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stating that "the Court applies the same standard used to evaluate qualified immunity in the false arrest context" as in the malicious prosecution context
Summary of this case from Boyler v. City of LackawannaOpinion
98 Civ. 2268 (BSJ).
September 24, 2001
OPINION ORDER
Plaintiff Darrel Hardin ("Hardin") brings this action pursuant to 42 U.S.C. § 1981, 1983 and 1985(3) for violation of his First, Fourth, Fifth and Fourteenth Amendment rights under the United States Constitution against, among others, Thomas Logan ("Logan") and Michael Frasco ("Frasco"), individually and as Police Officers of the New York City Police Department, the New York City Police Department, and against New York City. Plaintiff's claims arise from his March 30, 1997 arrest for first degree robbery and first degree assault. Defendants Logan, Frasco, City of New York, and New York City Police Department (collectively "defendants") now move for summary judgment, pursuant to Federal Rule of Civil Procedure 56, on some but not all of plaintiff's claims. For the reasons set forth below, defendants' motion is granted as to those claims.
BACKGROUND
Because they are essential to the determination of the instant motion, the Court first sets forth the material facts providing the basis for defendant officers' probable cause to arrest the plaintiff. These facts, relating to the manner in which the officers conducted their pre-arrest investigation, are not disputed by the plaintiff.
On March 30, 1997, New York City Police Officers Thomas Logan and Michael Frasco responded to several radio calls informing them of a dispute at 461 Seventh Ave. in Manhattan, the location of defendant Meridien Foods. (See Marks Decl., Ex. B at 11-12.) Logan and Frasco were the first officers to arrive on the scene. (See id. at 13.) Officer Logan saw Felix Mendez, who Logan later learned was a store employee, standing in the doorway of the Meridien Foods store with a towel on his head and blood coming out of it. (See id. at 13-14.) At this time, plaintiff Darrel Hardin, an African-American male, was standing outside the store to the left of the entrance. Hardin was also bleeding from a facial laceration, but Logan did not notice the plaintiff until Logan had already begun speaking to Mendez. (See id. at 21-23.) Mendez removed the towel to uncover what Logan characterized as a "huge" laceration on Mendez's face. (See id. at 13.) Mendez spoke very limited English, so he had another store employee translate from Spanish while he told Officer Logan that plaintiff had hit him on the head with a bottle. (See id. at 14-17.)
Officer Logan then spoke with a second store employee, Islam, who said that he saw the plaintiff and Mendez get into "an argument or tussle" and saw the plaintiff hit Mendez with a bottle. (See id. at 13, 17-18.) Islam did not know what caused the argument, but gave Logan the store's video surveillance tape, which Logan vouchered but did not watch. (See id. at 13, 25-26.) Officer Logan also testified at his deposition that he "believe[d] . . . but [was] not positive" that Islam also told him that he called 911. (See id. at 18.)
Officer Jeff Stella subsequently arrived at the scene. (See id. at 18.) He was able to speak directly to Mendez in Spanish and then convey the conversation to Officer Logan. (See id. at 18-20.) Mendez informed Officer Stella that he confronted plaintiff after he tried to steal a bottle of soda and they got into a "tussle." (See id.) Then, plaintiff hit Mendez in the face with a beer bottle. (See id.) After Officer Stella conveyed this information to Officer Logan, Officer Logan arrested and handcuffed plaintiff, who had a cut on his forehead. (See id. at 21.) Prior to arresting plaintiff for robbery and assault, neither Officer Logan nor Officer Frasco spoke with plaintiff or with Sylvia Black, plaintiff's girlfriend who was also present. (See id. at 22-23, 72-74.)
At the scene, an emergency medical technician evaluated plaintiff's head injury and determined that he might need stitches. (See id. at 29.) Officer Frasco accompanied plaintiff in an ambulance to the hospital where he was treated. (See id. at 29-30.)
Hardin was charged with Robbery in the First Degree and Assault in the First Degree. Plaintiff was arraigned and then jailed for ten days because he could not make bail. (See Seifert Affirm., Ex. A at 90-91.) The Grand Jury ultimately did not indict Hardin and the charges were dismissed.
