17‐1115‐cv Fred Burgess, II v. Christopher DeJoseph et al.
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 COURTʹS 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 ʺSUMMARY ORDERʺ). 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, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 21st day of February, two thousand eighteen.
PRESENT: JOHN M. WALKER, JR., GERARD E. LYNCH, DENNY CHIN, Circuit Judges. ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x
FRED BURGESS, II, Plaintiff‐Appellant,
v. 17‐1115‐cv
CHRISTOPHER DeJOSEPH, individually and in his official capacity, ROBERT TEATER, individually and in his official capacity, FRED LAMBERTON, individually and in his official capacity, FRANK L. FOWLER, Syracuse Police Chief, individually and in his official capacity, CITY OF SYRACUSE, Defendants‐Appellees.
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x FOR PLAINTIFF‐APPELLANT: ZACHARY C. OREN, Law Office of Zachary C. Oren, Utica, New York.
FOR DEFENDANTS‐APPELLEES: CHRISTINA F. DeJOSEPH (Mary L. DʹAgostino), Office of the Corporation Counsel of the City of Syracuse, Syracuse, New York.
Appeal from the United States District Court for the Northern District of
New York (DʹAgostino, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.
Plaintiff‐appellant Fred Burgess, II appeals from a judgment entered
March 21, 2017, in favor of defendants‐appellees Christopher DeJoseph, Robert Teater,
Fred Lamberton, Frank L. Fowler, and the City of Syracuse. By memorandum‐decision
and order also entered March 21, 2017, the district court granted defendants‐appelleesʹ
motion for summary judgment and dismissed the complaint in this false arrest and
malicious prosecution case. We assume the partiesʹ familiarity with the underlying
facts, the procedural history of the case, and the issues on appeal.
On December 31, 2012, David A. Jones, II was shot in his vehicle in
Syracuse, New York; he was transported to the hospital and later pronounced dead.
The Syracuse Police Department (ʺSPDʺ) dispatched officers to the scene and found two
eyewitnesses to the shooting, siblings Jaquan Pridgen and Reonnia Grady. Detectives 2
from SPDʹs Criminal Investigations Division interviewed Pridgen and Grady at the
police station. The witnesses then returned home to the same apartment. The next
morning, Pridgen and Grady were transported back to the station, where they were re‐
interviewed by detectives Christopher DeJoseph and Fred Lamberton. Both witnesses
were separately shown a six‐photo array and positively identified Burgess as the
individual who shot Jones.
Later that day, Burgess was interviewed. He was then charged and
arrested for murder in the first degree, attempted robbery in the first degree, and
criminal possession of a weapon in the second degree. Two days later, he was indicted
by a grand jury on all charges.
On April 25, 2013, the court held a hearing concerning Burgessʹs challenge
to the admissibility of Pridgenʹs and Gradyʹs photo‐array identifications. The court
concluded that ʺthe People have met their burden of showing the reasonableness of the
police conduct and absence of suggestiveness of the identification procedures.ʺ App. at
539‐40. By decision dated July 15, 2013, the court denied Burgessʹs request to dismiss or
reduce the indictment, finding that ʺthe evidence presented to the Grand Jury was
legally sufficient to support the offense[s] contained in the indictment, the
3 proceedings were not defective and proper legal instructions were given to the
Grand Jury.ʺ Id. at 533.
On October 31, 2013, Burgess was acquitted on all counts by a jury.
Burgess commenced the instant lawsuit on November 12, 2014. After the district court
granted defendants summary judgment, this appeal followed.
We review the grant of summary judgment de novo. In re Bank of N.Y.
Derivative Litig., 320 F.3d 291, 297 (2d Cir. 2003). ʺSummary judgment is appropriate
only if it can be established that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law.ʺ Alibrandi v. Fin.
Outsourcing Servs., Inc., 333 F.3d 82, 85 (2d Cir. 2003) (citation and internal quotation
marks omitted).
On appeal, Burgess argues that the district court erred in granting the
defendants summary judgment on his false arrest, malicious prosecution, and
municipal liability claims. He also challenges the district courtʹs decision to deny him
leave to amend his complaint.
I. False Arrest
Burgess argues that the district court erred in finding there was probable
cause for his arrest. We disagree.
