24-506-cv McCullough v. Graves, 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 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 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 30th day of October, two thousand twenty-four.

PRESENT: JOHN M. WALKER, JR., DENNIS JACOBS, SARAH A. L. MERRIAM, Circuit Judges.

__________________________________________

JOHN H. McCULLOUGH JR.,

Plaintiff-Appellant,

v. No. 24-506-cv

OFFICER BRIAN GRAVES, Oswego City Police Officer; OFFICER MICHAELA FROST, Oswego City Police Officer; OFFICER PRITCHARD, Oswego City Police Officer,

Defendants-Appellees. __________________________________________

FOR PLAINTIFF-APPELLANT: JOHN H. MCCULLOUGH, JR., proceeding pro se, Oswego, NY. FOR DEFENDANTS-APPELLEES: Jonathan M. Bernstein, Goldberg Segalla LLP, Albany, NY.

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

of New York (Hurd, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the February 9, 2024, judgment is AFFIRMED.

Plaintiff-appellant John H. McCullough, Jr., proceeding pro se, appeals the

dismissal of his

claims for (1) false arrest, (2) malicious prosecution, (3)

fabrication of evidence, and (4) conspiracy, all of which were asserted against Officers

Graves, Frost, and Pritchard of the Oswego Police Department. 1 McCullough’s allegations

focus on a traffic stop and arrest that occurred on September 3 or 4, 2020, and events related

to the investigation and prosecution of charges arising out of that stop. See Supp. App’x at

3-12 (original complaint); Supp. App’x at 178-81 (amended complaint).

The district court dismissed McCullough’s original complaint for failure to state a

claim and, in granting leave to amend on all but the Section 1983 conspiracy claim, warned

McCullough that any amended complaint would “replace the previous existing complaint”

and would need to be a “single document that does not rely upon any other materials that

have previously been filed with the Court.” McCullough v. Graves, No.

5:23CV01028(DNH),

, at *8 (N.D.N.Y. Dec. 5, 2023). McCullough did

1 McCullough also asserted a state tort claim for intentional infliction of emotional distress but on appeal he does not contest the dismissal of that claim. 2 file an amended complaint, but it contained less information than the original, and it

included none of the documents that had been attached to the original. Observing that

McCullough had failed to heed its instructions, the district court again dismissed his claims

for substantially the same reasons as before, this time with prejudice. See McCullough v.

Graves, No. 5:23CV01028(DNH),

, at *2-5 (N.D.N.Y. Feb. 9, 2024).

McCullough timely appealed. We assume the parties’ familiarity with the remaining facts,

the procedural history, and the issues on appeal.

I. Standard of Review

We review de novo an order dismissing a complaint under Rule 12(b)(6). See

Sharikov v. Philips Med. Sys. MR, Inc.,

(2d Cir. 2024). To survive a

Rule 12(b)(6) motion to dismiss, a complaint must allege facts that, “taken as true and with

all reasonable inferences drawn in the plaintiff’s favor, state a plausible claim to relief.”

McCullough has been pro se throughout this litigation and, as such, “his pleadings and

other filings are interpreted to raise the strongest claims they suggest.”

“Even in a pro

se case, however, although a court must accept as true all of the allegations contained in a

complaint, that tenet is inapplicable to legal conclusions, and threadbare recitals of the

elements of a cause of action, supported by mere conclusory statements, do not suffice.”

Chavis v. Chappius,

(2d Cir. 2010) (citations and quotation marks

omitted).

II. Discussion

As the district court observed, McCullough’s amended complaint contains

3 significantly less information than the original pleading, to which were attached several

documents associated with his state criminal case. As a general rule, an amended complaint

supersedes the original, rendering it a nullity with “no legal effect.” In re Crysen/Montenay

Energy Co.,

(2d Cir. 2000). McCullough was specifically warned that

his amended complaint would completely replace his original complaint; we may therefore

limit our review to the amended complaint. But even considering the allegations of the

original complaint in conjunction with the allegations of the amended complaint, he has

failed to state a cognizable claim.

A. Section 1983 Conspiracy

“In order to survive a motion to dismiss on his §1983 conspiracy claim, [Appellant]

must allege (1) an agreement between a state actor and a private party; (2) to act in concert

to inflict an unconstitutional injury; and (3) an overt act done in furtherance of that goal

causing damages.” Ciambriello v. Cnty. of Nassau,

(2d Cir. 2002).

“It is well settled that claims of conspiracy containing only conclusory, vague, or general

allegations of conspiracy to deprive a person of constitutional rights cannot withstand a

motion to dismiss.” Gallop v. Cheney,

(2d Cir. 2011) (citations and

quotation marks omitted).

McCullough’s complaints appear to allege at least three conspiracies against him:

(1) between the officers and a civilian; (2) among the officers themselves; and (3) between

the officers and his former lawyer. However, even considering all of the information in

both complaints, McCullough has not made non-conclusory allegations sufficient to

4 support a plausible claim that any of these parties acted in concert or had an agreement to

violate his constitutional rights. As such, McCullough’s conspiracy claims were properly

dismissed.

