15-2918-cv
Cabral 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.

      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 21st day of September, two thousand sixteen.

PRESENT: JON O. NEWMAN,
                 GUIDO CALABRESI,
                 REENA RAGGI,
                         Circuit Judges.
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DAGOBERTO CABRAL,
                         Plaintiff-Appellant,

                    v.                                                       No. 15-2918-cv

CITY OF NEW YORK, NEW YORK CITY POLICE
DEPARTMENT, TYRONE THOMPSON, JOHN DOE NO. 1
and JOHN DOE NO. 2, names being fictitious, intended to be
officers of the New York City Police Department,
individually,
                         Defendants-Appellees.
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APPEARING FOR APPELLANT:                          WILLIAM MARTIN, Martin & Colin, P.C.,
                                                  White Plains, New York.

APPEARING FOR APPELLEES:                         JEREMY W. SHWEDER, Of Counsel (Cecelia
                                                 C. Chang, Of Counsel, on the brief), for Zachary
                                                 W. Carter, Corporation Counsel of the City of
                                                 New York, New York, New York.

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

of New York (Lorna G. Schofield, Judge).

      UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court entered on August 19, 2015, is

AFFIRMED.

      This appeal follows the trial of plaintiff Dagoberto Cabral’s claims that his initial

detention and the search of his vehicle on June 24, 2011, were unlawful under federal and

state law because they were not supported by probable cause.              Awarded $100

compensatory damages for the arrest, $1 nominal damages for the search, and (on

remittitur) $10,000 in punitive damages, Cabral challenges none of those decisions.

Instead, he appeals from the pre-trial award of partial summary judgment in favor of

defendants City of New York and Police Officer Tyrone Thompson on federal and state

claims of (1) false arrest (after the initial detention) and (2) malicious prosecution, and

federal claims of (3) unlawful seizure of his property and (4) unlawful strip search of his

person in jail. See Cabral v. City of New York, No. 12 Civ. 4659 (LGS), 2014 WL

4636433 (S.D.N.Y. Sept. 17, 2014).1 “We review an award of summary judgment de

novo, construing the evidence in the light most favorable to the nonmoving party”—in this

case Cabral—“and drawing all reasonable inferences in his favor.” McElwee v. Cty. of

Orange, 700 F.3d 635, 640 (2d Cir. 2012). We assume the parties’ familiarity with the


1
 Cabral does not challenge the dismissal of other claims or of defendants New York City
Police Department, John Doe No. 1, or John Doe No. 2.

                                            2
facts and record of prior proceedings, which we reference only as necessary to explain our

decision to affirm.

1.       Arrest Following Discovery of Marijuana

         Cabral challenges his arrest after the seizure of marijuana on the grounds that (a) the

search leading to this seizure was illegal, and (b) the amount of marijuana seized was too

small to support physical arrest under state law.

         The first argument is foreclosed by controlling precedent. Insofar as Cabral sues

for a violation of federal law, Townes v. City of New York, 176 F.3d 138 (2d Cir. 1999),

holds that “[v]ictims of unreasonable searches or seizures may recover damages directly

related to the invasion of their privacy—including (where appropriate) damages for

physical injury, property damage, injury to reputation, etc.,” id. at 148. Cabral recovered

for these damages at trial. But Townes goes on to hold that “such victims cannot be

compensated for injuries that result from the discovery of incriminating evidence and

consequent criminal prosecution.” Id. This necessarily defeats his federal false arrest

claim.

         Cabral argues that New York courts have elected not to apply the reasoning of

Townes to state false arrest claims. See Ostrover v. City of New York, 192 A.D.2d 115,

118, 600 N.Y.S.2d 243, 244–45 (1st Dep’t 1993); Fakoya v. City of New York, 115

A.D.3d 790, 791, 982 N.Y.S.2d 335, 336 (2d Dep’t 2014). But in Martinez v. City of

Schenectady, 97 N.Y.2d 78, 735 N.Y.S.2d 868 (2001), the New York Court of Appeals

held that the “existence of probable cause serves as a legal justification for the arrest and an


