     12-2486
     Dolan v. Cassella



                              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 22nd day of November, two thousand thirteen.

     PRESENT:
                 ROBERT D. SACK,
                 PETER W. HALL,
                 DEBRA ANN LIVINGSTON,
                       Circuit Judges.
     _________________________________________

     Patrick Dolan,

                               Plaintiff - Appellant,

                         v.                                        12-2486

     John Cassella, Officer, Peter Kendzierski, Officer,
     Jay Kaufman, Officer, Gary Verni, Sergeant,
     John DeCarlo, Chief, Town of Branford,

                       Defendants - Appellees.
     _________________________________________

     FOR APPELLANT:                   Patrick Dolan, pro se, Wallingford, CT.

     FOR APPELLEES:                   James N. Tallberg (Patric D. Allen, on the brief), Karsten &
                                      Tallberg LLC, West Hartford, CT.
       Appeal from a judgment of the United States District Court for the District of

Connecticut (Underhill, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court is AFFIRMED.

       Appellant Patrick Dolan, proceeding pro se, appeals from a judgment granting

summary judgment pursuant to Federal Rule of Civil Procedure 56, in favor of the

Appellees, dismissing his 42 U.S.C. § 1983 claims for wrongful arrest, malicious

prosecution, and unlawful search and seizure. We assume the parties’ familiarity with the

underlying facts, procedural history of the case, and issues on appeal.

       Summary judgment is appropriate “[w]here the record taken as a whole could not

lead a rational trier of fact to find for the non-moving party.” Matsushita Elec. Indus. Co.

v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). We review orders granting summary

judgment de novo and focus on whether the district court properly concluded that there was

no genuine issue as to any material fact and the moving party was entitled to judgment as a

matter of law. See Miller v. Wolpoff & Abramson, L.L.P. 321 F.3d 292, 300 (2d Cir. 2003).

In determining whether there are genuine issues of material fact, we are “required to

resolve all ambiguities and draw all permissible factual inferences in favor of the party

against whom summary judgment is sought.” Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir.

2003) (quotation omitted). “[A] party seeking summary judgment always bears the initial

responsibility of informing the district court of the basis for its motion, and identifying

those portions” of the record “which it believes demonstrate the absence of a genuine issue

of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the non-



                                               2
moving party has the burden of proof at trial, the moving party need only demonstrate that

there is a lack of evidence to support the non-movant’s claim. See id. at 324-25.

       Once the movant has satisfied this burden, the burden of production shifts to the

non-movant. See Matsushita, 475 U.S. at 586-87. The non-movant “must set forth specific

facts showing that there is a genuine issue for trial” and “may not rest upon the mere

allegations or denials of his pleading.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-

49 (1986) (internal quotation marks omitted). There must be more than “a scintilla of

evidence” in support of the non-movant’s position; there must be sufficient evidence from

which a reasonable finder of fact could find in the non-movant’s favor. Id. at 252.

       “Under the doctrine of qualified immunity, ‘government officials performing

discretionary functions generally are shielded from liability for civil damages insofar as

their conduct does not violate clearly established statutory or constitutional rights of which

a reasonable person would have known.’” Kelsey v. County of Schoharie, 567 F.3d 54,

60–61 (2d Cir. 2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). This

Court’s analysis of whether a right is clearly established is “tied to the specific facts and

context of the case,” Gilles v. Repicky, 511 F.3d 239, 244 (2d Cir. 2007), with “[o]nly

Supreme Court and Second Circuit precedent existing at the time of the alleged violation

[being] relevant in deciding whether a right is clearly established,” Moore v. Vega, 371

F.3d 110, 114 (2d Cir. 2004). In order to be clearly established, “[t]he contours of the right

must be sufficiently clear that a reasonable official would understand that what he is doing

violates that right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987).




                                               3
        If the right was clearly established, courts “analyze the objective reasonableness of

the officer’s subjective belief in the lawfulness of his actions.” Loria v. Gorman, 306 F.3d

1271, 1282 (2d Cir. 2002). “If the officer reasonably believed his actions did not violate

the plaintiff’s rights, he is entitled to qualified immunity even if that belief was mistaken.”

Id. Such a belief is objectively reasonable “if ‘officers of reasonable competence could

disagree’ on the legality of the defendant’s actions.” Lennon v. Miller, 66 F.3d 416, 420

(2d Cir. 1995)(quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). Further, “in the

absence of a material factual dispute, the question of whether it was objectively reasonable

for the officers to believe that they did not violate the plaintiff’s rights is a purely legal

determination for the court to make.” Id. at 422.

        We conclude that Dolan’s appeal is without merit substantially for the reasons

articulated by the district court in its oral ruling. See Transcript at 34-44, Dolan v.

Cassella, No. 10-cv-1235 (D. Conn. May 18, 2012). One point, however, merits further

comment.

        Appellant has claimed, inter alia, that Appellee Officer Jay Kaufman unlawfully

seized a vehicle in which Appellant had a property interest from Appellant’s business

property without a warrant. Even assuming Appellant had a possessory interest in the

truck, we nevertheless affirm the district court’s decision because there is evidence only of

Appellee Kaufman’s presence at the repossession. See Barrett v. Harwood, 189 F.3d 297,

302 (2d Cir. 1999) (noting that “a police officer’s mere presence at the scene” of a

repossession “is insufficient to constitute state action” for purposes of a § 1983 action). No

evidence was adduced at summary judgment showing that any named defendant “t[ook] an



                                                4
active role that either affirmatively assisted in the repossession over [Dolan’s] objection or

intentionally intimidated [Dolan] so as to prevent him from exercising his legal right to

object to the repossession,” id. at 303, and so Dolan has failed to show state action. We

have considered all of Dolan’s remaining arguments and find them to be without merit.

       For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.

                                              FOR THE COURT:
                                              Catherine O’Hagan Wolfe, Clerk




                                              5
