11-243-pr
    Southerland v. Garcia


                              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 18th day of May, two thousand twelve.

    PRESENT:
                JON O. NEWMAN,
                CHESTER J. STRAUB,
                GERARD E. LYNCH,
                      Circuit Judges.
    ____________________________________________________________

    SHAWN SOUTHERLAND, CAROL VICKERS,
             Plaintiffs-Appellants,

                     v.                                                         11-243-pr

    DETECTIVE RICK GARCIA, NEW YORK CITY POLICE DEPARTMENT, et al.,
                Defendants-Appellees.
    ___________________________________________________________

    FOR APPELLANTS:               Shawn Southerland, pro se, Rahway, New Jersey.

                                  Carol Vickers, pro se, Brooklyn, New York.

    FOR APPELLEES:                Fay Ng, Assistant Corporation Counsel, Max McCann, Of
                                  Counsel, Lisa A. Giunta, Law Graduate on the Brief, for Michael
                                  A. Cardozo, Corporation Counsel of the City of New York, New
                                  York, New York.

            UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND

    DECREED that the district court judgment is AFFIRMED.
          Plaintiffs-Appellants Shawn Southerland and Carol Vickers, proceeding pro se, appeal

from the December 21, 2010 grant of summary judgment to defendants by the United States

District Court for the Eastern District of New York (Jack B. Weinstein, J.). We assume the

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

          A grant of summary judgment is proper if there is no genuine issue as to any material fact

and the moving party is entitled to judgment as a matter of law. See Fed R. Civ. P. 56(a); Miller

v. Wolpoff & Abramson, L.L.P., 

, 300 (2d Cir. 2003). This Court reviews an order

granting summary judgment de novo. Miller, 321 F.3d at 300. We must view the facts in the

light most favorable to the nonmoving party and must resolve all ambiguities and draw all

inferences in favor of the nonmovant. See Nationwide Life Ins. Co. v. Bankers Leasing Ass’n,

, 160 (2d Cir. 1999), citing Cronin v. Aetna Life Ins. Co., 

, 202 (2d Cir.

1995). In sum, summary judgment is appropriate “[w]here the record taken as a whole could not

lead a rational trier of fact to find for the non-moving party.” Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 

, 587 (1986).

          We first address Vickers’s claims. Although Vickers did sign the Notice of Appeal, only

Southerland signed the pro se appellate brief; Vickers neither signed his brief nor submitted her

own. But Southerland, a non-lawyer, may not represent Vickers, nor may he himself raise her

claims. See Iannaccone v. Law, 

, 558 (2d Cir. 1998). Only after appellees argued

that Vickers had abandoned her claims did Vickers file an affidavit adopting Southerland’s brief.

Assuming without deciding that Vickers’s belated affidavit adopting the arguments in

Southerland’s brief is effective to preserve her appeal, we nevertheless reject her arguments, as

the district court correctly awarded summary judgment to appellees on her Fourth Amendment

claims.


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       Vickers gave her consent to all of the relevant searches. While Vickers argues that she

did not freely consent, we assess the consent on an objective basis. Florida v. Jimeno, 

, 250-51 (1991). Under the totality of the circumstances, see Schneckloth v. Bustamonte,

, 227 (1973), including Vickers’s age, the signed authorization she gave, the

absence of any show of force, and her sound mental and emotional condition, a reasonable

officer would have believed her consent was voluntary. It is therefore not relevant whether, as

Vickers asserts, she mistakenly believed, based on a discussion with a neighbor, that failure to

consent could lead to loss of her employment with the City. See United States v.

Lopez-Rodriguez, 

, 960 (8th Cir. 2005) (holding consent valid “[r]egardless of [one

occupant’s] unvoiced, subjective feelings about whether she could decline the officers’ request

to search the apartment” because “the evidence establishe[d] that the officers reasonably

believed that [the occupants] voluntarily consented to the search of the apartment”). In any

event, because a reasonable officer would have had no reason to doubt the validity of her

consent, defendants are protected by qualified immunity. See Saucier v. Katz, 

, 202

(2001) (“If the law did not put the officer on notice that his conduct would be clearly unlawful,

summary judgment based on qualified immunity is appropriate.”), overruled in part on other

grounds, Pearson v. Callahan, 

 (2009).

       Summary judgment was also proper on Southerland’s claims. First, Southerland’s false

arrest and imprisonment claim must fail because he was arrested pursuant to a facially valid

warrant. See Voyticky v. Village of Timberlake, 

, 677 (6th Cir. 2005) (“An arrest

pursuant to a facially valid warrant is normally a complete defense to a federal constitutional

claim for false arrest or false imprisonment made pursuant to § 1983.”); Brooks v. City of

Aurora, 

, 483 n.5 (7th Cir. 2011) (holding that a “facially valid warrant generally


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shields an officer relying in good faith on the warrant from liability for false arrest” absent bad

faith or reckless misconduct in obtaining the warrant); see also Singer v. Fulton County Sheriff,

, 118 (2d Cir. 1995) (“There can be no federal civil rights claim for false arrest

where the arresting officer had probable cause.”). Southerland points to no record evidence that

the defendants knew that the murder had not been committed in the Bronx, as alleged in the

complaint underlying the warrant; to the contrary, the discovery of the victim’s body in the

Bronx supported the finding of probable cause to believe the crime had been committed there.

       Second, summary judgment is appropriate on Southerland’s malicious prosecution claim

because the proceedings have not terminated in Southerland’s favor. Termination in the

plaintiff’s favor is a necessary element of the constitutional tort under § 1983. See Singer, 63

F.3d at 114 (malicious prosecution claim under § 1983 is equivalent to the state common law

tort); Rothstein v. Carriere, 

, 282 (2d Cir. 2004) (noting requirement of favorable

termination under New York law). Although the murder charges against Southerland were

dismissed in New York, the case was dismissed not because of doubts about Southerland’s guilt,

but because Southerland was charged with murder in New Jersey for substantially the same

alleged conduct. Because the New York dismissal was a simple procedural measure to relocate

the prosecution to New Jersey in light of investigators’ eventual conclusion that the murder had

actually occurred in New Jersey, the dismissal cannot be considered a favorable termination.

See Singleton v. City of New York, 

, 193 (2d Cir. 1980) (“Proceedings are

‘terminated in favor of the accused’ only when their final disposition is such as to indicate the

accused is not guilty.” (internal citation omitted)); Restatement (Second) of Torts § 660(d) (“A

termination of criminal proceedings in favor of the accused other than by acquittal is not a

sufficient termination to meet the requirements of a cause of action for malicious prosecution if .


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. . new proceedings for the same offense have been properly instituted and have not been

terminated in favor of the accused.”).

       Finally, summary judgment was proper on the remaining claims against the City.

Plaintiffs have failed to allege, let alone present any evidence of, an official custom or policy

such as is necessary to establish liability under Monell v. Department of Social Services, 

 (1978).

       We have considered all of the appellants’ arguments and find them to be without merit.

Accordingly, the judgment of the district court is AFFIRMED.


                                                      FOR THE COURT:
                                                      Catherine O’Hagan Wolfe, Clerk




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