the arrest. Id. at 776, 658 N.Y.S.2d at 237.
In People v. Kennedy, 19 N.Y.2d 761, 761-62, 279 N.Y.S.2d 360, 361, 226 N.E.2d 186 (1967), the court of appeals affirmed defendant's conviction for "breaching the peace," where defendant had obstructed firefighters and police at the site of an accident. In that case, defendant "went past [a] police barrier and into an area of investigation occupied by firemen," in contravention of the orders of a police officer, who was at first "preoccupied with another incident." Id. Police were required "to remove [defendant] bodily from the scene" of the accident, upon her refusal "to return behind the barrier," as instructed. Id. In affirming her conviction for breaching the peace, the Court reasoned, "it [was] enough that disorder was threatened by defendant's conduct." Id.
In Goldstein v. Metro-North Commuter Railroad Co., 155 Misc. 2d 1, 2, 597 N.Y.S.2d 258, 258 (N.Y. App. Term 1993), aff'd, 207 A.D.2d 723, 616 N.Y.S.2d 595 (1st Dep't 1994), an appellate court reversed an order denying summary judgment to defendant where defendant's employees had removed plaintiff from a train, after he had refused to leave, upon failing to pay a one-way fare. The court stated that the fact that "plaintiff may have felt aggrieved because monthly commutation tickets were unavailable" did "not render actionable the otherwise lawful conduct of the employees . . . and . . . [plaintiff's subsequent] arrest." Id.
Deputy Campus had probable cause to arrest plaintiff for disorderly conduct. First, it is clear that the conduct at issue here potentially involved the public. The accident occurred alongside a well-traveled road and had attracted many passersby. See, e.g., N.Y. PENAL CODE § 240.00(1) (defining "public place" to include, but not be limited to, highways); Decker Dep. at 33, PP 17-18 ("There was a beehive of activity for a while."). The supporting depositions and affidavits reveal that an emergency had occurred, necessitating a quick and immediate response by rescue personnel. Mrs. Decker had been pinned in her car. Plaintiff stood near the site of the crash, and at least once, refused to leave when directed to do so. Based on the totality of the circumstances, defendant had probable cause to arrest plaintiff for disorderly conduct. The fact that plaintiff was aggrieved by the situation does not negate probable cause. See Goldstein, 155 Misc. 2d at 2, 597 N.Y.S.2d at 258.
Despite plaintiff's assertions to the contrary, the facts of this case are unlike those of People v. Delhall, 131 A.D.2d 870, 870-71, 517 N.Y.S.2d 228, 229-30 (2d Dep't 1987), in which the appellate division held that there had been no probable cause to arrest defendant for disorderly conduct, because the record did not establish that defendant's conduct -- conversing with four other individuals on a sidewalk -- had obstructed pedestrian traffic, constituted a refusal to comply with police orders to "move on" or risked breaching the peace. Id. Here, Deputy Campus had probable cause to arrest plaintiff for disorderly conduct. Plaintiff admits to having contributed to the "beehive activity" surrounding the accident, by standing in the middle of the road, near a crash site, and ignoring at least one order to "step back."
Alternatively, Deputy Campus's belief that he had probable cause to make the arrest was not unreasonable. While plaintiff may not have intended to cause inconvenience, annoyance or alarm, it was not unreasonable for defendant to have concluded that plaintiff's conduct recklessly risked interfering with the rescue attempt, and thereby threatened the public order. The test here is not whether defendant's conduct was reasonable but whether it "was clearly unreasonable" under the circumstances. See Lowth v. Town of Cheektowaga, 82 F.3d 563, 572 (2d Cir. 1996).
Given the above circumstances, this Court holds as a matter of law that defendant had probable cause to arrest plaintiff for disorderly conduct and obstructing governmental administration. Alternatively, we hold that Deputy Campus is immune from suit by plaintiff for false arrest and false imprisonment, because it was reasonable for him to believe that he had probable cause.
C. Malicious Prosecution
We also hold, as a matter of law, that Deputy Campus is immune from suit for malicious prosecution, because plaintiff has failed to submit sufficient evidence to prove this claim. In considering a claim for malicious prosecution, we must first look to the elements of common law tort. See Singer, 63 F.3d at 116. To state a claim for malicious prosecution under New York law, plaintiff must prove (1) the initiation of a criminal proceeding against plaintiff; (2) the termination of the proceeding in plaintiff's favor; (3) lack of probable cause to commence the proceeding; and (4) actual malice as motivation for the proceeding. Murphy v. Lynn, 118 F.3d 938, 947 (2d Cir. 1997); Russell v. Smith, 68 F.3d 33, 36 (2d Cir. 1995); Broughton v. State, 37 N.Y.2d at 458, 373 N.Y.S.2d at 95. Additionally, the alleged violation must have been effectuated "pursuant to legal process." Singer, 63 F.3d at 116-17 (quoting Heck v. Humphrey, 512 U.S. 477, 484, 114 S. Ct. 2364, 2371, 129 L. Ed. 2d 383 (1994)). Ordinarily, "legal process" takes the form of an arrest warrant or arraignment. 63 F.3d at 117. A warrantless arrest made prior to an arraignment does not constitute "legal process." Id. In this case, process was not effected until plaintiff was arraigned. See Cook v. Sheldon, 41 F.3d 73, 79 (2d Cir. 1994). Accordingly, the facts surrounding plaintiff's allegedly unlawful arrest are irrelevant to the malicious prosecution claim. Accord Dzinanka v. County of Suffolk, 932 F. Supp. 59, 62 (E.D.N.Y. 1996).
