Sessoms v. The County of Suffolk

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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:

:

RAHEEM SESSOMS, :

: 20-CV-509-ARR-SJB

Plaintiff, :

: NOT FOR ELECTRONIC OR

-against- : PRINT PUBLICATION

:

THE COUNTY OF SUFFOLK, SUFFOLK COUNTY : OPINION & ORDER

POLICE DETECTIVE PETER BARBA, and :

UNIDENTIFIED SUFFOLK COUNTY POLICE :

OFFICERS #1-10, :

:

Defendants. :

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ROSS, United States District Judge:

Defendants move for summary judgment on all claims advanced by plaintiff Raheem

Sessoms. For the reasons set forth below, I grant the motion in its entirety.

BACKGROUND1

On the evening of May 27, 2017, plaintiff entered Vin’s Ultimate Hair Care in Central

Islip, New York. Defs.’ Rule 56.1 Statement in Supp. Mot. Summ. J. ¶¶ 1–2 (“Defs.’ 56.1”),

ECF No. 49-2. While the barber, Vincent Carr, was giving Sessoms a haircut, two individuals

1 The following facts are taken from the parties’ filings, depositions, declarations, exhibits, and

respective Local Rule 56.1 statements of facts. See Nnebe v. Daus, 644 F.3d 147, 155–56 (2d

Cir. 2011). Citations to a party’s 56.1 statement incorporate the evidentiary materials cited

therein. Unless otherwise noted, where a party’s Rule 56.1 statement is cited, that fact is

undisputed or the opposing party has not pointed to any evidence in the record to contradict it.

See E.D.N.Y. Local Civil Rule 56.1(c) (“Each numbered paragraph in the statement of material

facts set forth in the statement required to be served by the moving party will be deemed to be

admitted for purposes of the motion unless specifically controverted by a correspondingly

numbered paragraph in the statement required to be served by the opposing party.”); id. Rule

56.1(d) (“Each statement by the movant or opponent . . . controverting any statement of material

fact[] must be followed by citation to evidence which would be admissible, set forth as required

by Fed. R. Civ. P. 56(c).”).Plaintiff disputes the admissibility of much of defendants’ evidence. I

address plaintiff’s admissibility arguments in Section I, infra.

came to the door. Id. ¶ 5. According to Carr’s statement to the Suffolk County Police

Department, these two individuals told him that Sessoms was their cousin and Carr let them into

the store. Id. ¶ 6; Decl. of Stacy Skorupa in Supp. Mot. Summ. J. (“Skorupa Decl.”), Ex. A

(“Carr Statement”) 1, ECF No. 49-4; see also Pl.’s Rule 56.1 Statement in Opp’n Mot. Summ. J.

¶ 6 (“Pl.’s 56.1”), ECF No. 49-17 (disputing the admissibility of Carr’s statement but agreeing he

told police this information). The two individuals then pulled out pistols, pointed them at Carr,

ordered him to the ground, hit him in the back of the head with one of the guns, and robbed him.

Defs.’ 56.1 ¶¶ 6–7. Carr told police that Sessoms continued to sit in the chair while the robbery

occurred and that Sessoms was not robbed. Id. ¶ 8; Carr Statement 1.

Detective Sergeant John Diffley and Detective Steven Ziegler responded to the scene of

the robbery, joining uniformed officers already on the scene. Defs.’ 56.1 ¶ 10. The police

stopped another man, Parish Tomoney, and Carr identified him as one of the two robbers,

although the parties dispute which police officer took Tomoney into custody, and when. Id. ¶ 11;

Pl.’s 56.1 ¶ 11 (noting that Diffley did not witness the arrest and Ziegler did not interact with

Tomoney until they returned to the police precinct). Tomoney was apprehended in Sessoms’s car

with proceeds of the robbery.2 Defs.’ 56.1 ¶ 12. Tomoney confessed to police and was charged

with Robbery in the First Degree. See Skorupa Decl., Ex. C, ECF No. 49-6.

