Williams v. City of New York et al, No. 1:2017cv02351 - Document 47 (S.D.N.Y. 2019)

Court Description: OPINION & ORDER re: 34 MOTION for Summary Judgment: For the reasons set forth above, Johnson's motion for summary judgment is GRANTED as to Williams' claims for false arrest and failure to intervene and DENIED as to Williams' cl aims for malicious prosecution and denial of right to fair trial. The parties are instructed to appear for a pretrial conference at 10:30AM, April 12, 2019, at Courtroom 619, Thurgood Marshall Courthouse, 40 Foley Square, New York, NY. The Clerk of C ourt is respectfully directed to terminate the motion, Doc. 34. (Pretrial Conference set for 4/12/2019 at 10:30 AM in Courtroom 619, 40 Centre Street, New York, NY 10007 before Judge Edgardo Ramos.) (Signed by Judge Edgardo Ramos on 3/31/2019) (jwh)

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Williams v. City of New York et al Doc. 47 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK JAMAL WILLIAMS, Plaintiff, - against - OPINION & ORDER AARON JOHNSON and JOHN DOES 1-5, 17 Civ. 2351 (ER) Defendants. Ramos, D.J.: Jamal Williams brings this action against Sergeant Aaron Johnson and five unidentified police officers under 42 U.S.C. § 1983, alleging causes of action for false anest, malicious prosecution, denial of the 1ight to a fair tiial, and failme to intervene. Johnson moves for summa1y judgment on all claims. For the reasons that follow, Johnson's motion is DENIED in pait and GRANTED in pali. I. BACKGROUND The following facts are not disputed unless noted. 1 Sometime in the week prior to November 18, 2015, Johnson received a call from Sergeant John Hagan, a 9th precinct field intelligence officer. PL ' s Response to Def. ' s 56.1 Statement of Facts ,r,r 3- 4. Hagan informed Johnson of the potential presence of a gun and ammunition at Apaitment 9C, 205 Avenue C, New York, New York, based on Hagan's 1 The facts are taken from the parties' 56.1 statements of facts, declarations, and exhibits. Dockets.Justia.com communication with a confidential info1mant. 2 Id. Johnson subsequently ran the address location through the New York Police Depaitment's systems to dete1mine the identities of the building tenants and any associated info1mation. Id. ,r 7. Johnson also visited 205 Avenue C to ensure there was only one Apartment 9C at the address, then ran a search to obtain possible apa1tment tenants and any associated infonnation. Id. ,r,r 9- 11. Johnson identified two names associated with the apartment, Jamal Williams and Andrew Hudson. Id. leaseholder of Apa1tment 9C at that time. Id. with Willian1s. Id. ,r 16. ,r 15. ,r 12. Williams was the Hudson is Williams ' brother and was living Johnson presented the results of his investigation to the New York County District Attorney's Office. Id. ,r 17. Based on this evidence, Assistant District Attorney Jessica Wash drafted an application for a search wanant suppo1ted by an affidavit signed by Johnson and presented the application to New York County Criminal Comt Judge Felicia A. Mennin. Id. ,r,r 20-21. On November 17, 2015, Judge Mennin issued a search wa1rnnt based on ADA Wash 's application for Apai·tment 9C. Id. ,r 25. The seai·ch wanant identified the potential presence of"fireaims" and "ammunition," and granted permission for officers "to enter without giving notice of authority and purpose, and to search the target premises, and the persons of Jamal Williams and [redacted], if present therein, for the above described prope1ty." Mitchell Deel. Ex. H. The next day, at 6:00 AM, Johnson and several other officers entered Williams' apartment. Pl. 's Response to Def. 's 56.1 Statement of Facts ,r 26. Johnson then entered Williams' bedroom and found Williams in his bed. Id. handcuffed Williams. Id. ,r 30. ,r 29. Another officer promptly The officers then entered and searched the other two bedrooms 2 Williams' hearsay objection to Sergeant Hagan's statement is ovemtled on the grounds that it is not offered for the truth of the matter stated but for the purpose of assessing whether Johnson was reasonable in believing he had probable cause to anest Williams. Fed. R. Evid. 801. 