Zwick v. Town of Cheektowaga

UNITED STATES DISTRICT COURT

W ESTERN DISTRICT OF NEW YORK

ANN M. ZWICK,

Plaintiff,

v. DECISION AND ORDER

21-CV-812S

TOWN OF CHEEKTOWAGA,

JOHN JONES, individually and in his official capacity

as a police officer for the Town of Cheektowaga, and

JOHN DOE, individually and in his official capacity

as a police officer for the Town of Cheektowaga,

Defendants.

I. INTRODUCTION

In this action, Plaintiff Ann M. Zwick alleges that Defendants violated her

constitutional rights by arresting and prosecuting her after she was involved in a multi-

vehicle traffic accident. Presently before this Court is Defendants’ motion for summary

judgment. (Docket No. 19.) For the reasons that follow, the motion will be denied.

II. BACKGROUND

On February 25, 2019, Town of Cheektowaga police officers were dispatched to a

multi-vehicle, injury-involved accident on Cleveland Drive in the Town of Cheektowaga.

(Defendants’ Statement of Material Facts (“Defendants’ Statement”), Docket No. 19-3, ¶¶

1, 2, 6; Plaintiff’s Statement of Facts (“Plaintiff’s Statement”), Docket No. 22-4, ¶¶ 1, 2,

6.) According to the accident report, Zwick’s vehicle was traveling eastbound on

Cleveland Drive when it drifted right and rear-ended a parked car, pushing it 65 feet down

the road. (Police Accident Report, Docket No. 19-17, p. 1.) It then continued southeast

into a sports bar parking lot and hit a second parked vehicle. Id. Following the accident,

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Zwick was transferred to the Erie County Medical Center (“ECMC”) by ambulance, where

she was later issued several traffic tickets and arrested for driving while intoxicated (DWI).

(Defendants’ Statement, ¶¶ 1, 10; Plaintiff’s Statement, ¶¶ 1, 10.)

Zwick does not remember the accident or her interactions with police at the scene.

(Defendants’ Statement, ¶¶ 14, 15; Plaintiff’s Statement, ¶¶ 14, 15.) Her only recall is

being at her barbershop earlier that day. (Deposition of Ann Zwick (“Zwick Dep.”),

Docket No. 19-21, pp. 6-9.) The next thing she remembers is waking up in the hospital.

Id. pp. 8, 9. Given Zwick’s lack of memory, the account of the incident comes largely

from the responding officers and police reports.

When officers arrived on the scene, they encountered Zwick in or near her vehicle,

which was still in the sports bar parking lot, behind the second vehicle hit. (Defendants’

Statement, ¶¶ 4-6; Plaintiff’s Statement, ¶¶ 4-6.) This was a short distance from the

extensively damaged car in the street. (Defendants’ Statement, ¶ 7; Plaintiff’s

Statement, ¶ 7.)

Cheektowaga police officers Jakubowski, Wesoloski, and Maggio were the first to

arrive. (Deposition of John Jones (“Jones Dep.”), Docket No. 19-20, p. 26.) Defendant

Jones, who was a traffic investigations officer, was one of the last to arrive. Id. pp. 10,

12, 26. Defendant Jones was the primary officer investigating what was believed to be

a DWI incident. Id. at p. 12.

Officer Jakubowski spoke with Zwick when he arrived on the scene. (Deposition

of Nicholas Jakubowski (“Jakubowski Dep.”), Docket No. 19-22, pp. 4, 5.) He knew

Zwick from having previously socialized with her when she was dating a City of Buffalo

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police officer. Id. pp. 6-7. Zwick addressed Officer Jakubowski by his first name, but

Officer Jakubowski does not recall the substance of their conversations. Id. pp. 5, 7-8.

From his observations, Officer Jakubowski believed that Zwick was intoxicated: her

speech was slurred and her breath smelled of alcohol. Id. pp. 8, 23. Because Zwick

owned the vehicle involved in the accident and was standing by it, Officer Jakubowski

believed that she had been driving it, though he did not personally observe her doing so.

Id. p. 10.

When Defendant Jones arrived, he received a briefing from Officer Wesoloski and

observed that an ambulance was already on site. (Jones Dep., pp. 27-28.) The hatch

of Zwick’s vehicle was open, and Zwick was leaning under it being treated for a compound

fracture in her finger.1 Id. p. 31. Defendant Jones questioned Zwick, and she told him

that she had been drinking wine at her barbershop but was not drunk. Id. p. 32.