2 Plaintiff disputes this fact as not a product of admissible evidence and also contends that the

fact that it was plaintiff’s car is not established by the documentary evidence in the case. See

Pl.’s 56.1 ¶ 12. I address plaintiff’s admissibility arguments in Section I, infra. The documentary

evidence makes clear that defendant Detective Barba had been informed that Tomoney was in

plaintiff’s car when Tomoney was apprehended, because otherwise Barba could not have

informed Sessoms of this fact. See Skorupa Decl., Ex. E (“Sessoms Felony Compl.”), ECF No.

49-8 (reflecting Sessoms’s response to being informed that one of the robbers was found in his

car). Mr. Tomoney’s statement to police also suggests that he was apprehended in the car. See

Skorupa Decl., Ex. D (“Tomoney Statement”) 1–2, ECF No. 49-7 (“I was alone in the car when

the cops pulled up . . . .”).

Detective Ziegler interviewed Carr at the scene and later at the police precinct. Defs.’

56.1 ¶¶ 15, 21. Plaintiff initially told officers that because he was on parole, he was not allowed

to speak with police without permission. Id. ¶ 25. Once an officer spoke with the officer handling

Sessoms’s parole, Sessoms voluntarily accompanied police to the precinct to make a statement.

See Defs.’ 56.1 ¶ 27; Pl.’s 56.1 ¶ 27. Upon returning to the precinct, Detective Ziegler requested

Detective Barba’s assistance with the investigation, including interviewing Sessoms. Defs.’ 56.1

¶ 31. During the interview, Sessoms told Detective Barba that he had told officers that his phone

had been taken in the robbery. Id. ¶ 35. At the conclusion of the interview, Detective Barba

arrested Sessoms and subsequently swore a felony complaint against Sessoms for Robbery in the

First Degree. Id. ¶ 33; Sessoms Felony Compl. In Tomoney’s confession dated May 28, 2017,

Tomoney stated that after the robbery, he “ran back to the car [he] came in,” but refused to

explicitly name any co-conspirator. See Tomoney Statement 1–2.

The criminal case against Mr. Sessoms was dismissed on January 26, 2018. See Am.

Compl. ¶ 21, ECF No. 10. Plaintiff asserts claims for false arrest, abuse of process, and

malicious prosecution against Detective Barba pursuant to 42 U.S.C. § 1983, and a municipal

liability claim against Suffolk County under the same statute. See generally id.

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 judgment as a matter of law.” Fed. R.

Civ. P. 56(a). The function of the court at this juncture is not to resolve disputed issues but rather

to determine whether there is a genuine issue to be tried. Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 249 (1986). A genuine issue of material fact exists “if the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.” Id. at 248. In determining

whether a genuine issue of material fact exists, “[t]he evidence of the nonmovant is to be

believed” and the court must draw “all justifiable inferences” in favor of the nonmoving party.

Id. at 255 (citation omitted). “In reviewing the evidence and the inferences that may reasonably

be drawn, [I] may not make credibility determinations or weigh the evidence. . . . Credibility

determinations, the weighing of the evidence, and the drawing of legitimate inferences from the

facts are jury functions, not those of a judge.” Proctor v. LeClaire, 846 F.3d 597, 607–08 (2d

Cir. 2017) (omission in original) (citations and internal quotation marks omitted). “While

genuineness runs to whether disputed factual issues can reasonably be resolved in favor of either

party, . . . materiality runs to whether the dispute matters, i.e., whether it concerns facts that can

affect the outcome under the applicable substantive law.” McPherson v. Coombe, 174 F.3d 276,

280 (2d Cir. 1999) (alteration in original) (quotation omitted).

Once the moving party has shown that there is no genuine issue as to any material fact

and that it is entitled to a judgment as a matter of law, “the nonmoving party must come forward

with specific facts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal quotation marks omitted). The moving

party “may obtain summary judgment by showing that little or no [admissible] evidence may be

found in support of the nonmoving party’s case.” Gallo v. Prudential Residential Servs., Ltd.

P’ship, 22 F.3d 1219, 1223–24 (2d Cir. 1994); Fed. R. Civ. P. 56(c)(1)(B). The nonmovant “may

not survive summary judgment merely by conjuring a hypothetical issue of material fact.”

