12-3352-cv Pines v. Bailey 

## 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 “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 1 Thurgood Marshall United States Courthouse, 40 Fole y Square, in the City of New York, on the 25 th 2 day of April, two thousand fourteen. 3 4 Present: 5 D EBRA ANN L IVINGSTON , 6 GERARD E. L YNCH , 7 C HRISTOPHER F. D RONEY , 8 9 Circuit Judges. 10

_____________________________________ 11 12 J AMES P INES , 13 14 Plaintiff-Appellee , 15 16 v. 12-3352-cv 17 18 M ICHAEL B AILEY , 19 20 Defendant-Appellant

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_____________________________________ 22 23 For Plaintiff-Appellee: J AMES P INES , pro se , Bloomfield, CT. 24 25 For Defendant-Appellant: T HOMAS R. GERARDE (Beatrice S. Jordan, on 26 the brief ), Howd & Ludorf, LLC, Hartford, 27 CT. 28 29 30Appeal from an order of the United States Di strict Court for the District of Connecticut 1 (Kravitz, J.). 2 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 3 DECREED that the order of the district court denying in part and granting in part the defendant’s 4 motion for summary judgment is REVERSED IN PART and the matter is REMANDED for 5 further proceedings consistent with this order. 6 Appellant Michael Bailey (“Bailey”), a detective with the Enfield, Connecticut police 7 department, appeals from an order denying his motion for summary judgment, on the ground of 8 qualified immunity, as to pro se Appellee James Pines’s (“Pines”) 42 U.S.C. § 1983 claim of 9 malicious prosecution. Bailey also seeks to appeal the district court’s denial of his motion for 10 summary judgment as to Pines’s state-law claim of negligent infliction of emotional distress. 1 We 11 assume the parties’ familiarity with the underlying f acts, the procedural history of the case, and the 12 issues presented for review, which we reference only as necessary to explain our decision. 13 We review de novo the denial of a summary judgment motion on qualified immunity 14 grounds. See Coollick v. Hughes , 699 F.3d 211, 219 (2d Cir. 2012). Summary judgment is 15 appropriate where the movant shows that “there is no genuine dispute as to any material fact and the 16 movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). While we generally lack 17 jurisdiction to consider the denial of summary judgment, an exception exists when the district court 18 has rejected a qualified immunity defense raised in the motion. See Walczyk v. Rio , 496 F.3d 139, 19 153 (2d Cir. 2007). Our jurisdiction, however, is “limited to circumstances where the qualified 20

1 Neither party addressed the district court’s grant of summary judgment in favor of Bailey on Pines’s state-law claim of intentional infliction of emotional distress; we do not disturb that ruling on appeal. 2immunity defense may be established as a matter of law.” Escalera v. Lunn , 361 F.3d 737, 743 (2d 1 Cir. 2004) (internal quotation marks omitted). In s ituations where the district court has identified 2 a disputed issue of fact, therefore, the party asserting the qualified immunity defense may obtain 3 interlocutory review by asserting an entitlement tothe defense under the plaintiff’s version of the 4 facts. See Savino v. City of New York, 331 F.3d 63, 72 (2d Cir. 2003). Thus, for purposes of this 5 appeal, we must analyze the facts in the light mo st favorable to Pines, focusing our review on the 6 legal question whether the disputed facts identified by the district court are, in fact, material. Id. 7 Pines’s § 1983 malicious prosecution claim is premised on statements made by Bailey in an 8 affidavit he submitted in support of a warrant for Pines’s arrest on the Connecticut state law charge 9 of reckless endangerment in the first degree. Pines alleges that, in his affidavit, Bailey intentionally 10 or recklessly made false statements and omitted material information necessary for the magistrate 11 to make an adequate probable cause determinati on. “Qualified immunity shields law enforcement 12 officers from § 1983 claims for money damages provided that their conduct does not violate clearly 13 established constitutional rights of which a reasonable person would have been aware.” Zalaski v. 14 City of Hartford, 723 F.3d 382, 388 (2d Cir. 2013). Although “[o]rdinarily, an arrest or search 15 pursuant to a warrant issued by a neutral magistrate is presumed reasonable because such warrants 16 may issue only upon a showing of probable cause,” Fabrikant v. French , 691 F.3d 193, 214 (2d Cir. 17 2012) (internal quotation marks omitted), “[w]here anofficer knows, or has reason to know, that he 18 has materially misled a magistrate on the basis fo r a finding of probable cause , the shield of qualified 19 immunity is lost,” Velardi v. Walsh , 40 F.3d 569, 573 (2d Cir.1994) (internal quotation marks and 20 ellipsis omitted). To state a claim on the basis of a misleading warrant, therefore, a plaintiff must 21 establish that the defendant “intentionally or recklessly made false statements in the warrant 22

