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April 14, 1993

SAMUEL ZAHL, TREVA M. WAY, GEOFFREY P. SERATA, and HON. JAMES W. BARRETT, Richford Town Justice, Defendants.

The opinion of the court was delivered by: HOWARD G. MUNSON


 Presently before the court is a motion by defendants Zahl, Way, and Serata for summary judgment under Rule 56 of the Federal Rules of Civil Procedure, including a request pursuant to 42 U.S.C. § 1988 for costs and attorney's fees as the "prevailing party" in a 42 U.S.C. § 1983 action. Oral argument was heard on November 11, 1991 in Syracuse, New York. For the reasons stated below, the motion is granted in its entirety. Further, the court sua sponte dismisses plaintiff's complaint against defendant Barrett and sanctions plaintiffs' counsel pursuant to Fed.R. Civ.P. 11 for abuse of the judicial processes of this court.


 Plaintiffs' complaint consists of a § 1983 claim against defendants for allegedly conspiring to deprive plaintiffs of "rights guaranteed by the Constitution of the United States including but not limited to the due process clause thereof," Complaint, Document ("Doc.") 1, P 31, and a pendant state law claim for malicious prosecution. The plaintiffs, father and son, were serving as Town Assessors for the Town of Richford when, on March 25, 1989, a criminal complaint alleging official misconduct in violation of New York Penal Law § 195 was filed against plaintiffs by defendants Zahl, Way, and Serata, all Richford residents. The criminal complaint was filed with defendant Barrett, the Richford Town Justice. Plaintiffs contend that Zahl, Way, and Serata conspired with Judge Barrett to file the criminal complaint which was false and without cause, and brought solely for the purpose of injuring, humiliating, and embarrassing plaintiffs. Complaint, Doc. 1, P 33. The totality of this alleged conduct by defendants constitutes the basis of plaintiffs' malicious prosecution claim. The participation of Judge Barrett in the alleged conspiracy purportedly provides the requisite conduct under color of state law to support plaintiffs' § 1983 claim. Although the District Attorney did refuse to prosecute the criminal complaint, and Judge Barrett did dismiss the charges on May 13, 1989, Complaint, Doc. 1, PP 24, 25, plaintiffs assert that they suffered serious emotional and economic harm as a result of the charges filed against them. The various components of the instant lawsuit are set forth below.

 A. The Conspiracy Theory

 1. Defendant Zahl

 Defendant Zahl objected to a plan to raise assessments in the entire town over a three-year period, one-third of the town at a time, meaning that the people whose assessments were increased the first year would be paying higher taxes longer than those property owners whose assessments were raised in the second and third years of the program. Zahl attended town meetings and voiced his objections to the plan, studied the town's tax records and, along with "about 75" other citizens, consulted with an attorney for advice on the matter. Zahl Affidavit, attached to Doc. 11, P 2. In his review of the Town of Richford tax rolls, Zahl "discovered that the properties of Herbert and Roberta Rounseville had a very low assessed value considering the size of their property and the assessed values of similar property." Id. P 3. In addition, Zahl found that property of Herbert Rounseville's son and daughter-in-law, and the property of Herbert Rounseville's friend, the Richford Town Supervisor, all had lower assessments than other property "objectively less valuable." Id. Indeed, Zahl alleges that the Town Supervisor publicly "admitted to having a very low assessment." Id.

 Zahl and approximately ten other citizens, including Serata, then contacted their state assemblyman and the New York State Department of Equalization and Assessment to relate their findings. Id. P 4. In response, Zahl states that he "received letters explaining that the assessment practices were illegal and highly inequitable." Id. The group again consulted with its attorney, who advised Zahl and Serata to "present [their] findings to the District Attorney." Id.

 Zahl states that in February of 1989, he, Serata, and Way approached the District Attorney's office and "presented Robert Simpson with copies of the tax roll and photographs of similar properties with widely varied assessments." Id. P 5. Zahl adds, on information and belief, that "Mr. Simpson's assistant, George Mundt, was Herbert Rounseville's personal attorney at the time." Id. While Simpson told the trio that he would "get back" to them in "about a week," Zahl states that they "never received a reply." Id.

 "Frustrated by the unresponsiveness of Mr. Simpson," Zahl telephoned the Department of Assessment to ask them to "investigate the Rounsevilles for their assessment practices." Id. P 6. Zahl claims that the Department told him he could handle the matter himself. The Department sent Zahl information, including New York Penal Law § 195. According to Zahl, "after reading that statute, I believed that from the facts my fellow citizens and I had gathered, the Rounsevilles had clearly violated it." Id. In the company of defendants Way and Serata, Zahl "went to the home and court of Judge Barrett . . . for the purpose of filing and swearing to an accusatory instrument" on March 25, 1989. Id. P 7. Zahl signed the instrument, attached to which were the tax rolls and some photographs of various properties. Id.

