13-4373-cv Jones 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 JA NUARY 1, 2007, IS PE RMITTED AND IS GOVERNE D 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 (W ITH THE NOTATION A 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 at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 4 th day of March, two thousand fifteen. PRESENT: ROBERT A. KATZMANN, Chief Judge , PIERRE N. LEVAL, PETER W. HALL, Circuit Judges.

_____________________________________ Javier Jones, Plaintiff-Appellant , v. No. 13-4373-cv City of New York, Police Officer David Rodriguez, Shield # 13333, Police Officer Alvaro Contreras, Shield # 12311, Sergeant Patrick Golden, Shield # 2491, Defendants-Appellees , John Doe and Jane Doe #1-4, Detective Pierce, Defendants.

_____________________________________ FOR PLAINTIFF-APPELLANT: Ugochukwu Uzoh, Brooklyn, NY.2 FOR DEFENDANTS-APPELLEES: Fay Ng (Pamela Seider Dolgow, on the brief), for Zachary W. Carter, Corporation Counsel of the City of New York, New York, NY. Appeal from a judgment of the United States Di strict Court for the Eastern District of New York (Gleeson, J .). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is VACATED and the case is REMANDED for further proceedings consistent with this order. Plaintiff Javier Jones appeals from the distri ct court’s grant of summa ry judgment in his 42 U.S.C. § 1983 action against Defendants-Appelle es City of New York, Police Officer David Rodriguez, Police Officer Alvaro Contreras, and Sergeant Patrick Golden. We assume the parties’ familiarity with the underlying facts, the procedural hi story of the case, and the issues on appeal. We review a grant of summar y judgment de novo, viewing th e facts “in the light most favorable to the non-moving party and draw[ing] all reasonable inferences in that party’s favor.” Cox v. Warwick Valley Cent. Sch. Dist. , 654 F.3d 267, 271 (2d Cir. 2011). Summary judgment is appropriate where “there is no genu ine dispute as to any material fa ct and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a ). Summary judgment mu st be denied “if the

evidence is such that a reas onable jury could return a verd ict for the nonmoving party.” Abdu– Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 465 (2d Cir. 2001) (internal quotation marks omitted); see also Fabrikant v. French , 691 F.3d 193, 215 n.18 (2d Cir. 2012) (“If the evidence submitted with the summary judgment motion fails to meet the movant’s burden of production,3 then summary judgment must be denied even if no opposing evidentiary matter is presented. ” (internal quotation marks omitted)). Jones’s § 1983 action arises from his arrest in connection with an incident at a liquor store

near the intersection of Flat bush and Caton Avenues in Brookl yn, New York, on January 24, 2012. On that date, Raymond Faloye and Latique Gibbs were inside the liquor store when Frantz Machon began a conversation with Gibbs, insisting that he knew her. Machon was present at the liquor store with Owen Welch and another individual alleged to have been Jones. When Gibbs denied knowing Machon, Machon became upset and Faloye told Machon to leave Gibbs alone. Machon then lifted his shirt and revealed what ap peared to be a firearm; Faloye called 911. Rodriguez’s first contact with Jones was at th e precinct, after Jones had been arrested by

another officer for the crime Fal oye had reported. Rodriguez, one of the officers who initially responded to Faloye’s 911 call, wrote up Jones’s arrest report and forwar ded the report to the Kings County District Attorney’s Office. Rodrigu ez also informed that Office that Contreras had conducted a show-up at which Faloye and Gibbs id entified Jones as being present in the liquor

store with Machon and Welch. Contreras made no mention in his deposition of having been involved in such a show-up. Rodriguez executed the criminal complaint, which charged Jones with menacing in the second degr ee, menacing in the third degree, and harassment in the second degree and asserted that Faloye had identifie d Jones as one of the men who menaced him. 1 Rodriguez also testified at his deposition that, du ring his interview with Faloye at the precinct, Faloye told Rodriguez that Jone s was standing next to Machon when Machon displayed a firearm. Faloye and Jones were strangers to each other, and Faloye was not show n any photographs of

1 This same assertion was contained in Rodriguez’s arrest report, which charged Jones with criminal possession of a weapon in the second degree an d menacing in the second degree.4 Jones at the time. The record also contains no evidence suggesting that Faloye knew Jones’s name or was familiar with Jones in any way except for the alleged show-up, the actual occurrence of which is in dispute. On this record, we find that reasonable minds could differ about whether there was a genuine issue of material fact as to whether R odriguez had probable cause to further detain Jones and initiate the criminal complaint because R odriguez did not say where and when Faloye (or Gibbs) identified Jones, and neither side undertook, by further questioning at Rodriguez’s deposition (or otherwise), to fill this gap. In our view, the record should be further developed (to the extent possible) before addressing the question of whether a material issue of fact remains. We therefore vacate the grant of summary judgmen t and remand for the district court to allow additional discovery and submission of further ev idence on the basis for R odriguez’s assertion in the criminal complaint that he was informed by Fa loye that Jones was pres ent with Machon at the incident in the liquor store, a nd on Rodriguez’s unders tanding as to where and when Faloye saw Jones so as to identify him (as well as what was the basis for that understanding). Following further development of these issues, the district court is at liberty to entertain a new motion for summary judgment. If the district court rein states summary judgment, it should explain with specificity the basis upon which it concludes that there is no genuine issue of material fact as to probable cause. In light of our decision to vacate the grant of summary judgment a nd remand for additional discovery, we note the potential for further development of the record with respect to Jones’s claim for municipal liability under Monell v. Dep’t of Social Servs. , 436 U.S. 658 (1978). Although Rodriguez testified at his deposition that the New York City Police Department does not have an5 official policy of charging all members of a group with criminal possession of a weapon when only one group member is alleged to ha ve possessed a firearm, Rodriguez did testify, “That is what we do.” J.A. at 181-82. Rodriguez’s testimony, ther efore, could support a finding of custom or policy under Monell . The district court may wish to further explore this issue on remand.

We VACATE the judgment of the district court and REMAND the case for further proceedings consistent with this order.

FOR THE COURT: Catherine O = Hagan Wolfe, Clerk