Day v. Morgenthau

• Decision Date: 29 August 1990
• Docket Number: No. 1237,D,1237
• Citation: 909 F.2d 75
• Parties: , 17 Fed.R.Serv.3d 798 Christopher C. DAY, Ph.D., Plaintiff-Appellant, v. Robert M. MORGENTHAU, in his official capacity as District Attorney for the County of New York, John W. Moscow, Individually and in his official capacity as Assistant District Attorney for the County of New York, Hon. Edward McLaughlin, Individually and in his official capacity as Judge of the Criminal Court of the City of New York, Joseph B. Murray, Individually and in his official capacity as Senior Court Officer, "Jane Doe" Marshall, individually and in her official capacity as an officer of the New York City Department of Correction, Richard Koehler, in his official capacity as Commissioner of the New York City Department of Correction, Defendants-Appellees. ocket 90-7040.
• Court: U.S. Court of Appeals — Second Circuit

Page 75

909 F.2d 75

17 Fed.R.Serv.3d 1420, 17 Fed.R.Serv.3d 798

Christopher C. DAY, Ph.D., Plaintiff-Appellant, v. Robert M. MORGENTHAU, in his official capacity as District Attorney for the County of New York, John W. Moscow Individually and in his official capacity as Assistant District Attorney for the County of New York, Hon. Edward McLaughlin, Individually and in his official capacity as Judge of the Criminal Court of the City of New York, Joseph B. Murray, Individually and in his official capacity as Senior Court Officer, "Jane Doe" Marshall, individually and in her official capacity as an officer of the New York City Department of Correction, Richard Koehler, in his official capacity as Commissioner of the New York City Department of Correction, Defendants-Appellees.

No. 1237, Docket 90-7040.

United States Court of Appeals Second Circuit.

Argued May 31, 1990.

Decided July 19, 1990.

As Amended on Grant of Rehearing

Aug. 29, 1990.

Bernard Fromartz, Brooklyn, N.Y., for plaintiff-appellant.

Howard L. Perzan, Asst. Dist. Atty., New York City (Robert M. Morgenthau, Dist. Atty., Marc Frazier Scholl, Asst. Dist. Atty., New York City, of counsel), for defendants-appellees Morgenthau and Moscow.

Stephen Mendelsohn, Asst. Atty. Gen., New York City (Robert Abrams, Atty. Gen., N.Y., Lawrence S. Kahn, Deputy Sol. Gen., New York City, of counsel), for defendant-appellee Murray.

Helena Lee, New York City (Victor A. Kovner, Corp. Counsel, Stephen J. McGrath, New York City, of counsel), for defendants-appellees Marshall and Koehler.

Before KAUFMAN, KEARSE and MINER, Circuit Judges.

MINER, Circuit Judge:

Plaintiff-appellant Christopher C. Day appeals from a judgment of the United States District Court for the Southern District of New York (Duffy, J.) dated October 30, 1989, dismissing his complaint for failure to state a claim upon which relief may be granted, see Fed.R.Civ.P. 12(b)(6), and from a December 13 order of that court denying leave to file an amended complaint, see Fed.R.Civ.P. 15(a). Day alleged in his initial complaint that defendants-appellees, acting under color of state law, deprived him of his constitutional rights in violation of 42 U.S.C. Sec. 1983 (1982) when they arrested, searched, detained and prosecuted him on a charge of criminal trespass.

On appeal, Day contends that the district court erred in dismissing the claims against defendants-appellees John W. Moscow and Joseph B. Murray. He also contends that the district court abused its discretion in denying his post-judgment motion for leave to file an amended complaint amplifying his claims against Moscow and Murray. Day does not address the claims pleaded against the other defendants, and we therefore have no reason to do so. See Kletschka v. Driver, 411 F.2d 436, 446-47 (2d Cir.1969); Fed.R.App.P. 28(a)(4).

For the reasons that follow, we affirm the dismissal of the claim of malicious prosecution against Moscow, reverse the dismissal of the claims of false arrest and illegal search and seizure against Moscow and Murray, and remand the case for further proceedings consistent with this opinion.

BACKGROUND

Day made the following allegations in his complaint, which we accept as true for purposes of reviewing this motion to dismiss. On December 11, 1985, Day and an attorney for whom he worked as a paralegal On April 13, 1986, Day's motion to suppress the contents of his briefcase was granted by a judge of the New York City Criminal Court. Following three adjournments of trial at the prosecution's request and the expiration of the time for a speedy trial, the Criminal Court dismissed the charge on the prosecution's motion. Day then commenced this action under section 1983 for false arrest, illegal search and seizure, and malicious prosecution.

went to the ninth floor of the criminal courts building at 111 Centre Street in Manhattan. After receiving verbal authority from a Correction Officer, Day waited outside the prisoner "holding pens" while the attorney went inside to consult with a client. The following day, defendant-appellee John W. Moscow, an Assistant District Attorney for New York County, observed Day in a courtroom gallery and "directed" defendant-appellee Joseph B. Murray, a Senior Court Officer, to arrest him. Murray arrested Day without a warrant on a charge of criminal trespass in the third degree, alleging that Day's presence outside the "holding pens" the day before was unauthorized. At the time of arrest, Murray searched and seized the contents of Day's briefcase. Although initially informed that he would be released on an "appearance ticket," Day was incarcerated for thirty-one hours prior to his arraignment on the criminal trespass charge because of Moscow's intervention.

