21-214-cv
Jessamy v. Jakasal
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 ASUMMARY 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 United States Courthouse, 40 Foley Square, in the
City of New York, on the 26th day of May, two thousand twenty-two.
PRESENT:
DENNY CHIN,
RICHARD J. SULLIVAN,
STEVEN J. MENASHI,
Circuit Judges.
_____________________________________
CARLOS JESSAMY,
Plaintiff-Appellant,
v.
No. 21-214
DAVEY JAKASAL, Shield No. 0067, JASON
FROATZ, TJX COMPANIES, INC., TOWN OF
GREENBURGH,
Defendants-Appellees.*
_____________________________________
* The Clerk of Court is respectfully directed to amend the official caption as set forth above.
FOR PLAINTIFF-APPELLANT: Carlos Jessamy, pro se, Albion,
NY.
FOR DEFENDANTS-APPELLEES: Thomas J. Troetti, Law Offices
of Thomas J. Troetti, White
Plains, NY, for Davey Jakasal.
Michael Prisco, McAndrew,
Conboy & Prisco LLP, Melville
NY, for Jason Froatz and TJX
Companies, Inc.
Appeal from a judgment of the United States District Court for the Southern
District of New York (Paul E. Davison, Magistrate Judge.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is
AFFIRMED.
In 2017, Carlos Jessamy, incarcerated and proceeding pro se, sued the Town
of Greenburgh; Officer Davey Jakasal, a Greenburgh police officer; TJX
Companies, Inc. (“TJX”); and Jason Froatz, a loss-prevention officer at a TJX store
in White Plains, New York. 1 He alleged false arrest and malicious prosecution
1TJX Companies, Inc., was incorrectly sued as “T.J. Maxx Department Store.” Supp. App’x at
582 n.1. Jessamy also originally sued the Greenburgh Police Department (“GPD”), but the
district court dismissed claims against GPD as an “unsuable entity” and added the Town of
Greenburgh as a defendant instead under Federal Rule of Civil Procedure 21. Dist. Ct. Doc. No.
10.
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claims under 42 U.S.C. § 1983 and New York state law arising out of his March 16,
2015 arrest and prosecution for four larcenies from TJX stores – two in February
2015 and two in March 2015. Jessamy was convicted of charges arising out of the
March 2015 incidents, but the charges related to the February 2015 incidents were
dismissed. After the parties consented to proceed before a magistrate judge, the
defendants moved for summary judgment on Jessamy’s amended complaint.
The district court granted summary judgment in favor of Defendants,
determining that the false arrest claims against Officer Jakasal failed because
Jessamy had been convicted of charges for which he was arrested, and the
malicious prosecution claims against Officer Jakasal failed because they were
premised on charges for which Jessamy was convicted, and Officer Jakasal had
probable cause to initiate the other charges. The court also concluded that the
malicious prosecution claims against TJX and Froatz failed because those parties
did nothing more than furnish information about the thefts to Officer Jakasal, who
then exercised his own judgment in initiating prosecution. We assume the
parties’ familiarity with the underlying facts, the procedural history of the case,
and the issues on appeal.
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We review a grant of summary judgment de novo, “resolv[ing] all
ambiguities and draw[ing] all inferences against the moving party.” Garcia v.
Hartford Police Dep’t, 706 F.3d 120, 126–27 (2d Cir. 2013). “Summary judgment is
proper only when, construing the evidence in the light most favorable to the
non-movant, ‘there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.’” Doninger v. Niehoff, 642 F.3d 334, 344
(2d Cir. 2011) (quoting Fed. R. Civ. P. 56(a)). However, a party cannot defeat a
motion for summary judgment with “conclusory allegations or unsubstantiated
speculation.” Fujitsu Ltd. v. Fed. Express Corp., 247 F.3d 423, 428 (2d Cir. 2001)
(internal quotation marks omitted).
I. False Arrest Claims Against Officer Jakasal
The district court did not err in granting summary judgment to Officer
Jakasal as to the false arrest claims. Under both section 1983 and New York law,
an arresting officer can avoid liability on a claim of false arrest by demonstrating
that he had probable cause for the arrest. Simpson v. City of New York, 793 F.3d
259, 265 (2d Cir. 2015). A plaintiff “can under no circumstances recover” for false
arrest “if he was convicted of the offense for which he was arrested.” Cameron v.
Fogarty, 806 F.2d 380, 387 (2d Cir. 1986). Here, Jessamy was convicted on charges
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arising from the March 2015 incidents, so he cannot recover on a claim for false
arrest. See id. at 388–89. It is irrelevant that the charges arising out of the
February 2015 incidents were dismissed because a claim for false arrest “turns only
on whether probable cause existed to arrest a defendant,” not whether “probable
cause existed with respect to each individual charge.” Jaegly v. Couch, 439 F.3d
149, 154 (2d Cir. 2006).
II. Malicious Prosecution Claims Against Officer Jakasal
The district court also properly granted summary judgment on Jessamy’s
claims of malicious prosecution based on Officer Jakasal’s initiation of criminal
proceedings stemming from the February and March 2015 incidents.
