Goldring et al v. Zumo et al
MEMORANDUM DECISION & ORDER re: defendants' 34 Motion to Dismiss for partial dismissal is granted, and plaintiffs' claim for abuse of process relating to the loss of James Goldring's business is dismissed. Plaintiff's request for leave to amend denied. Plaintiff's arguments with respect to Monell liability are moot. ( Ordered by Judge Brian M. Cogan on 1/12/2015 ) (Guzzi, Roseann)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
JAMES GOLDRING and GINA GOLDRING, :
: MEMORANDUM DECISION &
- against :
: 14 Civ. 4861 (BMC)
DET. JASON ZUMO, et al.,
COGAN, District Judge.
Before me is defendants’ partial motion to dismiss (which would be better phrased as a
motion for partial dismissal) for failure to state a claim. Defendants move to dismiss plaintiff
James Goldring’s claim of “harassment,” which arises from economic harm allegedly done to his
barbershop business by certain of the defendant police officers in the months following
plaintiff’s arrest for accidentally shooting his son. For the reasons that follow, defendants’
motion is granted and this claim is dismissed.
This case is principally concerned with plaintiffs’ unlawful search and false arrest claims
arising from an incident in which plaintiff James Goldring accidentally shot his teenaged son
while cleaning a firearm in their home in Queens County. The allegations that are the subject of
the instant motion concern certain conduct by police officers occurring in the months following,
and allegedly related to, that incident. The following facts are assumed true for the purpose of
deciding this motion.
About two months after the shooting incident that gave rise to plaintiffs’ other claims in
this case, five N.Y.P.D. officers from the 113th Precinct entered plaintiff James Goldring’s
barbershop to inspect his business and professional licenses.1 On the same day, a customer
smoking outside of the shop was arrested for loitering. Two days later, two officers entered the
barbershop and examined the same licenses. About five months later, nine of the named
defendant officers entered the shop for the same reason. Plaintiff was then issued three
summonses for failure to display his barber's license; having unswept hair on the floor; and
failure to display the address of his barbershop on the front door.2 All of these charges were
Several weeks later, a customer who had just come out of the shop was stopped and
questioned by five police officers traveling in unmarked cars. He was told that he had been
stopped because “the shop was known to be a place of criminal activity.” About one week later,
six of the named defendants entered the barbershop and issued three summonses for an unswept
floor; for an uncovered garbage can; and for the presence of paper towels that had not been
thrown into the garbage can.3 All of these charges were ultimately dismissed.
About two months later, several officers entered the barbershop and demanded the
licenses of the two barbers present, and then issued four summonses to each of them for having
hair on the floor of the shop, not having a cover on the garbage can, not having an address on the
front door of the premises, and not having licenses displayed. As a result of this “constant
harassment,” plaintiff’s business began to suffer, lost customers and employees, fell behind on its
rent, and was forced to close.
Defendants construe the claim at issue as brought only on behalf of James Goldring. Plaintiffs do not object to this
construction, and I adopt it for purposes of this decision. References to “plaintiff” hereafter are to Mr. Goldring.
These summonses alleged violations of the New York State General Business Law, New York City Health Code,
and New York City Administrative Code.
These summonses alleged violations of the New York City Health Code.
The Nature of Plaintiff’s Claim
The Complaint suggests, and plaintiff’s opposition to the instant motion confirms, that
the claim at issue is one for violation of plaintiff’s procedural due process rights under the Fifth
and Fourteenth Amendments to the U.S. Constitution, via 18 U.S.C. § 1983, based on the
constitutional tort of malicious abuse of process. See Savino v. City of New York, 331 F.3d 63
(2d Cir. 2003). This has not been agreed to from the outset, so I address it briefly.
The crux of plaintiff’s claim is that the summonses issued to him were issued “with the
intention, ultimately successful, not of enforcing those statutes and ordinances, but of harming
and interfering with [plaintiff]’s business to the point that it was destroyed.” No other
constitutional violation is argued in plaintiff’s opposition, and the Complaint alleges no purpose
beyond a campaign “maliciously aimed at harming his business.”