Due to her injuries, which included head and finger injuries, the ambulance

transported Zwick to ECMC. (Jakubowski Dep., p. 15; Medical Records, Docket No. 23-

1.) Officer Jakubowski followed the ambulance and maintained custody of Zwick at

ECMC until Defendant Jones arrived after completing his work at the scene. (Jones

Dep., pp. 29, 33; Jakubowski Dep., pp. 15-17.) Upon arrival, Defendant Jones told

Officer Jakubowski that he was going to arrest Zwick for driving while intoxicated, which

Officer Jakubowski already assumed would happen based on the totality of the

circumstances at the scene, which included the smell of alcohol, the smashed car, veering

1 Officer Jakubowski recalls Zwick receiving treatment in the back of the ambulance, not at the back of

her vehicle. (Jakubowski Dep., p. 14.)

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off the road, and hitting parked cars. (Jakubowski Dep., pp. 18-19, 20.)

At ECMC, Defendant Jones approached Zwick and informed her that he was

investigating her for driving while intoxicated. (Jakubowski Dep., p. 29.) Zwick became

angry and argumentative and started yelling at him. (Jakubowski Dep., pp. 28-29; Jones

Dep., pp. 34-35.) Zwick told Defendant Jones that she hated the Cheektowaga police

department and felt that it was out to get her. (Jones Dep., pp. 34-35.) Officer

Jakubowski tried to calm Zwick, but was unsuccessful and thereafter left the hospital.

(Jakubowski Dep., p. 29.)

Defendant Jones stayed at the hospital with Zwick for approximately four hours

before returning to the station to complete paperwork from the incident. (Jones Dep.,

pp. 38, 39-40.) During that time, he offered Zwick an Alco-Sensor pre-screen test2

several times, but she refused it. Id. pp. 12, 13, 17, 22, 32-33, 38; Jakubowski Dep., p.

28; DWI Report, Docket No. 19-8, p. 1. He also offered to perform field sobriety tests at

the hospital or have Zwick submit to a blood test, but she refused those as well. Id. pp.

17-18, 38; DWI Report, p. 1.

Ultimately, Defendant Jones arrested Zwick, released her on summons, and

issued traffic tickets for moving from a lane unsafely, driving at an unreasonable and

imprudent speed, driving while intoxicated, and refusing to take a breath test.

(Defendants’ Statement, ¶ 22; Plaintiff’s Statement, ¶ 22; DWI Report, p. 1.) He also

completed a criminal information and complaint. (Defendants’ Statement, ¶ 28; Plaintiff’s

2 Defendant Jones testified that a pre-screen test is “a box that we ask people if they are willing to blow

into, and it gives us a sample of their breath, and in turn would register some sort of percentage to let us

know if there is any alcohol in their system.” (Jones Dep., pp. 12-13.)

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Statement, ¶ 28.) After a bench trial, the Honorable Paul S. Piotrowski, Cheektowaga

Town Justice, found Zwick not guilty on all counts. (Defendants’ Statement, ¶¶ 30, 32;

Plaintiff’s Statement, ¶¶ 30, 32; Trial Decision, Docket No. 19-19.)

III. DISCUSSION

Zwick asserts five causes of action for violations of her constitutional rights under

42 U.S.C. § 1983: false arrest; false imprisonment; malicious prosecution; conspiracy to

violate constitutional rights; and failure to train or supervise under Monell.3 Defendants

seek summary judgment on each claim.4

A. General Legal Principles

1. Summary Judgment

Summary judgment is proper “only where there is no genuine issue of material fact

to be tried, and the facts as to which there is no such issue warrant the entry of judgment

for the moving party as a matter of law.” Kaytor v. Elec. Boat Corp., 609 F.3d 537, 545

(2d Cir. 2010); see 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”

3 In her complaint, Zwick contends that her first four claims fall under both the Fourth and Fourteenth

Amendments, but only the Fourth Amendment applies. See Albright v. Oliver, 510 U.S. 266, 268, 274,

114 S. Ct. 807, 127 L. Ed. 2d 114 (1994) (rejecting a substantive right under the Fourteenth Amendment

Due Process Clause to be free from criminal prosecution except upon probable cause and instead finding

that the Fourth Amendment governs “the deprivations of liberty that go hand in hand with criminal

prosecutions”); see also Graham v. Connor, 490 U.S. 386, 395, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989)

(holding that where a particular amendment “provides an explicit textual source of constitutional protection”

against particular government behavior, “that Amendment, not the more generalized notion of substantive

due process, must be the guide for analyzing these claims”). Accordingly, the Fourteenth Amendment

portions of Zwick’s first four claims are dismissed.

