Opinion
06 Civ. 481 (KNF).
April 1, 2008
MEMORANDUM AND ORDER
INTRODUCTION
In this civil rights, action brought pursuant to 42 U.S.C. § 1983, the plaintiff, Bruno Blazina ("Blazina"), contends the defendants violated rights secured to him by the Fourth and Fourteenth Amendments to the Constitution when defendant Police Officer Michael Kostelnik ("Kostelnik") caused him to be arrested wrongfully and prosecuted maliciously.
The plaintiff's complaint also states the action is brought pursuant to 42 U.S.C. § 1985, because the defendants conspired, allegedly, to violate Blazina's civil rights. However, Blazina has withdrawn the conspiracy claim he made against the defendants.
Before the Court is a motion by Kostelnik and defendant Port Authority of New York and New Jersey ("PANYNJ"), for partial summary judgment, made pursuant to Fed.R.Civ.P. 56. Blazina opposes the motion, which is addressed below.
The remaining defendants, identified solely as "P.O.s JOHN DOE (1-5)," appeared in the action via the answer filed by counsel to the movants. However, as noted above, the motion has been made only by Kostelnik and PANYNJ.
BACKGROUND
On January 21, 2003, while traveling to work, Blazina entered a men's restroom at a bus terminal located in midtown Manhattan. The bus terminal is operated by PANYNJ, a bi-state agency that was created, with congressional consent, through a 1921 compact between the states of New York and New Jersey. Two months earlier, in November 2002, following a diagnosis of prostate cancer, Blazina had undergone a surgical procedure which rendered him incontinent. Due to his medical condition, Blazina wore a special absorbent undergarment, which did not have a fly, necessitating that it be pulled down partially when Blazina urinated.
When he entered the restroom, Blazina recalls that he had to wait in line in order to use a urinal. Kostelnik was in the restroom when Blazina entered. Blazina proceeded to a urinal next to one urinal at which Kostelnik stood. The urinals at which the plaintiff and Kostelnik stood were separated by a barrier, which provided each person a degree of privacy. Kostelnik, who was in plain clothes and working with a partner who was not in the bathroom, maintains that Blazina masturbated while standing at his urinal. More specifically, Kostelnik contends he observed Blazina "turn 45 degrees away from the urinal [, step] close to [him]" and masturbate, that is, "manipulate his naked, erect, penis in an up and down motion." Furthermore, according to Kostelnick, as Blazina did this, he cast his eyes on Kostelnik's face, downward at his penis and back on the officer's face so that Blazina might see Kostelnik's facial expression as he masturbated. After Blazina was done at the urinal, he exited the restroom. Kostelnik, who had already exited, signaled to his partner, Police Officer Jerardo Fredella ("Fredella"), who interdicted Blazina and effected his arrest for violating New York Penal Law (" PL") Section 245.00, which proscribes public lewdness.
PL § 245.00 provides that "[a] person is guilty of public lewdness when he intentionally exposes the private or intimate parts of his body in a lewd manner or commits any other lewd act (a) in a public place, or (b) in private premises under circumstances in which he may readily be observed from either a public place or from other private premises, and with intent that he be so observed."
Blazina recalls that upon being stopped by Fredella and learning of the reason for the stop, he denied immediately the accusation that he had masturbated in the restroom and explained that it was impossible for him to have done so, since he was unable to achieve an erection. Blazina also recalls that, after he was escorted to a PANYNJ police facility located in the bus terminal, he continued to proclaim his innocence, urged the officers to contact his physician, and attempted to show them his surgical scar, all to no avail. Blazina maintains he was: (a) ridiculed by the police officers, who, among other things, offered to contact his employer to advise him of the nature of Blazina's arrest; (b) denied an opportunity to place a telephone call to his family or his employer; and (c) denied access to medication, which the officers seized from him.
Blazina remained in custody until the following day, when he was arraigned on the criminal complaint Kostelnik lodged against him in the New York City Criminal Court, Midtown Community Court facility. In that complaint, which Kostelnik executed on the understanding that making a false statement in that document is a crime, Kostelnik declared that he observed Blazina "manipulate his naked and erect penis in an up and down and back and forth motion," in the bus terminal restroom, and that other restroom patrons were present. However, during his deposition, Kostelnik testified that Blazina and he were alone in the restroom when he observed Blazina masturbating. Kostelnik testified further and with less exactitude about his observations of plaintiff's genitalia. He stated that Blazina "was stretching [his penis] and elongating it so it appeared to be erect."
