     16-915
     Coleman 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 ‘SUMMARY ORDER’). A PARTY CITING A SUMMARY
     ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1        At a stated term of the United States Court of Appeals for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   21st day of April, two thousand seventeen.
 5
 6   PRESENT: JOHN M. WALKER, JR.,
 7            DENNIS JACOBS,
 8            BARRINGTON D. PARKER,
 9                          Circuit Judges.
10
11   - - - - - - - - - - - - - - - - - - - -X
12
13   VINCENT COLEMAN,
14            Plaintiff–Appellant,
15
16                -v.-                                           16-915
17
18   THE CITY OF NEW YORK, POLICE OFFICER
19   MELISSA D. LENTO, POLICE OFFICER
20   MARGARET MERENDINO,
21            Defendants–Appellees.*
22
23   - - - - - - - - - - - - - - - - - - - -X
24


           *  The Clerk of Court is respectfully directed to amend
     the official caption to conform with the above.
                                                1
 1   FOR PLAINTIFF-APPELLANT:     MICHAEL P. MANGAN; Mangan Ginsberg
 2                                LLP, New York, NY.
 3
 4   FOR DEFENDANTS-APPELLEES:    MAX O. MCCANN, Fay Ng for Zachary
 5                                W. Carter, Corporation Counsel fo
 6                                the City of New York.
 7
 8
 9        Appeal from the judgment of the United States District Court
10   for the Eastern District of New York (Vitaliano, J.).
11        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND
12   DECREED that the judgment of the district court be AFFIRMED.
13
14        Vincent Coleman appeals from the judgment of the district
15   court (Vitaliano, J.) dismissing his claim for malicious
16   prosecution brought under 42 U.S.C. § 1983. We assume the
17   parties’ familiarity with the underlying facts, the procedural
18   history, and the issues presented for review.

19        In January 2009, Vincent Coleman was pulled over by officers
20   Margaret Merendino and Melissa Lento for failing to yield to
21   oncoming traffic while making a left turn. The details of his
22   interaction with the officers at the stop are unclear and some
23   are disputed; but it is undisputed that Coleman identified
24   himself as a retired officer, that the exchange became
25   contentious, that Coleman told Officer Merendino to call a
26   supervisor, and that Coleman abruptly drove away when he believed
27   Merendino was “stalling” him. According to Officer Merendino,
28   the side mirror on Coleman’s car struck her as Coleman drove
29   away, knocking her to the ground. (Officer Lento corroborates
30   Merendino’s account, but whether she was in a position to see
31   is disputed.) Merendino and Lento returned to their patrol car
32   and followed Coleman with their lights and sirens on. Coleman
33   stopped again several blocks away. Merendino and Lento waited
34   for a sergeant to arrive, and then Coleman was arrested.

35        Coleman was charged with two counts of assault in the second
36   degree (one count for the use of a deadly instrument--his
37   vehicle--and one count because the alleged victim was a police
38   officer); one count of assault in the third degree; one count
39   of obstructing governmental administration; one count of
40   unlawful fleeing of a police officer in the third degree; one

                                    2
 1   count of reckless endangerment in the second degree; one count
 2   of reckless driving; three violations for failure to obey traffic
 3   signals; and one violation for speeding. The day after his
 4   arrest, Coleman was arraigned and released without bail. A few
 5   months later, in May 2009, the prosecutor moved to dismiss the
 6   two second-degree assault counts (which were the only felony
 7   counts). The reasons the prosecutor stated on the record were
 8   that this was Coleman’s first arrest, Officer Merendino was not
 9   seriously injured, and the complainant was amenable to
10   dismissal. The other non-traffic criminal counts were
11   dismissed on speedy trial grounds in December 2010. The traffic
12   offenses (including misdemeanor reckless driving) remained
13   until Coleman accepted an adjournment in contemplation of
14   dismissal (“ACD”) in January 2011.

