17-3940
Pehush v. Ashworth

                         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 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 4th day of December, two thousand eighteen.

Present:
            ROBERT A. KATZMANN,
                  Chief Judge,
            GUIDO CALABRESI,
            RAYMOND J. LOHIER, JR.,
                  Circuit Judges.
_____________________________________

SHARON PEHUSH,

        Plaintiff-Appellant,

GEORGE PEHUSH, E.P., minor child, J.P., minor child,

        Plaintiffs,

                v.                                              No. 17-3940

DETECTIVE JULIA ASHWORTH, sued in her individual
capacity, TOWN OF WALLKILL,

        Defendants-Appellees,

TOWN OF WALLKILL, POLICE DEPARTMENT, CHIEF
ROBERT HERTMAN, sued in his individual capacity,
THE ARC OF ORANGE COUNTY, DIANE LENTINO,
AMY BORDOWSKI, CHRIS FORTUNE, CEO THE ARC
OF ORANGE COUNTY, AKA CHRISTOPHER FORTUNE,
ROSEMARY CAPUTO, NEWS 12 HUDSON VALLEY,
DANEYA CROSBY, TRACY FEIL, JOHN/JANE DOES,
each of whom are members of the Town of Wallkill
                                               1
Police Department, sued in their individual capacity,

      Defendants.
____________________________________

For Plaintiff-Appellant:                             STEPHEN BERGSTEIN, Bergstein & Ullrich,
                                                     LLP (Scott A. Korenbaum, New York, NY,
                                                     on the brief), New Paltz, NY.

For Defendants-Appellees:                            JAMES A. RANDAZZO, Portale Randazzo LLP
                                                     (Drew Sumner, Sumner Law LLP, on the
                                                     brief), White Plains, NY.

       Appeal from a judgment of the United States District Court for the Southern District of

New York (Smith, M.J.).

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

DECREED that the judgment of the district court is VACATED and REMANDED.

       Sharon Pehush appeals a judgment of the United States District Court for the Southern

District of New York granting defendants’ motion for summary judgment on all claims. For the

following reasons, we conclude that there are genuine, material disputes of fact, and so vacate

that judgment and remand for trial of appellant’s false arrest claims and consideration by the

district court of whether material, genuine disputes otherwise remain as to her malicious

prosecution claims. We assume the parties’ familiarity with the underlying facts, the procedural

history of the case, and the issues on appeal.

       On April 2, 2014, the Town of Wallkill Police Department received a phone call from

Diane Lentino, the Director of Education at Orange AHRC (“AHRC”), who reported that she

was notified that morning that a teacher at the school had abused a special needs child, E.H., a

few days earlier. Several police officers, including Detective Julia Ashworth, responded to the

call. The officers interviewed and received written, sworn statements from Lentino and Tracy

Feil, AHRC’s teacher-in-charge. Lentino relayed to the officers what she had been told by a

teaching assistant named Daneya Crosby, and Feil relayed what Lentino had told her. The police


                                                 2
then spoke with Crosby, and Detective Ashworth prepared a sworn statement that Crosby

reviewed and signed.

       Crosby reported that, on March 28, 2014, she went to AHRC to work and was assigned to

Pehush’s classroom. She arrived around 9:15 and immediately noticed E.H. “sitting by herself at

the op[p]osite side of the room with a divider on the desk so she couldn’t see the other kids.”

App. at 544. Half an hour after Crosby arrived, another assistant, Giuseppina Corrado, asked

Pehush to work with E.H., but Pehush refused. Crosby also stated that Pehush gave E.H. lunch

around 12:30 or 1:00 when the other children ate around 11:45, and that Pehush did not allow

E.H. to work with the speech therapist or go to the gym with the other children. Finally, Crosby

alleged that E.H. was given her lunch “still sitting in a dirty diaper” because, while Crosby heard

someone claim that E.H. did not need her diaper changed, no one ever checked. Id. at 544-45.