Robinson v. Concentra Health Servs., Inc., 781 F.3d 42, 44 (2d Cir. 2015). In other words, the

nonmoving party “must do more than simply show that there is some metaphysical doubt as to

the material facts[] and may not rely on conclusory allegations or unsubstantiated speculation.”

Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir. 2011) (citations and internal quotation

marks omitted).

DISCUSSION

I. The Sources of Detective Barba’s Knowledge Are Admissible

Many of plaintiff’s arguments rely upon the facts that Detective Barba did not himself

interview Mr. Carr, that Detective Ziegler and Detective Sergeant Diffley did not personally find

Mr. Tomoney in plaintiff’s vehicle, and other objections based upon lack of personal knowledge.

See, e.g., Pl.’s 56.1 ¶ 6 (contending Carr’s statement to police describing the robbery is not

admissible), ¶ 12 (contending evidence that “Tomoney was located and arrested in the car that

belonged to Sessoms” is not admissible because Diffley did not witness it and Ziegler arrived

after Tomoney had been taken into custody), ¶ 35 (contending the basis of probable cause listed

in defendants’ Rule 56.1 statement is not supported by admissible evidence). Plaintiff contends

that “[n]one of the police witnesses nor [d]efendant Barba have ‘personal knowledge’ and

therefore all statements attributed to them in [d]efendants’ Rule 56.1 statement are inadmissible.”

Pl.’s Mem. in Opp’n Mot. Summ. J. 12 (“Pl.’s Opp’n”), ECF No. 49-16.

Plaintiff’s arguments fail to explain why the “fellow officer” doctrine should not apply.

In general, “when making a probable cause determination,” police officers are “entitled to rely

on the allegations of fellow police officers.” Martinez v. Simonetti, 202 F.3d 625, 634 (2d Cir.

2000). The arresting officer need not be the direct recipient of information bearing on probable

cause; the “primary focus . . . is whether the law enforcement officers . . . on whose instructions

or information the actual . . . arresting officer[] relied, had information that would provide

reasonable suspicion or probable cause to search or arrest the suspect.” United States v. Colon,

250 F.3d 130, 135–36 (2d Cir. 2001). Plaintiff’s argument on this front is that “where an arrest is

challenged for lack of probable cause, reliance on information from another officer does ‘not

create probable cause to justify the arresting officer’s actions.’” Pl.’s Opp’n 11 (quoting Jackson

v. City of New York, 939 F. Supp. 2d 235, 256 (E.D.N.Y. 2013)). However, this is an over-

reading of the holding in Jackson, which declined to apply the fellow officer rule based on the

factual circumstances—the reporting officer had ambiguously requested “non-emergency

backup” and no evidence in the case clarified what information was reported to the arresting

officers. 939 F. Supp. 2d at 256–57. Jackson did not hold that, merely because the plaintiff

alleged there was no probable cause to arrest, the fellow officer rule did not apply.

At the time of Sessoms’s arrest, Detective Barba had been told that Mr. Tomoney was

found in plaintiff’s car, see Sessoms Felony Compl. Moreover, Barba was present when Mr. Carr

told Detective Ziegler that Sessoms was not robbed, see Barba Dep. Tr. 26:13–23, 27:22–28:3,

Skorupa Decl., Ex. G, ECF No. 49-10 (testifying that he witnessed Carr’s statement to Zeigler

until “[Carr] said that they left the barber shop”). The first piece of information is comfortably

within the fellow officer rule, and the second was personally witnessed and is not hearsay

because it is offered for its effect on Detective Barba’s investigation, not to prove the truth of

whether or not Sessoms was robbed. See Fed. R. Evid. 801(c)(2).

II. Probable Cause to Arrest Existed Based on Undisputed Facts

A. Applicable Law

Sessom’s § 1983 claim for false arrest derives from his Fourth Amendment right to

remain free from unreasonable seizures, including the right to be free from arrest without

probable cause. See Jaegly v. Couch, 439 F.3d 149, 151 (2d Cir. 2006). “In analyzing § 1983

claim for unconstitutional false arrest, [courts] have generally looked to the law of the state in

which the arrest occurred.” Davis v. Rodriguez, 364 F.3d 424, 433 (2d Cir. 2004). Under New

York law, a finding of probable cause to arrest “is an absolute defense to a false arrest claim.”

