15‐1763 Watson v. Sims
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 29th day of April, two thousand sixteen.
PRESENT: RALPH K. WINTER, RICHARD C. WESLEY, GERARD E. LYNCH, Circuit Judges. ______________________
ROBERT C. WATSON, SR.,
Plaintiff‐Counter‐Defendant‐ Cross‐Defendant‐Appellant,
‐v.‐ 15‐1763
BETH SIMS, ESQ.,
Defendant‐Counter‐Claimant‐ Cross‐Claimant‐Appellee,
JEFFREY BAKER, BOARD OF EDUCATION OF THE CITY OF POUGHKEEPSIE SCHOOL DISTRICT,
Defendants‐Appellees,
WILLIAM V. GRADY, DUTCHESS COUNTY DISTRICT ATTORNEY, EDWARD WHITESELL, DEPUTY DISTRICT ATTORNEY, DUTCHESS COUNTY DISTRICT ATTORNEY, THOMAS DINAPOLI, COMPTROLLER, STATE OF NEW YORK,
Defendants. ______________________
FOR APPELLANT: MICHAEL H. SUSSMAN, Sussman & Watkins, Goshen, NY, for Plaintiff‐Counter‐Defendant‐ Appellant Robert C. Watson, Sr.
FOR APPELLEES: NICOLE MARLOW‐JONES (Paul Gerrard Ferrara, on the brief), Costello, Cooney & Fearon, PLLC, Syracuse, NY, for Defendant‐Counter‐Claimant‐Appellee Beth Sims.
STEPHEN J. GABA, Drake Loeb, PLLC, New Windsor, NY, for Defendant‐Appellee Jeffrey Baker.
MEGAN M. COLLELO (Claudia Ann Ryan, on the brief), Towne, Ryan & Partners, P.C., Albany, NY, for Defendant‐Appellee Board of Education of the City of Poughkeepsie School District.
Appeal from a judgment of the United States District Court for the
Southern District of New York (Román, J.).
2 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the District Court is
AFFIRMED.
Plaintiff‐Appellant Robert C. Watson, Sr., a former Superintendent of
Schools of the City of Poughkeepsie School District (the “District”), appeals from
the judgment of the District Court dismissing, on summary judgment, his claim
for municipal liability under 42 U.S.C. § 1983 and Monell v. Department of Social
Services of the City of New York, 436 U.S. 658 (1978) against Defendant‐Appellee
Board of Education of the City of Poughkeepsie School District (the “School
Board”), and his remaining § 1983 claims that Defendants‐Appellees Beth Sims
and Jeffrey Baker violated his civil rights by subjecting him to malicious
prosecution. In its order granting the School Board summary judgment, the
District Court concluded that Watson failed to (1) establish the existence of a
municipal policy or custom and (2) demonstrate that any act was taken by an
individual with final policymaking authority for the School Board that could
subject the School Board to municipal liability under Monell. The District Court
also granted summary judgment to Sims and Baker on Watson’s malicious
prosecution claims, finding that Watson, who was acquitted on all charges at
3 trial, had failed to rebut the presumption of probable cause created by his
indictment by a grand jury. We assume the parties’ familiarity with the
underlying facts, the procedural history of the case, and the issues on appeal.
We review a district court’s grant of summary judgment dismissing a
plaintiff’s malicious prosecution claim de novo, see Bermudez v. City of New York,
790 F.3d 368, 373 (2d Cir. 2015), “construing all evidence in the light most
favorable to the non‐moving party, and affirming only where ‘there is no
genuine issue as to any material fact and the movant is entitled to judgment as a
matter of law,’” Hubbs v. Suffolk Cty. Sheriff’s Dep’t, 788 F.3d 54, 59 (2d Cir. 2015)
(quoting Fed. R. Civ. P. 56(a)) (citing Ruggiero v. Cty. of Orange, 467 F.3d 170, 173
(2d Cir. 2006)).