After the arraignment proceeding, Blazina was released on his own recognizance by the presiding judicial officer. Thereafter, Blazina made several court appearances, until June 27, 2003, when, acting on an unopposed motion by Blazina, that the court dismiss the charge made against him "in the interest and furtherance of justice, pursuant to [New York Criminal Procedure Law] Sections 170.30 and 170.40 and People v. Clayton, 41 A.D.2d 204, [ 342 N.Y.S.2d 106] (2d Dept. 1973)," the court dismissed the criminal action. In his moving papers, Blazina emphasized: (a) his advanced age; (b) his medical condition and the medical condition of his daughter, who had battled cancer; (c) his lack of a prior criminal record; and (d) the harassment and taunting he allegedly experienced while in police custody.
In Clayton, the New York State Supreme Court, Appellate Division, Second Department, affirmed a trial court's right to exercise its discretion and dismiss an accusatory instrument, in the interest of justice, after affording the prosecution and the defense a full opportunity to provide the court with such evidence and argument as the parties deem relevant to the court's determination.
In rendering its decision orally from the bench, the court expressed its displeasure with the police-officer conduct described by the plaintiff in his moving papers. The court characterized that conduct as "reprehensi[ble]." The court also stated, based upon its review of a letter submitted by the plaintiff's physician, in support of the motion to dismiss the criminal complaint, that "there is a great deal of question as to whether the offense was ever committed." The physician had explained, in his letter, inter alia, that, "it is also extremely unlikely that Mr. Blazina was masturbating due to the fact there is almost a 90% probability he had no erectile function" at the time of his arrest.
In the case at bar, which followed the dismissal of the criminal action, Blazina maintains he was the victim of a malicious prosecution, in that Kostelnik, while acting under color of state law, accused him falsely; arrested him, without probable cause; and did so "intentionally, maliciously and with a deliberate indifference and/or with a reckless disregard for the natural and probable consequences of his act." Blazina also alleges PANYNJ, acting through its public safety department, "had in effect de facto polices, practices, customs, and usages that were a direct and proximate cause of the unconstitutional conduct" he attributes to Kostelnik. See Monell v. Department of Social Services. 436 U.S. 658, 690-91, 98 S. Ct. 2018, 2035-36 (1978). Furthermore, according to the plaintiff, PANYNJ failed to screen, hire, train and supervise Kostelnik effectively, thus, allowing him to abuse his police powers and disregard the plaintiff's constitutional rights.
In support of his allegations, Blazina relies upon: (i) Kostelnik's deposition testimony, about the infrequency with which he received work performance evaluations; and (ii) a finding of liability made, in an unrelated civil action, to which neither Blazina nor Kostelnik was a party, decided against PANYNJ approximately three years after Blazina was arrested. In that action, which arose out of public lewdness arrests effected in or about a men's restroom in the World Trade Center concourse, in early 2000, it was determined that PANYNJ employed a policy and practice of making arrests, on public lewdness charges, without probable cause. Kostelnik testified at his deposition, that he was aware of that litigation, and believed it had been resolved in favor of the defendants. Kostelnik's superior officer, Lieutenant John Murphy, who also testified at a deposition, stated that he was unaware of the litigation.
The movants contend no genuine issue as to any material fact exists with respect to Blazina's: (i) malicious prosecution claim; (ii) Monell claim; and (iii) punitive damages claims and, further, based on the record before the Court, they are entitled to summary judgment on these claims.
DISCUSSION
Summary Judgment Standard
Fed.R.Civ.P. 56(c) provides that summary judgment "should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." "A fact is `material' for these purposes if it `might affect the outcome of the suit under the governing law.' An issue of fact is `genuine' if `the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208, 212 (2d Cir. 2001) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510). When considering a motion for summary judgment, a court must view the evidence in the light most favorable to the party opposing the summary judgment and must draw all reasonable inferences in the opposing party's favor. See Salamon v. Our Lady of Victory Hosp., 514 F.3d 217, 226 (2d Cir. 2008).
The moving party bears the burden of showing that no genuine issue of material fact exists. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553 (1986). Once the moving party has satisfied its burden, the non-moving party must "set out specific facts showing a genuine issue for trial." Fed.R.Civ.P. 56(e); see Anderson, 477 U.S. at 250, 106 S. Ct. at 2511.
