Francis v. City of New York

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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ROBERT D. FRANCIS,

Plaintiff,

MEMORANDUM & ORDER

20-CV-642(EK)(TAM)

-against-

CITY OF NEW YORK, KERRY R. SWEET,

JOSEPH REZNICK, BRIAN H. O’NEIL,

THOMAS E. MOLLOY, JOSEPH F. PROFETA,

JOHN A. ORECCHIA, JOEL P. VARUGHESE,

JOHN MONTAPERTO, and ALEX NULMAN

Defendants.

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ERIC KOMITEE, United States District Judge:

Plaintiff Robert Francis, a former New York City

Police detective, claims that he was the subject of a conspiracy

between the police departments of New York City and Rockville

Centre, New York. The alleged objects of this conspiracy were

to frame him for certain crimes and to pressure him to resign

from his position. Francis brought suit against the City of New

York and several individual police officers, asserting claims

under Sections 1981, 1983, and 1985, for conspiracy to commit

false arrest, malicious prosecution, and failure to intervene,

accompanied by a Monell claim and a pendent state-law tort

claim. The defendants now move for summary judgment.

For the reasons that follow, that motion is granted.

I. Background

A. Facts1

Francis asserts claims against a number of NYPD

officers — Joseph Reznick, Brian H. O’Neil, Kerry R. Sweet,

Joseph F. Profeta, John A. Orecchia, Joel P. Varughese, John

Montaperto, Alex Nulman, and Thomas E. Molloy — as well as the

City itself.

Francis is a former NYPD officer. Pl. 56.1 Resp. ¶

10. He held the rank of Detective from 2007 until his

employment terminated in 2017. Id. ¶ 11.

1. The Events of March 25, 2017

On March 25, 2017, police officers with the Rockville

Centre Police Department (“RCPD”) responded to a 9-1-1 call

reporting that an African-American male had been observed

trespassing on the caller’s driveway and backyard. Id. ¶ 13.

When officers arrived at the address around 11:00 p.m., they

encountered Francis, id. ¶ 12, who fit the caller’s description

and was in the rear yard of another residence on the same

street. Id. Francis informed them that he was in the area to

1 The facts in this order are drawn from the parties’ submissions in

connection with the motion for summary judgment, including Defendants’ Local

Rule 56.1 Statement (“Def. 56.1” (ECF No. 67)) and plaintiff’s response to

this statement (“Pl. 56.1 Resp.” (ECF No. 69)). The court views the facts in

the light most favorable to the plaintiff. Citations to a party’s Rule 56.1

Statement incorporate by reference the documents cited therein.

meet a female friend named Tameeka Campbell, but that he did not

know her address. Id. ¶ 15. Francis was off duty. Id. ¶ 12.

The RCPD officers took Francis to the stationhouse for

further questioning, id. ¶ 16, and he signed a Miranda waiver.

Id. ¶ 17. He fit the description of a man described in four

prior complaints the RCPD had received — all concerning

incidents in which a man was observed pointing a flashlight at

his groin and masturbating in the backyards of homes in view of

teenage girls inside. Id. ¶ 18. Following questioning, Francis

signed a confession admitting that he committed those prior acts

and attesting that he had been planning to engage in a similar

act that evening. Id. ¶ 19. Francis admits that he signed the

confession but denies that he read it before signing it. Id.

The RCPD charged Francis — via an appearance ticket —

with endangering the welfare of a child, public lewdness, and

criminal trespass. Id. ¶ 20. He was released on $50 bail. Id.

¶ 22.

2. NYPD Administrative Proceedings

The next day, the NYPD suspended Francis without pay

and began preparing internal administrative charges against him.

Pl. 56.1 Resp. ¶¶ 24-25. In early April, while under

suspension, Francis applied for a “vested interest retirement,”

which provides limited benefits based on the retiree’s years of

service. Id. ¶ 26. A vested interest retirement differs from

a “service retirement,” which is available after twenty years of

service, in that it does not come with greater entitlements such

as terminal leave benefits and variable supplemental fund

benefits. Id. Francis signed documents acknowledging that by

taking a vested interest retirement, he would not be entitled to

the benefits of a service retirement. Id. ¶ 26.

