15-3252-cv Allen v. Antal, 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 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 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 14 th day of January, two thousand sixteen. PRESENT: PETER W. HALL, DEBRA ANN LIVINGSTON, Circuit Judges , NICHOLAS G. GARAUFIS, * District Judge

.

_____________________________________ K EAGAN A LLEN , Plaintiff-Appellant , v. 15-3252-cv
T ROY A NTAL , H OWARD D ORNER , T HOMAS A NGELL , E SQ ., D AVID G OODMAN , E SQ ., D EL A TWELL , D UTCHESS C OUNTY P UBLIC D EFENDER ’ S O FFICE , D UTCHESS C OUNTY , S TEVEN L EVINE , E SQ ., B RADFORD K ENDALL , Defendants-Appellees ,

* Judge Nicholas G. Garaufis, of the United States District Court for the Eastern District of New York, sitting by designation.2 S TEVEN R OSENBLUM , M ARIO D AVILA , T ERESA B URGESS , L ISA S MITHWICK , D EIDRE B ROWN , Defendants

.

_____________________________________ For Plaintiff-Appellant: M EIR K ATZ (Robert J. Tolchin, on the brief ), The Berkman Law Office, LLC, Brooklyn, N.Y. For Defendants-Appellees: M ATTHEW W. G RIECO , Assistant Solicitor General (Steven C. Wu, Barbara D. Underwood, on the brief ), for Eric T. Schneiderman, Attorney General of the State of New York, New York, N.Y., (for Troy Antal and Howard Dorner), D ANIEL C. S TAFFORD , McCabe & Mack LLP, Poughkeepsie, N.Y. (for Thomas Angell, Esq., David Goodman, Esq., Dutchess County Public Defender’s Office, Dutchess County, Steven Levine, Esq., and Bradford Kendall), and D EL A TWELL , pro se , East Hampton, N.Y. Appeal from two judgments of the United States District Court for the Southern District of New York (Román, J .), entered September 18, 2015 and February 2, 2016. UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED

. Plaintiff-Appellant Keagan Allen appeals from two judgments of the United States District Court for the Southern District of New York (Román, J. ), one granting, with the exception of Defendant-Appellee Atwell, Defendant s-Appellees’ motions to dismiss, and the other granting Defendant-Appell ee Atwell’s motion for summary judgment. Allen argues, among other things, that the district court er red in dismissing his third amended complaint [hereinafter “Complaint”] because his various fe deral and state claims did not accrue until his state criminal conviction had been vacated, wh ich he contends occurred in August 2012. He3 further contends that the district court improperly dismissed certain claims for failure to state a claim and that his state constitutional claims should not have been dismissed because no alternative remedy exists. We assume the part ies’ familiarity with the underlying facts, procedural history, and issues on appeal. For subs tantially the same reasons as articulated by the district court, we AFFIRM both the dismissal and summary judgment decisions. This Court reviews de novo orders granting motions to dismiss. McCarthy v. Dun & Bradstreet Corp. , 482 F.3d 184, 191 (2d Cir. 2007). To survive a Rule 12(b)(6) motion, a plaintiff need plead “only enough f acts to state a claim to relief th at is plausible on its face.” Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007). Although a complaint “does not need detailed factual allegations, a plaintiff’s obligation to prov ide the ‘grounds’ of his ‘e ntitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. at 555 (citations omitted) (quoting Fed. R. Civ. P. 8(a)(2)). Likewise, we review grants of summary judgment de novo