In order to defeat a motion for summary judgment, the non-moving party cannot merely rely upon allegations contained in the pleadings that raise no more than "some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 1356 (1986). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment." Anderson, 477 U.S. at 247-48, 106 S. Ct. at 2510 (emphasis in the original). "The moving party is `entitled to a judgment as a matter of law' [when] the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof."Celotex Corp., 477 U.S. at 323, 106 S. Ct. at 2552.
Section 1983
"To state a claim under § 1983, a plaintiff must allege that (1) the challenged conduct was attributable at least in part to a person who was acting under color of state law; and (2) the conduct deprived the plaintiff of a right guaranteed under the Constitution of the United States." Snider v. Dylag, 188 F.3d 51, 53 (2d Cir. 1999) (citing Dwares v. City of New York, 985 F.2d 94, 98 [2d Cir. 1993]); Giordano v. City of New York, 274 F.3d 740, 750 (2d Cir. 2001). A municipality is deemed a person for the purpose of a § 1983 claim. PANYNJ is regarded as a municipal corporate instrumentality of the states of New York and New Jersey. See Feeney v. Port Authority Trans-Hudson Corp., 873 F.2d 628, 629-630 (2d Cir. 1989). Therefore, a § 1983 claim may be made against it.
A state official sued in his official capacity is not a person within the meaning of § 1983 and, consequently, is not subject to liability for depriving a person of constitutional rights. See Will v. Michigan Dep't of State Police, 491 U.S. 58, 109 S. Ct. 2304 (1989). In the instant case, Blazina has sued Kostelnik in both his official and individual capacities. Therefore, a § 1983 claim may be made against him for acts performed in his individual capacity. Inasmuch as it is uncontested that at all times relevant to this action, Kostelnik was acting under color of state law, through and for PANYNJ, the issue that remains to be determined with respect to him, in relation to the instant motion, is whether the initiation and pursuit of the criminal action against Blazina amounts to a deprivation of Blazina's constitutional rights.
Malicious Prosecution
No federal analytical framework for adjudicating a § 1983 malicious prosecution claim exists. Therefore, in accordance with 42 U.S.C. § 1988, the Court must apply the governing state law.See Conway v. Village of Mount Kisco, 750 F.2d 205, 214 (2d Cir. 1984). The elements of a malicious prosecution claim under New York law are that: (1) the defendant initiated a prosecution against the plaintiff, (2) the prosecution was terminated in the plaintiff's favor, (3) the defendant lacked probable cause to believe the proceeding could succeed, and (4) the defendant acted with malice. See Colon v. City of New York, 60 N.Y.2d 78, 82, 468 N.Y.S.2d 453, 455 (1983). Each of these elements must be established in order for a plaintiff to prevail on a malicious prosecution claim. See Rothstein v. Carriere, 373 F.3d 275, 282 (2d Cir. 2004). In addition, "to sustain a § 1983 malicious prosecution claim, [in a federal court,] there must be a seizure or other `perversion of proper legal procedures' implicating the claimant's personal liberty and privacy interests under the Fourth Amendment."Washington v. County of Rockland, 373 F.3d 310, 316 (2d Cir. 2004) (quoting Singer v. Fulton Cty. Sheriff, 63 F.3d 110, 117 [2d Cir. 1995]). Except for this additional element, the analysis of a malicious prosecution claim under federal and New York law is the same. See Boyd v. City of New York, 336 F.3d 72, 75 (2d Cir. 2003).
"A charge and an arrest do not amount to a prosecution. [An] action [for malicious prosecution] lies only when a legal prosecution, a judicial proceeding, has been maliciously and without probable cause instituted against the plaintiff, and has been terminated in the plaintiff's favor." Raschid v. News Syndicate Co., 239 A.D. 289, 291-92, 267 N.Y.S. 221, 225 (App. Div. 1st Dept 1933). Therefore, a § 1983 malicious prosecution claim implicates some "post-arraignment deprivation of liberty that rises to the level of a constitutional violation." Singer, 63 F.3d at 117. Blazina was released on his own recognizance at his first appearance before the New York City Criminal Court. Under New York law, when a criminal defendant is 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." New York Criminal Procedure Law § 510.40(2). As noted above, Blazina was required to return to the New York City Criminal Court, for scheduled proceedings, on several occasions, after he was arraigned on the criminal complaint made against him by Kostelnik. The post-arraignment restraint on Blazina's liberty, occasioned by the court's directive to Blazina that he appear in court for proceedings on multiple dates, implicates the Fourth Amendment. See Rohman v New York City Transit Authority, 215 F.3d 208, 216 (2d Cir. 2000);Genia v. New York State Troopers, No. 03-CV-0870, 2007 WL 869594, at *15 (E.D.N.Y. Mar. 20, 2007).
