Gonzalez v. Delaware County

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

AUGUSTIN TORRES GONZALEZ,

Plaintiff,

v. 3:17-CV-373 (NAM/ML)

4| STEVEN HAHL,

Defendant.

Appearances:

Jonathan S. Follender, Esq.

P.O. Box 511

42838 NYS Route 28

Arkville, New York 12406

Attorney for Plaintiff

Andrew W. Koster, Esq.

Assistant Attorney General

Office of the New York State Attorney General

The Capitol

Albany, New York 12224

Attorney for Defendant

Hon. Norman A. Mordue, Senior United States District Court Judge

MEMORANDUM-DECISION AND ORDER

INTRODUCTION

Plaintiff Augustin Torres Gonzalez brings this action under 42 U.S.C. § 1983, the U.S.

Constitution, and the Constitution of New York State, asserting claims against Defendant

Steven Hahl for false arrest and malicious prosecution. (Dkt. No. 41). Now before the Court is

Defendant’s motion for summary judgment, (Dkt. Nos. 72, 84), and Plaintiff’s papers in

opposition, (Dkt. No. 79). For the reasons that follow, Defendant’s motion is granted.

Il. © BACKGROUND!

In December 2015 Plaintiff shared a home with his brother, his sister, and both of their

families. (Dkt. No. 85, {J 1-2). Plaintiffs sister’s daughter, I.T., was six years old at the time

and attending first grade at Margaretville Central School. (/d., 3).

On December 17, 2015, Delaware County Department of Social Services (“DSS”)

A! caseworker Cynthia Bogdan-Cumpston (“Cumpston”) was assigned to investigate a report

from a classroom teacher that I.T. was being left home alone with her 12-year-old brother, who

was hitting her. U/d., 4 4). Cumpston went to the school to interview I.T. about the reported

abuse. (/d., 9.5). The School Guidance Counselor, Nancy Millen (“Millen”), brought I.T. to

her office and Cumpston interviewed I.T. there. (/d., 6-7).

During the interview, Cumpston asked I.T. questions about her living situation,

including questions about whether there were drugs and alcohol in the home, and if she

experienced any physical abuse. (Dkt. No. 72-4, p. 4). With regard to I.T.’s allegations of

sexual abuse, Cumpston’s interview notes state the following:

[Cumpston] asked [I.T.] if anyone has touched her private parts. I.T.

stated that her uncle has touched her private parts. [Cumpston]

asked what her uncle’s name is and I.T. stated she doesn’t know she

just calls him uncle. [Cumpston] asked if she can remember when

her uncle touched her private parts. I.T. stated that her uncle touched

her private parts when she went into kindergarten. [Cumpston]

asked if she can remember how many times her uncle touched her

private parts. I.T. stated that her uncle touched her more than one

time but she doesn’t remember how many times. [Cumpston] asked

who was home when her uncle touched her private parts. I.T. stated

that just she and her uncle were at home when he touched her private

parts. [Cumpston] asked if her uncle asked her to touch his private

parts and stated that he did not. I.T. stated that she never told anyone

that her uncle touched her private parts. [Cumpston] asked which

of her private parts her uncle touched. I.T. began looking up at the

' The facts have been drawn from Defendant’s statement of material facts, (Dkt. No. 72-2), Plaintiff's

response and counterstatement of material facts, (Dkt. No. 78), Defendant’s response (Dkt. No. 85), and

the parties’ attached exhibits, depositions, and declarations (see generally Dkt. Nos. 72, 77-85).

ceiling and ignoring [Cumpston’s] question. [Cumpston] was given

two hand puppets by Nancy [Millen], one was a female the other

was a male. [Cumpston] explained that girls have three different

areas that are private areas that nobody is supposed to touch.

[Cumpston] pointed to the chest of the female puppet and showed

I.T. as this being one of the areas that nobody is supposed to touch.

[Cumpston] then pointed to the area of the puppet that would be the

vagina as another private area that nobody should touch, and then

[Cumpston] turned the puppet over and pointed to the buttock area

on the puppet and told I.T. that this is the third place on the body

A that nobody is supposed to touch. [Cumpston] gave the hand

puppets to I.T. and asked her if she could show [Cumpston] where

her uncle touched her. I.T. began playing with the puppets however

she was not showing [Cumpston] what had happened to her but was

Just merely clapping her hands together while holding the puppets

and was ignoring [Cumpston]. [Cumpston] asked if her uncle is still

touching her private parts now and I.T. shook her head indicating

no.

pp. 4-5). After the interview, Cumpston contacted her supervisor at DSS, who instructed

her to call the State Police “to find out if they would like to do the investigation along with

[Cumpston].” (d., p. 5).

Defendant, a Senior Investigator with the New York State Police, responded to the

school along with Investigator Brian Dengler and Trooper James Adams. (Dkt. No. 78, § 15).

Cumpston explained to the officers that “I.T. had disclosed that her uncle touched her private

parts,” and asked if they would like to accompany her in a follow-up interview with I.T. about

the alleged sex abuse. (Dkt. No. 72-4, p. 5). According to Defendant, he tried to interview

I.T., but “she would not make any disclosures to me relative to sexual abuse.” (Dkt. No. 72-3,

45). Cumpston suggested that Defendant and his colleagues leave the room, and she then

conducted the interview. (/d.).

