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discussing the risk of "the possibility of inconsistent judgments" and "parallel litigation of the underlying probable cause determination" if malicious prosecution claims were allowed to proceed when a new indictment could still technically be brought
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04 Civ. 7368 (DC).
August 7, 2006
ROBERT DEMBIA, ESQ. Attorney for Plaintiff New York, New York.
MILTON H. PATCHER, ESQ. Attorney for Defendants By: Kathleen Miller, Esq. New York, New York.
MEMORANDUM DECISION
Returning from a 2004 New Year's Eve celebration, plaintiff Jeremy C. Garrett engaged in a verbal altercation with several officers from the Port Authority of New York and New Jersey (the "Port Authority"). Garrett alleges that the officers handcuffed him, took him to a room in a Port Authority facility, and punched him several times before issuing him a summons for disorderly conduct. The summons was ultimately dismissed.
In this civil action, Garrett asserts claims for battery, assault, false arrest, false imprisonment, and malicious prosecution under state and federal law. Defendants move for partial summary judgment dismissing the federal claims against the Port Authority and the malicious prosecution claims against both defendants. For the reasons stated below, the motion is granted.
BACKGROUND
A. Facts
Construed in the light most favorable to Garrett, the facts are as follows:
On December 31, 2003, Garrett traveled by train from Bellmore, New York, to Manhattan with his girlfriend, Michelle Weinstein, to celebrate New Year's Eve. (Garrett Dep. at 30-33). After arriving at Penn Station, Garrett and Weinstein walked to the subway on the east side of Manhattan. (Id.). Garrett observed garbage in the street as they walked toward the subway, and he commented to Weinstein that the police were ignoring it. (Id. at 42).
The couple took the subway to the Big City Bar and Grill at 90th Street and Third Avenue, where they were joined by two friends, Glenn and Ali. (Id. at 40-41, 50). The group ate dinner at the restaurant. (Id. at 53). Garrett drank between six and eight beers, as well as a glass of champagne. (Id.). He had his last drink at 12:30 a.m. (Id. at 60). Garrett and Weinstein left the restaurant at approximately 2:30 a.m., and they took the subway south towards Penn Station. (Id. at 57). After exiting the subway station, the couple walked west on 32nd Street. (Id. at 58). Garrett observed approximately ten to twelve police officers on a street corner near Penn Station, and he saw that there was still garbage in the street. (Id. at 61).
Garrett does not recall the last names of either person. He also gave inconsistent testimony regarding the number of people who joined him at the restaurant. At one point he said there were only four people at dinner, but he also testified that his sister Christine came to the restaurant. (Garrett Dep. at 34, 51).
Garrett testified that he remarked to Weinstein in a "very, very obnoxious" way that there were `[t]welve officers on a corner and nobody could pick up — still nobody could pick up a garbage bag." (Id.). He also recalled that "[t]raffic was pretty light that night" but that "[he] wasn't paying attention to that." (Id. at 64-65). He testified that, all of a sudden, the police officers "rushed" him. (Id. at 60).
Regarding Garrett's interaction with the Port Authority officers, Officer Patrick Tuite testified that "in [his] presence," Garrett said: "[a]ll of you . . . fucking cops not doing a thing. You can't do fucking nothing to me. Fuck you. . . . You can't touch me. . . ." (Tuite Dep. at 37-38). Tuite also testified that he told Garrett to "keep walking," but that Garrett gestured his middle finger towards Tuite's face, used a loud and aggressive tone, blocked street traffic, obstructed the entrance to a subway station, and caused a crowd of approximately fifteen people to gather around the scene. (Id. at 50).
Port Authority Officers Tuite, Jeffrey Fosella, and Daniel McCarthy took Garrett to the ground and put him in handcuffs. (Id. at 66; Fosello Dep. at 39). Garrett "went down on [his] knees and then laid down" on his chest. (Garrett Dep. at 73). Both Garrett and Weinstein asked the officers what he had done, but Garrett could not recall if they answered. (Id. at 77, 79).
Four officers then took Garrett into the PATH train station through the entrance on 32nd Street and Sixth Avenue. (Fossello Dep. at 43). They brought Garrett to the "E Room," which is used by officers on patrol as a restroom, break room, and work space. (Garrett Dep. at 82-83; Sbarra Dep. at 72). A security camera photo shows Garrett being escorted toward the room by the officers at 3:20 a.m. (Miller Aff. Ex. K).