It is undisputed that plaintiff was prosecuted, tried and acquitted for obstructing governmental administration and disorderly conduct. As previously stated, Deputy Campus had probable cause for arresting plaintiff on both counts, and, even if he did not have probable cause to arrest plaintiff, Deputy Campus is protected by the qualified immunity defense. See supra Part I.B. As with probable cause to arrest, probable cause to prosecute under New York law is "the knowledge of facts, actual or apparent, strong enough to justify a reasonable man in the belief that he has lawful grounds for prosecuting the defendant in the manner complained of." Rounseville v. Zahl, 13 F.3d 625, 629 (2d Cir. 1994). If there existed probable cause to arrest, probable cause upon arraignment is presumed absent a showing that intervening facts have dissipated probable cause. See Lowth, 82 F.3d at 571. The evidence submitted offers no evidence of any intervening fact that controverts probable cause. Therefore, we must presume that there remained probable cause when plaintiff was arraigned. Because plaintiff has failed to show the absence of probable cause, he has failed to sustain a claim for malicious prosecution.
Because there existed probable cause for defendant to arrest plaintiff, or alternatively, because defendant is shielded by qualified immunity, we grant summary judgment for defendant on the issue of individual liability.
III. Action Against Deputy Campus in His Official Capacity
Neither has plaintiff adduced a claim against Deputy Campus in his official capacity. In general, a claim against a defendant in his official capacity is just "another way of pleading an action against [the] entity of which the officer is an agent." Graham, 473 U.S. at 165. See also Will v. Michigan Dep't of State Police, 491 U.S. 58, 71, 105 L. Ed. 2d 45, 109 S. Ct. 2304 (1989) ("a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office"); Karcher v. May, 484 U.S. 72, 78, 98 L. Ed. 2d 327, 108 S. Ct. 388 (1987) ("the real party in interest in an official capacity suit is the entity represented and not the individual office holder"). A plaintiff states a claim against a municipality under section 1983 only where the complaint alleges, at least circumstantially, some unconstitutional action resulting from a policy or custom of the municipality. Monell v. Dep't of Social Services of City of New York, 436 U.S. 658, 690 n.55, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978); Zahra v. Town of Southold, 48 F.3d 674, 685 (2d Cir. 1995). Thus, in order to maintain an action against a defendant in his official capacity, a plaintiff should allege facts sufficient to prove a "custom or policy" of the municipality. See, e.g., McGriff v. N.Y.C. Commissioner, 1997 U.S. Dist. LEXIS 6181, 1997 WL 231181, No. 96 Civ. 1116, at *1 - *2 (S.D.N.Y. May 6, 1997) (dismissing complaint where plaintiff neglected to allege "municipal policy or practice" causing injury, thereby failing to state a claim against defendants in their official capacity); Gaughan v. Nelson, 1997 U.S. Dist. LEXIS 1942, 1997 WL 80549, No. 94 Civ. 3859, at *3 (S.D.N.Y. Feb. 26, 1997) (same); Gordon v. Katz, 934 F. Supp. 79, 84-85 (S.D.N.Y. 1995) (dismissing action against defendants in their official capacities where "interpreting complaint in its broadest sense, plaintiffs . . . failed to provide any evidence of a municipal custom [or] policy"), aff'd, 101 F.3d 1393 (2d Cir. 1996). See also Mathie v. Fries, 121 F.3d 808, 817-18 (2d Cir. 1997) (remanding where damages were awarded against sergeant both "individually and in his former official capacity," and plaintiff had not "purported to be making a claim against [county]").
Plaintiff has brought suit against defendant both "individually and as Deputy of the Dutchess County Sheriff's Department . . . . in his official capacity." Cplt. at 1. Nowhere, however, does plaintiff name Dutchess County as defendant nor plead any facts which even circumstantially suggest the county has a custom or policy which resulted in violation of plaintiff's rights. Because of this defect, plaintiff's claims against Deputy Campus in his official capacity must be dismissed. Cf. Ortiz v. Court Officers of Westchester County, 1996 U.S. Dist. LEXIS 13691, 1996 WL 531877, at *4 - *5 (S.D.N.Y. Sept. 19, 1996) (declining summary judgment to defendants where plaintiff did not plead municipal policy or custom; plaintiff "never officially named the [individual] defendants," and thereby brought suit against the officers solely "for their personal actions and conduct").
Because defendant Deputy Campus had probable cause to arrest plaintiff for obstructing governmental administration and disorderly conduct, or alternatively, because it was not unreasonable for him to believe that he had probable cause, we grant summary judgment to defendant on the issue of individual liability for false arrest, false imprisonment and malicious prosecution. Additionally, we grant summary judgment to defendant on the issue of official liability, because plaintiff has not stated a custom or policy of Dutchess County which resulted in violation of his rights. The complaint, therefore, is dismissed on claims one, two and three.
Dated: White Plains, New York
November 7, 1997
William C. Conner
Senior United States District Judge