     10-1069
     Pacicca v. Stead


                          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
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 14th day of November, two thousand eleven.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                ROBERT D. SACK,
 9                REENA RAGGI,
10                              Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       THOMAS PACICCA,
14                Plaintiff-Apellant,
15
16                      -v.-                                             10-1069
17
18       JAMES STEAD, BRIAN ROBBINS, POLICE OFFICER, MICHAEL HANNON,
19       POLICE OFFICER, LAVELLE LARRIER, POLICE OFFICER, ANDREW
20       BLACK, POLICE OFFICER, PATRICK OGERRI, POLICE OFFICER, CITY
21       OF WHITE PLAINS,
22                Defendants-Appellees,
23
24       FRANK VESSA, POLICE OFFICER,
25                Defendant.
26
27       - - - - - - - - - - - - - - - - - - - -X

                                                  1
 1
 2   FOR APPELLANT:             Eugene B. Nathanson, New York,
 3                              New York.
 4
 5   FOR APPELLEES:             Joseph J. Gulino, Nicoletti
 6                              Gonson Spinner & Owen, LLP, New
 7                              York, New York (Counsel for
 8                              James Stead).
 9
10                              Joseph A. Maria, White Plains,
11                              New York (Counsel for Brian
12                              Robbins, Michael Hannon, Lavelle
13                              Larrier, Frank Vessa, Andrew
14                              Black, Patrick Ogerri, and City
15                              of White Plains).
16
17        Appeal from a judgment of the United States District
18   Court for the Southern District of New York (Seibel, J.).
19
20        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
21   AND DECREED that the judgment of the district court be
22   AFFIRMED.
23
24        Thomas Pacicca appeals from a judgment entered
25   following a jury trial in the United States District Court
26   for the Southern District of New York. We assume the
27   parties’ familiarity with the underlying facts, the
28   procedural history, and the issues presented for review.
29
30        Pacicca alleged false arrest and malicious prosecution
31   under 42 U.S.C. § 1983 as well as state malicious
32   prosecution claims against White Plains police officers who
33   arrested him, the City of White Plains (invoking the
34   doctrine of respondeat superior), and the neighbor who had
35   lodged criminal complaints against him.
36
37   [1] Claims Against Police Officers. The White Plains police
38   officers were entitled to summary judgment based on
39   qualified immunity. An officer is entitled to qualified
40   immunity if arguable probable cause exists, meaning “either
41   (a) it was objectively reasonable for the officer to believe
42   that probable cause existed, or (b) officers of reasonable
43   competence could disagree on whether the probable cause test
44   was met.” Escalera v. Lunn, 361 F.3d 737, 743 (2d Cir.
45   2004) (quoting Golino v. City of New Haven, 950 F.2d 864,
46   870 (2d Cir. 1991)).
47
                                  2
 1        Pacicca’s July 30 and August 28, 2004 arrests concerned
 2   his damage to a margin of grass separating the property of
 3   his neighbor, James Stead, from the road. Stead called
 4   police reporting damage to his property. Pacicca argues
 5   that there could be no probable cause for acting on the
 6   complaints because the property was owned by the City of
 7   White Plains, not Stead; but that distinction does not
 8   negate arguable probable cause. As to the July 30 arrest, a
 9   reasonable officer could believe that a person repeatedly
10   moving rocks from city property gives rise to probable cause
11   to arrest and prosecute that person for criminal tampering.1
12   As to the August 28 arrest, a reasonable officer could
13   believe that when a person repeatedly drives his car over a
14   curb onto city property, there is probable cause to arrest
15   and prosecute for violating an order of protection issued
16   because the person had previously engaged in similar
17   conduct.
18
19        Pacicca was arrested for cursing at Stead on December
20   23, 2004. Pacicca admits that he cursed (his rant was
21   videotaped), but argues that he was not addressing Stead,
22   who (Pacicca contends) was inside his own house at the time.
23   A reasonable officer could nonetheless believe that there
24   was probable cause to arrest Pacicca for violating an order
25   of protection protecting Stead--particularly since their
26   houses were the only ones in the immediate vicinity.
27
28   [2] Claims Against Stead. The district court did not err in
29   granting summary judgment in Stead’s favor on all the § 1983
30   claims and on the state malicious prosecution claim arising
31   out of Pacicca’s August 28, 2004 arrest. To support a claim
32   against a private party on a § 1983 conspiracy theory, a
33   plaintiff must show “(1) an agreement between a state actor


