     12-4611
     Wesolowski v. Bockelmann

                          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
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 28th day of October, two thousand thirteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                RAYMOND J. LOHIER, JR.,
 8                              Circuit Judges,
 9                JOHN G. KOELTL*
10                              District Judge.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       Amy Negron, FKA Amy O’Bryan, officer,
14                Plaintiff-Counter-Defendant,
15
16                    -v.-                                               12-4611
17
18       Paul Wesolowski, in his official
19       capacity as a member of the Ulster
20       County Sheriff’s Department, and
21       individually,
22                Defendant-Cross-Claimant-
23                Counter-Claimant-Appellant


                *
               Judge John G. Koeltl, of the United States District
         Court for the Southern District of New York, sitting by
         designation.
                                                  1
 1
 2            -v.-
 3
 4   Richard J. Bockelmann, in his official
 5   capacity as Sheriff of the County of
 6   Ulster and individually
 7            Defendant-Cross-Defendant-
 8            Appellee
 9
10   Bradford Ebel, in his official
11   capacity as Superintendent of the
12   Ulster County jail and individually,
13   Ray Acevedo, in his official capacity
14   as Deputy Superintendent of the
15   Ulster County Jail and individually,
16   Ulster County,
17   Paul J. Van Blarcum, in his official
18   capacity as Sheriff of the County of
19   Ulster, and individually
20            Defendants-Cross-Defendants.
21
22   - - - - - - - - - - - - - - - - - - - -X
23
24   FOR APPELLANT:             MICHAEL H. SUSSMAN, Sussman &
25                              Watkins, Goshen, New York.
26
27   FOR APPELLEES:             MATTHEW J. KELLY, Roemer Wallens
28                              Gold & Mineaux LLP, Albany, New
29                              York.
30
31        Appeal from a judgment of the United States District
32   Court for the Northern District of New York (Scullin, J.).
33
34        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
35   AND DECREED that the judgment of the district court be
36   AFFIRMED.
37
38        Paul Wesolowski appeals a judgment of the United States
39   District Court for the Northern District of New York
40   (Scullin, J.), dismissing his malicious prosecution claim
41   against Richard Bockelmann, former Sheriff of Ulster County.
42   On appeal, Wesolowski challenges the order setting aside the
43   jury verdict in his favor and granting Bockelmann’s motion
44   for judgment as a matter of law (“JMOL”). Wesolowski argues
45   that (1) there was sufficient evidence to support the
46   verdict, and (2) Bockelmann failed to move properly for JMOL

                                  2
 1   under Fed. R. Civ. P. 50(a) before the case was submitted to
 2   the jury, and thus failed to preserve his right to renew the
 3   motion after the verdict.1 We assume the parties’
 4   familiarity with the underlying facts, the procedural
 5   history, and the issues presented for review.
 6
 7        The district court’s ruling on a post-verdict motion
 8   for JMOL under Rule 50(b) is reviewed de novo. Runner v.
 9   N.Y. Stock Exch., Inc., 568 F.3d 383, 386 (2d Cir. 2009). A
10   Rule 50 motion may be granted only if, “after viewing the
11   evidence in the light most favorable to the non-moving party
12   and drawing all reasonable inferences in favor of the
13   non-moving party, [the district court] finds that there is
14   insufficient evidence to support the verdict.” Fabri v.
15   United Techs. Int'l, Inc., 387 F.3d 109, 119 (2d Cir. 2004).
16
17        “Claims for ... malicious prosecution, brought under
18   § 1983 to vindicate the Fourth and Fourteenth Amendment
19   right to be free from unreasonable seizures, are
20   ‘substantially the same’ as claims for ... malicious
21   prosecution under state law.” Jocks v. Tavernier, 316 F.3d
22   128, 134 (2d Cir. 2003) (citing Conway v. Village of Mount
23   Kisco, 750 F.2d 205, 214 (2d Cir. 1984)). “Because there
24   are no federal rules of decision for adjudicating § 1983
25   actions that are based upon claims of malicious prosecution,
26   [courts] are required by 42 U.S.C. § 1988 to turn to state
27   law - in this case, New York state law - for such rules.”
28   Conway, 750 F.2d at 214.
29
30        The elements of a malicious prosecution claim in New
31   York are: (1) the defendant initiated a prosecution against
32   the plaintiff, (2) the defendant lacked probable cause to
33   believe the proceeding could succeed, (3) the defendant
34   acted with malice, and (4) the prosecution was terminated in
35   the plaintiff’s favor. Rohman v. N.Y.C. Transit Auth., 215
36   F.3d 208, 215 (2d Cir. 2000).
37
38   1.   As the district court concluded, no reasonable juror
39   could have found that Bockelmann initiated Wesolowski’s
40   prosecution. To initiate prosecution, “a defendant must do


