17-2663-cv Debrosse v. The 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 PROC EDURE 32.1 AND THIS COURT = S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMEN T FILED WITH THIS CO URT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATA BASE (WITH THE NOTATION

A 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 Thurgood Marshall United States Courthouse, 40 Fo ley Square, in the City of New York, on the 28 th day of June, two thousand eighteen.

PRESENT: P IERRE N. L EVAL , G UIDO C ALABRESI , D EBRA A NN L IVINGSTON , Circuit Judges

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_____________________________________ D ONALD D EBROSSE , Plaintiff-Appellant , v. 17-2663-cv

C ITY OF N EW Y ORK , D ETECTIVE M ICHAEL G AYNOR , T AX # 928363, D ETECTIVE D AVID A RVELO , T AX # 895970, D ETECTIVE L ORRAINE W INTERS , T AX # 921297, P OLICE O FFICER P ABLO D EJESUS , T AX # 915572, D ETECTIVE A NDREW M ENNELLA , T AX # 922778, D ETECTIVE R OBERT A IELLO , T AX # 901092, C LAUDE J EANPIERRE , T AX # 919209, P OLICE O FFICERS J OHN AND J ANE D OE ( S ), 1-10, Defendants-Appellees

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_____________________________________ For Plaintiff-Appellant: D AVID A. Z ELMAN , Law Offices of David A. Zelman, Brooklyn, New York.2 For Defendants-Appellees: S COTT S HORR (Richard Dearing, on the brief ), for Zachary W. Carter, Corporation Counsel of the City of New York, New York, New York. Appeal from a judgment of the United States Di strict Court for the Eastern District of New York (Donnelly, J. ) entered August 2, 2017. UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED

. Plaintiff-Appellant Donald Debrosse appeal s from an August 2, 2017 judgment of the

United States District Court for the Eastern Dist rict of New York granting Defendants-Appellees’ motion for summary judgment. In his Amended Complaint, Debrosse alleges that DefendantsAppellees – various police officer s and the City of New York – maliciously prosecuted him, violated his constitutional right to a fair trial, and maliciously a bused the criminal process. In opposing summary judgment below, Debrosse abandoned all of his claims except for his malicious prosecution and fair trial claims against police o fficers Michael Gaynor and Lorraine Winters. On appeal, Debrosse contends that genuine disputes of material fact precluded the district court from awarding Gaynor and Winters summary judgment on Debrosse’s malicious prosecution and fair trial claims. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

We review de novo a district court’s grant of su mmary judgment, “construing all the evidence in the light most favorable to the non- movant and drawing all re asonable inferences in that party’s favor.” McBride v. BIC Consumer Prod. Mfg. Co., Inc. , 583 F.3d 92, 96 (2d Cir. 2009). We affirm only where “the movant shows that there is no genuine dispute as to any3 material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “The non-moving party may not rely on conclusory allegations or unsubstantiated speculation.”

Scotto v. Almenas , 143 F.3d 105, 114 (2d Cir. 1998) (citati on omitted). In deciding a summary judgment motion, a district court considers “only admissible evidence.” Nora Beverages, Inc. v. Perrier Grp. of Am., Inc. , 269 F.3d 114, 123 (2d Cir. 2001). We begin with Debrosse’s malicious pros ecution claim. To prevail on a malicious prosecution claim under New York law, a plaintiff must demonstrate “[1] that Defendants either commenced or continued a criminal proceeding against him, [2] that the proceeding terminated in his favor, [3] that there was no probable cause for the criminal proceeding , and [4] that the criminal proceeding was instituted with actual malice.” Bermudez v. City of New York , 790 F.3d 368, 376–77 (2d Cir. 2015) (emphasis added). “[T]he existence of probable cause is a complete

defense to a claim of malicious prosecution in New York.” Savino v. City of New York , 331 F.3d 63, 72 (2d Cir. 2003). “Where, as here, a grand jury indicted the plaintiff on the relevant criminal charge, New York law creates a presum ption of probable cause . . . .” Bermudez , 790 F.3d at 377. In assessing the probable cause element of a malicious prosecution claim under New York law, courts “may not weigh the evidence upon which th e police acted or which was before the Grand Jury after the indictment has issued.” Colon v. City of New York , 60 N.Y.2d 78, 83 (1983). Instead, the presumption of probable cause “can only be overcome by evidence that the indictment was the product of fraud, perjury, the suppression of evidence by the police, or other police conduct

undertaken in bad faith.” Bermudez , 790 F.3d at 377 (citations and internal quotation marks omitted). “[I]t is the plaintiff who bears the bu rden of proof in rebutting the presumption of probable cause that arises from the indictment.” Savino , 331 F.3d at 73. We have explained that4 a malicious prosecution plaintiff’ s “mere conjecture and surmise” ar e insufficient to overcome the presumption of probable cause re sulting from the indictment. Id. (citation and internal quotation marks omitted). Upon review, substantially for the reasons stat ed by the district court, we agree that

