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December, 10, 2016
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Mystery lady again seen with N. Korea's Kim
July 16, 2012, 12:09 am TWN
SEOUL -- A smartly dressed woman seen with Kim Jong Un at recent public events was Sunday again shown on state television accompanying the North Korean leader, increasing speculation that she could be his wife.
The short-haired brunette was first shown with Kim earlier this month, but official media has not said who she is and so little is known of the young leader that it is not even clear if he is married.
The latest photos aired by state television show what seems to be the same woman, who is apparently in her 20s or 30s and is wearing a yellow polka-dot dress and chic white jacket.
She is standing close to Kim during a visit to a kindergarten, while other officials stay a few steps behind the pair. It is not clear when the visit took place and it is only the third time she has been shown to the outside world.
The woman was seen grinning while standing immediately behind or next to Kim as he hugged and talked to children in Kyongsang Kindergarten.
There have been suggestions that she might be Kim's younger sister, but South Korea's Yonhap news agency said — quoting a Seoul government official who declined to be named — it was "highly likely" the lady was Kim's wife.
"From the protocol point of view, such as this woman's place and table settings, it is highly likely that she's his wife and ... (he) must actually be married," said the official quoted by Yonhap.
The woman has been prominent in all photos released by the state, and the latest ones showed top party cadres — including Kim's powerful uncle Jang Song-Thaek — largely standing behind the couple.
Believed to be in his late 20s, Kim took over from his late father and longtime ruler Kim Jong-Il after his death last December.
There have been mixed views from analysts as to the identity of the woman.
Some have suggested there is little chance she is the leader's wife because North Korea's first ladies are hardly ever pictured.
But Cheong Seong-Chang, of the South's Sejong Institute, said he was "certain" it was Kim's wife.
"By stressing that Kim Jong Un was a married man with a wife ... the North was trying to create the image of him as a stable leader," he said in a recent report.
Anti-corruption protests sweep Asia
Microbreweries set out to reinvent traditional liquors in South Korea
Japan PM confident in Trump's diplomacy debut
Cricket: Du Plessis ton puts S. Africa in strong position in day-night Test
S. Korea's Park colluded in corruption scandal: prosecutors
Tokyo gets November snow for first time in 54 years
K-pop director charged in S. Korea scandal
India ATM reset to take 'weeks': minister
Abe to visit Pearl Harbor this month
Philippine, US military chiefs say ties still strong

subset: commoncrawl


text: Hi, I was trying to use Jmol's functions to build an app for my own need. I met a strange problem when I was using the function transformP2. For example, I use Measure.getQuaternion() to get a quaternion. Let's call it q. Then I use q.transformP2(ptA,ptAnew) to get every atom's coordinates of a structure after rotation. Then I also used Jmol script "rotate QUATERNION {q.q1 q.q2 q.q3 q.q0} to rotate the structure and then get the coordinates. I notice the coordinates I get from these two ways are not equal. I found out that the coordinates I got by function transformP2 are correct. The coordinates I got by using rotate script are not. Do you know why? Thank you -- Aiden/Jiayi Zhou Office Tel: 709-864-4891 Master Candidate Dept. of Computer Science Memorial University of Newfoundland St. John's, NL, Canada, A1B 3X5 P I*f you decide to print this...* * then you'll need to find a place to file it...!*


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What's in store for the Green Climate Fund in 2012?
Mar. 31, 2012 / Posted by: Karen Orenstein / Categories: Blog, Climate and Energy, Economics for the Earth / Tags: Climate finance, Green climate fund, Karen orenstein
With the first board meeting of the Green Climate Fund scheduled for the end of April, now is a good time to provide a bit of a primer and update on the GCF. The lead-up to the Green Climate Fund Since 2008, Friends of the Earth and many others h...Read More »


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"The Saddle Road" Island Tours Tip by diver-x
Island Tours, Kailua-Kona: 10 reviews and 14 photos
Your rental car company will tell you that your insurance is void if you take your car on the Saddle Road. As our guidebook told us, this regulation is completely outdated. There is no reason that you shouldn't be able to drive the Saddle Road. It's completely paved and they're working to improve it and widen it even more at this writing. There are a couple of oddly banked curves, but nothing to really worry about. And you certainly don't need 4 wheel drive. Any car can make the trip.
Why would you want to drive the Saddle Road? There is some really great scenery! Driving from Kailua-Kona, you'll see Mauna Kea on your left and Mauna Loa on your right. The Saddle Road rides the "saddle" between the two giants. And if you want to go to the top of Mauna Kea where the observatories are then you have to use the Saddle Road to get to the Summit Road. Also there is a great lava tube off this road, which is a really fun adventure getting to and exploring it.
Yes, we took our rental car, flouting our contract. We had no problems whatsoever and didn't see any potential problems on the road. We also took the car up Mauna Kea Summit Road. We did have 4 wheel drive and I would recommend it for the summit only for the drive down because of the lower gears available. You need to be in very low gear driving down the mountain so you don't wear your breaks out. You can take a 2 wheel drive car on the summit road up to the rest station at 9000 feet with no problems.
Directions: The Saddle Road begins on the Kailua-Kona side of the island near Waimea on Rt 190 and heads toward the Hilo side of the island.
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Check Out the new Remax App
Ask About This Home
Conveniently off I-26 yet completely secluded this 6 bedroom 3 bath 3,328 sq-ft home has so much potential! 1st floor has 4 bedrooms, 2 baths, full kitchen, and a large porch. Above the 1st floor the 2nd floor has its own entrance with 2 very large bedrooms, 1 bathroom, laundry room, large full kitchen and 2 private decks with beautiful views. Beautiful stone work surrounds the foundation. New roof, septic lines, and shared artesian well are just a few of the updates. All appliances to stay! Directly from the porch you can sit and enjoy the views of the Unaka Mountain Beauty Spot and listen to the peaceful stream that runs right in front of the property. Quiet and secluded but still close to everything you need. This home is a steal at this price per square foot!


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Text Illustration Search Results for Overcomers
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INDESCRIBABLE CHRIST Dr. S.M. Lockridge was the Pastor of Calvary Baptist Church, San Diego CA from 1953 - 1993. He entered heaven in 2000. He is...
Contributor: SermonCentral
Scripture: Psalms 25:1
Tags: Peace, Trinity, Jesus Christ, Miracles Of Jesus
Shared: 12/16/2002
1. Johnny Fulton was run over by a car at the age of three. He suffered crushed hips, broken ribs, a fractured skull, and compound fract...
Contributor: SermonCentral
Category: Stories
Scripture: none
Tags: Endurance, Finding Fulfillment
Shared: 2/6/2003
THE PERSON OF THE BOOK GENESIS: Promised Seed EXODUS: Passover Lamb LEVITICUS: Scapegoat NUMBERS: Brazen Serpent DEUTERONOMY: Great Lawgi...
Contributor: SermonCentral
Scripture: Ecclesiastes 4:27, Philippians 3:12-3:16, Hosea 4:1-4:16, Nehemiah 3:1-3:17, Proverbs 1:1-1:1
Tags: Friendship, Jesus Christ, Scapegoat
Shared: 6/19/2003
This last week I began reading a book by James Rutz. James wrote this book to make the Christian church aware that God is...
Contributor: SermonCentral
Scripture: none
Tags: Culture
Shared: 8/20/2008
What do the overcomers (the ones who defy gravity) of this world get according to Scripture? a. Revelation 2:7: i....
Contributor: SermonCentral
Scripture: none
Tags: Trials And Difficulties
Shared: 1/28/2010
STAYING IN THE SHALLOW END He stays at the shallow end of the pool for a long time, refusing invitations to come out into the deeper water, even wi...
Contributor: SermonCentral
Category: Stories
Scripture: none
Tags: Faith
Shared: 1/28/2011


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- Description
Quick Overview
Ideal for partied-out peeps or frequent travellers, the Anatomicals Revitalising Gel Eye Mask will put a twinkle back into your eyes in no time.
- It will leave your eyes feeling cool and refreshed.
- Reduces puffiness to a significant extent.
