MINER, District Judge.
This action arises out of the alleged violations of plaintiff's civil rights by New York State Trooper R.H. Endee, Jr., the Town of Argyle and the County of Washington.
In 1969, Richard Hickland commenced farming in Argyle, New York, on property which later became known as Beaver Brook Farms.
On December 17, 1976, defendant Robert Endee received a telephone complaint from Alice Hickland about a dead animal on the shoulder of McClay Road. (Transcript, pp. 113-15). Endee then interviewed Mrs. Hickland, who advised him that the cow belonged to Beaver Brook Farms. (Transcript, pp. 115-16, 215-16). Thereafter, Endee travelled to the Hickland farm and examined the dead Hereford but could find no markings which conclusively would identify its owner. Endee then contacted Dr. Leith Skinner, the Town of Argyle Health Officer, who apparently authorized Endee to "act as his agent" in seeing that the cow was removed. (Transcript, p. 559). Accordingly, Endee drove ten miles to Richard and Sandra Hickland's residence in Salem, New York, and instructed Richard Hickland to remove the dead animal by sundown of the next day. (Transcript, pp. 118-19). Specifically, Trooper Endee informed Richard Hickland
Additionally, Endee informed Richard Hickland that some of his cattle were loose on McClay Road. (Transcript, pp. 134, 255).
Richard Hickland responded that he had to attend a funeral out of state the next day but that "he would see what he could do about it." (Transcript, pp. 133, 254). Satisfied with this response, Endee "considered the case closed." (Transcript, p. 220). Hickland testified also that, later that evening, he drove to Beaver Brook Farms in an attempt to comply with Endee's instructions but that he could find neither the dead cow nor any roaming animals. (Transcript, p. 255). He further testified that all the gates used to fence in his cattle were securely closed.
The next day (December 18th), Richard Hickland left for Connecticut. That night, Trooper Endee returned to McClay Road to check if the dead cow had been removed. (Transcript, p. 139). Endee testified that the dead cow had not been moved and that other live cattle still were running loose on McClay Road. (Transcript, p. 149). Trooper Endee again returned to the farm on Sunday the 19th to see if the dead cow had been removed. Endee testified further that he went to the farm for the additional purpose of taking the deposition
That evening, Trooper Endee filed two informations with Judge McWhorter, the town justice, charging Richard Hickland with a violation of § 12-b of the New York Public Health Law
Sometime on the 20th of December, Richard Hickland arrived at the State Police Substation in Salem to inquire as to the whereabouts of his cattle. (Transcript, p. 172). After telling Hickland that his cattle had been impounded, Trooper Endee advised him that he was under arrest for violations of the Penal Law and the Public Health Law, but permitted Hickland to drive his family home before placing him in custody. Hickland was arraigned later that day before Judge McWhorter. (Transcript, pp. 174-75).
Nearly three weeks later, on January 7, 1977, there was another accident near the Hickland Farm allegedly involving one of Richard Hickland's cows. Trooper Endee was instructed by his superior, Sergeant Russell Guard, to proceed with an investigation already commenced by two other New York State Troopers. Sergeant Guard apparently requested the efforts of Trooper Endee due to his familiarity with "the information and the law," having "previously handled the situation with Mr. Hickland." (Transcript, p. 188). This second accident, reported to have occurred at 2:40 A.M. on January 7, 1977, involved a collision between an automobile driven by Carol Guard (Sergeant Guard's teenage daughter) and a stray Hereford bull. The accident occurred on County Route 49 near both the Hickland farm and the home of Thomas Hughes. The two troopers who originally investigated the accident reported a statement by Hughes that the bull belonged to Richard Hickland. Accordingly, Trooper Endee interviewed Hughes on January 14, 1977 and obtained from him a deposition stating the following:
On January 14, 1977, Judge McWhorter issued a warrant for the arrest of Richard Hickland based on the Hughes deposition and an accompanying information executed by Trooper Endee.
On June 27, 1977, Richard Hickland was acquitted by a jury on the criminal nuisance
The threshold inquiry in a § 1983 action is twofold. The Court must consider both whether the conduct complained of was committed by a person acting under color of state law as well as whether that conduct deprived a person of rights, privileges, or immunities secured by the Constitution. Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1912, 68 L.Ed.2d 420 (1981). There is no question that defendant Endee, in his capacity as a state trooper, was acting "under color of state law." Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). What is less clear, however, is whether or not Endee's actions served to deprive plaintiff of his constitutional rights.
