# Ricks v. Brown

> District Court, W.D. New York · September 21, 2020

URL: https://www.frixlaw.com/law-library/cases/10362926

## Case

- **Court:** District Court, W.D. New York
- **Decided:** September 21, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10362926

## How later opinions describe it (automated extraction)

- finding that a prior dismissal under section 3211(a)(7
- finding that a prior dismissal under section 3211(a)(7

## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

KEYONTAY RICKS,

Plaintiff,

v. 20-CV-00043-LJV-HBS
DECISION & ORDER
THOMAS BROWN, CHRIS DATES, and
MARK JOSEPH LAUBER,

Defendants.

On January 10, 2020, the plaintiff, Keyontay Ricks, commenced this action under
42 U.S.C. § 1983. Docket Item 1. On February 17, 2020, the case was referred to
United States Magistrate Judge Hugh B. Scott for all proceedings under 28 U.S.C. §§
636(b)(1)(A) and (B). Docket Item 8. On February 24, 2020, defendant Thomas Brown
moved to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure
to state a claim upon which relief may be granted, Docket Item 7, and on March 2,
2020, Ricks responded, Docket Item 10. On July 10, 2020, Judge Scott issued a
Report and Recommendation (“R&R”) finding that Brown’s motion should be granted.
Docket Item 14.
On July 20, 2020, Ricks objected to the R&R on the grounds that Judge Scott
erred in (1) finding that Ricks’s claims for malicious prosecution and false imprisonment
were barred by the doctrine of res judicata and (2) finding that Ricks’s claims for due
process violations were barred for the same reason. Docket Item 15. On August 5,
2020, Brown responded to the objections. Docket Item 17. And on August 12, 2020,
Ricks replied. Docket Item 18.
A district court may accept, reject, or modify the findings or recommendations of
a magistrate judge. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3). The court must
review de novo those portions of a magistrate judge’s recommendation to which a party
objects. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3).

This Court has carefully and thoroughly reviewed the R&R; the record in this
case; the objection, response, and reply; and the materials submitted to Judge Scott.
Based on that de novo review, the Court accepts and adopts Judge Scott’s
recommendation to grant Brown’s motion to dismiss.
BACKGROUND

I. THE 2004 ARREST
The complaint tells the following story. On June 28, 2004, Brown arrested Ricks
for his alleged involvement in a robbery. Docket Item 1 at 5-11. Following a jury trial,
Ricks was convicted in June 2005 of first-degree robbery and third-degree criminal
possession of stolen property. Id. at 16. On October 27, 2005, Ricks was sentenced to
a determinate term of twenty years of incarceration on the first conviction, and a

concurrent, indeterminate term of three-and-one-half years on the second. Id.
More than a decade later, on January 30, 2017, the robbery conviction was
vacated on collateral appeal. Id. at 17. The stolen-property conviction, however, was
upheld. Id. at 16-17. Because Ricks already had served the maximum term for the
stolen-property conviction, he was released from prison. Id.
II. THE 2018 LAWSUIT
In January 2018, Ricks sued Brown in New York State Supreme Court, Erie
County. See Docket Item 7-4. Among other claims, Ricks sought damages under state
law for false arrest, false imprisonment, and malicious prosecution. Docket Item 15-3 at
9-13.

Brown moved to dismiss the complaint for multiple reasons under N.Y. C.P.L.R. §
3211, including failure to state a cause of action. Docket Item 15-4 at 7-8. He argued
that Ricks’s complaint was not timely but that even if it was, Ricks had not adequately
pleaded an essential element of the malicious prosecution claim—favorable termination.
See id. In fact, Brown argued that Ricks could not possibly have pleaded that element:
Because “[Ricks’s] conviction for possession of stolen property was upheld” on
collateral review, “the [relevant] criminal proceeding did not terminate in [Ricks’s] favor.”
Id. at 8. He also asserted that because “[Ricks’s] conviction for possession of stolen
property was upheld, . . . [that] show[ed] conclusive proof that the arrest was based on

probable cause,” defeating his claims for false arrest and false imprisonment. Id. at 52
(citing Broughton v. State of New York, 37 N.Y.2d 457, 458 (1975)).1

1 In Broughton, the New York Court of Appeals explained that when an individual
is arrested without a warrant:
[E]vidence of a subsequent arraignment or indictment is admissible as
some proof of the presence of probable cause. Moreover, a conviction
which survives appeal would be conclusive evidence of probable cause. On
the other hand, evidence of a subsequent dismissal, acquittal[,] or reversal
on appeal would also be admissible to refute the [existence of probable
cause].

