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modifying prior decision in view of Huang, and finding that Heck does not bar Plaintiff's Section 1983 action, brought after incarceration for parole revocation, for damages relating to incarceration after revocation of parole
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No. 95 Civ. 9076 (LTS)(RLE)
May 16, 2002
Attorney(s) for Plaintiff, CHADBOURNE PARKE LLP, By: Bernard W. McCarthy, Esq. Beth D. Diamond, Esq. Thomas Freedman, Esq. David Gallai, Esq. New York, New York.
Attorney(s) for Defendants, ELLIOT SPITZER, ATTORNEY GENERAL OF THE STATE OF NEW YORK, By: Susan H. Odessky, Esq. Assistant Attorney General, New York, New York.
OPINION AND ORDER
This action was commenced pursuant to 42 U.S.C. § 1983 by plaintiff Calvin Dallas ("Plaintiff"), alleging that his civil rights were violated when defendants Janis Goldberg ("Goldberg") and Gregory Harlin ("Harlin," and collectively "Defendants") arrested him on September 18, 1994, criminal charges were bought (but later dismissed) against him for possession of drugs, and he served a period of incarceration for parole revocation following the arrest. Two motions for summary judgment and several motions in limine have already been adjudicated in this action. Plaintiffs remaining causes of action are claims of malicious prosecution and abuse of the legal process against both Defendants, and a claim of false arrest against defendant Harlin.
Now pending before the Court are the following motions: (1) Plaintiffs motion in limine to preclude evidence of Defendants' financial resources and to amend the joint pretrial order to include evidence of indemnification; (2) Defendants' motion in limine to preclude Plaintiff from introducing certain evidence concerning the termination of Plaintiffs criminal charges; (3) Plaintiff's cross-motion for partial summary judgment on the issue of termination of criminal charges; and (4) Plaintiffs motion for partial reconsideration of this Court's decision inDallas v. Goldberg, 143 F. Supp.2d 312 (S.D.N.Y. 2001) ("Dallas III"), or alternatively for certification of an interlocutory appeal to the Second Circuit Court of Appeals. The Court has considered thoroughly all submissions made in connection with these motions. For the reasons discussed herein, Plaintiff's motion in limine is denied to the extent it seeks to preclude Defendants from proffering evidence of their financial resources and is granted to the extent it seeks to amend the joint pretrial order; Plaintiff's cross-motion for partial summary judgment is granted and Defendants' motion in limine, concerning the same subject matter, is denied as moot; and Plaintiffs motion for partial reconsideration is denied, but the Court revisits and modifies the interlocutory decision in Dallas III as hereinafter set forth.
BACKGROUND
Familiarity with the opinions previously issued in this matter is assumed. See Dallas III; Dallas v. Goldberg, No. 95 Civ. 9076 (WHP), 2000 WL 1092986 (S.D.N.Y. Aug 4, 2000) ("Dallas II"); Dallas v. Goldberg, No. 95 Civ. 9076 (DLC), 1997 WL 728153 (S.D.N Y Nov. 20, 1997) ("Dallas I"). Except as noted, the following recitation of undisputed facts is taken from Defendants' Statement Pursuant to Local Rule 56.1.
Facts that are relevant to the Court's analysis and resolution of the pending motions are provided. For a more thorough discussion of the underlying facts, see Dallas I, 1997 WL 728152, at 1-3.
It is well established that, in ruling on a motion for summary judgment, as a general rule, all ambiguities and inferences should be resolved in favor of the party opposing the motion. See Brady v. Town of Colchester, 863 F.2d 205, 210 (2d Cir. 1988).
On or about September 18, 1994, defendant Harlin arrested Plaintiff for alleged criminal possession of a controlled substance. On September 20, 1994, the New York State Division of Parole issued a warrant for his custody and detention. The Parole Division's Violation of Release Report, dated September 20, 1994, charged three violations of the conditions imposed on Dallas when he was released from custody on July 6, 1994: use of a controlled substance on August 16, 1994; making a false report to his parole officer on August 16, 1994, when he denied the use of drugs; and possessing, with intent to sell, narcotic drugs on the date of his arrest, September 18, 1994. (Div. of Parole Viol. of Release Rep., Sept. 20, 1994.) On October 4, 1994, a preliminary parole revocation hearing was held for Dallas, at which defendant Harlin was the sole witness. (Pl.'s Rule 56.1 Stmt. ¶¶ 2-3.)
See Criminal Complaint, dated September 18, 1994, against Calvin Dallas; Division of Parole Violation of Release Report, dated September 20, 1994, concerning Calvin Dallas.
Although the third charge initially included "intent to sell," that element of the charge was apparently dropped at Dallas's preliminary parole revocation hearing on October 4, 1994. See Tr. of Prelim. Parole Rev. Hrg., Oct. 4, 1994, at 47-49; Tr. of Final Parole Rev. Hrg., Nov. 23, 1994, at 9-10, 12, 14.
