Giannullo v. City of New York

• Decision Date: 10 March 2003
• Docket Number: Docket No. 02-7357.
• Citation: 322 F.3d 139
• Parties: Mark GIANNULLO, Plaintiff-Appellant, v. CITY OF NEW YORK, Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

322 F.3d 139

Mark GIANNULLO, Plaintiff-Appellant, v. CITY OF NEW YORK, Defendant-Appellee.

Docket No. 02-7357.

United States Court of Appeals, Second Circuit.

Argued: January 14, 2003.

Decided: March 10, 2003.

Scott T. Horn, Mischel, Neuman & Horn, New York, NY, for Appellant.

Cheryl Payer, Assistant Corporation Counsel of the City of New York, (Stephen J. McGrath, Assistant Corporation Counsel, on the brief for Michael A. Cardozo, Corporation Counsel of the City of New York), New York, NY, for Appellee.

Before: KEARSE and B.D. PARKER, Circuit Judges, and RAKOFF, District Judge.^*

Judge KEARSE dissents in a separate opinion.

RAKOFF, District Judge.

Rule 56.1 of the Local Civil Rules of the United States District Courts for the Southern and Eastern Districts of New York ("Local Rule 56.1") requires a party moving for summary judgment to submit a statement of the allegedly undisputed facts on which the moving party relies, together with citation to the admissible evidence of record supporting each such fact. See Local Rule 56.1(a), (d). If the opposing party then fails to controvert a fact so set forth in the moving party's Rule 56.1 statement, that fact will be deemed admitted. See Local Rule 56.1(c). However, as we held in Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 74 (2d Cir.2001), "[t]he local rule does not absolve the party seeking summary judgment of the burden of showing that it is entitled to judgment as a matter of law, and a Local Rule 56.1 statement is not itself a vehicle for making factual assertions that are otherwise unsupported in the record." In the instant case, as in Holtz, the record does not support certain critical assertions in the defendant's Rule 56.1 statement on which the district court relied, with the result that, even though plaintiff's Rule 56.1 counter-statement failed to specifically controvert these assertions, the unsupported assertions must nonetheless be disregarded and the record independently reviewed. See Holtz, 258 F.3d at 74.

The issue here arises on the appeal of plaintiff-appellant Mark Giannullo from a judgment of the United States District Court for the Eastern District of New York (Sterling Johnson, Jr., Judge) granting summary judgment to defendant-appellee, the City of New York. Plaintiff had brought suit under 42 U.S.C. § 1983 alleging that his arrest on drug possession charges (which were never pursued) was made without probable cause. The district court found, on what it believed to be the undisputed facts, that the City, together with defendant New York City Police Officer Andrew Quinn,¹ acted reasonably and had probable cause to arrest Giannullo and therefore had a complete defense to plaintiff's claims. See Weyant v. Okst, 101 F.3d 845, 852 (2d Cir.1996).

We review the district court's grant of summary judgment de novo. Bernard v. United States, 25 F.3d 98, 102 (2d Cir. 1994). Summary judgment is appropriate when "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). It is the movant's burden to show that no genuine factual dispute exists, Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970), and all reasonable inferences must be drawn in the non-movant's favor, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Of particular relevance here, where the movant "fail[s] to fulfill its initial burden" of providing admissible evidence of the material facts entitling it to summary judgment, summary judgment must be denied, "`even if no opposing evidentiary matter is presented,'" for the non-movant is not required to rebut an insufficient showing. Adickes, 398 U.S. at 158, 160, 90 S.Ct. 1598 (quoting Fed.R.Civ.P. 56(e) Advisory Committee note (1963)).²

A review of the record discloses that the following facts are supported by admissible evidence and are beyond genuine dispute. At around 8 a.m. on November 19, 1999, an undercover police officer who was conducting surveillance in the vicinity of a methadone maintenance clinic in Staten Island saw Giannullo exit the clinic and walk over to a second individual, Kevin Oliver. After a brief exchange, Giannullo returned to the clinic and emerged about five minutes later with a brown paper bag, which he handed to Oliver. Giannullo and Oliver then left the scene, walking in opposite directions. A short distance away, Oliver removed an item from the bag, placed the item in his pocket, and discarded the bag. Oliver was then arrested, and there was found on his person two bottles of methadone — one of which had someone else's name on it — as well as a glassine of heroin. Meanwhile, other officers stopped Giannullo and arrested him. Despite his protests that he was a licensed drug counselor at the methadone clinic and that the bag he had given Oliver contained only a "bleach kit" that he was authorized to distribute in the community,³ Giannullo was held in custody until about 5 p.m. He was then released, with no criminal complaint being filed against him, upon the representation of the Assistant District Attorney that "there is insufficient nexus between the drugs [found on Oliver] and this defendant."