2 in the apaiiment, found Hudson and Tiffany Pena in Hudson's bedroom and handcuffed them. Id. ,r,r 31-33. Williams, Hudson, and Pena were moved outside the apa1tment and made to sit in the hall while the officers conducted the search. Id. ,r 35. Dming the search, Johnson recovered a .357 Magnum revolver, ammunition, a scale, and heat-sealed bags of ma1ijuana from Hudson ' s bedroom. Id. ,r 36. The marijuana was found inside a black plastic gai·bage bag. Id. The gun and ammunition were found inside a nylon bag which itself was inside a knapsack. See Mitchell Deel. Ex. C 188:9-189:18, 192:2-193:7. Johnson claims to have also recovered another black plastic garbage bag containing a heat-sealed bag of marijuana from the living room, Def. ' s 56.1 Statement of Facts ,r 37, but Williams disputes this, Pl. 's Response to Def. ' s 56.1 Statement of Facts ,r 37. Johnson took photographs of the items he recovered from Hudson' s bedroom and the garbage bag he claims to have found in the living room at the sites he claims to have found them. Id. ,r 38; Mitchell Deel. Ex. N. Williams did not witness Johnson recove1ing any of the items in the apartment, Pl. ' s Response to Def. ' s 56.1 Statement of Facts ,r 39, as Williams was made to wait outside the apa1tment with Hudson and Pena. Williams, Hudson, and Pena were then transpo1ted to the 9th Precinct by unknown officers. Id. ,r 44. an officer. Id. At the precinct, Williams was Mirandized and gave a videotaped statement to ,r,r 45-47. fu his statement, Williams stated that he had previously attempted to evict Hudson but failed, that he knew that Hudson smoked mai·ijuana and had marijuana in the apartment, that he had once inspected Hudson's room and found a gun, and that Hudson had told Williams that he would remove the gun. Id. ,r,r 50-52. Williams was charged with criminal possession of marijuana and criminal use of drng pai·aphemalia. Id. ,r 61; Mitchell Deel. Ex. F. Later that day, Johnson and his team of officers prepared vouchers documenting the items 3 collected from Williams' apartment. Def. 's Response to Pl. 's 56.1 Statement of Facts ,i 116; Mitchell Deel. Ex. 0. One of the vouchers identified three packages of marijuana-including the same packages that Johnson stated he found in the living room-as having been recovered from "bedroom #1 ," which the parties agree refers in this context to Hudson's bedroom. Def. 's Response to Pl. 's 56.1 Statement of Facts ,i 116; Mitchell Deel. Ex. 0 at 14. This voucher was prepared by Detective David Bailey, Mitchell Deel. Ex. 0 at 14, who was present during the search, Mitchell Deel. Ex.Cat 212:18-23. The District Attorney's Office jointly charged Williams and Hudson for possession of a firearm and possession of marijuana. Pl. 's Response to Def. 's 56.1 Statement of Facts ,i 74; Mitchell Deel. Ex. L. Johnson signed the criminal court complaint drafted by the Disttict Attorney's office. Id. ,i 75. On November 19, 2015, Williams was anaigned on the charges and released on his own recognizance. Id. ,i 76. Williams was required to appear for four subsequent court appearances. Id. ,i 77. On June 16, 2016, the charges against Williams were dismissed. Id. ,i 80. On March 31, 2017, Williams filed the instant action, naming the City of New York, Johnson, and five unidentified officers as defendants. Doc. 1. Williams and the City of New York later stipulated to the dismissal of the City as a defendant. Doc. 38. On May 21, 2018, Johnson moved for summaiy judgment on all of Williams' remaining claims. II. LEGAL STANDARD Summary judgment is appropriate when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to summa1y judgment as a matter of law." Fed. R. Civ. P. 56(a). " An issue of fact is 'genuine' if the evidence is such that a reasonable jmy could return a verdict for the non-moving pa1ty." Senno v. Elmsford Union Free 4 Sch. Dist., 812 F. Supp. 2d 454, 467 (S.D.N.Y. 2011) (quoting SCR Joint Venture L.P. v. Warshawsky, 559 F.3d 133, 137 (2d Cir. 2009)). A fact is "material" if it might affect the outcome of the litigation under the governing law. Id. "When the burden of proof at trial would fall on the nonmoving party, it ordina1ily