     10-3964-cv
     Golodner v. City of New London


                                 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.

 1           At a stated term of the United States Court of Appeals for the Second Circuit, held at the
 2   Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on
 3   the 27th day of October, two thousand eleven.
 4
 5   PRESENT:
 6
 7                    JOHN M. WALKER, JR.,
 8                    CHESTER J. STRAUB,
 9                    DEBRA ANN LIVINGSTON,
10                                    Circuit Judges.
11
12
13
14   DANIEL GOLODNER,
15             Plaintiff-Appellant,
16
17           -v.-                                                                No. 10-3964-cv
18
19   CITY OF NEW LONDON,
20   TODD BERGESON,
21   GENARO VELEZ,
22   PATRICIA TIDD,
23   DEANNA NOTT,
24   MARGARET ACKLEY,
25   OFFICER GARNETT,
26              Defendants-Appellees.1
27


             1
              Defendant Carter has died since the filing of this action, and his estate has not been
     substituted as a party-defendant. Accordingly, the claims against Carter are hereby dismissed.
     Fed. R. Civ. Pro. 25(a)(1). Additionally, Defendant Garnett’s name is presently misspelled
     “Garnet” on the caption for this case. The Clerk of the Court is directed to amend the caption
     accordingly to conform with the caption as shown above.
 1                                   JOHN R. WILLIAMS, Law Office of John R. Williams, New
 2                                   Haven, Connecticut, for Plaintiff-Appellant.
 3
 4                                   JAMES N. TALLBERG, Karsten, Dorman & Tallberg, LLC, West
 5                                   Hartford, Connecticut, for Defendants-Appellees.
 6
 7
 8             Appeal from the United States District Court for the District of Connecticut (Eginton,

 9   Judge).

10             UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND DECREED

11   that the judgment entered on September 3, 2010 is AFFIRMED.

12             Plaintiff Daniel Golodner (“Golodner”) appeals from the grant of summary judgment

13   pursuant to Fed. R. Civ. P. 56. Golodner contends principally that the District Court erred in its

14   ruling that he failed to raise a genuine issue of material fact as to his 42 U.S.C. § 1983 claims against

15   Defendants Todd Bergeson, Genaro Velez, Patricia Tidd, Deanna Nott, Margaret Ackley, and

16   Officer Garnett (the “Individual Defendants”), and that the grant of summary judgment to all the

17   Individual Defendants precluded liability of the City of New London. We presume the parties’

18   familiarity with the underlying facts, the procedural history, and the issues on appeal and revisit

19   those topics below only as necessary to facilitate this discussion.

20             We review a district court’s grant of summary judgment de novo, with “[a]ll evidence

21   submitted on the motion . . . construed in the manner most favorable to the nonmoving party.”

22   Horvath v. Westport Library Ass’n, 362 F.3d 147, 151 (2d Cir. 2004). “Summary judgment is

23   appropriate only if the moving party shows that there are no genuine issues of material fact and that

24   the moving party is entitled to judgment as a matter of law.” Miller v. Wolpoff & Abramson, L.L.P.,

25   321 F.3d 292, 300 (2d Cir. 2003). The moving party is entitled to summary judgment where “the

26   plaintiff has failed to come forth with evidence sufficient to permit a reasonable juror to return a


                                                        2
 1   verdict in his or her favor on” an essential element of a claim on which the plaintiff bears the burden

 2   of proof. In re Omnicom Grp., Inc. Sec. Litig., 597 F.3d 501, 509 (2d Cir. 2010) (quoting Burke v.

 3   Jacoby, 981 F.2d 1372, 1379 (2d Cir. 1992)). We may affirm on any ground supported by the

 4   record. See Beal v. Stern, 184 F.3d 117, 122 (2d Cir. 1999).

 5          Golodner argues on appeal that he has created a genuine issue of material fact as to whether

 6   Defendant Garnett, along with Officer Carter, omitted material evidence from the May 25, 2006,

 7   arrest warrant application, thereby violating his Fourth Amendment rights. We disagree. In his

 8   Opposition to the Motion for Summary Judgment, Golodner argued that probable cause was absent

 9   because Garnett and Carter failed to mention in the warrant application that “a witness had attempted

10   to contact Officer Carter or that [Officer Carter or] Garnett had neglected to make any attempt to

11   establish contact with this witness.” The District Court correctly concluded that failure to include

12   this information is insufficient to negate probable cause. “[A]n officer’s failure to investigate an

13   arrestee’s protestations of innocence generally does not vitiate probable cause.” Panetta v. Crowley,

14   460 F.3d 388, 395-96 (2d Cir. 2006). Golodner now bases his argument on various other alleged

15   omissions not argued below. “The law in this Circuit is clear,” however, “that where a party has

16   shifted his position on appeal and advances arguments available but not pressed below, . . . waiver

17   will bar raising the issue on appeal.” Wal-Mart Stores, Inc. v. Visa U.S.A., Inc., 396 F.3d 96, 124

18   n.29 (2d Cir. 2005) (alteration in original) (internal quotation marks omitted).

