Summary
finding police officer did not initiate criminal proceeding for purposes of § 1983 malicious prosecution claim because there was no evidence that any of the information he provided to prosecutors was false
Summary of this case from Hall v. City of PhiladelphiaOpinion
Civil Action No. 96-8534.
July 22, 1998
MEMORANDUM
Presently before the Court is a motion for summary judgment filed by Defendant Charles Micewski, Defendant Edward Eggles and Defendant John Sunderhauf ("Defendants"). For the reasons which follow, the Court will grant Defendants' motion.
Plaintiff Rafael Merrero initially brought this action, along with his wife Wanda Merrero, against the City of Philadelphia, the Philadelphia District Attorney's Office, the Commonwealth of Pennsylvania and its Office of Attorney General, as well as individual Defendants Charles Micewski, Edward Eggles and John Sunderhauf. In their initial complaint, Rafael and Wanda Merrero alleged that Rafael Merrero was wrongfully arrested and prosecuted in violation of his rights under the Fourth, Fifth and Fourteenth Amendments of the Constitution. Plaintiffs sought relief under 42 U.S.C. § 1983, as well as under various state laws. Following the filing of their complaint, Plaintiffs voluntarily dismissed the City of Philadelphia and the District Attorney's Office as defendants. The remaining defendants moved to dismiss Plaintiffs' complaint. The Court dismissed Plaintiffs' complaint as against the Commonwealth of Pennsylvania and the Office of Attorney General. The Court also dismissed Plaintiff's claims which arose from his allegedly wrongful arrest on the ground that said claims were barred by the statute of limitations. However, the Court allowed Plaintiff to proceed with his claims of malicious prosecution, under § 1983 and state law. Following the dissolution of Plaintiff's marriage, the claims of Wanda Merrero were voluntarily dismissed. Following a period of discovery, the remaining Defendants Charles Micewski, Edward Eggles and John Sunderhauf filed the instant motion for summary judgment.
The undisputed facts, as disclosed by the affidavits and exhibits submitted in connection with this motion for summary judgment, are summarized as follows:
On April 6, 1994, Plaintiff Rafael Merrero was arrested, along with one Jairo Polanco, by Philadelphia law enforcement officers. At the time of his arrest, Plaintiff was twenty-one years old, and had been in the United States, for approximately three months. Plaintiff was born in the Dominican Republic, and came to Philadelphia in early 1994. Plaintiff is not and has never been a citizen of the United States. Plaintiff has stated, however, that at the time of his arrest, he believed that he had permission to be in the United States.
At the time of Plaintiff's arrest, Defendant Charles Micewski was employed as a sergeant for the Philadelphia Police Department, and had been assigned to the Office of Attorney General, Bureau of Narcotics Investigations and Drug Control ("BNI"), a drug task force operated through the Commonwealth of Pennsylvania's Attorney General's Office. Defendant Edward Eggles was a BNI narcotics agent employed by the Office of the Attorney General. Defendant John Sunderhauf was the Regional Director of the BNI's Region IX Office.
At the time of his arrest, Plaintiff was driving a large blue Chrysler New Yorker automobile. Jairo Polanco was sitting in the passenger seat of the vehicle, carrying a large shopping bag between his legs. Plaintiff and Polanco were arrested after police officers forced a stop of their automobile at 9th and Cayuga Streets in Hunting Park, North Philadelphia. Police officers searched the automobile. The bag between Polanco's legs was found to contain numerous vials of a substance which appeared to be crack cocaine. In addition, the automobile was found to have a hidden compartment behind the glove box which contained numerous vials of a substance which appeared to be crack cocaine. Over 2000 vials were discovered in the automobile. A field test of the contents of randomly selected vials revealed the presence of crack cocaine. The field test results were later confirmed by lab analysis.
Defendant Micewski was one of several police officers who participated in Plaintiff's arrest and the incident search of the automobile. Defendants Eggles and Sunderhauf did not participate in the arrest or the automobile search.
