    19-574
    Olaizola v. Foley


                             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 14th day of January, two thousand twenty.

    PRESENT:
                AMALYA L. KEARSE,
                SUSAN L. CARNEY,
                JOSEPH F. BIANCO,
                      Circuit Judges.
    _____________________________________

    Herman Olaizola,

                              Plaintiff-Appellant,
                        v.                                                No. 19-574

    Robert Foley, NYPD Police Officer,

                              Defendant-Appellee,

    William J. Bratton, NYPD Commissioner,
    Meghan Kinsella, NYPD Police Officer, Marissa
    Gillespie, Queens Assistant District Attorney,
    Michael Siff, Attorney, Richard A. Brown,
    Queens District Attorney,

                      Defendants.
    _____________________________________

    FOR PLAINTIFF-APPELLANT:                         Herman Olaizola, pro se, Stormville, NY.

    FOR DEFENDANT-APPELLEE:                          Jane L. Gordon, D. Alan Rosinus, Jr.,
                                                     Assistant Corporation Counsel for Georgia
                                                     M. Pestana, Acting Corporation Counsel of
                                                     the City of New York, New York, NY.
       Appeal from a judgment of the United States District Court for the Southern District of New

York (Oetken, J.).


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

DECREED that the judgment of the District Court is AFFIRMED.

       Appellant Herman Olaizola, pro se, sued New York City Police Officer Robert Foley under

42 U.S.C. § 1983, alleging (among other things) that Foley maliciously prosecuted him. Olaizola

claimed that Foley filed false paperwork in connection with Olaizola’s prosecution on various

misdemeanor charges in Bronx criminal court. The prosecutor in that proceeding, after several

continuances, moved successfully to dismiss the charges for “judicial economy” reasons. On the

same day as the Bronx dismissal, Olaizola was sentenced in Queens criminal court to a minimum

of 16 years’ imprisonment for felony burglary.

       The District Court in this § 1983 action granted summary judgment to Foley, primarily on

the ground that Olaizola failed to offer sufficient evidence that the Bronx criminal proceedings

against him were terminated in his favor. We assume the parties’ familiarity with the underlying

facts, the procedural history of the case, and the issues on appeal, and refer to them only as needed

to explain our decision to affirm the District Court’s judgment.

       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) (per curiam). “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) (internal quotation marks omitted).
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        The District Court properly granted summary judgment to Foley on Olaizola’s malicious

prosecution claim. To state a claim for malicious prosecution under § 1983, a plaintiff must allege

“(1) that the defendant initiated a prosecution against the plaintiff, (2) that the defendant lacked

probable cause to believe the proceeding could succeed, (3) that the defendant acted with

malice, . . . (4) that the prosecution was terminated in the plaintiff's favor . . . , [and] that there was

(5) a sufficient post-arraignment liberty restraint to implicate the plaintiff's Fourth Amendment

rights.” Rohman v. N.Y.C. Transit Auth., 215 F.3d 208, 215 (2d Cir. 2000) (internal quotation marks

omitted). “Where the prosecution did not result in an acquittal, it is deemed to have ended in favor

of the accused, for these purposes, only when its final disposition is such as to indicate the innocence

of the accused.” Murphy v. Lynn, 118 F.3d 938, 948 (2d Cir. 1997); see also Lanning v. City of

Glens Falls, 908 F.3d 19, 28 (2d Cir. 2018) (“When a person has been arrested and indicted, absent

an affirmative indication that the person is innocent of the offense charged, the government’s failure

to proceed does not necessarily impl[y] a lack of reasonable grounds for the prosecution.”

(alteration in original) (internal quotation marks omitted)).

        Olaizola did not show that the Bronx charges were terminated in his favor. The only

pertinent record evidence—a transcript of proceedings—showed that the prosecutor stated that he

sought dismissal of the Bronx charges “in the interest of judicial economy.” Tr. of June 18, 2013,

Bronx Criminal Ct. Proceedings at 3, Olaizola v. Bratton, No. 16-cv-3777 (S.D.N.Y. Apr. 26,

2018), ECF No. 44-6. Understood in context, the statement implied that pursuing a prosecution in

the Bronx would waste government resources since, at the same time in Queens, Olaizola was being

sentenced to a term of 16 years to life imprisonment.

        Such a dismissal had no bearing on Olaizola’s innocence and was not “favorable” to him

                                                    3
for purposes of a later § 1983 action. See Lanning, 908 F.3d at 28. It stands in contrast, for example,

to Stampf v. Long Island Railroad Co., where we concluded that a prosecutor’s decision to decline

prosecution was a favorable termination for § 1983 purposes because the prosecutor’s explanation

was that he had investigated the charges and determined that they could not be proven beyond a

reasonable doubt. 761 F.3d 192, 200-01 (2d Cir. 2014).

       Olaizola argues that New York state law requires us to infer that the prosecutor’s

abandonment of charges in his case constitutes a favorable termination. Olaizola is correct that, for

certain purposes, New York courts have concluded that “any termination of a criminal prosecution,

such that the criminal charges may not be brought again, qualifies as a favorable termination, so

long as the circumstances surrounding the termination are not inconsistent with the innocence of

the accused.” Cantalino v. Danner, 96 N.Y.2d 391, 395 (2001). We are not, however, “bound to

apply New York law to malicious prosecution claims arising under § 1983”; rather, we rely on our

prior definitions of “favorable termination” for the purposes of § 1983 actions. Lanning, 908 F.3d

at 28. Therefore, it is irrelevant to our reasoning that New York state law may define “favorable

termination” differently for state law purposes.

       Finally, Olaizola’s argument that a genuine dispute of material fact arises from the unclear

circumstances of the dismissal of the Bronx charges is meritless. Olaizola has presented no evidence

that calls into question the stated reason for the prosecutor’s motion to dismiss. The transcripts

show nothing more than various attempts to reach a plea agreement and to prosecute the Bronx

misdemeanor concurrently with the Queens felony. They do not suggest that the prosecutor

dismissed the Bronx misdemeanor charges based on any concern that the State could not prove

those charges.

                                                   4
       Olaizola also argues that he offered sufficient evidence to establish Foley’s malicious

prosecution of charges against him for possession of stolen property and possession of weapons, as

listed on a desk appearance ticket (“DAT”) that Foley issued to Olaizola in May 2012, but which

did not appear in the August 2012 criminal complaint. Foley responds that this DAT-based claim

is barred by the three-year statute of limitations governing § 1983 claims, because it would have

accrued in September 2012, when Olaizola was arraigned on that criminal complaint, a date over

three years before Olaizola filed his § 1983 suit.

       “Section 1983 actions filed in New York are . . . subject to a three-year statute of

limitations.” Hogan v. Fischer, 738 F.3d 509, 517 (2d Cir. 2013). A § 1983 claim for malicious

prosecution accrues when the prosecution terminates in the plaintiff’s favor. Spak v. Phillips, 857

F.3d 458, 462 (2d Cir. 2017). Olaizola filed his complaint in May 2016. To be timely, his claim

must therefore have accrued no earlier than May 2013. But the dropped charge proceedings

“terminated,” at the latest, when Olaizola was arraigned on the criminal complaint in September

2012. By that point, the DAT charges had been abandoned. Olaizola’s claim thus was not timely

and the District Court did not err in granting summary judgment to Foley.

       We have reviewed Olaizola’s remaining arguments and conclude that they are without

merit. For the foregoing reasons, the judgment of the District Court is AFFIRMED.

                                              FOR THE COURT:
                                              Catherine O’Hagan Wolfe, Clerk of Court




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