Petition for Writ of Certiorari — Singer v. Sheriff

Supreme Court brief1996

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Text

No.

Py : PILED.

/ In The 1452 JAN 19 19%

Supreme Court of the Biidgd, States

October Term, 199 io

DANIEL SINGER

Petitioner,

Pra S&

STEWART'S ICE CREAM CO., INC.

its agents and employs, RAYMOND

SHULER, individually, ANDREA

NICOLLELA, individually, FULTON

COUNTY SHERIFF'S DEPARTMENT, its

employs JAMES HILLMAN, individually |

and as deputy sheriff, DEPUTY

HILLIER, individually and as deputy

sheriff, MARTIN KESTED,

individually and as deputy sheriff.

VILLAGE OF NORTHVILLE County of

Fulton, its aqents and employs,

SHELDON GINTER individually and as

Mayor of the Villaae of Northville.

JAMES GROFF individually and as

deputy sheriff and as Village

Northville village board member and

deputy sheriff.

Respondents.

A PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES SUPREME COURT FROM THE SECOND CIRCUIT

COURT OF APPEALS

PETITION FOR WRIT OF CERTIORARI

DANIEL SINGER

141 MECHANIC ST NORTHVILLE N.Y. 12134 .

5i8 863-8212 a i

PETITIONER APPEARING PRO SE Hivos

tlt a iti

QUESTION PRESENTED FOR REVIEW

Should the lower courts be allowed

to agrant summary judgments in civil

cases, where the underlying

Criminal case has been dismissed in

Furtherance of Justice, by claiming

that the defendant never proved his

innocence? Should the lower courts

thereby be allowed to deprive the

defendant in a criminal case his

assumed innocence and right to jury

trial and if so how can this

further justice?

‘ee

((

PARTIES TO THE PROCEEDING

In The

SUPREME COURT OF THE UNITED STATES

October Term 1996

DANIEL SINGER

Petitioner,

Pre Sé&

STEWART'S ICE CREAM CO., INC.

its agents and employs, RAYMOND

SHULER, individually, ANDREA

NICOLLELA, individually, FULTON

COUNTY SHERIFF'S DEPARTMENT, its

employs JAMES HILLMAN, individually

and as deputy sheriff, DEPUTY

HILLIER, individually and as deputy

sheriff, MARTIN KESTED,

individually and as deputy sheriff.

VILLAGE OF NORTHVILLE County of

Fulton, its agents and employs,

SHELDON GINTER individually and as

Mayor of the Village of Northville,

JAMES GROFF individually and as

deputy sheriff and as Village

Northville village board member and

deputy sherifét.

Respondents.

PETITION FOR A WRIT OF CERTIORARI

Pe ee!

el Cn SD!

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW.... 1

PARTIES TO THE PROCEEDING........ ii

ON PE GRIPE cc te pp rcc scenes 11]

BAM WF VEEATEUNS: ociccriserereces c hV

og ra 1

STATEMENT OF JURISDICTION ......... 2

Samsmrmms UF TRE CASE......+..5-+. 4

REASONS FOR GRANTING THE WRIT...... 7

APPENDIX

APPEALS DECISION AND JUDGMENT cea la

JUDGMENT ON REHEARING............ 29a

DISTRICT COURT JUDGMENT.......... 33b

TABLE OF CITATIONS

Albright v. Oliver 127L. Ed. 2d

114, 1148s. ct807 1994

Rounsenville v. Zahl 13£. 3d 625

2na cir. 1994

Janetka v. Dabe 892 £ 2d 187 2nd

cir 1989

Allen b. Town of Colonie 182 1A.D.

2d 998,1000, 583 NYS 2d 24,26 ( 3d

Det. 1992

Conway v. Village of Mount Kisco

750 F. 2a 205, 215 (2nd cir 1984

APPENDIX

Appendix A Opinion of lower court

Judgment filed 8-9-1995

En Banc appeal denied 11-1-1995

Docket no. 94-9093

Mandate 11-13-1995

OPINIONS BELOW

On November lst, 1995ad the second

circuit United States court of

Appeals en banc affirmed lower

courts decision granting summary

Judgment.