In a § 1983 action the burden is on the plaintiff to prove by a preponderance of the evidence that conduct of the defendant "caused him to be subjected to a deprivation of constitutional rights." Duchesne v. Sugarman, 566 F.2d 817, 831 (2d Cir.1977); see also Rizzo v. Goode, 423 U.S. 362, 370-71, 96 S.Ct. 598, 603-04, 46 L.Ed.2d 561 (1976). The gravamen of plaintiff's complaint
A. Malicious Prosecution
In order for a plaintiff to recover on a claim of malicious prosecution, four distinct elements must be established. The plaintiff must demonstrate that (1) the defendant either commenced or continued a criminal proceeding against him; (2) that the proceeding terminated in his favor; (3) that there was no probable cause for the criminal proceeding; and (4) that the criminal proceeding was instituted in actual malice. Russo v. State of New York, 672 F.2d 1014, 1018 (2d Cir.1982); Martin v. City of Albany, 42 N.Y.2d 13, 16, 396 N.Y.S.2d 612, 614, 364 N.E.2d 1304, 1306 (1977); Broughton v. State of New York, 37 N.Y.2d 451, 457, 373 N.Y.S.2d 87, 94, 335 N.E.2d 310, 318, cert. denied, 423 U.S. 929, 96 S.Ct. 277, 46 L.Ed.2d 257 (1975).
Here, plaintiff's complaint centers upon defendant Endee's alleged lack of probable cause at the time he filed the informations charging plaintiff with criminal nuisance and violation of the New York State Health Law.
With respect to the first two informations filed on December 19, 1976, it is clear that plaintiff has failed to meet his burden of proving by a preponderance of the evidence a lack of probable cause. While the record contains extensive testimony concerning the factors surrounding defendant Endee's decision to file these initial informations, there is no clear indication that his actions were prompted by other than probable cause. Indeed, the "totality of the circumstances" informing Endee's decision to file the informations provides ample support for a finding of probable cause.
Although this Court concludes that Endee had probable cause to believe the cow belonged to Richard Hickland, that is not the only relevant probable cause inquiry. The basis of the informations was not only the presence of the animals on the road, but rather a failure on the part of Richard Hickland to comply with the orders from Trooper Endee to remove the dead cow and to keep other live cows off McClay Road. It was not until after Trooper Endee noted non-compliance with these orders that the informations were executed. Clearly, there was probable cause to support Endee's belief that Richard Hickland did not obey his orders. Because plaintiff has failed to establish the absence of probable cause as to these two informations, a claim for malicious prosecution stemming therefrom will not lie.
Similarly, with respect to the third information filed on January 14, 1977, plaintiff has failed to prove by a preponderance of the evidence that Trooper Endee lacked probable cause in executing the accusatory instrument. The record clearly indicates that Endee was instructed to proceed with an investigation of an accident involving a cow near the Hickland farm. When Endee took charge of the investigation already commenced by two other troopers, he was privy to a police blotter entry made by the original investigating officers which indicated that Thomas Hughes, a neighbor of the Hickland farm, said that the cow that was hit belonged to Richard Hickland. (Transcript, p. 205). Based on this information, Endee proceeded to obtain a deposition of Thomas Hughes to the same effect. While the deposition of Hughes was not
Even if plaintiff proved by a preponderance of the evidence a lack of probable cause,
527 F.2d at 740. Similarly, the Tucker court reasoned that
Tucker v. Maher, 497 F.2d at 1315 (quoting Whirl v. Kern, 407 F.2d 781, 787-88 (5th Cir.), cert. denied, 396 U.S. 901, 90 S.Ct. 210, 24 L.Ed.2d 177 (1969)). Of course, the malice that need be proven "`does not necessarily involve spite, hatred, malevolence, or a corrupt design; it is sufficiently established by showing that the baseless suit was instituted from any improper and wrongful motive.'" Brault v. Town of Milton, 527 F.2d at 739 (quoting Sparrow v. Vermont Savings Bank, 95 Vt. 29, 33, 112 A. 205, 207 (1921)). Here, there is simply no evidence in the record of any improper motive on the part of defendant Endee in his decision to file criminal informations.
