2009 U.S. Dist. LEXIS 114887, *

MARK KOMLOSI, Plaintiff, -against- MELANIE FUDENBERG, Defendant.

88 Civ. 1792 (HBP)

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

2009 U.S. Dist. LEXIS 114887


December 9, 2009, Decided
December 9, 2009, Filed

COUNSEL: [*1] For Mark Komlosi, Plaintiff: Richard Jonathan Katz, LEAD ATTORNEY, Katz & Margolis, Esqs., New York, NY; Robert E. Goldman, LEAD ATTORNEY, Speno Goldman Goldberg Steingart & Penn, P.C., Mineola, NY.

For New York State Office of Mental Retradation, Arthur Webb, Elin M Howe, Ivan Canuteson, Sheldon Kramer, Louis Ganim, Joseph Sabatos, Robert Witkowsky, Kenneth Brodsky, James Brennah, Arthur Fogel, Charles Deyounge, Walter DeLeone, Defendants: Robert W. Abrams, LEAD ATTORNEY, Attorney General, New York, NY.

For Melanie Fudenberg, Defendant: Mark E. Goldell, LEAD ATTORNEY, Galasso, Langione, Garden City, NY.

JUDGES: HENRY PITMAN, United States Magistrate Judge.

OPINION BY: HENRY PITMAN

OPINION


OPINION AND ORDER

PITMAN, United States Magistrate Judge:

I. Introduction

By letter dated July 31, 2009, plaintiff/judgment-creditor Mark Komlosi, who is now proceeding pro se, requests this Court's assistance in his attempts to compel New York State to indemnify defendant/judgment debtor Melanie Fudenberg pursuant to New York Public Officers Law Section 17 for the $ 2,372,988 judgment entered in this matter on March 29, 2001.

Although Komlosi does not identify the precise relief he is requesting, I construe his application as (1) a [*2] request for an order directing New York State to indemnify Fudenberg, or, alternatively, (2) a motion to clarify or amend the judgment in this case to reflect that acts giving rise to the judgment against Fudenberg were not intentional. 1 For the reasons set forth below, Komlosi's application is denied.

FOOTNOTES

1 See Lewis v. Rawson, 564 F.3d 569, 575 n.7 (2d Cir. 2009), citing Bertin v. United States, 478 F.3d 489, 491 (2d Cir. 2007) (pro se submissions must be read "to raise the strongest arguments they suggest").


II. Facts

These proceedings arise out of a civil rights action brought pursuant to 42 U.S.C. § 1983 in which plaintiff, a psychologist formerly employed by the New York State Office of Mental Retardation and Developmental Disabilities ("OMRDD"), claimed that defendant violated his federally protected rights by causing false charges of sexual misconduct to be made against him. With the parties' consent pursuant to 28 U.S.C § 636(c), this matter was tried to a jury and myself from May 24, through June 3, 1999. The jury returned a verdict in plaintiff's favor on two of the three theories submitted to it and awarded $ 6.6 million in compensatory damages and $ 10 million in punitive damages. [*3] After trial, I granted defendant's motion for an order directing the entry of judgment in her favor with respect to one of the two theories on which the jury found for plaintiff and ordered a new trial on the issue of damages unless plaintiff consented to remittitur. See Komlosi v. Fudenberg, 88 Civ. 1792 (HBP), 2000 U.S. Dist. LEXIS 4237, 2000 WL 351414 (S.D.N.Y. Mar. 31, 2000). Plaintiff then stipulated to remit compensatory damages to the extent they exceeded $ 1,872,988 and punitive damages to the extent they exceeded $ 500,000 (Order, dated Mar. 26, 2001 (Docket Item 135)).

Fudenberg first demanded indemnification from OMRDD under Public Officer's Law Section 17 on April 5, 2001 (Letter from Mark E. Goidell to OMRDD Commissioner Thomas Maul, dated April 5, 2001, annexed to Plaintif[f]'s Reply to the State's Memorandum of Law per Court Order dated August 6, 2009, ("Pl's Response")). According to Komlosi, Fudenberg is disabled and unemployed, and her sole source of income is Social Security Disability benefits totaling $ 1,200 per month (Letter from Mark Komlosi to the Honorable Henry B. Pitman, dated July 31, 2009 ("Komlosi Letter") at 2). On October 28, 2003, I granted Komlosi's motion to be appointed post-judgment [*4] receiver for purposes of administering, prosecuting and liquidating Fudenberg's claims against third parties for indemnification of the judgment or for damages that could be used to satisfy the judgment (Order, dated Oct. 28, 2003 (Docket Item 143)). Since then Komlosi has made numerous demands upon the New York State Attorney General and OMRDD on Fudenberg's behalf (Komlosi Letter at 1-2), which were ultimately denied on July 1, 2009 on the grounds that the acts which resulted in the judgment against Fudenberg were intentional and not within the scope of her employment (Letter from June Duffy to Mark Komlosi, dated July 1, 2009, annexed to Komlosi Letter).

