22

- 582 Richardson v. McMahon



## 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 NO TATION “ 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 Second Circuit, 1 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 2 New York, on the 2 7 t h d a y of A p r i l , two thousand twenty

- three

. 3 4 PRESENT: 5 GUIDO CALABRESI , 6 MICHAEL H. PARK , 7 EUNICE C. LEE , 8 Circuit Judges. 9

_____________________________________ 10 11 Jewu Richardson , 12 13 Plaintiff

- Appellant , 14 15

v. 22

- 582 16 17 James McMahon, City of Waterbury, 18 Edward Mills, Juan Rivera , 19 Defendants

- Appellees

. * 20

_____________________________________ 21 22 FOR PLAINTIFF

- APPELLANT : A LEXANDER T. T AUBES , New 23 Haven, CT

. 24 25 FOR DEFENDANT S

- APPELL EE S : J OSEPH A. M ENGACCI ( Daniel 26 J. Foster , on the brief )
, City 27 of Waterbury, Office of the 28 Corporation Counsel, 29 Waterbury, CT

. 30

* The Clerk is respectfully directed to amend the caption accordingly.2 Appeal from a judgment of the United States District Court for the District of Connecticut 1
( Hall
, J

. ). 2

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

DECREED that the judgment of the district court is AFFIRMED

. 4

Plaintiff

- Appellant Jewu Richardson appeals from the district court’s grant of Defendants

5
Appellees’ motion for summary judgment. Richardson brought false

- arrest and malicious

6
prosecution claims under 42 U.S.C. § 1983 and Connecticut law against the City of Waterbury 7
(the “City”) and three Waterbury Police Department officers (James McMahon, Juan Rivera, and 8
Edward Mills) (collectively, “Defendants”)

. The district court granted Defendants’ motion for 9

summary judgment
, concluding that (1) Richardson’s federal claims for false arrest and malicious 10
prosecution are barred by qualified immunity , and (2) Richardson’s claims against the City fail 11
because they are contingent on the federal claims

. Richardson challenges both as pects of the 12
district court’s ruling. We assume the parties ’ familiarity with the underlying facts, the procedural 13
history of the case, and the issues on appeal. 14

“We review de novo a district court’s decision to grant summary judgment, construing the 15
evidence in the light most favorable to the party against whom summary judgment was granted 16
and drawing all reasonable inferences in that party’s favor.” Bey v. City of N ew Y ork , 999 F .3d 17
157, 164 (2d Cir. 2021)

. 18

I. Qualified Immunity 19
The district court correctly granted summary judgment on Richardson’s false

- arrest and 20

malicious

- prosecution claims based on qualified immunity

. Qualified immunity “shields police 213 officers acting in the ir official capacity from suits for damages unless their actions violate clearly

1
established rights of which an objectively reasonable official would have known.” McKinney v. 2
City of Middletown , 49 F.4th 730, 738 (2d Cir. 2022) ( quoting Jones v. Parmley
, 465 F.3d 46, 55 3
(2d Cir. 2006) ( ellipses omitted ) ). “When a defendant moves for summary judgment based on 4
qualified immunity,” we apply a two

- prong test: (1) “whether the facts shown make out a violation 5
of a constitutional right,” and (2) “whether the right at issue was clearly established at the time of 6

[ the ] defendant’s alleged misconduct.” Id. ( cleaned up ). We may address the prongs in either 7

order. See Pearson v. Callahan , 555 U.S. 223, 236 (2009). A right is “clearly established” if the 8
“contours of the right [are] sufficiently clear that a reaso nable official would understand that what 9
he is doing violates th at right.” Taravella v. Town of Wolcott , 599 F.3d 129, 133 (2d Cir. 2010)

. 10
“Probable cause is a complete defense to a constitutional claim of false arrest

. . . [a]nd 11
continuing probable cause is a complete defense to

. . . malicious prosecution.” Betts v. 12

Shearman , 751 F.3d 78, 82 (2d Cir. 2014) . In the false

- arrest and malicious

- prosecution contexts, 13
“qualified immunity protects an officer if he had arguable probable cause to arrest th e plaintiff.” 14

Myers v. Patterson , 819 F.3d 625, 632 (2d Cir. 2016) ( internal quotation marks and citation 15

omitted ); see Betts , 751 F.3d at 82

– 83 . “Arguable probable cause exists if either (a) it was 16
objectively reasonable for the officer to believe that probable cause existed, or (b) officers of 17
reasonable competence could disagree on whether the probable cause test was met.” Myers , 819 18

F.3d at 633 (citation omitted)

. 19

T he district court correctly determined the individual Defendants had arguable proba ble 20
cause to arrest and prosecute Richardson. Based on several undisputed facts, an “officer of 21
reasonable competence” in McMahon’s and Rivera’s positions “could have made the same choice” 224 to arrest Richardson. Id. (citation omitted). The officers recei ved statements from Candice 1
Binns and her daughter (an alleged eyewitness) suggesting that Richardson assaulted Binns. 2
Richardson presents no evidence beyond speculation that the two statements were coordinated. It 3
is undisputed that Rivera observed that “Binns appeared disheveled ” ; “ her face, neck and shirt 4

were a little wet” ; McMahon “noticed the floor [of Binns’s apartment ] was wet” ; and Binns “was 5
cleaning up before Officers McMahon and Rivera arrived as there was stuff in the trash .” Plaintiff 6
Jewu Richardson’s Local Rule 56(A ) Statement of Facts in Opposition to Summary Judgment at 7

