16-915
Coleman v. City of New York, et al.
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.
1 At a stated term of the United States Court of Appeals for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 21st day of April, two thousand seventeen.
5
6 PRESENT: JOHN M. WALKER, JR.,
7 DENNIS JACOBS,
8 BARRINGTON D. PARKER,
9 Circuit Judges.
10
11 - - - - - - - - - - - - - - - - - - - -X
12
13 VINCENT COLEMAN,
14 Plaintiff–Appellant,
15
16 -v.- 16-915
17
18 THE CITY OF NEW YORK, POLICE OFFICER
19 MELISSA D. LENTO, POLICE OFFICER
20 MARGARET MERENDINO,
21 Defendants–Appellees.*
22
23 - - - - - - - - - - - - - - - - - - - -X
24
* The Clerk of Court is respectfully directed to amend
the official caption to conform with the above.
1
1 FOR PLAINTIFF-APPELLANT: MICHAEL P. MANGAN; Mangan Ginsberg
2 LLP, New York, NY.
3
4 FOR DEFENDANTS-APPELLEES: MAX O. MCCANN, Fay Ng for Zachary
5 W. Carter, Corporation Counsel fo
6 the City of New York.
7
8
9 Appeal from the judgment of the United States District Court
10 for the Eastern District of New York (Vitaliano, J.).
11 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND
12 DECREED that the judgment of the district court be AFFIRMED.
13
14 Vincent Coleman appeals from the judgment of the district
15 court (Vitaliano, J.) dismissing his claim for malicious
16 prosecution brought under 42 U.S.C. § 1983. We assume the
17 parties’ familiarity with the underlying facts, the procedural
18 history, and the issues presented for review.
19 In January 2009, Vincent Coleman was pulled over by officers
20 Margaret Merendino and Melissa Lento for failing to yield to
21 oncoming traffic while making a left turn. The details of his
22 interaction with the officers at the stop are unclear and some
23 are disputed; but it is undisputed that Coleman identified
24 himself as a retired officer, that the exchange became
25 contentious, that Coleman told Officer Merendino to call a
26 supervisor, and that Coleman abruptly drove away when he believed
27 Merendino was “stalling” him. According to Officer Merendino,
28 the side mirror on Coleman’s car struck her as Coleman drove
29 away, knocking her to the ground. (Officer Lento corroborates
30 Merendino’s account, but whether she was in a position to see
31 is disputed.) Merendino and Lento returned to their patrol car
32 and followed Coleman with their lights and sirens on. Coleman
33 stopped again several blocks away. Merendino and Lento waited
34 for a sergeant to arrive, and then Coleman was arrested.
35 Coleman was charged with two counts of assault in the second
36 degree (one count for the use of a deadly instrument--his
37 vehicle--and one count because the alleged victim was a police
38 officer); one count of assault in the third degree; one count
39 of obstructing governmental administration; one count of
40 unlawful fleeing of a police officer in the third degree; one
2
1 count of reckless endangerment in the second degree; one count
2 of reckless driving; three violations for failure to obey traffic
3 signals; and one violation for speeding. The day after his
4 arrest, Coleman was arraigned and released without bail. A few
5 months later, in May 2009, the prosecutor moved to dismiss the
6 two second-degree assault counts (which were the only felony
7 counts). The reasons the prosecutor stated on the record were
8 that this was Coleman’s first arrest, Officer Merendino was not
9 seriously injured, and the complainant was amenable to
10 dismissal. The other non-traffic criminal counts were
11 dismissed on speedy trial grounds in December 2010. The traffic
12 offenses (including misdemeanor reckless driving) remained
13 until Coleman accepted an adjournment in contemplation of
14 dismissal (“ACD”) in January 2011.
15 Coleman filed this suit against the officers; relevant to
16 this appeal, he pleaded claims of malicious prosecution under
17 42 U.S.C. § 1983. The district court granted summary judgment
18 in favor of the defendants, ruling that the malicious prosecution
19 claims failed because the officers had probable cause to bring
20 the charges. On appeal, we affirmed in part but vacated the
21 dismissal with respect to malicious prosecution on the assault
22 charges. 585 F. App’x 787 (2d Cir. 2014). We concluded that
23 the malicious prosecution claims were properly dismissed with
24 respect to the other charges because “there indisputably was
25 probable cause” for them; but, because Coleman denied striking
26 Merendino with his mirror, the existence of probable cause for
27 the assault charges turned on a disputed issue of fact. Id. at
28 788-89. We remanded for further proceedings solely on a claim
29 of malicious prosecution for the assault charges.
