Alternatively, "malice may be shown by proving the prosecution
complained of was undertaken from improper or wrongful motives or
in reckless disregard of the rights of the plaintiff." Pinsky v.
Duncan, 79 F.3d 306, 313 (2d Cir. 1996) (citations omitted).
Here, Lewis' threat to Noga that he better "watch out" is
sufficient. Such evidence suffices to satisfy this requirement
and, thus, summary judgment on this ground is denied.
4. Prosecution Terminated in Noga's Favor
"[W]hen the grounds for the dismissal of a criminal proceeding
are unclear, New York courts consider whether the proceeding was
terminated in plaintiff's favor to be a question of fact that
prevents summary judgment." Rounseville, 13 F.3d at 629. Here,
the facts surrounding the termination are in dispute, thus
precluding summary judgment on this ground. See id. Lewis
contends that the dismissal was not in Noga's favor because there
was no explanation. Noga contends that his case was dismissed
when his attorney informed the court about the self-help
provision in the lease. Stewart Aff.(Docket No. 29) at ¶ 6.
Additionally, Noga's criminal defense attorney, Joseph L. Litz,
moved for dismissal of the burglary prosecution on the basis that
there was insufficient proof and that the informations were
defective as a matter of law and on its face. Noga Motion to
Dismiss (Docket No. 31, Ex. A) at ¶ C, D. The prosecutor also
consented to the dismissal. Litz Aff. (Docket No. 30) at ¶ 3.
This raises the question whether the prosecutor had reasonable
grounds to proceed. See id.; Murphy v. Lynn, 118 F.3d 938, 949
(2d Cir. 1997). Because the facts surrounding the dismissal are
in dispute, summary judgment on this ground is denied.
5. Post-Arraignment Liberty Restraint
Lewis does not contest the fact that Noga suffered a
deprivation of liberty in violation of the Fourth Amendment.
Lewis Mem. of Law (Docket No. 27) at 17. Nonetheless, the facts
clearly demonstrate that Noga suffered post-arraignment liberty
restraints. Noga was incarcerated for twenty-four hours after his
arrest and then placed on pre-trial supervision. Noga Aff.
(Docket No. 31) at ¶ 5. Noga could not leave New York State, thus
restricting his fundamental right to interstate travel. Noga
appeared in court two to three times while the charges were
pending. Id. The court also rescinded Noga's pistol permit.
Id. These facts suffice to implicate a violation of Noga's
Fourth Amendment rights. See Rohman, 215 F.3d at 216.
D. Malicious Prosecution Claim Under New York Law
There is a one year statute of limitation for a malicious
prosecution claim under New York law. The police filed formal
charges against Noga on February 20, 1998 and the case was
dismissed on October 17, 1998. The original complaint in this
case was filed on June 19, 1999 naming "John Doe" as a defendant.
The amended complaint naming Lewis as the "John Doe" was filed on
August 21, 2000. Docket Nos. 1, 13.
Relation back for the state malicious prosecution claim is not
allowed under either federal or state law. Under Fed. Rule Civ.
P. 15(c), relation back is not allowed when "the newly-added
defendants were not named originally because the plaintiff did
not know their identities." Barrow v. Wethersfield Police
Dep't, 66 F.3d 466, 470 (2d Cir. 1995). Here, Noga conceded he
did not know the identity of "John Doe" until after the statute
of limitations passed. Noga Mem. of Law (Docket No. 32) at 17.
Thus, the malicious
prosecution claim under New York law cannot relate back to
defendant Lewis under the federal rules.
Under New York law, relation back is allowed if the plaintiff
meets the following three prong test: (1) both claims arose out
of the same conduct, transaction or occurrence, (2) the new party
is `united in interest' with the original defendant . . ., and
(3) the new party knew or should have known that but for a
mistake by plaintiff as to the identity of the proper parties,
the action would have been brought against him as well. Buran v.
Coupal, 87 N.Y.2d 173, 178, 638 N.Y.S.2d 405, 661 N.E.2d 978
(1995); see also, N.Y.C.P.L.R. § 203 (McKinney Supp. 2001). To
satisfy the second prong, "the interest of the parties in the
subject-matter is such that they stand or fall together and that
the judgment against one will similarly affect the other."
Walker v. Agro, No. 96 Civ. 5414, 2000 WL 744536, at *4
(E.D.N.Y. May 19, 2000). Noga presents no argument regarding
Lewis' interests being united with the other defendants other
than the fact that both Lewis and Potenza are Schenectady police
officers. Having the same employer is inadequate to establish
that Lewis' interests were united with the other defendants'
interests. There is no evidence to suggest that Lewis' interests
will stand or fall with the other defendants, but there is
evidence to show that Lewis' interests are inapposite to the
other defendants' interests. Furthermore, there is no evidence
presented that Lewis should have known that but for a mistake by
Noga as to his identity, this action would have been brought
against him. Therefore, summary judgment must be granted as to
the malicious prosecution claim under New York law.
WHEREFORE, for the reasons set forth above, it is hereby
ORDERED that Defendant Lewis' motion for summary judgment is
DENIED as to the state and federal unlawful arrest claims and
the federal malicious prosecution claim and GRANTED as to the
state malicious prosecution claim, and
IT IS FURTHER ORDERED that the Clerk of the Court serve a
copy of this order, by regular mail, upon all parties to this
IT IS SO ORDERED.
*fn2 42 U.S.C. § 1983 provides, in pertinent part, that:
[e]very person who, under color of any statute,
ordinance, regulation, custom or usage, of any State
or Territory or the District of Columbia, subjects,
or causes to be subjected any citizen of the United
States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges,
or immunities secured by the Constitution and laws,
shall be liable to the party injured in an action at
law, suit in equity, or other proper proceeding for
redress. . . .
*fn3 Defendant Lewis also argues for summary judgment on the
ground of qualified immunity. Qualified immunity is allowed for a
police officer when it was "`objectively reasonable' for him to
believe that his actions were lawful at the time of the
challenged act." Lennon v. Miller, 66 F.3d 416, 420 (2d Cir.
1995). Viewing the evidence in the light most favorable to Noga,
a jury could find that Lewis' actions and failure to act were
objectively unreasonable and, thus, Lewis is not entitled to
summary judgment. See id. at 420-21.