19

- 2665 McGrier v. City of New York

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 NO TATION

“ 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 1 Circuit, held at the Thurgood Marshall United States Court house, 40 Foley Square, 2 in the City of New York, on the 2 4 t h da y of F e b r u a r y , two thousand twenty

- one

. 3 4 PRESENT: 5 JOHN M. WALKER, JR. , 6 ROBERT D. SACK , 7 RICHARD J. SULLIVAN , 8 Circuit Judges. 9

_____________________________________ _____ 10 11 F REDDIE M C G RIER , 12 13 Plaintiff

- Appellant , 14 15

v. No. 19

- 2665 16 17 T HE C ITY OF N EW Y ORK , D EREK L YNTON , 18 Assistant District Attorney, R AY V ALERIA , 19 Assistant District Attorney, D ETECTIVE 20 R OBERT H ENN , Individually and in his 212 official capacity , D ETECTIVE F ELIX R AMOS , 1 Individually, L IEUTENANT R ICHARD G IBSON , 2 C ORRECTION O FFICER D ANIEL R OBLES , 3 Individually, Shield #13214, C APTAIN J OHN 4 T HOMPSON , Individually, Shield #76, 5 D ETECTIVE /P.O

. J OHN D OE S # 1

- 4 , 6 Individually and in their official capacity as 7 New York City Police Officers, J OHN D OE S 8 # 5

- 10 , Individually and in their official 9 capacity as New York City Correction 10 Officers, T HOMAS A ASHEIM , Individually, 11 Shield #1916, J OHN D OE S # 1

- 5 , in their 12 official c apacity, C ORRECTIONAL O FFICER 13 J OHN D OE S # 1

- 5 , A NTHONY D ’ A MATO , in his 14 official capacity, J OSEPH C ASTALDO , in his 15 official capacity, J OHN C ORDERO , in his 16 official capacity, J OHN M OORE , Individually 17 and in his official capacity, 18 19 Defendants

- Appellee s

. 1 20

_____________________________________ _____ 21 22 23 FOR PLAINTIFF

- APPELLANT: Freddie McGrier , pro se , New York, 24 NY

. 25 26 FOR DEFENDANTS

- APPELLEES: Richard Dearing, John Moore , for 27 James E. Johnson, Corporation 28 Counsel of the City of New York, 29 New Y ork, NY. 30 31

1 The Clerk of Court is respectfully directed to amend the caption as set forth above.3 Appeal from a judgment of the United States District Court for the Southern 1
District of New York ( Caproni , J .). 2

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, 3
ADJUDGED, AND DECREED that the judgment of the district court is 4

AFFIRMED

. 5

Plaintiff

- Appellant Freddie McGrier was arrested, indicted, and tried for a 6
2012 murder and robbery before ultimately being acquitted

. From 2012 to 2015, 7

h e was incarcerated at Rikers Island Correctional Facility pending trial. On July 8
15, 2013, while housed in a solitary unit in punitive segregation, he placed his 9
hands through the slot in the door to his cell and refused correction officers’ orders 10

to rem ove them. A team of correction officers then entered his cell and, McGrier 11
claims, beat him even after he was handcuffed, causing permanent damage to his 12

vision . In 2016, through counsel, McGrier sued the City of New York and several 13
police and correctio n officers pursuant to 42 U.S.C. § 1983 and Monell v. Dep artment 14
of Soc ial Serv ices of the City of New York , 436 U.S. 658 (1978). Specifically, McGrier 15

asserted claims for malicious prosecution in connection with his 2012 robbery and 16

murder prosecution , excessive force claims related to the July 15, 2013 cell 17

extraction incident at Rikers Island , and municipal liability for the latter . The 184 district court granted D efendants

- A ppellees’ motion for summary judgment as to 1

all claims. We assume t he parties ’ familiarity with the underlying facts, the 2
procedural history of the case, and the issues on appeal. 3
We review a grant of summary judgment de novo , “resolv[ing] all 4
ambiguities and draw[ing ] all inferences against the moving party.” Garcia v. 5
Hartford Police Dep’t , 706 F.3d 120, 126

– 27 (2d Cir. 2013). “Summary judgment is 6
proper only when, construing the evidence in the light most favorable to the non

