     11-1232-cv
     Crawford 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.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 26th day of April, two thousand twelve.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                ROSEMARY S. POOLER,
 9                SUSAN L. CARNEY,
10                              Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13
14      MICHAEL CRAWFORD,
15
16                   Plaintiff-Appellant,
17
18                   -v.-                                               11-1232-cv
19
20      CITY OF NEW YORK, POLICE OFFICERS JOHN
21      AND JANE DOES 1-10, POLICE OFFICERS
22      JOHN AND JANE DOES 11-20, NEW YORK CITY
23      POLICE CHIEF RAYMOND W. KELLY, in his
24      official capacity and individually,
25      QUEENS COUNTY, QUEENS COUNTY DISTRICT
26      ATTORNEY RICHARD A. BROWN, in his
27      official capacity and individually, NEW


                                                 1
 1   YORK CITY POLICE SERGEANT PETER
 2   MASTROCOVI, in his individual capacity,
 3   NEW YORK CITY DETECTIVE VINCENT
 4   PELLIZZI, in his individual capacity,
 5   NEW YORK CITY DETECTIVE ANTOINETTE
 6   ESPOSITO, in her individual capacity,
 7   ASSISTANT DISTRICT ATTORNEYS JOHN AND
 8   JANE DOES 1-10, in their individual
 9   capacities, JOHN AND JANE DOES 11-20,
10   JESSICA MELTON, ASSISTANT DISTRICT
11   ATTORNEY, in her individual capacity,
12
13            Defendants-Appellees.
14
15   - - - - - - - - - - - - - - - - - - - -X
16
17   FOR APPELLANT:             Mary Teague (Israel Dahan,
18                              Jessica Lively, Vinny Lee, on
19                              the brief), Cadwalader,
20                              Wickersham & Taft LLP
21                              New York, NY
22
23
24   FOR APPELLEES:             Andrew S. Wellin, Proskauer Rose
25                              LLP (Larry A. Sonnenshein on
26                              the brief), for Michael A.
27                              Cardozo, Corporation Counsel of
28                              the City of New York,
29                              New York, NY
30
31        Appeal from a judgment of the United States District
32   Court for the Eastern District of New York (Ross, J.).
33
34        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
35   AND DECREED that the district court’s judgment is AFFIRMED.
36
37        Michael Crawford appeals from the grant of summary
38   judgment dismissing his claims of malicious prosecution
39   under 42 U.S.C. § 1983 and New York law and failure to train
40   under 42 U.S.C. § 1983. We assume the parties’ familiarity
41   with the underlying facts, the procedural history, and the
42   issues presented for review.
43

                                  2
 1        We review a grant of summary judgment de novo and draw
 2   all inferences in favor of the nonmoving party. El Sayed v.
 3   Hilton Hotels Corp., 627 F.3d 931, 933 (2d Cir. 2010) (per
 4   curiam). “Summary judgment is appropriate only if the
 5   movant shows that there is no genuine dispute as to any
 6   material fact and the movant is entitled to judgment as a
 7   matter of law.” Id. (internal quotation marks omitted).
 8   “The non-moving party may not rely on mere conclusory
 9   allegations nor speculation, but instead must offer some
10   hard evidence showing that its version of the events is not
11   wholly fanciful.” D’Amico v. City of New York, 132 F.3d
12   145, 149 (2d Cir. 1998).
13
14        In support of his failure-to-train claim, Crawford
15   argues that he was arrested without probable cause, and then
16   prosecuted without probable cause. “Probable cause requires
17   an officer to have knowledge or reasonably trustworthy
18   information sufficient to warrant a person of reasonable
19   caution in the belief that an offense has been committed by
20   the person to be arrested.” Panetta v. Crowley, 460 F.3d
21   388, 395 (2d Cir. 2006) (internal quotation marks omitted).
22   An officer need not be certain that a subsequent prosecution
23   will succeed, and it is “of no consequence that a more
24   thorough or more probing investigation might have cast doubt
25   upon the situation.” Krause v. Bennett, 887 F.2d 362, 371
26   (2d Cir. 1989) (internal quotation marks omitted).
27
28        The statements made by A. and M. in their interviews
29   with Sgt. Mastrocovi established probable cause to support
30   Crawford’s arrest. The girls alleged that they were victims
31   of multiple instances of sexual abuse at the hands of
32   Crawford, and provided detailed and approximate dates of
33   such abuse. As the district court concluded, the girls’
34   stories are mutually corroborating: That two different
35   victims came forward to report similar instances of abuse
36   tends to reinforce the credibility of each. The record
37   shows that Sgt. Mastrocovi communicated the substance of the
38   girls’ allegations to the arresting officer, though probable
39   cause would have existed even if he had not.1 Because there

