Mitchell v. The City of New York

Filing

OPINION, Vacating in part, affirming in part, and remanding the case, by RKW, RSP, RDS, FILED.[1894520] [14-767]

Case 14-767, Document 81-1, 10/28/2016, 1894520, Page1 of 16

14-0767-cv
Mitchell et al. v. The City of New York et al.

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UNITED STATES COURT OF APPEALS

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FOR THE SECOND CIRCUIT

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August Term, 2014

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(Argued: February 20, 2015

Decided: October 28, 2016)

Docket No. 14-0767-cv
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - MELINDA MITCHELL, individually and on behalf of a class of all
others similarly situated, HARVEY MITCHELL, individually and on
behalf of a class of all others similarly situated,
Plaintiffs-Appellants,
v.
THE CITY OF NEW YORK, a municipal entity, NYC POLICE OFFICER
JAMES SCHUESSLER, Shield No. 28718, RICHARD ROES, 1-50 NEW YORK
CITY POLICE SUPERVISORS AND COMMANDERS, JOHN DOES, 1-50 NEW YORK
CITY POLICE OFFICERS, individually, and in their official
capacities, jointly and severally, POLICE OFFICER JOSEPH
BRINADZE, NYPD CAPTAIN JOSEPH GULOTTA, NYPD SERGEANT DANIELLE
ROVENTINI, and NYPD LIEUTENANT KATHLEEN CAESAR,
Defendants-Appellees.
- - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - B e f o r e:

WINTER, POOLER, and SACK, Circuit Judges.

Appeal from a judgment of the United States District Court

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for the Southern District of New York (Lewis A. Kaplan, Judge),

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granting appellees’ motion for summary judgment and dismissing

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appellants’ claims.

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material fact as to whether the New York City Police officers had

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probable cause to arrest appellants for trespass.

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court therefore improperly dismissed appellants’ false arrest

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claim.

We hold that there is a genuine issue of

We affirm as to all other claims.
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The district

Case 14-767, Document 81-1, 10/28/2016, 1894520, Page2 of 16

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JEFFREY A. ROTHMAN (Jonathan C. Moore &
Joshua S. Moskovitz, Beldock Levine &
Hoffman LLP, New York, NY, on the brief)
New York, NY, for Plaintiffs-Appellants.
DRAKE A. COLLEY, for Zachary W. Carter,
Corporation Counsel of the City of New
York, New York, NY, for DefendantsAppellees.
WINTER, Circuit Judge:
Melinda Mitchell and Harvey Mitchell -- we will refer to

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them as Melinda and Harvey because they are not related -- along

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with other similarly situated individuals, appeal from Judge

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Kaplan’s dismissal of their complaint on a grant of summary

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judgment to appellees.

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of material fact as to whether the appellee police officers had

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probable cause to arrest appellants for trespass.

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vacate the judgment.

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appellees’ claim of qualified immunity related to the false

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arrest.

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abuse of process, and municipal liability claims.

We hold that there is a genuine dispute

We therefore

We remand the false arrest claim and

We affirm the dismissal of the malicious prosecution,

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BACKGROUND

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This appeal is from a grant of summary judgment, and the

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following recitation of facts, therefore, views the evidentiary

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record in the light most favorable to appellants, the non-moving

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party.

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(citation omitted).

Rentas v. Ruffin, 816 F.3d 214, 220 (2d Cir. 2016)

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Case 14-767, Document 81-1, 10/28/2016, 1894520, Page3 of 16

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In December 2010, Lieutenant Kathleen Caesar of the New York

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City Police Department (“NYPD”) responded to a report of a sexual

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assault at a brownstone located at 2142 Atlantic Avenue, in

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Brooklyn, New York.

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officer, she saw two women, one of whom said she was robbed in

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the brownstone.

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front door, Caesar entered the premises through the back door.

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She found no one inside.

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area next to the kitchen, a room with a dance pole, and a living

When Caesar arrived with another police

After no one responded to her knocks at the

On the first floor, she observed a bar

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room with no furniture.

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abandoned.

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this and later made it a point to drive by the brownstone during

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her patrol shifts since she believed the brownstone might have

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been “being used for parties.”

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Caesar concluded that the house was

She told her colleague Lieutenant John Hopkins of

J. App’x at 104.

About a month later, on January 9, 2011, Melinda and Harvey

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attended a party at the 2142 Atlantic Avenue brownstone.

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both were invited by acquaintances, neither knew who was hosting

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the party or who owned the property.

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they opened a small unlocked gate, and proceeded through the

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front door.

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building.

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property.

