10-4971-cv
Virgil v. Town of Gates
                          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 United States Courthouse, 500 Pearl Street, in the City of
New York, on the 6th day of January, two thousand eleven.

PRESENT: GUIDO CALABRESI,
                 REENA RAGGI,
                 RAYMOND J. LOHIER, JR.,
                                 Circuit Judges.
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JAMES VIRGIL,
                                 Plaintiff-Appellant,

                          v.                                              No. 10-4971-cv

TOWN OF GATES, DAVID DICARO, Chief of Police,
Town of Gates, Individually and in His Official Capacity,
OFFICER JOSHUA BOWMAN, Individually and in His
Official Capacity, MONROE COUNTY, Monroe County
District Attorney MICHAEL GREEN, Assistant Monroe
County District Attorney KRISTINA KARLE, Individually
and in Her Official Capacity,
                                 Defendants-Appellees.
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APPEARING FOR APPELLANT:                          STEPHEN E. LAPRADE, (Christina A. Agola,
                                                  on the brief) Christina A. Agola, PLLC,
                                                  Rochester, New York.

APPEARING FOR APPELLEES:                         MICHAEL B. RISMAN (Joseph S. Brown, on the
                                                 brief), Hodgson Russ LLP, Buffalo, New York,
                                                 for Town of Gates, David DiCaro, and Joshua
                                                 Bowman.
                                            HOWARD A. STARK, Monroe County Law
                                            Department, Rochester, New York, for Monroe
                                            County, Michael Green, and Kristina Karle.

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

of New York (David G. Larimer, Judge).

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

DECREED that the judgment entered on November 5, 2010, is AFFIRMED.

       Plaintiff James Virgil appeals from a judgment on the pleadings entered in favor of

defendants the Town of Gates, Police Chief David DiCaro, Police Officer Joshua Bowman

(collectively, the “Town Defendants”), and defendants Monroe County, District Attorney

Michael Green, and Assistant District Attorney Kristina Karle (collectively, the “County

Defendants”), on Fourth and Fourteenth Amendment claims originating in Virgil’s arrest and

prosecution for the rape of his teenage daughter, charges that were eventually dismissed. See

42 U.S.C. §§ 1983, 1985, 1986, 1988. We review a judgment under Fed. R. Civ. P. 12(c) de

novo, accepting the complaint’s factual allegations as true and drawing all reasonable

inferences in the plaintiff’s favor. See Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir. 2010).

To survive a Fed R. Civ. P. 12(c) motion, a complaint must contain sufficient factual matter

to “state a claim to relief that is plausible on its face,” Bell Atl. Corp. v. Twombly, 550 U.S.

544, 570 (2007); in short, it must plead facts sufficient to allow a court to draw the

“reasonable inference that the defendant is liable for the misconduct alleged,” Ashcroft v.

Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009). Where referenced documents are integral

to the complaint, those documents are appropriately considered together with the pleadings


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in deciding a Fed R. Civ. P. 12(c) motion. See Chambers v. Time Warner, Inc., 282 F.3d

147, 153 (2d Cir. 2002). In applying these principles, we assume the parties’ familiarity with

the facts and record of prior proceedings, which we reference only as necessary to explain

our decision to affirm.

1.     Claim One: False Arrest, False Imprisonment, and Malicious Prosecution

       A.     False Arrest and False Imprisonment

       Plaintiff faults the district court’s conclusion that he failed plausibly to allege the lack

of probable cause necessary to maintain claims for false arrest and false imprisonment. See

Jenkins v. City of New York, 478 F.3d 76, 84, 88 (2d Cir. 2007) (recognizing probable cause

as complete defense to claims for false arrest and imprisonment arising in New York).

       We assess probable cause based on “the facts known to the arresting officer at the time

of the arrest,” not thereafter, Zellner v. Summerlin, 494 F.3d 344, 369 (2d Cir. 2007)

(internal quotation marks omitted), and we ask whether the officer had “knowledge or

reasonably trustworthy information of facts and circumstances . . . sufficient to warrant a

person of reasonable caution in the belief that the person to be arrested has committed or is

committing a crime,” Jocks v. Tavernier, 316 F.3d 128, 135 (2d Cir. 2003) (internal

quotation marks omitted). As the complaint attests, two months before Virgil’s May 23,

2007 arrest, his 18-year-old daughter told police that, over the years, she had been raped by

her father, her uncle, and a teenage neighbor. A victim’s identification of an assailant is, by

itself, sufficient “probable cause to effect an arrest absent circumstances that raise doubts as

to the victim’s veracity.” Singer v. Fulton Cnty. Sheriff, 63 F.3d 110, 119 (2d Cir. 1995).


