1 22

- 1261

- cv McDonald v. Molina
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 O RDER”). 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, 1 held at the Thurgood Marshall United States Courthouse, 40 Foley Square , in the 2 City of New York, on the 2 7 t h day of F e b r u a r y , two thousand twenty

- three. 3 4 PRESENT: RAYMOND J. LOHIER, J R., 5 STEVEN J. MENASHI , 6 BETH ROBINSON, 7 Circuit Judges

. 8

------------------------------------------------------------------ 9 GERALD MCDONALD, 10 11 Plaintiff

- Appellant , 12 13

v. No. 22

- 1261

- cv 14
15 ADRIANA MOLINA, STAMFORD POLICE 16 DEPT, JEANNIE CALCANO PEARE , SETH 17 PEARE, GLADYS CALCANO , 18 19 Defendants

- Appellees , 20
21 COURT SUPPORT SERVICES DIVISION, 222 STATE OF CONNECTICUT, JANE DOE(S), 1 2 Defendants

. 3

------------------------------------------------------------------ 4 FOR PLAINTIFF

- APPELLANT: Gerald McDonald , pro se , 5 Nedrow, NY 6
7 FOR DEFENDANTS

- APPELLEES Vikki Cooper, Deputy 8 MOLINA & STAMFORD POLICE DEPT: Corporation Counsel, 9 Office of the 10 Corporation Counsel of 11 the City of Stamford, 12 Stamford, CT 13
14
FOR DEFENDANTS

- APPELLEES Ivan Ladd

- Smith and 15 JEANNIE CALCANO PEARE, Brian E. Spears, 16 SETH PEARE, GLADYS CALCANO: Spears Manning & 17 Martini LLC, Southport, 18 CT 19
20 Appeal from a judgment entered in the United States District Court for the 21
District of Connecticut (Kari A. Dooley, Judge ). 22
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 23

AND DECREED that the judgment of the District Court is AFFIRMED

. 24
Gerald McDonald, proceeding pro se , appeals from a May 12, 2022 25
judgment of the United States District Court for the District of Conne cticut 26
(Dooley, J. ) dismissing his Fourth Amendment malicious prosecution claim 27

under 42 U.S.C. § 1983 and a parallel claim under Connecticut law , and denying 283 leave to amend his complaint. We assume the parties’ familiarity with the 1
underlying facts and t he record of prior proceedings, to which we refer only as 2
necessary to explain our decision to affirm. 3

I. Dismiss al of McDonald’s Claims 4

McDonald argues that the District Court erred in dismiss ing his malicious 5
prosecution claim s against Adriana Molina and Jeannie Calcano Peare (“Peare”)

. 1 6
According to the complaint, Molina is an officer with the Stamford Police 7
Department, and Peare is McDonald’s ex

- wife who obtained an order of 8
protection against him

. “We review de novo a district court’s dismissal of a 9
complaint pursuant to Rule 12(b)( 6), construing the complaint liberally, 10
accepting all factual allegations in the complaint as true, and drawing all 11
reasonable inferences in the plaintiff’s favor.” Alix v. McKinsey & Co., Inc. , 23 12
F.4th 196, 202 (2d Cir. 2022). Although we “ construe a p ro se complaint

. . . to 13
raise the strongest arguments it suggests,” it must nevertheless “state a plausible 14

1 McDonald does not argue that the District Court erred in dismissing his claims against the Stamford Police Department , Seth Peare, and Gladys Calcano . Accordingly, McDonald has abandoned his claims as to those Defendants

- Appellees , and we affirm the judgment of the District Court as it applies to them

. See JP Morgan Chase Bank v. Altos Hornos de Mexico , S.A. de C.V. , 412 F.3d 418, 428 (2d Cir. 2005).4 claim for relief.” Darby v. Greenman , 14 F.4th 124, 127

– 28 (2d Cir. 2021) 1
(quotation marks omitted)

. 2

A. Claims Against Molina 3
Under both federal and Connecticut law, “ [ t ] he existence of probable cause 4
is a complete defense to a malicious prosecution claim. ” Cornelio v. Connecticut , 5
32 F.4th 160, 178

– 79 (2d Cir. 2022). “An arrest authorized by a judicial warrant,” 6

like McDonald’ s arrest here, “is generally presumed to be supported by probable 7

cause.” Mara v. Rilling , 921 F.3d 48, 73 (2d Cir. 2019) (quotation marks omitted)

. 8
In order to rebut that presumption, “a plaintiff must show (1) that supporting 9

warrant affidavits on thei r face, fail to demonstrate probable cause; or (2) that 10
[the] defendant [] misled a judicial officer into finding probable cause by 11
knowingly or recklessly including material misstatements in, or omitting 12
material information from, the warrant affidavits.” Id. (quotation marks 13
omitted). 14