STATEMENT OF JURISDICTION

By virtue of its duty to uphold the

rights of the citizens of the United

States as granted under the Constitution

Particularly the right to trial by jury,

freedom from unreasonable search and

seizure and the right to freedom of

speech, as guaranteed in the First,

Fourth and Sixth Amendments as follow

ARTICLE 1

pein Sip candids aes i Palen

Congress shall make no law respecting

and establishment to religion or

prohibiting the free exercise thereof;

or abridaing the freedom of speech, or

of the press; or the right of the

people peaceably to assemble and to

petition the government for redress of

grievances.

ARTICLE 4

The right of the pegple to be secure

in their persons, houses papers, and

effects, against unreasonable searches

and seizures, shall not be violated, and

no Warrants shall issue, but upon

probable cause, supported by Oath or

affirmation, and particularly describing

the place to be searched and the persons

or things to be seized.

ee ee Cee |

ARTICLE 6 :In all criminal

prosecutions the accused shall

enjoy the right to a speedy and

public trial, by and impartial

jury, of the State and District

wherein the crime shall have been

committed, which district shall

have been previously ascertained

law, and to be informed of the

nature and cause of the accusation

to be confronted with the witnesses

against him, to have compulsory

process for obtaining witnesses in

his favor and to have the

assistance of counsel for his

defence.

STATEMENT OF THE CASE

I have been a forest ranger in the

small upstate New York community of

Northville since 1965. In 1991 I

started publishing a political

newsletter in an attempt to change

a power structure which had been in

control of the Village for many

years. In the process I began to

accumulate enemies.

On Sunday October 20th, 1991 I

went into the local Stewarts

convenience store to purchase

groceries for a search and rescue

mission which was in progress in

the nearby town of Arrietta. The

store was busy so I left a list of

the items and prices totaling 11.55

and with the clerk's permission

agreed to come back after the

search and do the voucher, a

procedure the State had used many

times with Stewarts.

At about 6:30 the same day

shortly after I arrived home from

the search I was arrested by

Fulton County deputy sheriff Martin

Kested on a charge of shoplifting

the croceries. I told the officer

the whole story but he said the

manacer Andrea Nicollela was

adamant that I be arrested.

AEs Se

Upon arraignment I pleaded innocent

and asked for a jury trial.

The following day Nicollela

submitted a statement to the

sheriff asking that the charges be

dropped. Never the less the

outgoing D.A. William Gritsavage

continued the prosecution. The new

D.A. Richard Giardino took over the

prosecution in January of 1992 and

over my objections conspired with

the local Town Judge John Orloff

forcing ACOD on me. Orloff

resigned the next day.

I appealed the ACOD to State

Supreme Court, where Judge Mazzone

the only bright spot in 4 very

tarnished judicial system

overturned Orloff.s decision.

Again I asked for a jury trial. In

November of 1992 at a suppression

hearing in the city of Gloversville

City Judge Mario Papa on his own

motion dismissed the case.

The prosecution had taken 13

months and at cost me least 6,000

dollars.

I then filed suit in U.S.

District Court 2nd District, where

my case was dismissed summarily.

Judge Hurd stating that I had never

proved my innocence, and had wasted

too many lawyers time already.

The court of appeals affirmed,

stating at least 3 times that I had

never proved my innocence.

What an astounding process of

circular reasoning. You can't

prove your innocence without a jury

trial and you can't get a jury

trial because the judge dismisses

in furtherance of justice on his

own motion making himself judge and

jury and the law of no affect.

Where is the presumption of

innocence”?

Where is the American ideal of

equality? ;

Where is the Justice?

OO a ee Oe ee tie le i ee

rahi

vere

REASONS FOR GRANTING THE WRIT

By allowing summary judgment in this

case you are doing three serious harms

to the constitution.

