known. Defendants must be objectively unreasonable in believing their acts do not violate plaintiffs clearly established constitutional rights for plaintiff's Count Four to escape summary judgment by the defense of qualified immunity. As to that aspect of the criminal proceeding directed toward plaintiff's theft of services, there was probable cause. The real issue in examining the malicious prosecution claim lies with the other criminal charges.
In regard to the charges of harassment, assault on the officers, and resisting arrest, it appears clear from the record that the evidence mustered by plaintiff is insufficient to survive defendants' motion for summary judgment on the malicious prosecution count.
There was a fight between plaintiff and the officer defendants. Defendants, as noted, have presented in support of their motion for summary judgment voluminous medical records of the officer defendants. Since there was an altercation between the parties, the officers could not have been acting maliciously in charging plaintiff with assault, given the police officers' defense of qualified immunity. From the facts presented in the pleadings and produced at the hearings on defendants' motion, this court finds that plaintiff has not presented evidence that the criminal charges lodged against plaintiff were done in such a manner that it was objectively unreasonable for someone to believe that so charging would violate plaintiff's clearly demarcated constitutional rights.
Plaintiff presented no evidence that the criminal proceeding was instituted with actual malice. Again, plaintiff appears to confuse his duty to present evidence in opposition to a motion for summary judgment with the requirements for opposing a motion made under 12(b)(6) of the Federal Rules of Civil Procedure. Under the latter, one must merely allege facts sufficient to sustain a legal cause of action; however, to oppose a motion for summary judgment one must actually present some evidence, either affidavits, documentary evidence, or prior testimony, that indicate that an issue of material fact remains. Mere statements by counsel do not constitute evidence in opposition to a summary judgment motion in a § 1983 action against police officers. See Zanghi v. Old Brookville, 752 F.2d 42, 47 (2d Cir. 1985).
Plaintiff seems to believe that his acquittal of the criminal charges necessitates a finding in his favor on this issue. (See Plaintiffs' Trial Memorandum at 10-13). The applicable burdens and standards of proof are quite different. Plaintiff's acquittal merely means that the State failed to prove his guilt beyond a reasonable doubt. The mere fact that the jury felt that a reasonable doubt existed as to the State's case does not necessitate a victory on the issues in this action. Plaintiff must prove his case by a fair preponderance of the evidence or, in opposition to a summary judgment issue, at least show the existence of a material fact at issue. He cannot rely on the fact that the criminal charges were not proven beyond a reasonable doubt.
Also, in respect to officer Smith, he cannot be charged with malicious prosecution since he did not commence the prosecution. He simply testified as a rebuttal witness at the plaintiff's criminal trial.
Thus the count of malicious prosecution is dismissed as to all defendants.
D. Count Five: RECKLESS NEGLIGENT CONDUCT
Count five of plaintiff's complaint alleges that defendants engaged "in careless, reckless, wantonless and negligent conduct causing injury to the plaintiff(sic)." It is assumed that plaintiff means "wanton" conduct. Plaintiff has provided absolutely no legal support for his claim that such a cause of action exists under state or federal law as to police conduct. Indeed, plaintiff seems to recognize that no such cause of action exists for it is not even discussed in plaintiffs' opposing papers. The court, therefore, assumes that it has been abandoned as a claim.
Plaintiff cannot argue that defendants engaged in intentional conduct that forms the basis of an assault and § 1983 excessive force claim and also argue that defendants were negligent towards plaintiff. Negligence on the part of state officials will not support a § 1983 claim. Parratt v. Taylor, 451 U.S. 527, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1981). It appears that plaintiff is attempting to include a "lesser included offense" claim in his action. While such a tactic may be appropriate were this a criminal action and plaintiff the defendant, it has no place in a civil action such as the instant lawsuit.
There is no cause of action for negligence on the part of a police officer. A police officer's use of force is privileged to the extent it appears reasonable necessary to effect an arrest or prevent an escape. N.Y. Penal Law § 35.30. It is not negligence to use force in effecting an arrest. If the force used is ureasonable, then one has a claim for excessive force under § 1983. One's rights accure only when the force used is unconstitutionally excessive, not when it is negligent. The plaintiff must allege an intentional deprivation of rights under Parratt.
Thus summary judgment as to all defendants is granted as to this count.
The first count of plaintiffs' complaint grounded in 42 U.S.C. § 1983 is alleged only against defendant Transit Authority. Defendants' motion for summary judgment on this count is unopposed. Summary judgment on this count is granted.
Count Two alleges a cause of action against all the officers for assault and battery on plaintiff. Count Six alleges a use of excessive force under § 1983 against the officers. These causes of action are legally identical, except that the first is a state law cause of action, the second federal. Summary judgment is granted as to defendant officer McFarland.
Count Three alleges False imprisonment and false arrest under § 1983. Summary judgment is granted as to all defendants.
Count Four alleges malicious prosecution against the individual officer defendants. Summary judgment is granted as to malicious prosecution.
Count Five alleges reckless, negligent conduct. Summary judgment granted as to Count Five against all defendants.
Counts Two and Six, and Count Seven (Anna Mazurkiewicz' derivative loss of services claim) survive.
January 19, 1993
New York, New York
Constance Baker Motley