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affirmative defense to the claim” of false imprisonment in a civil action, even where

evidence establishing probable cause was suppressed in the criminal proceeding due to the

illegality of the search yielding the evidence, id. at 85, 735 N.Y.S.2d at 872. Whatever

ambiguity may exist as to Martinez’s adoption of Townes’s reasoning, see Williams v. City

of New York, No. 109385/10, slip op. 30051, at 4 (N.Y. Sup. Ct. Jan. 12, 2012), the

existence of such a decision by New York’s highest court would afford at least the

“reasonable basis” necessary for qualified immunity with regard to the state claim against

Officer Thompson, Arteaga v. State, 72 N.Y.2d 212, 216, 532 N.Y.S.2d 57, 59 (1988); see

also Jones v. Parmley, 465 F.3d 46, 63 (2d Cir. 2006). This provides an alternative ground

to affirm the challenged judgment. See generally Figueroa v. Mazza, 825 F.3d 89, 99 (2d

Cir. 2016).2

       Cabral’s second argument relies on N.Y. Crim. Proc. Law § 150.75 (stating that, on

warrantless arrest for possession of marijuana in violation of N.Y. Penal Law § 221.05,

“appearance ticket shall promptly be issued and served upon” arrestee), which Cabral

insists affords no authority to effect a custodial arrest for marijuana possession. The

argument fails for two reasons. First, New York courts have not so construed § 150.75;

rather, they have located custodial arrest authority in § 140.10 (stating that “officer may

arrest a person for . . . [a]ny offense when he or she has reasonable cause to believe that

such person has committed such offense in his or her presence”). See People v. Morgan,

2
  Because Cabral makes no argument to us in support of the City of New York’s liability
for false arrest, we treat the appeal of dismissal in favor of that party, assuming that Cabral
has even made it, to be abandoned. See Smith v. Fischer, 803 F.3d 124, 126 n.1 (2d Cir.
2015).

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10 A.D.3d 369, 370, 781 N.Y.S.2d 652, 653 (2d Dep’t 2004) (recognizing that officer had

“probable cause to arrest the defendant either for the class B misdemeanor of criminal

possession of marijuana in the fifth degree or for the ‘petty offense’ of unlawful possession

of marijuana”); People v. Faines, 297 A.D.2d 590, 595, 747 N.Y.S.2d 484, 489 (1st Dep’t

2002) (observing that, once defendant produced bag of marijuana, police acquired

“necessary probable cause to arrest him”). Second, § 150.75 applies only where “no other

offense is alleged” except § 221.05 possession. N.Y. Crim. Proc. Law § 150.75(1). The

record here indicates that police initially arrested Cabral for violating § 221.10,3 which

does not come within § 150.75. See People v. Terrero, 139 A.D.2d 830, 831–32, 527

N.Y.S.2d 135, 136–37 (3d Dep’t 1988).

       Accordingly, the district court properly granted judgment to defendants on Cabral’s

claims of false arrest following the discovery of marijuana.

2.     Seizure of Property

       Insofar as Cabral seeks monetary damages for the seizure of his van and cash

incident to his arrest for marijuana possession, the same probable cause that supported

arrest supported these seizures and, thus, required dismissal of these claims despite the



3
  N.Y. Penal Law § 221.10, the crime for which Cabral was arrested, prohibits both the
knowing and unlawful possession of, first, marijuana in a public place where the marijuana
is burning or in public view, id. § 221.10(1), and, second, preparations, compounds,
mixtures, or substances containing marijuana of an aggregate weight over twenty-five
grams, id. § 221.10(2). By contrast, N.Y. Penal Law § 221.05, the crime with which
Cabral was ultimately charged, prohibits the knowing and unlawful possession of
marijuana of any weight.


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illegality of the search that yielded that probable cause. See Townes v. City of New York,

176 F.3d at 148.4

       Insofar as Cabral also claims that retention of the seized items violated his

Fourteenth Amendment right to procedural due process, we note that this claim was not

pleaded in the Complaint. Further, as the district court noted, evidence that Cabral twice

requested a hearing (in August and September 2011) to have his property returned would

not by itself demonstrate a constitutional deprivation in light of the January 2012 return of

the property. Cabral had to adduce evidence of more than negligence in responding to his

requests to survive summary judgment. See Shaul v. Cherry Valley-Springfield Cent.