- Free from DEA'S, Sulphates, Parabens and SLS's.
- Sleek packaging that makes it a travel friendly product.
- Great for gifting purpose.
Anatomicals is a company that 'Only Wants You for Your Body' and manufactures World class toiletries that are paraben free. The Anatomicals Revitalising Gel Eye Mask is the perfect addition to your beauty prep regime.
Expiry Date : November 2018
All our products are far from expiry, and procured directly from the brand/authorized resellers of the brand.
Ethylene Glycol, Water, Edible Color Powder, Gel powder.
How to use product
- You can leave this revitalizing gel mask to chill for 30 minutes in the fridge.
- Place this mask over your eyes.
- It can also be placed in hot (not boiling) water for ten minutes for a soothing, relaxing warm eye mask.
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By Subarna Biswas
It's very relaxing and takes away all your stress. You feel refreshed and rejuvenated!
Posted on 4/30/2016
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Criner Remodeling finds that revamping its brand with a new name, logo, van advertising, and new marketing materials has breathed new life into the company. Read more
Low-key efforts put faces to remodelersí names and distinguish them from the marketing barrage that consumers face on a daily basis. Read more


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Brown Leather Studded Chain Mail Cuff Bracelet
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This item may have been worn but has no visible signs of wear.
Super cute/ cool brown leather cuff with double brass snap closure- adjustable to two sizes. Has gold tone pyramid stud, chain mail and chain detail.
8"L x 2.5"H x 2.5"W
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Sat 12/10/16 - Wed 12/14/16 (4-8 days)
Feel free to return this item for any reason and get Tradesy Credit. Use your credit to buy something that makes you happy. Just a heads-up, purchases outside the U.S. are Final Sale.
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Anyone who would like to know what a tell-it-like-it-is, shoot-from-the-hip president is like can look to the Philippines and its leader, Rodrigo Duterte. A 71-year-old populist, Duterte fought drugs while he was mayor of Davao by allegedly ordering death-squad killings. When he took office as president in June he promised more of the same. Since… Read More
Is Caesar the Answer?
The Caesar Syria Civilian Protection Act is a bipartisan bill designed to sanction the Syrian regime of Bashar al-Assad for mass murder and crimes against humanity. The bill would also sanction entities that support Assad, namely Russia and Iran. The Obama administration is reportedly seeking to weaken the bill, in an apparent attempt to avoid… Read More
Common Ground
Sukkot is my favorite holiday, and let me tell you, it couldn't come at a better time. That's odd for an admitted political junkie to say, I know, but after the revelations late last week in the presidential race — for those in the know, they were the vilest to date — I'll be enjoying… Read More
A Failure of Leadership Parshat Haazinu
This is one of the shorter sections of the Torah, and it is made up almost entirely of a breathtaking and chastening poem. The term "awesome" tends to be overused today, but this poem is truly awesome. Unfortunately, the power of the Hebrew rhythm and poetic style is lost in the English translation, but we… Read More
ZOA Should Join ADL
Instead of attacking the venerable ADL ("ADL's Greenblatt Embraces Controversy, Bemoans Rancor in Community," Sept. 30), Mort Klein and the Zionist Organization of America should be joining hands with it in combating the anti-Semitic white supremacists who openly support the presidential candidacy of Donald J. Trump. Wait a minute. Mort Klein can't really do that, inasmuch as the ZOA's primary financial… Read More
Hillary Clinton for President
The election of 2016 has thrown a light onto many aspects of the American Dream that have either been ignored or given short shrift in recent years. The unsuccessful primary campaign of Sen. Bernie Sanders brought out the enthusiasm and frustration of young middle-class Americans burdened by school debt and fearful that a prosperous future… Read More
Shall We Really Pursue Justice in Baltimore in 5777?
After Baltimore's uprising in 2015, many of us reflected, "What can I possibly do to make a difference?" In working with Jews United for Justice (JUFJ), Baltimore-area Jews channeled their drive for justice toward passage of a police reform bill that included many important changes. Local lawmakers, who came to play such a pivotal role… Read More
Justice for 9/11 Victims' Families
Americans have little warmth for Saudi Arabia. Despite its strong strategic relationship with the United States — its vital oil supplies acted as a counterbalance against Saddam Hussein's Iraq, and now Iran — the desert kingdom shares little in common with American values. It exports Wahhabism, a radical form of orthodox Sunni Islam. Its human… Read More
Shimon Peres
A cartoon by Israeli Amos Biderman making the rounds last week showed Shimon Peres climbing the steps to heaven. Waiting to greet him, wearing robes, wings and haloes, are three former prime ministers: Golda Meir, Yitzhak Rabin, who is puffing on a cigarette and in front with arms outstretched, and David Ben-Gurion, Israel's first prime… Read More
Sadly, More of the Same
The Orthodox Union has chosen a group of seven rabbis for the purpose of providing, according to the OU, "guidance regarding the ordination of women and related issues such as the broadest spectrum of professional roles within the shul that a woman can perform." This initiative seems misguided. First, while the issue of women in… Read More
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Complete Nutrition - Multiple Locations
60-Day Weight-Loss Kit or $45 for $100 Worth of Vitamins and Supplements at Complete Nutrition
The Fine Print
- Expires May 1st, 2013.
- Limit 2 per person, may buy 2 additional as gifts. Limit 1 per visit. Valid only for option purchased. In-store only. Not valid for sale items. Valid only for Complete Nutrition products. Must use promotional value in 1 visit.


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Remember Me
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Become a CBA Member
11/17/2016CBA Nominating Committee Looking to Fill Officer Positions
11/4/2016Associate Justice Peter. T. Zarella Retires
11/4/2016Legislative Update: November 4, 2016
12/12/2016Joint Meeting: House of Delegates and Board of Governors (CBG161212)
12/12/2016Commercial Law & Bankruptcy Section and Turnaround Management Association Holiday Party (SCB161212)
12/13/2016Elder Law Section Meeting (SEL161213)
12/13/2016Business Law Section Meeting (SBL161213)
12/13/2016Family Law Holiday Party (SFL161213)
The Connecticut Bar Association hosts a number of education programs annually. These events can attract approximately 50 legal professionals in attendance.
Sample Events and Education Programs
Presenting Sponsor (less than 50 attendees projected)
30 Bank Street
New Britain, CT 06050
Directions to the CBA
Phone: (860)223-4400
Fax: (860)223-4488
E-mail: firstname.lastname@example.com


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An experienced designer with complete mastery of the principles, tools and technologies of graphic design for the web, you have experience managing projects independently while leading a team of graphic designers. You can also manage day-to-day output of individuals under your supervision, motivating and leading by example to constantly improve and challenge skills and quality of output.
Key Responsibilities
- Independently manage projects from concept-through-completion
- Analyze briefs, visualize and execute creative concepts individually or with a team; lead the design effort on concept/prototype and production tasks
- Supervise teams, manage and mentor individuals
- Consult with and report to Creative Director / Associate Creative Director
- Work closely with Account Management, Client Servicing, Strategy, IA, Copy and Development teams to manage creative output and timeline expectations and goals
- Advance the skillset of self and team; stay updated with current trends, tools and technologies
- Actively participate in brainstorming sessions and team-building exercises; provide performance feedback through on-going evaluation of team members
Key Skills
- Strong design skills with knowledge of layout, illustration, typography and other design fundamentals, ability to visualize and execute creative concepts
- Must have designed for websites, mobile applications, social media apps and digital advertising
- Mastery of Adobe Photoshop and Adobe Illustrator and knowledge of other industry standard tools is desirable, sound knowledge of user interface design and working knowledge of HTML
- Excellence in verbal and written English communication is a big plus
Qualifications & Experience
- Graduate / Undergraduate in Commercial Art
- Minimum 5 years of work experience in a digital agency with at least 1-2 years' experience with project management


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Welcome to the World of the Unexpected
November 27, 2016
Our hope comes from our relationship with Jesus Christ who brings us together and motivates us to serve those around us.