1. Destroying the Fourth Amendment

2. Damaging the Sixth Amendment

3. Weakening the first Amendment

Let me take up the argument on the 4th

Amendment first. The 4th Amendment

makes a distinction between warrantless

seizure and seizures made with Warrants.

The right of people to be secure in

their persons, houses, paper and

effects, against unreasonable searches

and seizures, shall not be violated, and

no Warrants shall issue, but upon

probable cause...

In both cases it protects the rights

of citizens to be secure against

unreasonable searches and seizures both

those with and without leagal process, by

interpreting as in "Albright" that only

seizures carried out under legal

processes are protected by the 4th

amendment you have granted immunity to

police agencies and removed

constitutional restraint, leaving

defendants without the protection of the

4th Amendment. Any police officer would

be a fool to get a warrant under present

case law. The framers intended no such

tyranny.

See — ——- - — os

To say that the 4th Amendment applies

only to arrests under legal process is

more than ludicrous, its criminal, and

you might as well have written out he

4th completely

As to the 6th amendment the right to a

trial by and impartial jury

Summary judgments are supposed to be

issued as matters of law. They are are

not intended to be a way to circumvent

the constitutional guarantee of trial by

jury . The framers of the constitution

were afraid of judges and so am i.

To say that a dismissal in furtherance

of justice is not a favorable

termination is contradictory and cuts

the heart out of the presumption of

innocence. A dismissal in furtherance

requires no consent of the defendant.

What is a defendant going to say “no

judge i demand to be tried. In the

present case i fought at great expense

in time and money ‘for 13 months to get a

jury trial, i was thwarted at every turn

even to the extent of being given an

ACOD over my objections which is against

New York law. I appealed the ACOD and

overturned it. The case finally ended

up in Gloversville City Court where at a

hearing in preparation for trial the

judge on his own motion imposed the

Dismissal.

eg epee eae ey

If you let this decision stand you

would allow any prosecutor to deprive a

citizen his right to trial by impartial

jury by simply asking for an dismissal

in furtherance of justice. Leaving

innocent defendants without recourse to

the courts, a position fraught with

dangers for a Constitutional Kepublic.

The framers intended a presumption of

innocence and recourse to the Courts to

just Courts and trial by jury not judge.

The conspiracy claim was dismissed by

the lower court on the basis that the

arresting officer had probable cause.

and they said they would not consider

his motivations. This 1s completely

circular reasoning. The reason he had

probable cause if he indeed had any, was

that the plaintiffs conspired to give

the impression of probable cause. A

fact which i was never given 4 chance to

show because the case was summarily

dismissed. Again the lower courts

misused their powers and subverted the

sixth and seventh amendments.

S—:.

10,

The writ should be granted as protection

of the First Amendment right to freely

publish your views. Although i am still

able to publish my newsletter, the

expense of fighting the malicious

prosecution has put an unfair strain on

me and my family.

The rich and powerful people in Fulton

County used this prosecution as a way to

discredit me and my paper. They

conspired to do it, and it looks for all

the world that they will get away with

it Scott free. The worst of it is that

if this decision stands, the

constitution is just that much weaker,

producing exactly the opposite effect

from from what i intended.

The ideal of equality is unique to

America, the constitution was designed

to give the little guy fighting in a

just cause the same power as the rich

this decision runs opposite to that

ideal.

| Qu

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

No. 1501 August Term, 1994

Argued' May 5 1995 Decided August 9,

Docket No. 94-9093

DANIEL S. SINGER Plaintiff Appellant,

FULTON COUNTY SHERIFF, STEWART'S ICE

CREAM CO. INC its agents and employs

RAYMOND SHULER, individually, ANDREA

NICOLLELA, individually, FULTON COUNTY

SHERIFF'S DEPARTMENT its agents and its

employs, VILLAGE OF NORTHVILLE ,county

of Fulton its agents and employ, SHELDON

GINTER, individually and as Mayor of the

Village of Northville, JAMES GROFF,

individually, as deputy sheriff, and as

Village of Northville Board Member,

JAMES HILLMAN, individually and as

deputy sheriff, DEPUTY HILLIER,

individually and as deputy sheriff,

MARTIN KESTED, individually and as

deputy sheriff,

Defendants-Appellees.