15        Coleman filed this suit against the officers; relevant to
16   this appeal, he pleaded claims of malicious prosecution under
17   42 U.S.C. § 1983. The district court granted summary judgment
18   in favor of the defendants, ruling that the malicious prosecution
19   claims failed because the officers had probable cause to bring
20   the charges. On appeal, we affirmed in part but vacated the
21   dismissal with respect to malicious prosecution on the assault
22   charges. 585 F. App’x 787 (2d Cir. 2014). We concluded that
23   the malicious prosecution claims were properly dismissed with
24   respect to the other charges because “there indisputably was
25   probable cause” for them; but, because Coleman denied striking
26   Merendino with his mirror, the existence of probable cause for
27   the assault charges turned on a disputed issue of fact. Id. at
28   788-89. We remanded for further proceedings solely on a claim
29   of malicious prosecution for the assault charges.

30        On remand, defendants moved in limine to dismiss the
31   malicious prosecution claim on the grounds that (1) Coleman did
32   not receive a favorable termination of the two counts of assault
33   that the prosecutor moved to dismiss, and (2) even though there
34   was a favorable termination in the misdemeanor assault due to
35   a speedy trial dismissal, Coleman could not show an independent
36   deprivation of liberty resulting from the prosecution of any
37   of the assault charges. With notice to Coleman, the district
38   court converted the motion to a summary judgment motion and
39   granted it. Coleman brought the instant appeal.


                                    3
1         We review the district court’s grant of summary judgment
2    de novo, drawing all inferences in favor of the non-moving party.
3    Young v. Cty. of Fulton, 160 F.3d 899, 901, 902 (2d Cir. 1998).

 4        The elements of malicious prosecution under § 1983 are
 5   “substantially the same” as the elements under New York law,
 6   and “the analysis of the state and the federal claims is
 7   identical.” Boyd v. City of N.Y., 336 F.3d 72, 75 (2d Cir. 2003)
 8   (quotation marks omitted). “To establish a malicious
 9   prosecution claim under New York law, a plaintiff must prove
10   (1) the initiation or continuation of a criminal proceeding
11   against plaintiff; (2) termination of the proceeding in
12   plaintiff’s favor; (3) lack of probable cause for commencing
13   the proceeding; and (4) actual malice as a motivation for
14   defendant’s actions.” Manganiello v. City of N.Y., 612 F.3d
15   149, 161 (2d Cir. 2010) (internal quotation marks omitted).
16
17         Because a malicious prosecution claim brought under § 1983
18   is grounded in the Fourth Amendment, see Albright v. Oliver,
19   510 U.S. 266, 274-75 (1994), the plaintiff must also establish
20   another element in addition to the state tort requirements: a
21   post-arraignment1 deprivation of liberty that rises to the level
22   of a constitutional “seizure.” See id.; Singer v. Fulton County
23   Sheriff, 63 F.3d 110, 116 (2d Cir. 1995).
24
25        Coleman fails to show such a seizure, so we need not consider
26   favorable termination. Since Coleman was released without bail
27   after his arraignment, the only post-arraignment deprivation
28   of liberty he suffered was the ongoing requirement of appearing
29   in court (more than a dozen times over two years). That might
30   be sufficient, see Rohman v. N.Y.C. Transit Auth., 215 F.3d 208,
31   215-16 (2d Cir. 2000), except that it is not solely attributable
32   to the assault charges, which are the only remaining charges
33   for which Coleman could have a malicious prosecution claim.

     1
       The tort of malicious prosecution relates to deprivations of liberty
     pursuant to legal process--meaning either post-arraignment or as a
     result of arrest pursuant to warrant. Deprivations of liberty from
     the moment of warrantless arrest until arraignment are not pursuant
     to legal process, and therefore implicate the separate tort of false
     arrest. Singer v. Fulton Cty. Sheriff, 63 F.3d 110, 116-17 (2d Cir.
     1995).

                                       4
 1   Even if the assault charges had never been, Coleman still would
 2   have had the obligation to appear on account of the other criminal
 3   charges (which cannot support a malicious prosecution claim,
 4   because they were indisputably supported by probable cause) and
 5   the traffic code violations (which cannot support a malicious
 6   prosecution claim because they were terminated unfavorably to
 7   Coleman by ACD). It is Coleman’s burden to show a
 8   post-arraignment deprivation of liberty that resulted from the
 9   prosecution that he alleges was unsupported by probable cause;
10   he has not sustained it.

11        Accordingly, and finding no merit in appellant’s other
12   arguments, we hereby AFFIRM the judgment of the district court.

13                                 FOR THE COURT:
14                                 CATHERINE O’HAGAN WOLFE, CLERK




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