The opinion of the court was delivered by: Siragusa, J.
Before the Court is the motion (Docket No. 41) by Defendants Keith
P. Green, M.J. Halpin, Phillip C. Povero, County of Ontario (hereinafter "Defendants") for summary judgment and Plaintiff's opposition thereto (Docket No. 50). For the reasons stated below, Defendants' motion is granted.
The following are taken from the parties' statements of fact filed pursuant to W estern District of New York Local Rule of Civil Procedure 56.1.*fn2 Plaintiff was arrested on June 2, 2006, and charged with violating several sections of the New York Penal Law. First, with respect to an incident that was alleged to have occurred on April 29, 2006, he was charged with violating section 135.60(1), Coercion in the Second Degree; section 120.00(1), Assault in the Third Degree; section 135.05, Unlawful Imprisonment; section 260.10; section 260.10, Endangering the W elfare of a Child. Second, with respect to an incident that was alleged to have occurred on May 30, 2006, he was charged with violating section 240.26 (1) harassment in the second degree; section 135.60(1), coercion in the second degree; and section 260.10, endangering the welfare of a child. Subsequently, on July 6, 2006, he was also charged with unlawful imprisonment in the second degree, in connection with the April 29, 2006 incident.
Plaintiff claims the arrest on June 2, 2006, was without probable cause, and that Defendants maliciously prosecuted him and conspired to arrest him all in violation of his federal constitutional rights pursuant to 42 U.S.C. § 1983. Plaintiff also alleges State law causes of action. In his complaint, Plaintiff states that, "All charges brought against Plaintiff by Defendants were dismissed by the various courts in which they were brought, between September, 2006 and January, 2007." (Compl. ¶ 43.) Defendants do not dispute this claim. (Def.s' Statement of Facts ¶ 5.)
In his complaint, Plaintiff has alleged causes of action against his wife, Shukla Chaudhuri, Ontario County Sheriff Phillip C. Povero ("Povero"), Deputy Sheriffs Keith P. Green ("Green") and M.J. Halpin ("Halpin"), as well as the County of Ontario. Plaintiff has plead 13 separate causes of action, which the Court interprets as follows:
1. Unlawful arrest against Green and Halpin.
2. False imprisonment against "individual defendants" citing 4th and 14th Amendments.
3. Unlawful arrest against Povero and Ontario County citing the 4th and 14th Amendments.
4. Malicious prosecution against Green.
5. Malicious prosecution against Green citing the 4th and 14th Amendments.
6. Malicious prosecution against Povero and Ontario County (as a result of Green's acts).
7. Malicious prosecution against Halpin.
8. Malicious prosecution against Halpin citing the 4th and 14th Amendments.
9. Malicious prosecution against Povero and Ontario County (as a result of Halpin's acts).
10. Conspiracy to falsely arrest against Green and Halpin.
11. Conspiracy to arrest against Povero and Ontario County.
12. Conspiracy to violate Plaintiff's civil rights by Green and Shukla.
13. Conspiracy to violate Plaintiff's civil rights against Povero and Ontario County.
The Court interprets the following causes of action as raising exclusively Federal constitutional claims: 2, 3, 5, 8. The Court interprets the conspiracy causes of action, 10--12, as raising both Federal and State claims. Finally, the Court interprets causes of action 1, 4, 6, 7 and 9 as raising exclusively State causes of action.
The standard for granting summary judgment is well established. Summary judgment may not be granted unless "the pleadings, depositions, answers to interroga-tories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). A party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). "[T]he movant must make a prima facie showing that the standard for obtaining summary judgment has been satisfied." 11 MOORE'S FEDERAL PRACTICE, § 56.11[a] (Matthew Bender 3d ed.). That is, the burden is on the moving party to demonstrate that the evidence creates no genuine issue of material fact. See Amaker v. Foley, 274 F.3d 677 (2d Cir. 2001); Chipollini v. Spencer Gifts, Inc., 814 F.2d 893 (3d Cir.1987) (en banc). W here the non-moving party will bear the burden of proof at trial, the party moving for summary judgment may meet its burden by showing the evidentiary materials of record, if reduced to admissible evidence, would be insufficient to carry the non-movant's burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322--23 (1986).
