    17-959-cv
    Maria Moulthrop v. Slavin et al

                         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 7th day of November, two thousand seventeen.

    PRESENT: DENNIS JACOBS,
             ROBERT D. SACK,
             BARRINGTON D. PARKER,
                             Circuit Judges.

    - - - - - - - - - - - - - - - - - - - -X
    Maria Moulthrop,

                Plaintiff-Appellant,

                -v.-                                       17-959-cv

    Michael Slavin, Lieutenant, Waterbury
    Police Department, City of Waterbury,
    in his individual and Official Capacities,
    David McKnight, Detective, Waterbury Police
    Department, City of Waterbury, in his
    Individual and Official Capacities, Orlando
    Rivera, Detective, Waterbury Police Department,
    City of Waterbury, in his Individual and
    Official Capacities, Vernon Riddick, Chief,
    Waterbury Police Department, City of Waterbury,
    in his Individual and Official Capacities,
    Neil O'Leary, Mayor, City of Waterbury,
    in his Official Capacity, Paul Guidone,
    Mary Ann Marold, Education Liaison, Waterbury
    Public Schools, City of Waterbury, in her

                                           1
Individual Capacity, Doreen Biolo,
Business Office Manager, Waterbury
Public Schools, in her Individual Capacity,
Thomas Pannone, Frederick L. Dorsey,

                    Defendant - Appellees,


TD Bank, N.A.,

                    Defendant.
- - - - - - - - - - - - - - - - - - - -X

FOR APPELLANT:                Norman Pattis, Pattis & Smith
                              Law Firm, New Haven, CT.

FOR APPELLEES:                Joseph A. Mengacci, Esq., Office
                              of the Corporation Counsel,
                              Waterbury, CT.

     Appeal from a judgment of the District Court for the
District of Connecticut (Bolden, J.).

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
AND DECREED that the judgment of the district court be
AFFIRMED.

     Maria Moulthrop appeals from the judgment of the United
States District Court for the District of Connecticut
dismissing her false arrest and malicious prosecution
claims against certain municipal employees of Waterbury,
Connecticut. We assume the parties’ familiarity with the
underlying facts, the procedural history, and the issues
presented for review.

     Moulthrop was placed on leave from her position as
principal at Hopeville Elementary School in fall 2011 after
the school district uncovered irregularities in student
standardized testing. An internal investigation expanded
into allegations of other improprieties, including
mismanagement of funds allotted to Hopeville’s Parent
Teacher Organization (PTO). A warrant for Moulthrop’s
arrest was issued on the strength of an affidavit based on
investigations by the Waterbury Police Department (the

                                 2
“Police defendants”). Statements of school employees (the
“District defendants”) included allegations that the
Hopeville PTO was long defunct, had no directives, and was
operated solely by Moulthrop for her personal projects.
The District defendants alleged unsanctioned fundraising
and personal expenditures with school funds were siphoned
into the PTO’s account. The affidavit also reflected a
forensic accounting of the PTO’s account with TD Bank,
which uncovered, among other suspicious charges, a payment
to repair Moulthrop’s personal car and purchases of a flat-
screen television and a leafblower. See J. App’x at 115-
17.

     A magistrate judge signed the warrant and Moulthrop was
arrested and charged with larceny. Moulthrop alleged a
conspiracy by the teachers and police officers to remove
her from her position by spinning stories about the
mismanaged PTO. Without denying the TD Bank charges, she
purportedly defended herself by explaining that most of the
purchases were ultimately intended for the school and that
the use of the PTO account for the car repairs had been an
accident that she had attempted to correct with the
merchant. The jury acquitted her of all charges.

     Moulthrop’s suit against the city, the Police
defendants, and the District defendants alleged, inter
alia, false arrest under 42 U.S.C. § 1983 and malicious
prosecution. Count Two of the Amended Complaint alleges
that Lieutenant Michael Slavin and Detective David McKnight
knowingly or recklessly misrepresented the facts of her
tenure as principal when they applied for the arrest
warrant in violation of 42 U.S.C. § 1983. Count Three
alleges that the District defendants “initiated” a
malicious prosecution through their participation in the
internal investigation that eventually led to the criminal
prosecution. The district court granted the defendants’
motion to dismiss the complaint in its entirety. Moulthrop
appeals the dismissal of Counts Two and Three. “We review
de novo the grant of a Rule 12(b)(6) motion to dismiss for
failure to state a claim, accepting all factual allegations
as true and drawing all reasonable inferences in favor of
the plaintiff.” Trs. of the Upstate N.Y. Eng’rs Pension
Fund v. Ivy Asset Mgmt., 843 F.3d 561, 566 (2d Cir. 2016).


