Thompson v. The City of New York

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

LARRY THOMPSON,

MEMORANDUM & ORDER

Plaintiff, 14-CV-07349 (HG) (RML)

v.

PAGIEL CLARK,

Defendant.

HECTOR GONZALEZ, United States District Judge:

Plaintiff’s claim for malicious prosecution against Defendant Pagiel Clark has been

reinstated by the U.S. Supreme Court after Judge Weinstein, who previously presided over this

case, dismissed the claim as a matter of law following the close of evidence at trial, and before

presenting it to the jury with Plaintiff’s remaining claims, all of which the jury rejected. See

Thompson v. Clark, 142 S. Ct. 1332 (2022). Defendant has moved for summary judgment

dismissing that claim based on the undisputed facts demonstrated by the evidence admitted at

trial and the jury’s verdict. ECF No. 163. Plaintiff opposes that motion and insists that a second

trial is necessary, principally because Judge Weinstein declined to dismiss Plaintiff’s malicious

prosecution claim during a pre-trial summary judgment motion. ECF No. 77.

The Court grants Defendant’s motion for summary judgment. Based on the expanded

factual record and Plaintiff’s own account of the relevant facts, no reasonable juror could

conclude that Defendant lacked probable cause to submit to state prosecutors a criminal

complaint charging Plaintiff with the misdemeanor of obstructing governmental administration.

Alternatively, the Court holds that Defendant is entitled to qualified immunity in bringing that

charge. Plaintiff’s separate charge for the misdemeanor of resisting arrest also fails to support a

malicious prosecution claim because Plaintiff cannot demonstrate that the resisting arrest charge

led to any deprivation of his liberty that was independent of the valid charge for obstructing

governmental administration.

FACTUAL BACKGROUND

Plaintiff was arrested in January 2014 during an encounter with four police officers

outside his apartment. ECF No. 169 ¶¶ 1, 7. Three of those police officers were formerly

Defendants in this case, but the claims against them were dismissed after they received a jury

verdict in their favor at trial. See ECF No. 137. The fourth police officer was Defendant Clark,

who remains as the sole Defendant in this case. Defendant and the other officers came to

Plaintiff’s apartment, together with two emergency medical technicians, because the police had

received a call from the sister of Plaintiff’s then-fiancée and the mother of his infant child, who

was living in Plaintiff’s apartment at the time. ECF No. 169 ¶¶ 1–6. The parties agree that the

information conveyed during the call included allegations of child abuse occurring in Plaintiff’s

apartment. Id. The parties disagree about the exact information provided during the phone call

and whether the information was credible enough for Defendants reasonably to believe that

Plaintiff had committed any misconduct involving his child. Id. They further dispute whether

the information suggested that there was any abuse currently in progress so that exigent

circumstances justified Defendants’ warrantless entry into Plaintiff’s apartment. Id.

The parties dispute what transpired when Plaintiff answered his apartment door and

spoke to Defendants—particularly whether Plaintiff used any physical force against Defendants

and whether he initiated that force. During Plaintiff’s trial testimony, he acknowledged that he

stood in his doorway and “told the officers that they couldn’t come in without a search warrant”

and that he would not “agree to [them] coming in without it.” ECF No. 147 at 708:16–19. At

some point during their conversation, Plaintiff testified that he “asked for a supervisor and a

sergeant.” ECF No. 146-2 at 615:21–23; ECF No. 147 at 710:15–24. Plaintiff conceded that he

did not “let them in.” ECF No. 146-2 at 616:7–10.

After refusing to let the first responders enter, Plaintiff said that one of the police officers,

former Defendant Montefusco, “rushed me and grabbed my arm because I was holding the door

open and grabbed my arm and then put me in a choke lock front.” Id. at 611:10–12, 611:18–

612:5. Plaintiff insisted that Officer Montefusco started the “physical interaction” after Plaintiff

made clear that he would not let the officers into his apartment. Id. at 617:12–23. After Officer

Montefusco allegedly initiated the use of force, Plaintiff said that the remaining officers,

including Defendant Clark, joined in and pushed Plaintiff to the floor. Id. at 620:24–623:4.

Plaintiff testified that he did not initiate force by pushing an officer and that once the officers

began to use force, he did nothing to resist their arrest. Id. at 617:24–25, 619:10–16. Plaintiff

estimated that his conversation with the officers leading up to his arrest lasted a total of “three to

four minutes.” Id. at 615:13–16.

