D. PENDENT STATE LAW CLAIM OF MALICIOUS PROSECUTION
Plaintiff seeks to hold Dr. Nadine Sabbagh, M.D. and the City of New York liable for the common-law tort of malicious prosecution. To state a claim under New York law for malicious prosecution, the Plaintiff must demonstrate that: "(1) the defendant commenced or continued a criminal proceeding against the plaintiff; (2) that the proceeding terminating in the plaintiff's favor; (3) that there was no probable cause for the criminal proceeding; and (4) that the defendant commenced the criminal proceeding out of malice." Fowler v. Robinson, 1996 U.S. Dist. LEXIS 1710, 94 Civ. 836, 1996 WL 67944 (N.D.N.Y. Feb. 16, 1996) (citation omitted); see also Whittaker v. Duke, 473 F. Supp. 908 S.D.N.Y. 1979) (citing Prosser, Law of Torts 835 (4th Ed. 1971).
Defendant's argue that Plaintiff has failed to state a claim because malicious prosecution is not a constitutional tort. (Def. Mem. Law at 7). Under Albright v. Oliver. 510 U.S. 266, 127 L. Ed. 2d 114, 114 S. Ct. 807 (1994), the Supreme Court foreclosed reliance on substantive due process under the Fourteenth Amendment as the basis for a malicious prosecution claim pursuant to § 1983. However, in the instant case, the Complaint and Plaintiff's Memorandum in Opposition make clear that Plaintiff's malicious prosecution claim sounds in state law, and is set forth in the Complaint as a pendent claim to Plaintiff's federal civil rights claim against the City of New York.
Defendants also argue that Plaintiff cannot hold Dr. Sabbagh liable because she did not initiate the prosecution against Plaintiff. Generally, one who "merely responds to requests for information or who testifies as a witness does not, by those acts, institute or continue a prosecution." Whittaker, 473 F. Supp. at 909. However, if "it is found that [the defendant's] persuasion was the determining factor in inducing the officer's decision, or that he gave information which he knew to be false and so unduly influenced the authorities, he may be liable. Id. at 911 (citing Prosser, Law of Torts, 836-837 (4th Ed. 1971)).
Plaintiff alleges that Dr. Sabbagh knowingly gave false testimony. (Compl. at P 24). The New York Court of Appeals held that an eyewitness to an attempted robbery, who identified a suspect and confirmed her identification, could not be held liable under the tort of malicious prosecution because she had "played no part in plaintiff's arrest or imprisonment other than to provide information to the legal authorities identifying plaintiff as the perpetrator of the crime." Collins v. Brown, 129 A.D.2d 902, 514 N.Y.S.2d 538, 540 (N.Y. App. Div. 3d Dep't. 1987). The plaintiff in Collins was unable to succeed because he could not establish that his indictment was produced by fraud, perjury, the suppression of evidence or other conduct undertaken in bad faith. Collins, 514 N.Y.S.2d at 540 (citing Colon v. City of New York, 60 N.Y.2d 78, 468 N.Y.S.2d 453, 456, 455 N.E.2d 1248 (N.Y. 1983); Boose v. City of Rochester, 71 A.D.2d 59, 421 N.Y.S.2d 740 (N.Y. App. Div. 4th Dep't. 1979)).
Plaintiff alleges that the indictment was produced by the perjurious testimony of Dr. Sabbagh. (Compl. P 24). Under the 12(c) standard of review, this Court is obligated to accept Plaintiff's allegations as true. Accordingly, this Court finds that, as to Dr. Sabbagh, Plaintiff has successfully stated the first element of malicious prosecution.
The first element of Plaintiff's allegation against the City is more easily met as the City was clearly responsible for initiating the criminal prosecution through the Queens County District Attorney's Office and the New York City Police Department. Thus, as to Defendant New York City, Plaintiff has sufficiently stated the first element of a claim of malicious prosecution.
The second element of a claim of malicious prosecution requires the Plaintiff to demonstrate that the proceeding was terminated in his favor. The Appellate Division in People v. Baba-Ali reversed Plaintiff's conviction on the grounds of prosecutorial misconduct and ineffective assistance of counsel. People v. Amine Baba-Ali, 179 A.D.2d 725, 578 N.Y.S.2d 633 (N.Y. App. Div. 2d Dep't. 1992). Accordingly, Plaintiff's allegations meet the second element of malicious prosecution.