On October 17, 1994, the City of Poughkeepsie Court, Judge Butts presiding, dismissed the criminal possession charges in the interests of justice, pursuant to a motion by Assistant District Attorney David Ross. In making the motion at the October 17, 1994, hearing, Mr. Ross stated that he did not know its basis, but was making it at the instruction of another Assistant District Attorney, Edward Whitesell. Judge Butts indicated that he recalled that Mr. Whitesell had planned to investigate information provided by Plaintiffs defense attorney, Mr. Angell, concerning testimony by a state trooper at Plaintiffs parole hearing. Judge Butts said that he assumed that the reason for the request to dismiss in the interests of justice was that Mr. Whitesell had accepted the facts as given to him by Plaintiffs attorney, specifically that the trooper was unable to implicate Plaintiff as possessing any drugs. Mr. Ross responded that he had no means to confirm or deny the court's statements as to the basis for dismissal. Plaintiffs criminal defense attorney agreed to the dismissal of the case. The court then dismissed the case and signed an order sealing the records of the case pursuant to New York Criminal Procedure Law section 160.50.
On November 23, 1994, a final parole revocation hearing was held for Dallas, Dallas 1, 1997 WL 728153, at 2, at which he pled guilty, with an explanation, to the first and second charges (use of a controlled substance and making a false report to his parole officer on August 16, 1994) and contested the third charge (narcotics possession on September 18, 1994), Tr. of Final Parole Rev. Hrg., Nov. 23, 1994, at 13, 16-17. Three witnesses testified at the hearing, as did Mr. Dallas. (Parole Rev. Decision Not., Nov. 23, 1994.) Dallas was found guilty to have violated his parole conditions with respect to the charges relating to August 16, 1994 and with respect to "involvement" with drugs in connection with the September 1994 charge, and a 15-month "hold," or period of re-incarceration, was imposed. Dallas I, 1997 WL 728153, at 2; Parole Rev. Decision Not., Nov. 23, 1994. Plaintiff sought, unsuccessfully, to attack directly the parole revocation decision through administrative channels and to challenge collaterally the revocation through state habeas corpus. See Dallas III, 143 F. Supp. 2d at 322.
Dallas' petition for a writ of habeas corpus challenged the sufficiency of the proof relied on by the hearing officer at the preliminary parole violation hearing. Dallas I, 1997 WL 728153, at 2. Acting New York State Supreme Court Justice James Punch, granted the petition on the grounds that the record did not contain sufficient evidence to support a finding of probable cause for possession of narcotic drugs but, on reargument, dismissed the petition, finding that the issues concerning sufficiency of the evidence at the preliminary parole revocation hearing were moot because a final parole revocation hearing had been conducted Id., at 2-3.
Following his release from the parole revocation incarceration, Plaintiff brought this action asserting claims for, inter alia malicious prosecution against defendants Janice Goldberg, Investigator, New York State Police, and Gregory Harlin, Senior Investigator, New York State Police ("Defendants"). See Dallas I, 1997 WL 728153, at 4. Judge Cote, to whom the case was assigned initially, declined to grant summary judgment for Defendants on Plaintiffs malicious prosecution cause of action, in part, because the record supported an inference that Plaintiff was innocent of the charges and, as a consequence, it was possible that he would be able to establish at trial that the criminal prosecution had terminated in his favor. See id. at 7. Defendants later sought summary judgment on Plaintiffs malicious prosecution claims a second time. That motion was denied by Judge Pauley, who presided over the case after reassignment from Judge Cote. In denying summary judgment, Judge Pauley noted that Judge Cote had already decided the favorable termination issue against Defendants and that it would go to the jury. See Dallas II, 2000 WL 1092986, at 7. In Dallas III, this Court held inter alia that Plaintiff is precluded from pursuing damages under section 1983 for the portion of his post-arrest confinement that was based on his parole revocation. See Dallas III, 143 F. Supp. 2d at 319-24.
DISCUSSION
Admissibility of Evidence Concerning Defendants' Resources and Indemnification
In his motion in limine to preclude evidence of Defendants' limited financial resources, Plaintiff argues that the jury should not be permitted to hear such evidence in light of the probability that Defendants will be indemnified by their employer, New York State, if the jury imposes an award of punitive damages. Plaintiff relies on a deposition of Deputy Attorney General Richard Rifkin, including statements that it is probable that an employee who is held liable for civil damages will have a 75% chance of indemnification and possible that the chance is as high as 95%, and statistical data showing that the State offered indemnity in each of the last six cases, since 1994, in which New York State police officers were held liable for punitive damages. Plaintiff asserts alternatively that, if evidence of Defendants' resources is admitted, he should be permitted to offer evidence of the indemnification policy and statistics. Defendants argue that they are entitled to present evidence concerning their financial resources but that the evidence that Plaintiff would seek to proffer concerning indemnification should be excluded because it is not probative of whether the Defendants will, in fact, be indemnified, and, to the extent it is probative, its probative value is outweighed by the risk of prejudice and confusion of the jurors.