While Hardin cannot dispute any of Officer Logan's testimony concerning the facts that formed the basis for probable cause for plaintiff's arrest, Hardin did testify at his deposition about the events leading up to his arrest. For reasons stated below, plaintiff's account does not create any genuine issues of material fact. However, the pre-arrest facts as alleged by plaintiff are briefly recounted here. Hardin and his girlfriend, Sylvia Black, who is also African-American, were walking down Seventh Avenue and stopped in front of Meridien Foods. (See Seifert Affirm., Ex. A at 30.) Black entered the store to purchase a soda, while Hardin waited outside on the sidewalk in front of the store. (See id.) Hardin observed that Black was being followed and verbally harassed by Meridien employee Mendez. (See id. at 32-35.) Hardin was standing in the open doorway of the store and said to Black, "put the soda on the counter and let's go." (See id. at 35-36.) Hardin thought that Black was followed merely because she was an African-American and told the employee behind the cash register that "everybody that comes into these stores are not thieves, okay, it's not right to come into the store and be followed." (See id. at 38-39.) Mendez walked towards Hardin and Black mumbling in Spanish and smelling of alcohol. (See id. at 35, 39, 117.) The employee behind the cash register instructed Mendez to move away from plaintiff. (See id. at 39, 126.) Then, Mendez kicked Hardin in the leg and swung at him with two beer bottles. (See id. at 40-41.) Hardin grabbed Mendez and the two fell, wrestling on the ground. (See id. at 40.) Shortly thereafter, another Meridien employee ("Doe #2") approached Hardin with a bat in his hand. (See id. at 41.) Mendez took a beer bottle and broke it over Hardin's head, causing severe cuts and bleeding. (See id. at 48-49.) Plaintiff eventually broke free of the employees and ran out of the store. (See id. at 52.) Plaintiff called 911 and reported that he had just been assaulted in Meridien Foods and that he needed the police and an ambulance. (See id. at 53.) Then, Hardin went back to the store and waited outside for the police to arrive. (See id. at 54; Seifert Affirm., Ex. C at 8.)
Officers Logan and Frasco arrived at the scene and Frasco approached the plaintiff. (See Seifert Affirm., Ex. A at 62.) Frasco told Hardin to stand against the wall. (See id. at 66.) Hardin attempted to tell Frasco — and, later, Logan — that he wanted to press charges against Meridien's employees, that Mendez was drunk, and that the police should arrest them. (See id. at 65-66, 83.) However, Officer Frasco told plaintiff to "be quiet" and "stay up against the wall." (See id. at 66.) After being placed in the squad car, plaintiff was also told that he had "no rights." (See id. at 84.) In short — and this is undisputed — none of the police officers listened to plaintiff give an account of what happened. (See id. at 72, 104-105; Seifert Affirm., Ex. C at 9; Seifert Affirm., Ex. B at 21-23, 26-27; Seifert Affirm., Ex. D at 25.)
I. Summary Judgment Standard
Summary judgment may not be granted unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Gallo v. Prudential Residential Servs., Ltd. Partnership, 22 F.3d 1219, 1223 (2d Cir. 1994). In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)). Summary judgment is improper if there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994). Nonetheless, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
II. False Arrest and Imprisonment
Section 1983 claims for false arrest and imprisonment, resting on the Fourth Amendment right of an individual to be free from unreasonable seizures, including arrest without probable cause, are substantially similar to those claims under New York law. See Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996); Singer v. Fulton Count Sheriff, 63 F.3d 110, 118 (2d Cir. 1995), cert. denied, 517 U.S. 1189 (1996). Under New York law, a plaintiff claiming false arrest and imprisonment must show, inter alia, that the defendant intentionally confined him without his consent and without justification (i.e., without probable cause). See Weyant, 101 F.3d at 852 (citing Broughton v. State, 37 N.Y.2d 451, 456, cert. denied, 423 U.S. 929 (1975)). It is undisputed that plaintiff was confined without his consent. The issue before the Court, therefore, is whether there was probable cause.