37 N.Y.2d at 458; see also a Whitmore v. City of New York, 80 A.D.2d 638, 639
(N.Y. App. Div. 1981) (“Generally, a conviction which survives appeal would
constitute conclusive evidence of probable cause of initiating a criminal
prosecution, and would therefore be fatal to the maintenance of a cause of action
After rejecting the timeliness argument, Hon. John F. O’Donnell found that “[t]he
complaint must be dismissed on the merits.” See id. at 6-7. He explained that Ricks
“ha[d] failed to plead” a necessary element of a claim for malicious prosecution: that
“there was no probable cause for the criminal proceeding.” Id. at 7. “Furthermore,”

Justice O’Donnell continued, because “it has long been the rule in New York that a
conviction after a jury trial presumes probable cause and defeats a claim for malicious
prosecution,” and because “[a] conviction remained after the determination of plaintiff’s
[motion for collateral review],” Ricks’s “claim of malicious prosecution and by necessity
of false arrest . . . must . . . be dismissed.” Id. (citing Broughton, 37 N.Y.2d 457).
There is no record that Ricks moved to amend the state court complaint or
appealed the dismissal order. See Docket Item 33 at 30-31 (Ricks’s implicitly
conceding as much).

III. THE CURRENT LAWSUIT
Ricks filed this action for civil damages in January 2020. See Docket Item 1. He
seeks relief against Brown for malicious prosecution and false imprisonment, now under
section 1983. Id. Ricks has revised the allegations from the state court complaint and
presently asserts that two other individuals “planned a scheme, in which [they] would
stage a robbery”; Brown knew about that scheme; but for various reasons, Brown

for malicious prosecution. Where, however, that affirmed conviction has
subsequently been vacated on evidentiary grounds, there exists, at the least, a
question as to whether the presumption of probable cause survives. In any
event, where a plaintiff can establish that his conviction was obtained by fraud,
perjury, conspiracy, or other undue means (e.g., the misrepresentation,
falsification or withholding of material evidence), a cause of action for malicious
prosecution may nevertheless be sustained.” (citations omitted)).
nevertheless chose to fabricate evidence implicating Ricks and to hide evidence
exculpating Ricks. Id. at 4, 5-16.

DISCUSSION
I. LEGAL STANDARD
To decide a motion to dismiss for failure to state a claim upon which relief may
be granted, courts “ask whether the complaint contains ‘sufficient factual matter,

accepted as true, to state a claim to relief that is plausible on its face.’” Gamm v.
Sanderson Farms, Inc., 944 F.3d 455, 462 (2d Cir. 2019) (quoting Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009)). “The court accepts as true all well-pleaded factual allegations in
the complaint [and] draws all reasonable inferences in favor of the nonmoving party.”
Id. (citation omitted). “Dismissal is inappropriate unless it appears beyond doubt that
the plaintiff can prove no set of facts which would entitle him or her to relief.” Chambers
v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002) (citation omitted). But courts
“are not bound to accept as true a legal conclusion couched as a factual allegation,” nor
will “a formulaic recitation of the elements of a cause of action” suffice. Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citation omitted).
In making this determination, a court “considers, in addition to the complaint, and
written instruments attached, statements incorporated by reference, and public
disclosure documents.” Gamm, 944 F.3d at 462 (citation omitted). “Even where a
document is not incorporated by reference, the court may nevertheless consider it
where the complaint relies heavily upon its terms and effect, which renders the
document integral to the complaint.” Chambers, 282 F.3d at 153 (citation omitted).
II. RES JUDICATA
The principal legal issue addressed by the R&R is whether, due to the state
lawsuit, Ricks is precluded from raising his claims in the current action. Judge Scott
found that Ricks’s claims are, in fact, precluded under the doctrine of res judicata. See
Docket Item 14 at 7-8. This Court agrees.

