     08-0241-cv
     Droz v. McCadden

1                          UNITED STATES COURT OF APPEALS

2                              FOR THE SECOND CIRCUIT

3                                 August Term, 2008

4    (Argued:    March 9, 2009                  Decided: September 14, 2009
5                                               Amended: October 7, 2009)

6                               Docket No. 08-0241-cv

7                       -------------------------------------

8                                   MARTIN DROZ,

9                                Plaintiff-Appellee,

10                                     - v. -

11                          P.J. MCCADDEN, State Trooper,

12                              Defendant-Appellant,

13   SHIRLEY B. HERDER, MARK MURRAY, ESTATE OF JOHN C. ANDERSON, TOWN
14    OF VIENNA, NEW YORK, DANIEL G. MIDDAUGH, SCOTT BURNOP, MICHAEL
15    DURANT, SHAWN MALONE, MICHAEL MULKY, MARK SLAWSON, and UNKNOWN
16                               SOWITCH,

17                                  Defendants.*

18                      -------------------------------------

19   Before:     WINTER and SACK, Circuit Judges, and COGAN, District
20               Judge.**

21               Appeal from an order of the United States District

22   Court for the Northern District of New York (David N. Hurd,

23   Judge) denying Defendant-Appellant State Trooper P.J. McCadden's



           *
            The Clerk of the Court is instructed to amend the official
     caption in this case to conform to the listing of the parties
     above.
           **
            The Honorable Brian M. Cogan, United States District
     Judge for the Eastern District of New York, sitting by
     designation.
1    motion for summary judgment.     We conclude that the stipulated

2    facts establish that McCadden reasonably believed that he was

3    acting at the behest of Judge Shirley Herder, and, therefore, he

4    had arguable probable cause to arrest Plaintiff Droz for criminal

5    contempt and probable cause to commence a criminal contempt

6    proceeding against him.     We therefore conclude, contrary to the

7    district court's ruling, that McCadden is entitled to qualified

8    immunity with respect to the claims made against him for false

9    arrest and malicious prosecution under 42 U.S.C. § 1983.

10                 Reversed.

11                                DENISE A. HARTMAN, Assistant Solicitor
12                                General, for Andrew Cuomo, Attorney
13                                General of the State of New York,
14                                (Barbara D. Underwood, Solicitor
15                                General, Andrea Oser, Deputy Solicitor
16                                General, of counsel), Albany, NY, for
17                                Defendant-Appellant.

18                                EDWARD KOPKO, Wiggins & Kopko, LLP,
19                                Ithaca, NY, for Plaintiff-Appellee.

20   PER CURIAM:

21                 Defendant-Appellant State Trooper P.J. McCadden appeals

22   from an order of the district court (David N. Hurd, Judge)

23   denying his motion for summary judgment in this action against

24   him under 42 U.S.C. § 1983 based on allegations of false arrest

25   and malicious prosecution.     The grounds for the motion are that

26   McCadden was entitled to qualified immunity.     We conclude that

27   the stipulated facts establish that McCadden reasonably believed

28   he was acting at the behest of Judge Shirley Herder.     McCadden

29   therefore had arguable probable cause to arrest Plaintiff Droz


                                         2
1    for criminal contempt.   In addition, in light of this reasonable

2    belief and McCadden's conversation with Judge Herder following

3    Droz's arrest regarding the offense with which Droz would be

4    charged, McCadden had probable cause to institute proceedings

5    against him.   We therefore reverse the order of the district

6    court and remand the cause with instructions to grant the summary

7    judgment motion and dismiss the claims.

8                                 BACKGROUND

9              Plaintiff Droz was arrested and charged with violating

10   N.Y. Penal L. § 215.50(1) for "disorderly, contemptuous or

11   insolent behavior, committed during the sitting of a court, in

12   its immediate view and presence and directly tending to interrupt

13   its proceedings," after arriving at a courthouse and refusing to

14   show to Code Enforcement Officer John C. Anderson what was in a

15   brown paper bag he was carrying.       Anderson told Judge Shirley

16   Herder about the incident.   The police were then summoned, and

17   arrived, in the person of McCadden.       McCadden then arrested Droz.

18   The subsequent contempt charge against Droz was eventually

19   dismissed.   Droz then brought this action pursuant to 42 U.S.C. §

20   1983 against Herder and McCadden asserting, inter alia, causes of

21   action sounding in false arrest, malicious prosecution, and

22   conspiracy to commit false arrest and malicious prosecution.

23   Herder, having settled the claims against her, is no longer a

24   party to this appeal.

25             McCadden moved for summary judgment on qualified

26   immunity grounds, arguing that he had arguable probable cause to

                                        3
1    arrest Droz inasmuch as he had been told by Herder -- a town

2    judge whose instruction would be sufficient to give probable

3    cause to arrest someone for contempt of court -- that he should

4    arrest Droz for contempt.   McCadden also argued that he was

5    entitled to qualified immunity with respect to the malicious

6    prosecution claim because it was undisputed that he spoke with

7    Herder about what statute to charge Droz under following Droz's

8    arrest.

9              The district court denied McCadden's motion for summary

10   judgment, concluding that there was a material issue of fact as

11   to whether Herder personally instructed McCadden to arrest Droz,

12   and that, therefore, probable cause for the arrest had not been

13   established as a matter of law.   The court also decided that

14   malice might be established to support the malicious prosecution

15   claim because McCadden had no other evidence that Droz had

16   committed criminal contempt, the charge that was brought against

17   him and then dismissed.   McCadden brings this interlocutory

18   appeal from the denial of his motion for summary judgment.

