Alexis v. Town of Cheektowaga

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

CHARLES D. ALEXIS,

Plaintiff,

v. DECISION AND ORDER

17-CV-985S

TOWN OF CHEEKTOWAGA, et al.,

Defendants.

I. Introduction

This is a removed civil rights action, see 28 U.S.C. § 1443 (Docket No.1, Notice of

Removal), arising from Plaintiff’s arrest by Cheektowaga Police officers. Plaintiff claims

Defendants violated his constitutional rights. He also alleges common law false arrest,

false imprisonment, malicious prosecution, and negligent hiring, training, and supervision.

(Docket No. 20, 2d Am. Compl.)

Before this Court is Defendants’ Motion for Summary Judgment (Docket No. 29).

For the reasons discussed below, the Motion is granted, dismissing the First Cause of

Action. After the stipulated dismissal of one state law cause of action, Plaintiff’s remaining

state law causes of action are remanded to New York State Supreme Court.

II. Background

A. Facts

For this summary judgment Motion, the facts from Defendants’ Statement of Facts

(Docket No. 29, Defs. Statement) are generally not disputed, see W.D.N.Y. Loc. Civ.

R. 56(a)(2), save whether a surveillance video identified Plaintiff (compare Docket No. 31,

Pl. Statement of Facts ¶ 3 with Docket No. 29, Defs. Statement ¶ 3). This Court will recite

facts as alleged in the Second Amended Complaint (Docket No. 20) and stated in

Defendants’ Statement of Facts (Docket No. 29), noting when Plaintiff disputes a given

fact.

1. Slashing of the Motorcycle Tire

On Sunday, August 17, 2014, Megan Klein (an acquaintance of Plaintiff, Docket

No. 20, 2d Am. Compl. ¶ 22) called Cheektowaga Police Department complaining that

she had recorded Plaintiff slashing her friend’s motorcycle tire (Docket No. 29, Defs.

Statement ¶ 1). Klein had installed a security camera in her apartment facing the

apartment’s parking lot (id. ¶ 2). Defendants contend that the District Attorney determined

that Plaintiff was depicted on Klein’s security footage slashing the tire (id. ¶ 3, citing

Docket No. 29, Defs. Atty. Aff. Ex. N (notes of District Attorney, Mar. 11, 2016)). Plaintiff,

however, disputes this, arguing that the video did not conclusively identify him or his

vehicle (Docket No. 31, Pl. Statement ¶ 3; cf. Docket No. 29, Defs. Ex. R (Klein’s

surveillance video of incident)).

According to the police report recorded by Defendant Officer Emil DeVincentis, the

officer was dispatched to Klein’s apartment where he met Tyler Gajewski (the owner of

the motorcycle) and saw the vandalized tire (Docket No. 29, Defs. Atty. Aff. Ex. G).

Gajewski said he was visiting his former girlfriend (Klein) at her apartment and Gajewski

claimed that Plaintiff was stalking Klein (id.). Gajewski reported that Plaintiff earlier had

vandalized Klein’s car which was reported to the Cheektowaga Police Department; Klein

then set up a surveillance camera to monitor the parking lot (id.; see also Docket No. 29,

Defs. Atty. Aff. Ex. S, 911 audio recording).

Gajewski executed a deposition of fact to the Cheektowaga Police Department

repeating that the video showed Plaintiff slashing his motorcycle tire (Docket No. 29, Defs.

Atty. Aff. Exs. G, I (Deposition of Fact)). He identified Plaintiff’s vehicle as a 2006 gray

Jeep and gave a license plate number (id., Ex. I). Officer DeVincentis, however, identified

that vehicle as being Klein’s (id., Ex. G). Gajewski estimated the replacement value of

the damaged tire was $300 (Docket No. 29, Defs. Statement ¶ 5; Docket No. 29, Defs.

Atty. Aff. Ex. I).

Officer DeVincentis then looked up Plaintiff’s license plate number and discovered

his address on Miller Street, in Depew, New York (Docket No. 29, Defs. Atty. Aff. Ex. G).

Officer DeVincentis reported that the surveillance video showed Plaintiff exit his

car, slash the tire, return to his car, and leave (Docket No. 29, Defs. Atty. Aff. Ex. G). This

Court also viewed the 45-second surveillance video. It showed a dark sedan approach a

red motorcycle in a parking lot. The car’s driver exited that vehicle and approached the

front motorcycle tire, touched the tire, returned to the car, and drove away. The driver

was in dark clothing and his face was not visible. The video showed only the side of the

car, but not its license plates. (Docket No. 29, Defs. Atty. Aff. Ex. R.)

This Court also heard Klein’s 911 call to the Cheektowaga Police Department

(Docket No. 29, Defs. Atty. Aff. Ex. S). There, Klein identified Plaintiff as the person who

slashed Gajewski’s tire, and that Plaintiff was the same person who earlier had vandalized

her vehicle (id.).

2. Plaintiff’s Arrest

Officer DeVincentis and another officer (sued here as John Doe Defendant1)

arrived at Plaintiff’s Miller Street, Depew, residence (Docket No. 29, Defs. Statement ¶ 6;

Docket No. 29, 2d Am. Compl. ¶ 14). Plaintiff claimed that he was unaware why these

officers were there (Docket No. 29, 2d Am. Compl. ¶ 16). He alleges that DeVincentis’

first words to Plaintiff was “I saw the video” (id. ¶ 17) but did not say what video he was

referring to (id. ¶ 18). The officers requested his permission to enter, and Plaintiff granted

it (id. ¶ 19). The officers then confronted Plaintiff and arrested him, escorting Plaintiff from

his house (id. ¶¶ 20-21). Plaintiff claims that he was never informed why the officers were

there or why he was being arrested (id. ¶ 23). Defendants contend that Plaintiff was

charged with criminal mischief in the third degree (Docket No. 29, Defs. Statement ¶ 7;

see Docket No. 29, Defs. Atty. Aff. Ex. G, at 2 (police report stating officers arrived at

10 Miller Street and immediately arrested Plaintiff)), a felony.

Plaintiff was arraigned on Monday, August 18, 2014, and released on his own

recognizance (Docket No. 20, 2d Am. Compl. ¶ 8), after being held for 20 hours (Docket

No. 20, 2d Am. Compl. ¶ 24; Docket No. 31, Pl. Statement Additional Material Facts ¶ 18).

After weeks of proceedings and adjournments of the criminal trial (Docket No. 29,

Defs. Statement ¶¶ 10, 11; but cf. Docket No. 31, Pl. Statement ¶ 10), Plaintiff was offered

and accepted an adjournment in contemplation of dismissal (“ACD”) (id. ¶¶ 12, 13).