Garrett has not identified the fourth officer. (See Garrett Dep. at 88-90).
The four officers accompanied Garrett into the "E room" and placed him in a chair. (Garrett Dep. at 88). One officer stood in front of Garrett, one officer stood behind him, and there may have been additional officers in the room. (Id. at 89). The officer behind Garrett asked him, "[d]o you have anything else to say?" (Id. at 90). Garrett testified that the inquiring officer then struck him twice with his fist, once above Garrett's left eyebrow and once in the ribs. (Id. at 92-93, 100). Garrett stated that the officer put his face in front of Garrett's face and asked again, "[d]o you have anything to say now?" (Id. at 101). Garrett told him, "[n]o sir." (Id. at 101). Garrett testified that the officer struck him again, but that he lowered his face so that the blow struck the top of his head. (Id. at 103).
Three officers testified that Garrett was not struck during the time he was in their custody. (Tuite Dep. at 94; Fosello Dep. at 50; McCarthy Dep. at 43).
Garrett was then asked whether he was carrying any weapons and frisked by the officers. (Id. at 105). They removed his wallet and checked his driver's license. (Id. at 109). He testified that they also asked him, "[y]ou're not going to say anything about this, are you?" (Id. at 105). The officers placed a summons for disorderly conduct in Garrett's coat pocket before removing the handcuffs. (Id. at 112-13). He testified that after he told them that he "would never say anything," he was released from custody. (Id. at 110-11).
Officer Tuite's copy of the summons indicates that Garrett "refused" to sign the portion stating that "I acknowledge receipt of this summons. I understand it is my responsibility to read and comply with the instructions on my copy, and that my signature below is not an admission of guilt." (Miller Aff. Ex. J). Garrett testified that he was never asked to sign the summons. (Garrett Dep. at 111).
Garrett ran out of the "E room" and the PATH station. (Id. at 116). His girlfriend was crying hysterically outside the station near the place where he had initially been taken into custody. (Id. at 117). He testified that the remaining officers had attempted to confuse her about his location when he was in the "E room" and that they taunted him when he returned from inside the PATH Station. (Id.). Upon his return, Weinstein rejoined Garrett and they proceeded toward Penn Station. (Id.).
As the couple approached Penn Station, Garrett borrowed a stranger's cell phone and called the Nassau County Police Department. (Id. at 120-21). His call was forwarded to the New York City Police Department's (the "N.Y.P.D.") Internal Affairs Division. (Id. at 123). After describing the events on the phone, Garrett waited in the lobby of the Pennsylvania Hotel for the investigating officers. (Id. at 125). Four officers arrived at approximately 4:30 a.m. on January 1, 2004. (Id. at 125-26). They took recorded statements from Garrett and Weinstein, as well as several pictures of Garrett. (Id. at 130).
Garrett also took two additional photographs of his face with a digital camera on approximately January 2, 2004. (Id. at 140). Garrett testified that he lost the "log number" for the civilian complaint he filed and that he never retrieved or reviewed the photographs or the taped statements taken by the N.Y.P.D. Internal Affairs Division. (Garrett Dep. at 131). Neither party submitted the pictures taken by the N.Y.P.D. or by Garrett, but the N.Y.P.D. photographs were marked by the Port Authority at Garrett's deposition (Id.).
One photograph of Garrett's face revealed bruises above his left eyebrow. (Id. at 132). Garrett testified that at least part of the bruising resulted from an unrelated fight in Nassau County on or about December 24, 2003. (Id. at 133). Another photograph depicted bruising on the left side of Garrett's torso. (Id. at 137). Additional pictures of the left side of Garrett's face and his right upper torso did not reveal any injuries. (Id. 136-37).
At the deposition, Garrett's counsel acknowledged receipt of two tapes containing statements by his client and Weinstein. (Id. at 158). Although Garrett believes there was an additional taped statement collected on January 20, 2004, the Port Authority was unable to locate it. (Id. at 159).
Garrett requested medical assistance while speaking with the officers. (Id. at 152). An ambulence was called and he was examined at the hotel, but he refused to be taken to Cabrini Hospital. (Id. at 153). He and Weinstein finished their reports with the Internal Affairs Division and boarded a train returning to Bellmore, New York at approximately 8:00 a.m. (Id. at 141). After January 1, 2004, Garrett did not seek further physical or psychological medical assistance relating to any injuries he received as a result of the incident. (Id. at 155-56).