Soto v. City of New York, 132 F. Supp. 3d 424, 444 (E.D.N.Y. 2015) (quoting Stansbury v.

Wertman, 721 F.3d 84, 89 (2d Cir. 2013)). Probable cause to arrest exists where the arresting

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.” Swartz v. Insogna, 704 F.3d 105, 111 (2d Cir. 2013)

(quotation omitted). The inquiry focuses on “only those facts available to the [arresting] officer

at the time of the arrest and immediately before it.” Stansbury, 721 F.3d at 89 (emphasis added)

(quotation omitted). An arresting officer is “not required to explore and eliminate every plausible

claim of innocence before making an arrest.” Jaegly, 439 F.3d at 153. Further, “[p]robable cause

can exist solely based on information from an alleged victim . . . ‘unless circumstances raise

doubt as to the person’s veracity.’” Carthew v. County of Suffolk, 709 F. Supp. 2d 188, 197

(E.D.N.Y. 2010) (quoting Curley v. Village of Suffern, 268 F.3d 65, 69–70 (2d Cir. 2001)).

Under New York law, “[a] person is guilty of robbery in the first degree when he forcibly

steals property and when, in the course of the commission of the crime . . . he or another

participant” either “[c]auses serious physical injury to any person who is not a participant in the

crime; or [i]s armed with a deadly weapon; or [u]ses or threatens the immediate use of a

dangerous instrument; or [d]isplays what appears to be a pistol . . . .” N.Y. Penal Law § 160.15.

B. Discussion

Plaintiff argues that there is a dispute of fact as to the veracity of Mr. Carr’s statements to

police under the circumstances. Sessoms contends that because Carr told police that he did not

see the robbers “at all,” Detective Barba should have doubted the accuracy of Carr’s statements

about Sessoms because “[Carr] was not in a position to observe if they robbed the [p]laintiff or

not.” Pl.’s Opp’n 12 (quoting Carr Statement). Plaintiff’s reliance on Carr’s statement that he did

not see the robbers “at all” is misplaced. First, reading Mr. Carr’s statement in context reveals

that he told Detective Ziegler that he didn’t see the robbers “at all” when they fled the barber

shop, not throughout the robbery. See Carr Statement 1 (“I did not see them leave from where I

was laying down, I heard the door close and I didn’t see them at all.”). Second, Detective Ziegler

testified that he interviewed Mr. Carr concerning his position within the barber shop during the

robbery and learned that Carr laid on the ground directly in front of the chair plaintiff was sitting

in, with his left cheek on the ground and the right facing the ceiling, such that he could see

plaintiff during the robbery. See, e.g., Zeigler Dep. Tr. 93:9–94:20, Skorupa Decl., Ex. I, ECF

No. 49-12. Although police are “not required to eliminate every possible line of impeachment

that might apply to a victim complainant,” Koester v. Lanfranchi, 288 F. App’x 764, 766 (2d Cir.

2008), Detective Zeigler did so here, and plaintiff has not raised a dispute as to Zeigler’s account

of Carr’s explanation of how he could see Sessoms during the robbery. Accordingly, Mr.

Sessoms has not raised a dispute of material fact as to Mr. Carr’s veracity.

Based on the information known to Detective Barba at the time he arrested plaintiff,

probable cause existed for Mr. Sessoms’s arrest on the charge of Robbery in the First Degree.

The commission of this crime is not disputed—the parties agree Tomoney and another individual

entered the barber shop, drew guns, and took property from Mr. Carr. The only dispute is

whether there was sufficient information known to Detective Barba at the time of plaintiff’s

arrest to conclude that plaintiff was also a participant. When he arrested plaintiff, Barba knew

both that Tomoney was found in Sessoms’s car with robbery proceeds and was told by Carr that

Sessoms had not been robbed and did not move while the robbery took place.3 Barba was

entitled to rely on fellow officers’ and the victim’s allegations in determining to arrest Sessoms.