Komlosi contends that the Attorney General and OMRDD's denial of Fudenberg's demand for indemnification is incorrect. He argues that the state should be bound by its previous offers to indemnify her as well as its prior statements that she was acting within the scope of her employment (Pl's Response at 7).

Komlosi also argues that there is no basis on which to find that Fudenberg acted intentionally because the malicious prosecution verdict could have been based on recklessness (Pl's Response at 16-17). He cites Fudenberg's bipolar [*5] disorder as evidence that she did not act intentionally because it caused her "misinterpret" reality and actually "suspect" that Komlosi committed sexual misconduct (Komlosi Letter at 2, Pl's Response at 12). According to Komlosi, Fudenberg would not have induced the purported victim, David Rosenberg, to falsely accuse Komlosi of sexual misconduct (Pl's Response at 12) and Rosenberg's testimony to that effect at trial was false (Komlosi Letter at 2). Komlosi also contends that even if Fudenberg's behavior was intentional, the state should indemnify her because it has indemnified employees for judgments based on intentional conduct in the past (Pl's Response at 9).

Finally, Komlosi claims that because of Fudenberg's mental illness, "primary responsibility" for the malicious prosecution lies with OMRDD because they should have known about her condition and either treated it or transferred her to a position without patient contact (Pl's Response at 13).

By order dated August 6, 2009, I directed the parties to submit memoranda of law addressing whether (a) the Court has subject matter jurisdiction to entertain this application; (b) the application is barred by the Eleventh Amendment; (c) [*6] plaintiff has standing to assert a claim for indemnification under Section 17 of New York's Public Officers Law; (d) the application fails on the merits because plaintiff appears to now be claiming that liability arises from a non-intentional tort while the trial proceeded on the theory that Fudenberg had intentionally and maliciously caused plaintiff to be prosecuted for a crime he did not commit, and (e) the application suffers from other defects (Docket Item 144).

III. Analysis

A. Indemnification of Fudenberg

1. Subject Matter Jurisdiction

Komlosi states that "the primary reason" for his application "is the blatant failure" of OMRDD and the Attorney General's Office "to comply with and to respect the Order of this court against the defendant state employee Fudenberg" (Komlosi Letter at 1). To the extent Komlosi seeks assistance in compelling New York State to indemnify Fudenberg, 2 the Eleventh Amendment to the United States Constitution deprives this Court of subject matter jurisdiction to entertain his application.

FOOTNOTES

2 In his response, Komlosi asserts that his application is not an attempt to compel the state to indemnify Fudenberg (Pl's Response at 14). Notwithstanding Komlosi's protestations, [*7] I conclude that his application is properly characterized as an effort to compel indemnification by New York State. Komlosi's submissions attack New York State's indemnification decision and indemnification is the only remedy that would afford Komlosi any practical relief. Thus, regardless of what Komlosi attempts to call it, his pending application is seeking indemnification.


The Eleventh Amendment provides: "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." Although the Eleventh Amendment's express terms do not deprive federal courts of jurisdiction to hear claims against a state by the state's own citizens, it has long been held by the Supreme Court to apply equally to such claims. Blatchford v. Native Vill. of Noatak, 501 U.S. 775, 779, 111 S. Ct. 2578, 115 L. Ed. 2d 686 (1991) ("Despite the narrowness of its terms, . . . we have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition of our constitutional structure which it confirms: that the States entered the federal system with their [*8] sovereignty intact; that the judicial authority in Article III is limited by this sovereignty, . . . and that a State will therefore not be subject to suit in federal court unless it has consented to suit, either expressly or in the 'plan of the convention.'" (Scalia, J.) (citations omitted)); see also Edelman v. Jordan, 415 U.S. 651, 662-63, 94 S. Ct. 1347, 39 L. Ed. 2d 662 (1974); Hans v. Louisiana, 134 U.S. 1, 10 S. Ct. 504, 33 L. Ed. 842 (1890). "The Eleventh Amendment, where applicable, deprives a federal court of jurisdiction. Thus, prior to addressing the merits of [a] case [the Court] must first determine whether Eleventh Amendment immunity bars [its] jurisdiction." In re 995 Fifth Ave. Assocs., 963 F.2d 503, 506 (2d Cir. 1992) (citation omitted).