Defendants will be permitted to offer evidence of their personal financial circumstances if they choose to do so. The purpose of punitive damages is "`to punish the defendant and to deter him and others from similar conduct in the future.'" Lee v. Edwards, 101 F.3d 805, 809 (2d Cir. 1996) (quoting Vasbinder v. Scott, 976 F.2d 118, 121 (2d Cir. 1992)). Punitive damages should be reasonable in amount and rational in light of their purpose. Id. Evidence of a defendant's meager resources may be used to suggest to the jury that a reduced award would suffice to deter the defendant from similar future conduct. If such evidence is to be considered by the jury, it is the defendant's burden to present it: "`it is the defendant's burden to show that his financial circumstances warrant a limitation of [a punitive damages] award.'" Provost v. City of Newburgh, 262 F.3d 146, 163 (2d Cir. 2001) (quoting Mathie v. Fries, 121 F.3d 808, 816 (2d Cir. 1997)). "The duty then is on the defendant to present evidence . . . of his limited resources if he wishes that factor to be weighed in the calculation of punitive damages." Id. (citing cases). Cf. Provost v. City of Newburgh, 262 F.3d 146, 164 (2d Cir. 2001) (court should not have instructed jury to consider defendants' financial circumstances in punitive damages determination where defendants did not present evidence of their personal circumstances). Plaintiff's motion in limine is therefore denied to the extent it seeks preclusion of evidence of Defendants' personal resources.
That Second Circuit precedent permits juries to consider defendants' personal resources in determining the proper magnitude of punitive damages awards does not, however, foreclose the relevance of evidence of potentially available indemnification. The Court therefore turns to the element of Plaintiff motion that seeks authorization to tender evidence of the potential availability to Defendants of state indemnification pursuant to section 17 of the New York State Public Officers Law. Section 17 of the Public Officers Law "operates as a form of insurance for New York's public officers." Derechin v. State Univ. of New York, 963 F.2d 513, 517 (2d Cir. 1992). The statute provides that "[t]he state shall indemnify and save harmless its employees in the amount of any judgment obtained against such employees in any state or federal court, or in the amount of any settlement of a claim, or shall pay such judgment or settlement [if] the act or omission from which . . . judgment . . . arose occurred while the employee was acting within the scope of his public employment or duties [but not] where the injury or damage resulted from intentional wrongdoing on the part of the employee." N.Y. Pub. Officers Law § 17(3) (Mc Kinney 2001). Although the Second Circuit has not as yet decided the question of whether the availability of indemnification can be a basis for increasing a punitive damages award, it has made clear that "a fact finder can properly consider the existence of [an indemnity] agreement as obviating the need to determine whether a defendant's limited financial resources justifies some reduction in the amount that would otherwise be awarded." Mathie v. Fries, 121 F.3d 808, 816 (2d Cir. 1997) (emphasis in original). Other courts have similarly concluded that a defendant's effort to limit a punitive damages award based on personal financial circumstances renders relevant evidence of collateral payment resources. See Lawson v. Trowbridge, 153 F.3d 368, 380 (7th Cir. 1998) ("[D]efendants' detailed financial testimony opened the door concerning who would likely pay any judgment against them"); Schaefer v. Ready, 3 P.3d 56, 59 (Idaho App. 2000) ("If a defendant has indemnity to satisfy a punitive damages award, then he or she should not be permitted to present evidence that paints an unrealistically bleak financial picture for the jury."). Cf. Kemezy v. Peters, 79 F.3d 33, 37 (7th Cir. 1996) ("The defendant should not be allowed to plead poverty if his employer or an insurance company is going to pick up the tab.") (dicta).
Defendants argue, nonetheless, that the uncertainty of indemnification in the current case undermines any potential relevance of indemnity evidence and so heightens the possibility of juror confusion that the evidence should be precluded. Defendants assert that the state's indemnification obligation under Public Officers Law section 17 does not arise until after a judgment or settlement is obtained, and point out the statute's proviso obviating the indemnification obligation "where the injury or damage resulted from intentional wrongdoing on the part of the employee." Under these circumstances, they argue, the jury could be misled as to the likely availability of indemnification were they to hear evidence of the existence of section 17. Defendants also argue that Deputy Attorney General Richard Rifkin's statistical and probability testimony proffered by Plaintiff is not probative of the likelihood of indemnification of the Defendants in this case.
