18-839
Boyler v. City of Lackawanna

                                   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 United States Courthouse, 40 Foley Square, in the City of New York, on the
13th day of March, two thousand nineteen.

PRESENT:
                  ROBERT A. KATZMANN,
                       Chief Judge,
                  DEBRA ANN LIVINGSTON,
                  CHRISTOPHER F. DRONEY,
                       Circuit Judges.


SCOTT A. BOYLER,

                               Plaintiff-Appellant,

                  v.                                                      No. 18-839

CITY OF LACKAWANNA, JOSEPH LEO,
individually and in his official capacity as Captain of
the City of Lackawanna Police, BRIAN LAKSO,
individually and in his official capacity as a City of
Lackawanna Police Detective,

                               Defendants-Appellees.



 For Plaintiff-Appellant:                                  JAMES OSTROWSKI, Buffalo, NY.


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 For Defendants-Appellees:                           JULIE P. APTER, Goldberg Segalla LLP,
                                                     Buffalo, NY.


       Appeal from a judgment of the United States District Court for the Western District of New

York (Wolford, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       Plaintiff-appellant Scott Boyler appeals the district court’s grant of summary judgment to

defendants-appellees City of Lackawanna, Captain Joseph Leo, and Detective Brian Lakso on his

claims under 28 U.S.C. § 1983 and New York state law for violation of his free speech rights,

malicious prosecution, and false arrest.1 We assume familiarity with the underlying facts, the

procedural history, and the issues presented for review. Nevertheless, some background is required

to explain our decision to affirm.

       Boyler has had a long history with the City of Lackawanna Police Department. He was

arrested at least twice by its officers. Captain Leo was involved in both instances. Boyler claims

that, during one of these arrests, Captain Leo illegally confiscated some of his personal belongings.

In response to these interactions, Boyler created both a website and a related Facebook page.

Boyler posted photos and derogatory descriptions of Captain Leo on these sites, as well as

complaints about corruption in the police department and at City Hall.




       1
         Several of the claims Boyler pressed below have dropped out of the case. Boyler makes
no mention in his briefs of his § 1983 claim for failure to prevent unconstitutional acts, or of his
causes of action for assault and battery. He has therefore waived these claims. See Friends of
Animals v. Clay, 811 F.3d 94, 99 n.8 (2d Cir. 2016). Boyler likewise does not challenge the district
court’s conclusion that the Eleventh Amendment bars any damages claims against the individual
defendants in their official capacities.

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       An individual from outside the police department informed Captain Leo—who did not use

the Internet—that Boyler was posting statements about him and the Lackawanna Police on

Facebook. Captain Leo approached Detective Lakso with a screenshot of Boyler’s website,

expressing concern that the site was targeting him and could lead someone to threaten his safety.

Detective Lakso prepared a police report and an Information/Complaint based on the information

that Captain Leo provided and additional information Detective Lakso found online. The

complaint was submitted to a Lackawanna City Court judge, and the judge issued an arrest warrant

for Boyler on January 3, 2014 on the charge of second-degree aggravated harassment. On May 13,

2014, the New York Court of Appeals held that the provision under which Boyler had been charged

was unconstitutionally vague and overbroad. See People v. Golb, 15 N.E.3d 805, 814 (N.Y. 2014).

Prosecutors therefore dismissed Boyler’s case. This federal action followed.

       We review de novo a district court’s grant of summary judgment, viewing the facts in the

light most favorable to the nonmoving party. See Irby v. N.Y.C. Transit Auth., 262 F.3d 412, 413

(2d Cir. 2001) (per curiam). We “may affirm on any basis for which there is sufficient support in

the record, including grounds not relied on by the district court.” Lotes Co. v. Hon Hai Precision

Indus. Co., 753 F.3d 395, 413 (2d Cir. 2014).2

       Boyler first asserts that the harassment charge against him violated his speech rights under

the First and Fourteenth Amendments. Even assuming his rights were violated, however, we find

that Boyler has failed to show sufficient injury to bring his § 1983 claim. “To state a claim under

Section 1983, a plaintiff must allege facts indicating that some official action has caused the

plaintiff to be deprived of his or her constitutional rights—in other words, there is an injury




       2
         Unless otherwise indicated, case quotations omit all internal quotation marks, alterations,
footnotes, and citations.
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requirement to state the claim.” Colombo v. O’Connell, 310 F.3d 115, 117 (2d Cir. 2002) (per

curiam). To avoid summary judgment, Boyler “must come forward with evidence showing either

that (1) defendants silenced him or (2) defendants’ actions had some actual, non-speculative

chilling effect on his speech.” Williams v. Town of Greenburgh, 535 F.3d 71, 78 (2d Cir. 2008).

       There is no such evidence in this case. “It is abundantly clear from the record that

[Boyler’s] readiness to hold forth on his perceived mistreatment at the hands of [the defendants]

was unimpaired by their allegedly punitive conduct.” Id. Boyler testified in his deposition, over

eighteen months after his arrest, that he continued to post about the City and Captain Leo. The

record shows that he posted numerous times throughout 2015 about Captain Leo, the criminal

harassment case filed against him, the instant civil case, and the supposed corruption in the City’s

government and police department. Boyler continued to use the same obscene language to describe

Captain Leo and the police force that he had used before his arrest. Indeed, when asked during his

deposition how his speech rights were violated, Boyler failed to point to any chilling effect or other

injury. As Boyler has essentially denied that his speech was silenced or chilled, the defendants are

entitled to summary judgment on his free speech claim. See Colombo, 310 F.3d at 117.

