Case Information
‐ cv Inc. Vill. Patchogue In the
United States Court of Appeals
for the Second Circuit A UGUST T ERM No. cv
J OHN M ANGINO ,
Plaintiff Appellant , I NCORPORATED V ILLAGE OF P ATCHOGUE ,
J OHN P. P OULOS AND J AMES N UDO , Defendants Appellees [*]
On Appeal United States Court Eastern
A RGUED : O CTOBER D ECIDED : D ECEMBER
Before: N EWMAN W INTER C ABRANES Circuit Judges
*2 On appeal from the March judgment of the United States District for the Eastern District of New York (Joseph Bianco, Judge ) dismissing plaintiff ‐ appellant John Mangino’s complaint against defendants appellees the Incorporated Village Patchogue and Fire Marshal John P. Poulos, and the District Court’s August order denying Mangino’s motion set aside verdict and new trial.
We (1) AFFIRM District Court’s dismissal Mangino’s claim, criminal summonses on which it premised were supported cause, issuance non criminal Fire Prevention Violation Order it premised was otherwise justified, has made any argument issuance Fire Prevention Violation Order significantly more serious than discretion take; (2) AFFIRM Court’s dismissal abuse process qualified immunity grounds because, time alleged conduct, although there clearly established right be free from law, there no clearly established right free where existed; (3) AFFIRM Court’s denial motion set aside verdict new trial because clear read context, jury instructions were erroneous.
R OBERT A. S IEGEL Law Office Robert A. Siegel, New York, NY, for Plaintiff ‐ Appellant.
M ARK A. R ADI (Brian S. Sokoloff, brief ), Carle Place, NY, Defendants ‐ Appellees
J OSÉ A. C ABRANES Circuit Judge :
The principal question presented whether, August there clearly established right free from New York law even where existed. We conclude there not.
Plaintiff appellant John Mangino (“Mangino”) appeals from March judgment United States District Eastern (Joseph F. Bianco, Judge ) dismissing his complaint against defendant appellees Incorporated Village Patchogue (the “Village”) Village Fire Marshal John P. (“Poulos”). The appeal seeks review Court’s September order dismissing claim, see Mangino Inc. Vill. Patchogue F. Supp. 2d (E.D.N.Y. 2010), its September order dismissing his claim, see Inc. Vill. Patchogue Supp. 2d (E.D.N.Y. 2011). appeals August post judgment order denying *4 motion set aside the verdict and for new trial. See Mangino Inc. Vill. Patchogue No. CV ‐ (JFB), WL (E.D.N.Y. Aug. 2014).
As explained more fully below, (1) AFFIRM the District Court’s dismissal Mangino’s claim, the criminal summonses on which it premised were supported cause, issuance non criminal Fire Prevention Violation Order it premised was otherwise justified, and has made any argument issuance Fire Prevention Violation Order significantly more serious than discretion take; (2) AFFIRM District Court’s dismissal abuse process qualified ‐ immunity grounds because, time alleged conduct, although there clearly established right be free from New law, there no clearly established right free from where existed; (3) AFFIRM Court’s denial motion set aside verdict new trial because clear read context, jury instructions were erroneous.
BACKGROUND
At some point between purchased with wife, whom dismissed case, apartment building Patchogue, York. Pl.’s App’x When he purchased building, he applied two year rental permit, *5 as required Village’s rental permit law. Id. at 74. After he received permit, he began renting apartments tenants. When his permit expired in around 2004, he did not renew it. Id. at 78, 80–81.
In January 2005, defendant appellee James Nudo (“Nudo”), Village’s Housing Inspector and Code Enforcement Officer, issued criminal summonses Mangino continuing rent out apartments despite failure renew his rental permit. Id. at 83– 84. Mangino challenged in court these summonses their manner service, well as validity Village’s rental permit law. Id. 85. alleges in response, Village prosecutor threatened him, stating if he did settle pending litigation against Village accept plea bargain, he would “hit with barrage summonses.” Id.