With respect to the claims based on the March 2015 incidents, the record is
clear that Jessamy was convicted of all but one charge stemming from that
conduct. But to succeed on a claim for malicious prosecution, Jessamy must
demonstrate, among other things, that “his prosecution ended without a
conviction.” Thompson v. Clark, 142 S. Ct. 1332, 1335 (2022); see also Cameron, 806
F.2d at 387. He therefore cannot base his malicious prosecution claims on any
charges for which he was convicted.
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Moreover, as with claims for false arrest, “[t]he existence of probable cause
is a complete defense to a claim of malicious prosecution.” Manganiello v. City of
New York, 612 F.3d 149, 161–62 (2d Cir. 2010) (internal quotation marks and
alterations omitted). Although Jessamy was acquitted of one charge related to
the March 2015 events – aggravated unlicensed operation of a motor vehicle – he
was still indicted on that charge, and “indictment by a grand jury creates a
presumption of probable cause.” Id. at 162 (internal quotation marks omitted).
“That presumption may be rebutted only by evidence that the indictment was
procured by fraud, perjury, the suppression of evidence or other police conduct
undertaken in bad faith.” Id. (internal quotation marks omitted). Jessamy has
not offered any evidence, aside from his own speculation, that the grand jury
indictment was procured by fraud, perjury, suppression of evidence, or bad faith.
“[U]nsubstantiated speculation,” however, cannot defeat a motion for summary
judgment. Fujitsu, 247 F.3d at 428 (internal quotation marks omitted).
The district court was also justified in granting summary judgment on the
malicious prosecution claims stemming from the February 2015 charges. Even
though those charges were ultimately dismissed, there can be no doubt that Officer
Jakasal had probable cause to believe Jessamy committed those crimes. Officer
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Jakasal had ample evidence in support of the charges, including: (1) statements
from TJX employees expressing their beliefs that Jessamy was involved in the
February and March incidents; (2) a description of the suspect’s attire as a dark
sweatshirt and dark jogging pants with white stripes, based on TJX’s March
surveillance videos; and (3) photos posted on a Facebook page believed to belong
to Jessamy, in which he wore clothing similar to that described. Similar clothing
was also eventually found in the minivan that Jessamy was driving when he was
arrested. Most significantly, Officer Jasakal recognized Jessamy as the same
person in the Facebook photos and in the March surveillance videos. These facts
were “sufficient to warrant a person of reasonable caution in the belief that the
person to be arrested ha[d] committed . . . a crime.” Hernandez v. United States,
939 F.3d 191, 199 (2d Cir. 2019) (internal quotation marks omitted).
To be sure, Jessamy disputed several of the above facts before the district
court. But besides his conclusory allegations that Greenburgh police officers
joined TJX employees to “doctor” evidence against him, Jessamy provided no
evidence demonstrating that Officer Jakasal or anyone else lied about the facts
detailed above. Jessamy merely asserted that the affidavits submitted by Officer
Jakasal and others were inaccurate, and that the people involved in his arrest had
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lied or committed perjury. Factual disputes, however, are “not created by a mere
allegation in the pleadings, nor by surmise or conjecture.” DeFabio v. E. Hampton
Union Free Sch. Dist., 623 F.3d 71, 81 (2d Cir. 2010) (internal quotation marks
omitted).
On appeal, Jessamy primarily contends that the district court improperly
considered surveillance videos of the February incidents. But the magistrate
judge explicitly did not consider these videos in his analysis, nor have we
considered them in our analysis here. Ultimately, Jessamy fails to provide the
kind of “specific facts showing the existence of genuine issues warranting a trial”
required to defeat a motion for summary judgment. McKenna v. Wright, 386 F.3d
432, 436 (2d Cir. 2004).
III. Malicious Prosecution Claims Against TJX and Froatz
Finally, the district court properly granted summary judgment on Jessamy’s
malicious prosecution claims against TJX and Froatz. To establish a malicious
prosecution claim against a private party, a plaintiff must show that the party did
“more than merely report a crime to the police and cooperate in its prosecution.”
Moorhouse v. Standard, N.Y., 997 N.Y.S.2d 127, 132 (1st Dep’t 2014) (internal
quotation marks omitted). Instead, the private party must have “affirmatively
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induced the officer to act, such as taking an active part in the arrest . . . to the point
where the officer is not acting of his own volition.” Id. (internal quotation marks
omitted).
Although Jessamy alleged that TJX and Froatz worked with the Greenburgh
police officers to arrest and prosecute him, he offers no evidence in support of
these conclusory allegations. Jessamy testified in his deposition that a TJX
manager stated something like “get him” or “arrest him” right before Jessamy was
arrested, but he also testified that no one other than the police officers was directly
involved in his arrest. He also argues that the police officers failed to conduct an
independent investigation and instead relied on false information provided by TJX
employees. But again, Jessamy provided no evidence to support this contention.
Jessamy therefore failed to proffer any evidence establishing TJX and Froatz’s
liability.
IV. Conclusion
We have considered all of Jessamy’s arguments and find them to be without
merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O=Hagan Wolfe, Clerk of Court
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