22-2735 Dorsey v. Gannon

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 29th day of March, two thousand twenty-four.

PRESENT:

DENNIS JACOBS, PIERRE N. LEVAL, RICHARD J. SULLIVAN, Circuit Judges. _____________________________________

CLASSIE M. DORSEY,

Plaintiff-Appellant,

v. No. 22-2735

VINCENT F. GANNON, JAMES P. O’NEILL, CITY OF NEW YORK,

Defendants-Appellees. _____________________________________ For Plaintiff-Appellant: Earl Raynor, Philadelphia, PA.

For Defendants-Appellees: Richard Dearing, Jamison Davies, Lauren L. O’Brien, for Hon. Sylvia O. Hinds- Radix, Corporation Counsel of the City of New York, New York, NY.

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

District of New York (Pamela K. Chen, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the October 3, 2022 judgment of the district

court is AFFIRMED.

Classie Dorsey appeals from the district court’s grant of summary judgment

in favor of Vincent Gannon, James O’Neill, and the City of New York (collectively,

“Defendants”) on Dorsey’s claims that she was wrongly arrested in violation of

her constitutional rights under

. We assume the parties’ familiarity

with the issues on appeal, underlying facts, and procedural history, as to which

we provide only a brief description as necessary to resolve this appeal.

In 2017, New York Police Department (“NYPD”) detective Vincent Gannon

began investigating two incidents in which a woman with a fake Pennsylvania

driver’s license attempted to cash forged checks at banks in the New York City

area. After reviewing a surveillance video of one incident – along with a copy of

2 the suspect’s fake driver’s license – Gannon published still images of the woman

to an interstate police network. Michael Henricks, a police detective in

Pennsylvania, soon responded and advised Gannon of his belief that the woman

was Dorsey; he also attached a photograph of Dorsey along with her criminal

history. Gannon and Henricks contacted Dorsey’s probation officer in

Pennsylvania and all three officers agreed that Dorsey was the individual depicted

in the surveillance footage. A short time later, Gannon arrested Dorsey, who spent

two days in jail before posting bail. Dorsey eventually provided alibis for the

incidents, which were corroborated, and the charges against her were dropped.

Dorsey then commenced this action, bringing claims under section 1983 for false

arrest, malicious prosecution, and equal protection violations, as well as several

claims under state tort law. The district court granted summary judgment in favor

of Defendants on the federal claims and declined to exercise supplemental

jurisdiction over the state claims. This appeal followed.

We review a district court’s grant of summary judgment de novo, construing

all evidence in the light most favorable to the nonmoving party. See Garcia v.

Hartford Police Dep’t,

, 126–27 (2d Cir. 2013). Summary judgment is

appropriate when there is no genuine dispute as to any material fact, and the

movant is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a).

3 Dorsey argues principally that the district court erred in dismissing her

section 1983 claims for false arrest and malicious prosecution. To prove a claim

for false arrest, a plaintiff must show that (1) “the officer intended to confine the

plaintiff,” (2) “the plaintiff was conscious of the confinement and did not consent

to it,” and (3) “the confinement was not otherwise privileged,” such as whether it

was supported by “probable cause to arrest.” Lowth v. Town of Cheektowaga,

(2d Cir. 1996). A claim for malicious prosecution requires the plaintiff

to show (1) “the initiation or continuation of a criminal proceeding against [the]

plaintiff,” (2) the “termination of the proceeding in [the] plaintiff’s favor,” (3) “lack

of probable cause for commencing the proceeding,” and (4) “actual malice as a

motivation for [the] defendant’s actions.” Manganiello v. City of New York,

(2d Cir. 2010) (internal quotation marks omitted). Although these two

claims have different elements, they share one thing in common: for each, the

existence of probable cause is a “complete defense” to the cause of action. Betts v.

Shearman,

(2d Cir. 2014). So long as probable cause existed at the

time of arrest, and continued to exist for the duration of the prosecution, a plaintiff

cannot prevail on either claim. See

As the Supreme Court has noted, probable cause is not an especially “high

bar.” Kaley v. United States,

(2014). It requires only that the

4 officers have “knowledge or reasonably trustworthy information sufficient to

warrant a person of reasonable caution in the belief that an offense has been

committed by the person to be arrested.” Curley v. Village of Suffern,

,

69–70 (2d Cir. 2001) (internal quotation marks omitted). Officers may establish

probable cause based on a variety of sources, ranging from eyewitness accounts to

anonymous tips. See United States v. Elmore,

(2d Cir. 2007).

