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DAVIS v. MTA (2021)

United States Court of Appeals, Second Circuit.

Rahiem T. DAVIS, Plaintiff-Appellant, v. CITY OF NEW YORK, Police Officer Wanda Gowins, Shield #02967, Police Officer Junior J. Walters, Shield #14810, Defendants-Appellees, New York City Transit Authority, Metropolitan Transit Authority, MTA Bus Company, Jane Doe and John Doe, 1 through 8 inclusive, the names of the last defendants being fictitious, the true names of the defendants being unknown to the Plaintiff, Defendants.


Decided: January 22, 2021

PRESENT: JOHN M. WALKER, JR., ROBERT A. KATZMANN, MICHAEL H. PARK, Circuit Judges. For Plaintiff-Appellant: Rahiem T. Davis, pro se, Brooklyn, NY. For Defendants-Appellees: Nwamaka Ejebe, Scott Shorr, Assistant Corporate Counsel, for James E. Johnson, Corporation Counsel of the City of New York, New York, NY.


Plaintiff-appellant Rahiem T. Davis, pro se, brought the instant action against defendants City of New York (the “City”), Police Officer Wanda Gowins, Shield #02967, Police Officer Junior J. Walters, Shield #14810, and New York City Transit Authority entities. He alleged false arrest, malicious prosecution, and excessively tight handcuffing claims under 42 U.S.C. § 1983, a conspiracy claim under 42 U.S.C. § 1985, a municipal liability claim under Monell v. Dep't of Soc. Servs. of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), and other state law claims. These claims arose out of his arrest for trespassing and theft of services after he entered a Brooklyn, NY bus terminal through an emergency exit gate without paying his fare, ignoring numerous signs that designated the gate as an exit for buses and that barred passengers from passing through it. After the district court dismissed all claims except those against the City, Gowins, and Walters, these remaining defendants moved for summary judgment. The court granted the motion, finding, inter alia, that Davis's arrest and prosecution were supported by probable cause, and the prosecution did not terminate favorably to him. Davis appealed. 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 de novo.” Garcia v. Hartford Police Dep't, 706 F.3d 120, 126 (2d Cir. 2013) (per curiam).1 “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) (quoting Fed. R. Civ. P. 56(a)).

As a threshold matter, Davis does not challenge the district court's grant of summary judgment regarding his 42 U.S.C. § 1985, excessive-handcuffing, Monell, and state law claims in his appellate brief, and he has therefore waived them on appeal. See LoSacco v. City of Middletown, 71 F.3d 88, 93 (2d Cir. 1995) (“[W]e need not manufacture claims of error for an appellant proceeding pro se, especially when he has raised an issue below and elected not to pursue it on appeal.”). In addition, Davis arguably waived his false-arrest and malicious-prosecution claims as well by mentioning them only “obliquely and in passing.” Gerstenbluth v. Credit Suisse Sec. (USA) LLC, 728 F.3d 139, 142 n.4 (2d Cir. 2013). Even if those two claims were not waived, however, we conclude that the district court properly granted the defendants-appellees summary judgment.

I. False-Arrest Claim

“Probable cause is a complete defense to a constitutional claim of false arrest,” and it “exists when one has knowledge of, or reasonably trustworthy information as to, facts and circumstances that are sufficient to warrant a person of reasonable caution in the belief that an offense has been or is being committed by the person to be arrested.” Betts v. Shearman, 751 F.3d 78, 82 (2d Cir. 2014). Hence, to determine whether an arrest was supported by probable cause, we must “examine the events leading up to the arrest, and then decide whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to probable cause.” Marcavage v. City of New York, 689 F.3d 98, 109 (2d Cir. 2012).

Here, the district court properly granted summary judgment regarding Davis's false-arrest claim because Walters had probable cause to arrest him for trespassing. New York Penal Law § 140.05 states that “[a] person is guilty of trespass when he knowingly enters or remains unlawfully in or upon premises.” Moreover, “[a] person ‘enters or remains unlawfully’ in or upon premises when he is not licensed or privileged to do so.” Id. § 140.00(5). Undisputed evidence shows that Walters saw Davis enter the subway station through the emergency exit gate, which had multiple signs posted in front of it warning that it was not a passenger entrance. For instance, the signs read “DO NOT ENTER,” “BUSES ONLY,” and “No entry. Entrance to L through station building only.” Walters's personal observations thus furnished him with probable cause to arrest Davis for trespassing and theft of services. See People v. Caba, 78 A.D.3d 857, 858, 910 N.Y.S.2d 373 (N.Y. App. Div. 2d Dep't 2010) (holding that officers had probable cause to arrest defendants for trespassing in a park when a sign posted at its entrance indicated it was closed); People v. Blasich, 140 A.D.2d 361, 361, 527 N.Y.S.2d 563 (N.Y. App. Div. 2d Dep't 1988) (holding that an officer had probable cause to arrest for theft of services when he observed defendant fail to pay a parking fee).

