few district courts in the Second Circuit that have grappled with the "malicious prosecution-seizure" issue subsequent to Albright and Singer have taken a similar view. See Niemann v. Whalen, 911 F. Supp. 656, 668-71 (S.D.N.Y. 1996); Subirats v. D'Angelo, 938 F. Supp. 143, 149 (E.D.N.Y. 1996) (Spatt, J.). However, the Supreme Court has yet to come to rest with this proposition. Indeed, in light of Justice Ginsburg's position in Albright that a party is "seized" for trial "so long as he is bound to appear in court and answer the state's charges," Albright, 114 S. Ct. at 816 (Ginsburg, J., concurring); the broad-sweeping concept of "liberty" articulated in Justices Stevens' and Blackmun's dissent, id. at 823-825; and the express disclaimer by Justice Rehnquist in the plurality opinion that "we express no view as to whether petitioner's claim would succeed under the Fourth Amendment," id. at 813, the courts are still traveling in relatively uncharted seizure waters.
In any event, in light of the limited scope of plaintiff's pleadings and his attorney's Fourth Amendment concession in open court, plaintiff is relegated to his contentions that his claims transcend the federal strictures on malicious prosecution and are cognizable under substantive due process because of the individual defendants' alleged outrageous behavior, and under the First Amendment.
Creighton's insinuation into the prosecutorial process may well serve to satisfy the requisite malice element of common law malicious prosecution, but it does not rise to the level of action that is "arbitrary, conscience-shocking, or oppressive in a constitutional sense . . . ." Richmond Boro Gun Club, Inc. v. City of New York, 97 F.3d 681, 688 (2d Cir. 1996) (quoting Kaluczky v. City of White Plains, 57 F.3d 202, 210 (2d Cir. 1995)). As the Court aptly noted in Albright, "the protections of substantive due process have for the most part been accorded to matters relating to marriage, family, procreation, and the right to bodily integrity." Albright, 114 S. Ct. at 812. Moreover, substantive due process has greater force for claims which have no legal "home." See id. at 819 (Kennedy, J. & Thomas, J., concurring) ("If a State did not provide a tort remedy for malicious prosecution, there would be force to the argument that the malicious initiation of a baseless criminal prosecution infringes an interest protected by the Due Process Clause and enforceable under § 1983"); see also id. at 820 (Souter, J., concurring) ("This rule of reserving due process for otherwise homeless substantial claims no doubt informs those decisions [citations omitted] in which the Court has resisted against relying on the Due Process Clause when doing so would have duplicated protection that a more specific constitutional provision already bestowed."). Given the admonition of Albright that courts should be circumspect in expanding the reach of substantive due process, the Court concludes that plaintiff's allegations are not of that constitutional dimension.
B. First Amendment Claims.
Nor does plaintiff allege any claim that is cognizable under the First Amendment. Although the court in Singer recognized that a claim of malicious prosecution can theoretically be based upon a specific constitutional right other than the Fourth Amendment, see supra note 5, plaintiff's conclusory First Amendment assertion, contained in passing in his proposed second amended complaint, that defendants had "maliciously prosecuted him and thereby deprived him of his rights to due process, freedom of association and freedom to travel," is not supported by any First Amendment allegation that is related to his malicious prosecution claim. Rather, plaintiff's First Amendment claims center on his contention that the individual defendants unlawfully obtained an order of protection, which precluded him from associating with his children and traveling to his home because he felt "he wasn't free to stay in the house." (Tr. at 8.) The order of protection, however, simply required plaintiff to "abstain from offensive conduct against [his wife and children]," and to "refrain from acts of commission or omission that tend to make the home not a proper place for [his wife and children]." (Defs.' Reply Affirmation, Ex. A.)
Accordingly, the Court denies the motion to further amend the complaint, see 6 C. Wright & A. Miller, Federal Practice and Procedure § 1487, at 637-646 (2d ed. 1990) (citing cases that deny motions to amend when amendment would be futile), and dismisses all of plaintiff's federal claims, including the one against the non-moving party, Joan. The federal claim against Joan is dismissed sua sponte since it is inextricably linked to the federal claim against Creighton. See Hecht v. Commerce Clearing House, Inc., 897 F.2d 21, 26 n.6 (2d Cir. 1990) (affirming dismissal of complaint against all defendants, including defendant who did not make appearance in case nor join motion to dismiss, "because the issues concerning [non-movant] are substantially the same as those concerning the other defendants"). The federal claim against the County is dismissed since liability against the County is based upon Monell, which has no separate viability in the absence of underlying individual constitutional liability.
C. Retention of Supplemental Jurisdiction Over Pendant State Torts.
Even though the Court is dismissing all of plaintiff's federal claims, it will nonetheless retain supplemental jurisdiction over the pendant state claims. While usually the Court would dismiss these claims, see Castellano v. Board of Trustees, 937 F.2d 752, 758 (2d Cir.) ("If the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well") (citing United Mine Workers v. Gibbs, 383 U.S. 715, 726, 16 L. Ed. 2d 218, 86 S. Ct. 1130 (1966)), cert. denied, 502 U.S. 941 (1991), it is within its province, in the exercise of a sound discretion, to keep them. As stated by the Second Circuit in Purgess v. Sharrock, 33 F.3d 134 (2d Cir. 1994):
If, however, the dismissal of the federal claim occurs "late in the action, after there has been substantial expenditure in time, effort, and money in preparing the dependent claims, knocking them down with a belated rejection of supplemental jurisdiction may not be fair. Nor is it by any means necessary."