Johnson v. City of New York

22-2096-cv
Johnson v. City of New York
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.
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 24th day of May, two thousand twenty-
4 three.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 EUNICE C. LEE,
9 ALISON J. NATHAN,
10 Circuit Judges.
11 _____________________________________
12
13 Vandyke Johnson,
14
15 Plaintiff-Appellant,
16
17 v. 22-2096
18
19 City of New York, N.Y.P.D Officer
20 Randazzo, Badge No. 959119, N.Y.P.D.
1
1 Officer Hotoniel Diaz, John Doe #1, John
2 Doe #2, Racheal Garcia, Wandaly Torres,
3 Diana Alama, CPS Worker, David A.
4 Hansell, Commissioner Administration for
5 Children’s Services, Jane Doe, CPS Worker,
6 Bronx Care Health System, Sheena Blaise,
7 CPS Worker,
8
9 Defendants-Appellees.
10
11 _____________________________________
12
13
14 FOR PLAINTIFF-APPELLANT: VANDYKE JOHNSON, pro
15 se, New York, NY.
16
17 FOR CITY DEFENDANTS-APPELLEES: LORENZO DI SILVIO
18 (Tahirih M. Sadrieh, on
19 the brief), for Hon. Sylvia
20 O. Hinds-Radix,
21 Corporation Counsel of
22 the City of New York,
23 New York, NY.
24
25 FOR DEFENDANT-APPELLEE BRONX CARE: JUDY C. SELMECI (Wilson
26 Elser Moskowitz, on the
27 brief), Edelman & Dicker
28 LLP, New York, NY.
29
30
31 Appeal from a judgment of the United States District Court for the Southern
32 District of New York (George B. Daniels, Judge; Barbara Moses, Magistrate Judge).
2
1 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
2 ADJUDGED, AND DECREED that the judgment of the district court is
3 AFFIRMED.
4 Appellant Vandyke Johnson, proceeding pro se, challenges the district
5 court’s dismissal of, inter alia, malicious prosecution and false arrest claims
6 brought pursuant to 42 U.S.C. § 1983. Johnson also appeals the dismissal of his
7 § 1983 claims against Bronx Care Health System (“Bronx Care”), which he brought
8 on the contention that doctors examined his children over his objections and
9 thereby violated both his and his children’s constitutional rights. We assume the
10 parties’ familiarity with the proceedings, which we discuss only as necessary to
11 resolve this appeal.
12 In August 2019, Johnson was arrested after his stepdaughter filed a police
13 report alleging physical violence by Johnson. Johnson was arraigned on charges
14 including third-degree assault and endangering the welfare of a child, and a
15 criminal court order of protection was issued prohibiting Johnson from contacting
16 his stepdaughter. Shortly afterwards, based on these accusations, a neglect
17 petition was filed in Family Court, and a separate Family Court order of protection
3
1 issued against Johnson. The Family Court order of protection was reissued on
2 November 14, 2019, and was valid through February 24, 2020. Johnson contends
3 that the criminal court order of protection expired when his criminal case was
4 dismissed on November 25, 2019, after which he was informed by his attorneys
5 that there was no longer an active order of protection against him; the attorneys
6 were incorrect, however, as the Family Court order remained in effect.
7 Johnson was arrested twice for violating the Family Court order of
8 protection. The first arrest occurred on November 25, 2019, only a few hours after
9 his criminal case was dismissed, when he was arrested at home for violating the
10 order of protection. Johnson claimed that the police were shown, and relied on,
11 the Family Court order of protection, which Johnson has variously claimed he was
12 not aware of or that it expired November 14, 2019. Johnson was arrested the
13 second time for violating the Family Court order of protection on February 12,
14 2020, after attempting to pick up his youngest child at school. Eventually, all the
15 charges stemming from the various arrests were dismissed, and the neglect
16 petition filed in Family Court was withdrawn.
17 As to the claims against Bronx Care, Johnson contends that, following the
4
1 arrest of his wife for child neglect on February 7, 2020, his children were taken to
2 Bronx Care and, without Johnson’s permission and over his objections, were
3 examined by hospital staff in what Johnson describes as an invasive manner.
4 Johnson sued the City of New York, the Commissioner of the New York City
5 Administration for Children’s Services (“ACS”), ACS employees, and individual
6 police officers (the “City defendants”) for, as relevant here, false arrest and
7 malicious prosecution under 42 U.S.C. § 1983. Johnson also sued Bronx Care for
8 violating his and his minor children’s Fourth Amendment and due process rights.
9 After permitting three amendments to Johnson’s original complaint, the district
10 court granted the defendants’ motions to dismiss pursuant to Fed. R. Civ. P.
11 12(b)(6). 1 Johnson appealed.
12 As an initial matter, and despite Bronx Care’s argument to the contrary, this
13 Court has jurisdiction to hear all parts of this case. Bronx Care contends that
14 Johnson’s notice of appeal was defective in part because it failed to identify the
15 earlier, nonfinal order dismissing Johnson’s claims against Bronx Care.
16 However, Johnson’s notice of appeal did identify the district court’s final order
1 Johnson’s state law claims were dismissed without prejudice.
5
1 (doc. 97), which Johnson correctly described as the decision dismissing the
2 remaining defendants and the case. So long as it identifies a final order or
3 judgment, a notice of appeal is limited to certain specified orders only if the
4 appellant “expressly stat[es]” that he intends for it to be so limited. Fed. R. App.
5 P. 3(c)(5)(A), (6). Because Johnson’s notice contained no express language
6 limiting its reach, we have appellate jurisdiction over nonfinal orders, like the one
7 pertaining to Bronx Care, that merged into and became appealable upon entry of
8 final judgment. See Gold v. N.Y. Life Ins. Co., 730 F.3d 137, 144 (2d Cir. 2013).
9 This Court “review[s] the grant of a motion to dismiss de novo, accepting as
10 true all factual claims in the complaint and drawing all reasonable inferences in
11 the plaintiff’s favor.” Fink v. Time Warner Cable, 714 F.3d 739, 740–41 (2d Cir.
12 2013). A complaint “must contain sufficient factual matter, accepted as true, to
13 state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662,
14 678 (2009) (internal quotation marks and citation omitted).
15 On appeal, Johnson raises three arguments: (1) under Tenenbaum v. Williams,
16 193 F.3d 581 (2d Cir. 1999), he had standing to bring claims against Bronx Care on
17 behalf of his children; (2) there was no probable cause to arrest and prosecute him
6
1 and thus that he stated both malicious prosecution and false arrest claims; and (3)
2 that the cases against him terminated in his favor. We address each in turn.
3 Beginning with the claims against Bronx Care, Johnson is correct that he
4 retains a “constitutionally protected liberty interest in the care, custody and
5 management of [his] children.” Tenenbaum, 193 F.3d at 593. But, as the district
6 court determined, it is a “well-established general rule in this Circuit that a parent
7 not admitted to the bar cannot bring an action pro se in federal court on behalf of
8 his or her child,” with certain exceptions not relevant here. Tindall v. Poultney
9 High Sch. Dist., 414 F.3d 281, 284 (2d Cir. 2005). Because Johnson is not an
10 attorney, he could not assert violations of his children’s constitutional rights
11 against Bronx Care. The district court properly dismissed these claims without
12 prejudice. See Berrios v. N.Y.C. House. Auth., 564 F.3d 130, 134 (2d Cir. 2009)
13 (reasoning that court may not “make a merits determination of claims filed on
14 behalf of a minor or incompetent person who is not properly represented”).
15 Johnson’s claims that Bronx Care violated his own constitutional due
16 process rights are not sufficiently pleaded. Johnson merely asserted that Bronx
17 Care created an unconstitutional policy of interviewing and examining children
7
1 without parental consent. But Johnson did not plead any facts in support of this
2 claim, and legal conclusions alone do not suffice to state a valid constitutional
3 claim. See Shara v. Maine-Endwell Cent. Sch. Dist., 46 F.4th 77, 82 (2d Cir. 2022).