It is well established that "in the absence of consent a suit in which the State or one of its agencies or departments is named as the defendant is proscribed by the Eleventh Amendment." Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 100, 104 S. Ct. 900, 79 L. Ed. 2d 67 (1984); Islander East Pipeline Co., LLC v. Conn. Dep't of Envtl. Prot., 482 F.3d 79, 88-89 (2d Cir. 2006); see Komlosi v. N.Y. Office of Mental Retardation & Dev. Disabilities, 64 F.3d 810, 815 (2d Cir. 1995) ("[f]or Eleventh Amendment purposes, OMRDD [*9] is to be considered an arm of New York State"). Moreover, whether or not the claim is nominally against a state, suit will be barred if "'the judgment sought would expend itself on the public treasury or domain, or interfere with the public administration,' or if the effect of the judgment would be 'to restrain the Government from acting, or to compel it to act.'" Pennhurst State School & Hosp. v. Halderman, supra, 465 U.S. at 102 n.11, quoting Dugan v. Rank, 372 U.S. 609, 620, 83 S. Ct. 999, 10 L. Ed. 2d 15 (1963); see U.S. Envtl. Prot. Agency v. Gen. Elec. Co., 197 F.3d 592, 597 (2d Cir. 1999). Thus, a suit to compel a state or its agency to indemnify a party is a suit against the state for purposes of the Eleventh Amendment and is barred absent the state's consent. Oneida Co. v. Oneida Indian Nation, 470 U.S. 226, 251, 105 S. Ct. 1245, 84 L. Ed. 2d 169 (1985); M.O.C.H.A. Soc'y, Inc. v. City of Buffalo, 272 F. Supp. 2d 217, 222-23 (W.D.N.Y. 2003); Cmty. Health Care Ass'n of N.Y. v. Mahon, 106 F. Supp. 2d 523, 528 (S.D.N.Y. 2000) (Parker, J.); Mullin v. P & R Educ. Servs., Inc., 942 F. Supp. 110, 115 (E.D.N.Y. 1996). A state's consent to be sued must be "unequivocally expressed." Pennhurst State School & Hosp. v. Halderman, supra, 465 U.S. at 99.

Komlosi [*10] seeks relief pursuant to the indemnification provision of New York Public Officers Law Section 17 (Komlosi Letter at 1), which provides, in pertinent part, that "[t]he state shall indemnify and save harmless its employees in the amount of any judgment obtained against such employees in any state or federal court . . . [this] duty shall not arise where the injury or damage resulted from intentional wrongdoing on the part of the employee." N.Y. Pub. Off. Law § 17(3)(a). Komlosi does not contend that the state has consented to suit under this provision nor have I found any basis for such a conclusion. To the contrary, courts have repeatedly held that Section 17(3) is not a waiver of Eleventh Amendment immunity. See Langley v. Coughlin, 715 F. Supp. 522, 551 (S.D.N.Y. 1989) (Sand, J.) (adopting Report and Recommendation of Dolinger, M.J.); United States v. DCS Dev. Corp., 590 F. Supp. 1117, 1121 (W.D.N.Y. 1984). Because New York State has not consented to suit under Section 17(3), the Eleventh Amendment deprives this court of subject matter jurisdiction to entertain Komlosi's application.

Komlosi also contends that the Commissioner of OMRDD is liable for failing to respond to Fudenberg's [*11] requests for indemnification (Pl's Response at 8) and that this Court has jurisdiction to compel him to satisfy the judgment (Pl's Response at 4). As noted above, even if a claim is nominally against an individual, it cannot be heard in federal court if "'the judgment sought would expend itself on the public treasury or domain, or . . . if the effect of the judgment would be 'to restrain the Government from acting, or to compel it to act.'" Pennhurst State School & Hosp. v. Halderman, supra, 465 U.S. at 102 n.11, quoting Dugan v. Rank, supra, 372 U.S. at 620; see U.S. Envtl. Prot. Agency v. Gen. Elec. Co., supra, 197 F.3d at 597. If the Commissioner of OMRDD has any obligation to indemnify Fudenberg, the obligation results from his office and any indemnification obligation would be funded by the state's fisc. Thus, regardless of the party named by Komlosi, so long as he seeks to compel the state to indemnify Fudenberg, such a claim is barred by the Eleventh Amendment.

Therefore, to the extent Komlosi seeks to compel New York State to indemnify Fudenberg, the Eleventh Amendment deprives this Court of subject matter jurisdiction to entertain his application. 3

FOOTNOTES

3 The Eleventh Amendment [*12] also bars Komlosi's claim that OMRDD is primarily liable for his injuries based on its failure to supervise Fudenberg (Pl's Response at 13). See Komlosi v. N.Y. Office of Mental Retardation & Dev. Disabilities, supra, 64 F.3d at 815 (dismissing claims Komlosi initially asserted against the state on Eleventh Amendment grounds).


B. Clarification or Amendment

In his response, Komlosi argues that he is not seeking to compel the state to act, but rather requesting that this Court issue "a discretionary decision and/or opinion concerning the [j]ury verdict, that would allow a conclusion, that Fudenberg's malicious conduct was based on her reckless disregard . . . and was not intentional (Pl's Response at 17)." Although Komlosi does not specify the procedural vehicle for his request, I deem the request to be made under Rule 60 of the Federal Rules of Civil Procedure.