Once that burden has been met, the burden then shifts to the non--moving party to demonstrate that, as to a material fact, a genuine issue exists. Fed. R. Civ. P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). A fact is "material" only if the fact has some affect on the outcome of the suit. Catanzaro v. Weiden, 140 F.3d 91, 93 (2d Cir. 1998). A dispute regarding a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. In determining whether a genuine issue exists as to a material fact, the court must view underlying facts contained in affidavits, attached exhibits, and depositions in the light most favorable to the non-moving party. U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962). Moreover, the court must draw all reasonable inferences and resolve all ambiguities in favor of the non-moving party. Leon v. Murphy, 988 F.2d 303, 308 (2d Cir.1993); Anderson, 477 U.S. at 248-49; Doe v. Dep't of Pub. Safety ex rel. Lee, 271 F.3d 38, 47 (2d Cir. 2001), rev'd on other grounds Connecticut Dept. of Public Safety v. Doe, 538 U.S. 1, 123 S.Ct. 1160 (2003); International Raw Materials, Ltd. v. Stauffer Chemical Co., 898 F.2d 946 (3d Cir. 1990). However, a summary judgment motion will not be defeated on the basis of conjecture or surmise or merely upon a "metaphysical doubt" concerning the facts. Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991) (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)); Knight v. United States Fire Ins. Co., 804 F.2d 9 (2d Cir. 1986). Rather, evidentiary proof in admissible form is required. Fed. R. Civ. P. 56(e). Furthermore, the party opposing summary judgment "may not create an issue of fact by submitting an affidavit in opposition to a summary judgment motion that, by omission or addition, contradicts the affiant's previous deposition testimony." Hayes v. New York City, Department of Corrections, 84 F.3d 614, 619 (2d Cir. 1996).
To state a claim under 42 U.S.C. § 1983, "a plaintiff must allege (1) that the challenged conduct was attributable at least in part to a person acting under color of state law, and (2) that such conduct deprived the plaintiff of a right, privilege, or immunity secured by the Constitution or laws of the United States. Dwares v. City of New York, 985 F.2d 94, 98 (2d Cir. 1993) (citations omitted).
False Arrest, False Imprisonment and Malicious Prosecution
Section 1983 does not create any substantive rights, but is merely the enforcement mechanism for the rights guaranteed by the Constitution. Baker v. McCollan, 443 U.S. 137 (1979). The first step, therefore, is to identify the specific constitutional right allegedly infringed. Graham v. Connor, 490 U.S. 386, 394 (1989). "W here a particular Amendment 'provides an explicit textual source of Constitutional protection' against a particular sort of government behavior, 'that Amendment, not the more generalized notion of 'substantive due process,' must be the guide for analyzing these claims.'" Albright v. Oliver, 510 U.S. 266, 273 (1994) (citations omitted). "The common law tort of false arrest is cognizable under § 1983 only if it also encompasses a violation of federal statutory or constitutional law." Lennon v. Miller, 66 F.3d 416, 423 (2d Cir. 1995) (citations omitted). Although Plaintiff identified the Fourteenth Amendment as one source for his false arrest and malicious prosecution claims, six justices of the Supreme Court in Albright v. Oliver, 510 U.S. 266 (1994) agreed that the Fourth Amendment is the appropriate constitutional source for § 1983 claims in unlawful arrest cases, and a plurality found it to be the appropriate source in malicious prosecution cases as well. See, Lennon, Id. at 423 n.2.
It is well settled in this Circuit, that favorable termination of a criminal proceeding is not an element of a § 1983 false arrest claim and that the arresting officer's motive for making the arrest is irrelevant in assessing probable cause. If probable cause to arrest exists, the officer's underlying motive is irrelevant. See, Schwartz, 1A § 1983 Litigation Claims and Defenses (3d Ed. 1997) at 354; Singer v. Fulton County Sheriff, 63 F.3d 110 (2d Cir. 1995). Further, in Phillips v. Corbin, 132 F.3d 867 (2d Cir. 1997), the court determined that a grand jury's refusal to indict a plaintiff did not, as a matter of law, establish the lack of probable cause.
In Rohman v. New York City Transit Authority, 215 F.3d 208 (2d Cir. 2000), the Second Circuit discussed the elements for a constitutional malicious prosecution claim:
The elements of a malicious prosecution claim under New York law are "(1) that the defendant initiated a prosecution against the plaintiff, (2) that the defendant lacked probable cause to believe the proceeding could succeed, (3) that the defendant acted with malice, and (4) that the prosecution was terminated in the plaintiff's favor." Posr v. Court Officer Shield # 207 , 180 F.3d 409, 417 (2d Cir. 1999) (citing Ricciuti v. N.Y.C. Transit Auth. , 124 F.3d 123, 130 (2d Cir. 1997)); see also Colon v. City of New York , 60 N.Y.2d 78 (1983). In order to allege a cause of action for malicious prosecution under § 1983, Rohman must assert, in addition to the elements of malicious prosecution under state law, that there was (5) a sufficient post-arraignment liberty restraint to implicate the plaintiff's Fourth Amendment rights. See Murphy v. Lynn , 118 F.3d 938, 944-46 (2d Cir. 1997); see also Singer v. Fulton County Sheriff , 63 F.3d 110, 116-17 (2d Cir. 1995) (relying in part on common law and New York State malicious prosecution law in analyzing § 1983 malicious prosecution claim, and observing that "[t]he 'appropriate starting point' of the inquiry is the common law of torts" (quoting Carey v. Piphus , 435 U.S. 247, 258 (1978))).
