Richardson v. City of New York

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

DEWAYNE JOAQUIN RICHARDSON,

Plaintiff, 17 Civ. 8622 (PAE) (RWL)

-v-

OPINION & ORDER

CITY OF NEW YORK, ERICKS RODRIGUEZ,

CARLOS PAGAN, and WILSON QUILES,

Defendants.

PAUL A. ENGELMAYER, District Judge:

Pro se plaintiff Dewayne Joaquin Richardson brings this action against New York City

(the “City”), Police Detective Ericks Rodriguez, Police Detective Carlos Pagan, and Sergeant

Wilson Quiles (collectively, the “individual defendants,” and, together with the City,

“defendants”). Richardson alleges that defendants violated his constitutional rights by falsely

arresting him and maliciously prosecuting him, in violation of § 1983 and New York State law,

after his then-girlfriend accused him of assault and robbery. He has not served the individual

defendants in this case, the time to do so has long since passed, and they have not appeared in the

action. The City, the sole defendant against whom Richardson has proceeded, has moved for

summary judgment as to all of Richardson’s claims.

Before the Court is the August 24, 2020 Report and Recommendation of the Honorable

Robert W. Lehrburger, United States Magistrate Judge, recommending that the Court grant the

motion for summary judgment in its entirety and dismiss this case. See Dkt. 94 (“Report”). For

the following reasons, the Court adopts that recommendation.

I. Background

The Court incorporates by reference the summary of the facts provided in the Report.

See Report at 2–6. For purposes of addressing Richardson’s objections, however, the Court

briefly summarizes those facts here.

On December 9, 2016, Jaqueline Smalls—Richardson’s then-girlfriend—called 911 to

report that Richardson had assaulted and robbed her inside their shared apartment while carrying

a firearm. See Dkt. 83 (“Def. 56.1”) ¶ 1. According to the Complaint Report, Smalls identified

Richardson by name and description as the perpetrator, and the two lived together. See Dkt. 82-5

(“Compl. Rep.”) at 2–3. Richardson denies that he had taken anything from Smalls or that he

assaulted her. See Dkt. 82-2 (“Richardson Tr.”) at 108–09. After contacting the police, Smalls

sought medical attention due to stomach and back pain and was escorted by an ambulance to the

hospital. Def. 56.1 ¶ 4–5.

On December 10, 2016, the individual defendants, who had not yet met Smalls, went to

the shared apartment to gather details about the incident. Id. ¶ 8. When they arrived, they

obtained a key from the attendant at the front desk of the apartment complex, and accessed the

apartment without seeking further consent. Dkt 87 (“Richardson Aff.”) ¶ 3. Because Smalls

remained in the hospital overnight, Richardson was alone in the apartment when they arrived.

Def. 56.1 ¶ 9. When the individual defendants encountered Richardson, he identified himself

and acknowledged that he lived in the apartment, and the officers asked him to come to the

precinct with them. Id. ¶ 10; Richardson Aff. ¶ 5. After he refused, the individual defendants

pushed their way into the apartment, handcuffed Richardson, and placed him under arrest for

robbery in the second degree. Def. 56.1 ¶ 10; Richardson Aff. ¶ 5. Incident to that arrest, the

individual defendants searched the apartment without a warrant. Richardson Aff. ¶ 5.

Later that afternoon, the individual defendants met with Smalls for the first time at the

hospital. Def. 56.1 ¶ 13. At that meeting, Smalls reiterated that Richardson had threatened her

with a firearm the day before, and she signed a consent form permitting the officers to conduct a

“complete and full search of [the] apartment” to locate the weapon and gave them a key to access

the apartment. Id. ¶ 15; Rodriguez Aff. ¶¶ 6–7.

At the precinct that same day, a warrant search revealed that Richardson had an active

parole warrant, which had issued in November 2016. Def. 56.1 ¶¶ 11–12. According to

Richardson, it had been issued after he failed to report to his parole officer. Richardson Tr.

at 45; see also Def. 56.1 ¶ 12 (“plaintiff continuously failed to report to his parole officer”).

