16-1803
Carolyne Rios 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 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 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 Courthouse, 40 Foley Square, in the City of New York, on the 18th day of
April, two thousand seventeen.
Present:
ROBERT A. KATZMANN,
Chief Judge,
DENNIS JACOBS,
DEBRA ANN LIVINGSTON,
Circuit Judges.
________________________________________________
CAROLYNE RIOS,
Plaintiff-Appellant,
v. No. 16-1803
CITY OF NEW YORK, NEW YORK CITY POLICE
DEPARTMENT, DETECTIVE CHRISTOPHER ZAPATA,
SHIELD NO. 4835, POLICE OFFICER KNOWN AS
“UNDERCOVER OFFICER” #177, POLICE OFFICER
KNOWN AS “UNDERCOVER OFFICER” #0026,
SERGEANT CHRISTOPHER JONES, DETECTIVE
ANTHONY VIDOT, SHIELD NO. 2555, DETECTIVE
AYALA, DETECTIVE GONZALEZ, DETECTIVE
THOMPSON, SERGEANT DONALD MORGAN,
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Defendants-Appellees,
MICHELLE WARREN, NEW YORK COUNTY
ASSISTANT DISTRICT ATTORNEY, POLICE
OFFICERS JOHN DOE, 1-5, POLICE OFFICERS
JANE DOE, 1-5,
Defendants. 1
________________________________________________
For Plaintiff-Appellant: STEPHEN BERGSTEIN, Bergstein & Ullrich,
LLP, Chester, NY.
For Defendants-Appellees: ANTONELLA KARLIN, Assistant Corporation
Counsel, Of Counsel, Susan Greenberg, Of
Counsel (on the brief), for Zachary W.
Carter, Corporation Counsel of the City of
New York, New York, NY.
_______________________________________________
Appeal from the United States District Court for the Southern District of New York
(Forrest, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Plaintiff Carolyne Rios appeals the order of the United States District Court for the
Southern District of New York (Forrest, J.), entered on May 17, 2016, granting summary
judgment to defendants. We assume the parties’ familiarity with the facts and procedural history
of this case, as well as the issues on appeal.
“We review de novo a district court’s grant of summary judgment,” Mitchell v. City of
New York, 841 F.3d 72, 77 (2d Cir. 2016), affirming where “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
First, Rios appeals the district court’s grant of summary judgment to defendants on her claim of
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The Clerk of Court is respectfully directed to amend the caption to conform with the above.
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malicious prosecution. “In order to prevail on [a malicious prosecution] claim under both Section
1983 and New York State law, a plaintiff is required to demonstrate: (i) the commencement or
continuation of a criminal proceeding against her; (ii) the termination of the proceeding in her
favor; (iii) ‘that there was no probable cause for the proceeding’; and (iv) ‘that the proceeding
was instituted with malice.’” Mitchell, 841 F.3d at 79 (quoting Kinzer v. Jackson, 316 F.3d 139,
143 (2d Cir. 2003)); see Torres v. Jones, 47 N.E.3d 747, 760 (N.Y. 2016).
“Probable cause, in the context of malicious prosecution, has . . . been described as such
facts and circumstances as would lead a reasonably prudent person to believe the plaintiff
guilty.” Boyd v. City of New York, 336 F.3d 72, 76 (2d Cir. 2003). “‘[A] grand jury indictment
gives rise to a presumption that probable cause exists and a claim for malicious prosecution . . .
thereby is defeated.’” Rentas v. Ruffin, 816 F.3d 214, 220 (2d Cir. 2016) (alteration and omission
in original) (quoting McClellan v. Smith, 439 F.3d 137, 145 (2d Cir. 2006)). “[T]he presumption
may be rebutted by evidence of various wrongful acts on the part of police: ‘If plaintiff is to
succeed in his malicious prosecution action after he has been indicted, he must establish that the
indictment was produced by fraud, perjury, the suppression of evidence or other police conduct
undertaken in bad faith.’” McClellan, 439 F.3d at 145 (quoting Colon v. City of New York, 455
N.E.2d 1248, 1251 (N.Y. 1983)). “[I]t is the plaintiff who bears the burden of proof in rebutting
the presumption of probable cause that arises from the indictment.” Savino v. City of New York,
331 F.3d 63, 73 (2d Cir. 2003).
In the instant case, Rios was arrested after being indicted by a grand jury, and she has not
provided evidence sufficient to raise a triable issue of fact on the question of whether the
indictment was procured through bad faith conduct. Further, even assuming arguendo that
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probable cause could dissipate after the grand jury indictment had been filed, and that the link
between the police officers’ conduct and the continued prosecution of Rios was not broken by
the prosecutor’s exercise of independent judgment, the defendant police officers would be
entitled to qualified immunity. “Police officers are shielded from suit under § 1983 so long as
‘their conduct does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.’” Dancy v. McGinley, 843 F.3d 93, 106 (2d Cir. 2016)
(quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)). “Moreover, if ‘“officers of reasonable
competence could disagree” on the legality of the action at issue in its particular factual context,’
the officer is entitled to qualified immunity.” Id. (quoting Walczyk v. Rio, 496 F.3d 139, 154 (2d
Cir. 2007)). “In other words, ‘qualified immunity protects “all but the plainly incompetent or
those who knowingly violate the law.”’” Id. (quoting Mullenix v. Luna, 136 S. Ct. 305, 308
(2015) (per curiam)).
“Freedom from malicious prosecution is a constitutional right that has long been clearly
established.” Kinzer, 316 F.3d at 143. However, in the instant case, the “defendant officers’
probable cause determination was objectively reasonable.” Betts v. Shearman, 751 F.3d 78, 83
(2d Cir. 2014). In light of the similarities between the appearances of Rios and “JD Paw” (the
name given by the police to the female participant in the relevant gun sale), as well as Rios’s
prior connection to co-defendant Sentell Smith, it would not have been unreasonable for an
officer to form the belief that probable cause supported Rios’s prosecution, even after her arrest.
Consequently, we find that defendants are entitled to qualified immunity, and we affirm the
district court’s grant of summary judgment to defendants on Rios’s malicious prosecution claim.
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Second, Rios appeals the district court’s grant of summary judgment to defendants on her
claim of abuse of process. “[A] malicious abuse of process 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 or justification, and (3) in order to obtain a collateral
objective that is outside the legitimate ends of the process.” Cook v. Sheldon, 41 F.3d 73, 80 (2d
Cir. 1994). Here, Rios has provided insufficient evidence to create a triable issue of material fact
as to whether defendants, in prosecuting Rios, sought “to obtain a collateral objective.” Id.
Further, the defendant police officers are “entitled to summary judgment on qualified immunity
grounds with respect to” the abuse of process claim. Savino, 331 F.3d at 78. As a result, we
affirm the district court’s grant of summary judgment to defendants on Rios’s abuse of process
claim.
We have considered all of Rios’s remaining arguments and have found in them no basis
for reversal. Accordingly, the judgment of the district court is AFFIRMED.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK
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