We invite you to live at the intersection of real relationship, community impact, and a consistent encounter with the living Christ. We believe that all of these are crucial to experiencing the life that God desires for us. If we try to separate or choose between them, we will never find the fullness of life offered in Christ. In that life, we will discover peace and hope that sustains our hearts in every situation.
So, let's pursue the fullness of life…together.


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List all words starting with hyperkineses
Only the word hyperkineses was found, nothing longer.
Some random words: aeneous mobbed deft the gewgaw mecamylamine mu
This is not a dictionary, it's a word game wordfinder.
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Street improvements start
Lake Avenue repair: Paving, sidewalk and water improvements for three blocks of Lake Avenue, from the railroad tracks to Fourth Street, started last week when contractor Paulsen, Inc. of Cozad began tearing out the existing blacktop covering. City officials said the street is expected to re-open the end of July or early August. Until then, east-side businesses may be reached by crossing Lake Avenue at Sixth Street or by traveling on the west side of the viaduct. On the west side, businesses can be accessed from the streets behind them.
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- Gothenburg youth prepare to serve our country
- Local sisters share more than genetics


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Reviewed By steve c (WARSAW, MO) Reviewed for a 2000 Chevy C/K 3500 —9/6/2014 6:54 AM
Great product anything auto has everything I need thanks keep up the good work
Reviewed By David C (Moorpark, CA) Reviewed for a 1992 Chevy C/K 3500 —3/10/2007 7:06 AM
Very pleased with to sound as well as the slight performance improvement that this muffler acheived. I install a shield above muffler to prevent exessive noise as well as heat entering cab of truck.
Reviewed By stephen b (port saint lucie, FL) Reviewed for a 1988 Chevy Corvette —11/25/2016 2:52 AM
Have 1988 Corvette been looking for that right sound, went threw maga flow then flow master mufflers didn't have that sound I was looking for, but now they sound GREAT !!!! And easy to install RECOMMEND absolutely.


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Does this restaurant have a TV?
Is this restaurant good for local cuisine?
Is this restaurant good for brunch?
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Thanks for helping!
We've always left this restaurant to the last night of our visit as the portions are large to say the least. The service was very good and the steaks cooked exactly as ordered.
Food to die for excellent drink's great choose of wines atomsphere nice pleasant staff comfortable surrounding could not fault service overal
Good tasty beef burger, very big even the smaller size! :D The pulled pork to start was also good, would recommend. God prices as well.
Called in again as we had a fabulous burger a few years back and the place was hiving, unfortunately this time it didn't match it! I found my burger over cooked and bland, my husband ordered the horseradish burger which had no taste of horseradish whatsoever! And the place was so quiet, it definitely has lost its spark! Don't think...
When we arrived the restaurant only had 2 people in it so we were a little sceptical.
For our starter we had lentil soup, which was deliciois and haggis, which was lovely too.
For our mains we ordered a veggie burger, a house special burger and a portion on onion rings. I had asked if the veggie burger was a...
Food was filling and tasty. Best burgers in a long time. Staff very accommodating with our pup in the downstairs area.
Staff were really friendly and chatty. Decor is fun and quirky. Food so-so. Chicken dishes were ok - chips appeared to be cheap nasty frozen things but plenty of them. Just a shame that they weren't very nice. My son had the Spag Bol and it really wasn't great at all.
Portions are huge - just a shame that they...
I visited this place again in November 2016, my annual visit to the Skiing-Doo. I am not sure what has happened to the place, but it has really gone down hill. My wife ordered a veggie burger, and it was frozen. My burger was ok, but my daughter had the pasta and it looked like dog food. I don't know...
This is our second visit here and we love it. Really cosy and welcoming. Friendly staff,amazing service,value for money,lovely food. Highly recommend a visit
A cosy and comfortable establishment.
Excellent T bone steaks , excellent starters
Well worth a visit , try and get a booth
Own or manage this property? Claim your listing for free to respond to reviews, update your profile and much more.
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Monogram Initial Necklace (1 letter)- Acrylic
$ 80.00
Get Personalized with a Acrylic Monogram Initial Necklace! Who doesn't want a signature piece unique to them. Perfect as a gift for your loved one, or for yourself. Our Monogram Initial Necklace is an elegant piece, versatile and customizable, you can use your first initial, last initial or even an initial of a special someone! All monogram piece ship in 4 - 6 weeks. This item is FINAL SALE ONLY and not eligible for return. Pendant Size: 1". Please enter your 1 desired initial in the PERSONALIZATION box above.


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Welcome to Our Home: Knit and Crochet Ideas from Red Heart
Bonus: Get our newsletter & special offers for free. We will not share or sell your email address. View our Privacy Policy
Latest Comments
"I saw this pattern and thought it would be great to go in my gift tins for my homemade spa sets for Christmas. I started the pattern but kept having trouble with the puff stitch. When I try to pull through the loop the hook gets stuck and pull a strand or two out making it look un-neat. Is there a way to prevent this? Could it be the yarn I am using?"
"I love this pattern for making dishcloths! It is so simple and it's so easy to remember. It makes a great,durable dishcloth. Does anyone tried this pattern with that new yarn that is made for making dishcloths? I think it might be a rayon blend. I'm going to try it next time I need dishcloths."
"This is a great beginner project, it was easy to follow and gave great instruction. I was able to work up several of these for co-workers who thought it was so cute. I am going to make several more for my home for company to use when they come over and have coffee."
"These spiral beaded trees are so pretty! For extra sparkle, I am going to place a battery tea light candle in the center of the spiral. Several of these trees would look great placed within a strand of twinkle or small rice lights on a mantle or table center piece!"
"That's a great idea!"
Bull's-Eye Ornaments
By: Kristen Stoltzfus from Red Heart Yarns
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With the eye-popping color patterns you can design to create Bull's Eye Ornaments, you'll have a Christmas tree that no one can ignore. Follow the tutorial to create handmade Christmas ornaments that have a very homey feel that will welcome your guests. These are a unique alternative to ball ornaments, and the craft yarn make this crochet Christmas pattern one that's easy to fix and can last for years to come. Everyone's going to be asking you to make them some after they see how amazing yours look!
RED HEART® Celebration™: 1 ball each 9340 Aqua/Silver A, 9640 Gold/Silver B, 9740 Pink/Silver C, 9540 Purple/Silver D, 9240 Lime/Silver E, and 9840 Blue/Silver F.
Susan Bates® Crochet Hook: 4mm [US G-6].
Yarn needle, fiberfill.
GAUGE: 16 hdc = 4"(10 cm); Rounds 1-5 = 4" (10 cm). CHECK YOUR GAUGE. Use any size hook to obtain gauge.
NOTE: Instructions are written for one color scheme; the other 2 color schemes are indicated in ( )s. Always join rounds with slip stitch in top of first hdc unless otherwise stated.
Front post double crochet (FPdc) = Yo, insert hook from front to back to front again around post of indicated st, yo and pull up a loop, [yo and draw through 2 loops on hook] twice.
(4 Medium) RED HEART® Celebration™, Art. E802 available in 3.5 oz (100 g), 235 yd (215 m) balls.
Ornament measures 4" (10 cm) in diameter.
Front Large Circle
With A (E, D), ch 4; join with slip st in first ch to form ring.
Round 1 (Right Side): Ch 1, 14 hdc in ring; join – 14 hdc.
Round 2: Ch 1, [2 hdc in next hdc, hdc in next hdc] around; join – 21 hdc.
Round 3: Ch 1, [2 hdc in next hdc, hdc in next hdc] around, work 2 hdc in last hdc; join – 32 hdc.
Round 4: Ch 1, [2 hdc in next hdc, hdc in next 2 hdc] around, work hdc in last 2 hdc; join – 42 hdc.
Round 5: Ch 1, [2 hdc in next hdc, hdc in next 6 hdc] around; join – 48 hdc.
Fasten off. Weave in all ends.
Front Medium Circle
Rounds 1-3: With B (F, C), repeat Rounds 1-3 of Front Large Circle.
Round 4: Ch 1, sc loosely in each hdc around; join with slip st in first sc – 32 sc.
Fasten off. Weave in all ends.
