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 NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY 

ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 

1 At a stated term of the United States Court of Appeals for the Second Circuit, 

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

New York, on the 27th 3 day of April, two thousand twenty-three.

4

5 PRESENT:

6 GUIDO CALABRESI,

7 MICHAEL H. PARK,

8 EUNICE C. LEE,

9 Circuit Judges.

10 _____________________________________

11

12 Jewu Richardson,

13

14 Plaintiff-Appellant,

15

16 v. 22-582

17

18 James McMahon, City of Waterbury, 

19 Edward Mills, Juan Rivera,

Defendants-Appellees.

* 20

21 _____________________________________

22

23 FOR PLAINTIFF-APPELLANT: ALEXANDER T. TAUBES, New 

24 Haven, CT.

25

26 FOR DEFENDANTS-APPELLEES: JOSEPH A. MENGACCI (Daniel 

27 J. Foster, on the brief), City 

28 of Waterbury, Office of the 

29 Corporation Counsel, 

30 Waterbury, CT.

* The Clerk is respectfully directed to amend the caption accordingly.
2

1 Appeal from a judgment of the United States District Court for the District of Connecticut

2 (Hall, J.).

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

4 DECREED that the judgment of the district court is AFFIRMED. 

5 Plaintiff-Appellant Jewu Richardson appeals from the district court’s grant of Defendants6 Appellees’ motion for summary judgment. Richardson brought false-arrest and malicious7 prosecution claims under 42 U.S.C. § 1983 and Connecticut law against the City of Waterbury

8 (the “City”) and three Waterbury Police Department officers (James McMahon, Juan Rivera, and 

9 Edward Mills) (collectively, “Defendants”). The district court granted Defendants’ motion for 

10 summary judgment, concluding that (1) Richardson’s federal claims for false arrest and malicious 

11 prosecution are barred by qualified immunity, and (2) Richardson’s claims against the City fail 

12 because they are contingent on the federal claims. Richardson challenges both aspects of the 

13 district court’s ruling. We assume the parties’ familiarity with the underlying facts, the procedural 

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

15 “We review de novo a district court’s decision to grant summary judgment, construing the 

16 evidence in the light most favorable to the party against whom summary judgment was granted 

17 and drawing all reasonable inferences in that party’s favor.” Bey v. City of New York, 999 F.3d 

18 157, 164 (2d Cir. 2021).

19 I. Qualified Immunity

20 The district court correctly granted summary judgment on Richardson’s false-arrest and 

21 malicious-prosecution claims based on qualified immunity. Qualified immunity “shields police 
3

1 officers acting in their official capacity from suits for damages unless their actions violate clearly2 established rights of which an objectively reasonable official would have known.” McKinney v. 

3 City of Middletown, 49 F.4th 730, 738 (2d Cir. 2022) (quoting Jones v. Parmley, 465 F.3d 46, 55 

4 (2d Cir. 2006) (ellipses omitted)). “When a defendant moves for summary judgment based on 

5 qualified immunity,” we apply a two-prong test: (1) “whether the facts shown make out a violation 

6 of a constitutional right,” and (2) “whether the right at issue was clearly established at the time of

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

8 order. See Pearson v. Callahan, 555 U.S. 223, 236 (2009). A right is “clearly established” if the 

9 “contours of the right [are] sufficiently clear that a reasonable official would understand that what 

10 he is doing violates that right.” Taravella v. Town of Wolcott, 599 F.3d 129, 133 (2d Cir. 2010). 

11 “Probable cause is a complete defense to a constitutional claim of false arrest . . . [a]nd 

12 continuing probable cause is a complete defense to . . . malicious prosecution.” Betts v. 

13 Shearman, 751 F.3d 78, 82 (2d Cir. 2014). In the false-arrest and malicious-prosecution contexts, 

14 “qualified immunity protects an officer if he had arguable probable cause to arrest the plaintiff.” 

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

16 omitted); see Betts, 751 F.3d at 82–83. “Arguable probable cause exists if either (a) it was 

17 objectively reasonable for the officer to believe that probable cause existed, or (b) officers of 

18 reasonable competence could disagree on whether the probable cause test was met.” Myers, 819 

19 F.3d at 633 (citation omitted). 

20 The district court correctly determined the individual Defendants had arguable probable 

21 cause to arrest and prosecute Richardson. Based on several undisputed facts, an “officer of 

22 reasonable competence” in McMahon’s and Rivera’s positions “could have made the same choice” 
4

1 to arrest Richardson. Id. (citation omitted). The officers received statements from Candice 

