    15-3252-cv
    Allen v. Antal, 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 14th day of January, two thousand sixteen.

    PRESENT:
                      PETER W. HALL,
                      DEBRA ANN LIVINGSTON,
                                 Circuit Judges,
                      NICHOLAS G. GARAUFIS,*
                                 District Judge.

    _____________________________________

    KEAGAN ALLEN,

                              Plaintiff-Appellant,

                      v.                                                     15-3252-cv

    TROY ANTAL, HOWARD DORNER, THOMAS ANGELL,
    ESQ., DAVID GOODMAN, ESQ., DEL ATWELL,
    DUTCHESS COUNTY PUBLIC DEFENDER’S OFFICE,
    DUTCHESS COUNTY, STEVEN LEVINE, ESQ.,
    BRADFORD KENDALL,


                              Defendants-Appellees,

    *
     Judge Nicholas G. Garaufis, of the United States District Court for the Eastern District of New
    York, sitting by designation.
STEVEN ROSENBLUM, MARIO DAVILA, TERESA
BURGESS, LISA SMITHWICK, DEIDRE BROWN,

                  Defendants.
_____________________________________

For Plaintiff-Appellant:                           MEIR KATZ (Robert J. Tolchin, on the brief),
                                                   The Berkman Law Office, LLC, Brooklyn,
                                                   N.Y.

For Defendants-Appellees:                          MATTHEW W. GRIECO, Assistant Solicitor
                                                   General (Steven C. Wu, Barbara D.
                                                   Underwood, on the brief), for Eric T.
                                                   Schneiderman, Attorney General of the State
                                                   of New York, New York, N.Y., (for Troy
                                                   Antal and Howard Dorner), DANIEL C.
                                                   STAFFORD, McCabe & Mack LLP,
                                                   Poughkeepsie, N.Y. (for Thomas Angell,
                                                   Esq., David Goodman, Esq., Dutchess
                                                   County Public Defender’s Office, Dutchess
                                                   County, Steven Levine, Esq., and Bradford
                                                   Kendall), and DEL ATWELL, pro se, East
                                                   Hampton, N.Y.

       Appeal from two judgments of the United States District Court for the Southern District

of New York (Román, J.), entered September 18, 2015 and February 2, 2016.

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

DECREED that the judgment of the district court is AFFIRMED.

       Plaintiff-Appellant Keagan Allen appeals from two judgments of the United States

District Court for the Southern District of New York (Román, J.), one granting, with the

exception of Defendant-Appellee Atwell, Defendants-Appellees’ motions to dismiss, and the

other granting Defendant-Appellee Atwell’s motion for summary judgment.          Allen argues,

among other things, that the district court erred in dismissing his third amended complaint

[hereinafter “Complaint”] because his various federal and state claims did not accrue until his

state criminal conviction had been vacated, which he contends occurred in August 2012. He

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further contends that the district court improperly dismissed certain claims for failure to state a

claim and that his state constitutional claims should not have been dismissed because no

alternative remedy exists.     We assume the parties’ familiarity with the underlying facts,

procedural history, and issues on appeal. For substantially the same reasons as articulated by the

district court, we AFFIRM both the dismissal and summary judgment decisions.

       This Court reviews de novo orders granting motions to dismiss. McCarthy v. Dun &

Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007). To survive a Rule 12(b)(6) motion, a

plaintiff need plead “only enough facts to state a claim to relief that is plausible on its face.” Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Although a complaint “does not need detailed

factual allegations, a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’

requires more than labels and conclusions, and a formulaic recitation of the elements of a cause

of action will not do.” Id. at 555 (citations omitted) (quoting Fed. R. Civ. P. 8(a)(2)).

       Likewise, we review grants of summary judgment de novo. McBride v. BIC Consumer

Prods. Mfg. Co., 583 F.3d 92, 96 (2d Cir. 2009). This Court will affirm a grant of summary

judgment “only where, construing all the evidence in the light most favorable to the non-movant

and drawing all reasonable inferences in that party’s favor, ‘there is no genuine issue as to any

material fact and . . . the movant is entitled to judgment as a matter of law.’” Id. at 96 (omission

in original) (quoting Fed. R. Civ. P. 56(c)).

