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December 6, 1995

MARY DALE, Plaintiff,
WILLIAM J. KELLEY, Individually and in his Official Capacity as Assistant District Attorney for the County of Livingston, CHARLES J. DiPASQUALE, Individually and in his Official Capacity as Chief of the Mount Morris Police Department, COUNTY OF LIVINGSTON, and VILLAGE OF MT. MORRIS, Defendants.

The opinion of the court was delivered by: LARIMER


 Plaintiff, Mary Dale ("Dale"), commenced this action pursuant to 42 U.S.C. § 1983 against defendants William J. Kelley ("Kelley"), an Assistant District Attorney for Livingston County; Charles J. DiPasquale ("DiPasquale"), Chief of the Village of Mount Morris Police Department; the Village of Mount Morris ("the Village"); and Livingston County ("the County"). Plaintiff claims that she was subject to false arrest and malicious prosecution for perjury as a result of testimony she gave at a felony hearing conducted in Mount Morris Village Court on June 16, 1993.

 Before the Court are the parties' cross-motions for summary judgment. Plaintiff has moved for summary judgment only on the issue of liability against Kelley and DiPasquale.

 Defendants have moved for summary judgment claiming that Kelley and DiPasquale have absolute immunity from suit, or in the alternative, that Kelley has qualified immunity. Additionally, defendants contend that the Village and the County are not vicariously liable for the conduct of DiPasquale and Kelley.


 The essential facts are not in dispute. Plaintiff owned a bar, the B & B Grill ("the bar"), located in Mount Morris, Livingston County, New York. Plaintiff has a son, Deforrest Henry Dale, nicknamed "J.R." ("J.R."). On June 14, 1993 at approximately 1:00 a.m., J.R. was arrested in the basement of the bar after closing time by the Mount Morris police and was charged with third-degree burglary.

 The following day, plaintiff appeared at the Mount Morris Police Department and was served with a subpoena compelling her to testify at J.R.'s felony hearing on June 16. On June 16 plaintiff appeared at J.R.'s hearing, which was held at the Village Court of Mount Morris. Kelley presented the state's case against J.R., and DiPasquale acted as court officer.

 One of the issues that Kelley attempted to prove during the hearing was that J.R. did not have permission to be in the bar after closing time. To establish this, Kelley called as witnesses two bartenders and a Mount Morris police officer who participated in J.R.'s arrest.

 Tracy Calkins, a bartender, testified that she had been given instructions that J.R. "was not allowed to be in there after I locked the doors." Transcript of Felony Hearing ("Tr.") at 8. Calkins was not asked, however, who had given her those instructions.

 Likewise, Laurie Sawdey, another bartender, testified that J.R. "was allowed in the bar but not after closing." Tr. at 12. During Sawdey's testimony, Kelley attempted to establish that plaintiff was the one who had given Sawdey instructions regarding J.R. However, after the court sustained a hearsay objection, Sawdey was only able to testify as to what "the policy" was with regard to J.R., without attributing that policy to any particular person.

 Sergeant Patrick Moran of the Mount Morris Police Department also testified. Over a hearsay objection, he stated that he learned from a conversation with plaintiff that J.R. was not allowed in the bar after closing time. Tr. at 39.

 Before calling plaintiff to testify, Kelley escorted her outside of the courtroom and spoke to her. The substance of the conversation is in some dispute. Kelley returned to the courtroom and called plaintiff as a witness.

 Plaintiff testified that she had never told Calkins that J.R. was not allowed in the bar after closing. Tr. at 44. Plaintiff also stated that she had told Sawdey, the other bartender, that she "would prefer him [J.R.] not to be [in the bar after closing] but I changed my mind." Tr. at 45. As to Moran, plaintiff testified that she could not remember what she had told him, because she had spoken to him on the phone after she had been roused from sleep. She did remember telling Moran that she would be down the following day to speak with him, but that she would not press charges. Tr. at 45-46.

 On cross-examination, plaintiff specifically stated that J.R. had her permission to be in the bar at the time of the incident for which he was arrested. Tr. at 49.

 Immediately after plaintiff finished testifying, Kelley directed DiPasquale to take plaintiff into custody. DiPasquale responded, "For what?" Kelley answered, "The charge will be perjury in the first degree."