B. False Arrest

To state “a claim for false arrest under

,” a complaint must allege

“that the defendant intentionally confined [the plaintiff] without his consent and without

justification. Because probable cause to arrest constitutes justification, there can be no

claim for false arrest where the arresting officer had probable cause to arrest the plaintiff.”

Escalera v. Lunn,

(2d Cir. 2004) (citations and quotation marks omitted).

The attachments to McCullough’s original complaint amply support a finding that

the officers had probable cause to arrest him for possession of marijuana. Under New York

law, the marijuana offense may not have been sufficient to justify taking McCullough into

custody. See Supp. App’x at 32 (state court decision finding that under New York law,

McCullough’s “traffic stop and marijuana possession warranted only issuance of an

appearance ticket”). But the Fourth Amendment analysis is not governed by the procedural

requirements of state law, and a state’s “policy against arresting for certain crimes” does

not alter the Fourth Amendment probable cause standard. Virginia v. Moore,

(2008). An officer does not violate “the Fourth Amendment by making an arrest based

on probable cause but prohibited by state law.”

; see also United States v.

Bernacet,

(2d Cir. 2013) (“[T]he Fourth Amendment does not

incorporate state procedural criminal law.”). Accordingly, we affirm the dismissal of the

5 false arrest claim.

C. Fabrication of Evidence

To state a claim under Section 1983 for a violation of due process rights by

fabrication of evidence, a complaint must plausibly allege “that an investigative officer

fabricated information likely to influence a jury and forwarded that information to the

prosecution, causing the plaintiff to suffer a deprivation of liberty.” Ashley v. City of New

York,

(2d Cir. 2021). Even considering the original and amended

complaints together, McCullough makes only conclusory allegations regarding the

fabrication or falsification of evidence against him. Indeed, it is not clear from his

pleadings what evidence McCullough claims was fabricated. In his brief on appeal,

McCullough appears to focus on the fact that although he was stopped very late on

September 3, 2020 – around midnight – some of the relevant reports are dated September

4, 2020. See, e.g., Appellant’s Br. at 14 (“Plaintiffs 1983 complaint stated all Defense

documents dates were altered from 9-3-2020 to 9-4-2020 to hide original arrest reports.”

[sic]); Id. at 17 (“Plaintiff clearly stated all arrest reports, grandjury statements, defense

paperwork against plaintiff were altered from 9-3-2020 to 9-4-2020 to hide original arrest

reports.” [sic]). Even reading McCullough’s pleadings and briefs generously, we find that

the district court properly dismissed this claim.

D. Malicious Prosecution

To state a

claim for malicious prosecution, a plaintiff must plead both a violation of his rights under the Fourth Amendment and the elements of a malicious prosecution claim under state law. Under New York law, a malicious-prosecution claim requires a plaintiff to show (1) the 6 initiation or continuation of a criminal proceeding against plaintiff; (2) termination of the proceeding in plaintiff’s favor; (3) lack of probable cause for commencing the proceeding; and (4) actual malice as a motivation for the defendant’s actions.

Dettelis v. Sharbaugh,

(2d Cir. 2019) (citations and quotation marks

omitted). A malicious prosecution claim brought under §1983 also requires “a sufficient

post-arraignment liberty restraint.” Kee v. City of New York,

(2d Cir.

2021) (citation and quotation marks omitted). It is undisputed that McCullough was

indicted by a New York grand jury on the charges underlying this claim. “[U]nder New

York law, indictment by a grand jury creates a presumption of probable cause that may only

be rebutted by evidence that the indictment was procured by fraud, perjury, the suppression

of evidence or other police conduct undertaken in bad faith.” Savino v. City of New York,

(2d Cir. 2003) (citations and quotation marks omitted). “[I]t is the plaintiff

who bears the burden of proof in rebutting the presumption of probable cause that arises

from the indictment,” and that burden cannot be met by “mere conjecture and surmise that

his indictment was procured as a result of conduct undertaken by the defendants in bad

faith.”

(citations and quotation marks omitted). The conclusory allegations of

McCullough’s complaints do not plausibly suggest that the indictment against him was

procured through police misconduct or bad faith. 2

2 The state court’s later suppression of the cocaine found on McCullough does not alter our conclusion. See, e.g., Allen v. Antal,

(2d Cir. 2016) (summary order) (“Despite it later being determined by the Appellate Division that the initial stop and search of Allen’s vehicle was unlawful, at the time prosecution was initiated there was undoubtedly probable cause to believe Allen was in criminal possession of a weapon.”); Cornell v. Kapral,

(2d Cir. 2012) (summary order) (“And the fact that the indictment was subsequently dismissed on 7 * * *

We have considered McCullough’s remaining arguments and conclude they are

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

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

procedural grounds does not vitiate the presumption of probable cause that arises from the issuance of the indictment.”). 8