         1
           The district court also granted a new trial under
     Fed. R. Civ. P. 59 because it found that the jury’s verdicts
     were inconsistent. On appeal, Wesolowski challenges this
     finding. However, it is unnecessary to reach that issue
     here.
                                  3
 1   more than report the crime or give testimony. He must play
 2   [] an active role in the prosecution, such as giving advice
 3   and encouragement or importuning the authorities to act.”
 4   Manganiello v. City of New York, 612 F.3d 149, 163 (2d Cir.
 5   2010) (alteration in original) (internal citations and
 6   quotation marks omitted). According to Lieutenant Ronald
 7   Dreiser’s unrebutted testimony, Dreiser conducted the
 8   investigation and himself referred the charges to the
 9   district attorney as a matter of department policy, without
10   asking Bockelmann for permission. Trial Transcript (“Tr.”)
11   at 961. While Bockelmann approved of Dreiser’s actions, see
12   Tr. at 1009, there is no evidence that he directed those
13   actions, played any active role in the investigation of
14   Negron’s claims, or encouraged the district attorney to
15   bring the charges.
16
17        On that record, no reasonable juror could conclude that
18   Bockelmann initiated Wesolowski’s prosecution; so we need
19   not consider whether there was probable cause to refer the
20   charges to the district attorney.
21
22   2.   Bockelmann sufficiently preserved his right to move for
23   JMOL. Under Fed. R. Civ. P. 50(b), a non-prevailing party
24   can, post-verdict, renew a Rule 50(a) motion that was made
25   prior to the submission of the case to the jury. However,
26   because the motion is a “renewal,” it must be premised on
27   grounds specified in the earlier motion. Lore v. City of
28   Syracuse, 670 F.3d 127, 153 (2d Cir. 2012). The specificity
29   requirement ensures that the opposing party has notice,
30   before the case goes to the jury, of the deficiencies in its
31   case. Id. at 152 (“The principal purpose of the requirement
32   that any such motion be made before the case is submitted to
33   the jury is to assure the responding party an opportunity to
34   cure any deficiency in that party’s proof.”) (internal
35   quotation marks omitted).
36
37        The specificity requirement, while “obligatory,” must
38   nevertheless be viewed “in [] context” in assessing whether
39   the motion was “sufficiently specific to alert the opposing
40   party to the supposed deficiencies in her proof.”
41   Galdieri–Ambrosini v. Nat’l Realty & Dev. Corp., 136 F.3d
42   276, 286-87 (2d Cir. 1998). Immediately before Bockelmann’s
43   motion, Negron moved to dismiss the malicious prosecution
44   claim against her. The grounds for the Rule 50(a) motion
45   were the insufficiency of the evidence that Negron initiated
46   Wesolowski’s prosecution. See Tr. at 1181 (“Based on the
47   inadequacy of proof with respect to the joint participation

                                  4
 1   or cooperation with the county ... there hasn’t been
 2   adequate evidence to submit [the malicious prosecution]
 3   issue to the jury ....”). Wesolowski’s counsel argued in
 4   response that under “one reading of the evidence ... Negron
 5   ... encouraged the matter to be sent to prosecution ....”.
 6   Tr. at 1182-83. The court granted Negron’s motion. Id. at
 7   1184. Bockelmann’s counsel then stated that he wished to
 8   “make the same motion” to dismiss the malicious prosecution
 9   claim against Bockelmann. Id. (emphasis added). The
10   context makes clear that Bockelmann moved on the same
11   grounds as Negron, i.e., that there was insufficient
12   evidence to support a finding that the defendant had
13   initiated the prosecution. Accordingly, the motion meets
14   the specificity requirement of Rule 50(a), and the district
15   court correctly granted Bockelmann’s renewed motion for
16   JMOL.
17
18        For the foregoing reasons, and finding no merit in
19   Wesolowski’s other arguments, we hereby AFFIRM the judgment
20   of the district court.
21
22                              FOR THE COURT:
23                              CATHERINE O’HAGAN WOLFE, CLERK
24




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