Russell v. the Journal News , 672 F. App'x 76 ( 2016 )

16-12-cv
Russell v. The Journal News
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR
AN ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A
SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
City of New York, on the 5th day of December, two thousand sixteen.
PRESENT:
JOHN M. WALKER, JR.,
PETER W. HALL,
DENNY CHIN,
Circuit Judges.
_____________________________________
JAMES RUSSELL,
Plaintiff-Appellant,
v. No. 16-12-cv
THE JOURNAL NEWS, JOURNAL NEWS LLC, GANNETT COMPANY
INC., JOSEPH MCDONALD, INDIVIDUALLY, ANTHONY SIMMONS,
INDIVIDUALLY, P.O. MICHAEL DILAURIA, INDIVIDUALLY, P.O. WILLIAM
DUFFELMEYER, INDIVIDUALLY, TOWN OF HARRISON, GANNETT SATELLITE
INFORMATION NETWORK, INC.,*
Defendants-Appellees.
_____________________________________
For Defendants-Appellees The Journal News,
Journal News LLC, Gannett Company, Inc.,
*
The Clerk of Court is requested to amend the caption to conform with the above.
Joseph McDonald, Anthony Simmons, and
Gannett Satellite Information Network, Inc.: GLENN EDWARDS (Mark A. Fowler, Charles
Keeley III, on the brief), Satterlee Stephens
LLP, New York, NY.
For Defendants-Appellees P.O. Michael
DiLauria, P.O. William Duffelmeyer, and
Town of Harrison: STEVEN J. HARFENIST (Neil Torczyner, on
the brief), Harfenist Kraut & Perlstein LLP,
Lake Success, NY.
For Plaintiff-Appellant: MICHAEL H. JOSEPH, White Plains, NY.
Appeal from a judgment of the United States District Court for the Southern District of
New York (Seibel, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Plaintiff-Appellant James Russell filed an action under 42 U.S.C. § 1983 asserting claims
for, inter alia, false arrest against Defendants-Appellees Town of Harrison and Harrison Police
Department Officers Michael DiLauria and William Duffelmeyer (“Harrison Defendants”) and
for malicious prosecution against Defendants-Appellees The Journal News, Journal News LLC,
Gannett Company Inc., Gannett Satellite Information Network Inc., Joseph McDonald, and
Anthony Simmons (“Journal News Defendants”) and the Harrison Defendants. The district court
dismissed Russell’s malicious prosecution claims under Federal Rule of Civil Procedure 12(b)(6)
and denied Russell’s motion to reconsider. It granted summary judgment in favor of the
Harrison Defendants on Russell’s false arrest claim. Russell appeals from these orders. On
January 16, 2014, the district court dismissed Russell’s Section 1983 claims against the Journal
News Defendants, on the grounds that they were not state actors or acting under color of state
law. It also dismissed his malicious prosecution claim against the Journal News Defendants,
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because Russell had not sufficiently alleged a favorable termination, and his other state law
claims against them, as time-barred. Because Russell’s briefing does not address the holdings
with respect to the Section 1983 or other state law claims against the Journal News Defendants,
we deem any challenges to those holdings waived. See, e.g., Schwapp v. Town of Avon, 118
F.3d 106, 112 (2d Cir. 1997) (claims not “adequately presented in an appellant’s brief” are
considered “abandoned” on appeal). We therefore consider only his malicious prosecution
claims against both sets of defendants and his other claims against the Harrison Defendants. We
assume the parties’ familiarity with the underlying facts and the procedural history of this case.
I. Dismissal of the Malicious Prosecution Claims Against All Defendants
We review de novo a grant of a motion to dismiss pursuant to Rule 12(b)(6). Carpenters
Pension Trust Fund of St. Louis v. Barclays PLC, 750 F.3d 227, 232 (2d Cir. 2014). “To survive
a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). We review the denial of a
motion for reconsideration for abuse of discretion. ISC Holding AG v. Nobel Biocare Fin. AG,
688 F.3d 98, 109 (2d Cir. 2012).
The district court did not err in dismissing Russell’s malicious prosecution claims
because the charges against Russell did not terminate in his favor, as required by New York law.