During the off-the-record Initial Status Conference in this case, the Court and the parties
attempted to clarify the cause of action stated by these allegations. In light of that attempt, which
was inconclusive, defendants’ motion addressed procedural due process claims arising both from
deprivation of property and from malicious abuse of process which, in a criminal context, is “by
definition” a violation of procedural due process. See Cook v. Sheldon, 41 F.3d 73, 80 (2d Cir.
1994); Hoffman v. Town of Southampton, 893 F. Supp. 2d 438, 446-47 (E.D.N.Y. 2012), aff’d
sub nom. Peter L. Hoffman, Lotte, LLC v. Town of Southampton, 523 F. App’x 770 (2d Cir.
2013).4 Defendants’ motion therefore includes an argument that plaintiff has failed to allege the
inadequacy of state remedies. This is an argument they expressly addressed only “[t]o the extent
There is no argument that the allegations at issue raise a substantive due process claim. In particular, claims of
abuse of process brought via § 1983 “are typically analyzed under the rubric of procedural, not substantive, due
process.” Kennedy-Bifulco v. Town of Huntington, No. 08-cv-1612, 2010 WL 6052343, at *14 (E.D.N.Y. Oct. 29,
2010), report and recommendation adopted, No. 08-cv-1612, 2011 WL 883697 (E.D.N.Y. Mar. 10, 2011).
plaintiff attempts to state a claim for deprivation of property,” where (unlike in abuse of process
claims), exhaustion of state remedies is a requirement. See Hudson v. Palmer, 468 U.S. 517, 104
S. Ct. 3194 (1984).
Plaintiff’s opposition to the instant motion makes clear that he is not asserting a
deprivation of property claim, but only an abuse of process claim. Although both are actionable
as violations of procedural due process under § 1983, they are distinct claims, and plaintiff only
asserts the latter. For example, he styles his submission an “opposition to defendants’ motion to
strike that portion of plaintiffs’ complaint that alleges a cause of action for malicious abuse of
process in violation of plaintiffs’ right to due process of law.” Moreover, the parties cite no
authority suggesting that a deprivation of property claim is appropriate on the facts at bar, and I
am aware of none. The only claim at issue, therefore, is malicious abuse of process, and there is
no need to address the parties’ arguments with respect to the adequacy of state law remedies.
Malicious Abuse of Process
A malicious abuse of process claim brought via the Due Process Clause and § 1983
adopts the elements of the tort under New York law, under which a claim lies against a defendant
who “(1) employs regularly issued legal process to compel performance or forbearance of some
act (2) with intent to do harm without excuse of justification, and (3) in order to obtain a
collateral objective that is outside the legitimate ends of the process.” Savino, 331 F.3d at 76-77.
It is only the third element that is disputed in this case. However, although the parties do
not dispute the first element, the requirement for “regularly issued legal process” limits my
inquiry to the alleged appearance tickets and arrests, and excludes any conduct involving mere
inspection of licenses, questioning of patrons, or the like.
The Second Circuit has made clear that a “malicious motive alone” is insufficient to
satisfy the “collateral objective” requirement of an abuse of process claim. Id. at 77 (quotation
omitted). “Instead, [plaintiff] must claim that [defendants] aimed to achieve a collateral purpose
beyond or in addition to his criminal prosecution.” Id. (holding that retaliation for unwanted
media exposure by city employee is not a collateral objective); see also Hoffman, 893 F. Supp. at
448 (“In evaluating this element, the Second Circuit expressly distinguishes between a
‘malicious motive’ and an ‘improper purpose’; only the latter suffices to meet the ‘collateral
objective’ prong of the abuse of process standard.”).5
Plaintiff’s position is that the defendants’ alleged goal of harming his business is
collateral to the enforcement of heath and business ordinances. I am aware of no decision by the
Second Circuit that opines on the viability of this legal theory. The weight of the limited district
court authority in this Circuit suggests that in the criminal context, harm to a plaintiff’s business
is not sufficient unless it is used a means to compel some other result.6 In Jones v.