       A. Claims Against State Defendants

              i.   Federal claims

                       a. Statute of limitations

       With the exception of Allen’s malicious prosecution and abuse of process claims, see

infra, his federal claims for false imprisonment, false arrest, illegal search and seizure, assault

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and battery, and conspiracy were properly dismissed as time-barred. Claims brought pursuant to

42 U.S.C. § 1983 and § 1985 must be filed within three years of the date on which such claims

accrue. Milan v. Wetheimer, 808 F.3d 961, 963 (2d Cir. 2015); Cornwell v. Robinson, 23 F.3d

694, 703 (2d Cir. 1994). The standard rule is that accrual occurs when the plaintiff has “a

complete and present cause of action, that is, when the plaintiff can file suit and obtain relief.”

Wallace v. Kato, 549 U.S. 384, 388 (2007) (citations omitted) (quoting Bay Area Laundry & Dry

Cleaning Pension Trust Fund v. Ferbar Corp. of Cal., Inc., 522 U.S. 192, 201 (1997)); see also

Singleton v. City of New York, 632 F.2d 185, 191 (2d Cir. 1980) (federal claims accrue at “a

point in time when the plaintiff knows or has reason to know of the injury which is the basis of

his action”). Because the alleged illegal search and seizure, arrest, and arraignment all occurred

on June 22, 2007, Allen’s November 2012 Complaint falls well outside the three-year time limit.

His federal claims for false imprisonment, false arrest, illegal search and seizure, assault and

battery, and conspiracy were therefore properly dismissed.

                      b. Failure to state a claim

       Allen’s malicious prosecution claim was properly dismissed because probable cause

existed for his arrest. “‘The existence of probable cause is a complete defense to a claim of

malicious prosecution in New York,’ and ‘indictment by a grand jury creates a presumption of

probable cause.’” Manganiello v. City of New York, 612 F.3d 149, 161–62 (2d Cir. 2010)

(citation omitted) (quoting Savino v. City of New York, 331 F.3d 63, 72 (2d Cir. 2003)). “That

presumption may be rebutted only ‘by evidence that the indictment was procured by fraud,

perjury, the suppression of evidence or other police conduct undertaken in bad faith.’” Id.

(quoting Savino, 331 F.3d at 72).



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       Here, the district court was correct to dismiss Allen’s malicious prosecution claim.

Despite it later being determined by the Appellate Division that the initial stop and search of

Allen’s vehicle was unlawful, at the time prosecution was initiated there was undoubtedly

probable cause to believe Allen was in criminal possession of a weapon. See N.Y. Penal Law §

265.03.   Indeed, an unlicensed weapon with loose ammunition was found in Allen’s car.

Moreover, because Allen was indicted by a grand jury, probable cause to prosecute is presumed.

See Manganiello, 612 F.3d at 162. Nothing in Allen’s Complaint even attempts to rebut this

presumption, and Allen advances no argument to that effect on appeal.

       Allen’s abuse of process claim was also properly dismissed because he failed to plausibly

allege that his prosecution was initiated based on an improper purpose. In New York, “[a]

malicious motive alone . . . does not give rise to a cause of action for abuse of process.” Savino,

331 F.3d at 77 (alteration in original) (quoting Curiano v. Suozzi, 63 N.Y.2d 113, 117 (1984)).

“In order to state a claim for abuse of process, a plaintiff must establish that the defendants had

an improper purpose in instigating the action.” Id. A plaintiff alleging abuse of process must

claim that the defendants “aimed to achieve a collateral purpose beyond or in addition to his

criminal prosecution.” Id. Allen’s Complaint fails sufficiently to assert any such purpose and

thus fails to plead plausibly a claim for abuse of process.

             ii.   State constitutional claims

       Allen’s claims brought under the New York State Constitution were properly dismissed.