Front Small Circle
With C (B, A), ch 4; join with slip st in first ch to form ring.
Round 1: Ch 1, 10 hdc in ring; join – 10 hdc.
Round 2: Ch 2 (does not count as first dc), [2 dc in next hdc, FPdc in next hdc] around; join with slip st in first dc – 10 dc, 5 FPdc.
Fasten off. Weave in all ends.
BACK (Make 3)
With A (E, D), repeat instruction for Front Large Circle; draw up loop, do not fasten off.
With C (B, A), slip st Front Small Circle to center of Front Medium Circle; with B (F, C), slip st Front Medium Circle to center of Front Large Circle.
Place assembled Front Large Circle and Back Wrong Sides together; with Right Side facing, draw working loop of Back through corresponding hdc of Front Large Circle; sc evenly around through both layers, leaving a
1½" (3.8cm) space; lightly stuff ornament with fiberfill; continue with sc to close space; ch 30 for hanging loop, slip st in last sc; join with slip st in first sc. Fasten off. Weave in ends.
ABBREVIATIONS: A, B, C = Color A, Color B, Color C etc; ch = chain; dc = double crochet; hdc = half double crochet; mm = millimeters; sc = single crochet; st(s) = stitch (es); yo = yarn over; [ ] = work directions in brackets the number of times specified.
If you'd like to see more holiday patterns, take a look at the new "Have a Red Heart Holiday: 20 Knit & Crochet Gifts and Decorating Ideas" eBook from Red Heart Yarns.
Find more craft projects and tutorials from Craft Company Red Heart Yarn.
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United States District Court, S.D. New York
September 8, 2005.
CLARENCE BIRTHWRIGHT and LARRY FAULKNER, Plaintiffs,
THE CITY OF NEW YORK, SERGEANT JOHN PRENDERGAST, DETECTIVE PATRICE WALLACE, DETECTIVE JOHN MUNIZ, SERGEANT BRENDAN HIGGINS, DETECTIVE ERIC LAYTON, SERGEANT RICK CABAN, DETECTIVE JEANNIE FINUCANE, LIEUTENANT KEVIN CANTWELL, SERGEANT TOMMY O'BRIEN, POLICE OFFICER MIGUEL MENARD, LIEUTENANT KEVIN CANTY, Defendants.
A. Introduction
Plaintiffs Clarence Birthwright and Larry Faulkner claim that
their residences at 143 West 129th Street, New York, New York
10027, were raided by five (5) to ten (10) police officers in
violation of their Fourth Amendment constitutional rights.
Plaintiffs have brought claims against the above-named officers
and the City of New York on the grounds that the police had no
probable cause to search plaintiffs' residences and arrest them,
and no reason to suspect wrongdoing. B. Procedural History
Clarence Birthwright and Larry Faulkner filed this action on
May 9, 2001. On January 31, 2002, the City of New York ("City" or
"City of New York") answered the complaint. Plaintiffs filed an
Amended Complaint on April 16, 2003, naming Sergeant John
Prendergast, Detective Patrice Wallace, Detective John Muniz,
Sergeant Brendan Higgins, Detective Eric Layton, Sergeant Rick
Caban, Detective Jeannie Finucane, Lieutenant Kevin Cantwell,
Sergeant Tommy O'Brien, Police Officer Miguel Menard, and
Lieutenant Kevin Canty as additional defendants.
The case was transferred from Judge Batts to the undersigned on
May 22, 2003. The City of New York, Sergeant John Prendergast,
Detective Patrice Wallace, Detective John Muniz, Sergeant Brendan
Higgins, Detective Eric Layton, Sergeant Rick Caban, and
Detective Jeannie Finucane filed their Answer to the Amended
Complaint on June 11, 2003.
On December 24, 2003, the City of New York, Sergeant John
Prendergast, Detective Patrice Wallace, Detective John Muniz,
Sergeant Brendan Higgins, Detective Eric Layton, Sergeant Rick
Caban, and Detective Jeannie Finucane filed a motion for summary
judgment, which is now before the Court.
C. Facts
At the time of the events at issue, plaintiffs were residents
of the premises located at 143 West 129th Street, which
plaintiffs maintain is a multi-unit dwelling, and defendants
contend is a private home. (Defendant's Local Rule 56.1 Statement
("Def.'s Rule 56.1 Stmt.") ¶¶ 2, 5, 8; Plaintiff's Local Rule
56.1 Opposition Statement ("Pl.'s Rule 56.1 Opp. Stmt.") ¶ 2).
The premises at 143 West 129th Street are owned by one Violet
Jordan, plaintiff Birthwright's sister. (Def.'s Rule 56.1 Stmt.
¶¶ 1, 4). Birthwright does not pay rent and has resided at 143
West 129th Street for sixty years. (Def.'s Rule 56.1 Stmt. ¶ 7).
143 West 129th Street is by outward appearance a
brownstone-style building, but inside it is comprised of units
varying in size and type. (See Wallace Dep. at 54-55; July
Birthwright Dep. at 15). The building has four stories, comprised
of nine units, yet only one mailbox and one doorbell service the
premises. (July Birthwright Dep. at 12, 14, 17, 27). The building
has two possible entrances, one at the top of a stoop leading to
the first floor, and one underneath the stoop leading to the
basement. (Id. at 12, 14, 17, 18; Reply Decl. of Katie
O'Connor, Exh. V). The basement and first floor are comprised of
one unit each, and the second and third floors have three and
four units respectively. (July Birthwright Dep. at 15). Inside,
each unit is equipped with a lock. (Id. at 12, 14, 17). Six
units contain stoves, sinks, and refrigerators, and three units
are single room occupancy that do not have kitchen facilities.
(Id. at 10-13). Birthwright's apartment, on the first floor,
has its own bathroom, and the rest of the building shares two
other bathrooms, located in the hallways on the second and third
floors. (Id. at 15). Plaintiff Larry Faulkner resides on the
second floor. (Id. at 27). Entering the building on either the
basement or the first floor, a person finds herself at once in a room or unit, (Id. at 14,
27), and not a foyer, hallway, or staircase. There are no
separate doorbells at 143 West 129th Street, only one mailbox, no
intercom system, no name plates, and no apartment numbers
indicating multiple residency. (July Birthwright Dep. at 12, 14,
17, 27, 28; Faulkner Dep. at 22, 23). Detective Wallace testified
that upon execution of the search warrant, there were different
rooms in the building, and that some were locked, and some were
not. (Wallace Dep. at 41). On the third floor, which plaintiffs
contend has four separate units, Wallace testified that one room
had "very little in it, and another room [had] some clothing or
something laying all over the place." (Wallace Dep. at 123).
Wallace further testified that none of the rooms on the third
floor had kitchen facilities, and that it appeared that no one
resided on the third floor. Id.
Detective Wallace testified in an Affidavit in Support of
Search Warrant that one JD Bubbles was using the "single family
dwelling in premises 143 West 129 Street . . . to store and sell
. . . marijuana." (Def.'s Rule 56.1 Stmt. Ex. J). Detective
Wallace testified in his Affidavit that a confidential informant
("CI") had purchased marijuana at the subject premises from JD
Bubbles on two occasions, and observed marijuana within the
premises on numerous occasions over an 11 month period preceding
these transactions. (Id.). During both purchases, while present
on the second floor of the premises, the CI observed JD Bubbles
go to another floor and return shortly thereafter with the
marijuana. (Id.).
Additionally, Detective Wallace performed a search with the
local electric company, Consolidated Edison, in order to
ascertain the building's status as a private residence or
multi-unit dwelling. (Wallace Dep. at 19). The search turned up
one owner as well as only one resident, Violet Jordan. Id..