       Boyler also challenges the district court’s grant of summary judgment to Captain Leo and

Detective Lakso on his false arrest and malicious prosecution claims. The district court found that

Boyler’s claims fail because the defendants had probable cause to charge him. Probable cause is a

complete defense to false arrest and malicious prosecution claims under both § 1983 and New

York law. See Mitchell v. City of New York, 841 F.3d 72, 79 (2d Cir. 2016) (malicious prosecution);

Jenkins v. City of New York, 478 F.3d 76, 84 (2d Cir. 2007) (false arrest). A police officer “has

probable cause to arrest when he or she has knowledge or reasonably trustworthy information of

facts and circumstances that are sufficient to warrant a person of reasonable caution in the belief



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that the person to be arrested has committed or is committing a crime.” Garcia v. Does, 779 F.3d

84, 92 (2d Cir. 2015). The information contained in and attached to the criminal complaint—

Boyler’s constant slurs against Captain Leo, his acknowledgement that Captain Leo might feel

harassed, and his statement that Captain Leo “aint [sic] seen nothing yet,” Appellees’ App. 134—

provides probable cause for arrest under the harassment statute despite any non-injurious speech

violation. See Williams, 535 F.3d at 78-79.

       Boyler suggests three reasons why probable cause was lacking, but none are availing. First,

he claims that his communication was not transmitted or delivered to Captain Leo as required by

the harassment statute, see N.Y. Penal Law § 240.30(1)(a) (2012), because he posted the comments

on a website and a third party informed Captain Leo about them. The fact that Captain Leo learned

of the communication through another is irrelevant. After all, a defendant would clearly be

“transmitting” a “written communication,” id., if she gave a threatening letter to an intermediary

to deliver to the victim. Nor does the fact that Boyler posted his comments on a public website

take them outside the statute’s ambit. This Court has already affirmed a district court’s decision

that “the posting of a website” counted as “written communications” and that an arrest warrant

thus was “supported by probable cause to believe [the defendant] violated . . . § 240.30(1)(a).”

Pacherille v. Muehl, 619 F. App’x 18, 19 (2d Cir. 2015) (summary order). Boyler points out that

Pacherille was a summary order, but it nonetheless buttresses the common-sense view that one

may “communicate with a person” indirectly by “transmitting . . . [a] written communication”

through a public medium. § 240.30(1)(a).

       Second, Boyler argues that there was no evidence that he had the specific intent required

by the harassment statute. However, “[a]n assessment of intent frequently depends on

circumstantial evidence,” and “because the practical restraints on police in the field are greater



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with respect to ascertaining intent . . . , the latitude accorded to officers considering the probable

cause issue in the context of mens rea crimes must be correspondingly great.” Zalaski v. City of

Hartford, 723 F.3d 382, 393 (2d Cir. 2013). The posts attached to the criminal complaint included

photos and videos of Captain Leo with disparaging comments about his appearance and character,

as well as a post taunting Captain Leo for supposedly complaining that Boyler was harassing him

through the site. The defendants certainly had enough evidence to infer that Boyler was writing

with the intent (at least in part) to annoy Captain Leo.

       Third, Boyler asserts that cases had already limited the harassment statute’s reach before

his arrest such that it did not apply to political or Internet speech. The cases he cites for this

argument all dismissed prosecutions either based on the specifics of the defendants’ statements or

on grounds unrelated to the content of their speech. See People v. Mangano, 796 N.E.2d 470, 471

(N.Y. 2003) (mem. order); People v. Dupont, 107 A.D.2d 247, 252 (N.Y. App. Div. 1st Dep’t

1985); People v. Pierre-Louis, 927 N.Y.S.2d 592, 597 (N.Y. Dist. Ct. 2011); People v. Yablov,

706 N.Y.S. 2d 591, 595 (N.Y. Crim. Ct. 2000). Neither the federal nor the state courts had adopted

a general narrowing construction of the statute at the time of his arrest. Additionally, since Boyler’s

arrest was pursuant to a warrant, we “must accord considerable deference to the probable cause

determination of the issuing magistrate.” Walczyk v. Rio, 496 F.3d 139, 157 (2d Cir. 2007). As we

find that the defendants had probable cause to arrest Boyler, we need not determine whether the

individual defendants are also entitled to qualified immunity.

       Finally, Boyler seeks damages from the City on his common law claims as a matter of

respondeat superior liability. As Boyler has waived his assault and battery claims, and as the

individual defendants are entitled to summary judgment on his state malicious prosecution and

false arrest charges, there are no underlying violations for which to hold the City vicariously liable.



                                                  6
Boyler asserts that the City should remain liable under respondeat superior even if the individual

defendants are not. Precedent bars this argument. See Kass v. City of New York, 864 F.3d 200, 213-

14 (2d Cir.), cert. denied, 138 S. Ct. 487 (2017).

       We have considered all Boyler’s contentions on appeal and have found in them no basis

for reversal. For the reasons stated herein, the judgment of the district court is AFFIRMED.

                                              FOR THE COURT:
                                              Catherine O’Hagan Wolfe, Clerk




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