Simonetti, 202 F.3d at 634.

3 Defendants also characterize the evidence as demonstrating that it “appeared Tomoney was

waiting for the owner of the vehicle to come back and take him” when he was arrested. Defs.’

56.1 ¶ 35. I have reviewed the portion of the record cited for this proposition and find no support

for it. See Barba Dep. Tr. 82:2–84:25. Similarly, plaintiff contends the record shows that he was

also a victim of the robbery, see Pl.’s Opp’n 6–7, but there is no suggestion in the record that he

told police that anything other than his cell phone was taken.

This information provided sufficient probable cause to arrest plaintiff. First, in cases

where a victim directly identifies a perpetrator, that statement alone can provide probable cause

to arrest. See O’Brien v. City of Yonkers, No. 07-CV-3974 (KMK) (LMS), 2013 WL 1234966, at

*9 (S.D.N.Y. Mar. 22, 2013) (collecting cases). Although Carr did not directly identify Sessoms

as a perpetrator, his description of plaintiff’s behavior and the robbers’ inattention to plaintiff

strongly supports the inference that Sessoms was a participant in the robbery. Second, a

perpetrator of the robbery was found in plaintiff’s car. While “[p]hysical proximity to criminal

behavior without more is insufficient to establish probable cause,” Perez v. Duran, 962 F. Supp.

2d 533, 538 (S.D.N.Y. 2013), this association between Tomoney and Sessoms goes beyond the

paradigm of these cases, which typically involve arrests of suspected drug dealers in “drug-prone

area[s],” see Virgil v. City of New York, No. 17-CV-5100 (PKC) (SMG), 2019 WL 4736982, at

*5 (E.D.N.Y. Sept. 27, 2019) (finding plaintiff’s handshake with another individual in an area

known for drug transactions insufficient to support probable cause).

Nor does the fact that Sessoms informed Detective Barba that his phone had been taken

obviate probable cause to arrest. The mere fact that Sessoms’s story conflicted with Carr’s does

not, standing alone, create a dispute of fact as to whether probable cause existed. “[T]he arresting

officer does not have to prove plaintiff’s version [of events] wrong before arresting him.” Curley,

268 F.3d at 70 (upholding finding of probable cause to arrest where plaintiff and victim told

police conflicting stories); see also Carthew, 709 F. Supp. 2d at 199–200 (fact that officer was

informed by plaintiff that plaintiff was entitled to be on premises insufficient to create factual

dispute as to probable cause to arrest plaintiff where issue was whether plaintiff violated an order

of protection).

C. Other Factual Disputes are Not Material

The other factual disputes identified by plaintiff would not alter a finding of probable

cause. Plaintiff identifies three statements made by Detective Zeigler to the Suffolk County

Police Internal Affairs Unit (“IAU”) about the basis of Sessoms’s arrest, attacking his credibility

by noting that the facts Zeigler referenced as supporting probable cause were not memorialized.

See Pl.’s Opp’n 16 (noting that Zeigler told IAU (1) that Carr stated no property was taken from

Sessoms during the robbery; (2) that Carr told him Sessoms did not confirm or deny that the

robbers were his cousins; and (3) that Zeigler interviewed plaintiff at the scene). However, the

relevant inquiry is what information was known to the arresting officer—Detective Barba—at

the time of the arrest. Stansbury, 721 F.3d at 89. The fact that Detective Zeigler did not

memorialize certain facts he recalled in a subsequent IAU investigation thus has no impact on

the analysis of Detective Barba’s knowledge.

