25-1488 Dougal v. County of Saratoga
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 REPRSENTED 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 16th day of September, two thousand twenty-six.
PRESENT:
GUIDO CALABRESI,
SUSAN L. CARNEY,
MYRNA PÉREZ,
Circuit Judges.
_____________________________________
ROBERT DOUGAL, Plaintiff-Appellant,
v. No. 25-1488
COUNTY OF SARATOGA, MICHAEL ZURLO, SARATOGA COUNTY SHERIFF, BRENT DUPRAS, RETIRED SARATOGA COUNTY SHERIFF’S SERGEANT, C.J.
BROWNELL, SARATOGA COUNTY SHERIFF'S DEPUTY, JOHN CAREY, SARATOGA COUNTY SHERIFF’S DEPUTY,
WILLIAM BRADY, FORMER SARATOGA COUNTY SHERIFF'S DEPUTY, ERIC LEWICKI, NEW YORK STATE TROOPER, CHRISTOPHER MARTIN, NEW YORK STATE TROOPER, NICK DZIAMBA, NEW YORK STATE TROOPER, LEE KINDLON, DEFENSE ATTORNEY,
Defendants-Appellees,
KAREN HEGGEN, SARATOGA COUNTY DISTRICT ATTORNEY, RACHAEL WELCH PHELAN, ASSISTANT DISTRICT ATTORNEY, ANNA BESSON, ASSISTANT DISTRICT ATTORNEY, DANIEL WALDRON, FORMER SARATOGA TOWN JUSTICE, CHARLES SHERMAN, SARATOGA TOWN JUSTICE, JOHN MCCARRON, SARATOGA TOWN JUSTICE,
Defendants. *
_____________________________________
FOR PLAINTIFF-APPELLANT: Robert Dougal, pro se, Schuylerville, NY.
FOR DEFENDANTS-APPELLEES: Jonathan Bernstein, Goldberg Segalla LLP,
Albany, NY.
*
The Clerk of Court is respectfully directed to amend the caption as reflected above.
Appeal from a judgment of the United States District Court for the Northern District of New York (Hurd, J.; Evangelista, M.J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.
Robert Dougal, pro se, commenced this action under 42 U.S.C. §§ 1983 and 1985 against police officers, prosecutors, town justices, and a defense attorney, asserting constitutional violations stemming from criminal proceedings. The district court dismissed his original complaint on initial screening, reasoning in relevant part that his own defense attorney in a criminal case, whom he had sued, was not a state actor. Dougal v. Lewicki, No. 23-CV-1167, 2023 WL 6430586 (N.D.N.Y. Oct. 3, 2023), report and recommendation adopted, No. 23-CV-1167, 2023 WL 7013384 (N.D.N.Y. Oct. 25, 2023). Dougal’s second amended complaint asserted, as relevant here, various constitutional claims related to his 2017 arrest and subsequent prosecution for a weapons offense, malicious prosecution claims related to two arrests and prosecutions for violating orders of protection, and municipal liability claims based on how he was allegedly treated while incarcerated. A magistrate judge issued a report and recommendation (“R&R”) recommending dismissal, which the district court adopted in full. Dougal v. Lewicki, No. 23-CV-1167, 2025 WL 1614337 (N.D.N.Y. Feb. 26, 2025), report and recommendation adopted,
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No. 23-CV-1167, 2025 WL 1452883 (N.D.N.Y. May 21, 2025). We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal. 1 At the outset, Dougal has waived or forfeited several of his arguments by failing to properly present them either in this Court or in the district court. See Tripathy v. McKoy, 103 F.4th 106, 118 (2d Cir. 2024) (pro se appellant abandons claims “by failing to adequately present arguments challenging their dismissal in his opening appellate brief”); In re Flanagan, 503 F.3d 171, 182 (2d Cir. 2007) (“We generally will not consider arguments raised for the first time on appeal.”). Accordingly, the only issues properly before us are whether the district court correctly dismissed (1) Dougal’s claims against his former defense attorney, Lee Kindlon; (2) most of the claims in his first cause of action (related to the 2017 arrest and prosecution) on the basis of the statute of limitations and the doctrine of Heck v. Humphrey, 512 U.S. 477 (1994); (3) his claims for malicious prosecution against Saratoga County Sheriff Michael Zurlo, Sheriff’s Deputy William Brady, and New York State Trooper Nick Dziamba related to his arrests for violating orders of protection; (4) his claims against Zurlo and Saratoga County related to the delayed administration of medication while incarcerated; and (5) his defamation claim
1 Dougal also moves to amend the caption and to supplement the record. The motion to amend is granted, and the motion to supplement is denied. See Fed. R. App. P. 10(e)(2).
