OPINION AND ORDER
The defendant, Police Officer Elvis Duran, has moved for summary judgment pursuant to Federal Rule of Civil Procedure 56 seeking to dismiss the claims alleged against him by the plaintiff, Juther Perez. The plaintiff alleges claims for false arrest, malicious prosecution, and denial of the right to a fair trial in violation of 42 U.S.C. § 1983.
The circumstances surrounding the plaintiffs arrest and prosecution are vigorously disputed by the parties particularly whether Officer Duran had probable cause to arrest the plaintiff and whether Officer Duran truthfully reported the circumstances of the arrest to the prosecutor. Therefore, the motion for summary judgment must be denied.
I.
The standard for granting summary judgment is well established. “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett,
In determining whether summary judgment is appropriate, the Court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
II.
The plaintiff, Juther Perez, was arrested on February 12, 2011 at approximately 2:45pm in front of 340 Alexander Avenue in the Bronx and charged with criminal sale of a controlled substance in violation of New York Penal Law § 220.39, a Class B felony. (Pl.’s Resp. to Defs.’ Local Rule 56.1 Stmt. (“56.1 Resp.”) ¶ 1; Silverberg Decl., Ex. A.)
On the day of his arrest, the plaintiff was in the vicinity of 340 Alexander Avenue to visit a friend. (Fitch Decl., Ex. A (“Pl. Dep.”) at 38; Def.’s Statement of Undisputed Facts Pursuant to Local Civil Rule 56.1 (“56.1 Stmt.”) ¶¶ 1, 3; 56.1 Resp. ¶¶ 1, 3.) The plaintiff parked his car and saw his father, Juther A. Perez, Sr., walking down the street. (Pl. Dep. at 38; Fitch Decl., Ex. B (“Perez Sr. Dep.”) at 8.) The parties have very different versions of the events that ensued.
A.
The plaintiffs version of the events is as follows. The plaintiff stopped to speak with his father, Perez Sr. (Pl. Dep. at 38.) The plaintiff and his father shook hands. (Pl. Dep. at 38-40.) Aсcording to Perez Sr., he gave the plaintiff a highfive. (Perez Sr. Dep. at 71.) The plaintiff testified at his deposition that the handshake with his father could be described as grabbing hands together by “kind of locking] your fingers in each other[’s] hands” and “shaking] your hands a little bit,” and the handshake did not last longer than two seconds. (Pl. Dep. at 39; see 56.1 Stmt. ¶4 (“[the] plaintiff and his father made hand to hand contact, which lasted approximately two seconds”).)
The plaintiff testified that when he shook hands with his father, his father did not pass anything to him, the plaintiff did not pass anything to his father, and the plaintiff did not sell anything to his father. (Pl. Dep. at 104.) Perez Sr. testified that the only physical contact he had with the plaintiff wаs a high-five and that the plaintiff did not give him anything during this interaction. (Silverberg Decl., Ex. C at 71, 74.)
After he saw his father, the plaintiff went into 340 Alexander Avenue, and police officers stopped Perez Sr. at 143rd Street. (Perez Sr. Dep. at 74.) Perez Sr. testified that he told the officers that he
The plaintiff received a phone call from a friend informing him that his father was being arrested. (PI. Dep. at 41, 48.) The plaintiff then took the elevator downstairs to “ask what happened, and hopefully get his [father’s] property.” (PI. Dep. at 41, 48.) Once the plaintiff left the building, two officers “came and grabbed” him. (PI. Dep. at 48.) .The officers searched the plаintiff and seized his phone, keys, and $444 in cash. (PI. Dep. at 63-64.) The plaintiff testified that the defendant, Officer Duran, arrived after other officers had already placed the plaintiff in handcuffs. (PI. Dep. at 53, 56-57; 56.1 Resp. ¶ 1.) The plaintiff testified that he recognized Officer Duran “from around the neighborhood.” (PI. Dep. at 53.)
B.