 DiPasquale then escorted plaintiff from the courtroom into an adjoining room where she was confined. Later that day, plaintiff was served with a felony complaint alleging that plaintiff had committed first-degree perjury by offering testimony which contradicted prior sworn testimony of three witnesses. DiPasquale was the complaining witness on the complaint.

 Plaintiff was then handcuffed and driven to the Village Court of Nunda for arraignment. Kelley appeared at plaintiff's arraignment and requested that plaintiff be held without bail pending her felony hearing. The request was granted.

 Plaintiff was then taken to the Livingston County holding facility in Geneseo, where she was processed and subjected to a full-body strip search. Later that evening plaintiff was taken to the Monroe County Jail in Rochester where she spent the night. She was released on bail the next day.

 On November 10, 1993, a Livingston County grand jury dismissed the first-degree perjury charge against plaintiff. Plaintiff then filed this action for false arrest and malicious prosecution.


 I. General Principles

 Summary judgment may be granted when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Rosen v. Thornburgh, 928 F.2d 528, 532 (2d Cir. 1991). Where both sides have moved for summary judgment, each party's motion must be evaluated on its own merits, and all reasonable inferences must be drawn against the party whose motion is under consideration. Schwabenbauer v. Board of Educ. of Olean, 667 F.2d 305, 314 (2d Cir. 1981).

 Whether there are any material issues of fact in this case must be determined with reference to the law in New York relating to false arrest *fn1" and malicious prosecution. To establish a claim for false arrest, plaintiff must show that: (1) the defendants confined her; (2) she was conscious of the confinement; (3) she did not consent to the confinement; and (4) the confinement was not otherwise privileged. Broughton v. State, 37 N.Y.2d 451, 456, 373 N.Y.S.2d 87, 335 N.E.2d 310, cert. denied, 423 U.S. 929 (1975). The elements of a malicious prosecution claim are: (1) the commencement or continuation of a criminal proceeding by the defendants against the plaintiff; (2) the termination of the proceeding in favor of the accused; (3) the absence of probable cause for the criminal proceeding; and (4) actual malice. Id. at 457.

 Here the essential facts are not in dispute. Several witnesses had either explicitly stated, or clearly implied, that plaintiff had told them that J.R. did not have her permission to be in the bar after closing time. Plaintiff then stated unequivocally that J.R. did have such permission. Kelley then had plaintiff arrested on the spot for first-degree perjury.

 II. Claims Against Kelley

 A. Absolute Immunity?

 Kelley argues that his conduct is protected by absolute immunity. In determining whether absolute or qualified immunity applies to a given situation, the Court looks to the function being performed rather than to the office or identity of the defendant. Hill v. City of New York, 45 F.3d 653, 660 (2d Cir. 1995); see Buckley v. Fitzsimmons, 125 L. Ed. 2d 209, 113 S. Ct. 2606, 2613 (1993). State prosecutors are absolutely immune from actions resulting from conduct "'intimately associated with the judicial phase of the criminal process.'" Hill, 45 F.3d at 660-61 (quoting Imbler v. Pachtman, 424 U.S. 409, 430, 47 L. Ed. 2d 128, 96 S. Ct. 984 (1976)). Thus, prosecutors are protected by absolute immunity from civil liability for initiating a prosecution and presenting the case at trial Hill 45 F.3d at 661 (citing Imbler, 424 U.S. at 430-31; Buckley, 113 S. Ct. at 2615). They are also absolutely immune for conduct in preparing for those functions (e.g. evaluating and organizing evidence for presentation), or determining which offenses are to be charged. Id. In short, "prosecutorial immunity from § 1983 liability is broadly defined, covering 'virtually all acts, regardless of motivation, associated with [the prosecutor's] function as an advocate.'" Id. (quoting Dory v. Ryan, 25 F.3d 81, 83 (2d Cir. 1994)).

 On the other hand, the actions of a prosecutor are not protected by absolute immunity merely because they are performed by a prosecutor. Buckley, 113 S. Ct. at 2615. Prosecutors receive, at most, qualified immunity before any formal legal proceeding has begun. Hill, 45 F.3d at 661. Thus, "advising the police during the investigative stage of a case that they have probable cause to arrest" is not an advocacy function and is not entitled to absolute immunity. Id. ...

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