First, as a practical matter, police officers must be able to rely on the advice of prosecutors. The judicial system depends upon this reliance. I also note that DiPasquale discussed the incident with Livingston County District Attorney Thomas Moran before signing the felony complaint. At that time Moran directed him to sign the complaint. (Statement of Material Facts by Defendants, Charles J. DiPasquale and Village of Mount Morris at 2-3.) It is clear that DiPasquale's actions were motivated by the District Attorney's order and not on his own initiative.
I conclude, therefore, that DiPasquale's reliance on Kelley's relatively more expert opinion that probable cause existed was objectively reasonable as a matter of law. See Arnsberg v. United States, 757 F.2d 971, 982 (9th Cir. 1985), cert. denied, 475 U.S. 1010, 89 L. Ed. 2d 300, 106 S. Ct. 1183 (1986). Therefore, DiPasquale is entitled to qualified immunity. East Coast Novelty Co. Inc. v. City of New York, 781 F. Supp. 999, 1011 (S.D.N.Y. 1992).
I also find that DiPasquale is immune from liability on the malicious prosecution claim. This claim is based on DiPasquale's having sworn to a felony complaint against plaintiff for perjury. One of the elements of this claim, however, is a lack of probable cause for the criminal proceeding. Broughton, 37 N.Y.2d at 457. For the reasons already stated, I find that probable cause did exist to commence the criminal proceeding, and that even if it did not, DiPasquale could not reasonably have known that. In fact, as a police chief rather than a district attorney, DiPasquale would have even less reason than Kelley to know whether probable cause was lacking.
IV. Claims Against the County and the Village
Because I have found that there was probable cause to arrest plaintiff and to initiate criminal proceedings against her, her false arrest and malicious prosecution claims fail entirely. Thus, these claims must be dismissed against the County and the Village as well.
The claims against the County are deficient for additional reasons as well. A § 1983 lawsuit against a municipality must allege that the deprivation of the plaintiff's rights was effected pursuant to the existence of a custom or policy of the municipality. Monell v. Department of Social Services, 436 U.S. 658, 691-94, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978).
Concerning the false arrest cause of action, there is no evidence to support a claim that the County had or endorsed a policy of making arrests for perjury. The District Attorney was the final policymaker within the District Attorney's Office and by the time he had been apprised of the situation, plaintiff had already been arrested. Plaintiff has presented no evidence that the District Attorney or any County officials knew of Kelley's actions prior to plaintiff's arrest. Therefore, even if acts of the District Attorney could be attributed to the County, which can occur in only limited situations, there is no activity here on the part of the District Attorney relating to plaintiff's arrest.
The activities of the District Attorney occurred, if at all, in connection with the malicious prosecution cause of action but, there are only limited circumstances in which actions of the District Attorney can impose liability on the County.
In the Second Circuit, § 1983 liability for the actions of a district attorney can attach to a county only in a limited range of circumstances. In Baez v. Hennessy, 853 F.2d 73 (2d Cir. 1988), cert. denied, 488 U.S. 1014, 109 S. Ct. 805, 102 L. Ed. 2d 796 (1989), the court said that "when prosecuting a criminal matter, a district attorney in New York State ... represents the State not the county," id. at 77, and consequently ruled that "a district attorney's misconduct in prosecuting an individual could not give rise to municipal liability." Walker v. City of New York, 974 F.2d 293, 301 (2d Cir. 1992) (describing holding of Baez), cert. denied, 507 U.S. 961, 122 L. Ed. 2d 762, 113 S. Ct. 1387 (1993).
In Gentile v. County of Suffolk, 926 F.2d 142 (2d Cir. 1991), the court limited Baez somewhat by holding that a municipality could be held liable in a § 1983 malicious prosecution case if the district attorney had a "long history of negligent disciplinary practices regarding law enforcement personnel, which gave rise to the individual defendants' conduct in promoting the malicious prosecution of plaintiffs." Id. at 152 n. 5.
Taken together, then, Baez and Gentile stand for the proposition that "where a district attorney acts as the manager of the district attorney's office, the district attorney acts as a county policymaker." Walker, 974 F.2d at 301. "Consequently, as long as a plaintiff's 'claims center not on decisions whether or not, and on what charges, to prosecute but rather on the administration of the district attorney's office,' there can be liability against a New York county for an alleged malicious prosecution." Pinaud, 52 F.3d at 1153-54 n. 14. Thus, "an allegation of deficiencies in the 'management of the [district attorney's] office' would appear to be necessary ... in order for any claim of malicious prosecution against the County ... to stand." Id. at 1153.
This is not such a case. The actions alleged here related to whether to prosecute plaintiff on a perjury charge, not on any mismanagement in the administration of the District Attorney's Office. As such, there is no basis for liability against the County even if the District Attorney's action has been improper.
Plaintiff's motion for summary judgment on the issue of liability against defendants Kelley and DiPasquale (Item 12) is denied.
Defendants' motions for summary judgment in favor of all defendants (Items 15 and 19) are granted in their entirety, and the complaint is dismissed.
IT IS SO ORDERED.
DAVID G. LARIMER
UNITED STATES DISTRICT JUDGE
Dated: Rochester, New York
December 6, 1995.