687 F. App'x 40

2d Cir.

2017

Robert BOLEY, Plaintiff-Appellant, v. Sergeant Dmitry DURETS, (first name unknown) 61st Precinct, Police Officer Dexter Deonarinesingh, John Doe # 1, Desk Officer, 61st Precinct, John/Jane Does, #210 (61st Precinct), Defendants-Appellees, Albert Devito, Carol Zeitler, Honourable Guy Mangano, Honourable Martin Murphy, Kings County District Attorney‘s Office, Esq. Charles J. Hynes, District Attorney, Esq. Lisa Marie Vellucci, District Attorney, Assistant District Attorney, (Pretrial ADA Name), Defendants.

16-1070-cv

United States Court of Appeals, Second Circuit.

April 14, 2017

Zervos v. Verizon N.Y., Inc., 252 F.3d 163, 169 (2d Cir. 2001)).

II. Class Certification

The district court set forth its reasons for denying class certification in its well-reasoned and comprehensive Opinion and Order dated March 19, 2015. The district court clearly explained at length why the evidence presented by the Plaintiffs failed to demonstrate sufficient uniformity in the Defendant‘s exercise of managerial discretion. The district court correctly concluded that this failure was fatal to the Plaintiffs’ ability to carry their burden with respect to commonality under Fed. R. Civ. P. 23(a)(2), and that class certification was therefore not appropriate. The district court also correctly concluded that even if the commonality requirement had been satisfied, the predominance requirement of Fed. R. Civ. P. 23(b)(3) remained unsatisfied on the record before it.

In its Opinion and Order dated August 4, 2015, the district court provided lucid and accurate analysis of the issue now before this Court and carefully explained why the Plaintiffs’ position rests on a misapprehension of the burden that the law imposes on them at the class certification stage. That is, under Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011), the “rigorous analysis” required at the class certification stage “will [frequently] entail some overlap with the merits of the plaintiff‘s underlying claim.” Id. at 351, 131 S.Ct. 2541. The district court also noted this Court‘s precedent establishing that the burden borne by a party seeking class certification “is not lessened by overlap between a Rule 23 requirement and a merits issue, even a merits issue that is identical with a Rule 23 requirement.” In re Initial Pub. Offerings Sec. Litig., 471 F.3d 24, 41 (2d Cir. 2006).

We agree with the district court‘s ruling for substantially the reasons set forth in its well-reasoned decisions. There was no abuse of discretion.

We have considered all of the Appellants’ arguments to the contrary and find them without merit. The decision of the district court is AFFIRMED. The Appellants’ motion for leave to supplement the appendix and the Appellee‘s motion to strike portions of the briefs are DENIED as moot.

FOR APPELLANT: ROBERT BOLEY, pro se, Grand George, NY.

FOR APPELLEE: DIANA LAWLESS, Assistant Corporation Counsel (Pamela Seider Dolgow, Assistant Corporation Counsel, on the brief), for Zachary W. Carter, Corporation Counsel for the City of New York, New York, NY.

PRESENT: AMALYA L. KEARSE, JOHN M. WALKER, JR., PETER W. HALL, Circuit Judges.

SUMMARY ORDER

Appellant Robert Boley, proceeding pro se, appeals from the district court‘s dismissal of his 42 U.S.C. § 1983 claims against defendants-appellees Sergeant Dmitry Durets and Officer Dexter Deonarinesingh for false arrest and malicious prosecution in connection with his state criminal proceedings.¹ The district court granted the defendants-appellees’ motion for summary judgment, dismissing Boley‘s claims against Durets and Deonarinesingh for Boley‘s failure to establish their personal involvement in the acts alleged in the Complaint. Boley argues that, although Durets and Deonarinesingh were not involved in his arrest or in the initiation of proceedings against him, they participated in his prosecution by testifying falsely about their roles in his arrest in order to protect other police officers. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

We review de novo a district court‘s grant of summary judgment. Garcia v. Hartford Police Dep‘t, 706 F.3d 120, 126 (2d Cir. 2013) (per curiam). Summary judgment must be granted if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). When determining whether a genuine dispute exists, “we must resolve all ambiguities and draw all inferences against the moving party.” Garcia, 706 F.3d at 127. A party, however, cannot overcome summary judgment by relying on “mere speculation or conjecture as to the true nature of the facts” because “conclusory allegations or denials ... cannot by themselves create a genuine issue of material fact where none would otherwise exist.” Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010) (quoting Fletcher v. Atex, Inc., 68 F.3d 1451, 1456 (2d Cir. 1995)). To establish a § 1983 claim, a plaintiff must show the defendants’ personal involvement in the alleged constitutional violation. Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994).

Upon review of the arguments raised by Boley in his appellate brief, we determine that he has waived any challenge to the district court‘s dismissal of his false arrest claim: he confirms in his brief that the defendants “had nothing whatsoever to do with [his] arrest.” See JP Morgan Chase Bank v. Altos Hornos de Mexico, S.A. de C.V., 412 F.3d 418, 428 (2d Cir. 2005) (“[A]rguments not made in an appellant‘s opening brief are waived....“); LoSacco v. City of Middletown, 71 F.3d 88, 92-93 (2d Cir. 1995) (explaining that a pro se appellant abandons an issue not raised in his appellate brief).

Boley has not, however, waived review of the dismissal of his malicious prosecution claim. To prevail on a malicious prosecution claim, a plaintiff must satisfy four elements, including that the defendant initiated the plaintiff‘s prosecution. Manganiello v. City of New York, 612 F.3d 149, 161 (2d Cir. 2010). To initiate a prosecution, “a defendant must do more than report the crime or give testimony. He must play an active role in the prosecution, such as giving advice and encouragement or importuning the authorities to act.” Id. at 163 (internal citation, quotation marks, and alteration omitted). Liberally construing Boley‘s brief, he asserts that the defendants participated in his prosecution by lying about the role they played in his arrest by giving perjurious testimony and incorrectly identifying Deonarinesingh as the arresting officer to protect other police officers. While false statements by the police in connection with a criminal proceeding may sometimes give rise to a malicious prosecution claim, see Manganiello, 612 F.3d at 163, Boley has failed to meet his burden in this case. He has not offered any explanation, or introduced any evidence, to establish that the defendants’ alleged misrepresentations played any role in his criminal prosecution. Even if Officer Deonarinesingh was incorrectly identified as Boley‘s arresting officer at trial, it is not clear how this misrepresentation furthered the state‘s case against him. Boley‘s conclusory alleagtions alone are insufficient to survive a motion for summary judgment.

We have considered Boley‘s remaining arguments and find them to be without merit. Accordingly, we AFFIRM the judgment of the district court.

Notes

There were ten Doe defendants who were dismissed in the summary judgment order for failure to identify and serve them, and who are mentioned in the caption of Boley‘s notice of appeal. As Boley makes no argument about the Does in his brief on appeal, we regard his claims against them as abandoned. See, e.g., ; Fed. R. App. P. 28(a)(8).

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