Richardson was charged with first- and second-degree robbery for the December 9, 2016

incident, and he was arraigned on December 11, 2016. Def. 56.1 ¶ 16. On December 16, 2016,

the grand jury was adjourned, and on March 1, 2017, the robbery charges were dismissed. Id.

¶¶ 17, 19. Richardson, however, remained incarcerated due to the active parole warrant issued

by New York State. Id. ¶ 20. According to Richardson, he was ultimately released after he “did

a year violation” due to the parole warrant. Richardson Tr. at 45.

On November 7, 2017, Richardson sued the City pursuant to 42 U.S.C. § 1983, alleging,

inter alia, false arrest, hardship, defamation of character, and a violation of the Fourteenth

Amendment. See Dkt. 2 (“Compl.”) at 2. On April 26, 2018, Richardson filed an amended

complaint, adding Pagan and Rodriguez as defendants, adding a claim under the Sixth

Amendment, and dropping his hardship and defamation claims. See Dkt. 16 (“FAC”). On

June 26, 2018, Richardson again amended his complaint, this time to include Quiles. See

Dkt. 25 (“SAC”). However, Richardson never served any of the individual defendants after

naming them in the SAC, and the time to do so has now expired. See Fed. R. Civ. P. 4(m).

On November 6, 2018, the Court referred this case to Judge Lehrburger for general trial

supervision. Dkt. 35. On December 2, 2019, after the City requested a pre-motion conference in

anticipation of a motion for summary judgment, the Court referred that motion, too, to Judge

Lehrburger for a report and recommendation. See Dkt. 73.

On January 27, 2020, the City moved for summary judgment, see Dkt. 80, and filed a

memorandum in support, Dkt. 89 (“Def. Mem.”); a Local Civil Rule 56.1 Statement, see

Def. 56.1; and the declaration of Adria J. Bonillas, Esq., see Dkt. 82 (“Bonillas Decl.”), with

accompanying exhibits. On March 19, 2020, Richardson opposed the City’s motion, see Dkt. 86

(“Pl. Opp’n”), and filed his own affidavit, Richardson Aff., and Local Civil Rule 56.1 Statement,

see Dkt. 88 (“Pl. 56.1”). On April 20, 2020, the City replied. See Dkt. 89 (“Def. Reply”).

On August 24, 2020, Judge Lehrburger issued the Report, recommending that the Court

grant the City’s motion for summary judgment and dismiss this case in its entirety. See Report

at 28. On September 9, 2020, the Court received Richardson’s objections to the Report. Dkt. 95

(“Objections”). On September 24, 2020, the City responded. See Dkt. 96 (“Def. Resp.”).

II. Legal Standard

A. Report and Recommendation

In reviewing a report and recommendation, a district court may “accept, reject, or

modify, in whole or in part, the findings or recommendations made by the magistrate judge.”

28 U.S.C. § 636(b)(1)(C). To accept the portions of a report to which no timely objection has

been made, “a district court need only satisfy itself that there is no clear error on the face of the

record.” Acevedo v. Lempke, No. 10 Civ. 5285 (PAE) (HBP), 2014 WL 4651904, at *3

(S.D.N.Y. Sept. 17, 2014) (quoting King v. Greiner, No. 02 Civ. 5810 (DLC),

2009 WL 2001439, at *4 (S.D.N.Y. July 8, 2009)). When a timely and specific objection has

been made, the court is obligated to review the contested issues de novo. See id.; see also

Fed. R. Civ. P. 72(b)(3); Hynes v. Squillace, 143 F.3d 653, 656 (2d Cir. 1998). But when the

objections simply reiterate previous arguments or make only conclusory statements, the court

may review the Report for clear error. Dickerson v. Conway, No. 08 Civ. 8024 (PAE) (FM),

2013 WL 3199094, at *1 (S.D.N.Y. June 25, 2013); see also Kirk v. Burge, 646 F. Supp. 2d 534, 538

(S.D.N.Y. 2009) (collecting cases). This is so even in the case of a pro se plaintiff. See Dickerson,

2013 WL 3199094, at *1; Molefe v. KLM Royal Dutch Airlines, 602 F. Supp. 2d 485, 487

(S.D.N.Y. 2009).