The parties agree that as a result of Plaintiff’s encounter with the police at his apartment,

he was arrested, detained for approximately one day while waiting to be arraigned, and that after

being arraigned, he was released on his own recognizance. ECF No. 169 ¶¶ 10–11. Plaintiff was

charged with two offenses, both of which are Class A misdemeanors: (i) obstructing

governmental administration in the second degree (“OGA”), in violation of N.Y. Penal Law §

195.05, and (ii) resisting arrest, in violation of N.Y. Penal Law § 205.30. Id. ¶ 10. Defendant

Clark submitted the sworn criminal complaint that was used to charge Plaintiff. ECF No. 57-1 at

2. Based on Plaintiff’s account of the events, he asserts that Defendant Clark falsely stated in the

criminal complaint that Defendant Clark had “warned” Plaintiff that he “could be placed under

arrest” and that, once officers “attempted to place [Plaintiff] under arrest, [Plaintiff] began to flail

[his] arms preventing [officers] from placing handcuffs on [Plaintiff].” Id. After Plaintiff was

arraigned, he made two court appearances, after which the criminal charges against him were

dismissed. ECF No. 169 ¶ 12.

PROCEDURAL HISTORY

Plaintiff asserted several claims against Defendant Clark and his former co-Defendants,

all of which were based on 42 U.S.C. § 1983 (“Section 1983”). See ECF No. 34 ¶¶ 22–88.

Those claims consisted of malicious prosecution, false arrest, excessive force, denial of a right to

a fair trial, failure to intervene, and denial of medical treatment. Id. Plaintiff’s final claim was

that Defendants violated Section 1983 and his rights under the Fourth Amendment and the Due

Process Clause of the Fourteenth Amendment by entering his apartment without either a warrant

or the existence of exigent circumstances justifying a warrantless entry. Id. ¶¶ 83–88.

Only Plaintiff’s malicious prosecution claim remains following pre-trial summary

judgment motions decided by Judge Weinstein and a trial presided over by Judge Weinstein

before the case was reassigned. As explained in greater detail below, Judge Weinstein denied

the portion of Defendants’ pre-trial motion for summary judgment seeking the dismissal of

Plaintiff’s malicious prosecution claim. ECF No. 77. Although the jury rendered a verdict

completely in favor of Defendants with respect to Plaintiff’s other claims, see ECF No. 137,

Plaintiff’s claim for malicious prosecution never reached the jury. Following the close of

evidence, Judge Weinstein granted Defendants’ motion pursuant to Rule 50 for judgment as a

matter of law dismissing Plaintiff’s malicious prosecution claim. That dismissal was based

solely on Plaintiff’s failure to demonstrate that the prosecution against him in state court was

terminated in his favor in a manner that affirmatively indicated his innocence. ECF No. 147 at

685:15–691:6. In making their Rule 50 motion, Defendants did not argue that Plaintiff’s

malicious prosecution claim failed for any other reason, see id., thereby waiving Defendant

Clark’s ability to renew his Rule 50 motion on any other basis.

Plaintiff appealed the dismissal of his malicious prosecution claim to the Second Circuit

and, ultimately, to the Supreme Court. During that appeal, the Supreme Court abrogated the

previously-existing Second Circuit case law regarding malicious prosecution claims by

“hold[ing] that a Fourth Amendment claim under § 1983 for malicious prosecution does not

require the plaintiff to show that the criminal prosecution ended with some affirmative indication

of innocence.” Thompson v. Clark, 142 S. Ct. 1332, 1341 (2022).1 In remanding the case, the

Supreme Court did not hold that Plaintiff had prevailed on his malicious prosecution claim or

that the claim required a new trial and instead “remand[ed] for further proceedings consistent

with [its] opinion.” Id. In doing so, the Court described several additional issues of fact and law

that potentially remained relevant to Plaintiff’s malicious prosecution claim on remand,

“including whether [Plaintiff] was ever seized as a result of the alleged malicious prosecution,

whether he was charged without probable cause, and whether [Defendant] is entitled to qualified

immunity.” Id. The Court said that “the Second Circuit or the District Court as appropriate may

consider those and other pertinent questions.” Id.