4 In the face of Defendants’ motion, Zwick agrees that her § 1983 conspiracy claim is subject to dismissal.

See Memorandum of Law, Docket No. 22-3, p. 2, n. 2. She therefore withdraws it. Id.

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if “the evidence is such that a reasonable jury could return a verdict for the nonmoving

party.” Id.

When faced with a motion for summary judgment, the court’s role is not “to weigh

the evidence and determine the truth of the matter but to determine whether there is a

genuine issue for trial." Id. at 249; see also Jeffreys v. City of New York, 426 F.3d 549,

551 (2d Cir. 2005) (“district courts may not weigh evidence or assess the credibility of

witnesses at the summary judgment stage”). In making this determination, the court

must consider the record evidence “taken as a whole,” Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986), and

may not “consider the record in piecemeal fashion, trusting innocent explanations for

individual strands of evidence,” Kaytor, 609 F.3d at 545.

The court must further “draw all reasonable inferences in favor of the nonmoving

party even though contrary inferences might reasonably be drawn.” Moll v. Telesector

Res. Grp., 94 F.4th 218, 227 (2d Cir. 2024) (quotation marks and citations omitted); see

also Addickes v. S.H. Kress & Co., 398 U.S. 144, 158-59, 90 S. Ct.1598, 1609, 26 L. Ed.

2d 142 (1970) (explaining that, at the summary-judgment stage, the evidence and the

inferences drawn from the evidence must be "viewed in the light most favorable to the

party opposing the motion"). Indeed, “[i]f, as to the issue on which summary judgment

is sought, there is any evidence in the record from which a reasonable inference could be

drawn in favor of the opposing party, summary judgment is improper.” Sec. Ins. Co. of

Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 82–83 (2d Cir. 2004) (citations

omitted). "Only when reasonable minds could not differ as to the import of evidence is

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

In examining motions for summary judgment, the court must refrain from making

credibility determinations or weighing evidence: “Assessments 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). The court

also “must disregard all evidence favorable to the moving party that the jury is not required

to believe.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S. Ct.

2097, 147 L. Ed. 2d 105 (2000).

Yet a party opposing summary judgment must do more than cast a “metaphysical

doubt” as to the material facts, Matsushita, 475 U.S. at 586; it must “offer some hard

evidence showing that its version of the events is not wholly fanciful,” D’Amico v. City of

New York, 132 F.3d 145, 49 (2d Cir. 1998). That is, a “mere scintilla of evidence” in favor

of the nonmoving party will not defeat summary judgment. Anderson, 477 U.S. at 252.

There must be evidence from which a factfinder could reasonably find for the nonmoving

party. Id. Reliance on conclusory statements, unsubstantiated speculation, or mere

allegations will not suffice. F.D.I.C. v. Great Am. Ins. Co., 607 F.3d 288, 292 (2d Cir.

2010) (quotation omitted); Davis v. New York, 316 F.3d 93, 100 (2d Cir. 2002).

2. Section 1983 and Personal Involvement

Zwick brings her claims under 42 U.S.C. § 1983. Civil liability is imposed under

' 1983 only upon persons who, acting under color of state law, deprive an individual of

rights, privileges, or immunities secured by the Constitution and laws. See 42 U.S.C. '

1983. To succeed on a § 1983 claim, a plaintiff must establish that the challenged

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conduct “(1) was attributable to a person acting under color of state law, and (2) deprived

the plaintiff of a right, privilege, or immunity secured by the Constitution or laws of the

United States.” Whalen v. Cnty. of Fulton, 126 F.3d 400, 405 (2d Cir. 1997); see also

Hubbard v. J.C. Penney Dep’t Store, 05-CV-6042, 2005 WL 1490304, at *1 (W.D.N.Y.

June 14, 2005).