On June 22, 2000, based on the Affidavit in Support of Search
Warrant, Detective Wallace obtained a "no knock" search
warrant*fn1 authorizing the "search of the single family
dwelling in premises 143 West 129th Street in the County of New
York utilized by JD Bubbles and of the persons of JD
Bubbles. . . ." (Def.'s Rule 56.1 Stmt. Exh. I). The warrant was
executed on June 28, 2000. (Def.'s Rule 56.1 Stmt. ¶ 12, 15). The
search yielded, inter alia, $57,708.00, a loaded .45 caliber
handgun, a loaded .38 caliber defaced handgun, a .380 caliber
handgun, a loaded .32 caliber handgun, a precision assault rifle
with an attached clip containing 44 rounds of ammunition, drug
paraphernalia, and eighty (80) pounds of marijuana. (Id. ¶¶
19-22). $16,602.00, metal spoons, a metal cup, E-Wider rolling
papers, and a plastic bag of marijuana were recovered from
Birthwright's unit.*fn2 A bag of marijuana was recovered
from plaintiff Faulkner's unit. (Pl.'s Rule 56.1 Opp. Stmt. ¶
26). Plaintiffs were transported along with other residents Kenneth
Dickerson, Roan Bailey, and Anthony Campbell to the 28th
precinct, and subsequently placed in a holding cell together.
(Def.'s Rule 56.1 Stmt. ¶¶ 16, 27). Plaintiffs were later
transported to 100 Centre Street, where they were arraigned on
June 28, 2000. (Id. ¶ 29). Plaintiffs were charged with
criminal possession of marijuana, criminal possession of a
weapon, criminal use of drug paraphernalia, and Birthwright was
additionally charged with criminal possession of a controlled
substance. (Id. ¶¶ 30-31). According to plaintiffs, a grand
jury refused to indict them. (Pl.'s Rule 56.1 Opp. Stmt. ¶ 35).
Defendants, however, claim that all charges were dismissed.
Plaintiffs allege they were released from custody on July 13,
2000, while defendants contend plaintiffs were released July 12,
2000. (Def.'s Rule 56.1 Stmt. ¶ 36; Pl.'s Rule 56.1 Opp. Stmt. ¶
A. Standard on Summary Judgment
Under Federal Rule of Civil Procedure 56(c), summary judgment
"shall be rendered forthwith" if it is shown that "there is no
genuine issue of material fact and that the moving party is
entitled to a judgment as a matter of law." Celotex Corp. v.
Catrett, 477 U.S. 317, 323 n. 4, 106 S.Ct. 2548, 2552 n. 4
(1986). "[G]enuineness runs to whether disputed factual issues
can reasonably be resolved in favor of either party, [while]
materiality runs to whether the dispute matters, i.e., whether it
concerns facts that can affect the outcome under the applicable
substantive law." Mitchell v. Washingtonville Cent. Sch. Dist.,
190 F.3d 1, 5 (2d Cir. 1999) (internal quotations and citations
omitted). In order to prove that a genuine issue of material fact
exists, a plaintiff "may not rest upon the mere allegations or
denials of the pleading[s]," but must by affidavit or otherwise
"set forth specific facts showing that there is a genuine issue
for trial." FED. R. CIV. P. 56(e). "Conclusory statements,
conjecture or speculation by the party resisting the motion will
not defeat summary judgment." Kulak v. City of New York,
88 F.3d 63, 71 (2d Cir. 1996).
Courts must resolve all ambiguities and draw all reasonable
factual inferences in favor of the non-moving party. See Nora
Beverages, Inc. v. Perrier Group of Am., Inc., 164 F.3d 736, 742
(2d Cir. 1998). The moving party bears the initial burden of
demonstrating an absence of genuine issues of material fact.
See Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir.
1997). If the initial burden is met, the non-moving party "must
produce specific facts indicating that a genuine issue of fact
exists. If the evidence [presented by the non-moving party] is
merely colorable, or is not significantly probative, summary
judgment may be granted." Scotto Almenas, 143 F.3d 105, 114 (2d
Cir. 1998) (internal quotations and citations omitted)
(alteration in original). B. Personal Jurisdiction
Defendants maintain in their motion for summary judgment that
all claims against individual defendants Lieutenant Kevin
Cantwell, Sergeant Tommy O'Brien, Lieutenant Kevin Canty, and
Police Officer Miguel Menard should be dismissed due to lack of
personal jurisdiction.
Valid service of process is a prerequisite to this Court's
exercise of personal jurisdiction over defendants. Omni Capital
Int'l, Ltd. v. Rudolph Wolff & Co., 484 U.S. 97, 104,
98 L. Ed. 2d 415, 108 S. Ct. 404 (1987). Rule 4(e) of the Federal Rules of
Civil Procedure governs service of process upon individuals in
federal actions. FED. R. CIV. P. 4(e). Rule 4(e)(1) provides that
an individual may be served pursuant to the law of the forum
state. FED. R. CIV. P. 4(e)(1). § 308 of the New York Civil
Practice Law and Rules ("CPLR") governs service upon a natural
person in New York. § 308 provides, in pertinent part:
Personal service upon a natural person shall be made
. . . by delivering the summons within the state to
the person to be served; or . . . by delivering the
summons within the state to a person of suitable age
and discretion at the actual place of business,
dwelling place or usual place of abode of the person
to be served and by either mailing the summons to the
person to be served at his or her last known
residence . . ., such delivery and mailing to be
effected within twenty days of each other . . . in
such manner as the court, upon motion without notice,
directs, if service is impracticable under paragraphs
one, two and four of this section.
C. Execution of the warrant
Defendants first argue on summary judgment that no material
issue of fact exists as to the alleged violation of plaintiffs'
Fourth Amendment right to be secure in their homes. Defendants
claim that Detective Wallace was issued a valid search warrant by
a neutral magistrate and that defendants' conduct in executing the warrant was reasonable.
Plaintiffs argue that even if the warrant was properly obtained
and defendants reasonably believed that 143 West 129th Street was
a single-family dwelling, defendants should have realized upon
entering the building that it was a multi-unit dwelling, and
therefore that the warrant was invalid as to its execution, and
the search, at that point, should have been aborted.
Under the Warrant Clause of the Fourth Amendment, warrants that
are not based on probable cause and that do not "particularly
describe the place to be searched and the persons or things to be
seized" are prohibited. U.S. CONST. amend. IV. The purpose of the
particularity requirement is to prevent general searches.
Maryland v. Garrison, 480 U.S. 79, 84 (1987). Permitting the
search of specific areas and things for which there is probable
cause to search protects against "wide-ranging exploratory
searches the Framers intended to prohibit." Id. Where officers
discover contraband before realizing they are in the wrong
apartment, the Supreme Court has held that the officers are
"required to discontinue the search of respondent's apartment as
soon as they discover? that . . . they might be in a unit
erroneously included within the terms of the warrant." Id. at
87. The "validity of the search . . . depends on whether the
officers' failure to realize the overbreadth of the warrant was
objectively understandable and reasonable." Id. at 87-88. In
Lewis v. City of Mount Vernon, 984 F. Supp. 748 (S.D.N.Y.
1997), this court elaborated that "[t]here is no bright line rule
. . . as to what discrepancies between the premises identified in
the warrant and the premises encountered by the officers are
significant enough to alert the officers that the warrant
identifies the wrong location and to require their immediate
departure." Lewis, 984 F. Supp. at 756. "This problem arises
because information that may be sufficient to establish probable
cause may nonetheless not be accurate in all respects." Id.
There, citing the facts that the officers vacated the premises
shortly after the conclusion of the search, and that they did not
unreasonably prolong the search after they determined they were
in the wrong apartment, the court held that "there is no evidence
that the officers unreasonably continued to search after they
knew they were in the wrong apartment." Id.
In the instant case, defendants allege that there never came a
point at which the officers should have realized they were in a
multi-unit dwelling. The search was not discontinued because the
officers did not discover they were in the wrong unit or units.
Plaintiffs counter that there existed a point at which it should
have become apparent to the officers who conducted the search
that they were in a multi-unit dwelling. Plaintiffs do not argue
that the officers improperly continued the search once they
discovered they were in the wrong apartment; they argue that the
officers first should have discovered they were in the wrong
apartment, and upon that discovery that the officers would have
been obliged to discontinue the search.
Even assuming, as the court must, the truth of plaintiffs'
contention that 143 West 129th Street is a multi-unit dwelling,
the Court finds that reasonable jurors could not disagree as to
whether the execution of the search was objectively reasonable.