Before; CARDAMONE, MINER, and JACOBS

Circuit Judges.

Appeal from order of United States

District Court for the Northern District

of New York, GRANTING SUMMARY JUDGMENT

TO DEFENDANTS AND DISMISSING THE

COMPLAINT.

AFFIRMED

Ty ee es Pe ee

JACOBS. Circuit Judge:

Plaintiff-appellant Daniel S. Singer

brought this civil rights action,

: pursuant to 42 U.S.C. ss 1983, in the

i United States District Court for the

Northern District of New York, alleging

that the defendants violated his

constitutional rights when they

arrested, charged and prosecuted him for

petit larceny--a charge that was

ultimately dismissed " in the interests

of justice". The case was referred to

United States Magistrate Judge David N.

Hurd, who granted motions by some

defendants for summary judgment on all

claims, dismissed the complaint against

the remaining defendants Sua Sponte,

denied motions for sanctions and

attorney's fees, and entered final

judgment. We affirm.

spa Nae «Ra AD eI NR IRC) CEAAR aeed

nad he el STAN. CaS

Background

; Daniel S. singer, a resident of the

Village of Northville, New York, is

; employed as ranger by the New York

7 sState Department of Environmental

Conservation. In his spare time Singer

is active as a maverick in local

politics

Northville's Mayor reports to, and takes

direction from, the Village Board of

Trustees which in turn, conducts

periodic town meetings at which

residents of the Village come together

to discuss and debate issues of Village

governance. Early in 1991, the Village

Board of Trustees proposed that the

Village Adopt a zoning ordinance that

would for the first time regulate the

development and use of private property

in the Village. Opposition to zoning

regulation coalesced ina

loosely-organized movement that called

itself the "Common Sense Group." Singer

one of the more outspoken members of the

group, circulated a petition denouncing

the proposed ordinance and found 512

Signatories( around 75% of the eligible

voters) among his fellow villagers.

Nevertheless, the Village Board adopted

the zoning ordinance. This action,

taken some time around late winter or

early spring of 1991, apparently

sharpened Singer's political resolve.

In June 1991, Singer published the

first issue of the Northville Free

Press, a newsletter that provided a

forum for Singer to attack the Village

Government. In this he was joined by

others who shared his views. The

Northville Free Press was widely

distributed to Village residents, and

was made available free of charge at

(among other places) Stewart's Ice Cream

Shop

“a.

The issues furnished in the appendix on

appeal carry editorials, letters to the

editor, and cartoons lampooning various

village officials. The first issue was

dedicated primarily to the zoning

controversy. Subsequent issues focused

on various topics of local interest,

including taxation and expenditures by

the Village Board, the purchase by the

police department of a 16,000

hihq-performance cruiser, and the

contention that many of the Village's

police officers and other officials

tended to spend an inordinate amount of

time congregating at the Stewart's Shop.

One cartoon, for example, depicts and

obese policeman straddling the roof of a

new police car, demanding his turn to

drive; a doughnut box is on the ground

nearby. Virtually ail the issues

implore Northville residents to register

to vote and to participate in local

politics. Singer was able to sell

advertising space to local businesses,

which helped to defray the publication

costs. According to affidavits

submitted by Singer, several Village

officials expressed dismay at Singer's

ability to influence public opinion, and

said that they would be happier without

The Northville Free Press.

Early in the afternoon of October 20,

1991, Singer received a telephone call

requesting him to pick up some

provisions and meet a search party that

was forming to look for a missing

hunter. Around 2:15 PM, he donned his

ranger's uniform and drove to the

Stewart's Shop, where he picked out

several packages of luncheon meats and a

loaf of bread. Singer told the clerk,

who was busy with other customers, that

he needed the supplies for and emeraqency

search and rescue operation and asked if

he could come back later to pay for the

provisions. Singer claims that the

clerk consented, the clerk denies that

he consented. Both agree that Singer

handed the cle_-k a list of the items he

was taking along with their marked

prices, and told him he would return

later that day to pay for them. He then

left the store.

