4) against defendant Daucher only, in both his individual and official capacity: for the false arrest and imprisonment of the plaintiff (see Complaint at PP 33-38);
5) against defendant Garrison only (unspecified capacity): for malicious prosecution of the plaintiff (see Complaint at PP 39-41);
6) against defendant Garrison, in his individual and official capacity, and against the County of Greene: for wrongful discharge from his civil service position, lost pay and benefits (see Complaint at PP 42-49); and
7) loss of consortium to the plaintiff, Donna Greiner (see Complaint at PP 50-52).
Through the complaint, the plaintiff seeks, in addition to injunctive relief, reinstatement to his former position, compensatory, "emotional" and punitive damages, costs and attorneys fees.
This case was set for trial on January 12, 1992. In filing with the court their pre-trial submissions, the defendants moved "in limine" for various relief:
1) for dismissal of the first and sixth causes of action on the ground that they are barred by the doctrines of res judicata and collateral estoppel;
2) for dismissal of the state related claims for malicious prosecution and false arrest on the ground that they are untimely;
3) for dismissal of the complaint as against the County of Greene inasmuch as it fails to state a claim;
4) for dismissal of the punitive damage request against the municipal defendants; and
5) for dismissal of the complaint as against defendant Daucher on the ground of qualified immunity.
During the pre-trial conference conducted thereafter, counsel for the plaintiffs conceded that the doctrines of res judicata and collateral estoppel foreclose the first and sixth causes of action.
In view of the substantive nature of the motion, the parties agreed and the court concurs that the plaintiff should be afforded the opportunity to fully respond to these motions. Therefore, the court decided to treat the in limine motions as ordinary pre-trial motions, to be decided on the papers submitted by the parties. The trial of this matter was adjourned pending decision on the motions.
I. Res Judicata/Collateral Estoppel
The defendants allege that the first and sixth causes of action are barred by application of the doctrines of res judicata and collateral estoppel. The plaintiffs, through their attorney, have conceded that that is indeed the case. As such, it is not necessary to discuss this issue further. The first and the sixth causes of action are therefore dismissed.
II. Timeliness of the Malicious Prosecution and False Arrest Causes of Action
The defendants assert that the fourth and fifth causes of action, which allege malicious prosecution and false arrest, are time barred since they do not allege constitutional violations but rather allege merely state law claims. The defendants premise this assertion on the fact that in their jurisdictional statement, the plaintiffs do not refer to any specific violation of a constitutional right. Rather they appear to base their claim upon common law principles.
The plaintiffs, in response to this assertion, do not now specify in what way they allege their rights were violated by virtue of the actions of the defendants. They merely cite the court to various authority which provide for a three year statute of limitations in section 1983 actions.
It is axiomatic that the statute of limitations for section 1983 actions in this jurisdiction is three years. Owens v. Okure, 488 U.S. 235, 109 S. Ct. 573, 102 L. Ed. 2d 594 (1989) However, by its very terms, section 1983 relief can only be awarded based upon a violation of some "right, privilege or immunity" provided for by the Constitution or some federal statute. Here, with respect to these causes of action, the plaintiffs merely allege violations of their fifth amendment rights to due process and equal protection and their rights as provided for under Article I of the Constitution. The fifth amendment provides for procedural due process
and is, therefore, not applicable here. Article I of the United States Constitution is totally inapplicable to the facts alleged in these two causes of action. Thus, by a process of elimination, it would seem the plaintiffs must be alleging state law violations.
State law violations cannot form the predicate for section 1983 relief. State law violations are subject to the state statutes of limitations. As the defendants point out, state causes of action for false imprisonment and malicious prosecution are governed by the one year statute of limitations set out in section 215 subdivisions (1) and (3) of the CPLR.
The plaintiff was arrested on October 24, 1991. In light of the allegations of false arrest and malicious prosecution, the cause of action accrued on that date. As such, since the plaintiffs did not file this lawsuit until June 10, 1991, it is time barred by the applicable statute of limitations and is barred by their failure to file a timely notice of claim as required by section 50-e of the General Municipal Law of the State of New York when a plaintiff is desirous of initiating suit against a municipality and/or a municipal officer. Thus, the fourth and fifth causes of action are hereby dismissed.
III. Claims Against County of Greene
The defendants contend that the plaintiff has failed to assert a claim upon which relief can be granted as against the County of Greene. The plaintiff has not responded to this contention.
In order to assert a claim against a municipality for a the deprivation of constitutionally protected rights, the plaintiff must allege that his injury has resulted from some policy or custom of the municipality. Monell v. New York City Dep't of Social Serv., 436 U.S. 658, 690, 98 S. Ct. 2018, 2036, 56 L. Ed. 2d 611 (1978); Pembaur v. City of Cincinnati, 475 U.S. 469, 106 S. Ct. 1292, 89 L. Ed. 2d 452 (1986); see also City of Oklahoma City v. Tuttle, 471 U.S. 808, 823, 105 S. Ct. 2427, 2436, 85 L. Ed. 2d 791 (1985). The complaint fails to make any such allegation.
As such, it must therefore be dismissed.
IV. Punitive Damage Claim
The defendants seek dismissal of the plaintiffs' claims for punitive damages on the ground that such damages are not available against municipalities or against governmental officials sued in their official capacities. See Defendants' Pre-Trial Memorandum of Law at 10 (citing Newport v. Fact Concerts, Inc., 453 U.S. 247, 101 S. Ct. 2748, 69 L. Ed. 2d 616 (1981)). The plaintiffs do not address this contention in their response.
The defendants are correct in stating that punitive damages are not recoverable against municipalities or governmental officials sued in their official capacities. However, punitive damages are recoverable against governmental officials sued in their individual capacities when their conduct was "motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others." Smith v. Wade, 461 U.S. 30, 56, 103 S. Ct. 1625, 1640, 75 L. Ed. 2d 632 (1983)
In their complaint, the plaintiffs clearly set out that both Sheriff Daucher and defendant Garrison are being sued both in their official and in their individual capacities. They allege that both individuals acted maliciously and wantonly. As such, it is a question for a jury to determine whether they did so act and whether punitive damages are appropriate.
Therefore, the plaintiffs' claims for punitive damages as those claims relate to the County of Greene and to defendants Daucher and defendant Garrison insofar as thy are being sued in their official capacity are dismissed.
V. Qualified Immunity of Sheriff Daucher
The defendants contend that Sheriff Daucher is qualifiedly immune from suit on the malicious prosecution and false arrest causes of action. See Defendants' Pre-Trial Memorandum at 10-11.
Governmental officials performing discretionary functions are generally shielded from liability in civil damage actions for conduct that does not violate clearly established statutory or constitutional rights of which a reasonable person would have been aware. Harlow v. Fitzgerald, 457 U.S. 800, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982). In the present case, where the plaintiff alleges false arrest and malicious prosecution, it is necessary, in applying this standard, to evaluate the probable cause that existed for the arrest and prosecution.
The plaintiff was arrested for the crime of Criminal Possession of Stolen Property in the Fourth Degree, as a violation of section 165.45(4) of the Penal Law of the State of New York. That section reads as follows:
"A person is guilty of criminal possession of stolen property in the fourth degree when he knowingly possesses stolen property, with intent to benefit himself or a person other than an owner thereof or to impede the recovery by an owner thereof and when: (4) the property consists of one or more firearms . . . ."