Fulton v. Robinson
| Decision Date | 09 May 2002 |
| Docket Number | Docket No. 00-9547. |
| Citation | 289 F.3d 188 |
| Parties | Alvin FULTON Jr., Plaintiff-Appellant, v. Laurie ROBINSON, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Second Circuit |
Alvin Fulton, Jr., Rochester, NY, Plaintiff-Appellant pro se.
Linda S. Kingsley, Corporation Counsel, Rochester, N.Y. (Paul D. MacAulay, Municipal Attorney, Rochester, NY, of counsel), for Defendant-Appellee.
Before: KEARSE, MINER, and F.I. PARKER, Circuit Judges.
Plaintiff pro se Alvin Fulton, Jr., appeals from a judgment of the United States District Court for the Western District of New York, Charles J. Siragusa, Judge, dismissing his claims brought under 42 U.S.C. § 1983 (1994) against defendant Laurie Robinson, a police officer in the City of Rochester, New York, for malicious prosecution, false arrest, and use of excessive force during arrest. The district court granted summary judgment dismissing the malicious prosecution and false arrest claims on the ground that they were foreclosed by the fact that Fulton was convicted on one of the charges on which he was arrested; the court dismissed the excessive force claim on the ground that the force used against Fulton, in the circumstances, was not excessive. On appeal, Fulton contends principally (a) that he is entitled to pursue his claims of malicious prosecution and false arrest because one of the charges on which he was arrested was dismissed on double jeopardy grounds, and (b) that the court erred in ruling as a matter of law that the force used against him was not excessive. He also makes various assertions of procedural error. For the reasons that follow, we conclude that summary dismissal of the complaint was appropriate.
The present action has its origin in a domestic dispute between Fulton and his estranged wife, Mary Lee McCoullough Fulton ("Mary"), which was the subject of proceedings in New York Family Court in Monroe County, New York, beginning in May 1997. On May 27, 1997, the family court issued a temporary protective order prohibiting Fulton, until June 3, 1997, from being within 1,000 feet of Mary; that order was reissued on June 12, 1997, and remained in effect until July 2, 1997 (collectively the "Protective Order"). Most of the ensuing events are not genuinely in dispute; where there are genuine disputes as to material facts, the record is viewed in the light most favorable to Fulton as the party against whom summary judgment was granted.
On June 27, 1997, Mary filed in family court a verified "Petition for Violation of Order of Protection," stating that on that morning, Fulton had come to the back door of her home, with a gun in his waistband and a gasoline can in his hand, and had threatened to kill her and burn her house down. The petition requested that Fulton be jailed for the maximum time allowed.
On July 2, 1997, Mary lodged a complaint with the police. In a written "deposition," which contained a notice that any false statements therein would be punishable under § 210.45 of the New York Penal Law, she described Fulton's threats and conduct of June 27. In addition, she stated that on June 29, Fulton came to her house around midnight and silently looked into her windows; and she stated that on July 2, during an appearance in family court, Fulton murmured, loudly enough for Mary to hear but too softly for the judge to hear, apparently threatening words. Based on Mary's deposition, Rochester Police officers filled out two sworn accusatory instruments against Fulton with respect to his June 27 conduct: One was a felony information/complaint charging him with criminal contempt in the first degree, in violation of N.Y. Penal L. §§ 215.51(b)(i), (ii), and (vi) (McKinney 1999); the other was a misdemeanor information/complaint charging him with harassment in the second degree, in violation of N.Y. Penal L. §§ 240.26(1) and (3) (McKinney 2000).
Fulton learned of Mary's complaint from his attorney on July 2. He telephoned the police and stated that he would turn himself in at midnight. Fulton was then temporarily staying in an apartment at 309 Frost Avenue, Rochester, which had been rented to one Loretta Davis, who was then in jail. Following Fulton's call to the police, Robinson went to 309 Frost Avenue in order to arrest Fulton but did not find him there.
Later that evening, Mary made a "911" call seeking police assistance in removing property from the Frost Avenue apartment; the call was apparently made on behalf of Davis's sister, Samantha Benjamin, who was taking care of one or more of Davis's children and wanted to pick up some of their clothing. In response to this call, five police officers went to the Frost Avenue apartment; they were admitted into the building by its owner and its manager. Fulton, who was then in Davis's apartment, was arrested on charges of criminal contempt in the first degree and harassment in the second degree.