Debrosse failed to rebut the presumption of probable cause. That is, aside from offering conclusory allegations and unsubstantiated spec ulation, Debrosse has not met his burden of producing admissible evidence from which a reasonable juror could infer “that the indictment was the product of fraud, perjury, the suppression of evidence by the police, or other police conduct

undertaken in bad faith.” Bermudez , 790 F.3d at 377 (citations and internal quotation marks omitted). In particular, having reviewed the deposition testimony of eyewitness Chyrl Williams (which took place n early five years after the shooting), we discern no ba sis for a reasonable juror

to infer that the indictment re sulted from fraud, perjury, eviden ce suppression, or bad faith conduct by Gaynor and Winters. Indeed, to the contrary, W illiams plainly testified that the police officers complied with their procedures, and she flatly denied that the police officers suggested that Debrosse was a suspect or pressured her in any way. Nor does any of the inadmissible hearsay deposition testimony of Williams’s father (recounti ng what his daughter told him) or the victim, Peter Daleus, (relaying Williams’s statements, including her statements about what the police told her) defeat summary judgment, since the court may consider “only admissible evidence.” Nora Beverages, Inc. , 269 F.3d at 123. In short, on this record, no reasona ble jury could find that Gaynor and Winters lacked probable cause to pros ecute Debrosse. We thus conclude that the5 district court did not err in awarding Gaynor and Winters su mmary judgment on Debrosse’s malicious prosecution claim. 1 We next turn to Debrosse’s claim that, by fabricating evidence, Gaynor and Winters deprived Debrosse of his const itutional right to a fair trial. 2 Our precedent “restricts fair trial

claims based on fabrication of information” to cases where “an (1) investigating official (2) fabricates information (3) that is likely to influenc e a jury’s verdict, (4) forwards that information to prosecutors, and (5) the plainti ff suffers a deprivation of life, lib erty, or property as a result.” Garnett v. Undercover Officer C0039 , 838 F.3d 265, 279 (2d Cir. 2016). “[T]he requirements that the information be both false and likely to in fluence a jury’s decision constrain the types of

information that can serve as the basis for a de nial of the right to a fair trial claim.” Id. at 280. We agree with the district court that Debrosse’s fair trial claim, which is based largely on conclusory, speculative allegations and unsupporte d by admissible evidence in the record, cannot survive summary judgment. See Scotto , 143 F.3d at 114; Nora Beverages, Inc. , 269 F.3d at 123; Fappiano v. City of New York , 640 F. App’x 115, 118 (2d Cir. 2016) (summary order), cert. denied sub nom. Fappiano v. City of New York, N.Y. , 137 S. Ct. 341 (2016); Apostol v. City of New York , 607 F. App’x 105, 107 (2d Cir. 2015) (summary order). Specifically, we conclude that nothing

1 Because our probable cause determination suffices to resolve Debrosse’s malicious prosecution appeal, we need not reach the district court’s discussion of the other malicious prosecution elements, such as favorable termination and actual malice.

2 Pointing to Manuel v. City of Joliet, Ill. , 137 S. Ct. 911, 917–20 & 920 n.8 (2017), Gaynor and Winters dispute whether a pretrial detainee whose cr iminal case is dismissed before trial, such as Debrosse, may ever bring a fair trial deprivation claim (under the Fourteenth Amendment), as opposed to an abuse of criminal process clai m (under the Fourth Amendment). Debrosse concedes that he abandoned his abuse of criminal process claim below. We express no view on the issue because it is not necessary to decide this case.6 admissible in Peter Daleus’s deposition testimony or affidavit creates a genui ne issue of material fact as to whether Gaynor or Winters fabricated information that was likely to influence a jury’s

verdict. Debrosse’s counsel conceded that Gaynor interviewed Peter Daleus at a hospital on September 12, 2009, and Peter Daleus testified at hi s deposition that he di d not remember this interview. Peter Daleus cannot contradict Gayno r’s account of a conversa tion that Peter Daleus does not remember. We are thus unable to identify reversible error in the district court’s award of summary judgment to Gaynor and Wint ers on Debrosse’s fair trial claim. Accordingly, we AFFIRM the judgment of the district court.

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