Around 3:00PM the store clerk, Raymond

Shuler, telephoned the store manager,

Andrea Nicollela, and informed her that

Singer had left the store without payina

for $11.55 worth of merchandise.

Galvanized into action, Nicollela

hurried to the Shop, where (according to

Singer's 10} statement and the affidavit

of Singer's wife) Nicollela conferred

with Deputy Sheriff and Village Trustee

James Groff.

At around 5:00 PM, Deputy Sheriff

Martin Kested arrived at the Stewart's

Shop in response to a call from a person

Or persons unknown reporting the alleged

theft. After interviewing Shuler and

Nicollela in a back room, Kested had

Shuler fill out and sian an information

setting forth his allegation that Singer

had stolen the packaged sandwich meats.

Shuler also completed and signed a

Supporting deposition to back up the

information. On the basis of these

documents, plus whatever additional!

information was supplied by the

witnesses, Kested drove out to Sinager's

home. Singer had arrived home shortly

before Kested arrived and greeted Kested

at the door. Kested informed Singer of

his mission, elicited Singer's version

of the incident, and arrested Singer on

the charge of petit larceny.

After Singer was arraiaqned at he

Northampton Town Court, he was released

On his own recognizance. The next day,

after conferring with her superiors.

Nicollela completed and signed a

Supporting deposition which set forth

her knowledge of the incident at the

Shop, but which added that she had asked

William Gritsavage, the prosecuting

attorney, to drop the charges against

Singer because the Stewart's company did

not want to engender ill feelings with

the Department of Environmental]

Conservation. For reasons not disclosed

by the record, the prosecution went

forward in spite of this request.

On August 12, 1992, the matter was

transferred to the Gloversville City

Court, where, on November 19, 1992, City

Court Judge Mario Papa dismissed the

charge of petit larceny against Singer.

The certificate of disposition does not

note the basis for the dismissal, but a

transcript of the November 19, status

hearing reflects that the judge

dismissed the charges in "the interests

of justice" because the prosecution was

unable to locate its primary witness,

Raymond Shuler, and therefore could not

assure the court the case could be tried

on the scheduled date.

Singer filed a complaint on December 3

1992 in the Northern District of New

York, alleging four causes of action:

(1) false arrest, under ss 1983; (2)

malicious prosecution under ss 1983; (3

conspiracy to violate his civil rights

under ss 1983' and (4) a supplemental

state claim for malicious prosecution.

The complaint alleges generally that all

the above acts were in violation of his

rights under the First, Fourth and

Fourteenth Amendments to the US.

Constitution.

By consent of the parties and pursuant

to 28 U.S.C. ss 636(c), the matter was

referred to Magistrate Judge David N. ;

Hurd.

¥Q

Motions were filed and in an order dated

October 4, 1994, the court: (1) granted

motions for summary judgment filed by

the Village of Northville, Sheldon

Ginter (mayor of Northville , James

Groff, the Fulton County Sheriff's

Department, the Fulton County Sheriff,

Deputy James Hillman, Deputy Hillier,

and Deputy Martin Kested' (2) dismissed

the complaint, sua sponte, against

Stewart's Ice Cream Co. , Raymond

Shuler, and Andrea Nicollela' (3) denied

motions by the Village of Northville,

Sheldon Ginter and James Groff for

sanctions against Singer (4) denied the

motion by Singer for sanctions against

the various defendants; and (5) denied

motions by various parties for attorney

fees. Singer now appeals each aspect of

the judgment of the district court.

After careful consideration of all the

arguments raised by the parties, We

affirm.

Discussion

The district court dismissed the

complaint on a variety of, grounds. all

of which are contested by Singer. We

confine our discussion to those issues

which have at least some merit. We

review the grant of a motion for

summary judaqgment de novo , drawing al]

inferences in the light most favorable

to the non moving party. Viola V.

Philip Medical Sys of N. Am. 42 F. 3d

7iaetae tae Cie. £994).

