Opinion
5:19-cv-0305 (TWD)
06-01-2021
JERRY SLAUGHTER, Plaintiff, v. COLIN MAHAR, Defendant.
JERRY SLAUGHTER Plaintiff, pro se. KRISTEN E. SMITH, ESQ., PATRICK R. BLOOD, ESQ. SARAH MAE KNICKERBOCKER, ESQ. Assistant Corporation Counsel, Corporation Counsel of the City of Syracuse Attorney for Defendant.
JERRY SLAUGHTER Plaintiff, pro se.
KRISTEN E. SMITH, ESQ., PATRICK R. BLOOD, ESQ. SARAH MAE KNICKERBOCKER, ESQ. Assistant Corporation Counsel, Corporation Counsel of the City of Syracuse Attorney for Defendant.
DECISION AND ORDER
THÉRÈSE WILEY DANCKS, UNITED STATES MAGISTRATE JUDGE.
I. INTRODUCTION
Jerry Slaughter (“Plaintiff”), proceeding pro se, commenced this civil rights action under 42 U.S.C. § 1983 raising claims arising from his September 1, 2017, arrest by Syracuse City Police Officer Colin Mahar (“Defendant” or “Officer Mahar”). (Dkt. Nos. 1, 7.) Defendant now moves for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure on Plaintiff's sole remaining claim for Fourth Amendment false arrest. (Dkt. No. 72.) Plaintiff opposes the motion. (Dkt. No. 78, 83, 85.) For the reasons that follow, Defendant's motion for summary judgment is granted.
II. BACKGROUND
The following relevant facts are undisputed, except where otherwise noted.
On September 1, 2017, at approximately 11:53 a.m., Officer Mahar heard a “shots fired” call relayed over radio Channel Three, the Syracuse Police Department's (“SPD”) frequency for the North Side patrol calls. (Dkt. No. 72-2, Defendant's Statement of Material Facts, at ¶ 1.) The shots fired location was identified as the “intersection of 7th North and Court Streets.” Id. Officer Mahar arrived at the scene and parked his SPD patrol car in front of a green house located at 1303 Court Street. Id. at ¶ 2. As he exited his patrol car, Officer Mahar activated his SPD-issued Body Worn Camera (“BWC”). Id.
Relevant to this action, Officer Mahar's BWC captured approximately one hour, four minutes, and 53 seconds of uninterrupted audio and video footage. (Dkt. No. 72-2 at ¶ 2.)
Officer Mahar crossed the street from where he parked his patrol car and walked toward a group of females standing on the other side of the street. Id. at ¶ 3. The females began describing a drive-by shooting incident that occurred moments before his arrival. Id. As the female witnesses began providing physical descriptions of the shooting victims, three males walked out of the green house at 1303 Court Street and approached Officer Mahar. Id. The three males identified themselves as victims of the shooting: Kyrie Williams, Emmanuel Butler, and Rasheed Butler. Id. at ¶ 4.
All three victims described a black four-door sedan firing in their direction as they walked down the street. Id. at ¶ 5. The victims further described the shooter as a black male wearing an orange jacket or hoodie positioned in the rear left passenger seat. Id.
At approximately 12:05 p.m., Officer Mahar relayed a point of information over Channel Three. Id. at ¶ 6. Specifically, Officer Mahar reported a black four-door sedan traveling from Court Street and “the suspect will be a black male wearing an orange hoodie and he is actually in the back left passenger seat.” Id.
Prior to the “shots fired” call, SPD's Gang Violence Task Force was conducting surveillance operations in the 100 block of Hudson Street. Id. at ¶ 22. At approximately 11:38 a.m., SPD Officer Joseph Commisso (“Officer Commisso”) observed a male known to him as Jamar Long enter a black four-door Honda sedan with what appeared to be a firearm concealed in his waistband. Id. at ¶¶ 24-27. The Honda had a silver or chrome bracket around the rear license plate. Id. at ¶ 27. The Honda then departed. Id. At around 11:58 a.m., Officer Commisso received notification of the “shots fired” near the North Side of Syracuse. Id. at ¶ 28. Officer Commisso then heard SPD Detective Hauck, also assigned to SPD's Gang Violence Task Force, relaying a point of information regarding the shots fired incident including that the suspect vehicle was a four-door black sedan and that a black male wearing an orange hooded sweatshirt was the suspected shooter. Id. at ¶¶ 25, 28.