See, e.g., Smith-Hunter v. Harvey, 95 N.Y.2d 191, 195 (2000) (observing that in New York a
malicious prosecution claim requires a plaintiff to demonstrate, inter alia, “the termination of the
proceeding in favor of the accused”). Rather, the prosecution against Russell was terminated
when the state court dismissed the charges without prejudice based on facial insufficiency. Such
a dismissal does not constitute a favorable termination. See Breen v. Garrison, 169 F.3d 152,
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153 (2d Cir. 1999) (holding that, in New York, dismissal for facial insufficiency is “not a
decision on the merits, an essential element of a cause of action for malicious prosecution”); see
also MacFawn v. Kresler, 88 N.Y.2d 859, 860 (1996) (holding that a dismissal of the
information without prejudice for facial insufficiency may not serve as the basis for a malicious
prosecution claim).
Russell argues that although dismissal for facial insufficiency is not usually a favorable
termination, the dismissal became a final favorable termination when the prosecution
“effectively abandoned” the charges against him by failing to re-file before the expiration of
New York’s speedy trial clock. The district court accurately observed, however, that Russell
raised this argument for the first time in his motion for reconsideration. We “[g]enerally [ ] will
not consider an argument on appeal that was raised for the first time below in a motion for
reconsideration.” Analytical Surveys, Inc. v. Tonga Partners, L.P., 684 F.3d 36, 53 (2d Cir.
2012), as amended (July 13, 2012) (internal quotation marks omitted). Nonetheless, we agree
with the district court that Russell’s argument fails.
Russell relies on Smith-Hunter v. Harvey, in which the New York Court of Appeals held
that a dismissal on speedy trial grounds is a final favorable termination because “there can be no
further prosecution of the offense.” 95 N.Y.2d at 196; see Rogers v. City of Amsterdam, 303
F.3d 155, 160 (2d Cir. 2002) (observing that “under New York law, a dismissal pursuant to New
York Criminal Procedure Law § 30.30—New York’s speedy trial statute—constitutes a
favorable termination”). The charges against Russell, however, were dismissed for facial
insufficiency, not on speedy trial grounds, and Smith-Hunter did not alter the Court of Appeals’
prior holding in MacFawn that a dismissal without prejudice for facial insufficiency is not a final
favorable termination. See Smith-Hunter, 95 N.Y.2d at 198 (observing that in MacFawn, unlike
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Smith-Hunter, “there was no indication that the prosecutor abandoned charges against the
accused”). Although the court in Smith-Hunter explained that “[a] dismissal without prejudice
qualifies as a final, favorable termination if the dismissal represents the formal abandonment of
the proceedings by the public prosecutor,” id. (internal quotation marks omitted), there is no
indication here that the prosecution formally abandoned the charges against Russell before or
after the dismissal. See, e.g., McGee v. Doe, 568 F. App’x 32, 40 (2d Cir. 2014) (unpublished)
(holding that there was no final, favorable termination when “there was no indication that the
dismissal of the action against [the plaintiff,] and the failure by the prosecution to re-file the
claim, constituted a formal abandonment of the charges”). We thus affirm the dismissal of
Russell’s malicious prosecution claims.1
II. Grant of Summary Judgment in Favor of the Harrison Defendants
“We review de novo an order granting summary judgment and ‘resolv[e] all ambiguities
and draw[ ] all permissible factual inferences in favor of the party against whom summary
judgment is sought.’” Doe ex rel. Doe v. Whelan, 732 F.3d 151, 155 (2d Cir. 2013) (quoting
Burg v. Gosselin, 591 F.3d 95, 97 (2d Cir. 2010)). “We affirm when ‘there is no genuine dispute
1
We recognize that the New York Court of Appeals has never squarely addressed the question of
whether a prosecutor’s failure to re-file charges becomes sufficiently “final” to constitute a favorable
termination once the applicable speedy trial time has elapsed. While the Court of Appeals’ decision in
MacFawn holds that a dismissal of a criminal complaint without prejudice for facial insufficiency does
not constitute a favorable termination, it does not address the speedy trial question. 88 N.Y.2d at 860.
Our summary order in McGee is also silent on this point. 568 F. App’x at 39. In some jurisdictions, the
failure to re-file charges within the statutory speedy trial period does constitute a favorable termination.
See Ferguson v. City of Chicago, 213 Ill. 2d 94, 104 (2004) (holding that the plaintiff’s malicious
prosecution claim accrued upon “the expiration of the statutory speedy-trial period,” where charges were
dismissed with leave to reinstate and were never re-filed); see also Scott v. Bender, 893 F. Supp. 2d 963,
976 (N.D. Ill. 2012). In the absence of more specific guidance from the New York courts, however, we
think that the district court’s holding hews most closely to existing law.