< (ore

Our standard of review of the district

court's decision not to exercise

jurisdiction over a pendant state claim

is that of abuse of discretion. See

Greene v. Town of Blooming Grove, 935 F.

2d 507, 510 (2d Cir.), cert. denied,,

502 US. 1005 (1991).

A. Malicious Prosecution.

The ss 1983 claim that is premised on

malicious prosecution was dismissed on

two apparently alternative grounds. The

district court observed that the Supreme

court's recent opinion in Albright v.

Oliver, 114 S. Vt. 807 (1994),

forecloses the assertion of malicious

prosecution claims under ss 1983.

Before stating that conclusion, however,

the district court analyzed Singer's ss

1983 malicious prosecution claim under

substantive state common law standards,

in accordance with the generally

applicable law of this Circuit. See

Pinaud v. County of Suffolk, 52 F 3d

1139, 1153-1155 (2d Cir. 1995; Singleton

v. City of New York, 632 F. 185, 193

(2d Cir. 1980) (analyzing ss 1983

malicious prosecution claim under state

common law principles), cert. denied,

450 U.S. 920 (1981). The district

court concluded that Singer failed to

establish "one of the essential elements

of a prosecution for false arrest, false

imprisonment, and /or malicious

prosecution.

[OG

that the prior criminal action

complained of must be terminated in

plaintiff's favor..."

1, Albright

In concluding that Albright forecloses

the use of ss 1983 to state a federal]

claim for malicious prosecution , the

district court relied on the First

Circuit conclusion in Perez-Ruiz v.

Crespo-Guillen, 25 F. 3d 40 ( lst cir

1994), that Albright would appear

Virtually to foreclose reliance on

substantive due process as the basis for

a viable malicious prosecution claim

under section 1983.." 25 F. . 3d at 42.

We agree that under Albright, the

Fourteenth amendment right to \

substantive due process will not support

a federal claim for malicious

prosecution'; however, Albright does not

bar Singer from asserting a federal

claim for malicious prosecution under

the Fourth amendment

The plaintiff in Albright surrendered

to the authorities after learning that a

warrant for his arrest had been issued,

and was released on bail subject to the

usual restrictions on travel. The case

was later dismissed on the ground that

the charge selling a look alike

substance as cocaine--did not state and

offense under Illinois law. Albright,

114 S. Ct. at 810 and n.l

{CG

Albright brought suit under ss 1983,

alleging that the arresting officer had

"deprived Albright of substantive due

process under the Fourteenth

Amendment--his Liberty interest--to be

free from criminal prosecution except

upon probable cause” Id. at 810-811.

The district court concluded that

Albright failed to state a claim under

ss 1983, and the Seventh Circuit

affirmed the dismissal, holding "that

prosecution without probeble cause is a

constitutional tort... only if

accompanied by incarceration or loss of

employment or some other palpable

consequence " Id at 811 (alteration in

Original). The Supreme Court affirmed

on the somewhat different ground that

"it is the Fourth amendment. and not

substantive due process under which

petitioner Albright's claims must be

judged" Id.

Chief justice Rehnquist's plurality

Opinion in Albright joined by Justices

O'connor, Scalia and Ginsburg) explained

that, because ss 1983' is not itself a

source of substantive rights,... The

first step in any such claim is to

identify the specific constitutional

right allegedly infringed" Id. at

811-812(quoting Baker v. McCollan, 443

U.S.137, 140, and 144 n.3.

{2q

(1979), and Graham v. Connor, 490 U.S,

386,394 (1989). However," the Court has

always been reluctant to expand the

concept of substantive due process

because the gquideposts for responsible

decision making in this unchartered area

are scarce and open ended. The

protections of substantive due process

have for the most part been accorded to

matters relating to marriage, family,

procreation, and the right to bodily

- integrity" Id. at 812 quoting Collins v

Harder Heights, 112 S. Ct. 1061, 1068

(19920. Therefore so long as " a

particular amendment provides and

explicit textual source of

constitutional protection against a

particular sort of government behavior,

that amendment not the more generalized

notion of "substantive due process" must

be the guide for analyzing these

claims." Id at 813 (quoting Gramham v.

