Hill v. Marino et al, No. 2:2010cv05615 - Document 47 (E.D.N.Y. 2012)
Court Description: MEMORANDUM AND ORDER denying 33 Motion for Summary Judgment; denying 25 Motion for Summary Judgment; granting 29 Motion to Dismiss for Failure to State a Claim. For the foregoing reasons, Aiken's motion for summary judgment is GRANTED. The Federal and County Defendants' motions are DENIED with leave to renew after a brief discovery period. So Ordered by Judge Joanna Seybert on 9/25/2012. C/ECF (Valle, Christine)
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Hill v. Marino et al Doc. 47 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ---------------------------------------X VIRGIL HILL, FILED CLERK 9/25/2012 12:24 pm U.S. DISTRICT COURT EASTERN DISTRICT OF NEW YORK LONG ISLAND OFFICE Plaintiff, -against- MEMORANDUM & ORDER 10-CV-5615(JS)(AKT) United States Treasury Agent VINCENT MARINO, United States Treasury Agent JOSEPH MUSCATELLO, Nassau County Detective RONALD R. SCHEPIS, Shield 883, Nassau County Detective “JOHN DOE,” and Hempstead Police Detective DARREL P. AIKEN, Defendants. ---------------------------------------X APPEARANCES For Plaintiff: James J. Keefe, Esq. James J. Keefe P.C. 301 Mineola Blvd Mineola, NY 11501 For the Federal Defendants: Diane C. Leonardo-Beckmann, Esq. United States Attorney’s Office 610 Federal Plaza Central Islip, NY 11722 For the County Defendants: Diane C. Petillo, Esq. Liora M. Ben-Sorek, Esq. Office of the Nassau County Attorney One West Street Mineola, NY 11501 For Mr. Aiken: Keith Michael Corbett, Esq. William J. Garry, Esq. Harris Beach PLLC 100 Wall Street, 23rd Floor New York, NY 10005 Dockets.Justia.com SEYBERT, District Judge: Plaintiff Virgil Hill sued Secret Service agents Vincent Marino and Joseph Muscatello (the “Federal Defendants”), Nassau County detectives Ronald Schepis and “John Doe” (the “County Defendants”), and Hempstead Village detective Darrell Aiken in a civil rights action. Pending before the Court are three motions. pre-discovery, dispositive For the following reasons, Aiken’s motion (Docket Entry 29) is GRANTED and the Federal Defendants’ and the County Defendants’ motions (Docket Entries 33, 25) are DENIED with leave to re-file after a brief discovery period. BACKGROUND Plaintiff’s separate alleged case stems crimes, Plaintiff’s conviction. from neither of two arrests which on resulted two in The Court briefly describes each. I. Plaintiff’s First Arrest In August 2007, the Federal Defendants were investigating complaints that someone used counterfeit fiftydollar bills to buy merchandise from various stores in Nassau County. interviewed In the three course employees of who investigating, Agent identified Plaintiff Marino from photographic line-ups as the man who had passed the counterfeit notes. 2 In December 2007, the Federal and County Defendants arrested Plaintiff at his job and brought him to a Nassau County police department facility to be interviewed. Plaintiff explained that he was not involved in any counterfeiting and that he had been at work on the dates the phony bills were used. (Pl. Aff. ¶¶ 7-8.) At one point during the interview, the “John Doe” County Defendant, who Plaintiff now knows was Detective John Harvey, was alone with Plaintiff and said: “Virgil, I know you didn’t do this crime; I hope you beat it.” (Id. ¶ 8.) Plaintiff asked Harvey to tell his colleagues that they were making a mistake; Harvey replied that if Plaintiff told the others what Harvey had said, Harvey would deny it. Plaintiff was arraigned on felony (Id.) counterfeiting charges and held in jail because he could not post $250,000 bail. (Id. ¶ 9.) He had been incarcerated for approximately two weeks when his boss appeared in court with computer records and surveillance video from Plaintiff’s job that showed Plaintiff was indeed at work on the relevant dates and times. (Id. ¶ 10.) Upon receiving this evidence, the judge presiding over Plaintiff’s case released him on his own recognizance. charges remained pending until June 2009, when the The Nassau District Attorney agreed to dismiss the case because it had lost contact with the civilian witnesses. 3 II. Plaintiff’s Second Arrest In September 2008--while his counterfeiting case was pending--Plaintiff charge by Aiken, was a Police Department. arrested detective again, with the this time Village on of a drug Hempstead Aiken stated that he observed Plaintiff sell marijuana to a confidential informant, he had a clear view of the transaction confidential from a informant information in the past. nearby had unmarked provided police him car, with and his reliable (Aiken Aff. ¶¶ 5, 8.) According to Plaintiff, after he was arrested on the marijuana charge, he was questioned by a Nassau County police lieutenant who told Plaintiff that he was not interested in a drug sale and that he would Plaintiff’s counterfeiting. prefer to learn (Pl. Aff. ¶ 11.) more about Plaintiff was released on an appearance ticket with an end-of-month return date. According to Plaintiff, when he appeared in court two days later on the counterfeiting case, the assistant district attorney assigned to that case already knew that Plaintiff had been arrested on the drug charge. (Id. ¶ 11.) In Plaintiff’s view, that the ADA would have learned so quickly of a drug case that resulted in only an appearance ticket (and with a return date several weeks hence) suggests that the purpose behind the 4 drug charge was to pressure Plaintiff pleading guilty in the counterfeiting case. into entering into (Id.) DISCUSSION Plaintiff asserts four claims: (1) a false arrest claim