During this interview, I.T. confirmed her earlier statements that Plaintiff “touched her

private part on more than one time.” (Dkt. No. 72-4, p. 8). When Cumpston asked I.T. which

“private part” her uncle touched, I.T. indicated that he had touched her groin area. (/d.). I.T.

stated that she told her uncle to stop, but he “said no and kept touching her private part.” (/d.).

I.T. also stated that Plaintiff touched her “on the outside of her pants.” (/d.). Based on that

information, the investigators decided that they needed to conduct a home visit to “assess the

home for safety and for police to speak with [Plaintiff].” (d., p. 9).

When the investigators arrived at the home, Cumpston and Trooper Adams went inside

A! to conduct a safety assessment, while Defendant and Investigator Dengler asked to speak with

Plaintiff outside. (Dkt. No. 72-4, p. 9). Defendant and Investigator Dengler then asked

Plaintiff to go with them to the police barracks for an interview. (Dkt. No. 85, Jj 29-30).

Plaintiff agreed and traveled to the barracks alone in his own vehicle. (Dkt. No. 72-3, § 7).

At the barracks, Defendant told Plaintiff that the purpose of the interview was to follow

up on an anonymous report that I.T. and her brother were often left at home by themselves.

| (Dkt. No. 83-6, p. 2). When Defendant read Plaintiff his Miranda warnings, Defendant had not

yet informed Plaintiff that he would also be asking about I.T.’s allegations that Plaintiff

touched her inappropriately. (U/d., pp. 10-11; Dkt. No. 85, 4 107). After issuing the Miranda

warnings, Defendant informed Plaintiff that I.T. told social workers that he had touched her

inappropriately on more than one occasion. (Dkt. No. 83-6, pp. 21-22). Defendant denied any

inappropriate touching, and stated that “I’m not the type of person to do that kind of stuff with

kids because . . . we teach kids good stuff. Not that kind of stuff. So I don’t do anything

wrong to them.” (/d., p. 22).

As the interview progressed, Defendant asked Plaintiff whether he could recall any time

when he may have touched I.T. inappropriately. (See id., pp. 26-29). In response, Plaintiff

stated that he has only ever hugged her, and on occasion, has accidentally touched her leg, at

which point he claimed that he immediately apologized. (/d., p. 28). Plaintiff went on to

describe a situation where I.T. was sitting on his lap while he worked on the computer. (/d.,

pp. 30-32). Plaintiff claimed that I.T. “almost fall [sic] like a few times and I tried to hold her,

you know, in order not [to fall].” (Ud., pp. 31-32). I.T. told him to stop touching her, at which

point he told her “I was trying to hold you and I’m sorry.” (Ud., p. 32). Defendant asked when

this happened, and Plaintiff responded that he did not remember, but added that it did not

4! happen often, only “[o]nce in a while.” (/d., p. 30). Plaintiff further stated, “That’s the only

closest thing I can get to her, but I know it’s not right.” U/d.). When Defendant pushed

Plaintiff further on I.T.’s claim that he had touched her groin area, Plaintiff claimed that he

never touched her in the groin area and stated: “Nothing like that . . . because basically, I don’t

have time for that, first of all. Second it’s against my own rules. Against my own, you know,

reputation. My sister is — leaving her with me and she’s seven — not even seven.” (/d., p. 36).

Defendant then asked Plaintiff: “So, how many times do you think you touched her,

where it could have been inappropriate?” (/d., p. 41). Despite his previous denials of any

inappropriate touching, Plaintiff responded: “A few because basically most of the time, . . . she

feels like she needs her father, as well as she sees me as a father figure.” (/d.). Plaintiff stated

that: “I don’t see it’s inappropriate because we pretty much not doing anything and not even

grabbing, or rubbing or stuff like that.” (Ud., pp. 42-43).

At the end of the interview, Defendant asked Plaintiff about any inappropriate sexual

desires towards children, to which Plaintiff responded that he didn’t have a girlfriend and

stated: “[M]y point is you don’t have any action, let’s say that, for a while, you have those

feelings when pretty much anything moves .... So, if somebody approaching you, you have

that feeling like wow this feels so good, so might as well do a little bit of this. I don’t think she

would mind. That’s the way I see it.” (/d., pp. 47-48). Plaintiff repeated his denials about

ever touching I.T. inappropriately, and he denied any sexual interest in or satisfaction from

touching her. (See id., pp. 45-47).

According to Defendant, based on the facts and circumstances known at the time, he

concluded that there was probable cause to arrest Plaintiff for sexual abuse in the first degree.

(Dkt. No. 72-3, § 10). Defendant also decided to contact Delaware County Chief Assistant

4! District Attorney John Hubbard to seek further assurance that probable cause existed. (/d., J

11). According to Defendant:

I told Hubbard that a child in Margaretville told a social services

caseworker about inappropriate touching, and that the child would

not speak to me at the school. I told [Hubbard] that the caseworker

reported that I.T. said she was touched on more than one occasion

in a private area. I also told Hubbard that I interviewed [Plaintiff],

who confirmed that inappropriate touching occurred, but stated that

the touching was accidental and that he apologized to I.T. Hubbard

told me that he believed there was probable cause to arrest

[Plaintiff].

(d.; see also Dkt. No. 83-7, pp. 12-15, 20). On December 18, 2015, Defendant arrested

Plaintiff and filed a felony complaint in Town of Middletown court charging him with sexual

abuse in the first degree. (Dkt. No. 85, § 46; Dkt. No. 72-12). Approximately five to six hours

later, Plaintiff was released on bail, and the court ordered that Plaintiff stay away from I.T., her

mother, and her brother. (Dkt. No. 72-9, pp. 3-6; Dkt. No. 85, 47-48).

2 Plaintiff was arraigned on December 23, 2015, and he appeared in town court on

January 27, 2016 and April 13, 2016 for his felony hearing. (Dkt. No. 85, {fj 49-50). On

September 21, 2016, the case was dismissed. (/d., § 50). According to Chief ADA Hubbard,

his office declined to proceed with the case because I.T.’s mother was “very uncooperative,”

and told Hubbard that she did not want the case prosecuted. (Dkt. No. 83-7, p. 62). Under

those circumstances, Hubbard decided not to subpoena I.T. because he “wasn’t going to put a

six-year-old through a preliminary hearing.” (/d.).

On March 17, 2017, Plaintiff filed the instant action in state court against numerous

parties, including Defendant, for alleged illegal seizure, false arrest, and malicious prosecution.

(Dkt. No. 3). The case was removed to this Court on April 4, 2017. (Dkt. No. 1).

LEGAL STANDARD

Under Federal Rule of Civil Procedure 56(a), summary judgment may be granted only

if all the submissions taken together “show that there is no genuine issue as to any material fact

and that the moving party is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett,

477 U.S. 317, 322 (1986); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48

(1986). The moving party bears the initial burden of demonstrating “the absence of a genuine

| issue of material fact.” Celotex, 477 U.S. at 323. A fact is “material” if it “might affect the

outcome of the suit under the governing law,” and is genuinely in dispute “if the evidence is

such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477

U.S. at 248; see also Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005) (citing

Anderson). The movant may meet this burden by showing that the nonmoving party has

“fail[ed] to make a showing sufficient to establish the existence of an element essential to that

z| party’s case, and on which that party will bear the burden of proof at trial.” Celotex, 477 USS.

at 322; see also Selevan v. N.Y. Thruway Auth., 711 F.3d 253, 256 (2d Cir. 2013) (summary

judgment appropriate where the nonmoving party fails to “‘come forth with evidence sufficient

to permit a reasonable juror to return a verdict in his or her favor on’ an essential element of a

claim” (quoting Jn re Omnicom Grp., Inc. Sec. Litig., 597 F.3d 501, 509 (2d Cir. 2010))).

If the moving party meets this burden, the nonmoving party must “set out specific facts

showing a genuine issue for trial.” Anderson, 477 U.S. at 248, 250; see also Celotex, 477 US.

at 323-24; Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009). “When ruling on a summary

judgment motion, the district court must construe the facts in the light most favorable to the

non-moving party and must resolve all ambiguities and draw all reasonable inferences against

A! the movant.” Dallas Aerospace, Inc. v. CIS Air Corp., 352 F.3d 775, 780 (2d Cir. 2003). Still,

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

to the material facts,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586

(1986), and cannot rely on “mere speculation or conjecture as to the true nature of the facts to

overcome a motion for summary judgment,” Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 12 (2d

Cir. 1986) (quoting Quarles v. Gen. Motors Corp., 758 F.2d 839, 840 (2d Cir. 1985)).

.| Furthermore, “[m]Jere conclusory allegations or denials . . . cannot by themselves create a

genuine issue of material fact where none would otherwise exist.” Hicks v. Baines, 593 F.3d

159, 166 (2d Cir. 2010) (quoting Fletcher v. Atex, Inc., 68 F.3d 1451, 1456 (2d Cir. 1995)).

IV. DISCUSSION

Following the Court’s Order on the Defendants’ motion to dismiss, there are two

remaining causes of action against Defendant: (1) false arrest; and (2) malicious prosecution.”

(See Dkt. No. 36). In moving for summary judgment, Defendant argues that: (1) Plaintiff’s

claims fail because Defendant had probable cause to arrest and initiate the prosecution; and (2)

Defendant is otherwise entitled to qualified immunity because there was at least arguable

probable cause. (See generally Dkt. No. 72-1). The Court will assess each claim in turn.

* Plaintiff asserts his claims of false arrest and malicious prosecution under both state and federal law.

(See Dkt. No. 41).

A. False Arrest

Defendant argues that Plaintiff's false arrest claim must fail because Defendant had

probable cause to arrest him based on the totality of the circumstances at the time. (Dkt. No.

72-1, pp. 9-14). In response, Plaintiff contends that there are issues of fact which preclude a

finding of probable cause. (Dkt. No. 79, p. 13).

A 1. Applicable Law

When evaluating Section 1983 claims of false arrest, courts “‘generally look[ ] to the

law of the state in which the arrest occurred.’” Russo v. City of Bridgeport, 479 F.3d 196, 203

(2d Cir. 2007) (quoting Davis v. Rodriguez, 364 F.3d 424, 433 (2d Cir. 2004)). In New York,

a claim for false arrest requires the plaintiff to show that: “(1) the defendant intended to

confine him, (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not consent

| to the confinement[;] and (4) the confinement was not otherwise privileged.” Ackerson v. City

of White Plains, 702 F.3d 15, 19 (2d Cir. 2012) (quoting Broughton v. State of New York, 37

N.Y.2d 451, 456 (1975)).

“To avoid liability for a claim of false arrest, an arresting officer may demonstrate that

either (1) he had probable cause for the arrest, or (2) he is protected from liability because he

has qualified immunity.” Simpson v. City of New York, 793 F.3d 259, 265 (2d Cir. 2015). As

z| to probable cause, a police officer “has probable cause to arrest when he or she 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.” Garcia v. Does, 779 F.3d 84, 92 (2d Cir. 2015). In the context of

summary judgment, “where there is no dispute as to what facts were relied on to demonstrate

probable cause, the existence of probable cause is a question of law for the court.” Walczyk v.

Rio, 496 F. 3d 139, 157 (2d Cir. 2007) (citation omitted).

A court examines each piece of evidence and considers its probative value, and then

looks to the totality of the circumstances to evaluate whether there was probable cause to

arrest. Panetta v. Crowley, 460 F.3d 388, 395 (2d Cir. 2006) (quotation marks omitted). The

A! existence of probable cause at the time of arrest is a complete defense to a claim for false

arrest. Torraco v. Port Auth. of New York and New Jersey, 615 F.3d 129, 139 (2d Cir. 2010)

(quoting Jaegly v. Couch, 439 F.3d 149, 152 (2d Cir. 2006)). An officer typically has probable

cause to arrest “if he received his information from some person, normally the putative victim

or eyewitness, who it seems reasonable to believe is telling the truth.” Miloslavsky v. AES

Eng’g Soc., Inc., 808 F. Supp. 351, 355 (S.D.N.Y. 1992), aff'd, 993 F.2d 1534 (2d Cir. 1993).

However, an officer may not rely on such statements if there are “circumstances that raise

doubts as to the victim’s veracity.” Mistretta v. Prokesch, 5 F. Supp. 2d 128, 133 (E.D.N.Y.

1998) (quotation omitted).

2. Arguments

Defendant contends that probable cause was supported by three categories of evidence:

(1) I.T.’s statements to Cumpston; (2) Plaintiffs statements to State Police; and (3)

communication between State Police and Chief ADA Hubbard. (Dkt. No. 72-1, pp. 9-14).

Specifically, Defendant asserts that I.T.’s statements supported probable cause because I.T.

claimed that Plaintiff had touched her inappropriately more than one time, and that she told

Plaintiff to stop touching her. (/d., pp. 10-11). Defendant further claims that Plaintiffs

statements to Defendant also support probable cause because Plaintiff confirmed that he

touched I.T. inappropriately and that I.T. told him not to touch her. (/d., p. 12). According to

10

Defendant, Plaintiff's apparent backtracking and minimization of his conduct “would lead any

reasonable officer to conclude that I.T. was telling the truth and that [there was] probable cause

to arrest.” (/d.). Finally, Defendant points to his consultation with Chief ADA Hubbard, who,

after weighing all of the information that Defendant had collected, also concluded that there

was probable cause to arrest. (/d., pp. 13-14). Defendant adds that Plaintiff's focus on alleged

A! deficiencies in Cumpston’s interview with I.T. is misplaced because probable cause depends

on the totality of the circumstances. (Dkt. No. 84, p. 2).

In response, Plaintiff claims that Defendant’s reliance on Cumpston’s interview was

improper because Cumpston was “untrained in forensic interviewing,” and “made no inquiry as

to whether the touching involved ‘sexual gratification’ ....” (Dkt. No. 79, p. 13). Plaintiff

asserts that Defendant erred by relying on Cumpston’s “unreliable” interview, and by

| otherwise failing to corroborate Cumpston’s findings through his own interview. (/d., p. 14).

Moreover, Plaintiff asserts that Defendant erred by disregarding his training, “which required

him to determine a bilingual child’s primary language at home and the need for an interpreter

no matter how well I.T. spoke English at school.” (/d.). Plaintiff claims that these alleged

deficiencies during I.T.’s interviews with investigators “create genuine factual and material

issues of reliability and credibility which must be determined by the trier of fact.” (/d., p. 17).

Further, Plaintiff argues that Defendant improperly relied on Plaintiff’s statements to

police because “Defendant cherry-picks sentences out of the video transcript [from Plaintiffs

interview] to inculpate [Plaintiff].” (Ud., pp. 18-19). Plaintiff also asserts that Defendant’s

consultation with ADA Hubbard does not support probable cause because Hubbard “was

informed about some of the evidence but not all of the evidence, or lack thereof’ and because

11

Defendant “was going to arrest [Plaintiff] even without speaking with the D.A.” (d., pp. 20-

22).

3. Analysis

The parties only dispute the fourth element of Plaintiffs false arrest claim, that 1s,

whether his confinement was privileged by probable cause. As relevant here, “‘a person is

A! guilty of sexual abuse in the first degree when he or she subjects another person to sexual

contact ... when the other person is less than eleven years old.” N.Y. Penal Law § 130.65(3).

Sexual contact means “‘any touching of the sexual or other intimate parts of a person for the

purpose of gratifying sexual desire of either party.” N.Y. Penal Law § 130.00(3). “It includes

the touching of the actor by the victim, as well as the touching of the victim by the actor,

whether directly or through clothing ....” /d. Thus, the question is whether Defendant had

| probable cause, based on the totality of circumstances, to reasonably believe that Plaintiff had

subjected I.T. to sexual contact.

Based on the facts available to Defendant at the time, the Court finds that there was

probable cause to arrest Plaintiff. The record shows that Defendant’s investigation began with

a report from DSS caseworker Cumpston that I.T. had made a credible allegation of sexual

abuse. (Dkt. No. 72-3, 9] 3-6; see also Dkt. No. 72-4, pp. 3-9). Cumpston conducted two

z| separate interviews with I.T., during which I.T. consistently alleged that: (1) Plaintiff touched

her “private parts” on multiple occasions; (2) that only I.T. and Plaintiff were home at the time;

(3) the touching occurred when she entered Kindergarten; and (4) her uncle was no longer

touching her inappropriately. (See Dkt. No. 72-4, pp. 4-5, 8-9; see also Dkt. No. 83-2, p.

107). I.T. specified that Plaintiff had touched her groin area on the outside of her pants. (Dkt.

12

No. 72-4, pp. 7-8). Cumpston then informed Defendant of I.T.’s allegations. (Dkt. No. 83-2,

pp. 112-13).

I.T.’s allegations support a finding of probable cause because her account describes

repeated sexual contact by Plaintiff with a six-year-old. Despite I.T.’s young age, her

allegations were specific and consistent across both interviews. Further, Defendant reported

A| that he found I.T. to be “extremely intelligent and extremely articulate from the conversation

[he] had with her.” (Dkt. No. 83-1, p. 83). Although Plaintiff objects to the interview

techniques used by Cumpston, there is no indication that I.T. was induced to allege that

Plaintiff touched her inappropriately, or that any language barrier affected her allegations. (See

generally Dkt. Nos. 72-4, 83-1, 83-2, 83-8). Nor does Plaintiff raise any doubts that I.T.’s

allegations appeared to be credible. (See Dkt. No. 79, pp. 12-17). Plaintiff's sexual

| gratification motive can also be inferred from I.T.’s account. See People v. Haves, 962

N.Y.S.2d 443, 447 (3d Dep’t 2013) (noting that a “defendant’s sexual gratification motive can

be readily inferred from his conduct in subjecting the young victim to repeated unwanted

touching of her intimate parts”). Therefore, the record shows that Defendant reasonably relied

on I.T.’s allegations, which supported probable cause to arrest.°

? Rather than attacking the veracity of I.T.’s allegations, Plaintiff primarily argues that the interview

| techniques that Cumpston employed were improper and contrary to “best practices.” (See Dkt. No. 79,

pp. 12-17; see also Dkt. No. 80). Specifically, Plaintiff claims that the interviews were critically flawed

because Cumpston: (1) was untrained in forensic interviewing, including the use of anatomical dolls; (2)

failed to keep contemporaneous notes during the interview, or otherwise inappropriately discarded them;

and (3) failed to question LT. as to whether the touching involved “sexual gratification,” thereby failing

to preclude permissible alterative reasons for the touching. (Dkt. No. 79, pp. 13-14). Plaintiff further

claims that Defendant erred by improperly relying on Cumpston’s flawed interviews, and otherwise

disregarded important aspects of his own forensic interview training, such as: (1) determining a bilingual

child’s primary language to assess the need for an interpreter; (2) corroborating the abuse allegations

through his own interview rather than through a third party’s interview; and (3) failing to personally

observe any of the interviews where I.T. made statements about the nature of the alleged inappropriate

touching. (/d., pp. 14-17). Despite these critiques, it is well-established that the failure to follow alleged

“best practices” does not vitiate the existence of probable cause under the circumstances here. See

Panetta, 460 F.3d at 395—96 (noting that “the fact that an innocent explanation may be consistent with

13

To the extent Plaintiff argues that Defendant improperly relied on Cumpston’s

interview of I.T., as opposed to conducting his own, it 1s well-established that officers may rely

on social workers and school officials, particularly in sensitive cases where, as here, young

children are reluctant to share sensitive information with law enforcement. See, e.g., Brown v.

City of New York, No. 16-CV-1919, 2018 WL 3821620, at *7, 2018 U.S. Dist. LEXIS 135478,

*19 (S.D.N.Y. Aug. 10, 2018) (“[I]t is undisputed that, at that time, [Detective] Cardona was

aware that a school official—a complaining witness—had filed a report of suspected child

abuse with NYSOCES, which was thereafter referred to the NYPD, noting that E.B. had

lacerations/bruises/welts as a result of her father pinching her. This establishes probable cause

to arrest Mr. Brown for assault in the third degree, among other things.”); Peterson-Hagendorf

v. City of New York, 146 F. Supp. 3d 483, 485-87 (E.D.N.Y. 2015) (dismissing a false arrest

| claim at summary judgment upon finding of probable cause to arrest a teacher for endangering

the welfare of a child based upon the school principal’s observation of a welt on the child’s

neck, as well as interviews of the child by several individuals during which the child

consistently described the teacher’s physical abuse).

The other piece of evidence available to Defendant was Plaintiff's interview at the

police barracks, which was video recorded.’ During the interview, Plaintiff stated that there

the facts alleged does not negate probable cause,” and “[a]lthough a better procedure may be for the

officers to investigate plaintiff's version of events more completely, the arresting officer does not have to

prove plaintiffs version wrong before arresting him”); see also Haves v. City of New York, No. 12-CV-

4370, 2014 WL 4626071, at *10—-11, 2014 U.S. Dist. LEXIS 92953, at *29-33 (S.D.N.Y. Sept. 15, 2014)

(finding no error in the defendant officer’s probable cause finding where, despite purportedly inadequate

investigation techniques, there was probable cause for the arrest). The Court finds that none of the

critiques posed by Plaintiff raise doubts about the veracity of I.T.’s allegations or the material facts

supporting probable cause.

“In considering the interview, the Court has reviewed both the video recording and the written transcript.

(See Dkt. Nos. 72-3, Ex. 1; 83-6).

14

were “a few” times when he touched I.T. where it could have been inappropriate. (Dkt. No.

