Escalera v. Lunn

Citation361 F.3d 737
Decision Date12 January 2004
Docket NumberNo. 03-7121.,03-7121.
PartiesRobert ESCALERA Plaintiff-Appellee, v. Glenna LUNN, individually, Louis Crisci, individually, Rocco A. Pozzi, individually, and the County of Westchester, New York, Defendants-Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Terence M. O'Neil, Rains & Pogrebin, P.C., Mineola, NY, (James P. Clark, on the brief), for Appellants.

Jonathan Lovett, Lovett & Gould, Esqs., White Plains, NY, for Appellee.

Before: WALKER, Chief Judge, JACOBS and WESLEY, Circuit Judges.

JOHN M. WALKER, JR., Chief Judge.

Defendants-appellants Glenna Lunn, Louis Crisci, and Rocco Pozzi bring this interlocutory appeal from the order of the United States District Court for the Southern District of New York (Charles L. Brieant, Jr., District Judge), denying their motion seeking summary judgment on the basis of qualified immunity against plaintiff-appellee Robert Escalera's claims of false arrest and malicious prosecution pursuant to 42 U.S.C. § 1983. The County of Westchester, New York (the "County") asks this court to exercise pendent appellate jurisdiction to review the district court's denial of its motion for summary judgment. The district court denied the defendants' motions on the ground that there were factual disputes as to whether there was probable cause to arrest and prosecute Escalera.

We reverse the district court's denial of summary judgment on Escalera's false arrest claim.1

I. BACKGROUND

Escalera, at all relevant times, was employed as a Corrections Officer by the County. Lunn is a Police Detective employed by the County; Crisci is a Sergeant employed in the Special Investigations Unit ("SIU") of the Westchester Department of Corrections ("DOCS"); and Pozzi is Commissioner of DOCS.

In July 1999, the SIU commenced an investigation of corrections officers at the Westchester correctional facility in Valhalla, New York, based on information that a female inmate was being sexually abused by a corrections officer other than Escalera. During this investigation, Lunn and Crisci were informed by inmate Tracey Dineen that Dineen had been told by inmate Alison Blanton about possible sexual misconduct by Escalera involving another inmate, subsequently determined to be Diamaris Gonzalez. On December 30, 1999, Blanton, who, like Gonzalez, was imprisoned in E Block, was interviewed by Lunn and Crisci and made a written statement that "on or about the ninth of December, I heard a male officer['s] voice talking about 4:30 a.m..... I [peeked] out of my window and I saw [Escalera]. He was shining his flashlight and making moving gestures with his hands [and] telling [Gonzalez] to turn around shaking his head and saying things like turn around, stop, okay .... I thought I saw [Gonzalez] naked but I'm not [] sure."

On December 30, 1999, following interviews with Dineen and Blanton, Lunn and Crisci interviewed Gonzalez about a possible sexual interaction between Gonzalez and Escalera. In a supporting deposition dated December 30, 1999, Gonzalez asserted:

I woke up with a tooth ache [sic]. I had my pajamas on. I call[ed] [Officer Escalera] to give me tylenol for my tooth ache. C.O. Escalera complemented [sic] my body. He said if I wanted tylenol he wanted to see my body. In order for me to get my tylenol I pulled up my pajamas and showed him my breast. The second time C.O. Escalera tolded [sic] me for the next two tylenols I would have to show him my body again. But this time he ask me to touch my toes. Having my behind facing the door. Exposing my behind to him. I told him "no" and only pulled up my pajamas so he could only see my breast again. And told him to give me my tylenols.

On January 4, 2000, Gonzalez gave Lunn another supporting deposition alleging that in the early morning hours of January 1, 2000, shortly after Gonzalez first met with Lunn and Crisci, Escalera woke Gonzalez up, asked her questions about the investigation and said, "`You better had not told [sic] them anything.' ... in a threatening manner." Gonzalez was "very scared." Female inmates Maria Morales and Josephina Mendoza, housed in the same cell block with Gonzalez, corroborated Gonzalez's account of this interaction with Escalera. Morales stated that Escalera asked Gonzalez questions about the investigation for fifteen minutes. In a separate statement, Mendoza said that "[Escalera] went from one cell to the other to pressure them about who wrote and said what" and that "[Gonzalez] was crying (yelling)."