The New York State Constitution provides a private right of action where remedies are otherwise

unavailable at common law or under § 1983. See Brown v. State of New York, 89 N.Y.2d 172,

192 (1996) (recognizing “narrow remedy” for a constitutional tort claim brought under the State

Constitution where a plaintiff otherwise has no available remedy). Because alternative remedies

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were available under § 1983 and common law here, however, the district court properly

dismissed Allen’s state constitutional claims.

            iii.   State-law claims

       Allen’s state-law claims for false arrest, false imprisonment, and assault and battery were

likewise properly dismissed as barred by the applicable statute of limitations. Allen’s assault and

battery claims accrued on June 22, 2007, and his false arrest and false imprisonment claims

accrued when he was released from prison in September 2010. See Bellissimo v. Mitchell, 122

A.D.3d 560, 560 (2d Dep’t 2014); Bennett v. City of New York, 204 A.D.2d 587, 587 (2d Dep’t

1994). All are barred by the applicable one-year statute of limitations. N.Y. C.P.L.R. § 215(3).

Allen also fails to state a claim for malicious prosecution and abuse of process under New York

law for the same reasons these claims failed when asserted under § 1983. See supra.

       Further, though not specifically addressed by the district court, Allen’s defamation claim

is also barred by the statute of limitations. An action for libel or slander under New York law

must be brought within one year from the date the offending material is first published. N.Y.

C.P.L.R. § 215(3); Nussenzweig v. diCorcia, 9 N.Y.3d 184, 188 (2007). New York courts

generally apply the “single publication rule.” Nussenzweig, 9 N.Y.3d at 188. Here, because the

publishing event giving rise to Allen’s defamation claim occurred no later than February 2008,

more than a year before Allen commenced this action, his claims are time-barred.

       B. Claims Against County Defendants

              i.   Individual county defendants

       Allen’s federal claims against the individual county defendants were properly dismissed

because Allen failed to allege their “personal involvement” in his false arrest, false

imprisonment, illegal search and seizure, malicious prosecution, abuse of process, unjust

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conviction, and assault and battery claims. “It is well settled in this Circuit that ‘personal

involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of

damages under § 1983.’” Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (quoting Moffit v.

Town of Brookfield, 950 F.2d 880, 885 (2d Cir. 1991)). Moreover, “when monetary damages are

sought under § 1983, the general doctrine of respondeat superior does not suffice and a showing

of some personal responsibility of the defendant is required.” Johnson v. Glick, 481 F.2d 1028,

1034 (2d Cir. 1973).      Allen’s complaint is devoid of any facts suggesting the personal

involvement of any county defendants in the acts that form the basis of his federal claims. The

district court properly dismissed those claims against the individual county defendants.

       Additionally, the district court correctly dismissed Allen’s negligence claim against

County Clerk Kendall on the ground that Allen failed to comply with New York’s notice of

claim requirements. See N.Y. Gen. Mun. Law § 50-e (“In any case founded upon tort” against a

public corporation a notice of claim shall be served “within [90] days after the claim arises”). A

negligence claim accrues when an injury is sustained. Kronos, Inc. v. AVX Corp., 81 N.Y.2d 90,

94 (1993). Allen’s negligence claim therefore accrued at the latest when he failed his drug test

and was re-incarcerated on February 29, 2012. Because Allen did not file a notice of claim until

September 24, 2012, his claim was barred.1

       Allen’s New York State constitutional claims against the County Defendants are also

dismissed for the same reason as those claims against the State Defendants: there were

alternative remedies available.




1
  We conclude that Allen was required to file a notice of claim for his claims against the
individual county defendants under N.Y. Gen. Mun. Law § 50-e(1).

                                                7
             ii.   Dutchess County

       The district court also dismissed Allen’s claims against Dutchess County for failure to

state a Monell claim for municipal liability.        To state such a claim a plaintiff must first

demonstrate “the existence of a municipal policy or custom in order to show that the

municipality took some action that caused his injuries beyond merely employing the

misbehaving officer.” Vippolis v. Village of Haverstraw, 768 F.2d 40, 44 (2d Cir. 1985). And,

“[s]econd, the plaintiff must establish a causal connection—an ‘affirmative link’—between the

policy and the deprivation of his constitutional rights.” Id. (quoting Okla. City v. Tuttle, 471

U.S. 808, 823 (1985)).