In order to prevail on a malicious prosecution claim, a plaintiff must
demonstrate that “‘(1) the defendant initiated a prosecution against plaintiff, (2)
without probable cause to believe the proceeding can succeed, (3) the proceeding
was begun with malice[,] and . . . (4) the matter terminated in plaintiff’s favor.’”
Cameron v. City of New York, 598 F.3d 50, 63 (2d Cir. 2010) (quoting Ricciuti v.
N.Y.C. Transit Auth., 124 F.3d 123, 130 (2d Cir. 1997)). Although the District
Court granted summary judgment on the basis that Watson had failed to rebut
4 the presumption of probable cause created by his indictment, we may “affirm
summary judgment on any ground supported by the record, even if it is not one
on which the district court relied.” McElwee v. Cty. of Orange, 700 F.3d 635, 640
(2d Cir. 2012).
Watson’s malicious prosecution claims against Sims and Baker fail because
he has not pointed to any evidence on the record that demonstrates, even when
viewed in the light most favorable to him, that either Sims or Baker initiated or
continued the prosecution against him. We have explained that “reporting a
crime to law enforcement and giving testimony does not constitute the
‘initiation’ of a criminal prosecution. More is required. Specifically, the
complainant must have played an ‘active role in the prosecution, such as giving
advice and encouragement or importuning the authorities to act.’” Rothstein v.
Carriere, 373 F.3d 275, 293–94 (2d Cir. 2004) (quoting Rohman v. N.Y.C. Transit
Auth., 215 F.3d 208, 217 (2d Cir. 2000)). Indeed, we have previously found “that
merely reporting a crime to another individual, who in turn reports the crime to
law enforcement, is insufficient to give rise to liability under New York law for
5 malicious prosecution.” Hanly v. Powell Goldstein, L.L.P., 290 F. App’x 435, 439
(2d Cir. 2008) (summary order).1
Assuming, arguendo, that Sims or Baker provided false or misleading
information to the prosecution during its investigation, we find no evidence,
viewing the record in the light most favorable to Watson, from which a
reasonable jury could conclude that either Sims or Baker took an active role in
Watson’s criminal prosecution.
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15‐1763 Watson v. Sims
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 29th day of April, two thousand sixteen.
PRESENT: RALPH K. WINTER, RICHARD C. WESLEY, GERARD E. LYNCH, Circuit Judges. ______________________
ROBERT C. WATSON, SR.,
Plaintiff‐Counter‐Defendant‐ Cross‐Defendant‐Appellant,
‐v.‐ 15‐1763
BETH SIMS, ESQ.,
Defendant‐Counter‐Claimant‐ Cross‐Claimant‐Appellee,
JEFFREY BAKER, BOARD OF EDUCATION OF THE CITY OF POUGHKEEPSIE SCHOOL DISTRICT,
Defendants‐Appellees,
WILLIAM V. GRADY, DUTCHESS COUNTY DISTRICT ATTORNEY, EDWARD WHITESELL, DEPUTY DISTRICT ATTORNEY, DUTCHESS COUNTY DISTRICT ATTORNEY, THOMAS DINAPOLI, COMPTROLLER, STATE OF NEW YORK,
Defendants. ______________________
FOR APPELLANT: MICHAEL H. SUSSMAN, Sussman & Watkins, Goshen, NY, for Plaintiff‐Counter‐Defendant‐ Appellant Robert C. Watson, Sr.
FOR APPELLEES: NICOLE MARLOW‐JONES (Paul Gerrard Ferrara, on the brief), Costello, Cooney & Fearon, PLLC, Syracuse, NY, for Defendant‐Counter‐Claimant‐Appellee Beth Sims.
STEPHEN J. GABA, Drake Loeb, PLLC, New Windsor, NY, for Defendant‐Appellee Jeffrey Baker.