Personal involvement in the deprivation of a federal constitutional right is the sine

qua non of liability under § 1983. See Haygood v. City of New York, 64 F. Supp. 2d 275,

280 (S.D.N.Y. 1999). It is well settled in this circuit that personal involvement by

defendants in cases alleging constitutional deprivations is a prerequisite to an award of

damages under § 1983. See McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir. 1977);

Richardson v. Coughlin, 101 F. Supp. 2d 127, 129 (W.D.N.Y. 2000); Pritchett v. Artuz,

No. 99 Civ. 3957 (SAS), 2000 WL 4157, at *5 (S.D.N.Y. Jan. 3, 2000).

B. Defendants’ Motion for Summary Judgment

Zwick brings three Fourth Amendment claims against Defendants: false arrest;

false imprisonment; and malicious prosecution. Defendants argue that they are entitled

to summary judgment on each of these claims, primarily because there was probable

cause to arrest and prosecute Zwick or because qualified immunity applies. They further

argue that, in the absence of a constitutional violation, they are also entitled to summary

judgment on Zwick’s Monell claim. Zwick maintains that the existence of disputed issues

of material fact precludes summary judgment in Defendants’ favor altogether.

1. False arrest/False imprisonment

The Fourth Amendment protects “[t]he right of the people to be secure in their

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persons, houses, papers, and effects, against unreasonable searches and seizures.”

U.S. Const., amend IV. To succeed on a Fourth Amendment false arrest/false

imprisonment claim, a plaintiff must prove that (1) the defendant intended to confine the

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

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

Kirkpatrick, 801 F.3d 51, 70-71 (2d Cir. 2015) (quoting Broughton v. State of New York,

335 N.Ed.2d 310, 314 (N.Y. 1975)); Nix v. City of Rochester, No. 6:14-CV-06395 (MAT),

2017 WL 3387103, at *5 (W.D.N.Y. Aug. 5, 2017).

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

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

because he has qualified immunity.” Simpson v. City of New York, 793 F.3d 259, 265

(2d Cir. 2015); Bernard v. United States, 25 F.3d 98, 102 (2d Cir. 1994); Walker v. City of

New York, 15 CV 500 (NG)(ST), 2017 WL 2799159, at *3 (E.D.N.Y. June 27, 2017) (“An

arrest is privileged when probable cause exists, and probable cause is, therefore, a

complete defense to a claim for false arrest.”).

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). A finding of probable cause is made based on the totality of the

circumstances, and should encompass plainly exculpatory evidence alongside

inculpatory evidence to ensure the court has a full sense of the evidence that led the

officer to believe that there was probable cause to make an arrest. See Illinois v. Gates,

462 U.S 213, 230, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1982); Stansbury v. Wertman, 721

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F.3d 84, 93 (2d Cir. 2013).

An officer has probable cause to arrest or detain “’when he or she has knowledge

or reasonably trustworthy information of facts and circumstances that are sufficient to

warrant a person of reasonable caution in the belief that the person to be arrested has

committed or is committing a crime.’” Garcia v. Does, 779 F.3d 84, 92 (2d Cir. 2015)

(quoting Dickerson v. Napolitano, 604 F.3d 732, 751 (2d Cir. 2010)). In assessing

probable cause, an officer is “not required to explore and eliminate every theoretically

plausible claim of innocence before making an arrest.” Ricciuti v. New York Transit

Auth., 124 F.3d 123, 128 (2d Cir. 1997).

To determine whether probable cause existed for an arrest, courts “assess

whether the facts known by the arresting officer at the time of the arrest objectively

provided probable cause to arrest.” Jaegly v. Couch, 439 F.3d 149, 153 (2d Cir. 2006).

It is the plaintiff’s burden to establish the absence of probable cause, and whether

probable cause existed may be decided as a matter of law, unless the pertinent facts and

knowledge of the officer are disputed. See Nickey v. City of New York, No. 11-CV-3207,

2013 WL 5447510, at *5 (E.D.N.Y. Sept. 27, 2013) (“[W]hen the facts material to a

probable cause determination are undisputed, the matter is a question of law properly

decided by the [c]ourt.”).

Finally, for purposes of a false arrest/false imprisonment claim, “it is irrelevant if

ultimately the plaintiff is acquitted of the charges against him because the inquiry is

whether the facts known by the arresting officer at the time of the arrest objectively

provided probable cause to arrest the plaintiff.” Forsythe v. City of Watertown, 5:17-CV-

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1132 (FJS/TWD), 2020 WL 1274270, at *6 (N.D.N.Y. Mar. 17, 2020) (quotation marks

and citations omitted).