The Second Circuit’s mandate transferring jurisdiction back to this Court similarly did

not require a new trial. ECF No. 158. That mandate simply “VACATE[D] the judgment of the

district court,” which had stated that Plaintiff was entitled to no damages from Defendant Clark

and the other, former defendants, and “REMAND[ED] this case for further proceedings

consistent with the Supreme Court’s decision.” Id.

1 Unless noted, case law quotations in this order accept all alterations and omit internal

quotation marks, citations, and footnotes.

LEGAL STANDARD

Summary judgment is appropriate “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). In other words, a court should grant summary judgment “if 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.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). The

moving party has the burden of demonstrating that there is no genuine issue of material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “Where the moving party demonstrates the

absence of a genuine issue of material fact, the opposing party must come forward with specific

evidence demonstrating the existence of a genuine dispute of material fact.” Brown v. Eli Lilly &

Co., 654 F.3d 347, 358 (2d Cir. 2011).

In deciding a summary judgment motion, any ambiguities and inferences drawn from the

facts must be viewed in the light most favorable to the nonmoving party. LaFond v. Gen.

Physics Servs. Corp., 50 F.3d 165, 171 (2d Cir. 1995). Although “courts must refrain from

assessing competing evidence in the summary judgment record and avoid making credibility

judgments,” a plaintiff must defeat summary judgment by putting forth “evidence on which the

jury could reasonably find for the non-moving party.” Saeli v. Chautauqua Cty., 36 F.4th 445,

456 (2d Cir. 2022) (emphasis in original) (affirming summary judgment dismissing complaint).

Judge Weinstein’s prior decision denying summary judgment in favor of Defendant Clark

on Plaintiff’s malicious prosecution claim, see ECF No. 77 at 26–27, does not preclude the Court

from granting summary judgment at this stage. Plaintiff’s assertion that the prior summary

judgment decision is binding as the law of the case is incorrect. The law of the case doctrine

requires that “where a case has been decided by an appellate court and remanded, the court to

which it is remanded must proceed in accordance with the mandate and such law of the case as

was established by the appellate court.” Kerman v. City of N.Y., 374 F.3d 93, 109 (2d Cir. 2004).

However, with respect to a court’s own decisions, “[t]he doctrine of law of the case is

discretionary and does not limit a court’s power to reconsider its own decisions prior to final

judgment.” Maraschiello v. City of Buffalo Police Dep’t, 709 F.3d 87, 97 (2d Cir. 2013).

Reconsidering whether summary judgment is appropriate here is particularly appropriate because

of the expanded factual record presented at trial and the jury’s resolution of certain prior factual

disputes that existed at the summary judgment stage—principally whether Defendants’ entry into

Plaintiff’s apartment was unlawful.

Even if the Second Circuit’s mandate had expressly remanded Plaintiff’s malicious

prosecution claim for a new trial, “[t]he granting of a new trial does not preclude a party from

moving for summary judgment.” Adams v. Yale-New Haven Hosp., No. 06-cv-1166, 2012 WL

359968, at *2 (D. Conn. Feb. 2, 2012). The Second Circuit has affirmed multiple decisions

granting summary judgment after either it or the district court had ordered a new trial. See

Girden v. Sandals, Int’l, 67 F. App’x 27, 28 (2d Cir. 2003); Amorgianos v. Nat’l R.R. Passenger

Corp., 303 F.3d 256, 260–61 (2d Cir. 2002). See also Callahan v. Wilson, 863 F.3d 144, 154 (2d

Cir. 2017) (remanding case “for a new trial” because of improper jury instruction); Callahan v.

Cty. of Suffolk, No. 12-cv-2973, 2022 WL 1283610, at *3 (E.D.N.Y. Apr. 29, 2022) (granting

summary judgment motion in favor of defendants on remand).

Just as Judge Weinstein’s prior denial of summary judgment does not require the Court to

deny summary judgment again, the factual issues determined by the jury’s verdict are not

binding through collateral estoppel, as they would be in a subsequent lawsuit between the parties.