Plaintiff erroneously contends that, to establish malice "[i]n the legal sense, it is sufficient to establish only that defendant acted without probable cause." (Plaintiff's post-trial brief at 14). While the absence of probable cause does bear on the malice issue, the two remain independent elements of the malicious prosecution action. Martin v. City of Albany, 42 N.Y.2d 13, 17, 396 N.Y.S.2d 612, 614, 364 N.E.2d 1304, 1306 (1977); see also Brault v. Town of Milton, 527 F.2d at 739-40 n. 6. Only where probable cause to initiate a criminal proceeding is
Plaintiff also raises allegations of animosity on the part of Judge McWhorter and Trooper Endee toward Richard Hickland. Nowhere, however, are these claims fairly established by the testimony. Nor is there to be found proof of any causal link between such purported animosity and the filing of charges. In short, plaintiff has not carried his burden of establishing by a preponderance of the evidence that any of Trooper Endee's actions were maliciously motivated.
Finally, at least with respect to two of the three informations, plaintiff has failed to establish the third element of a malicious prosecution claim, namely, a termination of the criminal proceedings in plaintiff's favor. It is well settled that this element of the state tort of malicious prosecution claim is equally applicable to § 1983 cases. Singleton v. City of New York, 632 F.2d 185, 195 (2d Cir.1980), cert. denied, 450 U.S. 920, 101 S.Ct. 1368, 67 L.Ed.2d 347 (1981). While plaintiff's acquittal by a jury on the criminal nuisance charge contained in the December 19 information does constitute a favorable termination, it is clear that the dismissal in the interest of justice of the remaining two informations does not. "`[O]nly when [the] * * * final disposition is such as to indicate * * * innocence'" is there a favorable termination. Hollender v. Trump Village Cooperative Inc., 58 N.Y.2d 420, 461 N.Y.S.2d 765, 768, 448 N.E.2d 432, 435 (1983) (quoting Restatement (Second) of Torts § 660 comment a). "If the dismissal is not a matter of right or on the merits, but is only `* * * as a matter of discretion or favor * *,' [sic] no claim for malicious prosecution may be based upon it." Dorak v. County of Nassau, 329 F.Supp. 497, 503 (E.D.N.Y.1970) (quoting Reit v. Meyer, 160 A.D. 752, 146 N.Y.S. 75, 79 (1st Dep't 1914)), aff'd, 445 F.2d 1023 (2d Cir.1971). Moreover, dismissals in the interest of justice pursuant to section 170.40 of the New York Criminal Procedure Law have been construed as not reflecting any disposition on the merits. See People v. Clayton, 41 A.D.2d 204, 206, 342 N.Y.S.2d 106, 109 (2d Dep't 1973); People v. Cohen, 112 Misc.2d 377, 447 N.Y.S.2d 90, 92 (N.Y.Crim.Ct.1981); People v. Eubanks, 108 Misc.2d 108, 436 N.Y.S.2d 953, 956 (N.Y.Crim.Ct.1981). Here, in requesting dismissal, the District Attorney expressly noted that "the people believe and urge at this time that all of the arrests in each of the various charges, were properly made and were of proper legal form and substance, but that notwithstanding such facts, the interest of the People of the State of New York would best be served by dismissing the two remaining charges in the interest of justice." (Plaintiff's ex. 78, ¶ 4).
Finally, the burden is on the plaintiff to present evidence of the circumstances under which the criminal proceeding was terminated. Russo v. State of New York, 672 F.2d 1014, 1020 (2d Cir.1982). Here, plaintiff has not even alleged a favorable termination and no evidence has been offered suggesting the dismissal was based on the innocence of the plaintiff. Absent proof of a favorable termination, plaintiff has failed to make out his § 1983 claim with respect to these two informations.
B. False Arrest
In addition to the malicious prosecution claim addressed above, plaintiff's complaint also includes claims predicated on a theory of constitutional false arrest. These claims too must fail.
Ostensibly, the constitutional deprivation asserted by plaintiff with respect to his false arrest claim is predicated upon both his fourth amendment right to be free from any unreasonable seizure and his fourteenth amendment right not to be deprived of liberty without due process of law. It is important to note at the outset that Endee's arrest of Richard Hickland was effected pursuant to a facially valid arrest warrant. Richard Hickland, thus, was afforded
The analysis of the Supreme Court in Baker v. McCollan, 443 U.S. 137, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979) is determinative of the outcome here. The plaintiff in Baker instituted a § 1983 action asserting a violation of his fourteenth amendment rights based on a theory of false arrest/imprisonment. Like Richard Hickland, the plaintiff in Baker had been arrested pursuant to a facially valid arrest warrant. The arrest and detention subsequently proved to have been erroneous. In rejecting any claim of a constitutional deprivation, the Court noted:
443 U.S. at 144-45, 99 S.Ct. at 2694-95 (footnote omitted).
In the present case, Trooper Endee effected the arrest of Richard Hickland only after first obtaining a warrant issued upon a probable cause finding by the town justice. The constitutional safeguard against unfounded invasions of liberty was satisfied, therefore, by having the issue of probable cause decided by a neutral and detached magistrate. See Gerstein v. Pugh, 420 U.S. 103, 112, 95 S.Ct. 854, 862, 43 L.Ed.2d 54 (1975). Here, the actions of the town justice serve to insulate Trooper Endee from liability for any action stemming from what is now claimed to have been an erroneous arrest.