B. Summary Judgment

To prevail on a motion for summary judgment, the movant must “show[] that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). The

movant bears the burden of demonstrating the absence of a question of material fact. In making

this determination, the Court must view all facts “in the light most favorable” to the non-moving

party. Holcomb v. Iona Coll., 521 F.3d 130, 132 (2d Cir. 2008).

If the movant meets its burden, “the nonmoving party must come forward with

admissible evidence sufficient to raise a genuine issue of fact for trial in order to avoid summary

judgment.” Jaramillo v. Weyerhaeuser Co., 536 F.3d 140, 145 (2d Cir. 2008). “[A] party may

not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion

for summary judgment.” Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010) (citation omitted).

Rather, to survive a summary judgment motion, the opposing party must establish a genuine

issue of fact by “citing to particular parts of materials in the record.” Fed. R. Civ. P. 56(c)(1)(A);

see also Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009).

“Only disputes over facts that might affect the outcome of the suit under the governing

law” will preclude a grant of summary judgment. Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248 (1986). In determining whether there are genuine issues of material fact, a

court is “required to resolve all ambiguities and draw all permissible factual inferences in favor

of the party against whom summary judgment is sought.” Johnson v. Killian, 680 F.3d 234, 236

(2d Cir. 2012) (quoting Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003)).

III. Discussion

Liberally construed, Richardson’s SAC alleges constitutional violations against all

defendants under § 1983, as well as state law claims for false arrest and malicious prosecution

against the individual defendants. The City argues that no evidence supports a municipal claim

against the City, that Richardson’s claims against the individual defendants must be dismissed

because those defendants were never served, and, independently, that the latter claims fail

because they are not supported by competent evidence.

The Report agrees with the City on each point, and recommends the grant of summary

judgment on all claims against all defendants. Richardson objects only to the Report’s

conclusions regarding the individual defendants’ conduct. He has not addressed the viability of

his claims against the City. Accordingly, the Court reviews the latter only for clear error, see

Acevedo, 2014 WL 4651904, at *3, and, although Richardson’s objections are largely

conclusory or reprise arguments already considered and rejected in the Report, reviews the

former de novo.

A. Claims Against New York City

“[A] municipality can be held liable under Section 1983” only if “the deprivation of the

plaintiff’s rights under federal law is 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) (citing Monell v.

Dep’t of Soc. Servs., 436 U.S. 658, 690–91 (1978)); Cash v. County of Erie, 654 F.3d 324, 333

(2d Cir. 2011) (“[M]unicipalities are responsible only for their own illegal acts, and cannot be

held vicariously liable under § 1983 for their employees’ actions.” (citation omitted)). To state

such a “Monell claim” against the City, therefore, Richardson must prove three elements: “(1) an

official policy or custom that (2) causes the plaintiff to be subjected to (3) a denial of a

constitutional right.” Wray v. City of New York, 490 F.3d 189, 195 (2d Cir. 2007) (quoting

Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983)).

The Report thoroughly reviews Richardson’s claims and the evidence supporting them,

and concludes that “there is no evidence by which a reasonable jury could find the City liable by

way of policy, custom, or otherwise” for the actions of the individual defendants. Report at 14.

Careful review of Judge Lehrburger’s well-reasoned analysis reveals no facial error in that

conclusion. The Court therefore adopts the Report’s recommendation as to the City and grants

the City’s motion for summary judgment as to Richardson’s claims against the City.

B. Claims Against the Individual Defendants

As Judge Lehrburger noted, Richardson’s failure to serve any defendants other than the

City makes dismissal of Richardson’s municipal claims mandatory, and is a sufficient basis for

granting the City’s motion in its entirety. Report at 14; see Fed. R. Civ. P. 4(m) (“If a defendant

is not served within 90 days after the complaint is filed, the court—on motion or on its own after

notice to the plaintiff—must dismiss the action without prejudice against that defendant or order

that service be made within a specified time.”); Barbosa v. City of New York, No. 16 Civ. 7340

(LTS), 2018 WL 4625620, at *2–3 (S.D.N.Y. Sept. 26, 2018) (citing Bogle-Assegai v.