Initiation or Continuation of Criminal Proceedings
It is uncontested that Kostelnik commenced a criminal proceeding against Blazina by lodging a complaint against him with the New York City Criminal Court and having him arraigned on that accusatory instrument. See Cook v. Sheldon, 41 F.3d 73, 79 (2d Cir. 1994). Therefore, the first element of the plaintiff's malicious prosecution claim has been satisfied. Favorable Termination
Whether a dismissal in the interest of justice, such as the dismissal Blazina obtained from the New York City Criminal Court, constitutes a favorable termination is a question which requires a case-by-case analysis. See Cantalino v. Danner, 96 N.Y.2d 391, 396, 729 N.Y.S.2d 405, 409 (2001). However, in a circumstance where a criminal action is "dismissed out of mercy, since mercy presupposes the guilt of the accused," a favorable termination has not occurred for the purposes of a malicious prosecution claim. See Cantalino, 96 N.Y.2d at 395, 729 N.Y.S.2d at 408. Furthermore, a dismissal in the interest of justice that "leaves the question of guilt or innocence unanswered" generally may not be considered a favorable termination. Hankins v. Great Atlantic and Pacific Tea Co., 208 A.D.2d 111, 114, 622 N.Y.S.2d 678, 679 (App.Div. 1st Dep't 1995). When the basis for dismissing a criminal charge is unclear, "New York courts consider whether the proceeding was terminated in plaintiff's favor to be a question of fact that prevents summary judgment." Rounseville v. Zahl, 13 F.3d 625, 629 (2d Cir. 1994).
The judicial officer who granted Blazina's motion to dismiss the criminal complaint, in the interest of justice, had before her information about Blazina's background, family and medical condition. She was also advised that Blazina had no prior contact with the criminal justice system. It is reasonable to infer that this information was provided to the court so that it might act mercifully when deciding Blazina's Clayton motion. In addition, the Court is not unmindful of the fact that in rendering its decision on the motion, the motion court expressed great skepticism about whether the charged offense was committed. The motion court's skepticism was based, in large measure, upon the letter submitted to it by Blazina's physician, which, among other things, indicated a 90% probability that Blazina had no erectile function at the time of his arrest. Expressing great skepticism about the occurrence of a criminal offense is not the same as expressing clearly and "in no uncertain terms that [the court] [is] dismissing the case because the criminal charges against plaintiff [are] unfounded." See Cantalino, 96 N.Y.2d at 396, 729 N.Y.S.2d at 409.
Where a dismissal of a criminal action may have been made out of mercy, which one could argue occurred here, a favorable termination has not occurred. In any event, on the record before it, the Court finds that the question, whether the dismissal of the criminal complaint against Blazina, in the interest of justice, can be fairly characterized as a favorable termination presents a disputed material issue of fact, the resolution of which must come from a jury. See Rounseville, supra. Consequently, summary judgment for the movants on the plaintiff's malicious prosecution claim is not appropriate. Given that a disputed issue of fact prevents the Court from granting the movants summary judgment on this claim, no utility exists in the Court's analyzing the remaining elements of the plaintiff's malicious prosecution claim because the claim must be adjudicated by a jury.
Monell Claim
PANYNJ may be sued under § 1983 for implementing or executing a policy, custom or regulation that deprives a person of constitutional rights. See Monell, 436 U.S. at 690-91, 98 S. Ct. at 2035-2036. A plaintiff making a Monell claim against a municipality must establish three elements: "(1) an official policy or custom that (2) causes the plaintiff to be subjected to (3) a denial of a constitutional right." Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983). It is not necessary for the plaintiff to prove that the municipality operated under any particular "explicitly stated rule or regulation." Vann v. City of New York, 72 F.3d 1040, 1049 (2d Cir. 1995). It is enough if the plaintiff demonstrates that the municipality was notified about possible constitutional violations committed by its employee(s) and made no change in its manner of operating, thus exhibiting deliberate indifference. See Vann, 72 F.3d at 1049.
Blazina alleges PANYNJ failed to train and/or supervise its police officers appropriately with respect to making arrests for public lewdness and thereby established a policy through which Kostelnik deprived him of his constitutional right to be free from an unreasonable seizure. A failure to train or supervise employees, in a circumstance where the need for different or additional training or supervision is so obvious and the inadequacy of either is so likely to result in the violation of constitutional rights, "may fairly be said to represent a policy for which [a municipality] is responsible, and for which the [municipality] may be held liable if it actually causes injury."Jeffes v. Barnes, 208 F.3d 49, 62 (2d Cir. 2000); Sarus v. Rotundo, 831 F.2d 397, 401 (2d Cir. 1987).
