14-2847-cv Vlach v. Staiano

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT



## SUMMARY ORDER

Rulings by summary order do not ha ve 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 (wit h the notation “summary 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 Seco nd Circuit, held at 1 the Thurgood Marshall United States Courthou se, 40 Foley Square, in the City of New York, 2 on the 21 st day of May, two thousand fifteen. 3
4 PRESENT: 5 C HESTER J. S TRAUB , 6 B ARRINGTON D. P ARKER , 7 S USAN L. C ARNEY , 8 Circuit Judges

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11 W ILLIAM V LACH , 12
13 Plaintiff-Appellant
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15 v. No. 14-2847-cv 16
17 P HILIP S TAIANO , IN HIS INDIVIDUAL CAPACITY , 18
19 Defendant-Appellee

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23 FOR PLAINTIFF-APPELLANT: R USSELL G. W HEELER (Nathaniel K. 24 Charny, on the brief ), Charny & Associates, 25 Rhinebeck, NY. 26
27 FOR DEFENDANT-APPELLEE: F RANK B RADY , Assistant Solicitor 28 General (Denise A. Hartman, Assistant 29 Solicitor General, and Barbara D. 302 Underwood, Solicitor General, on the brief ), 1 for Eric T. Schneiderman, Attorney 2 General of the State of New York, Albany, 3 NY. 4
5 Appeal from a judgment of the United States District Court for th e Northern District 6 of New York (Sharpe, C.J. ). 7
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, 8 ADJUDGED, AND DECREED that the June 27, 2014 judgme nt of the District Court is 9
AFFIRMED

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Plaintiff William Vlach brings claims against defendant Philip Staiano pursuant to 42 11 U.S.C. § 1983 for false arrest, ma licious prosecution, and abuse of process, in violation of the 12
Fourth and Fourteenth Amendmen ts and New York law. Vlach appeals the District Court’s 13 grant of Staiano’s motion for summary judgment on all claims. We assume the parties’ 14 familiarity with the underlying facts and the pro cedural history of the case, to which we refer 15 only as necessary to expl ain our decision. 16

This action arises out of Vlach’s arrest and prosecution for an alleged assault of a 17 resident at the state-run facility for individuals with developmental disabilities at which Vlach 18
worked as an aide and Staiano served as a su pervisor. The criminal charges against Vlach 19 were ultimately dismissed. Vlach principally ar gues that the District Court erred in granting 20 summary judgment in Staiano’s favor because a reasonable jury could find Staiano liable for 21 the torts alleged in light of evidence suggesting that Staiano provided materially incomplete 22
information to the New York Stat e Police. Vlach contends that Staiano failed to inform the 23 State Police that Staiano himself had performed a violent “take-down” of the alleged victim 24 three days before the reported incident and was potentially the source of the injuries 25
attributed to Vlach. Vlach also maintains that Staiano failed to disclose to the State Police 26 that certain persons Staiano interviewed during an internal investigation were not credible 27
and that at least one of the witnesses partially recanted his allegations. 283 To hold a private individual like Staiano li able for false arrest under § 1983 and New 1 York law, “a plaintiff must show that the defendant took an acti ve role in the arrest of the 2 plaintiff, such as giving advice and encouragement or importunin g the authorities to act, and 3
that the defendant intended to confine the plaintiff.” Lowmack v. Eckerd Corp. , 757 N.Y.S.2d 4 406, 408 (App. Div. 4th Dep’t 2003) (alterations and internal quotation marks omitted). 5 Liability may attach only when the defendant h as “affirmatively induced the officer to act, 6 such as taking an active part in the arrest an d procuring it to be ma de or showing active, 7 officious and undue zeal to the point where the officer is not acting of his own volition.” 8 Curley v. AMR Corp., 153 F.3d 5, 13-14 (2d Cir. 1998) (i nternal quotation marks omitted). 9
Upon de novo review, see Allianz Ins. Co. v. Lerner , 416 F.3d 109, 113 (2d Cir. 2005), we 10 conclude that the District Court properly gran ted summary judgment to Staiano on the false 11 arrest claim. After Staiano reported that Vlach had committed an assault, the State Police 12
undertook their own invest igation during which, inter alia , the alleged victim identified Vlach 13
as his assailant. The State Police thereafter arre sted Vlach. “When police independently act 14 to arrest a suspect on information provided by a party, that party is not liable for false 15 imprisonment [i.e. arrest]—even if the informat ion provided is later fo und to be erroneous.” 16 King v. Crossland Sav. Bank , 111 F.3d 251, 257 (2d Cir. 1997); see also Quigley v. City of Auburn
, 17 701 N.Y.S.2d 580, 582 (App. Div. 4th Dep’ t 1999). Thus, even if Staiano provided 18 materially incomplete information to the St ate Police, the false arrest claim against him 19
cannot stand. 20
The standard under which a civilian may be held liable for malicious prosecution 21 mirrors that just discussed for false arrest. A private defendant must have taken an active 22 role in the prosecution, “such as giving ad vice and encouragement or importuning the 23 authorities to act,” to be found to have in itiated a criminal prosecution as required for 24 liability to attach. Rothstein v. Carriere , 373 F.3d 275, 293-94 (2d Ci r. 2004) (internal quotation 25 marks omitted). Merely “reporting a crime to law enforcement and giving testimony” does 26
not suffice. Id. Viewing the record in the light mo st favorable to Vlach, we discern no 27 evidence from which a reasonable ju ry could find that Staiano initiated or took an active role 284 in Vlach’s actual prosecution. When a “crimi nal charge is the culmination of a lengthy 1 investigation involving various sources of evid ence, the mere fact that a witness provided 2 false information to the government”—as Vlach asserts Staiano did here—“does not 3
warrant a conclusion that the witness initiated the prosecution where the rest of the evidence 4 suggests otherwise.” Id. at 294; see also Brown v. Sears Roebuck , 746 N.Y.S.2d 141, 146 (App. 5 Div. 1st Dep’t 2002) (“While it is a true that a defendant may be said to have initiated a 6 criminal proceeding by providing false evidence to the pol ice or withholding evidence that 7 might affect the determination by the police to make an arrest, the record in this case 8 conclusively demonstrates that the allegedly false evidence . . . did not contribute to the 9 determination to arrest plaintiff.”) (citations omitted). Accordingl y, the District Court 10 properly entered summary judgment on Vlach’ s malicious prosecution claim, too. 11
Finally, a plaintiff bringing a claim for abuse of process under New York law must 12 show, inter alia , that a defendant employed “regular ly issued legal process to compel 13 performance or forbearance of some act.” Cook v. Sheldon , 41 F.3d 73, 80 (2d Cir. 1994). 14 For the reasons discussed above, no reasonable ju ry could find that Staiano had a sufficient 15 level of involvement in Vlach’s arrest or pr osecution to support this count. We conclude 16 that summary judgment was correctly awarded on Vlach’s abuse of process claim as well. 17

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We have considered Vlach’s remaining arguments and find them to be without merit. 19
We therefore AFFIRM the judgment of the District Court. 20

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FOR THE COURT: 22 Catherine O’Hagan Wolfe, Clerk of Court 23

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