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MURPHY v. LYNN

November 9, 1995

ERNESTO MURPHY, Plaintiff, against JOHN LYNN, DANIEL WEISBERG, TOWN OF CLARKSTOWN, TOWN OF CLARKSTOWN POLICE DEPARTMENT and WILLIAM COLLINS, Defendants.


The opinion of the court was delivered by: BRIEANT

 Brieant, J.

 This civil rights action based upon 42 U.S.C. § 1983 is here following remand on May 5, 1995 by the Court of Appeals of the Second Circuit. Murphy v. Lynn, 53 F.3d 547 (2d Cir. 1995) That Court held that the District Court properly dismissed the plaintiff's claims for false arrest and excessive force as being barred by the statute of limitations, but that plaintiff's claim for malicious prosecution was timely filed and that dismissal of that claim was erroneous, because the statute does not begin to run until an acquittal on the underlying charges.

 By motion fully submitted on November 3, 1995, defendants now move to dismiss the remainder of plaintiff's complaint. While no specific rule is cited as a basis for the motion, since an affirmation was submitted with the motion, it is assumed to be pursuant to Rule 56, F.R.Civ.P.

 This action arises out of events occurring on November 13, 1989, when plaintiff, while driving with his girlfriend, was stopped by defendant officer John Lynn of the Clarkstown Police Department. After Mr. Murphy was issued a traffic ticket the encounter turned hostile. Additional officers were called and Murphy was arrested on various charges including assault, resisting arrest and disorderly conduct.

 After a significant delay, Mr. Murphy was indicted on charges arising out of the event. As a result of the delay, Mr. Murphy moved for dismissal of the indictment on speedy trial grounds. On December 12, 1990, Judge Nelson of the County Court of Rockland County found that Murphy was denied his right to a speedy trial pursuant to New York Criminal Procedure Law § 30.30 and dismissed all charges.

 On November 10, 1993, Mr. Murphy filed the complaint in this action under 42 U.S.C. § 1983 charging the Town of Clarkstown and the police officers involved in his arrest with violations of his First, Fourth, Fifth and Fourteenth Amendment rights, for deprivations of liberty without due process, unlawful arrest, excessive force, and malicious prosecution. After discovery, and on the brink of trial, the defendants moved to dismiss all charges as being time barred. The applicable statute of limitations was three years and the complaint was not filed until nearly four years after the arrest had occurred. This Court held that the federal civil rights claims were time barred and dismissed the lawsuit. The amended judgment dismissed the pendant state law claims without prejudice. Included in the state court claims was a claim for malicious prosecution under New York common law.

 Our Court of Appeals held that Mr. Murphy's federal (§ 1983) claim for malicious prosecution was not time barred as the statute of limitations for such a claim did not begin to run until after the underlying criminal action was terminated in his favor. The Court of Appeals affirmed in all other respects and expressly declined to determine the sufficiency of the remaining malicious prosecution claim.

 Plaintiff's federal claim for malicious prosecution alleges that the tortious conduct was in violation of the Fourth and Fourteenth Amendments to the Constitution. This Court, in order to assure itself that subject matter jurisdiction is properly invoked, must examine the complaint to determine if a federal civil rights claim for malicious prosecution does in fact exist in the context of this case. If the federal claim is lacking, this Court may dismiss the pendant state claim for common law malicious prosecution without prejudice, for lack of a valid federal question claim to support supplemental, or pendant jurisdiction.

 In order to prevail upon a claim for malicious prosecution as a common law tort under New York State law the plaintiff need only show; (1) the initiation or continuation of criminal process against the plaintiff; (2) termination of the proceeding in plaintiff's favor; (3) the lack of probable cause for commencing the proceeding, and; (4) actual malice as the motivation for the defendant's actions. Rounseville v. Zahl, 13 F.3d 625 (2d Cir. 1994).

 In an apparent effort to resist the federalizing of all state law torts committed by local officials, the Supreme Court has recently held that the Fourteenth Amendment right to substantive due process will not support a federal claim for malicious prosecution, Albright v. Oliver, U.S. , 114 S. Ct. 807, 127 L. Ed. 2d 114 (1994), therefore, Murphy's claim for malicious prosecution under § 1983 must rest upon the Fourth Amendment.

 Where, as here, malicious prosecution is pleaded as a federal claim under 42 U.S.C. § 1983, the plaintiff must allege and prove, as an additional element of his claim, "some post-arraignment deprivation of liberty that rises to the level of a Constitutional violation". Singer v. Fulton County Sheriff, 63 F.3d 110 (2d Cir. 1995).

 In this case the plaintiff does not allege any post-indictment deprivation of his liberty. Probably he could not do so. See transcript of deposition of plaintiff docketed September 14, 1994 in this action, at 51. Singer, decided by our Court of Appeals subsequent to the Albright case, provides a sufficient basis for dismissing the federal claim for malicious prosection because Mr. Murphy does not show he was seized or deprived of his liberty in this case as a result of an abuse of legal process (the indictment). Accordingly, we need not reach the other element of a state or federal claim for malicious prosecution which is at issue in this case, namely whether the prosecution terminated favorably to plaintiff. New York law is clear that where a termination in favor of the accused is not based upon the merits, the dispositive inquiry, to be made factually, is whether the failure to proceed implies a lack of reasonable grounds for the prosecution. Conway v. Village of Mount Kisco, 750 F.2d 205 (2nd. Cir. 1984). New York courts have found that the termination of underlying criminal proceedings on speedy trial grounds can constitute termination in plaintiff's favor for purposes of a malicious prosecution complaint. Vitellaro v. Eagle Insurance, 150 A.D.2d 770, 541 N.Y.S.2d 614, (Second Dept. 1989). The order of Judge Nelson of the Rockland County Court ...


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