13

- 1103 (L)

Johnson v. City of New York , 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 COU RT, 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 1

at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New 2

York, on the 22 nd day of January , two thousand fourteen

. 3

4

PRESENT: RALPH K. WINTER, 5

GUIDO CALABRESI, 6

REENA RAGGI, 7

Circuit Judges. 8

_____________________________________ 9

10

TED JOHNSON

, 11

Plaintiff

- Appellant

, 12

v. No. 13

- 1103 (L), 13

No. 13

- 1402 (con) 14

THE CITY OF NEW YORK

, POLICE 15

OFFICER ANTHONY ROSADO, POLICE 16

OFFICER THOMAS WOODS, SERGEANT 17

LUIS MARINES, 18

Defendants

- Appellees

. 19

_____________________________________ 20

21

FOR APPELLANT: Ted Johnson, pro se , Bennettsville, 22

South Carolina. 23

24

FOR A PPELLEES: Francis F. Caputo, Scott N. Shorr, of Counsel, 25

for Michael A. Cardozo, Corporation Counsel 26

of the City of New York, New York, 27

N ew Y ork

. 28

292

Appeal from an order of the United States District Court for the Southern District 1

of New York (Katherine B. Forrest, Judge ). 2

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 3

AND DECREED that the district court judgment entered on March 7, 2013, is 4

AFFIRMED

. 5

Pro se plaintiff Ted Johnson appeals from the dismiss al of his 42 U.S.C. § 1983 6

complaint against New York City and three of its police officers alleging, inter alia , false 7

arrest and malicious prosecution. This c ourt reviews de novo a judgment of dismissal 8

pursuant to Fed. R. Civ. P. 12(b)(6). See Chambers v. Time Warner, Inc. , 282 F.3d 147, 9

152 (2d Cir. 2002). To survive dismiss al, a complaint must plead “enough facts to state a 10

claim to relief that is plausible on its face.” Bell Atl

. Corp. v. Twombly , 550 U.S. 544, 11

570 (2007). We assume the parties’ famil iarity with the underlying facts and the record 12

of prior proceedings, which we reference only as necessary to explain our decision to 13

affirm. 14

As an initial matter, we decline to consider the application of Heck v. Humphrey

, 15

512 U.S. 477 (1994), to this c ase in light of this c ourt’s rehearing en banc of Poventud v. 16

City of New York

, --- F.3d

---- , 2014 WL 182313 (2d Cir. Jan. 16, 2014 ) ( en banc )

. We 17

may “ affirm on any basis for which there is s ufficient support in the record, ” s ee Ferran 18

v. Town of Nassau , 471 F.3d 363, 365 (2d Ci r. 2006), and w e do so here because 19

Johnson’s claims fail plausibly to plead malicious prosecution and false arrest. 203

To prevail on a malicious prosecution claim, a plaintiff must show, inter alia , that 1

the challenged criminal pro ceeding terminated favorably. See Swartz v. Insogna , 704 2

F.3d 105, 1 11

– 12 (2d Cir. 2013). Johnson cannot plausibly plead a favorable termination 3

in light of his conviction for forcible touching. Although Johnson was acquitted of third

4

degree sexual abus e, the elements of the two charges l argely overlap, the facts underlying 5

both charges are identical, and Johnson was convicted of the more serious offense. See 6

DiBlasio v. City of New York

, 102 F.3d 654, 655, 658 (2d Cir. 1996); cf. Janetka v. 7

Dabe , 892 F. 2d 187, 189

– 90 (2d Cir. 1989). 8

Additionally, because the forcible touching conviction demonstrates that police 9

officers had probable cause to arrest Johnson, he similarly cannot plausibly plead false 10

arrest

. See Jaegly v. Couch , 439 F.3d 149, 154 (2d Cir. 2006) (stating that “claim for 11

false arrest turns only on whether probable cause existed to arrest a defendant, and that it 12

is not relevant whether probable cause existed with respect to each individual charge, or, 13

indeed, any charge actually invoked by the arresting officer at the time of arrest” ) ; 14

Cameron v. Fogarty , 806 F.2d 380, 388

– 89 (2d Cir. 1986) (holding that convicted 15

defendant cannot challenge sufficiency of evidence supporting his arrest). 16

Johnson ’s other claims are similarly meritless. Because he has not alleged a valid 17

underlying constitutional deprivation, his claim against New York City pursuant to 18

Monell v. Department of Social Services , 436 U.S. 658 (1978), must also fail. See City 19

of Los A ngeles v. Heller , 475 U.S. 796, 799 (1986) (stating that Monell liability does not 20

lie where municipality’s officer does not inflict constitutional harm). As we do not rely 214

on Heck in affirming the district court’ s judgment

, we need not consider Johnson ’s equal 1

protection challenge to our Heck jurisprudence. Finally, the district court did not err in 2

dismissing sua sponte Johnson ’s claims against one officer. Because the facts and 3

reasoning applicable to the moving defendants also applied to that officer

, Johnson ’s 4

complaint lacked an arguable basis in law or fact and was subject to sua sponte dismissal. 5

See 28 U.S.C. § 1915(e)(2) (stating that court “shall dismiss” case filed by plaintiff 6

proceeding in forma pauperis “at any time” if it determines that action fails to state claim 7

upon which relief may be granted); see also Neitzke v. Williams , 490 U.S. 319, 322

– 23 8

(1989) (approving sua sponte dismissal of such claims under § 1915). 9

We have considered all of Johnson ’s remaining arguments and conclude tha t the y 10

are without merit. 11

Accordingly, we AFFIRM the judgment of the district court. 12

13

FOR THE COURT: 14

Catherine O’Hagan Wolfe, Clerk of Court 15

16