15‐1763 Watson v. Sims

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 “SUMMARY ORDER”). 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 29th day of April, two thousand sixteen.

PRESENT: RALPH K. WINTER, RICHARD C. WESLEY, GERARD E. LYNCH, Circuit Judges. ______________________

ROBERT C. WATSON, SR.,

Plaintiff‐Counter‐Defendant‐ Cross‐Defendant‐Appellant,

‐v.‐ 15‐1763

BETH SIMS, ESQ.,

Defendant‐Counter‐Claimant‐ Cross‐Claimant‐Appellee,

JEFFREY BAKER, BOARD OF EDUCATION OF THE CITY OF POUGHKEEPSIE SCHOOL DISTRICT,

Defendants‐Appellees,

WILLIAM V. GRADY, DUTCHESS COUNTY DISTRICT ATTORNEY, EDWARD WHITESELL, DEPUTY DISTRICT ATTORNEY, DUTCHESS COUNTY DISTRICT ATTORNEY, THOMAS DINAPOLI, COMPTROLLER, STATE OF NEW YORK,

Defendants. ______________________

FOR APPELLANT: MICHAEL H. SUSSMAN, Sussman & Watkins, Goshen, NY, for Plaintiff‐Counter‐Defendant‐ Appellant Robert C. Watson, Sr.

FOR APPELLEES: NICOLE MARLOW‐JONES (Paul Gerrard Ferrara, on the brief), Costello, Cooney & Fearon, PLLC, Syracuse, NY, for Defendant‐Counter‐Claimant‐Appellee Beth Sims.

STEPHEN J. GABA, Drake Loeb, PLLC, New Windsor, NY, for Defendant‐Appellee Jeffrey Baker.

MEGAN M. COLLELO (Claudia Ann Ryan, on the brief), Towne, Ryan & Partners, P.C., Albany, NY, for Defendant‐Appellee Board of Education of the City of Poughkeepsie School District.

Appeal from a judgment of the United States District Court for the

Southern District of New York (Román, J.).

2 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the District Court is

AFFIRMED.

Plaintiff‐Appellant Robert C. Watson, Sr., a former Superintendent of

Schools of the City of Poughkeepsie School District (the “District”), appeals from

the judgment of the District Court dismissing, on summary judgment, his claim

for municipal liability under

and Monell v. Department of Social

Services of the City of New York,

(1978) against Defendant‐Appellee

Board of Education of the City of Poughkeepsie School District (the “School

Board”), and his remaining § 1983 claims that Defendants‐Appellees Beth Sims

and Jeffrey Baker violated his civil rights by subjecting him to malicious

prosecution. In its order granting the School Board summary judgment, the

District Court concluded that Watson failed to (1) establish the existence of a

municipal policy or custom and (2) demonstrate that any act was taken by an

individual with final policymaking authority for the School Board that could

subject the School Board to municipal liability under Monell. The District Court

also granted summary judgment to Sims and Baker on Watson’s malicious

prosecution claims, finding that Watson, who was acquitted on all charges at

3 trial, had failed to rebut the presumption of probable cause created by his

indictment by a grand jury. We assume the parties’ familiarity with the

underlying facts, the procedural history of the case, and the issues on appeal.

We review a district court’s grant of summary judgment dismissing a

plaintiff’s malicious prosecution claim de novo, see Bermudez v. City of New York,

(2d Cir. 2015), “construing all evidence in the light most

favorable to the non‐moving party, and affirming only where ‘there is no

genuine issue as to any material fact and the movant is entitled to judgment as a

matter of law,’” Hubbs v. Suffolk Cty. Sheriff’s Dep’t,

(2d Cir. 2015)

(quoting Fed. R. Civ. P. 56(a)) (citing Ruggiero v. Cty. of Orange,

(2d Cir. 2006)).

In order to prevail on a malicious prosecution claim, a plaintiff must

demonstrate that “‘(1) the defendant initiated a prosecution against plaintiff, (2)

without probable cause to believe the proceeding can succeed, (3) the proceeding

was begun with malice[,] and . . . (4) the matter terminated in plaintiff’s favor.’”

Cameron v. City of New York,

(2d Cir. 2010) (quoting Ricciuti v.

N.Y.C. Transit Auth.,

(2d Cir. 1997)). Although the District

Court granted summary judgment on the basis that Watson had failed to rebut

4 the presumption of probable cause created by his indictment, we may “affirm

summary judgment on any ground supported by the record, even if it is not one

on which the district court relied.” McElwee v. Cty. of Orange,

(2d Cir. 2012).