The uncertainty of indemnification here is not an appropriate ground for preclusion of the evidence proffered by Plaintiff, if such evidence is presented in rebuttal to an argument for reduction of an otherwise appropriate punitive damages award. Defendants have not shown that indemnification is uncertain, nor that it is impossible or even unlikely. Plaintiffs proffer is indicative of some likelihood of ultimate indemnification and may properly be weighed by the jury, consistent with the law of this Circuit, in determining whether such likelihood obviates the need for artificial reduction of a punitive damages award to protect one or more of the Defendants against financial ruin. See Mathie, 121 F.3d at 816. Therefore, if Defendants proffer evidence of their financial resources, Plaintiff will be permitted to offer evidence of the State's indemnification statute and its recent application. See Lawson, 153 F.3d at 379-80 (finding abuse of discretion where district court refused to allow plaintiff to rebut defendants' financial testimony with evidence concerning likely indemnification because such testimony "opened the door;" scope of cross-examination inquiry was set by direct examination). The Court notes that Federal Rule of Evidence 411, invoked by Defendants in support of their argument for preclusion of indemnity evidence, merely precludes the use of liability insurance evidence "upon the issue of whether the person acted negligently or otherwise wrongfully." Fed.R.Evid. 411. No such purpose underlies the proffer here; Rule 411 is therefore irrelevant to the issue at hand.
Defendants attempt to distinguish Lawson and other cases relied upon by Plaintiff on the ground that indemnification, whether by statute or individual agreement, was more certain in those cases than it is here. None of those cases holds indemnification evidence relevant only where indemnity is certain. The Court is confident that a jury, properly instructed, will be able to weigh the evidence militating for and against the likelihood of indemnification here and apply its judgment as to such likelihood in determining whether, in light of Defendants' financial evidence, there is a need to reduce an otherwise appropriate punitive damages award.
Nor, finally, does the admission of indemnification evidence in this case offend principles of state sovereign immunity under the Eleventh Amendment to the United States Constitution by rendering the state the real party in interest. The Court will permit use of the evidence to rebut an argument that personal financial circumstances justify artificial limits on any punitive damages awards here. Plaintiff does not seek to use such evidence to enhance any punitive damages award. The jury's attention will be focused, as is proper, on the effect of any award on the Defendants, not on fashioning a punitive award against the state. Cf. Haile v. Village of Sag Harbor, 639 F. Supp. 718, 724 (E.D.N.Y. 1986) (denying motion to dismiss punitive damages claim against individual defendants on ground that, because of indemnification policy, allowance of claim would in effect permit punitive damage award against a municipality — "If defendants' view were correct, then any state could, in the guise of adopting an indemnity statute, thereby guarantee that no punitive damages could ever be recovered.").
Because the Court finds it appropriate to permit Plaintiff to proffer evidence concerning indemnification if evidence concerning Defendants' personal financial resources is proffered and admitted, Plaintiffs motionin limine is granted to the extent it seeks in such circumstances permission to proffer evidence of the state's indemnification policy and related statistics and amendment of the joint pretrial order to include as exhibits for such purpose the text of N.Y. Pub. Off. Law section 17(3)(a) and a June 4, 2001 letter from the Attorney General's Office containing statistical information regarding the subject policy. Any requests to charge relating to the jury's consideration of personal financial and/or indemnification evidence shall be served and filed no later than five days prior to the final pretrial conference.
Finally, Defendants' untimely renewed request for bifurcation of the liability and damages phases of the trial is denied for the reasons explained in Dallas III, 143 F. Supp. 2d at 315.
Pursuant to Civil Rule 6.3 of the Local Rules of the United States District Courts for the Southern and Eastern Districts of New York, the appropriate time for Defendants to have sought reconsideration was within ten days of the entry of the Opinion and Order, dated May 7, 2001, in which the Court denied their motion to bifurcate the trial.
Favorable Termination of Criminal Proceedings
Defendants have moved in limine to preclude Plaintiff from introducing certain evidence concerning the termination of his criminal charges, specifically the transcript, dated October 17, 1994, of the Poughkeepsie City Court Proceeding before Judge Roland E. Butts, and the Criminal Procedure Law section 160.50 Seal Order, dated October 18, 1994, signed by Judge Butts. In response, Plaintiff cross-moved for partial summary judgment on the favorable termination issue, arguing that he has satisfied that element of his malicious prosecution claim with respect to the criminal charges as a matter of law. For the reasons that follow, the Court finds that grant of partial summary judgment is appropriate to the extent that the favorable termination element of Plaintiffs malicious prosecution claim will be deemed established with respect to the criminal charges for purposes of the trial of this action. Fed.R.Civ.P. 56 (Advisory Committee Note).
Summary judgment shall be granted in favor of a moving party where the "pleadings, depositions, answers to interrogatories, 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 judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party bears the burden of establishing the absence of any genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). A court deciding whether to grant summary judgment does not make credibility determinations or weigh the evidence; inferences must be construed in the light most favorable to the nonmoving party. Anderson, 477 U.S. at 255. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); Carlton v. Mystic Transportation Inc., 202 F.3d 129, 133 (2d Cir. 2000).
