21-923

DuBois v. Cunningham 

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 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 17th day of June, two thousand twenty-two.

PRESENT:

DENNY CHIN,

RICHARD J. SULLIVAN,

EUNICE C. LEE,

Circuit Judges.

_____________________________________

TIMOTHY DUBOIS,

Plaintiff-Appellee,

v. No. 21-923

POLICE OFFICER JAHMAR CUNNINGHAM,

individually and in his capacity as police 

officer employed by the City of White 

Plains,

 Defendant-Appellant.*

* The Clerk of Court is respectfully directed to amend the official case caption as set forth above. 
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_____________________________________

FOR DEFENDANT-APPELLANT: Paul E. Svensson, Hodges Walsh & Burke, 

LLP, White Plains, NY.

FOR PLAINTIFF-APPELLEE: Christopher W. McClure, The Law Firm of 

William G. Sayegh, P.C., Carmel, NY.

Appeal from an order of the United States District Court for the Southern

District of New York (Nelson S. Román, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, 

ADJUDGED, AND DECREED that the order of the district court is REVERSED.

Defendant-Appellant Jahmar Cunningham, a White Plains police officer, 

brings this interlocutory appeal from an order of the district court denying his 

motion for summary judgment based on qualified immunity as to PlaintiffAppellee Timothy DuBois’s claims under 42 U.S.C. § 1983 for false arrest and 

abuse of process. We assume the parties’ familiarity with the underlying facts, 

procedural history, and issues on appeal. 

“Orders denying summary judgment are generally not immediately 

appealable ‘final decisions’ under 28 U.S.C. § 1291.” Bolmer v. Oliveira, 594 F.3d 

134, 140 (2d Cir. 2010). “Under the collateral order doctrine, however, the denial 

of a qualified-immunity-based motion for summary judgment is immediately 

appealable to the extent that the district court has denied the motion as a matter of 
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law, although not to the extent that the defense turns solely on the resolution of 

questions of fact.” Jones v. Parmley, 465 F.3d 46, 54 (2d Cir. 2006) (citation 

omitted). “Where factual disputes persist, we may exercise appellate jurisdiction 

only for the limited purpose of deciding whether, on the basis of stipulated facts[]

or on the facts that the plaintiff alleges are true[,] . . . the immunity defense is 

established as a matter of law.” Terebesi v. Torreso, 764 F.3d 217, 229 (2d Cir. 2014)

(internal quotation marks omitted). “Against this backdrop, we review de novo

a district court’s denial of a summary judgment motion based on a defense of 

qualified immunity.” Jones, 465 F.3d at 55. 

In June 2014, federal officers intercepted a package of heroin that had been 

mailed from India and addressed to Onam Andrews at 11 Fisher Avenue, Apt. 3D, 

White Plains, New York. The White Plains Police Department, along with federal 

agents from the U.S. Drug Enforcement Administration (the “DEA”) and the U.S. 

Postal Service (the “USPS”), staged a controlled delivery of the package, in which

USPS Inspector Yui Chow was assigned to carry out the delivery while a response 

team of law enforcement officers waited outside. Once a suspect signed for the 

package, Inspector Chow was to give a signal to White Plains Police Sergeant 

Anthony Kressevich, who would then authorize the response team to approach.
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On June 5, 2014, Inspector Chow, dressed as a mail carrier, parked a postal 

truck outside of the apartment building at 11 Fisher Avenue and proceeded to 

Apartment 3D. Inspector Chow rang the doorbell, and a man – who would later 

be identified as Stephen Williams – answered the door. Williams identified 

himself as “Onam Andrews,” the addressee on the package. Inspector Chow told 

Williams that he had a package downstairs and asked Williams to come down to 

the postal truck to sign for it. After being told that the package was from India, 

Williams said that he could not go downstairs because he had hurt his ankle. 

