Ramos v. City of New York

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK USDC SDNY

DOCUMENT

MIGUEL RAMOS, BLECTRONICALLY FILED

DOC#:

DATE FILED: _7/162020 —___

Plaintiffs,

ragainst- 1:18-ev-04938 (ALC)

THE CITY OF NEW YORK ET AL., P.O.

LENONOXAN SAMERSON, and P.O. OPINION AND ORDER

“JOHN” GANDOLFI, in their official and

individual capacity,

Defendants.

ANDREW L. CARTER, JR., United States District Judge:

INTRODUCTION

On June 7, 2019, Plaintiff Miguel Ramos filed a complaint against the City of New York

and two Police Officers, Lennoxan Samerson and Frank Gandolfi, for false arrest and malicious

prosecution in violation of 42 U.S.C. §1983; failure to intervene in these constitutional violations;

violations of his state constitutional rights by the same arrest; and certain other claims that have

since been withdrawn. Defendants moved for summary judgement as to Mr. Ramos’s federal

claims.

After careful consideration, Defendants’ motion for summary judgment is GRANTED.

BACKGROUND

On the morning of May 16, 2016, Lennoxan Samerson and Frank Gandolfi were working

as plain clothes officers in Transit District 4 in the New York City Subway. (Defendants’

Responses and Objections to Plaintiff’ s Statement of Facts in Opposition to Defendant’ Statement

of Undisputed Facts Pursuant to Local Rule 56.1 (“Joint 56.1”), ECF No. 46, ¶¶ 1-2, 4.) The

Officers began their shift on the Northbound 4, 5, 6 platform at 14th Street – Union Square at

sometime between 7:30 and 9:00 am. (Joint 56.1 ¶¶ 5-7.) Mr. Ramos was on the subway that day

as well.

In the course of their patrol, the Officers saw a man, who will be referred to as Suspect 1,

standing suspiciously on the Northbound 6 train platform at 14th Street and leering at women’s

buttocks. (Joint 56.1 ¶¶ 18-19). Shortly after boarding the same train as Suspect 1, Officer

Samerson saw Suspect 1 put his body square against the back of a female passenger and push his

groin against her. (Joint 56.1 ¶ 20). Officer Samerson was not able to catch up with the victim to

speak with her, (Joint 56.1 ¶ 22), and she and Officer Gandolfi continued to follow Suspect 1 on

the train. (Joint 56.1 ¶¶ 22-23, 50-51.) The Officers followed Suspect 1 to a new car on the train,

then onto the 42nd Street platform. (Joint 56.1 ¶¶ 26-31.)

For his part, Mr. Ramos denies that he crossed paths with the Officers until directly before

his arrest (impliedly denying that he is Suspect 1). He points to the fact that a metrocard in his

possession at the time of arrest showed an entry at the 77th Subway Station at 8:06 a.m. and at 42nd

Street – Grand Central Station at 8:06 a.m. (Joint 56.1 ¶¶ 9-10.) In his view these times are

inconsistent with his being Suspect 1; the Defendants disagree.

However, it is undisputed that Mr. Ramos, the Officers, and a woman, who will be referred

to as A.S., boarded the same car of an Uptown 6 train at 42nd street. During the ride, A.S. felt

someone touching her buttocks without consent. (Joint 56.1 ¶ 33.) Officer Samerson testified that

she observed Mr. Ramos grinding his groin into the buttocks of A.S. (Joint 56.1 ¶ 34.) Mr. Ramos

purports to dispute Officer Samerson’s account, but, as will be discussed in greater length, fails to

create a genuine dispute of fact as to her account.

When A.S. got off the train at the next stop, Officer Samerson followed her and asked her

if anything unusual happened on the 6 train. (Joint 56.1 ¶¶ 35-36.) A.S. confirmed that someone

had touched her buttocks on the train. (Joint 56.1 ¶ 37.) However, A.S. did not participate in an

identification procedure to identify the person who assaulted her. (Joint 56.1 ¶ 42.)

Officer Samerson radioed to Officer Gandolfi, who had stayed on the subway with Mr.

Ramos. (Joint 56.1 ¶ 38.) On the basis of Officer Samerson’s radio, Officer Gandolfi arrested Mr.

Ramos. (Joint 56.1 ¶ 39.)

Mr. Ramos was arraigned at New York County Criminal Court and charged with two

counts of Forcible Touching and two counts of Sexual Abuse in the Third Degree, to which he

plead not guilty. (Joint 56.1 ¶ 45.)