is sufficient for the movant to point to a lack of evidence to go to the tiier of fact on an essential element of the nomnovant's claim. h1 that event, the nonmoving party must come fo1ward with admissible evidence sufficient to raise a genuine issue of fact for trial in order to avoid summa1y judgment." Jaramillo v. Weyerhaeuser Co., 536 F.3d 140, 145 (2d Cir. 2008) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). fu deciding a motion for summruy judgment, the Court constmes the facts in the light most favorable to the nonmovant and resolves all runbiguities and draws all reasonable inferences against the movant. Brod v. Omya, Inc. , 653 F.3d 156, 164 (2d Cir. 2011). The nonmovant, however, may not rely on unsupported asse1tions or conjecture in opposing summary judgment. Goenaga v. March ofDimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995). Rather, the nonmovant "must set forth significant, probative evidence on which a reasonable fact-finder could decide in its favor." Senno, 812 F. Supp. 2d at 467-68 (citing Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 256-57 (1986)). III. DISCUSSION fu his opposition to the instant motion, Williams withdraws his claim under 42 U.S.C. § 1983 for unlawful ently. See Doc. 42 at 1. Therefore, the only remaining claims are the § 1983 claims for false anest, malicious prosecution, denial of the right to a fair trial, and failure to intervene. Johnson moves for summary judgment on all these claims. 5 A. False Arrest "A § 1983 claim for false anest, resting on the Fourth Amendment right of an individual to be free from unreasonable seizures, including anest without probable cause, is substantially the same as a claim for false anest under New York law." Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996) (citations omitted). The existence of probable cause completely bars a federal civil rights claim for false anest. Singer v. Fulton Cty. Sheriff, 63 F.3d 110, 118 (2d Cir. 1995). Probable cause exists ''when the officers have knowledge or reasonably trnstwmthy information of facts and circumstances that are sufficient to wanant a person of reasonable caution in the belief that the person to be anested has committed or is committing a crime." Weyant, 101 F.3d at 852. The probable cause inquily is based upon whether the facts known by the anesting officer at the time of the anest objectively provided probable cause to anest. Jaegly v. Couch, 439 F.3d 149, 153 (2d Cir. 2006) (citing Devenpeck v. Alford, 543 U.S. 146, 153 (2004)). Probable cause need not have existed for the charge "actually invoked by the aJ.Testing officer at the time of the aJ.Test," Ackerson v. City of White Plains, 702 F.3d 15, 20 (2d Cir. 2012), as amended (Dec. 4, 2012) (quoting D evenpeck, 543 U.S. at 20), what matters is whether probable cause existed to aJ.Test the plaintiff for "any single offense," id. (quoting Marcavage v. City of New York, 689 F.3d 98, 109-10 (2d Cir. 2012); accord Wallace v. City ofAlbany, 283 A.D.2d 872, 873 (N.Y. 3d Dep't 2001). Johnson argues that Williams' false anest claim fails as a matter of law because probable cause existed to aJ.Test Williams of marijuana possession in the third degree, N .Y. Pen. Law § 221.20, marijuana possession in the second degree, N.Y. Pen. Law § 221.25, criminal possession of a weapon in the second degree, N.Y. Pen. Law§ 265.03(l)(b), and criminal possession of a firerum, N.Y. Pen. Law§ 265.0 1-B(l). 6 1. Possession of marijuana A person is guilty of criminal possession of marihuana in the second degree when he knowingly and unlawfully possesses one or more preparations, compounds, mixtures or substances containing ma.Iijuana and the preparations, compounds, mixtures or substances are of an aggregate weight of more than sixteen ounces. N.Y. Pen. Law § 221 .25. A person is guilty of criminal possession of ma1ijuana in the third degree when he knowingly and unlawfully possesses one or more preparations, compounds, mixtures or substances containing marihuana and the preparations, compounds, mixtures or substances are of an aggregate weight of more than eight ounces. N.Y. Pen. Law§ 221.20. To "possess" something "means