Defendants first maintain that they are entitled to summary judgment because

probable cause existed for Zwick’s arrest. Defendant Jones arrested Zwick for driving

while intoxicated, in violation of § 1192 (3) of the New York Vehicle & Traffic Law. (See

Information/Complaint, Docket No. 19-16; Supporting Deposition, p. 1.) That section

provides that “[n]o person shall operate a motor vehicle while in an intoxicated condition.”

N.Y. Veh. & Traf. L. § 1192 (3).

The parties heavily dispute the existence of probable cause. Defendants

maintain that probable cause to arrest existed. Zwick maintains that it did not, or at the

very least, that genuine issues of material fact on the question exist. Having drawn all

inferences and considered the evidence in Zwick’s favor, this Court finds that genuine

issues of material fact and credibility preclude summary judgment.

During his deposition, Defendant Jones stated that he believed he had probable

cause to arrest and charge Zwick with driving while intoxicated. (Jones Dep., p. 18.)

He reached this conclusion because Zwick was at or near the vehicle that struck two other

parked vehicles; Zwick’s driver’s door was open; the passenger seat and floor of Zwick’s

vehicle had “belongings” on them; there were no signs in the street that the brakes had

been applied before hitting the first vehicle; Zwick smelled of alcohol; Zwick had

staggered walk and stance, glassy eyes, and slurred speech; and Zwick was

argumentative. Id. pp. 18-20. Zwick also told Defendant Jones that she was coming

from her salon. Id. p. 21.

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These observations are reflected in Defendant Jones’s reports. The DWI Report

reflects that the odor of alcohol was present, that Zwick’s walk and stance were

staggered, that Zwick’s eyes were glassy and her speech was slurred, and that she was

argumentative. (DWI Report, p. 1.)

In the supporting deposition, Defendant Jones checked off the following boxes as

supporting his conclusion that Zwick was driving her vehicle at the time of the accident:

“Defendant near the Vehicle”; “Keys in the Ignition”; “Motor Running”; and “Defendant

Injured in Crash.” (Supporting Deposition, Docket No. 19-14, p. 1) As observations

supporting probable cause for Zwick’s arrest, Defendant Jones checked off “Odor of

Alcoholic Beverage”; “Glassy Eyes”; “Impaired Speech”; and “Impaired Motor Condition.”

Id.

As additional support for probable cause, Defendant Jones indicated that Zwick

told him at the scene that she had consumed three alcoholic beverages, that she had

been operating the vehicle, that she was driving from work, and that she would not take

a screening test. Id. p. 2. Defendant Jones further noted that, at ECMC, Zwick “became

belligerent and argumentative telling [Defendant Jones] that her lawyer would eat me for

dinner and that [Defendant Jones’s] ass would be grass.” Id.

In the Report of Refusal to Submit to Chemical Test, Defendant Jones indicated

that Zwick refused to submit to a breath test. (Report of Refusal to Submit to Chemical

Test, Docket No. 19-15.) That report further contains two narratives concerning

Defendant Jones’s interactions with Zwick:

[ZWICK] STATED SHE HAD 3 DRINKS AT AN

UNDISCLOSED LOCATION. [ZWICK] STATED SHE

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THOUGHT SHE WAS ON CAYUGA RD. [ZWICK]

REFUSED A PRE-SCREEN DEVICE STATING “I DON’T

TRUST YOU GUYS.” [ZWICK] HAD A STRONG ODOR OF

ALCOHOLIC BEVERAGE, GLASSY EYES AND IMPAIRED

SPEECH. [ZWICK] WAS BELLIGERENT AND TALKED

OVER [DEFENDANT JONES] WHEN MIRANDA AND DWI

WARNINGS WERE GIVEN. [ZWICK] NEEDED TO BE

TOLD NUMEROUS TIMES WHAT HAPPENED AND COULD

NOT UNDERSTAND SIMPLE INSTRUCTIONS.

. . .

[ZWICK] STATED SHE WASN’T TAKING ANY TESTS

WITHOUT SPEAKING TO A LAWYER FIRST. HER

LAWYER SAID SHE SHOULD TELL US TO FUCK OFF.5

Id. (caps in original).