19                               DISCUSSION

20             I. Standard of review

21             "We review a district court's denial of summary

22   judgment de novo . . . ."   Travelers Ins. Co. v. Carpenter, 313

23   F.3d 97, 102 (2d Cir. 2002) (noting, however, that unlike appeals

24   on qualified immunity issues, we typically undertake such review

25   only "when a final decision or other distinct district court

26   action has rendered the case appealable").   Summary judgment must

                                       4
1    be granted to the movant "if the pleadings, the discovery and

2    disclosure materials on file, and any affidavits show that there

3    is no genuine issue as to any material fact and that the movant

4    is entitled to judgment as a matter of law."   Fed. R. Civ. P.

5    56(c); Roe v. City of Waterbury, 542 F.3d 31, 35 (2d Cir. 2008).

6    In an interlocutory appeal such as this one, "we may not review

7    whether a dispute of fact identified by the district court is

8    'genuine.'"   Escalera v. Lunn, 361 F.3d 737, 743 (2d Cir. 2004).

9    We may only resolve the summary judgment motion insofar as we

10   rely "on stipulated facts, or on the facts that the plaintiff

11   alleges are true, or on the facts favorable to the plaintiff that

12   the trial judge concluded the jury might find."   Id.   "A district

13   court's mere assertion that disputed facts exist . . . is[,

14   however,] not enough to preclude an immediate appeal."   Id.

15             II. Analysis

16             Irrespective of whether Herder and McCadden actually

17   spoke to one another before Droz's arrest -- a fact the district

18   court found was "genuinely" in dispute -- McCadden is entitled to

19   qualified immunity, because we conclude, as a matter of law, that

20   he reasonably believed he was acting at Herder's behest.   While

21   Droz contests whether such a personal conversation between Herder

22   and McCadden ever took place, he admits that "McCadden . . .

23   relied upon his alleged understanding of Herder's direction to

24   him to arrest Droz for criminal contempt."   Droz Statement of




                                      5
1    Material Facts ¶ 4.1   Droz concedes, then, that McCadden thought

2    he was operating at the direction of Herder when he arrested

3    Droz.

4                The stipulated facts also establish as a matter of law

5    that this belief was reasonable.   Droz concedes that Herder

6    agreed with Code Enforcement Officer Anderson that Droz's actions

7    in the courthouse should be reported to the police.   Id. at ¶ 12.

8    The police department, in the person of McCadden, were then

9    summoned by telephone to the courthouse by the town supervisor,

10   Mark Murray.   Id. at ¶ 13.   While Droz does not explicitly agree

11   that McCadden was told during or as a result of that phone call

12   that Herder was instructing him to come to the courthouse to

13   arrest Droz, for McCadden to have had any "alleged

14   understanding," Droz Statement of Material Facts ¶ 4, that Herder

15   had directed him to arrest Droz -- assuming as we must that he

16   did not have a direct conversation with Herder -- McCadden could

17   only have been told that as a result of what the town supervisor

18   told the police.   Regardless of whether there is a triable issue

19   of fact as to whether McCadden had a personal conversation with

20   Herder prior to the arrest, then, for McCadden to have understood

21   that Herder directed him to arrest Droz, he must have been told

22   so directly or indirectly on or as a result of the call -- the

23   basis for a reasonable belief that it was so.


             1
            While it is hard to know what to make of the use of the
     word "alleged" in Droz's Statement of Material Facts, we conclude
     that it does not take away from Droz's admission that McCadden
     had some understanding that Herder had instructed him to arrest
     Droz.
                                     6
1              "Arguable probable cause [which establishes qualified

2    immunity with respect to a false arrest claim] exists when a

3    reasonable police officer in the same circumstances and

4    possessing the same knowledge as the officer in question

5    could have reasonably believed that probable cause existed in the

6    light of well established law."   Zellner v. Summerlin, 494 F.3d

7    344, 369 (2d Cir. 2007) (internal quotation marks omitted)

8    (emphasis in original).   Based on the stipulated facts, as a

9    matter of law, McCadden reasonably believed Herder instructed him

10   to arrest Droz.   This belief was sufficient to establish arguable

11   probable cause for the arrest.    McCadden is therefore entitled to

12   qualified immunity on the false arrest charge.

13             Similarly, McCadden is entitled to qualified immunity

14   on the malicious prosecution claim.   "To state a claim . . . for

15   malicious prosecution, a plaintiff must show: (1) that the

16   defendant commenced or continued a criminal proceeding against

17   him; (2) that the proceeding was terminated in the plaintiff's

18   favor; (3) that there was no probable cause for the proceeding;

19   and (4) that the proceeding was instituted with malice."   Kinzer

20   v. Jackson, 316 F.3d 139, 143 (2d Cir. 2003).    It is undisputed

21   that after having arrested Droz, McCadden spoke with Herder to

22   determine what charges were to be brought.   Inasmuch as McCadden

23   arrested Droz on the reasonable belief that Herder instructed him

24   to do so, and he spoke with Herder to determine the charge to be

25   brought against Droz, we conclude that there was probable cause



                                       7
1    as a matter of law for instituting the proceeding.   McCadden is

2    therefore entitled to qualified immunity.

3              Because neither of the underlying section 1983 causes

4    of action can be established, the claim for conspiracy also

5    fails.   See Singer v. Fulton County Sheriff, 63 F.3d 110, 119 (2d

6    Cir. 1995).

7                                CONCLUSION

8              For the foregoing reasons, the judgment of the district

9    court is reversed and the cause remanded to the court with

10   instructions that the motion for summary judgment be granted and

11   Droz's remaining claims against McCadden be dismissed.




                                      8