Collateral estoppel—sometimes called issue preclusion—“applies when (1) the
identical issue was raised in a previous proceeding; (2) the issue was actually litigated
and decided in the previous proceeding; (3) the party had a full and fair opportunity to
litigate the issue; and (4) the resolution of the issue was necessary to support a valid
and final judgment on the merits.” Republic of Ecuador v. Chevron Corp., 638 F.3d 384,
400 (2d Cir. 2011) (quoting Bank of N.Y. v. First Millennium, Inc., 607 F.3d 905, 918 (2d
Cir. 2010)). The separate doctrine of res judicata—or claim preclusion—“holds that a
final judgment on the merits of an action precludes the parties or their privies from
relitigating issues that were or could have been raised in that action.” Bank of N.Y., 607

F.3d at 918 (2d Cir. 2010) (quoting Monahan v. N.Y. City Dep’t of Corr., 214 F.3d 275,
284 (2d Cir. 2000)). The res judicata bar extends to “all . . . claims arising out of the
same transaction or series of transactions . . . , even if based upon different legal
theories or seeking a different remedy.” O’Brien v. Syracuse, 54 N.Y.2d 353, 357
(1981).

A. Malicious Prosecution and False Imprisonment
With respect to Ricks’s claim for malicious prosecution, the threshold question is
whether Justice O’Donnell’s decision constituted a “final judgment on the merits.” See
Bank of N.Y., 607 F.3d at 918. “As a general rule, a dismissal [under C.P.L.R. §
3211(a)(7)] for failure to state a cause of action is not on the merits and, thus, will not be
given res judicata effect.” Pereira v. St. Joseph’s Cemetery, 78 A.D.3d 1141, 1142
(N.Y. App. Div. 2010); see also N.Y. C.P.L.R. § 5013 (“A judgment dismissing a cause
of action before the close of the proponent's evidence is not a dismissal on the merits

unless it specifies otherwise, but a judgment dismissing a cause of action after the close
of the proponent's evidence is a dismissal on the merits unless it specifies otherwise.”).
That general rule gives way, however, if the judgment “specifies otherwise,” N.Y.
C.P.L.R. § 5013, or if the dismissal is “manifestly on the merits,” Pitcock v. Kasowitz,
Benson, Torres & Friedman, LLP, 80 A.D.3d 453, 454 (N.Y. App. Div. 2011) (finding
that a prior dismissal “was not merely a dismissal for a technical pleading defect, but a
dismissal manifestly on the merits, based on a finding that [the] plaintiff's own
admissions precluded him from prevailing on his cause of action against such
defendants, regardless of what other facts he might allege”).2 “The disposition need not
contain the words ‘on the merits’ if it appears from the judgment that the dismissal was

on the merits.” City of New York v. Beretta U.S.A. Corp., 315 F. Supp. 2d 256, 264

2 See also Blake v. City of New York, 144 A.D.3d 1071, 1073 (N.Y. App. Div.
2016) (finding that a prior dismissal under section 3211(a)(7) precluded a second action
premised on the same transaction because the first dismissal was not “for a mere failure
to include the statutory language in the complaint” but instead, “when taken as a whole,
determined that the facts alleged, even if true, did not state a cause of action predicated
upon violation of th[e] statute [at issue]”); Lampert v. Ambassador Factors Corp., 266
A.D.2d 124, 124-25 (N.Y. App. Div. 1999) (finding that a prior dismissal “constitute[d]
res judicata barring the instant action” because the former “was not merely for a
technical pleading defect, but manifestly on the merits, based on a finding that plaintiff's
failure to exercise such due diligence precluded him from prevailing on his fraud cause
of action against such defendants, regardless of what other facts he might allege”
(citations omitted)).
(E.D.N.Y. 2004) (quoting Strange v. Montefiore Hospital and Medical Ctr., 59 N.Y.2d
737, 739 (1983)).
Here, Justice O’Donnell explicitly stated that “[t]he complaint must be dismissed
on the merits.” See Docket Item 7-4 at 7 (emphasis added). For several reasons,