B. Procedural History

Plaintiff filed this action in New York State Supreme Court against the Town of

Cheektowaga (also referenced as “Town”), Officers DeVincentis and John Doe, and the

1The police report from Plaintiff’s arrest identified a second officer present as Officer Heisler, Docket

No. 29, Defs. Atty. Aff. Ex. G.

Cheektowaga Police Department (Docket No. 1, Notice of Removal, Ex. A, Compl.).

Defendants removed this case to this Court (Docket No. 1) and then answered the original

Complaint (Docket No. 3).

Plaintiff amended the Complaint twice (Docket Nos. 15, 20; see Docket Nos. 13

(Plaintiff’s first Motion), 14 (text Order granting first Motion), 16 (Plaintiff’s second Motion),

19 (text Order granting second Motion)). The Second Amended Complaint now alleges

five causes of action (Docket No. 20). The First Cause of Action alleges Defendants

unreasonably seized and deprived Plaintiff of his liberty without due process, in violation

of the Fourth, Fifth, and Fourteenth Amendments (id. ¶¶ 30-36). The Second Cause of

Action alleges Defendants falsely arrested Plaintiff in violation of New York common law

(id. ¶¶ 38-40). The Third Cause of Action also alleges Defendants committed common

law false imprisonment of Plaintiff (id. ¶¶ 42-49). The Fourth Cause of Action asserts

common law malicious prosecution by all Defendants (id. ¶¶ 51-55). Finally, the Fifth

Cause of Action alleges the Town of Cheektowaga and its Police Department negligently

hired, trained, and supervised Officers DeVincentis and John Doe (id. ¶¶ 57-62).

Defendants answered the Second Amended Complaint (Docket No. 21).

The Case Management Order set the discovery deadline of November 12, 2018,

with dispositive motions due by May 15, 2019 (Docket No. 11). On November 12, 2018,

Plaintiff moved unsuccessfully to extend the time to complete discovery (Docket Nos. 25

(Motion), 26 (Order of Magistrate Judge Jeremiah McCarthy, Nov. 16, 2018)).

On May 21, 2019, Defendants moved for summary judgment (Docket No. 29)2.

Responses to that Motion were due June 18, 2019, and reply by July 2, 2019 (Docket

No. 30). After completion of briefing, this Court reserved decision without oral argument.

III. Discussion

A. Applicable Standards

1. Summary Judgment

Summary judgment is appropriate if “the movant shows 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). A fact is “material” if it “might affect the outcome of the suit under

the governing law,” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505,

91 L.Ed.2d 202 (1986). An issue of material fact is “genuine” if “the evidence is such that

a reasonable jury could return a verdict for the nonmoving party,” id.

The movant seeking summary judgment has the burden (through pleadings,

depositions, answers to interrogatories, admissions, affidavits, and other materials, Fed.

R. Civ. P. 56(c)(1)) to demonstrate the absence of a genuine issue of material fact, Ford

v. Reynolds, 316 F.3d 351, 354 (2d Cir. 2003).

In deciding a motion for summary judgment, the evidence and the inferences

drawn from the evidence must be “viewed in the light most favorable to the party opposing

the motion,” Addicks v. S.H. Kress & Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 26 L.Ed.2d

142 (1970). “Only when reasonable minds could not differ as to the import of evidence is

2In support of their motion, Defendants submitted their attorney’s Affidavit (with exhibits, including

manually filed surveillance footage and the audio recording of Megan Klein’s 911 call), Defendants’

Statement of Material Facts, and Memorandum of Law, Docket No. 29.

In opposition, Plaintiff submit his attorney’s Declaration (with exhibits), his Statement of Facts, and

his Memorandum of Law, Docket No. 31.

Defendants replied with their Reply Memorandum, Docket No. 32. Defendants did not respond to

Plaintiff’s asserted additional material facts.

summary judgment proper,” Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991). The

function of the Court is not “to weigh the evidence and determine the truth of the matter

but to determine whether there is a genuine issue of fact for trial,” Anderson, supra, 477

U.S. at 249. “Assessment of credibility and choices between conflicting versions of the

events are matters for the jury, not for the court on summary judgment,” Rule v. Brine,

Inc., 85 F.3d 1002, 1011 (2d Cir. 1996).

But a “mere scintilla of evidence” in favor of the nonmoving party will not defeat

summary judgment, Anderson, supra, 477 U.S. at 252. A nonmoving party must do more

than cast a “metaphysical doubt” as to the material facts; it must “offer some hard

evidence showing that its version of the events is not wholly fanciful,” Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538

(1986). That is, there must be evidence from which the jury could reasonably find for the

nonmoving party, Anderson, supra, 477 U.S. at 252.

This Court’s Local Civil Rules require the movant submit “a separate, short, and

concise statement, in numbered paragraphs, of the material facts as to which the moving

party contends there is no genuine issue to be tried,” W.D.N.Y. Loc. Civ. R. 56(a)(1), and

the opponent to submit a response to each numbered paragraph in the movant’s

statement, id. R. 56(a)(2). Each numbered paragraph in the movant’s statement will be

deemed admitted unless specifically controverted by a correspondingly numbered

paragraph in the opponent’s statement, id.

2. Unreasonable Seizure and Fourth Amendment False Arrest

a. Constitutional Right Implicated

The sole basis for original federal subject matter jurisdiction that justified removal

of this action (28 U.S.C. §§ 1441(c), 1443(2)) is Plaintiff’s alleged civil rights violations

under 42 U.S.C. § 1983. That act provides

“Every person who, under color of any statute, ordinance, regulation,

custom, or usage, of any State . . . , subjects, or causes to be subjected,

any citizen of the United States or other person within the jurisdiction thereof

to the deprivation of any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party injured in an action at law

. . . .”

42 U.S.C. § 1983. Plaintiff must prove that “(1) a person (2) acting under color of state

law (3) subjected the plaintiff or caused the plaintiff to be subjected (4) to the deprivation

of a right secured by the Constitution or laws of the United States,” City of Oklahoma City

v. Tuttle, 471 U.S. 808, 829, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985) (Brennan, J.,

concurring), to state a § 1983 claim.

Plaintiff alleges violation of the Fourth Amendment to the United States

Constitution (applicable to municipalities through the Fourteenth Amendment Due

Process Clause, see Elkins v. United States, 364 U.S. 206, 213, 80 S.Ct. 1437, 4 L.Ed.2d

1669 (1960); Wolf v. Colorado, 338 U.S. 25, 27-28, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949))

(Docket No. 20, Am. Compl. ¶¶ 30-36). That Amendment provides:

“The right of the people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures, shall not be violated,

and no warrants shall issue, but upon probable cause, supported by oath or

affirmation, and particularly describing the place to be searched, and the

persons or things to be seized.”

