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April 11, 1997

ERNESTO VELASQUEZ, Plaintiff, against THE CITY OF NEW YORK, P.O. THOMAS VEALE (Shield # 1579); P.O. RICHARD BROTCHAL (Shield # Unknown); P.O. SCOTT NAGER (Tax ID 874977); and P.O. TONY TRINIDAD (Tax ID # 896055), Defendants.

The opinion of the court was delivered by: FRANCIS



 Ernesto Velasquez brings this action pursuant to 42 U.S.C. § 1983 alleging that his rights under the Fourth and Fourteenth Amendment to the United States Constitution were violated during the course of his arrest on January 24, 1995 and the ensuing criminal prosecution. The plaintiff asserts claims of false arrest, use of excessive force, and malicious prosecution both as constitutional torts under § 1983 and as violations of state common law. He has named as defendants New York City Police Officers Thomas Veale, Richard Brotchul, Antonio Trinidad, and Scott Nager as well as the City of New York (the "City"). The parties have consented to referral of this case to me pursuant to 28 U.S.C. § 636(c) for all purposes including trial. The defendants now move for partial summary judgment under Rule 56 of the Federal Rules of Civil Procedure.


 According to the complaint, on January 24, 1995 at about 10:30 p.m., Mr. Velasquez was in the vicinity of Sherman Avenue and Broadway in Manhattan. At that time the defendant police officers assaulted him and, without probable cause, arrested him for criminal possession of a controlled substance in the seventh degree, a class A misdemeanor. N.Y. Penal Law § 220.03. The prosecution proceeded until October 3, 1995, when it was dismissed for failure to comply with the speedy trial requirements of New York Criminal Procedure Law § 30.30.

 All defendants now move for partial summary judgment with respect to the claims of malicious prosecution on the ground that the criminal proceedings did not terminate favorably to the plaintiff. They argue that, as a matter of law, a dismissal on speedy trial grounds is not a favorable termination and thus can never be the basis for a malicious prosecution claim. Mr. Velasquez responds that such a dismissal is necessarily favorable to him since it irrevocably terminated the prosecution and left intact the presumption of innocence to which he was entitled.

 The defendants also move for summary judgment dismissing the plaintiff's § 1983 claims against the City. They argue that Mr. Velasquez cannot demonstrate that any of the alleged violations of his rights were caused by any policy or custom of the City. The plaintiff contends that he can show that the City displayed deliberate indifference to his rights by ignoring evidence of prior misdeeds by the defendant police officers and by failing to train them properly.


 A. Malicious Prosecution

 Section 1983 imposes a form of tort liability on persons acting under color of state law who violate federal constitutional or statutory rights. See Heck v. Humphrey, 512 U.S. 477, , 114 S. Ct. 2364, 2370, 129 L. Ed. 2d 383 (1994). Malicious prosecution was long considered actionable as a constitutional tort, generally because it was viewed as implicating Fourteenth Amendment liberty interests. See Cook v. Sheldon, 41 F.3d 73, 79 (2d Cir. 1994). However, in Albright v. Oliver, 510 U.S. 266, 114 S. Ct. 807, 127 L. Ed. 2d 114 (1994), the Supreme Court held that for malicious prosecution to be the basis for a § 1983 claim, it must be based on the deprivation of a specific constitutional right rather than on the general concept of substantive due process. Id. at , 114 S. Ct. at 812, 184. One such specific right is the Fourth Amendment safeguard against unreasonable search and seizure. Id. at , 114 S. Ct. at 811; see Singer v. Fulton County Sheriff, 63 F.3d 110, 115 (2d Cir. 1995), cert. denied, U.S. , 134 L. Ed. 2d 779, 116 S. Ct. 1676 (1996). Therefore, when malicious prosecution constitutes a seizure of the plaintiff, it is actionable as a constitutional tort.

 When annnalyzing a § 1983 claim, courts look to the common law to determine whether conduct is tortious. See Russell v. Smith, 68 F.3d 33, 36 (2d Cir. 1995) (state law governs § 1983 malicious prosecution claim). *fn1" In order to prove a claim for malicious prosecution under New York law, a plaintiff must establish that: (1) an action was initiated by the defendant against the plaintiff; (2) the defendant acted with malice; (3) there was no probable cause for commencing the action; and (4) the action terminated in favor of the plaintiff. See O'Brien v. Alexander, 101 F.3d 1479, 1484 (2d Cir. 1996); Russell, 68 F.3d at 36; Colon v. City of New York, 60 N.Y.2d 78, 82, 468 N.Y.S.2d 453, 455, 455 N.E.2d 1248 (1983). The only dispute for purposes of summary judgment concerns the element of favorable termination.

 A comprehensive definition of this element has proven elusive. See O'Brien, 101 F.3d at 1486 (noting confusion in the case law); Lopez v. City of New York, 901 F. Supp. 684, 688 (S.D.N.Y. 1995) ("Unfortunately, the cases dealing with the pertinent situations have reached varying results that are difficult to reconcile."). The New York Court of Appeals first formulated a general definition of the favorable termination requirement in Halberstadt v. New York Life Insurance Co., 194 N.Y. 1, 10-11, 86 N.E. 801, 803 (1909):

The first [rule] is that where a criminal proceeding has been terminated in favor of the accused by judicial action of the proper court or official in any way involving the merits or propriety of the proceeding or by a dismissal or discontinuance based on some act chargeable to the complainant as his consent or his withdrawal or abandonment of his prosecution, a foundation in this respect has been laid for an action of malicious prosecution. The other and reverse rule is that where the proceeding has been terminated without regard to its merits or propriety by agreement or settlement of the parties or solely by the procurement of the accused as a matter of favor or as the result of some act, trick or device preventing action and consideration by the court, there is no such [favorable] termination . . . .

 According to this version of the general rule, the requirement of a favorable termination can be met either by "(1) an adjudication of the merits by the tribunal in the prior action, or (2) an act of withdrawal or abandonment on the part of the ...

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