The elements of the constitutional tort of malicious prosecution are substantially identical to such elements of a state law claim. See Cook v. Sheldon, 41 F.3d 73, 79 (2d Cir. 1994). To succeed on his claim for malicious prosecution, Plaintiff must show that: (1) the defendant commenced or continued a criminal proceeding against the plaintiff (2) the proceeding terminated in his favor; (3) there was no probable cause for the criminal proceeding; and (4) the defendant initiated the criminal proceeding out of actual malice. Bonide Prods., Inc. v. Cahill, 223 F.3d 141, 145 (2d Cir. 2000); Dallas I, 1997 WL 728153, at 7 (section 1983 claim for malicious prosecution requires proof that defendant's conduct was tortious under state law). Plaintiffs motion for partial summary judgment concerns only the second element of the malicious prosecution cause of action: he seeks a grant of summary judgment determining that he has satisfied the "favorable termination" element of his malicious prosecution claim as a matter of law.
The New York Court of Appeals has recently clarified what constitutes "favorable termination" for purposes of asserting a malicious prosecution claim. "[A]ny final termination of a criminal proceeding in favor of the accused, such that the proceeding cannot be brought again, [generally] qualifies as a favorable termination for purposes of a malicious prosecution action. . . . [I]t makes no `difference how the criminal prosecution is terminated, provided it is terminated, and at an end.'"Smith-Hunter v. Harvey, 95 N.Y.2d 191, 195-96 (Ct App. 2000) (citations omitted). The accused need not establish his innocence, nor is it necessary that a dismissal affirmatively indicate the innocence of the accused to qualify as a favorable termination. Id. at 198. Where criminal charges have been dismissed "in the interest of justice," the favorable termination requirement is met so long as such dismissal is not inconsistent with the innocence of the accused. Cantalino v. Danner, 754 N.E.2d 164, 166-69 (N.Y. 2001). Termination of the criminal proceedings will not be deemed favorable to the accused where the termination is fundamentally inconsistent with the innocence of the accused. See id. at 167-68. Thus, for example, there is no favorable termination where a prosecution fails to go forward because misconduct by the accused prevents a proper trial, or where charges are dismissed out of mercy (because mercy presupposes the guilt of the accused), or where a prosecution ends because of a compromise with the accused. See id. at 167. "[T]he question is whether, under the circumstances of each case, the disposition was inconsistent with the innocence of the accused." Id. at 168. "A case-specific rule is particularly appropriate for dismissals in the interest of justice, since the trial court is required to state on the record its reasons for dismissing the criminal charges." Id.
The record of Dallas' criminal proceeding does not include a clear, unequivocal finding of his innocence. The criminal charges against Plaintiff Dallas were dismissed by Poughkeepsie City Court Judge Roland E. Butts on October 17, 1994, "in the interest of justice" upon the motion of the Dutchess County District Attorney pursuant to section 170.40 of the New York Criminal Procedure Law. (Defts' Br. Ex. A, Tr. of 10/17/94 ("Tr.").) The Assistant District Attorney represented that the dismissal motion was being made "after discussing this with the State Police" but was unable to proffer any rationale for the motion. (Tr. at 2-3.) Judge Butts responded that his "recollection [was] that Mr. Whitesell, while in conference the other day, was told by Mr. Angell [Dallas's criminal defense attorney] what the trooper testified at a parole hearing, and Mr. Whitesell was going to investigate that and [the court] assume[s] that[,] for the purposes of this matter[,] accepted the facts as related by Mr. Angell which was the trooper was unable to implicate Mr. Dallas as possessing any drugs at this time, and after their investigation they are indicating that this matter should be dismissed in the interest of justice." Defense counsel indicated the defense was "agreeable to that disposition"; the Assistant District Attorney present said that he could not "confirm or deny the representations made by the Court as to the reasons behind the dismissal." Judge Butts, after alluding to the statutory requirement that the court consider certain factors in evaluating a dismissal motion, stated: "Well, it's all based upon whatever [Mr. Whitesell] found out from the trooper and [defense counsel] is accepting that rational [sic] if it's okay with the Court. . . ." (Tr. at 3.)
Neither Defendants' argument of ambiguity nor the proffer of A.D.A. Whitesell's testimony to a different rationale for the dismissal is sufficient to preclude the grant of partial summary judgment in Plaintiffs favor on this issue. In accordance with New York Criminal Procedure Law section 170.40(2), Judge Butts stated the reasons for dismissal of the charges on the record. The transcript is not ambiguous as to Judge Butts' reasons for dismissing the charges. It is evident from the transcript that Judge Butts' decision was based on his conclusion that the charges were being dismissed for inability to prosecute Plaintiff, a basis that clearly is not inconsistent with Plaintiffs innocence. Cf. Cantalino, 754 N.E.2d at 166 ("far from implying guilt, the Criminal Court Judge made clear that he dismissed the charges because plaintiff was innocent and the prosecution was groundless"). None of the information in the transcript is inconsistent with Plaintiffs innocence. Among other things, there is no indication, and Defendants have proffered no reason to infer, that the prosecution failed to go forward because of Plaintiffs misconduct, or that the charges were dismissed out of mercy, or due to a compromise Plaintiff had made. See Cantalino, 754 N.E.2d at 167 (such circumstances among those inconsistent with innocence).
