11-729-cv
Wilson v. City of N. Y. 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 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
York, on the 23rd day of April, two thousand twelve.

PRESENT: JOHN M. WALKER, JR.,
         CHESTER J. STRAUB,
         GERARD E. LYNCH,
                        Circuit Judges.


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JEREMY WILSON,
                                            Plaintiff-Appellant,

                                 v.                                           No. 11-729-cv

CITY OF NEW YORK, SETH LAYNE, Detective, Shield #3302, CHRISTOPHER
SEIBOLD, Shield # 5580, JAMES A. WEST,
                             Defendant-Appellee,

BIRGIT KOLLMAR,
              Defendant.
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FOR APPELLANT:                        SANFORD YOUNG (Law Office of David Zelman,
                                      Brooklyn, NY, on the brief), Law Offices of Sanford F.
                                      Young, P.C., New York, NY.

FOR APPELLEES:                        MORDECAI NEWMAN (Larry A. Sonnenshein, Michael
                                      Chestnov, on the brief), for Michael A. Cardozo, Corporation
                                      Counsel of the City of New York, New York, NY.
       Appeal from the United States District Court for the Eastern District of New York

(Allyne R. Ross, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       Plaintiff-appellant Jeremy Wilson was charged with involvement in an early

morning shooting on March 9, 2003, at a Times Square arcade at which hundreds of

people were present. Eight people sustained gunshot wounds; approximately seven others

suffered other injuries, including knife wounds. Wilson, who belonged to a group

identified as including the shooter or shooters, left the arcade in a police transport and

was eventually formally arrested, charged, and detained in anticipation of trial. After two

and one-half years of pre-trial detention, the state dropped all charges against him and he

was released.

       Wilson then sued defendants-appellees, alleging false arrest, recklessness, and

malicious prosecution, in violation of state and federal law, and violation of Wilson’s

state constitutional rights. After discovery, appellees moved for summary judgment on

all claims. Wilson opposed the motion and cross-moved for summary judgment on the

false arrest claims. The district court denied both Wilson’s and appellees’ motion with

respect to the false arrest claims, and granted appellees’ motion with respect to remaining

claims. The parties have since settled the false arrest claims.

       Wilson appeals the district court’s decision, arguing inter alia that the district court

erred by granting summary judgment with respect to Wilson’s contentions regarding pre-


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arraignment detention, post-arraignment/pre-trial detention, and malicious prosecution.

For the reasons that follow, we affirm the judgment of the district court. We assume the

parties’ familiarity with the underlying facts and procedural history of the case.

       “We review a grant of summary judgment de novo, construing the record in the

light most favorable to the non-moving party.” Hoyt v. Andreucci, 

, 327 (2d

Cir. 2006) (internal quotation marks omitted). “We will affirm the district court’s grant

of summary judgment only if, taking all of the plaintiff’s evidence as true and drawing all

inferences in plaintiff’s favor, we find that no reasonable juror could conclude that

[Wilson] has established that the defendants violated his constitutional rights under

circumstances subjecting them to liability under § 1983.” Russo v. City of Bridgeport,

479 F3d 196, 203 (2d Cir. 2007); see also Fed. R. Civ. P. 56(a).

I. Pre-arraignment Detention

       Wilson argues that his pre-arraignment detention of at least 84 hours violated state

and federal law, which generally presume that delays longer than 48 hours in presenting

arrestees to a court for arraignment are “unreasonable.” County of Riverside v.

McLaughlin, 

, 57 (1991). However, Wilson’s Fourth Amended Complaint

referenced “excessive detention” only in passing, and did not include an excessive-

detention allegation among his listed claims. The passing references to excessive

detention did not specify whether the reference was to his two-and-a-half years in pre-

trial detention or to the delay in his arraignment.

       The district court liberally construed the Fourth Amended Complaint to include a


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claim for excess detention independent of the claim for malicious prosecution, and

applied that claim to the two and one-half year pre-trial detention generally, deeming any

claim for relief for pre-arraignment detention as waived. The district court did not err in

this generous reading of an ambiguous complaint. The complaint focuses on the Wilson’s

alleged false arrest and prolonged pre-trial detention, but makes no reference to an

excessive delay in arraignment. Indeed, the complaint contains no factual allegation

regarding the length of his detention before being arraigned, or the times at which he was

arrested or presented in court. Wilson’s first effort to assert this claim apparently

occurred in his papers opposing the summary judgment motion. Because we agree with

the district court that it is “inappropriate to raise new claims for the first time in

submissions in opposition to summary judgment,” we conclude that Wilson waived any

claim for excessive pre-arraignment detention.