Sch. Dist., 363 F.3d 177, 187 (2d Cir. 2004). Accordingly, we affirm the judgment for

defendants on this due process claim.

3.     Malicious Prosecution

       Under both federal and New York law, a plaintiff suing for malicious prosecution

must establish, inter alia, that the challenged criminal proceedings were not supported by

probable cause. See Manganiello v. City of New York, 612 F.3d 149, 160–61 (2d Cir.

2010). Cabral argues that, despite Townes v. City of New York, 176 F.3d at 148,

marijuana seized in an unlawful search cannot supply that probable cause in light of Boyd

v. City of New York, 336 F.3d 72, 77 (2d Cir. 2003) (holding that evidence that “would

clearly not be admissible” cannot provide “probable cause to believe the prosecution could


4
  The Complaint, as construed by the district court, alleged a federal seizure-of-property
claim, but no such claim under state law. See Cabral v. City of New York, 2014 WL
4636433, at *9.

                                             6
succeed” as required to defeat malicious prosecution). We need not pursue that point

because Cabral’s federal and state malicious prosecution claims fail for another reason.

Nothing in the record indicates that Officer Thompson played an “active role” in

prosecution decisions. Bermudez v. City of New York, 790 F.3d 368, 377 (2d Cir. 2015)

(“[P]olice officers do not generally commence or continue criminal proceedings against

defendants.” (internal quotation marks omitted)). The undisputed record shows that

Thompson gave an accurate account of the circumstances pertaining to the search and

arrest of Cabral, and that the prosecuting Assistant District Attorney never spoke to

Thompson while pursuing the case before dismissal on speedy trial grounds. The district

court therefore correctly entered judgment for defendants on Cabral’s malicious

prosecution claims.

4.     Strip Search

       Cabral challenges the district court’s refusal to allow him to pursue an unpleaded

unlawful strip search claim for lack of fair notice. See Cabral v. City of New York, 2014

WL 4636433, at *8–9. We review this decision for abuse of discretion, see Boykin v.

KeyCorp, 521 F.3d 202, 212 (2d Cir. 2008), and identify none here. Plaintiff’s 21-page

Complaint stated 13 causes of action; none was for unlawful search. In the “Facts”

section of the Complaint, Cabral does allege that defendants “sear[ch]ed his car without

cause or justification,” and that he was “stopped and searched without legal cause or

justification,” but, in context, those statements can only reasonably be read to reference the

initial stop and search of his car and person on the street, not the strip search conducted in


                                              7
jail. App’x 49. Indeed, nowhere does the Complaint mention a strip search. Cabral

argues that the strip search was a subject of deposition inquiry and letters to the court. But

notice pleading requires that the complaint “give the opposing party notice of the nature of

the claim against it, including which of its actions gave rise to the claims upon which the

complaint is based. The claim must be sufficiently particular to allow the defendant to

commence discovery and prepare a defense.” E & L Consulting, Ltd. v. Doman Indus.

Ltd., 472 F.3d 23, 32 (2d Cir. 2006). At no time prior to the parties’ summary judgment

filings did Cabral indicate that he wished to amend his Complaint to add a strip search

claim. Cruz v. Coach Stores, Inc., 202 F.3d 560 (2d Cir. 2000), relied on by Cabral, does

not support his argument on appeal because there, the complaint specifically referenced

“hostile work environment harassment” and pleaded facts detailing the harassment, id. at

568. As already noted, Cabral’s Complaint never mentions a strip search. In sum,

because Cabral’s Complaint, even broadly construed, did not put defendants on notice that

he was bringing a claim for damages based on a strip search conducted in jail, the district

court acted within its discretion in refusing to allow him to pursue this claim.

5.     Conclusion

       We have considered all of Cabral’s other arguments and conclude that they are

without merit. Accordingly, we AFFIRM the judgment of the district court.

                                           FOR THE COURT:
                                           Catherine O’Hagan Wolfe, Clerk of Court




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