B. Criminal Proceedings and the Civilian Complaint
The summons that was placed in Garrett's jacket pocket charged him with disorderly conduct. (Miller Aff. Ex. L). He was scheduled to appear in Criminal Court in Manhattan on February 4, 2004. (Garrett Dep. at 143; Id.). Garrett missed the appearance because he was late. (Garrett Dep. at 143). When he arrived, he was informed by a courthouse employee that the summons had been dismissed. (Id. at 143-44). The summons was stamped "Dismissed Legally Insufficient," apparently by Judicial Hearing Officer Morris Goldman on February 4, 2004. (Miller Aff. Ex. L).
Garrett filed a civilian complaint with the N.Y.P.D. (Garrett Dep. at 146). The investigation was transferred to the Port Authority in late January 2004 because no N.Y.P.D. officers were involved in issuing the summons. (Id.). Port Authority Officer Tim McGovern was assigned to investigate the claim. He had three to five phone conversations with Garrett and personally interviewed him at Garrett's grandmother's home. (Id. at 149). During the personal interview, Garrett examined two photo arrays. (Id. at 151). He identified one of the officers in the first array as the officer who struck him, but he did not identify anyone in the second array. (Id.).
C. The Instant Action
Plaintiff commenced the instant action by filing a complaint on September 15, 2004, against the City of New York, the Port Authority, and Officer Tuite. Garrett's claims against the City of New York were dismissed with prejudice on consent of the parties. The remaining claims against the Port Authority and Officer Tuite allege assault, battery, false arrest, false imprisonment, malicious prosecution, and civil rights violations under 42 U.S.C. § 1983.
Under the terms of the agreement, plaintiff had six months in which to reinstate the claims against the N.Y.P.D., but he did not do so. (August 8, 2005 Order).
Defendants move for partial summary judgment, arguing that: (1) there is insufficient evidence to support the § 1983 claims against the Port Authority; (2) Garrett's state law malicious prosecution claims should be dismissed because the proceedings were not terminated in his favor; and (3) the malicious prosecution claims under § 1983 should be dismissed because Garrett has not demonstrated a sufficient Fourth Amendment liberty restraint.
DISCUSSION
A. Summary Judgment Standard
Summary judgment will be granted when "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-87 (1986). Summary judgment is inappropriate if, resolving all ambiguities and drawing all inferences against the moving party, there exists a dispute about a material fact "such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); accord Bay v. Times Mirror Magazines, Inc., 936 F.2d 112, 116 (2d Cir. 1991). To defeat a motion for summary judgment, however, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus., 475 U.S. at 586. There is no issue for trial unless there exists sufficient evidence in the record favoring the party opposing summary judgment to support a jury verdict in that party's favor. Anderson, 477 U.S. at 249. As the Court held in Anderson, "[i]f the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Id. at 249-50 (citations omitted). Further, the "non-moving party may not rely on conclusory allegations or unsubstantiated speculation" to show that a genuine issue of fact exists. Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998).
B. Municipal Liability
In Monell v. Department of Soc. Servs., 436 U.S. 658 (1978), the Court held that a municipality cannot be held liable under § 1983 solely on a theory of respondeat superior. A municipality, however, may be liable under § 1983 when the deprivation of constitutional rights is the result of action pursuant to an official municipal policy. Id. at 690-91. A plaintiff need not show that the municipality had an explicitly stated policy, rule, or regulation; instead, a plaintiff may show that the municipality exhibited deliberate indifference to the possibility of such a constitutional violation. Vann v. City of New York, 72 F.3d 1040, 1048-49 (2d Cir. 1995). "Proof of a single incident of unconstitutional activity is not sufficient to impose liability under Monell, unless proof of the incident includes proof that it was caused by an existing, unconstitutional municipal policy, which policy can be attributed to a municipal policymaker." City of Oklahoma City v. Tuttle, 471 U.S. 808, 823-24 (1985).
The Port Authority is treated as a municipality for purposes of § 1983 liability under Monell. See Mack v. Port Authority of New York and New Jersey, 225 F. Supp. 2d 376, 383 n. 7 (S.D.N.Y. 2002).
Plaintiff concedes that he has produced no evidence showing that any of the conduct at issue was the result of deliberate indifference by the Port Authority or an official municipal policy. (Pl. Mem. at 2). Indeed, the record necessitates this concession. After completing discovery, which included extensive questioning of Port Authority personnel regarding the organization's policies and training practices, there is no such evidence. Therefore, defendants' motion for summary judgment on plaintiff's § 1983 claims against the Port Authority is granted.