Connecticut, 470 F.3d 498, 508 (2d Cir. 2006)) (dismissing pro se plaintiff’s claims for failure to

serve individual defendants, including those with actual notice of the complaint against them).

However, because the parties and the Report address these claims at some length, and

Richardson’s objections exclusively challenge the Report as it relates to such claims, the Court

briefly addresses those objections.

1. False Arrest

The Report recommends granting summary judgment as to Richardson’s false arrest

claim on two grounds: (1) his arrest was supported by probable cause; and (2) the individual

defendants are entitled to qualified immunity. Report at 15, 21. Reviewing the summary

judgment record and the parties’ contentions de novo, the Court agrees.

“The existence of probable cause to arrest constitutes justification and ‘is a complete

defense to an action for false arrest,’ whether that action is brought under state law or under

§ 1983.” Jenkins v. City of New York, 478 F.3d 76, 84–85 (2d Cir. 2007) (quoting Weyant v.

Okst, 101 F.3d 845, 852 (2d Cir. 1996)). “When information is received from a putative victim

or an eyewitness, probable cause exists unless the circumstances raise doubt as to the person’s

veracity.” Curley v. Village of Suffern, 268 F.3d 65, 70 (2d Cir. 2001) (citation omitted); Panetta

v. Crowley, 460 F.3d 388, 395 (2d Cir. 2006) (“[I]t is well-established that a law enforcement

official has probable cause to arrest if he received his information from some person, normally

the putative victim or eyewitness, unless the circumstances raise doubt as to the person’s

veracity.” (citation omitted)).

Meanwhile, even absent probable cause to arrest the plaintiff, an officer will be entitled to

qualified immunity if “arguable probable cause” existed—i.e., if “a reasonable police officer in

the same circumstances and possessing the same knowledge as the officer in question could have

reasonably believed that probable cause existed in the light of well[-]established law.” Cerrone

v. Brown, 246 F.3d 194, 202–03 (2d Cir. 2001) (citation omitted); see Shaheed v. City of New

York, 287 F. Supp. 3d 438, 449 (S.D.N.Y. 2018). The doctrine of qualified immunity provides a

complete defense where “either (a) it was objectively reasonable for the officer to believe that

probable cause existed, or (b) officers of reasonable competence could disagree on whether the

probable cause test was met.” Golino v. City of New Haven, 950 F.2d 864, 870 (2d Cir. 1991).

Here, before Richardson’s arrest, Smalls identified and described Richardson as her

assailant and told the police that, after she had refused to give him money, he kicked and punched

her and forcibly stole her pocketbook. See Def. 56.1 ¶¶ 1–3; see also Compl. Rep. at 2–3. These

facts suffice to establish probable cause for his arrest. See Panetta, 460 F.3d at 395.1 In his

objections, Richardson attempts to cast doubt on the individual defendants’ account of events by

questioning their motives for visiting his apartment the morning of his arrest. See, e.g.,

Objections at 1 (asking why the officers would have gone to the shared apartment knowing that

Smalls was in the hospital). None of these accusations as to the individual defendants’

subjective motives, however—even were they supported by evidence in the summary judgment

record—diminish the probable cause supporting Richardson’s arrest arising from Smalls’s

allegations. Reviewing the record de novo, the Court finds that the individual defendants’ arrest

of Richardson was amply supported by probable cause—and, a fortiori, “arguable probable

cause.” Accordingly, the Court grants defendants’ motion for summary judgment as to that

claim.2

1 In New York, a person is guilty of robbery in the first degree if he forcibly steals property and

either (1) causes serious physical injury to any person who is not a participant in the crime; (2) is

armed with a deadly weapon; (3) uses or threatens the immediately use of a dangerous

instrument; or (4) displays what appears to be a firearm. See N.Y. Penal Law § 160.15.