Shortly after Plaintiff's arrest, Defendant Micewski prepared an application for a warrant to search the residence located at 4452 N. 3rd Street. In his affidavit for probable cause, submitted with his application for a search warrant, Micewski averred that he had undertaken surveillance of the residence at 4452 N. 3rd Street following a tip from a reliable informant. According to Micewski's affidavit, the informant's tip stated that two Dominican males in their early to midtwenties were packaging and distributing crack cocaine inside 4452 N. 3rd Street, and were making daily deliveries of crack to 5th and Westmoreland Streets for street sales. According to Micewski's affidavit, the tip further stated that one of the males drove a silver-blue Chrysler New Yorker automobile.
In the affidavit for probable cause, Micewski averred that, on the afternoon of April 6, 1994, he observed Plaintiff and Jairo Polanco exit the residence at 4452 N. 3rd Street and get into a blue Chrysler New Yorker parked on the street across from the residence. Micewski further averred that Polanco was carrying a large shopping bag. According to the affidavit for probable cause, Micewski walked by the automobile after Plaintiff and Polanco got into the vehicle, and witnessed Polanco shoving bundles of what Micewski believed to be crack cocaine into a hidden compartment behind the glove box. Micewski averred that he returned to his vehicle and radioed for back-up, at which point Plaintiff began driving away. According to the affidavit of probable cause, police responding to Micewski's call for backup forced a stop of Plaintiff's automobile after Plaintiff had refused the officers' signals to stop. At that point, Plaintiff and Polanco were arrested, the automobile and Polanco's bag were searched and the vials of crack cocaine were recovered.
A search warrant was issued for a search of 4452 N. 3rd Street, and several officers searched the house on the afternoon of April 6, 1994. Defendant Micewski participated in the search, as did Defendant Eggles. Defendant Micewski prepared the Evidence/Property Record which documented what was obtained in the search. Defendant Eggles may have assisted Defendant Micewski in preparing paperwork relating to the search. According to the Evidence/Property Record, the search of 4452 N. 3rd Street recovered 106 vials of crack cocaine, as well as seven bags (914 grams) of cocaine powder, thousands of empty vials, three boxes of sandwich bags, a grinder, a scale and a mask, sixteen empty kilo wrappers, one plate and one bowl with a residue that tested positive for cocaine, and numerous personal papers.
Following the search of 4452 N. 3rd Street, Defendant Micewski prepared a "Complaint Fact Record," which recounted the arrest of Plaintiff and Polanco, as well as the subsequent search of 4452 N. 3rd Street. The Complaint Fact Record enumerated the following counts against Plaintiff and Polanco: possession of a controlled substance; possession of a controlled substance with intent to deliver; possession of drug paraphernalia and criminal conspiracy. Micewski faxed the Complaint Fact Record to the Philadelphia District Attorney's Charging Unit, along with a copy of the search warrant for 4452 N. 3rd Street and its supporting affidavit of probable cause. Defendant Sunderhauf, as Regional Director of Region IX, may have reviewed and signed off on the paperwork prepared by Defendant Micewksi in connection with this Plaintiff.
On the date of Plaintiff's arrest, April 6, 1994, a detainer was issued against Plaintiff by the U.S. Immigration Department. On April 7, 1994, the District Attorney's Office filed a sworn criminal complaint against Plaintiff, charging him with the counts enumerated in the Complaint Fact Record which had been prepared by Sergeant Micewski.
Following the filing of the criminal complaint against him, Plaintiff appeared before a bail commissioner. The bail commissioner informed Plaintiff of the charges against him, set a date for a preliminary hearing and set bail at one million dollars ($1,000,000).
On April 27, 1994, a preliminary hearing was held on the charges against Plaintiff. Plaintiff was represented by counsel at the hearing. Defendant Micewski testified at Plaintiff's preliminary hearing. Micewski's testimony regarding Plaintiff's arrest was consistent with his averments in his affidavit of probable cause and in the complaint fact record. Micewski also testified about the search of 4452 N. 3rd Street. Following the preliminary hearing, the Municipal Court judge found that the evidence established a prima facie case against the Plaintiff as to all charges.
