Malarczyk v. Lovgren
| Decision Date | 08 February 2022 |
| Docket Number | 1:19-CV-42 |
| Parties | ROBERT MALARCZYK, Plaintiff, v. TROOPER ERIC P. LOVGREN, sued in both their individual capacity and official capacity as a Trooper with the New York State Police, TROOPER BRIAN C. DIPASQUALE, sued in both their individual capacity and official capacity as a Trooper with the New York State Police, and JOHN DOE OFFICERS 1-5, Their true names and identities presently unknown, acting in both their Official and Unofficial capacities, Defendants. |
| Court | U.S. District Court — Northern District of New York |
ROBERT MALARCZYK, Plaintiff,
v.
TROOPER ERIC P. LOVGREN, sued in both their individual capacity and official capacity as a Trooper with the New York State Police, TROOPER BRIAN C. DIPASQUALE, sued in both their individual capacity and official capacity as a Trooper with the New York State Police, and JOHN DOE OFFICERS 1-5, Their true names and identities presently unknown, acting in both their Official and Unofficial capacities, Defendants.
No. 1:19-CV-42
United States District Court, N.D. New York
February 8, 2022
OFFICE OF THOMAS M. THOMAS M. GAMBINO, ESQ. GAMBINO & ASSOCIATES, P.C. Attorneys for Plaintiff
HON. LETITIA JAMES MARK G. MITCHELL, ESQ. New York State Attorney General Ass't Attorney General Attorneys for Defendants
MEMORANDUM-DECISION AND ORDER
DAVID N. HURD UNITED STATES DISTRICT JUDGE
I. INTRODUCTION
On January 11, 2019, plaintiff Robert Malarczyk (“Malarczyk” or “plaintiff”) filed this 42 U.S.C. § 1983 action against defendants New York State Police Trooper Eric P. Lovgren (“Trooper Lovgren”), New York State Police Trooper Brian C. DiPasquale (“Trooper DiPasquale”), and John Doe Officers 1-5 (the “Does”). According to the thirteen-count complaint, Trooper Lovgren and Trooper DiPasquale (collectively “defendants”) violated Malarczyk's civil rights by, inter alia, conspiring to arrest him. Dkt. No. 1.
On May 20, 2021, defendants moved for summary judgment under Federal Rule of Civil Procedure (“Rule”) 56. Dkt. No. 27. Plaintiff has opposed and cross-moved for summary judgment in his own favor. Dkt. No. 29. The motions are fully briefed and will be decided on the basis of the submissions without oral argument.
II. BACKGROUND
On September 26, 2016, Trooper DiPasquale finished his shift on duty as a New York State Trooper, clocked out, and left the State Police barracks in his personal vehicle. See Defs.' Facts, Dkt. No. 27-15 ¶ 1. As he drove westbound on State Route 299 in the Town of Lloyd, he saw a vehicle-a blue Mercury
Mountaineer-parked in a driveway close to the road. Id. ¶ 2. According to Trooper DiPasquale, he saw the driver of the blue Mercury make a gesture that “appeared to be him possibly smoking a bowl” of marijuana. Id. ¶ 3.
Trooper DiPasquale pulled over to the side of the road to see what the driver of the blue Mercury would do next. Defs.' Facts ¶ 4. According to Trooper DiPasquale, the blue Mercury pulled onto State Route 299, drove through “a steady red light” without braking, and then turned abruptly onto New Paltz Road “without signaling, crossing the center line[, ] and driving off the roadway onto a dirt patch before reentering the roadway.” Id. ¶¶ 5-6.
Although he was off duty, Trooper DiPasquale decided to follow the blue Mercury because of its erratic behavior and the possibility that the driver was intoxicated from recent drug use. Defs.' Facts ¶ 7. Trooper DiPasquale also called 911 to make a report. Id. According to Trooper DiPasquale, the blue Mercury continued to drive in an erratic or dangerous manner-he observed it cross over the center line multiple times. Id. ¶ 8. Eventually, after traveling some distance down the road, the blue Mercury turned into a driveway on Tracy Road and came to a stop. Id. ¶ 9.
Trooper DiPasquale parked his personal vehicle behind the blue Mercury, got out, and approached on foot. Defs.' Facts ¶ 10. He observed a man-later identified as Malarczyk- sitting in the driver's seat and a female in the front passenger seat. Id. ¶ 11. Although Trooper DiPasquale did not recognize
plaintiff, he did know the passenger: Monika Giaculli. Id. ¶¶ 12-13. As Trooper DiPasquale explains, he recognized Ms. Giaculli because “he had responded to prior 911 calls at her residence involving domestic disputes with her mother.” Id. ¶ 13.
Trooper DiPasquale showed his State Police shield and ID card, identified himself as a police officer, and asked Malarczyk why he was driving erratically. Defs.' Facts ¶ 14. In response, plaintiff opened the driver's door and exited the blue Mercury. Id. ¶ 15. As plaintiff did so, “a beer can fell out of the driver's side door onto the ground.” Id. “Beer spilled out of the can onto the driveway.” Id. ¶ 16. “Plaintiff immediately picked up the can and threw it into the woods near a garbage can.” Id. ¶ 17.