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The complaint points to the daughter’s fragile mental health as a circumstance raising

veracity concerns. Even if we assume that to be the case, the record shows that these

concerns were sufficiently dispelled before arrest and indictment—by the defendant, the

victim, and hospital records—to support the probable cause determination required by the

Constitution.

       In that respect, we are mindful that while probable cause requires more than “mere

suspicion” of wrongdoing, Mallory v. United States, 354 U.S. 449, 454 (1957), its focus is

on “probabilities,” not “hard certainties,” Illinois v. Gates, 462 U.S. 213, 231 (1983).

Probabilities are assessed by reference to “the factual and practical considerations of

everyday life on which reasonable and prudent men, not legal technicians, act.” Id. (internal

quotation mark omitted). Thus, a probability of criminality does not demand a prima facie

showing or preponderance of the evidence. See id. at 235; Spinelli v. United States, 393 U.S.

410, 419 (1969). Nor does it require that a good faith belief that criminal conduct has

occurred be “correct or more likely true than false.” Texas v. Brown, 460 U.S. 730, 742

(1983). It requires only such facts as make wrongdoing “probable.” Walczyk v. Rio, 496

F.3d 139, 157 (2d Cir. 2007).

       In this case, that probability was satisfied by various means going beyond the initial

victim statement. Notably, Virgil himself confirmed that his daughter’s rape claim was not

fabricated from whole cloth. In response to police questions, he stated that his daughter had

been raped—by a teenage neighbor. Further, Virgil insinuated possible untoward sexual

contact with his son’s friend, who had resided with the family for an extended period of time.


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Thereafter, police interviewed the daughter at length and in the presence of a child abuse

advocate. The daughter provided a detailed account of the places, times, and circumstances

when she was raped by Virgil. This account was reduced to an eight-page statement that the

victim signed under the penalty of perjury. See United States v. Hernandez, 85 F.3d 1023,

1028 (2d Cir. 1996) (concluding that specific factual statements of observed criminality made

under penalty of perjury “are significantly more reliable” than unsworn statements, and

entitled to weight in assessing probable cause).1 Further, although the complaint maintains

that the police failed to review hospital records relating to the last two alleged rapes that

would have undermined the victim’s credibility, that assertion is not only conclusory, see

Ashcroft v. Iqbal, 129 S. Ct. at 1951 (conclusory allegations “not entitled to be assumed

true”), but belied by both hospital reports, which indicate some vaginal bruising and bleeding

and, in boxes denominated “Final Diagnosis,” state “Sexual Assault.”2 App. at 117, 135.

       In sum, this is not a case in which the record is totally devoid of expected support for

a victim’s claim as in Jovanovic v. City of New York, No. 04 Civ. 8437(PAC), 2006 WL



       1
         Although the complaint alleges that defendant Karle subsequently stated that the
daughter had recanted her rape accusation against her father and claimed that she was
“pushed to disclose” what had happened to her, Compl. ¶ 81 (emphasis in original), nowhere
does it ascribe such “pushing” to any defendant or claim that defendants maintained the
prosecution after the recantation. Accordingly, this allegation is insufficient to defeat the
challenged judgment.
       2
          We do not here consider whether, on cross-examination of relevant hospital
personnel, this conclusion might have been qualified. We note only that Virgil cannot claim
that the hospital records precluded defendants from concluding in “good faith” that probable
cause supported the victim’s rape charge against her father. See Texas v. Brown, 460 U.S.
at 742.

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2411541, at *7 (S.D.N.Y. Aug. 17, 2006), the unpublished district court decision relied on

by plaintiff. Rather, it is a case in which the teenage victim’s mental fragility could both

make her easy prey for or be explained by reference to sexual abuse, and raise questions

about her credibility in reporting abuse. The pleadings show that defendants took reasonable

steps to assuage those doubts to support probable cause for Virgil’s arrest. Thus, judgment

was appropriately entered in favor of defendants on the claims of false arrest and false

imprisonment.

       B.     Malicious Prosecution

       Probable cause is also an element of malicious prosecution under New York law. See

Manganiello v. City of New York, 612 F.3d 149, 160-61 (2d Cir. 2010). For purposes of

such claims, however, “even when probable cause is present at the time of arrest, evidence

could later surface which would eliminate that probable cause.” Lowth v. Town of

Cheektowaga, 82 F.3d 563, 571 (2d Cir. 1996) (internal quotation marks omitted). Assuming

arguendo that Virgil’s pleading is sufficient to deprive defendants of the presumption of

probable cause that usually attends a grand jury indictment, see Savino v. City of New York,

331 F.3d 63, 72 (2d Cir. 2003), we nonetheless conclude that the district court’s judgment

must be affirmed.