U.S. Const. amend. IV.

To succeed on a false arrest/false imprisonment claim under the Fourth

Amendment, Plaintiff must prove (1) the defendant intended to confine him, (2) Plaintiff

was conscious of the confinement, (3) he did not consent to the confinement, and (4) the

confinement was not otherwise privileged, e.g., DeSantis v. Town of Cheektowaga,

No. 17CV148, 2020 WL 1530773, at *10 (W.D.N.Y. Mar. 31, 2020) (Skretny, J.) (citing

cases).

“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,” id. (quoting Simpson v. City of N.Y., 793 F.2d 259,

265 (2d Cir. 2015), citing other cases). “In conformity with the rule at common law, a

warrantless arrest by a law officer is reasonable under the Fourth Amendment where

there is probable cause to believe that a criminal offense has been or is being committed,”

Devenpeck v. Alford, 543 U.S. 146, 152, 125 S.Ct. 588, 160 L.Ed.2d 537 (2004).

b. Probable Cause

Probable cause “is a complete defense to an action for false arrest brought under

New York law or § 1983,” Ackerson v. City of White Plains, 702 F.3d 15, 19 (2d Cir. 2012)

(per curiam); Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996) (citations omitted);

DeSantis, supra, 2020 WL 1530773, at *10. Such an arrest is privileged, Donovan v.

Briggs, 250 F. Supp.2d 242, 250 (W.D.N.Y. 2003) (Larimer, J.); Jocks v. Tavernier,

316 F.3d 128, 135 (2d Cir. 2003).

Once probable cause has been established, a “police officer is not required to

explore and eliminate every theoretically plausible claim of innocence before making an

arrest,” Ricciuti v. New York City Transit Auth., 124 F.3d 123, 128 (2d Cir. 1997).

A finding of probable cause is made based on the totality of the circumstances,

DeSantis, supra, 2020 WL 1530773, at *10; Illinois v. Gates, 462 U.S. 213, 233, 103 S.Ct.

2317, 76 L.Ed.2d 527 (1983). Probable cause “is a fluid concept—turning on the

assessment of probabilities in particular factual contexts—not readily, or even usefully,

reduced to a neat set of legal rules,” Gates, supra, 462 U.S. at 232. It is also not a

“particularly stringent” standard; probable cause does not require proof of a suspect’s guilt

beyond a reasonable doubt. “Instead, probable cause to arrest exists when the known

facts 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,’” Donovan, supra, 250 F. Supp.2d

at 253 (emphasis added) (quoting Jocks, supra, 316 F.3d at 135, quoting in turn Weyant,

supra, 101 F.3d at 852). Probable cause “is an assessment of probabilities, not an

assessment of truths,” Loria v. Gorman, 306 F.3d 1271, 1288-89 (2d Cir. 2002); Donovan,

supra, 250 F. Supp.2d at 253.

Whether probable cause exists depends upon the reasonable conclusion to be

drawn from the facts known to the arresting officer at the time of the arrest, Devenpeck,

supra, 543 U.S. at 152; Maryland v. Pringle, 540 U.S. 366, 371, 124 S.Ct. 795,

157 L.Ed.2d 769 (2003).

“Whether that arrest was constitutionally valid depends in turn upon

whether, at the moment the arrest was made, the officers had probable

cause to make it—whether at that moment the facts and circumstances

within their knowledge and of which they had reasonably trustworthy

information were sufficient to warrant a prudent man in believing that the

petitioner had committed or was committing an offense,”

Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); Brinegar v. United

States, 338 U.S. 160, 175-76, 69 S.Ct. 1302, 93 L.Ed.2d 1879 (1949).

When a victim or eyewitness reports a crime, probable cause generally will be

found to exist based upon the eyewitness’s testimony unless circumstances raise doubt

as to the veracity of the eyewitness’s statement, DeSantis, supra, 2020 WL 1530773, at

*10; Singer v. Fulton County Sheriff, 63 F.3d 110, 119 (2d Cir. 1995), cert. denied,

517 U.S. 1189, 116 S.Ct. 1676, 134 L.Ed.2d 779 (1996); see Panetta v. Crowley,

460 F.3d 338, 359 (2d Cir. 2006). A law enforcement officer has probable cause “if he

received his information from some person, normally the putative victim or eyewitness,”

Martinez v. Simonetti, 202 F.3d 625, 634 (2d Cir. 2000) (citation to quote omitted);

Donovan, supra, 250 F. Supp.2d at 251 (see Docket No. 32, Defs. Reply Memo. at 5).

The Gates Court stated, “if an unquestionably honest citizen comes forward with a report

of criminal activity—which if fabricated would subject him to criminal liability—we have

found rigorous scrutiny of the basis of his knowledge unnecessary,” Gates, supra,

462 U.S. at 233-34. Typically, a witness’ statement often is sufficient to establish

probable cause, Donovan, supra, 250 F. Supp.2d at 251-52.

The “eventual disposition of the criminal charges is irrelevant to the probable cause

determination,” Hahn v. County of Otsego, 820 F. Supp. 54, 55 (N.D.N.Y. 1993), aff’d,

52 F.3d 310 (2d Cir. 1995) (citing Pierson v. Ray, 386 U.S. 547, 555, 87 S.Ct. 1213,

18 L.Ed.2d 288 (1967)); see DeSantis, supra, 2020 WL 1530773, at *11.

c. Duration of Detention

Plaintiff alleges in the First Cause of Action that his detention was “prolonged,

intrusive, unjustified, and served no governmental purpose” (Docket No. 20, 2d Am.

Compl. ¶ 33).

Prolonged post-arrest detention implicates the Fourth Amendment, Mikulec v.

Town of Cheektowaga, 909 F. Supp.2d 214, 227 (W.D.N.Y. 2012) (Skretny, C.J.) (citing

cases). The Fourth Amendment requires a warrantless arrestee be brought promptly

before a neutral magistrate before prolonging that detention, Gerstein v. Pugh, 420 U.S.

103, 113-14, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975), Albright v. Oliver, 510 U.S. 266, 274,

114 S.Ct. 807, 127 L.Ed.2d 114 (1994) (plurality opinion); Bryant v. City of N.Y., 404 F.3d

128, 136-37 (2d Cir. 2005). A “prompt” judicial determination of probable cause does not

mean an immediate determination, County of Riverside v. McLaughlin, 500 U.S. 44, 53-

54, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991). In articulating the boundaries of permissible

detention under the Fourth Amendment, the Supreme Court in McLaughlin holds that “a

jurisdiction that provides judicial determinations of probable cause within 48 hours of

arrest will, as a general matter, comply with the promptness requirement of Gerstein,” id.

at 56.