On May 24, 1994, the District Attorney filed criminal informations against Plaintiff, charging him with knowing and intentional possession of a controlled substance, possession of a controlled substance with intent to deliver, possession of drug paraphernalia, and criminal conspiracy.
Plaintiff remained in prison for over two years following the filing of the criminal complaints against him. Although the criminal complaints remained pending, Plaintiff never went to trial on these charges. An examination of the records in Plaintiff's criminal case reveals various reasons for the delay, including the court's crowded docket and the fact that Plaintiff had apparently not been appointed counsel.
On January 4, 1995, Plaintiff's co-defendant, Jairo Polanco, was convicted of all charges against him. Polanco was convicted by the Honorable Abram Frank Reynolds, in the Court of Common Pleas of Philadelphia, Family Division — apparently because Polanco had originally represented that he was a minor.
On February 22, 1996, Plaintiff's bail was reduced to one thousand dollars ($1000.00), and Plaintiff was allowed to sign his own bond and be released on his own recognizance. Although he signed the bond, Plaintiff was not released for an additional four months. Apparently, Plaintiff remained in custody pursuant to the detainer issued by the U.S. Immigration Department.
Plaintiff was finally released from prison in June 1996, more than two years after his arrest. On July 1, 1996, the District Attorney nolle prossed all criminal charges filed against Plaintiff. The District Attorney has never provided a reason for the decision to nolle prosse the charges against Plaintiff. According to a letter issued to Plaintiff's counsel by an attorney in the Office of the District Attorney, the decision to nolle pros Plaintiff's case "would have been made in the exercise of prosecutorial discretion following a review of the case."
Although the above-stated facts are undisputed, Plaintiff disputes the truth of several averments in the affidavit of probable cause which Officer Micewski prepared in connection with the application for a search warrant for 4452 N. 3rd Street. Specifically, Plaintiff takes issue with Micewski's statement that, shortly before Plaintiff's arrest on April 6, 1994, Micewski observed Plaintiff and Polanco exit 4452 N. 3rd Street, and observed Plaintiff and Polanco sitting in an automobile outside the residence while Polanco shoved drugs into the automobile's glove box. In his deposition testimony, submitted in connection with the instant motion, Plaintiff testified that he was not at 4452 N. 3rd Street on April 6, 1994, and in fact, has never been to said residence. Plaintiff further testified that he was never present in the automobile with Jairo Polanco while Polanco stowed drugs in the automobile glove box. According to his deposition testimony, Plaintiff picked up Jairo Polanco in the early afternoon of April 6, 1994, on Cayuga and 3rd or 4th Street (approximately one block south of the residence at 4452 N. 3rd Street). Plaintiff testified that he picked up Polanco because he was asked to do so by an acquaintance who loaned Plaintiff his blue Chrysler New Yorker automobile. According to Plaintiff's deposition testimony, the acquaintance instructed Plaintiff to pick up Polanco and drive him back to a restaurant at 5th and Hunting Park. Plaintiff testified that, although he saw that Polanco was carrying a shopping bag when he got into the automobile, Plaintiff did not know that Polanco's bag contained vials of crack cocaine. Additionally, Plaintiff testified that he did not know that there were drugs in the automobile. Furthermore, Plaintiff testified in his deposition that he had not received any signals by police to stop the automobile before officers forced him to stop.
Rule 56 of the Federal Rules of Civil Procedure provides that a court shall grant summary judgment "if 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 a judgment as a matter of law." Fed.R.Civ.P. 56(c).
The law is clear that when a motion for summary judgment under Fed.R.Civ.P. 56 is properly made, the non-moving party cannot rest on the mere allegations of the pleadings. Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). Rather, in order to defeat the motion for summary judgment, the non-moving party, by its own affidavits, or by depositions, answers to interrogatories or admissions on file, "must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). "The mere existence of a scintilla of evidence" in support of the non-movant's position will not be sufficient to defeat a motion for summary judgment. Anderson, 477 U.S. at 252.