On January 21, 2000, Gonzalez amended her December 30, 1999 statement, stating, with respect to the December 11, 1999 incident that:

I had a tooth ache [sic] that woke me up out of my sleep. I got up to use the toilet and the dorm was very hot so I only had my panties on. I saw C.O. Escalera doing his round he was at E-1 cell so I quickly got up got my nightgown and pulled it over my head and when my head was through the nightgown, I looked up to see C.O. Escalera at my cell door E-17 with his flashlight on, staring at me. At that moment I ask C.O. Escalera for tylenol for my tooth ache [sic]. I already had pulled my nightgown down. When I asked for the tylenol C.O. Escalera stared me up and down and said "I'll be right back." When he return at my cell I ask him for the tylenol he said "Can I see something." I said "No!" C.O. Escalera said again "Let me see something." This time my tooth began to hurt more and I lift up my nightgown to show C.O. Escalera my breast in order to get my tylenol.

Approximately half an hour later C.O. Escalera came back to my cell E-17 and flash the light on my face and light up my window. He called me over and showed me 2(two) more tylenol. When I ask for them that's when C.O. Escalera again asked me to show him something. I said "No!" again. But C.O. Escalera kept persisting for me to show him my body in order for me to get my tylenol. C.O. Escalera said he wanted me to bend over and touch my toes exposing my behind and vagina area. I said "NO" and only showed him my breast again. That's when C.O. Escalera gave me the other two tylenol.

On January 26, 2000, Lunn arrested Escalera pursuant to a warrant. The Westchester County District Attorney's Office (the "DA") pursued criminal charges against him based on information that had been obtained over the six-month SIU investigation. Escalera was charged with three counts of misdemeanor Official Misconduct based on the two alleged incidents with Gonzalez on December 11, 1999 (requiring her to expose her breast) and on December 30, 1999 (threatening her after she spoke with Lunn and Crisci). Specifically, the complaint alleged that Escalera, with intent to obtain a benefit or deprive another person of a benefit, committed three separate acts relating to his office but constituting an unauthorized exercise of his official function, knowing that such acts were unauthorized under N.Y. Penal Law § 195.00.

Throughout 2000 and into the fall of 2001, Escalera was the subject of a civil disciplinary arbitration proceeding by DOCS on charges that paralleled the criminal charges. On November 10, 2001, the arbitrator dismissed all disciplinary charges and ordered the County to return Escalera to duty. On December 6, 2001, upon the prosecutor's motion, the criminal court dismissed the criminal charges against Escalera.

Escalera brought this federal action against the individual defendants and the County, claiming false arrest and malicious prosecution in violation of his constitutional rights, pursuant to 42 U.S.C. § 1983. The defendants moved for summary judgment. In denying the motion, the district court held that factual disputes existed as to whether defendants had probable cause to arrest and prosecute Escalera.

With respect to Escalera's false arrest claim against Lunn, the district court found that the arrest warrant secured by Lunn was "obviously defective" because no supporting affidavit was presented to the magistrate and Lunn did not mention in the application that there were conflicting statements by the key witness. Indeed, the court found that the complaint was purposely made to appear as if it were based on Lunn's own personal knowledge. In the absence of a warrant, the district court determined that a jury could find that there was no probable cause and, thus, that Escalera's arrest was unlawful.

As to Escalera's false arrest claim against Crisci, the district court found that Crisci's preparation of a materially false transcript and the County's attempt to introduce the "doctored" transcript in the arbitration plainly undermined Crisci's veracity and called into question all of the information used to arrest Escalera on January 26, 2000.

In denying qualified immunity to Pozzi on the false arrest claim, the district court pointed to two pending § 1983 cases that had been filed against some of the same defendants by other Westchester County corrections officers, see Cobb v. Pozzi, 352 F.3d 79 (2d Cir.2003); Corona v. Lunn, No. 00 Civ. 7330(GEL), 2002 WL 550963 (S.D.N.Y. April 11, 2002), aff'd, 56 Fed. Appx. 20, 2003 WL 187199 (2d Cir. Jan. 23, 2003) (table decision), and concluded that the factual similarities of these cases could support a jury finding that the Westchester County DOC had a departmental practice or policy of bringing false charges against Westchester County corrections officers.

Finally, with respect to the false arrest claim against the County, the district court held that, because Pozzi was a policy maker of the County and other defendants might also be policy makers, a jury could find that Escalera's arrest was part of a custom of the municipality.

This interlocutory appeal followed.

II. DISCUSSION
Jurisdiction

While we ordinarily lack jurisdiction to review a denial of summary judgment, see Golino v. City of New Haven, 950 F.2d 864, 868 (2d Cir.1991), an exception exists where the...

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