         1
           “A person is guilty of criminal tampering in the
     third degree when, having no right to do so nor any
     reasonable ground to believe that he has such right, he
     tampers with property of another person with intent to cause
     substantial inconvenience to such person or to a third
     person.” N.Y. PENAL LAW § 145.14 (McKinney 2010). We need
     not analyze probable cause for the other two charges for
     which Pacicca was arrested on July 30 because probable cause
     for any crime is a defense to false arrest, Brown v. Kelly,
     609 F.3d 467, 484 (2d Cir. 2010), and because Pacicca’s
     malicious prosecution claims for the other charges proceeded
     to trial.
                                  3
 1   and a private party; (2) to act in concert to inflict an
 2   unconstitutional injury; and (3) an overt act done in
 3   furtherance of that goal causing damages.” Ciambriello v.
 4   County of Nassau, 292 F.3d 307, 324-25 (2d Cir. 2002).
 5   Pacicca presents no evidence that Stead entered a
 6   conspiracy with White Plains police. To defeat a motion for
 7   summary judgment, “[t]he non-moving party may not rely on
 8   conclusory allegations or unsubstantiated speculation.”
 9   Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998).
10
11        To prevail on a claim of malicious prosecution, a
12   plaintiff must prove “(1) the initiation of a proceeding,
13   (2) its termination favorably to plaintiff, (3) lack of
14   probable cause, and (4) malice.” Colon v. City of New York,
15   60 N.Y.2d 78, 82 (1983). “[E]ven if a civilian complainant
16   is ultimately incorrect in his belief as to whether a person
17   is committing a crime, he need only have had a reasonable
18   basis for this belief in order to have the probable cause
19   necessary to defeat a malicious prosecution or false arrest
20   claim.” TADCO Const. Corp. v. Dormitory Auth., 700 F. Supp.
21   2d 253, 275 (E.D.N.Y. 2010) (citing Williams v. Town of
22   Greenburgh, 535 F.3d 71, 78-79 (2d Cir. 2008)).
23
24        Given the order of protection prohibiting Pacicca from
25   harassing Stead, it was reasonable for Stead to believe that
26   the repeated encroachment of Pacicca’s car over the curb
27   constituted a crime. Even though Stead did not own the
28   property onto which Pacicca drove, he was responsible for
29   its maintenance, so was harmed by damage done.
30
31   [3] Jury Instructions. The jury was charged that “[t]he
32   exercise of independent judgment by the public prosecutor
33   and his active role in initiating the criminal prosecution
34   may break the chain of causation between the officer’s
35   actions and the criminal prosecution”--with the caveat that
36   “if the public prosecutor relies on information conveyed by
37   the officer that the officer knows is false and has no other
38   independent basis for prosecuting the case, the officer is
39   liable for causing the prosecution.” Pacicca argues that
40   the charge was erroneous. “[G]enerally in malicious
41   prosecution actions alleging that a police officer provided
42   false information to a prosecutor, what prosecutors do
43   subsequently has no effect whatsoever on the police
44   officer’s initial, potentially tortious behavior.” Cameron
45   v. City of New York, 598 F.3d 50, 63 (2d Cir. 2010); see
46   also Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 130 (2d
47   Cir. 1997) (“[A] jury could clearly find that [the police

                                  4
 1   officer] started the assault prosecution because no one
 2   disputes that he started the prosecution by filing the
 3   charges of second-degree assault.”). Here, however, the
 4   prosecutor testified that he consulted with Stead and
 5   independently decided to prosecute. The charge was sound.
 6
 7        Pacicca also challenges the instruction on the element
 8   of malice, arguing that absence of probable cause should
 9   suffice to support an inference of malice. “[M]alice does
10   not have to be actual spite or hatred, but means only ‘that
11   the defendant must have commenced the criminal proceeding
12   due to a wrong or improper motive, something other than a
13   desire to see the ends of justice served.’” Lowth v. Town
14   of Cheektowaga, 82 F.3d 563, 573 (2d Cir. 1996) (citation
15   omitted). “[P]robable cause to initiate a criminal
16   proceeding may be so totally lacking as to reasonably permit
17   an inference that the proceeding was maliciously instituted.
18   Hence, a jury may, but is not required to, infer the
19   existence of actual malice from the fact that there was no
20   probable cause to initiate the proceeding.” Martin v. City
21   of Albany, 42 N.Y.2d 13, 17 (1977).
22
23        The jury instructions closely tracked these precedents.
24   The jury was informed that malice is established if the
25   plaintiff proves by a preponderance of the evidence that the
26   defendant “commenced criminal proceedings for a wrong or
27   improper motive; that is, something other than a desire to
28   see the ends of justice served” and that it could find
29   malice if probable cause was “so lacking that it tends to
30   show the defendant did not believe that plaintiff was guilty
31   of a particular crime” or if the defendant “lacked any
32   reasonable grounds to believe that plaintiff was guilty.”
33
34        Finding no merit in Pacicca’s remaining arguments, we
35   hereby AFFIRM the judgment of the district court.
36
37
38                              FOR THE COURT:
39                              CATHERINE O’HAGAN WOLFE, CLERK
40




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