When a claim of inadequate training is made, showing deliberate indifference exists on the part of a municipality involves "identify[ing] a specific deficiency in the training program and establish[ing] that that deficiency is `closely related to the ultimate injury,' such that it `actually caused' the constitutional deprivation." Amnesty America v. Town of West Hartford, 361 F.3d 113, 129 (2d. Cir. 2004) (quoting City of Canton [v. Harris], 489 U.S. 378, 391, 109 S. Ct. 1197, 1206). Blazina has alleged that PANYNJ failed to train its police officers appropriately, but he has not presented any evidence identifying a specific deficiency in the training program PANYNJ provides to its police officers concerning public lewdness arrests. Furthermore, Blazina has not proffered evidence demonstrating that an obvious need exists for particular training of PANYNJ police officers respecting public lewdness arrests. In addition, Blazina has failed to present any evidence to the Court of any specific inadequacies in the training PANYNJ provides its officers that are likely to result in civil rights violations.
When a plaintiff alleges lax supervision, as a basis for aMonell claim, the plaintiff must show that "the need for more or better supervision to protect against constitutional violations was obvious," and that the policymakers were knowingly and deliberately indifferent to that situation. See Vann, 72 F.3d at 1049. According to Blazina, a "complete absence of regular performance reviews by [PANYNJ police] supervisors of their line officers [established] a custom or policy of the line officer being subject to no oversight." However, Blazina has not presented any evidence from which a reasonable factfinder could conclude that a need for more or different police supervision at the bus terminal where he was arrested was glaringly obvious to PANYNJ policymakers. For example, Blazina has not proffered any evidence that PANYNJ received complaints repeatedly, in or before 2003, about public lewdness arrests at the bus terminal, or otherwise received actual or constructive notice about the conduct of its police personnel at the bus terminal which would have warranted PANYNJ in altering its bus terminal police-officer supervision policies and procedures.
Blazina's reliance on the outcome of the Martinez litigation, noted above, to support his contention that PANYNJ knew of training and supervisory deficiencies pertinent to its police officers and was deliberately indifferent thereto, is misplaced. This is so because the Martinez litigation was not resolved until approximately three years after Blazina's arrest. Moreover, the police personnel involved in the Martinez litigation were not involved in the instant case and the conduct which gave rise to the Martinez litigation occurred at a different PANYNJ facility from the one that is the situs of the events relevant to the case at bar. Conclusory allegations, such as those made by Blazina, that a municipality has established and employs a policy or custom through which individuals are deprived of constitutional rights, without supplying evidentiary support for the allegations, does not establish a Monell claim. See McAllister v. New York City Police Dep't, 49 F. Supp. 2d 688, 705 (S.D.N.Y. 1999). Since the evidence in the record before the Court does not support the allegations Blazina has made against PANYNJ, concerning the existence of a policy of inadequate police training and supervision resulting in the violation of constitutional rights, summary judgment, for the movants, on Blazina's Monell claim, is warranted.
Punitive Damages
A municipality is immune from a claim of punitive damages. Inasmuch as PANYNJ is regarded as a municipal corporate instrumentality of New York and New Jersey, see Feemy, supra, Blazina would be unable, if successful at a trial, to recover punitive damages from PANYNJ. However, the immunity from punitive damages a municipality enjoys does not extend to a state actor who is sued in his individual capacity. See New Windsor Volunteer Ambulance Corps. Inc. v. Meyers, 442 F.3d 101, 122 (2d Cir. 2006). Therefore, an award of punitive damages could be obtained against Kostelnik, who is being sued, inter alia, in his individual capacity. In the circumstance of the case at bar, where genuine issues of material fact are in dispute, necessitating that a jury trial be convened to resolve them and to dispose of this action, the Court finds that it is premature and inappropriate to reach the issue of punitive damages, as it relates to Kostelnik, at this juncture in the litigation. That matter is best left for the jurors to decide after they have resolved all factual disputes presented to them at the trial.
CONCLUSION
For the reasons set forth above, the movants' application for partial summary judgment, (Docket Entry No. 29), is granted with respect to the Monell claim and the punitive damages claim asserted against PANYNJ. In all other respects, the application is denied.
SO ORDERED: