Olaizola v. Foley ( 2020 )

19-574
Olaizola v. Foley
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 ASUMMARY ORDER@). A PARTY CITING TO 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 14th day of January, two thousand twenty.
PRESENT:
AMALYA L. KEARSE,
SUSAN L. CARNEY,
JOSEPH F. BIANCO,
Circuit Judges.
_____________________________________
Herman Olaizola,
Plaintiff-Appellant,
v. No. 19-574
Robert Foley, NYPD Police Officer,
Defendant-Appellee,
William J. Bratton, NYPD Commissioner,
Meghan Kinsella, NYPD Police Officer, Marissa
Gillespie, Queens Assistant District Attorney,
Michael Siff, Attorney, Richard A. Brown,
Queens District Attorney,
Defendants.
_____________________________________
FOR PLAINTIFF-APPELLANT: Herman Olaizola, pro se, Stormville, NY.
FOR DEFENDANT-APPELLEE: Jane L. Gordon, D. Alan Rosinus, Jr.,
Assistant Corporation Counsel for Georgia
M. Pestana, Acting Corporation Counsel of
the City of New York, New York, NY.
Appeal from a judgment of the United States District Court for the Southern District of New
York (Oetken, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the District Court is AFFIRMED.
Appellant Herman Olaizola, pro se, sued New York City Police Officer Robert Foley under
42 U.S.C. § 1983, alleging (among other things) that Foley maliciously prosecuted him. Olaizola
claimed that Foley filed false paperwork in connection with Olaizola’s prosecution on various
misdemeanor charges in Bronx criminal court. The prosecutor in that proceeding, after several
continuances, moved successfully to dismiss the charges for “judicial economy” reasons. On the
same day as the Bronx dismissal, Olaizola was sentenced in Queens criminal court to a minimum
of 16 years’ imprisonment for felony burglary.
The District Court in this § 1983 action granted summary judgment to Foley, primarily on
the ground that Olaizola failed to offer sufficient evidence that the Bronx criminal proceedings
against him were terminated in his favor. We assume the parties’ familiarity with the underlying
facts, the procedural history of the case, and the issues on appeal, and refer to them only as needed
to explain our decision to affirm the District Court’s judgment.
We review a grant of summary judgment de novo, “resolv[ing] all ambiguities and
draw[ing] all inferences against the moving party.” Garcia v. Hartford Police Dep’t, 706 F.3d 120,
126-27 (2d Cir. 2013) (per curiam). “Summary judgment is proper only when, construing the
evidence in the light most favorable to the non-movant, there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Doninger v. Niehoff, 642
F.3d 334, 344 (2d Cir. 2011) (internal quotation marks omitted).
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The District Court properly granted summary judgment to Foley on Olaizola’s malicious
prosecution claim. To state a claim for malicious prosecution under § 1983, a plaintiff must allege
“(1) that the defendant initiated a prosecution against the plaintiff, (2) that the defendant lacked
probable cause to believe the proceeding could succeed, (3) that the defendant acted with
malice, . . . (4) that the prosecution was terminated in the plaintiff's favor . . . , [and] that there was
(5) a sufficient post-arraignment liberty restraint to implicate the plaintiff's Fourth Amendment
rights.” Rohman v. N.Y.C. Transit Auth., 215 F.3d 208, 215 (2d Cir. 2000) (internal quotation marks
omitted). “Where the prosecution did not result in an acquittal, it is deemed to have ended in favor
of the accused, for these purposes, only when its final disposition is such as to indicate the innocence
of the accused.” Murphy v. Lynn, 118 F.3d 938, 948 (2d Cir. 1997); see also Lanning v. City of
Glens Falls, 908 F.3d 19, 28 (2d Cir. 2018) (“When a person has been arrested and indicted, absent
an affirmative indication that the person is innocent of the offense charged, the government’s failure
to proceed does not necessarily impl[y] a lack of reasonable grounds for the prosecution.”
(alteration in original) (internal quotation marks omitted)).
Olaizola did not show that the Bronx charges were terminated in his favor. The only
pertinent record evidence—a transcript of proceedings—showed that the prosecutor stated that he
sought dismissal of the Bronx charges “in the interest of judicial economy.” Tr. of June 18, 2013,
Bronx Criminal Ct. Proceedings at 3, Olaizola v. Bratton, No. 16-cv-3777 (S.D.N.Y. Apr. 26,
2018), ECF No. 44-6. Understood in context, the statement implied that pursuing a prosecution in
the Bronx would waste government resources since, at the same time in Queens, Olaizola was being
sentenced to a term of 16 years to life imprisonment.
Such a dismissal had no bearing on Olaizola’s innocence and was not “favorable” to him
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for purposes of a later § 1983 action. See Lanning, 908 F.3d at 28. It stands in contrast, for example,
to Stampf v. Long Island Railroad Co., where we concluded that a prosecutor’s decision to decline
prosecution was a favorable termination for § 1983 purposes because the prosecutor’s explanation
was that he had investigated the charges and determined that they could not be proven beyond a
reasonable doubt. 761 F.3d 192, 200-01 (2d Cir. 2014).
Olaizola argues that New York state law requires us to infer that the prosecutor’s
abandonment of charges in his case constitutes a favorable termination. Olaizola is correct that, for
certain purposes, New York courts have concluded that “any termination of a criminal prosecution,
such that the criminal charges may not be brought again, qualifies as a favorable termination, so
long as the circumstances surrounding the termination are not inconsistent with the innocence of
the accused.” Cantalino v. Danner, 96 N.Y.2d 391, 395 (2001). We are not, however, “bound to
apply New York law to malicious prosecution claims arising under § 1983”; rather, we rely on our
prior definitions of “favorable termination” for the purposes of § 1983 actions. Lanning, 908 F.3d
at 28. Therefore, it is irrelevant to our reasoning that New York state law may define “favorable
termination” differently for state law purposes.
Finally, Olaizola’s argument that a genuine dispute of material fact arises from the unclear
circumstances of the dismissal of the Bronx charges is meritless. Olaizola has presented no evidence
that calls into question the stated reason for the prosecutor’s motion to dismiss. The transcripts
show nothing more than various attempts to reach a plea agreement and to prosecute the Bronx
misdemeanor concurrently with the Queens felony. They do not suggest that the prosecutor
dismissed the Bronx misdemeanor charges based on any concern that the State could not prove
those charges.
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Olaizola also argues that he offered sufficient evidence to establish Foley’s malicious
prosecution of charges against him for possession of stolen property and possession of weapons, as
listed on a desk appearance ticket (“DAT”) that Foley issued to Olaizola in May 2012, but which
did not appear in the August 2012 criminal complaint. Foley responds that this DAT-based claim
is barred by the three-year statute of limitations governing § 1983 claims, because it would have
accrued in September 2012, when Olaizola was arraigned on that criminal complaint, a date over
three years before Olaizola filed his § 1983 suit.
“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 for malicious
prosecution accrues when the prosecution terminates in the plaintiff’s favor. Spak v. Phillips, 857
F.3d 458, 462 (2d Cir. 2017). Olaizola filed his complaint in May 2016. To be timely, his claim
must therefore have accrued no earlier than May 2013. But the dropped charge proceedings
“terminated,” at the latest, when Olaizola was arraigned on the criminal complaint in September
2012. By that point, the DAT charges had been abandoned. Olaizola’s claim thus was not timely
and the District Court did not err in granting summary judgment to Foley.
We have reviewed Olaizola’s remaining arguments and conclude that they are without
merit. For the foregoing reasons, the judgment of the District Court is AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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