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‐ 2126

‐ cv

Morales v. City of New York

UNITED STATES COURT OF APPEALS 1

FOR THE SECOND CIRCUIT 2

3

4

August Term, 2013 5

6

(Argued: May 12, 2014 Decided: May 16, 2014) 7

8

Docket No. 13

‐ 2126

‐ cv 9

10

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12

PABLO MORALES, 13

14

Plaintiff

‐ Appellant, 15

16

v. 17

18

CITY OF NEW YORK, NEW YORK CITY POLICE 19

DEPARTMENT, SPECIAL AGENT MICHAEL 20

ARNETT, SGT. NEIL NAPPI, DETECTIVE JUAN 21

ROMERO, DETECTIVE HAROLD SABATER, * 22

23

Defendants

‐ Appellees. 24

25

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ X 26

27

Before: KEARSE, LOHIER, and CARNEY, Circuit Judges. 28

29

Plaintiff Pablo Morales appeals from the District Court’s dismissal of 30

his Second Amended Complaint against the City of New York, the New York 31

City Police Department, and individual State and Federal law enforcement 32

officials. Morales brought this action under 42 U.S.C. §§ 1981, 1983, 1985 and 33

1988 and State law, alleging, among other things, malicious prosecution, 34

* The Clerk of the Court is directed to amend the caption of this case as set

forth above.2 abuse of process, deprivation of Morales’s right to a fair trial, and deprivation 1

of, and conspiracy to deprive Morales of, his constitutional rights on account 2

of his race and color. In particular, Morales claimed that a Federal agent 3

presented false testimony to the grand jury that returned the indictment 4

against him. We AFFIRM. 5

6

V IKRANT P AWAR

, E SQ

., New York, NY, 7

for Plaintiff

‐ Appellant. 8

9

C HRISTINE S. P OSCABLO

, Assistant 10

United States Attorney (Emily E. 11

Daughtry, Assistant United States 12

Attorney, on the brief), for Preet 13

Bharara, United States Attorney for the 14

Southern District of New York, New 15

York, NY, for Defendant

‐ Appellee 16

Special Agent Michael Arnett. 17

18

I NGRID R. G USTAFSON

, New York City 19

Law Department (Suzanne K. Colt and 20

Pamela Seider Dolgow, on the brief), for 21

Zachary W. Carter, Corporation 22

Counsel of the City of New York, New 23

York, NY, for Defendants

‐ Appellees 24

City of New York, New York City Police 25

Department, Sgt. Neil Nappi, Detective 26

Juan Romero, Detective Harold Sabater. 27

28

P ER C URIAM : 29

Plaintiff Pablo Morales appeals from a judgment of the United States 30

District Court for the Southern District of New York (Crotty, J.), dismissing 31

his Second Amended Complaint against the City of New York, the New York 32

City Police Department (“NYPD”), and four individual State and Federal law 333 enforcement officials. Morales brought this action against the individual 1

defendants under 42 U.S.C. §§ 1981, 1983, 1985 and 1988 and State law, 2

alleging, among other things, malicious prosecution, abuse of process, 3

deprivation of Morales’s right to a fair trial, and deprivation of, and 4

conspiracy to deprive Morales of, his constitutional rights on account of his 5

race and color, and against the City and the NYPD, asserting that the 6

individual defendants’ acts resulted from a municipal policy, custom or 7

practice, see Monell v. Department of Social Services of the City of New York, 8

436 U.S. 658 (1978). In particular, Morales claimed that a Federal agent 9

presented false testimony to the State grand jury that returned the indictment 10

against him. For the reasons stated below, we AFFIRM. 11

BACKGROUND 12

The Second Amended Complaint alleges the following facts, which we 13

assume to be true and construe in the light most favorable to the plaintiff. See 14

