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Walker v. The County of Nassau

No. 2:19-cv-01374 District Court, E.D. New York 2023-03-24 Unknown

Walker v. The County of Nassau from District Court, E.D. New York decided 2023-03-24. Read the full opinion on Annlex.

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EASTERN DISTRICT OF NEW YORK                                              
----------------------------------------------------------------------X  For Online Publication Only 
SHAWN J. WALKER,                                                          

                            Plaintiff,     ORDER                        
                                           19-CV-1374 (JMA) (ARL)       
            -against-                                                   
                                                        FILED           
THE COUNTY OF NASSAU, NASSAU COUNTY                       CLERK           
                                                                        
POLICE OFFICER JOSEPH GIATTINO, and               2:10 pm, Mar 24, 2023   
                                                                        
NASSAU COUNTY POLICE DET. SERGEANT                                        
                                                   U.S. DISTRICT COURT  
SCALONE,                                         EASTERN DISTRICT OF NEW YORK 
                                                   LONG ISLAND OFFICE   
                            Defendants.                                 
----------------------------------------------------------------------X   
AZRACK, United States District Judge:                                     
   On March 8, 2019, Plaintiff Shawn J. Walker (“Plaintiff”) commenced this action against 
Defendants Nassau County, Nassau County Police Officer Joseph Giattino, and Nassau County 
Police Detective Sergeant Scalone (collectively, “Defendants”), alleging four federal causes of 
action pursuant to 
42 U.S.C. §1983
:  (1) false arrest; (2) false imprisonment; (3) malicious 
prosecution; and (4) due process violations.  (Compl., ECF No. 1.)  Plaintiff also alleges four 
pendent state law claims:  (5) false arrest; (6) false imprisonment; (7) malicious prosecution; and 
(8) respondeat superior/vicarious liability.  (Id.)                       
   Plaintiff’s Complaint arises out of the events leading up to his January 29, 2017 arrest, and 
subsequent prosecution and incarceration.  Specifically, on January 29, 2017, Plaintiff was shot in 
the left foot and treated at Good Samaritan Hospital (“Good Samaritan”) located in West Islip, 
New York.  (R&R at 2.)  Shortly after Plaintiff’s arrival at Good Samaritan, the Nassau County 
Police Department (“NCPD”) received a report of a gunshot victim being treated at Good 
Samaritan, and dispatched Defendants Giattino and Scalone to investigate the report.  (Id.)  Upon 
their arrival, Giattino and Scalone located Plaintiff in a hospital bed in the triage area, where they 
while taking out the garbage at his residence in Massapequa.  (Id.)  Based on this statement, 

Defendants purportedly assigned patrol officers to canvas the neighborhood around Plaintiff’s 
residence.  (R&R at 3.)                                                   
   Defendants further contend that, during the interview, Scalone observed a text message that 
Plaintiff sent to his girlfriend during the interview with Scalone, where Plaintiff requested that his 
girlfriend “get the .40 out of the house and bring it to the street.”  (R&R at 3-4.)  Based on this 
message, multiple NCPD officers went to Plaintiff’s Massapequa residence to secure the scene.  
(R&R at 4.)  After providing consent to search the premises, Plaintiff’s girlfriend showed the 
officers a black and red pair of athletic shorts wrapped around a .22 round ammunition storage 
magazine, which she had stuffed into a blue 18-gallon container in the rear yard.  (Id.)  Based on 

these events, Defendants concluded that Plaintiff had falsely reported the location of the shooting 
and possession of the ammunition at his residence.  (Id.)  Plaintiff was placed under arrest at Good 
Samaritan at approximately 5:00 a.m. on January 29, 2017.  (R&R at 4-5.)  
   Plaintiff was initially charged with Falsely Reporting an Incident in the Third Degree and 
Criminal Possession of a Weapon in the Third Degree.  (R&R at 5.)  Plaintiff’s bail was set at 
$25,000 but was not met.  (Id.)  As a result, he was incarcerated at the Nassau County Correctional 
Center (“NCCC”) from February 1, 2017 until December 15, 2017.2  (Id.)  On May 17, 2017, the 
charge of Criminal Possession of a Weapon in the Third Degree was reduced from a felony to a 
misdemeanor and then dismissed.  (Id.)  Plaintiff moved to dismiss the charge of Falsely Reporting 
an Incident for facial insufficiency.  (Id.)  Plaintiff’s motion to dismiss was granted on November 