At 12:09 p.m., Officer Commisso observed Jamar Long returning to Hudson Street in the front passenger seat of the Honda. Id. at ¶ 29. Officer Commisso saw a male in an orange jacket with a hood exit the rear passenger's driver's side of the vehicle, walk in front of the vehicle, and enter the front passenger's side. Id. By that time, Jamar Long was no longer in the vehicle. Id. At no point did Officer Commisso observe anyone exiting the vehicle's driver seat. Id. The black Honda then continued southbound on Hudson Street. Id. at ¶ 31. Officer Commisso advised the SPD's Gang Violence Task Force that the vehicle had arrived and again left the area. Id. SPD Detective Randy Collins radioed that he had picked up on the vehicle, eventually ending up at the S&R Convenience Store located at 301 South Avenue. Id. Officer Commisso proceeded to drive towards the S&R Convenience Store. Id. at ¶ 32.
SPD Detectives William Kittell (“Detective Kittell”) and William Lashomb (“Detective Lashomb”) initiated a felony stop of the vehicle. Id. at ¶ 34. Plaintiff was the driver of the vehicle. Id. When Officer Commisso arrived at the scene, he waked around the vehicle to make sure it matched the vehicle he previously observed on Hudson Street. Id. at ¶ 35. He confirmed the black Honda had the same distinctive license plate bracket as he had observed on Hudson Street. Id. At the scene, the officers ran a search of the vehicle's license plate number. Id. at ¶ 36. The search determined the vehicle owner to be Shabira Scott. Id.
Plaintiff was removed from the vehicle, and Officer Commisso assisted Detectives Kittell and Lashomb in handcuffing Plaintiff. Id. at ¶ 27. Plaintiff remained detained at the scene pending a “show-up identification.” Id.
A “show up identification consists of escorting witnesses to a location where a suspect has been stopped for an in-person identification.” (Dkt. No. 72-10, Defendant's Affidavit, at ¶ 16.)
At approximately 12:12 p.m., Officer Mahar spoke with one of the female witnesses, Shannon Warren, who stated she was on her porch at 1236 Court Street when she observed the shooting. Id. at ¶ 7. Shannon Warren explained that a dark four-door sedan, possibly a greenish color, was heading towards Court Street when she saw a black male's arm sticking out the vehicle with a silver or black gun. Id. She explained the dark colored sedan fired five or six shots at three males walking up 7th North Street. Id. Another witness heard the gun shots and saw the victims running. Id. at ¶ 8.
Officer Mahar and other SPD officers on scene canvassed the area near the intersection of 7th North Street and Court Street and identified multiple 9mm shell casings. Id. at ¶ 9. The officers also found that a tree on the north east side of 7th North Street had been struck three times. Id. Officer Mahar then returned to the three victims. Id. at ¶ 10. The victims again recounted a black four-door sedan fired in their direction and confirmed that a black male wearing an orange jacket fired the shots from the rear left seat of the vehicle. Id.
At approximately 12:19 p.m., Officer Mahar received a radio transmission from SPD's Gang Violence Task Force. Id. at ¶ 11. An officer relayed that “we got ‘em stopped down here at South [Avenue and] Talman [Street] with a black four-door Honda, with an orange . . . jacket on here. Do you guys have any witnesses or victims or anything up there or no?” Id.
Officer Mahar approached the three victims and asked if they would be willing to take a look at a vehicle and suspect that had been stopped at a different location. Id. ¶ at 12. Kyrie Williams and Emmanuel Butler agreed to participate in the show-up identification. Id. at ¶¶ 12, 15, 17.
Thereafter, Officer Mahar informed the other officers on scene that a car matching the description was stopped at South Avenue and Talman Street. Id. at ¶ 13. Officer Mahar transported Kyrie Williams and Emmanuel Butler to 300 Slocum Avenue. Id. at ¶ 14. Upon arrival, Officer Mahar left Emmanuel Butler with another officer while he transported Kyrie Williams to the suspect location for the show-up identification. Id.