 2. Defendant Way

 Defendant Way's discontent with the assessment practices in the Town of Richford date back to the construction of her log home in 1981-82. Her home is the same dimension and type as Herbert Rounseville's, as both homes were constructed by the same builder around the same time. Way Affidavit, attached to Doc. 11, P 3. Her log home, a single structure located on one acre, was assessed at $ 9,000 while Rounseville's property, "the same cabin with a three car garage, nine trailers, another two car garage, a small cottage and two other buildings and forty five more acres of land," was assessed at only $ 16,800. Id. P 11. Way filed administrative grievances about the disparity, but they allegedly were ignored. Id. PP 5,6. Her assessment was also among the first wave of increased assessments under the three year plan to reassess the town. Id. P 7. She thought this was unfair and told Herbert Rounseville as much. Id. He allegedly responded that "he was the assessor and that he could and would do as he wanted." Id.

 Way then wrote to the Department of Equalization and Assessment describing the three-year, three-phase reassessment plan. Id. P 8. David Gaskell of the Department purportedly responded by letter dated November 30, 1989 that the plan "was an illegal practice and was considered piecemeal reevaluation." Id. At defendant Zahl's invitation, Way and her husband joined the "large group of Richford citizens who were unhappy with the piecemeal reevaluation," and contributed to the group's fund to obtain legal representation. Id. P 9.

 In February of 1989, Zahl reported back to Way and her husband the advice of the group's lawyer, and she volunteered to accompany Zahl to "explain to the District Attorney that Mr. Rounseville and I had the same size cabin but that his was assessed much lower." Id. P 10. Way asserts that after informing the District Attorney of these facts, "Mr. Simpson said he would look into the matter and get back to us in a week or so. He never called us. I called his office every day for one week but he was not available and never returned my calls." Id. P 11. Way further states:

Because of my experience with Mr. Rounseville, my unsuccessful efforts to have my property assessed equitably, and the refusal of the District Attorney to address my complaints, I signed, on March 25, 1989, in the presence of Judge Barrett, a complaint accusing the Rounsevilles of violating New York Penal Law by abusing their public office for private gain.

 Id. P 12.

 3. Defendant Serata

 Defendant Serata was disgruntled because his property assessment was raised from $ 16,900 to $ 19,900 in 1987 and to $ 22,900 in 1988, and his inquiries to Herbert Rounseville regarding the increases apparently were ignored. Serata Affidavit, attached to Doc. 11, P 2. He studied the tax rolls, which led him to suspect that the Rounsevilles were under-assessing properties owned by themselves, their relatives, and their friends. Id. P 3. Serata joined the group of citizens concerned about the piecemeal reevaluation of property in Richford, consulted an attorney with other members of the group seeking advice on "how to deal with our assessment problems," wrote to his state assemblyman who in turn referred his complaint to Mr. Gaskill of the New York State Department Equalization and Assessment. Id. P 4. Serata states that he, along with defendants Zahl and Way, presented information about Herbert Rounseville's alleged inequitable assessments to the District Attorney, but never received a reply. Id. P 5. On March 25, 1989, Serata went to Judge Barrett's court with defendants Zahl and Way and signed an accusatory instrument based on his belief that the Rounsevilles had violated N.Y. Penal Law § 195. Id. PP 6-7.

 4. Defendant Barrett

 Plaintiffs allege that Judge Barrett met with the other defendants prior to the filing of the accusatory instrument and assisted in the preparation of that instrument. Answers to Interrogatories, dated May 11, 1990, Exhibit ("Exh.") B attached to Doc. 11, PP 11, 15, 22. Specifically, plaintiffs state:

Upon information and belief, Defendant Barrett advised and assisted the other Defendants in preparing and processing this accusatory instrument and may well have suggested the same. Defendant Barrett discussed this matter with the other Defendants and possible other individuals and notarized the Complaint on or about March 25, 1989. He thereupon arraigned the Defendants and would have continued the criminal prosecution but for the District Attorneys [sic] refusal to go along with the same.

 Id. P 15. Plaintiffs claim that defendant Barrett used his official position as Town Justice to violate plaintiffs' constitutional rights by conspiring with the other defendants to remove plaintiffs from their respective assessor positions. Id. PP 18, 22, 23.

 Zahl, Way, and Serata all deny discussing the matter with Judge Barrett prior to the filing of the accusatory instrument, and contend that the Judge's only dealings with them were in his capacity as judge, the person with whom misdemeanor complaints are filed as a matter of standard practice in the Town of Richford. Zahl Affidavit, attached to Doc. 11, P 8; Way Affidavit, attached to Doc. 11, P 13; Serata Affidavit, attached to Doc. 11, P 8.

 Defendant Barrett, through his answer to plaintiffs' complaint, generally denies the existence of a conspiracy and asserts that his position as Town Justice vests him with absolute immunity from civil liability for his actions in connection with the initiation of the criminal prosecution of the Rounsevilles. Barrett's Answer to ...

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