On July 2005, one tenants, Dawn Gucciardo (“Gucciardo”), called Village Housing Department requested someone check power in her apartment. Id. 142–44. Nudo answered Gucciardo’s call, id. later filed incident report which he wrote Gucciardo told him she feared conditions her apartment, included electrical problems, would result fire, id. 142–44; Ex. RR, Inc. Vill. Patchogue No. CV (JFB) (E.D.N.Y. Feb. 2010), ECF No. 47. Nudo forwarded this incident report Poulos. Pl.’s App’x On July Gucciardo called Housing Department report “that things were ‘getting fixed,’” but present Housing Department received call.
According to defendants appellees, July Gucciardo called the Village Housing Department again, this time to complain outlets in her apartment were sparking arcing. Id. at 146–49. Defendants appellees claim that, Poulos informed call, he immediately departed building to investigate. Id. at 151–52. Mangino, however, claims Gucciardo never called Village Housing Department July 2005. Id. at 146–49.
When Poulos arrived at building, he informed Mangino he come check outlet in Gucciardo’s apartment. Id. at 159. Mangino refused let Poulos into building without warrant. Id. at 160. Poulos then called Nudo request assistance and informed if Mangino would allow Poulos in, Poulos would call Village Fire Department. Id. at 160–61. When still refused grant Poulos entry, Poulos called in “all ‐ encompassing general alarm.” Id. at 161–63.
When Village firemen arrived, they inspected building, including Gucciardo’s apartment and basement. Id. at 170– 73. They did find any sparking arcing outlets Gucciardo’s apartment. Id. But according defendants appellees, Captain Welsh noticed two potential hazards while basement radioed Village Fire Chief Joseph Wagner, who still outside building. Id. 173–74. Defendants appellees Welsh Wagner then requested Poulos’s assistance inspecting these potential hazards. Id. 177–78. eventually entered building proceeded basement. 179–80. Defendants ‐ *7 appellees assert Captain Welsh and inspecting firemen pointed out two potential hazards to Poulos, at which point Poulos wrote down his observations and issued Fire Prevention Violation Order (“FPVO”) to Mangino. Id. at 181–92. The FPVO required Mangino, by September 1, 2005, to repair hazardous conditions supply Village with licensed engineer’s report stating no corrective necessary; this deadline later extended to October 31, 2005. Id. 192–93, 583–87.
On August 11, 2005, Nudo and Village Housing Coordinator Joanne Gallo visited building investigate Gucciardo’s July 21, complaints, and inspected Gucciardo’s apartment with her consent. Id. 200–02. On same day, Nudo issued separate summonses Mangino for variety alleged violations Village Code. Id. On August 27, 2005, Mangino served with additional summonses, issued Nudo and dated August 5, 8, 13, 14, 15, 16, for failure renew his rental permit those dates. Id. 84–103. Although admits he did rental permit August he continued rent apartments building during time, all summonses issued him violation Village’s rental permit law were ultimately dismissed.
On February filed operative Second Amended Complaint, he asserted various claims against defendants appellees, including claims U.S.C. § violations Fourth Amendments U.S. *8 Constitution. Mangino F. Supp. 2d at 225–26. Mangino’s sole First Amendment claim for retaliation, id. at 247, while his Fourth Amendment claims included of warrantless entry, id. at 226. On September 23, 2010, following parties’ cross ‐ motions for summary judgment, District Court dismissed Mangino’s First Amendment claim because he had failed show that defendants appellees’ allegedly retaliatory conduct chilled exercise Amendment rights. Id. 248–49. On September dismissed Mangino’s Fourth qualified ‐ immunity grounds. Mangino Supp. 2d 249–52.
