Bienz and the Suffolk County defendants.
F. Due Process Claims
Plaintiff has asserted due process claims under
1. Applicable Law
When a police officer “creates false information likely to influence a jury‘s decision and forwards that information to prosecutors,” the police officer “violates the accused‘s constitutional right to a fair trial” and such “unconscionable action” may be redressed through damages under
The Second Circuit has held that the fabricated evidence must cause the deprivation of liberty. See Zahrey v. Coffey, 221 F.3d 342, 350-351 (2d Cir. 2000); see also Jovanovic v. City of New York, 486 F. App‘x 149, 152 (2d Cir. 2012) (summary order) (“A person suffers a constitutional violation if 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.“). The inquiry as to causation is “whether the liberty deprivations that occurred are legally traceable back even further to [the] earlier investigatory act of fabrication.” Zahrey, 221 F.3d at 352. However, in a recent decision, the Second Circuit made clear that the right to a fair trial can be violated even if the fabricated evidence that was supplied to the prosecutor was not ultimately used at trial. See Frost v. N.Y.C. Police Dep‘t, 980 F.3d 231, 250 (2d Cir. 2020). Moreover, it is important to note that, although the officer need not directly provide the fabricated evidence to the prosecutor, no causation for this claim would exist if such evidence was never brought to the prosecutor‘s attention. In other words, the claim only accrues “when fabricated information is forwarded to a prosecutor and results in the deprivation of a defendant‘s liberty.” Soomro v. City of New York, 174 F. Supp. 3d 806, 815 (S.D.N.Y. 2016).
Finally, in addition to the fabrication of evidence, “[p]olice officers can be held liable for Brady due process violations under
2. Analysis
a. The DFRT and Marinace
With respect to the DFRT members and Marinace, the due process claims cannot proceed for reasons substantially similar to the conspiracy claims. In particular, plaintiff has failed to provide evidence from which a rational jury could find that these defendants were aware that any statement contained in the DFRT report
Moreover, to the extent plaintiff suggests that the DFRT members and Marinace were negligent in failing to uncover exculpatory information regarding the incident, this argument fails because only the intentional suppression of exculpatory evidence by the police gives rise to a fair trial claim under
Therefore, summary judgment is warranted as to the due process claims against the DFRT members (Hunter, Horace, Flanagan, and DeMartinis) and Marinace.29
b. Bienz
As a threshold matter, the Nassau County defendants argue Bienz did not violate plaintiffs due process rights because Bienz did not arrest, detain, or prosecute him. However, as noted above, involvement in the arrest or initiation of charges is not an element for a due process claim; rather, liability can be triggered by, among other things, intentionally supplying fabricated evidence to the prosecutor. Ricciuti, 124 F.3d at 130.
With respect to Bienz, plaintiff has put forth evidence that Bienz initially fabricated false information regarding the incident, including that plaintiff attempted to run over DiLeonardo, and that such fabricated evidence was provided to prosecutors. Moreover, there is evidence that, approximately two months after the incident, Special Investigator Palumbo (from the Suffolk County District Attorney‘s Office), interviewed Bienz. According to Palumbo, Bienz told Palumbo that plaintiff drove his cab toward DiLeonardo and that DiLeonardo identified himself as a police officer to plaintiff. Bienz also said he heard DiLeonardo tell plaintiff he was under arrest. Bienz further told Palumbo that based on his observations, plaintiff had committed a crime warranting arrest. ADA Pearl testified that the interviews with Bienz corroborated what Bienz and DiLeonardo had stated regarding the Oakwood Road incident. Accordingly, this testimony raises a genuine dispute of material fact in light of the entire record as to whether Bienz supplied fabricated evidence to the prosecutor (or withheld Brady material from the prosecutor), and thus precludes summary judgment as to Bienz on the due process claims.
c. Suffolk County Defendants
The sole argument made by the individual Suffolk County defendants for summary
The Court finds this argument unpersuasive. As noted above, the Second Circuit recently rejected this precise argument. More specifically, in Frost, the Second Circuit held that the “fair trial right protects against deprivation of liberty that results when a police officer fabricates and forwards evidence to a prosecutor that would be likely to influence a jury‘s decision, were that evidence presented to the jury.” Frost, 980 F.3d at 250. The Court emphasized that “we have expressly distinguished this right from the separate, although related, right not to be convicted based on the use of false evidence at trial.” Id. Thus, the fair trial claim survived summary judgment in Frost even though the allegedly fabricated evidence was presented to the prosecutor, but never used at any trial.
