     15-3813-cv
     Tyk v. Surat


                         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 ASUMMARY ORDER@). A PARTY CITING TO 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 for the Second Circuit,
 2   held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
 3   New York, on the 12th day of January, two thousand seventeen.
 4
 5   PRESENT:
 6               DENNIS JACOBS,
 7               ROBERT D. SACK,
 8               SUSAN L. CARNEY,
 9                     Circuit Judges.
10   _____________________________________
11
12   Aaron Tyk,
13
14                        Plaintiff-Appellant,
15
16                  v.                                                       15-3813
17
18   Police Officer Eric Surat, in his personal
19   individual capacity in addition to his capacity
20   as an employee of the New York Police
21   Department and the City of New York,
22   The City of New York,
23
24                     Defendants-Appellees.
25   _____________________________________
26
27   FOR PLAINTIFF -APPELLANT:                   Aaron Tyk, pro se, Brooklyn, NY.
28
29   FOR DEFENDANT -APPELLEE:                    Emma Grunberg, Assistant Corporation Counsel,
30                                               for Zachary W. Carter, Corporation Counsel for the
31                                               City of New York, New York, NY.
32
 1          Appeal from a judgment of the United States District Court for the Eastern District of New

 2   York (Cogan, J.).


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

 4   DECREED that the judgment of the district court is AFFIRMED.

 5          Appellant Aaron Tyk, a lawyer appearing pro se, appeals from the district court’s grant of

 6   summary judgment to Appellees Eric Surat and the City of New York. Tyk sued under 42 U.S.C.

 7   § 1983 for malicious prosecution, selective enforcement in violation of the Equal Protection

 8   clause, and excessive force.      He also brought state law claims.        We assume the parties’

 9   familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

10          We review de novo a district court’s grant of summary judgment, with the view that

11   summary judgment is appropriate only “if the movant shows that there is no genuine dispute as to

12   any material fact and the movant is entitled to judgment as a matter of law.” Sousa v. Marquez,

13   702 F.3d 124, 127 (2d Cir. 2012) (quoting Fed. R. Civ. P. 56(a)).

14          Tyk failed to raise an issue of material fact bearing on his claims of malicious prosecution

15   and selective enforcement. Importing New York law, the elements of malicious prosecution

16   under § 1983 are: “(1) that the defendant initiated a prosecution against the plaintiff, (2) that the

17   defendant lacked probable cause to believe the proceeding could succeed, (3) that the defendant

18   acted with malice, [] (4) that the prosecution was terminated in the plaintiff’s favor . . . [and] (5)

19   [that there was] a sufficient post-arraignment liberty restraint to implicate the plaintiff’s Fourth

20   Amendment rights.” Rohman v. New York City Transit Auth., 215 F.3d 208, 215 (2d Cir. 2000)

21   (internal citations and quotation marks omitted).

22          The district court reasoned that Surat did not initiate Tyk’s prosecution. But issuing a

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23   desk appearance ticket (“DAT”) initiates a prosecution. See Stampf v. Long Island. R.R., 761

24   F.3d 192, 199 (2d Cir. 2014). Officer Surat therefore initiated Tyk’s prosecution when he

25   arrested Tyk and issued him a DAT.

26          We may affirm, however, on grounds not relied upon by the district court, United States v.

27   Cramer, 777 F.3d 597, 603 (2d Cir. 2015), and Tyk failed to offer evidence that Surat lacked

28   probable cause. “Probable cause, in the context of malicious prosecution, has also been described

29   as such facts and circumstances as would lead a reasonably prudent person to believe the plaintiff

30   guilty.” Boyd v. City of New York., 336 F.3d 72, 76 (2d Cir. 2003) (citation omitted). As the

31   district court observed, there is no genuine dispute that Surat had probable cause to issue the DAT.

32   At Tyk’s criminal trial, Surat testified that before arresting Tyk, he interviewed three hospital

33   security staff members about the incident and saw that one of them had red marks on the nose.

34   This was sufficient to establish a reasonable basis to believe Tyk was guilty of reckless

35   endangerment, harassment, and disorderly conduct. See Martinez v. Simonetti, 202 F.3d 625, 634

36   (2d Cir. 2000) (“[I]t is well-established that a law enforcement official has probable cause to arrest

37   if he received his information from some person, normally the putative victim or eyewitness.”

