17‐1115‐cv Fred Burgess, II v. Christopher DeJoseph 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 21st day of February, two thousand eighteen.

PRESENT: JOHN M. WALKER, JR., GERARD E. LYNCH, DENNY CHIN, Circuit Judges. ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

FRED BURGESS, II, Plaintiff‐Appellant,

v. 17‐1115‐cv

CHRISTOPHER DeJOSEPH, individually and in his official capacity, ROBERT TEATER, individually and in his official capacity, FRED LAMBERTON, individually and in his official capacity, FRANK L. FOWLER, Syracuse Police Chief, individually and in his official capacity, CITY OF SYRACUSE, Defendants‐Appellees.

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x FOR PLAINTIFF‐APPELLANT: ZACHARY C. OREN, Law Office of Zachary C. Oren, Utica, New York.

FOR DEFENDANTS‐APPELLEES: CHRISTINA F. DeJOSEPH (Mary L. DʹAgostino), Office of the Corporation Counsel of the City of Syracuse, Syracuse, New York.

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

New York (DʹAgostino, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

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

Plaintiff‐appellant Fred Burgess, II appeals from a judgment entered

March 21, 2017, in favor of defendants‐appellees Christopher DeJoseph, Robert Teater,

Fred Lamberton, Frank L. Fowler, and the City of Syracuse. By memorandum‐decision

and order also entered March 21, 2017, the district court granted defendants‐appelleesʹ

motion for summary judgment and dismissed the complaint in this false arrest and

malicious prosecution case. We assume the partiesʹ familiarity with the underlying

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

On December 31, 2012, David A. Jones, II was shot in his vehicle in

Syracuse, New York; he was transported to the hospital and later pronounced dead.

The Syracuse Police Department (ʺSPDʺ) dispatched officers to the scene and found two

eyewitnesses to the shooting, siblings Jaquan Pridgen and Reonnia Grady. Detectives 2

from SPDʹs Criminal Investigations Division interviewed Pridgen and Grady at the

police station. The witnesses then returned home to the same apartment. The next

morning, Pridgen and Grady were transported back to the station, where they were re‐

interviewed by detectives Christopher DeJoseph and Fred Lamberton. Both witnesses

were separately shown a six‐photo array and positively identified Burgess as the

individual who shot Jones.

Later that day, Burgess was interviewed. He was then charged and

arrested for murder in the first degree, attempted robbery in the first degree, and

criminal possession of a weapon in the second degree. Two days later, he was indicted

by a grand jury on all charges.

On April 25, 2013, the court held a hearing concerning Burgessʹs challenge

to the admissibility of Pridgenʹs and Gradyʹs photo‐array identifications. The court

concluded that ʺthe People have met their burden of showing the reasonableness of the

police conduct and absence of suggestiveness of the identification procedures.ʺ App. at

539‐40. By decision dated July 15, 2013, the court denied Burgessʹs request to dismiss or

reduce the indictment, finding that ʺthe evidence presented to the Grand Jury was

legally sufficient to support the offense[s] contained in the indictment, the

3 proceedings were not defective and proper legal instructions were given to the

Grand Jury.ʺ Id. at 533.

On October 31, 2013, Burgess was acquitted on all counts by a jury.

Burgess commenced the instant lawsuit on November 12, 2014. After the district court

granted defendants summary judgment, this appeal followed.

We review the grant of summary judgment de novo. In re Bank of N.Y.

Derivative Litig.,

(2d Cir. 2003). ʺSummary judgment is appropriate

only if it can be established that there is no genuine issue as to any material fact and that

the moving party is entitled to a judgment as a matter of law.ʺ Alibrandi v. Fin.

Outsourcing Servs., Inc.,

(2d Cir. 2003) (citation and internal quotation

marks omitted).

On appeal, Burgess argues that the district court erred in granting the

defendants summary judgment on his false arrest, malicious prosecution, and

municipal liability claims. He also challenges the district courtʹs decision to deny him

leave to amend his complaint.

I. False Arrest

Burgess argues that the district court erred in finding there was probable

cause for his arrest. We disagree.

4 Probable cause is a complete defense to an action for false arrest under

both state law and

. Jenkins v. City of New York,

(2d Cir.

2007). ʺAn officer has probable cause to arrest when he or she has ʹknowledge 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 . . . a crime.ʹʺ Jaegly v. Couch,

(2d Cir. 2006) (citation

omitted). We consider the ʺtotality of the circumstances,ʺ Maryland v. Pringle,

(2003), ʺfrom the perspective of a reasonable police officer in light of his

training and experience,ʺ United States v. Delossantos,

(2d Cir. 2008),

based on the ʺfacts known to the arresting officer at the time of the arrest,ʺ Devenpeck v.

Alford,

(2004). Probable cause does not require absolute certainty,

Fabrikant v. French,

(2d Cir. 2012), although officers ʺmay not disregard

plainly exculpatory evidence,ʺ Panetta v. Crowley,

(2d Cir. 2006).

Probable cause exists when officers receive information from a putative

victim or eyewitness unless the circumstances raise doubt as to the personʹs veracity.

See Martinez v. Simonetti,

, 634‐35 (2d Cir. 2000). ʺA positive photo

identification by an eyewitness is normally sufficient to establish probable cause to

arrest.ʺ Celestin v. City of New York,

(E.D.N.Y. 2008).