In the instant case, ADA Pearl testified that he considered the interviews of DiLeonardo and Bienz, and that plaintiffs allegedly fabricated confession corroborated their accounts as evidence against plaintiff. Thus, as in Frost, the due process claims survive summary judgment even though the charges against plaintiff were dismissed before trial. Moreover, as the Second Circuit reiterated in Frost, “probable cause is not a defense to a fair trial claim based on the fabrication of evidence,” id. at 248, and thus, plaintiff may prevail on this claim even if probable cause existed for his arrest and prosecution.
Although the Suffolk County defendants’ motion focused only on plaintiffs allegation that his statement to the Suffolk County defendants was fabricated, plaintiff notes that his due process claims also include an allegation that the Suffolk County defendants fabricated other evidence in connection with the investigation and prosecution of plaintiff, which was supplied to the prosecutor. (See Pl.‘s Opp‘n to Suffolk Br. at 32 (noting that, in addition to allegedly fabricated confession, “there are sufficient facts in the record to demonstrate, that the Suffolk County defendants fabricated other evidence as well[ ]—all witness statements, the police officers’ Supplementary Reports, DiLeonardo‘s Deposition and the Felony and Misdemeanor Complaints.“).)
In addition, aside from the allegations regarding affirmative conduct by the Suffolk County defendants in creating and forwarding fabricated evidence to ADA Pearl, plaintiff correctly notes that this claim also includes allegations that the Suffolk County defendants intentionally withheld exculpatory evidence related to plaintiffs criminal case from the prosecutors. Such omissions are part of a due process analysis. See Morse v. Fusto, 804 F.3d 538, 547-48 (2d Cir. 2015) (“We conclude that the omissions in this case were properly considered under the rubric of Zahrey, under which government officials may be held liable for fabricating evidence through false statements or omissions that are both material and made knowingly.“); see also Bermudez, 790 F.3d at 376 (concluding that “a jury could find that [the defendant police officers‘] alleged failure to inform [the prosecutor] about problems in
In short, plaintiff argues, based upon the record in this case, that “[a] reasonable jury can certainly find that if the fabricated evidence was not submitted to the Suffolk County District Attorney‘s Office, including ADA Pearl, and that if the Suffolk Defendants did not withhold all the evidence undermining the charges, including the legality of the statements they procured, which all, ‘conveniently,’ corroborated each other, tha[n] Moroughan would not have been arraigned, given, as this Court will surely find, that there was no probable cause to prosecute.” (Pl.‘s Opp‘n to Suffolk Br. at 35.) Construing the evidence most favorably to plaintiff, the Court concludes that there are genuinely disputed issues of material fact that preclude summary judgment on the due process claims against the individual Suffolk County defendants due to the varied allegations—and evidence supporting these allegations—of the fabrication of evidence and the withholding of material evidence as it relates to plaintiff‘s prosecution.
Accordingly, summary judgment as to the Suffolk County defendants on the due process claims is denied.
G. Qualified Immunity
The Nassau County defendants (with the exception of Bienz) and Suffolk County defendants argue that they are entitled to qualified immunity. As a threshold matter, the Court has concluded that the DFRT members and Marinace are entitled to summary judgment on all claims on other grounds. Thus, the Court need not (and does not) address the qualified immunity issue as it relates to those defendants. Because the only remaining Nassau County individual defendant is Bienz—who does not assert qualified immunity in the summary judgment motion—the qualified immunity issue need only be analyzed as to the individual Suffolk County defendants. With respect to those defendants, the Court concludes that summary judgment on qualified immunity grounds is unwarranted given the disputed issues of fact in this case.
