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NEIDER v. COMBLO

March 12, 1996

MARK P. NEIDER, Plaintiff, against JOSEPH COMBLO, individually and in his capacity as a Police Officer of the Village of Mamaroneck, BARBARA COMBLO, individually and THE VILLAGE OF MAMARONECK, New York, Defendants.


The opinion of the court was delivered by: CONNER

 Conner, Sr. D.J.:

 This case presently is before the court on defendant Barbara Comblo's motion for an attorney's fee pursuant to 42 U.S.C. §§ 1983, 1988. For the reasons discussed below, the motion is denied.

 BACKGROUND

 Plaintiff Mark P. Neider ("Neider") brought this action under 42 U.S.C. § 1983, alleging that defendants Town of Harrison, Joseph Comblo (a police officer employed by the Village of Mamaroneck, New York), and Barbara Comblo (Joseph Comblo's sister-in-law) conspired to and did violate Neider's civil rights guaranteed by the Fourth Amendment of the United States Constitution. Plaintiff alleged that he was falsely arrested by Joseph Comblo and criminally prosecuted by the Town of Harrison without probable cause. Plaintiff further alleged that Barbara conspired with Joseph and the Town of Harrison to violate his civil rights.

 Neider, an officer employed by Harrison during times relevant in this case, was arrested and criminally prosecuted for public lewdness based on Barbara's complaint and testimony that she had seen him masturbating in a car in front of her house. Neider was found guilty, but his conviction was reversed on appeal upon a determination that the verdict was not supported by the evidence.

 Neider then brought this action for damages under 42 U.S.C. § 1983 alleging that the Town of Harrison, Joseph Comblo, and Barbara Comblo conspired to violate his right to be free from arrest and prosecution without probable cause, as guaranteed by the Fourth Amendment. On November 21, 1995, after a jury trial, a verdict was returned for the defendants. Barbara Comblo, through her attorney, then submitted the instant application for an attorney's fee.

 DISCUSSION

 A district court has discretion to allow a prevailing party in a section 1983 case a reasonable attorney's fee. 42 U.S.C. § 1988(b). A prevailing plaintiff "should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust." Hensley v. Eckerhart, 461 U.S. 424, 429, 76 L. Ed. 2d 40, 103 S. Ct. 1933 (1983) (quoting S. Rep. No. 94-1558, p. 1 (1976); Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402, 19 L. Ed. 2d 1263, 88 S. Ct. 964 (1968)). A prevailing defendant, however, "may recover an attorney's fee only where the suit was vexatious, frivolous, or brought to harass or embarrass the defendant." Id., at 429 n.2. Although we have discretion to award an attorney's fee under section 1988, we decline to make such an award in this case.

 The evidence left the Court with the same uneasiness about the result. There is no question that the charge of public lewdness made against plaintiff by defendants, which was prominently reported in the local press, caused him excruciating public humiliation and loss of his job as a police officer in the Town of Harrison, and made it virtually impossible for him to secure a similar position elsewhere. Those consequences must be accepted by a person who is guilty of the crime with which plaintiff was charged. But plaintiff's conviction was reversed by the Appellate Division for insufficient evidence, and additional evidence adduced in the trial of this civil rights action cast even more doubt on his guilt.

 Defendant Barbara Comblo testified that, as she sat on the front stoop of her house in Mamaroneck with her four-year-old son, she saw a man masturbating as he sat in a blue car at the curb in front of the house. She said that after watching for a few seconds she stood up and, as she did, the car drove away rapidly and she noted that there was a napkin partially covering its rear license plate. Her brother-in-law, Joseph, an off-duty Mamaroneck police officer, was in the driveway of her house, loading a lawn mower into his pick-up truck. She called to him, "That guy was jerking off! Go get him!" She added that the man was in a blue car which had turned right at the end of the block.

 Joseph jumped into his truck and followed in the direction the car had gone, but the car was already out of sight. He testified that after he had turned right and reached the next corner, he looked down the street to his left where he saw a blue car stop momentarily then start up again. But, instead of turning left into that street to follow the car, he drove straight ahead to go in the opposite direction around the block, assuming that the car would turn right at the next corner and planning to catch it at the diametrically opposite corner of the block. When he reached that corner, a blue car was stopped there for a stoplight and he pulled his truck in front of it, cutting off its path. Joseph walked around to the rear of the car to check its license plate. There was no napkin on it. When the driver of the car identified himself as Mark Neider, a Town of Harrison police officer, Joseph released him.

 After Barbara indicated that she wanted to press criminal charges against the man, she went to the Mamaroneck police station with Joseph and filled out a complaint form. In it she described the man only as having black hair; she did not say that he had a ...


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