Droz v. McCadden, No. 08-0241 (2d Cir. 2009)
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08-0241-cv Droz v. McCadden 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 August Term, 2008 4 5 (Argued: March 9, 2009 Decided: September 14, 2009 Amended: October 7, 2009) 6 Docket No. 08-0241-cv 7 ------------------------------------- 8 MARTIN DROZ, 9 Plaintiff-Appellee, 10 - v. - 11 P.J. MCCADDEN, State Trooper, 12 Defendant-Appellant, 13 14 15 16 SHIRLEY B. HERDER, MARK MURRAY, ESTATE OF JOHN C. ANDERSON, TOWN OF VIENNA, NEW YORK, DANIEL G. MIDDAUGH, SCOTT BURNOP, MICHAEL DURANT, SHAWN MALONE, MICHAEL MULKY, MARK SLAWSON, and UNKNOWN SOWITCH, 17 Defendants.* 18 ------------------------------------- 19 20 Before: 21 WINTER and SACK, Circuit Judges, and COGAN, District Judge.** Appeal from an order of the United States District 22 Court for the Northern District of New York (David N. Hurd, 23 Judge) denying Defendant-Appellant State Trooper P.J. McCadden's * The Clerk of the Court is instructed to amend the official caption in this case to conform to the listing of the parties above. ** The Honorable Brian M. Cogan, United States District Judge for the Eastern District of New York, sitting by designation. 1 motion for summary judgment. 2 facts establish that McCadden reasonably believed that he was 3 acting at the behest of Judge Shirley Herder, and, therefore, he 4 had arguable probable cause to arrest Plaintiff Droz for criminal 5 contempt and probable cause to commence a criminal contempt 6 proceeding against him. 7 district court's ruling, that McCadden is entitled to qualified 8 immunity with respect to the claims made against him for false 9 arrest and malicious prosecution under 42 U.S.C. § 1983. 10 We conclude that the stipulated We therefore conclude, contrary to the Reversed. 11 12 13 14 15 16 17 DENISE A. HARTMAN, Assistant Solicitor General, for Andrew Cuomo, Attorney General of the State of New York, (Barbara D. Underwood, Solicitor General, Andrea Oser, Deputy Solicitor General, of counsel), Albany, NY, for Defendant-Appellant. 18 19 EDWARD KOPKO, Wiggins & Kopko, LLP, Ithaca, NY, for Plaintiff-Appellee. 20 21 PER CURIAM: Defendant-Appellant State Trooper P.J. McCadden appeals 22 from an order of the district court (David N. Hurd, Judge) 23 denying his motion for summary judgment in this action against 24 him under 42 U.S.C. § 1983 based on allegations of false arrest 25 and malicious prosecution. 26 McCadden was entitled to qualified immunity. 27 the stipulated facts establish that McCadden reasonably believed 28 he was acting at the behest of Judge Shirley Herder. 29 therefore had arguable probable cause to arrest Plaintiff Droz The grounds for the motion are that 2 We conclude that McCadden 1 for criminal contempt. In addition, in light of this reasonable 2 belief and McCadden's conversation with Judge Herder following 3 Droz's arrest regarding the offense with which Droz would be 4 charged, McCadden had probable cause to institute proceedings 5 against him. 6 court and remand the cause with instructions to grant the summary 7 judgment motion and dismiss the claims. We therefore reverse the order of the district BACKGROUND 8 9 Plaintiff Droz was arrested and charged with violating 10 N.Y. Penal L. § 215.50(1) for "disorderly, contemptuous or 11 insolent behavior, committed during the sitting of a court, in 12 its immediate view and presence and directly tending to interrupt 13 its proceedings," after arriving at a courthouse and refusing to 14 show to Code Enforcement Officer John C. Anderson what was in a 15 brown paper bag he was carrying. 16 Herder about the incident. 17 arrived, in the person of McCadden. 18 The subsequent contempt charge against Droz was eventually 19 dismissed. 20 1983 against Herder and McCadden asserting, inter alia, causes of 21 action sounding in false arrest, malicious prosecution, and 22 conspiracy to commit false arrest and malicious prosecution. 23 Herder, having settled the claims against her, is no longer a 24 party to this appeal. 25 26 Anderson told Judge Shirley The police were then summoned, and McCadden then arrested Droz. Droz then brought this action pursuant to 42 U.S.C. § McCadden moved for summary judgment on qualified immunity grounds, arguing that he had arguable probable cause to 3 1 arrest Droz inasmuch as he had been told by Herder -- a town 2 judge whose instruction would be sufficient to give probable 3 cause to arrest someone for contempt of court -- that he should 4 arrest Droz for contempt. 5 entitled to qualified immunity with respect to the malicious 6 prosecution claim because it was undisputed that he spoke with 7 Herder about what statute to charge Droz under following Droz's 8 arrest. 9 McCadden also argued that he was The district court denied McCadden's motion for summary 10 judgment, concluding that there was a material issue of fact as 11 to whether Herder personally instructed McCadden to arrest Droz, 12 and that, therefore, probable cause for the arrest had not been 13 established as a matter of law. 14 malice might be established to support the malicious prosecution 15 claim because McCadden had no other evidence that Droz had 16 committed criminal contempt, the charge that was brought against 17 him and then dismissed. 18 appeal from the denial of his motion for summary judgment. The court also decided that McCadden brings this interlocutory DISCUSSION 19 20 I. Standard of review 21 "We review a district court's denial of summary 22 judgment de novo . . . ." Travelers Ins. Co. v. Carpenter, 313 23 F.3d 97, 102 (2d Cir. 2002) (noting, however, that unlike appeals 24 on qualified immunity issues, we typically undertake such review 25 only "when a final decision or other distinct district court 26 action has rendered the case appealable"). 