At approximately 12:41 p.m., Kyrie Williams positively identified Terry Linen as the male who had fired at them. Id. at ¶ 15. At approximately 12:42 p.m., Kyrie Williams positively identified the black Honda as the vehicle involved in the shooting. Id. During the show-up identification, Kyrie Williams was approximately 100 feet away from the suspect and the black Honda. Id. Officer Mahar observed that the car Kyrie Williams identified was a black four-door sedan. Id. He saw the individual identified as the shooter was wearing an orange hooded jacket. Id.
Upon returning to 300 Slocum Avenue, Officer Mahar told Kyrie Williams not to mention anything to Emmanuel Butler about what he saw. Id. at ¶ 16. He also asked Kyrie Williams to wait until he pulled away before approaching the other officer. Id. Officer Mahar then transported Emmanuel Butler to South Avenue and Tallman Street to conduct a show-up identification. Id.
At approximately 12:49 p.m., from a distance of approximately 100 feet, Emmanuel Butler positively identified Terry Linen as the male who had fired at them and the black Honda. Id. at ¶ 17. Plaintiff was identified as the driver of the Honda. Id. The vehicle identified by both Kyrie Williams and Emmanuel Butler was a black Honda bearing New York license plate number GFV 4894. Id. at ¶ 18. Subsequently, Officer Mahar transported Kyrie Williams and Emmanuel Butler to SPD's Public Safety Building where each victim provided a sworn statement memorializing the incident and the identification. Id. at ¶ 19.
After the positive show-up identification, Plaintiff was arrested by the Gang Violence Task Force Detectives and charged with reckless endangerment in the first degree. Id. at ¶¶ 21, 38. Terry Linen was arrested and charged with criminal possession of a firearm, reckless endangerment in the first degree, and criminal possession of a weapon in the second degree. (Dkt. No. 72-2 at ¶¶ 20, 38.)
In New York, a person is guilty of first degree reckless endangerment “when, under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person.” N.Y. Penal Law § 120.25.
Plaintiff was deposed on August 26, 2020. Id. at ¶ 39. He testified that he is a member of the 110 Gang and was previously convicted of a felony under the Racketeering Influenced and Corrupt Organization ACT (“RICO”) relating to “drugs and violence.” Id.
Plaintiff testified that on September 1, 2017, during the late morning and early afternoon, he operated a black, four-door Honda sedan, New York license plate number GFV 4894, which was registered to Shabira Scott, the mother of his children. Id. at ¶ 40. Plaintiff testified that both Terry Linen and Jamar Long were passengers in the Honda that day. Id. at ¶ 41.
Plaintiff testified that on September 1, 2017, he was involved in a traffic stop initiated by the SPD. Id. at ¶ 42. Plaintiff was the driver; Terry Linen was the passenger. Id. at ¶¶ 42, 44. Plaintiff testified that Officer Mahar did not initiate the traffic stop that lead to his arrest. Id. at ¶ 43. He did not recall seeing Officer Mahar on September 1, 2017, or recall the names of the SPD officers who pulled him over. Id. Plaintiff did not recall what Terry Linen was wearing on September 1, 2017, or the color of Linen's clothing. Id. at ¶ 45.
After the traffic stop, Plaintiff and Terry Linen were detained and transported back to the Public Safety Building by SPD. Id. at ¶ 46. Plaintiff was interviewed and issued Miranda rights. Id. Thereafter, Plaintiff was placed under arrest. Id. During his deposition, Plaintiff did not recall who interviewed him or who provided him with his Miranda rights. Id. at ¶ 47.