Crosby said she changed E.H.’s diaper shortly before the end of the school day at 2:00 and that it

was “soaking wet.” Id. at 545. The following day, Ashworth had a conversation with an

unidentified Assistant District Attorney who, Ashworth said, told her that Crosby’s account “fit

the criteria of Endangering the Welfare of a Child,” and advised that she call the New York State

Central Justice Center for a reference to Child Protective Services, which she did. Id. at 411-12.

       On April 4, Detective Ashworth interviewed Pehush at the police station. Pehush secretly

recorded this interview on her cell phone. In the interview, Pehush said that she sat E.H. at a

separate table because E.H. repeatedly tossed her work on the floor and interfered with other

children, and later moved a rolling bookshelf and set up a cardboard divider to prevent E.H. from

throwing her toys and to help her focus. Pehush said she regularly interacted with E.H., they

could see each other, and that E.H. was never distressed. Pehush also said that students’ diapers

are changed at least three times a day, unless they are not soiled, and that she thought Corrado

had changed E.H.’s diaper that day. However, Pehush confirmed that E.H. did not eat her lunch

with the rest of the students or go to the gym, claiming that she was working with E.H. during

                                                 3
those times. She also confirmed that she asked the speech therapist to reschedule E.H.’s

appointment, but claimed that such sessions were often moved and that the therapist was happy

to reschedule. After approximately an hour, Detective Ashworth left the interview. She came

back a few minutes later and told Pehush that she had spoken with the District Attorney’s office,

that her actions constituted a violation of New York Penal Law § 260.10(1), which prohibits

endangering the welfare of a child, and that they would charge her. Ashworth placed Pehush

under arrest. Six months later, the criminal charges were dismissed. Both Pehush and Corrado,

however, lost their jobs.

          Pehush brought this suit in April 2015. She makes claims against Detective Ashworth in

her individual capacity for false arrest and malicious prosecution under both New York law and

42 U.S.C. § 1983, and makes a state law false arrest claim against the Town of Wallkill under a

theory of respondeat superior. The parties consented to proceeding before Magistrate Judge Lisa

Smith, who, in a November 8, 2017 opinion, granted the defendants’ motion for summary

judgment on all counts. This appeal timely followed.

          Summary judgment is appropriate only if “there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). We review

a district court’s grant of summary judgment de novo and “resolve all ambiguities and draw all

permissible factual inferences in favor of the party against whom summary judgment is

sought.” Estate of Gustafson ex rel. Reginella v. Target Corp., 819 F.3d 673, 675 (2d Cir.

2016).1

          A finding of probable cause would defeat Pehush’s false arrest claims under both 42

U.S.C. § 1983 and New York state law. See Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996).

Generally, “probable cause to arrest exists when the officers have knowledge or reasonably


1
  Unless otherwise indicated, case quotations omit all internal quotation marks, alterations,
footnotes, and citations.
                                                  4
trustworthy information of facts and circumstances that are sufficient to warrant a person of

reasonable caution in the belief that the person to be arrested has committed or is committing a

crime.” Id. In addition, even if Detective Ashworth arrested Pehush without probable cause,

Pehush’s claims against Detective Ashworth fail if she is entitled to qualified immunity. Jenkins

v. City of New York, 478 F.3d 76, 86-87 (2d Cir. 2007). Qualified immunity protects public

officials from liability for civil damages if it was objectively reasonable for the officials to

believe that their actions did not violate clearly established law. Russo v. City of Bridgeport, 479

F.3d 196, 211 (2d Cir. 2007). “The protection of qualified immunity applies regardless of

whether the government official’s error is a mistake of law, a mistake of fact, or a mistake based

on mixed questions of law and fact.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). Qualified

immunity is an affirmative defense for which Detective Ashworth bears the burden of proof.

Vincent v. Yelich, 718 F.3d 157, 166 (2d Cir. 2013).