3application” and “those statements were necessary to the finding of probable cause.” Loria v. 1
Gorman , 306 F.3d 1271, 1289 (2d Cir. 2002) (emphasis added). 2 To determine whether errors in an affidavit were “necessary” to the probable cause finding, 3 we rely upon the “corrected affidavit doctrine,” under which errors in the affidavit “are not material 4 if, after crossing out any allegedly false information and supplying any omitted facts, the ‘corrected 5 affidavit’ would have supported a finding of probable cause.” Velardi , 40 F.3d at 573. We conclude 6 that the errors in Bailey’s affidavit were not material. Bailey’s affidavit, when corrected, would still 7 aver that Pines’s pistol and s hotgun were found in his home, loade d, visible, and in locations easily 8 accessible to his children. From these facts, th e judge who issued the warrant could reasonably 9 conclude that the condition of the firearms demonstrated an “extreme i ndifference to human life” 10 that created “a risk of serious physical injury” to Pines’s children, and that – as the owner of the 11 firearms, recently present in the home – Pines was responsible for their condition. See Conn. Gen. 12 Stat. § 53a-63(a); see also Escalera , 261 F.3d at 743 (finding probable cause where the officer “has 13 knowledge or reasonably trustworthy information of facts and circumstances that are sufficient to 14 warrant a person of reasonable caution in the belief that the person to be arrested has committed or 15 is committing a crime”) (internal quotation marks omitted); State v. Vitale , No. CR8-930111888S, 16 1994 WL 282254, at *5 (Conn. Super. Ct. June 21, 1994) (observing, in a second degree reckless 17 endangerment case, that “the defendant . . . should have known that leaving firearms and 18 ammunition together with children alone in the house posed a substantial and unjustifiable risk of 19 physical injury to the children or others”). 20 Contrary to the district court’s finding, includi ng in the affidavit Pines’s statement that he 21 intended to retrieve his pistol and omitting the err oneous assertion that Pines stated that the pistol 22

4was loaded would not have altered this analysis. At a minimum, the corrected affidavit would still 1 support the reasonable inference that Pines left a loaded pistol accessible to his children before he 2 purportedly attempted to retrieve it, permitting Baile y and a reasonable magistrate to conclude that 3 probable cause existed to initiate a prosecution for reckless endangerment. S ee Zalaski , 723 F.3d 4 at 389-90, 393 (2d Cir. 2013) (affordi ng greater “latitude” to officer s assessing intent to commit a 5 crime incident to arrest); State v. Otto , 43 A.3d 629, 639 (Conn. 2012) (“Because direct evidence 6 of the accused’s state of mind is rarely available . . . intent is often inferred from conduct . . . and 7 from the cumulative effect of the circumstantial evidence and the rational inferences drawn 8 therefrom.” (omissions in original )). Because the evidence, viewed in the light most favorable to 9 Pines, discloses “no genuine dispute” as to the existence of probable cause, Walczyk , 496 F.3d at 10 158, Bailey is entitled to qualified immunity as a matter of law. Accordingly, we reverse the district 11 court’s denial of Bailey’s summary judgment motion on that ground and remand for the entry of 12 judgment on Pines’s § 1983 claim. 13 We may also exercise pendent jurisdiction over i ssues not ordinarily subject to interlocutory 14 review whenever “(1) they are inextricably intertwined with the determination of qualified 15 immunity or (2) their resolution is necessary to en sure meaningful review of the district court’s 16 ruling on qualified immunity.” Savino , 331 F.3d at 71-72 (internal quotation marks omitted). Bailey 17 has not advanced any argument as to why this Court should exercise pendent jurisdiction over 18 Pines’s negligent infliction of emotional distress clai m, nor is it apparent th at either of the above19 mentioned factors is satisfied. We therefore declin e to exercise pendent jurisdiction over this claim. 20 We have considered all of Pines’s remaining arguments and find them to be without merit. 21 Accordingly, we REVERSE the denial of summary judgment on the ground of qualified immunity 22

5as to Pines’s § 1983 claim and REMAND this matter to the district court so that it may enter 1 judgment in favor of Bailey on Pi nes’s § 1983 claim and determine wh ether to continue exercising 2 supplemental jurisdiction over Pines’s remaining state-law claim. See 28 U.S.C. § 1367(c)(3). 3 4 FOR THE COURT: 5 Catherine O’Hagan Wolfe, Clerk 6 7 8

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