For purposes of summary judgment, a fact is "material" if it might affect the outcome of the case, and an issue is "genuine" if evidence is such that a reasonable fact finder could return a verdict in favor of the non-moving party. In re Headquarters Dodge, Inc., 13 F.3d 674, 679 (3d Cir. 1994).
In the instant case, Defendants contend that the case is appropriate for disposition on summary judgment because there are no disputes of material fact. In other words, Defendants contend, if the Court disregards all disputed facts in this case, and considers only the undisputed admissible evidence before it, the Court must grant summary judgment in favor of Defendants.
Plaintiff has alleged claims of malicious prosecution under common law and under 42 U.S.C. § 1983. The Court will assume that Plaintiff's § 1983 claim of malicious prosecution implicates his Fourth Amendment right to be free of unreasonable "seizure." Although the Supreme Court has made clear that there is no Fourteenth Amendment substantive due process right to be free from malicious prosecution, the Supreme Court has not foreclosed the possibility that a malicious prosecution claim implicates the Fourth Amendment right to be free from unreasonable "seizure."Albright v. Oliver, 510 U.S. 266, 269-271 (1994). Several Circuits have recognized a malicious prosecution claim under the Fourth Amendment. See, e.g., Singer v. Fulton County Sheriff, 63 F.3d 110, 115 n. 4 (2d Cir. 1995); Smart v. Board of Trustees, 34 F.3d 432, 434 (7th Cir. 1994).
Although the Third Circuit has not directly stated that a person has a Fourth Amendment right to be free of malicious prosecution, the Third Circuit has allowed malicious prosecution claims to proceed under § 1983 subsequent to the Supreme Court's decision in Albright. See, Hilfirty v. Shipman, 91 F.3d 573, 579 (3d Cir. 1996). Several District Courts in this District have thus concluded that a plaintiff may proceed with a § 1983 malicious prosecution claim based on the Fourth Amendment right to be free from unreasonable "seizure." See e.g., Gallo v. City of Philadelphia, 975 F.Supp. 723 (E.D. Pa. 1997); Trueman v. Lekberg, 1998 WL 181816, 1 n. 4 (E.D. Pa. Apr. 16 1998). Accordingly, the Court will consider Plaintiff's § 1983 claim of malicious prosecution as a claim that Plaintiff was unreasonably "seized" in violation of his Fourth Amendment right.
Under both § 1983 and Pennsylvania common law, a plaintiff bringing a malicious prosecution claim must establish that (1) the defendant initiated a criminal proceeding; (2) the criminal proceeding ended in the plaintiff's favor; (3) the proceeding was initiated without probable cause; and (4) the defendant acted maliciously or for a purpose other than bringing the plaintiff to justice. Hilfirty, 91 F.3d at 579. The Third Circuit has recognized that a grant of nolle prosequi can be sufficient to satisfy the favorable termination requirement for a malicious prosecution claim. Id. (citing Haefner v. Burkey, 534 Pa. 62, 66, 626 A.2d 519, 521 (1993)).
In most circumstances, a plaintiff can not proceed against a police officer for a claim of malicious prosecution because a prosecutor, not a police officer, "initiates" criminal proceedings against an individual. See Albright, 510 U.S. at 279 n. 5 (Ginsburg, J. concurring). Although a prosecutor may initiate criminal proceedings based on information received from a police officer, the prosecutor does so only after independently reviewing the information and exercising his or her discretion to initiate such proceedings. See, Reed v. City of Chicago, 77 F.3d 1049, 1053 (7th Cir. 1996); see also, Torres v. McLaughlin, 966 F.Supp 1353, 1365 (E.D. Pa. 1997) (quoting Restatement 2d Torts § 653 cmt. g).
A police officer may only be held to have "initiated" a criminal proceeding if he knowingly provided false information to the prosecutor or otherwise interfered with the prosecutor's informed discretion. See, Reed, 77 F.3d at 1054; Torres, 966 F.Supp. at 1365. In such cases, "an intelligent exercise of the . . . [prosecutor's] discretion becomes impossible," and a prosecution based on the false information is deemed "procured by the person giving the false information." Restatement 2d Torts § 653, cmt. g.
