11-0545-cv
Bernshtein 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
Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 14th day
of September, two thousand and twelve.

Present:
                BARRINGTON D. PARKER,
                PETER W. HALL,
                J. CLIFFORD WALLACE,*

                        Circuit Judges.
____________________________________________________

Alla Bernshtein,

                         Plaintiff - Appellant,

                v.                                                  No.     11-0545-cv


City of New York,

                         Defendant - Cross - Defendant - Cross - Claimant - Appellee,




*
 Judge J. Clifford Wallace, of the United States Court of Appeals for the Ninth Circuit, sitting by
designation.

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Raymond Brockmann, Detective, Shield # 03108,

                       Defendant - Cross - Claimant - Appellee,

HWA, Inc.,

                       Defendant - Cross - Claimant - Cross - Defendant,

Wilson Vega, Security Officer,

                  Defendant - Cross - Defendant.
____________________________________________________

FOR APPELLANT:                  SANFORD F. YOUNG, Law Office of Sanford F. Young, P.C., New
                                York, N.Y. (David Zelman, on the brief, Law Office of David
                                Zelman, Brooklyn, N.Y.).

FOR APPELLEE:                   NEIL J. OXFORD (Sarah L. Cave, Gabrielle Y. Vazquez, on the brief)
                                Hughes Hubbard & Reed LLP, New York, N.Y. of counsel, for
                                Francis Caputo, Office of the Corporation Counsel, City of New
                                York, New York, N.Y.
_____________________________



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

New York (Hellerstein, J.).

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

DECREED that the judgment of the district court is AFFIRMED.

       Appellant-Plaintiff Alla Bernshtein appeals from a judgment of the district court granting

Defendants’ summary judgment motion on (a) her false arrest claim against the individual

detective, (b) her malicious prosecution claim against the individual detective, and (c) her Monell

claim against the City of New York. She also appeals from a judgment of the district court (a)

dismissing her excessive detention claim against the individual detective following a jury verdict

in favor of the detective and (b) granting the City of New York’s motion for judgment as a matter

of law on the remaining Monell claim against the City. We assume the parties’ familiarity with

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the underlying facts, the procedural history of the case, and the issues on appeal, and we discuss

these only as necessary to explain our decision.

             I. Summary Judgment in Favor of Defendant Raymond Brockmann

        With respect to Bernshtein’s false arrest claim, the district court properly granted

summary judgment in favor of Detective Brockmann. The elements of false arrest require the

plaintiff to establish that “(1) the defendant intended to confine [the plaintiff], (2) the plaintiff was

conscious of the confinement, (3) the plaintiff did not consent to the confinement, and (4) the

confinement was not otherwise privileged.” Weyant v. Okst, 101 F.3d 845, 853 (2d Cir. 1996)

(alteration in original) (internal quotation marks and citation omitted). The existence of probable

cause to arrest “is a complete defense to an action for false arrest,” id. at 852 (internal quotation

marks omitted), “whether that action is brought under state law or under § 1983,” Jenkins v. City

of N.Y., 478 F.3d 76, 84 (2d Cir. 2007) (internal quotation marks and citation omitted). “[A]n

arrest is not unlawful so long as the officer has knowledge of, or reasonably trustworthy

information as to, facts and circumstances sufficient to provide probable cause to believe that the

person arrested has committed any crime.” Zellner v. Summerlin, 494 F.3d 344, 369 (2d Cir.

2007) (emphasis added) (citing Devenpeck v. Alford, 543 U.S. 146, 155 (2004)).

        Regardless of whether Brockmann had probable cause to arrest Bernshtein for felony

possession of a forged instrument, he clearly had probable cause to arrest her under New York

City Administrative Code § 14-107, which prohibits “any person not a member of the police force

. . . to have, use, wear or display without specific authority from the commissioner any . . . shield

. . . in any way resembling that worn by members of the police force.” See N.Y.C. Admin. Code

§ 14-107. Bernshtein, who was not a member of the police force, possessed a badge of the same



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shape and size and the same general design as a badge used by the New York City police force.

This amounts to “facts and circumstances sufficient to provide probable cause to believe

[Bernshtein] committed [a violation of section 14-107].” Zellner, 494 F.3d at 369.

