17-2432-cv
Walsh 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 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
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
3rd day of August, two thousand eighteen.

Present:
            BARRINGTON D. PARKER,
            DEBRA ANN LIVINGSTON,
            DENNY CHIN,
                  Circuit Judges.
_____________________________________

MARTIN WALSH,

                            Plaintiff-Appellee,

                 v.                                                     17-2432-cv

CITY OF NEW YORK, Sgt. Catherine Roach, and
Michael Clark,

                            Defendants-Appellants,

Commissioner William J. Bratton, Lieutenant
Jason Lunsford, Jhonny Milfort, New York
City Police Officer No. 935, John Doe, 1, Jane
Doe, 1,

                  Defendants.
_____________________________________

For Defendants-Appellants:                        EMMA GRUNBERG, of counsel (Richard Dearing &
                                                  Deborah A. Brenner, on the brief), for Zachary W.

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                                           Carter, Corporation Counsel of the City of New York,
                                           New York, NY.

For Plaintiff-Appellee:                    ROBERT A. SOLOWAY (David Stern & Lucas Anderson,
                                           on the brief), Rothman, Schneider, Soloway & Stern,
                                           LLP, New York, NY.


       Appeal from a January 20, 2017 judgment of the United States District Court for the

Southern District of New York (Hellerstein, J.).

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

DECREED that the judgment of the district court is AFFIRMED.

       The City of New York, Sgt. Catherine Roach (“Roach”), and Michael Clark (“Clark”)

appeal from a January 20, 2017 final judgment of the United States District Court for the Southern

District of New York, following a jury trial finding them liable for the false arrest and malicious

prosecution of Plaintiff-Appellee Martin Walsh (“Walsh”). After an altercation with retired New

York City Police Department officer David Vadala (“Vadala”), Walsh was arrested and charged

with two counts of assault in the third degree (in violation of N.Y.P.L. §§ 120.00(1) and (2)), and

one count of harassment in the second degree (in violation of N.Y.P.L. § 240.26(1)). The charges

were later dropped. Walsh then filed the instant lawsuit under 42 U.S.C. § 1983, alleging, inter

alia, that the Defendants-Appellants knowingly and maliciously arrested him and initiated his

prosecution without probable cause. On January 13, 2017, a jury found for Walsh on his false

arrest and malicious prosecution claims and awarded him $225,000 in compensatory damages and

$100,000 in punitive damages. On appeal, the Defendants-Appellants contend that the district

court erred in denying their renewed motion for judgment as a matter of law under Federal Rule

of Civil Procedure 50(b). We assume the parties’ familiarity with the underlying facts, the

procedural history of the case, and the issues on appeal.



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       A. Federal Rule of Appellate Procedure 4(a)(1)

       We first address Walsh’s argument that this appeal is barred under Federal Rule of

Appellate Procedure 4(a)(1). Under Rule 4(a)(1)(A), a notice of appeal “must be filed with the

district clerk within 30 days after entry of the judgment or order appealed from.” However, if a

party files a timely motion under Federal Rule of Civil Procedure 50(b), the 30-day window to file

a notice of appeal runs from the date that the district court disposes of the Rule 50(b) motion. Fed.

R. App. P. 4(a)(4)(A)(i). Walsh argues that the Defendants-Appellants’ Rule 50(b) motion was

untimely, and that the 30-day clock therefore began to run when the district court entered judgment

on January 20, 2017—instead of on July 7, 2017 when the district court disposed of the

Defendants-Appellants’ Rule 50(b) motion. We disagree.

       A Rule 50(b) motion is timely if it is made “[n]o later than 28 days after the entry of

judgment.” Fed. R. Civ. P. 50(b). On February 17, 2017—28 days after the district court entered

judgment—the Defendants-Appellants filed a “Notice of Motion,” which they described on the

district court’s docket as a Rule 50(b) motion (as well as a Rule 59 motion). Furthermore, on March

6, 2017, the district court so-ordered without comment a letter filed by the Defendants-Appellants

asking for a one-day extension to “file their briefs and supporting papers in support of their post-

trial motions that were timely filed on February 17, 2017.” Supp. App’x 3 (emphasis added). Thus,

the Defendants-Appellants clearly intended their February 17, 2017 “Notice of Motion” to qualify

as a Rule 50(b) motion, and the district court treated their “Notice of Motion” as such. The

Defendants-Appellants therefore filed a timely Rule 50(b) motion on February 17, 2017. See, e.g.,

Meriwether v. Coughlin, 879 F.2d 1037, 1040–42 (2d Cir. 1989) (concluding that the statement “I

would . . . like to at this time note that defendants wish to move for a judgment notwithstanding

the verdict” qualified as a Rule 50(b) motion because, inter alia, the district court understood the


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statement as a Rule 50(b) motion). The Defendants-Appellants filed their notice of appeal on

August 6, 2017, 30 days after the district court disposed of their Rule 50(b) motion. This appeal

therefore complies with Federal Rule of Appellate Procedure 4(a)(1).