Rule 60(a) provides that "[t]he court may correct . . . a mistake arising from oversight or omission whenever one is found in a judgment, order, or other part of the record." Rule 60(b) "sets forth the grounds by which a court, in its discretion, can rescind or amend a final judgment or order." Graham Kandiah, LLC v. JPMorgan Chase Bank, N.A., 08 Civ. 6956 (JGK), 2009 U.S. Dist. LEXIS 51499, 2009 WL 1704570 (S.D.N.Y. June 18, 2009) [*13] (Koeltl, J.), citing Nemaizer v. Baker, 793 F.2d 58, 61 (2d Cir. 1986).

To the extent that Komlosi is requesting a clarification of the judgment entered against Fudenberg, such relief is not warranted. Although Rule 60(a) may be used to clarify judgments, see Gustafson v. Kennametal, Inc., 00 Civ. 7396 (RWS), 2001 U.S. Dist. LEXIS 3164, 2001 WL 286725 at *1 (S.D.N.Y. Mar. 22, 2001) (Sweet, J.), it may not be invoked where, as here, there is no "clearly demonstrable mistake, oversight or omission." Hough v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 757 F. Supp. 283, 290 (S.D.N.Y. 1991) (Conner, J.). It was not an oversight to omit a theory of liability from the judgment in this case. Indeed, "[a] judgment should not include recitals of pleadings . . . or a record of prior proceedings." Fed.R.Civ.P. 54(a).

Furthermore, even if the relief Komlosi seeks were permitted by the Federal Rules of Civil Procedure, such a "clarification" would be contrary to the theory on which the case against Fudenberg was tried, namely a theory of intentional misconduct. See Plaintiff's Opening Statement, Trial Transcript at 29 (characterizing Fudenberg's behavior [*14] as "arbitrary and capricious and deliberate attempts to ruin the reputation of Mr. Komlosi"), 30 (allegations against Komlosi were "concocted by Melanie Fudenberg"); Plaintiff's Summation, Trial Transcript at 709 (allegations were "a plan that originated with the defendant to ruin Mr. Komlosi"), 698 ("I ask you to find that [Fudenberg] deliberately manipulated David Rosenberg to make false accusations of sexual abuse against Mr. Komlosi"), 704 ("I submit to you that she knew [the allegations] were false because she concocted them herself"); Komlosi v. Fudenberg, supra, 2000 U.S. Dist. LEXIS 4237, 2000 WL 351414 at *3 (evidence at trial established that Fudenberg used threats to induce Rosenberg to accuse Komlosi of engaging in acts of sexual impropriety). The evidence showed that Fudenberg intentionally induced the false allegations against Komlosi and, thus, there is no basis on which to conclude that the verdict was based on reckless conduct. See Restatement (Second) of Torts § 500 cmt. f ("[w]hile an act to be reckless must be intended by the actor, the actor does not intend to cause the harm which results from it.").

Komlosi fails to set forth any grounds that justify amendment of the judgment in this matter. [*15] He contends that there have been new developments since the trial that show that Fudenberg was not acting intentionally. Specifically, he identifies Fudenberg's post-judgment deposition testimony that she was bipolar (Komlosi Letter at 2). Komlosi claims that this psychiatric condition is evidence that Fudenberg did not act intentionally because it caused her to "misinterpret" reality and actually "suspect" that Komlosi engaged in acts of sexual misconduct (Komlosi Letter at 2, Pl's Response at 12). He also makes the unsubstantiated allegation that Rosenberg testified falsely at trial (Komlosi Letter at 2). Deeming these arguments to constitute an application to amend the judgment on the grounds of newly discovered evidence, the application is clearly untimely. See Fed.R.Civ.P. 60(c) (motion under Rule 60(b)(2) for relief from judgment based on newly discovered evidence must be made "no more than a year after the entry of the judgment[.]").