including both judicial economy and principles of federal comity, this Court is reluctant to
infer that Justice O’Donnell meant anything other than exactly what he said.
Ricks asserts that Justice O’Donnell used the term “on the merits” to distinguish
the issue of timeliness from the pleading issue. Docket Item 15 at 27. But it is clear
from Justice O’Donnell’s decision that he dismissed the complaint both because Ricks
had not pleaded a viable claim and because he had no claim to plead. In Justice
O’Donnell’s words, because “a conviction after a jury trial presumes probable cause and
defeats a claim for malicious prosecution,” and because “[a] conviction remained after
the determination of plaintiff’s [motion for collateral review],” Ricks had no claim for
malicious prosecution or false arrest. So even if Ricks is correct that Justice O’Donnell

used “on the merits” as a shorthand way to distinguish the timeliness issue, it still
“appears from the judgment,” Beretta, 315 F. Supp. 2d at 264—indeed, it is quite
clear—that Justice O’Donnell dismissed the complaint based on a substantive
deficiency. Docket Item 7-4 at 7.
Any doubt about that conclusion is resolved by other language in Justice
O’Donnell’s decision. For example, Justice O’Donnell found determinative the fact that
“[a] conviction remained” even after the robbery conviction was vacated, id.—a fact that
Ricks concedes could not be remedied through more artful pleading. And Justice
O’Donnell’s conclusion that Ricks’s claim “must . . . be dismissed,” id. (emphasis
added), leaves little doubt that he perceived the Broughton rule to be non-rebuttable,
the remaining stolen-goods conviction to be fatal to Rick’s claims, or both.
Whether Justice O’Donnell’s reading of the Broughton rule was correct is a
separate question that this Court need not address. In urging otherwise, Ricks

attempts, in essence, to have this Court review Justice O’Donnell’s decision. But the
appropriate forum for that was the Appellate Division of New York State Supreme Court.
Stated differently, Ricks’s argument that “the presumption created by a conviction,
which has since been vacated, is not a complete bar to a malicious prosecution action,
rather it merely creates a rebuttable presumption, which can be rebutted where there
was misconduct in securing the conviction,” see Docket Item 33 at 16, should have
been raised on appeal in state court. It is not the province of this Court to review final
state court decisions. The same is true for Rick’s argument that Judge Scott
erroneously “conflate[d] probable cause to arrest with probable cause to believe that
[Ricks] could be successfully prosecuted [for robbery]." Id. at 20.

In short, this Court agrees with Judge Scott that the state court dismissal
constituted a “final judgment on the merits.” Ricks’s claim for malicious prosecution
therefore is dismissed with prejudice.
B. Remaining Claims
Ricks also argues that Judge Scott erred in dismissing his remaining claims

because they were brought under the Due Process Clause and do not require, as an
element, the absence of probable cause. This argument confuses the doctrines of
issue and claim preclusion. The latter—applicable here because the state court
dismissal constituted a final judgment on the merits—bars not only claims that actually
were brought and litigated, but also any “issues that . . . could have been raised in that
action.” Bank of N.Y., 607 F.3d at 918 (emphasis added). And that includes “all . . .
claims arising out of the same transaction or series of transactions . . . , even if based
upon different legal theories or seeking a different remedy,” O’Brien, 54 N.Y.2d at 357.

Because Ricks’s remaining claims alleging evidence fabrication, denial of a fair trial,
evidence suppression, and unlawful detention plainly arise from the same series of
events—Ricks’s arrest, prosecution, and conviction stemming from the incident on June
28, 2004—the Court agrees with Judge Scott that they must be dismissed as well.
CONCLUSION

For the reasons stated above and in the R&R, Brown’s motion to dismiss, Docket
Item 7, is GRANTED, and the Clerk of the Court shall terminate Brown as a party to this
action.
The case is referred back to Judge Scott under 28 U.S.C. § 636(b)(1)(A) to hear
and determine all non-dispositive pretrial matters in this case.
SO ORDERED.

Dated: September 21, 2020
Buffalo, New York

/s/ Lawrence J. Vilardo
LAWRENCE J. VILARDO
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10362926. Public record. Not legal advice.