B. False Arrest and Unlawful Imprisonment Claim
Defendant Sweet seeks summary judgment dismissing the plaintiff's false
arrest and unlawful imprisonment claim against him on the ground that
plaintiff's first arrest was supported by probable cause. "A § 1983
claim for false arrest, resting on the Fourth Amendment right of an
individual to be free from unreasonable seizures, including arrest
without probable cause is substantially the same as a claim for false
arrest under New York law." Weyant v. Okst, 101 F.3d 845, 852 (2d Cir.
1996) (citation omitted). Under New York law, in order to assert a false
arrest claim, a plaintiff must demonstrate that "the defendant
intentionally confined him without his consent and without
justification." Id. "The existence of probable cause to arrest
constitutes justification and `is a complete defense to an action for
false arrest.'" Id. (quoting Bernard v. United States, 25 F.3d 98,102 (2d
Probable cause to arrest exists "when the arresting officer has
knowledge or reasonably trustworthy information sufficient to warrant a
person of reasonable caution in the belief that an offense has been
committed by the person to be arrested." Singer v. Fulton County
Sheriff, 63 F.3d 110, 119 (2d Cir. 1995) (internal quotations omitted).
In order to determine if probable cause existed, "we consider the facts
available to the officer at the time of the arrest." Ricciuti v. N.Y.C.
Transit Auth., 124 F.3d 123, 128 (2d Cir. 1997).
The issue of whether an arresting officer had probable cause to make
the arrest may be determined as a matter of law if "the pertinent events
and the knowledge of the officers" are not in dispute. Weyant, 101 F.3d
at 852. If, however, the determination of whether probable cause existed
is "predominately factual in nature," such a decision should be made by a
jury. Moore v. Comesanas, 32 F.3d 670, 673 (2d Cir. 1994).
The defendants argue that based upon the fact that Officer Sweet took
all the information he had and presented it to a magistrate who then
issued a warrant, probable cause existed. However, the factual
circumstances leading up to plaintiff's arrest are sharply disputed by
the parties. The plaintiff claims that upon being arrested, he presented
his arresting officers with a certificate of conviction that showed he
had been convicted of a misdemeanor not a felony. Further, a question of
fact exists concerning whether Officer Sweet had knowledge of the fact
that plaintiff was only convicted of a misdemeanor prior to the plaintiff
being brought into custody. Viewing the disputed facts in a light most
favorable to the non-moving plaintiff, the defendant's motion for summary
judgment with respect to the plaintiff's false arrest and unlawful
imprisonment claim must be denied.
C. Abuse of Process and Malicious Prosecution Claim
The elements of a cause of action for malicious prosecution under both
Section 1983 and state law are: (1) the initiation and continuation of a
criminal proceeding by the defendant against the plaintiff; (2) lack of
probable cause for commencing the criminal proceeding; (3) actual malice;
and (4) the termination of the proceeding in favor of the accused.*fn4
Cook v. Sheldon, 41 F.3d 73, 79 (2d Cir. 1994).*fn5 Viewing the evidence
in the light most favorable to Thompson, a jury could
conclude that he has a valid claim for malicious prosecution.
As with a claim for false arrest, the absence of probable cause is a
necessary element of a claim for malicious prosecution. Again, defendant
argues that because there was a warrant for plaintiff's arrest, this
claim must be dismissed. Thompson argues that Officer Sweet's receipt of
exonerating information dissipated whatever cause there may have been at
the time of the issuance of the warrant.
A police officer can be liable for a claim of malicious prosecution
where the officer had probable cause to effect an arrest, but discovered
exculpatory evidence prior to the formal charge of the arrestee by the
prosecutor or grand jury. See Lowth v. Town of Cheektowaga, 82 F.3d 563,
571-72 (2d Cir. 1996).
Notwithstanding the applicability of Lowth to the instant case, other
cases which have considered the issue of a police officer's liability for
malicious prosecution have focused upon the "chain of causation" between
the conduct of the officer and the ongoing criminal prosecution. See
Townes v. City of New York, 176 F.3d 138, 147 (2d Cir. 1999). Under this
analysis, once an arrestee is formally charged, the arresting officer is
generally no longer responsible for the prosecution, and the chain of
causation between the officer's conduct and the claim for malicious
prosecution is broken by the intervening independent actions of the court
or prosecutor. Id.
However, the Second Circuit has noted that this result is not
inevitable. Where there is evidence that the officer misled or provided
misleading information, the officer's subsequent failure to disclose
exculpatory evidence can support a cause of action for malicious
prosecution. Id. See also Zahrey v. Coffey, 221 F.3d 342, 351-52 (2d Cir.
2000) ("Some courts have sought to resolve the [chain of causation issue]
by considering the intervening act of a decision-maker not to be an
exercise of truly independent judgment, and therefore reasonably
foreseeable, if caused by pressure or misleading information provided by
the actor whom the plaintiff seeks to hold liable.") (citing, inter
alia, Townes, 176 F.3d at 147).
In this case, there are allegations that, among other things, Officer
Sweet provided misleading information to the officers who arrested the
plaintiff and testified at his arraignment. So a reasonable jury could
conclude that, as the officer who commenced the prosecution, Officer
Sweet's intentional withholding of information that completely exonerated
the plaintiff constituted an attempt to mislead. Where, as here, there is
dispute as to whether Officer Sweet knew that plaintiff had only been
convicted of a misdemeanor, or whether he intentionally withheld
information of Thompson's innocence, there is sufficient basis to submit
the question of causation to a jury.
