Opinion
00 Civ. 0725 (MBM)
November 5, 2002
OTIS PERKINS (Plaintiff pro se), 00-A-3607 Clinton Correctional Facility Dannemora, New York.
KATHLEEN A. DALY, ESQ. Serchuk Zelermyer White Plains, New York.
OPINION AND ORDER
In a Report and Recommendation dated September 6, 2001 ("Report"), Magistrate Judge Mark D. Fox, to whom this matter was referred, recommended that defendants' joint motion for summary judgment be granted in full and that plaintiff's application seeking to amend his complaint to add a claim of defamation against Sergeant Debara be denied. Magistrate Judge Fox recommended that plaintiff's § 1983 claim against the City of New Rochelle, the New Rochelle Police Department, and defendants Hearle and Joseph in their official capacities be dismissed because plaintiff has made no allegations to support the inference that the police officers were acting in accordance with an official policy or custom allowing the' violation of plaintiff's constitutional rights. Magistrate Judge Fox recommended that plaintiff's false arrest and false imprisonment claims against Hearle and Joseph in their individual capacities be dismissed on the ground that there was probable cause for Perkins' arrest, and that plaintiff's malicious prosecution claim against Hearle and Joseph in their individual capacities be dismissed because Perkins has failed to allege, and cannot allege, that the prosecution was terminated favorably to him. Magistrate Judge Fox recommended that plaintiff's apparent constitutional defamation claim against Hearle and Joseph be dismissed because plaintiff does not assert that defendants' actions resulted in the loss of a federally protected property interest.
The Magistrate Judge recommended also that plaintiff's pendent state law claims against the City of New Rochelle, the New Rochelle Police Department, and individual defendants in their official capacities be dismissed in their entirety because plaintiff failed to comply with New York's statutory notice of claim requirement. Further, he recommended that plaintiff's pendent claims against defendant Joseph in his individual capacity be dismissed because Joseph's alleged libel and slander in the form of grand jury testimony is absolutely privileged, and his complaints, affidavits, and documentation submitted to the District Attorney, all of which are cloaked with a qualified privilege, have not been shown to be the product of malice. Likewise, the Magistrate Judge recommended that the pendent defamation claim against defendant Hearle be dismissed because the communications to the Gannett Newspaper, which are qualifiedly privileged, have also not been shown to be the product of malice.
Finally, the Magistrate Judge recommended that plaintiff's request to amend his complaint to add a claim of defamation against a new defendant, Sergeant Debara of the New Rochelle Police Department, be denied on two separate grounds: that the amended complaint does not reveal any allegation sufficient to support an inference of malice on the part of defendants, and that the allegation of defamation against Sergeant Debara is time barred under CPLR § 215(3).
On September 13, 2001, plaintiff filed timely but general objections to the Report. Because Perkins appears to make a blanket objection to the Report, the Report as a whole is reviewed de novo. See 28 U.S.C. § 636 (b)(1) (2000); Fed.R.Civ.P. 72(b)
After reviewing the Report, the record, and plaintiff's objections to the Report, I conclude, for the reasons stated by Magistrate Judge Fox, that defendant's motion for summary judgment should be granted.
The Report is adopted in full. However, with respect to Magistrate Judge Fox's conclusion that the pendent defamation claim against defendant Hearle be dismissed because plaintiff has failed to allege malicious behavior by defendant, it bears noting that Lee v. City of Rochester, 254 A.D.2d 790, 677 N.Y.S.2d 848 (4th Dep't 1998), cited by the magistrate judge for the proposition that a police officer's statement to a reporter about a police investigation is protected by a qualified privilege, has been questioned by the Second Circuit. See Konikoff v. Prudential Ins. Co. of Am., 234 F.3d 92, 100 n. 6 (2000) ("[W]e are reluctant to accept the casual, offhand application of the common-interest privilege as a binding interpretation of the law of New York."). The Second Circuit in Konikoff, which was dealing with a suit by a real estate appraiser whose appraisal of an office building's value had been publicly questioned, expressed an inclination "to certify to the New York Court of Appeals the question whether New York common-law privilege covers statements to the general public under the circumstances of this case," id. at 100. However, the Court ultimately declined to certify the question because the defamation claim was dismissed on an alternative ground. Id..
In the absence of persuasive evidence that the New York Court of Appeals would reach a conclusion other than the one reached by the Appellate Division in Lee, this court is obligated to apply the law as interpreted by New York's intermediate appellate court. Pahuta v. Massey-Ferguson, Inc., 170 F.3d 125, 134 (2d Cir. 1999). In this case, unlike in Konikoff, the defendant is a police officer who made statements to a newspaper about a police investigation. Thus, Lee, which also involved communications by a police officer to a reporter, is controlling.
Perkins' objections to the Report are overruled, and his claims against the City of New Rochelle, the New Rochelle Police Department, Sergeant C. Hearle, and Detective M. Joseph are dismissed. Also, for the reasons stated by Magistrate Judge Fox, plaintiff's motion to amend his complaint under Rule 15(a) of the Federal Rules of Civil Procedure is denied.