4 Next, against the City defendants, Johnson alleged false arrest and malicious
5 prosecution, for both the criminal proceedings against him as well as the neglect
6 petition filed against him in Family Court. We assume, without deciding, that a
7 malicious prosecution claim can be premised on a neglect petition.
8 “Probable cause is a complete defense to a constitutional claim for false
9 arrest,” and “continuing probable cause is a complete defense” to a tort claim for
10 malicious prosecution. Betts v. Shearman, 751 F.3d 78, 82 (2d Cir. 2014).
11 “Probable cause exists when one has knowledge of, or reasonably trustworthy
12 information as to, facts and circumstances that are sufficient to warrant a person
13 of reasonable caution in the belief that an offense has been or is being committed
14 by the person to be arrested.” Id. (internal quotation marks omitted). “The
15 probable cause standard in the malicious prosecution context is slightly higher
16 than the standard for false arrest cases” and requires “such facts and circumstances
17 as would lead a reasonably prudent person to believe the plaintiff guilty.”
8
1 Stansbury v. Wertman, 721 F.3d 84, 95 (2d Cir. 2013) (internal quotation marks
2 omitted). “[P]robable cause must be shown as to each crime charged in the
3 underlying criminal action.” Kee v. City of New York, 12 F.4th 150, 166 (2d Cir.
4 2021).
5 Johnson argues that his November 2019 and February 2020 arrests were
6 unsupported by probable cause, but we do not agree. 2 Johnson claimed that the
7 November 2019 arrest was unsupported by probable cause because the police
8 relied on either an order of protection he had never received or on an expired
9 version of the Family Court order. There is no dispute, however, that the Family
10 Court order was actually in effect and an arrest premised on it would be valid even
11 if the officers were shown an older, expired copy of the order at some point prior
12 to the arrest. See Panetta v. Crowley, 460 F.3d 388, 395 (2d Cir. 2006) (“Probable
13 cause requires an officer to have knowledge or reasonably trustworthy
14 information sufficient to warrant a person of reasonable caution in the belief that
15 an offense has been committed by the person to be arrested . . . . [P]robable cause
2 To the extent Johnson now argues that the officers lacked probable cause for the initial August 2019
arrest, the allegations as pleaded fail to make out a lack of probable cause. According to Johnson’s own
complaint, his stepdaughter filed a police report alleging Johnson physically harmed her. This was
sufficient to support the arrest. See Curley v. Village of Suffern, 268 F.3d 65, 70 (2d Cir. 2001).
9
1 does not require absolute certainty.” (internal quotation marks and citations
2 omitted)). Moreover, the ACS employee’s report to the police of Johnson’s
3 violation of the order of protection could support a valid determination of
4 probable cause so long as there was no reason to doubt her veracity. See id.5 Regarding the February 2020 arrest, he claimed that school officials falsely
6 reported to police that he was in violation of the Family Court order of protection.
7 Again, however, Johnson did not dispute that the Family Court order was still in
8 effect, and the reports of the school officials, even if later determined to be false,
9 could support a valid determination of probable cause so long as there was no
10 reason to doubt the officials’ veracity. See id.11 Claims for malicious prosecution require a plaintiff to allege, on top of lack
12 of probable cause, “that the proceeding was instituted with malice.” Mitchell v.
13 City of New York, 841 F.3d 72, 79 (2d Cir. 2016) (internal quotation marks omitted).
14 Johnson has not pleaded that any of the defendants acted with malice when
15 instituting the criminal or neglect proceedings. Thus, the district court correctly
16 dismissed Johnson’s § 1983 malicious prosecution claims. Because Johnson failed
17 to plead two necessary elements for the malicious prosecution claim—actual
10
1 malice and lack of probable cause—we need not reach his arguments regarding
2 favorable termination.
3 We have considered Johnson’s remaining arguments and find them to be
4 without merit. Accordingly, we AFFIRM the judgment of the district court.
5
6 FOR THE COURT:
7 Catherine O’Hagan Wolfe, Clerk of Court
11