13

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John Betts v. Martha Anne Shearman, et al.

1 

## In the



# United States Court of Appeals

**For the Second Circuit**

________

A UGUST T ERM

, 2013

A RGUED : S EPTEMBER 19, 2013

D ECIDED : M AY 2, 2014

No. 13

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‐ cv

J OHN B ETTS

, Plaintiff

‐ Appellant,

v.

M ARTHA A NNE S HEARMAN

, C ITY OF N EW Y ORK

, P OLICE O FFICER

P ABLO R ODRIGUEZ

, Defendants

‐ Appellees,

P OLICE O FFICER J ANE D OE

, Defendant.

________

Before: W INTER

, W ALKER

, W ESLEY

, Circuit Judges

.

________

Plaintiff John Betts filed this suit seeking damages under 42

U.S.C. § 1983 arising from his arrest based on allegedly false

accusations made by a complaining victim. The United States13

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John Betts v. Martha Anne Shearman, et al.

2 District Court for the Southern District of New York (J. Paul Oetken,

District Judge ) granted defendants’ motions to dismiss the complaint.

We hold, first, that because arguable probable cause existed to

arrest Betts, his claims for false arrest, false imprisonment, abuse of

process, and malicious prosecution were properly dismissed.

Second, we hold that Betts’s claim for denial of his right to a fair trial

was properly dismissed because he failed to meet the required

pleading standards. Finally, we hold that Betts’s claims against

defendant

‐ complainant Martha Anne Shearman were properly

dismissed because she did not act under the color of state law.

Accordingly, we AFFIRM the judgment of the district court.

M ICHAEL H. J OSEPH

, Law Office of Michael H.

Joeseph, P.L.L.C., White Plains, NY, for Plaintiff

Appellant

.

M ICHAEL J. P ASTOR

, (Kristen M. Helmers, on the

brief ), for Zachary W. Carter, Corporation

Counsel of the City of New York, New York, NY,

for Defendants

‐ Appellees City of New York and Police

Officer Pablo Rodriguez

.

C HARLES E. D ORKEY

, III, McKenna Long &

Aldridge LLP, New York, NY (Rebecca Tingey, on13

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John Betts v. Martha Anne Shearman, et al.

3 the brief ), for Defendant

‐ Appellee Martha Anne

Shearman

.

________

J OHN M. W ALKER

, J R

., Circuit Judge :

In this appeal we consider whether the United States District

Court for the Southern District of New York (J. Paul Oetken, District

Judge ) erred in granting defendants’ motions to dismiss the

complaint in this 42 U.S.C. § 1983 action in which the plaintiff seeks

damages arising from his arrest based on allegedly false accusations

made by a complaining victim.

We hold, first, that because arguable probable cause existed to

arrest Betts, his claims for false arrest, false imprisonment, abuse of

process, and malicious prosecution were properly dismissed.

Second, we hold that Betts’s claim for denial of his right to a fair trial

was properly dismissed because he failed to meet the required

pleading standards. Finally, we hold that Betts’s claims against

defendant

‐ complainant Martha Anne Shearman were properly13

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John Betts v. Martha Anne Shearman, et al.

4 dismissed because she did not act under the color of state law.

Accordingly, we AFFIRM the judgment of the district court.

BACKGROUND

Because this appeal arises from the district court’s dismissal

on the pleadings pursuant to Rule 12(b)(6), we accept as true the

following allegations set forth in Betts’s complaint. See Doe v. City of

New York

, 15 F.3d 264, 266 (2d Cir. 1994).

On January 20, 2011 at approximately 11:30 p.m., while

Shearman was under the influence of alcohol and other controlled

substances, she became verbally combative towards her then

husband Betts. To avoid her, Betts locked himself in a spare

bedroom. Shearman tried to force her way in and threatened Betts

that if he did not let her in, she would call the police. Shearman then

called the police and falsely accused Betts of assaulting her.

At approximately 1:00 a.m., Police Officers Rodriguez and

Doe responded to the call. In their presence, Shearman accused Betts

of assault, harassment, and of slamming her arm against the ground,13

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John Betts v. Martha Anne Shearman, et al.

5 causing her substantial pain. The officers forcibly entered the spare

bedroom where Betts was sleeping and arrested him.

