10-1069
Pacicca v. Stead
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
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 14th day of November, two thousand eleven.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 ROBERT D. SACK,
9 REENA RAGGI,
10 Circuit Judges.
11
12 - - - - - - - - - - - - - - - - - - - -X
13 THOMAS PACICCA,
14 Plaintiff-Apellant,
15
16 -v.- 10-1069
17
18 JAMES STEAD, BRIAN ROBBINS, POLICE OFFICER, MICHAEL HANNON,
19 POLICE OFFICER, LAVELLE LARRIER, POLICE OFFICER, ANDREW
20 BLACK, POLICE OFFICER, PATRICK OGERRI, POLICE OFFICER, CITY
21 OF WHITE PLAINS,
22 Defendants-Appellees,
23
24 FRANK VESSA, POLICE OFFICER,
25 Defendant.
26
27 - - - - - - - - - - - - - - - - - - - -X
1
1
2 FOR APPELLANT: Eugene B. Nathanson, New York,
3 New York.
4
5 FOR APPELLEES: Joseph J. Gulino, Nicoletti
6 Gonson Spinner & Owen, LLP, New
7 York, New York (Counsel for
8 James Stead).
9
10 Joseph A. Maria, White Plains,
11 New York (Counsel for Brian
12 Robbins, Michael Hannon, Lavelle
13 Larrier, Frank Vessa, Andrew
14 Black, Patrick Ogerri, and City
15 of White Plains).
16
17 Appeal from a judgment of the United States District
18 Court for the Southern District of New York (Seibel, J.).
19
20 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
21 AND DECREED that the judgment of the district court be
22 AFFIRMED.
23
24 Thomas Pacicca appeals from a judgment entered
25 following a jury trial in the United States District Court
26 for the Southern District of New York. We assume the
27 parties’ familiarity with the underlying facts, the
28 procedural history, and the issues presented for review.
29
30 Pacicca alleged false arrest and malicious prosecution
31 under 42 U.S.C. § 1983 as well as state malicious
32 prosecution claims against White Plains police officers who
33 arrested him, the City of White Plains (invoking the
34 doctrine of respondeat superior), and the neighbor who had
35 lodged criminal complaints against him.
36
37 [1] Claims Against Police Officers. The White Plains police
38 officers were entitled to summary judgment based on
39 qualified immunity. An officer is entitled to qualified
40 immunity if arguable probable cause exists, meaning “either
41 (a) it was objectively reasonable for the officer to believe
42 that probable cause existed, or (b) officers of reasonable
43 competence could disagree on whether the probable cause test
44 was met.” Escalera v. Lunn, 361 F.3d 737, 743 (2d Cir.
45 2004) (quoting Golino v. City of New Haven, 950 F.2d 864,
46 870 (2d Cir. 1991)).
47
2
1 Pacicca’s July 30 and August 28, 2004 arrests concerned
2 his damage to a margin of grass separating the property of
3 his neighbor, James Stead, from the road. Stead called
4 police reporting damage to his property. Pacicca argues
5 that there could be no probable cause for acting on the
6 complaints because the property was owned by the City of
7 White Plains, not Stead; but that distinction does not
8 negate arguable probable cause. As to the July 30 arrest, a
9 reasonable officer could believe that a person repeatedly
10 moving rocks from city property gives rise to probable cause
11 to arrest and prosecute that person for criminal tampering.1
12 As to the August 28 arrest, a reasonable officer could
13 believe that when a person repeatedly drives his car over a
14 curb onto city property, there is probable cause to arrest
15 and prosecute for violating an order of protection issued
16 because the person had previously engaged in similar
17 conduct.
18
19 Pacicca was arrested for cursing at Stead on December
20 23, 2004. Pacicca admits that he cursed (his rant was
21 videotaped), but argues that he was not addressing Stead,
22 who (Pacicca contends) was inside his own house at the time.
23 A reasonable officer could nonetheless believe that there
24 was probable cause to arrest Pacicca for violating an order
25 of protection protecting Stead--particularly since their
26 houses were the only ones in the immediate vicinity.
27
28 [2] Claims Against Stead. The district court did not err in
29 granting summary judgment in Stead’s favor on all the § 1983
30 claims and on the state malicious prosecution claim arising
31 out of Pacicca’s August 28, 2004 arrest. To support a claim
32 against a private party on a § 1983 conspiracy theory, a
33 plaintiff must show “(1) an agreement between a state actor
1
“A person is guilty of criminal tampering in the
third degree when, having no right to do so nor any
reasonable ground to believe that he has such right, he
tampers with property of another person with intent to cause
substantial inconvenience to such person or to a third
person.” N.Y. PENAL LAW § 145.14 (McKinney 2010). We need
not analyze probable cause for the other two charges for
which Pacicca was arrested on July 30 because probable cause
for any crime is a defense to false arrest, Brown v. Kelly,
609 F.3d 467, 484 (2d Cir. 2010), and because Pacicca’s
malicious prosecution claims for the other charges proceeded
to trial.
