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explaining that minor inconsistencies in grand jury testimony do not indicate perjury
Summary of this case from Spencer v. EllsworthOpinion
00 Civ. 4707 (RCC) (JCF)
August 5, 2002
Edgar Montes, c/o DeJesus, Bronx, New York, pro se.
Jessica M. Schutzman, Esq., Assistant Corporation Counsel, City of New York Law Department, New York, New York, for Defendants.
OPINION AND ORDER
Plaintiff Edgar Montes ("Montes"), pro se, brings this action for false arrest and malicious prosecution pursuant to 42 U.S.C. § 1983 against Police Officer Rhonny King ("King"), Police Officer Xavier Crandell ("Crandell") and the New York City Police Department. Defendants now move for summary judgment under Rule 56 of the Federal Rules of Civil Procedure, arguing that, given the undisputed facts, they had probable cause to arrest and prosecute Montes. By Report and Recommendation ("Report") dated March 19, 2002, Magistrate Judge Francis recommended that defendants' motion be granted. For the reasons set forth below, this Court concurs with the conclusion reached by Judge Francis.
In the Complaint, Officer King's first name is misspelled as "Rhony." The Court will use the correct spelling herein.
I. BACKGROUND
The factual background is set forth in the Report and therefore is only briefly recounted herein. On September 24, 1997, Officers King and Crandell were on duty patrolling the New York City Housing Authority grounds in plainclothes. (Declaration of Rhonny King dated August 22, 2001 ("King Decl."), ¶ 4.) They followed Montes and two other individuals into a Housing Authority building at 1695 Madison Avenue, a location known for drug dealing. (Id. ¶¶ 6-10.) Upon entering the building, Officer King observed the men standing in the stairwell. (Id. ¶¶ 12-14.) According to Officer King, Montes was counting out loud as he pulled three small plastic baggies from a larger plastic bag and handed them to one of the individuals, later identified as Mychael Hamme ("Hamme"). (Id. ¶¶ 17-20.) Hamme was holding money in his left hand. (Id. ¶ 21.) When Officer King identified himself, Montes dropped the larger plastic bag. (Id. ¶¶ 22-23.) Officer King determined that the dropped bag held small baggies containing a white substance that appeared to be crack cocaine. (Id. ¶ 25.)
The officers then arrested the men. (Id. ¶¶ 26, 29.) Ultimately, the officers recovered seven baggies from the dropped bag, three baggies from Hamme, and ten more baggies from Hamme's pants pocket. (Id. ¶ 25; Plaintiff's Declaration in Opposition dated September 21, 2001 ("Pl. Decl.") Exs. B, D, G.) The contents of all the baggies tested positive for cocaine. (King Decl. ¶ 28; Pl. Decl. Exs. B, D, G.) Montes was charged with criminal possession and sale of a controlled substance, and Hamme was charged with possession. (King Decl. 27, 29) On October 3, 1997, Montes was indicted for criminal sale of a controlled substance in the third degree. (Declaration of Jessica Mila Schutzman dated August 22, 2001 ("Schutzman Decl."), Ex. D.)
The third individual, Craig Ford, was charged with loitering and released. (Complaint ¶ IV.)
Approximately two years later, Montes pled guilty to another indictment containing similar charges, this time involving ninety bags of crack cocaine. At sentencing, Justice Edward McLaughlin dismissed the 1997 indictment as "covered" by the sentence imposed for the new conviction. (Id., Ex. F.)
Montes denies that he was selling drugs when the officers approached him and claims that he was subjected to false arrest and, reading the Complaint liberally, malicious prosecution. Montes argues that his arrest was in fact motivated by an argument between himself and Officer Crandell that occurred three days earlier, regarding Officer Crandell's desire to date Montes' sister-in-law. (Complaint ¶ IV.) Montes also claims that he was discriminated against based on his race because the officers, as well as the two other individuals with whom he was arrested on September 24, 1997, are black. (Id.)
Upon consideration of defendants' motion for summary judgment, Magistrate Judge Francis recommended that the motion be granted because Montes failed to show that the officers lacked probable cause to arrest him. (Report at 14.) Specifically, Judge Francis held that Montes had not rebutted the presumption of probable cause created by the grand jury indictment, and, even if he had, other credible evidence supported the officers' actions. (Id. at 7-11.) Finally, Judge Francis held that, because Montes has no actionable claim against the individual officers, no suit could be maintained against the New York City Police Department. (Id. at 13-14.) Now before the Court is Montes' Response to Judge Francis' Report, postmarked April 26, 2002 (the "Response"). The Court therefore will review de novo those portions of the Report to which Montes objects. Fed.R.Civ.P. 72(b); see also 28 U.S.C. § 636(b)(1)(c).
Montes' objections are timely pursuant to an Order of the Court dated April 8, 2002.
II. DISCUSSION
Plaintiff challenges Magistrate Judge Francis' conclusion that summary judgment in defendants' favor is warranted here. Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). While the moving party must first demonstrate "the absence of a genuine issue of material fact," Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986), once the moving party has met this burden, the opposing party must provide "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e).