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While

To enter the brownstone,

There were no signs prohibiting entrance to the

There was, however, a realtor’s for-sale sign on the

At about 2:15 a.m. on January 9, 2011, Caesar was driving by
the brownstone when she saw three people standing on its stoop.

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Case 14-767, Document 81-1, 10/28/2016, 1894520, Page4 of 16

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She called Hopkins to inform him that suspicious activity might

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be taking place at the premises.

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Gulotta, and other officers arrived, Caesar knocked at the front

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door but no one answered.

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locked.

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the property and entered the brownstone through the back door.

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Caesar then made her way through the brownstone, past “about 30

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kids” to the front door to let in more officers.

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After Hopkins, Captain Joseph

She tried to open the door, but it was

She and some of the officers proceeded to the rear of

Id. at 127-128.

Inside, the officers found at least 30 people.

According to

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appellants, space was set up for a party, with a bar, a projector

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screen, disco lights, running water, working heat, DJ equipment,

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and an area with a big TV and some couches.

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his deposition that he saw that electricity was being routed in

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from outside the house via extension cords.

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testified at his deposition that he smelled marijuana upon

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entering the brownstone, and another officer, James Schuessler,

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testified at his deposition that he recalled seeing six or eight

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“nickel” or “dime” bags containing what looked to be marijuana

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and crack cocaine on the floor of the brownstone.

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Gulotta testified at

Gulotta also

Upon entering the brownstone, the police told everyone to be

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quiet and then repeatedly asked who owned the property and who

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was hosting the party.

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know who the owner was.

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Gulotta ordered the arrest of everyone present.

Some people replied that they did not
When no one revealed the owner or host,

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The arrests were

Case 14-767, Document 81-1, 10/28/2016, 1894520, Page5 of 16

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based on Gulotta’s belief that everyone at the party had:

(i)

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“trespass[ed]”; (ii) “loiter[ed] for the purpose of using

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narcotics”; and (iii) “endanger[ed] the welfare of a child

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because there was a 12 year-old child present.”

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only issue raised in this appeal with regards to the arrests is

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whether there was probable cause for the arrests for trespass.

Id. at 582.

The

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Melinda and Harvey were arrested and both were handcuffed.

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Melinda was handcuffed for approximately one hour by an officer

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who refused to loosen the handcuffs when she complained they were

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too tight.

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required her to take Advil and use an ice pack for two days.

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Harvey was handcuffed for 20 to 30 minutes; he alleged the

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handcuffs left marks on his arms but required no medical

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treatment.

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The handcuffs caused bruising to her wrist that

All arrestees were processed at the precinct and their

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fingerprints and mug shots taken.

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“Desk Appearance Ticket” (“DAT”), which required her to appear in

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court at a later date.

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Central Booking facility and arraigned.

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Melinda was released with a

Harvey was processed through the Brooklyn

After the arrests, several police officers each submitted

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statements entitled, “Supporting Deposition – Trespass in a

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Dwelling and Resisting Arrest,” to the Kings County District

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Attorney’s Office.

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understanding that the brownstone was categorized as a Formal

The statements attested to the officers’

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Case 14-767, Document 81-1, 10/28/2016, 1894520, Page6 of 16

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Trespass Affidavit Program (“FTAP”) dwelling and that the NYPD

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was the lawful custodian of the property.1

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officers’ statement at the time of the arrest, it is now

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undisputed that the brownstone was not part of FTAP.

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does not illuminate whether the building was privately owned or

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abandoned to City custody, although demonstrating City custody

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would have helped the defense to show probable cause for the

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trespass arrests.

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Notwithstanding the

The record

The Kings County District Attorney’s Office later declined

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to prosecute Melinda and others who received a DAT following the

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arrests at the brownstone.

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Harvey pursuant to an Adjournment in Contemplation of Dismissal.

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On April 6, 2012, appellants filed their original complaint

It also dropped all charges against

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in the present action, in which they assert Section 1983 claims

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for false arrest, malicious prosecution, abuse of process, and

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excessive force.

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amended complaint asserting the same Section 1983 claims.

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On November 5, 2012, appellants filed their

After discovery, both parties moved for summary judgment.
Appellees moved for summary judgment on all of appellants’
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The FTAP was developed to allow tenants and landlords to complain of
drug-related activity occurring in the common areas of multi-dwelling
apartment buildings. Landlords participating in the FTAP are asked to sign an
affidavit authorizing the police to perform vertical patrols in their
buildings. The police are also given keys to common areas and a list of
tenant residents. See, e.g., Charles J. Hynes, Ask the DA: Preventing Illegal
Activity in Apartment-Building Hallways, Brooklyn Daily Eagle (Sept. 19,
2012), www.brooklyneagle.com/articles/ask-da-preventing-illegal-activityapartment-building-hallways-2012-09-19-090000; N.Y. Cty. Dist. Atty.’s Office,
Trespass Affidavit Program, http://manhattanda.org/trespass-affidavit-program
(last visited Oct. 26, 2016).