A week later, the NYPD held a hearing on the

administrative charges. Id. 27. Francis denied committing the

acts he was accused of and asserted that the RCPD coerced him

into signing the confession. Id. ¶ 28. He again asserted that

he was present in Rockville Centre to meet a woman named Tameeka

Campbell and provided screenshots of a text conversation as

proof. Id. ¶ 30; ECF No. 66-6, at 7. He “claimed he did not

have the actual messages because his phone automatically deletes

texts.” Id. But the number he provided did not belong to a

woman named Campbell. Instead, it came back to a woman named

Lakeish Chang, who denied any plans to meet Francis that night

(and also claimed that Francis had harassed her on prior

occasions). Pl. 56.1 Resp. ¶ 30. Chang also told investigators

that she never sent Francis any texts. ECF No. 66-6, at 8.

Following Francis’s testimony at the hearing, the NYPD

supplemented its administrative charges to allege that he made

false statements under oath. Id. ¶ 31. Before he could be

served with the charges, Francis took his vested interested

retirement, officially departing the NYPD. Id. ¶ 32.

3. Criminal Proceedings

According to a Certificate of Disposition from the

criminal court in Nassau County, Francis was tried and found

guilty of trespass on November 27, 2018, after a bench trial.

ECF No. 66-5. He was sentenced to one year of conditional

discharge and $320 in fines. Id. The summary judgment record

does not indicate whether the remaining charges against him were

dismissed or whether he was acquitted of them.

B. Procedural History

Francis originally filed his complaint in state court,

proceeding pro se. Pl. 56.1 Resp. ¶ 1. Defendants removed,

citing federal question jurisdiction. Id. ¶ 2. Francis has

since obtained counsel and filed two amended complaints. Id. ¶

3-4; ECF Nos. 15, 20.

Despite being represented, Francis has not filed a

memorandum of law in opposition to the defendants’ motion.

Instead, he filed a response to the Defendants’ Local Rule 56.1

Statement, ECF No. 69, two exhibits to that response, ECF Nos.

68-1, 68-2, and an unsigned affidavit. ECF No. 68. “[F]actual

assertions” made in an “unsworn letter” are “properly

disregarded by the court” at the summary judgment stage. U.S.

v. All Right, Title and Interest in Real Property and

Appurtenances, 77 F.3d 648, 657-58 (2d Cir. 1996); Adickes v.

S.H. Kress & Co., 398 U.S. 144, 158 n.17 (1970) (“This

statement, being unsworn, does not meet the requirements of

[Rule] 56(e) . . . .”).2

II. Legal Standard

Summary judgment is appropriate when “the movant shows

that there is no genuine dispute as to any material fact” and

that he “is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a). A material fact is one that “can affect the

outcome under the applicable substantive law.” Graham v.

Henderson, 89 F.3d 75, 79 (2d Cir. 1996). A genuine dispute is

one that can “reasonably be resolved in favor of either party.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). In

performing this analysis, the court must resolve all ambiguities

and draw all inferences in favor of the non-moving party. Gallo

v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219,

1223 (2d Cir. 1994). “If, in this generous light, a material

issue is found to exist, summary judgment is improper.”

Nationwide Life Ins. Co. v. Bankers Leasing Ass'n, 182 F.3d 157,

160 (2d Cir. 1999).

The moving party may establish that there is no

genuine dispute “by showing that little or no evidence may be

2 Unless otherwise noted, when quoting judicial decisions this order

accepts all alterations and omits all citations, footnotes, and internal

quotation marks.

found in support of the nonmoving party's case.” Gallo, 22 F.3d

at 1223-24 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325

(1986)). If the moving party meets this burden, the non-moving

party “must come forward with specific facts showing that there

is a genuine issue for trial.” LaBounty v. Coughlin, 137 F.3d

68, 73 (2d Cir. 1998). However, the non-moving 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). If “no rational finder

of fact could find in favor of the nonmoving party because the

evidence to support its case is so slight, summary judgment must

be granted.” Id.

