Janetka v. Dabe, 3384

• Decision Date: 15 December 1989
• Docket Number: No. 3384,D,I,No. 333,3384,333
• Citation: 892 F.2d 187
• Parties: 29 Fed. R. Evid. Serv. 612 Andrew F. JANETKA, Jr., Plaintiff-Appellant, v. Darrell DABE, Badgendividually and as a Police Officer of the Suffolk County, New York Police Department and County of Suffolk, Defendants-Appellees. ocket 89-7451.
• Court: U.S. Court of Appeals — Second Circuit

Page 187

892 F.2d 187

29 Fed. R. Evid. Serv. 612

Andrew F. JANETKA, Jr., Plaintiff-Appellant, v. Darrell DABE, Badge No. 3384, Individually and as a Police

Officer of the Suffolk County, New York Police

Department and County of Suffolk,

Defendants-Appellees.

No. 333, Docket 89-7451.

United States Court of Appeals, Second Circuit.

Argued Nov. 2, 1989.

Decided Dec. 15, 1989.

Arthur V. Graseck, Jr., Port Washington, N.Y., for plaintiff-appellant.

E. Thomas Boyle, Suffolk County Atty., Hauppauge, N.Y. (Dennis E. Milton, Chief Deputy County Atty., Robert H. Cabble, Asst. County Atty., of counsel), for defendants-appellees.

Before MINER and MAHONEY, Circuit Judges, and CARMAN, Judge. ^*

MINER, Circuit Judge:

Plaintiff-appellant Andrew F. Janetka, Jr., appeals from a judgment entered in the United States District Court for the Eastern District of New York (Wexler, J.), on April 28, 1989, dismissing his complaint At the close of Janetka's case, the district court directed a verdict for defendants on the malicious prosecution claim on the ground that Janetka's acquittal of resisting arrest was not a "favorable termination," considering his conviction of the lesser offense of disorderly conduct. Janetka v. Dabe, 710 F.Supp. 906, 909 (E.D.N.Y.1989). After ruling that an investigative report concerning Suffolk County's toleration of police conduct was inadmissible, the court also dismissed all claims against the County. The excessive force and denial of medical treatment claims were tried by a jury, which found for Dabe.

                against defendants-appellees Darrell Dabe and the County of Suffolk.   Janetka alleged malicious prosecution of a resisting arrest charge in violation of his constitutional rights, 42 U.S.C. §§ 1983, 1988 (1982), having been acquitted of resisting arrest after a trial which also resulted in his conviction of disorderly conduct.   He further alleged that defendant-appellee Darrell Dabe, a Suffolk County Police Officer, used excessive force in arresting him and denied him medical treatment, also in violation of his constitutional rights.   Janetka also pleaded pendent state law claims for false arrest, assault, battery, negligence and gross negligence against the County under the common-law doctrine of respondeat superior
                

On appeal, Janetka asserts that his malicious prosecution claim should have been presented to the jury, because his acquittal was a favorable termination of the underlying charge, despite his conviction of a lesser, related charge. Janetka also contends that the district court erred in excluding the investigative report, and that he was denied a fair trial on his remaining claims because the jury was not allowed to consider his malicious prosecution claim in conjunction with his claim of excessive force. Janetka has not raised any arguments concerning the dismissal of his pendent state law claims against the County.

We hold that Janetka's acquittal of the resisting arrest charge was a favorable termination for purposes of the malicious prosecution claim. We therefore reverse so much of the judgment as dismissed the malicious prosecution claim and remand for further proceedings as to that claim. We also find that the district court properly excluded the investigative report and that Janetka received a fair trial, and therefore affirm the rest of the judgment.

BACKGROUND

Darrell Dabe, a Suffolk County Police Officer, responded to a radio call at approximately 3:00 a.m. on November 5, 1986, reporting that a fight involving a knife was in progress at a convenience store. When Dabe arrived at the store, Janetka told him that an hispanic man in the store had a knife. Police Officer Edward Troyano, who had arrived at the store at about the same time as Dabe, frisked the man but found no knife. The store clerk, who had reported the fight, told the officers that Janetka had harassed the man and his girlfriend.