On or about September 7, 2017, Plaintiff and Terry Linen were each indicted by an Onondaga County grand jury for criminal possession of a weapon in the second degree (Penal Law § 265.03[3]), criminal possession of a weapon in the second degree (Penal Law § 265.03[1])[b]), attempted assault in the first degree (Penal Law §§ 110.00/120.10[1]), and reckless endangerment in the first degree (Penal Law § 120.25). (Dkt. No. 72-7, Exhibit D, at 2.) In addition, Terry Linen was indicted for criminal possession of a controlled substance in the seventh degree (Penal Law § 220.03). Id. Ultimately, the District Attorney decided not to pursue the charges against Plaintiff. (Dkt. No. 72-5 at 22-23.) Plaintiff is currently incarcerated on unrelated charges stemming from his arrest in January 2018. Id.
B. Procedural History
On March 6, 2019, Plaintiff filed this action against Defendant pursuant to 42 U.S.C. § 1983. (Dkt. No. 1.) On May 6, 2019, this Court granted Plaintiff's request to proceed in forma pauperis and recommended that only his Fourth Amendment false arrest claim against Defendant survived initial review and required a response. (Dkt. No. 5.) It was further recommended that Plaintiff's witness tampering claim be dismissed with prejudice and that his Fourteenth Amendment stigma plus claim under § 1983 and his state law defamation claim be dismissed with leave to amend. Id. No. objections to the Report-Recommendation were filed. However, on May 20, 2019, Plaintiff filed an amended complaint. (Dkt. No. 6.)
By Decision and Order filed July 31, 2019, the Honorable David N. Hurd, United States District Judge, found Plaintiff's amended complaint failed to cure any of the defects identified in the Report-Recommendation, and, therefore, the only claim that survived initial review and required a response was Plaintiff's Fourth Amendment false arrest claim against Defendant. (Dkt. No. 7.) The amended complaint was not accepted for filing, Judge Hurd accepted the Report-Recommendation, and Plaintiff's original complaint remains the operative pleading in this matter. Id. Additionally, because Plaintiff was afforded an opportunity to amend, Plaintiff's state law defamation claim and Fourteenth Amendment stigma plus claim under § 1983 were dismissed with prejudice. Id.
On September 25, 2019, the parties consented to a Magistrate Judge's jurisdiction of the full disposition of this case. (Dkt. Nos. 23, 24.) Defendant's motion for summary judgment, which Plaintiff opposes, is fully briefed. (Dkt. Nos. 72 through 87.) Oral argument was not heard.
III. LEGAL STANDARD
A court “shall grant summary judgment 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); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). A fact is “material” if it “might affect the outcome of the suit under the governing law, ” and is genuinely in dispute “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248.
The party moving for summary judgment bears the initial burden of showing, through the production of admissible evidence, that no genuine issue of material fact exists. Salahuddin v. Gourd, 467 F.3d 263, 272-73 (2d Cir. 2006). The movant may meet this burden by showing that the nonmoving party has “fail[ed] to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
If the moving party satisfies its burden, the nonmoving party must move forward with specific facts showing that there is a genuine issue for trial. Salahuddin, 467 F.3d at 273. In that context, the nonmoving party must do more than “simply show that there is some metaphysical doubt as to the material facts.” Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). “Conclusory allegations, conjecture and speculation . . . are insufficient to create a genuine issue of fact.” Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998).
The Second Circuit has reminded that on summary judgment motions “[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.” Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir. 2005). “At the summary judgment stage, a nonmoving party must offer some hard evidence showing that [his] version of the events is not wholly fanciful.” Id. (citation and internal quotation marks omitted). Accordingly, statements “that are devoid of any specifics, but replete with conclusions, are insufficient to defeat a properly supported motion for summary judgment.” Bickerstaff v. Vassar Coll., 196 F.3d 435, 452 (2d Cir. 1999).
In determining whether a genuine issue of material fact exists, the court must resolve all ambiguities and draw all reasonable inferences against the moving party. Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 309 (2d Cir. 2008). Where a party is proceeding pro se, the court is obligated to “read [the pro se party's] supporting papers liberally, and . . . interpret them to raise the strongest arguments that they suggest.” Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). Nevertheless, a pro se party's “bald assertion, completely unsupported by evidence, is not sufficient to overcome a motion for summary judgment.” Jordan v. Fischer, 773 F.Supp.2d 255, 268 (N.D.N.Y. 2011) (citations and quotation marks omitted).