       Allen has failed to plead plausibly the existence of an official municipal policy or custom

that resulted in the deprivation of his constitutional rights. In a conclusory manner, Allen alleges

that the county defendants—his attorneys—abandoned him and failed to act, which resulted in

his unjust confinement. A bare allegation of this sort cannot suffice to demonstrate a sanctioned

policy or custom of a government entity caused Allen’s alleged injuries.

            iii.   Conspiracy claim

       The district court properly dismissed Allen’s conspiracy claim under 42 U.S.C. § 1985

against the county defendants. “In order to maintain an action under Section 1985, a plaintiff

‘must provide some factual basis supporting a meeting of the minds, such that defendants entered

into an agreement, express or tacit, to achieve the unlawful end.’” Webb v. Goord, 340 F.3d 105,

110 (2d Cir. 2003) (quoting Romer v. Morgenthau, 119 F. Supp. 2d 346, 363 (S.D.N.Y. 2000)).

“A complaint containing only conclusory, vague, or general allegations of conspiracy to deprive

a person of constitutional rights cannot withstand a motion to dismiss.” Leon v. Murphy, 988

F.2d 303, 311 (2d Cir. 1993) (quoting Sommer v. Dixon, 709 F.2d 173, 175 (2d Cir. 1983) (per

                                                 8
curiam)). Because Allen’s assertions that the county defendants conspired to abandon him and

keep him in confinement are vague at best, his Complaint fails to state a claim cognizable under

§ 1985.

              iv.   Legal malpractice claim

       Finally, Allen contends the district court improperly dismissed as untimely his legal

malpractice claim against the Dutchess County Public Defender’s Office, Angell, Goodman, and

Levine.     Under New York law, a claim for legal malpractice in the context of criminal

proceedings accrues when the indictment is dismissed. Britt v. Legal Aid Soc’y, 95 N.Y.2d 443,

445 (N.Y. 2000). Because the indictment was dismissed by the New York Appellate Division on

November 1, 2011, see People v. Allen, 89 A.D.3d 742, 743–44 (2d Dep’t 2011), his notice of

claim on September 24, 2012 was untimely. See N.Y. Gen. Mun. Law § 50-e.

          C. Claims Against Del Atwell

          Last, we are not persuaded that the district court erred in granting summary judgment in

favor of attorney Atwell. To make out a claim for legal malpractice, Allen must demonstrate

“that [Atwell] was negligent, that the negligence was a proximate cause of the injury and that

[Allen] suffered actual and ascertainable damages.” Rubens v. Mason, 387 F.3d 183, 189 (2d

Cir. 2004). “In order to establish the elements of proximate cause and actual damages in a

malpractice case, the plaintiff must show that but for the attorney’s negligence, what would have

been a favorable outcome was an unfavorable outcome.” Zarin v. Reid & Priest, 184 A.D.2d

385, 386 (1st Dep’t 1992). Summary judgment is appropriate where the record “demonstrates

that an intervening cause was responsible for the injury.” Brooks v. Lewin, 21 A.D.3d 731, 734

(1st Dep’t 2005); see also Kush by Marszalek v. City of Buffalo, 59 N.Y.2d 26, 32–33 (1983)

(“An intervening act will be deemed a superseding cause and will serve to relieve defendant of

                                                 9
liability when the act is of such an extraordinary nature or so attenuates defendant’s negligence

from the ultimate injury that responsibility for the injury may not be reasonably attributed to the

defendant.”). Here, we agree with the district court that the record unquestionably demonstrates

that the failure of the County Clerk, Kendall, to notify the New York Department of Corrections

and Community Services that Allen’s conviction had been vacated constitutes an intervening

cause of Allen’s extended prison stay, absolving Atwell of any liability.

       We have considered Allen’s remaining contentions on appeal and have determined they

are without merit. For the reasons stated above, the district court's judgments are AFFIRMED.

                                                     FOR THE COURT:
                                                     Catherine O’Hagan Wolfe, Clerk




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