White v. Frank

• Decision Date: 29 February 1988
• Docket Number: No. 86 Civ. 7403 (DNE).,86 Civ. 7403 (DNE).
• Parties: Willie D. WHITE, Plaintiff, v. Richard FRANK, Individually and as an Officer and Employee of the City of Poughkeepsie, New York, Freeman Marshall, Individually and as an Officer and Employee of the City of Poughkeepsie, New York, and the City of Poughkeepsie, Defendants.
• Court: U.S. District Court — Southern District of New York

680 F. Supp. 629

Willie D. WHITE, Plaintiff, v. Richard FRANK, Individually and as an Officer and Employee of the City of Poughkeepsie, New York, Freeman Marshall, Individually and as an Officer and Employee of the City of Poughkeepsie, New York, and the City of Poughkeepsie, Defendants.

No. 86 Civ. 7403 (DNE).

United States District Court, S.D. New York.

February 29, 1988.

Reilly & Lewis, White Plains, N.Y. (Gerald D. Reilly, of counsel), for plaintiff Willie D. White.

Sheft, Wright and Sweeney, New York City (Peter I. Sheft, Norman J. Golub, Robert P. Siegel, of counsel), for defendant Freeman Marshall.

Thurm & Heller, New York City (Edward L. Owen, Milton Thurm, of counsel), for defendant Richard Frank.

Wilson, Bave, Conboy & Bave, P.C. (William H. Bave, of counsel), for defendant City of Poughkeepsie.

OPINION AND ORDER

EDELSTEIN, District Judge:

This is a civil action, brought pursuant to 42 U.S.C. §§ 1983, 1985(3), and common law. Plaintiff seeks compensatory and punitive damages for false arrest, false imprisonment, and malicious prosecution. The court referred this action to Magistrate Leonard Bernikow on August 29, 1986, pursuant to 28 U.S.C. § 636(b)(1)(B) (1982). Defendants Richard Frank and Freeman Marshall ("the individual defendants") moved, pursuant to Federal Rules of Civil Procedure 12(b)(6) and 12(c), to dismiss the complaint on the ground that it fails to state a claim upon which relief can be granted. By report and recommendation dated March 31, 1987, the Magistrate recommended that the individual defendants' motions to dismiss be denied in part and granted in part. Plaintiff and defendant Marshall filed objections to the Magistrate's recommendations. This court, after a de novo review and consideration of the objections to the Magistrate's report, orders that the individual defendants' motions to dismiss be granted with respect to plaintiff's claims arising from defendants' allegedly false testimony at trial and at the pretrial suppression hearing and denied in all other respects.

BACKGROUND

The complaint, the material allegations of which are to be taken as admitted for purposes of the motions to dismiss, see Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957), alleges that the individual defendants, police officers attached to the Crime Prevention Unit of the City of Poughkeepsie, New York ("Crime Prevention Unit"), gave perjurious testimony before a Dutchess County Grand Jury to the effect that plaintiff sold cocaine to a confidential informant on both June 8 and June 15, 1983. The individual defendants repeated this testimony at a pretrial probable cause hearing and at plaintiff's trial, which began on April 2, 1984. After a jury trial, plaintiff was convicted on two counts of criminal sale of a controlled substance in the third degree, a class B felony, for the June 8, 1983 sale. The conviction was based, at least in part, upon defendant Frank's testimony before the Grand Jury, at a pretrial probable cause hearing, and at trial that he had witnessed the June 8, 1983 sale. The jury could not, however, reach a verdict on the sale of cocaine that allegedly occurred on June 15, 1983, about which defendant Marshall testified before the Grand Jury, at the pretrial probable cause hearing, and at trial. The charges stemming from the alleged June 15, 1983 sale were dismissed. On May 15, 1983, plaintiff was sentenced to seven and one-half to fifteen years imprisonment.

Later, the Dutchess County District Attorney's Office learned of certain misconduct on the part of defendant Frank and other members of the Crime Prevention Unit. On January 4, 1985, defendant Frank was charged with grand larceny in the third degree, criminal possession of stolen property in the second degree, and tampering with physical evidence, all arising from his activities as a police officer of the City of Poughkeepsie. Defendant Frank pleaded guilty to tampering with physical evidence, a Class E felony. Defendant Marshall and other members of the Crime Prevention Unit were also charged with felonies arising out of their activities as police officers. Defendant Marshall pleaded guilty to the crime of official misconduct. According to the complaint, in early 1985, defendant Frank acknowledged to a Dutchess County Assistant District Attorney that he had perjured himself before the grand jury that had indicted the plaintiff, at plaintiff's pretrial probable cause hearing, and at plaintiff's trial. Consequently, an order pursuant to New York Criminal Procedure Law Article 440, vacating plaintiff's conviction, was entered on August 15, 1985, whereupon he was released from custody.

