The opinion of the court was delivered by: Wexler, District Judge.
Plaintiff Kristin Goree ("Goree") brings this civil rights
case against the Town of Southampton and two of its police
officers alleging violations of his civil rights based on false
arrest and use of excessive force. Previously before the Court
was Goree's motion for leave to amend the complaint to add
civil rights and state law claims based upon the alleged
malicious prosecution of plaintiff in a prior criminal
proceeding. By order dated June 8, 1989, his motion was denied.
Goree now seeks reconsideration of that determination in light
of a recent Second Circuit decision which reversed in relevant
part a decision (of this Court) on which this Court relied in
denying his motion for leave to amend. See Janetka v. Dabe,
892 F.2d 187 (2d Cir.), aff'g in part, rev'g and remanding in part,
710 F. Supp. 906 (E.D.N.Y. 1989). For the reasons below, the
motion for reconsideration is denied.
Following his arrest on February 12, 1987 by the defendant
police officers, Thomas Tully ("Tully") and Robert Gunning,
Goree was charged under the New York Penal Law ("Penal Law")
with: (1) resisting arrest (§ 205.30); (2) disorderly conduct
(§ 240.20(3)); (3) harassment (§ 240.25(2)); (4) criminal
possession of a weapon in the fourth degree (§ 265.01(2)); and
(5) menacing (§ 120.15). Under the Penal Law, resisting arrest
and criminal possession of a weapon in the fourth degree are
class A misdemeanors, menacing is a class B misdemeanor, and
disorderly conduct and harassment are violations. Upon a jury
trial in the Southampton Town Justice Court, Goree was
convicted of the first three charges enumerated above, but
acquitted of the last two — criminal possession of a weapon in
the fourth degree and menacing. Based on his acquittal of these
two charges, Goree argued that he could properly assert a claim
for malicious prosecution of these two charges. This Court
disagreed and, relying on its decision in Janetka v. Dabe,
710 F. Supp. 906 (E.D.N.Y. 1989), held:
Where, as here, the charges lodged against the
defendant arose out of events that occurred on the
same occasion and in connection with conduct that
occurred either simultaneously or within minutes
of each other, the Court views the charges brought
as a single criminal proceeding heard and decided
by a single jury. Under these circumstances, the
Court cannot view that proceeding as terminating
in Goree's favor.
Goree v. Gunning, CV 88-1452, slip op. at 3 (E.D.N.Y. June 8,
1989). The Court now turns to address whether the Second
Circuit's decision in Janetka, supra, warrants disturbing this
Court's June 8 order.
As noted by the Second Circuit in Janetka, a § 1983 civil
rights claim based on malicious prosecution is governed by
state law in the absence of federal rules of decision for
adjudicating such claims. Janetka, 892 F.2d at 189 (citing
Conway v. Village of Mount Kisco, 750 F.2d 205, 214 (2d Cir.
1984)). Under New York law, a plaintiff alleging malicious
prosecution must establish that:
(1) the defendant either commenced or continued a
criminal proceeding against him; (2) that the
proceeding terminated in his favor; (3) that there
was no probable cause for the criminal proceeding;
and (4) that the criminal proceeding was
instituted in actual malice.
Russo v. New York, 672 F.2d 1014, 1018 (2d Cir. 1982) (quoting
Martin v. City of Albany, 42 N.Y.2d 13, 396 N.Y.S.2d 612, 614,
364 N.E.2d 1304 (1977)), modified on other grounds,
721 F.2d 410 (2d Cir. 1983) (per curiam).
In Janetka, the plaintiff Janetka had been charged with
resisting arrest and disorderly conduct, which are, as noted
above, a misdemeanor and a violation, respectively; at a trial
on both charges, Janetka was acquitted of the resisting arrest
charge but convicted of the disorderly conduct charge. Janetka,
710 F. Supp. at 907. Janetka then brought an action in this
Court for, inter alia, malicious prosecution. In directing a
verdict against Janetka on his malicious prosecution claim,
this Court held that, under the circumstances, Janetka's prior
criminal proceeding was not a favorable termination for purpose
of a malicious prosecution claim on the disorderly conduct
charge. Id. at 909.
However, the Second Circuit reversed that determination, and
held that the acquittal on the resisting arrest charge was a
"favorable" termination for malicious prosecution purposes.
Citing cases from the Supreme Courts of South Carolina and
Virginia, the court noted:
[C]ourts have held that an acquittal satisfies the
favorable termination requirement even when there
has been a conviction on a related charge, or one
arising from the same incident or event. See Ruff
v. Ekards Drugs, Inc., 265 S.C. 563,
220 S.E.2d 649, 650-51 (1975) (favorable termination
established where malicious prosecution plaintiff
previously arrested for assault and disorderly
conduct "aris[ing] out of the same set of
circumstances" was convicted of assault and
acquitted of disorderly conduct); Cuthrell v. Zayre
of Va., Inc., 214 Va. 427, 201 S.E.2d 779, 780
(1974) (favorable termination established where
malicious prosecution plaintiff, previously
arrested for disorderly conduct after dispute over
arrest for petit larceny, was convicted of
disorderly conduct and acquitted of petit larceny).
Janetka, 892 F.2d at 190. In reaching its conclusion, the
Second Circuit observed that Janetka was charged with two
distinct offenses involving distinct allegations. Id. In this
respect, the court noted that the disorderly conduct charge
arose out of Janetka's actions directed at an unidentified
hispanic man whereas the resisting arrest charge arose out of
Janetka's actions directed at the police officers' attempts to
arrest him. Id. The court further added that the elements of
each charge are different and neither is a lesser included
offense of the other. Id. The court then reasoned that to hold
that acquittal on the ...