Cruz v. FXDirectDealer, LLC, 720 F.3d 115, 118 (2d Cir. 2013). In 2007 Pablo 15

Morales was arrested by Federal agents of the Drug Enforcement 16

Administration (“DEA”) and NYPD officers on the New York Drug 17

Enforcement Task Force (“NYDETF”). Morales remained in custody from the 184 time of his arrest, through his indictment in State court for sale and 1

possession of a controlled substance, possession of marijuana, and criminal 2

use of drug paraphernalia, until the charges against him were dropped nearly 3

three years later. 4

The series of events leading to his arrest and eventual release prompted 5

Morales to sue the City of New York, the NYPD, and the four individual 6

defendants, including DEA Special Agent Michael Arnett, 1 for violations of 7

the Fourth and Fourteenth Amendments, malicious prosecution, abuse of 8

process, denial of the right to a fair trial, violation of and conspiracy to violate 9

his constitutional rights on account of his race and color, and various 10

common law torts under New York law. 11

As relevant here, Morales alleged that he worked for years prior to his 12

arrest as a confidential source for the NYDETF on drug investigations. He 13

claimed that the post

‐ arrest indictment returned against him rested on 14

Arnett’s false grand jury testimony as well as, among other things, fabricated 15

laboratory results showing that plants confiscated from his backyard were 16

1 Morales initially also named a fifth individual defendant, DEA Chemist

Stacey Turner. However, Morales did not include Turner in the caption (or

assert any claims against her) in his Second Amended Complaint. Morales

appeals from the dismissal of the Second Amended Complaint only and does

not seek to appeal the District Court’s dismissal of his claims against Turner.5 marijuana. The defendants moved to dismiss Morales’s Second Amended 1

Complaint under Federal Rule of Civil Procedure 12(b)(6), and the District 2

Court granted the motion by Order dated May 13, 2013. This appeal 3

followed. 4

DISCUSSION 5

As an initial matter, Morales argues that the District Court incorrectly 6

analyzed his claims against Agent Arnett under Bivens v. Six Unknown 7

Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), the 8

“federal analog” to actions against State actors under § 1983, 2 Ashcroft v. 9

Iqbal, 556 U.S. 662, 675 (2009) (quotation marks omitted). We disagree. In 10

connection with both his work on the NYDETF and his testimony before the 11

grand jury, Arnett was alleged to have acted as an employee of the DEA. 12

Absent specific allegations that he conspired with State agents to violate 13

Morales’s rights, Arnett is therefore presumed to have acted under Federal 14

authority. See Arar v. Ashcroft, 585 F.3d 559, 568 (2d Cir. 2009) (en banc). 15

And even specific allegations of conspiracy, if conclusory, would not be 16

sufficient to state a claim for conspiratorial violation of Morales’s rights. See 17

2 There is no dispute that Morales’s claims against the NYPD defendants, who

are State actors, were properly construed under § 1983.6 Thomas v. Roach, 165 F.3d 137, 147 (2d Cir. 1999); Ostrer v. Aronwald, 567 1

F.2d 551, 553 (2d Cir. 1977). Rather than alleging a conspiracy between the 2

NYPD defendants and Arnett, however, Morales alleged only that Arnett and 3

the NYPD defendants worked together. That allegation of cooperation 4

“supports no inference that [Arnett] acted with an improper motive,” and is 5

not enough to subject him to § 1983 liability for civil conspiracy. Beechwood 6

Restorative Care Ctr. v. Leeds, 436 F.3d 147, 154 (2d Cir. 2006). 3 7

A. Fair Trial Claim 8

Morales also claimed that Arnett’s false grand jury testimony deprived 9

him of his right to a fair trial. In Rehberg v. Paulk, 132 S. Ct. 1497 (2012), the 10

Supreme Court held that a grand jury witness was entitled to absolute 11

immunity in a § 1983 action based on his grand jury testimony. Id. at 1506. 12

We have since applied Rehberg to actions under § 1983 and the Federal Tort 13

Claims Act, but not yet to a Bivens action. See Marshall v. Randall, 719 F.3d 14

113 (2d Cir. 2013); Vidro v. United States, 720 F.3d 148 (2d Cir. 2013). We now 15