Similarly, a person is guilty of robbery in the second degree if he forcibly steals property and (1)

causes physical injury to a person not participating in the crime; or (2) displays what appears to

be a firearm. Id. § 160.10.

2 At points in his opposition to summary judgment and his objections, Richardson also appears to

contend that the warrantless arrest in his home was an unlawful seizure. See, e.g., Objections

at 2 (“The defendant[s] violated the threshold law when Plaintiff told them that he would not go

with them, and they forced [their] way in. There was no warrant for Plaintiff[’s] arrest on

robbery and assault charges.”). On the record before the Court, a preserved and substantiated

claim to that effect could potentially gain traction under the case law. See United States v. Allen,

813 F.3d 76, 78, 82 (2d Cir. 2016) (“[W]e conclude that where law enforcement officers have

summoned a suspect to the door of his home, and he remains inside the home’s confines, they

2. Malicious Prosecution

For similar reasons, the Report also recommends granting summary judgment as to

Richardson’s malicious prosecution claims, both because probable cause supported the

prosecution and because the prosecution did not terminate in Richardson’s favor. The Court also

agrees with the Report’s assessment of this issue and grants summary judgment to the defendants

on Richardson’s claims for malicious prosecution.

To establish a claim for malicious prosecution under New York State law, a plaintiff

must show that: “(1) the defendant initiated and continued a criminal proceeding against him; (2)

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

proceeding; and (4) the defendant commenced the criminal proceeding with malice.” Smith v.

City of New York, 388 F. Supp. 2d 179, 186 (S.D.N.Y. 2005); see also Jocks v. Tavernier,

316 F.3d 128, 136 (2d Cir. 2003). In addition, to sustain a § 1983 malicious prosecution claim, a

plaintiff must further show “a seizure or other perversion of proper legal procedures implicating

[his] personal liberty and privacy interests under the Fourth Amendment.” Lanning v. City of

Glens Falls, 908 F.3d 19, 24 (2d Cir. 2018) (quoting Washington v. County of Rockland,

373 F.3d 310, 316 (2d Cir. 2004)).

Just as “probable cause is a complete defense to a constitutional claim of false arrest, and

false imprisonment, . . . continuing probable cause is a complete defense to a constitutional claim

may not effect a warrantless ‘across the threshold’ arrest in the absence of exigent

circumstances,” even if they have “ample probable cause”). However, although the Report did

not have occasion to squarely address this issue, defendants counter that entry into Richardson’s

apartment was lawful given the consent—or at least the apparent consent—they had received

from the landlord who gave the officers a key to the apartment. See Def. Reply at 9–10. The

Court does not have occasion to resolve whether such a defense of consent would prevail,

because the individual defendants have not been served, and because Richardson’s Monell claim

against the City (including as to the theory of a municipal practice of illegal entries in violation

of the Fourth Amendment) lacks evidentiary support.

of malicious prosecution.” Betts v. Shearman, 751 F.3d 78, 82 (2d Cir. 2014) (citation omitted).

The same is true under New York law. See Russell v. Smith, 68 F.3d 33, 36 (2d Cir. 1995).

Thus, “when a court finds there was probable cause for an arrest, and in the absence of some

indication that the authorities became aware of exculpatory evidence between the time of the

arrest and the subsequent prosecution that would undermine the probable cause which supported

the arrest, no claim for malicious prosecution may lie.” Johnson v. City of Mount Vernon,

No. 10 Civ. 7006 (VB), 2012 WL 4466618, at *5 (S.D.N.Y. Sept. 18, 2012); see Rizzo v. Edison,

Inc., 172 F. App’x 391, 393–94 (2d Cir. 2006) (summary order) (“As no exculpatory evidence

became known after Plaintiff’s arrest, there was also probable cause to prosecute her.”).

