15‐170‐cv
Arrington v. City of New York
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 15th day of October, two thousand fifteen.
PRESENT: ROBERT D. SACK,
DENNY CHIN,
CHRISTOPHER F. DRONEY,
Circuit Judges.
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STEPHEN ARRINGTON,
Plaintiff‐Appellant,
v. 15‐170‐cv
CITY OF NEW YORK, JOSEPH GAROFALO, New York
City Police Officer, individually and in his official
capacity,
Defendants‐Appellees.
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FOR PLAINTIFF‐APPELLANT: DAMOND J. CARTER, Carter & Associate
Attorneys, New York, New York.1
FOR DEFENDANTS‐APPELLEES: SUSAN PAULSON, Richard Dearing, Assistant
Corporation Counsel, for Zachary W. Carter,
Corporation Counsel of the City of New York,
New York, New York.
Appeal from the United States District Court for the Eastern District of
New York (Ross, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.
Plaintiff‐appellant Stephen Arrington appeals from a judgment entered in
the United States District Court for the Eastern District of New York dismissing his 42
U.S.C. § 1983 claims against defendants‐appellees Joseph Garofalo (a New York City
Police Officer) and the City of New York (the ʺCityʺ). By opinion and order filed
December 22, 2014, the district court granted defendantsʹ motion to dismiss Arringtonʹs
complaint for failure to state a claim upon which relief can be granted. We assume the
partiesʹ familiarity with the underlying facts, the procedural history of this case, and the
issues on appeal.
1 By letter submitted 11:40 p.m. the night before oral argument, Mr. Carter advised
the Court that ʺAppellant will forego argument on this appeal.ʺ Of course, once oral argument
has been scheduled, as in this case, counsel cannot simply elect to forego argument. He must
seek permission of the Court to do so. Oral argument is not only for the benefit of the parties,
but also for the benefit of the Court. Moreover, the Court and opposing counsel had prepared
for argument. Mr. Carterʹs actions were both inconsiderate and inappropriate.
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On October 20, 2013, Arrington, a former corrections officer who was
licensed to carry a concealed weapon, was arrested by Garofalo in Queens, New York,
following an incident in which Arrington shot someone purportedly in self‐defense.
The charges were eventually dismissed. The City nevertheless revoked Arringtonʹs gun
permit. Arrington commenced this action below, alleging claims of false arrest,
malicious prosecution, malicious abuse of process, fabrication of evidence, emotional
distress, and violation of the Second Amendment. The district court granted
defendantsʹ motion to dismiss the complaint. On appeal, Arrington argues that the
district court improperly dismissed the false arrest, malicious prosecution, and abuse of
process claims against Garofalo and the municipal liability claims against the City.
We review de novo a district courtʹs dismissal of a complaint for failure to
state a claim upon which relief can be granted, ʺaccepting all factual claims in the
complaint as true, and drawing all reasonable inferences in the plaintiffʹs favor.ʺ
Famous Horse Inc. v. 5th Ave. Photo Inc., 624 F.3d 106, 108 (2d Cir. 2010). The complaint
must include ʺenough facts to state a claim to relief that is plausible on its face,ʺ Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007), and ʺallow[] the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged,ʺ Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009).
We address in turn Arringtonʹs arguments that the district court erred in
dismissing: (1) the false arrest and malicious prosecution claims against Garofalo, (2)
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the malicious abuse of process claim against Garofalo, and (3) the municipal liability
claims against the City.
1. False Arrest and Malicious Prosecution
The parties dispute whether Garofalo had probable cause to arrest
Arrington. The district court concluded that probable cause existed and dismissed the
false arrest and malicious prosecution claims because probable cause is a complete
defense to these claims. See Stansbury v. Wertman, 721 F.3d 84, 89, 94 (2d Cir. 2013). We
need not decide whether there was probable cause, however, and affirm the district
court on grounds not raised below.2 On the facts alleged in the complaint, even if
Garofalo lacked probable cause to arrest Arrington, he was entitled to qualified
immunity as a matter of law.3
Qualified immunity protects public officials from liability where either
ʺ(a) the defendantʹs action did not violate clearly established law, or (b) it was
objectively reasonable for the defendant to believe that his action did not violate such
law.ʺ Garcia v. Does, 779 F.3d 84, 92 (2d Cir. 2015) (internal quotation marks omitted).
ʺThe relevant, dispositive inquiry in determining whether a right is clearly established
2 On an appeal of a Rule 12(b)(6) dismissal, ʺ[i]t is well settled that we may affirm
on any grounds for which there is a record sufficient to permit conclusions of law, including
grounds not relied upon by the district court.ʺ Steginsky v. Xcelera Inc., 741 F.3d 365, 369 (2d Cir.