In general, there exists probable cause for an arrest if the officer has knowledge or reasonably trustworthy information of facts and circumstances that would warrant a person of reasonable caution to believe that the individual who is arrested has committed or is committing a crime. See, e.g., Golino v. City of New Haven, 950 F.2d 864, 870 (2d Cir. 1991) (citing Dunaway v. New York, 442 U.S. 200, 208 n. 9 (1979)). A finding of probable cause should be made upon the "totality of the circumstances." Illinois v. Gates, 462 U.S. 213, 230 (1983). If there existed probable cause at the time of the arrest, the arrest is "privileged" and the individual has no constitutional or statutory claim against the officer who made the arrest. Probable cause therefore "is a complete defense to an action for false arrest." Bernard v. United States, 25 F.3d 98, 102 (2d Cir. 1994); Weyant, 101 F.3d at 852 (existence of probable cause to arrest constitutes justification and is a "complete defense" to actions for false arrest and false imprisonment). The question of whether or not probable cause existed may be determined as a matter of law "if there is no dispute as to the pertinent events and the knowledge of the officers." Weyant, 101 F.3d at 852.
Officer Logan arrested the plaintiff for assault in the first degree and robbery in the first degree. Under New York Penal Law § 120.10 (2), a person is guilty of assault in the first degree when "[w]ith intent to disfigure another person seriously and permanently, or to destroy, amputate or disable permanently a member or organ of his body, he causes such injury to such person or to a third person." Under Penal Law § 165.15(3), "[a] person is guilty of robbery in the first degree when he forcibly steals property and when, in the course of the commission of a crime or of immediate flight therefrom, he or another participant in the crime . . . [u]ses or threatens the immediate use of a dangerous instrument."
In the instant action, Officer Logan had probable cause to arrest plaintiff for first degree assault and first degree robbery. Logan conducted an investigation and made his decision to arrest based on (1) the statement of Felix Mendez, as relayed to Logan first by another civilian and then by Officer Stella, that plaintiff had attempted to steal a bottle of soda and that when confronted by Mendez, plaintiff fought with Mendez and hit Mendez in the face with a beer bottle; (2) the statement of a store employee, Islam, who told Logan that plaintiff and Mendez had gotten into a fight and that plaintiff hit Mendez with a beer bottle; and (3) Officer Logan's own observation of Mendez's facial laceration. These two statements, combined with Logan's personal observation, provided probable cause for the arrest of plaintiff. See, e.g., Singer, 63 F.3d at 118-19; Ricciuti v. New York City Transit Authority, 124 F.3d 123, 128 (2d Cir. 1997) (qualified immunity).
Plaintiff is unable to dispute the facts forming the basis for probable cause and cannot offer any evidence that at the time Logan took those two statements, he should have had reason to doubt the veracity of Mendez or Islam. Instead, plaintiff argues that Officer Logan lacked probable cause because Logan did not question plaintiff. This argument is unavailing. Officers Logan and Frasco were not required to investigate all potentially exculpatory claims before making an arrest. See Krause v. Bennet, 887 F.2d 362, 371 (2d Cir. 1989) (citing United States v. Manley, 632 F.2d 978, 984 (2d Cir. 1980)). Moreover, even if Officers Logan and Frasco had taken exculpatory statements from Hardin and Black, they still could have credited Mendez's account. That is, Mendez's version of events was plausible, and his credibility was buttressed by Islam's statement. Under the circumstances, probable cause existed to arrest plaintiff. Therefore, summary judgment is GRANTED in favor of defendants on this claim.
The grand jury's refusal to indict the plaintiff does not, as a matter of law, establish that the officers lacked probable cause to arrest him. See Phillips v. Corbin, 132 F.3d 867, 869 (2d Cir. 1998).
III. Malicious Prosecution
Plaintiff's second § 1983 claim alleges that he was a victim of malicious prosecution. To state a claim for malicious prosecution, plaintiff must establish: (1) the initiation or continuation of a criminal proceeding against plaintiff; (2) termination of that proceeding in plaintiff's favor; (3) lack of probable cause for commencing the proceeding; and (4) actual malice as a motivation of defendant's action.Russell v. Smith, 68 F.3d 33, 36 (2d Cir. 1995). Like false arrest, this common law tort states a claim under § 1983 only if it implicates the plaintiff's federal statutory or constitutional rights. The essence of plaintiff's malicious prosecution claim is that he was charged with first degree assault and first degree robbery without probable cause, in violation of his Fourth Amendment rights. See Lennon v. Miller, 66 F.3d 416, 425 (2d Cir. 1995).