Defendants' proffer of a possible alternative rationale for the District Attorney's motion to dismiss is insufficient to create a genuine issue of material fact. That the court dismissed the charges and articulated its reasons therefor is not in dispute. In the circumstances of this case, it is the court's basis for dismissal, rather than the District Attorney's unexpressed subjective motivation, that is material to the favorable termination analysis. See generally Smith-Hunter, 734 N.E.2d at 752, 755 (prosecutor's affidavit that failure to prosecute motion was caused by a busy schedule and not due to a determination that probable cause was lacking or that the accused was innocent — the only proof offered in support of summary judgment motion — failed to overcome general rule that dismissal on speedy trial grounds is a favorable termination). Nor is Mr. Whitesell's proffered testimony inconsistent with Plaintiffs innocence of the criminal charges in that there were at the time potential grounds for Plaintiffs parole revocation that were completely unrelated to the events forming the basis of the criminal proceedings. See Defts.' Rule 56.1 Stmt. at ¶ 2. Therefore, even the revocation of Plaintiffs parole is not necessarily inconsistent with his innocence in respect of the criminal charges that were dismissed at the October 17, 1994 hearing.
Plaintiffs motion for partial summary judgment is therefore granted to the extent that he is deemed for purposes of trial to have satisfied the favorable termination element of his malicious prosecution claim. In light of this disposition of Plaintiffs motion, Defendants' motion in limine to preclude introduction of the transcript of the City Court proceeding is granted. Favorable termination having been established, no relevant non-hearsay basis for admission of the statements in the transcript concerning the trooper's assumed inability to implicate Plaintiff has been proffered. To the extent the passage may be relevant and otherwise admissible, the Court finds that its probative value in connection with the issues remaining in the case is substantially outweighed by the danger of unfair prejudice, in that Judge Butts clearly lacked firsthand knowledge of the matters recited. Defendants' motion in limine is denied as to the seal order, without prejudice to any relevance or other objection that may properly be raised at trial as to such order.
Modification of Interlocutory Ruling Concerning Damages for Period of Incarceration Resulting from Parole Revocation
In Dallas III, this Court held, inter alia, that Plaintiff is precluded, under the cause of action accrual principles established by the Supreme Court in Heck v. Humphrey, 512 U.S. 477 (1994), from pursuing in this section 1983 case a cause of action for damages in respect of his confinement upon the parole revocation that followed the arrest and drug charges here at issue. See Dallas III, 143 F. Supp. 2d at 324. Plaintiff has moved, pursuant to Federal Rule of Civil Procedure 60(b) and Rule 6.3 of the Local Civil Rules of this Court, for reconsideration of that aspect of the Dallas III decision. Plaintiff contends that the Court overlooked certain legal and factual matters in reaching its determination. In the alternative, Plaintiff requests that the Court certify that portion of Dallas III for interlocutory appeal to the Second Circuit pursuant to 28 U.S.C. § 1292(b). The Court, having carefully considered Plaintiffs legal and factual arguments as asserted in his original papers and as reiterated in support of this motion, finds that Plaintiff has not set forth any grounds warranting reconsideration on Rule 60(b)(6) or Local Civil Rule 6.3 grounds, and has not satisfied the narrow standards for certification of an interlocutory appeal. However, in light of a Second Circuit decision on the Heck v. Humphrey issue that post-dated Dallas III, the Court finds that it is in the interests of justice to exercise its inherent authority to revisit and modify the interlocutory decision in Dallas III. That decision is hereby modified to the extent specified below.
See Grace v. Rosenstock, 228 F.3d 40, 51 (2d Cir. 2000) ("All interlocutory orders remain subject to modification or adjustment prior to the entry of a final judgment adjudicating the claims to which they pertain."); United States v. LoRusso, 695 F.2d 45, 53 (2d Cir. 1982) ("`[W]hether the case sub judice be civil or criminal[,] so long as the district court has jurisdiction over the case, it possesses inherent power over interlocutory orders, and can reconsider them when it is consonant with justice to do so.'" (Citation omitted.)).
In Heck v. Humphrey, 512 U.S. 477 (1994), the Supreme Court identified a jurisdictional predicate for an action under 42 U.S.C. § 1983 challenging the fact or duration of confinement. To bring such an action, the Court held, a plaintiff "`must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus.'" Dallas III, 143 F. Supp. 2d at 319 (quotingHeck, 512 U.S. at 487). It is undisputed Plaintiffs parole revocation decision has not been overturned. See id. at 321. Nor do Defendants dispute Plaintiffs assertion that he was released from incarceration prior to the conclusion of his unsuccessful state habeas corpus proceedings.