. McBride v. BIC Consumer Prods. Mfg. Co. , 583 F.3d 92, 96 (2d Cir. 2009). This Cour t will affirm a grant of summary judgment “only where, construing all the evidence in the light most favorable to the non-movant and drawing all reasonable inferenc es in that party’s favor, ‘there is no genuine issue as to any material fact and . . . the movant is entit led to judgment as a matter of law.’” Id . at 96 (omission in original) (quoting Fed. R. Civ. P. 56(c)). A. Claims Against State Defendants i. Federal claims

a. Statute of limitations With the exception of Allen’s malicious pr osecution and abuse of process claims, see infra , his federal claims for false imprisonment, fals e arrest, illegal search and seizure, assault4 and battery, and conspiracy were properly dism issed as time-barred. Claims brought pursuant to 42 U.S.C. § 1983 and § 1985 must be filed within th ree years of the date on which such claims

accrue. Milan v. Wetheimer , 808 F.3d 961, 963 (2d Cir. 2015); Cornwell v. Robinson , 23 F.3d 694, 703 (2d Cir. 1994). The standard rule is that accrual occurs when the plaintiff has “a complete and present cause of action, that is, when the plaintiff can file suit and obtain relief.” Wallace v. Kato , 549 U.S. 384, 388 (2007) (citations omitted) (quoting Bay Area Laundry & Dry Cleaning Pension Trust Fund v. Ferbar Corp. of Cal., Inc ., 522 U.S. 192, 201 (1997)); see also Singleton v. City of New York , 632 F.2d 185, 191 (2d Cir. 1980) (f ederal claims accrue at “a point in time when the plaintiff knows or has reason to know of the injury which is the basis of his action”). Because the alleged illegal search and seizure, arrest, and arraignment all occurred on June 22, 2007, Allen’s November 2012 Complaint fall s well outside the three-year time limit. His federal claims for false imprisonment, false arrest, illegal search and seizure, assault and battery, and conspiracy were therefore properly dismissed.
b. Failure to state a claim Allen’s malicious prosecution claim was pr operly dismissed because probable cause existed for his arrest. “‘The existence of proba ble cause is a complete defense to a claim of malicious prosecution in New York,’ and ‘indictme nt by a grand jury creates a presumption of probable cause.’” Manganiello v. City of New York , 612 F.3d 149, 161–62 (2d Cir. 2010) (citation omitted) (quoting Savino v. City of New York , 331 F.3d 63, 72 (2d Cir. 2003)). “That presumption may be rebutted only ‘by evidence that the indictment was procured by fraud, perjury, the suppression of evidence or othe r police conduct undertaken in bad faith.’” Id. (quoting Savino , 331 F.3d at 72).5 Here, the district court was correct to dism iss Allen’s malicious prosecution claim. Despite it later being determined by the Appellat e Division that the initial stop and search of Allen’s vehicle was unlawful, at the time pr osecution was initiated there was undoubtedly probable cause to believe Allen was in criminal possess ion of a weapon. See N.Y. Penal Law § 265.03. Indeed, an unlicensed weapon with loose ammunition was found in Allen’s car. Moreover, because Allen was indicted by a grand jury, probable cause to prosecute is presumed. See Manganiello , 612 F.3d at 162. Nothing in Allen’s Comp laint even attempts to rebut this presumption, and Allen advances no argum ent to that effect on appeal. Allen’s abuse of process claim was also prope rly dismissed because he failed to plausibly allege that his prosecution was initiated based on an improper purpose. In New York, “[a] malicious motive alone . . . does not give rise to a cause of action for abuse of process.” Savino , 331 F.3d at 77 (alteration in original) (quoting Curiano v. Suozzi , 63 N.Y.2d 113, 117 (1984)). “In order to state a claim for abuse of process, a plaintiff must establis h that the defendants had an improper purpose in instigating the action.” Id