Nevertheless, a prompt probable cause determination may violate Gerstein if

Plaintiff can prove that his or her probable cause determination was unreasonably

delayed, id. Examples of unreasonable delays include delay to gather additional

evidence to justify the arrest; delay motivated by police officer ill will against the arrestee;

or “delay for delay’s sake,” id. In evaluating alleged delays, “courts must allow a

substantial degree of flexibility,” such as considering “unavoidable delays in transporting

arrested persons from one facility to another, handling late-night bookings where no

magistrate is readily available,” obtaining the presence of the arresting officer or securing

the premises of an arrest, or other practical realities, id. at 56-57; see Mikulec, supra, 909

F. Supp.2d at 227. This Court held in Mikulec that a mere two-hour detention or detention

up to 48 hours was presumptively valid and did not violate the Fourth Amendment,

Mikulec, supra, 909 F. Supp.2d at 227, see McLaughlin, supra, 500 U.S. at 56.

d. Municipal Liability under § 1983

Since Plaintiff sued the Town of Cheektowaga and its police department, this Court

considers municipal liability distinct from its employees’ liability. The Town is liable only

for its own actions or policies and not merely for employing alleged tortfeasors. For a

municipal employer to be liable under § 1983 solely for the actions of its employees (rather

than its own misconduct), Plaintiff must allege the existence of a municipal policy or

custom that resulted in the employee’s tortious action. Monell v. New York City Dep’t of

Soc. Servs., 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); Tuttle, supra, 471

U.S. at 824. Mere allegations of the existence of a municipal policy or custom are

insufficient, Mikulec, supra, 909 F. Supp.2d at 228, citing Board of County Com’rs Bryan

County, Okla. v. Brown, 520 U.S. 397, 117 S.Ct. 1382, 137 L.Ed.1d 626 (1997).

3. Supplemental Jurisdiction

Subject matter jurisdiction over the state law claims (such as the Second through

Fifth Causes of Action here) may be raised by the parties or by this Court sua sponte,

Lyndonville Sav. Bank & Trust v. Lussier, 211 F.3d 697, 700-01 (2d Cir. 2000);

LaChapelle v. Torres, 37 F. Supp. 3d 672, 680 (S.D.N.Y. 2014). This Court must examine

its jurisdiction at any point in the proceeding, Carnegie-Mellon Univ. v. Cohill, 484 U.S.

343, 351, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988) (the district court has “to consider

throughout the litigation whether to exercise its jurisdiction over the case”); see

14C Charles A. Wright, Arthur R. Miller, Edward H. Cooper, Joan E. Steinman, and Mary

Kay Kane, Federal Practice and Procedure § 3722, at 115 (Jurisd. rev. 4th ed. 2018). This

Court has the discretion under its inherent authority to remand the case to state court

when jurisdictionally sufficient claims have been eliminated and only supplemental

jurisdiction claims remain, id., § 3739, at 765-66, 768; see Carnegie-Mellon, supra,

484 U.S. at 351.

Original federal jurisdiction (and grounds for removal from state court) here arises

from Plaintiff’s First Cause of Action under 42 U.S.C. § 1983. The Second, Third, and

Fourth Causes of Action under New York common law share the same nucleus of

operative facts as the First Cause of Action. Under 28 U.S.C. § 1367, this Court may

exercise supplemental jurisdiction over Plaintiff’s state law claims, see Klein v. London

Star Ltd., 26 F. Supp. 2d 689, 692 (S.D.N.Y. 1998), or may decline to hear these

supplemental state law claims, 14C Federal Practice and Procedure, supra, § 3722, at

122. Under § 1367(c), this Court would decline to exercise supplemental jurisdiction “in

exceptional circumstances, there are other compelling reasons for declining jurisdiction,”

28 U.S.C. § 1367(c)(2), (4); see Klein, supra, 26 F. Supp. 2d at 692, or if all original

jurisdiction claims were dismissed, 28 U.S.C. § 1367(c)(3).

4. False Arrest and False Imprisonment under New York Law

Plaintiff’s Second and Third Causes of Action allege false arrest and false

imprisonment under New York common law. This Court acts as a state court would in

addressing pendent state law claims, see Lowth v. Town of Cheektowaga, 82 F.3d 563,

569 (2d Cir. 1996).

To prove false arrest, a plaintiff must show “that 1) the officer intended to confine

the plaintiff; 2) the plaintiff was conscious of the confinement and did not consent to it;

and 3) the confinement was not otherwise privileged,” id., citing Broughton v. State,

37 N.Y.2d 451, 456, 373 N.Y.S.22d 87, cert. denied sub nom. Schanbarger v. Kellogg,

423 U.S. 929, 96 S.Ct. 277, 46 L.Ed.2d 257 (1975). False arrest is a species of common

law false imprisonment, Singer, supra, 63 F.3d at 118. False arrest and false

imprisonment standards are the same for common law as under the Fourth Amendment,

DeSantis, supra, 2020 WL 1530773, at *10.

Common law false imprisonment requires proof that (1) defendant intended to

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

to the confinement, and (4) the confinement was not otherwise privileged, Torres v.

Jones, 26 N.Y.3d 742, 27 N.Y.S.3d 468 (2016); see Boans v. Town of Cheektowaga, 5 F.

Supp.3d 364, 385 (W.D.N.Y. 2013) (Foschio, Mag. J.), adopted, 5 F. Supp.3d 364

(W.D.N.Y. 2014) (Arcara, J.) (see also Docket No. 31, Pl. Memo. at 5, noting that

elements for false arrest and false imprisonment are the same). The existence of

probable cause “serves as legal justification for the arrest and an affirmative defense to

the claim,” Martinez v. City of Schenectady, 97 N.Y.2d 78, 85, 735 N.Y.S.2d 868, 872

(2001), and will defeat a claim for false imprisonment, Zanghi v. Incorp. Village of

Brookville, 752 F.2d 43, 45 (2d Cir. 1985); Feinberg v. Sacks & Co., 83 A.D.2d 952, 953,

443 N.Y.S.2d 26, 27 (2d Dep’t 1981); see Rizzo v. Edison Inc., 419 F. Supp.2d 338, 345

(W.D.N.Y. 2005) (Telesca, J.).