19          Golodner next contends that the District Court erred by failing to address his First

20   Amendment retaliation claim, construing that claim instead to be a complaint regarding the City of

21   New London’s failure properly to investigate his complaints regarding the conduct of the New

22   London Police Department. We disagree. Golodner’s Opposition to the Motion for Summary

23   Judgment discussed his First Amendment claims under the title, “The Plaintiff Was Denied His

                                                       3
 1   Right to Petition for Redress of Grievances,” and the discussion itself adheres to this theory of the

 2   case. Having elected to argue his First Amendment claim below on a redress of grievances theory,

 3   Golodner may not now shift to an alternative theory not presented to the District Court. See Wal-

 4   Mart, 396 F.3d at 124. Even if Golodner did not waive his retaliation claim, we affirm the District

 5   Court’s dismissal on the alternate ground that the existence of probable cause is a complete defense

 6   to a claim of retaliatory arrest. See Mozzochi v. Borden, 959 F.2d 1174, 1179 (2d Cir. 1992). The

 7   District Court found that all of Golodner’s arrests were based on probable cause; therefore, his First

 8   Amendment claim fails on a retaliation theory as well.

 9          Golodner also argues that the District Court erred in determining that no reasonable jury

10   could conclude that he was treated differently from his neighbors without a rational basis. He

11   further contends that the District Court’s reliance on Engquist v. Oregon Department of Agriculture,

12   553 U.S. 591 (2008), has been undercut by our decision in Analytical Diagnostic Labs, Inc. v. Kusel,

13   626 F.3d 135 (2010). Without addressing whether our holding in Kusel reaches the facts at bar, we

14   disagree that the District Court erred in concluding that the police had a valid basis for distinguish-

15   ing between Golodner and his neighbors.

16          A plaintiff suing on equal protection grounds under a “class of one” theory must show that

17   a rational person could not view his circumstances as different from a comparator’s “to a degree that

18   would justify the differential treatment on the basis of a legitimate government policy,” and that “the

19   similarity in circumstances and difference in treatment are sufficient to exclude the possibility that

20   the defendants acted on the basis of a mistake.” Clubside, Inc. v. Valentin, 468 F.3d 144, 159 (2d

21   Cir. 2006). Here, Golodner only alleges a single instance in which he was treated differently from

22   an arguably comparably situated neighbor: namely, Officer Nott’s issuance of a summons for breach

23   of peace to him when his neighbor Ricky Cordero, with whom Golodner had been involved in an

                                                       4
 1   altercation, received only a traffic citation. However, Officer Nott’s report indicates that she spoke

 2   with a witness who confirmed Cordero’s version of events, and Golodner has not controverted this

 3   evidence. A witness’s corroboration of Cordero’s version of events, but not Golodner’s, would

 4   permit a rational person to distinguish between Golodner and Cordero.

 5           Finally, Golodner suggests that the District Court’s decision on his municipal liability claim

 6   was “unduly simplistic,” Appellant’s Br. at 26, based on our decision in Barrett v. Orange County

 7   Human Rights Commission, 194 F.3d 341 (2d Cir. 1999). We acknowledge, as did the Barrett

 8   Court, that “municipal liability for constitutional injuries may be found to exist even in the absence

 9   of individual liability, at least so long as the injuries complained of are not solely attributable to the

10   actions of the named individual defendants.” Id. at 350. However, we have determined here that

11   Golodner failed to create a genuine issue of material fact with regard to any of his claims, whether

12   they allege conduct by named individual defendants or not. Accordingly, the District Court did not

13   err in granting summary judgment to the City of New London.

14           To the extent Golodner raises other arguments with respect to the judgment below, we have

15   considered them and reject them as meritless.

16           Accordingly, for the foregoing reasons, the judgment of the district court is AFFIRMED.


17                                                            FOR THE COURT:
18                                                            Catherine O’Hagan Wolfe, Clerk
19




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