to have physical possession or otherwise to exercise dominion or control over tangible property." N.Y. Pen. Law § 10.00(8). Johnson argues that he had probable cause to a.nest Williams because he found over eight ounces of marijuana in Williams' living room, and since Williams is the leaseholder and the living room is a common space of the apartment, Willian1s has possession of the marijuana in the living room. The Comt finds that a genuine factual dispute exists as to whether Johnson recovered the malijuana from Williams ' living room or from Hudson' s bedroom. Johnson's evidence that the marijuana was in Williams ' living room consists of his testimony and a photo he took of the bag pmportedly containing marijuana next to the TV console in Williams' living room. Def. ' s Statement of Facts ,r,r 37, 38; Mitchell Deel. Ex. C 208:8-210:25; Mitchell Deel. Ex. N. But Williams has put forth competing evidence. First, the NYPD voucher, a record documenting physical evidence collected at the time of a1Test, describes the marijuana in question as having 7 been collected in Hudson 's bedroom. 3 See Mitchell Deel. Ex. 0 at 14. Second, Williams proffers his own testimony that marijuana could not have been found in his living room. See Pl. 's Response to Def. 's Statement of Facts ,i 39; Lumer Deel. Ex. 2 108:8-10. Johnson argues that the mere fact that Williams disputes Johnson's version of events is insufficient to defeat summa1y judgment because Johnson's version of events is suppo1ted by "incontrove1tible evidence," citing Zellner v. Summerlin, 494 F.3d 344, 371 (2d Cir. 2007). It is hue that " [w]hen opposing parties tell two different stories, one of which is blatantly conh-adicted by the record, so that no reasonable jmy could believe it, a comt should not adopt that version of the facts for pm-poses of mling on a motion for summa1y judgment." Scott v. Harris, 550 U.S. 372, 380 (2007). But Johnson vastly overstates the difference in strength between his and Williams' accounts of what happened. The record does not unambiguously supp01t his position. The voucher prepared by Detective Bailey, who was on the scene of an-est, unambiguously states that the marijuana was found in Hudson 's bedroom. See Mitchell Deel. Ex. 0 at 14. A reasonable jury could weigh this evidence along with Johnson's and Williams' testimony to find in Williams' favor. Johnson does not argue that probable cause would have existed even if the marijuana was found in Hudson 's bedroom. Whether Johnson found the marijuana in the living room or Hudson' s bedroom is thus a fact material to Williams' false anest claim. Because a genuine dispute exists as to that question, summaiy judgment is denied insofar as Johnson's probable cause to anest is based on the purported recove1y of marijuana from Williams ' living room. 3 Johnson argues that the voucher should not be credited because a different officer, Detective David Bailey, prepared the voucher. See Mitchell Deel. Ex. 0 at 14. There is no legal basis for ignoring the voucher on these grounds; a jury can detennine how much weight to give the voucher based on Bailey's authorship. 8 2. Possession of weapon or firea1m A person is guilty of criminal possession of a weapon in the second degree when he possesses a loaded firea1m with intent to use it unlawfully against another person. N.Y. Pen. Law§ 265.03(l)(b). A person is guilty of criminal possession of a firea1m when he possesses any fireann. N.Y. Pen. Law§ 265.01-B( l). A loaded fireann is one loaded with ammunition or any fireaim which is possessed by one who, at the same time, possesses a quantity of ammunition which may be used to discharge such fireaim. N.Y. Pen. Law§ 265.00(15). And a person "possesses" something when he or she has physical possession or othe1wise exercises dominion or control over it. N.Y. Pen. Law§ 10.00(8). The possession of a loaded firearm is presumptive evidence of intent to use it unlawfully against another. N.Y. Pen. Law§ 265.15(4). Johnson argues that Williams constru ctively possessed the gun found in Hudson's bedroom, furnishing him with probable cause to anest Williams. "Constmctive possession exists when a person