Maples/Trump, No. 98 CIV. 7132, 2002 WL 287752, at *7 (S.D.N.Y. Feb. 26, 2002), aff’d sub
nom. Jones v. Trump, 71 F. App’x 873 (2d Cir. 2003), the court explained that the collateral
objective element requires “an effect outside the intended scope of operation of the process
employed.” The plaintiff alleged that certain government officials had acted in conspiracy with
his former employer “by bringing harassment charges against him to settle a personal vendetta . .
The Court in Cook, cited by Savino for the elements of § 1983 abuse of process, held that retaliation (specifically,
First Amendment retaliation) was a sufficient collateral objective. Despite Savino’s general reliance on Cook, it
appears that Cook is overruled by implication to the extent that they are in tension. In any event, plaintiff does not
allege a retaliatory motive here, but simply that the intent of the defendants was to harm his business for reasons that
the Complaint does not set forth.
There are cases in this Circuit at least suggesting that abuse of civil process can be established by proof that a
lawsuit was filed with the intention of putting a competitor out of business. See e.g., Krasnyi Oktyabr, Inc. v. Trilini
Imports, 578 F. Supp. 2d 455 (E.D.N.Y. 2008). These cases are inapposite. “The distinction between civil and
criminal abuse of process is critical for section 1983 purposes.” Cook, 41 F.3d at 80.
. to prevent him from writing a book about their ‘nefarious lifestyle,’ to ‘silence plaintiff’s
criticism of defendants,’ to undermine his credibility, to harm his business, reputation, and
person, and to ‘extort a non-disclosure agreement.’” Id. at *8. Because he did not allege that
“the perverted operation of the process itself tended to effect the defendants’ malicious
objectives,” id., the court dismissed the claim.7
In Cornell v. Kapral, No. 09 Civ. 0387, 2011 WL 94063, at *1 (N.D.N.Y. Jan. 11, 2011),
aff’d, 483 F. App’x 590 (2d Cir. 2012), the defendant police officer allegedly took “a sudden and
personal interest in Plaintiff,” who was employed at a county juvenile detention center and also
was the owner of a retail consignment shop, after the plaintiff filed letters criticizing practices at
the center. The defendant’s investigation involved accusations of fraud and larceny, and
ultimately led to the plaintiff’s arrest. The court observed that “[w]hile certainly Plaintiff’s arrest
may have had the end result of causing him to go out of business, something [defendant] may
have been aware of,” there was insufficient evidence of improper purpose because there was no
evidence suggesting that the defendant “contacted [the plaintiff] prior to his arrest, and suggested
that, if he did something . . . he would not be arrested.” Id. at *12.8 The court concluded that
“[a]t best, Plaintiff has offered evidence of malice.” Id.
I know of no district court cases in this Circuit that hold otherwise. Cases decided in
other Circuits reveal divergent views. Compare, e.g., Di Maggio v. O'Brien, 497 F. Supp. 870,
878 (E.D. Pa. 1980) (allegations that arrests for building and zoning violations were intended to
drive decorator “out of business and out of the area” stated claim) with Magnum Towing &
Jones also stands for a proposition sometimes stated, and relied upon by defendants, that the collateral objective in
an abuse of process case must arise “after” the issuance of process. I do not rely on this proposition in deciding this
motion; I simply hold that there has been no collateral objective alleged.
Cornell involved a combined motion to dismiss and for summary judgment. The court held that plaintiff’s
allegations failed to state a claim and, in the alternative, that its evidence in opposition to the motion did not support
his claim for abuse of process.