Zwick disputes this evidence. She denies consuming any alcohol on the day of

the accident and denies keeping any alcohol in her car. (Zwick Dep., pp. 8, 9.) She

notes that no one, including Defendant Jones, saw her driving her vehicle or witnessed

the accident. She further contends that many of Defendant Jones’s alleged probable-

cause observations may reasonably be attributed to the physical injuries she sustained

in the accident, rather than to any state of intoxication.

Trial testimony from Defendant Jones himself appears to support this contention.

He testified, for example, that Zwick was “in a lot of pain” and “pretty upset” over the

compound fracture she suffered to her finger and was visibly shaken from the accident.

(Trial Transcript (“Trial Tr.”), Docket No. 19-18, pp. 11, 18.) He further testified that

making observations about Zwick’s speech was “hard to say” because she was “pretty

upset,” which is a departure from his previous statements that her speech was slurred or

5 Zwick apparently spoke to her lawyer at some point while she was at the hospital. (Zwick Dep., p. 32.)

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impaired. Id. p. 11. Similarly, he stated that Zwick’s eyes may have appeared glassy

because she had been crying, not necessarily because she had been drinking. Id. p. 18.

He further agreed that the smell of alcohol could have emanated from clothing or some

other source. Id.

The medical evidence could also be viewed as supporting Zwick’s position. It

states that Zwick lost consciousness after the accident and suffered retrograde and

antegrade amnesia. (Medical Records, pp. 1-2.) The injuries were such that Zwick

remained visibly upset at ECMC, was still in a lot of pain, was “rambling,” and could not

understand simple instructions. (Trial Tr., pp. 18, 20; Report of Refusal to Submit to

Chemical Test, p. 1.)

Drawing all inferences and viewing all evidence in Zwick’s favor, this Court finds

that a reasonable jury could determine that Zwick’s injuries, rather than intoxication, were

the source of any staggered walk or stance, glassy eyes, slurred speech,

argumentativeness, or other noted indicia of intoxication, and that such should have been

apparent at the scene.

Moreover, Defendant Jones’s recollection and credibility are at issue, given several

inconsistencies in his statements. For example, Defendant Jones testified during his

deposition that he offered Zwick an Alco-Sensor test and a blood test “numerous times”

but she refused both. (Jones Dep., pp. 17-18, 38-39.) The same is indicated on the

DWI Report. (DWI Report, p. 1.) But later in his deposition, Defendant Jones indicated

that he had no specific recollection of offering Zwick a blood test, and the report

concerning Zwick’s refusal indicates that only a breath test was offered and refused.

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(Jones Dep., pp. 38-39; Report of Refusal to Submit to Chemical Test, p. 1.) Further

still, Defendant Jones testified at Zwick’s trial that he never offered Zwick the opportunity

to take a chemical test because she was receiving medical treatment at the hospital.

(Trial Tr., p. 13.) And as discussed above, Defendant Jones’s trial testimony raised

questions about the accuracy of the probable-cause observations relayed in his reports

and deposition testimony.

This Court cannot weigh evidence or make credibility determinations at this stage.

See Jeffreys, 426 F.3d at 551; Rule, 85 F.3d at 1011. It must view the evidence in

Zwick’s favor and determine whether there is a genuine issue for trial, disregarding all

evidence favorable to Defendants that the jury is not required to accept. See Anderson,

477 U.S. at 249; Reeves, 530 U.S. at 150. Applying these principles, and considering

the record as a whole, this Court finds that summary judgment on this claim is precluded

due to the existence of disputed issues of material fact and open credibility determinations

that only the factfinder can resolve. In this Court’s view, a jury crediting Zwick’s evidence

and version of events could reasonably find that Defendant Jones lacked sufficient

probable cause to arrest her. Consequently, Defendants’ motion premised on the

undisputed existence of probable cause must be denied.

This finding also precludes summary judgment on Defendants’ second asserted

ground—qualified immunity. “Qualified immunity protects public officials from civil

liability ‘if (a) the defendant’s action did not violate clearly established law, or (b) it was

objectively reasonable for the defendant to believe that his action did not violate such

law.’” Coggins v. Buonora, 776 F.3d 108, 114 (2d Cir. 2015) (quoting Salim v. Proulx,

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93 F.3d 86, 89 (2d Cir. 1996)); White v. Pauly, 580 U.S. 73, 78-79, 137 S. Ct. 548, 196 L

Ed. 2d 463 (2017) (per curiam) (“Qualified immunity attaches when an official’s conduct

‘does not violate clearly established statutory or constitutional rights of which a

reasonable person would have known.’” (citation omitted)). Here, there is no doubt that

the right to be free from arrest without probable cause was clearly established at the time

Defendant Jones arrested Zwick. See Martinez v. Simonetti, 202 F.3d 625, 634 (2d Cir.