MEGAN M. COLLELO (Claudia Ann Ryan, on the brief), Towne, Ryan & Partners, P.C., Albany, NY, for Defendant‐Appellee Board of Education of the City of Poughkeepsie School District.
Appeal from a judgment of the United States District Court for the
Southern District of New York (Román, J.).
2 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the District Court is
AFFIRMED.
Plaintiff‐Appellant Robert C. Watson, Sr., a former Superintendent of
Schools of the City of Poughkeepsie School District (the “District”), appeals from
the judgment of the District Court dismissing, on summary judgment, his claim
for municipal liability under 42 U.S.C. § 1983 and Monell v. Department of Social
Services of the City of New York, 436 U.S. 658 (1978) against Defendant‐Appellee
Board of Education of the City of Poughkeepsie School District (the “School
Board”), and his remaining § 1983 claims that Defendants‐Appellees Beth Sims
and Jeffrey Baker violated his civil rights by subjecting him to malicious
prosecution. In its order granting the School Board summary judgment, the
District Court concluded that Watson failed to (1) establish the existence of a
municipal policy or custom and (2) demonstrate that any act was taken by an
individual with final policymaking authority for the School Board that could
subject the School Board to municipal liability under Monell. The District Court
also granted summary judgment to Sims and Baker on Watson’s malicious
prosecution claims, finding that Watson, who was acquitted on all charges at
3 trial, had failed to rebut the presumption of probable cause created by his
indictment by a grand jury. We assume the parties’ familiarity with the
underlying facts, the procedural history of the case, and the issues on appeal.
We review a district court’s grant of summary judgment dismissing a
plaintiff’s malicious prosecution claim de novo, see Bermudez v. City of New York,
790 F.3d 368, 373 (2d Cir. 2015), “construing all evidence in the light most
favorable to the non‐moving party, and affirming only where ‘there is no
genuine issue as to any material fact and the movant is entitled to judgment as a
matter of law,’” Hubbs v. Suffolk Cty. Sheriff’s Dep’t, 788 F.3d 54, 59 (2d Cir. 2015)
(quoting Fed. R. Civ. P. 56(a)) (citing Ruggiero v. Cty. of Orange, 467 F.3d 170, 173
(2d Cir. 2006)).
In order to prevail on a malicious prosecution claim, a plaintiff must
demonstrate that “‘(1) the defendant initiated a prosecution against plaintiff, (2)
without probable cause to believe the proceeding can succeed, (3) the proceeding
was begun with malice[,] and . . . (4) the matter terminated in plaintiff’s favor.’”
Cameron v. City of New York, 598 F.3d 50, 63 (2d Cir. 2010) (quoting Ricciuti v.
N.Y.C. Transit Auth., 124 F.3d 123, 130 (2d Cir. 1997)). Although the District
Court granted summary judgment on the basis that Watson had failed to rebut
4 the presumption of probable cause created by his indictment, we may “affirm
summary judgment on any ground supported by the record, even if it is not one
on which the district court relied.” McElwee v. Cty. of Orange, 700 F.3d 635, 640
(2d Cir. 2012).
Watson’s malicious prosecution claims against Sims and Baker fail because
he has not pointed to any evidence on the record that demonstrates, even when
viewed in the light most favorable to him, that either Sims or Baker initiated or
continued the prosecution against him. We have explained that “reporting a
crime to law enforcement and giving testimony does not constitute the
‘initiation’ of a criminal prosecution. More is required. Specifically, the
complainant must have played an ‘active role in the prosecution, such as giving
advice and encouragement or importuning the authorities to act.’” Rothstein v.