Plaintiff also raises a factual dispute as to whether he made an “admission” to Detective

Barba. Upon being told that Mr. Tomoney was found in his car, plaintiff responded “[o]ne of the

guys was arrested in my car?” Sessoms Felony Compl. Detective Barba testified that plaintiff

was “surprised” when he made this statement. Barba Dep. Tr. 22:1–8. In the felony complaint,

Barba described Sessoms’s statement as an “oral admission.” Sessoms Felony Compl. This

ambiguous statement admits of two interpretations: (1) that plaintiff was truly surprised that a

perpetrator of the robbery was in his car, or (2) Detective Barba’s apparent interpretation that

plaintiff was surprised because his co-conspirator in the crime had been apprehended in his

vehicle. On summary judgment, I take all justifiable inferences in the non-movant’s favor and

therefore accept the former interpretation. However, this dispute is not material. As already

discussed, the totality of the circumstances in this case supports the finding of probable cause to

arrest Sessoms. Plaintiff’s reaction when informed of the fact that Parish Tomoney was found in

his car would not impact the finding of probable cause to arrest, and accordingly this factual

dispute does not defeat summary judgment. See Jaegly, 439 F.3d at 153 (finding no reasonable

jury could find lack of probable cause even where plaintiff “claimed that he had a valid

explanation for his actions” prior to arrest).

Finally, plaintiff notes that his lack of conviction on the charged count is admissible

evidence as to the lack of probable cause. Pl.’s Opp’n 14. “[E]vidence of a subsequent dismissal

. . . [is] admissible to refute [the affirmative defense] of justification” for arrest. Weyant v. Okst,

101 F.3d 845, 852 (2d Cir. 1996) (quoting Broughton v. State, 37 N.Y.2d 451, 458 (1975)).

Plaintiff does not explain how the dismissal of charges against him refutes the other evidence of

probable cause in this case. The certificate of disposition merely reflects that the dismissal was in

the interests of justice. See Decl. of Amy Marion in Opp’n Mot. Summ. J., Ex. 2, ECF No. 49-

20. Although the case law “allow[s] admission of an acquittal to inform the probable cause

analysis in false arrest claims,” see Morel v. Reed, No. 11-CV-1808 (DLI) (LB), 2015 WL

3755976, at *2 (E.D.N.Y. June 16, 2015) (collecting cases), I am aware of no case in which a

dismissed charge, standing alone, defeated summary judgment on the basis of probable cause. I

find that the dismissal of the charges against plaintiff do not prevent granting summary

judgment.

Taking the evidence in the light most favorable to plaintiff, no reasonable jury could

conclude that probable cause to arrest plaintiff did not exist. In light of the foregoing, I grant

summary judgment to defendants on the false arrest claim.

III. Probable Cause Also Forecloses the Malicious Prosecution Claim

A malicious prosecution claim requires that a plaintiff show “(1) that the defendant

commenced or continued a criminal proceeding against him; (2) that the proceeding was

terminated in the plaintiff’s favor; (3) that there was no probable cause for the proceeding; and

(4) that the proceeding was instituted with malice.” Droz v. McCadden, 580 F.3d 106, 109 (2d

Cir. 2009) (quotation omitted). To convert a state law malicious prosecution claim into a

violation of federal law redressable by § 1983, a plaintiff must also “show that [a] seizure [of

their person] resulted from the initiation or pendency of judicial proceedings,” violating the

Fourth Amendment. Rohman v. N.Y.C. Trans. Auth., 215 F.3d 208, 215 (2d Cir. 2000). As to

probable cause, for the purposes of a malicious prosecution claim, probable cause “is assessed in

light of facts known or reasonably believed at the time the prosecution was initiated,” rather than

at the time of arrest. Carthew, 709 F. Supp. 2d at 202 (internal quotation marks omitted). “[A]

malicious prosecution claim will be defeated by a finding of probable cause to arrest, unless the

plaintiff can demonstrate mitigating facts to vitiate probable cause which were first uncovered

after the arrest.” Drummond v. Castro, 522 F. Supp. 2d 667, 678 (S.D.N.Y. 2007) (quotation

omitted).

It is undisputed that a criminal proceeding was commenced against plaintiff and that it

terminated in his favor. The parties have not addressed the separate element of a seizure of Mr.

Sessoms’s person resulting from the pendency of judicial proceedings, but plaintiff alleged that

he was held in jail for six days “and was forced to return to court for eight months,” which I will

presume is sufficient. Am. Compl. ¶ 20; see also Rohman, 215 F.3d at 216 (finding an allegation

of being forced to return for judicial proceedings sufficient to survive motion to dismiss).