Here, as in Garrison, the objective facts available to the
officers at the time of the execution of the search suggested no
distinction between the residence of JD Bubbles and the premises
of 143 West 129th Street. See Garrison, 480 U.S. at 88. There
is an abundance of evidence in the record that supports the officers' conclusion that their search of the entire premises at
143 West 129th Street was not beyond the scope of the warrant and
therefore was not in violation of plaintiffs' constitutional
rights. Detective Wallace testified that the CI had purchased
marijuana from JD Bubbles at 143 West 129th Street on two
occasions. (Wallace Dep. at 16; Def.'s Rule 56.1 Stmt. Ex. J). On
each occasion, the CI went to the second floor of the premises,
which plaintiffs testified is Larry Faulkner's apartment, and
observed JD Bubbles go to another floor in the building and
return with marijuana. (Def.'s Rule 56.1 Stmt. Ex. J). The CI
further indicated to Detective Wallace, based on his observations
while inside the premises at 143 West 129th Street purchasing
marijuana and his observations on numerous occasions in the 11
preceding months, that the building was a private house. (Wallace
Dep. at 18; Def.'s Rule 56.1 Stmt. Ex. J). Detective Wallace also
performed a search with the local electric company, Consolidated
Edison, in order to ascertain the building's status as a private
residence or multi-unit dwelling. (Wallace Dep. at 19). The
search turned up one owner as well as only one resident, Violet
Jordan. Id.
In United States v. Maneti, 781 F.Supp. 169, 175 (S.D.N.Y.
1991), the court upheld a warrant issued for a home containing
two apartments, which the officers believed was a single-family
home. There the court upheld the warrant even though the officers
failed to perform a search through the local electric company
that would have revealed that there were two apartments on the
premises. Id. at 175. The court stated that:
the dwelling in question displayed virtually no
outward signs of multiple occupancy. The dwelling
does not have separate visible doorbells, mailboxes,
speaking tubes, name plates, or apartment numbers to
indicate multiple residency. The few outward signs of
multiple residency that [it] does possess are
difficult to see or could be easily overlooked.
Q: Did you learn there were different locked
apartments or rooms in that building?
A: There were different rooms in that building, yes.
Q: Were those rooms locked?
A: Some were, some were not.
This court finds that reasonable jurors could not disagree as
to whether the execution of the search was objectively
reasonable. Therefore, defendant's motion for summary judgment as
to plaintiff's claim of unlawful entry is granted.
D. False Arrest
A § 1983 claim for false arrest derives from the right to be
free from unreasonable search and seizure, including the right to
be free from arrest absent probable cause. Weyant v. Okst,
101 F.3d 845, 852 (2d Cir. 1996). The law of the forum state controls
the elements of a ¶ 1983 false arrest claim. Singer v. Fulton
County Sheriff, 63 F.3d 110, 118 (2d Cir. 1995). Under New York
law, a plaintiff must show that (1) the defendant intentionally
confined the plaintiff, (2) the plaintiff was aware of the
confinement, (3) the plaintiff did not consent to the
confinement, and (4) the confinement was not justified or
privileged. Hall v. City of White Plains, 185 F. Supp. 2d 293,
Defendants maintain that the defendant officers in this case
had probable cause to arrest plaintiffs, and that therefore
plaintiffs' false arrest claim must fail.
"There can be no federal civil rights claim for false arrest
where the arresting officer had probable cause." Singer,
63 F.3d at 118 (citing Bernard v. United States, 25 F.3d 98, 102
(2d Cir. 1994). Accordingly, probable cause is a complete defense to an
action for false arrest. Jocks v. Tavernier, 316 F.3d 128,
134-35 (2d Cir. 2003). Probable cause is established "when the
arresting officer has `knowledge or reasonably trustworthy
information sufficient to warrant a person of reasonable caution
in the belief that an offense has been committed by the person to
be arrested.'" O'Neill v. Town of Babylon, 986 F.2d 646, 650
(2d Cir. 1993) (quoting Calamia v. City of New York,
879 F.2d 1025, 1032 (2d Cir. 1989)). The focus with regard to probable
cause is not on certitude, but on the likelihood of criminal
activity. See Illinois v. Gates, 462 U.S. 213, 235,
76 L. Ed. 2d 527, 103 S. Ct. 2317 (1983); Spinelli v. United States,
393 U.S. 410, 419, 21 L. Ed. 2d 637, 89 S.Ct. 584 (1969). The
establishment of probable cause requires a fact-based
determination that considers the "totality of the circumstances."
Gates, 462 U.S. at 232 & n. 7. Where there is no dispute as to
the knowledge of the officers, whether probable cause existed may
be determined as a matter of law. Weyant v. Okst, 101 F.3d 845,
852 (2d Cir. 1996).
Defendants claim that probable cause to arrest was established
here because plaintiffs "were found to be in possession of a
controlled substance, weapons, and drug paraphernalia. . . ."
(Def.'s Mem. Supp. Summ. J. at 9). The undisputed facts show that
the search of the premises at 143 West 129th Street yielded
approximately 80 pounds of marijuana, $60,000 in cash, five guns,
ammunition, and additional drugs and paraphernalia. Marijuana,
metal spoons, a metal cup, E-Wider rolling papers, and $16,602 in
cash were recovered from plaintiff Birthwright's room, and
marijuana was recovered from plaintiff Faulkner's room. Applying
the standards set forth above, it is clear that the defendant
officers possessed probable cause to arrest plaintiffs.
Plaintiffs' contention that the quantities of marijuana
discovered in plaintiffs' rooms could be classified as mere
violations are irrelevant to the determination of probable cause.
"The evidence needed to establish probable cause to justify an
arrest does not have to be such as to warrant a conviction."
People v. Miner, 42 N.Y.2d 937, 938 (1977). Rather, the
evidence must be sufficient to warrant a person of reasonable
caution in the belief that an offense has been or is being
committed by the person to be arrested. Michigan v. De
Fillippo, 443 U.S. 31 (1979). "The probable cause determination
is an objective one that pays no heed to the subjective thoughts
of the officers effectuating arrest . . . or, by extension, to
the subjective post-arrest evaluation of the lawyers defending
the validity of the arrests." Davis v. City of New York,
2005 U.S. Dist. LEXIS 10323 at *20 n. 9 (S.D.N.Y. May 25, 2005)
(citing Devenpeck v. Alford, 160 L. Ed. 2d 537, 125 S. Ct. 588,
593-94 (2004)). Upon discovering the marijuana, paraphernalia,
and a large amount of cash in plaintiffs' rooms, a person of
reasonable caution could reasonably believe that an offense had
been committed. Plaintiffs' argument concerning constructive
possession of the contraband located in other parts of the
premises is therefore moot. Accordingly, defendants' motion for
summary judgment with respect to plaintiffs' claim of false
arrest is granted.
E. Malicious Prosecution
To sustain a § 1983 claim based on malicious prosecution, a
plaintiff must demonstrate conduct by the defendant that is
tortious under state law and that results in a constitutionally cognizable deprivation of liberty. Singer v. Fulton County
Sheriff, 63 F.3d 110, 116 (2d Cir. 1995). To make out a claim
for malicious prosecution under New York State law, a plaintiff
must prove: "1) the initiation or continuation of a criminal
proceeding against plaintiff; 2) termination of the proceeding in
plaintiff's favor; 3) lack of probable cause for commencing the
proceeding; and 4) actual malice as a motivation for defendant's
actions." Russell v. Smith, 68 F.3d 33, 36 (2nd Cir. 1995). As
with a false arrest claim, the existence of probable cause
entitles the defendants to summary judgment. See Broughton v.
State, 37 N.Y.2d 451, 456-57, 373 N.Y.S.2d 87, 92-93,
335 N.E.2d 310 (1975), cert denied sub nom, 423 U.S. 929,
96 S.Ct. 277, 46 L.Ed.2d 257 (1975).
Plaintiffs satisfy the first prong, as a prosecution was
initiated against them. See Mejia v. City of New York,
119 F.Supp.2d 232, 254 (E.D.N.Y. 2000) (in the case of a warrantless
arrest, the prosecution commences at the time of the arraignment
or grand jury indictment). Although the grand jury here decided
not to indict plaintiffs, they were arrested and arraigned on
June 28, 2000. (Def.'s Rule 56.1 Stmt. ¶ 29).