In the instant case, Plaintiff has presented no evidence that Defendants Edward Eggles or John Sunderhauf initiated criminal proceedings against him. Defendant Eggles' only involvement in the instant case is the fact that Eggles participated in the search of 4452 N. 3rd Street and may have helped Defendant Micewski prepare some documents in connection with the search. Defendant Eggles did not forward any of these reports to anyone in the District Attorney's office and did not otherwise communicate with anyone in the DA's office regarding this Plaintiff. Furthermore, Eggles did not testify at Plaintiff's preliminary hearing. Accordingly, there is no evidence that Defendant Eggles provided any information to the prosecutor — true or false — regarding the Plaintiff in the instant case.
Defendant Sunderhauf's only involvement with this Plaintiff is that, as Regional Director of Region IX, Sunderhauf may have reviewed and signed off on the paperwork prepared by Defendant Micewski in connection with this Plaintiff. Defendant Sunderhauf did not participate in Plaintiff's arrest or prosecution and did not participate in the search of 4452 N. 3rd Street. He did not prepare any reports regarding Plaintiff's arrest or prosecution. He did not forward any reports regarding Plaintiff to the District Attorney's office, and did not otherwise communicate with the District Attorney personnel concerning Plaintiff's case. As with Defendant Eggles, there is no evidence that Defendant Sunderhauf provided any information to the prosecutor — true or false — regarding this Plaintiff.
Plaintiff attempts to argue that Defendant Sunderhauf should be held liable because, as supervisor, he knew or should have known of violative conduct by his subordinates. However, it is well-settled that allegations of negligence will not support a claim under § 1983. Daniels v. Williams, 474 U.S. 327, 328, 106 S.Ct. 662, 663 (1986). A supervisor can not be held liable for a subordinate's violative conduct unless he knew and approved of the conduct. Robinson v. City of Pittsburgh, 120 F.3d 1286, 1293-95 (3d Cir. 1997). Moreover, pursuant to Pennsylvania statute, Defendant Sunderhauf is statutorily immune from suit with respect to claims of negligence which arise within the scope of his duties as a Commonwealth employee. 1 Pa.C.S. § 2310; See Pickering v. Sacavage, 164 Pa.Comwlth. Ct. 117, 126-127, 642 A.2d 555, 559, appeal denied, 652 A.2d 841 (1994).
Additionally, Plaintiff has failed to present any evidence that Defendant Micewski initiated the criminal proceedings against him. Although Defendant Micewski did provide information to the District Attorney's office regarding this Plaintiff, Plaintiff has produced no evidence that Micewski knowingly provided false information to the District Attorney's office.
As evidenced by the undisputed facts above, Plaintiff's testimony regarding his arrest does not differ significantly from the account provided by Officer Micewski. To the extent that Plaintiff's account differs from that of Officer Micewski, such discrepancies are not sufficient to create an inference that Officer Micewski knowingly and intentionally provided false information to the prosecution, thereby initiating the criminal proceedings against Plaintiff. Plaintiff disputes that he was observed exiting the residence at 4452 N. 3rd Street, and disputes that he sat in the automobile with Polanco while Polanco stowed drugs in the automobile glove box. However, Plaintiff does not dispute the basic facts which gave rise to his arrest and the charges against him — that he was driving an automobile which contained over 2000 vials of crack cocaine, and that Jairo Polanco, the other person in the automobile, held a large amount of crack cocaine in a shopping bag which he had with him in the automobile. Moreover, it is undisputed that Micewski received a tip from a reliable informant that two Dominican males in their early to mid-twenties were packaging and distributing drugs from 4452 N. 3rd Street, and that one of these males drove a blue Chrysler New Yorker. Because most of the information contained in Micewski's affidavit of probable cause remains undisputed (which information was reiterated in the complaint fact record and at Plaintiff's preliminary hearing), the few disputed issues created by Plaintiff's testimony do not create an inference that Defendant Micewski knowingly provided false information to prosecutors, and thereby initiated the criminal proceedings against Plaintiff.
