13-1715-cv
Thomas 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
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 15th day of April, two thousand fourteen.

PRESENT: REENA RAGGI,
                 GERARD E. LYNCH,
                                 Circuit Judges,
                 COLLEEN McMAHON,
                                 District Judge.*
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MARIO THOMAS,
                                 Plaintiff-Appellant,

                             v.                                          No. 13-1715-cv

THE CITY OF NEW YORK, JESUS RODRIGUEZ,
Individually; DET., SHIELD NO. 4220, in his official
capacity, JOHN DOE, P.O.’S # 1–10, individually, (the
name John Doe being fictitious, as the true names are
presently unknown) and in their official capacity (the name
John Doe being fictitious, as the true names are presently
unknown),
                                 Defendants-Appellees.
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*
 The Honorable Colleen McMahon, of the United States District Court for the Southern
District of New York, sitting by designation.
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APPEARING FOR APPELLANT:                  JOSHUA P. FITCH, Cohen & Fitch, LLP, New
                                          York, New York.

APPEARING FOR APPELLEES:                  DONA B. MORRIS (Pamela Seider Dolgow,
                                          Elizabeth Norris Krasnow, on the brief), of
                                          Counsel, for Zachary 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 Southern District

of New York (Loretta A. Preska, Chief Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment entered on April 2, 2013, is AFFIRMED.

       Mario Thomas appeals from an award of summary judgment dismissing his claims

of false arrest and malicious prosecution, brought pursuant to 42 U.S.C. § 1983, against the

City of New York and arresting Detective Jesus Rodriguez. Thomas contends that the

district court erred in finding that defendants had probable cause to arrest and prosecute

him for the August 14, 2009 shooting of Jason Price. We review an award of summary

judgment de novo, resolving all ambiguities and drawing all inferences in favor of the

nonmovant, and we will affirm only if the record reveals no genuine dispute of material

fact. See Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48

(1986); Nagle v. Marron, 663 F.3d 100, 104–05 (2d Cir. 2011). 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.




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       Upon an independent review of the record, we agree with the district court that there

was no genuine issue of material fact with regard to the existence of probable cause for

Thomas’s arrest. “[P]robable cause to arrest exists when police officers have knowledge

or reasonably trustworthy information of facts and circumstances that are sufficient to

warrant a person of reasonable caution in the belief that the person to be arrested has

committed or is committing a crime.” Walczyk v. Rio, 496 F.3d 139, 156 (2d Cir. 2007)

(internal quotation marks omitted). This standard is a “fluid” one, which does not demand

“hard certainties” but only facts sufficient to establish the sort of “fair probability” on

which “reasonable and prudent men, not legal technicians, act.” Illinois v. Gates, 462

U.S. 213, 231–32, 238 (1983); see Florida v. Harris, 133 S. Ct. 1050, 1055 (2013)

(observing that probable cause is “practical,” “common-sensical,” “all-things-considered”

standard). Contrary to Thomas’s assertion, the basis for his arrest was not solely his

proximity to the shooting. Rather, the facts available to Rodriguez at the time of the arrest

included (1) evidence that Price was shot at close range; (2) Price’s photo array

identification of Thomas as the individual who walked by him on an otherwise empty street

moments before he was shot; and (3) Price’s statement that, after he was shot, he turned

and saw Thomas standing on the sidewalk in the direction of the continued gunfire. See

Panetta v. Crowley, 460 F.3d 388, 395 (2d Cir. 2006) (“[I]t is well-established that a law

enforcement official has probable cause to arrest if he received his information from some

person, normally the putative victim or eyewitness.” (internal quotation marks omitted)).




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       That the wounded Price did not see whether Thomas was holding a gun does not

raise a material issue of fact respecting probable cause because “probable cause does not

demand that an officer’s good-faith belief that a suspect has committed or is committing a

crime be ‘correct or more likely true than false.’” Zalaski v. City of Hartford, 723 F.3d

382, 390 (2d Cir. 2013) (quoting Texas v. Brown, 460 U.S. 730, 742 (1983)). Further,

although Thomas challenges Rodriguez’s decision not to engage in further investigation,

Rodriguez was “not required to explore and eliminate every theoretically plausible claim

of innocence before making an arrest.” Caldarola v. Calabrese, 298 F.3d 156, 167–68 (2d

Cir. 2002); see Curley v. Village of Suffern, 268 F.3d 65, 70 (2d Cir. 2001) (“Although a

better procedure may have been for the officers to investigate plaintiff’s version of events

more completely, the arresting officer does not have to prove plaintiff’s version wrong

before arresting him.”). Thus, even viewing the record in the light most favorable to

Thomas, we conclude that the district court properly awarded summary judgment in favor

of defendants on Thomas’s § 1983 false arrest claim. See Jenkins v. City of New York,

478 F.3d 76, 84, 88 (2d Cir. 2007) (recognizing probable cause as complete defense to

claims for false arrest and imprisonment).

       Thomas’s malicious prosecution claim fares no better. While the probable cause

inquiries for false arrest and malicious prosecution are distinct, where, as here, probable

cause to arrest existed and the plaintiff concedes that defendants did not learn of any

intervening facts between arrest and initiation of prosecution, claims of malicious

prosecution cannot survive. See Manganiello v. City of New York, 612 F.3d 149, 161–62

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(2d Cir. 2010) (recognizing probable cause as a complete defense to a claim of malicious

prosecution); see also Lowth v. Town of Cheektowaga, 82 F.3d 563, 571 (2d Cir. 1996)

(“In order for probable cause to dissipate [between arrest and prosecution], the groundless

nature of the charges must be made apparent by the discovery of some intervening fact.”).

      Finally, because Thomas has not alleged a valid underlying constitutional

deprivation, his claim against New York City pursuant to Monell v. Department of Social

Services, 436 U.S. 658 (1978), must also fail. See City of Los Angeles v. Heller, 475 U.S.

796, 799 (1986).

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

without merit. Accordingly, we AFFIRM the judgment of the district court.

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




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