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LEONE v. CREIGHTON

November 29, 1996

LOUIS S. LEONE, Plaintiff, against ROBERT CREIGHTON, individually and as an employee of the Suffolk County, New York District Attorney's Office, JOAN LEONE, and COUNTY OF SUFFOLK, NEW YORK, Defendants.


The opinion of the court was delivered by: BLOCK

 BLOCK, District Judge:

 This case is another casualty of Albright v. Oliver, 510 U.S. 266, 114 S. Ct. 807, 127 L. Ed. 2d 114 (1994), which effectively closes the civil rights door under 42 U.S.C. § 1983 to tort claims that are not based on a specific textual constitutional proscription.

 In 1992, plaintiff Louis S. Leone ("Leone") brought this action pursuant to 42 U.S.C. § 1983 against defendants Joan Leone ("Joan"), his wife, Robert Creighton ("Creighton"), Joan's brother-in-law, individually and in his official capacity as an investigator for the Suffolk County District Attorney, and the County of Suffolk ("County"). Leone alleges that the individual defendants, by conspiring to launch an unfounded criminal harassment charge against him in state court which was dismissed on its merits, violated his constitutional rights to substantive due process and equal protection and committed the state torts of malicious prosecution and battery. *fn1" The County's federal liability is based upon Monell v. Department of Social Services of City of New York, 436 U.S. 658, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978), and the state claim of malicious prosecution against the County is predicated upon the doctrine of respondeat superior. Creighton and the County move to dismiss the federal claims pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, and ask the Court not to exercise supplemental jurisdiction over the pendant state claims. *fn2"

 Leone has cross-moved for permission to amend his complaint for a second time so that he may assert additional constitutional claims, the violation of his First Amendment rights to freedom of association and freedom to travel. *fn3" These claims are primarily based upon Joan and Creighton's alleged collusion to illicitly cause a protective order to be issued against Leone, which he alleges precluded him from occupying his home and living with his children.

 For the reasons that follow, the Court denies Leone's motion to amend; grants Creighton and the County's motion to dismiss the federal claims; sua sponte dismisses the federal claim against the non-moving party, Joan; and retains jurisdiction over the pendant state claims.

 BACKGROUND

 A. The Complaints

 1. The First Amended Complaint

 In support of his federal substantive due process claim and his state malicious prosecution and battery claims, Leone's amended complaint alleges the following: On May 29, 1991, "without justification or excuse," Joan punched Leone in the eye, scratched his lip and torso, and "beat him on the back with a broom handle." Joan then called the police. When they arrived, Joan admitted that she had assaulted Leone. One of the police officers observed Leone's injuries and asked him whether he wanted the police to arrest his wife. Leone declined.

 Creighton then arrived and identified himself as an investigator for the County's District Attorney's Office. He told the police that he wanted Leone "locked up." When they questioned the basis for the arrest, Creighton responded that it was "mental cruelty." The police determined that there was no probable cause to arrest Leone. Creighton then threatened to "misuse his official position to cause [Leone] to be jailed if [he] did not vacate his home." Leone refused to leave. Shortly thereafter, Joan and Creighton left together. Creighton subsequently attempted to separately persuade a police road sergeant, a police officer at the Fourth Police Precinct, and the Commanding Officer of that precinct, to arrest Leone. However, each of them refused, concluding that probable cause was lacking.

 Creighton nevertheless "caused a baseless charge of harassment" to be brought against Leone in order to enable Joan "to obtain a corrupt and unwarranted advantage over plaintiff with respect to then pending matrimonial litigation." Leone does not claim that he was arrested as a result of this charge or that he was incarcerated or subject to bail. *fn4" Creighton also allegedly used his position to aid Joan with the matrimonial litigation by manipulating the timing of Leone's criminal trial. He allegedly caused Assistant District Attorney Joseph Lombardo to call Robert Green ("Green"), Leone's counsel on the harassment charge, and falsely represented to Green that Leone's court appearance had been advanced by the judge assigned to the case. An associate of Green accordingly appeared before the judge on the putative advanced date, at which time the judge informed him that he had not advanced the case and was puzzled by the parties' presence in court.

 Creighton thereafter "personally supervised the prosecution of the plaintiff by the Office of the District Attorney on behalf of [Joan]", and arranged for her to have "an escort associated with the County's District Attorney's Office whenever she was in or in the area of the criminal court or traveling ...


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