7
movant, ‘there is no genuine dispute a s to any material fact and the movant is 8
entitled to judgment as a matter of law.’” Doninger v. Niehoff , 642 F.3d 334, 344 9
(2d Cir. 2011) (quoting Fed. R. Civ. P. 56(a )). “A genuine issue of material fact 10

exists if the evidence is such that a reasonable jury could return a verdict for the 11
nonmoving party.” Nick’s Garage, Inc. v. Progressive Casualty Ins. Co ., 875 F.3d 107, 12
113 (2d Cir. 2017) (internal quotation marks omitted). 13

I. Malicious Prosecution 14
On appeal, McGrier first argues that the district c ourt erred in dismissing 15
his malicious prosecution claim against the police officer defendants. “In order 16
to prevail on a § 1983 claim against a state actor for malicious prosecution, a 17
plaintiff must show a violation of his rights under the Fourth Amendm ent, and 185 must establish the elements of a malicious prosecution claim under state law.” 1
Manganiello v. City of N ew Y ork

. , 612 F.3d 149, 160

– 61 (2d Cir. 2010) ( internal 2
citations omitted). The elements of a malicious prosecution claim under New 3
York law are “(1) the initiation or continuation of a criminal proceeding against 4
plaintiff; (2) termination of the proceeding in plaintiff’s favor; (3) lack of probable 5

cause for commencing the proceeding; and (4) actual malice as a motivation for 6

defendant’s actions.” Id

. at 161 (internal quotation marks omitted). 7
“The existence of probable cause is a complete defense to a claim of 8
malicious prosecution in New York, and indict ment by a grand jury creates a 9
presumption of probable cause. That presumption may be rebutted only by 10
evidence that the indictment was procured by fraud, perjury, the suppression of 11

evidence [,] or other police conduct undertaken in bad faith.” Id . at 16 1

– 62 12
( alterations , citations, and internal quotation marks omitted). “Officers have 13
probable cause when they have knowledge or reasonably trustworthy information 14
of facts and circumstances that are sufficient to warrant a person of reasonable 15

caution in the belief that the person to be arrested has committed or is committing 16

a crime.” Hernandez v. United States , 939 F.3d 191, 199 (2d Cir. 2019) (internal 17
quotation marks omitted). In determining whether there was probable cause, we 186 must consider the tota lity of the circumstances, reviewing “plainly exculpatory 1
evidence alongside inculpatory evidence to ensure the court has a full sense of the 2
evidence that led the officer to believe that there was probable cause to make an 3

arrest.” Stansbury v. Wertman , 721 F.3d 84, 93 (2d Cir. 2013) (internal quotation 4
marks omitted). “[A]bsent circumstances that raise doubts as to the victim’s 5
veracity, a victim’s identification is typically sufficient to provide probable cause.” 6

Id. at 90 (internal quotation marks om itted). 7
The district court correctly determined that the police officer defendants 8
were entitled to judgment as a matter of law on this claim because no reasonable 9
jury could find that McGrier’s prosecution was not supported by probable cause. 10

McGrier was indicted by a grand jury, creating a rebuttable presumption of 11
probable cause. Manganiello , 612 F.3d at 161

– 62. One of the robbery victims also 12
reviewed a photo array which included a photo of McGrier, and identified 13

McGrier as the assailant . Even assu ming the defendant police officers were 14
sufficiently involved in “initiating” the prosecution, McGrier has not offered any 15
evidence, aside from his own speculation, that the grand jury indictment was 16
procured by fraud, perjury, suppression of evidence, or bad faith conduct. See 17

Rothstein v. Carriere , 373 F.3d 275, 284 (2d Cir. 2004) (stating that to rebut the 187 presumption of probable cause created by a grand jury indictment, “the plaintiff 1
[must] establish what occurred in the grand jury, and

. . . further establish that 2
those circumstances warrant a finding of misconduct”). He cannot defeat a 3
motion for summary judgment with “unsubstantiated speculation.” Fujitsu Ltd. 4
v. Fed. Express Corp. , 247 F.3d 423, 428 (2d Cir. 2001) (internal quotation ma rks 5
omitted)