5. Malicious Prosecution under New York Law

Plaintiff’s Fourth Cause of Action alleges malicious prosecution under New York

common law. Common law malicious prosecution requires proof that (1) defendant

commenced a criminal prosecution against a plaintiff, (2) that the proceeding terminated

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

was instituted with malice, Lowth, supra, 82 F.3d at 571; Colon v. City of N.Y., 60 N.Y.2d

78, 82, 468 N.Y.S.2d 453 (1983).

6. Qualified Immunity

Defendants also assert qualified immunity for Defendant Officer DeVincentis

(Docket No. 29, Defs. Memo. at 5-10). When confronted by a claim of qualified immunity,

one of the first questions for the Court to resolve is whether the facts, taken in the light

most favorable to the party asserting the injury, show the official’s conduct violated a

constitutional right. See Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d

272 (2001). As required by the Saucier Court, this Court first considered the constitutional

question, then considered the qualified immunity question, id. But the Supreme Court in

Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009),

overruled Saucier in requiring courts to first determine whether a constitutional violation

occurred before considering whether defendants enjoy qualified immunity. Instead, this

Court can determine the order in which qualified immunity and constitutional violation is

considered, see id. at 231-32.

Government officials performing discretionary functions generally are shielded by

qualified immunity from liability in their individual capacities, see Frank v. Reilin, 1 F.3d

1317, 1327 (2d Cir. 1993), “insofar as their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person would have known.”

Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 196 (1982). “If it

was objectively reasonable for the defendant to believe that his act did not violate the

plaintiff’s constitutional rights, the defendant may nevertheless be entitled to qualified

immunity.” Anderson v. Creighton, 483 U.S. 635, 641, 107 S.Ct. 3034, 97 L.Ed.2d 523

(1987); Lowth, supra, 82 F.3d at 568-69.

As applied to false arrest claims,

“An arresting officer is entitled to qualified immunity from a suit for damages

on a claim for arrest without probable cause if 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), cert. denied sub nom.

Lillis v. Golino, 505 U.S. 1221, 112 S.Ct. 3032, 120 L.Ed.2d 902 (1992). “The defending

officer need only show ‘arguable’ probable cause,” Martinez, supra, 202 F.3d at 634.

B. Parties’ Contentions

Defendants argue that Plaintiff has not and cannot present competent evidence to

support his claims (Docket No. 29, Defs. Memo. at 4). They next contend Plaintiff has

not alleged municipal liability by failing to claim any government custom or policy that led

to Plaintiff’s claims (id. at 4-5).

Defendant DeVincentis claims qualified immunity (id. at 5-10), claims that he acted

reasonably in arresting Plaintiff (id. at 11-13).

Defendants conclude that Plaintiff’s Fifth Amendment claims also fail because that

Amendment only applies to the federal government and not to the states or their

municipalities such as the Defendant Town and its officers (id. at 13).

Plaintiff’s chief argument is the existence of factual issues preclude summary

judgment for Defendants (Docket No. 31, Pl. Memo. at 6-7). The issues surround the

finding of probable cause. Plaintiff challenges his identification arguing that it was based

upon the video recording of the tire slashing which did not conclusively show Plaintiff’s

face or his vehicle (id. at 6). He also contests the authority of the Cheektowaga Police

officer to arrest him without a warrant in Depew (id. at 6-7). Plaintiff also denied that

Officer DeVincentis was entitled to qualified immunity because of the issues of fact stated

above regarding the existence of probable cause for the arrest (id. at 7). Plaintiff claims

he raised distinct federal and state law claims (id. at 5-6).

Defendants reply that Plaintiff’s purported state claims merely alleged federal

claims (Docket No. 32, Defs. Reply Memo. at 1). Had Plaintiff alleged state law claims,

Defendants point out (among other state law defenses, see id. at 1-2) that Plaintiff’s ACD

was not a favorable termination for his malicious prosecution claim (id. at 3-4), Murphy v.

Lynn, 118 F.3d 938, 949 (2d Cir. 1997). They reaffirm that DeVincentis is entitled to

qualified immunity (id. at 4-5). As for Plaintiff’s claim that his identification was a potential

fact question, Defendants retort that Plaintiff did not deny that he was depicted on the

video or that he did not slash the tire and Plaintiff accepted the ACD to the criminal

mischief charge (id. at 5). Finally, any contention that Plaintiff was detained for an

unreasonable length of time is contrary to case law (id. at 6, quoting Mikulec, supra, 909

F. Supp.2d at 227).

C. Preliminary Matters

There are some preliminary points the parties agree upon that eliminate some

parties and claims in this action. Defendants contend that the Cheektowaga Police

Department is not a suable entity (Docket No. 29, Defs. Memo. at 4), Abram v. Town of

Cheektowaga Police Department, No. 18CV1267, 2020 WL 3513677, at *4 (W.D.N.Y.

June 29, 2020) (Skretny, J.) (under New York law, police departments are mere agencies

of municipalities without a separate legal identity); see Mikulec, supra, 909 F. Supp.2d at

227 n.9. They also argue that Plaintiff cannot allege negligent hiring, training, and

supervision because he separately alleges the Town’s vicarious liability for its employees

(id. at 13-14).

Plaintiff concedes that the Cheektowaga Police Department cannot be sued under

New York law and agrees to dismissal of his Fifth Cause of Action since those claims are

alleged elsewhere in his Second Amended Complaint (Docket No. 31, Pl. Memo. at 5, 8).

Defendants’ Motion for Summary Judgment (Docket No. 29) dismissing claims against

the Police Department and dismissing the Fifth Cause of Action is granted.

Defendants are also correct (Docket No. 29, Defs. Memo. at 13) that Plaintiff has

no claims against them for violating his Fifth Amendment rights (a point Plaintiff does not

challenge). The Fifth Amendment Due Process Clause applies only to the federal

government and not to the states or its municipalities, e.g., Solomon v. City of Rochester,

449 F. Supp.3d 104, 113 (W.D.N.Y. 2020) (Wolford, J.); see Dusenbery v. United States,

534 U.S. 161, 167, 122 S.Ct. 694, 151 L.Ed.2d 597 (2002) (“The Due Process Clause of

the Fifth Amendment prohibits the United States, as the Due Process Clause of the

Fourteenth Amendment prohibits the States, from depriving any person of property

without ‘due process of law.’”). Rather, Plaintiff’s claims arise under the Fourth and

Fourteenth Amendments. Thus, so much of Plaintiff’s First Cause of Action arising from

the Fifth Amendment also is dismissed.

D. Unreasonable Seizure, First Cause of Action

This Court next addresses the only original jurisdiction cause of action alleged (and

the grounds for removal), Plaintiff’s § 1983 civil rights claim from the arrest. Plaintiff raises

several challenges to the legality of his arrest, concluding now that these present issues

of material fact that should preclude summary judgment for the Town and its officers.