       B. Rule 50(b) Motion

           1. Standard of Review

       “We review a district court’s denial of a motion for judgment as a matter of law de novo.”

Manganiello v. City of N.Y., 612 F.3d 149, 161 (2d Cir. 2010). “In doing so, we apply the same

well established standard as the district court: ‘Judgment as a matter of law may not properly be

granted under Rule 50 unless the evidence, viewed in the light most favorable to the opposing

party, is insufficient to permit a reasonable juror to find in h[is] favor.’” Stevens v. Rite Aid Corp.,

851 F.3d 224, 228 (2d Cir. 2017) (quoting Galdieri-Ambrosini v. Nat’l Realty & Dev. Corp., 136

F.3d 276, 289 (2d Cir. 1998)). Thus, we “must draw all reasonable inferences in favor of the

nonmoving party, and [we] may not make credibility determinations or weigh the evidence.”

Manganiello, 612 F.3d at 161 (emphasis removed) (quoting Zellner v. Summerlin, 494 F.3d 344,

370 (2d Cir. 2007)). The motion may be granted only “if there exists such a complete absence of

evidence supporting the verdict that the jury’s findings could only have been the result of sheer

surmise and conjecture, or the evidence in favor of the movant is so overwhelming that reasonable

and fair minded [persons] could not arrive at a verdict against [it].” Kinneary v. City of N.Y., 601

F.3d 151, 155 (2d Cir. 2010) (quoting Brady v. Wal–Mart Stores, Inc., 531 F.3d 127, 133 (2d Cir.




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2008)). This burden is “particularly heavy” when, as here, “the jury has deliberated in the case and

actually returned its verdict.” Cross v. N.Y.C. Transit Auth., 417 F.3d 241, 248 (2d Cir. 2005).

           2. False Arrest

         We first address the Defendants-Appellants’ claim that no reasonable juror could find for

Walsh on his false arrest claim because probable cause existed for Walsh’s arrest as a matter of

law. “Probable cause ‘is a complete defense to an action for false arrest’ brought under . . . § 1983.”

Ackerson v. City of White Plains, 702 F.3d 15, 19 (2d Cir. 2012) (quoting Weyant v. Okst, 101

F.3d 845, 852 (2d Cir. 1996)), as amended (Dec. 4, 2012). “An arresting officer has probable cause

when the officer has ‘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.’” Simpson v. City of N.Y., 793 F.3d 259, 265 (2d

Cir. 2015) (quoting Weyant, 101 F.3d at 852). “When determining whether probable cause existed

to support an arrest, we ‘consider those facts available to the officer at the time of arrest and

immediately before it,’” id. (quoting Panetta v. Crowley, 460 F.3d 388, 395 (2d Cir. 2006)),

keeping in mind that “an officer may not disregard plainly exculpatory evidence,” Fabrikant v.

French, 691 F.3d 193, 214 (2d Cir. 2012) (quoting Panetta, 460 F.3d at 395).

       Viewing the evidence in the light most favorable to Walsh, we believe that a reasonable

juror could find that Roach and Clark lacked probable cause for an arrest. The jury was specifically

instructed that “[o]ne of the questions an officer must consider in believing that he had probable

cause to arrest is if the person about to be arrested was privileged in using the force for which he

[is being] arrested,” App’x at 510, and the Defendants-Appellants have not challenged this

instruction on appeal. We believe the trial evidence was sufficient for a jury to conclude that, given

the totality of the circumstances facing Roach and Clark, “a person of reasonable caution” in their


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position would have understood that Walsh’s use of force against Vadala was privileged, and that

Walsh therefore committed no crime. See Simpson, 793 F.3d at 265 (quoting Weyant, 101 F.3d at

852); see also Jocks v. Tavernier, 316 F.3d 128, 135 (2d Cir. 2003) (“[U]nder some circumstances,

a police officer’s awareness of the facts supporting a defense can eliminate probable cause.”). We

thus affirm the district court’s denial of the Defendants-Appellants’ Rule 50(b) motion as to

Walsh’s false arrest claim.

           3. Malicious Prosecution

       We next address the district court’s denial of the Defendants-Appellants’ Rule 50(b)

motion as to Walsh’s malicious prosecution claim. “Malicious prosecution occurs when ‘(1) the

defendant initiated a prosecution against [the] plaintiff, (2) without probable cause to believe the

proceeding can succeed, (3) the proceeding was begun with malice and, (4) the matter terminated

in [the] plaintiff’s favor.’” Cameron v. City of N.Y., 598 F.3d 50, 63 (2d Cir. 2010) (quoting

Ricciuti v. N.Y. City Transit Auth., 124 F.3d 123, 130 (2d Cir. 1997)). The Defendants-Appellants

put forward two reasons for why the trial evidence was insufficient to establish a claim for

malicious prosecution; we reject both.