Despite acknowledging that he produced no evidence to support § 1983 claims against the Port Authority under Monell, Garrett only concedes that summary judgment should be granted against his Sixth Cause of Action. (Pl. Mem. at 2). The Port Authority could only be liable to Garrett for the Fifth, Seventh, and Eighth Causes of Action under § 1983, however, if there was sufficient evidence to meet the Monell burden. Because Garrett concedes that he has not met that burden, and the Court's review of the record indicates that the concession is appropriate, I grant summary judgment on Garrett's Fifth, Sixth, Seventh, and Eighth Causes of Action to the extent they assert these claims against the Port Authority. (Compl. ¶¶ 27-40).
C. State Law Malicious Prosecution Claims
Defendants move for summary judgment against Garrett's malicious prosecution claims under state law, arguing that the disorderly conduct proceedings were not terminated in Garrett's favor. For the reasons stated below, the motion is granted.
1. Applicable Law
To state a claim for the tort of malicious prosecution under New York law, a plaintiff must prove: "(1) the initiation or continuation of a criminal proceeding against plaintiff; (2) termination of the proceeding in plaintiff's favor; (3) lack of probable cause for commencing the proceeding; and (4) actual malice as a motivation for defendant's actions." Murphy v. Lynn, 118 F.3d 938, 947 (2d Cir. 1997) (citation omitted).
Under New York law, the plaintiff in a malicious prosecution claim bears the burden of establishing that the underlying action terminated in his favor. MacFawn v. Kresler, 88 N.Y.2d 859 (1996). Although the cases in this area suffer from some "confusion," there are two primary means of proving favorable termination: "(1) an adjudication of the merits by the tribunal in the prior action, or (2) an act of withdrawal or abandonment on the part of the [prosecutor]." O'Brien v. Alexander, 101 F.3d 1479, 1486 (2d Cir. 1996) (citingHalberstadt v. New York City Life Ins. Co., 194 N.Y. 1, 10-11 (1909)). With respect to the first prong, termination is favorable to the plaintiff when it "involves the merits and indicates the accused's innocence." MacFawn, 88 N.Y.2d at 860;see also O'Brien, 101 F.3d at 1486-87; Velasquez v. City of New York, 960 F. Supp. 776, 779-80 (S.D.N.Y. 1997).
Although the abandonment prong is not obsolete, see Smith-Hunter v. Harvey, 95 N.Y.2d 191 (2000), numerous New York cases have narrowed the circumstances in which it may be used to prove favorable termination. See O'Brien, 101 F.3d at 1487 (citing cases and noting "atrophy of the abandonment prong"). For example, in MacFawn, the Court of Appeals concluded that the dismissal for legal insufficiency was not a favorable termination for purposes of malicious prosecution. 88 N.Y.2d at 860. TheMacFawn court reasoned that, because the action could be refiled, it was not terminated, either favorably or infavorably.Id. It reached this conclusion even though the prosecution had not opted to refile the charging instrument. Id.; see also O'Brien, 101 F.3d at 1487 ("One might have expected the [MacFawn] court to equate such a lack of action with an abandonment on the part of the State"). The opposite rule would: (1) risk the possibility of inconsistent judgments, Janetka v. Dabe, 892 F.2d 187, 189 (2d Cir. 1989), (2) allow parallel litigation of the underlying probable cause determination, Murphy v. Lynn, 118 F.3d 938, 948 (2d Cir. 1997), and (3) provide incentives for prosecutors and plaintiffs not to settle cases to avoid future malicious prosecution claims.
2. Application
Garrett has not shown that the dismissal was based on an adjudication of the merits or that the prosecution was abandoned at the time he filed the complaint. Therefore, defendant's motion is granted.
The summons for disorderly conduct was dismissed as "[l]egally [i]nsufficient." (Miller Aff. Ex. L). Although the summons does not state the basis for the insufficiency, defendants represent that it was dismissed because it "did not state that Mr. Garrett acted with `intent to cause public inconvenience, annoyance or alarm or recklessly creating a risk thereof,'" as is required to be guilty of disorderly conduct under New York law. (Def. Mem. at 6); see N.Y.P.L. § 240.20. Garrett does not contest defendants' characterization of the proceedings.
