10-4955-cv
Selinger v. City of N.Y.

                               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 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 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
New York, on the 23rd day of December, two thousand eleven.

PRESENT: GUIDO CALABRESI,
         REENA RAGGI,
         SUSAN L. CARNEY,
                   Circuit Judges.
-------------------------------------------------------------------------------------
PAUL SELINGER, MARSHA SELINGER,
                   Plaintiffs-Appellants,
               v.                                                                       No. 10-4955-cv

THE CITY OF NEW YORK, DETECTIVE WILLIAM
GREENE, in his individual and official capacities,
                          Defendants-Appellees,
                   v.

ROBERT M. MORGENTHAU, in his individual and
official capacity as District Attorney, KATHRYN QUINN,
in her individual and official capacity as Assistant District
Attorney, JOHN/JANE DOES, Detectives and/or Police
Officers, 1–5, in their individual and official capacities,
LIEUTENANT ANGELO CARBONE,
                               Defendants.
-------------------------------------------------------------------------------------

APPEARING FOR APPELLANTS:                                  SCOTT A. KORENBAUM, Esq. (Frederick K.
                                                           Brewington, Esq., on the brief), New York, New
                                                           York.
APPEARING FOR APPELLEES:                   ANDREW S. WELLIN, Of Counsel (Larry A.
                                           Sonnenshein, Of Counsel, on the brief), for
                                           Michael A. Cardozo, Corporation Counsel of the
                                           City of New York, New York, New York.

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

of New York (Richard M. Berman, Judge).

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

DECREED that the judgment entered on November 8, 2010, is AFFIRMED.

       Plaintiffs Paul Selinger and Marsha Selinger appeal an award of summary judgment

in favor of defendant Detective William Greene on claims of malicious prosecution and

abuse of process brought pursuant to 42 U.S.C. § 1983 , and the dismissal of related state law

claims for lack of jurisdiction.1 We review an award of summary judgment de novo, see

Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 101 (2d Cir. 2010), “constru[ing] the

evidence in the light most favorable to the plaintiff, [and] drawing all reasonable inferences

and resolving all ambiguities in [his] favor,” Schiano v. Quality Payroll Sys., Inc., 445 F.3d

597, 603 (2d Cir. 2006) (internal quotation marks omitted). We assume familiarity with the

underlying facts and record of prior proceedings, which we reference only as necessary to

explain our decision to affirm.




       1
         Because Marsha Selinger’s claims are derivative of her husband’s, we hereafter refer
only to Paul Selinger’s claims in discussing plaintiffs’ appeal. Further, because plaintiffs do
not appeal the award of summary judgment in favor of defendant the City of New York, we
do not discuss that award further.

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1.     Malicious Prosecution

       Selinger contends that he adduced sufficient evidence to defeat summary judgment

on the question of whether Greene lacked probable cause to initiate Selinger’s prosecution

for insurance fraud. See Manganiello v. City of New York, 612 F.3d 149, 160–61 (2d Cir.

2010) (holding that § 1983 claim for malicious prosecution is assessed by reference to

elements of related state tort, which, under New York law, requires proof of absence of

probable cause). That claim fails for several reasons. First, because Selinger was prosecuted

on an indictment, Greene is entitled to a presumption of probable cause, which may be

rebutted only “by evidence that the indictment was procured by fraud, perjury, the

suppression of evidence or other police conduct undertaken in bad faith.” Id. at 162 (internal

quotation marks omitted).      Plaintiffs have failed to introduce evidence of any such

misconduct.

       Second, even without the benefit of a presumption, there is no genuine issue as to the

existence of probable cause to initiate the challenged prosecution. While probable cause

requires more than “mere suspicion” of wrongdoing, Mallory v. United States, 354 U.S. 449,

454 (1957), its focus is on “probabilities,” not “hard certainties,” Illinois v. Gates, 462 U.S.

213, 231 (1983) (internal quotation marks omitted). It does not equate to a prima facie or

preponderance showing. See id. at 235; Spinelli v. United States, 393 U.S. 410, 419 (1969).

Nor does it demand a showing that a good faith belief be “correct or more likely true than

false.” Texas v. Brown, 460 U.S. 730, 742 (1983). It requires only such facts as make

wrongdoing probable. See Walczyk v. Rio, 496 F.3d 139, 157 (2d Cir. 2007).