       Our identification of probable cause in affirming summary judgment for defendants

on Virgil’s false arrest and false imprisonment claims applies as well to his malicious

prosecution claim. That claim cannot succeed, moreover, insofar as it accuses defendants

of withholding “exculpatory facts that vitiated probable cause” against Virgil. Compl. ¶ 95.


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Such a claim cannot be based on the purported failure of police to investigate the daughter’s

claims further in the ways Virgil suggests, for example, by administering a polygraph test to

him; questioning other identified suspects, including the son’s friend who had resided with

the family; or procuring a DNA sample from a floor where the victim reported one of the

rapes had occurred. The Constitution does not require police to follow every lead, “explore

and eliminate every theoretically plausible claim of innocence,” or resolve all doubts about

a victim’s story before effecting an arrest or pursuing a prosecution. Ricciuti v. N.Y.C.

Transit Auth., 124 F.3d 123, 128 (2d Cir. 1997); see Curley v. Village of Suffern, 268 F.3d

65, 70 (2d Cir. 2001).

       As for Virgil’s claim that defendants withheld DNA evidence and photographs, his

characterization of this evidence as “apparently” exculpatory is speculative, Compl. ¶ 58,

see also id. ¶¶ 95, 101, and devoid of any factual content that would permit a court to draw

a reasonable inference of the lack of probable cause and actual malice required for a

malicious prosecution claim.

       In any event, we need not discuss these matters further because the district court gave

judgment to the defendants with respect to Virgil’s malicious prosecution argument on

another ground: Virgil suffered no damages that were proximately caused by the prosecution.

The district court concluded that the injuries he suffered, specifically his imprisonment, were

due entirely to an intervening cause: Virgil’s failure to follow a court order. See Pasadena

City Bd. Of Educ. v. Spangler, 427 U.S. 424, 439-40 (1976) (stating that disobedience of

court order may warrant contempt even if order is later found invalid).


                                              7
       In his general appeal from the judgment below, Virgil does not contest this alternate

holding by the district court except in the most conclusory fashion, which is inadequate to

preserve this issue for appellate review. See, e.g., Carpenter v. Republic of Chile, 610 F.3d

776, 780 (2d Cir. 2010). Because damages proximately caused by defendants are an essential

element of the tort of malicious prosecution, see Pinsky v. Duncan, 79 F.3d 306, 312 (2d Cir.

1996), this claim, like the false arrest and false imprisonment claims, must fail.

2.     Claim Two: Withholding Evidence and Inadequate Investigation

       Virgil’s second claim recasts his inadequate-investigation and withheld-evidence

allegations as due process violations. These claims have also been forfeited on appeal. Both

fail, at any rate, for reasons already stated. If probable cause is established, there is no

constitutional right, whether under the Fourth or Fourteenth Amendment, to demand further

investigation before arrest or prosecution. See Curley v. Village of Suffern, 268 F.3d at 70;

Ricciuti v. N.Y.C. Transit Auth., 124 F.3d at 128. Similarly, the speculative nature of

Virgil’s exculpatory-evidence pleading defeats his claim that he was denied due process by

defendants’ failure to make disclosures required by Brady v. Maryland, 373 U.S. 83 (1963).

See United States v. Persico, 645 F.3d 85, 111 (2d Cir. 2011) (“Evidence is material . . . only

if there is a reasonable probability that, had the evidence been disclosed to the defense, the

result of the proceeding would have been different.” (internal quotation marks omitted)). Nor

can such a conclusory pleading support an inference that defendants “actively hid . . .

exculpatory evidence,” conduct that supported a Fourth Amendment claim for unreasonably

prolonged detention in Russo v. City of Bridgeport, 479 F.3d 196, 210 (2d Cir. 2007)


                                              8
(holding that officers who viewed videotape of crime and falsely represented to defendant

that it was inculpatory when, in fact, it was exculpatory, could be sued for actively hiding

exculpatory evidence resulting in unreasonably prolonged detention in violation of Fourth

Amendment). Accordingly, judgment was appropriately entered in favor of defendants.

       The foregoing conclusions necessarily preclude Virgil’s conspiracy and municipal

liability claims, see Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658 (1978), and

make it unnecessary for us to consider qualified immunity.

3.     Conclusion

       We have considered plaintiff’s remaining arguments on appeal, and we conclude that

they are without merit. The judgment in favor of defendants is AFFIRMED.

                                    FOR THE COURT:
                                    CATHERINE O’HAGAN WOLFE, Clerk of Court




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