IV. PLAINTIFF'S FAILURE TO RESPOND TO DEFENDANT'S STATEMENT OF MATERIAL FACTS
While courts are required to give due deference to a plaintiff's pro se status, that status “does not relieve [a pro se] plaintiff of his duty to meet the requirements necessary to defeat a motion for summary judgment.” Jorgensen v. Epic/Sony Records, 351 F.3d 46, 50 (2d Cir. 2003). Local Rule 7.1(a)(3) requires the opposing party to file a response to the movant's Statement of Material Facts. Under the rule, the response “shall mirror the movant's Statement of Material Facts by admitting and/or denying each of the movant's assertions in matching numbered paragraphs. Each denial shall set forth a specific citation to the record where the factual issue arises.” N.Y.N.D. L.R. 7.1(a)(3).
The Local Rules were amended effective January 1, 2021. In the amendment, Local Rule 7.1 was dissected and various subsections were renumbered and relocated to correspond with the appropriate Federal Rule of Civil Procedure. The relevant substance of the rules did not change. In the currently operative version of the Local Rules, Local Rule 56.1 deals with summary judgement motions. However, because Defendant's motion was filed in 2020, the Court refers to the Local Rules as they existed at that time.
Here, Plaintiff failed to challenge the Statement of Material Facts filed by Defendant in the manner required under Local Rule 7.1(a)(3). Where, as in this case, a party has failed to respond to the movant's statement of material facts in the manner required under Local Rule 7.1(a)(3), the facts in the movant's statement to which the plaintiff has not properly responded will be accepted as true (1) to the extent that they are supported by evidence in the record, and (2) provided that the nonmovant, if proceeding pro se, has been specifically advised of the possible consequences of failing to respond to the motion. See Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996).
Defendant provided Plaintiff with the requisite notice of the consequences of his failure to respond to the motion. (Dkt. No. 72-13; see also Dkt. No. 81.)
Accordingly, the facts set forth in Defendant's Statement of Material Facts (Dkt. No. 72-2) that are supported by record evidence and are uncontroverted by nonconclusory allegations in Plaintiff's verified complaint will be accepted as true. See McAllister v. Call, No. 9:10-CV-610 (FJS/CFH), 2014 WL 5475293, at *3 (N.D.N.Y. Oct. 29, 2014) (finding allegations in plaintiff's verified complaint sufficient to controvert facts in statement of material facts on motion for summary judgment); Douglas v. Perrara, No. 9:11-CV-1353 (GTS/RFT), 2013 WL 5437617, at *3 (N.D.N.Y. Sept. 27, 2013) (“Because Plaintiff has failed to raise any question of material fact, the Court will accept the facts as set forth in Defendant's' Statement of Facts Pursuant to Rule 7.1(a)(3) . . . supplemented by Plaintiff's verified complaint . . . as true.”). As to any facts not contained in Defendant's Statement of Material Facts, in light of the procedural posture of this case, the Court is “required to resolve all ambiguities and draw all permissible factual inferences” in favor of Plaintiff. Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003).
V. DISCUSSION
Defendant seeks summary judgment dismissing Plaintiff's Fourth Amendment false arrest claim against him on the ground that Plaintiff's arrest was supported by probable cause. (Dkt. No. 72-1 at 7-12.) Defendant also seeks qualified immunity. Id. at 12-14.
Citations to page numbers in the filings refer to the pagination CM/ECF automatically generates.
A. False Arrest
To prevail on a Fourth Amendment false arrest claim, a plaintiff must establish that: “(1) the defendant intended to confine him, (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not consent to the confinement, and (4) the confinement was not otherwise privileged.” Ackerson v. City of White Plains, 702 F.3d 15, 19 (2d Cir. 2012) (citing Broughton v. State, 373 N.Y.S.2d 87 (1975)). “The existence of probable cause to arrest constitutes justification and ‘is a complete defense to an action for false arrest.'” Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996) (quoting Bernard v. United States, 25 F.3d 98, 102 (2d Cir. 1994)). Probable cause exists when an officer has “knowledge or reasonably trustworthy information of facts and circumstances that are sufficient to warrant a person of reasonable caution in the belief that the person to be arrested has committed or is committing a crime.” Jaegly v. Couch, 439 F.3d 149, 152 (2d Cir. 2006) (quoting Weyant, 101 F.3d at 852). In analyzing probable cause, a court “must consider those facts available to the officer at the time of the arrest and immediately before it.” Panetta v. Crowley, 460 F.3d 388, 395 (2d Cir. 2006). A court “should look to the ‘totality of the circumstances' and ‘must be aware that probable cause is a fluid concept-turning on the assessment of probabilities in particular factual contexts-not readily, or even usefully, reduced to a neat set of legal rules.'” Id. (quoting Caldarola v. Calabrese, 298 F.3d 156, 162 (2d Cir. 2002)).
