63 F.3d 110 (2nd Cir. 1995), 1501, Singer v. Fulton County Sheriff

Docket Nº:1501, Docket 94-9093.
Citation:63 F.3d 110
Party Name:Daniel S. SINGER, Plaintiff-Appellant, 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 May
Case Date:August 09, 1995
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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63 F.3d 110 (2nd Cir. 1995)

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 employs, Sheldon Ginter, individually

and as Mayor of Village of Northville, James Groff,

individually, as deputy sheriff, and as Village of

Northville 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.

No. 1501, Docket 94-9093.

United States Court of Appeals, Second Circuit

August 9, 1995

Argued May 5, 1995.

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[Copyrighted Material Omitted]

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Martin J. Kehoe, III, Albany, NY, for plaintiff-appellant.

James E. Conway, Albany, NY, for defendants-appellees Fulton County Sheriff's Dept., Fulton County Sheriff, James Hillman, Deputy Hillier and Martin Kested.

Damon J. Stewart, Albany, NY (Dreyer, Boyajian & Tuttle, of counsel) for defendants-appellees Village of Northville, Sheldon Ginter and James Groff.

Belinda A. Wagner, Albany, NY, for defendants-appellees Stewart's Ice Cream Co., Inc., Andrea Nicollela and Raymond Shuler.

Before CARDAMONE, MINER, and JACOBS, Circuit Judges.

JACOBS, Circuit Judge:

Plaintiff-appellant Daniel S. Singer brought this civil rights action, pursuant to 42 U.S.C. Sec. 1983, in the 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.


Daniel S. Singer, a resident of the Village of Northville, New York, is employed as a ranger by the New York State 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 in a 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. 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 high-performance cruiser, and the contention that many of the Village's police officers and other officials tended to spend an inordinate amount of time

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congregating at the Stewart's Shop. 1 One cartoon, for example, depicts an obese policeman straddling the roof of a new police car, demanding his turn to drive; a doughnut box is on the ground nearby. Virtually all 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 an emergency 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 clerk 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. 2 He then left the store.

Around 3:00 PM, the store clerk, Raymond Shuler, telephoned the store manager, Andrea Nicollela, and informed her that Singer had left the store without paying for $11.55 worth of merchandise. Galvanized into action, Nicollela hurried to the Shop, where (according to Singer's 10(j) 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 sign 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 Singer'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 arraigned at the 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 Sec. 1983; (2) malicious prosecution, under Sec. 1983; (3) conspiracy to violate his

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civil rights, under Sec. 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 U.S. Constitution.

By consent of the parties and pursuant to 28 U.S.C. Sec. 636(c), the matter was referred to Magistrate Judge David N. Hurd. 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's 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.


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 judgment de novo, drawing all inferences in the light most favorable to the non-moving party. Viola v. Philips Medical Sys. of N. Am., 42 F.3d 712, 716 (2d Cir.1994). Our standard of review of the district...

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