The lack of probable cause is an essential element of both a false arrest and a malicious prosecution claim. See Fulton v. Robinson, 289 F.3d 188, 195 (2d Cir. 2002) (holding that a false arrest claim "may not be maintained if there was probable cause for the arrest"); Murphy v. Lynn, 118 F.3d 938, 944 (2d Cir. 1997), cert. denied, 522 U.S. 1115 (1998) (holding that, in order to maintain a malicious prosecution action, plaintiff must show, among other things, "lack of probable cause for commencing the proceeding"). The return of an indictment creates a presumption of probable cause; however, such presumption can be rebutted by a showing that "the indictment was produced by fraud, perjury, the suppression of evidence or other police conduct undertaken in bad faith." Colon v. City of New York, 60 N.Y.2d 78, 82-83, 468 N.Y.S.2d 453, 455-56, 455 N.E.2d 1248, 1250-51 (1983).
Although Montes' objections are somewhat unintelligible, Montes appears to argue that he was not engaged in selling drugs at the time of his arrest and that genuine issues of material fact exist as to whether the officers committed perjury or acted in bad faith. Specifically, Montes seems to suggest that (1) Officer King changed his testimony regarding the number and location of the baggies involved in the offense in order to incriminate Montes (Response ¶ 1-3); (2) Officer Crandell was motivated to arrest Montes as a result of the argument they had three days prior to the arrest (Id. ¶ 4); and (3) Hamme was charged with possessing only the ten baggies recovered from his pants pocket, not the baggies that Montes allegedly sold him, therefore apparently indicating that no drug sale took place (Id. ¶ 5).
These same arguments, in essence, were raised before Magistrate Judge Francis and rejected. Judge Francis determined that Officer King's statements were consistent in all material respects and that any variations were minor and did not provide evidence of perjury or fraud. (Report at 8-10.) This Court must agree. Reading the record as a whole, Officer King consistently maintained that Montes was in the process of selling 10 baggies of cocaine to Hamme, and never stated that the sale involved a different amount. Although there is some discrepancy as to whether all 10 of the baggies were recovered from the ground, or whether three were recovered directly from Hamme, such an inconsistency does not indicate that Officer King willfully perjured himself as to the substance of his testimony.
Nor does the mere fact that Montes had a previous disagreement with Officer Crandell necessarily discredit Officer Crandell's testimony. Without some supporting evidence, Montes' argument amounts to nothing more than unsubstantiated speculation that Officer Crandell acted in bad faith.
However, even assuming that Montes was able to overcome the presumption of probable cause created by the indictment, the undisputed facts nonetheless indicate that the officers acted within their discretion in arresting Montes. See Marshall v. Sullivan, 105 F.3d 47, 54 (2d Cir. 1996) ("[P]robable cause to arrest exists when an officer has knowledge or reasonably trustworthy information of facts and circumstances that are sufficient in themselves to warrant a person of reasonable caution in the belief that the person to be arrested has committed or is committing a crime.").
Montes does not dispute that the officers observed him and Hamme standing in the stairwell of the Housing Authority building, a known drug dealing location. It is also undisputed that the officers observed Montes count out a number of small plastic baggies and give them to Hamme, who was holding money in his left hand. The baggies contained a white substance appearing — and later proven — to be crack cocaine. Indeed, Montes confirmed his participation in an illegal narcotics transaction, stating that he was there to buy although he would not identify whether he was the seller. (Pl. Decl., Ex. D.)
Even if a jury were to credit Montes's assertion that he was merely the buyer and not the seller, Montes' actual guilt or innocence is irrelevant to the determination of probable cause. Rather, the salient inquiry is whether the circumstances at the time would have led a reasonable person to believe that the arrestee committed the crime. See Marshall, 105 F.3d at 54. Given the circumstances here, in which plaintiff handed visible narcotics to another man holding money, it is evident that the officers had probable cause to arrest Montes. See, e.g., United States v. Rosario, 638 F.2d 460, 460 (2d Cir. 1980) (finding probable cause where defendant carried a plastic bag containing a substance that looked like cocaine in a furtive manner to a car containing two men and displayed it for inspection). Moreover, even if the actual existence of probable cause was questionable, it was not objectively unreasonable for the officers to believe that they had probable cause to arrest Montes; consequently, they are entitled to qualified immunity on that basis. See Ferreira v. Westchester County, 917 F. Supp. 209, 217 (S.D.N.Y. 1996) (granting summary judgment on qualified immunity grounds where, based on the material, undisputed facts, it was objectively reasonable for the officers to arrest the plaintiff).
Therefore, because Montes has failed to adduce any genuine issues for trial, this Court accepts Judge Francis' recommendation that summary judgment be granted in favor of defendants.
Although neither the parties nor Judge Francis addressed the merits of the discrimination claim set forth in the Complaint, it is clear that such a claim must be dismissed. Montes has failed to come forward with any evidence, beyond conclusory allegations, which would allow a rational jury to find that defendants unlawfully discriminated against him. See e.g., Yusuf v. Vassar College, 35 F.3d 709, 714 (2d Cir. 1994) (dismissing discrimination claim under 42 U.S.C. § 1981 where plaintiff offered no reason to suspect that certain officials acted on the basis of race, other than his assertion that the officials were white and that he is Bengali).
III. CONCLUSION
For the foregoing reasons, defendants' motion for summary judgment is GRANTED. The Clerk of the Court is directed to close this case.
SO ORDERED: