Jonathan LEWIS, Plaintiff-Appellant, v. CITY OF NEW YORK, Police Officer Shawn Johnston, ID # 947782, Police Officer John Damacco, ID # 946892, Sergeant Alex Montesquieu, ID # 928799, Defendants-Appellees, Police Officers John Does 1 Through 5, Police Officer Stephen Kerekes, ID # 947129, Defendants.
No. 14-267-CV.
United States Court of Appeals, Second Circuit.
Jan. 29, 2015.
Anthony C. Ofodile, Ofodile & Associates, P.C., Brooklyn, N.Y., for Appellant.
Jonathan A. Popolow, Special Assistant Corporation Counsel, for Zachary W. Carter, Corporation Counsel of the City of New York, New York, N.Y., for Appellees.
Present: PIERRE N. LEVAL, ROSEMARY S. POOLER, DENNY CHIN, Circuit Judges.
SUMMARY ORDER
Appellant Jonathan Lewis appeals from the December 24, 2013 order and opinion of the United States District Court for the Eastern District of New York (Mauskopf, J.) granting Defendants-Appellees’ motion for judgment on the pleadings, denying Lewis‘s motion to amend, and dismissing the complaint. We assume the parties’ familiarity with the underlying facts, procedural history, and specification of issues for review.
On appeal, Lewis challenges the district court‘s decision to dismiss his claims of (1) malicious prosecution, (2) denial of the right to a fair trial, and (3) retaliation in violation of the First Amendment, and to deny leave to amend his complaint. We review a district court‘s grant of judgment on the pleadings pursuant to
First, we find no error in the district court‘s dismissal of Lewis‘s malicious prosecution claim. “To establish a malicious prosecution claim under New York law [or
Here, Lewis‘s indictment by a Queens County grand jury creates a presumption of probable cause. The various iterations of Lewis‘s complaint fail to rebut this presumption, essentially alleging only that the defendant officers must have fabricated evidence in light of Lewis‘s version of the events and his ultimate acquittal. Such conclusory allegations are insufficient to counter the presumption of probable cause, and to allow a court to draw the reasonable inference that the grand jury‘s indictment was a result of fraud or other misconduct. See Iqbal, 556 U.S. at 679 (“where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not ‘show[n]‘—‘that the pleader is entitled to relief.‘“) (quoting
Lewis‘s claim of denial of the right to a fair trial fails for the same reasons. We have held that “[w]hen a police officer creates false information likely to influence a jury‘s decision and forwards that information to prosecutors, he violates the accused‘s constitutional right to a fair trial, and the harm occasioned by such an unconscionable action is redressable in an action for damages under
Finally, we affirm the dismissal of Lewis‘s First Amendment retaliation claim. Regardless of whether he alleges a claim of retaliatory arrest or one of retaliatory prosecution, Lewis lacks third-party standing to bring a First Amendment retaliation claim on the basis of his mother‘s allegedly
Lewis claims that he was either arrested or prosecuted in retaliation for his mother‘s allegedly protected speech when she complained to the defendant officers regarding their treatment of her son. In the context of a First Amendment retaliation claim, this Court has held that “[a] plaintiff may assert the constitutional claims of a third party if the plaintiff can demonstrate: (1) injury to the plaintiff, (2) a close relationship between the plaintiff and the third party that would cause plaintiff to be an effective advocate for the third party‘s rights, and (3) some hindrance to the third party‘s ability to protect his or her own interests.” Camacho v. Brandon, 317 F.3d 153, 159 (2d Cir.2003) (internal quotation marks omitted). “Implicit in Camacho‘s formulation is the requirement that the third party . . . [have] a constitutional claim.” Huth v. Haslun, 598 F.3d 70, 75 (2d Cir.2010) (emphasis in original). Here, there is no allegation that Lewis‘s mother suffered an injury from her allegedly protected speech. Cf. id. (“Huth does not allege that Archer suffered any retaliation for her activities, or more broadly, that Archer‘s constitutional rights were violated in any way. Indeed, she concedes that Archer could not have brought a claim herself because she did not suffer any injury.“) (internal quotation marks omitted). Yet even if such injury were alleged, Lewis has still not identified any “hindrance to [his mother] asserting [her] own rights.“, Campbell v. Louisiana, 523 U.S. 392, 397 (1998). Indeed, there is no allegation that Lewis‘s mother would be unable or unwilling to assert her own rights. In the absence of such a hindrance, Lewis lacks third-party standing to assert a First Amendment retaliation claim on the basis on his mother‘s allegedly protected speech.
We have considered the remainder of Lewis‘s arguments and find them to be without merit. Accordingly, the judgment of the district court hereby is AFFIRMED.