30 On remand, defendants moved in limine to dismiss the
31 malicious prosecution claim on the grounds that (1) Coleman did
32 not receive a favorable termination of the two counts of assault
33 that the prosecutor moved to dismiss, and (2) even though there
34 was a favorable termination in the misdemeanor assault due to
35 a speedy trial dismissal, Coleman could not show an independent
36 deprivation of liberty resulting from the prosecution of any
37 of the assault charges. With notice to Coleman, the district
38 court converted the motion to a summary judgment motion and
39 granted it. Coleman brought the instant appeal.
3
1 We review the district court’s grant of summary judgment
2 de novo, drawing all inferences in favor of the non-moving party.
3 Young v. Cty. of Fulton, 160 F.3d 899, 901, 902 (2d Cir. 1998).
4 The elements of malicious prosecution under § 1983 are
5 “substantially the same” as the elements under New York law,
6 and “the analysis of the state and the federal claims is
7 identical.” Boyd v. City of N.Y., 336 F.3d 72, 75 (2d Cir. 2003)
8 (quotation marks omitted). “To establish a malicious
9 prosecution claim under New York law, a plaintiff must prove
10 (1) the initiation or continuation of a criminal proceeding
11 against plaintiff; (2) termination of the proceeding in
12 plaintiff’s favor; (3) lack of probable cause for commencing
13 the proceeding; and (4) actual malice as a motivation for
14 defendant’s actions.” Manganiello v. City of N.Y., 612 F.3d
15 149, 161 (2d Cir. 2010) (internal quotation marks omitted).
16
17 Because a malicious prosecution claim brought under § 1983
18 is grounded in the Fourth Amendment, see Albright v. Oliver,
19 510 U.S. 266, 274-75 (1994), the plaintiff must also establish
20 another element in addition to the state tort requirements: a
21 post-arraignment1 deprivation of liberty that rises to the level
22 of a constitutional “seizure.” See id.; Singer v. Fulton County
23 Sheriff, 63 F.3d 110, 116 (2d Cir. 1995).
24
25 Coleman fails to show such a seizure, so we need not consider
26 favorable termination. Since Coleman was released without bail
27 after his arraignment, the only post-arraignment deprivation
28 of liberty he suffered was the ongoing requirement of appearing
29 in court (more than a dozen times over two years). That might
30 be sufficient, see Rohman v. N.Y.C. Transit Auth., 215 F.3d 208,
31 215-16 (2d Cir. 2000), except that it is not solely attributable
32 to the assault charges, which are the only remaining charges
33 for which Coleman could have a malicious prosecution claim.
1
The tort of malicious prosecution relates to deprivations of liberty
pursuant to legal process--meaning either post-arraignment or as a
result of arrest pursuant to warrant. Deprivations of liberty from
the moment of warrantless arrest until arraignment are not pursuant
to legal process, and therefore implicate the separate tort of false
arrest. Singer v. Fulton Cty. Sheriff, 63 F.3d 110, 116-17 (2d Cir.
1995).
4
1 Even if the assault charges had never been, Coleman still would
2 have had the obligation to appear on account of the other criminal
3 charges (which cannot support a malicious prosecution claim,
4 because they were indisputably supported by probable cause) and
5 the traffic code violations (which cannot support a malicious
6 prosecution claim because they were terminated unfavorably to
7 Coleman by ACD). It is Coleman’s burden to show a
8 post-arraignment deprivation of liberty that resulted from the
9 prosecution that he alleges was unsupported by probable cause;
10 he has not sustained it.
11 Accordingly, and finding no merit in appellant’s other
12 arguments, we hereby AFFIRM the judgment of the district court.
13 FOR THE COURT:
14 CATHERINE O’HAGAN WOLFE, CLERK
5