Komlosi also cites Fudenberg's limited income and the State's refusal to indemnify her as "new developments" that have occurred since trial (Komlosi Letter at 2-3). Although Rule 60(b)(6) provides a vehicle for relief from judgment outside of the [*16] one year time limit based on "any other reason that justifies relief," Rule 60(b)(6) applies "only in 'extraordinary circumstances,' when the judgment may work an extreme and undue hardship, and when the asserted grounds for relief are not recognized in the other clauses of Rule 60(b)." Boehner v. Heise, 03 Civ. 05453 (THK), 2009 U.S. Dist. LEXIS 41471, 2009 WL 1360975 (S.D.N.Y. May 14, 2009) (Katz, M.J.), citing LeBlanc v. Cleveland, 248 F.3d 95, 100 (2d Cir. 2001) and Transaero, Inc. v. La Fuerza Area Boliviana, 24 F.3d 457, 461 (2d Cir. 1994). The fact that the state has refused to indemnify Fudenberg based on the evidence presented by Komlosi's own counsel is not an extraordinary circumstance. Indeed, "[t]he rules for post-judgment relief are not a vehicle for relieving a party from a 'voluntary, deliberate, free, untrammelled choice' that turns out to be unfortunate." See IBJ Schroder Bank & Trust Co. v. Resolution Trust Corp., 90 Civ. 2736 (PNL), 1993 U.S. Dist. LEXIS 10105, 1993 WL 288266 at *3 (S.D.N.Y. July 23, 1993) (Leval, J.), quoting Ackermann v. United States, 340 U.S. 193, 71 S. Ct. 209, 95 L. Ed. 207 (1950); see Jackson v. Refined Sugars, Inc., 24 F. Supp. 2d 322, 324 (S.D.N.Y. 1998) (Edelstein, J.), quoting Wagner Spray Tech. Corp. v. Wolf, 113 F.R.D. 50, 51 (S.D.N.Y. 1986) [*17] (Sweet, J.) ("[p]laintiff's 'interest in undoing the results of a litigation strategy which, in hindsight, [may have been] unwise, fails to outweigh the judiciary's interest in the finality of judgments.'"). Thus, Komlosi has not presented any grounds on which to amend the judgment in this case.

Therefore, to the extent that Komlosi seeks a clarification of the judgment in this case, such application is denied on the grounds that the judgment contained no mistake, oversight or omission and that the requested clarification would be contrary to the evidence offered at trial and the theory on which the case was tried. To the extent that Komlosi seeks amendment of the judgment in this case, such application is denied because the time for making such a motion based on newly discovered evidence is long passed and Komlosi has presented no arguments that would justify such relief.

IV. Conclusion

Accordingly, for all the foregoing reasons, plaintiff/judgment creditor Komlosi's application for (1) an order directing the state to indemnify Fudenberg, or, alternatively, (2) a motion to clarify or amend the judgment in this case to reflect that the acts which resulted in the judgment against Fudenberg [*18] were not intentional is denied. Given the severity of the injury Komlosi suffered, including his unwarranted public vilification, the anxiety inherent in facing a criminal charge, and the destruction of his career as a psychologist, I appreciate the frustration he must feel over the lack of any practical relief. Nevertheless, my personal empathy for plaintiff cannot displace the well settled legal limitations that preclude the relief he seeks here.

Dated: New York, New York

December 9, 2009

SO ORDERED

/s/ Henry Pitman

HENRY PITMAN

United States Magistrate Judge

2000 U.S. Dist. LEXIS 4237, *

MARK KOMLOSI, Plaintiff, -against- MELANIE FUDENBERG, Defendant.

88 Civ. 1792 (HBP)

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

2000 U.S. Dist. LEXIS 4237


March 31, 2000, Decided
March 31, 2000, Filed

DISPOSITION: [*1] Defendant's motion for judgment as matter of law granted in part and denied in part.

COUNSEL: For MARK KOMLOSI, plaintiff: Robert E. Goldman, Speno Goldman Goldberg Steingart & Penn, P.C., Mineola, NY.

For KENNETH BRODSKY, IVAN CANUTESON, CHARLES DEYOUNGE, JAMES BRENNAH, ARTHUR FOGEL, ELIN M HOWE, LOUIS GANIM, SHELDON KRAMER, NEW YORK STATE OFFICE OF MENTAL RETRADATION, JOSEPH SABATOS, ARTHUR WEBB, ROBERT WITKOWSKY, WALTER DELEONE, defendants: Robert W Abrams, Attorney General, New York, NY.

For MELANIE FUDENBERG, defendant: Mark E. Goldell, Galasso, Langione, Garden City, NY.

JUDGES: HENRY PITMAN, United States Magistrate Judge.

OPINION BY: HENRY PITMAN

OPINION


OPINION AND ORDER

PITMAN, United States Magistrate Judge:

I. Introduction

Defendant moves for an order directing the entry of judgment in her favor as a matter of law pursuant to Rule 50(b), Fed.R.Civ.P. For the reasons set forth below, the motion is granted in part and denied in part. In addition, unless, within thirty days of the date of this Opinion and Order, plaintiff stipulates to remit all compensatory damages to the extent that they exceed $ 1,872,988.00 and all punitive damages to the extent that they exceed $ [*2] 500,000, I grant defendant's motion to the extent of ordering a new trial limited to the issue of damages. 1