2000) (collecting cases); Golino v. New Haven, 950 F.2d 864, 870 (2d Cir. 1991) (“The

right not to be arrested or prosecuted without probable cause has, of course, long been

a clearly established constitutional right.”).

The entitlement to qualified immunity therefore turns on whether Defendant

Jones’s probable-cause determination was objectively reasonable. In this regard, “[a]n

officer’s determination is objectively reasonable if there was ‘arguable’ probable cause at

the time of arrest—that is, if ‘officers of reasonable competence could disagree on

whether the probable cause test was met.” Jenkins v. City of New York, 478 F.3d 76,

86 (2d Cir. 2007) (quoting Lennon v. Miller, 66 F.3d 416, 423-24 (2d Cir. 1995)). The

essential inquiry is whether it was objectively reasonable for the officer to conclude that

probable cause existed. See id. If jury the jury resolves the fact and credibility issues

outlined above in Zwick’s favor, qualified immunity may not apply. Summary judgment

on this basis is therefore also denied.

2. Malicious prosecution

To prevail on a § 1983 malicious-prosecution claim, a plaintiff must demonstrate a

Fourth Amendment violation and “(1) the commencement or continuation of a criminal

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proceeding by the defendant against the plaintiff, (2) the termination of the proceeding in

favor of the accused, (3) the absence of probable cause for the criminal proceeding, and

(4) actual malice.” Brooks v. Whiteford, 384 F. Supp. 3d 365, 371 (W.D.N.Y. 2019); see

also Kee v. City of New York, 12 F.4th 150, 161-62 (2d Cir. 2021); Mitchell v. City of New

York, 841 F.3d 72, 79 (2d Cir. 2016).

Defendants first seek summary judgment based on the existence of probable

cause. “In the context of a malicious prosecution claim, probable cause under New York

law is the knowledge of facts, actual or apparent, strong enough to justify a reasonable

man in the belief that he has lawful grounds for prosecuting the defendant in the manner

complained of.” Rounseville v. Zahl, 13 F.3d 625, 629 (2d Cir. 1994). This assessment

is made based on “facts known or reasonably believed at the time the prosecution was

initiated, as opposed to at the time of arrest.” Vanderwoude v. City of New York, No. 12

Civ. 9046 (KPF), 2014 WL 2592457, at *14 (S.D.N.Y. June 10, 2014) (citation omitted).

On this record, the same issues of material fact identified above also inform whether

Defendant Jones had probable cause to initiate criminal proceedings against Zwick.

Summary judgment on this basis is therefore precluded.

Defendants also seek summary judgment on the grounds that Zwick cannot show

actual malice. To prove actual malice, a plaintiff must demonstrate that the defendant

“commenced the prior criminal proceeding due to a wrong or improper motive, something

other than a desire to see the ends of justice served.” Rounseville, 13 F.3d at 630.

Malice, which is typically a fact question reserved for the jury, see id. at 631, may be

proven circumstantially and “may be inferred from the lack of probable cause,” Lowth v.

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Town of Cheektowaga, 82 F.3d 563, 573 (2d Cir. 1996). “Thus, if there is a question of

fact for probable cause, there is also a question for malice.” Noga v. City of Schenectady

Police Officers, 169 F. Supp. 2d 83, 90 (N.D.N.Y. 2001).

As discussed above, there exist genuine issues of material fact relative to probable

cause. Moreover, the record contains evidence that Zwick was difficult or argumentative

with Defendant Jones, which a jury could view as improper motive for pursuing a criminal

prosecution. (See, e.g., DWI Report, p. 1 (“[Zwick] stated she hates the Cheektowaga

police department because all the officer [sic] want are arrests and care for nobody.”); id.

(listing Zwick’s attitude as “argumentative”); Report of Refusal to Submit to Chemical

Test, p. 1 (“[Zwick] was belligerent and talked over [Defendant Jones] . . . .”); id.