Here, as explained above, there was probable cause to arrest Richardson. And he has not

alleged that any exculpatory facts came to light between his arrest and when the charges against

him were ultimately dropped—let alone facts sufficient to clearly vitiate the probable cause. On

the contrary, after Richardson’s arrest, Smalls provided additional inculpatory information to the

individual defendants when they visited her in the hospital, informing them that “[Richardson]

pointed a firearm at her and threatened her with it when he took her wallet” and showing them

the bruises on her arms and body described in the earlier report. See Dkt. 82-6 (“Rodriguez

Aff.”) ¶¶ 4–5. If anything, the evidence against Richardson was stronger at the time of

prosecution than when he was arrested.

Summary judgment is also warranted on Richardson’s § 1983 claim for malicious

prosecution because the record lacks evidence to support the conclusion that the “proceeding

terminated in plaintiff’s favor.” Smith, 388 F. Supp. 2d at 186. “[P]roceedings are ‘terminated

in favor of the accused’ only when their final disposition is such as to indicate the accused is not

guilty.” Lanning, 908 F.3d at 26 (quoting Singleton v. City of New York, 632 F.2d 185, 193

(2d Cir. 1980)). Thus, “[w]hen a person has been arrested and indicted, absent an affirmative

indication that the person is innocent of the offense charged, the government’s failure to proceed

does not necessarily ‘impl[y] a lack of reasonable grounds for the prosecution.’” Id. at 28

(quoting Conway v. Village of Mount Kisco, 750 F.2d 205, 215 (2d Cir. 1984)). Here, the record

does not disclose why the charges against Richardson were dropped, and therefore does not

support this element of Richardson’s claim. Richardson does not put forward a viable argument

to the contrary.

Summary judgment on Richardson’s § 1983 malicious prosecution claim is further

required because he cannot show that the defendants’ actions implicated his “personal liberty and

privacy interests under the Fourth Amendment,” given the independent basis for his detention

provided by his parole violation. Id. at 24.3 Richardson argues that the defendants caused him to

be detained longer than he otherwise would have been on his parole violation. See Pl. Opp’n

¶¶ 10–13. But, according to Richardson’s own deposition testimony, he was incarcerated for a

full year on his parole violation. Richardson Tr. at 44–45. In contrast, the period between his

arrest and the dismissal of the robbery charges was only 82 days. Id. at 44. Thus, as the Report

correctly concludes, for the entire duration of Richardson’s robbery prosecution, his parole

violation supplied an independent, legitimate basis supporting his detention. Report at 28; see

United States v. Santa, 180 F.3d 20, 27 (2d Cir. 1999). He therefore cannot show that any

alleged malicious prosecution impaired his liberty interests under the Fourth Amendment.

3 As the City notes in its response to Richardson’s objections, the Report addresses this issue in

the context of Richardson’s freestanding claim under the Due Process Clause—raised for the

first time in his opposition to summary judgment—not his malicious prosecution claim under

§ 1983. See Def. Resp. at 8 n.7; Report at 27–28. The Court agrees with the City that this defect

provides an independent basis for rejecting Richardson’s malicious prosecution argument under

§ 1983, and with the Report that this similarly forecloses Richardson’s due process argument.

In his Objections, Richardson claims that his parole violation did not supply an

independent basis for his detention because “parole was not going to do nothing until the

disposition of the case” and because he could have “use[d] the same technicality to beat the

violation” had he not been arrested on the robbery charges. Objections at 2–3. But Richardson

does not supply any authority, and the Court is aware of none, supporting the proposition that

such speculation about the practical likelihood of apprehension or enforcement can undermine an

otherwise legitimate and independent basis for detention.

3. Additional Claims

Richardson raises several additional claims for the first time in either his opposition to

summary judgment or his objections to the Report. First, he claims for the first time in his

opposition that his due process rights were violated by his pre-trial detention on the armed

robbery charges at issue. See Report at 27–28; Pl. Opp’n ¶¶ 10–13. Second, he states in both his

opposition and his objections that he would like to “add” defamation and slander claims, which

he thought he had included in the SAC. See Pl. Opp’n ¶ 5; Objections at 3. Finally, he claims

for the first time in his objections that “when Plaintiff was not produced [a]t the grand jury . . . ,

that was a violation of” his due process rights. Objections at 2.