In Dallas III, this Court held that, because Plaintiff could not demonstrate a successful challenge, either by direct review or collateral attack, of the parole revocation decision, Heck v. Humphrey precluded the assertion of a section 1983 cause of action for damages arising from his parole revocation incarceration. See id. at 322-23. The Court considered carefully post-Heck case law and Plaintiffs argument that the practical unavailability to him of habeas corpus (due to his release from incarceration) renders inappropriate the Heck v. Humphrey bar in this case. Acknowledging an apparent shift in the thinking of members of the Court on the significance of custodial status, this Court nonetheless found that it was constrained to apply Heck as written:
Although it is unclear whether a Supreme Court majority could be mustered to embrace Heck's [cause of action] accrual rationale were the case to be relitigated today, the Heck holding has not been overruled by that Court. . . . Absent clear Supreme Court or Second Circuit authority authorizing the approach in a case such as this, the Court declines further to extend the notion of a separate section 1983 track for persons who failed while in custody to satisfy Heck's predicate requirement for a section 1983 action challenging the fact or duration of confinement.Dallas III, 143 F. Supp. 2d at 324.
The Court has decided to modify its holding because, after the Dallas III decision was rendered, the Second Circuit did recognize a section 1983 cause of action in a case involving a person who had been in custody for a period of time. In Huang v. Johnson, 251 F.3d 65 (2d Cir. 2001), the panel held that a challenge to the computation of a period of confinement did not constitute a challenge to the validity of the underlying conviction and was thus outside Heck's ambit. The Huang Court went on, however, to address the impact of non-custodial status on theHeck issue:
[Plaintiff] has no habeas remedy because he has long since been released from . . . custody. In light of our holding in Leather [v. ten Eyck ], and in light of both the Spencer [v. Kemna] majority's dictum and the fact that the Spencer concurrences and dissent "revealed that five justices hold the view that, where federal habeas corpus is not available to address constitutional wrongs, § 1983 must be,' Jenkins [v. Haubert], 179 F.3d at 26, we conclude that [plaintiffs] Section 1983 [false imprisonment] claim must be allowed to proceed.Huang, 251 F.3d at 74. In light of the Huang decision and the fact that trial of this action has not yet commenced, the Court hereby modifies itsDallas III decision and finds that Heck v. Humphrey does not bar Plaintiffs assertion, in this section 1983 action, of a cause of action for damages relating to his incarceration upon the revocation of parole.
180 F.3d 420 (2d Cir. 1999).
523 U.S. 1 (1998).
The foregoing decision requires the Court to address Plaintiffs arguments concerning the substantive viability of his cause of action for damages arising from revocation of his parole. As noted in Dallas III, Plaintiff is limited in his claim for false arrest to damages that "`cover the time of detention up until issuance of process or arraignment, but not more,'" and Plaintiff therefore cannot pursue damages for his period of incarceration for parole revocation under the false arrest cause of action. Dallas III, 143 F. Supp. 2d at 321 (quotingHeck, 512 U.S. at 484). Plaintiff does not challenge the Court's determination in that regard.
In Dallas III, the Court held that the question of damages for the revocation of parole was also outside the factual and legal scope of the causes of action for malicious prosecution and abuse of process plead in Dallas' complaint. Id. at 320-21. In the instant application, Plaintiff argues that his intent, in referring to the parole revocation and to "continuation" of the prosecution of baseless criminal charges, was to assert a malicious prosecution claim covering the parole revocation as "a natural and foreseeable result of defendants' continued baseless and malicious prosecution of him." Mem. in Supp. of Pl.'s Motion for Partial Reconsideration or, In the Alternative, for Certification of an Interlocutory Appeal to the Second Circuit ("Pl.'s Br."), at 12-13. Plaintiff further asserts, citing a number of cases, that such allegations are cognizable under section 1983. Id. at 13.
The Court's prior holding that the malicious prosecution cause of action did not embrace the parole revocation was premised, in part, on the traditional elements of the cause of action. "[F]avorable termination of the underlying judicial proceedings is a core element of a malicious prosecution cause of action." Dallas III, 143 F. Supp. 2d at 321. The parole revocation charges clearly did not terminate in Plaintiffs favor. Thus, the complaint fails to state a claim to the extent it seeks to pursue a malicious prosecution cause of action relating to the parole revocation. The cases cited by Plaintiff in its reconsideration motion for the proposition that a malicious prosecution cause of action may lie where the original prosecution rested on false charges are not to the contrary. See Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 131 (2d Cir. 1997) (reversing lower court's grant of summary judgment in favor of defendants on malicious prosecution cause of action because inter alia, jury could find proceedings terminated in plaintiffs favor where charges were reduced and dismissed); White v. Frank, 855 F.2d 956, 957 (2d Cir. 1988) (plaintiff brought malicious prosecution cause of action against police officers after his conviction was vacated on grounds that one of the officers confessed to perjuring himself in underlying criminal proceedings against plaintiff); Komlosi v. Fudenberg, No. 88 Civ. 1792 (HBP), 2000 WL 351414, at 3 (S.D.N.Y. March 31, 2000) (malicious prosecution claim brought by psychologist charged with sexual abuse of developmentally disabled adults in residential facility after charges against him were dropped and criminal case dismissed against him during course of trial when alleged victim recanted allegations that had formed the basis for plaintiffs arrest); Walker v. Mendoza, No. 00 Civ. 93 (JG), 2000 WL 915070, at 1 (E.D.N Y June 27, 2000) (parolee brought claim for malicious prosecution after warrant for parole revocation was vacated, parole revocation violation dismissed with prejudice, and plaintiff restored to parole).
