16-2357-pr
Sullivan 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
ASUMMARY ORDER@). A PARTY CITING TO 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
10th day of May, two thousand seventeen.

Present:
            JOHN M. WALKER, JR.,
            DEBRA ANN LIVINGSTON,
            GERARD E. LYNCH,
                        Circuit Judges.
_____________________________________

SEAN SULLIVAN,

                               Plaintiff-Appellant,

                    v.                                                     16-2357

CITY OF NEW YORK, DETECTIVE THOMAS MARKARDT, Shield
No. 6869, POLICE OFFICERS JOHN/JANE DOES, 1-5,
SUPERVISORY WARDEN, of Rikers Island Correctional
Facility, JOHN/JANE DOES, 6-8, employees of the New York
City Corrections Department, JOHN/JANE DOES, 9-11,
Assistant U.S. Attorneys, NEW YORK CITY CRIMINAL
JUSTICE AGENCY, JANE DOE, 12, an employee of the New
York City Criminal Justice Agency, POLICE OFFICER JOHN DOE, #1,
present at the arrest and detention of Plaintiff on 12/2/12,
JOHN DOE, present at the arrest and detention of
Plaintiff on 12/2/12, JANE DOE, present at the arrest and detention of
Plaintiff on 12/2/12, JOHN DOE, present at the arrest and detention of
Plaintiff on 12/2/12, SUPERVISOR WARDEN, Rikers Island Correctional
Facility, JOHN DOE, present at the arrest and detention of Plaintiff on
12/2/12, Employee of the New York City Corrections Department JANE
DOE #6, who was working at Central Booking at the time Plaintiff was
transferred to Rikers Island, Employee of the New York City
Corrections Department JOHN DOE #7, who gave Plaintiff a medical
examination at Rikers Island, Employee of the New York City
Corrections Department JOHN DOE #8, who processed Plaintiff at
Rikers Island Intake for transfer into the general population, JANE
DOE, who filed initial criminal charges against Plaintiff, JANE DOE,
who negotiated the plea bargain terms with Plaintiff's attorney, JOHN
DOE, who negotiated plea bargain terms with Plaintiff's attorney,
Employee of the New York City Criminal Justice Agency JANE DOE
#12, who recommended that Plaintiff be released on certain bail
conditions, DETECTIVE RIVERA, Tax# 904912, POLICE OFFICER ARAFAT
COOPER, Shield #10092, POLICE OFFICER MARC MANCINI, Tax #924121,
RIVERA, Tax #9453395, EMANUEL, Tax #934825, CAMPBELL, DETECTIVE
DILBERIAN,

                      Defendants-Appellees.

_____________________________________

For Plaintiff-Appellant:                      Sean Sullivan, pro se, New York, New York.

For Defendants-Appellees:                     Fay Sue Ng, Susan Paulson, Assistant Corporation
                                              Counsel, for Zachary W. Carter, Corporation
                                              Counsel of the City of New York, New York, New
                                              York (for municipal Defendants-Appellees);

                                              David S. Rutherford, Rutherford & Christie, LLP,
                                              New York, New York (for Defendant-Appellees
                                              New York City Criminal Justice Agency and
                                              Employee of the New York City Corrections
                                              Department Jane Doe #6).

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

DECREED that the judgment of the district court is AFFIRMED.

       Plaintiff-Appellant Sean Sullivan appeals from a judgment of the United States District

Court for the Southern District of New York (Furman, J.), entered on March 19, 2015, dismissing

his claims asserted under 42 U.S.C. § 1983 against the City of New York (“City”), five New York

City Police Department (“NYPD”) officers, the New York Criminal Justice Agency (“CJA”), a


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CJA employee, a supervisory warden of Riker’s Island (“Warden”), the New York City

Department of Corrections (“DOC”), several DOC employees, and two Kings County Assistant

District Attorneys (“ADAs”).      Sullivan also appeals from an order denying his motion to

reconsider. We assume the parties’ familiarity with the underlying facts, the procedural history of

the case, and the issues on appeal.

       We first conclude that the district court properly dismissed the claims against the DOC, the

Warden, the ADAs, and the DOC employees. The DOC is a non-suable city agency. See

Jenkins v. City of N.Y., 478 F.3d 76, 93 n.19 (2d Cir. 2007); see also Johnson v. Dobry, 660 F.

App’x 69, 72 (2d Cir. 2016) (citing N.Y. City Charter ch. 17, § 396, which states that actions must

be brought against the City of New York, not an agency). In any event, Sullivan did not properly

identify a DOC practice or policy that caused the alleged constitutional violations, see Sorlucco v.

New York City Police Dep’t, 971 F.2d 864, 870 (2d Cir. 1992) (relying on Monell v. Dep’t of Soc.

Servs., 436 U.S. 658, 690-91 (1978)); Sullivan’s complaint did not sufficiently allege the

Warden’s or the DOC employees’ personal involvement in the deprivation of his constitutional

rights, see Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994); and the ADAs are immune from suit,

see Warney v. Monroe County, 587 F.3d 113, 120-21 (2d Cir. 2009) (discussing the absolute

immunity afforded prosecutors involved in acts “intimately associated with the judicial phase of

the criminal process”).

