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SASSOWER v. CITY OF WHITE PLAINS

February 1, 1998

DORIS L. SASSOWER, Plaintiff, against CITY OF WHITE PLAINS, COUNTY OF WESTCHESTER, PATRICK GLEASON, individually and as Chief of Police of the City of White Plains, POLICE OFFICER DENNIS KEIDONG, in his individual and official capacities, POLICE OFFICER BRIAN BUCHANAN, in his individual and official capacities, POLICE OFFICER ROBERT GRAHAM, in his individual and official capacities, AUXILIARY POLICE OFFICER HOWIE COHEN, in his individual and official capacities, LIEUTENANT DONALD CARLTON, in his individual and official capacities, LIEUTENANT TOM WATSON, in his individual and official capacities, JOSEPH VAN STIPPEN, LE PASTIS, LTD. d/b/a Le Pastis Restaurant and Bistro Pastis, and "JOHN DOES" Nos. 1-10, Defendants.


The opinion of the court was delivered by: LOWE

 MARY JOHNSON LOWE, U.S.D.J.

 This action arises out of the 1986 arrest and prosecution of Plaintiff Doris Sassower by the Defendants. Plaintiff brings various claims under 42 U.S.C. § 1983 ("Section 1983") and state law, including a Section 1983 claim for malicious prosecution. The moving Defendants, City of White Plains, Patrick Gleason, Police Officers Dennis Keidong, Vincent Finnegan, Brian Buchanan, and Robert Graham, and Lieutenants Donald Carlton and Tom Watson (collectively, the "Municipal Defendants") now move for summary judgment on Plaintiff's Section 1983 malicious prosecution claim under Federal Rule of Civil Procedure 56. For the reasons discussed below, Municipal Defendants' motion is denied.

 BACKGROUND *fn1"

 The Court assumes familiarity with the facts of this case, see Sassower v. City of White Plains, 1995 U.S. Dist. LEXIS 4887, No. 89 Civ. 1267, 1995 WL 222206 (S.D.N.Y. April 13, 1995), and will briefly summarize the facts pertinent to this motion. On February 25, 1986, Plaintiff and two acquaintances dined at Le Pastis, a restaurant in the City of White Plains. At the end of the meal, a dispute arose between the restaurant management and Plaintiff's group. Plaintiff left the restaurant after only a portion of the bill was paid. White Plains City police officers then arrested Plaintiff for resisting arrest and disorderly conduct. That night, Plaintiff was released from custody and given a desk appearance ticket directing her to appear in court on March 3, 1986.

 On February 27 and 28, 1986, defendant police officers filed misdemeanor informations against Plaintiff, charging her with resisting arrest, disorderly conduct, and theft of services. On March 3, 1986, Plaintiff was arraigned on those charges. It is undisputed that Plaintiff was not required to post bail. In September 1986, after a three-day trial, a jury convicted Plaintiff of theft of services and resisting arrest, but acquitted her on the disorderly conduct charge. In 1988, the Appellate Term of the Supreme Court of New York vacated both of Plaintiff's convictions. People v. Sassower, No. 88-142, slip. op. at 1-2 (N.Y. App. Term Nov. 21, 1988).

 Plaintiff subsequently instituted this civil suit, claiming, among other things, that the Municipal Defendants maliciously prosecuted her for disorderly conduct under color of state law in violation of her rights under the First, Fourth, Fifth, Eighth, and Fourteenth Amendments ("Malicious Prosecution Claim"). Municipal Defendants now move for summary judgment on the Malicious Prosecution Claim, arguing that Plaintiff cannot satisfy the post-arraignment deprivation of liberty element of the claim.

 Plaintiff asserts that she suffered a post-arraignment deprivation of liberty because her right to travel was "restricted" during the criminal proceedings. Pl.'s Decl. P 2. Plaintiff explains that, in order to appear in court, she had to "cut short" a "planned trip to Arizona." Id. ; 5/2/86 Tr. (Judge Holden, Jr.) at 21-23. Defendants deny that Plaintiff's right to travel was restricted, claiming that she traveled to Arizona while the criminal charges were pending. Defs.' Rule 56.1 Statement P 5. Plaintiff also attests that the criminal charges "had a profound effect on her professional life" and prevented her from practicing law. Pl.'s Aff. P 22.

 DISCUSSION

 I. Summary Judgment Standard

 Summary judgment may be granted when "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); see Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-87, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). Accordingly, the Court's task is not to "weigh the evidence and determine the truth of the matter[,] but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). To create an issue for trial, there must be sufficient evidence in the record favoring the party opposing the motion to support a jury verdict in that party's favor. Id. at 249-50. "Summary judgment will not lie if . . . the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248.

 II. Malicious Prosecution Claim

 In Albright v. Oliver, 510 U.S. 266, 274, 127 L. Ed. 2d 114, 114 S. Ct. 807 (1994) (plurality), a plurality of the Supreme Court held that, in order to maintain a Section 1983 claim for malicious prosecution, a plaintiff must establish a deprivation of liberty under the Fourth Amendment. The Supreme Court recognized that Section 1983 "is not itself a source of substantive rights, but merely provides a method of vindicating federal rights elsewhere conferred." Id. at 271. The plurality, however, decided that the Fourteenth Amendment's right to substantive due process is not the proper source of constitutional protection for a Section 1983 claim for malicious prosecution. Id.

 To establish a violation of Fourth Amendment rights, a plaintiff must show a pretrial deprivation of liberty. Id. at 274. The Albright plurality, however, never addressed what type of liberty deprivation would satisfy the constitutional injury requirement for malicious prosecution claims because the plaintiff had failed to assert a Fourth Amendment violation. Id. at 271. However, Justice Ginsburg, in a concurring opinion, articulated the type of constitutional injuries that might support a malicious prosecution claim under the Fourth Amendment. See id. at 279 (Ginsburg, J., concurring). Justice Ginsburg asserted ...


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