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FARRELL v. MIKLAS

March 28, 1985

Mark FARRELL, Plaintiff,
v.
Anthony A. MIKLAS, Shield 3757, Individually and as a state trooper of the New York State Police Dept., "John Doe", whose real name and badge # are unknown, individually and as a police officer of the New York State Police Dept., Defendants.



The opinion of the court was delivered by: WEXLER

MEMORANDUM AND ORDER

WEXLER, District Judge.

 This is an action brought under 42 U.S.C. § 1983. Defendant has moved to dismiss on the ground that the complaint fails to state a claim for relief under that statute as interpreted by the Supreme Court in Parratt v. Taylor, 451 U.S. 527, 101 S. Ct. 1908, 68 L. Ed. 2d 420 (1981).

 I. FACTS

 Defendant Miklas is a state trooper employed by the New York State Police Department.

 Plaintiff makes the following allegations, which for the limited purpose of deciding this motion we will regard as true. On June 12, 1983, an unidentified state trooper shouted at the people in a parking lot, ordering them to park their cars. Plaintiff, who was seated in a vehicle, moved the vehicle. Plainitff was then arrested for operating a vehicle while intoxicated. Plaintiff was then handcuffed to a chair. Plaintiff asked why he had been arrested. Defendant Miklas told plaintiff to "shut up", and pretended to be preparing to punch plaintiff. Plaintiff asked Miklas if Miklas was going to hit him. Miklas used abusive language, grabbed plaintiff by the ears, and banged the back of plaintiff's head against a soda vending machine several times. Miklas walked out of the room. Out of frustration, plaintiff swung the chair to which he was shackled. Miklas returned, threw plaintiff to the ground, and stepped on plaintiff's neck, causing plaintiff to be unable to breathe. Another state trooper, defendant "John Doe", joined in the attack on the plaintiff. Both continued to stomp on plaintiff. Plaintiff was then handcuffed to a hook on the floor. Plaintiff was asked to take a breathalyzer test, but refused. Plaintiff was taken to a hospital, x-rayed, and had a cast put on his broken arm. Miklas swore to an accusatory instrument charging plaintiff with violation of N.Y. Vehicle & Traffic Law § 1192(2) and (3), which prohibits operation of a motor vehicle by a person who is intoxicated or who has .10 of one per centum by weight of alcohol in his blood. Miklas knew that the accusation was false, and acted with malice. The case was subsequently dismissed by court order.

 II. DISCUSSION

 A. Case Law

 In Parratt v. Taylor, 451 U.S. 527, 101 S. Ct. 1908, 68 L. Ed. 2d 420 (1981), the Supreme Court held that a prisoner's loss of property, allegedly caused by the random unauthorized negligent failure of prison personnel to follow normal procedures for the receipt of mail packages, did not give rise to a claim for relief under 42 U.S.C. § 1983, given the existence of adequate state law tort remedies. The Court reasoned that, although the complaint properly alleged or could be construed as properly alleging that the defendant prison officials deprived plaintiff of property through action under color of state law, the alleged deprivation did not occur without due process, since (1) the state could not have provided any pre-deprivation process, given the fact that the deprivation resulted from random unauthorized acts rather than from established state procedures, and (2) the state did provide an adequate post-deprivation tort law remedy.

 In Logan v. Zimmerman Brush Co., 455 U.S. 422, 102 S. Ct. 1148, 71 L. Ed. 2d 265 (1982), the Court held that the termination of an employment discrimination claim, arising from the state's failure to convene a hearing in timely fashion, constituted a taking of property without due process, notwithstanding the fact that the claimant could arguably have sued the state under state tort law for damages arising from the state's negligence in failing to convene a hearing. The Court emphasized that Logan, unlike Parratt, involved an established state procedure rather than a random unauthorized act by a state employee.

 In Hudson v. Palmer, 468 U.S. 517, 104 S. Ct. 3194, 82 L. Ed. 2d 393 (1984), the Court held that an alleged intentional unauthorized deprivation of a prisoner's property by a prison guard did not give rise to a claim for relief under 42 U.S.C. § 1983, given the existence of adequate post-deprivation state tort law remedies, on the ground that Parratt applies to intentional as well as negligent random unauthorized deprivations of property.

 In Conway v. Village of Mount Kisco, 758 F.2d 46, 48 (2d Cir. 1985), the Court stated that "in both Hudson and Parratt the [Supreme] Court carefully limits its holding to special situations involving deprivations of property". The Second Circuit therefore refused to apply the Parratt and Hudson doctrines to an action for malicious prosecution.

 The instant case involves alleged deprivations of liberty rather than property. Consequently, we are compelled by the Conway decision to hold that the instant complaint states a claim for relief under 42 U.S.C. § 1983, notwithstanding the fact that plaintiff has not alleged that the state could have prevented the alleged actions by defendants, and notwithstanding the possibility that there may ...


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