2 Binns and her daughter (an alleged eyewitness) suggesting that Richardson assaulted Binns. 

3 Richardson presents no evidence beyond speculation that the two statements were coordinated. It 

4 is undisputed that Rivera observed that “Binns appeared disheveled”; “her face, neck and shirt 

5 were a little wet”; McMahon “noticed the floor [of Binns’s apartment] was wet”; and Binns “was 

6 cleaning up before Officers McMahon and Rivera arrived as there was stuff in the trash.” Plaintiff 

7 Jewu Richardson’s Local Rule 56(A) Statement of Facts in Opposition to Summary Judgment at 

8 10, Richardson v. City of Waterbury, 19-cv-707 (D. Conn. Sept. 3, 2021), ECF 54-2 (“Rule 56 

9 Statement”). Moreover, in his Rule 56 Statement, Richardson did not dispute that “Binns may 

10 have stated . . . to McMahon” that Richardson “began to yell at her[,] pushed her around the 

11 kitchen,” and “pushed her against the sink, put his hands on her throat and began to choke her, 

12 turned on the sink and was pouring water on her face.” Id. at 7. Under the circumstances, it was 

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

14 Richardson for assault. Myers, 819 F.3d at 633. So Defendants had arguable probable cause to 

15 arrest Richardson.

16 The same holds true for Richardson’s malicious-prosecution claim. Arguable probable 

17 cause to charge exists when “even with distance and new information, it was not manifestly 

18 unreasonable . . . to charge.” Lowth v. Town of Cheektowaga, 82 F.3d 563, 572 (2d Cir. 1996). 

19 Although Richardson provided a post-arrest sworn statement to Mills suggesting Binns and her 

20 daughter lied, Binns also provided a post-arrest statement that conflicted with Richardson’s 

21 statement. Moreover, as the district court found, following Richardson’s arrest, the police “did 

22 not uncover any further exculpatory evidence beyond” Richardson’s own statement. App’x at 
5

1 JA82. So we are not persuaded that this new evidence rendered the individual Defendants’ 

2 charging decision “manifestly unreasonable” under the circumstances. Lowth, 82 F.3d at 572. 

3 Defendants thus had arguable probable cause to charge Richardson, so they are entitled to qualified 

4 immunity.

5 The individual Defendants did not waive qualified immunity when they testified at 

6 Richardson’s criminal trial. Richardson failed to raise this argument below, so we deem it 

7 forfeited on appeal. See United States v. Graham, 51 F.4th 67, 79–80 (2d Cir. 2022). In any 

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

9 is misguided. In that case, the court found a genuine issue of material fact as to whether a 

10 defendant officer “knowingly fabricated and distributed a false confession to prosecutors” when 

11 he “heard the content of the document in question, knew that [the plaintiff] had not made the 

12 statements attributed to him and nonetheless forwarded the statement to the prosecutor’s office.” 

13 Id. at 129. We held that “[w]hen a police officer creates false information likely to influence a 

14 jury’s decision and forwards that information to prosecutors, he violates the accused’s 

15 constitutional right to a fair trial.” Id. at 130. Here, Richardson does not raise a fabrication-of16 evidence or fair-trial claim, and we are not persuaded by his contention that the officers provided 

17 false testimony at his criminal trial. Richardson points to minor inconsistencies between the 

18 officers’ and Binns’s trial testimony and the officers’ alleged lack of investigative rigor. This 

19 falls well short of the compelling evidence of false testimony in Ricciuti and does not create a 
6

1 genuine dispute of material fact as to the existence of arguable probable cause. So we hold that 

2 the district court correctly found that the individual Defendants are entitled to qualified immunity.

3 II. Municipal Claims

4 The district court correctly granted summary judgment on the state-law claims against the 

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

6 557n(a)(1)(A), “a political subdivision of the state shall be liable for . . . [t]he negligent acts or 

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

8 or official duties.” But there is a malice exception to § 52-557n’s waiver of municipal immunity. 

9 Under the malice exception, a “political subdivision of the state shall not be liable” for “[a]cts or 

10 omissions of any employee, officer or agent which constitute[s] . . . malice.” Id. § 52-

11 557n(a)(2)(A) (emphasis added). So if we were to find that the individual Defendants acted with 

12 malice by, for example, arresting Richardson without probable cause, the City would not be liable. 

13 Moreover, in the absence of malice, all that Richardson alleges would fall under § 52-

14 557n(a)(2)(B), which provides another exception to § 52-557n’s waiver of municipal immunity

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

16 function.” Id. § 52-557n(a)(2)(B).

17 * * *

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

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

20 FOR THE COURT: 

21 Catherine O’Hagan Wolfe, Clerk of Court

22