          1
           If one officer in a police department has knowledge
     of facts that establish probable cause to arrest a suspect,
     the suspect suffers no constitutional deprivation if he is
     arrested by a different officer who lacks such knowledge.
                                  3
 1   were no “circumstances that raise[d] doubts as to the
 2   victim[s]’ veracity,” their statements provided probable
 3   cause to arrest Crawford. Singer v. Fulton Cnty. Sheriff,
 4   63 F.3d 110, 119 (2d Cir. 1995).
 5
 6        The existence (or absence) of probable cause to
 7   prosecute bears upon the merits of the district court’s
 8   award of summary judgment both as to Crawford’s failure-to-
 9   train and his malicious prosecution claims. “The elements
10   of . . . malicious prosecution under § 1983 are
11   substantially the same as the elements under New York law.
12   Therefore, the analysis of the state and the federal claims
13   is identical.” Boyd v. City of New York, 336 F.3d 72, 75
14   (2d Cir. 2003) (internal quotation marks omitted). To
15   establish malicious prosecution, “the plaintiff must show
16   that a prosecution was initiated against him, that it was
17   brought with malice but without probable cause to believe
18   that it could succeed and that the prosecution terminated in
19   favor of the accused plaintiff.” Id. at 76. Indictment by
20   a grand jury creates a rebuttable presumption of probable
21   cause. See id.; Colon v. City of New York, 60 N.Y.2d 78, 82
22   (1983). That presumption “may only be rebutted by evidence
23   that the indictment was procured by fraud, perjury, the
24   suppression of evidence or other police conduct undertaken
25   in bad faith.” Savino v. City of New York, 331 F.3d 63, 72
26   (2d Cir. 2003) (internal quotation marks omitted; emphasis
27   in original).
28
29        Crawford failed to raise a triable issue of fact that
30   might rebut the presumption of probable of cause that
31   attaches to his indictment. The supposed inconsistencies in
32   some of the girls’ statements as to the details and precise
33   dates of the assaults are minor discrepancies that do not
34   negate probable cause, much less establish bad faith on the
35   part of authorities. Crawford also points to alleged
36   inadequacies in the police investigation, including the
37   supposed failure of police to investigate his purported
38   alibi. However, “an officer’s failure to investigate an


     See United States v. Valez, 796 F.2d 24, 28 (2d Cir. 1986)
     (discussing “[t]he rule that permits courts to assess
     probable cause to arrest by looking at the collective
     knowledge of the police force--instead of simply looking at
     the knowledge of the arresting officer”).
                                  4
 1   arrestee’s protestations of innocence generally does not
 2   vitiate probable cause.” Panetta, 460 F.3d at 395-96. And
 3   since he was living with the girls who accused him, there is
 4   no reason to believe that Crawford’s claimed alibi, that he
 5   worked the night shift, would foreclose his opportunity to
 6   molest them.
 7
 8        The officers’ failure to request a report on the
 9   Crawford family from the Administration for Children’s
10   Services also does not assist Crawford’s malicious
11   prosecution claims. That report would not have seriously
12   undermined the girls’ allegations of abuse, particularly in
13   light of the additional corroborating evidence that came to
14   light after Crawford’s arrest, including the statement of
15   A.’s brother, T., who claimed to have witnessed Crawford
16   remove A. from her bedroom on multiple occasions.
17
18        Finally, Crawford suggests that Det. Pellizzi
19   fabricated his account about visiting Crawford’s home and
20   seeing A.’s diary. However, Det. Pellizzi’s account is
21   corroborated by A.’s grand jury testimony, which affirmed
22   the existence of a diary documenting Crawford’s abuse.
23   Crawford offers nothing beyond speculation to suggest that
24   Det. Pellizzi fabricated a story. Conclusory allegations
25   are insufficient to withstand summary judgment.
26
27        Crawford thus failed to establish a triable issue of
28   fact with regard to whether probable cause supported his
29   arrest or his prosecution, leaving no basis for finding a
30   possible constitutional deprivation necessary to support a
31   failure-to-train claim. See Young v. Cnty. of Fulton, 160
32   F.3d 899, 904 (2d Cir. 1998). The district court thus
33   properly awarded summary judgment to defendants on
34   Crawford’s failure-to-train claim and on his claim for
35   malicious prosecution.
36
37        We have considered Crawford’s remaining arguments and
38   find them to be without merit. For the foregoing reasons,
39   the judgment of the district court is hereby AFFIRMED.
40
41                              FOR THE COURT:
42                              CATHERINE O’HAGAN WOLFE, CLERK
43
44
45


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