The action against defendant Robert Collins was dismissed by order dated May 5, 1996. Defendants Briggs and Sypek were dismissed by stipulations filed January 24, 1997 and February 5, 1997, respectively. On March 28, 1997, defendants County of Essex, John McDonald, and Ronald Briggs moved for judgment on the pleadings, summary judgment, and/or to dismiss the complaint. The Court granted the motion for summary judgment in a memorandum, decision and order dated August 30, 1997.
The remaining defendants now move for judgment on the pleadings, or, in the alternative, summary judgment.
A. Standard for Summary Judgment
Fed. R. Civ. P. 12(c) states that "if, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment, and disposed of as provided in Rule 56." Both parties have submitted matters outside the pleadings. Based upon these submissions, and the fact that plaintiff was on notice that this motion was, in the alternative, for summary judgment, the Court sees no reason why it should not treat this motion as one for summary judgment.
Under Fed. R. Civ. P. 56 (c), if there is "no genuine issue as to any material fact . . . the moving party is entitled to a judgment as a matter of law . . . where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Matsushita Elec. Indus. Co. v. Zenith Radio Corp, 475 U.S. 574, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). The burden to demonstrate that no genuine issue of material fact exists falls solely on the moving party. Heyman v. Commerce and Indus. Ins. Co, 524 F.2d 1317 (2d Cir. 1975).
Once the moving party has met its burden, the non-moving party must come forward with specific facts showing there is a genuine issue for trial. Matsushita, 475 U.S. at 585-86. A dispute regarding a material fact is genuine "if evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Summary judgment is proper when reasonable minds could not differ as to the import of the evidence. Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir.), cert. denied, 502 U.S. 849, 116 L. Ed. 2d 117, 112 S. Ct. 152 (1991). The motion will not be defeated by a non-movant who raises merely a "metaphysical doubt" concerning the facts or who only offers conjecture or surmise. Delaware & H.R. Co. v. Conrail, 902 F.2d 174, 178 (2d Cir.1990), cert. denied, 500 U.S. 928 (1991)(quoting Matsushita, 475 U.S. at 586).
It is with this standard in mind that the Court addresses defendants' motion.
B. Plaintiff's § 1983 claims
1. Malicious Prosecution
Though plaintiff's malicious prosecution claim is a federal claim for violation of his Fourth Amendment right to be free from unreasonable seizures, see Albright v. Oliver, 510 U.S. 266, 274-75, 127 L. Ed. 2d 114, 114 S. Ct. 807 (1994); Singer v. Fulton County Sheriff, 63 F.3d 110, 116 (2d Cir.1995), cert. denied, 517 U.S. 1189, 134 L. Ed. 2d 779, 116 S. Ct. 1676 (1996), the elements of this cause of action are otherwise identical to a state law malicious prosecution claim. See Cook v. Sheldon, 41 F.3d 73, 79 (2d Cir. 1994); Raysor v. Port Authority of New York and New Jersey, 768 F.2d 34, 39 (2d Cir.1985), cert. denied, 475 U.S. 1027, 89 L. Ed. 2d 337, 106 S. Ct. 1227 (1986). Under New York State law, the elements of a malicious prosecution claim are: (1) the commencement or continuation of a criminal proceeding by defendants against plaintiff, (2) the termination of that proceeding in favor of the plaintiff, (3) the absence of probable cause for the criminal proceeding and (4) actual malice. See Colon v. City of New York, 60 N.Y.2d 78, 82, 468 N.Y.S.2d 453, 455 N.E.2d 1248 (1983); Pomento v. City of Rome, 231 A.D.2d 875, 647 N.Y.S.2d 604, 605 (4th Dep't 1996); Janendo v. Town of New Paltz Police Dep't, 211 A.D.2d 894, 621 N.Y.S.2d 175, 177 (3d Dep't 1995).
Defendants argue they are entitled to summary judgment since plaintiff can raise no issue of fact as to the lack of probable cause for his prosecution. As the Court noted, plaintiff was indicted by a Grand Jury, and those indictments withstood a pretrial motion to dismiss. "Once a suspect has been indicted . . . the law holds that the Grand Jury action creates a presumption of probable cause." Colon, 60 N.Y.2d at 82. "Moreover, a determination by a magistrate after a preliminary hearing to sustain a complaint and deny a plaintiff's motion to dismiss a pending criminal charge establishes a prima facie case of probable cause for the prosecution." Landsman v. Moss, 133 A.D.2d 359, 519 N.Y.S.2d 262, 263 (2d Dep't 1987); see Gisondi v. Town of Harrison, 120 A.D.2d 48, 507 N.Y.S.2d 419, 422 (2d Dep't 1986).
"The presumption may be overcome only by evidence establishing that the . . . 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, 60 N.Y.2d at 82. Plaintiff argues that defendants testified falsely before the Grand Jury or misrepresented certain facts forming the basis of the indictments. None of the evidence relied upon by plaintiff, however, is sufficient to create a factual issue as to the lack of probable cause.