. A plaintiff alleging abuse of process must claim that the defendants “aimed to achieve a collateral purpose beyond or in addition to his criminal prosecution.” Id. Allen’s Complaint fails sufficiently to assert any such purpose and thus fails to plead plausibly a claim for abuse of process. ii. State constitutional claims Allen’s claims brought under the New York Stat e Constitution were properly dismissed. The New York State Constitution provides a private right of action where remedies are otherwise unavailable at common law or under § 1983. See Brown v. State of New York , 89 N.Y.2d 172, 192 (1996) (recognizing “narrow remedy” for a c onstitutional tort claim brought under the State Constitution where a plaintiff otherwise has no available remedy). Because alternative remedies6 were available under § 1983 and common law he re, however, the district court properly dismissed Allen’s state constitutional claims. iii. State-law claims Allen’s state-law claims for false arrest, fals e imprisonment, and assault and battery were likewise properly dismissed as barred by the appli cable statute of limitations . Allen’s assault and battery claims accrued on June 22, 2007, and his false arrest and false imprisonment claims accrued when he was released from prison in September 2010. See Bellissimo v. Mitchell , 122 A.D.3d 560, 560 (2d Dep’t 2014); Bennett v. City of New York , 204 A.D.2d 587, 587 (2d Dep’t 1994). All are barred by the applic able one-year statute of limitati ons. N.Y. C.P.L.R. § 215(3). Allen also fails to state a claim for malicious prosecution and abuse of process under New York law for the same reasons these claims failed when asserted under § 1983. See supra

. Further, though not specifically addressed by the district co urt, Allen’s defamation claim is also barred by the statute of limitations. An action for libel or slander under New York law must be brought within one year from the date the offending material is first published. N.Y. C.P.L.R. § 215(3); Nussenzweig v. diCorcia , 9 N.Y.3d 184, 188 (2007). New York courts generally apply the “sin gle publication rule.” Nussenzweig , 9 N.Y.3d at 188. Here, because the publishing event giving rise to Allen’s defama tion claim occurred no later than February 2008, more than a year before Allen commenced this action, his claims are time-barred.
B. Claims Against County Defendants i. Individual county defendants Allen’s federal claims agains t the individual county defenda nts were properly dismissed because Allen failed to allege their “perso nal involvement” in his false arrest, false imprisonment, illegal search and seizure, ma licious prosecution, abuse of process, unjust7 conviction, and assault and battery claims. “It is well settled in this Circuit that ‘personal involvement of defendants in allege d constitutional deprivations is a prerequisite to an award of damages under § 1983.’” Wright v. Smith , 21 F.3d 496, 501 (2d Cir. 1994) (quoting Moffit v. Town of Brookfield , 950 F.2d 880, 885 (2d Cir. 1991)). Moreover, “when monetary damages are sought under § 1983, the ge neral doctrine of respondeat superior does not suffice and a showing of some personal responsibility of the defendant is required.” Johnson v. Glick , 481 F.2d 1028, 1034 (2d Cir. 1973). Allen’s complaint is de void of any facts suggesting the personal involvement of any county defendants in the acts th at form the basis of his federal claims. The district court properly dismissed those claims against the individual county defendants. Additionally, the district court correctly dismissed Allen’s negligence claim against County Clerk Kendall on the groun d that Allen failed to comply with New York’s notice of claim requirements. See N.Y. Gen. Mun. Law § 50-e (“In any case founded upon tort” against a public corporation a notice of claim sha ll be served “within [90] days after the claim arises”). A negligence claim accrues when an injury is sustained. Kronos, Inc. v. AVX Corp. , 81 N.Y.2d 90, 94 (1993). Allen’s negligence cla im therefore accrued at the latest when he failed his drug test and was re-incarcerated on February 29, 2012. Because Allen did not file a notice of claim until September 24, 2012, his claim was barred. 1
Allen’s New York State constitutional claims against the County Defendants are also dismissed for the same reason as those claims against the State Defendants: there were alternative remedies available.

1 We conclude that Allen was required to file a notice of claim for his claims against the individual county defendants unde r N.Y. Gen. Mun. Law § 50-e(1).8 ii. Dutchess County The district court also dismissed Allen’s cl aims against Dutchess County for failure to