The third malicious prosecution element requires Plaintiff to demonstrate that at the time of his arrest, there was an absence of probable cause. Colon v. City of New York, 60 N.Y.2d 78, 468 N.Y.S.2d 453, 455, 455 N.E.2d 1248 (N.Y. 1983) (citing Martin v. City of Albany, 42 N.Y.2d 13, 396 N.Y.S.2d 612, 364 N.E.2d 1304 (N.Y. 1977); Broughton v. State of New York, 37 N.Y.2d 451, 373 N.Y.S.2d 87, 335 N.E.2d 310, cert. denied sub. nom. Schanbarger v. Kellogg, 423 U.S. 929, 46 L. Ed. 2d 257, 96 S. Ct. 277 (1975)). Probable cause consists of such facts and circumstances as would lead a reasonably prudent person in like circumstance to believe plaintiff guilty. Colon, 468 N.Y.S.2d at 455 (citations omitted). However, once a suspect has been indicted, the law holds that the Grand Jury action creates a presumption of probable cause. Id. (citing Lee v. City of Mount Vernon, 49 N.Y.2d 1041, 429 N.Y.S.2d 557, 407 N.E.2d 404 (N.Y. 1980)). This rule is founded upon "the premise that the Grand Jury acts judicially and it may be presumed that it has acted regularly. The presumption may be overcome only by evidence establishing that the police witnesses have not made a complete and full statement of facts either to the Grand Jury or to the District Attorney, that they have misrepresented or falsified evidence, that they have withheld evidence or otherwise acted in bad faith." Colon, 468 N.Y.S.2d at 456. The court in Colon further noted that the rule in New York differs from other jurisdictions which "permit the presumption to be overcome by any evidence tending to show the absence of probable cause." Id. In New York, the "trial court may not weigh the evidence upon which the police acted or which was before the Grand Jury after an indictment has been issued. If Plaintiff is to succeed in his malicious prosecution action after he has been indicted, he must establish that the indictment was produced by fraud, perjury, the suppression of evidence or other police conduct undertaken in bad faith." Id.
Plaintiff's allegations implicate the City of New York and Dr. Sabbagh for perjury. (Compl. PP 44-65). Accepting these allegations as true, it is clear that Plaintiff has established the third element of a malicious prosecution claim.
As to the fourth element of a malicious prosecution claim, Plaintiff must show that the defendant commenced or continued the criminal prosecution for an improper motive, or with malice, rather than see "the ends of justice served." Fowler v. Robinson, 1996 U.S. Dist. LEXIS 1710, 94 Civ. 836, 1996 WL 67994, *8 (N.D.N.Y. Feb. 15, 1996) (citation omitted). There is a "close relationship under New York law as to the lack of probable cause and actual malice, the fourth element of a malicious prosecution claim." Post v. Elser, 1996 U.S. Dist. LEXIS 10210, 92 Civ. 1146, 1996 WL 406843, *8 (N.D.N.Y. July 19, 1996) Thus, actual malice can be inferred from a lack of probable cause for the initiation of criminal proceedings. Fowler, 1996 WL 67994 at *8. Because Plaintiff has stated a lack of probable cause, an inference can be drawn under New York law that the prosecution was initiated with actual malice. Thus, this Court finds that Plaintiff has stated a claim upon which relief can be granted.
E. DEFENDANTS' CLAIMS OF IMMUNITY TO PLAINTIFF'S MALICIOUS PROSECUTION CLAIM
Whether an action of a governmental employee or official is "cloaked with any governmental immunity requires an analysis of the functions and duties of the actor's particular position and whether they inherently entail the exercise of some discretion and judgment." Mon v. City of New York, 78 N.Y.2d 309, 574 N.Y.S.2d 529, 531, 579 N.E.2d 689 (N.Y. 1991) (citing Arteaga v. State of New York, 72 N.Y.2d 212, 532 N.Y.S.2d 57, 527 N.E.2d 1194 (N.Y. 1988); Tarter v. State of New York, 68 N.Y.2d 511, 510 N.Y.S.2d 528, 503 N.E.2d 84 (N.Y. 1986)). Generally, if the functions and duties at issue are essentially "clerical or routine, no immunity will attach." Mon, 574 N.Y.S.2d at 532. When "official action involves the exercise of discretion or expert judgment in policy matters, and is not exclusively ministerial, a municipal defendant is generally not answerable in damages for the injurious consequences of that action." Id. (citing Haddock v. City of New York, 75 N.Y.2d 478, 554 N.Y.S.2d 439, 440, 553 N.E.2d 987 (N.Y. 1990). This general rule reflects "a value judgment that--despite injury to a member of the public--the broader interest in having government officers and employees free to exercise judgment and discretion in their official functions, unhampered by fear of second-guessing and retaliatory lawsuits, outweighs the benefits to be had from imposing liability from that injury." Id. (citing Haddock, 554 N.Y.S.2d at 440.)