III. Discussion

For his federal claims to succeed, Francis must “prove

the sine qua non of a § 1983 action: the violation of a federal

right.” Singer v. Fulton Cnty. Sheriff, 63 F.3d 110, 119 (2d

Cir. 1995). Francis has failed to adduce evidence sufficient to

show a genuine dispute on the question of whether he has

suffered a violation of his constitutional rights; thus, none of

his federal claims can succeed. Id.

A. Conspiracy to Commit False Arrest and Malicious Prosecution

Francis claims that the NYPD conspired with the RCPD

to falsely arrest and maliciously prosecute him in violation of

his Fourth Amendment rights. See Complaint, ECF No. 20, ¶¶ 308-

9, 312-12. To prove a Section 1983 conspiracy, a plaintiff must

show: “(1) an agreement between two or more state actors or

between a state actor and a private entity; (2) to act in

concert to inflict an unconstitutional injury; and (3) an overt

act done in furtherance of that goal causing damages.” Pangburn

v. Culbertson, 200 F.3d 65, 72 (2d Cir. 1999). This requires

the plaintiff to adduce evidence that he suffered “an actual

violation of constitutional rights.” Singer v. Fulton Cnty.

Sheriff, 63 F.3d 110, 119 (2d Cir. 1995). Here, there is no

evidence to show either an actual violation or Francis’ rights

or a conspiracy between the RCPD and the NYPD to violate them.

1. Actual Violation of Rights

Francis has not shown that he suffered from false

arrest or malicious prosecution. He was convicted of the

trespassing charge, and the defendants have established, through

uncontroverted evidence, probable cause to prosecute him on the

remaining charges. In “actions asserting false arrest, false

imprisonment, or malicious prosecution . . . the plaintiff can

under no circumstances recover if he was convicted of the

offense for which he was arrested.” Cameron v. Fogarty, 806

F.2d 380, 387 (2d Cir. 1986). Likewise, existence of probable

cause is a complete defense to false arrest and malicious

prosecution claims. Jenkins v. City of New York, 478 F.3d 76,

84 (2d Cir. 2007); Stansbury v. Wertman, 721 F.3d 84, 89 (2d

Cir. 2013).

Probable cause exists “when the arresting officer has

knowledge or reasonably trustworthy information sufficient to

warrant a person of reasonable caution in the belief that an

offense has been committed by the person to be arrested.”

Singer, 63 F.3d at 119. The “probable cause standard in the

malicious prosecution context is slightly higher” and requires

“facts and circumstances as would lead a reasonably prudent

person to believe the plaintiff guilty.” Stansbury, 721 F.3d at

95. But “[i]f probable cause existed at the time of arrest, it

continues to exist at the time of prosecution unless undermined

by the discovery of some intervening fact.” Johnson v.

Constantellis, 221 Fed. App’x 48, 50 (2d Cir. 2007).

The RCPD found Francis in someone else’s backyard at

11:00 p.m., carrying but not using a flashlight, after a

neighbor called 9-1-1. Id. ¶ 12-13. The arresting officers

were aware of four prior, similar incidents: a man standing in

the dark in the backyards of houses in the Rockville area,

holding a flashlight to illuminate his genitals as he

masturbated in front of teenage residents. Id. ¶ 18; ECF No.

66-3, 26-38.

At the stationhouse, Francis waived his Miranda

rights and signed a written confession to all four incidents.

Id. ¶ 19-20. The confession stated that on the night of his

arrest he “had been out walking through yards on Sherman Ave

looking for someone in a house to masturbate to.” ECF No. 66-4,

at 16. The confession also explained that he had been meeting

with a psychiatrist for the past year and had “resorted to

masturbating in public (rear yards) while watching women that

are inside their homes, for almost 1 year, as a way to deal with

my stress.” Id. at 16-17.

Francis admits that he signed the confession. Pl.

56.1 Resp., ¶ 19. In his unsigned affidavit, he argues that the

confession did not provide probable cause to charge him with the

crimes he confessed to because he was coerced into signing it.

ECF No. 68, at ¶ 18. He alleges that he was told that if he

“didn’t sign the documents that [he] would be suspended and

terminated, but that if [he] signed it, [he] would be given a

desk appearance ticket and allowed to retire.” Id.