38   (citation omitted)). The police report further reflects that a hospital security guard reported to

39   Surat that he had repeatedly asked Tyk to leave hospital property, supplying Surat with probable

40   cause to arrest Tyk for trespass. Tyk argues that Surat nevertheless lacked probable cause

41   because he failed to examine the security footage. But “[o]nce a police officer has a reasonable

42   basis for believing there is probable cause, he is not required to explore and eliminate every

43   theoretically plausible claim of innocence before making an arrest.” Ricciuti v. New York City

44   Transit Auth., 124 F.3d 123, 128 (2d Cir. 1997).


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45           Nor did Tyk adduce evidence of selective enforcement.               A claim for selective

46   enforcement in violation of the Equal Protection Clause requires that the plaintiff show “(1) [that]

47   the person, compared with others similarly situated, was selectively treated; and (2) that such

48   selective treatment was based on impermissible considerations such as race, religion, intent to

49   inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a

50   person.” Freedom Holdings, Inc. v. Spitzer, 357 F.3d 205, 234 (2d Cir. 2004) (citation omitted)

51   (alteration in original).   Tyk alleged that he was not permitted to file a cross-criminal complaint

52   against D’Atri and the other hospital security guards. But there is no constitutional right to

53   prosecute another person. See Leeke v. Timmerman, 454 U.S. 83, 85-86 (1981) (per curiam);

54   Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973) (no standing when challenging the

55   non-prosecution of another). Moreover, Tyk did not offer any evidence that he was discriminated

56   against on the basis of any impermissible consideration. Although Tyk mentions his “orthodoxy”

57   in his brief, he did not raise religious bias before the district court. See Virgilio v. City of New

58   York, 407 F.3d 105, 116 (2d Cir. 2005) (“In general we refrain from passing on issues not raised

59   below.” (internal quotation marks and citation omitted)).

60           Tyk’s claim of excessive force was properly dismissed due to lack of admissible evidence

61   of injury. The Fourth Amendment governs claims involving excessive force during an arrest.

62   Graham v. Connor, 490 U.S. 386, 394 (1989). Such claims are evaluated under an “objective

63   reasonableness” standard and require a “careful balancing of the nature and quality of the intrusion

64   on the individual’s Fourth Amendment interests against the countervailing governmental interests

65   at stake.” Id. at 396, 399 (internal quotation marks omitted). Tyk’s excessive force claim fails

66   because he does not show that Surat used any degree of force that was more than necessary to


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67   effect a lawful arrest. Officers are entitled to use some degree of force when restraining a suspect

68   during an arrest. See id. at 396 (“Not every push or shove, even if it may later seem unnecessary

69   in the peace of a judge’s chambers, violates the Fourth Amendment.” (citation omitted)). The

70   district court did not abuse its discretion by excluding Dr. Irving Friedman’s report regarding

71   Tyk’s alleged injuries and Tyk offered no other admissible evidence that Surat used an

72   unreasonable degree of force in handcuffing Tyk.

73          Because Tyk has not established an underlying violation of his constitutional rights, his

74   § 1983 claims against the City necessarily fail. See Segal v. City of New York, 459 F.3d 207, 219

75   (2d Cir. 2006) (“Because the district court properly found no underlying constitutional violation,

76   its decision not to address the municipal defendants’ liability under Monell was entirely correct.”).

77          The district court also properly dismissed Tyk’s state law claims. Under New York State

78   law, a plaintiff must file a notice of claim within 90 days after the claim arises to sue a

79   municipality. N.Y. Gen. Mun. Law § 50-e(1)(a). “A late notice of claim served without leave of

80   the court is a nullity.” Chtchannikova v. City of New York, 138 A.D.3d 908, 909 (2d Dep’t 2016);

81   see also Williams v. Nassau Cty. Med. Ctr., 6 N.Y.3d 531, 535 (2006); N.Y. Gen. Mun. Law §

82   50-e(5). Tyk’s arguments concerning prejudice and actual notice are misplaced because Tyk

83   never sought leave in the first place. See In re Rivera-Guallpa v. Cty. of Nassau, 40 A.D.3d 1001,

84   1002 (2d Dep’t 2007) (applying the prejudice and actual notice review only after the plaintiff

85   requested leave to file a late notice of claim).

86

87

88


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89          We have considered all of Tyk’s remaining arguments and find them to be without merit.

90   Accordingly, we AFFIRM the judgment of the district court.

91
92
93                                             FOR THE COURT:
94                                             Catherine O’Hagan Wolfe, Clerk




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