has the power and intention to exercise dominion and control over an object, and may be shown by direct or circumstantial evidence." United States v. Facen, 812 F.3d 280, 286-87 (2d Cir. 2016) (quoting United States v. Payton, 159 F.3d 49, 56 (2d Cir. 1998)). "[M]ere presence at the location of contr·aband does not establish possession," United States v. Rios, 856 F.2d 493, 496 (2d Cir. 1988), but "'presence under a pa1iicular set of circumstances' from which a reasonable jury could conclude that the defendant constructively possessed contraband located there" can, Facen, 812 F.3d at 287 (quoting United States v. Soto, 959 F.2d 1181, 1185 (2d Cir. 1992)). Courts have found a variety of factors and circumstances relevant to dete1mining whether a person constructively possessed contraband, including possession of a key to the location where the contraband is located, the presence of the contraband in plain view, and the availability of identification showing that the 9 person resided where the contraband was. See id. (collecting cases). Thus, whether constructive possession exists is a fact-intensive inquiry. Here, the quantum of evidence that the police had at the time of the anest is that there was the potential presence of a gun and ammunition at the apartment, that Williams was the leaseholder, that Hudson lived there as well, and that the gun was found in Hudson's room. A reasonable jury could find that Johnson did not have information sufficient to believe that Williams had the power to exercise dominion and control over the gun, considering that the gun was recovered in Hudson's room. Some comts have found constructive possession lacking when the contraband in question is found in potentially inaccessible parts of a criminal defendant's apa1tment. See, e.g. , Davis v. City ofNew York, 2007 WL 755190, at *10 (E.D.N.Y. Feb. 15, 2007) (finding that§ 1983 plaintiffs may be able to demonstrate lack of probable cause if "there is no evidence directly or indirectly linking them to the bullets in their brother' s closet such that one could conclude they exercised some dominion and control over such bullets"); Jones v. City ofNew York, 2014 WL 1427855, at *5 (E.D.N.Y. Apr. 14, 2014) ("[T]he ultimate resting place of other guns in bedrooms cannot be attributed to plaintiff without info1mation that he had some residency or regular access to a particular bedroom where a gun was found."); but see Cammick v. City ofNew York, 1998 WL 796452, at *3 (S.D.N.Y. Nov. 17, 1998) (fmding that plaintiffs constructively possessed gun found in closet).4 Because factual disputes exist as to the location of the recovered marijuana and whether Johnson was justified in believing Williams to exercise dominion and control over the gun in his brother's bedroom, summaiy judgment on Williams' false anest claim is unwa1rnnted. 4 Johnson additionally argues that he had probable cause to arrest Williams because Williams later disclosed that he knew Hudson kept a gun in his room. Def.'s 56.1 Statement of Facts ,i 52. But these statements were given after Williams' ruTest. They ru·e thus iITelevant to the issue of probable cause. 10 .,.., . Qualified immunity However, Williams' false anest claim nonetheless fails because Johnson is entitled to qualified immunity. "Public officials are entitled to qualified immunity from liability for civil damages so long as their conduct does not violate a clearly established statuto1y or constitutional right. Public officials receive this protection upon establishing that it was objectively reasonable for them to believe that their acts did not violate clearly established rights." Richardson v. Selsky, 5 F.3d 616,621 (2d Cir. 1993) (citation omitted). The Comt may grant summa1y judgment in favor of public officials if "they adduce sufficient uncontroverted facts that, even looking at the evidence in the light most favorable to the plaintiffs and drawing all inferences favorable to the plaintiffs, no reasonable jmy could conclude that it was objectively unreasonable for the defendants to believe that they were acting in a fashion that did not violate an established federally protected right." Ying Jing