# Francis v. City of New York

> District Court, E.D. New York · March 14, 2024

URL: https://www.frixlaw.com/law-library/cases/10311350

## Case

- **Court:** District Court, E.D. New York
- **Decided:** March 14, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------x

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.

------------------------------------x
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10311350. Public record. Not legal advice.