“[I]t is well-established that a law enforcement official has probable cause to arrest if he received his information from some person, normally the putative victim or eyewitness, ” unless the circumstances raise doubt as to the person's veracity. Id. (citations omitted); see also Singer v. Fulton Cty. Sheriff, 63 F.3d 110, 119 (2d Cir. 1995). “The collective knowledge doctrine provides that, for the purpose of determining whether an arresting officer had probable cause to arrest, ‘where law enforcement authorities are cooperating in an investigation, . . . the knowledge of one is presumed shared by all.'” Savino v. City of New York, 331 F.3d 63, 74 (2d Cir. 2003) (quoting Illinois v. Andreas, 463 U.S. 765, 772 n.5 (1983)). Moreover, “in New York, if the Grand Jury returns an indictment against the plaintiff, a presumption exists that his arrest and indictment were procured with probable cause.” Rivers v. O'Brien, 83 F.Supp.2d 328, 335 (N.D.N.Y. 2000). The fact that the criminal charges are subsequently dismissed is not relevant to the determination of probable cause to arrest. Danforth v. City of Syracuse, No. 09-CV-307, 2012 WL 4006240, at *7 (N.D.N.Y. Sept. 12, 2012).
In this case, the uncontested evidence shows that when Plaintiff was arrested, Defendant had the following information in his possession. Immediately after arriving on-scene to the “shots fired” call at the intersection of 7th North Street and Court Street, several female witnesses approached Officer Mahar and began providing physical descriptions of three male shooting victims. (Dkt. No. 72-2 at ¶ 3.) Moments later, three males walked out of a house, approached Officer Mahar, and identified themselves as the victims of the drive by shooting. Id. at ¶¶ 3-4. All three victims related that, while they were walking down the street, a black male wearing an orange jacket or hoodie fired a gun in their direction from the rear passenger seat of a black four-door sedan. Id. at ¶ 5. Based on this information, Officer Mahar relayed over an SPD radio channel a point of information: that the shots fired suspect was a “black male wearing an orange hoodie” in the “back left passenger seat” of a “black four-door sedan.” Id. at ¶ 6. Officer Mahar again spoke with witnesses who provided consistent accounts relative to the victims, the gunshots, and the description of a black male firing from a dark colored sedan. Id. at ¶¶ 7-8. As other officers arrived on the scene, multiple shell casings were identified near the intersection of 7th North Street and Court Street. Id. at ¶ 9.
Additionally, and prior to the “shots fired” call, Officer Commisso observed a male known to him as Jamar Long enter a black four-door Honda sedan with what appeared to be a firearm concealed in his waistband on Hudson Street. Id. at ¶¶ at 24-27. After the “shots fired” call and after Officer Mahar relayed the point of information, Officer Commisso observed Jamar Long return to Hudson Street in the black four-door Honda. Id. at ¶ 29. This time, Officer Commisso noticed another male passenger in the rear driver's side of the vehicle wearing an orange jacket with a hood. Id. Jamar Long exited the front passenger side of vehicle while the orange-hooded male moved himself to the front passenger seat. Id. ¶ 29. At no time did Officer Commisso observe the driver exit the vehicle. Id. at ¶ 30. Based on the accumulated information and observations, SPD officers initiated a traffic stop of the Honda, which Plaintiff was driving. Id. ¶ 33.
