Hillary v. St. Lawrence County

CourtCourt of Appeals for the Second Circuit
DecidedJune 26, 2023
Docket22-773
StatusUnpublished

This text of Hillary v. St. Lawrence County (Hillary v. St. Lawrence County) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hillary v. St. Lawrence County, (2d Cir. 2023).

Opinion

22-773-cv Hillary v. St. Lawrence County, 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 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 26th day of June, two thousand twenty-three.

Present: DEBRA ANN LIVINGSTON, Chief Judge, BETH ROBINSON, MARIA ARAÚJO KAHN, Circuit Judges. _____________________________________

ORAL NICHOLAS HILLARY,

Plaintiff-Appellant,

v. 22-773-cv

MARK MURRAY,

Defendant-Appellee,

ST. LAWRENCE COUNTY, MARY E. RAIN, UNIDENTIFIED JANE AND JOHN DOE 1-10 ST. LAWRENCE COUNTY EMPLOYEES, ST. LAWRENCE COUNTY DISTRICT ATTORNEY’S OFFICE, ST. LAWRENCE COUNTY KEVIN M. WELLS, JOHN E. JONES, UNIDENTIFIED JANE AND JOHN DOE 11-20 ST. LAWRENCE COUNTY DISTRICT ATTORNEY EMPLOYEES, VILLAGE OF POTSDAM, VILLAGE OF POTSDAM POLICE DEPARTMENT, UNIDENTIFIED JANE AND JOHN DOE 21-30 ST. LAWRENCE COUNTY

1 SHERIFF EMPLOYEES, EDWARD TISCHLER, KEVIN M. BATES, UNIDENTIFIED JANE AND JOHN DOE VILLAGE OF POTSDAM EMPLOYEES 31-40, ONONDAGA COUNTY, WILLIAM FITZPATRICK, NEW YORK STATE POLICE, GARY SNELL, THEODORE LEVINSON, TIM PEETS, RAY WICKENHEISER, JULIE PIZZIKETTI, UNIDENTIFIED JANE AND JOHN DOE 41-50 NEW YORK STATE POLICE EMPLOYEES,

Defendants. *

_____________________________________

For Plaintiff-Appellant: MATTHEW B. KELLER (Donna Aldea, Alexander R. Klein, on the briefs), Barket Epstein Kearon Aldea & LoTurco, LLP, Garden City, NY.

For Defendant-Appellee: GREGG T. JOHNSON (April J. Laws, Loraine C. Jelinek, on the brief), Johnson & Laws, LLC, Clifton Park, NY.

Appeal from a judgment of the United States District Court for the Northern District of

New York (Sharpe, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

Plaintiff-Appellant Oral Nicholas Hillary (“Hillary”) appeals from a judgment of the

United States District Court for the Northern District of New York (Sharpe, J.) granting summary

judgment in favor of Defendant-Appellee Mark Murray (“Murray”). Hillary brought a Section

1983 claim against several defendants, alleging that they violated his rights under the Equal

Protection Clause in the course of investigating, arresting, and prosecuting him for the 2011

murder of Garrett Phillips. Murray is an officer of the Village of Potsdam Police Department

who arrested Hillary in 2014. In its September 24, 2021 decision and order, the district court

granted summary judgment on Hillary’s equal protection claims against Murray. For the reasons

* The Clerk is respectfully directed to amend the caption as set forth above.

2 set forth below, we affirm the district court’s judgment. We assume the parties’ familiarity with

the underlying facts, the procedural history of the case, and the issues on appeal.

* * *

The standard for granting summary judgment is well established. Summary judgment is

granted “if the movant shows that there is no genuine dispute as to any material fact and the movant

is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “We review the district court’s

grant of summary judgment de novo, construing the evidence in the light most favorable to the

non-moving party.” Johnson v. Goord, 445 F.3d 532, 534 (2d Cir. 2006). To determine

whether there is any genuine dispute as to material facts, we are “required to resolve all ambiguities

and draw all permissible factual inferences in favor of the party against whom summary judgment

is sought.” Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003). The party seeking summary

judgment bears the burden to demonstrate that no such disputes exist and “a fact is ‘material’ for

these purposes when it ‘might affect the outcome of the suit under the governing law.’” Jeffreys

v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005) (quoting Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986)). Further, “[a]n issue of fact is ‘genuine’ if ‘the evidence is such

that a reasonable jury could return a verdict for the nonmoving party.’” Id. (quoting Anderson,

477 U.S. at 248).

Hillary alleged a selective prosecution claim based on race under the Equal Protection

Clause. To make a successful selective prosecution claim, the plaintiff must prove that “(1) the

person, compared with others similarly situated, was selectively treated, and (2) the selective

treatment was motivated by an intention to discriminate on the basis of impermissible

considerations, such as race or religion, to punish or inhibit the exercise of constitutional rights, or

by a malicious or bad faith intent to injure the person.” Hu v. City of New York, 927 F.3d 81, 91

3 (2d Cir. 2019) (quoting Zahra v. Town of Southold, 48 F.3d 674, 683 (2d Cir. 1995)). We have

emphasized that a selective-prosecution equal protection claim “requires proof of disparate

treatment and impermissible motivation.” Id. (quoting Bizzarro v. Miranda, 394 F.3d 82, 87 (2d

Cir. 2005)). Thus, “[a] plaintiff cannot merely rest on a demonstration of different treatment from

persons similarly situated” and “[i]nstead, he must prove that the disparate treatment was caused

by the impermissible motivation.” Id. (citations and internal quotation marks omitted). Such a

claim also requires a “reasonably close resemblance between a plaintiff’s and comparator’s

circumstances.” Id. at 93 (internal quotation marks omitted).

The district court correctly granted summary judgment in favor of Murray on Hillary’s

equal protection claim. We assume arguendo that Hillary and his alleged comparator, John Jones

(“Jones”), were, broadly speaking, similarly situated. We also assume without deciding that all

of Murray’s state actions in the course of the investigation and prosecution, including his

investigative acts prior to Hillary’s 2014 arrest, may support Hillary’s Section 1983 claim.

Considering all the evidence presented, Hillary has not raised a genuine dispute as to any

material fact related to whether his alleged selective treatment “was motivated by an intention to

discriminate on the basis of impermissible considerations, such as race or religion, to punish or

inhibit the exercise of constitutional rights, or by a malicious or bad faith intent to injure the

person.” Hu, 927 F.3d at 91.

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Related

Jeffreys v. The City of New York
426 F.3d 549 (Second Circuit, 2005)
Anderson v. Liberty Lobby, Inc.
477 U.S. 242 (Supreme Court, 1986)
Zahra v. Town Of Southold
48 F.3d 674 (Second Circuit, 1995)
Terry v. Ashcroft
336 F.3d 128 (Second Circuit, 2003)
Bizzarro v. Miranda
394 F.3d 82 (Second Circuit, 2005)
Johnson v. Goord
445 F.3d 532 (Second Circuit, 2006)
Hu v. City of New York
927 F.3d 81 (Second Circuit, 2019)

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Hillary v. St. Lawrence County, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hillary-v-st-lawrence-county-ca2-2023.