12(b)(6), except Plaintiff's assault claims against the City of Albany itself.
IV. Motion for Summary Judgment by Defendant Frank Muia
Finally, the Court turns to Defendant Muia's motion for summary judgment. Plaintiff alleges false arrest and malicious prosecution claims against Defendant Muia. It is well settled that a private citizen may be subject to liability under § 1983 only if he "willfully collaborated with an official state actor in the deprivation of a federal right." Dwares, 985 F.2d at 98 (2d Cir. 1993); see also Annunziato v. The Gan, Inc, 744 F.2d 244 (2d Cir 1984) (granting the private individual defendants summary judgment on § 1983 claims where there was no evidence that the private individuals were involved in any "preconceived plan" or "mutual understanding" with the city officials).
In this case, it is undisputed that Defendant Muia was not an employee, official agent, or official representative of any of the municipal Defendants in this case. Thus, in order to survive Defendant Muia's motion for summary judgment, Plaintiff must point to evidence creating a genuine issue of fact as to whether Defendant Muia was involved in a "preconceived plan" or "mutual understanding" with the government officials in this case. The only evidence offered by Plaintiff on this issue are vague observations Plaintiff made on the day of his arrest. For example, Plaintiff alleges that Defendant Muia and Officer Guerrero appeared to know each other, and that he observed Defendant Muia and Officer Guerrero talking in the back of Defendant Muia's restaurant during Officer Guerrero's investigation.
Drawing all reasonable inferences in favor of the Plaintiff, the Court finds that no reasonable juror could conclude that Defendant Muia was part of a "preconceived plan" or "mutual understanding" with Officer Guerrero or any other government official in this case. Therefore, Defendant Muia's motion for summary judgment on Plaintiff's false arrest and malicious prosecution claims under § 1983 must be GRANTED.
After carefully reviewing the papers submitted, the applicable law, and the entire file in this matter, it is hereby
ORDERED that Plaintiff's motion for recusal is DENIED. It is further
ORDERED that the County Defendants' motion for judgment on the pleadings is GRANTED in part, and DENIED in part, to the extent described above; and all of Plaintiff's claims against the County of Albany, the Albany County Legislature, the Albany County Sheriff's Department, the Albany County Department of Health, the Albany County Mental Health Department, the Albany County Mental Health Board, Max Tanner, Edward Szostak, John Fahey, and Michael J. Hoblock, are DISMISSED, EXCEPT for Plaintiff's assault and battery claim against the County of Albany itself. It is further
ORDERED that the City Defendants' motion to dismiss and for summary judgment is GRANTED in part, and DENIED in part, to the extent described above; and all of Plaintiff's claims against the City of Albany, the City Council for the City of Albany, the City of Albany Police Department, John Dale, Gerald D. Jennings, 610 Guerrero, 550 Miller, 418 Fox, 814 London, and 105 Forkeutis are DISMISSED, EXCEPT for Plaintiff's assault and battery claim against the City of Albany itself. Finally, it is further
ORDERED that Defendant Frank Muia's motion for summary judgment is GRANTED, and all of Plaintiff's claims against Defendant Muia, and Defendant Muia's cross-claims against the City and County Defendants, are DISMISSED.
IT IS SO ORDERED.
Dated: February 11, 1997
Syracuse, New York
Frederick J. Scullin, Jr.
United States District Judge