Officer Duran’s version of the events is very different. Officer Duran submitted a sworn report of the incident in which he claimed to have observed the plaintiff’s father hand the plaintiff “a sum of United States currency, and in exchange, [the plaintiff] handed [his father] a small object,” which Officer Duran identified, based on his training and experience, as crack cocaine. (Fitch Deck, Ex. C.) At his deposition, Officer Duran testified that on the day of the plaintiffs arrest, Officer Duran saw the plaintiff hand a “clear plastic bag containing [ ] powder,” to Perez Sr. (Fitch Deck, Ex. G (“Duran Dep.”) at 53.) Officer Duran also testified that he saw the plaintiffs father hand the plaintiff cash. (Duran Dep. at 52-53.) Officer Cruz, who was also on the scene at the time of the plaintiffs arrest, testified that he witnessed an “exchange of green paper with a plastic bag containing a whi[t]e substance.” (Fitch Deck, Ex. I at 25.)
Officer Duran testified that while he was witnessing what he believed to be a drug transaction between the plaintiff and Perez Sr., Officer Duran cаlled other officers near the site of the exchange and alerted them to the criminal activity. (Duran Dep. at 93.) Officer Duran testified that he jumped out of his vehicle and that Perez Sr. “proceeded to run toward the corner ... of 143rd Street and Alexander Avenue.” (Duran Dep. at 54.) Officer Duran testified that other officers in a nearby vehicle saw Perez Sr. running, stopped him, and told Officer Duran over the radio, “[h]e has crack cocaine on him.” (Duran Dep. at 56, 96.)
Officer Duran testified that when the plaintiff saw Officer Duran the plaintiff ran toward 340 Alexander Avenue and then “[p]retty much ... walk[ed] right out to greet” the officers. (Duran Dep. at 56.) Officer Duran сontends that he arrested the plaintiff and recovered $444 in cash from the plaintiff although he mistakenly wrote in the arrest report that Officer Torres had recovered the cash. (56.1 Stmt. ¶ 1; Duran Dep. at 118.) Officer Duran forwarded the arrest report and other paperwork he prepared in connection with the plaintiffs arrest to the District Attorney’s Office. (Silverberg Deck, Ex. P ¶ 7; see Silverberg Deck, Ex. F.)
C.
It is clear based on the parties’ different versions of the events surrounding the plaintiffs arrest that the parties dispute several key facts including: (i) whether Officer Duran observed any interaction between the plaintiff and his father at all; and (ii) whether the plaintiff and Perez Sr. simply shook hands or gave a high-five, or whether they exchanged money for drugs. (56.1 Stmt. ¶¶ 4, 5; 56.1 Resp. ¶¶4, 5.) However, the parties generally agree on the events that followed the plaintiffs arrest.
On August 3, 2011, the plaintiff brought this action against the City of New York, Officer Duran, and several “John Doe” police officer defendants. (56.1 Stmt. ¶ 24; 56.1 Resp. ¶ 24.) The plaintiff has withdrawn his claims against all of the defendants named in the Comрlaint except for his claims for false arrest, malicious prosecution, and denial of the right to a fair trial in violation of 42 U.S.C. § 1983 against Officer Duran. Officer Duran now moves for summary judgment dismissing those claims.
III.
A.
The defendant argues that he is entitled to summary judgment on the claim for false arrest in violation of 42 U.S.C. § 1983 because he had probable cause to arrest the plaintiff for criminal sale of a controlled substance. In support of this argument, the defendant relies on his observations of the plaintiffs interaction with Perez Sr. as well as the recovery of cash from the plaintiff and drugs from Perez Sr.
Section 1983 claims for false arrest are “substantially thе same” as false arrest claims under New York law. Weyant v. Okst,
Probable cause to arrest “is a complete defense to an action for false arrest,” under section 1983 and New York law. Weyant,
The defendant argues that he had probable cause to arrest the plaintiff based on the following: (i) his alleged observation of the exchange of money and a small object between the plaintiff and Perez Sr.; (ii) Perez Sr.’s possession of crack cocaine; and (iii) the plaintiffs possession of $444 in cash. However, in his . deposition, the plaintiff denied that Officer Duran observed the plaintiff interact with his father at all, and the plaintiff denied that he exchanged anything with his fathеr during their interaction. At this stage of the proceedings, the Court must resolve all factual discrepancies in the plaintiffs favor. Accordingly, based on the plaintiffs version of the events, the only evidence that Officer Duran could have had was that the plaintiff had shaken his father’s hand and that his father was later found to possess crack cocaine.
The facts at this stage of the proceedings do not support a finding of probable cause to arrest. The defendant relies on Smith v. City of New York, No. 04 Civ. 3286,
The defendant claims that Hartzog v. Rabideau, No. 05 Civ. 0554,
Accordingly, there is insufficient evidence at this stage of the proceedings to establish that the defendant had probable cause to arrest the plaintiff, and the defendant’s motion for summary judgment on the claim of false arrest in violation of section 1983 is denied.