1. Applicable Law
According to the Second Circuit, qualified immunity shields a government official from liability for civil damages if the official‘s “conduct did not violate plaintiff‘s clearly established rights or if it would have been objectively reasonable for the official to believe that his conduct did not violate plaintiff‘s rights.” Mandell v. County of Suffolk, 316 F.3d 368, 385 (2d Cir. 2003); see also Fielding v. Tollaksen, 257 F. App‘x 400, 401 (2d Cir. 2007) (summary order). Qualified immunity shields an official even if his conduct resulted from “a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Groh v. Ramirez, 540 U.S. 551, 567 (2004) (Kennedy, J., dissenting)). As the Second Circuit has noted, “[t]his doctrine is said to be justified in part by the risk that the ‘fear of personal monetary liability and harassing litigation will unduly inhibit officials in the discharge of their duties.“’ McClellan v. Smith, 439 F.3d 137, 147 (2d Cir. 2006) (quoting Thomas v. Roach, 165 F.3d 137, 142 (2d Cir. 1999)). Thus, qualified immunity is not merely a defense, but is “an entitlement not to stand trial or face the other burdens of litigation.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). Accordingly, a court should determine the availability of qualified immunity “at the earliest possible stage in litigation.” Hunter v. Bryant, 502 U.S. 224, 227 (1991).
“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 . . . . The unlawfulness must be apparent.” Connell v. Signoracci, 153 F.3d 74, 80 (2d Cir. 1998) (quotation marks and brackets omitted). Even where the plaintiff‘s rights are clearly established, however, the qualified immunity defense protects the government actor if it was objectively reasonable for him to believe his actions were lawful at the time of the challenged act. Lennon v. Miller, 66 F.3d 416, 420 (2d Cir. 1995). “The objective element of this test requires the court to look beyond the generalized constitutional protection, such as the right to be free of unreasonable searches and seizures, and to determine whether the law is clearly established in a more particularized sense,” given the specific factual situation with which the officer is confronted. Kerman v. City of New York, 261 F.3d 229, 236 (2d Cir. 2001).
With respect to summary judgment, the Second Circuit has held that a court should cloak a defendant with qualified immunity at this juncture “only . . . when a court finds that an official has met his or her burden demonstrating that no rational jury could conclude ‘(l) 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, 735 (2011)); see also Ford v. McGinnis, 352 F.3d 582, 597 (2d Cir. 2003) (holding that finding qualified immunity at summary judgment stage is appropriate “only ‘if the court finds that the asserted rights were not clearly established, or if the evidence is such that, even when it is viewed in the light most favorable to the plaintiff . . . and with all permissible inferences drawn in [the plaintifr s] favor, no rational jury could fail to conclude that it was objectively reasonable for the defendants to believe that they were acting in a fashion that did not violate a clearly established right“’ (second alteration added) (quoting Williams v. Greifinger, 97 F.3d 699, 703 (2d Cir. 1996))); see also Stancuna v. Sherman, 563 F. Supp. 2d 349, 356 (D. Conn. 2008) (“Here, the court finds that summary judgment on qualified immunity grounds is inappropriate. As the Second Circuit has held, [w]hen a motion for summary judgment is made in the context of a qualified immunity defense, the question of whether the factual disputes are material is even more critical.” (alteration in original) (quotation marks omitted)). Though qualified immunity is ordinarily decided by the court, “that is true only in those cases where the facts concerning the availability of the defense are undisputed; otherwise,
2. Analysis
As an initial matter, all the rights that are the subject of plaintiffs claims in the instant case—namely, the right to be free from unlawful arrest, malicious prosecution, excessive force, and violations of the fair trial right (including the fabrication of evidence or suppression of exculpatory information by the police)—were all clearly established at the time of the alleged unconstitutional conduct in this case, as set forth in Second Circuit precedent developed long before the incident here. See, e.g., Lennon, 66 F.3d at 423 (“There is no question that the rights at issue in this case—to be free from false arrest, malicious prosecution, and excessive force—were clearly established at the time of the incident.“); Zahrey, 221 F.3d at 355 (“It is firmly established that a constitutional right exists not to be deprived of liberty on the basis of false evidence fabricated by a government officer.“); Walker v. City of New York, 974 F.2d 293, 299 (2d Cir. 1992) (noting that “the police satisfy their obligations under Brady when they turn exculpatory evidence over to the prosecutors” and allowing plaintiff on remand to re-plead allegations that the police suppressed evidence from the prosecution). Moreover, the constitutional requirement that police officers intervene to prevent a false arrest, malicious prosecution, or the fabrication of evidence, if they have the reasonable opportunity to do so, also was clearly established decades prior to the incident on Oakwood Road. See O‘Neill v. Krzeminski, 839 F.2d 9, 11 (2d Cir. 1988) (a police officer “has an affirmative duty to intercede on the behalf of a citizen whose constitutional rights are being violated in his presence by other officers“).
