     12-1750-cv
     Faruki v. City of New York, 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.

 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 7th day of February, two thousand thirteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                AMALYA L. KEARSE,
 9                SUSAN L. CARNEY,
10                              Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       KAMILA S. FARUKI,
14                Plaintiff-Appellant,
15
16                    -v.-                                               12-1750-cv
17
18       CITY OF NEW YORK; RAYMOND KELLY,
19       Commissioner; NEW YORK CITY POLICE
20       DEPARTMENT; P.O. MELENDEZ, (Tax
21       Registry No. 927649); P.O. COLLIN(S);
22       SGT. KELLER; and P.O. JANE DOE, of
23       the 19th Precinct,
24                Defendants-Appellees.
25       - - - - - - - - - - - - - - - - - - - -X
26
27       FOR APPELLANT:                        Amy Rothstein, Doar Rieck Kaley
28                                             & Mack, New York, New York.

                                                  1
 1
 2   FOR APPELLEE:              Michael A. Cardozo (Francis F.
 3                              Caputo, Elissa B. Jacobs, and
 4                              Karen M. Griffin, on the brief),
 5                              Corporation Counsel of the City
 6                              of New York, New York, New York.
 7
 8        Appeal from a judgment of the United States District
 9   Court for the Southern District of New York (Preska, C.J.).
10
11        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
12   AND DECREED that the judgment of the district court be
13   AFFIRMED.
14
15        Kamila Faruki appeals from the judgment of the United
16   States District Court for the Southern District of New York
17   (Preska, C.J.), dismissing her complaint on summary
18   judgment. She challenges the dismissal of three claims
19   brought under 42 U.S.C. § 1983 against New York City Police
20   Officer Melendez: for false arrest, excessive force, and
21   malicious prosecution. We assume the parties’ familiarity
22   with the underlying facts, the procedural history, and the
23   issues presented for review.
24
25        The Court reviews de novo a decision on a motion for
26   summary judgment. Mario v. P&C Food Mkts., Inc., 313 F.3d
27   758, 763 (2d Cir. 2002); see also Miller v. Wolpoff &
28   Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir. 2003).
29
30        1.  Faruki’s claim for false arrest fails because
31   Officer Melendez had probable cause to arrest her for
32   trespass. As the district court found, the audio recording
33   of the third 911 call captures the store employee “asking
34   [Faruki] to leave the store.” Faruki v. City of New York,
35   10 Civ. 9614 LAP, 2012 WL 1085533, at *5 (S.D.N.Y. Mar. 30,
36   2012). That he did not explicitly ask Melendez to remove
37   Faruki from the store is irrelevant; he clearly wanted her
38   out, and she could not have thought otherwise. Because
39   “probable cause to arrest constitutes justification and is a
40   complete defense to an action for false arrest,” Weyant v.
41   Okst, 101 F.3d 845, 852 (2d Cir. 1996) (internal quotation
42   marks omitted), Faruki’s claim fails.
43
44        2.  Faruki’s excessive force claim fails because
45   Faruki does not show that Melendez used any degree of force
46   that was more than necessary to effect a lawful arrest.
47   Officers are entitled to use some degree of force when

                                  2
 1   restraining a suspect during an arrest. See Graham v.
 2   Connor, 490 U.S. 386, 396 (1989) (“‘Not every push or shove,
 3   even if it may later seem unnecessary in the peace of a
 4   judge’s chambers,’ violates the Fourth Amendment.” (quoting
 5   Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973))). The
 6   amount of force applied in this case was not excessive.
 7
 8        3.  Faruki’s malicious prosecution claim also fails
 9   because she was not subject to [i] a “deprivation of liberty
10   consistent with the concept of seizure,” Washington v.
11   Cnty. of Rockland, 373 F.3d 310, 316 (2d Cir. 2004)
12   (internal quotation marks omitted), [ii] that “resulted from
13   the initiation or pendency of judicial proceedings,” Murphy
14   v. Lynn, 118 F.3d 938, 944 (2d Cir. 1997). The proceedings
15   against Faruki placed no restriction on her other than a
16   requirement that she appear in court on two occasions--an
17   insufficient deprivation of liberty to support a Fourth
18   Amendment malicious prosecution claim. See Burg v.
19   Gosselin, 591 F.3d 95, 101 (2d Cir. 2010) (“[A]
20   pre-arraignment, non-felony summons requiring no more than a
21   later court appearance does not constitute a Fourth
22   Amendment seizure.”); cf. Murphy, 118 F.3d at 942, 946
23   (concluding that restriction on out-of-state travel and
24   requirement to appear in court eight times constituted
25   sufficient deprivation of liberty for Fourth Amendment
26   purposes).
27
28        For the foregoing reasons, and finding no merit in
29   Faruki’s other arguments, we hereby AFFIRM the judgment of
30   the district court.
31
32                              FOR THE COURT:
33                              CATHERINE O’HAGAN WOLFE, CLERK
34




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