II. Pre-trial Detention

       Wilson next claims that the prolonged period of his pre-trial detention violated his

due process rights. We have previously held that “when [pre-trial] detention becomes

‘excessively prolonged,’ it may no longer be reasonable in relation to the regulatory goals

of detention, in which even a violation of due process occurs.” United States v. Millan, 

, 1043 (1993), quoting United States v. Salerno, 

, 747 n.4 (1987).

However, the constitutional right at issue in Millan is the right to bail pending trial when

pre-trial detention is found to be excessive; the case does not suggest that prolonged pre-

trial detention can support a claim for monetary damages. Morever, to the extent that a



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criminal defendant believes that his pre-trial detention has extended beyond what is

reasonable, he has a remedy in the form of an application for bail to the court in which

charges are pending. It is the court that is responsible for deciding whether and for how a

defendant may be detained, not the defendant police officers. “[I]n the absence of

evidence that the police officer misled or pressured the official who could be expected to

exercise independent judgment,” the “intervening exercise” of such judgment by the

prosecutor, grand jury, and/or judge breaks the chain of causation for purposes of § 1983

liability for the plaintiff’s incarceration. Townes v. City of N.Y., 

, 147 (2d

Cir. 1999).

       Wilson’s reliance on Russo v. City of Bridgeport is unavailing. Russo had been

arrested for his alleged robbery of a convenience store after the store clerk selected him

from a photographic lineup. Russo, 479 F.3d at 199. Russo, however, had extensive

tattoos on his arms, hands, and neck; the perpetrator of the robbery, as depicted in the

surveillance video under the defendants’ exclusive control, did not. Id. at 199-200. The

defendants failed to turn over the exculpatory evidence to either the prosecutor or the

defense for a period of over 200 days. We held that criminal defendants have a right to

be protected from “a sustained detention stemming directly from the law enforcement

officials’ refusal to investigate available exculpatory evidence” particularly where the

officials “retain[] sole custody of the [exculpatory] evidence . . . .” Id. at 208.

       The factual allegations in this case are not similar to those in Russo. Here, most of

the evidence was testimonial, and while the evidence was conflicting, some of it



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specifically identified Wilson as a non-shooter accomplice. The later developments that

caused the prosecutor to dismiss charges against Wilson – including challenges to

witnesses’ credibility – occurred well after the appellees no longer controlled Wilson’s

detention. For these reasons, the district court did not err in determining that the officers

could not be held liable for Wilson’s detention.

III. Malicious Prosecution

       The district court properly granted appellees summary judgment with respect to

both the state and federal malicious prosecution claims, which are subject to an identical

analysis. Boyd v. City of N.Y., 

, 75 (2d Cir. 2003). The elements of a

malicious prosecution claim are: (1) the defendant commenced or continued a criminal

proceeding against the plaintiff; (2) the proceeding terminated in favor of the plaintiff; (3)

there was no probable cause for the proceeding; and (4) the defendant acted with malice.

Droz v. McCadden, 

, 109 (2d Cir. 2009). All four elements are required to

sustain a claim of malicious prosecution.

       Wilson cannot establish the absence of probable cause for the proceeding.

Wilson’s indictment by the grand jury creates a presumption that his prosecution was

supported by probable cause. McClellan v. Smith, 

, 145 (2d Cir. 2006).

This presumption can only be overcome with evidence that “the indictment was secured

by fraud, perjury, the suppression of evidence or other bad faith police conduct.” Boyd,

336 F.3d at 77. Wilson fails to overcome this presumption, and argues instead that

probable cause – notwithstanding the grand-jury indictment – “dissipated” during the


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duration of the detention in light of new evidence adduced at the trials of Wilson’s then-

co-defendants.

       Even assuming arguendo that probable cause can “dissipate” after the grand jury

indictment has been filed, the decision to continue prosecution after the new evidence

came to light was made by the assistant district attorney and the court, not by appellees.

Accordingly, the district court did not err in granting summary judgment to appellees,

none of whom had control over Wilson’s case during the time in which the strength of the

evidence against Wilson weakened.

       We have considered Wilson’s remaining arguments and conclude that they are

without merit. For the foregoing reasons, the district court’s decision is AFFIRMED.



                                   FOR THE COURT:
                                   Catherine O’Hagan Wolfe, Clerk of Court




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