Hicks v. Marchman
Opinion
17‐615‐cv Hicks v. Marchman, 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 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.
1 At a stated term of the United States Court of Appeals for the Second 2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley 3 Square, in the City of New York, on the 5th day of January, two thousand 4 eighteen. 5 6 PRESENT: GERARD E. LYNCH, 7 RAYMOND J. LOHIER, JR., 8 Circuit Judges, 9 CHRISTINA REISS, 10 Chief District Judge.* 11 ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 12 13 TYRONE HICKS, 14 15 Plaintiff‐Appellant, 16 17 v. No. 17‐615‐cv 18 19 DETECTIVE MICHAEL MARCHMAN, CITY OF 20 NEW YORK, 21 22 Defendants‐Appellees, 23
* Chief Judge Christina Reiss, of the United States District Court for the District of Vermont, sitting by designation.
1 DETECTIVE CATALANO, DETECTIVE LYNCH, 2 JOHN AND JANE DOES, 3 4 Defendants.** 5 6 ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
7 FOR APPELLANT: ADELE BERNHARD, Brooklyn, NY. 8 9 FOR APPELLEES: INGRID R. GUSTAFSON (Fay S. Ng, on 10 the brief), for Zachary W. Carter, 11 Corporation Counsel of the City of 12 New York, New York, NY. 13 14 Appeal from a judgment of the United States District Court for the
15 Southern District of New York (Paul A. Crotty, Judge). 16 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 17 AND DECREED that the judgment of the District Court is AFFIRMED in part 18 and VACATED in part, and the case is REMANDED for further proceedings. 19 Tyrone Hicks appeals from a judgment of the District Court (Crotty, J.) 20 dismissing his complaint for failure to state a claim. On appeal, Hicks challenges 21 the dismissal of his fair trial and malicious prosecution claims. We assume the 22 parties’ familiarity with the facts and record of the prior proceedings, to which 23 we refer only as necessary to explain our decision to affirm in part, vacate in part, 24 and remand.1
** The Clerk of Court is directed to amend the official caption as set forth above.
1 In addition to the complaint, we have also considered records from Hicks’s criminal
1 We first address Hicks’s fair trial claim based on the defendant officers’ 2 alleged fabrication of information. To state such a fair trial claim, a plaintiff must 3 plausibly allege that investigating officers fabricated information that was likely 4 to influence a jury’s verdict, forwarded that information to prosecutors, and that 5 the plaintiff suffered a deprivation of life, liberty, or property as a result. Garnett 6 v. Undercover Officer C0039, 838 F.3d 265, 279 (2d Cir. 2016). And in assessing 7 the claim, we accept all of the well‐pleaded factual allegations in Hicks’s 8 complaint as true and draw all inferences in his favor. Lopez v. Jet Blue 9 Airways, 662 F.3d 593, 596 (2d Cir. 2011). 10 Hicks’s complaint alleges, among other things, that the officers used 11 impermissibly suggestive identification procedures to encourage the victim, T.T., 12 to identify Hicks as her assailant from a photographic array and then failed to 13 disclose the use of those suggestive procedures to the District Attorney’s Office. 14 Had that been the only allegation, we would have affirmed the District Court’s 15 dismissal of the fabrication claim because the state criminal court assumed the 16 procedures were suggestive, excluded the resulting identification, and 17 determined that there was an independent basis for T.T.’s later identifications of
case that he relied on in his complaint. See Nicosia v. Amazon.com, Inc., 834 F.3d 220, 230 (2d Cir. 2016).
1 Hicks as her attacker. But the complaint alleges not merely that the photographic 2 array was in some general way suggestive, but also alleges that (1) a detective 3 deliberately gave T.T. prejudicial information about Hicks during the photo 4 array procedure and hid this misconduct from the court and prosecutors; (2) the 5 officers lied to the prosecutors that Hicks had bragged about being the “Bronx 6 Rapist” and that Hicks’s mother told them that Hicks was the person depicted in 7 the sketch T.T. had created; (3) Hicks’s parole officer ultimately refused to credit 8 T.T.’s identification of Hicks after interviewing T.T.; (4) the officers failed to 9 preserve the photographic array from which T.T. identified Hicks; and (5) two 10 other victims were unable to identify Hicks. In view of Hicks’s ultimate 11 exoneration, these allegations together raise a plausible inference that the officers 12 fabricated information that was likely to influence a jury’s verdict and that they 13 forwarded that information to the prosecutors. Hicks has also adequately 14 alleged that he was arrested as a result of the fabricated information and that the 15 information influenced the prosecutors’ “decision to pursue charges rather than 16 to dismiss the complaint without further action[.]” Garnett, 838 F.3d at 277. We 17 therefore conclude that the complaint states a plausible fair trial claim based on 18 the fabrication of information, and vacate the dismissal of that claim.
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