    16-12-cv
    Russell v. The Journal News



                            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.

                  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 5th day of December, two thousand sixteen.

    PRESENT:
                       JOHN M. WALKER, JR.,
                       PETER W. HALL,
                       DENNY CHIN,
                                  Circuit Judges.

    _____________________________________

    JAMES RUSSELL,

                                Plaintiff-Appellant,

                       v.                                                                 No. 16-12-cv

    THE JOURNAL NEWS, JOURNAL NEWS LLC, GANNETT COMPANY
    INC., JOSEPH MCDONALD, INDIVIDUALLY, ANTHONY SIMMONS,
    INDIVIDUALLY, P.O. MICHAEL DILAURIA, INDIVIDUALLY, P.O. WILLIAM
    DUFFELMEYER, INDIVIDUALLY, TOWN OF HARRISON, GANNETT SATELLITE
    INFORMATION NETWORK, INC.,*

                                Defendants-Appellees.

    _____________________________________

    For Defendants-Appellees The Journal News,
    Journal News LLC, Gannett Company, Inc.,
    *
        The Clerk of Court is requested to amend the caption to conform with the above.
Joseph McDonald, Anthony Simmons, and
Gannett Satellite Information Network, Inc.:       GLENN EDWARDS (Mark A. Fowler, Charles
                                                    Keeley III, on the brief), Satterlee Stephens
                                                    LLP, New York, NY.

For Defendants-Appellees P.O. Michael
DiLauria, P.O. William Duffelmeyer, and
Town of Harrison:                                  STEVEN J. HARFENIST (Neil Torczyner, on
                                                   the brief), Harfenist Kraut & Perlstein LLP,
                                                   Lake Success, NY.

For Plaintiff-Appellant:                           MICHAEL H. JOSEPH, White Plains, NY.



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

New York (Seibel, J.).

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

DECREED that the judgment of the district court is AFFIRMED.

       Plaintiff-Appellant James Russell filed an action under 42 U.S.C. § 1983 asserting claims

for, inter alia, false arrest against Defendants-Appellees Town of Harrison and Harrison Police

Department Officers Michael DiLauria and William Duffelmeyer (“Harrison Defendants”) and

for malicious prosecution against Defendants-Appellees The Journal News, Journal News LLC,

Gannett Company Inc., Gannett Satellite Information Network Inc., Joseph McDonald, and

Anthony Simmons (“Journal News Defendants”) and the Harrison Defendants. The district court

dismissed Russell’s malicious prosecution claims under Federal Rule of Civil Procedure 12(b)(6)

and denied Russell’s motion to reconsider.     It granted summary judgment in favor of the

Harrison Defendants on Russell’s false arrest claim. Russell appeals from these orders. On

January 16, 2014, the district court dismissed Russell’s Section 1983 claims against the Journal

News Defendants, on the grounds that they were not state actors or acting under color of state

law. It also dismissed his malicious prosecution claim against the Journal News Defendants,
                                               2
because Russell had not sufficiently alleged a favorable termination, and his other state law

claims against them, as time-barred. Because Russell’s briefing does not address the holdings

with respect to the Section 1983 or other state law claims against the Journal News Defendants,

we deem any challenges to those holdings waived.        See, e.g., Schwapp v. Town of Avon, 118

F.3d 106, 112 (2d Cir. 1997) (claims not “adequately presented in an appellant’s brief” are

considered “abandoned” on appeal). We therefore consider only his malicious prosecution

claims against both sets of defendants and his other claims against the Harrison Defendants. We

assume the parties’ familiarity with the underlying facts and the procedural history of this case.

   I.      Dismissal of the Malicious Prosecution Claims Against All Defendants

        We review de novo a grant of a motion to dismiss pursuant to Rule 12(b)(6). Carpenters

Pension Trust Fund of St. Louis v. Barclays PLC, 750 F.3d 227, 232 (2d Cir. 2014). “To survive

a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state

a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). We review the denial of a

motion for reconsideration for abuse of discretion. ISC Holding AG v. Nobel Biocare Fin. AG,

688 F.3d 98, 109 (2d Cir. 2012).

        The district court did not err in dismissing Russell’s malicious prosecution claims

because the charges against Russell did not terminate in his favor, as required by New York law.