Plaintiffs also satisfy the second prong because of the grand
jury's refusal to indict plaintiffs. RESTATEMENT (SECOND) OF
TORTS § 659 ("Criminal proceedings are terminated in favor of the
accused by . . . (b) the refusal of a grand jury to
indict. . . ."). Defendants assert that because the circumstances
of the outcome of the criminal proceeding do not "impl[y] a lack
of grounds for the prosecution," plaintiffs cannot show that the
proceeding terminated in their favor. (Def.'s Mem. Supp. Summ J.
at 14). "New York law does not require a malicious prosecution
plaintiff to prove her innocence, or even that the termination of
the criminal proceeding was indicative of innocence. Rather, the
plaintiff's burden is to demonstrate a final termination that is
not inconsistent with innocence." Rothstein v. Carriere,
373 F.3d 275, 286 (2d Cir. 2004) (citing Smith-Hunter v. Harvey,
95 N.Y.2d 191, 198-99 (2000); Cantalino v. Danner, 96 N.Y.2d 391,
396, 754 N.E.2d 164, 729 N.Y.S.2d 405 (2001)). The termination of
the proceeding against plaintiffs in this case was not
inconsistent with innocence. The grand jury decided not to indict
plaintiffs. Further, the outcome of the proceedings was neither
the result of a compromise to which the accused agreed, nor an
act of mercy requested or accepted by the accused, both of which
are situations in this district that are not considered
terminations in favor of the accused for purposes of a malicious
prosecution claim. Almonte v. Florio, 2004 U.S. Dist. LEXIS
335, 25-26 (S.D.N.Y. Jan. 13, 2004) (citing Posr v. Court
Officer Shield # 207, 180 F.3d 409, 418 (2d Cir. 1999). The
proceedings terminated in plaintiffs' favor.
With respect to the third prong, for a malicious prosecution
claim to stand there must be "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." McDermott v.
City of New York, 1995 WL 347041, *5 (E.D.N.Y. May 30, 1995);
Feinburg v. Saks & Co., 56 N.Y.2d 206, 451 N.Y.S.2d 677,
436 N.E.2d 1279 (1982). See also Lowth v. Town of Cheektowaga,
82 F. 3d 563, 571-72 (2d Cir. 1996). Although plaintiffs maintain that because "defendants fabricated evidence . . .
summary judgment must be denied" (Pl.'s Mem. Opp. Summ J. at 14),
plaintiffs have not provided "any significant probative evidence
tending to support" this allegation. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 249 (1986) (citing First Nat'l Bank v.
Cities Service Co., 391 U.S. 253, 290 (1968)). "[T]he mere
existence of some alleged factual dispute between the parties
will not defeat an otherwise properly supported motion for
summary judgment; the requirement is that there be no genuine
issue of material fact." Anderson, 477 U.S. at 247-48. A party
opposing a properly supported motion for summary judgment "must
set forth specific facts showing that there is a genuine issue
for trial." FED. R. CIV. P. 56(e). Plaintiffs have introduced no
evidence to support their allegation that defendants fabricated
evidence. Because there was probable cause to arrest plaintiffs,
and plaintiffs have not introduced evidence to suggest that the
defendants had exculpatory information available to them between
the time of their arrest and arraignment, defendants had probable
cause to prosecute plaintiffs.
Because the existence of probable cause to prosecute entitles
defendants to summary judgment on this issue, see Broughton,
37 N.Y.2d at 456-57, the court need not address malice, the
fourth prong of a malicious prosecution claim. Accordingly,
defendants' motion for summary judgment as to malicious
prosecution is granted.
F. Qualified Immunity
The individual officer defendants argue that they are entitled
to qualified immunity with respect to the alleged false arrests.
Qualified immunity is "an immunity from suit rather than a mere
defense to liability." Saucier v. Katz, 533 U.S. 194, 200-01
(2001) (citing Mitchell v. Forsyth, 472 U.S. 511, 526,
86 L. Ed. 2d 411, 105 S.Ct. 2806 (1985)). The privilege is "effectively
lost if a case is erroneously permitted to go to trial." Id. It
is therefore important to resolve the issue at the earliest
possible stage of the litigation. Saucier, 533 U.S. at 200-01
(citing Hunter v. Bryant, 502 U.S. 224, 227, 116 L. Ed. 2d 589,
112 S. Ct. 534 (1991) (per curiam)). In order to determine
whether an official is entitled to qualified immunity, the court
must conduct a two-part analysis. Saucier, 533 U.S. at 201. The
threshold question is whether the facts as alleged by the
plaintiffs show that the officers' conduct violated a
constitutional right. Id. If the court determines the alleged
conduct does not violate a constitutional right, the analysis
ends. Id. If the court determines plaintiffs' alleged facts do
show a violation of a constitutional right, the court must
inquire as to whether the right was clearly established. Id.
However, "Even where the right was clearly established at the
time of the infringement, a public official is entitled to
qualified immunity if he `reasonably believed that his actions
did not violate plaintiff's rights . . . even if that belief was
mistaken.'" Lewis v. United States, 2005 U.S. Dist. LEXIS 4223,
11-12 (S.D.N.Y. Mar. 14, 2005) (citing Loria v. Gorman,
306 F.3d 1271, 1282 (2d Cir. 2002); Magnotti v. Kuntz,
918 F.2d 364, 367 (2d Cir. 1990)). "[T]he existence of probable cause
affords an officer qualified immunity from liability, as it is an
absolute defense to claims of false arrest, false imprisonment,
or malicious prosecution." Lewis, 2005 U.S. Dist. LEXIS at *11-12 (citing
Jackson v. City of New York, 2004 U.S. Dist. LEXIS 7223, No. 00
Civ. 1206, 2004 WL 895609, at *4 (S.D.N.Y. Apr. 26, 2004)).
Assuming the facts as alleged constitute a violation of
plaintiffs' constitutional rights and that those rights were
clearly established at the time of the arrests, the court has
already determined that probable cause existed for the
plaintiffs' arrest. Therefore, the defendant officers enjoyed
qualified immunity.
G. Personal Involvement of Individual Defendants
Defendants argue that plaintiffs have not sufficiently alleged
personal involvement on behalf of individual defendants Patrice
Wallace, John Muniz, John Prendergast, Brendan Higgins, Eric
Layton, Rick Caban, Jeannie Finucane, Kevin Cantwell, Tommy
O'Brien, Miguel Menard, and Kevin Canty, and that therefore, the
complaint as against them must be dismissed.
A finding of personal involvement of the individual defendants
in an alleged constitutional deprivation is a prerequisite to an
award of damages under § 1983. Feingold v. New York,
366 F.3d 138, 159 (2d Cir. 2004) (citations omitted). Plaintiffs allege in
their Amended Complaint that each of the above-named officers
"failed to investigate the circumstances surrounding plaintiffs'
illegal searches and arrests, and failed to advise prosecutors
and there was no evidence pointing to plaintiffs as having
committed any crime which would justify the searches and
arrests." (Pl.'s Am. Compl. ¶¶ 31-41). While this broad
allegation, alone, would not likely support a finding of personal
involvement, defendants admit in their Memorandum that "each of
[the named officers'] respective roles in the execution of the
search warrant is listed on the tactical plan." (Def.'s Mem.
Supp. Summ. J. at 18 n. 6). The plan to which defendants refer,
entitled "Search Warrant Plan Pre-Execution," lists under the
column "Personnel," each of the above-named individual defendant
officers and their respective assignments in the search that took
place six days later, on June 28, 2000. (Def.'s Rule 56.1 Stmt.
Exh. N). There is nothing in the record that indicates that these
defendants participated in the search other than in the manner
set forth in the plan. The court therefore finds that the
above-named defendants were personally involved in the searches
and arrests at issue. However, because the court finds that
defendants possessed probable cause to arrest and prosecute, and
that the warrant was properly executed, the question of whether
these particular individual defendants were found to have been
personally involved is rendered moot.