First, Plaintiff argues that there was no probable cause to arrest him for slashing

Gajewski’s tire. Second, he challenges the duration of his detention. Third, Plaintiff

objects to the warrantless arrest by Cheektowaga Police officers in Depew, arguing that

they acted outside of their geographic jurisdiction. Finally, Plaintiff alleges claims against

the Town itself, raising the issue of municipal liability.

This Court also notes that Plaintiff has not opposed summary judgment because

he required discovery to respond to this motion, cf. Fed. R. Civ. P. 56(d). This is despite

counsel’s arguments (Docket No. 31, Pl. Atty. Decl. ¶¶ 17-32) about his denied Motion to

Extend Time to Complete Discovery (Docket No. 25; see Docket No. 26, Order of

Nov. 16, 2018, denying motion (McCarthy, Mag. J.)) and his subsequent inability to

conduct stipulated depositions after the discovery deadline expired prior to the filing of

the Motion for Summary Judgment. He does not now argue that he is unable to respond

to Defendants’ Motion because of his inability to complete discovery. Therefore, this

Court proceeds with the substance of Defendants’ Motion, starting with whether probable

cause existed for Plaintiff’s arrest by Defendant DeVincentis.

1. Probable Cause for Arrest

Applying the elements for a civil rights action under § 1983, the Town of

Cheektowaga is a person under § 1983, Monell, supra, 436 U.S. at 663, as are Officers

DeVincentis and John Doe. It is also clear that the officers acted under color of state law

as police officers of the Town. What remains is whether Defendants deprived Plaintiff of

a right secured by the United States Constitution, here his Fourth Amendment right

against unreasonable seizure (applicable to the Town under the Due Process Clause of

the Fourteenth Amendment).

Most of the material facts are not in dispute. Plaintiff agreed with Defendants’

Rule 56 Statement save one key point, whether the surveillance video recorded by Klein

accurately depicted Plaintiff to provide probable cause for his arrest (Docket No. 31, Pl.

Statement ¶ 3). He contends this is crucial to denying summary judgment either because

Officer DeVincentis lacked probable cause to arrest him or there is a material question of

fact about probable cause. Plaintiff does not dispute that the motorcycle was damaged;

his contention is about identification.

a. Probable Cause Determination

Officer DeVincentis arrested Plaintiff for criminal mischief in the third-degree, a

class E felony, N.Y. Penal L. § 145.05(2). Criminal mischief in the third degree occurs

when a person, with intent to damage property of another, and having no right to do so

nor any reasonable ground to believe that he had the right to do so, damages property of

another in an amount over $250, N.Y. Penal L. § 145.05(2).

In this Court’s view, the facts pertinent to the probable cause determination compel

the conclusion that Officer DeVincentis had sufficient probable cause to arrest Plaintiff

under § 145.05, see DeSantis, supra, 2020 WL 1530773, at *11 (existence of probable

cause is question of law when facts are not disputed, citing cases).

Gajewski and Klein reported to Officer DeVincentis the vandalism of Galewski’s

motorcycle and Klein identified Plaintiff as the suspected vandal. Klein was an

acquaintance of Plaintiff. She had prior interactions with Plaintiff, such as his alleged

previous vandalizing of her car (that also was under police investigation, see Docket

No. 29, Defs. Atty. Aff. Ex. G) that presumably led to her setting up video surveillance of

her car. Presumably, Klein could recognize him (or his car) from a distance even without

seeing his face in a video recording.

Gajewski, Klein’s former boyfriend, claimed Plaintiff was stalking Klein (id.). Officer

DeVincentis had a signed complaint and a sworn Deposition of Fact from Gajewski

against Plaintiff (id., Exs. H, I), sworn to and made with the declaration that false

statements would be punishable as a class A misdemeanor, N.Y. Pen. L. § 210.45 (id.

Ex. I). There, Gajewski recounted the video showing Plaintiff leave his vehicle and slash

Gajewski’s motorcycle tire, the cost of the damage, Plaintiff’s alleged stalking, and

Gajewski’s relationship with Klein (id.). The damage estimate of $300 made the damage

a felony offense, see N.Y. Penal L. § 145.05(2).

Probable cause to arrest Plaintiff required a reasonable officer to conclude that an

offense had been committed and that Plaintiff committed the offense. The officer need

not have absolute certainty that the identification was correct absent circumstances that

cast doubt on the witness’s veracity, Singer, supra, 163 F.3d at 119. A victim’s statement

typically is sufficient to establish probable cause, Martinez, supra, 202 F.3d at 634.

Officer DeVincentis here relied upon the victim’s and witness’s identification of the

perpetrator, leading here to Plaintiff’s arrest. Gajewski swore statements that, if

fabricated, would subject him to criminal liability, cf. Gates, supra, 462 U.S. at 233-34.

Plaintiff has not shown that Klein’s or Gajewski’s veracity should have been questioned

by DeVincentis or that circumstances warranted his further inquiry. DeVincentis had no

basis to probe into Klein or Gajewski’s relationships with Plaintiff. They told DeVincentis

that Klein was acquainted with Plaintiff and that he allegedly harassed her in the past.

On these facts known by the officer as of Plaintiff’s arrest, Officer DeVincentis had

sufficient evidence that identified Plaintiff as the suspect, hence probable cause to arrest

him.

Donovan v. Briggs provides an instructive example of evaluating the determination

of probable cause based upon eyewitness statements, Donovan, supra, 250 F. Supp.2d

242. There, defendant Deputy Steven Peglow investigated a rape allegation lodged

against Plaintiff Samuel Donovan when Donovan’s daughter accused him of raping her.

After interviewing the daughter, Peglow interviewed Donovan who showed him the

daughter’s handwritten “to-do” list which included an entry calling for framing Donovan for

an assault. Id. at 249, 245-46. Peglow weighed the daughter’s credibility based upon

that list and continued investigating (reviewing the daughter’s medical records after the

alleged assault, interviewing both a child protective services worker and an Assistant

District Attorney—and codefendant—Cara Briggs) to determine whether this crime had

occurred and whether Donovan perpetrated it, id. at 247-48, 253. Peglow arrested

Donovan, id. at 248, and his role ended at the arrest. During the subsequent prosecution

the daughter recanted her accusations against Donovan, id. at 260.