The case proceeded trial warrantless entry claim, trial took place February through March 2014. Mangino WL *1. The jury returned unanimous verdict defendants appellees, concluding proven by preponderance evidence fabricated an exigent circumstance thus lacked enter building without warrant. In subsequent motion under Rule 59(a) Federal Rules Civil Procedure, argued jury *9 instructions improperly allowed jury consider events than those allegedly took place July as justification warrantless entry. Id. at *1, *5–8. The District Court rejected this argument, id. at *8, Mangino timely appealed.
DISCUSSION
I. First Amendment Retaliation Claim
We begin with argument District Court erred in dismissing his First Amendment retaliation claim. “We review district court’s grant summary judgment de novo.” Baldwin v. EMI Feist Catalog, Inc. —F.3d—, WL *7 (2d Oct. 2015). Here, District Court held make out First Amendment claim, “the plaintiff must show . . . defendants’ actions effectively chilled exercise [his] First Amendment right.” Supp. 2d (internal quotation marks omitted). According District Court, failed satisfy requirement because “the undisputed evidence indicate[d] [his] conduct not, in fact, chilled defendants’ alleged retaliatory conduct.” Id. 249. In so holding, Court relied primarily our decision Curley Village Suffern F.3d (2d 2001), we stated—precisely recited—that “plaintiff must prove defendants’ actions effectively chilled exercise right.”
But more than three years after decision, acknowledged Dorsett County Nassau *10 Cir. 2013), that “there is some tension in our First Amendment standing cases”; that “[w]e sometimes given impression that silencing plaintiff’s speech is only injury sufficient give a First Amendment plaintiff standing”; that our description chilling effect requirement in Curley “was an imprecise statement law.” Id. We clarified that “[c]hilled speech sine qua non a First Amendment claim,” that “[a] plaintiff has standing if he can show either that speech has been adversely affected by government retaliation that he has suffered some concrete harm.” (second emphasis supplied).
Thus, Dorsett Court’s dismissal claim incorrect as a matter law—although emphasize that imprecision in our own precedents, on understandably relied, that caused result. That dismissal in error, however, does necessarily mean First Amendment retaliation claim should reinstated, “we are entitled affirm judgment any basis supported record.” M.O. v. N.Y.C. Dep’t Educ. F.3d (2d 2015) (internal quotation marks omitted).
“The existence will defeat a premised allegation defendants prosecuted plaintiff out retaliatory motive, attempt silence [him].” Fabrikant French 2012); see Hartman Moore U.S. (2006) (holding Bivens “for inducing prosecution speech,” *11 “complaint [cannot] state[ ] an actionable violation the First Amendment without alleging an absence probable cause to support the underlying criminal charge,” “that want probable cause must be . . . proven”). [2] This is because “[a]n individual does not have right under to be free criminal prosecution supported by probable cause, even if that prosecution is reality unsuccessful attempt deter silence criticism government.” Fabrikant 691 at 215 (internal quotation marks omitted). Here, correctly found, see Mangino Supp. 2d at n.22, probable cause existed with respect each criminal summonses issued Mangino—including Ticket #16518, only such summons that argues appeal supported by probable cause, see Pl.’s Br. (“Plaintiffs conceded probable cause existed for issuance all but two tickets issued. With respect those two, plaintiffs draw attention appearance ticket # 16518[.]”); id. n.3 (“[P]laintiffs[’] focus ticket number 16518[.]”). asserts “there no cause
issuance ticket because written day before crime being alleged[.]” But find unpersuasive position “whether existed [the] issuance [of Ticket # 16518] should determined circumstances *12 time the [summons] was issued”—by he means at the time the summons written —and “not when the [summons] was served and filed.” at identifies no controlling authority supports proposition, the single district court decision he cites is inapposite. See id. Furthermore, we have “agree[d] with [a] district court [a plaintiff’s] claim[ ] . . . First Amendment retaliation fail[ed] because [the] defendants had probable cause believe [that the plaintiff] committed” the offense issue, Fabrikant 691 F.3d at 215–16, where the district court analyzed whether cause existed time defendants arrested plaintiff executed search warrant against her, not some earlier point, such as warrant sought signed, see Fabrikant French Supp. 2d 256–57 (N.D.N.Y. 2010), aff’d F.3d (2d 2012). Accordingly, we affirm order September dismissing First Amendment retaliation claim insofar as is premised on summonses.