state a Monell claim for municipal liability. To stat e such a claim a plaintiff must first demonstrate “the existence of a municipal po licy or custom in order to show that the municipality took some action that caused his injuries beyond merely employing the misbehaving officer.” Vippolis v. Village of Haverstraw , 768 F.2d 40, 44 (2d Cir. 1985). And, “[s]econd, the plaintiff must establish a causa l connection—an ‘affirmative link’—between the policy and the deprivation of his constitutional rights.” Id. (quoting Okla. City v. Tuttle , 471 U.S. 808, 823 (1985)). Allen has failed to plead plausi bly the existence of an offici al municipal policy or custom that resulted in the deprivation of his constitutional rights. In a conclusory manner, Allen alleges that the county defendants—his attorneys—abandone d him and failed to act, which resulted in his unjust confinement. A bare allegation of this sort cannot su ffice to demonstrate a sanctioned policy or custom of a government entity caused Allen’s alleged injuries. iii. Conspiracy claim The district court properly di smissed Allen’s conspiracy claim under 42 U.S.C. § 1985 against the county defendants. “In order to ma intain an action under S ection 1985, a plaintiff ‘must provide some factual basis supporting a mee ting of the minds, such that defendants entered into an agreement, express or tac it, to achieve the unlawful end.’” Webb v. Goord , 340 F.3d 105, 110 (2d Cir. 2003) (quoting Romer v. Morgenthau , 119 F. Supp. 2d 346, 363 (S.D.N.Y. 2000)). “A complaint containing only conclusory, vague, or general allegations of conspiracy to deprive a person of constitutional rights can not withstand a motion to dismiss.” Leon v. Murphy , 988 F.2d 303, 311 (2d Cir. 1993) (quoting Sommer v. Dixon , 709 F.2d 173, 175 (2d Cir. 1983) (per9 curiam)). Because Allen’s asser tions that the county defendants conspired to abandon him and keep him in confinement are vague at best, his Complaint fails to state a claim cognizable under § 1985. iv. Legal malpractice claim Finally, Allen contends the district court improperly dismissed as untimely his legal malpractice claim against the Dutchess County P ublic Defender’s Office, Angell, Goodman, and Levine. Under New York law, a claim for le gal malpractice in the context of criminal proceedings accrues when the indictment is dismissed. Britt v. Legal Aid Soc’y , 95 N.Y.2d 443, 445 (N.Y. 2000). Because the indictment was dism issed by the New York Appellate Division on November 1, 2011, see People v. Allen , 89 A.D.3d 742, 743–44 (2d Dep’t 2011), his notice of claim on September 24, 2012 was untimely. See N.Y. Gen. Mun. Law § 50-e. C. Claims Against Del Atwell Last, we are not persuaded that the district court erred in granting summary judgment in favor of attorney Atwell. To make out a claim for legal malpra ctice, Allen must demonstrate “that [Atwell] was negligent, that the negligence was a proximate cause of the injury and that [Allen] suffered actual a nd ascertainable damages.” Rubens v. Mason , 387 F.3d 183, 189 (2d Cir. 2004). “In order to estab lish the elements of proximate cause and actual damages in a malpractice case, the plaintiff must show that but for the attorney’s negl igence, what would have been a favorable outcome was an unfavorable outcome.” Zarin v. Reid & Priest , 184 A.D.2d 385, 386 (1st Dep’t 1992). Summary judgment is appropriate where the record “demonstrates that an intervening cause was responsible for the injury.” Brooks v. Lewin , 21 A.D.3d 731, 734 (1st Dep’t 2005); see also Kush by Marszalek v. City of Buffalo , 59 N.Y.2d 26, 32–33 (1983) (“An intervening act will be deemed a supersedi ng cause and will serve to relieve defendant of10 liability when the act is of such an extraordinary nature or so attenuates defendant’s negligence from the ultimate injury that re sponsibility for the inju ry may not be reasonably attributed to the defendant.”). Here, we agree with the district court that the r ecord unquestionably demonstrates that the failure of the County Clerk, Kendall, to notify the New York Department of Corrections and Community Services that Allen’s convictio n had been vacated constitutes an intervening cause of Allen’s extended prison stay, absolving Atwell of any liability. We have considered Allen’s remaining conten tions on appeal and have determined they are without merit. For the reasons stated above, the dist rict court's judgments are AFFIRMED

. FOR THE COURT: Catherine O’Hagan Wolfe, Clerk