14-3853-cv                                                                               BDP Draft 5/23/16
Hoyos 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 2nd
day of June, two thousand sixteen.

PRESENT:
            GUIDO CALABRESI,
            BARRINGTON D. PARKER,
            SUSAN L. CARNEY,
                        Circuit Judges.
__________________________________________

ALBERTO HOYOS,

                    Plaintiff-Appellant,

                    v.                                                        No. 14-3853-cv

CITY OF NEW YORK, POLICE OFFICER SCOTT HARRISON, SHIELD NO. 12787, Individually
and in his official capacity, POLICE OFFICER AVI ARVON, SHIELD NO. 9506, Individually and
in his official capacity,

            Defendants-Appellees.*
__________________________________________

APPEARING FOR APPELLANT:                                 JON L. NORINSBERG, Law Office of Jon L.
                                                         Norinsberg, New York, N.Y.

APPEARING FOR APPELLEES:                                 INGRID R. GUSTAFSON, Assistant Corporation
                                                         Counsel (Pamela Seider Dolgow, Assistant

*
    The Clerk of Court is directed to amend the caption as set forth above.
                                              Corporation Counsel, on the brief), for Zachary W.
                                              Carter, Corporation Counsel of the City of New
                                              York, New York, N.Y.


        Appeal from an order of the United States District Court for the Eastern District of New

York (Nina Gershon, Judge). UPON DUE CONSIDERATION IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the September 19, 2014 order of the district court be

AFFIRMED.

        The order from which Hoyos is appealing denied his motion for reconsideration of the

district court’s grant of summary judgment to Defendants on his § 1983 malicious prosecution

and fabrication of evidence claims. Though his notice of appeal purports to challenge “all

aspects of the Court’s rulings on Defendants’ Motion for Summary Judgment,” J.A. 147, he

concedes in his reply brief that “this Court can only review the District Court’s denial of

plaintiff’s motion for reconsideration,” Appellant Reply Br. 2. Hoyos’ concession is correct

because he did not file his motion for reconsideration in time to toll the deadline for appealing

the underlying judgment. Consequently, we consider only the denial of the motion for

reconsideration. We assume the parties’ familiarity with the relevant facts, the procedural

history, and the issues on appeal.

        “The major grounds justifying reconsideration are an intervening change of controlling

law, the availability of new evidence, or the need to correct a clear error or prevent manifest

injustice.” Virgin Atl. Airways, Ltd. v. Nat’l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992)

(internal quotation mark omitted). Neither the law nor the facts have changed since the district

court’s grant of summary judgment, and Hoyos has not identified any manifest injustice by the




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court. Therefore, he must point to a “clear error” on the part of the district court to prevail on

this appeal. His arguments fail to show a clear error.

        Regarding his malicious prosecution claim, the district court granted summary judgment

because it determined that “no rational jury could conclude that there was not probable cause to

believe that the prosecution could succeed,” Hoyos v. City of New York, 999 F. Supp. 2d 375,

390 (E.D.N.Y. 2013), and reasoned that “the existence of probable cause is a complete defense

to a claim of malicious prosecution in New York,” id. at 389 (quoting Savino v. City of New

York, 331 F.3d 63, 72 (2d Cir. 2003)).

        Hoyos contests the notion that probable cause is a complete defense to a malicious

prosecution claim when allegedly fabricated evidence is involved, citing our holdings in Ricciuti

v. N.Y.C. Transit Authority, 124 F.3d 123 (2d Cir. 1997), and Jocks v. Tavernier, 316 F.3d 128

(2d Cir. 2003). However, Jocks and Ricciuti determined only that there was probable cause to

arrest. See Jocks, 316 F.3d at 138 (“[I]n Ricciuti we specifically held that the police had

probable cause to arrest but nonetheless reversed the district court’s grant of summary judgment

on the malicious prosecution claim because there was proof that the officers had later

manufactured false evidence.” (emphasis added) (citing Ricciuti, 124 F.3d at 128, 130)).

Probable cause to arrest differs from probable cause to prosecute because the evidentiary

standard is higher for the latter than for the former. See Stansbury v. Wertman, 721 F.3d 84, 95

(2d Cir. 2013). Thus, the district court committed no error, much less clear error, in not making

an exception to the probable cause defense to a malicious prosecution claim.

        Regarding his fabrication of evidence claim, the district court observed that Hoyos’

deprivation of liberty had to be the result of the alleged fabrication. Hoyos, 999 F. Supp. 2d at

393. Having found probable cause for his prosecution, it reasoned that “where independent
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probable cause exists for the prosecution, plaintiff must show that the misconduct caused some

deprivation above and beyond the fact of the prosecution itself.” Id. at 394. It determined that

Hoyos’ deprivation of liberty “resulted generally from his prosecution, which was supported by

probable cause independent of defendants’ allegedly false statements.” Id.

        Hoyos argues that the court applied the wrong standard—probable cause instead of

proximate cause—and that the fabricated evidence resulted in a falsely inflated case that caused

a deprivation of liberty. Were it not for the allegedly fabricated evidence, he contends, the

prosecutors might have decided that their case was not strong enough to continue pursuing and

might have elected not to proceed to trial even though they may have been legally justified in

doing so by virtue of the other evidence.

        Hoyos is correct that the type of causation at issue in a fabrication of evidence claim is

proximate cause, rather than probable cause. Fabrication of evidence is the basis for “[a] § 1983

action, [which] like its state tort analogs, employs the principle of proximate causation.” Barnes

v. Anderson, 202 F.3d 150, 158 (2d Cir. 1999) (quoting Townes v. City of New York, 176 F.3d

138, 146 (2d Cir. 1999)). Thus, the district court’s statement that independent probable cause

rules out the possibility that fabricated evidence proximately caused the deprivations stemming

from his prosecution is not, as a general matter, correct.

        In this case, however, we find no clear error in the district court’s conclusion that the

evidence supporting probable cause to prosecute Hoyos was sufficiently strong that any

allegedly fabricated evidence did not proximately cause the deprivations of liberty associated

with his prosecution. We express no view on the resolution of this issue had it come to us on

appeal from the grant of summary judgment. To begin with, the district court determined that


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there was “ample probable cause,” not just barely enough for probable cause for Hoyos’

prosecution. Hoyos, 999 F. Supp. 2d at 394 (emphasis added). It found the following items of

evidence in support: Hoyos’ cutting across several lanes of traffic, appearing to be groggy and to

have bloodshot eyes behind the wheel in his vehicle, and refusing to take a breathalyzer exam

after being warned of the possible consequences of his refusal. Hoyos, 999 F. Supp. 2d at 387,

390. We cannot find clear error either in the district court’s classification of these items of

evidence as not fabricated and as admissible, or in its evaluation of this evidence according to

the standard of probable cause. Given this evidence, we cannot say, on clear error review, that a

reasonable jury could find that prosecutors would not have proceeded against Hoyos as they did,

absent the allegedly fabricated evidence.

        We have reviewed Hoyos’ remaining arguments and conclude that they are without

merit. Accordingly, we AFFIRM the district court’s order denying his motion for

reconsideration of its grant of summary judgment to Defendants on his malicious prosecution

and fabrication of evidence claims.



                                                      FOR THE COURT:

                                                      Catherine O’Hagan Wolfe, Clerk




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