But is premised solely summonses—it also premised Poulos’s issuance FPVO. And parties seem agree issuance FPVO criminal prosecution, but non ‐ criminal regulatory enforcement action. See Pl.’s Reply Br. (“[T]he *13 issuance . . . . . . FPVO was not a[ ] . . . prosecution.”); Defs.’ Br. 32–33 (“The [FPVO] did not constitute prosecution. . . . [P]laintiffs did not appear in court on FPVO.”). As such, cause cannot defeat First Amendment insofar as it premised issuance FPVO. Cf. Bd. Educ. Indep. Sch. Dist. No. Pottawatomie Cnty. v. Earls U.S. (2002) (“The standard . . . peculiarly related criminal investigations .” (internal quotation marks omitted)).
Be that it may, does dispute that he committed violations Poulos’s issuance FPVO based. And while may true least certain circumstances, plaintiff can prove even if measures taken state were otherwise justified, he may do so only if he can show defendant, improper motive, took regulatory action significantly more serious than other action he had discretion take. See Royal Crown Day Care LLC Dep’t Health & Mental Hygiene City N.Y. F.3d (2d 2014) (official, improper motive, ordered facility closed rather than order code violations remedied). Here, has made any argument issuance FPVO significantly more serious than had discretion take. Moreover, nothing in record would support such argument. *14 We therefore also affirm Court’s dismissal of claim insofar premised on Poulos’s issuance of FPVO.
II. Abuse of Process Claim
We turn next to argument that erred dismissing abuse of process claim, dismissal also review de novo. See, e.g. , Doe ex rel. Doe v. Whelan , 732 F.3d 155 (2d Cir. 2013) (reviewing de novo a district court’s grant summary judgment qualified immunity grounds). The basis for this dismissal determination Nudo was entitled qualified immunity because, under New York law, “although there a clearly established right free malicious abuse process time alleged conduct”— is, August 2005 —“it clearly established such a claim [could] exist even cause existed issuance [summonses].” , Supp. 2d We agree.
There has been considerable confusion within our Circuit regarding whether complete defense claim abuse process under New York law. In Weiss v. Hunna *15 F.2d 711 (2d Cir. 1963), we suggested that it is not, holding that “the gist of tort of abuse of process, distinguished malicious prosecution, not commencing an action or causing process issue without justification , but misusing or misapplying process justified in itself an end other than which it designed accomplish.” Id. 717 (emphasis supplied) (internal quotation marks omitted); see also Alexander v. Unification Church of Am. , 634 F.2d 673, 677–78 (2d Cir. 1980) (same), overruled grounds PSI Metals, Inc. v. Firemen’s Ins. Co. of Newark, N.J. , 839 F.2d 42, 43 (2d Cir. 1988). [6]
But PSI Metals, Inc. v. Firemen’s Insurance Co. Newark, New Jersey , 839 F.2d 42 (2d Cir. 1988), we held one elements an process claim under New York law “an intent do harm without excuse or justification .” Id. 43 (emphasis supplied) (internal quotation marks omitted); see Cook v. Sheldon F.3d (2d 1994) (same); Shain Ellison F.3d 56, (2d Cir. cognizable § we would look state law determine elements . . . .”). In support argument cause not complete defense claim, repeatedly cites Lodges & International Ass’n Machinists & Aerospace Workers United Aircraft Corp. 1975), held “[a]buse does not depend upon whether not brought without upon outcome litigation.” n.85. See Pl.’s Br. 40; Pl.’s Reply Br. 20. United Aircraft Corp. however, concerned labor strike Connecticut, did involve law. Thus, does bear matter hand. See ante note
2001) (same); Savino v. City of N.Y. , 331 63, 76 (2d 2003) (same).