B.
The defendant moves for summary judgment on the plaintiffs claim for malicious prosecution in violation of 42 U.S.C. § 1983. The defendant argues that the record does not establish lack of probable cause, actual malice, or a deprivation of liberty that amounts to a violation of the plaintiffs Fourth Amendment rights, which are elements necessary to a claim for malicious prosecution.
To establish a claim for malicious prosecution under section 1983, a plaintiff must establish the elements of a malicious prosecution claim under New York state law, as well as a violation of the plaintiffs rights under the Fourth Amendment. Manganiello v. City of N.Y.,
It is undisputed that the plaintiff has satisfied the first two elements of his malicious prosecution claim. The parties agree that the defendant commenced a criminal proceeding against the plaintiff and that the criminal proceeding was terminated in the plaintiffs favor. As to the third element of the plaintiffs claim for malicious prosecution, there are issues of fact as to whether there was probable cause to arrest the plaintiff, and therefore, there are issues of fact as to whether there was probable cause to commence the criminal proceedings against the plaintiff. Accordingly, the issues are (i) whether the defendant acted with actual malice in initiating the prosecution of the plaintiff, and (ii) whеther the plaintiff suffered a sufficient post-arraignment deprivation of liberty to implicate his Fourth Amendment rights, i.
The defendant argues that the plaintiffs malicious prosecution claim fails because the evidence does not support the inference that the defendant acted with actual malice in initiating the prosecution of the plaintiff. Malice does not have to be actual spite or hatred, but means only “that the defendant must have commenced the criminal proceeding due to a wrong or improper motive, something other than a desire to see the ends of justice served.” Lowth v. Town of Cheektowaga,
The defendant argues that because he had probable cause to believe that the
ii.
The defendant also argues that the plaintiffs claim for malicious prosecution fails because the plaintiff did not suffer a sufficient restraint on his liberty to satisfy thе seizure element of a section 1983 malicious prosecution claim. The Second Circuit Court of Appeals has noted that the seizure element can be satisfied by “any post-arraignment deprivations of liberty (such as being bound-over for trial).” Singer v. Fulton Cnty. Sheriff,
In support of its argument that the plaintiff has not satisfied the seizure element of a malicious prosecution claim, the defendant relies on cases finding that “a singlе court appearance ... is insufficient to support a Section 1983 malicious prosecution claim.” See, e.g., Porat v. Lincoln Towers Cmty. Ass’n, No. 04 Civ. 3199,
It is not necessary to determine whether Murphy requires both travel restrictions and court appearances to satisfy the seizure element because it is uncontested that the plaintiff was compelled to appear in court in connection with the criminal proceedings underlying his felony prosecution, and the evidence supports an inference that travel restrictions were imposed when the plaintiff was released on his own recognizanсe. New York law provides that “[u]pon ordering that a principal be released on his own recognizance, the court must direct him to appear in the criminal action or proceeding involved whenever his attendance may be required and to render himself at all times amenable to the orders and processes of the court.” N.Y.Crim. Proc. Law § 510.40 (McKinney).
It is undisputed that after his arraignment the plaintiff was ordered released on his own recognizance. The plaintiff represents that travel restrictions necessarily accompany release on one’s own recognizance pursuant to New York Criminal Procеdure Law § 510.40. Accordingly, it appears that at this stage of the proceedings the plaintiff’s release on his own recognizance necessarily required the plaintiff to comply with travel restrictions. See Rohman,
The defendant also argues that the plaintiff was only required to appear in court on a single occasion — when the charge against him was dismissed on May 18, 2011 — and that this single court appearance is an insufficient restraint on the defendant’s liberty to satisfy the elements of a malicious prоsecution claim. However, the plaintiff was also required to appear in court on March 16, 2011. The defendant argues that this Court should not rely on the appearance the plaintiff made on March 16, 2011 because he was required to appear in court that day not only on the charge of selling a controlled substance to his father, but on other charges as well. However, as the defendant admitted at argument on this motion, there is no case that supports the proposition that simply because the plaintiff was also required to appear in court on an unrelated matter the appearance that was required for the felony charge relevant to this case is not a seizure within the meaning of the Fourth Amendment. (See Tr. of Oral Arg. at 17.) If the plaintiff had failed to appear on March 16, 2011, he would have violated the court’s order to appear in connection with the felony charge of selling narcotics to his father.