Recovery v. City of Toledo, No. 3:04CV7671, 2007 WL 2492434, at *9 (N.D. Ohio Aug. 29,
2007) aff’d, 287 F. App’x 442 (6th Cir. 2008) (granting summary judgment for defendants where
there was no evidence of use of process as a “threat or club” (quotation omitted)). In most, if
not all, of the cases in other jurisdictions in which claims of a collateral purpose to harm a
plaintiff’s business have been sustained, there were other facts from which a court could infer
improper purpose. See, e.g., Di Maggio, 497 F. Supp. at 878 (lack of probable cause, discussed
further infra); Adrian v. Selbe, No. CIV.A. 06-0455, 2007 WL 164642, at *8 (W.D. La. Jan. 17,
2007) (involving allegations that collateral purpose was desire “to allow the plaintiffs’
government contracts to go politically influential [local] businesses”).
This seems to be a clear case in which the Second Circuit’s distinction between improper
motive and improper purpose is dispositive. Although the Complaint does not fully explain the
source of the alleged malice that defendants harbored toward plaintiff, it certainly does not allege
that they had any objective in issuing him summonses other than spite. Even if it is true that
defendants’ unwanted attention was driven by plaintiff’s prior interactions with the Precinct,
there is no allegation that defendants intended to do anything other than enforce valid local
statutes against him in a heavy-handed manner because they suspected him of criminal activity.
Moreover, plaintiff does not allege any facts that would support the inference that defendants
knew or intended – let alone had as their objective – that his business would be shut down as a
result of the three occasions on which they issued him summonses. Any criminal process issued
against a private individual necessarily causes some harm, and I see no reason to single out the
specific economic harm that befell plaintiff in this case as giving rise to an abuse of process
claim. I therefore hold that plaintiff has failed to state a claim for malicious abuse of process
because he has not alleged a collateral objective. See Savino, 331 F.3d at 76.
Even if there was a collateral objective pled in this Complaint, defendants are entitled to
qualified immunity. A government official is protected by qualified immunity if his “conduct
did not violate plaintiff’s clearly established rights, or if it would have been objectively
reasonable for the official to believe that his conduct did not violate plaintiff’s rights.” Mandell
v. Cnty. of Suffolk, 316 F.3d 368, 385 (2d Cir. 2003). The Second Circuit asks specifically
(1) whether the right in question was defined with ‘reasonable specificity’; (2) whether
the decisional law of the Supreme Court and the applicable circuit court support the
existence of the right in question; and (3) whether under preexisting law a reasonable
defendant official would have understood that his or her acts were unlawful.
Back v. Hastings On Hudson Union Free Sch. Dist., 365 F.3d 107, 129-30 (2d Cir. 2004)
(quotation omitted). First and foremost, in light of the authorities discussed above, the right to
be free from malicious abuse of process, as plaintiff would define it (i.e., to be free from criminal
process initiated by police out of a vindictive desire to harm a person’s livelihood) is not clearly
established. Defendants are entitled to qualified immunity on that basis alone.
Second, I agree with defendants that they are entitled to qualified immunity because
plaintiff has not alleged that the criminal process in question was issued without probable cause.
The Second Circuit has long recognized that probable cause is not a complete defense to
malicious abuse of process. See, e.g., Lodges 743 and 1746, Int’l Ass’n of Machinists &
Aerospace Workers, AFL-CIO v. United Aircraft Corp., 534 F.2d 422, 465 n. 85 (2d Cir. 1975).
But as one recent decision in this district has noted, and I agree, this rule is far from clearly
established. At least as of 2011, “although there was a clearly established right to be free from
malicious abuse of process . . . it was not clearly established that such a claim can exist even
when probable cause existed for the issuance of the tickets.” Mangino v. Inc. Vill. of Patchogue,
814 F. Supp. 2d 242, 247 (E.D.N.Y. 2011); accord Cornell, 2011 WL 94063, at *13.
In Mangino, Judge Bianco reviewed numerous district court decisions in this Circuit, and
one unpublished 2009 decision of the Second Circuit, the language of which suggested that
probable cause is a complete defense to the constitutional tort of abuse of process. 814 F. Supp.