In years between our decision in PSI Metals August 2005, alleged conduct occurred, numerous district courts within our Circuit interpreted this formulation to mean that probable cause a complete defense to an abuse ‐ of ‐ process claim law, because an “excuse or justification.” [7] Indeed, we since lent support to interpretation a non ‐ precedential summary order, held that “[t]he conclusion [the plaintiff] could prevail her claims that *17 officers lacked her arrest . . . required dismissal her . . . claims process.” Jones v. J.C. Penny’s Dep’t Stores Inc. , 317 App’x 71, 74 (2d Cir. 2009).
We need not, do not, resolve confusion here, as its very existence establishes Nudo entitled to qualified immunity. [8] “[T]he qualified immunity defense . . . provides ample protection to all but plainly incompetent or those who knowingly violate law. . . . [I]f officers reasonable competence could disagree th[e] issue, immunity should be recognized.” Malley v. Briggs , U.S. (1986); see Mullenix v. Luna , 136 S. Ct. (2015) (same). As foregoing makes clear, it not only officers reasonable competence, but federal judges, who could so disagree. Cf. Pearson v. Callahan U.S. 244–45 (2009) (“[O]fficers are entitled to rely existing lower court cases without facing personal liability their actions.”); Richardson v. Selsky F.3d (2d 1993) (“If district judges Southern York, who are charged with ascertaining applying law, could not determine state law with reasonable certainty, seems unwarranted to hold . . . officials to standard even clear judges . . . .”); Hope Pelzer *18 536 U.S. 730, 763 (2002) (Thomas, J., dissenting) (“[I]n the face of recent Federal Court decisions specifically rejecting [similar] claims . . . , it seems contrary to the purpose of qualified immunity to hold one vague sentence plucked out of 21 year old of Appeals opinion provided clear notice respondents . . . .”). Accordingly, we affirm the Court’s dismissal claim. III. Jury Instructions
Finally, substantially the reasons stated in the sound decision denying motion set aside verdict and new trial, see , WL 3795572, *5–8, conclude that the Court’s jury instructions were free error, regardless whether the applicable standard review de novo, see Pl.’s Br. or plain error, see Defs.’ Br. 54–55.. claims that, “in failing contain a limiting temporal reference to July 25th, the charge/verdict question submitted [was] inherently confusing, misguided, prevented a proper application the law,” Pl.’s Br. but a review the disputed instructions demonstrates that they appropriately limited jury’s consideration exigency that date.
In paragraph jury charge that specifically referred “July 2005,” instructed jury “[i]n particular, defendants maintain Village received telephone call tenant complaining about an arcing sparking wire an apartment, which justified entry into house without warrant ensure safety tenants.” Pl.’s App’x The theory defendants appellees advanced trial Gucciardo called Village on July complain about arcing sparking wire, she did so any earlier date. The instructions were therefore erroneous.
CONCLUSION
We considered all arguments find them without merit. Accordingly, foregoing reasons, we:
(1) AFFIRM dismissal claim, criminal summonses *20 it premised were supported cause, issuance non criminal Fire Prevention Violation Order it premised was otherwise justified, has made any argument issuance Fire Prevention Violation Order significantly more serious than discretion take;
(2) AFFIRM Court’s dismissal abuse process qualified immunity grounds because, time alleged conduct, although there clearly established right be free from law, there no clearly established right free where existed;
(3) AFFIRM Court’s denial motion set aside verdict new trial because clear read context, jury instructions were erroneous.
[*] The Clerk directed amend caption appeal indicated above.