83-6, p. 41). Plaintiff asserts that these statements were “cherry picked” from the transcript,

but there is no dispute that he admitted to hugging I.T. and touching her leg, and Plaintiff

acknowledged that there was at least one occasion where I.T. told him to stop hugging and

touching her. (/d., pp. 28, 30-31, 36). Plaintiff's interview is consistent with I.T.’s account on

A! several important points: (1) the touching occurred more than once; (2) the touching occurred

on the couch; (3) the touching could have been considered inappropriate; and (4) that I.T. told

Plaintiff to stop touching her. (Compare Dkt. No. 72-4, pp. 4-5, 7-8, with Dkt. No. 83-6, pp.

29-32, 41-42).

Although Plaintiff claims that any inappropriate touching was accidental, it is well-

established that “a suspect’s denials are insufficient to obviate probable cause,” and “the fact

| that an innocent explanation may be consistent with the facts alleged does not negate probable

cause.” Weiner v. McKeefery, 90 F. Supp. 3d 17, 32 (E.D.N.Y. 2015) (citations omitted).

Moreover, “[a]n arresting officer thus does not have a ‘duty to investigate exculpatory defenses

offered by the person being arrested or to assess the credibility of unverified claims of

justification before making an arrest.” Yorzinski v. City of New York, 175 F. Supp. 3d 69, 76

(S.D.N.Y. 2016) (quoting Jocks v. Tavernier, 316 F.3d 128, 135-36 (2d Cir. 2003)). Indeed,

Plaintiffs explanation during the interview could be seen as an attempt to minimize and deflect

from his wrongdoing. See Brown, 2018 WL 3821620, at *8, 2018 U.S. Dist. LEXIS 135478,

at *19-20 (“That the Browns or E.B. may have later minimized the pinch as playful ‘does not

preclude a finding that [the officer] had probable cause’ to arrest Mr. Brown, especially in the

absence of any reason to doubt the credibility of the unequivocal accounts regarding the

interaction and E.B.’s injury.”’) (citation omitted).

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Further, Plaintiff made several statements during the interview that could be fairly

interpreted to infer that he touched I.T. for his own sexual gratification. For example, Plaintiff

explained that he did not have a girlfriend, and then, despite denying having any inappropriate

sexual interests in I.T., stated that “my point is that [if] you don’t have any action... fora

while, you have those feelings when pretty much anything moves.” (Dkt. No. 83-6, p. 48). He

A! continued on to say: “So, if somebody [is] approaching you, you have that feeling like wow

this feels so good, so might as well do a little bit of this. I don’t think she would mind. That’s

the way I see it.” (/d.). Prior to making those comments, Plaintiff had backtracked on whether

he had ever touched I.T. inappropriately, ultimately admitting that there were at least “a few”

times where his contact with her could be considered inappropriate, and further acknowledging

that I.T. told him directly to stop touching her. (See generally Dkt. No. 83-6, pp. 15, 19, 27-

| 32, 35-36, 41-42). Plaintiff also stated that he understood the law, and noted that he would not

have touched I.T. inappropriately because: “I know I’Il be in trouble. A hundred percent in

trouble. I know I can go to the jail and I know I probably be doing fifteen years in jail.” (d.,

pp. 24, 39). Putting aside Plaintiff's self-serving denials, his other statements could reasonably

be interpreted in the overall context as suggesting that touching I.T. was sexually motivated,

thereby adding to the facts supporting probable cause.

Looking at the totality of the circumstances, there is no dispute as to the facts available

to Defendant at the time of Plaintiff’s arrest. I.T.’s allegations describing sexual contact by

Plaintiff supported a finding of probable cause to arrest Plaintiff for sexual abuse, and

Plaintiff's interview did not change that. Accordingly, the Court concludes as a matter of law

that Defendant had probable cause to arrest Plaintiff for sexual abuse in the first degree.

Therefore, Defendant is entitled to summary judgment on Plaintiffs false arrest claims. See

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Weiner, 90 F. Supp. 3d at 28-33 (dismissing the plaintiffs false arrest claim on summary

judgment where the arresting officers’ probable cause determination relied upon abuse

allegations from child witnesses); see also Callahan v. City of New York, 90 F. Supp. 3d 60,

68-69 (E.D.N.Y. 2015) (dismissing the plaintiff's false arrest claim on summary judgment

where the arresting officers had probable cause to arrest the plaintiff for child endangerment);

4! Donovan vy. Briggs, 250 F. Supp. 2d 242, 250-53 (W.D.N.Y. 2003) (dismissing the plaintiff's

false arrest claim where there was probable cause to arrest the plaintiff for sexual abuse,

despite questions about the victim’s reliability).

B. Malicious Prosecution

Next, Defendant argues that Plaintiff's malicious prosecution claim fails because the

probable cause for Plaintiffs arrest also supported his prosecution. (Dkt. No. 72-1, p. 15). In

| response, Plaintiff claims that any probable cause supporting the arrest “dissipated” between

the date of the arrest and the felony hearing. (Dkt. No. 79, pp. 22-24).

