The opinion of the court was delivered by: McAVOY, Chief Judge.
MEMORANDUM-DECISION & ORDER
Plaintiffs Howard and Katherine Pritzker commenced this action
against defendants pursuant to 42 U.S.C. § 1983 alleging
claims of malicious prosecution, excessive force, and denial of
due process of law and the right of privacy. By Memorandum —
Decision & Order dated October 30, 1998 ("MDO"), familiarity
with which is assumed, the Court granted, in part, defendants'
motion pursuant to FED.R.CIV.P. 12(b)(6). Pritzker v. City of
Hudson, 26 F. Supp.2d 433 (N.D.N.Y. 1998). The only remaining
claims are Howard Prtizker's ("plaintiff") first cause of action
against James L. O'Neil and Paul Kisselbrack (malicious
prosecution) and the second cause of action against Anthony Moon
(excessive use of force). The parties have completed discovery
and defendants now move pursuant to FED.R.CIV.P. 56 seeking
dismissal of the Complaint in its entirety.
The Court will not now recite the full set of facts previously
detailed in the MDO. Pritzker, 26 F. Supp.2d at 437-38. The
relevant facts pertaining to this motion are as follows and,
because this is a motion for summary judgment by the defendants,
are presented in the light most favorable to plaintiff. See
Ertman v. United States, 165 F.3d 204, 206 (2d Cir. 1999).
In 1988, plaintiff cooperated with law enforcement officials
regarding the investigations of certain members of the City of
Hudson Police Department ("HPD"). Plaintiff alleges that certain
members of the HPD became aware of his cooperation and instituted
a campaign of retaliation against him.
Plaintiff alleges that the campaign of retaliation began on
January 10, 1990, when Defendant James L. O'Neil ("O'Neil"), a
detective with the HPD, signed two misdemeanor complaints
alleging that plaintiff bad made false statements violating
N YPENAL LAW § 210.45. O'Neil's complaints charged that
plaintiff falsely signed a deposition stating that he was the
victim of a theft. Plaintiff further alleges that O'Neil obtained
a copy of plaintiffs military records "[i]n order to verify Mr.
Pritzker's military record, and establish his credibility." See
Complaint, § 12. The Army Reserve Personnel Center in St.
Louis, Missouri, sent a copy of plaintiffs military records to
the HPD. The Assistant District Attorney withdrew the false
statement charges in April 1990, and the Hudson City Court
dismissed the charges on April 17, 1990.
In April 1990, Defendant O'Neil signed a new complaint alleging
that Pritzker violated Hudson City Code § 78-31 by turning in
a false alarm. This new complaint was based upon the same
underlying conduct as the false statement charges and was signed
by O'Neil after he learned that the District Attorney's office
declined to prosecute the false statement charges. The Hudson
City Court dismissed this complaint on September 24, 1990.
Plaintiff asserts that, upon the favorable termination of these
charges against him, defendants were required to seal or return
plaintiffs military records in accordance with N.Y.CRIM.PRO.LAW
§ 160.50 ("CPL § 160.50"). In fact, the City Court signed
an order requiring defendants to return plaintiffs military
records. However, defendants failed to do so.
Thus, O'Neil prepared an incident report, reexamined plaintiffs
military records, requested a copy of the transcript of
plaintiffs trial testimony, and began a preliminary investigation.
O'Neil concluded that a felony had been committed and that
further investigation was warranted. Alter three weeks of
preliminary investigation, O'Neil turned the matter over to the
detective division with instructions that they "[s]hould follow
up on it [and that] [t]here were still a lot of open leads on it."
The detective division assigned the case to Defendant Paul
Kisselbrack pursued the investigation, including obtaining a
copy of plaintiffs trial transcript and having plaintiffs
military records reviewed by an Army Major in Latham, New York
(the "Major"). According to Kisselbrack, the Major advised that
there was no way that plaintiff was in the Green Berets or that
he served more than ten months in Vietnam. On January 8, 1997,
Kisselbrack signed a felony complaint charging plaintiff with
perjury in the first degree in violation of N.Y.PENAL LAW §
210.15. The complaint specifically charged that:
[On February 13, 1996] at the Columbia County
Courthouse in the City of Hudson, N Y
[plaintiff] did testify under oath as a
witness in a civil trial, that he had been in
the Special Forces Green Beret and had served
4 1/2 years of active duty in Vietnam.
Military records show that the defendant did
NOT serve any time in the Green Beret Special
Forces and in fact spent ONLY 10 MONTHS in
Vietnam. (Emphasis in original).
Kisselbrack then presented the felony complaint to a Hudson City
Court judge. Subsequently, Kisselbrack had several meetings with
the detective sergeant and the chief of police regarding the
appropriate way to pursue the case against plaintiff. At least
one of the discussions pertained to the information Kisselbrack
received from the Major. Kisselbrack ultimately prepared a
warrant for plaintiffs arrest, which was signed by a Hudson City
Court judge on January 24, 1997.
The detective sergeant apparently instructed Kisselbrack to
hold the warrant because defendants were attempting to obtain
further verification of plaintiffs military records from the Army
Reserve Personnel Center in St. Louis. Kisselbrack ultimately was
told to execute the warrant. Accordingly, Kisselbrack telephoned
plaintiffs attorney and advised ...