On these facts, a reasonable fact-finder, drawing inferences favorable to plaintiff, could readily conclude that, prior to the arrest of Oliver and the discovery of the illicit methadone, no policeman could reasonably believe that he had probable cause to arrest Giannullo. Prior to that time, the police knew nothing about Giannullo or his relation to Oliver, had observed no drugs in the possession of either of them, had seen no money pass nor other exchange of consideration, and had overheard no incriminating conversation between them. The mere fact that Giannullo had gone back into the clinic and had returned with a paper bag that he gave to Oliver, who in turn, out of Giannullo's presence, discarded part of the contents and kept an item, might be sufficiently suspicious to warrant questioning Giannullo; but it can hardly be said to constitute probable cause to believe that Giannullo had committed a crime, warranting his immediate arrest. To hold otherwise would mean that nearly any suspicion, however vague, would justify an arrest or, at least, would insulate the arresting officer from liability under the doctrine of qualified immunity.

What led the district court to conclude nonetheless that a police officer could have reasonably believed that he had probable cause to arrest Giannullo was, first, that there had been prior "reports of drug activity in the area" that gave context to what the police observed, and, second, that the police arrested Oliver prior to arresting Giannullo and therefore, in some collective sense, had knowledge before arresting Giannullo that an illicit bottle of methadone had been found on Oliver's possession. The record, however, supports neither of these assertions.

In support of the assertion that the police had received complaints of drug activity in the area, the district court cited, not to admissible evidence, but to the defendants' memorandum of law, which is not evidence at all. In addition, the district court quoted the statement in paragraph 2 of defendants' Rule 56.1 statement (to which plaintiff's Rule 56.1 counter-statement did not respond) that the police "had conducted dozens of observations in that vicinity prior to November 19, 1999." But the only evidence cited in defendants' Rule 56.1 statement in support of this assertion is the testimony of the undercover agent, at pages 41-42 of his deposition, that over the course of his entire career, he had conducted dozens of observations in the vicinity of the methadone clinic — not that he had conducted dozens in the time period immediately preceding Giannullo's arrest. More importantly, the mere fact — more or less to be expected — that narcotics police keep an eye on a local methadone clinic adds nothing material to the determination of probable cause in a given, individual case.

By contrast, if the police collectively "knew" at the time they arrested Giannullo that Oliver had been found to be in possession of an extra methadone vial bearing another person's name, they would have had reasonable cause to believe, at least to the standard of qualified immunity, see Lee v. Sandberg, 136 F.3d 94, 101 (2d Cir. 1997), that Giannullo had delivered the purloined methadone to Oliver in the paper bag. See United States v. Colon, 250 F.3d 130, 135 (2d Cir.2001) ("Under the collective or imputed knowledge doctrine, an arrest or search is permissible where the actual arresting or searching officer lacks the specific information to form the basis for probable cause or reasonable suspicion but sufficient information to justify the arrest or search was known by other law enforcement officials initiating or involved with the investigation."). This presupposes, however, that Oliver's arrest preceded Giannullo's arrest.

The district court accepted that Oliver's arrest (and accompanying search) occurred prior to Giannullo's arrest, based solely on the fact that plaintiff's Rule 56.1 counter-statement did not controvert the aspect of paragraphs 14 and 15 of defendants' Rule 56.1 statement that placed the Oliver arrest prior to the Giannullo arrest.⁴ But nothing in the record evidences this sequence. Defendants' sole citation in support of paragraph 14 (relating to the Oliver arrest) is to the inventory of the items seized from Oliver, which nowhere states the time of Oliver's arrest or any relation between it and Giannullo's arrest. Similarly, defendants' sole citation in support of paragraph 15 (relating to the Giannullo arrest) is to the police report of Giannullo's arrest, which indicates he was arrested at 8:05 a.m. but does not indicate at what time Oliver was arrested or, indeed, anything about Oliver's arrest at all.⁵

It follows that the record does not support the...