2d at 250-51 (collecting cases). I agree with Judge Bianco’s conclusion that these ambiguous
statements of law most likely result from the unwarranted expansion of a more limited but
correct principle – specifically, the principle that a lack of probable cause is sometimes sufficient
evidence of a collateral objective, even though it is not necessary. See id. at 251. I also agree,
however, that “this potential explanation for the rationale behind these cases does not eviscerate
qualified immunity for officers who could have objectively relied upon these broad statements of
law by numerous courts in this Circuit.” Id.
That conclusion does not end the inquiry, however. Indeed, arguably, a reasonable police
officer in this jurisdiction, handing out summonses after the entry of my colleague’s thorough
published decision in Mangino, would have been disabused of any notion that probable cause is a
complete defense. Other judges, unfortunately, have not made the reasonable police officer’s
interpretive task any easier, continuing to issue holdings that can be read to shed doubt on the
correct rule. See, e.g., Widget v. Town of Poughkeepsie, No. 12 CIV. 3459, 2013 WL 1104273,
at *9 (S.D.N.Y. Mar. 18, 2013) (“A malicious abuse of process claim also requires intent to do
harm without excuse or justification. Probable cause negates this element.”); see also Posner v.
City of New York, No. 11 CIV. 4859, 2014 WL 185880, at *7 (S.D.N.Y. Jan. 16, 2014) (“Courts
in this Circuit appear to be divided on whether the existence of probable cause defeats a claim
for malicious abuse of process.”) (citing id.).
The Second Circuit apparently has not yet cleared things up. See Betts v. Shearman, 751
F.3d 78, 81 (2d Cir. 2014) (“We hold, first, that because arguable probable cause existed to arrest
Betts, his claims for false arrest, false imprisonment, abuse of process, and malicious prosecution
were properly dismissed.”). The Court in Betts actually based its affirmation on the fact that the
district court had “dismissed the abuse of process claim for failing to plead a ‘nefarious aim’
behind his prosecution,” id. at 82, and did not specifically address that claim again in affirming
the dismissal ruling in its entirety. But the language of the Court’s holding cited above, in a
published opinion, is sufficient to create exactly the kind of legal ambiguity that gives rise to
qualified immunity. See also Pinter v. City of New York, 448 F. App’x 99, 105-06 (2d Cir.
2011) (“declin[ing] to speculate what effect” a finding of probable cause would have on abuse of
process claim, among others, where the parties had not addressed it).
There is one final issue. Here, it is not beyond question that plaintiff has failed to plead
an absence of probable cause. For example, the Complaint makes reference to the “nonexistent
violations” that gave rise to the summonses issued to plaintiff’s barber shop. But to plead that
there was actually no violation is not the same as pleading that there was no probable cause to
believe that there was. See Fabrikant v. French, 691 F.3d 193, 217 (2d Cir. 2012). Moreover, in
response to defendants’ criticism of plaintiff’s pleading on these grounds, he does not contend
that he pled an absence of probable cause; he argues only that defendants’ mention of this
shortcoming is “irrelevant as ‘the existence of probable cause is not determinative . . . .’”
Especially in light of this concession, I find that plaintiff has failed to plead an absence of
probable cause, and that defendants are entitled to qualified immunity for this reason as well as
for plaintiff’s failure to plead a collateral objective.
Defendants’  motion for partial dismissal is granted, and plaintiffs’ claim for abuse of
process relating to the loss of James Goldring’s business is dismissed. Plaintiff asks for leave to
amend, but he has had ample opportunity to articulate a cause of action based on the original
Complaint, and has not done so, nor has he suggested what additional facts could be pled in good
faith to support a viable cause of action. His request is therefore denied. Moreover, because I
have this dismissed claim as against the individual defendants, plaintiff’s arguments with respect
to Monell liability are moot.
Digitally signed by Brian M. Cogan
Dated: Brooklyn, New York
January 12, 2014
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