However, not all discretionary actions are afforded absolute immunity. Arteaga v. State of New York, 72 N.Y.2d 212, 532 N.Y.S.2d 57, 59, 527 N.E.2d 1194 (N.Y. 1988). Whether an action receives qualified or absolute immunity requires an analysis of the functions and the duties of the particular governmental officer of employee whose conduct is at issue. Arteaga, 532 N.Y.S.2d at 59. The focus of such analysis is on the scope of the "delegated discretion and whether the position entails making decisions of a judicial nature--i.e., decisions requiring the application of governing rules to particular facts, and exercise of reasoned judgment which could typically produce different acceptable results." Id. (citing Tango v. Tulevech, 61 N.Y.2d 34, 471 N.Y.S.2d 73, 77, 459 N.E.2d 182 (N.Y. 1983). "If a functional analysis of the actor's position shows that it is sufficiently discretionary in nature to warrant immunity, it must then be determined whether the conduct giving rise to the claim is related to an exercise of that discretion." Mon, 574 N.Y.S.2d at 532.
In Tango v. Tulevech, 61 N.Y.2d 34, 471 N.Y.S.2d 73, 459 N.E.2d 182 (N.Y. 1983), parents brought a negligence claim against the supervising probation officer and her employer, the County of Rockland, alleging careless and wrongful violation of her civil rights. The County of Rockland claimed absolute immunity for the supervisor's conduct as a government employee. Tango, 471 N.Y.S.2d at 74. The case involved a custody dispute in which the father had legal custody of the children and the children's mother removed the two girls from their school bus and attempted to take them with her to South Carolina. Id. at 75. The school principal observed the incident and enabled the police to intercept the mother. The mother and her children were taken to the In-take Unit of the Probation Department connected with the Rockland County Family Court. Id. At the In-take Unit both parents claimed legal custody of the children. Id. at 77. The supervisor examined the children for signs of abuse and exercised her judgment as to whether court action was appropriate. Id.
The Court found that the supervisor was correct in her appraisal of the situation. Id. Further, the Court held that even if the supervisor were incorrect, she was immune from suit, because her actions were related to an exercise of her discretion. Id. Given the discretionary nature of her acts, the court found that the question of bad faith or malice irrelevant. Id.
Plaintiff, in the case at bar, alleges that Dr. Sabbagh's tortious conduct consisted of "performance of a physical examination, commencement or continuation of a criminal prosecution against plaintiff and perjury." (Pl.'s Mem. in Opp'n. at 20). Plaintiff's Complaint indicates that Dr. Sabbagh performed a physical examination of the child. Plaintiff's Complaint details Dr. Sabbagh's findings that the child suffered multiple vaginal and anal penetrations (Compl. P 24). Further, Dr. Sabbagh testified that she had no trouble performing the Q-Tip test and, further, that the child's vagina was abnormally large and her anal muscles abnormally weak, indicating that repeated vaginal and anal penetrations had occurred. (Compl. P 24). Dr. Sabbagh also testified that the child's anal area was discolored and had been bruised. (Compl. P 24). Finally, the Doctor testified that she believed that the sexual abuse had occurred approximately 12 to 18 weeks prior to her examination, plus or minus 4 to 6 weeks (Compl. P 24).
Like the supervisor in Tango, Dr. Sabbagh made a decision based upon her interpretation of the facts as presented. To make this determination, Dr. Sabbagh exercised her medical discretion. The conduct that gives rise to Plaintiff's malicious prosecution claim is, in fact, Dr. Sabbagh's medical discretion. Even if in error or in malicious bad faith, Dr. Sabbagh acted within the scope of her discretion as a medical examiner. This Court cannot construe Dr. Sabbagh's conduct as that which did not involve her exercise of her discretion, or as clerical, routine or ministerial See Mon, 574 N.Y.S.2d at 532. As such, Dr. Sabbagh's conduct, however egregious, falls under the umbrella of absolute immunity in which reasonableness and bad faith are irrelevant. Arteaga v. State of New York, 72 N.Y.2d 212, 532 N.Y.S.2d 57, 59, 527 N.E.2d 1194 (N.Y. 1988).
While this Court finds that Plaintiff has successfully pled a malicious prosecution claim, this Court also finds that Dr. Sabbagh, in her discretionary functions, is shielded by absolute immunity. As such, this Court finds that the City of New York and Dr. Sabbagh established absolute immunity as to Plaintiff's claim of malicious prosecution. Accordingly, Defendants' motion to dismiss Plaintiff's malicious prosecution claim is granted.
Based upon the foregoing reasons, this Court denies Defendants' motion on the pleading as to Plaintiff's § 1983 claim. However, in light of the Defendants' absolute immunity, this Court grants Defendants' motion on the pleadings as to Plaintiff's pendant claim of malicious prosecution.
Dated: New York, New York
October 17, 1997
DEBORAH A. BATTS