McDonald has not overcome the presumption that his arrest was 15
supported by probable cause . He argues that Molina knowingly and recklessly 16

omitted material information from her arrest warrant affidavit by failing t o 17
specify how he violated Peare’s order of protection against him

. But Molina’s 185 affidavit adequately describe d how McDonald violated the order , which 1
prohibited him from “contact [ing] [Peare] in any manner

. ” App’x 26

– 27. In 2
particular, the affidavit stated that Peare had “reported receiving mail, addressed 3

to her ex

- husband,” that contained “an invoice for a car rental” and made Peare 4
“anxious and create[d] her concern.” App’x 26. The affidavit explained that 5

Molin a had contacted the rental agency, which reported that McDonald had 6
“signed an agreement and provided the address ” of Peare. Id

. McDonald also 7
suggests that Molina misstated his criminal record , but he fails to explain how 8
that might have changed the M agistrat e J udge’s finding of probable cause. W e 9

therefore conclude that the District Court did not err in dismissing his malicious 10
prosecution claims against Molina. 11

B. Claims Against Peare 12

We likewise conclude that the District Court properly dismiss ed his 13
malicious prosecution claim against Peare under § 1983 . “To state a claim under 14
§ 1983, a plaintiff must allege that defendants violated plaintiff’s federal rights 15
while acting under color of state law.” McGugan v. Aldana

- Bernier , 752 F.3d 16
224, 229 (2d Cir. 2014). A private individual like Peare acts “under color of state 17
law” when she is a “willful participant in joint activity with the State or its 186 agents.” Betts v. Shearman , 751 F.3d 78, 84 (2d Cir. 2014) (quotation marks 1

omi tted)

. But where “a police officer ”

— here, Molina

— “ exercises independent 2
judgment in how to respond to a private party’s legitimate request for assistance, 3
the private party ”

— here, Peare

— “ is not jointly engaged in the officer’s conduct 4
so as to render [her ] a state actor under Section 1983.” Id. at 85 (quotation marks 5
omitted). Even read liberally, McDonald’s complaint fails to allege that Molina 6
and Peare acted together or that Molina failed to exercise independent judgment 7
in completing the warrant and arresting McDonald. T he District Court therefore 8
did not err in dismissing McDonald’s § 1983 claim against Peare

. 9
We agree with the District Court’s dismissal of the Connecticut law claim 10
against Peare for a different reason. U nder Connecticut law, a plaintiff who 11
brings a malicious prosecution claim against a private individual must show that 12
the individual acted without probable cause. Roberts v. Babkiewicz , 582 F.3d 13
418, 420 (2d Cir. 2009) (citing McHale v. W.B.S. Corp. , 187 Conn. 444, 44 6 (Conn. 14
1982)) ; see also Bhatia v. Debek , 287 Conn. 397, 404 (Conn. 2008)

. But McDonald 15
does not allege any non

- conclusory facts from which we might reasonably infer 16

that Peare acted without probable cause in connection with his arrest or 17

p rosecution, and he thus fail s to state a malicious prosecution claim against her 187 under Connecticut law. See Sacerdote v. N.Y. Univ

. , 9 F.4 th 95, 107 (2d Cir. 1
2021). 2
For these reasons, we conclude that the District Court did not err in 3
dismissing McDonald’s malicious prosecution claims against Molina and Peare. 4

II. Leave to Amend 5

McDonald also challenge s the District Court’s denial of his request for 6

leave to amend his complaint. We review the District Court’s denial for abuse of 7

discretion. See Kim v. Kimm , 884 F.3d 98, 105 (2d Cir. 2018). “Although district 8
judges should, as a general matter, liberally permit pro se litigants to amend their 9
pleadings, leave to amend need not be granted when amendment would be 10

futile.” Terry v. Inc. Vill. of Patchogue , 82 6 F.3d 631, 633 (2d Cir. 2016). “Futility 11
is a determination, as a matter of law, that proposed amendments would fail to 12
cure prior deficiencies or to state a claim.” In re Tribune Co. Fraudulent 13
Conveyance Litig. , 10 F.4th 147, 175 (2d Cir. 2021) (quota tion marks omitted). 14
“To determine whether granting leave to amend would be futile, we consider the 15
proposed amendments and the original complaint.” Id. McDonald never 16
proposed any amendments to the complaint that might have cure d its 17

deficiencies. And o ur own independent review of the original complaint 188 persuades us that the District Court was right to conclude that amendment 1
would be futile. For these reasons, we conclude that the District Court did not 2
abuse its direction in denying him leave to ame nd. 3
We have considered McDonald’s remaining arguments and conclude that 4
they are without merit. For the foregoing reasons, the judgment of the District 5

Court is AFFIRMED

. 6

FOR THE COURT: 7 Catherine O’Hagan Wolfe, Cler k of Court 8