   1 The Court acknowledges the parties’ dispute regarding whether Plaintiff was in police custody, or otherwise 
physically restrained, for the duration of these interviews.              

   2 Defendants contend – and Plaintiff does not disagree – that Plaintiff remained in NCPD custody from the 
time of his arrest until his arraignment and failure to make bail, at which point he was transferred to the custody of the 
Nassau County Sheriff’s Department and incarcerated at the NCCC. (See ECF No. 50 (“Defs.’ Obj.”) at 4, n. 2.) 
released from jail three days later and commenced the instant action on March 8, 2019.  (Id.) 

   After  Defendants  moved  for  summary  judgment  pursuant  to  Federal  Rule  of  Civil 
Procedure 56, (ECF No. 41), the Court referred the motion to Magistrate Judge Arlene R. Lindsay 
for a report and recommendation (“R&R”).  (Electronic Order dated Oct. 20, 2022.)  Now before 
the Court are the parties’ objections to Magistrate Judge Lindsay’s R&R, which recommends that 
the Court partially grant Defendants’ motion for summary judgment.  (ECF Nos. 48, 49, 50, 51.)  
Specifically, Judge Lindsay recommended that Defendants be granted summary judgment as to 
Plaintiff’s malicious prosecution and due process violation causes of action, but that his claims for 
false arrest, false imprisonment, and respondeat superior/vicarious liability (for the state law false 
arrest and false imprisonment claims) could proceed.  (See R&R.)  After conducting a review of 

the full record (including the motion papers, R&R, and objections) and applicable law, the Court 
adopts Magistrate Judge Lindsay’s R&R in its entirety as the opinion of the Court. 
   In reviewing a magistrate judge’s report and recommendation, a court must “make a de 
novo determination of those portions of the report or…recommendations to which objection[s] 
[are] made.”  
28 U.S.C. § 636
(b)(1)(C); see also United States ex rel. Coyne v. Amgen, Inc., 
243 F. Supp. 3d 295, 297
 (E.D.N.Y. 2017), aff’d sub nom. Coyne v. Amgen, Inc., 
717 F. App’x 26
 (2d 
Cir. 2017).  The Court “may accept, reject, or modify, in whole or in part, the findings or 
recommendations made by the magistrate judge.”  
28 U.S.C. § 636
(b)(1)(C).  Those portions of 
a report and recommendation to which there is no specific reasoned objection are reviewed for 
clear error.  See Pall Corp. v. Entegris, Inc., 
249 F.R.D. 48, 51
 (E.D.N.Y. 2008). 

   The Court finds no clear error in the portions of Magistrate Judge Lindsay’s R&R to which 
there are no objections.  Next, the Court turns to the portions of the R&R to which the parties have 
objected.                                                                 
record in support of his position—objects to Judge Lindsay’s recommendations that his malicious 

prosecution and due process violation claims be dismissed.  The Court rejects Plaintiff’s objections 
because they are both legally and factually unsupported.                  
   Plaintiff asserts that probable cause was lacking to support charging him with providing 
false information.  (Pl.’s Obj. at 1.).  This two-sentence objection is meritless.  Plaintiff asserts that 
the police lacked probable cause to charge him because although the alleged false statement at 
issue was made in Suffolk County, Plaintiff was charged with making a false statement in Nassau 
County.  Plaintiff cites to no authority in support of this argument.  Additionally, Plaintiff never 
squarely  argued  in  his  original  motion  papers  that  this  defect  eliminated  probable  cause.  
Accordingly, this argument has been waived.  To the extent that this argument has not been waived, 