Carriere, 373 F.3d 275, 293–94 (2d Cir. 2004) (quoting Rohman v. N.Y.C. Transit
Auth., 215 F.3d 208, 217 (2d Cir. 2000)). Indeed, we have previously found “that
merely reporting a crime to another individual, who in turn reports the crime to
law enforcement, is insufficient to give rise to liability under New York law for
5 malicious prosecution.” Hanly v. Powell Goldstein, L.L.P., 290 F. App’x 435, 439
(2d Cir. 2008) (summary order).1
Assuming, arguendo, that Sims or Baker provided false or misleading
information to the prosecution during its investigation, we find no evidence,
viewing the record in the light most favorable to Watson, from which a
reasonable jury could conclude that either Sims or Baker took an active role in
Watson’s criminal prosecution. Watson claims that Sims, in response to
document requests from the District Attorney’s (“DA”) office, “deluged” the DA
with unsolicited information, see Pl.’s Reply Br. 23, but he points to only two
documents that Sims provided that fell outside the scope of the request. No
reasonable jury could conclude on the basis of that evidence that Sims’s conduct
went beyond the mere provision of information to the point where Sims
encouraged or importuned the DA’s office to prosecute Watson. There is
similarly no evidence supporting the inference that Baker encouraged or
importuned the DA’s office to act when he met with its employees in December
2005.
1 “[D]enying summary orders precedential effect does not mean that the court considers itself free to rule differently in similar cases.” Jackler v. Byrne, 658 F.3d 225, 244 (2d Cir. 2011) (internal quotation marks omitted).
6 Watson also bases his claim on Sims’s and Baker’s correspondence with
the auditing firms that sought information related to their own non‐criminal
investigations of (1) the financial practices of the City of Poughkeepsie School
District’s (the “District”) Business Office, (2) all payments made to Watson
during his tenure as Superintendent (which were audited pursuant to the terms
of his separation agreement), and (3) the effectiveness of internal controls over
financial activities, certain payroll‐related agreements, and professional services
relating to the District’s multi‐million‐dollar capital project. Even if Sims or
Baker submitted incomplete, misleading, or false information to any of the
auditors as part of those investigations, that conduct is too far attenuated from
the criminal prosecution of Watson to constitute initiating the criminal process.
That is so, even though prosecutors sought and obtained copies of the reports
generated by each auditing firm from the District. Because Sims’s and Baker’s
activity was directed at the auditing firms, which were not part of the criminal
justice system, it does not qualify as initiating Watson’s criminal prosecution.
Further, Watson’s malicious prosecution claims fail to the extent that they
rely on Sims’s or Baker’s grand jury testimony.
“[A] grand jury witness has absolute immunity from any § 1983 claim based on the witness’ testimony. In addition, . . . this rule may
7 not be circumvented by claiming that a grand jury witness conspired to present false testimony or by using evidence of the witness’ testimony to support any other § 1983 claim concerning the initiation or maintenance of a prosecution.”
Rehberg v. Paulk, 132 S. Ct. 1497, 1506 (2012) (emphasis added). Sims and Baker
thus enjoy absolute immunity from any § 1983 claim based solely on their grand
jury testimony and preparation for such testimony. See Coggins v. Buonora, 776
F.3d 108, 113–14 (2d Cir. 2015).
Last, Watson’s Monell claim of municipal liability against the School Board
is predicated almost entirely on the acts of Sims and Baker: he alleges that the
School Board, as a matter of policy, authorized Sims and Baker to furnish lies or
misstatements to the auditing firms and prosecutors or, knowing that they were
furnishing such falsities, remained silent and failed to take any corrective action.
Having concluded, however, that neither Sims nor Baker is potentially liable for
malicious prosecution because neither can be said to have initiated Watson’s
criminal prosecution, Watson’s claim of municipal liability against the School
Board, which is predicated on the alleged unconstitutional conduct of Sims and
8 Baker, necessarily fails.2 See Segal v. City of New York, 459 F.3d 207, 219 (2d Cir.
2006); see also City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986).
We have considered Watson’s remaining 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
2 To the extent that Watson’s Monell claim is based on the testimony of certain School Board members before the grand jury or their related preparatory activities, it too must fail because the School Board members are entitled to absolute immunity for this conduct. See Rehberg, 132 S. Ct. at 1506.