       Defendants claim, and the district court agreed, that Detective Ashworth had at least

arguable probable cause to arrest Pehush for violation of N.Y. Penal Law § 260.10, which

prohibits, in relevant part, “knowingly act[ing] in a manner likely to be injurious to the physical,

mental or moral welfare of a child less than seventeen years old.” The conduct need not actually

harm a child, as long as “harm was likely to occur, and not merely possible,” and the defendant

was “aware that the conduct may likely result in harm to a child.” People v. Hitchcock, 780

N.E.2d 181, 183 (N.Y. 2002). We disagree with the district court and conclude that there are

material, genuine disputes regarding what Detective Ashworth knew at the time of Pehush’s

arrest that preclude summary judgment.

       A key question in this case is what Detective Ashworth had reason to believe when she

arrested Pehush. Defendants and the district court rely on the three sworn statements, but

Detective Ashworth knew that Lentino and Feil were not eyewitnesses, so their statements

should have carried less weight than Crosby’s. Because Crosby was not deposed, the only

                                                   5
evidence of what she told Detective Ashworth is her sworn statement and Detective Ashworth’s

testimony. As to the former, while Crosby reviewed and signed the statement, Detective

Ashworth drafted it. As to the latter, whether to credit that testimony is for a jury to decide. See

Curry v. City of Syracuse, 316 F.3d 324, 333 (2d Cir. 2003).

       What weight to give Crosby’s statement and Detective Ashworth’s testimony is also an

issue for the jury because there are reasons to doubt Detective Ashworth’s credibility. Detective

Ashworth’s report memorializing her interview with Pehush is at best inaccurate and at worst

intentionally misleading. According to the report, Pehush said that she gave E.H. her lunch

“[j]ust prior to getting on the bus at the end of the day.” App. at 553. In fact, Pehush repeatedly

insisted that E.H. received her lunch at 12:30, an hour and a half before the end of the five-hour

school day. The report also states that Pehush “figured she was justified in secluding [E.H.] for

the entirety of the day” because E.H. “was apparently throwing a small lego in the room early in

the morning.” Id. at 553. In fact, Pehush said that E.H. consistently threw things and refused to

follow directions, so she was separated to help her and the other children focus.2

       Furthermore, there is evidence in the record suggesting that Detective Ashworth arrested

Pehush based only on Lentino’s and Feil’s secondhand reports and ignored later, exculpatory

statements from Crosby, an actual eyewitness. Most importantly, while neither Lentino nor Feil

made any mention of it, Detective Ashworth testified that Crosby told her that Pehush worked

with E.H. throughout the day, and Crosby’s sworn statement that E.H. “was kept in the room

with only” Pehush when the other students went to the gym, id. at 544-45, supports that claim.

The district court mistakenly assumed that Detective Ashworth had only Pehush’s word that she

did not abandon E.H. in the corner. In fact, Crosby herself told Detective Ashworth that Pehush


2
  Were the jury to find Detective Ashworth not credible, it could also reasonably discount her
conversation with the ADA. A reasonable jury could infer that Detective Ashworth
misrepresented and omitted relevant facts to the ADA just as she later did in her report
memorializing her interview with Pehush.
                                                  6
worked with E.H. throughout the four-and-a-half-hour period in question. Notably, this material

evidence appears nowhere in the short statement that Detective Ashworth drafted.

       Likewise, it is undisputed that Crosby did not tell Detective Ashworth that she saw E.H.

cry or look upset, as one would expect from a child held isolated in a corner. Indeed, Crosby

never even checked on E.H., as one would expect if she saw such cruel treatment as Lentino and

Feil described. Detective Ashworth also knew that Crosby did not contact the police and that she

waited five days to even report what she saw to Lentino. The district court found that it was

reasonable for Detective Ashworth to rely on Crosby’s, Lentino’s, and Feil’s opinions to

conclude that Pehush’s conduct was likely to harm E.H., but a reasonable juror could find that

Detective Ashworth knew, or should have known, that this was only Lentino and Feil’s

conclusion. According to Detective Ashworth, Crosby “just [said] that she thought [Pehush’s

conduct] was inappropriate.” Id. at 401.