In New York, a person is guilty of Forcible Touching “when such person intentionally, and

for no legitimate purpose: forcibly touches the sexual or other intimate parts of another person for

the purpose of degrading or abusing such person, or for the purpose of gratifying the actor's sexual

desire. . . .” N.Y. P. L. § 130.52(A)(1). A person is guilty of Sexual Abuse in the Third Degree

when “he or she subjects another person to sexual contact without the latter’s consent. . . .” N.Y.

P. L. § 130.55.

Officer Samerson swore to the facts alleged in the criminal complaint. (Joint 56.1 ¶ 61.)

On July 21, 2017, Mr. Ramos’s charges were dismissed pursuant to C.P.L. §30.30 speedy trial

provisions. (Joint 56.1 ¶ 46.)

On June 4, 2018, Mr. Ramos filed a complaint against Officers Samerson and Gandolfi,

and the City of New York. Therein, Mr. Ramos brought claims for false arrest, excessive force

and malicious prosecution in violation of 42 U.S.C. §1983; deprivation of certain rights secured

by Article 1, Section 12 of the New York Constitution; assault and battery; municipal liability by

the City of New York; and failure to intervene. Plaintiff subsequently withdrew the excessive

force, assault and battery and municipal liability claims. (ECF No. 34 at 2.)

On November 15, 2019, Defendants filed a motion for summary judgment arguing that (1)

Plaintiff’s false arrest and malicious prosecution claims fail because there was probable cause for

his arrest; (2) Plaintiff cannot show the malice element of malicious prosecution; (3) Plaintiff

cannot establish the favorable termination element of malicious prosecution; (4) Defendant

Officers are entitled to qualified immunity, and (5) Plaintiff’s failure to intervene claim fails as a

matter of law. (ECF No. 39.) Defendants also argue that Plaintiff’s Fair Trial claim failed. (ECF

No. 39 at 17.) Because Plaintiff has disclaimed that he is advancing such a claim, (ECF No. 41 at

21), the Court will not address these arguments. Defendants also argued that were this Court to

dismiss the federal claims in this matter, it should not exercise jurisdiction over the remaining state

claims. (ECF No. 39 at 24.)

On December 16, 2019, Plaintiff filed an opposition, (ECF No. 41), to which Defendants

responded on January 3, 2020, (ECF No. 45).

STANDARD OF REVIEW

Summary judgment must be granted when there is “no genuine dispute as to any material

fact and the movant[s are] entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A genuine

dispute of material fact exists “if the evidence is such that a reasonable jury could return a verdict

for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The movants

bear the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex

Corp. v. Catrett, 477 U.S. 317, 323 (1986); Feingold v. New York, 366 F.3d 138, 148 (2d Cir.

2004). Where the non-movant bears the burden of proof at trial, the movants’ initial burden at

summary judgment can be met by pointing to a lack of evidence supporting the non-movant’s

claim. Celotex Corp., 477 U.S. at 325. Once the movants meet their initial burden, the non-movant

may defeat summary judgment only by adducing evidence of specific facts that raise a genuine

issue for trial. See Fed. R. Civ. P. 56(e); Anderson, 477 U.S. at 250. The Court is to believe the

evidence of the non-movants and draw all justifiable inferences in their favor, id. at 255, but the

non-movants must still do more than merely assert conclusions that are unsupported by arguments

or facts, Bellsouth Telecomms., Inc. v. W.R. Grace & Co., 77 F.3d 603, 615 (2d Cir. 1996).

DISCUSSION

1. False Arrest

To establish a claim for false arrest under 42 U.S.C. § 1983, a plaintiff must show, inter

alia, that “the defendant intentionally confined him without his consent and without justification.”

Weyant v. Okst, 101 F.3d 845, 852 (2d Cir.1996). “[P]robable cause is an absolute defense to a

false arrest claim.” Stansbury v. Wertman, 721 F.3d 84, 89 (2d Cir. 2013).

Probable cause exists when the officers have “knowledge of, or reasonably trustworthy

information as to, facts and circumstances that are sufficient to warrant a person of reasonable

caution in the belief that an offense has been or is being committed by the person to be arrested.”

Zellner v. Summerlin, 494 F.3d 344, 368 (2d Cir.2007). “When determining whether probable

cause exists courts must consider those facts available to the officer at the time of the arrest and

immediately before it, as [p]robable cause does not require absolute certainty.” Panetta v. Crowley,

460 F.3d 388, 395 (2d Cir.2006) (internal quotations and citations omitted). “[I]it is not relevant

whether probable cause existed with respect to each individual charge, or, indeed, any charge

actually invoked by the arresting officer at the time of arrest.” Jaegly v. Couch, 439 F.3d 149, 154

(2d Cir. 2006).

