above, the Court cannot determine Dombroski's lack of involvement
as a matter of law.
Dombroski also argues that he is entitled to qualified immunity
with respect to this claim because the Second Circuit did not
determined that a cause of action existed for malicious abuse of
criminal process until its decision in Cook v. Sheldon, decided
approximately six months prior to the events at issue here.
41 F.3d 73 (2d Cir. 1994).
"Qualified immunity shields government officials from liability
in their individual capacity if `their conduct does not violate
clearly established statutory or constitutional rights of which a
reasonable person would have known.'" Lauro v. Charles,
219 F.3d 202, 214 (2d Cir. 2000) (quoting Harlow v. Fitzgerald,
457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). "In the
criminal context, malicious abuse of process is `by definition a
denial of procedural due process.'" Cook, 41 F.3d at 80 (citing
Jennings v. Shuman, 567 F.2d 1213, 1220 (3d Cir. 1977)). Thus,
the deprivation alleged here is of a constitutional nature. A
right is considered "clearly established" if: "(1) it is defined
with reasonable clarity; or (2) the Supreme Court or this Circuit
has affirmed its existence; or (3) a reasonable defendant would
understand from existing law that his acts were unlawful." Id.
Dombroski appears to argue that this Court's inquiry concerning
qualified immunity is limited to whether the Second Circuit has
affirmed the application of the tort of malicious abuse of
criminal process to a state actor's conduct prior to the events
at issue here. Such an argument misstates the applicable law, and
is contrary to Second Circuit precedent.
In Cook, the plaintiff alleged that law enforcement officers
employed a criminal process against him in retaliation for
encouraging another detainee to obtain legal counsel. The court
rejected defendant's defense of qualified immunity, and held that
if the plaintiff's "malicious abuse of process allegations are
true, then, the [defendants] violated his clearly established due
process rights." Cook, 41 F.3d at 80. Analogous to the claim in
Cook, the gravamen of plaintiff's complaint is that Hill and
Dombroski initiated and supported false charges against
plaintiff. As the Cook court held, "[p]rocedural due process
forbids the use of the legal process for wrongful purpose." Id.
at 80. Thus, it cannot be said as a matter of law that Dombroski
did not violate plaintiff's clearly established rights.
D. Mary Dickerson's Cause of Action
In the sixth cause of action Mary Dickerson, Anthony
Dickerson's wife, alleges a loss of consortium occasioned by the
constitutional violation allegedly suffered by her husband. It is
clear that Mrs. Dickerson has no separate constitutional claim,
but she has properly pleaded a claim under New York State law for
loss of consortium.
Although Mrs. Dickerson has not established an independent
basis for federal jurisdiction, it is now clear under the
provisions of 28 U.S.C. § 1367(a) that this Court has authority
to exercise supplemental jurisdiction over her claim. See Kirton
v. Hassel, 1998 WL 146701, at *9 (E.D.N.Y. March 25, 1998);
McCray v. Holt, 777 F. Supp. 945, 947-48 (S.D.Fla. 1991).
For the foregoing reasons, defendant Dombroski's motion for
summary judgment (Dkt.# 25) is denied.
IT IS SO ORDERED.
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