DuBois then came out of the apartment and agreed that he, rather than 

Williams, would accompany Inspector Chow downstairs to get the package. The 

parties dispute whether DuBois also identified himself as “Onam Andrews,” but 

agree that DuBois followed Inspector Chow downstairs to the postal truck. 

Inspector Chow then handed DuBois a delivery slip for the package, which DuBois 

signed using the name “George Andrews.” The parties also dispute whether 

DuBois then took the package from Inspector Chow, but agree that DuBois was 

detained and handcuffed by DEA agents shortly after signing the delivery slip. 

After DuBois was already in handcuffs, Officer Cunningham arrived on the 

scene and “debriefed Inspector Chow, who advised him that Mr. DuBois had 
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substituted for Mr. Williams and took possession of the package.” App’x at 819. 

Officer Cunningham searched the apartment pursuant to a search warrant and 

then, at Sergeant Kressevich’s direction, prepared a felony complaint charging

DuBois with attempted drug possession. Eventually, Williams accepted full 

responsibility for the package, and all charges against DuBois were dismissed. 

DuBois then commenced this action against Officer Cunningham, White Plains 

Detective James Tassone, and the City of White Plains. 

The parties cross-moved for summary judgment, and the district court 

granted summary judgment in favor of the defendants on all claims except the 

false-arrest claims under state and federal law against Officer Cunningham, and 

the abuse-of-process claim against both Officer Cunningham and Detective 

Tassone.1 The district court found that there was a genuine dispute of material 

fact as to whether probable cause supported DuBois’s arrest because DuBois

denies that he ever identified himself as “Onam Andrews” or took possession of 

the package. The district court therefore denied summary judgment as to both 

the false-arrest claims and – to the extent it was predicated on the filing of the 

felony complaint – the abuse-of-process claim. The district court further

1 Detective Tassone has not appealed from the district court’s ruling. See Doc. No. 1. 
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determined that, based on the same factual disputes, Officer Cunningham was not 

entitled to qualified immunity.2 

“[T]he doctrine of qualified immunity shields both state and federal officials 

from suit ‘unless (1) the official violated a statutory or constitutional right that 

(2) was clearly established at the time of the challenged conduct.’” Terebesi, 764 

F.3d at 230 (quoting Reichle v. Howards, 566 U.S. 658, 664 (2012)) (alterations

omitted). It is undisputed that “[t]he right not to be arrested without probable 

cause is a clearly established right.” Lee v. Sandberg, 136 F.3d 94, 102 (2d Cir. 1997).

“Probable cause to arrest exists when the officers have knowledge or reasonably 

trustworthy information of facts and circumstances that are sufficient to warrant 

a person of reasonable caution in the belief that the person to be arrested has 

committed or is committing a crime.” Jenkins v. City of New York, 478 F.3d 76, 84 

(2d Cir. 2007) (citation and alterations omitted). Under both New York law and 

section 1983, probable cause “is a complete defense to an action for false arrest.” 

Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996) (citation omitted). 

2 The district court addressed qualified immunity only as to the false-arrest claim, determining 

that the defendants had not adequately explained how qualified immunity would bar the abuseof-process claim. 
7

But “[e]ven if probable cause to arrest is ultimately found not to have 

existed, an arresting officer will still be entitled to qualified immunity from a suit 

for damages if he can establish that there was ‘arguable probable cause’ to arrest.” 

Escalera v. Lunn, 361 F.3d 737, 743 (2d Cir. 2004). “Arguable probable cause exists 

when a reasonable police officer in the same circumstances and possessing the 

same knowledge as the officer in question could have reasonably believed that 

probable cause existed.” Cerrone v. Brown, 246 F.3d 194, 202–03 (2d Cir. 2001)

(internal quotation marks omitted).3 In deciding whether Officer Cunningham is 

entitled to qualified immunity, we are mindful that qualified immunity shields 

“all but the plainly incompetent or those who knowingly violate the law.” 