       Even if the DOC employees’ personal involvement had been sufficiently alleged, Sullivan

did not adequately assert that they committed any constitutional violations. Sullivan alleged that

he lost property at the hands of DOC employees. A state employee’s deprivation of a prisoner’s

property is not actionable under § 1983, however, if state law post-deprivation remedies are


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constitutionally adequate. See Alexandre v. Cortes, 140 F.3d 406, 411 (2d Cir. 1998). Sullivan

failed to demonstrate that state law post-deprivation remedies were constitutionally inadequate.

In addition, Sullivan alleged that the ADAs acted outside the scope of their prosecutorial authority

in providing assistance to his ex-wife in child custody and family court matters. But that injury is

not a cognizable basis for a § 1983 claim, and the ADAs’ actions have no bearing on any of his

false arrest, malicious prosecution, or false imprisonment claims. See Zherka v. Amicone, 634

F.3d 642, 644 (2d Cir. 2011) (stating that a plaintiff must allege facts “indicating” that “official

action” “deprived [him] of his . . . constitutional rights).

        Second, the district court properly dismissed the claims against the CJA and CJA employee

under Federal Rule of Civil Procedure 12(b)(6). Sullivan claimed that his Sixth Amendment

rights were violated when his CJA interview was conducted without counsel present. But

Sullivan had no right to counsel until “the time that adversary judicial proceedings [were]

initiated.” Kirby v. Ill., 406 U.S. 682, 688 (1972). Because Sullivan was arrested on New York

state law charges, the adversarial judicial proceeding began with “the filing of an accusatory

instrument.” Deshawn E. by Charlotte E. v. Safir, 156 F.3d 340, 349 (2d Cir. 1998). Since no

accusatory instrument had been filed at the time of Sullivan’s CJA interview, his right to counsel

had not yet attached. In any event, there is no suggestion in the record that the CJA or its

employee had any responsibility for appointing counsel nor is there legal authority for the

proposition that it was barred from interviewing Sullivan in the absence of counsel. Nor is there a

suggestion in the record that the CJA and its employee were personally responsible for the denial




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of bail. The CJA employee simply declined to recommend that Sullivan be released on his own

recognizance. See Wright, 21 F.3d at 501.1

         Next, we conclude that the district court properly granted summary judgment in favor of

the City and the NYPD. We review de novo a district court’s grant of summary judgment.

Garcia v. Hartford Police Dep’t, 706 F.3d 120, 126 (2d Cir. 2013) (per curiam). Summary

judgment must be granted if “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). When determining whether a

genuine dispute exists, this Court must “resolve all ambiguities and draw all inferences against the

moving party.” Garcia, 706 F.3d at 127. “Even when a motion for summary judgment is

unopposed, the district court is not relieved of its duty to decide whether the movant is entitled to

judgment as a matter of law,” and “[if] the evidence submitted in support of the summary

judgment motion does not meet the movant’s burden of production, then ‘summary judgment must

be denied even if no opposing evidentiary matter is presented.’” Vt. Teddy Bear Co. v. 1-800

Beargram Co., 373 F.3d 241, 242, 244 (2d Cir. 2004) (quoting Amaker v. Foley, 274 F.3d 677, 681

(2d Cir. 2001)) (emphasis omitted).

         The summary judgment submissions revealed that the officers had probable cause to arrest

Sullivan, which negated Sullivan’s claims of false arrest, malicious prosecution, false

imprisonment, and abuse of process. See Betts v. Shearman, 751 F.3d 78, 82 (2d Cir. 2014)

(“Probable cause is a complete defense to a constitutional claim of false arrest and false

imprisonment. And continuing probable cause is a complete defense to a constitutional claim of

malicious prosecution.” (citations omitted)). In addition, the existence of probable cause negates

1
 Because the district court properly dismissed these claims under Rule 12(b)(6), there is no need to consider whether
dismissal was also proper under Federal Rule of Civil Procedure 41(b) due to Sullivan’s failure to prosecute.

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Sullivan’s argument that he was arrested in retaliation for exercising his First Amendment rights.

See Mangino v. Inc. Vill. of Patchogue, 808 F.3d 951, 956 (2d Cir. 2015).2

        Finally, the district court correctly dismissed Sullivan’s claims against the city because of

probable cause. A municipality may be held liable under § 1983 if the plaintiff demonstrates (1)

an underlying violation of his federally protected rights, and (2) a municipal policy or custom that

caused the violation. See Monell, 436 U.S. at 691. Because there was probable cause for

Sullivan’s arrest and prosecution, there is no constitutional violation to support a claim against the

city. Moreover, Sullivan provides insufficient evidence that any alleged violation resulted from a

policy or custom. See Yin Jing Gan v. City of N.Y., 996 F.2d 522, 532 (2d Cir. 1993) (observing

that reliance upon conclusory statements or mere allegations is not sufficient to defeat a summary

judgment motion). In fact, Sullivan himself undermines his allegations of a policy or custom by

contending that the arresting police officers acted “contrary to the policy of the NYPD regarding

potential domestic violence matters” when they arrested him. Supp. App’x at 6. Thus, Sullivan

did not present sufficient evidence of Monell liability to reach a jury.

        We have considered all of Sullivan’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




2
 Because probable cause existed for Sullivan’s arrest, we need not decide whether the officers were entitled to
qualified immunity. Jaegly v. Couch, 439 F.3d 149, 154 (2d Cir. 2006).

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