DeVilla v. Schriver, 245 F.3d 192, 196–97 (2d Cir. 2001). Instead, the Second Circuit has

explained that, in circumstances like these, in which some of a plaintiff’s claims are dismissed at

trial before reaching the jury, and then reinstated on appeal, the district court on remand may

defer to the jury’s verdict as the “law of the case” but may not automatically give it preclusive

effect. Id. at 197. A district court has discretion to decide how much weight to assign to a jury’s

verdict, and it should apply that discretion based “on the interpretation and quality of the verdict

itself.” Bradshaw v. Hernandez, 788 F. App’x 756, 759 (2d Cir. 2019) (affirming district court’s

grant of motion for summary judgment on remand after trial despite district court having denied

a pre-trial summary judgment motion prior to remand). Granting a second motion for summary

judgment on one claim after a trial on separate claims is, therefore, appropriate when “the jury’s

subsequent verdict has rendered immaterial any disputes of fact that may have existed at the

[pre-trial] summary-judgment stage.” Id.

DISCUSSION

Plaintiff’s only remaining claim asserts malicious prosecution against Defendant Clark

based on Section 1983. “To prevail on a malicious prosecution claim under . . . federal law, a

plaintiff must show: (1) the commencement or continuation of a criminal proceeding by the

defendant against the plaintiff, (2) the termination of the proceeding in favor of the accused, (3)

the absence of probable cause for the criminal proceeding and (4) actual malice.” Kee v. City of

New York, 12 F.4th 150, 161–62 (2d Cir. 2021). Since Plaintiff has brought his malicious

prosecution claim pursuant to Section 1983 rather than New York state law, he also “must

demonstrate a sufficient post-arraignment liberty restraint.” Id. at 162.

“Probable cause, in the context of malicious prosecution, has been described as such facts

and circumstances as would lead a reasonably prudent person to believe the plaintiff guilty.” Id.

at 166. This is a slightly higher standard than the probable cause required to defeat a false arrest

claim under Section 1983, which only requires the arresting officer to “ha[ve] 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.” Id. at 158. For a defendant successfully to invoke probable cause to defeat

a claim for malicious prosecution, “probable cause must be shown as to each crime charged in

the underlying criminal action.” Id. at 166.

I. Defendant Clark Had Probable Cause to Charge Plaintiff with OGA

Defendant Clark had probable cause to charge Plaintiff with OGA even according to

Plaintiff’s account of the events leading up to his arrest, and summary judgment dismissing

Plaintiff’s claim for malicious prosecution based on the OGA charge is therefore appropriate.

The crime of OGA “requires one of the following: (1) intimidation, (2) physical force or

interference, or (3) any independently unlawful act.” Dancy v. McGinley, 843 F.3d 93, 111 (2d

Cir. 2016). “Any interference must be physical and must obstruct an official function authorized

by law.” Id. The Second Circuit has therefore held that probable cause to prosecute a plaintiff

for OGA does not exist when the plaintiff simply refuses to answer police questions, id. at 112,

or attempts orally to dissuade police officers from taking a particular action, see Zellner v.

Summerlin, 494 F.3d 344, 376–77 (2d Cir. 2007) (holding that disputes of fact about whether

plaintiff attempted physically to block traffic at protest site precluded defendants’ post-trial

motion that they were entitled to qualified immunity). A plaintiff’s incidental, unintended

contact with a police officer is also insufficiently physical to trigger probable cause to charge the

plaintiff with OGA. Barksdale v. Colavita, 506 F. App’x 82, 85 (2d Cir. 2012) (reversing

summary judgment in favor of defendants on malicious prosecution claim, without prejudice to

district court finding qualified immunity at trial following the jury’s resolution of disputed facts).

Although a plaintiff’s interference with a lawful governmental function must be

“physical” in nature, a plaintiff can commit OGA by “physically interfer[ing]” with that

governmental function without using “physical force.” Kass v. City of New York, 864 F.3d 200,

209–10 (2d Cir. 2017) (granting judgment on the pleadings in favor of defendants, holding that

their decision to arrest plaintiff for OGA was protected by qualified immunity). “[A]n officer

may consider both words and deeds in determining whether the individual’s conduct is

sufficiently obstructive to justify an arrest” even though a plaintiff’s obstructions “cannot consist

solely of verbal statements.” Id. at 209.

As mentioned above, Judge Weinstein previously denied Defendants’ motion for

summary judgment on several of Plaintiff’s claims, including his claim for malicious

prosecution. The denial of summary judgment on the malicious prosecution claim was based on

the following chain of reasoning. First, Judge Weinstein held that there were disputes of fact

about whether Defendants’ warrantless entry into Plaintiff’s apartment was justified by exigent

circumstances—i.e., a reliable allegation that child abuse was being committed inside. ECF No.

