14-267-cv
Lewis v. City of New York

                                 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
29th day of January, two thousand fifteen.

Present:    PIERRE N. LEVAL,
            ROSEMARY S. POOLER,
            DENNY CHIN,
                        Circuit Judges.
_____________________________________________________

JONATHAN LEWIS,

                                   Plaintiff-Appellant,


                            v.                                               14-267-cv

CITY OF NEW YORK, POLICE OFFICER SHAWN JOHNSTON,
ID #947782, POLICE OFFICER JOHN DAMACCO, ID #946892,
SERGEANT ALEX MONTESQUIEU, ID #928799,

                                   Defendants-Appellees,

POLICE OFFICERS JOHN DOES 1 THROUGH 5, POLICE
OFFICER STEPHEN KEREKES, ID # 947129,

                        Defendants.
_____________________________________________________

Appearing for Appellant:                  Anthony C. Ofodile, Ofodile & Associates, P.C., Brooklyn,
                                          N.Y.

Appearing for Appellees:                  Jonathan A. Popolow, Special Assistant Corporation
                                          Counsel, for Zachary W. Carter, Corporation Counsel of
                                          the City of New York, New York, N.Y.
      Appeal from the United States District Court for the Eastern District of New York
(Mauskopf, J.).

     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

       Appellant Jonathan Lewis appeals from the December 24, 2013 order and opinion of the
United States District Court for the Eastern District of New York (Mauskopf, J.) granting
Defendants-Appellees’ motion for judgment on the pleadings, denying Lewis’s motion to amend,
and dismissing the complaint. We assume the parties’ familiarity with the underlying facts,
procedural history, and specification of issues for review.

         On appeal, Lewis challenges the district court’s decision to dismiss his claims of (1)
malicious prosecution, (2) denial of the right to a fair trial, and (3) retaliation in violation of the
First Amendment, and to deny leave to amend his complaint. We review a district court’s grant
of judgment on the pleadings pursuant to Rule 12(c) de novo, applying the same standards
applicable to dismissals for failure to state a claim under Rule 12(b)(6). We accept as true all
plausible allegations of fact in the complaint, and draw all reasonable inferences in favor of the
non-moving party. Burnette v. Carothers, 192 F.3d 52, 56 (2d Cir. 1999). To survive the
pleading stage, a 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), and must do more than
conclusorily assert the elements of a cause of action, see Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). “We review a district court’s denial of leave to amend for abuse of discretion, unless the
denial was based on an interpretation of law, such as futility, in which case we review the legal
conclusion de novo.” Panther Partners Inc. v. Ikanos Commc’ns, Inc., 681 F.3d 114, 119 (2d
Cir. 2012).

        First, we find no error in the district court’s dismissal of Lewis’s malicious prosecution
claim. “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. 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. at 161–62 (internal
quotation marks and citations omitted).

        Here, Lewis’s indictment by a Queens County grand jury creates a presumption of
probable cause. The various iterations of Lewis’s complaint fail to rebut this presumption,
essentially alleging only that the defendant officers must have fabricated evidence in light of
Lewis’s version of the events and his ultimate acquittal. Such conclusory allegations are
insufficient to counter the presumption of probable cause, and to allow a court to draw the
reasonable inference that the grand jury’s indictment was a result of fraud or other misconduct.
See Iqbal, 556 U.S. at 679 (“where the well-pleaded facts do not permit the court to infer more
than the mere possibility of misconduct, the complaint has alleged – but it has not ‘show[n]’ –
‘that the pleader is entitled to relief.’”) (quoting Fed. R. Civ. P. 8(a)(2)). We are unpersuaded by

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Lewis’s argument that he was unable to provide more specific allegations in the absence of
discovery as to how the indictment was obtained. While such discovery would certainly have
been useful, we find it difficult to believe that Lewis was unable to make more specific
allegations regarding any fabrication in the State’s evidence in the criminal proceeding, where he
was present throughout the subsequent trial on the indictment.

         Lewis’s claim of denial of the right to a fair trial fails for the same reasons. We have held
that “[w]hen 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.” Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 130 (2d Cir.
1997). We agree with the district court that because Lewis has provided no detail regarding the
evidence purportedly fabricated by the defendant officers, he has not stated a plausible claim for
denial of the right to a fair trial.

        Finally, we affirm the dismissal of Lewis’s First Amendment retaliation claim.
Regardless of whether he alleges a claim of retaliatory arrest or one of retaliatory prosecution,
Lewis lacks third-party standing to bring a First Amendment retaliation claim on the basis of his
mother’s allegedly protected speech. Although the district court did not dismiss Lewis’s claim on
third-party standing grounds, appellees did raise this argument below and press it again on
appeal. Our review is de novo, and we may affirm on any basis supported by the record. See
Coulter v. Morgan Stanley & Co. Inc., 753 F.3d 361, 366 (2d Cir. 2014) (“We review the district
court’s grant of a motion to dismiss de novo, but may affirm on any basis supported by the
record.”).

        Lewis claims that he was either arrested or prosecuted in retaliation for his mother’s
allegedly protected speech when she complained to the defendant officers regarding their
treatment of her son. In the context of a First Amendment retaliation claim, this Court has held
that “[a] plaintiff may assert the constitutional claims of a third party if the plaintiff can
demonstrate: (1) injury to the plaintiff, (2) a close relationship between the plaintiff and the third
party that would cause plaintiff to be an effective advocate for the third party’s rights, and (3)
some hindrance to the third party’s ability to protect his or her own interests.” Camacho v.
Brandon, 317 F.3d 153, 159 (2d Cir. 2003) (internal quotation marks omitted). “Implicit in
Camacho’s formulation is the requirement that the third party . . . [have] a constitutional claim.”
Huth v. Haslun, 598 F.3d 70, 75 (2d Cir. 2010) (emphasis in original). Here, there is no
allegation that Lewis’s mother suffered an injury from her allegedly protected speech. Cf. id.
(“Huth does not allege that Archer suffered any retaliation for her activities, or more broadly,
that Archer’s constitutional rights were violated in any way. Indeed, she concedes that Archer
could not have brought a claim herself because she did not suffer any injury.”) (internal
quotation marks omitted). Yet even if such injury were alleged, Lewis has still not identified any
“hindrance to [his mother] asserting [her] own rights.” Campbell v. Louisiana, 523 U.S. 392, 397
(1998). Indeed, there is no allegation that Lewis’s mother would be unable or unwilling to assert
her own rights. In the absence of such a hindrance, Lewis lacks third-party standing to assert a
First Amendment retaliation claim on the basis on his mother’s allegedly protected speech.




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        We have considered the remainder of Lewis’s arguments and find them to be without
merit. Accordingly, the judgment of the district court hereby is AFFIRMED.

                                                  FOR THE COURT:
                                                  Catherine O’Hagan Wolfe, Clerk




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