Cissell v. Hanover Ins. Co., Civ. A. No. 82-28.
| Decision Date | 04 November 1986 |
| Docket Number | Civ. A. No. 82-28. |
| Citation | 647 F. Supp. 757 |
| Court | U.S. District Court — Eastern District of Kentucky |
| Parties | Joe CISSELL, Plaintiff, v. HANOVER INSURANCE COMPANY, et al., Defendants. |
Gregg Neal, Shelbyville, Ky., for plaintiff.
Armer H. Mahan, Jr., Louisville, Ky., for Hanover.
William E. Johnson, Frankfort, Ky., for Stucker and Wilding.
This matter is before the court on the motion of the defendants Stucker and Wilding, both officers of the Kentucky State Police, for partial summary judgment on those portions of this action which present claims for violations of 42 U.S.C. § 1983 analogous to malicious prosecution claims and pendent state claims based on the same facts. The case is somewhat unusual and rather complex, but the facts relevant to the disposition of the present motions may be briefly stated as follows.
The defendants and other law enforcement officers were conducting an investigation of a suspected construction equipment theft ring. The plaintiff was arrested pursuant to two criminal complaints sworn to by defendant Stucker in Shelby County. Subsequently, the Shelby County Grand Jury indicted the plaintiff (# 82-CR-055) on charges set forth in defendant Stucker's criminal complaint after hearing testimony from defendant Stucker. Additionally, the plaintiff was indicted on other criminal charges arising out of the joint Kentucky State Police and F.B.I. investigation by the Shelby County Grand Jury (# 82-CR-059) and the Anderson County Grand Jury (# 82-CR-0026) at the same time based upon the testimony of defendant Stucker.
The Anderson Indictment # 82-CR-0026 and Count I of Shelby Indictment # 82-CR-055 were voluntarily dismissed by the Commonwealth. A Shelby County jury acquitted the plaintiff of the charges against him in Shelby Indictment # 82-CR-059. Count II of Shelby Indictment # 82-CR-055 was initially dismissed by the Shelby Circuit Court on the motion of the plaintiff. The Commonwealth immediately appealed the dismissal of Count II of Shelby Indictment # 82-CR-055. While the appeal of the Shelby Circuit Court's Order of Dismissal was pending, the plaintiff was indicted by the United States Grand Jury for the Eastern District of Kentucky (Indictment # 82-33).
Thereafter, on January 6, 1983, the plaintiff and the United States entered into a pre-trial diversion agreement whereby the United States and the plaintiff agreed to defer the plaintiff's prosecution for one year pending the plaintiff's completion of the Pre-Trial Diversion Program. A copy of the Pre-Trial Diversion Agreement is attached hereto in the appendix. On January 17, 1984, upon the plaintiff's successful completion of the Pre-Trial Diversion Program, an Order was entered in the United States District Court dismissing United States Criminal Indictment No. 82-33. A copy of the Order dismissing the Indictment is attached hereto in the appendix. While the plaintiff was enrolled in the diversion program, the Kentucky Court of Appeals reversed the Shelby Circuit Court's Order dismissing Count II of Indictment # 82-CR-055 and ordered Count II reinstated. Subsequently, on April 30, 1986, the Shelby Circuit Court again dismissed Count II of Shelby Indictment # 82-CR-055 for failure of the Commonwealth to comply with its Order regarding the transcription of tape recordings and specifications as to their use.
All of these prosecutions, as far as pertinent here, involved the same events. An unfavorable termination of one precludes a malicious prosecution action on all. The narrow question presented is whether a prosecution which has resulted in dismissal following defendant's voluntary participation in a federal pre-trial diversion program may be considered as having been terminated favorably to that defendant when he later becomes a plaintiff in a common law malicious prosecution action or an analogous § 1983 action. This court hereby holds that such a disposition of a prosecution is not such a favorable termination.
It is well established that a prerequisite for recovery in both a common law malicious prosecution action and a federal § 1983 claim analogous to such action is proof that the previous prosecution alleged to be malicious was terminated in favor of the present plaintiff. Singleton v. City of New York, 632 F.2d 185 (2d Cir.1980), cert. denied, 450 U.S. 920, 101 S.Ct. 1368, 67 L.Ed.2d 347 (1981); Lindes v. Sutter, 621 F.Supp. 1197 (D.N.J.1985).1
State law may be referred to by analogy to determine what is a favorable termination. Although no case directly on point has been cited by the parties or discovered by the court involving a federal pre-trial diversion program, there are well-reasoned precedents to the effect that similar state dispositions of criminal prosecutions may not be considered "favorable terminations" for the purpose of subsequent malicious prosecution actions.
Singleton and Lindes, supra, are excellent examples. Both involve state procedures in which a criminal defendant is granted a dismissal or a permanent continuance if he "behaves himself" during a period when prosecution of the charge is held in abeyance.
The Kentucky case of Van Arsdale v. Caswell, 311 S.W.2d 404 (Ky.1958), is in accord with regard to the Kentucky informal procedure of "filing away" a criminal case, or, in the local parlance, placing it on the "open docket." Even a cursory analysis reveals that the federal Pre-Trial Diversion Program voluntarily entered into by the plaintiff was at least as onerous than the state procedures described in these cases.
As the court said in its rationale in Lindes at p. 1201-02:
"To hold otherwise would be to allow a criminal defendant to side-step criminal prosecution, to forego litigation of his guilt or innocence, to benefit from a rehabilitative program, and then to turn around and to use this process which was designed to help him as a sword against the state in a civil action."
Without belaboring the matter further, the court is in full agreement with the views expressed in Singleton and Lindes, supra, and the reader is referred to them for a fuller discussion. The court also believes that the principles expressed in them and in Van Arsdale, supra, are fully applicable to federal pre-trial diversion. Accord: Konon v. Fornal, 612 F.Supp. 68 (D.Conn.1985).
Therefore, the court holds that the motions for partial summary judgment must be granted.
Therefore, the court being advised,
IT IS ORDERED that the motions of the defendants Stucker and Wilder for partial summary judgment be, and they are, hereby GRANTED.
It appearing that you are reported to have committed an offense against the United States on or about May through December, 1981, in violation of Title 18, Section 1341, United States Code, in that you did use the United States Mail in a scheme to defraud the Hanover Insurance Companies, Shelby Insurance Agency:
Upon your accepting responsibility for your behavior and by your signature on this Agreement*, it appearing, after an investigation of the offense, and your background, that the interest of the United States and your own interest and the interest of justice will be served by the following procedure; therefore
On the authority of the Attorney General of the United States, by Louis DeFalaise, United States Attorney for the Eastern District of Kentucky, prosecution in this District for this offense shall be deferred for the period of twelve (12) months from this date, provided you abide by the following conditions.
Should you violate the conditions of this agreement the United States Attorney may revoke or modify any conditions of this pre-trial diversion program or change the period of supervision which shall in no case exceed twelve (12) months. The United States Attorney may at any time within the period of your supervision initiate prosecution for this offense should you violate the conditions of this agreement and will furnish you with notice...
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...innocence’ "].)12 Federal courts have also ruled similarly with regard to federal pretrial diversion programs. In Cissell v. Hanover Ins. Co. (E.D.Ky.1986) 647 F.Supp. 757, the court granted summary judgment to state police officers who were sued under section 1983 for malicious prosecution......
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