3
1 and a private party; (2) to act in concert to inflict an
2 unconstitutional injury; and (3) an overt act done in
3 furtherance of that goal causing damages.” Ciambriello v.
4 County of Nassau, 292 F.3d 307, 324-25 (2d Cir. 2002).
5 Pacicca presents no evidence that Stead entered a
6 conspiracy with White Plains police. To defeat a motion for
7 summary judgment, “[t]he non-moving party may not rely on
8 conclusory allegations or unsubstantiated speculation.”
9 Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998).
10
11 To prevail on a claim of malicious prosecution, a
12 plaintiff must prove “(1) the initiation of a proceeding,
13 (2) its termination favorably to plaintiff, (3) lack of
14 probable cause, and (4) malice.” Colon v. City of New York,
15 60 N.Y.2d 78, 82 (1983). “[E]ven if a civilian complainant
16 is ultimately incorrect in his belief as to whether a person
17 is committing a crime, he need only have had a reasonable
18 basis for this belief in order to have the probable cause
19 necessary to defeat a malicious prosecution or false arrest
20 claim.” TADCO Const. Corp. v. Dormitory Auth., 700 F. Supp.
21 2d 253, 275 (E.D.N.Y. 2010) (citing Williams v. Town of
22 Greenburgh, 535 F.3d 71, 78-79 (2d Cir. 2008)).
23
24 Given the order of protection prohibiting Pacicca from
25 harassing Stead, it was reasonable for Stead to believe that
26 the repeated encroachment of Pacicca’s car over the curb
27 constituted a crime. Even though Stead did not own the
28 property onto which Pacicca drove, he was responsible for
29 its maintenance, so was harmed by damage done.
30
31 [3] Jury Instructions. The jury was charged that “[t]he
32 exercise of independent judgment by the public prosecutor
33 and his active role in initiating the criminal prosecution
34 may break the chain of causation between the officer’s
35 actions and the criminal prosecution”--with the caveat that
36 “if the public prosecutor relies on information conveyed by
37 the officer that the officer knows is false and has no other
38 independent basis for prosecuting the case, the officer is
39 liable for causing the prosecution.” Pacicca argues that
40 the charge was erroneous. “[G]enerally in malicious
41 prosecution actions alleging that a police officer provided
42 false information to a prosecutor, what prosecutors do
43 subsequently has no effect whatsoever on the police
44 officer’s initial, potentially tortious behavior.” Cameron
45 v. City of New York, 598 F.3d 50, 63 (2d Cir. 2010); see
46 also Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 130 (2d
47 Cir. 1997) (“[A] jury could clearly find that [the police
4
1 officer] started the assault prosecution because no one
2 disputes that he started the prosecution by filing the
3 charges of second-degree assault.”). Here, however, the
4 prosecutor testified that he consulted with Stead and
5 independently decided to prosecute. The charge was sound.
6
7 Pacicca also challenges the instruction on the element
8 of malice, arguing that absence of probable cause should
9 suffice to support an inference of malice. “[M]alice does
10 not have to be actual spite or hatred, but means only ‘that
11 the defendant must have commenced the criminal proceeding
12 due to a wrong or improper motive, something other than a
13 desire to see the ends of justice served.’” Lowth v. Town
14 of Cheektowaga, 82 F.3d 563, 573 (2d Cir. 1996) (citation
15 omitted). “[P]robable cause to initiate a criminal
16 proceeding may be so totally lacking as to reasonably permit
17 an inference that the proceeding was maliciously instituted.
18 Hence, a jury may, but is not required to, infer the
19 existence of actual malice from the fact that there was no
20 probable cause to initiate the proceeding.” Martin v. City
21 of Albany, 42 N.Y.2d 13, 17 (1977).
22
23 The jury instructions closely tracked these precedents.
24 The jury was informed that malice is established if the
25 plaintiff proves by a preponderance of the evidence that the
26 defendant “commenced criminal proceedings for a wrong or
27 improper motive; that is, something other than a desire to
28 see the ends of justice served” and that it could find
29 malice if probable cause was “so lacking that it tends to
30 show the defendant did not believe that plaintiff was guilty
31 of a particular crime” or if the defendant “lacked any
32 reasonable grounds to believe that plaintiff was guilty.”
33
34 Finding no merit in Pacicca’s remaining arguments, we
35 hereby AFFIRM the judgment of the district court.
36
37
38 FOR THE COURT:
39 CATHERINE O’HAGAN WOLFE, CLERK
40
5