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as to any material fact and the movant is entitled to judgment as a matter of law.’” Id. (quoting
Fed. R. Civ. P. 56(a)).
“To establish a claim for false arrest under 42 U.S.C. § 1983, a plaintiff must show that
the defendant intentionally confined him without his consent and without justification.”
Escalera v. Lunn, 361 F.3d 737, 743 (2d Cir. 2004) (internal quotation marks omitted). “A
section 1983 claim for false arrest is substantially the same as a claim for false arrest under New
York law.” Jenkins v. City of N.Y., 478 F.3d 76, 84 (2d Cir. 2007). “The existence of probable
cause to arrest constitutes justification and is a complete defense to an action for false arrest,
whether that action is brought under state law or under § 1983.” Id. (internal quotation marks
omitted). “[P]robable cause to arrest exists when the officers have 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.” Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996). Even without probable cause to
arrest, “an arresting officer will still be entitled to qualified immunity from a suit for damages if
he can establish that there was ‘arguable probable cause’ to arrest.” Escalera, 361 F.3d at 743.
“Arguable probable cause exists ‘if either (a) it was objectively reasonable for the officer to
believe that probable cause existed, or (b) officers of reasonable competence could disagree on
whether the probable cause test was met.’” Id. (quoting Golino v. City of New Haven, 950 F.2d
864, 870 (2d Cir. 1991)); see also Caldarola v. Calabrese, 298 F.3d 156, 162 (2d Cir. 2002)
(stating that “in situations where an officer may have reasonably but mistakenly concluded that
probable cause existed, the officer is nonetheless entitled to qualified immunity.”) (citations
omitted). The test for qualified immunity is “more favorable to the officers than the one for
probable cause.” Escalera, 361 F.3d at 743.
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We agree with the district court that the Harrison Defendants are entitled to qualified
immunity because the officers had arguable probable cause to arrest Russell for criminal
trespass. Under New York law, a “person is guilty of trespass when he knowingly enters or
remains unlawfully in or upon premises.” N.Y. Penal Law § 140.05. “A person who, regardless
of his intent, enters or remains in or upon premises which are at the time open to the public does
so with license and privilege unless he defies a lawful order not to enter or remain, personally
communicated to him by the owner of such premises or other authorized person.” Id.
§ 140.00(5). Days before arresting Russell, Officer DiLauria was informed by a Journal News
employee responsible for site access and security that Russell had recently been observed on
Journal News property and Russell was “causing alarm” to Journal News staff. The Journal
News employee showed Officer DiLauria a copy of a letter the Journal News had sent to
Russell’s attorney stating that Russell was not allowed on Journal News property. The employee
confirmed that the letter had been delivered that morning. On the day of Russell’s arrest, the
Harrison Police Department received a call from a Journal News employee reporting that Russell
was currently trespassing on Journal News property, that Russell had done so in the past, and that
he had been told to stay off Journal News property. When Officer DiLauria arrived at the scene,
he observed Russell seated on a bench on what the officer believed to be Journal News property.
Based on these objective facts and circumstances, this is not a case in which probable cause to
arrest “could easily be found to have been based entirely on baseless or unreasonable conjectures
and assumptions.” Mitchell v. City of N.Y., No. 14-0767-cv, 2016 WL 6310801, at *11 (2d Cir.
Oct. 28, 2016). Officer DiLauria (and Officer Duffelmeyer as the assisting officer) had, at the
very least, arguable probable cause to arrest Russell for criminal trespass. See Escalera, 361
7
F.3d at 743; see also Ornelas v. United States, 517 U.S. 690, 700 (1996) (stating officers “may
draw inferences based on [their] own experience[s] in deciding whether probable cause exists”).
Russell told the arresting officers that he worked nearby and was permitted to be on the
premises, yet once the officers had a reasonable basis for believing that Russell was trespassing,
they were “not required to explore and eliminate every theoretically plausible claim of innocence
before making an arrest.” Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 128 (2d Cir. 1997); see
also Krause v. Bennett, 887 F.2d 362, 372 (2d Cir. 1989), as amended (Nov. 1, 1989) (observing
that the factfinder determines whether a defendant’s story holds up, not the arresting officer).
Under the circumstances presented, the officers had arguable probable cause to arrest Russell
“notwithstanding [his] protestations of innocence.” Ricciuti, 124 F.3d at 128.
We have considered all of Russell’s remaining arguments and conclude that they are
without merit. We AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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