Significantly, even “mistaken information” can support a finding of probable

cause, “so long as it was reasonable for [the officer] to rely on it” at the time.

Manganiello,

; see also Hill v. California,

, 802–03 (1971).

Based on the record, there can be no serious dispute that Gannon had

probable cause to arrest Dorsey. Indeed, she was identified as the woman in the

surveillance photos by no less than three officers, one of whom was Dorsey’s own

probation officer. Nor did Henricks pull Dorsey’s name out of a hat: as he

reported to Gannon, he identified Dorsey’s name after he searched through

Pennsylvania’s database using the fake Pennsylvania license used in the check

frauds. Under these circumstances, “a competent police officer could believe it

was objectively reasonable to arrest [Dorsey] for the [crimes] that had been

committed.” Ricciuti v. N.Y.C. Transit Auth.,

(2d Cir. 1997); see

also

(“Once a police officer has a reasonable basis for believing there is probable

5 cause, he is not required to explore and eliminate every theoretically plausible

claim of innocence before making an arrest.”).

And while it is of course true that the officers’ identification turned out to

be erroneous, Dorsey points to no evidence that Defendants continued to

prosecute her after probable cause dissipated. See Kinzer v. Jackson,

,

143–44 (2d Cir. 2003) (explaining that a malicious prosecution claim could have

merit if “probable cause [was] present at the time of arrest” but evidence later

“surface[d]” that “eliminate[d] that probable cause” (internal quotation marks

omitted)). To the contrary, prosecutors promptly dismissed Dorsey’s charges once

they vetted her alibis (supported by cell-site data and a polygraph test) and

determined that they could not “conclusively” say that she was the individual in

the surveillance footage. App’x at 58–59. Though Dorsey had the benefit of

discovery, she identifies nothing to suggest that Defendants persisted in

prosecuting her after they substantiated her alibis.

While Dorsey offers several other arguments – including that the officers

“fabricate[d]” the pictures of Dorsey used to make the identification, Dorsey Br. at

34 – none has any basis in the record, see App’x at 17 (district court characterizing

this argument as “border[ing] on frivolous”). Put simply, even though the

identification turned out to be mistaken, Gannon cleared – by a good margin – the

6 low bar needed to establish continuing probable cause and defeat Dorsey’s claims

for false arrest and malicious prosecution.

Dorsey also urges us to revive her equal protection claim, which alleges that

Gannon targeted her because of her race. “To prevail on a [section] 1983 claim of

race discrimination in violation of equal protection, the law requires a plaintiff to

prove the defendant’s underlying racially discriminatory intent or purpose.”

DiStiso v. Cook,

(2d Cir. 2012) (internal quotation marks omitted).

But Dorsey points to no evidence of racial bias, relying instead on the wholly

unsupported assertion that Gannon sought to arrest “any African[-]American

woman residing in Pennsylvania[] who remotely resembled the person depicted

in [the] bank surveillance videos.” Dorsey Br. at 42. “[C]onclusory allegations” of

that sort are not sufficient to withstand summary judgment. Kia P. v. McIntyre,

(2d Cir. 2000). And in any event, “seeking out persons who match[]

th[e] description” of a suspect is an “altogether legitimate basis” for a police

investigation. Brown v. City of Oneonta,

(2d Cir. 2000).

Finally, Dorsey contends that the district court erred in dismissing her

Monell claims against the City and NYPD Commissioner O’Neill. But our caselaw

is clear that there can be no Monell liability where there has not been an underlying

constitutional violation. See Segal v. City of New York,

(2d Cir.

7 2006) (“Because the district court properly found no underlying constitutional

violation, its decision not to address the municipal defendants’ liability under

Monell was entirely correct.”). As already discussed, Dorsey failed to identify a

genuine dispute as to the existence of a constitutional violation, so her Monell

claims must fail as well.

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

without merit. 1 Accordingly, we AFFIRM the judgment of the district court.

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

1 Dorsey does not challenge the district court’s decision to decline to exercise supplemental

jurisdiction over her state law claims, which the district court dismissed without prejudice.

8