Donovan sued Peglow (and Briggs) for false arrest (among other claims), id. at

244. On defendants’ Motion for Summary Judgment, Judge Larimer held that Peglow

had probable cause to arrest Plaintiff from the daughter’s statement, id. at 251-53. Judge

Larimer then noted the circumstances there that may have called the victim’s credibility

into question, such as her “to-do” list, and “[v]iewed in the context of all other facts and

‘reasonably trustworthy information’ that were known by defendants at the time,”

concluded that the potentially discrediting factors “were not enough to dispel probable

cause in this case,” id. at 252 (quoting United States v. Jenkins, 876 F.2d 1085, 1089 (2d

Cir. 1989)).

Judge Larimer then rejected Donovan’s argument that Peglow should have

investigated further, holding that “[o]nce probable cause exists, however, a ‘police officer

is not required to explore and eliminate every theoretically plausible claim of innocence

before making an arrest,’” Donovan, supra, 250 F. Supp.2d at 253 (quoting Ricciuti,

supra, 124 F.3d at 128). Applying the less stringent standard for determining probable

cause, Judge Larimer concluded that the objective facts known at the time prior to the

arrest were sufficient to give rise to probable cause, id.

In the present case, the information known to Officer DeVincentis is akin to the

facts presented to Deputy Peglow in Donovan. Officer DeVincentis relied upon the

victim’s and witness’s statements identifying the perpetrator and alleging that a crime had

occurred, leading to Plaintiff’s arrest. Based on the facts known by Officer DeVincentis

as of the arrest, he had reasonably trustworthy information to justify Plaintiff’s arrest.

Unlike in Donovan, there was no evidence that potentially discredited Klein or Gajewski.

From the facts known to Officer DeVincentis as of the arrest, he had probable cause to

arrest Plaintiff.

b. Questioning Sufficiency of Evidence for Probable

Cause

Plaintiff challenges the credence given by DeVincentis to Klein and Gajewski

based upon the video of the alleged incident. He argues there are issues of fact as to the

identification from Klein’s video of the apartment parking lot. That surveillance video does

not show the driver’s face.

But Officer DeVincentis’ identification of Plaintiff is not solely based upon the video.

He relied upon Klein’s identification of the driver and Plaintiff acknowledges his

acquaintance with Klein, see Donovan, supra, 250 F. Supp.2d at 253; Ricciuti, supra,

124 F.3d at 128 (Docket No. 20, 2d Am. Compl. ¶ 22). Officer DeVincentis could rely

upon the witnesses’ identification as the basis for action. For probable cause purposes,

all that was needed was a trustworthy witness complaint absent circumstances to

question that trustworthiness. Plaintiff has not shown such circumstances.

Another potential credibility issue is the license plates of the dark sedan in the

video (cf. Docket No. 29, Defs. Atty. Aff. Ex. R). No one is contending that the officer

learned the plate number from viewing the video. In the police report (Docket No. 29,

Defs. Atty. Aff. Ex. G), DeVincentis stated that he “looked up offender’s license plate” to

locate Plaintiff at the Miller Street address (id. at 1) where “the listed vehicle was in the

driveway” (id. at 2). The absence of visible license plates in the video does not render

the identification and location of Plaintiff less credible.

Therefore, reviewing the totality of the evidence presented to Officer DeVincentis

after interviewing Gajewski and Klein, there was probable cause for Plaintiff’s arrest.

Since probable cause renders the arrest privileged, Donovan, supra, 250 F. Supp.2d at

250; Jocks, supra, 316 F.3d at 135, Plaintiff fails to state a claim for false arrest under the

Fourth Amendment.

2. Duration of Detention

Next, Plaintiff argues that he was detained for 20 hours from Sunday, August 17,

2014, until Monday, August 18, 2014, when he appeared at his arraignment (Docket

No. 20, 2d Am. Compl. ¶ 24; Docket No. 31, Pl. Statement Additional Material Fact ¶ 18;

Docket No. 29, Def. Statement ¶ 8), concluding that the detention was prolonged,

unjustified, and served no governmental purpose (Docket No. 20, 2d Am. Compl. ¶ 33).

He cited this Court’s decision in Mikulec, supra, 909 F. Supp.2d 214, for the proposition

that detention longer than necessary (regardless of its duration) is constitutionally

unreasonable (Docket No. 31, Pl. Memo. at 8). He seems to argue that detention for

allegedly slashing a tire should not have lasted up to 20 hours (cf. id. at 7-8). The length

of post-arrest detention, however, is not tied to the offense charged. Plaintiff was detained

until a court was available to hear his appearance and the duration of the resulting

detention was not set by the arresting officers based upon the offense charged.

Plaintiff here has not asserted any of the unreasonable delays cited by the

McLaughlin Court, 500 U.S. at 56-57, or by this Court in Mikulec, supra, 909 F. Supp.2d

at 227. There is no evidence of the Cheektowaga Police Department detaining Plaintiff

to obtain additional evidence against him to justify the arrest or any ill will on DeVincentis’

part. There is no evidence of delay for delay’s sake. He also fails to produce evidence

“tending to show that officers detained him for longer than necessary,” Mikulec, supra,

909 F. Supp.2d at 227, hence the presumption of validity of the detention applied, id.

(dismissing prolonged detention claim).

Plaintiff states he was detained for 20 hours, from Sunday afternoon through

Monday morning (e.g., Docket No. 31, Pl. Statement Additional Material Fact ¶ 18; see

Docket No. 29, Defs. Atty. Aff. Ex. U; Docket No. 29, Defs. Statement ¶ 8). Any delay in

his detention was due to when it occurred. According to his arrest and booking form

(Docket No. 29, Defs. Atty. Aff. Ex. T), the incident occurred at 10 am on August 17 and

Plaintiff was booked on 2:08 that afternoon (id.). Since this detention began on a Sunday,

the earliest court appearance would be the next morning. This is the flexibility called for

by McLaughlin, that this Court recognize that delays can occur, as here, when a

magistrate is not readily available or other practical realities precluded a sooner inquiry,

see McLaughlin, supra, 500 U.S. at 57.

Thus, this delay is less than 48 hours before release or judicial determination of

probable cause. There was no unreasonable delay and hence the duration was

presumptively reasonable, Mikulec, supra, 909 F. Supp.2d at 227. Therefore, Plaintiff’s

objection on this ground is rejected.

3. Authority to Arrest Beyond Geographical Jurisdiction

Plaintiff also complains that the Cheektowaga Police officers exceeded their

jurisdiction by arresting him without a warrant in Depew (Docket No. 31, Pl. Memo. at 6)

but without citing authority for this proposition. Defendants did not address this argument.

