16-2062-cv
Delamota 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.

       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 21st day of March, two thousand seventeen.

PRESENT:            JOSÉ A. CABRANES,
                    RICHARD C. WESLEY,
                                 Circuit Judges,
                    VICTOR MARRERO,
                                 District Judge.*


SEBASTIAN DELAMOTA,

                              Plaintiff-Appellant,                     16-2062-cv

                              v.

THE CITY OF NEW YORK, BRUCH KOCH, RICHARD A.
BROWN, PAUL SCOTTI,

                              Defendants-Appellees.1


FOR PLAINTIFF-APPELLANT:                                    Richard Gross, Rubert & Gross, P.C.,
                                                            Rose M. Weber, New York, NY.



     *
    Judge Victor Marrero, of the United States District Court for the Southern District of New
York, sitting by designation.
     1
         The Clerk of Court is directed to amend the caption as shown above.

                                                       1
FOR DEFENDANTS-APPELLEES:                                    Fay Ng and Melanie T. West, of Counsel,
                                                             for Zachary W. Carter, Corporation
                                                             Counsel for the City of New York, New
                                                             York, NY.

        Appeal from a May 24, 2016 order of the United States District Court for the Eastern
District of New York (Nina Gershon, Judge).

     UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the order of the District Court be and hereby is
AFFIRMED.

        Plaintiff-appellant Sebastian Delamota appeals from a May 24, 2016 order dismissing his 42
U.S.C. §§ 1983, 1985, and 1986 claims against the City of New York (the “City”), New York Police
Department Detective Bruce Koch, Queens County District Attorney Richard A. Brown, and
Assistant District Attorney Paul Scotti. Delamota’s complaint arose from his 2007 conviction for
robbery, which was reversed by the New York Court of Appeals on the ground that the photo array
used to identify him was unduly suggestive. See People v. Delamota, 18 N.Y.3d 107, 117–18 (2011). On
appeal, Delamota contends that the District Court erred in dismissing five of his § 1983 claims
under Rule 12(b)(6), Fed. R. Civ. P.1 We assume the parties’ familiarity with the underlying facts, the
procedural history of this case, and the issues on appeal.

         We review de novo a dismissal of a complaint under Rule 12(b)(6), “construing the complaint
liberally, accepting all factual allegations in the complaint as true, and drawing all reasonable
inferences in the plaintiff’s favor.” Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002).
The complaint must plead “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 all allegations contained in the complaint
are assumed to be true, this tenet is “inapplicable to legal conclusions.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). A claim will have “facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Id.




    1
      Delamota conceded below that his claims for false arrest and false imprisonment were time-
barred, and that his claims against DA Brown in his personal capacity were barred by absolute
immunity. Delamota also withdrew his claim for failure to intervene against ADA Scotti and his
claim for unreasonably prolonged prosecution against all defendants. On appeal, Delamota has
abandoned all claims against DA Brown, as well as all his claims for failure to investigate, failure to
intervene, and Brady violations. In addition, we find Delamota’s conspiracy claim against the
defendants waived as he has not briefed the claim on appeal. See Chabad Lubavitch of Litchfield Cty., Inc.
v. Litchfield Historic Dist. Comm’n, 768 F.3d 183, 200 (2d Cir. 2014).

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         Delamota first argues that the District Court erred in dismissing his malicious prosecution
claim. The District Court dismissed the claim on the ground that there was probable cause for the
proceeding. “To establish a malicious prosecution claim under New York law [or 42 U.S.C. § 1983],
a plaintiff must prove (1) the initiation or continuation of a criminal proceeding against plaintiff; (2)
termination of the proceeding in plaintiff’s favor; (3) lack of probable cause for commencing the
proceeding; and (4) actual malice as a motivation for defendant’s actions.” Manganiello v. City of New
York, 612 F.3d 149, 161 (2d Cir. 2010) (internal quotation marks omitted). “[T]he 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.” Id. at 161–62 (internal
quotation marks and citations omitted). This presumption is rebuttable “only by evidence that the
indictment was procured by fraud, perjury, the suppression of evidence or other police conduct
undertaken in bad faith.” Id. at 162 (internal quotation marks omitted).