Because I have already found probable cause to arrest, plaintiff can only save his claim

for malicious prosecution by demonstrating the emergence of some mitigating fact that was

discovered following his arrest. Plaintiff has not done so. The only argument plaintiff makes

concerning probable cause from after his arrest is that Detective Barba “told the [assistant district

attorney] that Mr. Sessoms made an admission that Mr. Tomoney was in his car.” Pl.’s Opp’n 15

(quotation omitted). I have already addressed the parties’ dispute over the characterization of

plaintiff’s statement, but the fact that Detective Barba made this statement to the ADA does not

have bearing on probable cause to prosecute plaintiff. If anything, probable cause to charge

plaintiff with robbery became stronger after his arrest, because on the day after Sessoms was

arrested, Parish Tomoney confessed that he went “back to the car [he] came in” after robbing the

barber shop. See Tomoney Statement 1. Accordingly, defendants have shown probable cause to

prosecute plaintiff, and I grant summary judgment on this claim.

IV. Even If No Probable Cause Existed, Detective Barba Is Entitled to Qualified

Immunity Because Arguable Probable Cause Existed

Qualified immunity protects government officials from suit if the official’s “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). “The issues on qualified

immunity are: (1) whether plaintiff has shown facts making out violation of a constitutional

right; (2) if so, whether that right was ‘clearly established’; and (3) even if the right was ‘clearly

established,’ whether it was ‘objectively reasonable’ for the officer to believe the conduct at

issue was lawful.” Gonzalez v. City of Schenectady, 728 F.3d 149, 154 (2d Cir. 2013). “The right

to be free from arrest without probable cause [is] clearly established . . . .” Id. at 157. The right to

be free from unreasonable seizure of one’s person is also clearly established. See Rohman, 215

F.3d at 216 (2d Cir. 2000) (finding plaintiff “sufficiently demonstrated the requisite post-

arraignment restraint of liberty”). Therefore, whether Detective Barba is entitled to qualified

immunity on both the malicious prosecution and false arrest claims will turn on whether his

actions were objectively reasonable. “An officer’s determination [to arrest] is objectively

reasonable if there was ‘arguable’ probable cause at the time of the arrest—that is, if officers of

reasonable competence could disagree on whether the probable cause test was met.” Jenkins v.

City of New York, 478 F.3d 76, 87 (2d Cir. 2006) (internal quotation omitted). “[T]he qualified

immunity test is more favorable to officers than the one for probable cause.” Ackerson v. City of

White Plains, 702 F.3d 15, 21 (2d Cir. 2012) (quotation omitted).

Even if I were to assume that the disputed facts identified by plaintiff were material to the

question of probable cause, it is clear that Detective Barba could have reasonably believed that

probable cause existed to arrest and prosecute Sessoms. When he joined the investigation,

Detective Barba (1) had been told that Tomoney had been found in Sessoms’s vehicle and (2)

had heard Carr’s statement that Sessoms was not robbed and remained in his chair during the

robbery. Reasonable officers in Detective Barba’s position “would, at the least, disagree about

the probable cause determination under these circumstances.” Simonetti, 202 F.3d at 635.

Accordingly, even if probable cause were lacking, I find that Detective Barba is immune from

suit because arguable probable cause existed.

V. Plaintiff’s Claim for Abuse of Process Lacks Evidence

A claim for abuse of process under New York law requires the plaintiff to show that a

defendant “(1) employs regularly issued legal process to compel performance or forbearance of

some act (2) with intent to do harm without excuse [or] justification, and (3) in order to obtain a

collateral objective that is outside the legitimate ends of the process.” Savino v. City of New

York, 331 F.3d 63, 76 (2d Cir. 2003). A malicious abuse of process claim can also be brought via

§ 1983. See id. at 77. As to the “excuse or justification” element, “numerous courts have

recognized that probable cause defeats a claim for abuse of process by demonstrating that a

defendant acted with ‘excuse or justification.’” Cruz v. Reiner, No. 11-CV-2131 (BMC) (SMG),