But to survive a summary judgment motion, Francis

must point to evidence the confession was coerced. He “must

come forward with specific facts showing that there is a genuine

issue for trial” on the issue. LaBounty, 137 F.3d at 73. He

must also provide support for those facts, whether through

“depositions, documents, electronically stored information,

affidavits or declarations, stipulations . . . admissions,

interrogatory answers, or other materials.” Fed. R. Civ. P.

56(c)(1)(A). Where a party “fails to properly support an

assertion of fact,” the court may “consider the fact undisputed

for purposes of the motion.” Fed. R. Civ. P. 56(e)(2).

The Supreme Court has held that an “unsworn

[statement] does not meet the requirements of Fed. Rule Civ.

Proc. 56(e).” Adickes, 398 U.S. at 158 n.17. The only support

provided by Francis or his attorney for the factual assertion

that his confession was coerced comes from Francis’ own unsworn

affidavit and is therefore not cognizable at the summary

judgment stage. See All Right, Title and Interest in Real

Property and Appurtenances, 77 F.3d at 657-58 (factual

assertions in an unsworn letter were “properly disregarded by

the court” at summary judgment). Despite a lengthy discovery

process in this case — defendants filed their Answer in June

2020 and discovery closed in August 2021 — Francis conducted no

depositions, Pl. 56.1 Resp. ¶ 7, and has produced no other

evidence in support of this contention.

In the absence of any support for Francis’

“conclusory allegation” that his confession was coerced, he has

not met his burden to “demonstrate[e] the existence of a genuine

dispute of material fact” on the question. Brown, 654 F.3d at

358 (citing Anderson, 477 U.S. at 249). That confession — when

buttressed by the 9-1-1 call, the fact that RCPD officers

actually witnessed his trespass, and the similarities between

his conduct and the four prior incidents — clearly constituted a

sufficient basis to justify probable cause to arrest, charge,

and prosecute Francis for the crimes to which he confessed.

2. Conspiracy

In any event, dismissal of Francis’s conspiracy claim

is appropriate because he has failed to evince any evidence

establishing an agreement between the NYPD and the RCPD.

Pangburn, 200 F.3d at 72. Conspiracy claims “containing only

conclusory, vague, or general allegations of conspiracy to

deprive a person of constitutional rights cannot withstand a

motion to dismiss.” Leon v. Murphy, 988 F.2d 303, 311 (2d Cir.

1993).

Here, Francis has failed to offer even “a single fact

to corroborate [his] allegation of a ‘meeting of the minds’

among the conspirators.” Gallop v. Cheney, 642 F.3d 364, 369

(2d Cir. 2011). Francis nowhere explains how or why the RCPD

and the NYPD conspired against him. In the end, Francis has

produced no evidence — only “sheer speculation and wholly

conclusory allegations,” which are insufficient to withstand

summary judgment. Parisi v. Suffolk Cnty., No. 04-CV-2187

(ENV), 2009 WL 4405488, at *12 (E.D.N.Y. Nov. 30, 2009).

B. Failure to Intervene and Supervisory Liability

Francis also asserts claims for failure to intervene

and supervisory liability against individual NYPD officers,

alleging that they could have prevented his false arrest and

malicious prosecution. Compl. ¶ 310-11. Both of those claims

are premised on an underlying violation of Francis’ rights. The

duty to intervene only arises when a citizen’s “constitutional

rights are being violated,” O’Neill v. Krzeminski, 839 F.2d 9,

11 (2d Cir. 1988), and claims against a defendant-supervisor

require evidence that the supervisor “was directly involved in

the alleged violation.” Brogdon v. City of New Rochelle, 200 F.

Supp. 2d 411, 426 (S.D.N.Y. 2002). Here, the undisputed

evidence shows that Francis was neither falsely arrested nor

maliciously prosecuted. His claims for failure to intervene and

supervisory liability therefore cannot succeed as a matter of

law.

C. Monell Liability

Francis claims that the constitutional violations he

describes arose from an NYPD policy that allowed the department

to expedite its administrative proceedings against him. Compl.

¶ 332. Francis argues that this expedited process denied him

procedural and substantive due process and equal protection of

the law. Id.