FOOTNOTES

1 Defendant has not expressly moved for a new trial under Rule 59. However, defendant's claim concerning the excessive size of the verdict does not appear to be the type of claim on which a new trial could be granted under Rule 50(b)(1)(B), Fed.R.Civ.P. An excessive verdict is cured by a new trial or remittitur, not by the entry of judgment for the losing party. See generally 9A Charles A. Wright, Arthur R. Miller & Mary K. Kane, Federal Practice & Procedure § 2538 at 359 (2d ed. 1994) ("The discretion to order a new trial [under Rule 50(b)] exists only if the moving party would be entitled to judgment as a matter of law.") Nevertheless, as discussed at pagea 11-12, below, defendant's notice of motion does expressly raise the issue of excessive damages, a traditional Rule 59 claim. See generally 11 Charles A. Wright, Arthur R. Miller & Mary K. Kane, Federal Practice & Procedure § 2807 (2d ed. 1994). Thus, it appears that the absence of an express reference to Rule 59 may have been an oversight. Accordingly, I deem defendant's notice of motion to be seeking, as alternative relief, a new trial on the grounds of excessiveness of the verdict.


[*3] II. Facts

A. Overview

This is a civil rights action brought pursuant to 42 U.S.C. § 1983 in which plaintiff, a psychologist formerly employed by the New York State Office of Mental Retardation and Developmental Disabilities ("OMRDD"), claims that defendant violated his federally protected rights by causing false charges of sexual misconduct to be made against him. With the parties' consent pursuant to 28 U.S.C. § 636(c), this matter was tried to a jury from May 24, through June 3, 1999. The case was submitted to the jury on three different theories of liability. The jury returned a verdict in plaintiff's favor on two of the three theories submitted to it and awarded $ 6.6 million in compensatory damages and $ 10 million in punitive damages.

B. The Evidence at Trial

The facts underlying this action are discussed in some detail in the Court of Appeals' decision dismissing the claims against all defendants other than Melanie Fudenberg. Komlosi v. New York State Office of Mental Retardation and Developmental Disabilities, 64 F.3d 810 (2d Cir. 1995). Familiarity with that decision is assumed. I shall review [*4] the facts established at trial to the extent necessary to understand the pending motion.

Plaintiff was born and educated in the Republic of Czechoslovakia and immigrated to the United States in 1970. In 1974, plaintiff obtained permanent employment as a psychologist with the OMRDD. Plaintiff was initially assigned to the Brooklyn Developmental Center ("BDC"); in 1982, he was re-assigned to the Williamsburg Residential Training Center ("WRTC").

WRTC was a residential facility for approximately 46 developmentally disabled male and female adults who were cared for by approximately 60 professional and administrative staff. By 1984, plaintiff had achieved the level of "Psychologist II" and earned approximately $ 32,000 per year. His duties included both administrative and clinical responsibilities. In the early 1980's, he was also working on completing a Ph.D. dissertation in psychology. A doctoral degree would have entitled plaintiff to additional promotions and pay increases.

The defendant, Melanie Fudenberg, was also employed at WRTC. After starting as a switchboard operator, defendant was given a position as a Mental Health Therapy Aide Trainee. She subsequently was promoted to the [*5] position of Therapy Aide. Her duties as a Therapy Aide included assisting the residents of the facility with their activities of daily living and implementing direct care plans prepared by plaintiff and other professional staff members.

In 1984, WRTC had a procedure for its employees to follow to report incidents of suspected abuse of its residents. Any WRTC employee witnessing or suspecting abuse of a resident was required to report the suspected abuse to his or her immediate supervisor and also complete a written incident report. The report of a suspected incident of abuse would trigger an internal investigation into the incident and result in an investigative fact finding report with conclusions, recommendations and, if necessary, action against the employee responsible for the abuse. The incident report and the investigative findings became a permanent record of the facility.

Plaintiff could recall three instances of conflict with his co-employee Melanie Fudenberg at WRTC prior to August 1984. The first involved a resident named Sammy Roche who reported to plaintiff that defendant had struck him in the face. In accordance with WRTC procedure, plaintiff brought Roche to his immediate [*6] supervisor and reported the incident. When confronted by Roche, plaintiff and the supervisor, defendant denied having struck Roche.

The plaintiff and defendant also had a disagreement regarding a treatment plan prepared by the plaintiff for Anthony Ford. Ford had a history of being physically abusive towards staff members and, after determining that restraint and confrontation had not succeeded, plaintiff decided to try a therapy plan that included non-confrontational or passive response to Ford's attacks. Although defendant lacked plaintiff's professional training, she disagreed with and disapproved of plaintiff's approach.

A third incident involved WRTC resident, Marion Greengrass. In August 1984, defendant accompanied Greengrass to WRTC Chief of Services, Arthur Fogel, where Greengrass complained that plaintiff had sexually abused her. Plaintiff was placed on administrative leave and an investigation into the allegation ensued. The investigation concluded that the allegations were unsubstantiated, and that defendant had bribed Greengrass with cigarettes to fabricate the allegation against plaintiff.