Troyano went to his car to run warrant checks on both the hispanic man and Janetka. Dabe remained on the sidewalk between the hispanic man and Janetka, who was yelling and pointing his finger at the man. When Dabe told Janetka he might be arrested, Janetka responded with expletives. Dabe arrested Janetka for disorderly conduct. Dabe testified at trial that Janetka began waving his arms, thereby preventing Dabe from applying handcuffs. Troyano and Police Officer Scott Devine, who also had answered the radio call, assisted Dabe. In the ensuing struggle, Janetka and the officers fell against the store window. Janetka subsequently was charged with resisting arrest.

Janetka testified, in contrast, that he had been accosted by the hispanic man and, due to the stress of the situation, he suffered an asthma attack and had difficulty breathing and speaking. He testified that he waved his arms to gesture to the police officers because he could not speak, and that Dabe struck him in the face several times. Janetka claimed to have suffered bruises and facial swelling. Testimony concerning the car ride to the Fifth Suffolk County Police Precinct in Patchogue also Janetka filed a complaint with the Human Rights Commission, resulting in an internal affairs investigation and a reprimand for Dabe for failing to record the names of the hispanic man and his companion. The charges of resisting arrest and disorderly conduct were tried before a jury and Judge Marquette Floyd in the Suffolk County District Court, resulting in a verdict of not guilty on the charge of resisting arrest, and guilty on the charge of disorderly conduct. Evidence of the disposition of both charges was presented to the jury in the case at bar.

                differed.   Dabe testified that Janetka spit on him and kicked the car windshield.   Janetka testified that Dabe punched him in the head several times
                

At the conclusion of plaintiff's case in this action, the district court granted defendants' motion for a directed verdict dismissing Janetka's malicious prosecution claim, on the ground that Janetka's acquittal on the false arrest charge was not a "favorable termination" in light of the fact that he had been convicted of disorderly conduct. Janetka, 710 F.Supp. at 908-09. The court held that "although separate offenses were charged, both arose out of events that occurred on the same occasion. The charges were closely related and arose in connection with two types of behavior that occurred either simultaneously or within minutes of each other." Id. at 909.

The district court earlier had refused to allow Janetka to introduce into evidence portions of a State Investigation Commission Report on official condonation of police misconduct by the Suffolk County Police Department and dismissed the claims against the County. The remaining claims, excessive force and denial of medical treatment, went to the jury, which found for defendant Dabe.

DISCUSSION

A claim of malicious prosecution brought pursuant to sections 1983 and 1988 is governed by state law in the absence of federal common law. See Conway v. Village of Mount Kisco, 750 F.2d 205, 214 (2d Cir.1984). Under New York law, a plaintiff alleging malicious prosecution must establish 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. New York, 672 F.2d 1014, 1018 (2d Cir.1982) (quoting Martin v. City of Albany, 42 N.Y.2d 13, 16, 364 N.E.2d 1304, 1307, 396 N.Y.S.2d 612, 614 (1977)), modified on other grounds, 721 F.2d 410 (2d Cir.1983) (per curiam).

The district court dismissed Janetka's claim of malicious prosecution of the resisting arrest charge, even though Janetka had been acquitted of that offense, on the theory that the proceeding had not terminated in his favor. Judge Wexler reasoned that the acquittal was not a favorable termination, because the charge "arose out of events that occurred on the same occasion" as the disorderly conduct charge that resulted in a conviction. 710 F.Supp. at 909. We disagree.

Favorable termination is not so much an element of a malicious prosecution claim as it is a prerequisite to commencement of the action. See Munoz v. City of New York, 18 N.Y.2d 6, 10, 218 N.E.2d 527, 529, 271 N.Y.S.2d 645, 649 (1966) ("It is a kind of pre-condition to the later action, the sine qua non...."); see also W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser and Keeton On Torts § 119, at 874 (5th ed. 1984). The requirement of favorable termination ensures against inconsistent judgments. Heaney v. Purdy, 29 N.Y.2d 157, 160, 272 N.E.2d 550, 552, 324 N.Y.S.2d 47, 49 (1971). It also permits a finding that probable cause was lacking. Id., 272 N.E.2d at 552, 324 N.Y.S.2d at 49.

When a...