The manner of, and participants in, that arrest are somewhat in dispute. Fulton asserts that the police officers, after being let into the building, broke the locks on the door to Davis's apartment and forced their way in while he was asleep. He awoke to find Robinson shining a flashlight in his face and pointing her gun at him. One or more of the other officers pointed guns and mace at him, kicked the bed frame, and verbally abused him. Robinson denies that she was in the apartment at the time of Fulton's arrest; she states that she was outside, securing the perimeter of the building. It is not disputed that after his arrest, Fulton was placed in handcuffs and was taken to the police station by Robinson in her patrol car. Nor is it disputed that Fulton threatened to kick out the car's windows and that, in response, Robinson threatened to "cap-stun" him.
On August 14, 1997, Fulton was indicted in a 10-count indictment that included three counts based on his alleged conduct on June 27: one count of first-degree criminal contempt for violating the Protective Order by placing Mary in reasonable fear of physical injury "by displaying what appeared to be a pistol, revolver, or other firearm or by means of a threat or threats" (Count One); one count of second-degree criminal contempt for violating the Protective Order by coming within 1,000 feet of Mary (Count Two); and one count of second-degree harassment in that "with intent to harass, annoy or alarm another person, to wit, Mary Fulton, [Fulton] did strike, shove, kick or otherwise subject such other person to physical contact or attempted or threatened to do the same" (Count Three). In addition, Fulton was charged with five counts of criminal contempt or harassment for other alleged violations of the Protective Order between June 15 and June 29; and he was charged with two counts of harassment for threatening Robinson on July 2.
In September 1997, proceedings were held in family court on Mary's complaints that Fulton had violated the Protective Order on June 27 and June 29. (See Family Court Transcript, September 4, 1997 ("Fam.Ct.Tr."), at 3 ( ).) Those proceedings were resolved by a settlement, as reflected in the following colloquy:
THE COURT: All right. On these matters, my understanding is that an order of protection for three years by stipulation without the Court making any specific findings of aggravating circumstances would be acceptable to Ms. Fulton; ....
. . . .
What's being proposed is that this order of protection, Mr. Fulton, would take care of the three cases that I have.
Two of those cases are contempt cases. Each one of those could carry a jail term of up to six months. And those petitions would be withdrawn.
And I would make a one year order of protection on the family offense proceeding without finding that anything wrong happened, simply to settle the matters between you and Mrs. Fulton.
There would be an order of protection to direct that you stay away from Mrs. Fulton wherever she may be and have no contact with her....
I will also place you on probation for a period of one year.
You do not have to agree to this. You have the right to have the trial continue, and have the matters concluded, but if you do agree, you are giving up the right to have a trial.
In Family Court, again, you could be prosecuted and a request made for six months incarceration for each and every violation. So I can't say that this is without any prejudice to you because there could be prejudice if you violated it.
THE COURT: ... I'm going to make a one year order of protection — sorry, three year order of protection....
I'm going to ask that the clerk's office prepare that order right away. There are no aggravating circumstances noted. This is by stipulation and without a finding.
And I'm going to make a one year term of probation....
Some three weeks after this disposition, Fulton moved in New York Supreme Court for Monroe County to dismiss the August 14 indictment, contending principally that the charges had been resolved in the family cou...
To continue reading
Request your trial
-
Donovan v. Briggs
...his rights under the Fourth Amendment, and establish the elements of a malicious prosecution claim under state law." Fulton v. Robinson, 289 F.3d 188, 195 (2d Cir.2002) (citation omitted). Therefore, there are any material issues of fact in this case must be determined with reference to the......
-
Peruta v. City of Hartford
...of his rights under the Fourth Amendment, and establish the elements of a malicious prosecution claim under state law. Fulton v. Robinson, 289 F.3d 188 (2d Cir. 2002). In Lopes v. Farmer, 286 Conn. 384 (2008), the Connecticut Supreme Court specified the elements for a state law claim of mal......
-
Grega v. Pettengill
...against Pettengill under Vermont law. A malicious prosecution claim under § 1983 follows the state law standard, see Fulton v. Robinson, 289 F.3d 188, 195 (2d Cir.2002), so the federal and state law claims are analyzed together. In Vermont, "a plaintiff must demonstrate that the defendant i......
-
Butler v. Hesch, 1:16–cv–1540 (MAD/CFH)
...as to indicate the accused's innocence" or a formal abandonment by the prosecutor of the criminal proceeding. See Fulton v. Robinson , 289 F.3d 188, 196 (2d Cir. 2002) ("Where a prosecution did not result in an acquittal, it is generally not deemed to have ended in favor of the accused, for......