Furthermore, Plaintiff has failed to produce any evidence that the charges against him were initiated without probable cause. Accepting Plaintiff's testimony as true, no reasonable fact-finder could find that the charges against Plaintiff were not supported by probable cause.
In order to establish lack of probable cause, a plaintiff must prove that, at the time the charges were instituted against him, the facts, circumstances and information known were insufficient to permit a person of reasonable caution to believe that plaintiff had committed any of the crimes charged. Hunter v. Bryant, 502 U.S. 224 (1991); Martinez v. E.J. Korvette, Inc., 477 F.2d 1014, 1016 (3d Cir. 1973); Bruch v. Clark, 352 Pa.Super. 225, 228-229, 507 A.2d 854, 856 (1986). In considering whether probable cause existed, the issue is not whether the person charged actually committed the crime, but whether a reasonable person could have believed that the person actually committed the crime. Ornelas v. United States, 517 U.S. 690, 695-696 (1996) (citing Brinegar v. United States, 338 U.S. 160, 175-176 (1949)); Dowling v. City of Philadelphia, 855 F.2d 136, 141 (3d Cir. 1988).
Plaintiff in the instant case was charged with knowing and intentional possession of a controlled substance, possession of a controlled substance with intent to deliver, possession of drug paraphernalia, and criminal conspiracy. With respect to the charge of possession of a controlled substance, Pennsylvania Courts have regularly found that a driver of an automobile was in knowing and intentional possession of a controlled substance when the substance was found in the automobile. See e.g., Commonwealth v. Haskins, 450 Pa.Super. 540, 544, 677 A.2d 328, 330 (1996), Appeal Denied, 547 Pa. 751, 692 A.2d 563 (1997). With respect to the charge of possession with intent to deliver, the intent to deliver may be inferred solely from possession of a large quantity of a controlled substance. Commonwealth v. Jackson, 435 Pa. Super. 410, 413-414, 645 A.2d 1366, 1368 (1994). With respect to the charge of possession of drug paraphernalia, Pennsylvania statute, 35 P.S. § 780-102(a)(9), defines "drug paraphernalia" as "capsules, balloons, envelopes and other containers used, intended for use or designed for use in packaging small quantities of controlled substances." With respect to the charge of unlawful conspiracy, Pennsylvania Courts have stated that a conspiracy may be established by circumstantial evidence regarding the relation, conduct, actions and circumstances of the alleged co-conspirators. See, e.g., Commonwealth v. Cruz-Ortega, 372 Pa.Super. 389, 393-394, 539 A.2d 849, 851-2 (1988).
In the instant case, there was probable cause at the time of Plaintiff's arrest to support each of the criminal charges initiated against him. There was probable cause to support the charges of possession of a controlled substance and possession of drug paraphernalia because a reasonable person could have assumed that Plaintiff was in possession of the vials of crack cocaine found in the automobile which he was driving. There was probable cause to support the charge of possession with intent to deliver because of the sheer quantity of drugs found in the automobile — over 2000 vials of crack cocaine. There was probable cause to support the charge of criminal conspiracy in light of the fact that Plaintiff, driving a blue Chrysler New Yorker automobile (as described in the informant's tip), picked up Jairo Polanco who was carrying a bag which contained vials of crack cocaine identical to those stowed in the automobile glove compartment.
Plaintiff argues that the charges against him were not supported by probable cause because Defendant Micewski did not have probable cause to stop and search the automobile which Plaintiff was driving. This argument is without merit. An officer may stop an automobile and search its entire interior contents if the officer has probable cause to believe that the vehicle contained contraband, illegal material or evidence of a crime.Pennsylvania v. Labron, 116 S.Ct. 2485 (1996). Even if an officer does not have probable cause to believe the automobile contains fruits of a crime, the officer may nonetheless stop and temporarily detain persons without violating the Fourth Amendment, provided that the officer has a reasonable suspicion that "criminal activity may be afoot." Terry v. Ohio, 392 U.S. 1, 30 (1968). Additionally, the officer may lawfully conduct a protective search of the automobile passenger compartment limited to areas where a weapon may be hidden. Michigan v. Long, 463 U.S. 1032, 1045-53 (1983). If, while conducting the search, the officer finds illegal material other than weapons, the material may be seized and used as evidence. Id.
