     14-577-cv
     Thompson 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 Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 5th day of February, two thousand fifteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                RICHARD C. WESLEY,
 8                SUSAN L. CARNEY,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       KEVIN THOMPSON,
13                Plaintiff-Appellant,
14
15                    -v.-                                               14-577-cv
16
17       CITY OF NEW YORK, DETECTIVE JOSEPH
18       HICKEY, POLICE OFFICER ANTHONY
19       CAROZZA, POLICE OFFICER PETER
20       BORUKHOV, JOHN AND JANE DOES 1-6,
21                Defendants-Appellees.*
22       - - - - - - - - - - - - - - - - - - - -X
23


                *
                  The Clerk of Court is respectfully directed to
         amend the official caption in this case to conform with the
         caption above.
                                                  1
 1   FOR APPELLANT:             PATRICK O’KEKE (John Iwuh, on
 2                              the brief), O’keke & Associates,
 3                              P.C., Brooklyn, New York.
 4
 5   FOR APPELLEES:             FAY NG (Pamela Seider Dolgow, on
 6                              the brief), for Zachary W.
 7                              Carter, Corporation Counsel of
 8                              the City of New York, New York,
 9                              New York.
10
11        Appeal from a judgment of the United States District
12   Court for the Eastern District of New York (Dearie, J.).
13
14        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
15   AND DECREED that the judgment of the district court be
16   AFFIRMED.
17
18        Kevin Thompson appeals from the judgment of the United
19   States District Court for the Eastern District of New York
20   (Dearie, J.), granting summary judgment in favor of
21   defendants-appellees the City of New York, Detective Joseph
22   Hickey, Police Officer Anthony Carozza, and Police Officer
23   Peter Borukhov (collectively, the “police officers”). We
24   assume the parties’ familiarity with the underlying facts,
25   the procedural history, and the issues presented for review.
26
27        Summary judgment must be granted if “there is no
28   genuine dispute as to any material fact and the movant is
29   entitled to judgment as a matter of law.” Fed. R. Civ. P.
30   56(a); see generally Anderson v. Liberty Lobby, Inc., 477
31   U.S. 242 (1986). We review de novo a district court’s grant
32   of summary judgment. Mario v. P & C Food Mkts., Inc., 313
33   F.3d 758, 763 (2d Cir. 2002).
34
35        The existence of probable cause is an absolute defense
36   to false arrest and malicious prosecution claims, whether
37   asserted under 42 U.S.C. § 1983 or under New York state
38   law.1 See Manganiello v. City of New York, 612 F.3d 149,
39   161-62 (2d Cir. 2010); Jenkins v. City of New York, 478 F.3d
40   76, 84 (2d Cir. 2007); Weyant v. Okst, 101 F.3d 845, 852 (2d
41   Cir. 1996). “Probable cause exists if a law enforcement


         1
              Thompson does not address his other state law
     claims in his appellate briefs and thus any argument he may
     have regarding their dismissal has been waived. Norton v.
     Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998).
                                  2
 1   official, on the basis of the totality of the circumstances,
 2   has sufficient knowledge or reasonably trustworthy
 3   information to justify a person of reasonable caution in
 4   believing that an offense has been or is being committed by
 5   the person to be arrested.” United States v. Gagnon, 373
 6   F.3d 230, 236 (2d Cir. 2004).
 7
 8        The following undisputed facts establish that the
 9   police officers had probable cause to arrest Thompson: (1) a
10   hat was found at the scene of the burglary that did not
11   belong to any of the residents; (2) DNA found on the hat
12   matched Thompson’s; (3) Thompson’s last-known address was
13   within 300 feet of the burglary; and (4) Thompson’s lengthy
14   criminal history included multiple robbery and larceny-
15   related offenses.
16
17        The existence of probable cause was not negated by the
18   officers’ alleged failure to undertake additional
19   investigation. See Curley v. Village of Suffern, 268 F.3d
20   65, 70 (2d Cir. 2001) (“[T]he arresting officer does not
21   have to prove plaintiff’s version wrong before arresting
22   him. . . . Nor does it matter that an investigation might
23   have cast doubt upon the basis for the arrest.”).
24
25        For the foregoing reasons, and finding no merit in
26   Thompson’s other arguments, we hereby AFFIRM the judgment of
27   the district court.
28
29                              FOR THE COURT:
30                              CATHERINE O’HAGAN WOLFE, CLERK
31




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