Betts alleges that the officers then assisted Shearman in

making a false accusation and coached her in fabricating a version of

the events to justify the arrest. Betts also alleges there were reasons

for the officers to doubt Shearman’s credibility: Shearman was

obviously intoxicated, high, and appeared strung out; she had made

false accusations against Betts in the past; and there was a lack of

physical evidence to support an assault charge.

The officers charged Betts under New York law with assault

in the third degree, harassment in the second degree and resisting

arrest. Eventually the state court dismissed these charges with

prejudice.

In April 2012, Betts filed a complaint in the district court

against Shearman, Officers Rodriguez and Doe, and the City of New

York. Betts brought claims against Officers Rodriguez and Doe for

constitutional violations under 42 U.S.C. § 1983 and state law13

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John Betts v. Martha Anne Shearman, et al.

6 violations for false arrest, malicious prosecution, abuse of process,

prima facie tort, and intentional infliction of emotional distress. His

claimed constitutional violations against Shearman alleged that she

was a “state actor” for purposes of § 1983. Betts also brought a claim

under Monell v. Department of Social Services

, 436 U.S. 658, 690

‐ 91

(1978), against the City of New York for allegedly having a “custom,

policy, and practice” that permitted the constitutional violations.

On January 24, 2013, the district court granted the defendants’

motions to dismiss. Betts v. Shearman

, No. 12

‐ cv

‐ 3195(JPO), 2013 WL

311124 (S.D.N.Y. Jan. 24, 2013). The district court held that Officers

Rodriguez and Doe were entitled to qualified immunity on Betts’s

claims for false arrest, false imprisonment, and malicious

prosecution because the officers had “arguable probable cause” to

arrest Betts. Id

. at *9

‐ 10, *12. The district court also dismissed Betts’s

claim for excessive force on the basis that he failed to meet the

required pleading standards by alleging nothing more than that his

shoulder was somehow injured during the arrest. Id. at *10

‐ 11. The13

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7 district court dismissed the abuse of process claim for failing to

plead a “nefarious aim” behind his prosecution, id

. at *12, and the

fair trial claim on the basis that the allegations were implausible, id.

at *13. The district court dismissed Betts’s § 1983 claims against

Shearman because she was not a state actor and the pleadings were

insufficient to establish that Shearman conspired with the officers or

participated willfully in joint activity with them. Id. at *13

‐ 14. And

finally, the district court dismissed Betts’s claim against the City of

New York because Betts’s allegations that the officers acted in

accordance with a City custom, policy, or practice were conclusory.

Id

. at *16.

The district court dismissed all of the federal claims with

prejudice except Betts’s excessive force claim against Officer

Rodriguez, which was dismissed without prejudice. Id

. The district

court declined to exercise supplemental jurisdiction over Betts’s

state law claims. Id

.13

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John Betts v. Martha Anne Shearman, et al.

8 DISCUSSION

Betts does not appeal the dismissal of his excessive force

claim, his claim against the City of New York, or his claims against

Officer Doe. Rather, Betts urges this court to reverse the dismissal of

the other claims. We hold that the district court neither erred in

granting defendants’ motions to dismiss nor abused its discretion in

denying Betts leave to replead.

I. Dismissal of Betts’s Claims

We review a district court’s dismissal of a complaint under

Fed. R. Civ. P. 12(b)(6) de novo and, in doing so, we “view the

pleadings in the light most favorable to, and draw all reasonable

inference in favor of, the non

‐ moving party.” Doe

, 15 F.3d at 266

(internal quotation marks omitted).

A. False Arrest, False Imprisonment, and Malicious

Prosecution

Probable cause is a complete defense to a constitutional claim

of false arrest, Singer v. Fulton Cnty. Sheriff

, 63 F.3d 110, 118 (2d Cir.

1995), and false imprisonment, Zanghi v. Vill. of Old Brookville

, 75213

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John Betts v. Martha Anne Shearman, et al.

9 F.2d 42, 45 (2d Cir. 1985). And continuing probable cause is a

complete defense to a constitutional claim of malicious prosecution.

Kinzer v. Jackson

, 316 F.3d 139, 143

‐ 44 (2d Cir. 2003) (stating that

probable cause is a defense to a claim of malicious prosecution if it is

not later nullified by information establishing the defendant’s

innocence). “Probable cause exists when one has knowledge of, or

reasonably trustworthy information as to, facts and circumstances

that are sufficient to warrant a person of reasonable caution in the

belief that an offense has been or is being committed by the person

to be arrested.” Williams v. Town of Greenburgh

, 535 F.3d 71, 79 (2d

Cir. 2008) (internal quotation marks and alterations omitted).