This Court already has found that probable cause existed to arrest plaintiff. Plaintiff has offered no evidence that anything occurred between the time of the arrest and the commencement of the criminal proceeding that would vitiate this probable cause. See e.g., Carson v. Lewis, 35 F. Supp.2d 250, 262 (E.D.N.Y. 1999) ("A malicious prosecution claim will be defeated by a finding of probable cause to arrest, unless plaintiff can demonstrate mitigating facts to vitiate probable cause which were first uncovered after the arrest.") Moreover, there is no indication that defendants' actions were motivated by actual malice. Accordingly, summary judgment is GRANTED for defendants on this claim.
IV. Qualified Immunity A. Summary Judgment Standard and the Qualified Immunity Defense
The defense of qualified immunity acts to shield government agents from personal liability under § 1983 "insofar as their conduct [did] not violate clearly established statutory or constitutional rights of which a reasonable person would have known," Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982), or "insofar as it was objectively reasonable for them to believe that their [conduct] did not violate those rights." Golino, 950 F.2d at 870. In other words, the defense is available when "`a reasonable officer could have believed'" his conduct "`to be lawful, in light of clearly established law and the information [he] possessed.'"Marshall v. Sullivan, 105 F.3d 47, 53 (2d Cir. 1996) (quoting Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per curiam)).
Section 1983 permits, among other things, a person to sue any other "person" acting under color of state law for violating his or her constitutional rights. 42 U.S.C. § 1983. A person may be sued in his or her individual capacity, official capacity or both. See Kentucky v. Graham, supra, 473 U.S. 159, 165-66 (1985). In this case, plaintiff has sued Officers Logan and Frasco in both their individual and official capacities. By suing defendants in their individual capacities, plaintiff seeks to impose personal liability upon the officers. See id. at 165.
In Robison v. Via, the Court of Appeals for the Second Circuit held that a government defendant would be entitled to summary judgment on qualified immunity grounds when "`no reasonable jury, looking at the evidence in the light most favorable to, and drawing all inferences most favorable to, the plaintiffs, could conclude that it was objectively unreasonable for the defendant ' to believe that he was acting in a fashion that did not clearly violate an established federally protected right." 821 F.2d 913, 921 (2d Cir. 1987) (quoting Halperin v. Kissinger, 807 F.2d 180, 189 (D.C. Cir. 1986)); Lennon, 66 F.3d at 420. Thus, the defendant officers are not entitled to summary judgment on their qualified immunity claims if any reasonable trier of fact could find the defendants' judgment objectively unreasonable. Lennon, 66 F.3d at 420. However, "if the court determines that the only conclusion a rational jury could reach is that reasonable officers would disagree about the legality of the defendants' conduct under the circumstances, summary judgment for the officers is appropriate." Id. at 421. It is undisputed that freedom from false arrest, false imprisonment and malicious prosecution are clearly established rights. Accord Lowth v. Town of Cheektowaga, 82 F.3d 563, 569 (2d Cir. 1996). Summary judgment on Logan and Frasco's qualified immunity claims therefore turns on whether the actions by Officers Logan and Frasco were objectively reasonable under the circumstances.
B. False Arrest and Imprisonment
Under the doctrine of qualified immunity, if an officer reasonably believed that he had probable cause to make the arrest, or if officers of reasonable competence could disagree whether there had existed probable cause, the officer is immune from suit. See Lennon, 66 F.3d at 423. Upon either showing, the officer is entitled to qualified immunity, regardless of his underlying motive for the arrest. See Cook v. Sheldon, 41 F.3d 73, 78 (2d Cir. 1994); Magnotti v. Kuntz, 918 F.2d 364, 367-68 (2d Cir. 1990). Thus, the plaintiff will not recover for false arrest and imprisonment if there existed probable cause at the time of the arrest, or the officer's arrest was not unreasonable under the circumstances. See Cook, 41 F.3d at 77.
The Court has already found that there existed probable cause to arrest plaintiff. However, even if probable cause did not exist, this Court holds that it was reasonable for Officer Logan to believe he had probable cause to make the arrest. See Ricciuti, 124 F.3d at 128; Decker v. Campus, 981 F. Supp. 851, 858 (S.D.N.Y. 1997). Given Mendez's injuries and the identification of Hardin as the assailant by both Mendez and Islam, a competent police officer could believe it was objectively reasonable to arrest plaintiff for assault and robbery. See Ricciuti, 124 F.3d at 128. In other words, in the Court's view, "a rational jury could not find that the officers' judgment was so flawed that no reasonable officer would have made a similar choice." Lennon, 66 F.3d 424-25. Therefore, Officers Logan and Frasco are entitled, at the very least, to qualified immunity for the arrest of plaintiff. See Ricciuti, 124 F.3d at 127-28.