Plaintiff has come forward with no authority indicating that a claim for damages for malicious prosecution following the favorable termination of criminal charges can include damages arising from incarceration upon a subsequently — and separately — adjudicated parole revocation charge. Dallas pleaded guilty to two charges of parole violation which were wholly unrelated to his September 18, 1994, arrest. He disputed the charge of drug possession that had been the subject of the criminal proceedings. The administrative law judge ruled against him, on witness credibility grounds, on the disputed charge, and found that his explanation for the earlier conduct was not exculpatory: Plaintiff was found to have become involved with drugs and to have lied to his parole officer, in direct violation of the conditions of his release. A period of reincarceration was imposed as a result. (Parole Rev. Decision Not., Nov. 23, 1994.) This result can in no way be deemed a favorable termination of the parole revocation proceeding. The parole revocation proceedings which resulted in his incarceration clearly did not terminate in his favor. Moreover, the circumstances surrounding the termination of those proceedings are not consistent with his innocence of the charges.See Peros v. Castano, No. 01 Civ. 4457 (JG), 2002 WL 603042, at 4 (E.D.N.Y. March 22, 2002) (termination is favorable to plaintiff if court's reasons for dismissing the criminal charges are not inconsistent with innocence of the accused, citing Cantalino v. Danner, 754 N.E.2d 164, 165 (N.Y. 2001)).
Plaintiff also argues that the parole revocation damages claim is within the scope of his cause of action for abuse of process. (Pl.s' Br. at 14.) His complaint alleges that each defendant "employed regularly issued process against Mr. Dallas to ensure that Mr. Dallas would be placed in custody and found to have violated his parole." (Am. Compl. ¶ 94.) Plaintiff contends that, if Dallas is able to support such allegations and he can demonstrate that his period of incarceration was caused by Defendants' malicious abuse of process, he can recover damages for the duration of his incarceration. (Pl.'s Br. at 15.)
Although "[t]he torts of malicious prosecution and abuse of process are closely allied," Cook, 41 F.3d at 80, a significant difference, for present purposes, is that the constitutional tort of abuse of process has no favorable termination requirement. As with the adjudication of a malicious prosecution claim, the Court looks to state law to provide the elements for abuse of process. Cook, 41 F.3d at 80. To establish an abuse of process claim, cognizable under section 1983, Plaintiff must show the (1) employment of regularly issued legal process to compel performance or forbearance of some act (2) with intent to do harm without excuse or justification, and (3) in order to obtain a collateral objective that is outside the legitimate ends of the process. Id.
Plaintiff is not required to show that the parole revocation proceedings terminated in his favor to assert the abuse of process claim. Whether proof of abuse of process by the defendant officers in connection with the parole revocation is sufficient for an award of damages for the period of incarceration is not clear from the authorities thus far proffered by the parties. The parties are hereby directed to serve and file any requests to charge, including citations to relevant legal authority, on the question of the abuse of process cause of action as applied to the parole revocation incarceration, no later than fifteen (15) days prior to the next pre-trial conference. Any objections or opposition to the submissions shall be served and filed within five business days after service of such papers.
CONCLUSION
For the reasons discussed herein, Plaintiffs motion in limine is granted to the extent it seeks permission to proffer evidence concerning indemnification and to amend the joint pretrial order to include exhibits for such purposes, should evidence of Defendants' personal financial resources be admitted. Any requests to charge relating to the jury's consideration of personal financial and/or indemnification evidence shall be served and filed no later than five days prior to the final pretrial conference. Defendants' renewed request for bifurcation of the trial is denied. Defendants' motion in limine to preclude introduction of certain evidence concerning the termination of Plaintiffs criminal charges is granted to the extent it seeks to preclude introduction of the October 18, 1994, transcript and is denied, without prejudice, to the extent it seeks to preclude introduction of the October 18, 1994, seal order signed by Judge Butts. Plaintiffs motion for partial summary judgment is granted to the extent that Plaintiff is deemed for purposes of trial to have satisfied the favorable termination element of his malicious prosecution claim with regard to the criminal charges relating to the events of September 18, 1994. The Opinion and Order issued in Dallas v. Goldberg, 143 F. Supp.2d 312 (S.D.N Y 2001), is modified to the extent it precludes Plaintiff from pursuing damages in respect of his incarceration for parole revocation on the basis of the Supreme Court's decision in Heck v. Humphrey, 512 U.S. 477 (1994). Further pre-trial submissions with respect to Plaintiffs claim for damages in connection with the parole revocation shall be made as set forth above. A pretrial conference shall be held on June 13, 2002, at 12:00 p.m.
SO ORDERED.