More specifically, probable cause exists if a law enforcement

officer “received [] information from some person, normally the

putative victim or eyewitness, unless the circumstances raise doubt

as to the person’s veracity. The reliability or veracity of the

informant and the basis for the informant’s knowledge are two13

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10 important factors.” Panetta v. Crowley

, 460 F.3d 388, 395 (2d Cir.

2006) (internal quotation marks and citations omitted).

Even in the absence of probable cause, a police officer is

entitled to qualified immunity where “(1) [her] conduct does not

violate clearly established statutory or constitutional rights of which

a reasonable person would have known, or (2) it was ‘objectively

reasonable’ for [her] to believe that [her] actions were lawful at the

time of the challenged act.” Jenkins v. City of New York

, 478 F.3d 76,

87 (2d Cir. 2007) (internal quotation marks and citations omitted).

Plaintiff’s false arrest, false imprisonment, and malicious

prosecution claims therefore turn on whether the defendant officers’

probable cause determination was objectively reasonable—that is,

whether there was “arguable” probable cause to arrest. Id

. For the

following reasons, we agree with the district court that the arresting

officers had arguable probable cause and were entitled to qualified

immunity.13

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11 As Betts alleged in his complaint, Shearman called the police

and reported that Betts had, among other things, assaulted her. Betts

also alleged that once the officers arrived at the apartment,

Shearman again accused Betts of assault and harassment, although it

is unclear from the complaint whether Shearman made this

allegation before or after allegedly being “coached” by the officers to

lie.

In any event, Officers Rodriguez and Doe responded to a

domestic disturbance based on Shearman’s report over the phone

that she had been assaulted and found Betts locked in a bedroom.

Betts alleged, and now argues, that the officers had reason to doubt

Shearman’s credibility because she was visibly intoxicated and had

made false accusations against Betts in the past, and because there

was a lack of physical evidence to support an assault charge.

Shearman’s past false accusations, however, do not

undermine a finding of arguable probable cause because Betts

nowhere alleged that the officers knew of the prior accusations on13

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12 the night Betts was arrested. See Panetta

, 460 F.3d at 395. “When

determining whether probable cause exists courts must consider

those facts available to the officer at the time of the arrest and

immediately before it

. . . .” Id

. (quoting Caldarola v. Calabrese

, 298

F.3d 156, 162 (2d Cir. 2002). Likewise, the lack of physical evidence

of an assault on Shearman’s body is not fatal to finding arguable

probable cause when Shearman had reported that she had been

assaulted. See Krause v. Bennett

, 887 F.2d 362, 372 (2d Cir. 1989) (A

police officer’s purpose “is to apprehend those suspected of

wrongdoing, and not to finally determine guilt through a weighing

of the evidence.”).

Additionally, Betts alleges that Shearman was “obviously

intoxicated and high, in that she appeared to be strung out,” but fails

to allege any facts regarding how Officers Rodriguez and Doe

would have known this at the time Shearman made accusations

against Betts. Even assuming that the officers were aware that

Sherman was intoxicated, absent other indicia raising concerns of13

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13 reliability, the officers were not unreasonable in surmising that an

offense had been committed by Betts. And Betts’s allegations that

Shearman was coached by the officers into making false allegations

are, as discussed below, implausible.

In sum, the arresting officers had arguable probable cause to

arrest Betts because they were entitled to believe Shearman’s

accusation of assault absent credible reasons not to. Given the facts

available to the officers, it was “objectively reasonable for the

officer[s] to believe that probable cause existed.” Golino v. City of

New Haven

, 950 F.2d 864, 870 (2d Cir. 1991).

B. Right to a Fair Trial

Betts argues that the district court erred in dismissing his fair

trial claim on the basis that his allegations were insufficient to

support it. “When a police officer creates false information likely to

influence a jury’s decision and forwards that information to

prosecutors, he violates the accused’s constitutional right to a fair

trial, and the harm occasioned by such an unconscionable action is13

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14 redressable in an action for damages under 42 U.S.C. § 1983.”