4 Summary judgment must 1 be granted to the movant "if the pleadings, the discovery and 2 disclosure materials on file, and any affidavits show that there 3 is no genuine issue as to any material fact and that the movant 4 is entitled to judgment as a matter of law." 5 56(c); Roe v. City of Waterbury, 542 F.3d 31, 35 (2d Cir. 2008). 6 In an interlocutory appeal such as this one, "we may not review 7 whether a dispute of fact identified by the district court is 8 'genuine.'" 9 We may only resolve the summary judgment motion insofar as we 10 rely "on stipulated facts, or on the facts that the plaintiff 11 alleges are true, or on the facts favorable to the plaintiff that 12 the trial judge concluded the jury might find." 13 court's mere assertion that disputed facts exist . . . is[, 14 however,] not enough to preclude an immediate appeal." Fed. R. Civ. P. Escalera v. Lunn, 361 F.3d 737, 743 (2d Cir. 2004). Id. "A district Id. 15 II. Analysis 16 Irrespective of whether Herder and McCadden actually 17 spoke to one another before Droz's arrest -- a fact the district 18 court found was "genuinely" in dispute -- McCadden is entitled to 19 qualified immunity, because we conclude, as a matter of law, that 20 he reasonably believed he was acting at Herder's behest. 21 Droz contests whether such a personal conversation between Herder 22 and McCadden ever took place, he admits that "McCadden . . . 23 relied upon his alleged understanding of Herder's direction to 24 him to arrest Droz for criminal contempt." 5 While Droz Statement of 1 Material Facts ¶ 4.1 2 he was operating at the direction of Herder when he arrested 3 Droz. 4 Droz concedes, then, that McCadden thought The stipulated facts also establish as a matter of law 5 that this belief was reasonable. 6 agreed with Code Enforcement Officer Anderson that Droz's actions 7 in the courthouse should be reported to the police. 8 The police department, in the person of McCadden, were then 9 summoned by telephone to the courthouse by the town supervisor, Id. at ¶ 12. 10 Mark Murray. 11 that McCadden was told during or as a result of that phone call 12 that Herder was instructing him to come to the courthouse to 13 arrest Droz, for McCadden to have had any "alleged 14 understanding," Droz Statement of Material Facts ¶ 4, that Herder 15 had directed him to arrest Droz -- assuming as we must that he 16 did not have a direct conversation with Herder -- McCadden could 17 only have been told that as a result of what the town supervisor 18 told the police. 19 of fact as to whether McCadden had a personal conversation with 20 Herder prior to the arrest, then, for McCadden to have understood 21 that Herder directed him to arrest Droz, he must have been told 22 so directly or indirectly on or as a result of the call -- the 23 basis for a reasonable belief that it was so. 1 Id. at ¶ 13. Droz concedes that Herder While Droz does not explicitly agree Regardless of whether there is a triable issue While it is hard to know what to make of the use of the word "alleged" in Droz's Statement of Material Facts, we conclude that it does not take away from Droz's admission that McCadden had some understanding that Herder had instructed him to arrest Droz. 6 1 "Arguable probable cause [which establishes qualified 2 immunity with respect to a false arrest claim] exists when a 3 reasonable police officer in the same circumstances and 4 possessing the same knowledge as the officer in question 5 could have reasonably believed that probable cause existed in the 6 light of well established law." 7 344, 369 (2d Cir. 2007) (internal quotation marks omitted) 8 (emphasis in original). 9 matter of law, McCadden reasonably believed Herder instructed him Zellner v. Summerlin, 494 F.3d Based on the stipulated facts, as a 10 to arrest Droz. 11 probable cause for the arrest. 12 qualified immunity on the false arrest charge. 13 This belief was sufficient to establish arguable McCadden is therefore entitled to Similarly, McCadden is entitled to qualified immunity 14 on the malicious prosecution claim. 15 malicious prosecution, a plaintiff must show: (1) that the 16 defendant commenced or continued a criminal proceeding against 17 him; (2) that the proceeding was terminated in the plaintiff's 18 favor; (3) that there was no probable cause for the proceeding; 19 and (4) that the proceeding was instituted with malice." 20 v. Jackson, 316 F.3d 139, 143 (2d Cir. 2003). 21 that after having arrested Droz, McCadden spoke with Herder to 22 determine what charges were to be brought. 23 arrested Droz on the reasonable belief that Herder instructed him 24 to do so, and he spoke with Herder to determine the charge to be 25 brought against Droz, we conclude that there was probable cause 7 "To state a claim . . . for Kinzer It is undisputed Inasmuch as McCadden 1 as a matter of law for instituting the proceeding. 2 therefore entitled to qualified immunity. 3 McCadden is Because neither of the underlying section 1983 causes 4 of action can be established, the claim for conspiracy also 5 fails. 6 Cir. 1995). 7 8 9 See Singer v. Fulton County Sheriff, 63 F.3d 110, 119 (2d CONCLUSION For the foregoing reasons, the judgment of the district court is reversed and the cause remanded to the court with 10 instructions that the motion for summary judgment be granted and 11 Droz's remaining claims against McCadden be dismissed. 8
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