The action was dismissed on procedural grounds, and the merits of the case were never addressed. Thus, the termination was not indicative of Garrett's innocence for the purposes of his malicious prosecution claim. See Camilli v. Grimes, 436 F.3d 120, 124 (2d Cir. 2006) (citing O'Brien for the proposition that "New York law requires favorable judgment on the merits of suit on which malicious prosecution claim is based.").
Plaintiff has also failed to provide any evidence that there was a "formal abandonment" of the disorderly conduct charge at the time he filed this action. See Martin v. Columbia Greene Human Soc., Inc., 793 N.Y.S.2d 586, 588 (2005) (citingSmith-Hunter v. Harvey, 95 N.Y.2d 191, 196-98 (2000) and Stay v. Horvath, 177 A.D.2d 897, 899 (3d Dep't 1991). As discussed, New York courts have concluded that similar state dispositions did not constitute withdrawal or abandonment. See O'Brien, 101 F.3d at 1487 (discussing cases); Murphy v. Lynn, 118 F.3d 938, 947 (2d Cir. 1997) (same). Therefore, Garrett has not satisfied either prong of the test for the favorable termination element under New York law.
The cases presented by Garrett are not to the contrary. First, the Appellate Division's holding in Chmielewski v. Smith, 73 A.D.2d 1053 (4th Dep't 1980), predates the rule announced by the New York Court of Appeals in MacFawn by fourteen years. Second,Chmielewski merely stated that "this dismissal for lack of evidence to prosecute, if such was the case, is a termination favorable to plaintiff." Chmielewski, 73 A.D.2d at 1053 (emphasis added). Garrett has not shown, and a reasonable jury could not find, that his disorderly conduct charge was dismissed because of a lack of evidence. Instead, it appears that the summons was facially deficient and could have been re-filed. He has not met his burden and the conditional language ofChmielewski does not apply.
Smith-Hunter v. Harvey, 95 N.Y.2d 191 (2000), is also inapposite. The underlying criminal action in that case was dismissed on speedy trial grounds. Id. at 194; see N.Y.C.P.L. § 30.30. Therefore, the proceedings were terminated favorably to the plaintiff because the criminal charges could not be re-filed and the disposition was final. Id. at 199. The Smith-Hunter court distinguished MacFawn, reasoning that, in that case, "the [State] remained `at liberty to amend the information to correct the deficiency.'" Id. at 197 (quoting MacFawn, 88 N.Y.2d at 860). The same reasoning applies to Garrett's case. His dismissal, like that in MacFawn, was based on legal insufficiency of the summons. There is no evidence that the criminal action was dismissed with prejudice or that the charge could not have been re-filed. Indeed, on the facts presented, the prosecution could have alleged that Garrett acted with the intent to cause public inconvenience or annoyance or, at a minimum, that he "recklessly creat[ed] a risk thereof." See N.Y.P.L. § 240.20. Thus, if a malicious prosecution claim proceeded in this case, "there might be two conflicting determinations as to the same transaction." Id. (quoting Robins v. Robins, 133 N.Y. 597, 599 (1892)).
Based on plaintiff's failure to provide evidence regarding the termination or to object to defendants' characterization of the proceedings, it would be "unsubstantiated speculation" for the Court to find that an issue of material fact exists as to the favorable termination element. See Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998). Defendants' motion is granted in this respect.
D. § 1983 Malicious Prosecution Claim 1. Applicable Law
To prevail on a § 1983 malicious prosecution claim, a plaintiff must establish the elements of malicious prosecution under state law, and then show that his Fourth Amendment rights were violated after legal proceedings were initiated. See Fulton v. Robinson, 289 F.3d 188, 195 (2d Cir. 2002) (citations omitted). For the constitutional element, plaintiff must show a seizure or other "perversion of proper legal procedures" implicating the plaintiff's personal liberty and privacy interests under the Fourth Amendment. Washington v. County of Rockland, 373 F.3d 310, 316 (2d Cir. 2004).