During the investigation into Greengrass's allegations, defendant advised Fogel [*7] of other alleged incidents of sexual misconduct by plaintiff directed at other WRTC residents. Investigations of these allegations revealed that these charges were also unfounded. The defendant also accompanied WRTC resident Michael Sakowitz to Fogel's office at which time Sakowitz claimed that plaintiff had sexually abused him. However, after defendant left Sakowitz alone with Fogel, Sakowitz recanted his allegation and stated that defendant had instructed him to make the allegation.

In November 1984, Ivan Canuteson, OMRDD Associate Commissioner of Program Operations visited WRTC. During his visit, defendant approached Canuteson and expressed concerns that the charges of abuse against plaintiff had not been properly investigated. Based upon defendant's complaint to Canuteson, another investigation was ordered by OMRDD. Client's Rights Specialist, Lovetts Joyner, was assigned to conduct the investigation. Following his investigation, Joyner also determined that the charges were baseless. He prepared a written report dated January 8, 1985 which stated that defendant's charges against plaintiff were unsubstantiated and had been created by defendant with the intent to injure plaintiff's [*8] reputation. He further recommended that a formal letter of exoneration be placed in plaintiff's personnel file and that OMRDD Employee Relations be advised of defendant's wrongful attempt to damage plaintiff's reputation and livelihood.

In March 1985, the defendant threatened WRTC resident David Rosenberg with "trouble" unless Rosenberg accused plaintiff of engaging in acts of sexual impropriety with Rosenberg. These accusations, like the previous allegations the defendant had concocted, were false. As she had done with other residents, the defendant escorted Rosenberg to Fogel's office and caused him to complain that plaintiff had sexually abused him sometime in February or March 1984. The defendant filed the requisite incident report and, again, the investigative process began. The plaintiff vehemently denied that he had sexually abused Rosenberg or any other resident at the facility.

The plaintiff was initially placed on administrative leave and then suspended without pay pending the completion of the investigation. However, the New York City Police Department subsequently started its own investigation, and the BDC's investigation was suspended.

On May 2, 1985, plaintiff was [*9] arrested and charged with nine counts of sexual abuse including rape and forcible sodomy. The alleged victims were all WRTC residents. As a result of the charges, plaintiff was arrested, handcuffed, chained to other suspected offenders, transported to a police station on where he was fingerprinted, photographed, strip searched, booked and jailed. He was later arraigned; bail was set at $ 75,000, which plaintiff was unable to post. He remained in jail for fifteen days; during his incarceration, other inmates threatened him physically and sexually. The New York Post reported the charges against plaintiff under the headline "SHRINK HELD IN SEX ATTACKS ON PATIENTS." During this time, plaintiff was frightened, humiliated, embarrassed and uncertain what his future would hold. He described his emotional state and experiences to the jury as "a nightmare." Due to concerns for his safety, authorities placed plaintiff in administrative segregation.

From March through May, 1985, Rosenberg stated to Detective Catalfumo of the New York City Police Department and to prosecutors from the Kings County District Attorney's Office that he and plaintiff had engaged in acts of sexual impropriety. Those [*10] statements formed the basis for the arrest and indictment of plaintiff.

In May, 1985, the grand jury indicted the plaintiff on two (2) counts of "deviant sexual intercourse." Plaintiff's bail conditions were subsequently reduced, and plaintiff was released on his own recognizance. He was, however, required to surrender his passport and to attend all court appointments including the trial proceedings. Plaintiff remained suspended without pay from his position pending the disposition of the criminal charges.

Plaintiff's criminal trial commenced in May 1986. During the trial, before plaintiff was to testify, Rosenberg recanted his accusations. As a result of Rosenberg's recantation, the charges against plaintiff were dropped and the case was dismissed.

Plaintiff has been seeing a psychiatrist ever since the charges against him were dismissed and has been diagnosed with post-traumatic stress disorder. In addition to therapy, plaintiff has been prescribed anti-depressant and anti-anxiety medications. Plaintiff's treating psychiatrist characterized plaintiff's condition as chronic and permanent and of sufficient severity that it will continue to compromise plaintiff's personal, professional [*11] and social life. Plaintiff's psychiatrist also testified that plaintiff's fear and anxiety of being falsely accused, criminally charged, jailed and prosecuted for sexually abusing a patient will forever prevent him from practicing as a psychologist.

In September 1986, the plaintiff was offered reinstatement to his position at WRTC. Although plaintiff attempted to resume his duties at WRTC, he was unable to do so because defendant and Rosenberg were still at the facility and plaintiff feared a repeat of the past horrific experiences. The day following his attempt to return to work, plaintiff submitted a written resignation to BDC citing "health reasons" for his departure.

Plaintiff testified that, since his resignation from BDC, he attempted to pursue employment as a psychologist on two occasions. Plaintiff was not hired for the first position because the employer found out that he had been charged with sexual abuse of residents at WRTC. Plaintiff was terminated from the second position because he was unable to restrain a patient who attempted to run from a fire drill; plaintiff feared that he would be accused of improper physical contact with the patient if he attempted to restrain [*12] her physically.