77 at 24–25. On that basis, Judge Weinstein denied summary judgment on Plaintiff’s unlawful

entry claim. Id. Second, Judge Weinstein explained that Defendants were not permitted to arrest

Plaintiff for OGA unless Defendants had a lawful reason to enter his apartment. Id. at 25–26.

The factual dispute about whether Defendants had a lawful reason to enter, therefore, required

the denial of summary judgment on Plaintiff’s false arrest claim. Id. Third, and finally,

Defendants could not have had probable cause to charge Plaintiff with resisting arrest if their

attempt to arrest him for OGA had been unlawful, and the charge for OGA would also have

lacked probable cause if Defendants had no lawful reason to enter Plaintiff’s apartment. Id. at

26–27.

Accordingly, Judge Weinstein’s denial of summary judgment on Plaintiff’s malicious

prosecution claim hinged on a single disputed issue—whether Defendants had a lawful reason to

demand entry to Plaintiff’s apartment. The jury resolved that question at trial by answering

“NO,” with respect to each Defendant, including Defendant Clark, to the question, “Did you find

that a defendant unlawfully entered plaintiff’s apartment?” ECF No. 137 at 1. Since the jury

was considering a more expansive record than Judge Weinstein did on summary judgment and

the jury’s answer resolving this previously disputed issue was unambiguous, the Court defers to

the jury’s conclusion as the law of the case. See Bradshaw, 788 F. App’x at 759.

Having resolved the issue of whether Defendants were performing a lawful function

when seeking to enter Plaintiff’s apartment, the conclusion that Defendant Clark had probable

cause to charge Plaintiff with OGA flows as a matter of law from Plaintiff’s own account of the

events leading to his arrest. As explained above, Plaintiff testified at trial that he physically

blocked Defendants’ path of entry to his apartment by standing in the door and refusing orally to

let them enter. ECF No. 146-2 at 611–23. The Second Circuit has held that, when police

officers have a lawful basis “to enter peoples’ homes” to investigate potential child abuse, a

plaintiff’s refusal to open the door for those officers “[i]s not pure speech” and instead satisfies

“the physical force or interference element of the obstructing governmental administration

statute.” Shaheed v. Kroski, 833 F. App’x 868, 870–71 (2d Cir. 2020) (emphasis in original)

(affirming dismissal of malicious prosecution claim where officers’ entry into plaintiffs’ home

was authorized by a “New York Family Court order[]”). Plaintiff’s disputes about whether he

used physical force against any Defendant or which party initiated the use of force, therefore, do

not preclude summary judgment.

Alternatively, even if Defendant Clark did not have probable cause to charge Plaintiff

with OGA, he is entitled to qualified immunity based on Plaintiff’s account of Plaintiff’s

interactions with Defendants. “An arresting officer is entitled to qualified immunity even if

probable cause is lacking so long as arguable probable cause was present when the arrest was

made.” Washington v. Napolitano, 29 F.4th 93, 105 (2d Cir. 2022). “A police officer has

arguable probable cause 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.” Id.

Plaintiff was arrested and charged in January 2014. ECF No. 169 ¶¶ 1, 7. As of that

time, the Second Circuit had held that a plaintiff’s act of remaining in her locked car and refusing

police instructions to exit the vehicle—without using any other means of physical force to

impede the officers’ work—would have given a reasonable officer probable cause to charge the

plaintiff with OGA. Lennon v. Miller, 66 F.3d 416, 424–25 (2d Cir. 1995) (granting summary

judgment in favor of defendants on false arrest and malicious prosecution claims based on

qualified immunity). A district court within this Circuit had similarly held that police officers

had probable cause to charge a plaintiff with OGA for refusing to follow police instructions to

open his apartment door even though, once the officers had forced the door open, the plaintiff

“was sitting on the couch with his feet on the coffee table watching television” and not using any

physical force to impede the officers’ entry. Johnson v. City of New York, No. 05-cv-7519, 2008

WL 4450270, at *10 (S.D.N.Y. Sept. 29, 2008) (granting summary judgment dismissing

malicious prosecution claim). Based on this case law defining the circumstances under which an

officer could have charged a person with OGA, officers of reasonable competence could have

concluded that Plaintiff’s act of standing in his apartment doorway and insisting that Defendants

were not permitted to enter rose to the level of OGA.