       With respect to Bernshtein’s malicious prosecution claim, the district court properly

granted summary judgment in favor of Brockmann. The elements of a § 1983 malicious

prosecution claim require that the plaintiff prove that (1) the defendant initiated a prosecution

against the plaintiff, (2) the defendant lacked probable cause to believe the proceeding could

succeed, (3) the defendant acted with malice, (4) the prosecution was terminated in the plaintiff’s

favor, and (5) there was a sufficient post-arraignment liberty restraint to implicate the plaintiff’s

Fourth Amendment rights. Rohman v. N.Y.C. Transit Auth., 215 F.3d 208, 215 (2d Cir. 2000).

The existence of probable cause is a complete defense, Dickerson v. Napolitano, 604 F.3d 732,

751 (2d Cir. 2010), and turns on “the knowledge of facts, actual or apparent, strong enough to

justify a reasonable man in the belief that he has lawful grounds for prosecuting the defendant in

the manner complained of.” Rounseville v. Zahl, 13 F.3d 625, 629 (2d Cir. 1994) (internal

quotation marks and citation omitted).

       In this case, Brockmann had probable cause to initiate the prosecution against Bernshtein

for criminal possession of a forged instrument because a “reasonably prudent” officer would have

reason to believe that Bernshtein violated New York Penal Law § 170.20. A “‘[f]orged

instrument’ means a written instrument which has been falsely made, completed or altered,” and a

“‘[w]ritten instrument’ means any instrument or article . . . containing written or printed matter or

the equivalent thereof, used for the purpose of reciting, embodying, conveying or recording

information, or constituting a symbol or evidence of value, right, privilege or identification, which



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is capable of being used to the advantage or disadvantage of some person.” N.Y. Penal Law §

170.00 (1), (7). To “falsely make” is defined as, “[a] person ‘falsely makes’ a written instrument

when he makes or draws a complete written instrument in its entirety, or an incomplete written

instrument, which purports to be an authentic creation of its ostensible maker or drawer, but

which is not such either because the ostensible maker or drawer is fictitious or because, if real, he

did not authorize the making or drawing thereof.” N.Y. Penal Law § 170.00 (4). In this case, a

reasonably prudent officer would have reason to believe that Bernshtein’s badge was a written

instrument falsely made by Bernshtein as it “purport[ed] to be an authentic creation of its

ostensible maker or drawer . . . [that] did not authorize the making or drawing” of the badge—the

badge purports be an “authentic” New York City police badge since it substantially resembled in

shape, size, color, design, and weight a police badge and Bernshtein was not authorized to make

or carry such a badge. See Boyd v. City of N.Y., 336 F.3d 72, 76 (2d Cir. 2003); see also N.Y.

Penal Law § 170.00.

                               II. The Trial on Excessive Detention

       Bernshtein argues that the jury instructions and accompanying verdict sheet were

erroneous and prejudicial and that the jury verdict in favor of Defendant (Detective Brockmann)

was manifestly wrong because the evidence was sufficient for a jury to conclude that she was

subject to excessive detention. We “‘review jury instructions as a whole to determine if they

provide a misleading impression or inadequate understanding of the law and will reverse on this

basis only if the appellants can show that in viewing the charge given as a whole, they were

prejudiced by the error.’” SEC v. DiBella, 587 F.3d 553, 569 (2d Cir. 2009) (quoting Schwartz v.

Liberty Mut. Ins. Co., 539 F.3d 135, 147 (2d Cir. 2008). Bernshtein, who was subject to a 36-



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hour detention before her arraignment, argues that the jury instruction “gave the jury the improper

and severely misleading impression that once Brockmann caused [her] to be transported to

Central Booking, his duty was discharged and he had no further responsibility.” She asserts that

Brockmann had a non-delegable duty to assure her arraignment without unnecessary delay.

       Regardless of whether her argument as to a non-delegable duty has any merit,

Bernshtein’s argument that the jury instructions misled the jury about causation is clearly wrong.