The Suffolk County defendants principally argue that, based upon the facts in this case, no reasonable officer would have understood that he was violating those clearly established rights as it related to plaintiff. In particular, they contend that, even if probable cause was lacking for the arrest and prosecution of plaintiff, they are entitled to qualified immunity based upon the existence of arguable probable cause. However, the disputed issues of material fact in this case (discussed in detail supra) preclude summary judgment on the issue of qualified immunity. In other words, as set forth below, if the facts are construed most favorably to plaintiff, no reasonable officer would believe there was probable cause, or that his conduct did not violate plaintiffs clearly established rights.
The Court recognizes that, even without probable cause, a police officer is entitled to qualified immunity “so long as ‘arguable probable cause’ was present when the arrest was made.” Figueroa v. Mazza, 825 F.3d 89, 100 (2d Cir. 2016) (quoting Zalaski v. City of Hartford, 723 F.3d 382, 390 (2d Cir. 2013)). “A police officer has arguable probable cause ‘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.“’ Id.
The Second Circuit has affirmed that “‘[a]rguable’ probable cause should not be misunderstood to mean ‘almost’ probable cause. . . . If officers of reasonable competence would have to agree that the information possessed by the officer at the time of arrest did not add up to probable cause, the fact that it came close does not immunize the officer.” Jenkins v. City of New York, 478 F.3d 76, 87 (2d Cir. 2007). Under this standard, an arresting officer is entitled to qualified immunity, as a matter of law, only “if the undisputed facts and all permissible inferences favorable to the plaintiff show . . . that officers of reasonable competence could disagree on whether the probable cause test was met.” McClellan v. Smith, 439 F.3d 137, 147-48 (2d Cir. 2006) (alteration in original) (quotation marks omitted).
As discussed in detail supra, viewing the evidence most favorably to plaintiff, including drawing all reasonable inferences in his favor, plaintiff has shown that there is a material issue of fact as to whether the Suffolk County defendants participated in the fabrication of evidence to establish probable cause to arrest and prosecute plaintiff, as well as whether they concealed exculpatory evidence. If all of the evidence in plaintiffs favor is credited by the jury, the jury could also rationally find that one or more Suffolk County defendants knew that DiLeonardo was highly intoxicated at the time of the incident and after the time at which he made statements—to the point that he was describing critical information about the incident that officers instantly knew to be false (such as claiming to have been shot)—and thus that DiLeonardo‘s version of the events was completely lacking in credibility and probable cause was absent. Under the circumstances of this case, these disputed issues of fact also preclude summary judgment on the issue of qualified immunity. In particular, if the Suffolk County defendants knew that the version of the events provided by DiLeonardo and Bienz was completely lacking in credibility, and that they then fabricated evidence and/or withheld exculpatory evidence to conceal DiLeonardo‘s unjustified use of force, there would be a lack of even arguable probable cause for plaintiffs arrest and prosecution, and no reasonable officers would disagree on the unconstitutionality of such conduct.30
This conclusion is consistent with well-settled Second Circuit precedent. For example, in Ricciuti v. New York City Transit Authority, the Second Circuit held that the district court erred in granting summary judgment in favor of the police officers on qualified immunity grounds with respect to the alleged fabrication of evidence. 124 F.3d 123, 130 (2d Cir. 1997). The Court found qualified immunity unavailable because conspiring to fabricate and forward to prosecutors a known false confession “violates an accused‘s clearly established constitutional rights, and no reasonably competent police officer could believe otherwise.” Id. Moreover, the Court held that the disputed factual issues regarding fabrication precluded summary judgment on that issue. Id. (“[A] reasonable
