15-3948-cv
Burton v. Undercover Officer, et al.


                                  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 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 7th day of December, two thousand sixteen.

PRESENT: GUIDO CALABRESI,
           REENA RAGGI,
           GERARD E. LYNCH,
                 Circuit Judges.
____________________________________________
EWART BURTON,

                                          Plaintiff-Appellant,
                           v.                                                No. 15-3948-cv

UNDERCOVER OFFICER, #155 individually,
POLICE OFFICER BILLY CHOI,

                                        Defendants-Appellees,

NEW YORK CITY POLICE DEPARTMENT, JOHN
DOES 1 THROUGH 5, individually,

Defendants.
____________________________________________

FOR APPELLANT:                                  Ewart Burton, pro se, Brooklyn, New York.

FOR APPELLEES:                                  Deborah A. Brenner, Susan Paulson, Assistant
                                                Corporation Counsels, for Zachary W. Carter,
                                                Corporation Counsel of the City of New York,
                                                New York, New York.
       Appeal from a judgment of the United States District Court for the Eastern District

of New York (William F. Kuntz, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court is AFFIRMED in part and

VACATED and REMANDED in part.

       Appellant Ewart Burton, proceeding pro se, appeals the dismissal of his claims of

false arrest, malicious prosecution, and abuse of process under 42 U.S.C. § 1983. We

assume the parties’ familiarity with the underlying facts, the procedural history of the case,

and the issues on appeal, which we reference only as necessary to explain our decision to

affirm in part and to vacate and remand in part.

       We review de novo the dismissal of a complaint, accepting all alleged facts as true

and drawing all reasonable inferences in plaintiff’s favor. See Barrows v. Burwell, 777

F.3d 106, 111 (2d Cir. 2015). Nevertheless, “bald assertions and conclusions of law will

not suffice.” Spool v. World Child Int’l Adoption Agency, 520 F.3d 178, 183 (2d Cir.

2008) (internal quotation marks omitted); see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

Rather, the complaint must plead “enough facts to state a claim to relief that is plausible on

its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

       The district court properly dismissed Burton’s claims of false arrest based on the

doctrine of collateral estoppel. “Collateral estoppel, or issue preclusion, prevents parties

or their privies from relitigating in a subsequent action an issue of fact or law that was fully

and fairly litigated in a prior proceeding.” Marvel Characters, Inc. v. Simon, 310 F.3d

280, 288 (2d Cir. 2002).       It may be applied non-mutually; third-parties may raise


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collateral estoppel defensively against a party who had fully and fairly litigated an issue to

prevent that party from raising the same issue in a subsequent lawsuit. See ACLI Gov’t

Sec., Inc. v. Rhoades, 963 F.2d 530, 533 (2d Cir. 1992) (citing Parklane Hosiery Co., Inc.

v. Shore, 439 U.S 322, 326–31 (1979) (noting that “doctrine of mutuality, at least for

defensive use of collateral estoppel, no longer applies”)). For the doctrine to apply, a

party must show that “(1) the identical issue was raised in a previous proceeding; (2) the

issue was actually litigated and decided in the previous proceeding; (3) the party had a full

and fair opportunity to litigate the issue; and (4) the resolution of the issue was necessary to

support a valid and final judgment on the merits.” Marvel Characters, Inc. v. Simon, 310

F.3d at 288–89 (internal quotation marks and citation omitted).

           In a prior lawsuit, Burton litigated whether there was probable cause for his March

2011 arrest. The district court ruled that there was probable cause for two of the five

charges. See Sherwyn Toppin Mktg. Consultants, Inc. v. City of New York, No. 08 CV

1340 ERK VVP, 2013 WL 685382, at *8 (E.D.N.Y. Feb. 25, 2013). Therefore, collateral

estoppel bars Burton’s new false arrest claim. See Boyd v. City of New York, 336 F.3d 72,

75 (2d Cir. 2003) (“If there was probable cause for the arrest, then a false arrest claim will

fail.”).

           Burton’s malicious prosecution claim, however, cannot be resolved based on

collateral estoppel. While probable cause is a complete defense to a claim of malicious

prosecution, such probable cause must be shown as to each criminal charge underlying the

malicious prosecution claim. See Savino v. City of New York, 331 F.3d 63, 72 (2d Cir.

2003) (holding probable cause to be complete defense to malicious prosecution); Posr v.


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Doherty, 944 F.2d 91, 100 (2d Cir. 1991) (requiring separate probable cause analysis for

each prosecution charge); see also Lowth v. Town of Cheektowaga, 82 F.3d 563, 571 (2d

Cir. 1996) (separately analyzing probable cause for three charges). In the prior case, the

district court determined probable cause for only two of the five charges for which Burton

was prosecuted. That partial probable cause determination thus does not defeat Burton’s

malicious prosecution claim in its entirety.

       Burton’s malicious prosecution and abuse of process claims—the latter not

addressed by the court—nevertheless fail because they are not supported by the factual

allegations necessary to state a plausible claim. See Ashcroft v. Iqbal, 556 U.S. at 678;

Morales v. City of New York, 752 F.3d 234, 238 (2d Cir. 2014) (concluding that plaintiff

failed to state abuse of process claim without allegation that defendants acted with ulterior

motive or purpose in pursuing arrest and failed to state malicious prosecution claim

without allegation that defendants were motivated by actual malice); see also Posr v. Court

Officer Shield No. 207, 180 F.3d 409, 417 (2d Cir. 1999) (affirming dismissal of pro se

litigant’s malicious prosecution claims). Still, where, as here, a plaintiff proceeds pro se,

the district court should not dismiss on this ground without first considering whether “a

liberal reading of the complaint gives any indication that a valid [malicious prosecution or

abuse of process] claim might be stated” if Burton were granted leave to amend. Cuoco v.

Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (internal quotation marks omitted).

Accordingly, we remand for that purpose. Burton may wish to request that the district

court appoint counsel.

       We have considered all of Burton’s remaining arguments and find them to be


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without merit. Accordingly, we AFFIRM the judgment of dismissal as to the false arrest

claim, but VACATE dismissal of the malicious prosecution and abuse of process claims.

We REMAND this case for further proceedings consistent with this order.

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




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