    18-3349
    Harrison v. Cty. of Nassau


                            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 TO 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 12th day of March, two thousand twenty.

    PRESENT:
                BARRINGTON D. PARKER,
                DEBRA ANN LIVINGSTON,
                WILLIAM J. NARDINI,
                      Circuit Judges.
    _____________________________________

    Malek Harrison,

                                 Plaintiff-Appellant,

                       v.                                                     18-3349

    County of Nassau, Nassau County Police
    Department, Nassau County District Attorney’s
    Office, Ronald Rispoli, Nassau County Detective,
    Jhounelle Cunningham, Assistant District
    Attorney, Carolyn Abdenour, Assistant District
    Attorney

                                 Defendants-Appellees.

    _____________________________________

    FOR PLAINTIFF-APPELLANT:                             Malek Harrison, pro se, Rosedale, NY.

    FOR DEFENDANTS-APPELLEES:                            Robert F. Van der Waag, Jackie L. Gross,
                                                         Deputy County Attorneys, for Jared
                                                         Kasschau, Nassau County Attorney,
                                                         Mineola, NY.
       Appeal from a judgment of the United States District Court for the Eastern District of New

York (Bianco, J.; Tomlinson, Mag. J.).

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

DECREED that the judgment of the district court is AFFIRMED.

       Plaintiff-Appellant Malek Harrison (“Harrison”), pro se, sued Defendants-Appellees the

County of Nassau; the Nassau County Police Department; the Nassau County Office of the District

Attorney (“DA’s Office”); Nassau County detective Ronald Rispoli; and Nassau County Assistant

District Attorneys (“ADAs”) Jhounelle Cunningham and Carolyn Abdenour (collectively, the

“Defendants”), alleging that they violated his rights under the Fourth, Fifth, and Fourteenth

Amendments when they arrested and prosecuted him for using counterfeit currency at a Target

store in 2012. He raised claims under 42 U.S.C. §§ 1983 and 1985 for: (1) false arrest; (2)

malicious prosecution; (3) police misconduct; (4) prosecutorial misconduct; (5) abuse of power;

and (6) conspiracy to deny him his constitutional rights to due process and a fair trial. The district

court (Bianco, J.) granted in part and denied in part the Defendants’ motion for partial judgment

on the pleadings, allowing the false arrest, malicious prosecution, police misconduct, and

prosecutorial misconduct claims to proceed against Nassau County and the false arrest, malicious

prosecution, and police misconduct claims to proceed against Rispoli. Thereafter, a magistrate

judge (Tomlinson, Mag. J.) recommended that the district court deny Harrison’s motion for

summary judgment and grant the Defendants’ cross-motion.              Harrison did not timely file

objections.    On September 24, 2018, the district court adopted the magistrate judge’s

recommendation in its entirety and entered judgment in favor of the Defendants on September 25.

Shortly thereafter, the district court received Harrison’s objections, dated September 20, 2018. In

October 2018, the district court issued another order addressing Harrison’s objections; explaining

that it considered the objections as filed on September 20, 2018; and confirming its adherence to


                                                  2
its September 24 ruling.     On October 31, 2018, Harrison appealed.         In his brief, Harrison

challenges only the dismissal of his false arrest and malicious prosecution claims. We assume the

parties’ familiarity with the underlying facts, the procedural history, and the issues on appeal.

                                             *   *    *

       At the start, Harrison’s notice of appeal was filed on October 31, more than 30 days after

judgment was entered on September 25, 2018. See Fed. R. App. P. 4(a)(1)(A) (30-day deadline);

28 U.S.C. § 2107 (30-day deadline). The timely filing of a notice of appeal is a jurisdictional

requirement.   Bowles v. Russell, 551 U.S. 205, 214 (2007).          As a result, we do not have

jurisdiction to review the September 2018 order underlying the judgment. We do, however, have

jurisdiction over the district court’s October 2018 order because the notice of appeal was filed

within 30 days of entry of that order. The October 2018 order addressed the merits of Harrison’s

objections to the dismissal of his false arrest and malicious prosecution claims. Thus, despite the

fact that the notice of appeal was not timely filed from the judgment, we still undertake a merits

review of his argument on appeal that the district court erred in granting summary judgment as to

his false arrest and malicious prosecution claims. We review grants of summary judgment de

novo, Sotomayor v. City of New York, 713 F.3d 163, 164 (2d Cir. 2013), determining whether the

district court properly concluded that there was no genuine dispute as to any material fact and that

the moving party was entitled to judgment as a matter of law, Sousa v. Marquez, 702 F.3d 124,

127 (2d Cir. 2012).

       First, the district court properly dismissed Harrison’s false arrest claim. The elements

necessary to prove false arrest under § 1983 are “substantially the same” as the elements for false

arrest under New York law. Ackerson v. City of White Plains, 702 F.3d 15, 19 (2d Cir. 2012)

(internal quotation marks omitted). And probable cause to arrest is a complete defense to such a

claim brought under either § 1983 or New York law. Id. “Probable cause is established when


                                                 3
the arresting officer has knowledge or reasonably trustworthy information sufficient to warrant a

person of reasonable caution in the belief that an offense has been committed by the person to be

arrested.” Singer v. Fulton Cty. Sheriff, 63 F.3d 110, 119 (2d Cir. 1995) (internal quotation marks

omitted). It “requires only a probability or substantial chance of criminal activity, not an actual

showing of such activity.” United States v. Bakhtiari, 913 F.2d 1053, 1062 (2d Cir. 1990)

(quoting Illinois v. Gates, 462 U.S. 213, 244 n. 13 (1983)). A court “must consider [only] those

facts available to the officer at the time of the arrest and immediately before it.” Panetta v.