Walczyk v. Rio, 496 F.3d 139, 154 (2d Cir. 2007) (quoting Malley v. Briggs, 475 U.S. 

335, 341 (1986)). 

3 “[U]nder both New York and federal law, summary judgment dismissing a plaintiff’s 

false[-]arrest claim is appropriate if the undisputed facts indicate that the arresting officer’s 

probable cause determination was objectively reasonable.” Jenkins, 478 F.3d at 88. 
8

Here, the undisputed facts support a finding of arguable probable cause.4 

Officer Cunningham, who was part of the response team, was authorized to 

approach the scene by his supervising officer, Sergeant Kressevich. By the time 

Officer Cunningham arrived on the scene, DuBois was already in handcuffs. 

Officer Cunningham knew that the controlled delivery package contained 

narcotics. He was then told by Inspector Chow that DuBois “had substituted for 

Mr. Williams and took possession of the package.” App’x at 819. 

Under these circumstances, “an officer ‘of reasonable competence’ could have

concluded that the arrest was justified by probable cause.” Figueroa v. Mazza, 825 

F.3d 89, 99 (2d Cir. 2016) (emphasis added). While DuBois disputes a critical 

fact – whether he ever took possession of the package – it is undisputed that Officer 

Cunningham was told by Inspector Chow that DuBois had taken the package, 

which Officer Cunningham knew held drugs. Even if Inspector Chow’s 

statements turned out to be inaccurate, “probable cause exists even where it is 

based upon mistaken information, so long as the arresting officer was reasonable 

4 DuBois’s false-arrest claims are premised on his assertion that Officer Cunningham “made the 

decision to formally arrest Plaintiff.” App’x at 818. Officer Cunningham disputes this claim, 

arguing that DuBois was already under arrest by the time he arrived on the scene. The Court 

need not decide this issue, however, because even accepting DuBois’s argument that Officer 

Cunningham arrested DuBois, we conclude that any such arrest was supported by arguable 

probable cause, entitling Officer Cunningham to qualified immunity. 
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in relying on that information.” Bernard v. United States, 25 F.3d 98, 103 (2d Cir. 

1994); see also Panetta v. Crowley, 460 F.3d 388, 395 (2d Cir. 2006) (“When making a 

probable cause determination, police officers are entitled to rely on the allegations 

of fellow police officers.” (internal quotation marks omitted)). The existence of

probable cause thus “does not turn on whether [Inspector Chow’s] observations 

were accurate, but on whether [Officer Cunningham] was reasonable in relying on 

those observations.” Bernard, 25 F.3d at 103. Here, there is nothing in the record

to suggest that it was unreasonable for Officer Cunningham to rely on Inspector 

Chow’s statements. We therefore conclude that Officer Cunningham is entitled 

to qualified immunity as to the false-arrest claims. 

He is also entitled to qualified immunity on the abuse-of-process claim, 

which is similarly premised on DuBois’s assertion that Officer Cunningham lacked

probable cause to arrest him. See Mangino v. Incorporated Village of Patchogue, 808 

F.3d 951, 958–59 (2d Cir. 2015) (noting the “considerable confusion within our 

Circuit regarding whether probable cause is a complete defense to a claim of abuse 

of process under New York law,” but holding that the “very existence” of the 

confusion entitles an officer to qualified immunity from an abuse-of-process claim

based on probable cause); see also Shields v. City of New York, 35 N.Y.S.3d 330, 331 
10

(1st Dep’t 2016) (“Since plaintiffs point to no evidence that defendants were 

motivated by some collateral objective, the existence of probable cause [to arrest] 

likewise constitutes a defense to plaintiffs’ cause of action for abuse of process.”). 

Accordingly, we REVERSE the order of the district court insofar as it denied 

Officer Cunningham qualified immunity from the false-arrest and abuse-ofprocess claims, and REMAND with instructions to enter judgment in favor of 

Officer Cunningham on those claims. 

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk of Court