# Petition for Writ of Certiorari — Singer v. Sheriff

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1996
- **Citation:** 517 U.S. 1189

## 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&
Vs

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

es

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&
Vs

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

ae

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.

a

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.

my
/

a

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?

4
3

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.

3

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,
Vv
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

ae

N

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

3a

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.

5a

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.

6a

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.

TH

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

oe

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")

/
nS

(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;
see also Heck, 114 S. Ct. at 2371 ("one
element that must be alleged and proved
in a malicious prosecution action is
termination of the prior criminal
proceeding in favor of the accused");
Prosser and Keeton ss1ll19 at 874-75;
Restatement (Second) of Torts ss653 (b)
(1977)

EEE

BOG

The district court found that the petit
larceny charge against Singer had been
dismissed "in the interests of justice"
by the state court. Although the
certificate of dismissal does not state
the basis for dismissal the transcript
of hearing in state court reflects that
the judge dismissed the case in the
interests of justice. " As a matter of
law, ( a dismissal in the interests of
justice cannot provide the favorable
termination required as the basis for a
claim of malicious prosecution" Hyagh v.
Jacobs, 961 F. 2d 359, 368 (26 Cir.
1992). Therefore, under the traditional
common law analysis used by this Court
in such actions, Singer could not
establish one of the elements of his
malicious prosecution claim. The
district court so concluded, and
dismissed that claim; we affirm.
B. False Arrest

The district court dismissed the false
arrest claim on three grounds; that
there was no favorable termination of
the proceeding against Singer; that
there was probable cause for the arrest;
and that the arresting officer enjoyed
qualified immunity. We affrim on the
ground the there was probable cause for
the arrest, a conclusion that subsumes
the issue of immunity.

ZIwW

1 Favorable Termination

The common law tort of false arrest is
a species of false imprisonment, an
action" derived from the ancient
common-law action of trespass that
protects the personal interest of
freedom from restraint of movement."
Broughton, 373 N.Y. S. 2d at 93. This
claim is distinct from one ot malicious
prosecution; "each protects a different
personal interest and is composed of
different elements.' Id. Under New York
Law, the elements of false imprisonment
claim are: "(1) the defendant intended
to confine (the plaintiff), (2) the
plaintiff was conscious of the
confinement, (3) the plaintiff did not
consent to the confinement and (4) the
confinement was not otherwise
privileged" Id; see also Hygh, 961 F. 24
at 366 ("the elements of a claim of
false arrest under ss 1983 are
substantially the same as the elements
of a false arrest claim under New York
Law").(internal quotations and citations
omitted). A favorable termination of the
proceedings is not and element of this
tort. We affirm the dismissal of this
claim nevertheless on the districts
court's alternative greund that there
was probable cause for the arrest.

22a

2. Probable Cause.

There can be no federal civil rights
claim for false arrest where the
arresting officer had probable cause.
See Bernard v. United States, 25 f£. 34.
98 102 (2 Cir. 1994) Probable cause
is established "when the arrestina
officer has knowledge or reasonably
trustworthy information sufficient to
warrant a person of reasonable caution
in the belief that an offense has been
committed by the person to be arrested"
O'Neill v. Town Babylon, 986 F. 24 646,
650 (2d Cir. 1993) (quoting Calamia vy.
City o€ New York, 879 F. 2d 1025, 1032
(26 Cis... 1989) ).

The district court made the followina
factual findings: Deputy Kested, upon
his arrival at the Stewart's Shop "was
advised by Shuler as clerk.. and his
supervisor, Nicollela that plaintiff had
taken items with a value of $11.55 from
the store without paying for same", In
addition, Shuler siaqned’ a criminal
information and a supporting deposition
reciting his version of the incident.
Deputy Kested needed nothing further to
lawfully arrest Singer.

77

23a

An arresting officer advised of a
Crime by a person who claims to be the
victim, and who has siaqned a compliant
or information charging someone with the
crime, has probable cause to effect an
arrest absent circumstances that raise
doubts as to the victim's veracity. See
Hebron v. Touhy, 18 F. 3d 421, 422-423
(7th Cir 1994)' Miloslavsky v. AES
Engineering Soc., Inc. 808 F. Supp. 351
355 (S.D. N.Y. 1992) aff'd, 993 F 2d
1534 (2d cir. ), cert. denied, 114 S.
Ct. 68 (1993). In this case Shuler's
supporting deposition recounted that
Singer presented him with a list of
items he was taking and asked if he
could come back later to pay for them'
according to Shuler, he expressly told
Singer it was not all right for Singer
to take the food items from the store
without paying. The circumstances of
this arrest raise questions as to the
motivation of the arresting officer, the
village officials, even the store
employees; but motivation is not a
consideration in assessing probable
cause See Mozzochi v. Borden, 959 F 24d
1174, 1179-1180 ( 2d Cir. 1992) The
facts as presented to Kested by Shuler
established each of the elements of the
crime of larceny. Under these
circumstances, Kested had probable cause
to arrest Singer for the crime of petit
larceny.