The undisputed facts in the instant case reveal that Officer Micewski could lawfully stop the automobile which Plaintiff was driving. According to the undisputed facts, on April 6, 1994, Micewski received a tip from a reliable informant that two Dominican males in their early to mid-twenties — one of whom drove a blue Chrysler New Yorker — were packaging and distributing drugs from the residence at 4452 N. 3rd Street and delivering the drugs to 5th and Westmoreland Accepting Plaintiff's testimony as true, on April 6, 1994 (the day Officer Micewski received the tip), Micewski would have observed Plaintiff (a Dominican male in his early twenties), approximately one block from 4452 N. 3rd Street, driving a blue Chrysler New Yorker to pick up Jairo Polanco (a Dominican male in his early to mid-twenties), who was carrying a shopping bag. Plaintiff then began driving in the direction of 5th Street. These observations gave Micewski probable cause to believe that the automobile carrying Polanco contained contraband, illegal material or evidence of a crime. At the very least, these observations provided a reasonable suspicion which would justify an investigative stop of the automobile under Terry.
Furthermore, Plaintiff has produced no evidence that Defendants acted maliciously or for a purpose other than bringing the Plaintiff to justice. As explained above, the criminal proceedings against Plaintiff were supported by probable cause. The fact that Plaintiff disputes some aspects of Defendant Micewski's account of his arrest is not sufficient to create an inference that Defendant Micewski, or Defendants Eggles or Sunderhauf, acted against Plaintiff with malice or for a purpose other than to bring Plaintiff to justice.
Apparently in an attempt to show that Defendants knowingly provided false information and acted with malice against him, Plaintiff has submitted materials pertaining to other criminal cases which were nolle prossed and were investigated by BNI agents. None of the cases involved the individual Defendants in the instant case.
Most of this material which Plaintiff submitted is inadmissible hearsay. More importantly, however, the material is simply not relevant to whether the individual Defendants in the instant case initiated criminal proceedings against Plaintiff without probable cause and with a malicious purpose or a purpose other than to bring Plaintiff to justice. Plaintiff's general and conclusory allegations of malice are plainly not sufficient to satisfy his burden to "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e).
Accordingly, Plaintiff has failed to create a genuine issue of material fact with respect to his claim of malicious prosecution against Defendants Edward Eggles, John Sunderhauf and Charles Micewski. Plaintiff has produced no evidence that these Defendants initiated the criminal proceedings against him. Furthermore, Plaintiff has produced no evidence that the charges brought against him lacked probable cause. Moreover, Plaintiff has produced no evidence that Defendants acted maliciously or for a purpose other than bringing the Plaintiff to justice.
The Court recognizes that Plaintiff suffered a great wrong. Plaintiff was held in prison for over two years without trial, on charges which were eventually dropped. However, the Court can not hold Defendants Eggles, Sunderhauf, and Micewski liable for this wrong. As explained above, Plaintiff has produced no evidence which could lead a reasonable fact-finder to conclude that Defendants Eggles, Sunderhauf or Micewski committed malicious prosecution against him. Accordingly, the Court will enter summary judgment in favor of Defendants and against Plaintiff Merrero.
An appropriate Order follows.
ORDER
AND NOW, this 22nd day of July, 1998; upon consideration of the motion for summary judgment filed by Defendants Charles Micewski, Edward Eggles and John Sunderhauf and Plaintiff's response thereto; and for the reasons stated in the Court's accompanying memorandum;IT IS ORDERED: Defendants' motion for summary judgment is GRANTED and Judgment shall be entered in favor of Defendants Charles Micewski, Edward Eggles and John Sunderhauf and against Plaintiff Rafael Merrero.