       First, the Defendants-Appellants argue that probable cause existed for Walsh’s prosecution

as a matter of law. “Probable cause, in the context of malicious prosecution, has . . . been described

as such facts and circumstances as would lead a reasonably prudent person to believe the plaintiff

guilty.” Stansbury v. Wertman, 721 F.3d 84, 95 (2d Cir. 2013) (quoting Boyd v. City of N.Y., 336

F.3d 72, 76 (2d Cir. 2003)). Because a reasonable juror could believe that probable cause did not

exist for Walsh’s arrest, as noted above, we conclude that it follows that a reasonable juror could

also believe that probable cause did not exist for Walsh’s prosecution. See id.




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         Second, the Defendants-Appellants argue that no reasonable juror could conclude that

Roach and Clark “initiated” Walsh’s prosecution. We disagree. “While police officers do not

generally [‘initiate’] criminal proceedings against defendants, a claim for malicious prosecution

can still be maintained against a police officer if the officer . . . ‘play[ed] an active role in the

prosecution, such as [by] giving advice and encouragement[.]’” Bermudez v. City of N.Y., 790 F.3d

368, 377 (2d Cir. 2015) (quoting Manganiello, 612 F.3d at 163). Here, a reasonable juror could

conclude that Roach and Clark understood that Walsh’s use of force was legally privileged, but

nonetheless advised and encouraged Vadala to file a criminal complaint regardless. See, e.g.,

App’x at 362–66 (Clark’s testimony that he and Roach initiated the idea of Vadala’s filing a

complaint against Walsh). The fact that independent parties might have also played a role in

facilitating Walsh’s prosecution would not exonerate Roach and Clark in such a situation. See,

e.g., Cameron, 598 F.3d at 63–64 (“[T]he chain of causation [in a malicious prosecution suit] need

not be considered broken if [a defendant government agent] . . . could reasonably foresee that his

misconduct [would] contribute to an independent decision that results in a deprivation of liberty.”

(quoting Higazy v. Templeton, 505 F.3d 161, 177 (2d Cir. 2007))). We therefore affirm the district

court’s denial of the Defendants-Appellants’ Rule 50(b) motion on Walsh’s malicious prosecution

claim.

            4. Qualified Immunity

         Finally, we address the Defendants-Appellants’ claim that they were entitled to qualified

immunity. First, the Defendants-Appellants contend that they were entitled to qualified immunity

because even if probable cause did not exist for Walsh’s arrest and prosecution, “arguable probable

cause” existed as a matter of law. See, e.g., Betts v. Shearman, 751 F.3d 78, 83 (2d Cir. 2014). We

disagree. “Arguable probable cause should not be misunderstood to mean almost probable cause.”


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Dancy v. McGinley, 843 F.3d 93, 107 (2d Cir. 2016) (quoting Jenkins v. City of N.Y., 478 F.3d 76,

87 (2d Cir. 2007)). “If officers of reasonable competence would have to agree that the information

possessed by the officer at the time of arrest did not add up to probable cause, the fact that it came

close does not immunize the officer.” Id. (quoting Jenkins, 478 F.3d at 87). Based on the evidence

presented at trial, we believe that a reasonable juror could conclude that any reasonable officer in

Roach’s and Clark’s positions would have known that Walsh’s use of force was privileged, and

that no reasonable officer in their positions would have determined that probable cause existed to

arrest Walsh and initiate his prosecution. See, e.g., Myers v. Patterson, 819 F.3d 625, 633 (2d Cir.

2016) (noting that a defendant officer is not entitled to qualified immunity if “no officer of

reasonable competence could have made the same choice in similar circumstances” (quoting

Lennon v. Miller, 66 F.3d 416, 420–21 (2d Cir. 1995))).

       Second, the Defendants-Appellants argue that they were entitled to qualified immunity

because, at the time of the incident in question, it was “not clearly established that an officer can

be held liable for initiating a prosecution based solely on his or her decision not to independently

seek out a prosecutor to convey purportedly material information.” Br. for Defs.-Appellants at 46.

Even assuming arguendo that the Defendants-Appellants have accurately characterized the state

of the law at the time of the incident, however, as noted above, a reasonable juror could conclude

that Roach and Clark not only withheld material information from a prosecutor, but also

encouraged Vadala to file a complaint against Walsh knowing that such a complaint was meritless.

See Manganiello, 612 F.3d at 163 (noting that an individual may be found to have “initiated” a

prosecution if he “play[ed] an active role in the prosecution” by “giving advice and

encouragement” (quoting Rohman v. N.Y.C. Transit Auth., 215 F.3d 208, 217 (2d Cir. 2000)));

Gilman v. Marsh & McLennan Companies, Inc., 868 F. Supp. 2d 118, 128 (S.D.N.Y. 2012)


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(explaining that an individual “may be found to have initiated a proceeding for malicious

prosecution purposes” if she “convinc[es] a person to file a complaint who would not otherwise

have done so” (quoting Tommy Hilfiger Licensing, Inc. v. Bradlees, Inc., No. 99 Civ. 4677(RJH),

2004 WL 2290499, at *5 n.8 (S.D.N.Y. Oct. 8, 2004))). We therefore cannot conclude that the

district court erred in denying the Defendants-Appellants’ Rule 50(b) motion as to qualified

immunity.

                                       *      *       *

       We have considered the Defendants-Appellants’ 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




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