C. Malicious Prosecution
In assessing whether Officers Logan and Frasco were objectively reasonable in their belief that they had probable cause to charge the plaintiff with first degree assault and first degree robbery, the Court applies the same standard used to evaluate qualified immunity in the false arrest context. See Lennon, 66 F.3d at 425. For the reasons set forth in the analysis of qualified immunity as applied to plaintiff's false arrest claim, the Court finds that even if probable cause did not exist, competent officers could disagree over whether the defendants had probable cause to believe that plaintiff committed first degree assault and first degree robbery. Accordingly, defendants Logan and Frasco are entitled to qualified immunity on this claim.
V. Conspiracy — § 1985(3)
Plaintiff also alleges that his arrest was the product of a conspiracy among defendants to deprive him or his First, Fifth and Fourteenth Amendment rights on account of his race, in violation of 42 U.S.C. § 1985 (3).
The four elements of a § 1985(3) claim are: (1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of equal protection of the laws, or of equal privileges and immunities under the laws; (3) an act in furtherance of the conspiracy; (4) whereby a person is either injured in his person or property or deprived of any right of a citizen of the United States. . . . Furthermore, the conspiracy must also be motivated by "some racial or perhaps otherwise class-based, invidious discriminatory animus behind the conspirators' action."Mian v. Donaldson Lufkin Jenrette Sec. Corp., 7 F.3d 1085, 1087-88 (2d Cir. 1993) (citations omitted), cert. denied, 516 U.S. 824 (1995). Plaintiff has adduced no evidence in the record that Officers Logan and Frasco entered into an agreement, express or tacit, to deprive him of his constitutional rights. Moreover, as discussed in detail below, there is no evidence that defendants' actions were motivated by racial animus. Accordingly, defendants' motion for summary judgment is GRANTED with respect to plaintiff's § 1985(3) claim.
VI. "Negligent" Arrest
Claim VI, a negligence claim, must also be dismissed. The gravamen of the claim is that the plaintiff was subject to arrest and prosecution as a result of careless conduct by Officers Logan and Frasco. (See Am. Compl. ¶¶ 51-55.) Since a plaintiff may not recover under general negligence principles for a claim that a defendant failed to exercise the appropriate degree of care in effecting an arrest or initiating a prosecution, this is not a viable theory of recovery. See Coakley v. Jaffe, 49 F. Supp.2d 615, 629 (S.D.N.Y. 1999) (collecting cases), aff'd, 234 F.3d 1261 (2d Cir. 2000). Accordingly, summary judgment is GRANTED for defendants on plaintiff's claim for negligent arrest.
The amended complaint actually has two claims numbered the "sixth cause of action." The negligence claim is contained in the first of these two "sixth" causes of action.
VI. § 1981 Claim Against Officers Logan and Fresco
The amended complaint does not allege a § 1981 violation, but merely notes that § 1981 provides a basis for jurisdiction. (See Am. Compl. ¶ 2.) Nonetheless, I will not require the plaintiff to amend again, but will deem a § 1981 claim to have been alleged in the amended complaint. However, this § 1981 claim must also be dismissed.
Section 1981 is derived from the Thirteenth and Fourteenth Amendments and provides a right against racial discrimination. See Mahone v. Waddle, 564 F.2d 1018 (3rd Cir. 1977) Specifically, the statute states:
All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of parsons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other. 42 U.S.C. § 1981.
In Mahone, the Third Circuit held that § 1981 applies to certain rights other than contracts: "To read the language as applying only to the right to contract ignores the clear and vital words of the majority of its provisions. Despite the sparsity of precedent, a natural and common sense reading of the statute compels the conclusion that section 1981 has broad applicability beyond the mere right to contract." Mahone, 564 F.2d at 1028. The court focused on the "equal benefit" and "like punishment" clauses of § 1981:
Plaintiffs have alleged that the City's police officers, clothed with the authority of the City and the state and motivated by racial bias, verbally and physically abused them, falsely arrested them, and gave false testimony against them. It seems to us that plaintiffs have in effect alleged that because they are black they were subjected to officially inflicted "punishment, pains, (and) penalties" other than those to which white persons are subject. In alleging that because of their race they were arrested without probable cause or warrant and that they were convicted of false testimony of crimes they did not commit, plaintiffs have in effect charged that the City's officers denied them the same "full and equal benefit of . . . laws and proceedings for the security of persons. . . as is enjoyed by white persons." We therefore believe that the facts alleged fall within the broad language of both the equal benefits and like punishment clauses of section 1981.Conway v. City of Philadelphia, SEPTA, 1997 WL 129024, *3 (E.D. Pa.) (quoting Mahone, 564 F.2d at 1028).