4 Probable cause is a complete defense to an action for false arrest under
both state law and 42 U.S.C. § 1983. Jenkins v. City of New York, 478 F.3d 76, 84 (2d Cir.
2007). ʺAn officer has probable cause to arrest when he or she has ʹknowledge 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 . . . a crime.ʹʺ Jaegly v. Couch, 439 F.3d 149, 152 (2d Cir. 2006) (citation
omitted). We consider the ʺtotality of the circumstances,ʺ Maryland v. Pringle, 540 U.S.
366, 371 (2003), ʺfrom the perspective of a reasonable police officer in light of his
training and experience,ʺ United States v. Delossantos, 536 F.3d 155, 159 (2d Cir. 2008),
based on the ʺfacts known to the arresting officer at the time of the arrest,ʺ Devenpeck v.
Alford, 543 U.S. 146, 152 (2004). Probable cause does not require absolute certainty,
Fabrikant v. French, 691 F.3d 193, 214 (2d Cir. 2012), although officers ʺmay not disregard
plainly exculpatory evidence,ʺ Panetta v. Crowley, 460 F.3d 388, 395 (2d Cir. 2006).
Probable cause exists when officers receive information from a putative
victim or eyewitness unless the circumstances raise doubt as to the personʹs veracity.
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17‐1115‐cv Fred Burgess, II v. Christopher DeJoseph et al.
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 COURTʹS 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 ʺSUMMARY ORDERʺ). 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, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 21st day of February, two thousand eighteen.
PRESENT: JOHN M. WALKER, JR., GERARD E. LYNCH, DENNY CHIN, Circuit Judges. ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x
FRED BURGESS, II, Plaintiff‐Appellant,
v. 17‐1115‐cv
CHRISTOPHER DeJOSEPH, individually and in his official capacity, ROBERT TEATER, individually and in his official capacity, FRED LAMBERTON, individually and in his official capacity, FRANK L. FOWLER, Syracuse Police Chief, individually and in his official capacity, CITY OF SYRACUSE, Defendants‐Appellees.
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x FOR PLAINTIFF‐APPELLANT: ZACHARY C. OREN, Law Office of Zachary C. Oren, Utica, New York.
FOR DEFENDANTS‐APPELLEES: CHRISTINA F. DeJOSEPH (Mary L. DʹAgostino), Office of the Corporation Counsel of the City of Syracuse, Syracuse, New York.
Appeal from the United States District Court for the Northern District of
New York (DʹAgostino, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.
Plaintiff‐appellant Fred Burgess, II appeals from a judgment entered
March 21, 2017, in favor of defendants‐appellees Christopher DeJoseph, Robert Teater,
Fred Lamberton, Frank L. Fowler, and the City of Syracuse. By memorandum‐decision
and order also entered March 21, 2017, the district court granted defendants‐appelleesʹ
motion for summary judgment and dismissed the complaint in this false arrest and
malicious prosecution case. We assume the partiesʹ familiarity with the underlying
facts, the procedural history of the case, and the issues on appeal.
On December 31, 2012, David A. Jones, II was shot in his vehicle in
Syracuse, New York; he was transported to the hospital and later pronounced dead.
The Syracuse Police Department (ʺSPDʺ) dispatched officers to the scene and found two
eyewitnesses to the shooting, siblings Jaquan Pridgen and Reonnia Grady. Detectives 2
from SPDʹs Criminal Investigations Division interviewed Pridgen and Grady at the
police station. The witnesses then returned home to the same apartment. The next
morning, Pridgen and Grady were transported back to the station, where they were re‐
interviewed by detectives Christopher DeJoseph and Fred Lamberton. Both witnesses
were separately shown a six‐photo array and positively identified Burgess as the
individual who shot Jones.
Later that day, Burgess was interviewed. He was then charged and
arrested for murder in the first degree, attempted robbery in the first degree, and
criminal possession of a weapon in the second degree. Two days later, he was indicted
by a grand jury on all charges.
On April 25, 2013, the court held a hearing concerning Burgessʹs challenge
to the admissibility of Pridgenʹs and Gradyʹs photo‐array identifications. The court
concluded that ʺthe People have met their burden of showing the reasonableness of the
police conduct and absence of suggestiveness of the identification procedures.ʺ App. at
539‐40. By decision dated July 15, 2013, the court denied Burgessʹs request to dismiss or
reduce the indictment, finding that ʺthe evidence presented to the Grand Jury was
legally sufficient to support the offense[s] contained in the indictment, the
3 proceedings were not defective and proper legal instructions were given to the
Grand Jury.ʺ Id. at 533.