Gan v. City ofNew York, 996 F.2d 522, 532 (2d Cir. 1993) (quoting Hur/man v. Rice, 927 F.2d 74, 78- 79 (2d Cir. 1991)). Thus, "evidence insufficient to sustain a finding of probable cause may be adequate to show qualified immunity." Elk v. Townson, 839 F. Supp. 1047, 1052 (S.D.N.Y. 1993) (citing Warren v. Dwyer, 906 F.2d 70, 75 (2d Cir. 1990), cert. denied 498 U.S. 967, 111 (1990)). Qualified immunity protects an officer against a false anest claim ifhe or she had " arguable probable cause" to anest the plaintiff. Myers v. Patterson, 819 F.3d 625, 632 (2d Cir. 2016) (quoting Garcia v. Does, 779 F.3d 84, 92 (2d Cir. 2014)). "Arguable probable cause exists ' if either (a) it was objectively reasonable for the officer to believe that probable cause existed, or (b) officers of reasonable competence could disagree on whether the probable cause test was met."' Escalera v. Lunn, 361 F.3d 737, 743 (2d Cir. 2004) (quoting Golino v. City ofNew Haven, 950 F.2d 864, 870 (2d Cir. 1991)). Johnson had arguable probable cause to anest Williams. Johnson had a valid search 11 wanant that stated reasonable cause existed to believe there were firearms at Williams' apartment, identifying Williams by name. See Pl. 's Response to Def. 's 56.1 Statement of Facts ,r 25; Mitchell Deel. Ex. H. Johnson then indeed recovered a firea1m from Williams' apartment, in his brother's bedroom. Johnson could have reasonably believed that Williams, as the leaseholder of the apa1t ment, exercised dominion and control over the gun in Hudson's bedroom sufficient to a1ise to constrnctive possession. Thus, Johnson had arguable probable cause to anest Williams even if, as Williams argues, no marijuana could have been recovered from the living room. Multiple courts have found arguable probable cause sufficient to wanant qualified immunity in similar cases. See, e.g., Caraballo v. City ofNew York, 526 F. App'x 129, 131 (2d Cir. 2013) (finding that officers reasonably believed persons found sleeping in an apa1tment in which officers found suspected MDMA in the dining room had control and dominion over the substances); Jackson ex rel. Jackson v. Suffolk Cty., 87 F . Supp. 3d 386, 405-06 (E.D.N.Y. 2015) (granting qualified immunity to officer who aITested resident of house where contrnband was found in a jacket with unknown owner). Because Johnson had arguable probable cause to aITest Williams, summa1y judgment on Johnson's qualified immunity defense is wa1rnnted. Williams' false aITest claim thus fails. B. Malicious Prosecution A claim of malicious prosecution brought under § 1983 shares the same elements as a claim of malicious prosecution brought under state law. Russell v. Smith, 68 F.3d 33, 36 (2d Cir. 1995). "Under New York law, a plaintiff suing for malicious prosecution must establish: (1) the initiation or continuation of a criminal proceeding against plaintiff; (2) te1mination of the proceeding in plaintiffs favor; (3) lack of probable cause for commencing the proceeding; and (4) actual malice as a motivation for defendant's actions." Id. In addition to the state law 12 elements, a plaintiff must also show that he or she suffered "a sufficient post-arraignment liberty restraint to implicate the plaintiffs Fourth Amendment rights." Rohman v. New York City Transit Auth., 215 F.3d 208,215 (2d Cir. 2000). 5 Johnson argues that Williams' malicious prosecution claim fails because there was probable cause to prosecute Williams, there was no malice, and Williams did not suffer a sufficient post-a1rnignment libe1ty restraint. A reasonable jmor could find that probable cause was lacking to initiate a legal proceeding against Williams for the same reasons a reasonable jmor could find that Johnson lacked probable cause to arrest Williams. Johnson does not argue othe1wise; he simply argues that there was probable cause to prosecute Williams because there was probable cause to arrest him. Cf Johnson v. Constantellis, 221 F. App'x 48, 50 (2d Cir. 2007) (quoting Kin=er v. Jackson, 316 F .3d 139, 143 (2d Cir. 2003) ("If probable cause existed at the time of a1Test, it continues to exist at the time of prosecution unless unde1mined 'by the discovery of some