Similarly, in Jenkins, the Second Circuit found that some of the facts alleged to provide a basis for probable cause were “vigorously disputed,” including facts that were “clearly material” to the district court‘s finding of arguable probable cause. 478 F.3d at 89. The Second Circuit, therefore, found that the district court had erred in part in granting summary judgment on qualified immunity grounds. Id. at 91; see also McGee v. Doe, 568 F. App‘x 32, 37-38 (2d Cir. July 2, 2014) (summary order) (“[Plaintiff] has alleged facts that, if true, indicate that any reasonably competent officer should have known that [the complainant] was an unreliable victim informant whose statement, under the circumstances, could not form the sole basis for an arrest.“).
Other courts have denied qualified immunity at summary judgment where the facts (if taken as true) raised doubt as to the complainant‘s veracity and vitiated probable cause to the point that no reasonable officer could conclude that an arrest was constitutional. See Allen v. Leonard, 18-CV-7163, 2020 WL 4587752, at *12 (E.D.N.Y. March 3, 2020) (“[T]here were reasons to doubt the Complainants’ veracity in this situation, and, as a consequence, the validity of the Supporting Depositions. Therefore, it may not have been ‘objectively reasonable’ for Defendants to believe probable cause existed solely from the Supporting Depositions without having conducted a further investigation. Under these circumstances, absent reliable Supporting Depositions, no ‘officers of reasonable competence could disagree’ that the arresting officers did not have probable cause to arrest and charge Plaintiff.“), report and recommendation adopted, 2020 WL 2537280 (E.D.N.Y. May 19, 2020); Jovanovic v. City of New York, No. 04-CV-8437, 2006 WL 2411541, at *8 (E.D.N.Y. Aug. 17, 2006) (“[T]here were reasons to doubt [the victim‘s] veracity, and therefore the validity of her statement, so that it may not have been ‘objectively reasonable’ for [the officer] to believe he had probable cause based solely upon this statement. Removing the alleged victim‘s statement from the equation, no officer of reasonable competence could believe that [the officer] had probable cause to arrest [the plaintiff].“).
Accordingly, given the disputed issues of fact in the record regarding the alleged fabrication of evidence by various Suffolk County defendants and/or their knowledge regarding information that substantially
H. Monell Claim against Nassau County
Plaintiff also asserts a
Under Monell v. Department of Social Services, 436 U.S. 658 (1978), a municipal entity may be held liable under
Here, because the Court has concluded that there is insufficient evidence for the underlying constitutional claims against the DFRT members to survive summary judgment, no Monell claim can lie against Nassau County based upon that alleged conduct. See, e.g., Vippolis v. Village of Haverstraw, 768 F.2d 40, 44 (2d Cir. 1985) (“A plaintiff who seeks to hold a municipality
I. State Law Claims
1. Nassau County
The Nassau County defendants argue that, for all the reasons summary judgment is warranted on the federal claims, summary judgment should be granted on the state law claims. Among other things, Nassau County contends that it cannot be liable under a respondeat superior theory of liability under state law for the intentional conduct of DiLeonardo or Bienz because they were not acting under color of state law at the time of the shooting incident. As a threshold matter, to the extent that plaintiff asserts any state law claims against the DFRT members and Marinace, summary judgment is granted on those claims for the same reason that summary judgment is granted on the federal claims against those defendants.
With respect to Bienz, the disputed issues of fact that preclude summary judgment on the federal claims against him also preclude summary judgment on the corresponding state law claims. Accordingly, summary judgment is denied as to Bienz on the state law claims.