The defendant also relies on Burg v. Gosselin,
The defendant also relies on Faruki v. City of N.Y., No. 10 Civ. 9614, 2012 WL
In this case, the plaintiff had been arraigned on a felony complaint and was required to appear in court on two subsequent occasions. The plaintiff was also required to comply with travel restrictions incident to his release on his own recognizance. The defendant points to no comparable case where similar conditions were insufficient restraints on a person’s liberty for purposes of the Fourth Amendment.
Accordingly, the defendant’s motion for summary judgment on the malicious proseсution claim is denied.
C.
The defendant has moved for summary judgment on the plaintiffs claim for denial of the right to a fair trial. Initially, the defendant argues that the plaintiff cannot simultaneously maintain a claim for a denial of the right to a fair trial and a claim for malicious prosecution because the claims are duplicative. However, the Court of Appeals has permitted those claims to be asserted simultaneously. See Ricciuti v. N.Y.C. Transit Auth.,
The defendant also argues that the plaintiff has failed to satisfy the requirements for his claim of denial of the right to a fair trial. A person suffers the denial of the right to a fair trial if: “(1) [an] investigating official (2) fabricated] evidеnce (3) that is likely to influence a jury’s decision, (4) forward[ed] that information to prosecutors, and (5) the plaintiff suffered] a deprivation of liberty as a result.” Jovanovic v. City of N.Y.,
There are genuine issues of material fact as to whether the defendant, who is an investigаting officer, provided to the prosecution false information that served as the basis for the plaintiffs prosecution. These issues cannot be resolved on a motion for summary judgment. See, e.g., Brandon,
The defendant also argues that the plaintiff did not suffer a sufficient deprivation of liberty to maintain his claim for a denial of the right to a fair trial. The defendant offers the same arguments he made in connection with the malicious prosecution claim and the arguments fail for the same reasons discussed above.
Therefore, the defendant’s mоtion for summary judgment on the plaintiffs claim for a denial to the right to a fair trial is denied.
IV.
The defendant argues that he is entitled to qualified immunity. Qualified immunity shields government officials from liability for civil damages “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald,
There is no question that the rights to be free from false arrest and malicious prosecution were clearly established at the time of the incident. Lennon v. Miller,
If a right is clearly established, an officer will still be entitled to qualified immunity if the officer’s “actions were not objectively unreasonable at the time they were taken.” Lee v. Sandberg, 136 F.3d
At this stage of the proceedings the Court is required to draw all reasonable inferences in favor of the plaintiff. In the light most favorable to the plaintiff, the evidence suggests that the defendant and other officers observed only a handshake and high-five between the plaintiff and his father and that the plaintiffs father was later found to possess crack cocaine. The defendant’s qualified immunity arguments rely on the proposition that the defendant witnessed at least an exchange of some object for money, but that proposition is disputed. Based on the testimony of the plaintiff and his father, it would have been impossible fоr the defendant to have observed what he swore he did because it never happened. The defendant essentially asks the Court to accept his testimony about what he saw, which cannot be done on a motion for summary judgment.
It is objectively unreasonable for an officer to believe that there was probable cause to arrest an alleged drug seller on the basis of a handshake and later recovery of drugs from an alleged drug buyer. The defendant has offered no case that suggests that similar circumstances would provide probable cause to arrest. This is not a case where the defendant claims hе had particularized reasonable suspicion to stop a suspect to inquire about the suspicious circumstances. See Curry v. City of Syracuse,
In this case, accepting the plaintiffs testimony, the defendant arrested the plaintiff based solely on a suspicious handshake with his father who was subsequently found to have drugs. Although a question of fact may change the calculation with regard to whether the defendant had arguable probable cause to arrest, at this stage of the proceedings, accepting the plаintiffs version of events, the Court cannot conclude that the defendant had arguable probable cause to arrest such that he would be entitled to qualified immunity.
Accordingly, the defendant’s motion for summary judgment on the basis of qualified immunity is denied.
CONCLUSION
The Court has considered all of the arguments raised by the parties. To the extent not specifically addressed, the arguments are either moot or without merit. The defendant’s Motion for Summary Judgment is denied. The Clerk is directed to close Docket No. 26.
SO ORDERED.
Notes
. In Jovanovic v. City of N.Y.,