New York Criminal Procedure Law § 140.10(3) authorizes a police officer to arrest

without a warrant for a crime regardless whether it was committed within the geographical

area of the officer’s employment and can make such arrest anywhere within New York

State, N.Y. Crim. Proc. L. § 140.10(3); see Alifieris v. American Airlines, 63 N.Y.2d 370,

482 N.Y.S.2d 453 (1984); People v. Twoguns, 108 A.D.3d 1091, 1092, 969 N.Y.S.2d 337

(4th Dep’t 2013) (upholding denial of motion to dismiss indictment for felony driving while

intoxicated and resisting arrest for arrest made in neighboring town); People v. Garcia,

26 Misc.3d 1233, 907 N.Y.S.2d 439 (Table), 2010 WL 817498, at *6 (Sup. Ct. Bronx

County 2010) (probable cause for felony authorized arrest “irrespective of [officer’s]

assigned command”).

This differs from a warrantless arrest for a petty offense, defined in the Criminal

Procedure Law as a violation or traffic infraction, N.Y. Crim. Proc. L. § 1.20(39), which

must occur within the police department’s jurisdiction and may be arrested in that

jurisdiction and up to 100 yards of from that area, N.Y. Crim. Proc. L § 140.10(2);

Twoguns, supra, 108 A.D.3d at 1092, 969 N.Y.S.2d 337 (granting defendant’s motion to

dismiss traffic infractions where arrest was beyond 100 yards of the limits of Village of

Gowanda).

Plaintiff here was charged with criminal mischief in the third degree, N.Y. Penal L.

§ 145.05(2), for damaging property in an amount over $250 (Docket No. 29, Defs.

Statement ¶ 7; Docket No. 29, Defs. Atty. Aff. Ex. H), a class E felony. A suspect so

charged may be arrested without a warrant by a police officer anywhere in the state,

including in the nearby municipality. Plaintiff’s objection to the geographic range of the

arrest is rejected.

Therefore, Defendants’ Motion for Summary Judgment (Docket No. 29) dismissing

the First Cause of Action is granted.

4. Municipal Liability

Finally, this Court notes that Plaintiff fails to allege how the Town of Cheektowaga

was liable for Plaintiff’s arrest by Defendant Officer DeVincentis aside from mere

supervisory liability. A municipality cannot be held liable on the theory of respondeat

superior or simply for hiring an alleged tortfeasor, Mikulec, supra, 909 F. Supp.2d at 228;

see Monell, supra, 436 U.S. 658. Plaintiff does not allege any Town policy or custom

condoning allegedly illegal arrests to assert municipal liability, Mikulec, supra, 909 F.

Supp.2d at 228. Thus, he has not alleged municipal liability under § 1983.

Defendants’ Motion for Summary Judgment (Docket No. 29) to dismiss the First

Cause of Action as against the Town is granted.

This Court now considers whether to exercise jurisdiction over Plaintiff’s remaining

state common law claims, the Second, Third, and Fourth Causes of Action.

E. Supplemental Jurisdiction over State Law Claims

With the dismissal of Plaintiff’s sole federal claim alleged in the First Cause of

Action, this Court must determine if it would exercise its discretion and consider the

related state law claims.

The parties argue whether the Second, Third, or Fourth Causes of Action assert

state or federal claims (compare Docket No. 29, Defs. Memo. at 4-5 with Docket No. 31,

Pl. Memo. at 5). This Court agrees with Plaintiff and will consider the Second through

Fourth Causes of Action as state law claims. These claims do not refer to violation of

federal rights and track the elements under New York common law for false arrest, false

imprisonment, and malicious prosecution. These causes of action allege claims distinct

from his First Cause of Action under the Fourth Amendment.

Since this case was removed to federal court and the only original jurisdiction

cause of action was dismissed, this case is remanded to New York State Supreme Court

for further proceedings, see 28 U.S.C. §§ 1367(c)(3), 1447(c); see also Blair v. New York

City Transit Auth., No. 14-CV-5091, 2016 WL 6405900, at *5 (E.D.N.Y. Oct. 27, 2016).

Therefore, this Court declines to exercise supplemental jurisdiction.

F. Qualified Immunity for Officer DeVincentis

Defendants also argue that Officer DeVincentis should enjoy qualified immunity

because Plaintiff cannot establish violation of a clearly established constitutional right

(see Docket No. 29, Defs. Memo. at 5-10).

Given the determination that Plaintiff’s arrest was based on probable cause, this

Court need not reach this qualified immunity issue, see Saucier, supra, 533 U.S. at 201

(“if no constitutional right would have been violated were the allegations established, there

is no necessity for further inquiries concerning qualified immunity”); Donovan, supra,

250 F. Supp.2d at 253-54.

Nonetheless, this Court holds that Officer DeVincentis also is entitled to qualified

immunity. An officer is entitled to qualified immunity “if he ‘reasonably but mistakenly

conclude[s] that probable cause is present,’” id. at 254 (quoting Hunter v. Bryant, 502 U.S.

224, 227, 112 S.Ct. 534, 116 L.Ed.2d 589 (1995)); DeSantis, supra, 2020 WL 1530773,

at *11.

If probable cause is lacking, see Donovan, supra, 250 F. Supp.2d at 254,

Defendant DeVincentis still would be entitled to qualified immunity. His actions remain

objectively reasonable. Defendants’ Motion for Summary Judgment (Docket No. 29) on

this ground is granted.

IV. Conclusion

Defendants’ Motion for Summary Judgment (Docket No. 29) is granted. First,

Plaintiff stipulates to dismissal of claims against the Cheektowaga Police Department and

dismissal of his Fifth Cause of Action.

Next, the First Cause of Action (the only one alleging a federal claim) is dismissed

because there was probable cause based on the eyewitness and complainant

statements. In addition, Plaintiff has not shown that his 20-hour detention prior to his

arraignment violated his Fourth Amendment rights. He also fails to allege municipal

liability against the Town of Cheektowaga. Alternatively, Defendant DeVincentis is

entitled to qualified immunity.

This Court declines to exercise supplemental jurisdiction over Plaintiff’s remaining

state law claims, the Second, Third and Fourth Causes of Action. These claims are

remanded to New York State Supreme Court for further proceedings.

V. Orders

IT HEREBY IS ORDERED, that Defendants’ Motion for Summary Judgment

(Docket No. 29) is GRANTED as to dismissal of the First Cause of Action.

FURTHER, the Clerk of Court is DIRECTED to remand the remaining State

Causes of Action (the Second, Third, and Fourth Causes of Action) to New York State

Supreme Court, Erie County, and to close this federal case.

SO ORDERED.

Dated: November 10, 2021

Buffalo, New York

s/William M. Skretny

WILLIAM M. SKRETNY

United States District Judge