As an initial matter, many of the alleged acts of misrepresentation or falsification of evidence before the Grand Jury to which plaintiff points are not actionable under § 1983. It is axiomatic that § 1983 provides a remedy only for violations of constitutional rights by a person acting under color of law. Parratt v. Taylor, 451 U.S. 527, 535, 68 L. Ed. 2d 420, 101 S. Ct. 1908, (1981), overruled on other grounds by Daniels v. Williams, 474 U.S. 327, 88 L. Ed. 2d 662, 106 S. Ct. 662 (1986). However, "[a] witness testifying in a state court proceeding--even if he is a state employee who has perjured himself--has not acted under color of state law for purposes of § 1983." McArthur v. Bell, 788 F. Supp. 706, 710 (E.D.N.Y. 1992); see Bennett v. Passic, 545 F.2d 1260, 1263-1264 (10th Cir.1976); Bates v. New York City Tran. Auth., 721 F. Supp. 1577, 1580 (E.D.N.Y. 1989). Thus, plaintiff's allegations that defendants perjured themselves or misled the Grand Jury simply are not actionable under § 1983.
Moreover, plaintiff grasps at the most circumstantial of straws in attempting to overcome the presumption. His claims of perjury or falsification simply are not supported by the evidence, even when that evidence is viewed in his favor. First, plaintiff argues that the figures Huntington arrived at as to the missing funds (to which she testified before the Grand Jury) did not account for free skiers, even though Huntington knew free skiers may have been present on a given trip. As defendants point out, however, neither Huntington nor anyone else trying to run the numbers could take free skiers into account because there was no record of the number of free skiers that participated in any trip. Plaintiff himself testified as to the free skiers before the Grand Jury, but provided no evidence of the number of free skiers, likely because he never kept any such records.
Plaintiff also argues Huntington's testimony before the Grand Jury was misleading. Huntington testified that free skiers were never mentioned to the Town Board or Youth Commission and expressed doubts about the impact such skiers would have on her figures. However, plaintiff points only to isolated references to "free skiers" in the minutes of Town Board meetings, all of which occurred prior to Huntington's tenure. Moreover, plaintiff himself hardly is in a position to dispute Huntington's assessment of the impact free skiers would have on the figures, given the fact that he has no records of the free skiers.
Plaintiff additionally attempts to create a fact issue by pointing to what he perceives to be conflicting testimony of defendants before the Grand Jury. For example, plaintiff contends Powvorznik testified before the Grand Jury that Town Board members questioned plaintiff about the shortfall in funds from the ski program, see Pl. Ex. F. at 14, but denied in his deposition that anyone spoke to plaintiff about the matter. See Powvorznik Dep. at 70. Plaintiff mischaracterizes Powvorznik's Grand Jury testimony. Powvorznik indicated at the Grand Jury hearing that Town Board members requested that plaintiff turn over certain records. See Pl. Ex. F at 15. He did not testify that the Town Board questioned plaintiff about the missing ski monies.
The remaining evidence relied upon by plaintiff to overcome the presumption is comprised of allegedly conflicting testimony at the Grand Jury hearing, perceived shortcomings in defendants' investigation, and plaintiff's speculative allegations regarding defendants' motives. None of the evidence is sufficient to raise a fact issue on the question of probable cause. Reliance on variations in testimony, as well as defendants' failure to pursue further avenues of investigation, as evidence of fraud, suppression of evidence, or perjury are insufficient to overcome the presumption of probable cause. See Lawson v. New York City Housing Auth., 223 A.D.2d 532, 636 N.Y.S.2d 126, 127 (2d Dep't 1996). The fact is, the presumption of probable cause arising from the indictments notwithstanding, plaintiff's well-documented and undisputed failure to account for Town money gave rise to ample probable cause.
For all of the foregoing reasons, defendants' motion for summary judgment is granted as to plaintiff's § 1983 claim for malicious prosecution.
2. Plaintiff's First Amendment Claim
Plaintiff also makes mention in his memorandum of law of a First Amendment claim. In support of this claim, plaintiff submits the minutes of a Town Board meeting from November 17, 1994, which read, in pertinent part, as follows:
Richard Hathaway was present to ask the Town Board for support for funds to transport youth to a seminar. He asked about the youth commission budget and stated there are funds there that could be used for this purpose. He told the board they could make one of two motions. The first to approve the money for the transportation of [sic] the second to tell Richard Hathaway to leave the board alone from no [sic] on. Marie Huntington stated she preferred the second option and moved to have Richard Hathaway leave the board alone. Virginia LaPointe seconded. 4 ayes. Andrew Powvorznik absent.
Virginia laPointe clarified . . . that the Town Board cannot give money to private charities.