1. Applicable Law

To prevail on a Section 1983 claim for malicious prosecution, “a plaintiff must show a

violation of his rights under the Fourth Amendment . . . and must establish the elements of a

malicious prosecution claim under state law.” Manganiello v. City of New York, 612 F.3d 149,

161 (2d Cir. 2010) (citations omitted). Under New York law, a plaintiff must establish four

elements for a malicious prosecution claim: “(1) the initiation or continuation of a criminal

proceeding against plaintiff; (2) termination of the proceeding in plaintiff's favor; (3) lack of

probable cause for commencing the proceeding; and (4) actual malice as a motivation for

defendant’s actions.” /d. (quotations and other citations omitted); see also Dufort v. City of

New York, 874 F.3d 338, 350 (2d Cir. 2017). Because lack of probable cause is an element of

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the offense, “the existence of probable cause is a complete defense to a claim of malicious

prosecution.” Manganiello, 612 F.3d at 161-62 (quoting Savino v. City of New York, 331 F.3d

63, 72 (2d Cir. 2003)).

2. Arguments

In support of summary judgment, Defendant relies on his previous analysis supporting

the arrest, and further asserts that the “probable cause analysis is the same in the false arrest

and malicious prosecution contexts where the plaintiff does not allege that there was any

difference in the facts known to police officers between arrest and arraignment.” (Dkt. No. 72-

1, p. 15). Plaintiff counters that probable cause had dissipated because, “by the time of the

felony hearing, some four months after [P]laintiff’s arrest, [Defendant] was seeking a further

interview with I.T. because he needed to ‘confirm’ the touching, without which he recognized

| there “was no case.’” (/d., pp. 23-24). The parties also dispute whether the facts support a

finding that Defendant acted with malice in initiating Plaintiff's prosecution. (See Dkt. Nos.

72-1, p. 15; 79, pp. 22—24; 84, p. 5).

3. Analysis

As discussed above, the facts at the time of Plaintiffs arrest supported a reasonable

finding of probable cause for sexual abuse in the first degree. Although Plaintiff suggests that

z| the probable cause dissipated between his arrest and the felony hearing, he does not identify

any intervening facts, besides Defendant’s wish to conduct another interview with I.T.

However, for probable cause to dissipate, “the groundless nature of the charges must be made

apparent by the discovery of some intervening fact.” Kinzer v. Jackson, 316 F.3d 139, 144 (2d

Cir. 2003) (quoting Lowth v. Town of Cheektowaga, 82 F.3d 563, 571 (2d Cir. 1996)).

Therefore, “the question is whether either the evidence gathered after arrest undermined a

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finding of probable cause, or whether the [ ] [d]efendants’ inquiry into the alleged [crime] so

far departed from what a reasonable person would have undertaken as to itself constitute

evidence of lack of probable cause.” Rae v. County of Suffolk, 693 F. Supp. 2d 217, 227

(E.D.N.Y. 2010).

In this case, Plaintiff points to the transcript from Defendant’s testimony at the felony

hearing, in which Defendant stated that he felt the prosecution needed to re-confirm I.T.’s

statements to move forward. (See Dkt. No. 79, pp. 23-24). According to Defendant, he

believed that it was necessary for I.T. to re-confirm her earlier abuse allegations for the case to

proceed against Plaintiff after his arrest. (Dkt. No. 83-1, pp. 119-22). Regardless of

reconfirmation, Defendant still felt there was probable cause because “[I.T.’s] disclosure and

certain admissions made by [Plaintiff] forced [investigators] to believe there was sexual

conduct, [that] it was for his gratification and the arrest was made.” (/d., p. 124).

Significantly, Defendant’s opinions on the likely success of the case without

reconfirmation had no effect on I.T.’s prior statements, which themselves supported a finding

of probable cause. In other words, Defendant’s wish to re-confirm I.T.’s allegations does not

demonstrate any change in the available evidence regarding Plaintiff’s alleged commission of

sexual abuse. Thus, Plaintiff has not identified any intervening facts or exculpatory evidence

4| which dissipated or otherwise diminished the probable cause from the time of his arrest. Since

there is no evidence of dissipation, the prosecution began with the same facts supporting

probable cause from the time of Plaintiffs arrest. Therefore, the Court can conclude as a

matter of law that probable cause also supported the prosecution, for the same reasons

discussed above. See Kaskell v. Compagnone, 664 F. App’x 109, 111-12 (2d Cir. 2016)

(affirming the dismissal of a malicious prosecution claim where probable cause for the

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plaintiffs arrest for child abuse was supported by allegations from the mother of the victims,

the arresting officer’s experience, and a pediatrician’s report of suspected child abuse); see also

Lanning v. City of Glens Falls, No. 16-CV-132, 2017 WL 922058, at *4, 2017 U.S. Dist.

LEXIS 32878, at *11—12 (N.D.N.Y. Mar. 8, 2017) (rejecting the plaintiff's dissipation theory

where there were no new facts learned between the arrest and the arraignment) (citing

“| Kanderskaya v. City of New York, 11 F. Supp. 3d 431, 437 (S.D.N.Y. 2014), aff'd, 590 F.

App’x 112 (2d Cir. 2015)).

Furthermore, there is no evidence in the record to permit a rational inference that

Defendant acted with malice in initiating Plaintiff's prosecution. Defendant’s alleged failure to

follow best practices, even if true, does not demonstrate that he acted with improper or

wrongful motives, nor does it show reckless disregard of Plaintiffs rights. And the record

Shows that, before arresting Plaintiff, Defendant consulted with Chief ADA Hubbard to

confirm his opinion that probable cause existed, which vitiates any possible finding of malice.