Here, the question of probable cause turns on the accounts of Officer Samerson and A.S.

Officer Samerson believes that she saw Mr. Ramos assault A.S. Defendants put forth Officer

Samerson’s sworn testimony and notes indicating that she witnessed Mr. Ramos assault A.S. Mr.

Ramos, in turn, had to adduce evidence of specific facts that create a genuine issue as to Officer

Samerson’s account. The Court concludes that Mr. Ramos has not done so.

Mr. Ramos fails to demonstrate a genuine issue of fact as to whether Officer Samerson saw

Mr. Ramos inappropriately touch A.S. Mr. Ramos does not, for example, offer his own sworn

denial that he committed the assault. Rather, he points to an alleged inconsistency in a diagram of

the incident drawn by Officer Samerson. Specifically, he argues that a triable issue arises from the

fact that Officer Samerson failed to identify where on the diagram the subway door would be at a

deposition years later. According to Mr. Ramos, because “Samerson was equivocal about where

the platform would have been” she “could not have been watching Ramos commit the crime

alleged because Ramos was on the left side of the train”. (ECF No. 41 at 12.)

This attempt to create a triable issue fails. Officer Samerson testified that the purpose of

the diagram was “to show where people are standing in relation to one another, that’s it.” (ECF

No. 40-2, Samerson Dep. Tr. 65:5-9.) Consistent with her repeated sworn testimony, the diagram

shows that Samerson was standing behind Mr. Ramos, who was in turn behind A.S. Officer

Samerson was unwilling to label one side of the diagram as corresponding to the left or right side

of the train because “it’s been three years, and I didn’t make the diagram of what happened in the

train car”. (ECF No. 40-2, Samerson Dep. Tr. 66:18-25.) But, when asked where the platform

would be on her diagram, Officer Samerson testified that the “platform would have been where

everyone is by the door”. (ECF No. 40-2, Samerson Dep. Tr. 66:11-16). That is consistent with

her repeated sworn testimony of what she observed that day. Officer Gandolfi and A.S. were shown

the same diagram, and to the degree of their knowledge, gave testimony consistent with the fact

that Officer Samerson was behind Mr. Ramos who was behind A.S. (ECF No. 41 at 6-8.) This

does not create a genuine issue of fact as to the reliability of Officer Samerson’s account.

As to A.S.’s testimony, Mr. Ramos does not dispute that A.S. told Officer Samerson that

someone touched her buttocks on the subway without consent. (Joint 56.1 ¶¶ 37, 43.) Nor has he

adduced any evidence that a reasonable officer should have doubted A.S.’s account or found it to

lack credibility. Rather, he attempts to cast doubt on the weight to be given A.S.’s account in two

ways, both of which fail.

To the extent that Mr. Ramos argues that A.S. not recognizing the inappropriate touching

to be a groin creates a material fact as to probable cause, he is wrong. A.S.’s statement confirmed

that she had indeed been touched inappropriately and against her will. While what Officer

Samerson saw differs from what A.S. felt happening behind her, A.S.’s statement is in no way

exculpatory. Rather, she confirmed the gravamen of the charges against Mr. Ramos. See N.Y. P.

L. § 130.52 (defining Forcible Touching as “when such person intentionally, and for no legitimate

purpose, forcibly touches the sexual or other intimate parts of another person for the purpose of

degrading or abusing such person; or for the purpose of gratifying the actor's sexual desire.”); N.Y.

P. L. § 130.55 (defining Sexual Abuse in the Third Degree as when one “subjects another person

to sexual contact without the latter’s consent. . . .”).

Nor is Mr. Ramos’s emphasis on the fact that A.S. did not identify him availing. Even

without an identification from the victim, Officer Samerson’s eye-witnessing of the encounter

between A.S. and Mr. Ramos, and A.S.’s statement, are sufficient to support a belief that Mr.

Ramos had committed a crime. Officer Gandolfi, who effectuated the arrest, was entitled to rely

on Officer Samerson’s assessment. Loria v. Gorman, 306 F.3d 1271, 1288 (2d Cir. 2002) (“Absent

significant indications to the contrary, an officer is entitled to rely on his

fellow officer's determination that an arrest was lawful.”) (Citing Martinez v. Simonetti, 202 F.3d

625, 634 (2d Cir.2000).)

Mr. Ramos argues that the question of whether he is Suspect 1 is pivotal in this analysis.