D. Qualified Immunity
Officer Sweet seeks qualified immunity with respect to plaintiff's
claims of false arrest, unlawful imprisonment and malicious prosecution.
"The doctrine of qualified immunity shields police officers acting in
their official capacity from suits
for damages under 42 U.S.C. § 1983,
unless their actions violate clearly-established rights of which an
objectively reasonable official would have known." Thomas v. Roach,
165 F.3d 137, 142 (2d Cir. 1999) (citing Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982); Ricciuti, 124 F.3d at 127). A decision in favor
of a public official based on qualified immunity is appropriate if (1)
the conduct attributed to him is not prohibited by federal law, or if
such conduct is so prohibited; (2) that the plaintiff's right not to be
subjected to such conduct was unclearly established at the time of the
defendant's actions; or (3) if it was not objectively reasonable for the
official to know that his conduct violated that right. See X-Men Sec.,
Inc. v. Pataki, 196 F.3d 56, 65-66 (2d Cir. 1999); see also Thomas, 165
F.3d at 142-43. "The objective reasonableness test is met . . . if
`officers of reasonable competence could disagree' on the legality of the
defendant's actions." Thomas, 165 F.3d at 143 (quoting Lennon v. Miller,
66 F.3d 416, 420 (2d Cir. 1995) (quoting Malley v. Briggs, 475 U.S. 335,
In the present case, due to the significant disparities in the facts as
alleged by both sides, and the fact that the facts must be viewed in
light most favorable to the non-moving plaintiff, Officer Sweet is not
entitled to qualified immunity as a matter of law. Whether or not
questions of fact on this issue are to be presented to a jury must await
trial. See Golino v. City of New Haven, 950 F.2d 864, 871 (2d Cir.
1991); see also Warren v. Dwyer, 906 F.2d 70, 74 (2d Cir. 1990) (stating
that, where factual issues exist prior to trial, defense of qualified
immunity may be raised at the close of plaintiff's case on a motion for a
directed verdict and on a subsequent motion for judgment notwithstanding
the verdict)(citing Krause v. Bennett, 887 F.2d 362, 365 (2d Cir.
E. Intentional Infliction of Emotional Distress Claim*fn6
In New York, "intentional infliction of emotional distress is a theory
of recovery that is to be invoked only as a last resort," when
traditional tort remedies are unavailable. See EEOC v. Die Fliedermaus,
L.L.C., 77 F. Supp.2d 460, 472 (S.D.N.Y. 1999) (quoting McIntyre v.
Manhattan Ford, Lincoln-Mercury, Inc., 256 A.D.2d 269, 682 N.Y.S.2d 167,
169 (1st Dep't 1998). Accordingly, "[n]o intentional infliction of
emotional distress claim will lie where the conduct underlying the claim
falls within the ambit of traditional tort liability." Hansel v.
Sheridan, 991 F. Supp. 69, 75 (N.D.N.Y. 1998). In the instant case, since
the conduct complained of is encompassed in plaintiff's claims for
malicious prosecution, false arrest and unlawful imprisonment,
plaintiff's claim for intentional infliction of emotional distress must be
Plaintiff claims that Officer Sweet was negligent in his failure to
follow through more thoroughly with his investigation prior to filing the
first set of charges against Thompson. Plaintiff argues that if Officer
Sweet had exercised
reasonable care in his investigation he would have
discovered that Thompson was only convicted of a misdemeanor and not a
felony. However, it is "of no consequence that a more thorough or more
probing investigation might have cast doubt upon" the arrestee's
culpability. United States v. Manley, 632 F.2d 978, 984 (2d Cir. 1981).
Accordingly, plaintiff's cause of action for negligence must be
G. Other Constitutional Claims
Plaintiff asserts that Officer Sweet violated his right to effective
assistance of counsel because he withheld exonerating information from
his attorney. This claim must fail because plaintiff and his attorney
knew that he was only convicted of a misdemeanor and had the opportunity
to present that information in court.
The Eighth Amendment prohibits cruel and unusual punishment against
prisoners. Plaintiff claims that he was subject to cruel and unusual
punishment as a result of his twelve day incarceration. However, even
viewing the facts in the light most favorable to plaintiff, there is no
allegation that Officer Sweet ever had contact with the plaintiff in
jail. Accordingly, this claim must also fail.
Questions of fact preclude summary judgment with respect to the
plaintiff's § 1983 claims for false arrest and unlawful imprisonment
and malicious prosecution. These disputed questions of fact also preclude
a determination that Officer Sweet is entitled to qualified immunity as a
matter of law. Finally, the defendant's motion with respect to
plaintiff's state law claims for intentional infliction of emotional
distress, negligence, and defamation, as well as his remaining
constitutional law claims must be granted.
Accordingly, it is
ORDERED that the motion for summary judgment by defendant Daniel B. Sweet
is GRANTED in part and DENIED in part:
1. The motion is GRANTED to the extent that
a. Plaintiff's constitutional claims for cruel and
unusual punishment and ineffective assistance
of counsel are DISMISSED; and
b. Plaintiff's state law claims for intentional
infliction of emotional distress, negligence
and defamation are DISMISSED;
2. The motion is DENIED in all other respects.