Of course, the situation would be entirely different had plaintiff adduced evidence that Endee swore falsely to the information upon which the magistrate based his finding of probable cause. Here, however, the record contains no such evidence. Because plaintiff was afforded the constitutional protection of having a neutral and detached magistrate pass upon the question of probable cause, no liability properly may attach to the actions of Trooper Endee.
For all of the foregoing reasons, this Court concludes that plaintiff has not established a violation of his constitutional rights. Accordingly, entry of judgment in favor of defendant R.H. Endee, Jr. hereby is directed. The foregoing constitutes this Court's findings of fact and conclusions of law in accordance with Fed.R.Civ.P. 52(a).
It is so Ordered.
By an earlier decision of this Court, all claims against defendants Town of Argyle and County of Washington were dismissed pursuant to Fed. R.Civ.P. 12(b)(6). Hickland v. Endee, No. 78-CV-172 (N.D.N.Y. Sept. 23, 1982). Additionally, pursuant to this Court's unpublished order of November 8, 1982, plaintiffs Sandra Hickland, James Hickland, John Hickland, and Amanda Hickland all have been dropped from the suit.
Defendant called the following witnesses: New York State Trooper James Dean; Dr. Leith Skinner, Town of Argyle Health Officer; Muriel A. Swanson; Paul L. Stephan; William J. Morrison.
The distinguishing characteristic of a Hereford apparently is its reddish brown body and white face. (Transcript, p. 117). Among Herefords, there is also a distinction between horned and polled (unhorned) animals. According to trial testimony, most of the Hickland Herefords had horns. (Transcript, p. 436).
The "close relationship" to which plaintiff refers is certainly not out of the ordinary, considering the interrelated functions performed by these two defendants. The testimony of Judge McWhorter specifically disavows any social relationship with defendant Endee and acknowledges only the "line of duty" contacts that certainly would be expected between a town justice and a locally stationed state trooper.
With respect to any "joint venture" involving the impounding of the plaintiff's cattle, two points are in order. First, the claim of conversion already has been dismissed. Second, plaintiff's proof falls far short of suggesting even an inference of impropriety with respect to such concerted action. The impounding simply was a task requiring the efforts of more than one individual, and no conspiratorial motive reasonably may be found to exist. Indeed, plaintiff has failed completely to produce any evidence other than mere conjecture or speculation as to the existence of any conspiracy. Cf. Greene v. Brown, 535 F.Supp. 1096, 1099 (E.D.N.Y.1982) (§ 1985 action); Morpurgo v. Board of Higher Education, 423 F.Supp. 704, 711 (S.D.N.Y.1976) (§ 1985 action; "[a]lthough plaintiff has made some minimal effort to set forth the interrelationships of the alleged co-conspirators and the parameters of the conspiracy, she has done so by way of freewheeling and speculative allegations and has failed ... to allege any facts that could give rise to a reasonable inference of a conspiracy" (footnote omitted)); Johnson v. Branch, 242 F.Supp. 721, 732 (E.D.N.C.1965) ("The plaintiff must do more than set forth facts showing a vague possibility of a conspiracy. She must, with some particularity, prove overt acts which defendants engaged in and that are reasonably related to the promotion of this claimed conspiracy .... It is acknowledged that plaintiff need not prove the date and place of defendants' meetings and a summary of their conversation ..., but when plaintiff's proof establishes a factual situation which would just as well justify defendants' conduct as to lead to an inference of conspiracy, then plaintiff has failed to carry her burden"), rev'd on other grounds, 364 F.2d 177 (4th Cir.1966), cert. denied, 385 U.S. 1003, 87 S.Ct. 706, 17 L.Ed.2d 542 (1967).
Plaintiff apparently operates under the misconception that Endee was required to be absolutely certain of the identity of the cows before instructing Richard Hickland to have them removed. However, "it is clear that `only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause.'" Id. at ___, 103 S.Ct. at 2330 (quoting Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 590, 21 L.Ed.2d 637 (1969)). This Court is persuaded that under the totality of the circumstances, Trooper Endee was justified in formulating his belief that the cattle were in fact those of Richard Hickland.