The district court dismissed all claims against Moscow on the ground that his actions were within the scope of his prosecutorial duties and therefore protected by absolute immunity. The court also dismissed the claim against Murray for illegal search and seizure, because the only damages alleged--attorney's fees and mental anguish caused by the four-month prosecution of the charge against Day--had no causal nexus with the search. The order dismissing the complaint was entered on October 24, 1989, and final judgment was entered on October 31.

On November 13, Day moved in the district court for reconsideration and leave to file an amended complaint pursuant to Federal Rules of Civil Procedure 15(a), 59(a) and 60(b). In the proposed amended complaint, Day alleged that Moscow "ordered" Murray to detain and arrest him without a warrant or probable cause and to have him incarcerated on a misdemeanor complaint. He also alleged that Moscow "conspired with and instructed" Murray in both the search of Day's briefcase and the prosecution of the charge against him. Finally, he alleged that Moscow instructed Murray not to allow Day's release on an "appearance ticket." The district court denied the motion for leave to file an amended complaint on December 13. Day filed a timely notice of appeal from the judgment and order on January 2, 1990. See Fed.R.App.P. 4(a)(4).

DISCUSSION

Section 1983 provides a civil claim for damages and injunctive relief against any person who acts under color of state law to deprive another of a constitutional right. 42 U.S.C. Sec. 1983. Allegations of facts constituting an arrest without probable cause, an unreasonable search and seizure, or malicious prosecution state claims under section 1983. See, e.g., Monroe v. Pape, 365 U.S. 167, 171, 81 S.Ct. 473, 475, 5 L.Ed.2d 492 (1961). When subjected to an illegal search and seizure, special damages need not be alleged because "the victim is harmed by the invasion of his zone of privacy, whether or not the evidence unlawfully obtained is introduced at trial." Lee v. Willins, 617 F.2d 320, 322 (2d Cir.), cert. denied, 449 U.S. 861, 101 S.Ct. 165, 66 L.Ed.2d 78 (1980). The allegations that Day was arrested, searched and prosecuted without probable cause therefore set forth the essential elements of a section 1983 claim.

Although section 1983 imposes liability upon "every person" who deprives another of a constitutional right under color of state law, the doctrines of absolute and qualified immunity shield prosecutors and law enforcement officers from liability related to their official acts. Imbler v. Pachtman, 424 U.S. 409, 417-19, 96 S.Ct. 984, 988-90, 47 L.Ed.2d 128 (1976). Assistant District Attorney Moscow is absolutely While there are no "bright lines between quasi-judicial absolutely immune conduct, on the one hand, and investigative and administrative qualifiedly immune behavior, on the other," Powers v. Coe, 728 F.2d 97, 104 (2d Cir.1984), the allegation that Moscow engaged in malicious prosecution of the charge against Day is clearly within the "judicial phase of the criminal process," Imbler, 424 U.S. at 430, 96 S.Ct. at 995, and we therefore affirm the dismissal of that claim on absolute immunity grounds.

                immune from liability under section 1983 for acts "within the scope of his duties in initiating and pursuing a criminal prosecution."    Id. at 410, 96 S.Ct. at 985.    "The granting or denial of absolute immunity depends more, however, on the function being performed than on the office of the defendant, and the absolute immunity accorded a prosecuting attorney is extended only so far as is necessary to the effective functioning of the judicial process."    Robison v. Via, 821 F.2d 913, 918 (2d Cir.1987);  see also Taylor v. Kavanagh, 640 F.2d 450, 452 (2d Cir.1981).  The test is whether the prosecutor is engaged in activities that are "intimately associated with the judicial phase of the criminal process."    Imbler, 424 U.S. at 430, 96 S.Ct. at 995;  see, e.g., Barr v. Abrams, 810 F.2d 358, 362 (2d Cir.1987) (filing criminal information and obtaining arrest warrant);  Taylor, 640 F.2d at 453 (plea bargaining);  Lee, 617 F.2d at 322 (alleged falsification of evidence and coercion of perjured testimony).  When a prosecutor is engaged in administrative or investigative activities, he is entitled only to qualified immunity, which requires a showing that his acts were objectively reasonable.  See, e.g., Robison, 821 F.2d at 920 (seizure of allegedly abused child)
                

Arrests and searches, however, "are normally police functions, and they do not become prosecutorial functions merely because a prosecutor has chosen to participate." Robison, 821 F.2d at 918; see also Barr, 810 F.2d at 362 (recognizing a "meaningful" distinction "between filing the criminal information and procuring an arrest warrant, on the one hand, and executing the arrest warrant, on the other"). The original complaint alleges that Moscow "directed" Murray to arrest Day without a warrant and without probable cause, while all three men were in the same courtroom. Since this allegation suggests that Moscow may have participated in "executing the arrest," it cannot be found "beyond doubt that the plaintiff...