2. G_

C, Conspiracy.

In addition to the substantive claims
of false arrest and malicious
prosecution, Singer also alleged (under
ss 1983) that the defendants conspired
to violated his constitutional rights.
While substantive claims under ss 1983
are normally brought only against state

officials, ss 1983 claim may be proved
by showing that a person acting under
color of state law... collaborated or
conspired with a private person... to
deprive the plaintiff of a
constitutional right... " Fries v.

Barnes, 618 F 2d 988, 990 (2d Cir 1980)
(citing Adickes v. S. H. Kress and Co.,
398 570 F.2d 1080,1083 (2d cir. 1977)
('" an ordinary citizen who conspires
with a state agent to violate the civil
rights of a plaintiff is equally
liable...") Thus, this claim appears
to have been interposed in order to
bring federal suit against the private
party defendants: Stewart's Ice Cream
Co., Raymond Shuler and Andrea Nicollela
The district court dismissed this
claim on the ground that a plaintiff
alleging a ss 1983 conspiracy claim must
prove and actual violation of
constitutional rights. In this we
agree. Section 1983 is only a grant of a
right of action; the substantive right
giving rise to the action must come from
another source.

Z2SQa

Therefore, although the pleading of a
conspiracy will enable a plaintiff to
bring suit against purely private
individuals, the lawsuit will stand only
in so far as the plaintiff can prove the
sine qua non of a ss 1983 action: the
violation of a federal right. See
Adickes v. S.H. Kress and Co., 398 U.S.
144, 150 (1970) ( one of the necessary
elements of a ss 1983 action is “that
the defendant has deprived (the
Plaintiff) of a right secured by the
Constitution and laws of the United
States").

The district court based its ruling on
the conclusion that Singer could not
prove essential elements of his claims
of false arrest and malicious
prosecution, and therefore could not
prove an actual violation of his
constitutional rights. As noted above,
these claims primarily implicate Fourth
Amendment rights;

Singer, however, also pleaded a
violation of his First Amendment
rights--a claim the district court
failed to address.

Singer alleges that the various
parties conspired to, and in fact did,
charge him with petit larceny as a
payback for his political activities and
his publication of The Northville Free
Press.

2. G_

For example. paragraph 22 of his second
amended complaint alleges that " among
the purposes of said conspiracy was the
attempt to dissuade plaintiff from
publishing his responsible views
regarding politics, and local
government, and police activity and the
fact that the police were known to
frequent the local Northville Stewart's
Shop." This allegation of retaliatory
prosecution goes to the core of the
First Amendment, and is thus a claim
that may be pursued under ss 1983. See
Mozzochi, 959 F. 2d at 1178 (plaintiff's
letter writing campaign to a local
official, criticizing official's
performance of duties, was "fully
protected by the First Amendment," and
permitted inference "that the
prosecution was initiated to deter, if
not silence, plaintiff's
Criticisms..."(internal quotations
Omitted); undisputed that retaliatory
prosecution may expose a state official
to section 1983 damages."

It is, however, insufficient to merely
plead facts upon which and inference of
retaliatory prosecution may be drawn.
We have held previously that if the
officer either had probable cause or was
qualifiedly immune from subsequent suit
(due to and objectively reasonable
belief that he had probable cause).,
then we will not examine the officer's
underlying motive in arresting and
charging the plaintiff.

Z7IG.

See Mozzochi, 959 F. 2d at 1179-80
(probable cause); Magnotti, 918 F. 2d at
368 (qualified immunity). As noted
above, there was probable cause to
arrest and charge Singer with petit
larceny. Furthermore, although Singer
alleges damage to his reputation, he has
failed to allege with sufficient
particularity any actual "chilling" of
his speech, or of his participation in
the political process. While the vague
allegations in his complaint might carry
such a suqgestion, Singer did not press
this issue in the district court, nor
did he advance any arguments in support
of this particular claim on appeal. As
a matter of fact, Singer continued to
publish his newspaper. Under these
circumstances, we conclude that he has
failed to meet his burden of
demonstrating a viable First Amendment
claim; " An individual does not have a
right under the First Amendment to be
free from a criminal prosecution
supported by probable cause that is in
reality and unsuccessful attempt to
deter or silence criticism of tghe
government Mozzochi, 959 F .2d at 1180.
Because the ss 1983 conspiracy claim
was properly dismissed, and because this
was the only federal claim that could be
asserted against the private-party
defendants, we hold that the district
court did not err in its sua sponte
dismissal of the complaint against them

pill eae mines a RE ee Ml IOP

de Hac aR POR ta ate

nein

eee Le 7

particularly in liaht of the court's
appropriate exercise of discretion in
refusing to accept jurisdicton over the
supplemental state claim after the
federal claims had been dismissed.