Viewed in conjunction, Officer Mahar's findings and Officer Commisso's surveillance of a black four-door Honda sedan with a distinctive license plate bracket and multiple male occupants-one wearing an orange hooded shirt and another who appeared to have a firearm- established probable cause to arrest Plaintiff, even if the charges against him were later dismissed. See Morris v. Johnson, No. 1:17-cv-00371 (BKS/DJS), 2020 WL 4365606, at *5 (N.D.N.Y. July 30, 2020) (granting summary judgment to police officers where they were armed with “reasonably trustworthy information” that the plaintiff had committed a crime and nothing in the record “raised doubt as to the witnesses' veracity”); LaFever v. Clark, __F.Supp.3d__, No. 3:17-CV-1206 (DNH), 2021 WL 921688, at *17 (N.D.N.Y. Mar. 11, 2021) (granting summary judgment to officers who were entitled to rely on their own observations as well as information they received from witnesses and victims). Additionally, Plaintiff was indicted on charges for, inter alia, reckless endangerment in the first degree, which creates a presumption that his arrest was procured with probable cause. See Rivers, 83 F.Supp.2d at 335.
Here, even when viewed in the light most favorable to Plaintiff, no reasonable juror could conclude that the SPD officers lacked probable cause to arrest Plaintiff for reckless endangerment in the first degree. Because probable cause is a complete defense to a false arrest claim, Plaintiff's Fourth Amendment false arrest claim against Officer Mahar fails as a matter of law.
Moreover, to the extent Plaintiff challenges that the show-up identification, which positively confirmed the black sedan, the orange hooded passenger, and Plaintiff as the driver during the shooting, was “unnecessarily suggestive”, and/or that Officer Mahar “tampered with witnesses during this course of his investigation, ” based on the foregoing, probable cause nonetheless supported Plaintiff's arrest based upon the officers' collective knowledge and findings prior to the show-up identification. (Dkt. No. 72-2 at 10-12; Dkt. Nos. 1 at 5, 78 at 1.)
During Plaintiff's criminal proceedings, inter alia, Onondaga County Court Judge Thomas J. Miller granted Plaintiff's motion to suppress an in-court identification at trial based on the show-up identifications. (Dkt. No. 72-6, Exhibit C, at 15, 20.) As pointed out by Defendant, in ruling in Plaintiff's favor after a suppression hearing, Judge Miller found that a certain pre-identification conversation among Officer Mahar and other officers may have “pre-conditioned” the victims to make an identification despite Officer Mahar's later advisement against any such pre-conditioning. (See Dkt. No. 72-1 at 1.) Judge Miller concluded that although “Officer Mahar and other members of SPD acted in good faith at all times” in facilitating the identification in an independent and unbiased manner, “the totality of the circumstances leads to the inexplicable finding that the procedures were unnecessarily suggestive.” (Dkt. No. 72-6 at 16-17.)
Accordingly, Defendant is granted summary judgment on Plaintiff's Fourth Amendment false arrest claim.
B. Qualified Immunity
The doctrine of qualified immunity generally protects governmental officials from civil liability “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In determining if a particular right was clearly established, the Court “looks to whether (1) it was defined with reasonable clarity, (2) the Supreme Court or the Second Circuit has confirmed the existence of the right, and (3) a reasonable defendant would have understood that his conduct was unlawful.” K.D. ex rel. Duncan v. White Plains School Dist., No. 11 Civ. 6756, 2013 WL 440556, at *10 (S.D.N.Y. Feb. 5, 2013) (citing Doninger v. Niehoff, 642 F.3d 334, 345 (2d Cir. 2011)).
Because qualified immunity is “‘an immunity from suit rather than a mere defense to liability, '” the Supreme Court has “‘repeatedly . . . stressed the importance of resolving immunity questions at the earliest possible stage in litigation.'” Pearson v. Callahan, 555 U.S. 223, 231-32 (2009) (citations omitted). In the case of probable cause, the Second Circuit has held that an officer is entitled to qualified immunity if he can show “arguable probable cause” for the arrest. Crenshaw v. City of Mt. Vernon, 372 Fed.Appx. 202, 205 (2d Cir. 2010). “Arguable probable cause . . . exists when a reasonable police officer in the same circumstances and possessing the same knowledge as the officer in question could have reasonably believed that probable cause existed in the light of well established law.” Id. (quoting Droz v. McCadden, 580 F.3d 106, 109 (2d Cir. 2009) (per curiam) (other quotations omitted)).