Connor, 490 U.S, 386,395 (1989). The

plurality opinion decided that the

Fourth amendment is the proper source of

constitutional protection for claims,

such as malicious prosecution, that

implicate a person's liberty interest in

respect of criminal prosecutions (and ,

in particular one's pretrial liberty): "

We have in the past noted the Fourth

Amendment's relevance to the

deprivations of liberty that go hand in

hand with criminal prosecutions"Id.

( 3a

Because the petitioner in Albright did

not raise a fourth amendment claim,

however, the court refused to reach the

guestion of whether the complained-of

conduct actually violated the Fourth

Amendment.

Although the concurring justices

published four separate opinions, there

are at least two common propositions in

all five opinions' (1) a claim of

malicious prosecution may not be brought

as a substantive due process claim,' and

(2) the Fourth Amendment provides the

source for a ss 1983 claim premised on a

person's arrest. The extent of those

rights however, remains to defined by

the Court

Singer's complaint states that, in

causing him to be prosecuted, defendants”

violated Singer's Fourth Amendment right

to be free from unreasonable seizure of

his person. In respect of pleading,

Albright requires nothing more.

(Whether Singer's prosecution deprived

him of liberty to a sufficient extent to

constitute a "seizure" for Fourth

Amendment purposes is largely a question

of fact--one which the district court

did not need to reach in this case.)

That Singer has adequately pleaded a ss

1983 claim for malicious prosecution

does not, however end the matter.

(Leo

Once a plaintiff presents a claim of

malicious prosecution under ss 1983, the

court must engage in two inquiries:

whether the defendant's conduct was

tortious: and whether the plaintiff's

injuries were caused by the deprivation

of liberty guaranteed by the Fourth

Amendment. We consider these in reverse

order

@. Constitutional Injury

Section 1983 "was intended to (create)

a species of tort liability' in favor of

persons who are deprived of rights

privileges, or immunities secured to

them by the Constitution" Carey v.

Piphus, 435 U.S. 247, 253 (1978)

(quoting Imbler v. Pachtman, 424 U.S.

409,417. (1976) (alteration in

Original). The"appropriate starting

point" of the inquiry is the common ‘aw

of torts, but "the rules governing

compensation for injuries caused by the

deprivation of constitutional rights

should be tailored to the interests

protected by the particular right in

question..."Id at 258-259. The Supreme

Court has recognized that, "in some

cases, the interests protected by a

particular branch of the common law of

torts may parallel closely the interests

protected by a particular constitutional

right,"

\Ooam

id. at 258; still, it is only the

violation of the constitutional right

that is actionable and compensable under

ss1983. "The validity of the claim must

(therefore) be judged by reference to

the specific constitutional standard

which governs that right.. "Graham v.

Connor, 490 U.S. 386, 394 (1989).

The Fourth Amendment right implicated

in a malicious prosecution action is the

right to be free of unreasonable seizure

of the person--i.e., the right to be

free of unreasonable or unwarranted

restraints on personal liberty. A

plaintiff asserting a Fourth amendment

malicious prosecution claim under ss

1983 must therefore show some

deprivation of liberty consistent with

the concept of "seizure". This

requirement is necessary to ensure that

the ss 1983 plaintiff has suffered a

harm of constitutional proportions.e. a

harm cognizable under ss1983. The

Supreme court has " said that the

accused is not entitled to judicial

oversight or review of the decision to

prosecute". Albright, 114S. Ct. at 813

(quoting) Gerstein v. Pugh, 420 U.S,

103, 118-119 (1975).

{ &> Cw

That pronouncement is consonant with the

Principle that "the abstract value of a

constitutional right may not form the

basis for ss 1983 damages" Memphis

Community sch. dist. v. Stachura,

477,U.S. 299,308 (1986). Rather, an

award of "damages must always be

designed to compensate injuries caused

by the constitutional deprivation..."Id.

at 309 (quoting Carey v. Piphus, 425

U.S. at 265 (alteration in original).