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Case 14-767, Document 81-1, 10/28/2016, 1894520, Page7 of 16

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claims, whereas appellants moved for partial summary judgment

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only on their federal and state law claims for false arrest and

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their state law claims for battery.

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under New York law became moot, however, when the New York

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Appellate Division, Second Department, reversed the decision of

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the Kings County Supreme Court that granted appellants leave to

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file late notices of their claims.

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N.Y.S.2d 368, 370 (2013).

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court granted appellees’ motion for summary judgment in its

The battery claim arising

Mitchell v. City of N.Y., 977

On February 11, 2013, the district

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entirety.

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WL 535046, at *6 (S.D.N.Y. Feb. 11, 2014).

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followed.

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Mitchell v. City of N.Y., No. 12 CIV. 2674 LAK, 2014
This timely appeal

DISCUSSION
We review de novo a district court’s grant of summary

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judgment, “construing the evidence in the light most favorable to

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the non-moving party and drawing all reasonable inferences in its

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favor.”

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2011)(citation omitted). “[I]t is well-settled that [this court]

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may affirm on any grounds for which there is a record sufficient

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to permit conclusions of law, including grounds nor relied upon

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by the district court.” Holcomb v. Lykens, 337 F.3d 217, 223 (2d

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Cir. 2003) (internal quotation marks and citation omitted).

Costello v. City of Burlington, 632 F.3d 41, 45 (2d Cir.

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Case 14-767, Document 81-1, 10/28/2016, 1894520, Page8 of 16

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a)

False Arrest
1) Probable Cause
We first address the district court’s holding that the

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police had probable cause to arrest appellants.

See Mitchell,

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2014 WL 535046, at *3-*4. “The existence of probable cause to

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arrest constitutes justification and is a complete defense to an

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action for false arrest” brought under Section 1983.

Jenkins v.

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City of N.Y., 478 F.3d 76, 84 (2d Cir. 2007) (internal quotation

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marks and citations omitted). “Probable cause . . . exists when

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the [arresting] officers have knowledge or reasonably trustworthy

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information of facts and circumstances that are sufficient to

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warrant a person of reasonable caution in the belief that the

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person to be arrested has committed or is committing a crime.”

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Id. at 84-85 (internal quotation marks and citations omitted).

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court deciding whether probable cause existed must “examine the

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events leading up to the arrest, and then decide whether these

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historical facts, viewed from the standpoint of an objectively

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reasonable police officer, amount to probable cause.”

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v. Pringle, 540 U.S. 366, 371 (2003) (internal quotation marks

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omitted).

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warrant, the defendant in a false arrest case bears the burden of

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proving probable cause as an affirmative defense.”

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Napolitano, 604 F.3d 732, 751 (2d Cir. 2010) (citation omitted).

A

Maryland

Where “an arrest is not made pursuant to a judicial

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Dickerson v.

Case 14-767, Document 81-1, 10/28/2016, 1894520, Page9 of 16

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On this record, it appears that no member of the NYPD made

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serious efforts to verify the legal status of the brownstone,

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i.e., the existence of a person or entity with a claim of

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occupancy of ownership, the property’s status under the FTAP, or

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the lack of any claim or other status.

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first visited the property in December 2010, she failed to

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investigate the ownership status of the brownstone and assumed it

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was abandoned, even though there were signs of use.

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evidence in the record, a trier of fact could find that, when

When Lieutenant Caesar

Based on the

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Caesar re-entered the brownstone in the early morning of the day

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of the arrests, she did so based solely on her earlier

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conjectures that the brownstone was abandoned and that appellants

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were therefore trespassing.

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this belief was unreasonable, given the for-sale sign in the

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front yard.

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of a real estate sign suggested that someone claimed ownership of

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the brownstone.

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A trier of fact could further find

Indeed, as Captain Gulotta conceded, the existence

Other officers stated (inconsistently) that they believed

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the brownstone to be part of the FTAP or to be abandoned.

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conceded that these beliefs were mistaken.

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record, the only basis, if any, for these beliefs appears to be

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word of mouth among the officers.

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It is

Moreover, on this

Furthermore, in finding that the officers had probable cause
to believe the brownstone was abandoned and that those present

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were trespassing, the district court also relied heavily on the

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police officers’ observation once they were inside the brownstone

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that there were extension cords running from the brownstone to

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another property as well as the fact that when asked, no one

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attending the party told the officers who owned the brownstone.