Other courts have followed the Mahone interpretation of § 1981 and found that when there is either a lack of probable cause or other evidence that an arrest was racially motivated dismissal of a § 1981 claim is inappropriate. See Conway, 1997 WL 129024 at *3 (plaintiff's allegations that race was the motivating factor in his false arrest and prosecution fell within the "broad language of both the equal benefits and like punishment clauses of § 1981 and . . . are sufficient to withstand dismissal"); see also Mendez v. Rutherford, 687 F. Supp. 412, 416 (N.D. Ill. 1988) ("[r]acially-motivated arrests, beatings and searches made in the absence of probable cause easily fall within the wording of § 1981"); Grier v. Galinac, 740 F. Supp. 338, 342 (M.D.Pa. 1990) (plaintiff's § 1981 claim survived a motion to dismiss when police officers detained him as a robbery suspect even though plaintiff did not physically resemble the suspect, was accompanied by his two-year-old daughter and was in the company of neighbors who were not also investigated); Alexis v. McDonald's Resaurant of Massachusetts, Inc., 67 F.3d 341, 348 (1st Cir. 1995) (although there was probable cause to make the arrest, a police officer's comment that was made during the arrest and that could be interpreted as racist was sufficient to withstand dismissal of a § 1981 claim).
Plaintiff claims that defendant officers harbored an intent to discriminate when they arrested plaintiff. However, the Court has found that there was, in fact, probable cause to arrest plaintiff based on evidence that was completely unrelated to plaintiff's race. Plaintiff also contends that a racial animus can be inferred from the fact that defendant officers only interviewed non-African-Americans at the scene. Yet the Court has noted that the officers were not required to investigate all potentially exculpatory claims before making the arrest. Finally, it is notable that plaintiff alleges that one, or possibly both of the officers told plaintiff that he "had no rights." This comment is somewhat similar to the comment cited in Alexis, in which a police officer had probable cause to arrest an African-American woman, but told her African-American husband that, "[y]ou people have no rights. You better shut up your . . . mouth before I arrest you too." See Alexis, 67 F.3d at 348. The First Circuit reasoned that the comment could have been motivated by a discriminatory animus because it was made "absent a scintilla of evidence that any member [of the family], with the possible exception of [the wife], had said or done anything remotely wrong or disorderly . . ." See id. In this case, however, the comment was made directly to plaintiff and occurred after he was under arrest and placed in the squad car.
Plaintiff has put forth no other evidence to show that defendant officers may have been motivated by a racial animus. In order to bring a § 1981 claim against a police officer, the plaintiff must present some form of evidence that the arrest was racially motivated. "[N]aked assertion[s] by plaintiff[s] that race was a motivating factor without a fact-specific allegation of a causal link between defendant's conduct and the plaintiff's race [are] too conclusory . . ." Carson v. Lewis, 35 F. Supp.2d 250, 269 (E.D.N.Y. 1999), (quoting Yusuf v. Vasser College, 827 F. Supp. 952, 955 (S.D.N.Y. 1993)) (internal citations omitted). Therefore, because the arrest was based on probable cause and there is no other evidence that the arrest was motivated by race, summary judgment is GRANTED for defendants Logan and Fresco on plaintiff's § 1981 claim.
III. Municipal Liability
The parties brief the claim for municipal liability as presenting a Monell issue: namely, is there evidence in the record to show that a policy or custom of the City of New York caused the alleged deprivation of plaintiff's civil rights. See Monell v. Dep't of Social Services, 436 U.S. 658 (1978) Plaintiff has adduced no evidence in the record, however, to support a Monell claim against the City defendant.
This is the second of the two "sixth" causes of action alleged in the amended complaint, ¶¶ 56-59.