To maintain a ss 1983 Claim for

malicious prosecution under the Fourth

Amendment, the deprivation of liberty--

the seizure-- must have been effected

"Pursuant to legal process" Heck v.

Humphrey, 114 S. Ct. 2364, 2371 (1994).

" The essence of malicious prosecution

is the perversion of proper legal

procedures." Broughton v. State of new

TOCk 37500 YS. 2a S7, 93, cert.

denied, 423 U.S. 929 (1975). Ordinarily

this "legal process" wil] be either in

the form of a warrant, in which case the

arrest itself my constitute the seizure,

see id. at 94 ( When an unlawful arrest

has been effected by a warrant an

appropriate form of action is malicious

Prosecution"), or a subsequent

arraignment, in which case any

post-arraignment deprivations of liberty

(such as being bound -over for tria])

might satisfy this constitutional]

requirement.

In this case Singer's arrest cannot

serve as the predicate deprivation of

liberty because it occurred prior to his

arraignment and without a warrant, and

therefore was not "“pursusant to leaal

process."See Heck, 114, S.

ct. at 2371 ; See also Broughton, 373

N.Y.S. 2d at 94 ("The distinction

between false imprisonment and malicious

prosecution in the area of arrest

depends on whether or not the arrest was

made pursuant to a warrant.") 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 (addressed infra ,

see Broughton, 373 N.Y.S. 2d at 94

(whenever there has been an arrest and

imprisonment without a warrant, the

officer has acted extrajudicially and

the presumption arises that such an

arrest and imprisonment are unlawful..."

while the tort of malicious prosecution

will implicate post-arraignment

deprivations of liberty.. See Raschid v.

News Syndicate Co., 267 N.Y.S. 221 225 (

lst Dep't 1933) ("A charge and an arrest

do not amount to a prosecution. The

action of malicious prosecution lies

only when a legal prosecution, a

judicial proceeding, has been

maliciously and without probable cause,

instituted against the plaintiff, and

has been terminated in the plaintiff's

favor")

(internal quotations and citation

omitted). aff'd, 265 N.Y. 1 (1934) )with

inapplicable modification); see also W.

Keeton et al., Prosser and Keeton on the

Law of torts ss 119 at 888 (5th ed.

1984) ("If there is a false arrest

claim, damages for that claim cover the

time of detention up until issuance of

process or arraiqnment but not more.

From that point on, any damages

recoverable must be based o a malicious

prosecution claim..."). Therefore to

successfully pursue a ss 1983 claim of

malicious prosecution in violation of

his Fourth Amendment rights, Singer must

show some post-arraignment deprivation

of liberty that rises to the level of a

constitutional violation. See Stachura,

477 U.S. at 309.

Assuming arquendo, that Singer's

release after arraignment may constitute

e a "Seizure," nothing in the record

indicates that Singer was subjected to

any restriction on his ability to travel

freely; indeed, there is nothing to

indicate that he was required to post

any bail. Because the district court

had no occasion to reach this issue, we

do not have the benefit of factual

findings concerning any deprivation of

liberty suffered.

‘mies

by Singer as a result of the charges

lodged against him. We therefore do not

decide whether there was a seizure in

this case sufficient to implicate the

Fourth Amendment.

3. Favorable Termination.

"over the centuries the common law of

torts has developed a set of rules to

implement the principle that a person

should be compensated fairly for

injuries caused by the violation of his

legal rights. These rules, defining the

elements of damages and the

prerequisites for their recovery,

provide the appropriate starting point

for the inquiry under ss1983 as well"

Heck v. Humphrey, 114 S. Ct. 2364 2370

(1994) (quoting Carey v. Piphus, 435

U.S. 247, 257-58 (1978)0.

At common law' an accused , in order

to maintain a cause of action for

malicious prosecution, must establish

that the state prosecution terminated in

his favor" Singleton, 632 F. 2d at 193;