15-3802-cv
Kaskel v. Compagnone


                          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 22nd day of November, two thousand sixteen.
PRESENT: AMALYA L. KEARSE,
                 RICHARD C. WESLEY,
                 CHRISTOPHER F. DRONEY,
                                 Circuit Judges.
----------------------------------------------------------------------
PETER S. KASKEL, M.D.,
                                 Plaintiff-Appellant,

                        v.                                                 No. 15-3802-cv

TANYA COMPAGNONE,
                                 Defendant-Appellee.
----------------------------------------------------------------------

 FOR PLAINTIFF-APPELLANT:                                 JOHN R. WILLIAMS, ESQ., New Haven,
                                                          CT.

 FOR DEFENDANT-APPELLEE:                                  CARMEL A. MOTHERWAY, Assistant
                                                          Attorney General, for George Jepsen,
                                                          Attorney General for the State of
                                                          Connecticut, Hartford, CT.

     Appeal from a judgment of the United States District Court for the District of
Connecticut (Underhill, J.).



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    UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the district court is AFFIRMED.

       Plaintiff-Appellant Peter Kaskel appeals from the district court’s October 30, 2015
judgment granting summary judgment in favor of Defendant-Appellee Tanya
Compagnone. On October 5, 2011, a pediatrician and mandated reporter, see Conn. Gen.
Stat. § 17a-101(b), filed a Child Sexual Abuse report with the Department of Children
and Families, containing allegations of child abuse by Plaintiff against his two young
children. Officer Compagnone, a Detective with the Connecticut State Police,
investigated these allegations and subsequently submitted a warrant application for
Plaintiff’s arrest on three counts of risk of injury to a minor. Plaintiff was arrested and
prosecuted, but all charges were nolled and eventually dismissed. On January 6, 2014,
Plaintiff filed the instant suit against Detective Compagnone, in her individual capacity,
alleging malicious prosecution in violation of the Fourth Amendment. We assume the
parties’ familiarity with the underlying facts, the procedural history of the case, and the
issues on appeal.

       We review a district court’s grant of summary judgment de novo. Bryant v.
Maffucci, 923 F.2d 979, 982 (2d Cir. 1991). “A grant of summary judgment will be
affirmed only if ‘there is no genuine issue as to any material fact and . . . the moving
party is entitled to a judgment as a matter of law.’” Morales v. Quintel Entm’t, Inc., 249
F.3d 115, 121 (2d Cir. 2001) (quoting Fed. R. Civ. P. 56(c)). We view all ambiguities and
reasonable inferences in the light most favorable to the nonmoving party. Bryant, 923
F.2d at 982.

       To prove a claim of malicious prosecution, a plaintiff must show that: (1) the
defendant initiated or continued a criminal proceeding against him; (2) the proceeding
terminated in his favor; (3) the defendant acted without probable cause; and (4) the
defendant acted with malice. Roberts v. Babkiewicz, 582 F.3d 418, 420 (2d Cir. 2009)
(per curiam). At issue here is the third prong: whether Detective Compagnone acted
without probable cause. Probable cause exists “if the totality of the circumstances, as
viewed by a reasonable and prudent police officer in light of his training and experience,
would lead that police officer to believe that a criminal offense has been or is being
committed.” United States v. Moreno, 897 F.2d 26, 31 (2d Cir. 1990), abrogated on other
grounds by Horton v. California, 496 U.S. 128 (1990) (internal quotation marks omitted).
Generally, a neutral magistrate’s finding of probable cause in issuing a warrant creates a
presumption that it was objectively reasonable for the officer to believe that probable
cause existed. See Golino v. City of New Haven, 950 F.2d 864, 870 (2d Cir. 1991). Thus,
“a plaintiff who argues that a warrant was issued on less than probable cause faces a
heavy burden.” Id.


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       In so arguing, a plaintiff must show that the officer “knowingly and intentionally,
or with reckless disregard for the truth, made a false statement in his affidavit or omitted
material information, and that such false or omitted information was necessary to the
finding of probable cause.” Soares v. Connecticut, 8 F.3d 917, 920 (2d Cir. 1993)
(internal quotation marks omitted). We evaluate such a claim by “put[ting] aside
allegedly false material, supply[ing] any omitted information, and then determin[ing]
whether the contents of the ‘corrected affidavit’ would have supported a finding of
probable cause.” Id. If probable cause remains, no constitutional violation occurred. Id.

