Duncan v. City of N.Y., 11-CV-3901 (ENV)(JO)

• Decision Date: 17 July 2017
• Docket Number: 11-CV-3901 (ENV)(JO),12-CV-1565 (ENV)(JO)
• Parties: SHAMAINE DUNCAN, Plaintiff, v. THE CITY OF NEW YORK, et al., Defendants. EBONY DUNCAN, et al., Plaintiffs, v. THE CITY OF NEW YORK, et al., Defendants.
• Court: U.S. District Court — Eastern District of New York

SHAMAINE DUNCAN, Plaintiff, v. THE CITY OF NEW YORK, et al., Defendants.

EBONY DUNCAN, et al., Plaintiffs, v. THE CITY OF NEW YORK, et al., Defendants.

11-CV-3901 (ENV)(JO)

12-CV-1565 (ENV)(JO)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

FILED: July 21, 2017

July 17, 2017

MEMORANDUM & ORDER

VITALIANO, D.J.

Plaintiffs Shamaine Duncan, Ebony Duncan, Harrison McCombs, Breyon Gray, and Deborah Harrell have filed suit against the City of New York and several members of the New York City Police Department: Inspector John Denesopolis, and 120th Precinct Officers Frank Aliffi, Jerry Garcia, Jin Tsoi, Bruce Ceparano, Jeff Desio, Bekim Kalicovic, Albert Isaac, John Fahim, Michael Hotaling, Francisco Moncayo, Mashiel Santos, Gregory Howard, Christian Cataldo, and Richard Dinkle. See Shamaine, Dkt. No. 117 (fourth amended complaint) ("Shamaine Compl."); Ebony, Dkt. No. 122 (second amended complaint) ("Ebony Compl.").¹ Plaintiffs charge defendants with violating their rights under federal and New York State law, and defendants now seek partial summary judgment in each action.² Shamaine, Dkt. No. 124; Ebony, Dkt. No. 132.

On September 29, 2016, Magistrate Judge James Orenstein issued a consolidated Report and Recommendation ("R&R) in which he recommended that defendants' motions for summary judgment be granted in part and denied it in part. Shamaine, Dkt. No. 141 ("R&R"); Ebony, Dkt. No. 148 ("R&R"). Pursuant to Federal Rule of Civil Procedure 72(b)(2), on October 17, 2016, defendants made timely objections in both the Shamaine and Ebony actions. Shamaine, Dkt. No. 142 ("Shamaine Obj."); Ebony, Dkt. No. 149 ("Ebony Obj."). Plaintiffs responded to these objections on November 21, 2016.³ Shamaine, Dkt. No. 146 ("Shamaine Obj. Opp."); Ebony, Dkt. No. 153 ("Ebony Obj. Opp.").

After careful consideration of the R&R, defendants' objections, and plaintiffs' opposition to those objections, and upon de novo review, the Court adopts Magistrate Judge Orenstein's R&R, with certain modifications, as discussed below.

Background⁴

Ebony is the owner of a barbershop located at 411 Jersey Street on Staten Island (the "barbershop"), and on New Year's Eve 2011, the plaintiffs were gathered inside. At some point that night, a fight broke out nearby, shots were fired, and the police responded to several 911 calls by racing to Jersey Street. After the officers arrived, certain members of the crowd retreated inside the barbershop, and the officers - observing this - followed them. Ebony proceeded to tell the non-officer intruders who had entered the shop to leave. Defendants contend that Ebony also requested their assistance in removing the intruders, while plaintiffs assert that Ebony removed the unwanted persons on her own, and, moreover, informed the police of this when they arrived. Shamaine, Dkt. No. 128 (Defendants' Rule 56.1 Statement) ("D56") ¶¶ 70-71, 161-62; Shamaine, Dkt. No. 135 (Shamaine Response & Counter-Statement) ("S56") ¶¶ 70-71, 162; Ebony, Dkt. No. 143 (Ebony Response) ("E56") ¶¶ 70-71, 161-62. The police entry resulted in a confrontation between various officers, named as defendants, and plaintiffs.

What happened thereafter is, for the most part, hotly contested. In short, defendants assert that, while conducting a lawful investigation of Ebony's barbershop, they issued orders to plaintiffs that they disobeyed; disobedience of those orders resulted in a decision to make arrests. See e.g., D56 ¶¶ 78, 86, 94-99. Defendants also allege that they discovered two firearms in the barbershop, one on a counter and the other in a bathroom. Id. ¶¶ 74, 180. Plaintiffs, on the other hand, claim that the officers were not lawfully searching the barbershop. They dispute that the officers issued orders that plaintiffs disobeyed. See, e.g., E56 ¶¶ 78, 86, 94-99. Plaintiffs also controvert the officers' representations regarding the firearms and they assert that the officers must have planted the weapons in the barbershop. See id. ¶¶ 74, 180.