Conclusion
We have considered all the other
arguments raised by the parties and find
them to be without merit. For the
reasons stated above, the judgment of
the district court dismissing the
complaint against all defendants is
affirmed.

29 A

UNITED STATES COURT OF APPEALS
THE SECOND CIRCUIT

At a Stated Term of the United States
Court of Appeals for the Second Circuit,
held at the United States Courthouse,
Foley Square, in the City of New York,
on the 9th day of August, one thousand
nine hundred and ninety-five.

PRESENT: HON. RICHARD J. CARDAMONE
HON. ROGER J. MINER
HON. DENNIS G. JACOBS
Circuit Judges

Docket No. 94-9093

Daniel S. Singer,
Plaintiff- Appellant,
V.

ULTON 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 employs,
SHELDON GINTER, individually, and as
Mayor of Village of Northville, JAMES
GROFF, individually and as deputy
sheriff; and Village 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.

ats Se eR Ae ee ne eg

Appeal from the United States District
court for the Northern District of New
York.

This cause came on to be heard on the
transcript of record from the United
States District Court for the Northern
District of New York and was argued by
counsel,

ON CONSIDERATION WHEREOF, it is now
hereby ORDERED ADJUDGED AND DECREED that
the order of said district court be and
is hereby is affirmed in accordance with
the opinion of this Court, with costs to

be taxed against the appellant.
GEORGE LANGE III Clerk
Issued as Mandate November13-1995

WW
.

UNITED STATES COURT OF APPEALS
for the second circuit
United States Court House
40 Foley Square
New York 10007
George Lange 1]]ll
Clerk

At a stated term of the United
States Court of appeals for the second
circuit, held at the United States
Courthouse, Foley Square, in the City of
New York, on the lst day of November one
thousand nine hundred and ninety-five.

Singer
Plaintiff-Appellant
Vv Dkt No: 94-9093
Fulton Co. Sheriff's

Defendants-Appel lees.

silts

aaa aa rhesus atin ahaa tia AG Cs Ar eair ale aN Lites

4b. “whi dbabianieh

pKa rk

—_——

A petition for rehearing containing a
suggestion that the action be reheard in
banc having been filed herein by the
appellant Daniel S. Singer.

Upon consideration by the panel tha
decided the appeal, it is ordered that
said petition for rehearing is DENIED.

It is further noted that the
suggestion for rehearing in banc has
been transmitted to the judges for the
court in regular active service and to
any other judge that heard the appeal
and that no such judge has requested
that a vote be taken there on.

FOR THE COURT

GEORGE LANGE III

Clerk
Administrative Attorney ~ Beth J. Meador

Mae F FI

33 B

Ce pee dye B

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

Docket No. 94-9093

Daniel S. Singer,
Plaintiff,

V
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 employs,
SHELDON GINTER, individually, and as
Mayor of Village of Northville, JAMES
GROFF, individually and as deputy
sheriff; and Village board member, JAMES
HILLMAN individually. and as deputy
sheriff, DEPUTY HILLIER, individually
and as deputy sheriff, MARTIN KESTED,
individually and as deputy sheriff,

defendants

—

Therefore it is ORDERED that

1. The motion by the defendants Village
of Northville. Sheldon Ginter, and James
Groff for summary judgment is granted;
2. the motion by the defendants Fulton
County Sheriff's Department, Fulton
County sheriff, James Hillman, Deputy
Hillier and Deputy Martin Kested for
summary judgment is granted;
3. The motion by the defendants Village
of Northville, Sheldon Ginter and James
Groff for sanctions is denied;
4. The cross-motion by the plaintiff for
summary judgment is denied;
5. The motion by the plaintiff for
sanctions is denied;
6. The complaint is dismissed as against
the defendants Stewart Ice Cream
Company, Inc. Raymond Shuler, and Andrea
Nicollela sua sponte; and
7. Attorneys fees are denied.
The Clerk is directed to enter judgment
dismissing the complaint in its entirety

IT IS SO ORDERED U.S. Magistrate judge
October 4, 1994
Utica New York.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386006_1206%3A1. Public record. Not legal advice.