                             3
     A plaintiff claiming false arrest under Section 1983
must show that the defendants intentionally confined her
without consent and without justification. Weyant v. Okst,
101 F.3d 845, 852 (2d Cir. 1996). “The existence of
probable cause to arrest constitutes justification and is a
complete defense to an action for false arrest.” Id.
(citing Bernard v. United States, 25 F.3d 98, 102 (2d Cir.
1994)); Fulton v. Robinson, 289 F.3d 188, 195 (2d Cir.
2002). “Probable cause to arrest a person exists if the
law enforcement official, on the basis of the totality of
the circumstances, has sufficient knowledge or reasonably
trustworthy information to justify a person of reasonable
caution in believing that an offense has been or is being
committed by the person to be arrested.” United States v.
Valentine, 539 F.3d 88, 93 (2d Cir. 2008)(internal
citations and quotations marks omitted). We consider the
elements of the offense for which Moulthrop was arrested to
assess the objective reasonableness of the officers’
belief. Lennon v. Miller, 66 F.3d 416, 424 (2d Cir. 1995).1

     Moulthrop argues that the affidavit submitted by the
police officers in support of the arrest warrant contained
material omissions and falsehoods from the teacher
interviews that, if corrected, vitiate the probable cause
determination. Where, as here, a plaintiff alleges an
affiant knowingly or recklessly misrepresented information,
she must show that “misstatements and omissions were
necessary to the finding of probable cause.” Escalera v.
Lunn, 361 F.3d 747, 743 (2d Cir. 2004) (citing Golino v.
City of New Haven, 950 F.2d 864, 870 (2d Cir. 1991)). “We
assess the materiality of alleged misstatements in a
warrant application by putting aside allegedly false
material, supplying any omitted information, and then
determining whether the contents of the ‘corrected
affidavit’ would have supported a finding of probable
cause” for the stated crime. Loria v. Gorman, 306 F.3d

1Under Connecticut law, a conviction for larceny requires
“(1) the wrongful taking or carrying away of the personal
property of another; (2) the existence of a felonious
intent in the taker to deprive the owner of [the property]
permanently; and (3) the lack of consent of the owner.”
State v. Chemlen, 140 A.3d 347, 369 (Conn. App. 2016)
(alterations in the original).
                             4
1271, 1289 (2d Cir. 2002) (internal quotation marks and
citation omitted).

     As the district court concluded, probable cause would
have existed solely on the basis of information in the
affidavit that Moulthrop does not challenge, including that
Moulthrop operated the PTO by herself, and bank records
showing that the PTO paid Crestwood Ford more than $1,000
for repairs to Moulthrop’s car and bought a leaf blower not
used at the school and a television and camera that were
kept for a time at Moulthrop’s home. See State v.
Papandrea, 991 A.2d 617, 624 (Conn. App. 2010), aff'd 26
A.3d 75 (2011) (finding defendant guilty of larceny for
issuing checks from a business account for personal use).

     The “omissions” alleged by Moulthrop relate to the
failures of the police defendants to conduct additional
interviews as a part of their investigation (e.g., Am.
Compl. ¶ 102) and line-item details for particular
transactions (e.g., Am. Compl. ¶ 89). These items, if
added to the affidavit would still not undermine probable
cause to arrest Moulthrop for larceny. At best, her
complaint can be read to offer partial ex post
justification for what “a person of reasonable caution” may
consider criminal activity-which does not negate probable
cause. See Curley v. Village of Suffern, 268 F.3d 65, 70
(2d Cir. 2001) (probable cause may still exist “where a
police officer was presented with different stories from an
alleged victim and the arrestee”).

     A corrected affidavit would have supported a finding of
probable cause. Accordingly, we affirm the dismissal of
Moulthrop’s false arrest claim. And since a finding of
“probable cause is a complete defense to a constitutional
claim of malicious prosecution,” Betts v. Shearman, 751
F.3d 78, 82 (2d Cir. 2014), Moulthrop’s remaining claims
fail with it.

     Finally, Moulthrop contends the district court abused
its discretion in denying her leave to amend. See Cruz v.
FxDirectDealer, LLC, 720 F.3d 115, 125 (2d Cir. 2013). As
Moulthrop’s brief concedes, a “large universe of evidence
[was] available to her from the [underlying] criminal
proceedings” at the time she drafted her original and
                             5
Amended Complaint. Appellant’s Br. 20. Moreover, probable
cause existed purely on the basis of Moulthrop’s own
concessions and undisputed facts, rendering futile any
further amendments to the pleadings. The district court
did not abuse its discretion in denying leave to amend the
complaint. See Van Buskirk v. The New York Times Co., 325
F.3d 87, 92 (2d Cir. 2003).

     For the foregoing reasons, and finding no merit in
Moulthrop’s other arguments, we hereby AFFIRM the judgment
of the district court.

                           FOR THE COURT:
                           CATHERINE O’HAGAN WOLFE, CLERK




                             6