Ricciuti v. N.Y.C. Transit Auth.

, 124 F.3d 123, 130 (2d Cir. 1997).

We agree with the district court that Betts’s complaint failed to

plausibly plead this claim as required by Bell Atlantic Corp. v.

Twombly

, 550 U.S. 544 (2007) and Ashcroft v. Iqbal

, 556 U.S. 662 (2009).

Factual allegations must “state a claim for relief that is plausible on

its face,” which requires pleading facts that “permit the court to infer

more than the mere possibility of misconduct.” Iqbal

, 556 U.S. at 678

(quoting Twombly

, 550 U.S. at 570), 679.

Betts alleges that Officers Rodriguez and Doe, upon arriving

at the apartment he shared with Shearman, “assisted Shearman in

making a false allegation and

. . . coached her in fabricating a

contrived version of the events to justify a baseless and false arrest.”

Betts, however, also alleges that Shearman initially phoned the

police and made the same “false” accusations that, among other

things, Betts assaulted her. The original accusation without the

possibility of any police complicity was sufficient to sustain the13

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15 arrest, thereby undermining the claim that it was the police whose

false accusation denied Betts a fair trial. Moreover, it is not plausible

that, without more, a complaining witness who had originally

conceived of false accusations on her own accord also required

“coaching” in making substantially the same accusations again.

Betts’s claim that his right to a fair trial was violated was thus

properly dismissed by the district court.

C. State Action by Shearman

Betts alleges in his complaint, and now argues on appeal, that

Shearman engaged in joint action with Officers Rodriguez and Doe

to violate Betts’s civil rights such that Shearman acted under color of

law. 1 Specifically, he argues that Shearman became a state actor by

“knowingly making false allegations and jointly acting with the

1 Betts also alleged that Shearman conspired with the officers to violate

his constitutional rights. A Section 1983 conspiracy claim is distinct from

one of joint action. See Ciambriello v. County of Nassau

, 292 F.3d 307, 324

‐ 25

(2d Cir. 2002). We conclude that the district court correctly held that Betts

failed to sufficiently plead a conspiracy, both because the pleading was

conclusory, and because, as described above in Section I.B, his allegations

that the police coached Shearman were implausible. See Betts

, 2013 WL

311124 at *14.13

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16 police defendants to fabricate a contrived version of the facts

. . . for

the purpose of having [Betts] baselessly arrested.” We disagree.

Under 42 U.S.C. § 1983, constitutional torts are only actionable

against state actors or private parties acting “under the color of”

state law. Ciambriello

, 292 F.3d at 323. We have said that a claim

against a private entity must “allege facts demonstrating that the

private entity acted in concert with the state actor to commit an

unconstitutional act.” Spear v. Town of West Hartford

, 954 F.2d 63, 68

(2d Cir. 1992). “Put differently, a private actor acts under color of

state law when the private actor ‘is a willful participant in joint

activity with the State or its agents.’” Ciambriello

, 292 F.3d at 324

(quoting Adickes v. S.H. Kress & Co.

, 398 U.S. 144, 152 (1970)).

A private actor can only be “a willful participant in joint

activity with the State or its agents” if the two share some common

goal to violate the plaintiff’s rights. See, e.g.

, Cunningham v. Southlake

Center for Mental Health, Inc.

, 924 F.2d 106, 107 (7th Cir. 1991) (“A

charge of joint action amounts to alleging some agreement between13

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17 private and public actors to violate plaintiff’s constitutional rights. A

requirement of the joint action charge therefore is that both public

and private actors share a common, unconstitutional goal.” (internal

citations omitted)); Ginsberg v. Healey Car & Truck Leasing, Inc.

, 189

F.3d 268, 272 (2d Cir. 1999).

In Ginsberg

, plaintiff Ginsberg, upon returning a truck rented

from defendant Healey Leasing, got into a verbal altercation with a

manager at Healey Leasing over whether, as Ginsberg insisted, the

two had agreed that Ginsberg’s automobile insurer would pay the

rental fee. Id

. at 270. After Ginsberg left, the Healey Leasing manager

called the police and reported the payment dispute and altercation.

Id

. The police arrived and threatened to arrest Ginsburg for larceny

or breach of peace if he did not pay the rental fee to Healey Leasing.