3 In the First Amended Complaint, but not the Second Amended Complaint,

Morales alleged that the individual NYPD defendants were deputized as

Federal agents. Accordingly, we construe his claims against the NYPD

defendants as though they are State actors.7 hold that Arnett is entitled to absolute immunity from Bivens liability for his 1

grand jury testimony. There are at least two reasons for doing so. 2

First, the rationale supporting immunity for grand jury witnesses in 3

§ 1983 actions applies with equal force to Bivens suits. Each of the policy 4

justifications that Rehberg cited in support of granting absolute immunity to 5

grand jury witnesses exists in the context of a Bivens action. See Rehberg, 132 6

S. Ct. at 1505–06, 1509. And second, extending Rehberg’s shelter to Bivens 7

liability reflects the “general trend in the appellate courts,” Chin v. Bowen, 8

833 F.2d 21, 24 (2d Cir. 1987) (quotation marks omitted), of incorporating 9

§ 1983 law into Bivens suits. The District Court therefore correctly held that 10

to the extent that Morales’s claims are based on Arnett’s grand jury 11

testimony, Rehberg forecloses them under both Bivens and § 1983. 12

Morales also alleges that his indictment was premised on “faulty 13

laboratory results that stated that the plants growing in plaintiff’s backyard 14

were marijuana.” That allegation, too, fails to support a plausible fair trial 15

claim. First, only Arnett is alleged to have falsified evidence or otherwise 16

deprived Morales of a fair trial through his grand jury testimony. But, as 17

noted, Arnett enjoys absolute immunity for that testimony. Second, the 188 allegation is contradicted by other allegations in which Morales appears to 1

acknowledge that he grew marijuana in his backyard. 2

B. Abuse of Process and Malicious Prosecution Claims 3

We turn next to the abuse of process and malicious prosecution claims. 4

“In order to state a [§ 1983] claim for abuse of process, a plaintiff must 5

establish that the defendants had an improper purpose in instigating the 6

action

. . . [and] that they aimed to achieve a collateral purpose beyond or in 7

addition to his criminal prosecution.” Savino v. City of New York, 331 F.3d 8

63, 77 (2d Cir. 2003). With that standard in mind, we conclude that the 9

District Court correctly held that Morales failed to state a claim for abuse of 10

process as to either the individual NYPD defendants or Arnett. As for the 11

former, Morales failed to allege that they had an ulterior motive or purpose in 12

pursuing his arrest beyond prosecution itself. As for Arnett, we identify the 13

same defect and in addition note that we have never recognized a Bivens 14

cause of action for abuse of process and decline to do so now. Cf. Arar, 585 15

F.3d at 571–72. 16

We also conclude that the District Court did not err in dismissing 17

Morales’s claim of malicious prosecution. As the District Court observed, 189 Morales failed to plead basic facts in support of such a claim, including any 1

facts to support his allegation that “actual malice” was “a motivation for [the] 2

defendant[s’] actions,” Manganiello v. City of New York, 612 F.3d 149, 160–61 3

(2d Cir. 2010); see Locurto v. Safir, 264 F.3d 154, 169 (2d Cir. 2001). 4

C. Remaining Claims: 42 U.S.C. §§ 1981 and 1985 and Monell Liability 5

We also agree with the District Court that Morales failed to plead facts 6

showing that the defendants acted with discriminatory animus, as required to 7

state a claim under 42 U.S.C. § 1981 or 42 U.S.C. § 1985. See Reynolds v. 8

Barrett, 685 F.3d 193, 201–02 (2d Cir. 2012). Instead, the Second Amended 9

Complaint contains only conclusory allegations that the defendants violated 10

Morales’s rights “because of their discriminatory intent” and “based on his 11

race and color.” See Albert v. Carovano, 851 F.2d 561, 572 (2d Cir. 1988) (en 12

banc); Ostrer, 567 F.2d at 553. 13

Lastly, having properly dismissed Morales’s underlying constitutional 14

claims against the individual NYPD defendants, the District Court also 15

properly dismissed his claim against the City and the NYPD for municipal 16

liability under Monell. See Askins v. Doe No. 1, 727 F.3d 248, 253 (2d Cir. 17

2013). 1810 CONCLUSION 1

We have considered Morales’s remaining arguments and conclude that 2

they are without merit. For the foregoing reasons, the judgment of the 3

District Court is AFFIRMED. 4