[1] Section provides “[e]very person who, color any statute, ordinance, regulation, custom, or usage, any State or Territory or Columbia, subjects, or causes be subjected, any citizen United States or other person within jurisdiction thereof deprivation any rights, privileges, immunities secured Constitution laws, shall liable party injured law, suit equity, proper proceeding redress .” U.S.C. § See generally Rehberg Paulk S. Ct. 1501–02 (2012).
[2] “Though more limited some respects relevant here, Bivens federal analog suits brought against state officials U.S.C. § 1983.” Hartman U.S. n.2.
[3] Relatedly, held “[t]he existence nonexistence malicious prosecution suit determined, earliest, time prosecution commenced.” Rothstein Carriere 2004).
[4] Nor case like Beechwood Restorative Care Center Leeds 2006), where state officials discretion classify nursing home’s deficiencies various categories, each resulting consequences escalated seriousness.
[5] When plaintiff asserts abuse process claim under Section “we turn state law find elements,” Cook v. Sheldon F.3d (2d Cir. 1994)—in case, New York State law. See Savino City N.Y. F.3d 76–77 2003) (relying State case law holding plaintiff failed state Section 1983); cf. Hart Mannina (7th 2015) (“Assuming
[7] See, e.g. , Granato v. City of N.Y. , No. 98 ‐ CV ‐ 667 (ILG), 1999 WL 1129611, at *7 (E.D.N.Y. Oct. 18, 1999) (“[A] showing of probable cause at time process issued suffices to establish ‘excuse justification’ purposes of a defense to abuse of process.” (citing Berman v. Silver, Forrester & Schisano , 549 N.Y.S.2d 125, 127 (2d Dep’t 1989) (dismissing plaintiff’s abuse ‐ of ‐ process claim part because “the defendants had probable cause to commence prior action”))); Harmer v. City of Lockport , No. 98 ‐ CV ‐ 10E (JTE), 2000 WL 210201, *4 (W.D.N.Y. Feb. 9, 2000) (“One element [of] abuse ‐ of ‐ process claim such employed without excuse justification, a showing defendants had probable cause effectuate plaintiff’s arrest will suffice establish a justification purpose of defeating such a claim.” (citation omitted)); Hernandez v. Wells No. ‐ CV ‐ 4376 (MBM), 2003 WL 22771982, *9 (S.D.N.Y. Nov. 2003) (declining dismiss plaintiff’s ‐ claim only because plaintiff had “raised genuine issue material fact about whether [one defendants] had probable cause assert [the plaintiff] assaulted him”); Hickey City N.Y. No. CV (GEL), WL *7 (S.D.N.Y. Nov. 2004) (“[T]he existence cause offers complete defense [abuse process].”), aff’d App’x 2006); Almonte City N.Y. No. CV (ARR), WL *5 (E.D.N.Y. May 2005) (“The existence offers complete defense process.”).
[8] It may possible reconcile PSI Metals with Weiss reading former’s reference “excuse or justification” as reference economic or social excuses or justifications, opposed legal excuses or justifications such as cause. See Bernard United States 1994) (“To prove process, plaintiff must show . . . person activating must been motivated do harm without economic social excuse justification .” (emphasis supplied)). But again, do address, much less resolve, issue.
[9] To be clear, cite district court decisions summary order discussed above merely as evidence not source ambiguity case law. The ambiguity was created by Second Circuit precedent alone—cases such Weiss one side cases such as PSI Metals other.
[10] This appeal “presents legal possibility law, may once been clear [for purposes qualified immunity], can become unclear later.” Santamorena Georgia Military Coll. F.3d n.11 (11th 1998). Which say, may be case Circuit’s interpretation law, existence right be free from even where existed incontrovertible when Weiss decided, but been called into question when PSI Metals decided, alleged conduct occurred. No matter—“[t]he nature law always move unsettled settled. Although one our decisions may expressly overruled, later cases . . . may bring its reasoning holding into such doubt elements set out case are no longer clearly established .” ; see Townes City N.Y. 1999) (suggesting subsequent case law can “unsettl[e]” rights once clearly established).