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Mitchell, 2014 WL 535046, at *4.

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of the appellants, as we must, we conclude to the contrary that

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these facts are insufficient to establish on summary judgment as

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a matter of law that the officers had probable cause to believe

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Drawing all inferences in favor

that the house was abandoned.2
After the arrests, Officer Girard Moscato, having seen the

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for-sale sign outside the brownstone, tried to call Weichert

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Realty to inquire about the brownstone, but, after leaving a

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voice message, he did not follow up.

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455 N.E.2d 1248, 1250 (N.Y. 1983) (“[T]he failure to make a

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further inquiry when a reasonable person would have done so may

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be evidence of lack of probable cause.”) (citation omitted).

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Indeed, as Captain Gulotta conceded, the existence of a real

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estate sign suggested that someone claimed ownership.

See Colon v. City of N.Y.,

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The use of extension cords might have been for one of many reasons
apart from the fact that the brownstone was abandoned and the attendees were
trespassing, such as to avoid blowing a fuse or tripping a circuit breaker on
the property, or because there was insufficient power available from the
brownstone’s electrical system without the addition of more from another
source. Similarly, the silence of those present does not necessarily
establish that the officers had a reasonable factual basis for thinking that
the brownstone was abandoned.

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Under New York law, one commits the crime of trespass if one

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“knowingly enters or remains unlawfully in or upon premises.”

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N.Y. Penal Law § 140.05.

The law provides:

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A person ‘enters or remains unlawfully’ in or
upon premises when he is not licensed or
privileged to do so. A person who, regardless
of his intent, enters or remains in or upon
premises which are at the time open to the
public does so with license and privilege
unless he defies a lawful order not to enter
or remain, personally communicated to him by
the owner of such premises or other authorized
person. A license or privilege to enter or
remain in a building which is only partly open
to the public is not a license or privilege to
enter or remain in that part of the building
which is not open to the public.
Id. § 140.00(5).

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the state’s burden to prove that an invitee does not have

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privilege or license to remain on the premises.

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element of the crime, officers must have probable cause to

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believe that a person does not have permission to be where she is

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before they arrest her for trespass.”

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F. Supp. 2d 405, 426 (S.D.N.Y. 2012) (discussing New York v.

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Brown, 254 N.E.2d 755, 756-57 (N.Y. 1969)).

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arrest for trespass, on this record, could easily be found to

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have been based entirely on baseless and unreasonable conjectures

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and assumptions as to the ownership of the property or its FTAP

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status.

The New York Court of Appeals has held “it is

Because it is an

Davis v. City of N.Y., 902

Appellees’ mass

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Under these circumstances, viewing the record in the light

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most favorable to appellants, a dispute of material fact exists
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as to whether the police officers could have reasonably believed

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the appellants were trespassers.

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for the belief that the building was in the FTAP, and the for-

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sale sign belied abandonment.

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asserting legal occupancy of the premises on this record may

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eliminate any claim of unlawful entry by the police, but it

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provides no corresponding individualized probable cause to arrest

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appellants for trespass.

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There was no reasonable basis

The lack of any known claimant

Accordingly, we vacate the dismissal of appellants’ false
arrest claims.

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2) Qualified Immunity

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We leave open for decision in the first instance by the

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district court on remand the question of whether the appellees

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are entitled to qualified immunity with respect to the false

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arrest claim. See Tellier v. Fields, 280 F.3d 69, 84 (2d Cir.

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2000)(“Because qualified immunity is an affirmative defense,...

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the defendants bear the burden of showing that the challenged act

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was objectively reasonable in light of the law existing at the

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time.”).

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c)

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Malicious Prosecution
We next address the district court’s dismissal of appellant

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Melinda’s federal and state malicious prosecution claims.

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Mitchell, 2014 WL 535046, at *5. In order to prevail on such a

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claim under both Section 1983 and New York State law, a plaintiff

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See

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is required to demonstrate:

(i) the commencement or continuation

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of a criminal proceeding against her; (ii) the termination of the

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proceeding in her favor; (iii) “that there was no probable cause

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for the proceeding”; and (iv) “that the proceeding was instituted

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with malice.”

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2003) (citations omitted); see also Colon, 60 N.Y.2d at 82

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(similar). When raising a malicious prosecution claim under

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Section 1983, a plaintiff must also show a “seizure or other

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perversion of proper legal procedures implicating the claimant’s

Kinzer v. Jackson, 316 F.3d 139, 143 (2d Cir.

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personal liberty and privacy interests under the Fourth

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Amendment.”