Id

. Ginsberg paid the fee and later sued Healey Leasing and the

police under Section 1983 alleging that he was deprived of property

without due process and that Healey Leasing, acting under color of

state law, was complicit in the deprivation. Id.13

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18 On appeal, we affirmed the district court’s grant of summary

judgment to Healey Leasing. We held that Healey Leasing’s

requesting police assistance and providing information that led to

police action did not make Healey Leasing a joint participant in state

action. Id

. at 272. “Where

. . . a police officer exercises independent

judgment in how to respond to a private party’s legitimate request

for assistance, the private party is not ‘jointly engaged’ in the

officer’s conduct so as to render it a state actor under Section 1983.”

Id

. In Ginsberg

, state action could not be inferred because, absent

“evidence that [the officer] undertook to resolve the dispute

pursuant to any agreement or plan with Healey,” id

., it could not be

shown that Healey and the officer shared a common goal of

violating Ginsberg’s rights.

The operation of this principle is illustrated by two district

court decisions that found state action complicity by a private party.

In Bang v. Utopia Restaurant

, the district court held that state action

by a restaurant owner was adequately pleaded when, absent13

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19 probable cause, the police arrested the plaintiffs after speaking to the

restaurant owner for twenty minutes. 923 F. Supp. 46, 49 (S.D.N.Y.

1996). The Bang court stated that “it would be reasonable to infer

that during the conversation, [the restaurant owner] urged the

officers to arrest both plaintiffs, without probable cause, in

furtherance of what became the shared goal of depriving plaintiffs of

federally guaranteed rights.” Id

. The court pointed out, however,

that had the officers arrested plaintiffs immediately upon arriving

on the scene based on information of illegality given over the phone,

“it would be difficult to infer joint action because

. . . it would not

appear that the officers shared the unlawful goal of [the restaurant

owner].” Id

. at 50.

Similarly, in White v. Moylan

, the district court found that the

plaintiff properly pleaded state action by two private security

guards who substituted in plaintiff’s bag unpurchased store

merchandise for goods already purchased, resulting in plaintiff’s

arrest for shoplifting. 554 F. Supp. 2d 263, 267 (D. Conn. 2008). The13

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20 plaintiff alleged that the security guards and arresting officer

reviewed surveillance footage, discovered that the plaintiff’s

merchandise was not, in fact, stolen, and worked in tandem to

“fabricate[] a reason to arrest [plaintiff] for shoplifting.” Id

. at 265,

267. Plaintiff’s complaint thus alleged that the police officer did

more than simply arrest plaintiff based on information from the

security guards. Id

. at 267. By jointly working to fabricate evidence

of a crime, the private actors and the police officer shared the

common goal of violating the plaintiff’s constitutional rights.

Here, Betts alleges that Officers Rodriguez and Doe “assisted

Sherman in making a false allegation and

. . . coached her in

fabricating a contrived version of the events to justify a baseless and

false arrest.” As explained above in Section I.B, however, Betts’s

allegation that Shearman was coached by the Officers into making

false accusations is not plausible given that Shearman first called the

police and reported that she was assaulted prior to her interaction

with the officers.13

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21 Betts’s claim against Shearman as a state actor boils down to

the fact that he was arrested upon the false accusation of assault

made against him by a private citizen to the police. This is

insufficient to state a plausible claim that Shearman and the

arresting officers shared a common goal of violating Betts’s rights.

The district court properly granted defendant Shearman’s motion to

dismiss.

II. Leave to Replead

We review a district court’s denial of leave to replead for

abuse of discretion. Williams v. Citigroup Inc.

, 659 F.3d 208, 212 (2d

Cir. 2011). Here, the district court did not abuse its discretion

because any amendment to the complaint on the claims discussed

herein would be futile. See Lucente v. Int’l Bus. Machines Corp.

, 310

F.3d 243, 258 (2d Cir. 2002).

No changes to the complaint would undermine the existence

of arguable probable cause for Officers Rodriguez and Doe to arrest

Betts. Additionally, Betts has identified no facts that, if alleged,13

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22 would bolster his allegations that the officers coached Shearman to

make false accusations. Likewise, Betts has identified no facts that

would sufficiently allege that Shearman should be treated as a state

actor for purposes of 42 U.S.C. § 1983.

CONCLUSION

For the foregoing reasons, the district court’s order is

AFFIRMED.