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against State Trooper Eric Lewicki under New York law. As discussed below, Dougal’s arguments on appeal offer no reason to disturb the district court’s dismissal of those claims.
“We review de novo a district court’s sua sponte dismissal under 28 U.S.C.
§ 1915(e)(2).” Hardaway v. Hartford Pub. Works Dep’t, 879 F.3d 486, 489 (2d Cir. 2018). “To avoid dismissal, a complaint must plead ‘enough facts to state a claim to relief that is plausible on its face.’” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Because [Dougal] has been pro se throughout, his pleadings and other filings are interpreted to raise the strongest claims they suggest.” Sharikov v. Philips Med. Sys. MR, Inc., 103 F.4th 159, 166 (2d Cir. 2024).
I. Claims Against Kindlon The district court dismissed Dougal’s claims against his former defense attorney on the grounds that Dougal did not plausibly allege that the attorney was a “state actor” for § 1983 purposes. See Tancredi v. Metro. Life Ins. Co., 316 F.3d 308, 312 (2d Cir. 2003) (“A plaintiff pressing a claim of violation of his constitutional rights under § 1983 is . . . required to show state action.”). On appeal, Dougal argues that his submission of additional evidence, including an arbitration decision and grievance committee
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determination, supports his claim that a due process violation took place. But Dougal advances no theory on appeal that his attorney acted under color of state law in failing to follow his instructions to appeal or in taking any other action in his capacity as counsel to Dougal. See McGugan v. Aldana-Bernier, 752 F.3d 224, 229 (2d Cir. 2014) (private party acts under color of law when (1) “the State compelled the conduct,” (2) “there is a sufficiently close nexus between the State and the private conduct,” or (3) “the private conduct consisted of activity that has traditionally been the exclusive prerogative of the State” (internal quotation marks omitted)). The dispositive issue has thus been abandoned, and we therefore affirm the dismissal of this claim. See Tripathy, 103 F.4th at 118.
II. Claims in First Cause of Action Dougal’s first cause of action in his second amended complaint relates to the actions of officers during his January 2017 arrest for weapons offenses through the end of his trial in January 2020. The district court dismissed this cause of action as untimely, except for claims against Lewicki, which it dismissed on other grounds not challenged on appeal. And it dismissed all the claims in the cause of action, except for a claim of excessive force, as barred by the Heck doctrine. Because the statute of limitations disposes of all of Dougal’s claims under this cause of action that are before us, we need not address his arguments challenging the application of the Heck doctrine.
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Generally, “Section 1983 actions filed in New York are . . . subject to a three-year statute of limitations.” Hogan v. Fischer, 738 F.3d 509, 517 (2d Cir. 2013). A § 1983 claim accrues “when the plaintiff knows or has reason to know of the injury which is the basis of his action.” Pearl v. City of Long Beach, 296 F.3d 76, 80 (2d Cir. 2002) (internal quotation marks and citation omitted). On appeal, Dougal argues that the statutes of limitations for these claims should have been tolled based on the 2023 discovery of a “defamatory” 2016 email forwarded by Lewicki to several other state troopers indicating that Dougal was mentally unstable and disdainful of the police and recommending that Dougal’s home be placed on a “house watch.” Dougal argues that email was “central” to the police response in 2017 and therefore to his claims stemming from that response.