Criminal proceedings are considered to be initiated "only after an arraignment or indictment or some other `evaluation by a neutral body that the charges [were] warranted.'" Silver v. Kuehbeck, 05 Civ. 36 (RPP), 2005 WL 2990642, at *5 (S.D.N.Y. Nov. 7, 2005) (quoting Stile v. City of New York, 172 A.D.2d 743, 744 (2d Dep't 1992); see also Broughton v. State, 37 N.Y.2d 451, 457-59 (1975). "Typically, a warrantless deprivation of liberty from the moment of arrest to the time of arraignment will find its analog in the tort of false arrest, while the tort of malicious prosecution will implicate post-arraignment deprivations of liberty." Singer, 63 F.3d at 117 (citations omitted); see also Katzev v. Newman, 96 Civ. 9138 (BSJ), 2000 WL 23229, at *4 (S.D.N.Y. Jan. 12, 2000) ("a charge and a warrantless arrest — concluding with the issuance of the desk appearance ticket — may be a sufficient deprivation of liberty to support a claim for false arrests but do not amount to a prosecution and cannot alone support a claim for malicious prosecution.").
2. Application
Garrett has not provided sufficient evidence of a state law malicious prosecution claim or the constitutional element of the § 1983 malicious prosecution claim. Accordingly, defendants' motion on his § 1983 malicious prosecution claim is granted.
For the reasons set forth above, Garrett has not met his burden on the malicious prosecution claim under New York law. Thus, his malicious prosecution claim under § 1983 is fatally deficient as well. See Fulton, 289 F.3d at 195. With respect to the Fourth Amendment element of his § 1983 claim, Garrett argues that the issuance of the summons by Officer Tuite was an "abuse of judicial process," and that he was "required to appear" in court. (Pl. Mem. at 9, 12). These statements are both factually incorrect and an insufficient basis for a malicious prosecution claim under § 1983. Therefore, even assuming Garrett established all the elements of a malicious prosecution claim under New York law, his federal claim must be dismissed.
First, the initiation of the legal process in the form of either an arrest warrant or an arraignment is a prerequisite to a malicious prosecution claim. Singer, 63 F.3d at 117; see also Katzev, 2000 WL 23229, at *4. Therefore, although Officer Tuite's issuance of a summons may be relevant to Garrett's false arrest claims, the ticket was not the initiation of legal process for the purposes of the § 1983 malicious prosecution claim. Absent the initiation of proceedings, a court appearance pursuant to the summons alone cannot give rise to a malicious prosecution claim.
Plaintiff relies on Rohman v. Bianco, 215 F.2d 208 (2d Cir. 2000), for the proposition that Officer Tuite's summons resulted in "the initiation . . . of judicial proceedings." (Pl. Mem. at 9). He acknowledges in passing, however, that Rohman involved a post-arraignment deprivation of liberty and that Rohman was subsequently required to appear in court on five separate occasions. (Id. at 8-9). These concessions prove too much; they are precisely the reasons that Rohman offers no support for Garrett's claim. Judicial proceedings were not initiated against Garrett because an arrest warrant was not issued and there had not been an arraignment. See Singer, 63 F.3d at 117. Additionally, while Rohman's five appearances do not serve as a bright line rule for the magnitude of the seizure required in a § 1983 malicious prosecution claim, Garrett's single missed court appearance falls far short of an "unreasonable or unwarranted restraint" on his personal liberty.Id. Instead of supporting plaintiff's claim, Rohman serves as additional authority for granting defendants' motion.
In any event, there was not a seizure that rose to the level of a Fourth Amendment violation. First, the summons did not require Garrett to appear in court. Garrett could have opted to answer by mail and probably could have avoided the appearance all together. (See Miller Aff. Ex. L). Second, Garrett missed his scheduled court appearance because he was tardy. Even assuming, arguendo, that judicial proceedings were initiated by the summons and that Garrett was required to appear, he did not actually do so. Therefore, there was no seizure. See Katzev, 2000 WL 23229, at *5 ("Plaintiff was not arrested pursuant to a warrant, plaintiff was not arraigned, and there was no post-arraignment deprivation of liberty. Therefore, plaintiff cannot make out a claim for malicious prosecution.").
The portion of the summons that is in the record states: "You must answer this ticket within 15 days of the date of the offense. To answer by mail, see the other side and post mark your answer within 15 days." (Miller Aff. Ex. L).
Legal process was not instituted prior to the dismissal of Garrett's disorderly conduct summons, and there was not an unreasonable Fourth Amendment seizure. Because there is no genuine issue of material fact as to either of these elements of the § 1983 malicious prosecution claim, defendants' motion is granted.
CONCLUSION
For the foregoing reasons, defendants' motion for partial summary judgment is granted. Plaintiff's civil rights claims against the Port Authority under 42 U.S.C. § 1983 and the malicious prosecution claims in their entirety are dismissed. A pretrial conference will be held on August 25, 2006 at 3:00 p.m.
SO ORDERED.