(recounting that Zwick told Defendant Jones that her lawyer said he should “fuck off”);

Supporting Deposition, p. 2 (“[Zwick] became belligerent and argumentative telling

[Defendant Jones] that her lawyer would eat me for dinner and that [Defendant Jones’s]

ass would be grass.”) In other words, a jury could find that the criminal prosecution was

initiated in retaliation for Zwick’s disrespectful or insulting behavior, rather than out of a

genuine desire to see the ends of justice served. Accordingly, summary judgment is

precluded. See Naim v. City of New York, No. 10-CV-912 (FB) (RER), 2012 WL

2923308, at *3 (E.D.N.Y. July 18, 2012) (“Because malice may be proven circumstantially

and a jury may infer malice from the absence of probable cause, the malice element is

also a question for the jury.”); Belsio v. Cnty. of Erie, 19-CV-215-MJR, 2021 WL 3053386,

at *8 (W.D.N.Y. July 20, 2021) (noting that “lack of probable cause generally raises an

inference of malice sufficient to withstand summary judgment”).

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3. Monell

As it pertains to municipalities, § 1983 imposes liability only when a municipality’s

official custom or policy causes an employee to violate an individual’s constitutional rights.

Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978).

Municipal liability cannot be premised solely on a respondeat superior theory, but must

be based on constitutional deprivations caused by an officially promulgated, or de facto,

governmental “custom” or “policy[.]” Pembaur v. City of Cincinnati, 475 U.S. 469, 480,

106 S. Ct. 1292, 89 L. Ed. 2d 452 (1986). Thus, a municipality will be liable for a § 1983

violation only where the municipality itself was the “moving force” behind the deprivation

of a plaintiff’s federal rights. See Bd. of the Cnty. Comm’rs of Bryan Cnty., Okla. v.

Brown, 520 U.S. 397, 400, 117 S. Ct. 1382, 137 L. Ed. 2d 626 (1997). That is, “a

municipality will not be held liable solely because it employs a tortfeasor.” Bisignano v.

Harrison Cent. Sch. Dist., 113 F. Supp. 2d 591, 601 (S.D.N.Y. 2000). Consequently, “to

establish the liability of a municipality in an action under § 1983 for unconstitutional acts

by a municipal employee below the policymaking level, a plaintiff must establish that the

violation of his constitutional rights resulted from a municipal custom or policy.” Vann v.

City of New York, 72 F.3d 1040, 1049 (2d Cir. 1995).

Defendants move for summary judgment on Zwick’s Monell claim on the sole

ground that because probable cause existed for Zwick’s arrest and prosecution, no

underlying constitutional deprivation occurred. But as discussed at length above,

disputed issues of material fact preclude a finding at this stage that probable cause

existed as a matter of law. Consequently, Defendants’ are not entitled to summary

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judgment on this basis.

IV. CONCLUSION

The existence of genuine issues of material fact preclude summary judgment on

any of Zwick’s remaining claims. Defendants’ motion seeking the same will therefore be

denied. Zwick’s § 1983 conspiracy claim will be dismissed by agreement. Before

proceeding to trial, the parties must engage in mediation to determine whether a pretrial

resolution of this matter can be reached.

V. ORDERS

IT HEREBY IS ORDERED, that Defendants’ motion for summary judgment

(Docket No. 19) is DENIED.

FURTHER, that Plaintiff’s § 1983 conspiracy claim is DISMISSED by agreement.

FURTHER, that this case is REFERRED for alternative dispute resolution under

Section 2.1.B of the Plan for Alternative Dispute Resolution in the United States District

Court for the Western District of New York (“the ADR Plan”).

FURTHER, that the parties shall comply with all relevant requirements of the ADR

Plan, which is available at http://www.nywd.uscourts.gov.

FURTHER, that the parties are directed to re-engage in mediation with Michael

Brady or a federal-court mediator of their mutual choosing.

FURTHER, that the parties shall conclude their mediation efforts by March 24,

2025.

FURTHER, that the parties must explore consent to proceeding before a

magistrate judge in accordance with 28 U.S.C. § 636 (c). The consent form is available

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at https://www.nywd.uscourts.gov/forms-3. The consent process is set forth in Loc. R.

Civ. P. 73. The parties are, of course, free to withhold consent without adverse

substantive consequences. See Fed. R. Civ. P. 73 (b)(2).

FURTHER, that the parties must file a joint written notice concerning the status of

mediation and consent by April 7, 2025.

SO ORDERED.

Dated: February 5, 2025

Buffalo, New York

s/William M. Skretny

WILLIAM M. SKRETNY

United States District Judge

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