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(2d Cir. 2004) (internal quotation marks and citation omitted).

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Washington v. Cty. of Rockland, 373 F.3d 310, 316

We first address Melinda’s state law and federal law claims

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under the Kinzer test.

We have held that, under New York law,

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the issuance of a DAT constitutes a criminal proceeding

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initiation.

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199 (2d Cir. 2014) (“[W]e adhere to the position we took in

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Rosario that, under New York law, the issuance of a DAT

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sufficiently initiates a criminal prosecution to sustain a claim

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of malicious prosecution.”); Rosario v. Amalgamated Ladies'

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Garment Cutters' Union, Local 10, 605 F.2d 1228, 1250 (2d Cir.

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1979) (“[W]e believe that if a New York court faced the question

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before us it would rule that the issuance of [a DAT] commences a

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prosecution for purposes of determining whether an action for

See Stampf v. Long Island R.R. Co., 761 F.3d 192,

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malicious prosecution lies.”).

Accordingly, we find that Melinda

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has met the first Kinzer prong.

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two and three by showing, respectively, that the proceeding

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terminated in her favor when the District Attorney’s Office

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declined to prosecute her, and, as discussed supra, that there

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was no probable cause for her arrest.

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however, is at the fourth prong, because she has not alleged or

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proffered any facts that the DAT was issued with malice.

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her malicious prosecutions, therefore, fail.

She has also satisfied prongs

Where her claim fails,

Both of

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As Melinda fails to state a malicious prosecution claim

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under the Kinzer test, we need not reach the question of whether

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her single court appearance constituted a seizure under the

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Fourth Amendment for purposes of her Section 1983 malicious

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prosecution claim, and we leave the question for another day.

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We therefore hold the district court properly dismissed

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Melinda’s state and federal malicious prosecution claims.

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d)

Abuse of Process

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We now turn to appellants’ abuse-of-process claim.

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successfully state such a claim, “it is not sufficient for a

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plaintiff to allege that the defendants were seeking to retaliate

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against him by pursuing his arrest and prosecution.

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must claim that they aimed to achieve a collateral purpose beyond

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or in addition to his criminal prosecution.” Savino v. City of

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N.Y., 331 F.3d 63, 77 (2d Cir. 2003).

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To

Instead, he

Case 14-767, Document 81-1, 10/28/2016, 1894520, Page15 of 16

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Whether or not the police officers may have sought to

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retaliate against appellants by arresting them, appellants have

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proffered no evidence that the police officers attempted to

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achieve any other collateral purpose beyond arresting appellants

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for trespass.

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that the district court correctly dismissed appellants’ abuse-of-

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process claim.

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e)

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We hold, therefore, albeit for different reasons,

Municipal Liability
We turn finally to the district court’s dismissal of

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appellants’ municipal liability claim. See Mitchell, 2014 WL

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535046, at *6. To prevail, a plaintiff must identify the

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existence of a municipal policy or practice that caused the

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alleged constitutional violation.

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Servs. of City of N.Y., 436 U.S. 658, 694-95 (1978).

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must also demonstrate a sufficient causal relationship between

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the violation and the municipal policy or practice.

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See Monell v. Dep’t of Soc.
A plaintiff

Id.

As discussed supra, while appellants have sufficiently

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supported their claim that their arrests lacked individual

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probable cause, they have not supported their claim of municipal

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liability.

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the arrests occurred pursuant to a city policy or practice. See

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City of Okla. City v. Tuttle, 471 U.S. 808, 823-24

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(1985)(plurality) (“Proof of a single incident of

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unconstitutional activity is not sufficient to impose liability

Appellants have proffered no evidence to show that

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under Monell, unless proof of the incident includes proof that it

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was caused by an existing, unconstitutional municipal policy[]

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[that] can be attributed to a municipal policymaker.”)

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(plurality); accord Fenner v. City of N.Y., No. 08 Civ.

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2355(BMC)(LB), 2009 WL 5066810, at *4 (E.D.N.Y. Dec. 21, 2009)

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(“At most, plaintiff has identified a single incident of a

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constitutional violation.

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occurred . . . the Supreme Court has squarely held that this is

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insufficient to create liability under Monell.”) (citation

Even assuming such a violation

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omitted), aff’d, 392 F. App’x 892, 894 (2d Cir. 2010) (summary

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order).

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appellants’ Monell claim.

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Therefore, the district court correctly dismissed

CONCLUSION
For the reasons stated, we vacate and remand the lower

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court’s summary judgment rulings as to the false arrest claims

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and the question of qualified immunity.

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court’s remaining summary judgment rulings.

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We affirm the district