On October 31, 2013, Burgess was acquitted on all counts by a jury.
Burgess commenced the instant lawsuit on November 12, 2014. After the district court
granted defendants summary judgment, this appeal followed.
We review the grant of summary judgment de novo. In re Bank of N.Y.
Derivative Litig., 320 F.3d 291, 297 (2d Cir. 2003). ʺSummary judgment is appropriate
only if it can be established that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law.ʺ Alibrandi v. Fin.
Outsourcing Servs., Inc., 333 F.3d 82, 85 (2d Cir. 2003) (citation and internal quotation
marks omitted).
On appeal, Burgess argues that the district court erred in granting the
defendants summary judgment on his false arrest, malicious prosecution, and
municipal liability claims. He also challenges the district courtʹs decision to deny him
leave to amend his complaint.
I. False Arrest
Burgess argues that the district court erred in finding there was probable
cause for his arrest. We disagree.
4 Probable cause is a complete defense to an action for false arrest under
both state law and 42 U.S.C. § 1983. Jenkins v. City of New York, 478 F.3d 76, 84 (2d Cir.
2007). ʺAn officer has probable cause to arrest when he or she has ʹknowledge 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 . . . a crime.ʹʺ Jaegly v. Couch, 439 F.3d 149, 152 (2d Cir. 2006) (citation
omitted). We consider the ʺtotality of the circumstances,ʺ Maryland v. Pringle, 540 U.S.
366, 371 (2003), ʺfrom the perspective of a reasonable police officer in light of his
training and experience,ʺ United States v. Delossantos, 536 F.3d 155, 159 (2d Cir. 2008),
based on the ʺfacts known to the arresting officer at the time of the arrest,ʺ Devenpeck v.
Alford, 543 U.S. 146, 152 (2004). Probable cause does not require absolute certainty,
Fabrikant v. French, 691 F.3d 193, 214 (2d Cir. 2012), although officers ʺmay not disregard
plainly exculpatory evidence,ʺ Panetta v. Crowley, 460 F.3d 388, 395 (2d Cir. 2006).
Probable cause exists when officers receive information from a putative
victim or eyewitness unless the circumstances raise doubt as to the personʹs veracity.
See Martinez v. Simonetti, 202 F.3d 625, 634‐35 (2d Cir. 2000). ʺA positive photo
identification by an eyewitness is normally sufficient to establish probable cause to
arrest.ʺ Celestin v. City of New York, 581 F. Supp. 2d 420, 431 (E.D.N.Y. 2008).
5 Drawing all reasonable inferences in Burgessʹs favor, we conclude as a
matter of law that probable cause existed to arrest him. Two witnesses, Pridgen and
Grady, separately identified Burgess as the shooter in a photo array. Burgess does not
argue that the photo array was unduly suggestive, but rather that the detectives should
have been aware of inconsistencies in the descriptions given by the interviewees. There
is no evidence, however, that either officer was aware of the inconsistencies. Moreover,
even if they were aware of the inconsistencies, they reasonably relied on the
independent positive photo identifications when making the probable cause
determination. Finally, Burgessʹs assertion that the two witnesses conspired with
another individual to wrongfully accuse him of murder is pure conjecture and not
sufficient to defeat summary judgment. See Goenaga v. March of Dimes Birth Defects
Found., 51 F.3d 14, 18 (2d Cir. 1995). Accordingly, we affirm the district courtʹs
conclusion that there was probable cause to arrest and thus no false arrest.
II. Malicious Prosecution
Burgess argues that the district court erred by granting defendants
summary judgment on his malicious prosecution claim. Again, we disagree.