See, e.g., Smith-Hunter v. Harvey, 95 N.Y.2d 191, 195 (2000) (observing that in New York a

malicious prosecution claim requires a plaintiff to demonstrate, inter alia, “the termination of the

proceeding in favor of the accused”). Rather, the prosecution against Russell was terminated

when the state court dismissed the charges without prejudice based on facial insufficiency. Such

a dismissal does not constitute a favorable termination. See Breen v. Garrison, 169 F.3d 152,

                                                 3
153 (2d Cir. 1999) (holding that, in New York, dismissal for facial insufficiency is “not a

decision on the merits, an essential element of a cause of action for malicious prosecution”); see

also MacFawn v. Kresler, 88 N.Y.2d 859, 860 (1996) (holding that a dismissal of the

information without prejudice for facial insufficiency may not serve as the basis for a malicious

prosecution claim).

       Russell argues that although dismissal for facial insufficiency is not usually a favorable

termination, the dismissal became a final favorable termination when the prosecution

“effectively abandoned” the charges against him by failing to re-file before the expiration of

New York’s speedy trial clock. The district court accurately observed, however, that Russell

raised this argument for the first time in his motion for reconsideration. We “[g]enerally [ ] will

not consider an argument on appeal that was raised for the first time below in a motion for

reconsideration.” Analytical Surveys, Inc. v. Tonga Partners, L.P., 684 F.3d 36, 53 (2d Cir.

2012), as amended (July 13, 2012) (internal quotation marks omitted). Nonetheless, we agree

with the district court that Russell’s argument fails.

       Russell relies on Smith-Hunter v. Harvey, in which the New York Court of Appeals held

that a dismissal on speedy trial grounds is a final favorable termination because “there can be no

further prosecution of the offense.” 95 N.Y.2d at 196; see Rogers v. City of Amsterdam, 303

F.3d 155, 160 (2d Cir. 2002) (observing that “under New York law, a dismissal pursuant to New

York Criminal Procedure Law § 30.30—New York’s speedy trial statute—constitutes a

favorable termination”).     The charges against Russell, however, were dismissed for facial

insufficiency, not on speedy trial grounds, and Smith-Hunter did not alter the Court of Appeals’

prior holding in MacFawn that a dismissal without prejudice for facial insufficiency is not a final

favorable termination. See Smith-Hunter, 95 N.Y.2d at 198 (observing that in MacFawn, unlike

                                                  4
Smith-Hunter, “there was no indication that the prosecutor abandoned charges against the

accused”). Although the court in Smith-Hunter explained that “[a] dismissal without prejudice

qualifies as a final, favorable termination if the dismissal represents the formal abandonment of

the proceedings by the public prosecutor,” id. (internal quotation marks omitted), there is no

indication here that the prosecution formally abandoned the charges against Russell before or

after the dismissal. See, e.g., McGee v. Doe, 568 F. App’x 32, 40 (2d Cir. 2014) (unpublished)

(holding that there was no final, favorable termination when “there was no indication that the

dismissal of the action against [the plaintiff,] and the failure by the prosecution to re-file the

claim, constituted a formal abandonment of the charges”). We thus affirm the dismissal of

Russell’s malicious prosecution claims.1

    II.      Grant of Summary Judgment in Favor of the Harrison Defendants

          “We review de novo an order granting summary judgment and ‘resolv[e] all ambiguities

and draw[ ] all permissible factual inferences in favor of the party against whom summary

judgment is sought.’” Doe ex rel. Doe v. Whelan, 732 F.3d 151, 155 (2d Cir. 2013) (quoting

Burg v. Gosselin, 591 F.3d 95, 97 (2d Cir. 2010)). “We affirm when ‘there is no genuine dispute




1
    We recognize that the New York Court of Appeals has never squarely addressed the question of
whether a prosecutor’s failure to re-file charges becomes sufficiently “final” to constitute a favorable
termination once the applicable speedy trial time has elapsed. While the Court of Appeals’ decision in
MacFawn holds that a dismissal of a criminal complaint without prejudice for facial insufficiency does
not constitute a favorable termination, it does not address the speedy trial question. 88 N.Y.2d at 860.
Our summary order in McGee is also silent on this point. 568 F. App’x at 39. In some jurisdictions, the
failure to re-file charges within the statutory speedy trial period does constitute a favorable termination.
See Ferguson v. City of Chicago, 213 Ill. 2d 94, 104 (2004) (holding that the plaintiff’s malicious
prosecution claim accrued upon “the expiration of the statutory speedy-trial period,” where charges were
dismissed with leave to reinstate and were never re-filed); see also Scott v. Bender, 893 F. Supp. 2d 963,
976 (N.D. Ill. 2012). In the absence of more specific guidance from the New York courts, however, we
think that the district court’s holding hews most closely to existing law.


                                                     5
as to any material fact and the movant is entitled to judgment as a matter of law.’” Id. (quoting

Fed. R. Civ. P. 56(a)).