5 Drawing all reasonable inferences in Burgessʹs favor, we conclude as a

matter of law that probable cause existed to arrest him. Two witnesses, Pridgen and

Grady, separately identified Burgess as the shooter in a photo array. Burgess does not

argue that the photo array was unduly suggestive, but rather that the detectives should

have been aware of inconsistencies in the descriptions given by the interviewees. There

is no evidence, however, that either officer was aware of the inconsistencies. Moreover,

even if they were aware of the inconsistencies, they reasonably relied on the

independent positive photo identifications when making the probable cause

determination. Finally, Burgessʹs assertion that the two witnesses conspired with

another individual to wrongfully accuse him of murder is pure conjecture and not

sufficient to defeat summary judgment. See Goenaga v. March of Dimes Birth Defects

Found.,

(2d Cir. 1995). Accordingly, we affirm the district courtʹs

conclusion that there was probable cause to arrest and thus no false arrest.

II. Malicious Prosecution

Burgess argues that the district court erred by granting defendants

summary judgment on his malicious prosecution claim. Again, we disagree.

One of the elements of a claim for malicious prosecution under both

§ 1983 and New York law is the ʺlack of probable cause for commencing the

6 proceeding.ʺ Jocks v. Tavernier,

(2d Cir. 2003) (quoting Murphy v. Lynn,

(2d Cir. 1997)). ʺ[A] grand jury indictment gives rise to a presumption

that probable cause exists.ʺ McClellan v. Smith,

(2d Cir. 2006). This

presumption ʺmay be rebutted by evidence of various wrongful acts on the part of

police,ʺ by ʺʹestablish[ing] that the indictment was produced by fraud, perjury, the

suppression of evidence or other police conduct undertaken in bad faith.ʹʺ

(quoting

Colon v. City of New York,

(1983)). Burgess ʺbears the burden of

establishing that [d]efendants misled the grand jury and the prosecutors by either

withholding or misrepresenting evidence in order to sustain the case against [him].ʺ

Dufort v. City of New York,

(2d Cir. 2017).

For the reasons articulated by the district court below, we conclude that

Burgess failed to present evidence from which a jury could find that defendants misled

the grand jury, suppressed evidence, acted in bad faith, or engaged in any wrongful

conduct. We reject the argument that the presumption of probable cause was rebutted

by the defendantsʹ failure to testify at the grand jury hearing to certain exculpatory

statements. It was the prosecutor, not the defendant police officers, ʺwho had the

discretion and authority to decide what evidence to present to the grand jury,ʺ and the

7 prosecutor ʺwas under no duty to present every item of arguably exculpatory evidence

in seeking an indictment.ʺ Savino v. City of New York,

(2d Cir. 2003).

Finally, we reject Burgessʹs alternative argument that probable cause

dissipated at some point during his prosecution, thereby making defendants liable for

its continuation. Where, as here, probable cause existed for the arrest, Burgess must

show that probable cause dissipated at some point after the arraignment. See Gaston v.

City of New York,

(S.D.N.Y. 2012) (stating that probable cause

must dissipate after the commencement of prosecution); Meija v. City of New York,

(E.D.N.Y. 2000) (noting that prosecution commences at arraignment).

Although Burgess presented arguably exculpatory evidence that developed after his

arraignment, he failed to present sufficient evidence to permit a jury to find defendants

responsible for continuing Burgessʹs prosecution.

ʺ[P]olice officers do not generally commence or continue criminal

proceedings against defendants.ʺ Bermudez v. City of New York,

(2d

Cir. 2015) (internal quotation marks omitted). Here, the defendantsʹ post‐arraignment

involvement in the prosecution was minimal, and certainly could not be considered

ʺactiveʺ or beyond the normal police tasks of ʺreport[ing information] or giv[ing]

testimony.ʺ Manganiello v. City of New York,

(2d Cir. 2010). The

8 defendants were not even aware of all the information that Burgess argues was

exculpatory, nor is there evidence that any of the defendants played an active role in

encouraging or influencing the decision to continue the prosecution. It was thus the

prosecutors, not the defendants, who decided to continue the case despite the arguably

exculpatory evidence. Accordingly, we affirm the district courtʹs grant of summary

judgment on this claim.

III. Municipal Liability

The district court dismissed Burgessʹs municipal liability claim because it

dismissed the underlying constitutional violations. See City of Los Angeles v. Heller,

(1986); Monell v. Depʹt of Soc. Servs. of City of N.Y.,

, 690‐91

(1978). We likewise find no underlying constitutional violation, and so affirm the

district courtʹs dismissal of these claims.

IV. Leave to Amend Complaint

We review the district courtʹs denial of a motion for leave to amend a

complaint for abuse of discretion. ATSI Commcʹns., Inc. v. Shaar Fund, Ltd.,

(2d Cir. 2007). The district court denied Burgessʹs motion to amend the complaint

to add four parties and a failure to intervene cause of action, concluding that the motion

was inexplicably delayed and the proposed amendment was futile. On appeal, Burgess

9 only makes brief references to an amended complaint, primarily in footnotes, and does

not present us with any arguments that persuade us that the district court abused its

discretion. Accordingly, we find no abuse of discretion and affirm the district courtʹs

denial of his motion to amend.

. . .

We have considered Burgessʹs remaining arguments and find them to be

without merit. Accordingly, we AFFIRM the district courtʹs judgment.

FOR THE COURT: Catherine OʹHagan Wolfe, Clerk of Court

10