       Detective Ashworth also inexplicably failed to speak with Corrado, the only other

eyewitness, and never asked Crosby to recreate the physical circumstances of E.H.’s separation,

which are only briefly described in Crosby’s sworn statement. There is thus no evidence that

Detective Ashworth had reason to believe that the barriers blocked more than E.H.’s view of the

other students. While Detective Ashworth had no obligation to investigate further if she already

had probable cause, see Panetta v. Crowley, 460 F.3d 388, 398 (2d Cir. 2006), her failure to take

these easy investigative steps supports an inference that she had made up her mind based only on

Lentino’s and Feil’s secondhand reports.3

       These disputes are material. Viewing the evidence in the light most favorable to the

plaintiff, a reasonable juror could find that Detective Ashworth knew that Pehush was providing


3
  Lentino and Feil also said that E.H. did not eat her lunch until the end of the day, which
Detective Ashworth appeared to have accepted, given her reference to that information in her
summary of her interview with Pehush. But Crosby told Detective Ashworth that Pehush gave
E.H. her lunch between 12:30 and 1:00.
                                                7
E.H. with regular, one-on-one attention throughout the day, and that Detective Ashworth had no

idea how the rolling bookcase and cardboard dividers were set up. Given that information, no

reasonable officer would think that E.H. was at risk of meaningful injury. Moreover, no

reasonable officer would think that a teacher providing one-on-one assistance to a child knows

that her conduct is likely to injure the child’s mental welfare. Although Detective Ashworth did

not need to have specific evidence as to Pehush’s mens rea, she could not ignore known,

exculpatory evidence on that score. See Jocks v. Tavernier, 316 F.3d 128, 136 (2d Cir. 2003) (the

officer cannot “deliberately disregard facts known to him” to find probable cause).

       The remaining allegations do not render this dispute immaterial. Eating lunch later than

other students and missing speech therapy and a trip to the gym is perfectly justifiable if it

facilitates one-on-one work with the teacher. As to the diaper, there is a dispute regarding what

Detective Ashworth knew about the grounds for Crosby’s belief that E.H. did not have her diaper

changed—the sworn statement reflects only that she did not see anyone check it at lunch and that

it was wet at the end of the day.

       In dismissing Pehush’s state and federal malicious prosecution claims, the district court

relied exclusively on its finding that there was no genuine dispute material to whether Detective

Ashworth had arguable probable cause. On remand, it should consider whether there are genuine

disputes as to the other elements of those claims. See Fulton v. Goord, 591 F.3d 37, 45 (2d Cir.

2009) (“It is our settled practice to allow the district court to address arguments in

the first instance.”). Since we conclude that there are genuine disputes of material fact as to

whether there was arguable probable cause, we need not consider whether, under New York law,

when a claim against an officer is dismissed for qualified immunity, the claim must also be

dismissed against the municipality. See Kass v. City of New York, 864 F.3d 200, 213-14 (2d Cir.

2017); Demoret v. Zegarelli, 451 F.3d 140, 152-53 (2d Cir. 2006); Hayes v. City of Amsterdam,

770 N.Y.S.3d 138, 140 (3d Dep’t 2003); but see Verponi v. City of New York, 31 Misc. 3d

                                                  8
1230(A) (Table), at *13 (N.Y. Sup. Ct. 2011); Napier v. Town of Windham, 187 F.3d 177, 191

(1st Cir. 1999); Restatement (Second) of Agency § 217.

         For the foregoing reasons, we VACATE the judgment of the district court and

REMAND for trial on the false arrest claims against Detective Ashworth and the Town of

Wallkill and for further consideration of the malicious prosecution claims consistent with this

order.


                                                     FOR THE COURT:
                                                     Catherine O’Hagan Wolfe, Clerk




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