       “To establish a claim for false arrest under 42 U.S.C. § 1983, a plaintiff must show that

the defendant intentionally confined him without his consent and without justification.”

Escalera v. Lunn, 361 F.3d 737, 743 (2d Cir. 2004) (internal quotation marks omitted).           “A

section 1983 claim for false arrest is substantially the same as a claim for false arrest under New

York law.” Jenkins v. City of N.Y., 478 F.3d 76, 84 (2d Cir. 2007). “The existence of probable

cause to arrest constitutes justification and is a complete defense to an action for false arrest,

whether that action is brought under state law or under § 1983.” Id. (internal quotation marks

omitted). “[P]robable cause to arrest exists when the officers have knowledge or reasonably

trustworthy information of facts and circumstances that are sufficient to warrant a person of

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

crime.” Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996). Even without probable cause to

arrest, “an arresting officer will still be entitled to qualified immunity from a suit for damages if

he can establish that there was ‘arguable probable cause’ to arrest.” Escalera, 361 F.3d at 743.

“Arguable probable cause exists ‘if either (a) it was objectively reasonable for the officer to

believe that probable cause existed, or (b) officers of reasonable competence could disagree on

whether the probable cause test was met.’” Id. (quoting Golino v. City of New Haven, 950 F.2d

864, 870 (2d Cir. 1991)); see also Caldarola v. Calabrese, 298 F.3d 156, 162 (2d Cir. 2002)

(stating that “in situations where an officer may have reasonably but mistakenly concluded that

probable cause existed, the officer is nonetheless entitled to qualified immunity.”) (citations

omitted).   The test for qualified immunity is “more favorable to the officers than the one for

probable cause.” Escalera, 361 F.3d at 743.

                                                 6
       We agree with the district court that the Harrison Defendants are entitled to qualified

immunity because the officers had arguable probable cause to arrest Russell for criminal

trespass. Under New York law, a “person is guilty of trespass when he knowingly enters or

remains unlawfully in or upon premises.” N.Y. Penal Law § 140.05. “A person who, regardless

of his intent, enters or remains in or upon premises which are at the time open to the public does

so with license and privilege unless he defies a lawful order not to enter or remain, personally

communicated to him by the owner of such premises or other authorized person.”                 Id.

§ 140.00(5). Days before arresting Russell, Officer DiLauria was informed by a Journal News

employee responsible for site access and security that Russell had recently been observed on

Journal News property and Russell was “causing alarm” to Journal News staff. The Journal

News employee showed Officer DiLauria a copy of a letter the Journal News had sent to

Russell’s attorney stating that Russell was not allowed on Journal News property. The employee

confirmed that the letter had been delivered that morning. On the day of Russell’s arrest, the

Harrison Police Department received a call from a Journal News employee reporting that Russell

was currently trespassing on Journal News property, that Russell had done so in the past, and that

he had been told to stay off Journal News property. When Officer DiLauria arrived at the scene,

he observed Russell seated on a bench on what the officer believed to be Journal News property.

Based on these objective facts and circumstances, this is not a case in which probable cause to

arrest “could easily be found to have been based entirely on baseless or unreasonable conjectures

and assumptions.” Mitchell v. City of N.Y., No. 14-0767-cv, 2016 WL 6310801, at *11 (2d Cir.

Oct. 28, 2016). Officer DiLauria (and Officer Duffelmeyer as the assisting officer) had, at the

very least, arguable probable cause to arrest Russell for criminal trespass. See Escalera, 361




                                                7
F.3d at 743; see also Ornelas v. United States, 517 U.S. 690, 700 (1996) (stating officers “may

draw inferences based on [their] own experience[s] in deciding whether probable cause exists”).

       Russell told the arresting officers that he worked nearby and was permitted to be on the

premises, yet once the officers had a reasonable basis for believing that Russell was trespassing,

they were “not required to explore and eliminate every theoretically plausible claim of innocence

before making an arrest.” Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 128 (2d Cir. 1997); see

also Krause v. Bennett, 887 F.2d 362, 372 (2d Cir. 1989), as amended (Nov. 1, 1989) (observing

that the factfinder determines whether a defendant’s story holds up, not the arresting officer).

Under the circumstances presented, the officers had arguable probable cause to arrest Russell

“notwithstanding [his] protestations of innocence.” Ricciuti, 124 F.3d at 128.

       We have considered all of Russell’s remaining arguments and conclude that they are

without merit. We AFFIRM the judgment of the district court.

                                                    FOR THE COURT:
                                                    Catherine O’Hagan Wolfe, Clerk




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