In the meantime, fellow New York State Trooper Lovgren had received a call through the 911 dispatcher about Trooper DiPasquale's report of an erratic vehicle. Defs.' Facts ¶ 18. Trooper Lovgren-who was on duty in full uniform and driving a marked police vehicle-responded to the call and arrived at the Tracy Road location at about 4:35 p.m. Id. ¶¶ 19-20.
Upon his arrival at the scene, Trooper Lovgren talked to Trooper DiPasquale. Defs.' Facts ¶ 21. Trooper DiPasquale described to Lovgren his observations, including the erratic behavior of the blue Mercury and that he saw a beer can fall out of the driver's door when Malarczyk exited the vehicle
to speak with him. Id. Trooper DiPasquale also explained to Lovgren how plaintiff had tossed the beer can into the woods nearby. Id.
Next, Trooper Lovgren talked to Malarczyk. Defs.' Facts ¶ 22. Plaintiff identified himself and confirmed that he had just driven the blue Mercury from nearby New Paltz. Id. ¶ 23. According to Trooper Lovgren, plaintiff “had bloodshot, glassy eyes and the odor of alcohol on his breath.” Id. ¶ 24. Trooper Lovgren also observed the beer can that plaintiff had thrown away nearby. Id. ¶ 27.
Based on the information he had received from Trooper DiPasquale and his own observations made at the scene, Trooper Lovgren asked Malarczyk to perform some field sobriety tests. Defs.' Facts ¶ 25. Plaintiff refused these requests. Id. ¶¶ 25-26. Trooper Lovgren handcuffed plaintiff and drove him to the police station. Id. ¶ 28.
At the police station, beginning at about 5:08 p.m., Trooper Lovgren asked Malarczyk on at least three occasions to submit to a chemical test to determine the alcohol and/or drug content of his blood and warned him that his refusal to participate in the test would result in the immediate suspension of his driver's license. See Defs.' Facts ¶¶ 29-32. Plaintiff refused each of these requests. Id. ¶ 32.
Thereafter, Malarczyk was transported to the Town of Lloyd Court where he was arraigned on four traffic charges: (1) driving while intoxicated;
(2) passing a red light; (3) consumption or possession of alcoholic beverages in a motor vehicle; and (4) moving from a lane unsafely. Defs.' Facts ¶ 34. After the arraignment, plaintiff was released. Id. ¶ 35. He did not spend time in jail and he was not required to post bond. Id. ¶ 36.
On October 24, 2016, the New York State Department of Motor Vehicles (“DMV”) held an administrative hearing to determine whether Malarczyk's driving privileges should be revoked as a result of, inter alia, his refusal to submit to the chemical test in connection with his arrest on suspicion of driving while intoxicated. Defs.' Facts ¶ 37.
Malarczyk, represented by attorney Daniel Miller, appeared at the DMV hearing. Defs.' Facts ¶ 38. Plaintiff chose not to testify. Id. ¶ 41. However, the administrative law judge (“ALJ”) did hear testimony from Trooper Lovgren and Trooper DiPasquale about the traffic stop. Id. ¶ 39. Plaintiff's attorney also cross-examined both officers while they were under oath. Id. After considering the officers' testimony and other evidence, the ALJ revoked plaintiff's driving privileges. Id. ¶ 43.
On August 8, 2018, the traffic charges that remained pending against Malarczyk proceeded to a jury trial in the Town of Lloyd Justice Court. Defs.' Facts ¶ 50. Plaintiff was acquitted. Id. ¶ 53. This action followed.
III. LEGAL STANDARD
The entry of summary judgment is warranted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). An issue of fact is material for purposes of this inquiry if it “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). And a dispute of material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.
In assessing whether there are any genuine disputes of material fact, “a court must resolve any ambiguities and draw all inferences from the facts in a light most favorable to the nonmoving party.” Ward v. Stewart, 286 F.Supp.3d 321, 327 (N.D.N.Y. 2017) (citation omitted). Summary judgment is inappropriate where a “review of the record reveals sufficient evidence for a rational trier of fact to find in the [non-movant's] favor.” Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir. 2002) (citation omitted).
“Where, as here, the parties have cross-moved for summary judgment, a reviewing court must evaluate each party's motion on its own merits, taking care in each instance to draw all reasonable inferences against the party whose motion is under consideration.” United States v. Bedi, 453 F.Supp.3d 563, 570 (N.D.N.Y. 2020) (cleaned up). “In undertaking this analysis, it bears
noting that a district court is not required to grant judgment as a matter of law for one side or the other.” Id.
IV. DISCUSSION
Malarczyk's complaint enumerates thirteen different claims under federal and state law. Dkt. No. 1. Plaintiff asserts federal claims for conspiracy (Counts One and Seven), excessive force (Count Two), false arrest (Count Three), failure to intervene (Count Four), malicious prosecution (also Count Three), supervisory liability (also Count Four), violation of his right to free association (Counts Five and Six), and unlawful search of his person and property (also Counts Five and Six). Id. Plaintiff also asserts state law claims sounding in negligence (Count Eight), supervisory liability (Count Nine), assault and battery (Count Ten), false...
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