against the Federal and County Defendants arising from the counterfeiting arrest; (2) a malicious prosecution claim against the Federal and County Defendants arising from the counterfeiting charge; (3) a false arrest claim against Aiken arising from the drug arrest; and (4) a malicious prosecution claim against Aiken arising from the drug charge. Defendants move for pre-discovery summary judgment. All The Court recites the applicable legal standard and then addresses the parties’ motions. I. Legal Standard Summary judgment is only appropriate where the moving party can demonstrate that there is “no genuine dispute as to any material fact” and that the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a). In considering this question, the Court considers “the pleadings, depositions, answers to interrogatories and admissions on file, together with any other firsthand information including but not limited to affidavits.” Nnebe v. Daus, 644 F.3d 147, 156 (2d Cir. 2011); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986); McLee v. 5 Chrysler Corp., 109 F.3d 130, 134 (2d Cir. 1997); FED. R. CIV. P. 56(c). “In assessing the record to determine whether there is a genuine issue to be tried . . . the court is required to resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought.” McLee, 109 F.3d at 134. The burden of proving that there is no genuine issue of material fact rests with the moving party. Gallo v. Prudential Residential Servs., L.P., 22 F.3d 1219, 1223 (2d Cir. 1994) (citing Heyman v. Commerce & Indus. Ins. Co., 524 F.2d 1317, 1320 (2d Cir. 1975)). non-moving LaBounty party v. must Coughlin, “come 137 Once that burden is met, the forward F.3d 68, with 73 specific (2d Cir. facts,” 1998), to demonstrate that “the evidence is such that a reasonable jury could return a verdict for the nonmoving party,” Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). not suffice.” 1986). “Mere conclusory allegations or denials will Williams v. Smith, 781 F.2d 319, 323 (2d Cir. And “unsupported allegations do not create a material issue of fact.” Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000). II. Analysis A. The Federal and County Defendants’ Motion The Federal and County Defendants argue that probable cause negates Plaintiff’s claims 6 arising out of the counterfeiting case and, alternatively, that they are entitled to qualified immunity. Of course, Defendants are correct that “[p]robable cause is a complete defense to any action for false arrest or malicious prosecution in New York.” Dickerson v. Napolitano, 604 F.3d 732, 751 (2d Cir. 2010). But although Defendants’ argument that the photo identifications establish probable cause is well-taken, the court is mindful that there has not yet been any discovery. “Only in the rarest of cases may summary judgment be granted against a plaintiff who has not been afforded the opportunity to conduct discovery,” Hellstrom v. U.S. Dep’t of Veterans Affair, 201 F.3d 94, 97 (2d Cir. 2000), and Harvey’s alleged statement that he thought Plaintiff was innocent repeated it (and to that the he’d other deny that investigators) belief raises if Plaintiff at least a question of what the Federal and County Defendants understood the evidence against Plaintiff to be at the time they arrested him. Cf. Maron v. Cnty. of Albany, 166 F. App’x 540, 542 (2d Cir. Feb. 13, 2006) (“When determining whether probable cause exists, courts ‘must consider those facts available to the officer at the time of the arrest and immediately before it.’” (quoting Lowth v. Town of Cheektowaga, 82 F.3d 563, 569 (2d Cir. 1996)). the Plaintiff has identified evidence that might bear on probable cause analysis, see id. (probable cause is a “totality of the circumstances” inquiry); see generally Gualandi 7 v. Adams, 385 F.3d 236, 244-45 (2d Cir. 2004), and summary judgment is accordingly denied with leave to re-file after a brief discovery period. Democratic 3114732, Repub. at *1 of See, e.g. Themis Capital, L.L.C. v. Congo, (S.D.N.Y. --July F. Supp. 26, 2012) 2d ----, 2012 (denying WL summary judgment but granting leave to re-file after limited discovery).1 B. Aiken’s Motion Aiken is entitled to summary judgment. Aiken’s evidence shows that he personally observed Plaintiff sell drugs to a reliable undisputed, and confidential it strongly informant. supports This a finding evidence of is probable cause, see, e.g., Bourne v. Cnty. of Nassau, No. 05–CV-6067, 2009 WL 152658, at *4 (E.D.N.Y. Jan. 20, 2009). Although Plaintiff has not taken discovery, he has not specified how discovery might help him prove an absence of probable cause on the drug case. theory that pleading See Gualandi, 385 F.3d at 244-45. Aiken guilty arrested in the Plaintiff to counterfeiting Plaintiff’s pressure case is him into entirely speculative, and the Court sees no need to send the parties on a fishing expedition. See Seneca Beverage Corp. v. Healthnow New York, Inc., 200 F. App’x 25, 27 (2d Cir. Sept. 26, 2006). 1 Because this discovery may shed more light on whether the Federal and County Defendants had “arguable” probable cause, the Court rejects as premature these Defendants’ bids for qualified immunity. See Maloney v. Cnty. of Nassau, 623 F. Supp. 2d 277, 292 (E.D.N.Y. 2007). 8 CONCLUSION For the foregoing reasons, Aiken’s motion for summary judgment is GRANTED. The Federal and County Defendants’ motions are DENIED with leave to renew after a brief discovery period. SO ORDERED. /s/ JOANNA SEYBERT______ Joanna Seybert, U.S.D.J. Dated: September 25 , 2012 Central Islip, New York 9
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