Plaintiffs Shamaine, Ebony, McCombs, and Gray (i.e., all but Harrell) were formally arrested and charged with various offenses. All criminal charges against plaintiffs were eventually dismissed. Plaintiffs now pursue a panoply of claims arising under federal and state law against the officers. See R&R at 4-5.⁵

Standard of Review

In reviewing a report and recommendation of a magistrate judge, a district judge "may accept, reject, or modify, in whole or in part, the findings or recommendations . . . ." 28 U.S.C. § 636(b)(1). Moreover, in conducting its review, the district "court need only satisfy itself that there is no clear error on the face of the record" to accept a magistrate judge's report and recommendation, provided no timely objection has been made. Urena v. New York, 160 F. Supp. 2d 606, 609-10 (S.D.N.Y. 2001) (quoting Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985)); see also Thomas v. Arn, 474 U.S. 140, 150, 106 S. Ct. 466, 472, 88 L. Ed. 2d 435 (1985). However, a district judge is required to "determine de novo any part of the magistrate judge's disposition that has been properly objected to." Fed. R. Civ. P. 72(b)(3); see also Arista Records, LLC v. Doe 3, 604 F.3d 110, 116 (2d Cir. 2010).

Discussion

Defendants timely objected to certain findings in the R&R. With respect to the Shamaine action, defendants objected that (1) as to Officers Fahim and Moncayo, Shamaine's claim for violation of his right to a fair trial should have been summarily dismissed, Shamaine Obj. at 2-3; (2) Shamaine's malicious prosecution claim should have been dismissed as against Officers Ceparano, Desio, Garcia, Tsoi, and Fahim, id. at 3-5; and (3) Shamaine's state law claims should have been dismissed as procedurally barred, id. at 5-6.

As to the Ebony action, defendants interposed five objections to the R&R: (1) that defendants are entitled to summary judgment on Ebony's excessive force claim because Ebony never made such a claim in the operative complaint, Ebony Obj. at 2-4; (2) that Harrell's excessive force claim should have been dismissed, id. at 4-7; (3) that Officers Fahim and Moncayo should have been granted summary judgment dismissing the fair trial claims made on behalf of McCombs and Gray, id. at 7-9; (4) that Ebony's unlawful entry claim should have been dismissed, id. at 9-12; and (5) that Ebony's false arrest claim should have been dismissed, id. at 12-13.

I. The Shamaine Action

A. Shamaine's Fair Trial Claim

Shamaine Duncan asserts a § 1983 claim for violation of his right to a fair trial. Shamaine Compl. at 13-14. Magistrate Judge Orenstein recommended that the Court deny defendants' motion for summary judgment on this claim as to three defendants - Officers Aliffi, Fahim, and Moncayo - but that it grant the defense motion with respect to the remaining officers. R&R at 42. Defendants point out that two of the three officers against whom the fair trial claim had survived, Officers Fahim and Moncayo, had only provided prosecutorial information relating to Ebony Duncan, and none as to Shamaine Duncan. Shamaine Obj. at 2-3. Summary judgment in favor of Officers Fahim and Moncayo should have been granted. The point is conceded. Shamaine acknowledges that his fair trial claim is asserted against Officer Aliffi only. Shamaine Obj. Opp. at 3.

The R&R is modified to award summary judgment of dismissal to Officers Fahim and Moncayo on Shamaine's fair trial claim.

B. Shamaine's Malicious Prosecution Claim

Defendants next object to the R&R on the ground that Shamaine's malicious prosecution claim should have been dismissed as to Officers Ceparano, Desio, Garcia, Tsoi and Fahim, i.e., the subset of defendants who did not sign the criminal court complaint against Shamaine. Shamaine Obj. at 3-5. More precisely, defendants take issue with the finding by Judge Orenstein that the non-signing officers could be liable by way of conferring with Officer Aliffi before Aliffi signed the criminal complaint, which formally started the wheels of prosecution to turn. See Shamaine, Dkt. No. 128-32 ("Aliffi Dep.") at 179-81.⁶

To prevail on a claim of malicious prosecution under state law, a plaintiff must establish four elements: (1) defendant initiated a prosecution against plaintiff, (2) without probable cause to believe the proceeding can succeed, (3) the proceeding was begun with malice and, and (4) the matter terminated in plaintiff's favor. Ricciuti v. New York City Transit Auth., 124 F.3d 123, 130 (2d Cir. 1997). In order to allege a cause of action for malicious prosecution under § 1983, a plaintiff must additionally assert that there was "a sufficient post-arraignment liberty restraint to implicate the plaintiff's Fourth Amendment rights." Rohman v. New York City Transit Auth. (NYCTA), 215 F.3d 208, 215 (2d Cir. 2000).

As to the first element, "[t]here is a presumption that a prosecutor exercises independent judgment in deciding whether to initiate and continue a criminal proceeding . . . ." See Brome v. City of New York, 02-CV-7184, 2004 WL 502645, at *5 (S.D.N.Y. Mar. 15, 2004). Nevertheless, a plaintiff may overcome this presumption by "demonstrating that the defendant played an active role in the prosecution, such as giving advice and encouragement or importuning the authorities to act." Jouthe v. City of New York, 05-CV-1374, 2009 WL 701110, at *11 (E.D.N.Y. Mar. 10, 2009) (citation omitted). "A police officer may initiate criminal proceedings by bringing charges and having the plaintiff arraigned, by filling out complaining and corroborating affidavits, and by signing felony complaints." Shabazz v. Kailer, 201 F. Supp. 3d 386, 392 (S.D.N.Y. 2016); see also Llerando-Phipps v. City of New York, 390 F. Supp. 2d 372, 382-83 (S.D.N.Y. 2005) (denying summary judgment to defendant officers on claim of malicious prosecution and noting that "[d]etective [one] reported that he found the evidence of drugs in the police car to [d]etective [two], who signed the accusatory instrument[]" and therefore "[a]...