2014) (internal quotation marks omitted).
3 Qualified immunity may be established by facts alleged in a complaint and
resolved on a Rule 12(b)(6) motion to dismiss. See Wood v. Moss, 134 S. Ct. 2056, 2070 (2014).
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is whether it would be clear to a reasonable officer that his conduct was unlawful in the
situation he confronted.ʺ Id. at 92 (citing Saucier v. Katz, 533 U.S. 194, 202 (2001)).
For false arrest and malicious prosecution claims, an officerʹs probable
cause determination is ʺobjectively reasonableʺ provided there was ʺarguableʺ probable
cause. Jenkins v. City of N.Y., 478 F.3d 76, 87 (2d Cir. 2007). ʺArguable probable cause [to
arrest] exists if either (a) it was objectively reasonable for the officer to believe that
probable cause existed, or (b) officers of reasonable competence could disagree on
whether the probable cause test was met.ʺ Zalaski v. City of Hartford, 723 F.3d 382, 390
(2d Cir. 2013) (internal quotation marks omitted). Arguable probable cause to charge
exists where, accounting for any new information learned subsequent to an arrest, ʺit
was not manifestly unreasonable for [the defendant officer] to charge [the plaintiff].ʺ
Lowth v. Town of Cheektowaga, 82 F.3d 563, 572 (2d Cir. 1996).
Here, Arrington admitted to shooting someone. This admission, in the
absence of his self‐defense claim, would clearly establish probable cause. The extent to
which a police officer must credit a self‐defense claim in establishing probable cause is
not clearly established, and depends on the facts and circumstances of each arrest.
While a police officer cannot ʺdisregard plainly exculpatory evidenceʺ when
establishing probable cause, Panetta v. Crowley, 460 F.3d 388, 395 (2d Cir. 2006), if he has
a reasonable basis for believing there is probable cause, he is not required to consider
plausible defenses offered by a suspect prior to making an arrest. Jocks v. Tavernier, 316
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F.3d 128, 135‐36 (2d Cir. 2003). Given this uncertainty, Garofaloʹs decision to arrest was
not unreasonable. See Garcia, 779 F.3d at 93 (an officer has probable cause to arrest
where facts establishing defense are not ʺso clearly apparent to the officers on the scene
as a matter of fact, that any reasonable officer would have appreciated that there was no
legal basis for arresting plaintiffsʺ). While Arringtonʹs self‐defense claim was plausible,
on the facts alleged in the complaint, including the absence of witnesses to corroborate
the self‐defense claim, we conclude that at a minimum, officers of reasonable
competence could disagree on whether the probable cause test was met. Accordingly,
Garofalo is entitled to qualified immunity on both claims.
2. Malicious Abuse of Process
To plead malicious abuse of process, a plaintiff must show that defendant
ʺ(1) employ[ed] regularly issued legal process to compel performance or forbearance of
some act, (2) with the intent to do harm without excuse o[r] justification, and (3) in
order to obtain a collateral objective that is outside the legitimate ends of the process.ʺ
Savino v. City of N.Y., 331 F.3d 63, 76 (2d Cir. 2003) (internal quotation marks omitted).
The collateral objective element requires an allegation that the defendant ʺaimed to
achieve a collateral purpose beyond or in addition to . . . criminal prosecution,ʺ and
therefore it is ʺnot sufficient for a plaintiff to allege that the defendants were seeking to
retaliate against him by pursuing his arrest and prosecution.ʺ Id. at 77.
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Arringtonʹs complaint does not plausibly allege a collateral objective. His
assertion that Garofalo commenced prosecution to punish him for exercising his right to
bear arms is a mere allegation of a retaliation motive, not a collateral objective.
Moreover, on the facts alleged, including Arringtonʹs admission that he shot someone, it
is not plausible that Garofalo arrested him for exercising his right to bear arms. For this
reason, we affirm the district courtʹs dismissal of Arringtonʹs malicious abuse of process
claim against Garofalo.
3. Municipal Liability
In Monell v. Department of Social Services of the City of New York, 436 U.S. 658
(1978), the Supreme Court held that a municipality cannot be liable under § 1983 solely
on a theory of respondeat superior. A municipality may be liable under § 1983 when
there is a deprivation of a constitutional right, provided that such deprivation results
from an action pursuant to an official municipal policy. Id. at 690‐91.
Arringtonʹs municipal liability claims were properly dismissed by the
district court because he has made no colorable argument that such violations were
attributable to a municipal policy. Arrington argues that the City is liable for malicious
prosecution, malicious abuse of process, and a violation of his Second Amendment right
to bear arms. He did not plead any facts in his complaint, however, that would support
a finding that these alleged violations resulted from a municipal policy.
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We have reviewed Arringtonʹs 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
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