That argument is unpersuasive. Whether conceptualized as an argument for equitable estoppel (applicable where “the plaintiff knew of the existence of his cause of action but the defendant’s conduct caused him to delay in bringing his lawsuit”) or equitable tolling (“where the plaintiff is ignorant of his cause of action because of the defendant’s fraudulent concealment”), it does not entitle him to relief from the statute of limitations. Ellul v. Cong. of Christian Bros., 774 F.3d 791, 802 (2d Cir. 2014) (internal quotation marks and citation omitted). Dougal did not demonstrate any causal relationship between the email and his claims against the officers for arresting and charging him with weapons offenses; it is not even clear these officers knew about the
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email in question. See Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir. 2000) (Plaintiff must show “a causal relationship between the extraordinary circumstances on which the claim for equitable tolling rests and the lateness of his filing”). As to those claims, Dougal “knew or had reason to know” of the injuries resulting from them by January 2020 (when he was convicted for the weapons charge) at the latest, meaning he was required to bring his claims by January 2023. Saint-Jean v. Emigrant Mortg. Co., 129 F.4th 124, 141 (2d Cir. 2025). Dougal filed his initial complaint in September 2023, nine months late.
Dougal next contends that the claims in his first cause of action should be considered timely under the “continuing violation” doctrine, which provides that “[w]hen a plaintiff experiences a continuous practice and policy [that violates his or her rights], . . . the commencement of the statute of limitations may be delayed until the last [violation].” Flores v. United States, 885 F.3d 119, 122 (2d Cir. 2018) (quoting Cornwell v. Robinson, 23 F.3d 694, 703 (2d Cir. 1994)). Because he alleged some events that occurred within three years of his complaint (namely, additional charges for a different offense brought in July 2022, his remand to jail after his appeal was rejected, and mistreatment in jail), Dougal argues that his complaint states a continuing violation of his civil rights. But the continuing violation doctrine applies on a per-defendant basis, and none of the defendants named in the first cause of action committed any of these more recent acts. See Lucente v. County of Suffolk, 980 F.3d 284, 310 (2d Cir. 2020) (continuing violation
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doctrine can apply against individual defendants “as long as each plaintiff allege[s] an [unlawful] act committed by each particular defendant that falls within the [statute of limitations]”). Dougal thus cannot rely on the continuing violation doctrine to toll his claims. See id.
III. Malicious Prosecution Next, Dougal challenges the dismissal of his third cause of action, which alleged that Brady and Dziamba violated his Fourth and Fourteenth Amendment rights to be free from malicious prosecution in connection with charges for violations of an order of protection. Dougal further alleged that Zurlo violated his Fourth and Fourteenth Amendment rights by failing to respond to complaints about officers’ alleged misconduct and failing to train and supervise Brady, his employee.
The district court erred in concluding that the malicious prosecution claim against Brady (and Zurlo as his supervisor) was untimely raised more than three years after its accrual. “[A] malicious prosecution claim accrues when the underlying prosecution terminates in favor of the accused,” not when proceedings begin. See Spak v. Phillips, 857 F.3d 458, 462 (2d Cir. 2017). Based solely on the allegations in the complaint, these malicious prosecution claims never accrued because the charges were still pending. After objecting to the R&R, Dougal also submitted a state-court disposition dated April 2025, which––though far from clear––possibly indicates the favorable termination of both
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contempt proceedings. Accordingly, his complaints, filed before the termination of the proceedings, were not untimely.
The district court alternatively dismissed these malicious prosecution claims because they were barred by the Heck doctrine. Under Heck, a plaintiff cannot bring a § 1983 suit for “harm caused by actions whose unlawfulness would render a conviction or sentence invalid” unless he can show that the underlying conviction or sentence has been invalidated. 512 U.S. at 486–87. But according to Dougal, there was no conviction for these offenses. And contrary to the district court’s reasoning, the Rooker-Feldman doctrine does not prevent this Court from hearing either of these claims because Dougal does not seek to overturn a state-court conviction; he is not a “state-court loser[]” and has not “invit[ed] district court review and rejection” of a state court’s judgment. T.M. v. Univ. of Md. Med. Sys. Corp., 608 U.S. ___, 146 S. Ct. 1739, 1754 (2026).