“[A]s in all § 1983 cases, the plaintiff must prove that the defendant’s action was a proximate

cause of the plaintiff’s injury.” Gierlinger v. Gleason, 160 F.3d 858, 872 (2d Cir. 1998) (citing

Martinez v. California, 444 U.S. 277, 285 (1980)). “The Supreme Court has made it crystal clear

that principles of causation borrowed from tort law are relevant to civil rights actions brought

under section 1983.” Warner v. Orange Cnty. Dep’t of Prob., 115 F.3d 1068, 1071 (2d Cir. 1996)

(internal quotation marks and alterations omitted). In accord with Warner’s holding that a

defendant is responsible for the “natural consequences” of his actions, id., the district court

charged that proximate cause is “a cause that naturally and probably led to and might have been

expected to produce plaintiff’s injury, or that a reasonable person would regard as the cause of the

injury.” And in accord with Warner’s holding that a defendant is liable for “consequences

attributable to reasonably foreseeable intervening forces, including the acts of third parties,” id.

(internal quotation marks omitted), the district court charged that the jury could consider whether

Brockmann unreasonably prolonged Bernshtein’s detention “even if someone else added to the

length of that already unreasonable detention.” Taken as a whole, these instructions (and the

accompanying jury verdict sheet) did not “provide a misleading impression or inadequate

understanding of the law.” DiBella, 587 F.3d at 569.



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       Lastly, we will not consider Bernshtein’s challenge to the sufficiency of the evidence. “It

is well established that a party is not entitled to challenge on appeal the sufficiency of the

evidence to support the jury’s verdict on a given issue unless it has timely moved in the district

court for judgment as a matter of law on that issue.” Pittman by Pittman v. Grayson, 149 F.3d

111, 119 (2d Cir. 1998); see also Gierlinger, 160 F.3d at 869. “In the absence of a Rule 50(b)

renewed motion or extraordinary circumstances, an ‘appellate court [i]s without power to direct

the District Court to enter judgment contrary to the one it had permitted to stand.’” Pahuta v.

Massey-Ferguson, Inc., 170 F.3d 125, 129 (2d Cir. 1999) (alteration in original) (quoting Cone v.

W. Va. Pulp & Paper Co., 330 U.S. 212, 218 (1947)). The failure to make a Rule 50 motion “is

one that this Court will excuse only in very narrow circumstances.” Jacques v. DiMarzio, Inc.,

386 F.3d 192, 199 (2d Cir. 2004). Bernshtein did not file a Rule 50(a) motion or a Rule 50(b)

renewed motion, and she failed to present any argument as to why we should excuse this failure.

Thus, “[w]e perceive no ‘manifest injustice’ to be prevented nor is the jury verdict ‘wholly

without legal support.’” Id.

                     III. The Monell Claims Against the City of New York

       With respect to Bernshtein’s Monell claim against the City of New York, the district court

properly granted both the City’s summary judgment motion and the City’s motion for judgment

as a matter of law. A Monell claim derives from the “execution of a government’s policy or

custom . . . [that] inflicts the injury.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690-91, 694-

95 (1978). “[L]ocal governing bodies [like the City of New York] can be sued directly” (1) when

“the action that is alleged to be unconstitutional implements or executes a policy statement,

ordinance, regulation or decision officially adopted and promulgated by that body’s officers” or



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(2) for “constitutional deprivations visited pursuant to governmental ‘custom’ even though such a

custom has not received formal approval through the body’s official decisionmaking channels.”

Id. Bernshtein must show both (1) “the existence of a municipal policy or custom” and (2) a

causal connection between that policy and the deprivation of her constitutional rights. Vippolis v.

Vill. of Haverstraw, 768 F.2d 40, 44 (2d Cir. 1985). Because Bernshtein must establish a

deprivation of her constitutional rights, her Monell claim is tied to her claims against Brockmann.

To the extent that Bernshtein cannot establish Brockmann violated her constitutional rights

(through false arrest, malicious prosecution, or excessive detention), the City of New York

likewise is not liable on the Monell claims asserting those violations. See City of L.A. v. Heller,

475 U.S. 796, 799 (1986); cf. Escalera v. Lunn, 361 F.3d 737, 749 (2d Cir. 2004) (holding that the

local governing body—the County—was entitled to summary judgment because each individual

defendant was entitled to summary judgment based on the existence of arguable probable cause to

arrest).

           We have considered all of Bernshtein’s remaining arguments and find them to be without

merit. The judgment of the district court is AFFIRMED.

                                                      FOR THE COURT:
                                                      Catherine O’Hagan Wolfe, Clerk




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