The fact that the parties dispute whether some of the facts included in Defendant Clark’s

complaint actually occurred—particularly whether Plaintiff used any physical force—does not

preclude the Court from deciding that the undisputed facts would have established probable

cause to charge Plaintiff with OGA. A police officer’s “exaggerat[ion]” of disputed facts in a

criminal complaint does not eliminate the probable cause to charge a plaintiff. Soomro v. City of

New York, 739 F. App’x 51, 53–54 (2d Cir. 2018) (affirming summary judgment in favor of

defendants on malicious prosecution claim). This is true even if the information that a police

officer provides to prosecutors is potentially false, rather than a mere exaggeration. See Frost v.

N.Y. City Police Dep’t, 980 F.3d 231, 242–43 (2d Cir. 2020) (affirming summary judgment

dismissing malicious prosecution claim, despite holding that the same allegedly false information

precluded granting summary judgment to defendants on plaintiff’s claim for denial of a right to

fair trial). Similarly, the allegedly false facts in Defendant Clark’s complaint do not preclude a

finding that he is entitled to qualified immunity. See Richardson v. McMahon, No. 22-582-cv,

2023 WL 3102910, at *2 (2d Cir. Apr. 27, 2023) (holding that officer’s alleged false statements

did not deprive him of qualified immunity for malicious prosecution claim, although

acknowledging that such statements may have supported a separate claim for denial of a right to

a fair trial).

The alleged falsities in Defendant Clark’s complaint were relevant to Plaintiff’s claim for

denial of Plaintiff’s right to a fair trial, to which probable cause to charge Plaintiff was not a

valid defense. See Garnett v. Undercover Officer C0039, 838 F.3d 265, 277–78 (2d Cir. 2016)

(“[A] Section 1983 claim for the denial of a right to a fair trial based on an officer’s provision of

false information to prosecutors can stand even if the officer had probable cause to arrest the

Section 1983 plaintiff.”); Frost, 980 F.3d at 250 (“[F]air trial claims cover kinds of police

misconduct not addressed by false arrest or malicious prosecution claims, and . . . therefore

probable cause, which is a Fourth Amendment concept, should not be used to immunize a police

officer who violates an arrestee’s non-Fourth Amendment constitutional rights.”). However, the

jury decided in favor of Defendants on Plaintiff’s fair trial claim, and Plaintiff did not challenge

that aspect of the jury’s verdict on appeal. See ECF No. 137.

Plaintiff focuses heavily on the fact that during the approximately one day between when

he was arrested and when he was charged, Defendant Clark received evidence demonstrating that

Plaintiff’s child had not been abused. See ECF No. 168 at 16–17. It is true that “probable cause

may dissipate” after an arrest if “the groundless nature of the charges is made apparent by the

discovery of some intervening fact.” Moore v. City of New York, 854 F. App’x 397, 399 (2d Cir.

2021) (affirming summary judgment dismissing malicious prosecution claim). However, the

intervening fact must “show[] that the charges against the suspect are groundless.” Keyes v. City

of New York, No. 21-2406-cv, 2023 WL 176956, at *4 (2d Cir. Jan. 13, 2023) (affirming

summary judgment dismissing malicious prosecution claim). Plaintiff was charged with OGA—

not child abuse. The after-the-fact revelation that Plaintiff had not abused his child did not

change the fact that exigent circumstances had justified the first responders’ entry into his

apartment the night before or that Plaintiff had physically impeded that entry. Therefore, the

intervening facts that Plaintiff relies on did not dissipate the probable cause to charge Plaintiff

with OGA and, additionally, do not defeat Defendant Clark’s qualified immunity.

II. Plaintiff Has Failed to Demonstrate an Independent Deprivation of Liberty

Associated with His Charge for Resisting Arrest

The fact that Defendant Clark had probable cause to charge Plaintiff with OGA does not,

by itself, defeat Plaintiff’s claim for malicious prosecution based on the second charge for

resisting arrest. When a plaintiff asserts a malicious prosecution claim after being charged with

multiple offenses, the existence of probable cause to charge the plaintiff for one offense does not

automatically defeat the malicious prosecution claim with respect to the other offense(s). See

Posr v. Doherty, 944 F.2d 91, 100 (2d Cir. 1991) (holding that district court erred by

“instruct[ing] that if the jury found probable cause supporting any of the three charges . . . lodged

against [plaintiff], no liability for malicious prosecution could be found as to any of the charges

filed”). The existence of probable cause to charge a plaintiff with a lesser offense does not

“foreclose a malicious prosecution cause of action on charges requiring different, and more

culpable, behavior.” Id.