intervening fact. '"). A reasonable juror could also find, viewing the facts in the light most favorable to plaintiff, that Johnson was motivated by actual malice. "Malice means 'that the defendant must have commenced the prior criminal proceeding due to a wrong or improper motive, something other than a desire to see the ends of justice served.'" Brogdon v. City of New Rochelle, 200 F. Supp. 2d 411,423 (S.D.N.Y. 2002) (quoting Nardelli v. Stamberg, 44 N.Y.2d 500, 502-03 (N.Y. 1978)). New York comts have also stated that malice must entail "a showing of some deliberate act punctuated with awareness of 'conscious falsity' to establish malice." Best v. 5 "The Fourth Amendment right implicated in a malicious prosecution action is the right to be free of unreasonable seizure of the person--i.e., the light to be free of unreasonable or unwa1nnted restraints on personal liberty. A plaintiff asserting a Fourth Amendment malicious prosecution claim under § 1983 must therefore show some deprivation oflibe1ty consistent with the concept of 'seizure."' Singer v. Fulton Cty. Sheriff, 63 F.3d 110, 116 (2d Cir. 1995). 13 Genung's Inc., 46 A.D.2d 550, 552 (N.Y. App. 3d Dep't 1975) (quoting Munoz v. City ofNew York, 18 N.Y.2d 6, 9 (N.Y. 1966); see also Jenkins v. City ofNm-v York, 1992 WL 147647, at *6 (S.D.N.Y. June 15, 1992). Were the jmy to credit the NYPD evidence voucher and Williams' testimony that the marijuana purpo1tedly found in the living room could not have been there, they could conclude that Johnson acted with an improper motive in anesting Williams. Lastly, the Court fmds tl1at Williams endured a sufficient post-anaignment libe1iy restraint. In Murphy v. Lynn, 118 F.3d 938 (2d Cir. 1997), the Second Circuit held that while a state has the undoubted authority, in connection with a criminal proceeding, to restrict a properly accused citizen's constitutional right to travel outside of the state as a condition of his pretrial release, and may order him to make periodic comt appearances, such conditions are appropriately viewed as seizures within the meaning of the Fomih Amendment. Id. at 946. Thus, both restlictions on a criminal defendant's light to travel and requirements to make comi appearances can sustain a§ 1983 malicious prosecution claim. Id at 946-47. 6 Here, it is undisputed that, after Williams was released on his own recognizance at the auaignment, Williams was required to make an additional fom comt appearances. Pl. 's Response to Def. 's 56.1 Statement of Facts ,r 77. Dming this time, Williams was required "to render himself at all times amenable to the orders and processes of the court,"N.Y. Clim. Proc. Law§ 510.40. In Rohman, the Second Circuit fom1d that being required to appear in comi five times after anaignment posed a sufficient incursion on one's libe1iy to implicate the Fomth Amendment, 215 F.3d at 216. Williams attended just one fewer court appearance; thus, like the plaintiff in 6 Johnson cites to two Second Circuit sllllllilary orders purp01ting to show that a required comt appearance does not amount to a sufficient post-anaignment libe1ty restraint. They are both distinguishable. The plaintiff in Coleman v. City ofNew York, 688 F. App ' x 56 (2d Cir. 2017), was charged with a variety of offenses arising out of a single incident, some of which were supp01ted by probable cause and others of which were not. Because the plaintiff bad to appear in comt for the offenses supported by probable cause anyways, a causal connection between that restraint and the offenses for which the defendant allegedly maliciously prosecuted him was lacking. The plaintiff in Faruki v. City ofNew York, 517 F. App'x 1 (2d Cir. 2013), only appeared in comt for her tiial, at which tin1e the prosecution did not proceed and the Comt dismissed the charges. See Faniki v. City ofNew York, 2012 WL 1085533, at *3 (S.D.N.Y. Mar. 30, 2012), ajJ'd, 517 F. App'x 1 (2d Cir. 2013). 