The Fourth Amendment right implicated in a malicious prosecution action is the right to be free of unreasonable seizure of the person- i.e. , the right to be free of unreasonable or unwarranted restraints on personal liberty. A plaintiff asserting a Fourth Amendment malicious prosecution claim under § 1983 must therefore show some deprivation of liberty consistent with the concept of "seizure."
Singer , 63 F.3d at 116; see also Murphy , 118 F.3d at 944. "[S]ince the gist of a claim for malicious prosecution is abuse of the judicial process, a plaintiff pursuing such a claim under § 1983 must show that the seizure resulted from the initiation or pendency of judicial proceedings." Id .
In Weyant v. Okst, 101 F.3d 845 (2d Cir. 1996), the Second Circuit discussed the elements of a constitutional false arrest claim, writing:
Under New York law, a plaintiff claiming false arrest must show, inter alia , that the defendant intentionally confined him without his consent and without justification. See, e.g., Broughton v. State , 37 N.Y.2d 451, cert. denied , 423 U.S. 929 (1975). 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, see, e.g., Lennon v. Miller , 66 F.3d 416, 423 (2d Cir.1995), is substantially the same as a claim for false arrest under New York law, see, e.g., Singer v. Fulton County Sheriff , 63 F.3d 110, 118 (2d Cir.1995), cert. denied , 517 U.S. 1189 (1996); Hygh v. Jacobs , 961 F.2d 359, 366 (2d Cir.1992); Posr v. Doherty , 944 F.2d 91, 96 (2d Cir.1991). The existence of probable cause to arrest constitutes justification and "is a complete defense to an action for false arrest," Bernard v. United States , 25 F.3d 98, 102 (2d Cir.1994), whether that action is brought under state law or under § 1983. See, e.g., Broughton v. State , 37 N.Y.2d at 458 (under New York law, "[j]ustification may be established by showing that the arrest was based on probable cause"); Singer v. Fulton County Sheriff , 63 F.3d at 118 ("There can be no federal civil rights claim for false arrest where the arresting officer had probable cause.").
In Rutigliano v. City of New York, No. 08-0531-cv, 2009 W L 1174657 (2d Cir. May 1, 2009), the Second Circuit addressed a claim of false imprisonment, and wrote that,
The elements of a false imprisonment claim under federal law are substantially the same as under New York law. Russo v. City of Bridgeport , 479 F.3d 196, 204 (2d Cir.2007) ("As in the case of false arrest, we look to ... state law principles to determine the validity of [a plaintiff's] federal civil rights claim based on false imprisonment.").
Defendants respond-and the District Court held-that they cannot be held liable for false imprisonment in this case because probable cause is an affirmative defense to false imprisonment, and such probable cause existed here. We have held that "a finding of probable cause will defeat [New York] state tort claims for ... false imprisonment," Zanghi v. Incorporated Village of Old Brookville , 752 F.2d 42, 45 (2d Cir.1985) (internal quotation marks omitted), and hence § 1983 false imprisonment claims premised on New York law.
Rutigliano, 2009 W L 1174657, 1-2.
In Singer v. Fulton County Sheriff, 63 F.3d 110 (2d Cir. 1995), the Second Circuit in discussing a conspiracy claim raised under § 1983 stated:
In addition to the substantive claims of false arrest and malicious prosecution, Singer also alleged (under § 1983) that the defendants conspired to violate his constitutional rights. While substantive claims under § 1983 are normally brought only against state officials, "a § 1983 claim may be proved by showing that a person acting under color of state law ... collaborated or conspired with a private person ... to deprive the plaintiff of a constitutional right...." Fries v. Barnes , 618 F.2d 988, 990 (2d Cir. 1980) (citing Adickes v. S.H. Kress & Co. , 398 U.S. 144 (1970)); see also American Broadcasting Cos. v. ...