                                               3
       Such probability was established as a matter of law in this case from evidence

showing that, before referring Selinger to the district attorney’s office for prosecution,

Greene had adduced evidence that the health clinic with which Selinger was associated had

submitted fraudulent insurance claims on behalf of “Igor Gabjilov,” an undercover police

officer whom Selinger diagnosed with temporomandibular joint (“TMJ”) disorder. Those

claims sought reimbursements for medical treatments that Gabjilov purportedly received but

that, in fact, were never provided. On at least one of these fraudulent claim forms, Paul

Selinger’s stamped signature appeared on the “signature of provider” line.

       Plaintiffs assert that the record would permit a finding that Selinger legitimately

diagnosed the undercover officer as suffering from TMJ disorder. But the validity of

Selinger’s medical diagnosis is irrelevant. As plaintiffs recognize, “[t]he essence of the

insurance fraud scheme . . . was fraudulent billing,” i.e., insurance claims filed for medical

treatments that were never performed. Pl.’s Br. 44. On this point, Greene undoubtedly had

evidence of probable wrongdoing by Selinger: a fraudulent reimbursement claim bearing

Selinger’s stamped signature as the provider of services never performed. That document

constituted “reasonably trustworthy information as to . . . facts and circumstances that are

sufficient to warrant a person of reasonable caution in the belief than an offense has been . . .

committed by the person to be arrested.” Manganiello v. City of New York, 612 F.3d at 161

(internal quotation marks omitted).

       In urging otherwise, Selinger observes that Greene did not know whether Selinger

actually stamped the form or was otherwise involved in submitting the insurance bills. But

                                               4
Selinger adduced no evidence suggesting that Greene had reason to question Selinger’s

signature on the claims form. See id. (recognizing that “failure to make a further inquiry

when a reasonable person would have done so may be evidence of lack of probable cause”

(internal quotation marks omitted)). “[T]he fact that an innocent explanation may be

consistent with the facts alleged . . . does not negate probable cause, . . . and an officer’s

failure to investigate an arrestee’s protestations of innocence generally does not vitiate

probable cause.” Panetta v. Crowley, 460 F.3d 388, 395–96 (2d Cir. 2006) (internal

quotation marks omitted).

         Because Selinger has not submitted evidence raising a genuine issue of material fact

as to lack of probable cause, summary judgment was properly granted to Greene on this

claim.

2.       Abuse of Process

         Selinger’s § 1983 claim for abuse of process requires him to prove that Greene acted

with malice, i.e., “with intent to do harm without excuse [or] justification, and . . . in order

to obtain a collateral objective that is outside the legitimate ends of the process.” Savino v.

City of New York, 331 F.3d 63, 70 (2d Cir. 2003) (internal quotation marks omitted). On

this record, there is no proof that Greene acted with such intent. To the extent Selinger urges

an inference of malice from the lack of probable cause, see id. (noting that lack of probable

cause permits inference of malice), his claim fails for reasons discussed in the prior section

of this order.



                                               5
         Nor can plaintiffs sustain this claim on the grounds that Greene sought Selinger’s

arrest and indictment for the collateral purposes of extracting restitution payments and

attracting publicity. The record shows that the district attorney’s office, not Greene, was

responsible for demanding restitution in exchange for Selinger’s guilty plea, as well as for

the news release issued after Selinger and his co-defendants were indicted. Because those

actions cannot be ascribed to Greene, Selinger fails to establish a triable issue of malice.

Greene was therefore entitled to summary judgment on the abuse of process claim.

3.       State Law Claims

         Because Greene was entitled to summary judgment on Paul Selinger’s federal claims,

the district court was within its discretion to decline exercising supplemental jurisdiction over

plaintiffs’ remaining state law claims. See Doninger v. Niehoff, 642 F.3d 334, 357 (2d Cir.

2011).



4.       Conclusion

         We have considered plaintiffs’ remaining arguments and find them to be without

merit. For the foregoing reasons, the judgment of the district court is AFFIRMED.

                             FOR THE COURT:
                             CATHERINE O’HAGAN WOLFE, Clerk of Court




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