Crowley, 460 F.3d 388, 395 (2d Cir. 2006) (internal quotation marks and emphasis omitted).

‘“[A]bsent circumstances that raise doubts as to the victim’s veracity,’ a victim’s identification is

typically sufficient to provide probable cause.” Stansbury v. Wertman, 721 F.3d 84, 90–91 (2d

Cir. 2013) (quoting Singer, 63 F.3d at 119 (holding that a store clerk’s description of an incident

of shoplifting supported a finding of probable cause)).

       Here, the Defendants had probable cause to arrest Harrison, which defeats his false arrest

claim. On June 1, 2012, Target protection specialist Ntozake Morgan viewed a photo array

compiled by Rispoli. Morgan informed Rispoli that she recognized the person in photo 6 as the

person who “came into Target . . . and purchased items from the electronic department and paid

for them with counterfeit $100 bills.” The person depicted in photo 6 was Harrison. Harrison

has raised no material issue of fact as to this sequence of events, which is based on evidence

bearing more than sufficient indicia of reliability to support probable cause to arrest. See Curley

v. Village of Suffern, 268 F.3d 65, 70 (2d Cir. 2001) (“When information is received from a putative

victim or an eyewitness, probable cause exists unless the circumstances raise doubt as to the

person’s veracity.”) (internal citation omitted).

       Harrison raises the same arguments on appeal as he did in district court, seeking to cast

doubt on Morgan’s identification and to raise questions concerning the Defendants’ case against


                                                    4
him. But he provided no evidence in district court, and cannot point to any now, showing that the

district court erred in granting summary judgment on this claim. Harrison questions how probable

cause existed when Morgan’s October 2013 “supporting deposition” describing the May 2012

events leading to Harrison’s arrest was written “17 months” after his arrest. He also focuses on

an alleged inconsistency between Morgan’s deposition, in which she stated that she received a call

from a female cashier regarding the first transaction, and the video surveillance, which shows that

a male, not a female, employee assisted him with that transaction. Because probable cause is

assessed “based upon [] the facts known by the arresting officer at the time of the arrest,” Jaegly

v. Couch, 439 F.3d 149, 153 (2d Cir. 2006), however, any statements from Morgan’s supporting

deposition over a year later, and any alleged inconsistency between that statement and video

surveillance, could not have been known to the arresting officer “at the time of the arrest.” Id. It

was Morgan’s June 1 identification from the photo array that provided probable cause.

Accordingly, Harrison’s arguments do not undermine the Defendants’ “reasonably trustworthy

information” that he had used counterfeit currency at Target, which supported probable cause to

arrest him. See Singer, 63 F.3d at 119. The district court properly granted summary judgment

on this claim.

       Next, in order to prevail on a § 1983 claim for malicious prosecution, a plaintiff must show

a violation of his rights under the Fourth Amendment and must establish the elements of a

malicious prosecution claim under state law. Manganiello v. City of New York, 612 F.3d 149,

160–61 (2d Cir. 2010). “To establish a malicious prosecution claim under New York law, a

plaintiff must prove (1) the initiation or continuation of a criminal proceeding against plaintiff; (2)

termination of the proceeding in plaintiff's favor; (3) lack of probable cause for commencing the

proceeding; and (4) actual malice as a motivation for defendant’s actions.” Id. (internal quotation

marks omitted). The district court focused on the third element. ‘“Under New York law, even


                                                  5
when probable cause is present at the time of arrest, evidence could later surface which would

eliminate that probable cause. In order for probable cause to dissipate, the groundless nature of

the charge must be made apparent by the discovery of some intervening fact.”’ Kinzer v. Jackson,

316 F.3d 139, 144 (2d Cir. 2003) (quoting Lowth v. Town of Cheektowaga, 82 F.3d 563, 571 (2d

Cir. 1996)).    Regarding the third element, under New York law, Harrison’s prosecution

commenced when he was arraigned because a warrant for his arrest was never issued. Broughton

v. New York, 37 N.Y.2d 451, 456–57 (1975).

       Harrison claims that the Defendants wanted to arrest and incarcerate him regardless of

whether he committed the crime, and that they manufactured evidence and witnesses to simulate

probable cause. He raises the same argument here as he did on his false arrest claim—i.e., that

Morgan’s deposition statement was inconsistent with the video surveillance evidence. But as the

district court observed, even assuming the purported inconsistency between Morgan’s written

statement and the surveillance video on which Harrison relies, that inconsistency would not have

vitiated probable cause. Nor does Harrison cite any evidence or other information the prosecutors

may have known between the time of his June 11, 2012 arrest and his arraignment (or thereafter)

that raises a genuine dispute of material fact as to the continued existence of probable cause.

       Further, Harrison’s vague arguments are also insufficient to raise a material issue as to

actual malice, the fourth element of a malicious prosecution claim. Such malice may be proven

by showing that the prosecutor had “a wrong or improper motive, something other than a desire to

see the ends of justice served.” Lowth, 82 F.3d at 573 (internal quotation marks omitted). “A

lack of probable cause generally creates an inference of malice.” Boyd v. City of New York, 336

F.3d 72, 78 (2d Cir. 2003). Harrison’s assertions that the Defendants fabricated evidence are

unsupported by any evidence and are insufficient to create a question of material fact to overcome

summary judgment. See Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir. 2005) (“To


                                                 6
defeat summary judgment . . . nonmoving parties must do more than simply show that there is

some metaphysical doubt as to the material facts, and they may not rely on conclusory allegations

or unsubstantiated speculation.” (internal quotation marks and citation omitted)). We therefore

conclude that the district court properly granted summary judgment on this claim.

       We have considered all of Harrison’s remaining arguments and find them to be without

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


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




                                               7