14 Rohman, he has suffered a liberty restraint sufficient to implicate the Fomth Amendment and thereby maintain his malicious prosecution claim. Because a reasonable jmy could find that Johnson lacked probable cause and acted with malice in proceeding against Williams, and because Williams suffered a liberty restraint sufficient to implicate his constitutional rights, summary judgment on Williams' malicious prosecution claim is unwananted. C. Denial ofthe Right to a Fair Trial To make a denial of the right to a fair trial claim based on the fabrication of infmmation, a plaintiff must show that an (1) investigating official (2) fabricates information (3) that is likely to influence a jury' s verdict, (4) forwards that information to prosecutors, and (5) the plaintiff suffers a deprivation of life, liberty, or property as a result. Garnett v. Undercover Officer C0039, 838 F.3d 265, 279 (2d Cir. 2016) (citing Ricciuti v. NYC. Transit Auth., 124 F.3d 123, 130 (2d Cir. 1997)). "Because probable cause is no defense to a denial of the right to a fair trial claim, fair trial claims cover kinds of police misconduct not addressed by false anest or malicious prosecution claims." Id. at 278. Johnson argues that Williams' claim fails because no reasonable jury could find that Johnson fabricated the location of the marijuana purportedly discovered in Williams' living room and Williams did not suffer any deprivation of life, liberty, or property. As previously discussed, a reasonable jmy evaluating the facts in the light most favorable to the plaintiff could credit Williams' account of where the contested marijuana was located and find that Johnson fabricated the marijuana's location. And under Lynn and Rohman, Williams suffered a libe1ty restraint that implicated constitutional rights. Therefore, summaiy judgment on Williams' claim for denial of right to fair trial is unwananted. 15 D. Failure to Intervene All police officers have an affnmative duty to intervene to protect the constitutional rights of people from infringement by other police officers in their presence. Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994). "An officer who fails to intercede is liable for the preventable hann caused by the actions of the other officers where that officer observes or has reason to know : (1) that excessive force is being used; (2) that a citizen has been unjustifiably a1Tested; or (3) that any constitutional violation has been committed by a law enforcement official." Id. (citations omitted). Williams marshals no evidence showing that Johnson failed to intercede another officer's unconstitutional actions; his§ 1983 claims are all against Johnson. Thus, summa1y judgment is granted in Johnson' s favor on Williams' failure to inte1vene claim. Insofar as Williams' failure to inte1vene claim is against the John Doe defendants, they must be dismissed. As many courts have held, "[w]here a plaintiff has had ample time to identify a John Doe defendant but gives no indication that he has made any effort to discover the [defendant's] name, . . . the plaintiff simply cannot continue to maintain a suit against the John Doe defendant." Coward v. Town & Vill. of Harrison, 665 F. Supp. 2d 281, 300 (S.D.N .Y. 2009) (internal quotation marks and citation omitted). See also Warren v. Ewanciw, 2019 WL 589488, at *5 (S.D.N.Y. Feb. 13, 2019) (following Coward); Abujayyab v. City ofNew York, 2018 WL 3978122, at *4 (S.D.N .Y. Aug. 20, 2018) (same); TR. by & through Yon-Rawls v. City ofNew York, 2018 WL 3962830, at *5 (S.D.N.Y. Aug. 16, 2018) (same). Williams filed suit nearly two years ago, yet he has not amended his complaint to identify the John Doe defendants. The Comt thus sua sponte dismisses the claims brought against these unidentified defendants. 16 IV. CONCLUSION For the reasons set forth above, Johnson's motion for summary judgment is GRANTED as to Williams' claims for false arrest and failure to intervene and DENIED as to Williams' claims for malicious prosecution and denial of right to fair trial. The parties are instructed to appear for a pretrial conference at 10:30AM, April 12, 2019, at Courtroom 619, Thurgood Marshall Courthouse, 40 Foley Square, New York, NY. The Clerk of Court is respectfully directed to terminate the motion, Doc. 34. SO ORDERED. Dated: March 31, 2019 New York, New York Edgardo Ramos, U.S.D.J. 17

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