H. City of New York
Defendant City of New York argues that plaintiffs have not
proffered evidence showing that a custom or policy of the City
caused the alleged deprivation of plaintiffs' civil rights.
It is well settled that in a 42 U.S.C. § 1983 suit a
municipality may not be held liable on a theory of respondeat
superior. Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694
(U.S. 1978). However, a municipality may be liable for damages under § 1983
"when execution of [its] policy or custom, whether made by its
lawmakers or by those whose edicts or acts may fairly be said to
represent official policy, inflicts the injury. . . ." Monell,
436 U.S. at 694. The plaintiff alleging constitutional harm
attributable to a municipality under § 1983 "must also
demonstrate that, through its deliberate conduct, the
municipality was the `moving force' behind the injury alleged."
Bd. of the County Comm'rs v. Brown, 520 U.S. 397, 404 (U.S.
1997) (italics in original).
There are four situations in which a municipality can be held
liable under 42 U.S.C. § 1983: (1) an officially promulgated
policy endorsed or ordered by the municipality, Pembaur v. City
of Cincinnati, 475 U.S. 469, 480, 106 S. Ct. 1292,
89 L. Ed. 2d 452 (1986); (2) a custom or practice that is so pervasive and
widespread that the municipality had either actual or
constructive knowledge of it, City of St. Louis v. Praprotnik,
485 U.S. 112, 130, 108 S. Ct. 915, 99 L. Ed. 2d 107 (1988);
Oklahoma City v. Tuttle, 471 U.S. 808, 823-24, 105 S. Ct. 2427,
85 L. Ed. 2d 791 (1985); (3) actions taken or decisions made by
the municipal employee who, as a matter of state law, is
responsible for establishing municipal policies with respect to
the area in which the action is taken, McMillian v. Monroe
County, 520 U.S. 781, 117 S. Ct. 1734, 1736, 138 L. Ed. 2d 1
(1997); Praprotnik, 485 U.S. at 129-30, 108 S. Ct. 915;
Pembaur, 475 U.S. at 480-83, 106 S. Ct. 1292; or (4) where the
failure of the municipality to train its employees rises to the
level of deliberate indifference to the constitutional rights of
others, City of Canton v. Harris, 489 U.S. 378, 385,
103 L. Ed. 2d 412, 109 S. Ct. 1197 (1989); Walker v. City of New York,
974 F.2d at 297.
Plaintiffs here have put forth no evidence establishing
liability under any of the above theories. Plaintiffs have
presented no evidence demonstrating that the City of New York
employed a custom or policy inflicting constitutional injury,
that any action was taken by a municipal employee responsible for
establishing such policies, or that the City of New York failed
to train its employees. Accordingly, plaintiffs' claim against
defendant City of New York must fail.
I. Intentional Infliction of Emotional Distress
Defendants argue that plaintiffs have failed to state a claim
for intentional infliction of emotional distress.
The common law tort of intentional infliction of emotional
distress has four elements: (1) extreme and outrageous conduct;
(2) intent to cause severe emotional distress; (3) a causal
connection between the conduct and the injury; and (4) severe
emotional distress. Bender v. City of New York, 78 F.3d 787,
790 (2d Cir. 1996). The conduct in question must be "so
outrageous in character, and so extreme in degree, as to go
beyond all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized society."
Martin v. Citibank, N.A., 762 F.2d 212, 220 (2d Cir. 1985)
(quoting Fischer v. Maloney, 43 N.Y.2d 553, 558,
373 N.E.2d 1215, 402 N.Y.S.2d 991 (1978)). The conduct must also be
intentionally directed at the plaintiff and lack any reasonable justification. Id.
Plaintiffs allege that, "The actions of the defendants in
arresting the plaintiffs who they knew or should have known were
not guilty of a crime, were outrageous and beyond any norms
acceptable to society." (Pl.'s Am. Compl. ¶ 57). Given the
court's finding that plaintiffs' arrests were lawful, this claim
cannot stand, for a lawful arrest is a bar to a claim for
intentional infliction of emotional distress. Sepulveda v. City
of New York, 2003 U.S. Dist. LEXIS 12289 (S.D.N.Y. July 17,
2003) (citing Csoka v. County of Suffolk, 85 F. Supp. 2d 117,
123 (E.D.N.Y. 2000). Furthermore, plaintiffs have not produced
any evidence that they suffered severe emotional distress.
Therefore, summary judgment must be granted to defendants on this
J. Negligence
Plaintiffs here claim that defendants "acted negligently,
carelessly and recklessly in arresting an prosecuting the
plaintiffs." (Am. Compl. ¶ 61). Defendants contend that
plaintiffs' negligence claim cannot be maintained. This general
claim of negligence must be dismissed because "`where the
negligence alleged is based upon an arrest, a plaintiff must
resort to the traditional remedies of false imprisonment and
malicious prosecution and cannot recover under the broader
principles of negligence.'" Cea v. Ulster County,
309 F. Supp. 2d 321, 329 (S.D.N.Y. 2004) (quoting Pawlicki v. City of
Ithaca, 993 F. Supp. 140, 143 (N.D.N.Y. 1998)).
K. Negligent Retention and Hiring
Finally, defendants claim that plaintiffs cannot establish a
prima facie case for negligent hiring and negligent retention.
Liability under this cause of action attaches when a plaintiff
shows, along with the standard elements of negligence, "(1) that
the tortfeasor and the defendant were in an employee-employer
relationship . . ., (2) that the employer `knew or should have
known of the employee's propensity for the conduct which caused
the injury' prior to the injury's occurrence . . ., and (3) that
the tort was committed on the employer's premises or with the
employer's chattels." Ehrens v. Lutheran Church, 385 F.3d 232,
235 (2d Cir. 2004) (quoting Kenneth R. v. Roman Catholic Diocese
of Brooklyn, 229 A.D.2d 159, 654 N.Y.S.2d 791, 793 (2d Dep't
1997); citing D'Amico v. Christie, 71 N.Y.2d 76, 518 N.E.2d 896,
901-02 (1987)). Plaintiffs proffer no evidence that defendant
City of New York knew or should have known of a propensity to
commit injury on the part of any of the individual defendants,
nor that the individual defendants were retained in spite of this
knowledge. Therefore, plaintiffs claim of negligent retention and
negligent hiring cannot withstand summary judgment.
For the foregoing reasons, defendant's motion for summary
judgment is GRANTED. The clerk is directed to enter judgment for
the defendant and remove this case from the court's active
docket. SO ORDERED.
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How to Conduct Puja to Shiva
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Published date: September 6, 2012 -
- Business Description: AWR is a professional and leading manufacturer and exporter of high quality welding machines. We have the engineers with rich experience on design of welding machines, as well as a professional team specialize in marketing and service. We pay more attention to develop our technology to meet with the market requirement and engaged in supplying the customers with high efficiency, easy operation and best price equipment. Moreover, our company has attained ISO9001 certification, and our products are all conformity to CCC, CE, UL and ROHS standards.
High quality root in high technology, our product development is based on inverter (such as IGBT) technology which has now largely replaced traditional transformer techniques for its security and stability, high efficiency and energy saving, low cost, small size.
Till now, our products have been sold abroad to Europe, Africa, North America, and Southeast Asia. Our main products include MMA welding machines, TIG welding machines, MMA/TIG welding machines, CO2 MIG/MAG machines, Inverter DC plasma cutting machines, shielded welding machines, Multi function welding machines, and so on. The products are more than 100 types.
We are the high tech enterprise, most of our products feature the advantage characteristic of multi power recognizing, they can be plugged to 110V or 220V or 380V socket, the electric welder adapt the correct power supply automatically. It is convenient for various end users in different countries.
At the same time, by means of outstanding technical support, we guaranteed our products at a competitive price and high quality. At present, our products have a very good sale in domestic and overseas market. According to the company concept of "credit basic, innovation prior, quality first, customer supreme", we wish to cooperate with you to create a bright future and mutual benefit.
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