Hillary v. St. Lawrence County ( 2023 )

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
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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.
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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
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(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. To show an impermissible motivation, he relies on circumstantial
evidence about the racial composition of the police department and the treatment of other black
individuals associated with the homicide investigation and prosecution. However, he has not
offered any admissible evidence to support that either circumstance was motivated by racial
animus or an intent to discriminate. In addition, he has failed to put forth evidence that Murray
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had a personal motivation to discriminate or that such a motive was a cause of his treatment of
Hillary.
Hillary also argues that the different treatment of Jones and the proffered explanations for
considering Hillary a more likely suspect than Jones indicate that Murray intended to discriminate.
But he cannot rely on different treatment alone. See LeClair v. Saunders, 627 F.2d 606, 608 (2d
Cir. 1980) (“Mere failure to prosecute other offenders is not a basis for a finding of denial of equal
protection.”). Moreover, Hillary has not offered sufficient evidence to create a material dispute
of fact concerning Murray’s purported reason for refraining from investigating Jones personally,
to avoid a potential conflict of interest, or concerning Murray’s purported reasons for viewing
Hillary as a more likely suspect than Jones. Thus, Hillary has established no facts to suggest
“that the disparate treatment was caused by the impermissible motivation.” Hu, 927 F.3d at 91(citations and internal quotation marks omitted). For that reason, summary judgment in favor of
Murray was appropriate. 1
* * *
We have considered Hillary’s remaining arguments and find them to be without merit.
Accordingly, we AFFIRM the judgment of the district court. In addition, because the joint
appendix in this case contains information that should not have been filed unredacted on the public
docket; see Fed. R. App. P. 25(a)(5); Fed. R. Civ. P. 5.2(a); the Clerk of Court is directed to SEAL
ECF No. 52 from public view.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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We need not decide whether Murray would be entitled to qualified immunity because we have not found
evidence that Murray violated Hillary’s constitutional rights.
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