this objection would only be reviewed for clear error given the deficiencies identified above, and 
there was no clear error here.  Finally, even if Plaintiff were entitled to de novo review, Plaintiff’s 
argument is substantively meritless.  The fact that the charging document erroneously stated that 
the alleged false statement was made in Nassau does not negate the fact that officers possessed 
probable cause to believe that Plaintiff made a false statement in violation of 
N.Y. Penal Law § 240.50
(2).  “Geographical jurisdiction is a question of venue – of where a case may be tried – and 
it plays no role in the probable cause inquiry.”  Kravtchouk v. City of New York, No. 16-cv-4787, 
2019 WL 4918083
, at *7 (E.D.N.Y. Sept. 30, 2019) (citing People v. Patterson, 
708 N.Y.S.2d 815, 818
 (N.Y. Crim. Ct. 2000)).                                               
   Plaintiff also argues that there was not probable cause to support the weapons possession 

charge.  (Pl.’s Obj. at 2.)  This objection again lacks citation to any caselaw or evidence in the 
was no clear error here.  It is also notable that Plaintiff’s original brief also lacks citation to any 

record evidence to support the factual assertions Plaintiff advances in support of this argument.  
(See Pl.’s Mem. at 3, 16, ECF No. 45.)  Similarly, Plaintiff’s response to Defendants’ 56.1 
Statement consists largely of conclusory denials that fail to cite any evidence in the record.  (Pl.’s 
56.1 Statement (“Pl.’s 56.1”), ECF No. 44-1.)  Notably, Defendants’ 56.1 Statement contains 
various factual assertions concerning the ammunition clip.  However, in his response to Defendants 
56.1 Statement, Plaintiff denied those assertions in conclusory fashion without citation to any 
evidence.  (See Defs.’ 56.1 ¶¶ 35–39; Pl.’s 56.1 ¶¶ 35–39.)  Such denials are patently deficient 
under Local Rule 56.1 and, as such, the Court deems all such paragraphs admitted.4  See Local 
Rule 56.1.  Given those undisputed facts, Plaintiff’s objections fail even under de novo review.      

   Plaintiff’s remaining arguments are also all meritless.  For example, Plaintiff asserts that 
his due process claim challenging his interrogation is not limited to the officer’s failure to give 
Miranda warnings.  Plaintiff, however, did not advance this argument in his opposition brief, which 
asserted a meritless Brady claim and said nothing else about Plaintiff’s due process claim. 
Accordingly, the arguments concerning his interrogation that Plaintiff raised in his objection were 

   3 The Court additionally notes – and Plaintiff offers no evidence to explicitly contradict – that Plaintiff’s 
girlfriend provided a signed statement to the NCPD wherein she acknowledged Plaintiff’s possession of the 
ammunition clip prior to his January 29, 2017 arrest, and recounted Plaintiff’s January 29, 2017 text message to her 
requesting that she “get rid of” the ammunition clip. (See ECF No. 42-15.) 

4  Local Rule 56.1 states that:                                           

 (c) Each numbered paragraph in the statement of material facts set forth in the statement required to be 
served by the moving party will be deemed to be admitted for purposes of the motion unless specifically 
controverted by a correspondingly numbered paragraph in the statement required to be served by the opposing 
party.                                                                  

(d) Each statement by the movant or opponent pursuant to Rule 56.1(a) and (b), including each statement 
controverting any statement of material fact, must be followed by citation to evidence which would be 
admissible, set forth as required by Fed. R. Civ. P. 56(c).             