In deciding whether arguable probable cause existed, the court examines whether “‘(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.'” Id. (quoting Escalera v. Lunn, 361 F.3d 737, 743 (2d Cir. 2004) (quoting Golino v. City of New Haven, 950 F.2d 864, 870 (2d Cir. 1991)) (internal quotation marks omitted)). Even in situations in which an officer reasonably but mistakenly concludes that probable cause exists, “‘the officer is nonetheless entitled to qualified immunity.'” Id. (quoting Caldarola, 298 F.3d at 162).
Based on all the information above, even assuming that probable cause did not exist, Defendant would have reasonably believed arguable probable cause existed with respect to Plaintiff's arrest in connection with the September 1, 2017, drive-by shooting. See Martinez v. Simonetti, 202 F.3d 625, 635 (2d Cir. 2000) (holding that “[i]t is not unreasonable for police officers to rely on the accounts provided by other officers at the scene” in “making the probable cause determination”); Falls v. Rude, No. 17-CV-1339 (VB), 2019 WL 3715087, at *8 (S.D.N.Y. Aug. 7, 2019) (relying on “a particularly distinctive feature of plaintiff's clothing” and the fact that he was observed “traveling in the direction in which the suspect was reportedly heading” to hold that defendants were entitled to qualified immunity on the plaintiff's false arrest claim). Therefore, Defendant is entitled to qualified immunity. See Caldarola, 298 F.3d at 162 (“in situations where an officer may have reasonably but mistakenly concluded that probable cause existed, the officer is nonetheless entitled to qualified immunity”).
C. Plaintiff's Opposition Submission
The Court notes that in his sur-reply, filed without permission, but considered nevertheless, Plaintiff references for the first time a “Malicious Prosecution Claim” against Defendant and also requests that he be allowed to “pursue his tampering claims as well as his Fourteenth Amendment stigma plus claim under [§] 1983 and his state law defamation claim.” (Dkt. No. 78 at 2-3.) However, as noted, the only claim that survived the Court's sua sponte review was the Fourth Amendment false arrest claim; a malicious prosecution claim against Officer Mahar is not part of the present action; and Plaintiff's witness tampering, state law defamation, and Fourteenth Amendment stigma plus claims were dismissed with prejudice. (Dkt. No. 7.)
It is well settled that a litigant may not raise new claims not contained in the complaint in opposition to a motion for summary judgment. See Avillan v. Donahoe, 483 Fed.Appx. 637, 639 (2d Cir. 2012) (holding that the district court did not err in disregarding allegations the plaintiff raised for the first time in response to the defendant's motion for summary judgment) (citation omitted); Shah v. Helen Hayes Hosp., 252 Fed.Appx. 364, 366 (2d Cir. 2007) (holding that “[a] party may not use his or her opposition to a dispositive motion as a means to amend the complaint”) (citation omitted); Jackson v. Onondaga Cty., 549 F.Supp.2d 204, 219-20 (N.D.N.Y.2008) (holding that a pro se plaintiffs civil rights complaint should not be effectively amended by his new allegations presented in his response to the defendants' motion for summary judgment).
Accordingly, Plaintiffs opposition submissions are insufficient to defeat Defendant's motion for summary judgment.
VI. CONCLUSION
After carefully reviewing the entire record in this matter, the parties' submissions and the applicable law, and for the above-stated reasons, it is hereby
ORDERED that Defendant's motion for summary judgment (Dkt. No. 72) is GRANTED; and it is further
ORDERED that Plaintiffs complaint (Dkt. No. 1) is DISMISSED in its ENTIRETY; and it is further
ORDERED that the Court Clerk provide Plaintiff with a copy of this Decision and Order, along with copies of the unpublished decisions cited herein in accordance with the Second Circuit decision in LeBron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam); and it is further
ORDERED that the Court Clerk is directed to enter judgment in favor of Defendant and close this case.