Davis does not challenge the district court's determination that Walters's observations were dispositive of his false-arrest claim; instead, he argues that, when he walked through the gate, he believed he was “licensed and privileged” to do so. Appellant's Br. 7. Under New York law, this belief might have provided him a defense against the trespass charge at trial. See People v. Basch, 36 N.Y.2d 154, 159, 365 N.Y.S.2d 836, 325 N.E.2d 156 (1975) (“[A] person who enters upon premises accidentally, or who honestly believes that he is licensed or privileged to enter, is not guilty of any degree of criminal trespass.”). However, it has no bearing on whether Walters had probable cause to arrest him for trespassing. In any event, Walters's observation of the signs barring entry to the station, combined with his personal observation of Davis's entry, when “viewed from the standpoint of an objectively reasonable police officer, amount[ed] to probable cause.” Marcavage, 689 F.3d at 109. The district court therefore properly granted summary judgment to the defendants-appellees with respect to Davis's false-arrest claim.

II. Malicious-Prosecution Claim

In assessing a malicious-prosecution claim brought under 42 U.S.C. § 1983, federal courts look to the relevant state tort law. See Cook v. Sheldon, 41 F.3d 73, 79 (2d Cir. 1994). In New York, “[t]he elements of the tort of malicious prosecution are: (1) the commencement or continuation of a criminal proceeding by the defendant against the plaintiff, (2) the termination of the proceeding in favor of the accused, (3) the absence of probable cause for the criminal proceeding and (4) actual malice.” De Lourdes Torres v. Jones, 26 N.Y.3d 742, 760, 27 N.Y.S.3d 468, 47 N.E.3d 747 (2016).

The district court granted summary judgment to the defendants-appellees with respect to Davis's malicious-prosecution claim after it found that Davis's prosecution was supported by probable cause and that the proceeding did not terminate in Davis's favor. Just as probable cause is a complete defense to a claim of false arrest, “continuing probable cause is a complete defense to a constitutional claim of malicious prosecution.” Betts, 751 F.3d at 82. “Probable cause, in the context of malicious prosecution, has been described as such facts and circumstances as would lead a reasonably prudent person to believe the plaintiff guilty.” Frost v. New York City Police Dep't, 980 F.3d 231, 243 (2d Cir. 2020). Here, the same corpus of facts that supported probable cause for Davis's arrest also supported it for his continued prosecution. Walters observed the signs barring passengers from entering the terminal through the emergency gate and also observed Davis entering the terminal through the gate despite those signs which, throughout the subsequent prosecution, would have led “a reasonably prudent person to believe [Davis] guilty.” Id.

Furthermore, in New York, the termination of a criminal proceeding is not favorable to a plaintiff claiming malicious prosecution “if the charge is withdrawn or the prosecution abandoned pursuant to a compromise with the accused.” Smith-Hunter v. Harvey, 95 N.Y.2d 191, 196, 712 N.Y.S.2d 438, 734 N.E.2d 750 (2000). Under that rubric, an adjournment in contemplation of dismissal (“ACD”) is not a favorable termination because it is “as unadjudicative of innocence as it [is] of guilt.” Hollender v. Trump Vill. Coop., Inc., 58 N.Y.2d 420, 426, 461 N.Y.S.2d 765, 448 N.E.2d 432 (1983); see also Fulton v. Robinson, 289 F.3d 188, 196 (2d Cir. 2002) (holding that an ACD “is not a favorable termination because it leaves open the question of the accused's guilt”). Therefore, the fact that Davis received an ACD does not support Davis's conclusory assertion that “[m]alicious prosecution exist[ed].” Appellant's Br. 8.

We have considered all of Davis's remaining arguments and have found in them no grounds for reversal. Accordingly, we AFFIRM the judgment of the district court.


1.   Unless otherwise indicated, case quotations omit all internal quotation marks, alterations, footnotes, and citations.

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DAVIS v. MTA (2021)

Docket No: 19-3268

Decided: January 22, 2021

Court: United States Court of Appeals, Second Circuit.

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