“If we accept [his] version of facts that he travelled directly from 14th street to 42nd street without

abusing anyone or switching train cars, Samerson must be mistaken about whom she was

following.” (ECF No. 41 at 9.) But, “probable cause can exist even where it is based on mistaken

information, so long as the arresting officer acted reasonably and in good faith in relying on that

information.” Bernard v. United States, 25 F.3d 98, 102 (2d Cir. 1994) (citing Colon v. City of

New York, 60 N.Y.2d 78, 468 N.Y.S.2d 453, 455 N.E.2d 1248 (1983)). Assuming Mr. Ramos is

not Suspect 1, nothing in the record indicates that a mistake of identity by Officer Samerson was

unreasonable or in bad faith. To the contrary, Officer Gandolfi testified that Suspect 1 was

“wearing the same clothes, same hat, same bag” as Mr. Ramos. (ECF No. 38-2, Ganldolfi’s Dep.

Tr. 83:11-21.)

Based on the foregoing, the Court concludes there was probable cause for Mr. Ramos’s

arrest. Because “[t] here can be no federal civil rights claim for false arrest where the arresting

officer had probable cause,” Singer v. Fulton County Sheriff, 63 F.3d 110, 118 (2d Cir.1995) (citing

Bernard v. United States, 25 F.3d 98, 102 (2d Cir.1994)), Plaintiff’s false arrest claim is

DISMISSED. In light of this, the Court need not reach the issue of qualified immunity with respect

to false arrest.

2. Malicious Prosecution

To state a §1983 claim for malicious prosecution, a plaintiff must show “(1) that the

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

terminated in the plaintiff’s favor; (3) that there was no probable cause for the proceeding; and (4)

that the proceeding was instituted with malice.” Kinzer v. Jackson, 316 F.3d 139, 143 (2d Cir.

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

“[T]he existence of probable cause is a complete defense to a claim of malicious

prosecution”, and “indictment by a grand jury creates a presumption of probable cause.” Savino v.

City of New York, 331 F.3d 63, 72 (2d Cir.2003) (citing Colon v. City of New York, 60 N.Y.2d 78,

82 (1983)). That presumption may be rebutted only “by evidence that the indictment was procured

by ‘fraud, perjury, the suppression of evidence or other police conduct undertaken in bad faith’”.

Id. If there was probable cause for an arrest, “[i]n order for probable cause to dissipate, the

groundless nature of the charges must be made apparent by the discovery of some intervening

fact.” Lowth v. Town of Cheektowaga, 82 F.3d 563, 571 (2d Cir. 1996), as amended (May 21,

1996).

As discussed above, there was probable cause for Mr. Ramos’s arrest. Given the absence

of exculpatory evidence or other intervening fact to disturb that probable cause, the Court holds

there was probable cause for Mr. Ramos’ prosecution as well.

Therefore, Mr. Ramos’s claim for malicious prosecution is DISMISSED. In light of this,

the Court need not reach the favorable termination and malice elements of malicious prosecution,

or qualified immunity.

3. Failure to Intervene

In light of the Court’s holding that there was probable cause for the arrest and prosecution

of Mr. Ramos, his claim for failure to intervene necessarily fails too. “A law enforcement officer

has an affirmative duty to intercede on the behalf of a citizen whose constitutional rights are being

violated in his presence by other officers.” O’Neill v. Krzeminski, 839 F.2d 9, 11 (2d Cir. 1988).

Because the Court concludes Mr. Ramos’s constitutional rights were not violated by his arrest and

prosecution, there was nothing in which to intervene. This claim is therefore DISMISSED.

4. Remaining State Claims

Along with the federal claims just discussed, Mr. Ramos brought claims for violation of

his rights under the New York State Constitution. Defendants did not ask this Court to evaluate

the state law claims on the merits. Instead Defendants asked that, should the Court dismiss the

federal claims, the Court decline to exercise jurisdiction over the remaining state claims.

“[I]n the usual case in which all federal-law claims are eliminated before trial, the balance

of factors to be considered under the pendent jurisdiction doctrine – judicial economy,

convenience, fairness, and comity – will point toward declining to exercise jurisdiction over the

remaining state-law claims.” Valencia ex rel. Franco v. Lee, 316 F.3d 299, 305 (2d Cir. 2003)

(quoting Carnegie–Mellon University v. Cohill, 484 U.S. 343, 350 n.7 (1988)). Seeing nothing

unusual here, the Court will decline to exercise supplemental jurisdiction over the remaining state-

law claims. Accordingly, Mr. Ramos’s state-law claims are DISMISSED.

CONCLUSION

The Defendants' summary judgment motion is GRANTED. The Clerk is directed to

terminate the motion and to enter judgment for the Defendants.

Dated: July 16, 2020

New York, New York (Aros. oO

ANDREW L. CARTER, JR.

United States District Judge

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