I further note that the amended complaint alleges not a Monell claim, but a claim for the tort of negligent supervision. (See Am. Compl. ¶ 56-59). "[A] cause of action sounding in negligence is legally sustainable against a city when the injured party demonstrates that he was injured due to the negligent training and supervision of a law enforcement officer." V. Weglarz, Inc. v. City of Cohoes, 477 N.Y.S.2d 1005, 1006 (N Y App. Div. 1984) (citing Barr v. County of Albany, 50 N.Y.2d 247, 257 (1980)). Should the Court determine that plaintiff has no cognizable claims against the police officers, he likewise would have no claim against the City of New York for negligent training and supervision. See, e.g., Kurschus v. Painewebber, Inc., 16 F. Supp.2d 386, 397 (S.D.N.Y. 1998).
Accordingly, to the extent that plaintiff has alleged a Monell claim against the City of New York, defendants' motion for summary judgment is GRANTED. Furthermore, because the Court finds that plaintiff has no cognizable claims against Officers Logan and Fresco, defendants' motion for summary judgment on plaintiff's claim of negligent training and supervision is also GRANTED.
IV. Negligent Prosecution
In Count IX, plaintiff seeks relief against New York City and the New York City Police Department on a claim of negligent prosecution. Under New York law, however, there is no congizable claim for negligent prosecution. See Kurschus, 16 F. Supp. 2d at 395 (citing LaMar v. Town of Greece, 468 N.Y.S.2d 744, 745 (N Y App. Div. 1983)). "Prosecutions must be malicious to support a cause of action, not merely negligent." See id. Accordingly, the Court GRANTS summary judgment to the defendants on the negligent prosecution claim.
V. Remaining Claims A. Claims Against Officers Logan and Fresco
With respect to the remaining claims against Officers Logan and Frasco, the Court notes that defendants did not move for summary judgment on plaintiff's First Amendment retaliation claim or Fifth Amendment due process violation claim. However, because the undisputed facts, as well as the Court's holdings set forth above, dictate the outcome of these claims, the Court will address them sua sponte.
The facts simply do not support plaintiff's claim for unconstitutional retaliation. Where there exists another, independent reason for plaintiff's arrest besides the impermissible motive to `chill' protected speech, plaintiff's claim of retaliation will not lie. Posr v. Court Officer Shield #207, 180 F.3d 409, 418 (2d Cir. 1999). As discussed in detail above, probable cause to arrest plaintiff existed independent of any speech on the part of plaintiff. Plaintiff's First Amendment retaliation claim therefore is DISMISSED.
For similar reasons, plaintiff's due process claim also fails. Although plaintiff alleges that defendants denied plaintiff his due process protections by "imprison[ing] plaintiff without due cause . . . solely because of his race and without any legal or other reasonable basis," (see Am. Compl. ¶ 26) this Court has found that probable cause to arrest and prosecute plaintiff existed based on evidence completely unrelated to plaintiff's race. Plaintiff's due process claim therefore is DISMISSED.
B. Claims Against Meridien Foods, John Doe #1 and John Doe #2
No motion has been made concerning the remaining claims against Meridien Foods, John Doe #1 and John Doe #2, set forth in Counts III, VII and VIII of plaintiff's amended complaint. It is unclear whether any of these claims present federal causes of action properly adjudicated by this Court. Therefore, plaintiff and defendants Meridien Foods, John Doe #1 and John Doe #2 are directed to appear before this Court for a conference on October 5, 2001, at 9:00 a.m., in order to discuss the status of this case.
CONCLUSION
For the foregoing reasons, defendants' motion for summary judgment is GRANTED on the false arrest and imprisonment, malicious prosecution, "negligent" arrest, "negligent" prosecution, § 1981 and § 1985(3) conspiracy claims. The Court further finds that defendants Logan and Frasco are entitled to qualified immunity on plaintiff's § 1983 claims. Plaintiff's First Amendment retaliation claim and Fifth Amendment due process violation claim are DISMISSED. Defendants Thomas Logan, Michael Frasco, the New York City Police Department and New York City therefore are dismissed from the case.
Plaintiff and remaining defendants Meridien Foods, John Doe #1 and John Doe #2 are directed to appear for a conference on October 5, 2001, at 9:00 a.m.
SO ORDERED.