The Court cannot separately conclude as a matter of law, based on undisputed facts, that

Defendant Clark had probable cause to charge Plaintiff with resisting arrest. Plaintiff testified

that he did not resist in any way once Defendants initiated physical contact with him to gain

entry to his apartment and make his arrest. ECF No. 146-2 at 617:24–25, 619:10–16. Therefore,

even though no reasonable jury could conclude that Defendant Clark lacked probable cause to

arrest and charge Plaintiff with OGA, a reasonable jury could conclude that once the officers

began to arrest Plaintiff for OGA, he committed no separate act that gave Defendant Clark

probable cause to charge Plaintiff with resisting arrest.

Plaintiff’s malicious prosecution claim based on his resisting arrest charge fails, however,

for the separate reason that he cannot prove a deprivation of liberty associated with that charge.

To prove a claim for malicious prosecution, Plaintiff “must demonstrate a sufficient post-

arraignment liberty restraint.” Kee, 12 F.4th at 162. In applying this requirement, the Second

Circuit has affirmed summary judgment dismissing a malicious prosecution claim because the

purported restraints on the plaintiff’s liberty that “resulted from the prosecution that he allege[d]

was unsupported by probable cause” were independently attributable to separate charges

“indisputably supported by probable cause.” Coleman v. City of New York, 688 F. App’x 56, 58

(2d Cir. 2017). Multiple district courts within this Circuit have followed this rationale, and

granted summary judgment in favor of defendants, by holding that a plaintiff cannot connect a

restraint on liberty to one charge that might support a malicious prosecution claim if the plaintiff

was charged with equal or lesser crimes for which a malicious prosecution claim fails.2

Both of the crimes with which Plaintiff was charged, OGA and resisting arrest, are Class

A misdemeanors under New York law and, therefore, each subjected Plaintiff to potential

punishment of the same magnitude. As in Coleman, Plaintiff “was released without bail after his

arraignment,” and the only deprivation of his liberty was his “ongoing requirement of appearing

in court.” Coleman, 688 F. App’x at 58; see ECF No. 169 ¶¶ 11–12. This restraint on Plaintiff’s

liberty would have occurred if Plaintiff had been charged with only OGA, a charge that was

indisputably based on probable cause for the reasons explained above. As a result, even if there

2 Othman v. City of New York, No. 13-cv-4771, 2018 WL 1701930, at *14 (E.D.N.Y. Mar.

31, 2018) (plaintiff could not “disentangle the constitutionally permissible court appearances he

made in conjunction” with charges for which there was probable cause “from any allegedly

impermissible deprivations of liberty as a result of” separate charges that purportedly lacked

probable cause); Mortimer v. Wilson, No. 15-cv-7186, 2020 WL 3791892, at *14 (S.D.N.Y. July

7, 2020) (order of protection that plaintiff relied upon as basis for restraint on liberty could have

been entered based solely upon charges for which plaintiff’s malicious prosecution claim failed);

Warner v. Freeman, No. 14-cv-1192, 2017 WL 4227655, at *2–3 (D. Conn. Sept. 22, 2017)

(court appearances that would have been required by other charges based on probable cause did

not satisfy deprivation of liberty requirement).

was no probable cause to charge Plaintiff with resisting arrest, he suffered no additional

deprivation of his liberty because of that charge.

CONCLUSION

For the reasons set forth above, the Court GRANTS Defendant Clark’s motion for

summary judgment dismissing Plaintiff’s sole remaining claim for malicious prosecution in

violation of 42 U.S.C. § 1983. See ECF No. 163. The Clerk of Court is respectfully directed to

enter judgment in favor of Defendants based on a combination of this order and the jury’s prior

verdict in favor of the remaining Defendants, see ECF No. 137, and to close this case.

SO ORDERED.

/s/ Hector Gonzalez

HECTOR GONZALEZ

United States District Judge

Dated: Brooklyn, New York

May 18, 2023