. 6

II. Excessive Use of Force on July 15, 2013 7
McGrier also argues that the district court erred in granting summary 8
judgment on his excessive force claims against Correction Officer Daniel Robles 9
and the City. The Fourteenth Amendment’s “Due Process Clause protects a 10
pretrial detainee from the use of excessive force that amounts to punishment.” 11
Kingsley v. Hendrickson , 576 U.S. 389, 397 (2015) (internal quotation marks omitted). 12
Force is excessive if it is “objectively unreasonable” under t he particular 13

circumstances. Id . In determining whether , “ from the perspective of a 14

reasonable officer on the scene, ” the use of force was objectively reasonable, a 15
factfinder may consider , among other things, “the relationship between the need 16

for the u se of force and the amount of force used; the extent of the plaintiff’s injury; 17
any effort made by the officer to temper or to limit the amount of force; the severity 188 of the security problem at issue; the threat reasonably perceived by the officer; and 1

whe ther the plaintiff was actively resisting.” Id. 2
It is clear from the record that there is a genuine dispute as to whether 3
excessive force was used by some of the officers who entered McGrier’s cell on 4
July 15, 2013. The video of the incident shows the o fficers spraying a chemical 5
agent into the cell , and appears to show an officer kicking McGrier while McGrier 6

is on the floor

. But the video does not fully resolve the factual disputes as to what 7
force was used by the officers and whether it was “objectively unreasonable

. ” 8
Construing the evidence in the light most favorable to McGrier, it appears that he 9
put his bare hands through the slot in his cell door and refused to remove them, 10
pushed against the officers' riot shields for ten seconds as th e officers attempted to 11

enter his cell , and, while already on the floor with officers holding him down, put 12
up some resistance to being handcuffed. As for the force used in response to 13

those actions, McGrier testified that he was kicked and hit in the fac e with 14
handcuffs while he was already handcuffed. The medical report indicates that 15

McGrier had f acial and orbital contusion s immediately afterward, and McGrier 16
testified that he has mild but permanent vision loss as a result of the incident. 179 But while there is some evidence to suggest that one or more of the 1
individual officers applied excessive force against McGrier, the district court 2
correctly determined that no reasonable jury could find Officer Robles or the City 3
responsible for any excessive force that was used

. 4

A. Robles’s Liability 5

T o be found liable for excessive force, Officer Robles must have either used 6

excessive force himself o r failed to intervene , despite having a “ realistic 7
opportunity ” to do so, to prevent another officer from applying excessive force. 8

See Anderson v. Branen , 17 F.3d 552, 557 (2d Cir. 1994)

. B ased on the evidence 9
presented, no reasonable jury could find Robles directly responsible for applying 10
unconstitutionally excessive force

. With respect to the spraying of the chemical 11
agent into McGrier’s cell, there is no evidence to suggest that Robles was involved 12
in the decision to do so or that he played a role in executing the captain’s order. 13
As for the physical force used after the officers entered the cell, McGrier himself 14
admits that he “could not point to a specific punch or kick thrown by defendant 15
Robles.” Appellant’s Br. at 31. 16
That leaves only the q uestion of whether Robles had “a realistic opportunity 17
to intervene to prevent the harm from occurring. ” Anderson , 17 F.3d at 557. 1810 E ven assuming that the spraying of a chemical agent constituted excessive force

– 1
which is dubious, given the safety risk p osed by an inmate’s refusal to allow a 2
cuffing port to close and McGrier’s continued non

- compliance despite an order to 3

do so

– McGrier offered no evidence suggesting that Robles had a realistic 4
opportunity to intervene before the spraying occurred

. 5

W ith regard to what occurred inside the cell, the video establish es that 6
Robles was present and that he was tasked with securing McGrier’s right arm 7
during the cell extraction . But neither the video nor McGrier’s testimony 8
suggests that Robles was in a positi on to prevent other officers from striking 9
McGrier’s face and right eye in the fast

- moving altercation that ensued

. Put 10
simply, no reasonable jury could conclude from this record that Robles had a 11
realistic opportunity to intervene to prevent the use of f orce by other officers. We 12
therefore conclude that the district court did not err in granting summary 13
judgment in favor of Robles. 14

B. The City’s Monell Liability 15
“Under the Supreme Court’s decision in Monell

. . . , local governments may 16
be held liable in § 1983 actions” if a plaintiff can “ show that he suffered the denial 17
of a constitutional right that was caused by an official municipal policy or custom.” 1811 Frost v. N.Y. C

. Police Dep’t , 980 F.3d 231, 257 (2d Cir. 20 20) (internal quotation 1
marks omitted). “ Monell does not provide a separate cause of action for the 2
failure by the government to train its employees; it extends liability to a municipal 3
organization where that organization’s failure to train, or the polic ies or customs 4
that it has sanctioned, led to an independent constitutional violation.” Id. 5
(internal quotation marks omitted). There are three elements to a Monell claim: 6
“(1) an official policy or custom that (2) causes the plaintiff to be subjected to (3) a 7
denial of a constitutional right.” Lucente v. Cnty. of Suffolk , 980 F.3d 284, 297 (2d 8
Cir. 2020) (internal quotation marks omitted). 9

