13‐4784‐cv Bastuk v. Cty. Of Monroe, et al.

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 COURTʹS 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 ʺSUMMARY ORDERʺ). A PARTY CITING 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 6th day of October, two thousand fifteen.

PRESENT: DENNY CHIN, CHRISTOPHER F. DRONEY, Circuit Judges, KATHERINE B. FORREST, District Judge.*

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WILLIAM BASTUK, Plaintiff‐Appellant,

v. 13‐4784‐cv

COUNTY OF MONROE, PATRICK OʹFLYNN, Monroe County Sheriff, individually and in his official capacity, INVESTIGATOR PATRICK CROUGH, individually and in his official capacity, MICHAEL GREEN, former Monroe County District Attorney, individually and in her official capacity, KRISTY KARLE, former Monroe County District Attorney, individually and in his official

* The Honorable Katherine B. Forrest, of the United States District Court for the Southern District of New York, sitting by designation. capacity, INVESTIGATOR STEVE PEGLOW, individually and in his official capacity, Defendants‐Appellees.

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FOR PLAINTIFF‐APPELLANT: WILLIAM BASTUK, pro se, Rochester, New York.

FOR DEFENDANTS‐APPELLEES: ROBERT P. YAWMAN, III, Deputy County Attorney, Howard A. Stark, Senior Deputy County Attorney, for Meredith H. Smith, Monroe County Attorney, Rochester, New York.

Appeal from the United States District Court for the Western District of

New York (Telesca, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

Appellant William Bastuk, proceeding pro se, appeals the district courtʹs

judgment entered November 20, 2013 dismissing his complaint against defendants‐

appellees, Monroe County and certain of its officials. By decision and order entered

November 19, 2013, the district court granted defendantsʹ motion for judgment on the

pleadings and dismissed Bastukʹs complaint under

with prejudice. In

his complaint, which was filed with the assistance of counsel, Bastuk asserted claims of

false arrest, false imprisonment, inadequate investigation, malicious prosecution, and

conspiracy on the part of the district attorney and an assistant district attorney, two

county investigators, and the county sheriff based on his arrest for and subsequent ‐ 2 ‐

acquittal of rape. Bastuk appeals the district courtʹs dismissal of his false arrest, false

imprisonment, and supervisory liability claims, and the district courtʹs alleged failure to

address his separate claims regarding his transfer to a psychiatric facility. He explicitly

abandons his claims against the prosecutors on appeal. We assume the partiesʹ

familiarity with the underlying facts, the procedural history of the case, and the issues

on appeal.

We review de novo a decision to grant judgment on the pleadings. Hayden

v. Paterson,

(2d Cir. 2010). The standard for addressing a Rule 12(c)

motion for judgment on the pleadings is the same as that for a Rule 12(b)(6) motion to

dismiss for failure to state a claim.

A complaint must plead ʺenough facts to state a

claim to relief that is plausible on its face,ʺ Bell Atl. Corp. v. Twombly,

(2007), and ʺallow[] the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged,ʺ Ashcroft v. Iqbal,

(2009). Upon

review, we conclude that the district court properly granted defendantsʹ judgment on

the pleadings. We affirm.

ʺThe existence of probable cause to arrest constitutes justification and ʹis a

complete defense to an action for false arrest.ʹʺ Weyant v. Okst,

(2d Cir.

1996) (quoting Bernard v. United States,

(2d Cir. 1994)). Probable cause is

also a complete defense to a claim of malicious prosecution. Stansbury v. Wertman,

, 94‐95 (2d Cir. 2013). We agree with the district courtʹs conclusion that, based on

Bastukʹs own allegations, his arrest was supported by probable cause as a matter of law. ‐ 3 ‐

The complainant ‐‐ a 16 year‐old girl ‐‐ identified Bastuk as the man who raped her at a

local yacht club eight months earlier. Absent information that would raise doubt as to

the complainantʹs veracity, this was sufficient to support a probable cause

determination. Singer v. Fulton Cty. Sheriff,

, 119 (2d Cir. 1995) (ʺAn arresting

officer advised of a crime by a person who claims to be the victim, and who has signed

a complaint or information charging someone with the crime, has probable cause to

effect an arrest absent circumstances that raise doubts as to the victimʹs veracity.ʺ).

Bastuk argues that the investigators should have been skeptical of these allegations

because of the complainantʹs history of mental illness. But, as Bastukʹs own complaint

makes clear, the complainantʹs treating therapist told the police that the complainant

ʺshows all the common signs of a rape victimʺ and that the doctor ʺbelieves her

allegations to be true.ʺ Bastuk argues that other facts call into question the veracity of

the complainantʹs accusation, but we agree with the district court that none cast serious

doubt on the officersʹ probable cause determination. Furthermore, officers are ʺnot

required to explore and eliminate every plausible claim of innocence before making an

arrest.ʺ Jaegly v. Couch,

(2d Cir. 2006).

Because there has been no constitutional violation, Bastuk has also failed

to state a claim against Sheriff Patrick OʹFlynn on a theory of supervisory liability. See

Blyden v. Mancusi,

(2d Cir. 1999) (ʺOf course, for a supervisor to be

liable under Section 1983, there must have been an underlying constitutional

deprivation.ʺ). ‐ 4 ‐

Bastuk also argues on appeal that the district court failed to address his

claim that he was involuntarily transferred to a psychiatric hospital after being released

on bail. The claim fails as none of these particular defendants were alleged to have been

involved in that transfer. See Back v. Hastings on Hudson Union Free Sch. Dist.,

(2d Cir. 2004) (finding an individual liable under § 1983 only ʺif he was

personally involved in the alleged deprivationʺ).

Additionally, Bastuk apparently contends that the district court erred in

not granting leave to amend the complaint. While represented by counsel in the district

court, however, Bastuk never requested leave to amend his complaint. We review for

abuse of discretion a district courtʹs decision to dismiss a complaint with prejudice, Cruz

v. FXDirectDealer, LLC,

(2d Cir. 2013), and conclude that the district

court did not abuse its discretion here. While leave to amend should be freely granted,

ʺno court can be said to have erred in failing to grant a request that was not made.ʺ

(internal quotation marks omitted); Horoshko v. Citibank, N.A.,

, 249‐50

(2d Cir. 2004) (ʺThe [appellantsʹ] contention that the District Court abused its discretion

in not permitting an amendment that was never requested is frivolous.ʺ).

We have considered all of Bastukʹs remaining arguments and find them to

be without merit. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: Catherine OʹHagan Wolfe, Clerk

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