As to Richardson’s due process claim, he argues that the defendants’ alleged false arrest

and malicious prosecution caused him to be detained longer than he otherwise would have been

on his parole violation, and therefore violated his due process rights. See Pl. Opp’n ¶¶ 10–13.

This claim fails for two reasons. First, as the Report notes, whether Richardson was unlawfully

detained as a result of the defendants’ actions goes only to damages. It does not provide a basis

for liability under the Due Process Clause. See Wallace v. Kato, 549 U.S. 384, 390 (2007) (after

arraignment, “unlawful detention forms part of the damages for the ‘entirely distinct’ tort of

malicious prosecution” (citation omitted)).

Second, as discussed above, Richardson’s post-arrest detention was justified on grounds

independent of the robbery charges against him: the separate warrant for his arrest on a parole

violation. See Def. 56.1 ¶¶ 11–12; Richardson Tr. at 44–45. Even had robbery charges never

been filed against Richardson, his detention still would have been justified as a result of that

separate and independently legitimate arrest warrant.

Next, the Report correctly rejects Richardson’s belated slander and defamation claims.

See Report at 11 n.8. As the Report recognizes, although Richardson included a defamation

claim in his original complaint, he dropped that claim in both his FAC and SAC. See id.

Because “[i]t is well established that an amended complaint ordinarily [supersedes] the original,

and renders it of no legal effect,” Richardson may not belatedly assert such claims at the

summary judgment stage. Dluhos v. Floating & Abandoned Vessel, Known as “N.Y.”, 162 F.3d 63,

68 (2d Cir. 1998) (citation omitted); see Forziano v. Indep. Grp. Home Living Program, Inc.,

613 F. App’x 15, 17 (2d Cir. 2015) (summary order). Even if he could do so, the Court agrees

with the Report’s conclusion that there is no evidence in the summary judgment record to

support any such claim. Summary judgment is therefore appropriate on that claim, too.

Last, the Court declines to entertain Richardson’s claim regarding his right to appear

before the grand jury. See Objections at 2. Federal Rule of Civil Procedure 72(b) does not

permit a litigant to raise new claims at this late juncture. See e.g., Clarke v. United States,

367 F. Supp. 3d 72, 77 (S.D.N.Y. 2019) (“Due to the fact that ‘new claims may not be raised

properly at this late juncture,’ such claims should be dismissed.”); Ramos v. Johnson,

No. 09 Civ. 0899 (LEK) (DEP), 2011 WL 807430, at *2 (N.D.N.Y. Mar. 2, 2011) (“To the

extent that Plaintiff's Objections seek to reopen discovery, add additional claims, name

additional parties, or excuse his non-response to Defendants’ Motion for summary judgment,

they are improper, untimely, and, in any event, wholly conclusory and insufficient to survive

summary judgment.”); Gonzalez v. Garvin, No. 99 Civ. 11062, 2002 WL 655164 (SAS), at *2

(S.D.N.Y. Apr. 22, 2002) (dismissing objection “because it offers a new legal argument that was

not presented in his original petition, nor in the accompanying Memorandum of Law”); see also

Abu-Nassar v. Elders Futures, Inc., No. 88 Civ. 7906 (PKL), 1994 WL 445638, at *4 n.2

(S.D.N.Y. Aug. 17, 1994) (rejecting arguments advanced for the first time in a party’s objections

to a magistrate judge’s report because permitting such claims would “undermine the authority of

the Magistrate Judge by allowing litigants the option of waiting until a Report is issued to

advance additional arguments”). Accordingly, the Court gives this untimely submission no

consideration.

CONCLUSION

For the foregoing reasons, the Court grants defendants’ motion for summary judgment

and dismisses Richardson’s claims in their entirety. The Clerk of Court is respectfully directed

to terminate the motion pending at docket 80, and to close this case.

The Court further respectfully directs the Clerk of Court to mail a copy of this decision to

plaintiff at his new address, provided at page 4 of docket 95, and to update the address on file

accordingly.

SO ORDERED.

__________________________________

PAUL A. ENGELMAYER

United States District Judge

Dated: September 29, 2020

New York, New York