The complaint also alleges that plaintiff is black, that the individual defendants are white, and that the prosecution against the plaintiff was racially motivated. The plaintiff further alleges that defendants Frank and Marshall maliciously conspired in initiating the prosecution of plaintiff. In furtherance of this alleged conspiracy, it is claimed that the defendants "repeatedly perjured themselves and suborned perjury." Complaint at ¶¶ 51, 52.

As a result of the foregoing allegations, plaintiff claims that he was falsely arrested, maliciously prosecuted, and falsely imprisoned, in violation of his Fourth, Sixth, and Fourteenth Amendment rights.¹

Citing the Supreme Court case of Briscoe v. LaHue, 460 U.S. 325, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983), the individual defendants contend that they are absolutely immune from civil liability under Section 1983 arising out of their testimony at trial, before the Grand Jury, and at the pretrial hearing. In Briscoe, the Court held that Section 1983 does not authorize a convicted person to assert a claim for damages against a police officer for giving perjurious testimony at that person's criminal trial. See id. at 329, 345-46, 103 S.Ct. at 1112, 1120-21.

Plaintiff does not dispute that Briscoe shields the individual defendants from damages based upon their testimony at trial. Instead, plaintiff focuses on the individual defendants' testimony before the grand jury and at a pretrial hearing, which, according to plaintiff's papers, was a suppression hearing. In addition, plaintiff challenges the actions of the individual defendants prior to their testifying before the grand jury. Plaintiff alleges that the individual defendants maliciously conspired to initiate the prosecution against him.² Further, plaintiff alleges that the actions of the individual defendants were racially motivated.³

In response, the individual defendants argue that plaintiff's allegations of a conspiracy and of racial animus are too conclusory to state a civil rights claim.

Thus, the court is presented with three significant questions: first, whether police officers that testify at grand jury proceedings are entitled to absolute immunity from civil liability; second, whether that same absolute immunity extends to police officers who testify at pretrial hearings such as probable cause hearings held before trial in conjunction with a motion to suppress evidence; whether the allegations of conspiracy and racial discrimination in plaintiff's complaint are sufficient to state a claim under 42 U.S.C. § 1985(3).

DISCUSSION

I. Absolute Immunity

The Supreme Court in Briscoe v. LaHue, 460 U.S. 325, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983) held that police officers are absolutely immune from liability under 42 U.S.C. § 1983 for testifying falsely at trial. In that decision, the Court expressly declined to decide whether the same immunity would be extended for false testimony at a pretrial probable cause hearing. See Briscoe, supra, 460 U.S. at 329 n. 5, 103 S.Ct. at 1112 n. 5. Courts subsequently applying Briscoe have split on whether to grant absolute immunity for false testimony at proceedings other than trial.⁴

The Second Circuit has not directly addressed the issue of immunity at pretrial proceedings. Nevertheless, the Second Circuit has stated in dictum that grand jury witnesses should be afforded the same immunity as the defendants in Briscoe. See San Filippo v. U.S. Trust Co. of N.Y., 737 F.2d 246, 254 (2d Cir.1984), cert. denied, 470 U.S. 1035, 105 S.Ct. 1408, 84 L.Ed.2d 797 (1985).⁵ That statement, however, was dictum in the midst of a discussion of whether an order denying a claim of absolute immunity may be appealed. See id. The facts of San Filippo did not present the question of immunity for non-trial testimony. Moreover, there has been subsequent case law, most notably Malley v. Briggs, 475 U.S. 335, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986), that is relevant to the issue of absolute immunity at pretrial proceedings. In light of the subsequent case law and the context of the statements in San Filippo, this court views the position of the Second Circuit on the issue of absolute immunity for false testimony at pretrial hearings as unresolved. Accordingly, this court is impelled to address the issue in light of the Briscoe opinion and subsequent case law.

A. Briscoe and Its Policies

The Briscoe opinion is grounded on the common law rule of absolute immunity from liability arising out of a witness' testimony at trial. See Briscoe, supra, 460 U.S. at 330-31, 103 S.Ct. at 1112-13. The Supreme Court looked to the common law for guidance because it found that Congress, in adopting the Civil Rights Act, codified today at 42 U.S.C. § 1983, was aware of, and did not intend to, abrogate common law principles of tort law, including immunities.

The common law witness immunity rule was based on the sound notion that "the paths which lead to the ascertainment of truth should be left as free and unobstructed as possible." See Briscoe 460 U.S. at 333, 103 S.Ct. at 1114 (quoting Calkins v. Sumner, 13 Wis. 193, 197 (1860)). The trial setting, including an impartial judge, a jury, the adversarial relationship of the parties, the rules of evidence as applied by the judge, the right to cross-examine witnesses,...