One of the elements of a claim for malicious prosecution under both
§ 1983 and New York law is the ʺlack of probable cause for commencing the
6 proceeding.ʺ Jocks v. Tavernier, 316 F.3d 128, 136 (2d Cir. 2003) (quoting Murphy v. Lynn,
118 F.3d 938, 947 (2d Cir. 1997)). ʺ[A] grand jury indictment gives rise to a presumption
that probable cause exists.ʺ McClellan v. Smith, 439 F.3d 137, 145 (2d Cir. 2006). This
presumption ʺmay be rebutted by evidence of various wrongful acts on the part of
police,ʺ by ʺʹestablish[ing] that the indictment was produced by fraud, perjury, the
suppression of evidence or other police conduct undertaken in bad faith.ʹʺ Id. (quoting
Colon v. City of New York, 60 N.Y.2d 78, 83 (1983)). Burgess ʺbears the burden of
establishing that [d]efendants misled the grand jury and the prosecutors by either
withholding or misrepresenting evidence in order to sustain the case against [him].ʺ
Dufort v. City of New York, 874 F.3d 338, 353 (2d Cir. 2017).
For the reasons articulated by the district court below, we conclude that
Burgess failed to present evidence from which a jury could find that defendants misled
the grand jury, suppressed evidence, acted in bad faith, or engaged in any wrongful
conduct. We reject the argument that the presumption of probable cause was rebutted
by the defendantsʹ failure to testify at the grand jury hearing to certain exculpatory
statements. It was the prosecutor, not the defendant police officers, ʺwho had the
discretion and authority to decide what evidence to present to the grand jury,ʺ and the
7 prosecutor ʺwas under no duty to present every item of arguably exculpatory evidence
in seeking an indictment.ʺ Savino v. City of New York, 331 F.3d 63, 75 (2d Cir. 2003).
Finally, we reject Burgessʹs alternative argument that probable cause
dissipated at some point during his prosecution, thereby making defendants liable for
its continuation. Where, as here, probable cause existed for the arrest, Burgess must
show that probable cause dissipated at some point after the arraignment. See Gaston v.
City of New York, 851 F. Supp. 2d 780, 793 (S.D.N.Y. 2012) (stating that probable cause
must dissipate after the commencement of prosecution); Meija v. City of New York, 119 F.
Supp. 2d 232, 254 (E.D.N.Y. 2000) (noting that prosecution commences at arraignment).
Although Burgess presented arguably exculpatory evidence that developed after his
arraignment, he failed to present sufficient evidence to permit a jury to find defendants
responsible for continuing Burgessʹs prosecution.
ʺ[P]olice officers do not generally commence or continue criminal
proceedings against defendants.ʺ Bermudez v. City of New York, 790 F.3d 368, 377 (2d
Cir. 2015) (internal quotation marks omitted). Here, the defendantsʹ post‐arraignment
involvement in the prosecution was minimal, and certainly could not be considered
ʺactiveʺ or beyond the normal police tasks of ʺreport[ing information] or giv[ing]
testimony.ʺ Manganiello v. City of New York, 612 F.3d 149, 163 (2d Cir. 2010). The
8 defendants were not even aware of all the information that Burgess argues was
exculpatory, nor is there evidence that any of the defendants played an active role in
encouraging or influencing the decision to continue the prosecution. It was thus the
prosecutors, not the defendants, who decided to continue the case despite the arguably
exculpatory evidence. Accordingly, we affirm the district courtʹs grant of summary
judgment on this claim.
III. Municipal Liability
The district court dismissed Burgessʹs municipal liability claim because it
dismissed the underlying constitutional violations. See City of Los Angeles v. Heller, 475
U.S. 796, 799 (1986); Monell v. Depʹt of Soc. Servs. of City of N.Y., 436 U.S. 658, 690‐91
(1978). We likewise find no underlying constitutional violation, and so affirm the
district courtʹs dismissal of these claims.
IV. Leave to Amend Complaint
We review the district courtʹs denial of a motion for leave to amend a
complaint for abuse of discretion. ATSI Commcʹns., Inc. v. Shaar Fund, Ltd., 493 F.3d 87,
108 (2d Cir. 2007). The district court denied Burgessʹs motion to amend the complaint
to add four parties and a failure to intervene cause of action, concluding that the motion
was inexplicably delayed and the proposed amendment was futile. On appeal, Burgess
9 only makes brief references to an amended complaint, primarily in footnotes, and does
not present us with any arguments that persuade us that the district court abused its
discretion. Accordingly, we find no abuse of discretion and affirm the district courtʹs
denial of his motion to amend.
. . .
We have considered Burgessʹs remaining arguments and find them to be
without merit. Accordingly, we AFFIRM the district courtʹs judgment.
FOR THE COURT: Catherine OʹHagan Wolfe, Clerk of Court