Local Rule 56.1.                                                          
Tekoh,    U.S.   , 
142 S. Ct. 2095, 2108
 (2022) (finding “no justification” to permit Miranda 

violations “to confer a right to sue under § 1983” because “a violation of Miranda is not itself a 
violation of the Fifth Amendment[.]”).                                    
   The Court next turns to Defendants’ objection, which singularly avers that Judge Lindsay 
misapplied the legal standard as to the accrual of the statute of limitations governing Plaintiff’s 
state law false arrest and false imprisonment claims.  (See Defs.’ Obj.)  While Defendants do not 
dispute that Plaintiff’s state law false arrest and false imprisonment claims are constrained by a 
one-year-and-ninety-day statute of limitations, they assert that Judge Lindsay erred in denying 
summary judgment as to those claims.  (Defs.’ Obj. at 3.)  A cursory review of the relevant case 
law reveals, however, that Defendants’ argument is misplaced.             

   While § 1983 false arrest and false imprisonment claims accrue “once the victim becomes 
held pursuant to process – when, for example, he is bound over by a magistrate or arraigned on 
charges[,]” New York State common-law claims for false arrest and false imprisonment accrue on 
the date that the plaintiff is released from custody.  McQueen v. City of New York, 
209 A.D.3d 469
, 470 (1st Dep’t 2022) (citing Palmer v. City of New York, 
226 A.D.2d 149, 149
 (1st Dep’t 
1996)); -se-e -al-so- -N-ew--to-n- v-. -C-it-y -o-f -N-e-w- Y-o-r-k, 
566 F. Supp. 2d 256
, 278 n.145 (S.D.N.Y. 2008) 
(quoting Pinaud v. County of Suffolk, 
798 F. Supp. 913, 923
 (E.D.N.Y. 1992)) (“Under New York 
law, the statute of limitations on a claim for false arrest is one year and the claim accrues when the 
party is released from prison.”); Butler v. City of New York, 
202 A.D.3d 471
, 472 (1st Dep’t 2022) 
(same); Mejia v. Davis, No. 16-cv-9706, 
2018 WL 333829
, at *7-8 (S.D.N.Y. Jan. 8, 2018) (same).  

The Court rejects Defendants’ objections to the extent they urge reliance on a different legal 
standard.                                                                 
2017, after the underlying state criminal charges were dismissed, meaning his state law false arrest 

and false imprisonment claims had to be filed by March 15, 2019.  (R&R at 19.)  Defendants, 
however, contend that Plaintiff was “released from custody” for accrual purposes on February 1, 
2017, when he was transferred from NCPD custody to the custody of the Nassau County Sheriff’s 
Department following his arraignment.  (Defs.’ Obj. at 4, n. 2.)  Under this logic, Plaintiff would 
have had to file his state law false arrest and false imprisonment claims by May 2, 2018.  (Defs.’ 
Obj. at 4-5.)  Defendants waived this argument by failing to explicitly argue this point in their 
initial moving papers.  In fact, this argument is relegated to a mere footnote in their objections to 
the R&R.  Additionally, Defendants cite no case law in support of their argument that Plaintiff’s 
transfer between two agencies controlled by Nassau County somehow constitutes a “release from 

custody” that renders his state law false arrest and false imprisonment claims untimely.  In light of 
the above, Defendants’ objection triggers, at best, only clear error review, and the Court finds no 
clear error here.  Moreover, even assuming arguendo that Defendants are entitled to de novo 
review, their argument fails given the case law cited herein.             
   For these reasons, the Court agrees with Magistrate Judge Lindsay’s recommendations, and 
therefore adopts the R&R in its entirety as the opinion of the Court.  Accordingly, Defendants’ 
motion for summary judgment is granted in part and denied in part.  Plaintiff’s malicious 
prosecution and due process violation causes of action are dismissed with prejudice, but his false 
arrest and false imprisonment causes of action, as well as his respondeat superior/vicarious liability 
claim (as to the false arrest and false imprisonment causes of action under state law) will proceed 

to trial.                                                                 
Dated:  March 24, 2023                                                    
Central Islip, New York                                                   

                                                  /s/  (JMA)                          
                                 JOAN M. AZRACK                         
                                                                                  UNITED STATES DISTRICT JUDGE