The opinion of the court was delivered by: William M. Skretny United States District Judge
DECISION AND ORDER AMENDED
Plaintiff Matheis's suit was removed to federal court on January 4, 2002. Plaintiff asserted claims pursuant to 42 U.S.C. § 1983 for malicious prosecution (against Defendants Fritton and Niagara County) and for alleged violations of the 5th, 6th and 14th Amendments (against Fritton only). Defendants filed a motion for summary judgment, which Hon. John T. Elfvin denied on June 10, 2003. (Docket No. 22). Defendants then appealed the District Court's decision to the United States Court of Appeals for the Second Circuit, which dismissed in part, vacated in part, reversed in part, and remanded. See Matheis v. Fritton, 128 Fed.Appx. 787 (2d Cir. 2005) (summary order).
This case was reassigned to the undersigned on October 17, 2007, after Judge Elfvin elected to take inactive senior judge status. Presently before the Court is Plaintiff's Motion to Amend the Complaint.*fn1 (Docket No. 27). This Court grants Plaintiff's motion for the reasons stated in the discussion that follows.
Matheis is an auto mechanic. His place of business was burglarized on July 28, 1997. He filed an insurance claim in excess of $22,000 and received the insurance check in November 1997. Matheis then purchased replacement tools between April 18, 1998, and May 5, 1998. On July 29, 1998, Deputy Sheriff Fritton executed a search warrant and seized Matheis's tools--despite Matheis's proffer of receipts. Matheis further claims that he offered the receipts at his arraignment in Fritton's presence and that his criminal defense attorney, David Wendt, Esq., repeatedly offered the receipts to Fritton and the Niagara County District Attorney's Office.*fn2
Fritton testified before a grand jury on November 12, 1998. Matheis claims that Fritton's grand jury testimony was knowingly false and misleading in that he testified that
(1) he had recovered items from Matheis that were included in Matheis's insurance claim and (2) in response to a grand juror's question whether Matheis had "any receipts that he purchased this stuff within the last year," Fritton responded, "not that he's provided to me." Grand Jury Tr. at 37. Matheis was indicted for insurance fraud and possession of a gambling device. The insurance fraud charges were subsequently dismissed. Although Matheis pled guilty to possession of a gambling device, such plea was subsequently nullified on appeal when Matheis showed that the device he possessed--a pachinko machine--was not illegal. (Plaintiff's Statement Under Local Rule 56, Docket No. 18).
Matheis raised § 1983 claims with respect to both his prosecution for possession of a gambling device and insurance fraud. A plaintiff asserting a civil rights claim must allege infringement of a federal right. Baker v. McCollan, 443 U.S. 137, 140, 99 S.Ct. 2689, 61 L.Ed. 2d 433 (1979). Section 1983 provides, in pertinent part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State, 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 . . . .
42 U.S.C. § 1983 . "Section 1983 'is not itself a source of a substantive rights,' but merely provides 'a method for vindication of federal rights elsewhere conferred.'" Albright v. Oliver, 510 U.S. 266, 271, 114 S.Ct. 807, 127 L.Ed. 2d 114 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144 n. 3, 99 S.Ct. 1865, 61 L.Ed. 2d 433 (1979)). "The first step in any such claim is to identify the specific constitutional right allegedly infringed." Albright, 510 U.S. at 271 (citing Graham v. Connor, 490 U.S. 386, 394, 109 S.Ct. 1865, 104 L.Ed. 2d 443 (1989); and Baker, 443 U.S. at 140).
Defendant Fritton moved for and was denied summary judgment on the grounds of absolute and/or qualified immunity. (Docket No. 22). Fritton appealed those rulings, among others.*fn3 (Docket No. 23).
The Second Circuit noted on appeal that in ruling on Fritton's immunity claims "the district court should have first determined whether Matheis had sufficiently alleged the violation of a clearly established constitutional right." Matheis, 128 Fed.Appx. at 790. After noting that the complaint was not clear as to whether Matheis had sufficiently alleged such a violation, the Second Circuit remanded with directions for this Court to follow a two-part inquiry. First, this Court is to consider whether Matheis sufficiently alleged the violation of a clearly established constitutional right. In the event this ...