However, “[w]e are free to affirm on any ground that finds support in the record, even if it was not the ground upon which the trial court relied.” Beijing Neu Cloud Oriental Sys. Tech. Co., Ltd. v. Int’l Bus. Machs. Corp., 110 F.4th 106, 113 (2d Cir. 2024) (internal quotation marks and citation omitted). “In order to prevail on a § 1983 claim against a state actor for malicious prosecution, a plaintiff must show a violation of his rights under the Fourth Amendment and must establish the elements of a malicious prosecution claim under state law.” Manganiello v. City of New York, 612 F.3d 149, 160–
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61 (2d Cir. 2010) (internal citations omitted). To succeed on a malicious prosecution claim under New York law, a plaintiff must show, among other things, “actual malice as a motivation for defendant’s actions.” Id. at 161 (internal quotation mark and citation omitted). Actual malice exists when a defendant commences a criminal proceeding against plaintiff “due to a wrong or improper motive, something other than a desire to see the ends of justice served.” Rounseville v. Zahl, 13 F.3d 625, 630 (2d Cir. 1994) (quoting Nardelli v. Stamberg, 377 N.E.2d 975, 976 (N.Y. 1978)).
Dougal fails to plausibly plead actual malice. The first of the arrests at issue, in May 2020, was made after a neighbor who had a protective order against Dougal complained to law enforcement that Dougal had violated the protective order. Likewise, the July 2022 arrest was made after the same neighbor and his son made multiple complaints about Dougal. Dougal’s argument that his neighbor did not appear fearful is immaterial; second-degree criminal contempt based on violation of a protective order requires only “[i]ntentional disobedience or resistance to the lawful process or other mandate of a court.” N.Y. Penal Law § 215.50(3). Beyond these allegations, Dougal contends only in a conclusory fashion that Brady and Dziamba exhibited bias against him and brought charges in bad faith. And because Dougal does not allege Zurlo violated his constitutional rights other than by supervising Brady, he does not state a claim against Zurlo either. See Tangreti v. Bachmann, 983 F.3d 609, 618 (2d Cir. 2020)
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(plaintiff must allege personal involvement of defendant to state § 1983 claim, and “there is no special rule for supervisory liability”).
IV. Monell Claims Dougal also contends that the district court prematurely dismissed his Monell claims against Zurlo and Saratoga County—premised on their delays in providing him medications on two occasions in 2022—because it failed to properly consider the health effects he suffered from the alleged deprivations. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978). That argument fails.
To state a claim for deliberate indifference to serious medical needs, a plaintiff must show both an objectively serious medical need and a subjective deliberate indifference to that need on the part of defendants. See Smith v. Carpenter, 316 F.3d 178, 183–84 (2d Cir. 2003). The magistrate judge’s decision, adopted by the district court, expressly assumed that Dougal made a prima facie showing that the delays in providing medications while he was incarcerated were sufficiently serious to state a claim. Instead, the court concluded that Dougal did not plausibly allege that the first delay was intentional or imposed to cause him discomfort. And as to both delays, the court concluded that Dougal failed to plausibly allege a failure to train, failure to supervise, or policy by Zurlo or Saratoga County that was responsible for the injury. We see no reason to disturb these conclusions.
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V. Defamation Claim Lastly, Dougal argues that the district court erred in declining supplemental jurisdiction over his defamation claim under New York law. But Dougal’s argument rests on the premise that he has viable claims under federal law. Because he does not, the district court was permitted to decline supplemental jurisdiction where it had correctly “dismissed all claims over which it ha[d] original jurisdiction.” 28 U.S.C. § 1367(c)(3).
We have considered all of Dougal’s arguments and find them to be without merit.
Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court