(Dkt. No. 72-3, 9.11). See Cilauro v. Duff, No. 06-CV-0498, 2009 WL 2259142, at *3—-4, 2009

U.S. Dist. LEXIS 67367, at *9-11 (N.D.N.Y. July 29, 2009) (dismissing the plaintiff's

malicious prosecution claim where, among other things, the record contained no evidence that

the defendant was motivated by malice); Rizzo v. Edison, Inc., 419 F. Supp. 2d 338, 349

(W.D.N.Y. 2005) (same). Accordingly, Defendant is entitled to summary judgment on

Plaintiff's malicious prosecution claims.

C. Qualified Immunity

In the alternative, Defendant claims that “even if [Defendant] did not have probable

cause to arrest the plaintiff, he is entitled to qualified immunity because he had ‘arguable

probable cause.’” (Dkt. No. 72-1, pp. 15-17). Plaintiff disagrees. (Dkt. No. 84, p. 6).

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1. Applicable Law

Qualified immunity establishes a defense for a government actor acting in his official

capacity. Malley v. Briggs, 475 U.S. 335, 341 (1986). It “provides ample protection to all but

the plainly incompetent or those who knowingly violate the law.” Jd. In the context of false

arrest and malicious prosecution claims, an officer is entitled to qualified immunity if he had

A! “arguable probable cause,” which means that “officers of reasonable competence could

disagree on whether the probable cause test was met.” Gonzalez v. City of Schenectady, 728

F.3d 149, 157 (2d Cir. 2013) (quoting Jenkins v. City of New York, 478 F.3d 76, 87 (2d Cir.

2007)).

2. Arguments

Defendant contends that, at a minimum, reasonable officers could disagree as to

| whether based on all the facts there was probable cause to believe that Plaintiff committed

sexual abuse in the first degree. (Dkt. No. 72-1, pp. 15-17). Defendant adds that any failure

by him to comply with “best practices” or training, even if true, “do[es] not automatically

negate qualified immunity.” (Dkt. No. 84, p. 6).

In response, Plaintiff asserts that Defendant “is not entitled to qualified immunity

because there are numerous issues of genuine and material fact,” including that Defendant: (1)

“erroneously relied on Cumpston’s interview results when he knew that she was untrained in

forensic interviewing”; and (2) “could not reasonable [sic] rely on Cumpston as a ‘fellow

officer’ because she was a DSS caseworker untrained in the work of a Senior Investigator for

the State Police, and because [Defendant] was called to the scene by Cumpston specifically to

take over the investigation ....” (Dkt. No. 79, pp. 24-25). Further, Plaintiff asserts that an

officer of reasonable competence could not have made the same choice because “[t]he record

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reveals that [Defendant] disregarded the operating NYSP ‘methodology’ in forensic child

interviews contained in his course curriculum,” which Plaintiff claims, “creates at least a

genuine factual and material issue as to whether any reasonably competent state police forensic

interviewer could rely on the information obtained in this case... .” (/d., pp. 25-26).

3. Analysis

As discussed above, the Court finds as a matter of law that based on the information

available to Defendant, probable cause existed to arrest Plaintiff and initiate his prosecution.

Necessarily it follows that the information available to Defendant also satisfied the lesser

standard for arguable probable cause. Furthermore, the fact that Defendant relied on

Cumpston’s interview with I.T. does not show that he acted unreasonably, as discussed above.

And the fact that Defendant sought the advice of Chief ADA Hubbard, and that Hubbard

agreed that there was probable cause to arrest Plaintiff, shows that Defendant’s actions were

reasonable. See Strawn v. Holohan, No. 04-CV-1292, 2008 WL 65586, at *6, 2008 U.S. Dist.

LEXIS 618, at *18—-19 (N.D.N.Y. Jan. 4, 2008) (finding that the arresting officer’s consultation

with the district attorney’s office prior to the arrest “is a factor supporting the reasonableness of

[the officer’s] actions”); see also Dale v. Kelley, 908 F. Supp. 125, 137-38 (W.D.N.Y. 1995)

(noting that police officers must be able to rely on advice of prosecutors and holding that

z| defendant was entitled to qualified immunity where he was “acting at the direction of an

Assistant District Attorney”), aff'd, 95 F.3d 2 (2d Cir. 1996).

Accordingly, even if the facts available to Defendant fell short of probable cause, there

was at least arguable probable cause to arrest Plaintiff for sexual abuse in the first degree and

initiate his prosecution. Therefore, Defendant is entitled to qualified immunity on Plaintiff's

Section 1983 claims. See Betts v. Shearman, 751 F. 3d 78, 83 (2d Cir. 2014) (holding that the

22

existence of arguable probable cause entitled arresting officers to qualified immunity on the

plaintiff's malicious prosecution claim); see also Donovan, 250 F. Supp. 2d at 253-60 (holding

that the defendants were entitled to qualified immunity where there was at least arguable

probable cause to arrest the plaintiff); Fleurimond v. Holder, 403 F. Supp. 3d 95, 107-111

(E.D.N.Y. 2019) (same).

AlV. CONCLUSION

For these reasons, it is

ORDERED that Defendant’s motion for summary judgment (Dkt. No. 72) is

GRANTED, and it is further

ORDERED that Plaintiff's Amended Complaint (Dkt. No. 41) is DISMISSED with

prejudice; and

ORDERED that Plaintiffs request to amend the Amended Complaint is denied as

moot; and finally, it is

ORDERED that the Clerk provide a copy of this Memorandum-Decision and Order to

the parties in accordance with the Local Rules of the Northern District of New York.

IT IS SO ORDERED.

Date: March 31, 2020

Syracuse, New York

Dron,

Senior U.S. District Judge

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