2011 WL 6204101, at *2 (E.D.N.Y. Dec. 12, 2011) (collecting cases). The requirement of a

collateral objective means that “[a] malicious motive alone . . . does not give rise to a cause of

action for abuse of process.” Curiano v. Suozzi, 63 N.Y.2d 113, 117 (1984). Rather, a defendant

must have “had an improper purpose in instigating the action.” Savino, 331 F.3d at 77 (citing

Dean v. Kochendorfer, 237 N.Y. 384 (1924)). “Accordingly, to state a claim for abuse of

criminal process, it is not sufficient for a plaintiff to allege that the defendants were seeking to

retaliate against him by pursuing his arrest and prosecution. Instead, he must claim that they

aimed to achieve a collateral purpose beyond or in addition to his criminal prosecution.” Id.

I have already ruled that Detective Barba had probable cause both to arrest and initiate

the prosecution of plaintiff. Even if there were not probable cause, plaintiff has not adduced any

evidence that Barba acted with a collateral purpose. Plaintiff contends that he has established

“personal animus” because Detective Barba “deem[ed] Sessoms to be uncooperative because he

asked one of the officers ‘one of the guys was arrested in my car?’” and because Barba testified

that he found Sessoms’s behavior suspicious in part because he told officers he was on parole

and asked to speak to counsel. Pl.’s Opp’n 18. Plaintiff also contends that Detective Zeigler and

Detective Sergeant Diffley, who are not defendants in this case, showed “personal animus”

through their actions. Id. at 18–19. Unlike cases finding “personal animus,” which often involves

abuse of process for purposes of “extortion, blackmail, or retribution,” see Jovanovic v. City of

New York, No. 04-CV-8437 (PAC), 2010 WL 8500283, at *9 (S.D.N.Y. Sept. 28, 2010), plaintiff

merely speculates that because Detective Barba found him “suspicious,” Barba must have had

some unidentified collateral purpose in arresting Sessoms and filing a complaint against him. At

this stage in the proceedings, plaintiff “may not rely on conclusory allegations or unsubstantiated

speculation.” Brown, 654 F.3d at 358 (quotation omitted). I therefore grant summary judgment

on this claim.

VI. Plaintiff Has Failed to Demonstrate Evidence Supporting Municipal Liability

Plaintiff also asserts § 1983 claims against Suffolk County. To do so, he must

demonstrate that the constitutional violations he complains of were caused by a municipal

“policy or custom.” Monell v. Dep’t of Social Servs., 436 U.S. 658, 694–95 (1978). A policy may

be express or can be inferred where “the municipality so failed to train its employees as to

display a deliberate indifference to the constitutional rights of those within its jurisdiction.”

Patterson v. County of Oneida, 375 F.3d 206, 226 (2d Cir. 2004) (quotation omitted). Liability

under Monell is not the same as respondeat superior liability; the municipality must itself have

taken or failed to take some action that renders it liable. Monell, 436 U.S. at 691.

In addition to the lack of a constitutional violation due to the existence of probable cause,

plaintiff does not cite any evidence concerning the existence of an express or implied municipal

“policy or custom” in Suffolk County relevant to his arrest. Plaintiff merely refers to the arrest

and prosecution of former Suffolk County District Attorney Tom Spota and Chief of Public

Integrity Christopher McPartland for, among other things, tampering with an individual’s

constitutional rights. Pl.’s Opp’n 20. Plaintiff contends that these prosecutions demonstrate that

“Suffolk County law enforcement is infamous” and its “notorious violations of the rights of

individuals are endemic.” Id. These facts fail to demonstrate a policy or custom of Suffolk

County that caused the complained-of violations of plaintiff’s constitutional rights; that two

high-ranking individuals in law enforcement in Suffolk County wholly unconnected to this case

were prosecuted in an entirely unrelated action for different violations of constitutional rights is

irrelevant and fails to provide evidence sufficient to support a Monell claim. Accordingly, I grant

summary judgment to Suffolk County on this claim.

CONCLUSION

In light of the foregoing, I grant summary judgment to defendants as to all causes of

action in this case.

SO ORDERED.

Dated: May 1, 2023 /s/

Brooklyn, NY Allyne R. Ross

United States District Judge