Finally, as to Nassau County, it is well established that the doctrine of respondeat superior renders an employer vicariously liable for torts committed by an employee acting within the scope of his or her employment. Beauchamp v. City of New York, 771 N.Y.S.2d 129, 131 (App. Div. 2004). Thus, although a municipality cannot be held vicariously liable on a
In the instant case, because the Court has already determined that disputed factual issues preclude summary judgment on whether DiLeonardo and/or Bienz acted under color of state law at the time of the shooting (or thereafter in connection with the investigation, arrest, and prosecution), summary judgment on the state law claims
Accordingly, summary judgment as to Nassau County on the state law claims, as it relates to the corresponding claims against Bienz and DiLeonardo, is denied.
2. Suffolk County
The Suffolk County defendants assert one ground for summary judgment on the state law claims—namely, they assert the claims for libel and slander should be dismissed because there was probable cause for plaintiffs arrest. In the alternative, the Suffolk County defendants request that, in the absence of viable federal claims, the Court should decline to exercise supplemental jurisdiction over the state law claims.
Given that the Court has already determined that factual disputes preclude summary judgment on the probable cause issue, summary judgment on the libel and slander claims on that ground is denied. Moreover, because federal claims against the Suffolk County defendants have survived summary judgment, the Court, in its discretion, will exercise supplemental jurisdiction over the state law claims against the Suffolk County defendants.
J. Cross-Claims
The Nassau County defendants have moved for summary judgment on DiLeonardo‘s cross-claims against them. Defendant Hunter has likewise moved for summary judgment on the cross-claim brought against him by the Suffolk County defendants.
To the extent these cross-claims seek indemnification and contribution on plaintiffs
K. Punitive Damages
The Nassau County defendants seeks dismissal of the claim for punitive damages. Bienz is the only remaining individual defendant, among the individual Nassau County defendants, who remains in this case. Viewing the record in the light most favorable to plaintiff, a reasonable trier of fact could find that Bienz acted with “reckless or callous indifference” to plaintiffs rights. Lee v. Edwards, 101 F.3d 805, 808 (2d Cir. 1996) (citation omitted). Accordingly, the Nassau County defendants’ motion for summary judgment as to plaintiffs punitive damages claim is denied.35
For the reasons set forth above, the Court grants the motions for summary judgment as to all of plaintiffs claims against defendants Hunter, Horace, Flanagan, DeMartinis, and Marinace.37 The cross-claims against defendant Hunter also are dismissed. The cross-claims brought by DiLeonardo against Nassau County are also dismissed.
The Court also grants summary judgment as to the federal
The summary judgment motions are denied in all other respects.
The federal and state claims shall proceed to trial against the remaining individual defendants (DiLeonardo, Bienz, Lamb, Tavares, Leser, Meaney, Ciccotto, Geissinger, Favata, Smithers, and Faya), as well as the state claims against Nassau County and Suffolk County.
SO ORDERED.
s/ Joseph F. Bianco
JOSEPH F. BIANCO
United States Circuit Judge
(sitting by designation)
Date: January 20, 2021
Central Islip, NY
***
Plaintiff Thomas M. Moroughan is represented by Mirel Fisch and Anthony M. Grandinette of the Law Office of Anthony M. Grandinette, 114 Old Country Road, Suite 420, Mineola, New York 11501.
The Nassau County defendants are represented by Peter James Johnson, Jr., Joanne Filiberti, and Christopher D. Clarke of Leahey & Johnson, P.C., 120 Wall Street, Suite 2220, New York, New York 10005.
The Suffolk County defendants are represented by Suffolk County Attorney Dennis M. Brown and Assistant County Attorney Brian C. Mitchell, H. Lee Dennison Building, 100 Veterans Memorial Highway, Hauppauge, New York 11788.
Defendant John Hunter is represented by Annemarie S. Jones of Lewis Johs Avallone Aviles, LLP, One CA Plaza, Suite 225, Islandia, New York 11749.
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