15-3948-cv 

Burton v. Undercover Officer, 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 

ASUMMARY 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, held at 

the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New 

York, on the 7th day of December, two thousand sixteen. 

PRESENT: GUIDO CALABRESI,

REENA RAGGI, 

GERARD E. LYNCH,

Circuit Judges. 

____________________________________________ 

EWART BURTON, 

Plaintiff-Appellant, 

v. No. 15-3948-cv 

UNDERCOVER OFFICER, #155 individually, 

POLICE OFFICER BILLY CHOI, 

Defendants-Appellees, 

NEW YORK CITY POLICE DEPARTMENT, JOHN 

DOES 1 THROUGH 5, individually, 

Defendants. 

____________________________________________ 

FOR APPELLANT: Ewart Burton, pro se, Brooklyn, New York. 

FOR APPELLEES: Deborah A. Brenner, Susan Paulson, Assistant 

Corporation Counsels, for Zachary W. Carter, 

Corporation Counsel of the City of New York,

New York, New York. 
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Appeal from a judgment of the United States District Court for the Eastern District 

of New York (William F. Kuntz, Judge). 

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 

AND DECREED that the judgment of the district court is AFFIRMED in part and 

VACATED and REMANDED in part. 

Appellant Ewart Burton, proceeding pro se, appeals the dismissal of his claims of 

false arrest, malicious prosecution, and abuse of process under 42 U.S.C. § 1983. We 

assume the parties’ familiarity with the underlying facts, the procedural history of the case, 

and the issues on appeal, which we reference only as necessary to explain our decision to 

affirm in part and to vacate and remand in part. 

 We review de novo the dismissal of a complaint, accepting all alleged facts as true 

and drawing all reasonable inferences in plaintiff’s favor. See Barrows v. Burwell, 777 

F.3d 106, 111 (2d Cir. 2015). Nevertheless, “bald assertions and conclusions of law will 

not suffice.” Spool v. World Child Int’l Adoption Agency, 520 F.3d 178, 183 (2d Cir. 

2008) (internal quotation marks omitted); see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 

Rather, the complaint must plead “enough facts to state a claim to relief that is plausible on 

its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). 

 The district court properly dismissed Burton’s claims of false arrest based on the 

doctrine of collateral estoppel. “Collateral estoppel, or issue preclusion, prevents parties 

or their privies from relitigating in a subsequent action an issue of fact or law that was fully 

and fairly litigated in a prior proceeding.” Marvel Characters, Inc. v. Simon, 310 F.3d 

280, 288 (2d Cir. 2002). It may be applied non-mutually; third-parties may raise 
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collateral estoppel defensively against a party who had fully and fairly litigated an issue to 

prevent that party from raising the same issue in a subsequent lawsuit. See ACLI Gov’t 

Sec., Inc. v. Rhoades, 963 F.2d 530, 533 (2d Cir. 1992) (citing Parklane Hosiery Co., Inc. 

v. Shore, 439 U.S 322, 326–31 (1979) (noting that “doctrine of mutuality, at least for 

defensive use of collateral estoppel, no longer applies”)). For the doctrine to apply, a 

party must show that “(1) the identical issue was raised in a previous proceeding; (2) the 

issue was actually litigated and decided in the previous proceeding; (3) the party had a full 

and fair opportunity to litigate the issue; and (4) the resolution of the issue was necessary to 

support a valid and final judgment on the merits.” Marvel Characters, Inc. v. Simon, 310 

F.3d at 288–89 (internal quotation marks and citation omitted). 

 In a prior lawsuit, Burton litigated whether there was probable cause for his March 

2011 arrest. The district court ruled that there was probable cause for two of the five 

charges. See Sherwyn Toppin Mktg. Consultants, Inc. v. City of New York, No. 08 CV 

1340 ERK VVP, 2013 WL 685382, at *8 (E.D.N.Y. Feb. 25, 2013). Therefore, collateral 

estoppel bars Burton’s new false arrest claim. See Boyd v. City of New York, 336 F.3d 72, 

75 (2d Cir. 2003) (“If there was probable cause for the arrest, then a false arrest claim will 

fail.”). 

 Burton’s malicious prosecution claim, however, cannot be resolved based on 

collateral estoppel. While probable cause is a complete defense to a claim of malicious 

prosecution, such probable cause must be shown as to each criminal charge underlying the 

malicious prosecution claim. See Savino v. City of New York, 331 F.3d 63, 72 (2d Cir. 

2003) (holding probable cause to be complete defense to malicious prosecution); Posr v. 
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Doherty, 944 F.2d 91, 100 (2d Cir. 1991) (requiring separate probable cause analysis for 

each prosecution charge); see also Lowth v. Town of Cheektowaga, 82 F.3d 563, 571 (2d 

Cir. 1996) (separately analyzing probable cause for three charges). In the prior case, the 

district court determined probable cause for only two of the five charges for which Burton 

was prosecuted. That partial probable cause determination thus does not defeat Burton’s 

malicious prosecution claim in its entirety. 

 Burton’s malicious prosecution and abuse of process claims—the latter not 

addressed by the court—nevertheless fail because they are not supported by the factual 

allegations necessary to state a plausible claim. See Ashcroft v. Iqbal, 556 U.S. at 678; 

Morales v. City of New York, 752 F.3d 234, 238 (2d Cir. 2014) (concluding that plaintiff 

failed to state abuse of process claim without allegation that defendants acted with ulterior 

motive or purpose in pursuing arrest and failed to state malicious prosecution claim 

without allegation that defendants were motivated by actual malice); see also Posr v. Court 

Officer Shield No. 207, 180 F.3d 409, 417 (2d Cir. 1999) (affirming dismissal of pro se

litigant’s malicious prosecution claims). Still, where, as here, a plaintiff proceeds pro se, 

the district court should not dismiss on this ground without first considering whether “a 

liberal reading of the complaint gives any indication that a valid [malicious prosecution or 

abuse of process] claim might be stated” if Burton were granted leave to amend. Cuoco v. 

Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (internal quotation marks omitted). 

Accordingly, we remand for that purpose. Burton may wish to request that the district 

court appoint counsel. 

We have considered all of Burton’s remaining arguments and find them to be 
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without merit. Accordingly, we AFFIRM the judgment of dismissal as to the false arrest 

claim, but VACATE dismissal of the malicious prosecution and abuse of process claims. 

We REMAND this case for further proceedings consistent with this order. 

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk of Court