10, Richardson v. City of Waterbury , 19

- cv

- 707 (D. Conn. Sept. 3, 2021), ECF 5 4

- 2 (“Rule 56 8
Statement”)

. Moreover, i n his Rule 56 S tatement, Richardson did not dispute that “Binns may 9

have stated

. . . to McMahon” that Richardson “began to yell at her[,] pushed her around the 10
kitchen,” and “pushed her against the sink, put his hands on her throat and began to choke her, 11
turned on the sink and was pouring water on her face.” Id. at 7. Under the cir cumstances, it was 12

“ objectively reasonable ” for McMahon and Rivera to believe probable cause existed to arrest 13

Richardson for assault. Myers , 819 F.3d at 633

. So Defendants had arguable probable cause to 14

arrest Richardson. 15

The same holds true for Richar dson’s malicious

- prosecution claim. Arguable probable 16
cause to charge exists when “even with distance and new information, it was not manifestly 17

unreasonable

. . . to charge.” Lowth v. Town of Cheektowaga , 82 F.3d 563, 572 (2d Cir. 1996). 18
Although Richa rdson provided a post

- arrest sworn statement to Mills suggest ing Binns and her 19
daughter lied, Binns also provided a post

- arrest statement that conflicted with Richardson’s 20

statement. Moreover, as the district court found, following Richardson’s arrest, the police “ did 21
not uncover any further exculpatory evidence beyon d” Richard son ’s own statement. App’x at 225 JA82. So we are not persuaded that this new evidence rendered the individual Defendants’ 1
charging decision “manifestly unreasonable” under the circumstances. Lowth , 82 F.3d at 572. 2
Defendants thus had arguable pr obable cause to charge Richardson, so they are entitled to qualified 3
immunity

. 4

T he individual Defendants did not waive qualified immunity when they testified at 5
Richardson’s criminal trial. Richardson failed to raise this argument below, so we deem it 6

fo rfeited on appeal

. See United States v. Graham , 51 F.4th 67, 79

– 80 (2d Cir. 2022). In any 7

event, Richardson’s invocation of Ricciuti v. N.Y.C. Transit Auth ority , 124 F.3d 123 (2d Cir. 1997), 8

is misguided . In that case, the c ourt found a genuine issue of material fact as to whether a 9
defendant officer “knowingly fabricated and distributed a false confession to prosecutors” when 10
he “heard the content of the document in question, knew that [ the plaintiff] had not made the 11

statements attributed to him and no netheless forwarded the statement to the prosecutor’s office.” 12

Id. at 129. We held that “[w]hen a police officer creates false information likely to influence a 13
jury’s decision and forwards that information to prosecutors, he violates the accused’s 14

const itutional right to a fair trial.” Id. at 130. Here, Richardson does not raise a fabrication

- of

15

evidence or fair

- trial claim, and we are not persuaded by his contention that the officers provided 16
false testimony at his criminal trial

. Richardson points t o minor inconsistencies between the 17

officers’ and Binn s ’s trial testimony and the officers’ alleged lack of investigative rigor . This 18
falls well short of the compelling evidence of false testimony in Ricciuti and does not create a 196 genuine dispute of material fact as to the existence of arguable probable cause. So we hold that 1
the district court correctly found that the individual Defendants are entitled to qualified immunity. 2

II. Municipal Claims 3
The district court correctly gr anted summary judgment on the state

- law claims against the 4
City

. Richardson’s arguments to the contrary are unavailing. Under Conn. Gen. Stat. § 52

- 5

557n (a)(1) (A) , “a political subdivision of the state shall be liable for

. . . [t] he negligent acts or 6

omi ssions of

. . . any employee, officer or agent thereof acting within the scope of his employment 7

or official duties.” But there is a malice exception to § 52

- 557n ’s waiver of municipal immunity

. 8

Under the malice exception , a “political subdivision of the state shall not be liable” for “[a]cts or 9
omissions of any employee, officer or agent which constitute[s]

. . . malice.” Id

. § 52

- 10
557n(a)(2) (A) (emphasis added). So if we were to find that the individual Defendants acted with 11
malice by, for example, arr esting Richardson without probable cause, the City would not be liable. 12

Moreover, i n the absence of malice, all that Richardson alleges would fall under § 52

- 13

557n (a)(2)(B), which provides an other exception to § 52

- 557n’s waiver of municipal immunity 14

for “ negligent acts or omissions which require the exercise of judgment or discretion as an official 15

function.” I d. § 52

- 557n(a)(2)(B)

. 16

* * * 17

We have considered all of Richardson’s remaining arg uments and find them to be without 18

merit. For the foregoing reasons, the judgment of the district court is AFFIRMED

. 19

FOR THE COURT: 20 Catherine O ’ Hagan Wolfe, Clerk of Court 21 22