Monell claims depend on evidence of an underlying

deprivation of constitutional rights. Vippolis v. Village of

Haverstraw, 768 F.2d 40, 44 (2d Cir. 1985). Francis’ claim as

to his alleged false arrest and malicious prosecution therefore

cannot succeed, for the reasons set out above; only his due

process claim remains.

To establish municipal liability under Section 1983, a

plaintiff must demonstrate that the deprivation of his

constitutional rights was “caused by a governmental custom,

policy, or usage of the municipality.” Jones v. Town of East

Haven, 691 F.3d 72, 80 (2d Cir. 2012). To do so, the plaintiff

must first establish the existence of a municipal policy,

Pembaur v. City of Cincinnati, 475 U.S. 469, 481 (1986), and

then establish a causal connection between the policy and the

deprivation of his constitutional rights. Vippolis, 768 F.2d at

44.

It is Francis’s burden to “set forth specific facts

showing that there is a genuine issue for trial” on the question

of whether the NYPD’s administrative proceedings accorded him

inadequate process. Anderson, 477 U.S.at 248. Francis has

presented no evidence showing that the NYPD’s administrative

proceedings against him were expedited at all, let alone

pursuant to official policy. He has also failed to set forth

specific facts showing anything specific about the nature of

those proceedings, other than that he was given an opportunity

to testify at a hearing. Id; see generally Pl. 56.1 Resp. In

the end, to assert a due-process violation, Francis must allege

that he was accorded inadequate process, and that that

shortcoming resulted in a deprivation of his liberty or

property. Reed v. Goertz, 598 U.S. 230, 236 (2023). And apart

from complaining about the expedited nature of the proceedings,

Francis has not indcated what process he should have received,

but did not.

Regardless, Francis was not fired pursuant to

administrative proceedings — he retired before the process could

be completed. Pl. 56.1 Resp., ¶ 32. Courts in this circuit

have routinely found that NYPD officers who allege that they

have been coerced into resignation have access to so-called

“Article 78” proceedings, which “satif[y] procedural due process

in a case where a New York State employee claims a coerced

resignation.” Capul v. City of New York, No. 19-cv-4313 (KPF),

2020 WL 2748274, at *13 (S.D.N.Y. 2020) (collecting cases).

Ultimately, Francis has failed to present any facts

tending to show that he was coerced into retiring from his

position with the NYPD as a result of deficiencies in the

department’s administrative process. His Monell claim therefore

cannot survive.

C. Section 1985 Conspiracy Claims

Francis further asserts broad claims under Section

1985 for conspiracy among NYPD and RCPD officers to deprive him

of his constitutional rights as they relate to his employment

contract, including his right to be free from false arrest and

his right to due process. Compl. ¶¶ 303; 313; 315. Francis

alleges that the conspiracy was motivated in part by racial

animus against him as a black man. Id. ¶ 316. But conspiracy

claims under Section 1985 — like claims under Section 1983 —

require an underlying constitutional injury, such as a false

arrest. United Bhd. Of Carpenters & Joinders, Local 610 v.

Scott, 463 U.S. 825 (1983). No such injury has been shown here

and Francis’s conspiracy claims therefore cannot survive.

C. State Law Negligent Infliction of Emotional Distress

Having granted the defendants’ motions for summary

judgment, I decline to exercise supplemental jurisdiction over

his remaining state-law claim. 28 U.S.C. § 1367(c)(3). “[A]s a

general proposition,” when all federal claims are dismissed

before trial, “the state claims should be dismissed as well.”

Motorola Credit Cor. V. Uzan, 388 F.3d 39, 56 (2d Cir. 2004).

Francis has presented no reason to depart from that general rule

in this case.

IV. Conclusion

For these reasons, the defendants’ motion for summary

judgment is granted. Plaintiff’s federal claims are dismissed

and the court declines to exercise supplemental jurisdiction

over his state-law claim. The Clerk of Court is respectfully

directed to close the case.

SO ORDERED.

/s/ Eric Komitee

ERIC KOMITEE

United States District Judge

Dated: March 14, 2024

Brooklyn, New York