         We find no error in the District Court’s dismissal of Delamota’s malicious prosecution claim.
Delamota’s indictment by a grand jury creates a presumption of probable cause and we agree with
the District Court that the allegations in the complaint fail to rebut this presumption. At most, the
allegations permit an inference that Detective Koch performed subpar police work when conducting
the photo array used to identify Delamota, not an inference of conduct rising to the level of fraud,
perjury, suppression of evidence, or other bad faith.

          Second, Delamota argues that the District Court erred in dismissing his due process claim
under the Fourteenth Amendment. Delamota bases his claim on his allegation that Detective Koch
fabricated evidence that he then forwarded to ADA Scotti and the grand jury. “When a police
officer creates false information likely to influence a jury’s decision and forwards that information to
prosecutors, he violates the accused’s constitutional right to a fair trial, and the harm occasioned by
such an unconscionable action is redressable in an action for damages under 42 U.S.C. § 1983.”2
Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 130 (2d Cir. 1997). We agree with the District Court
that Delamota’s complaint does not sufficiently specify any fabricated evidence. The complaint
contains no facts that give rise to an inference that Detective Koch knew that the witness’s son and
initial translator, Juan Jr., might be acquainted with Delamota, or that Juan Jr. could otherwise not
be trusted to interpret his father during the photo array. Delamota’s reliance on Bermudez v. City of
New York, 790 F.3d 368 (2d Cir. 2015), is inapposite, as that case involved the deliberate coercion of
a false identification by police officers.

         Third, Delamota contends that the District Court erred in dismissing his claim for § 1983
relief based on the faulty photo array. We disagree. While a constitutional violation occurs when an



    2
     Delamota’s complaint and briefs frame this claim as a denial of procedural and substantive due
process rather than a denial of his right to a fair trial.

                                                    3
unduly suggestive identification is admitted at trial, a plaintiff may not recover damages for such a
violation if there is an intervening cause of that damage. See Wray v. City of New York, 490 F.3d 189,
193–94 (2d Cir. 2007). Here, there is a clear and independent intervening actor—the trial court—
that admitted the identification evidence. Indeed, the trial court declined to reopen the suppression
hearing even after learning that Juan Jr. was familiar with Delamota. Moreover, Delamota does not
allege that the trial court was misled.

        Fourth, Delamota contends that the District Court erred by dismissing his unreasonably
prolonged detention claim. To prevail on such a claim, a plaintiff must show “(1) that he has a right
to be free from continued detention stemming from law enforcement officials’ mishandling or
suppression of exculpatory evidence, (2) that the actions of the officers violated that right, and (3)
that the officers’ conduct shocks the conscience.” Russo v. City of Bridgeport, 479 F.3d 196, 205 (2d
Cir. 2007) (internal quotation marks omitted). Here, Delamota has alleged only that Detective Koch
withheld information from the District Attorney’s office and the grand jury regarding (1) the
suggestive nature of the photo array, (2) the fact that Juan Jr. interpreted for his father, and (3) the
likelihood that Juan Jr. may have known the plaintiff. As the District Court properly concluded,
none of these allegations give rise to an inference that Detective Koch withheld exculpatory
evidence.

       Finally, Delamota challenges the District Court’s dismissal of his municipal liability claim
brought under § 1983. See Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658 (1978). Having
concluded that Delamota failed to allege any deprivation of federal rights, we hold that the District
Court properly dismissed Delamota’s Monell claim. See id. at 690–91.

                                           CONCLUSION

       We have reviewed all of the arguments raised by Delamota on appeal and find them to be
without merit. For the foregoing reasons, we AFFIRM the May 24, 2016 order of the District
Court.


                                                        FOR THE COURT:
                                                        Catherine O’Hagan Wolfe, Clerk




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