       At summary judgment, Plaintiff alleged that Detective Compagnone’s affidavit in
support of the warrant contained a number of false or misleading statements. Upon
striking those statements from the affidavit, the district court found that probable cause
nonetheless existed, based on: (1) the pediatrician’s physical examination of the children;
and (2) allegations by Simi Kaskel, the children’s mother and Plaintiff’s then-wife, that
Plaintiff masturbated in the children’s presence. Plaintiff challenges both bases on appeal.

              1. The Pediatrician’s Report

       In finding sufficient probable cause, the district court placed great significance on
the pediatrician’s report, which the court characterized as “report[ing] physical
examination of the children consistent with child abuse.” J. App’x at 91. Plaintiff takes
issue with this representation, arguing that at no point did either the pediatrician’s report
or Detective Compagnone’s affidavit expressly link the children’s medical conditions to
possible child abuse. Absent such a link, Plaintiff maintains, the pediatrician’s report
cannot support a finding of probable cause.

        This argument fails. The circumstances of an arrest must be evaluated in light of
the training and experience of the investigating agent. See Moreno, 897 F.2d at 31; see
also McColley v. Cnty. of Rensselaer, 740 F.3d 817, 823 (2d Cir. 2014) (“In performing
the ‘corrected affidavit’ analysis, we examine all of the information the officers
possessed when they applied for the arrest warrant.” (internal quotation marks omitted)).
Here, Detective Compagnone had extensive training and experience in child-abuse
investigations. In an affidavit prepared for this litigation, Detective Compagnone stated
that, based on her training and experience, the children’s medical conditions held
particular significance: she knew them to be physical indicators of child sexual abuse.
There is therefore no genuine dispute that the pediatrician’s report, when viewed through
the lens of Detective Compagnone’s background, reasonably led Detective Compagnone
to believe that a criminal offense had been or was being committed. See Moreno, 897
F.2d at 31.




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              2. Simi Kaskel’s Allegations

       Plaintiff next argues that Simi Kaskel’s allegations cannot support a finding of
probable cause because she lacked credibility as a witness. Relatedly, Plaintiff faults
Detective Compagnone for failing to investigate the situation further.

        “While probable cause requires more than a mere suspicion[] of wrongdoing, its
focus is on probabilities, not hard certainties.” Walczyk v. Rio, 496 F.3d 139, 156 (2d Cir.
2007) (citation and internal quotation marks omitted). Thus, an arresting officer need not
“explore and eliminate every theoretically plausible claim of innocence before making an
arrest.” Martinez v. Simonetti, 202 F.3d 625, 635 (2d Cir. 2000) (internal quotation marks
omitted). Indeed, “[o]nce an officer has probable cause, he or she is neither required nor
allowed to continue investigating, sifting and weighing information.” Panetta v. Crowley,
460 F.3d 388, 398 (2d Cir. 2006) (internal quotation marks omitted). “In sum, probable
cause does not demand any showing that a good-faith belief be correct or more likely true
than false.” Walczyk, 496 F.3d at 157 (internal quotation marks omitted).

       Here, Detective Compagnone’s affidavit in support of the arrest warrant disclosed
that the Kaskels were in the midst of a divorce proceeding, and that Simi Kaskel had
sought a restraining order to keep Plaintiff out of the home. The affidavit also indicated
that one of Simi Kaskel’s allegations—that Plaintiff had been seen watching child
pornography—was flatly contradicted by Plaintiff’s second wife, Sheryl Marinone. Thus,
as the district court observed, the affidavit “fairly presented” Simi Kaskel as someone
motivated to exaggerate. J. App’x at 100. Moreover, Simi Kaskel’s allegations were
corroborated by the children’s physical symptoms. In light of these circumstances, we
conclude that there is no genuine dispute that a reasonable officer would have believed
probable cause existed and that, as such, no further investigation was necessary. See
Panetta, 460 F.3d at 398. Accordingly, we reject Plaintiff’s arguments.




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                3. Conclusion

       For the foregoing reasons, we conclude that there is no genuine dispute that
Detective Compagnone’s “corrected” affidavit supports a finding of probable cause, and
that summary judgment was properly granted in Detective Compagnone’s favor. We have
considered Plaintiff’s remaining arguments and conclude that they are without merit.1
We therefore AFFIRM the judgment of the district court.

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




1
  Both Detective Compagnone and the district court interpreted Plaintiff’s complaint as stating a claim of
intentional infliction of emotional distress. To the extent Plaintiff raised such a claim, he has abandoned it
on appeal. See United States v. Quiroz, 22 F.3d 489, 490 (2d Cir. 1994) (per curiam) (“It is well
established that an argument not raised on appeal is deemed abandoned.” (internal quotation marks
omitted)).


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