Here, a reasonable jury could find the third element of McGrier’s Monell 10

claim satisfied , since , as discussed above, there is a genuine issue of material fact 11
as to whether he was subject to constitutionally excessive force in this incident. 12
However, to satisfy the remaining elements, a jury would have to find that there 13
was a sufficiently widespread a nd persistent practice of using excessive force in 14

cell extractions at Rikers so as “ to imply the constructive acquiescence” of 15
Department of Correction (“ DOC ”) officials in July 2013, and that the City’s failure 16
to take action to remedy this custom before that date caused McGrier to be 17
subjected to such force. Id. at 29 7

– 9 8 (internal quotation marks omitted) . The 1812 evidence, construed in the light most favorable to McGrier, is not sufficient to 1
support a jury verdict in McGrier’s favor on these elements. 2
McGrier testified that the force used against him that day was part of a 3
predictable pattern and was consistent with his experiences in other cell 4

extractions at Rikers. But the personal experiences that McGrier described in his 5
deposition post

- dated his July 2013 assault, and th us cannot establish a pattern 6

that the City was aware of in July 2013. McGrier’s other assertions as to what staff 7
“always” d id are too vague to show what was customary prior to July 2013. 8

And while t he investigative report prepa red by the Department of Justice in 9

2014 provides strong support for a claim that there was a custom of excessive force 10

at Rikers prior to July 2013 as to adolescent inmates , 2 the report does not provide 11
sufficient facts regarding what the City knew or should have known about adult 12
inmates at Rikers prior to July 2013. 13
McGrier argues that litigation involving similar allegations was ongoing in 14
Nunez v. City of New York , No. 11

- cv
- 5845 (S.D.N.Y.) , and that the City therefore 15
had knowledge of such practi ces at Rikers Island in July 2013. But Nunez was still 16

2 See generally D EP ’ T OF J UST

. , CRIPA I NVESTIGATION OF TH E N EW Y ORK C ITY D EPARTMENT OF C ORRECTION J AILS ON R IKER S I SLAND ( Aug. 4, 2014) , https://www.justice.gov/sites/ default/files/

usao

- sdny/legacy/2015/03/25/SDNY%20Rikers%20Report.pdf.13 in discovery in July 2013, and the eventual consent decree in that case , in which 1
DOC agreed to implement reforms to reduce the use of force by officers, was not 2

reached until 2015. 3 McGrier’s reliance on a New York Times article describing 3
“pervasive and routine” violence by officers against inmates at Rikers is equally 4
misplaced, since that article was not published until July 2014

. 4 In short, the 5

record lacks sufficient evidence

– from the City, DOC, or anywhere else

– that 6
would permit a reasonable jury to conclude that , in the time period leading up to 7
July 2013, the City was on notice of a widespread and persistent practice of us ing 8

excessive force in cell extractions of adult inmates at Rikers

. Accordingly, the 9
district court did not err in granting summary judgment in favor of the City on 10

McGrier’s Monell claim. 11

III. Other Claims 12
McGrier has waived any challenge to the district court’s decision on h is 13
remaining claims by not discussing them in his brief. See Fed. R. App. P. 28(a)(5)

– 14
(8); LoSacco v. City of Middletown , 71 F.3d 88, 93 (2d Cir. 1995) (“[W]e need not 15

3 See Consent Judgment, Nunez v. City of New York

. , No. 11

- cv
- 5845, Dkt. No . 249 (S.D.N.Y. Oct. 21, 2015 ).

4 See Michael Winerip & Michael Schwirtz, Rikers: Where Mental Illness Meets Brutality in Jail , N.Y. T IMES ( July 14, 2014 ) , https://www.nytimes.com/2014/07/14/nyregion/rikers

- study

- finds

prisoners

- injured

- by

- employees.html.14 manufacture claims of error for an appellant proceeding pro se , especially when he 1

has raised an issue below and elected not to pursue it on appeal

. ”). 2

We have considered McGrier’s remaining arguments and find them to be 3
without merit. Accordingly, we AFFIRM the judgment of the district court. 4

FOR THE COURT: 5 Catherine O ’ Hagan Wolfe, Clerk of Court 6