Watson’s malicious prosecution claims against Sims and Baker fail because

he has not pointed to any evidence on the record that demonstrates, even when

viewed in the light most favorable to him, that either Sims or Baker initiated or

continued the prosecution against him. We have explained that “reporting a

crime to law enforcement and giving testimony does not constitute the

‘initiation’ of a criminal prosecution. More is required. Specifically, the

complainant must have played an ‘active role in the prosecution, such as giving

advice and encouragement or importuning the authorities to act.’” Rothstein v.

Carriere,

, 293–94 (2d Cir. 2004) (quoting Rohman v. N.Y.C. Transit

Auth.,

(2d Cir. 2000)). Indeed, we have previously found “that

merely reporting a crime to another individual, who in turn reports the crime to

law enforcement, is insufficient to give rise to liability under New York law for

5 malicious prosecution.” Hanly v. Powell Goldstein, L.L.P.,

(2d Cir. 2008) (summary order).1

Assuming, arguendo, that Sims or Baker provided false or misleading

information to the prosecution during its investigation, we find no evidence,

viewing the record in the light most favorable to Watson, from which a

reasonable jury could conclude that either Sims or Baker took an active role in

Watson’s criminal prosecution. Watson claims that Sims, in response to

document requests from the District Attorney’s (“DA”) office, “deluged” the DA

with unsolicited information, see Pl.’s Reply Br. 23, but he points to only two

documents that Sims provided that fell outside the scope of the request. No

reasonable jury could conclude on the basis of that evidence that Sims’s conduct

went beyond the mere provision of information to the point where Sims

encouraged or importuned the DA’s office to prosecute Watson. There is

similarly no evidence supporting the inference that Baker encouraged or

importuned the DA’s office to act when he met with its employees in December

2005.

1 “[D]enying summary orders precedential effect does not mean that the court considers itself free to rule differently in similar cases.” Jackler v. Byrne,

(2d Cir. 2011) (internal quotation marks omitted).

6 Watson also bases his claim on Sims’s and Baker’s correspondence with

the auditing firms that sought information related to their own non‐criminal

investigations of (1) the financial practices of the City of Poughkeepsie School

District’s (the “District”) Business Office, (2) all payments made to Watson

during his tenure as Superintendent (which were audited pursuant to the terms

of his separation agreement), and (3) the effectiveness of internal controls over

financial activities, certain payroll‐related agreements, and professional services

relating to the District’s multi‐million‐dollar capital project. Even if Sims or

Baker submitted incomplete, misleading, or false information to any of the

auditors as part of those investigations, that conduct is too far attenuated from

the criminal prosecution of Watson to constitute initiating the criminal process.

That is so, even though prosecutors sought and obtained copies of the reports

generated by each auditing firm from the District. Because Sims’s and Baker’s

activity was directed at the auditing firms, which were not part of the criminal

justice system, it does not qualify as initiating Watson’s criminal prosecution.

Further, Watson’s malicious prosecution claims fail to the extent that they

rely on Sims’s or Baker’s grand jury testimony.

“[A] grand jury witness has absolute immunity from any § 1983 claim based on the witness’ testimony. In addition, . . . this rule may

7 not be circumvented by claiming that a grand jury witness conspired to present false testimony or by using evidence of the witness’ testimony to support any other § 1983 claim concerning the initiation or maintenance of a prosecution.”

Rehberg v. Paulk,

(2012) (emphasis added). Sims and Baker

thus enjoy absolute immunity from any § 1983 claim based solely on their grand

jury testimony and preparation for such testimony. See Coggins v. Buonora,

, 113–14 (2d Cir. 2015).

Last, Watson’s Monell claim of municipal liability against the School Board

is predicated almost entirely on the acts of Sims and Baker: he alleges that the

School Board, as a matter of policy, authorized Sims and Baker to furnish lies or

misstatements to the auditing firms and prosecutors or, knowing that they were

furnishing such falsities, remained silent and failed to take any corrective action.

Having concluded, however, that neither Sims nor Baker is potentially liable for

malicious prosecution because neither can be said to have initiated Watson’s

criminal prosecution, Watson’s claim of municipal liability against the School

Board, which is predicated on the alleged unconstitutional conduct of Sims and

8 Baker, necessarily fails.2 See Segal v. City of New York,

(2d Cir.

2006); see also City of Los Angeles v. Heller,

(1986).

We have considered Watson’s remaining arguments and find them to be

without merit. Accordingly, we AFFIRM the judgment of the District Court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk

2 To the extent that Watson’s Monell claim is based on the testimony of certain School Board members before the grand jury or their related preparatory activities, it too must fail because the School Board members are entitled to absolute immunity for this conduct. See Rehberg,

.

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