Since 1986, plaintiff has been employed in various menial part-time positions but most steadily as a part-time doorman/concierge. During trial, plaintiff's expert economist, Dean W. Morse, testified that plaintiff's economic damages over his work life expectancy are $ 1,372,988, discounted to present value. Professor Morse further testified that this is an extremely conservative figure. The defendant did not introduce any evidence to controvert this figure.

The case was submitted to the jury on three different theories of Section 1983 liability: (1) defendant's alleged conduct constituted a violation of plaintiff's right to continued employment; (2) defendant's alleged conduct violated plaintiff's right to pursue the career of his choice (the "stigma plus" claim), and (3) defendant's alleged conduct violated plaintiff's right to be free of malicious and baseless prosecutions. The jury found for defendant on the first theory and returned a verdict for plaintiff on the second two theories. The jury awarded a total of $ 6.6 million in compensatory damages and $ 10 million in punitive damages.

III. Analysis

A. Standards Applicable To a Rule 50(b) Motion

[*13] The standards applicable to a motion for judgment as a matter of law are well settled and require only brief review.

"Judgment as a matter of law may not properly be granted under Rule 50 unless the evidence, viewed in the light most favorable to the opposing party, is insufficient to permit a reasonable juror to find in [his] favor." Galdieri-Ambrosini v. National Realty & Development Corp., 136 F.3d 276, 289 (2d Cir. 1998); see also Sir Speedy, Inc. v. L & P Graphics, Inc., 957 F.2d 1033, 1039 (2d Cir. 1992); Vasbinder v. Ambach, 926 F.2d 1333, 1339 (2d Cir. 1991). In ruling on a motion for judgment as a matter of law, the court may not itself weigh credibility or otherwise consider the weight of the evidence; rather, it must defer to the credibility assessments that may have been made by the jury and the reasonable factual inferences that may have been drawn by the jury. See, e.g., Galdieri-Ambrosini v. National Realty & Development Corp., 136 F.3d at 289, Vasbinder v. Ambach, 926 F.2d at 1339-40. Thus, judgment as a matter of law should not be granted unless

(1) there is such a complete [*14] absence of evidence supporting the verdict that the jury's findings could only have been the result of sheer surmise and conjecture, or (2) there is such an overwhelming amount of evidence in favor of the movant that reasonable and fair minded [persons] could not arrive at a verdict against [it].



Cruz v. Local Union No. 3 of the International Brotherhood of Electrical Workers, 34 F.3d 1148, 1154 (2d Cir. 1994) (internal quotation marks omitted).

Williams v. County of Westchester, 171 F.3d 98, 101 (2d Cir. 1999). See also Fernandez v. North Shore Ortho. Surg. & Sports Med. P.C., 79 F. Supp. 2d 197, 201-02 (E.D.N.Y. 2000); Jarvis v. Ford Motor Co., 69 F. Supp. 2d 582, 590 (S.D.N.Y. 1999); Culp v. Sgt. Zaccagnino, 1999 U.S. Dist. LEXIS 13752, 96 Civ. 3280 (THK), 1999 WL 701394 at *1 (S.D.N.Y. Sept. 8, 1999).

In an Affirmation annexed to defendant's Notice of Motion, defendant contends that she is entitled to judgment as a matter of law on six different grounds:

6. The defendant respectfully submits that she is entitled to Judgment as a matter of law because: (i) she was not acting under color of state law; [*15] (ii) at the time of defendant's alleged misconduct, there was no clearly established federally protected right to engage in the employment of one's own choosing or to practice the profession of one's own choosing; (iii) because plaintiff was not fired, no liberty interest was implicated by defendant's conduct; (iv) at the time of defendant's alleged misconduct, there was no clearly established federally protected right to be free from malicious prosecution; (v) defendant did not cause plaintiff to be maliciously prosecuted because the chain of causation was broken by the independent police investigation and the District Attorney's prosecution and presentation of the case to the Grand Jury, free of any evidence of pressure, influence or participation by the defendant; and (vi) both the compensatory and punitive damages [awards] are excessive.

(Affirmation of Mark E. Goidell, Esq., dated June 23, 1999 at 6). Notwithstanding the requirements of Local Civil Rule 7.1 2, the memorandum of law submitted in support of defendant's motion ignores some of the foregoing claims, and raises other arguments not identified in the affidavit. In her memorandum of law, defendant does not address [*16] her contentions that (1) the plaintiff had no clearly established federal right to pursue the career of his choosing, (2) the plaintiff had no clearly established federal right to be free of malicious prosecutions, and (3) the verdict was excessive. In her memorandum of law, however, defendant does raise the additional claim that she is not responsible for any constitutional injury because she did not have discretionary authority to cause constitutional injury. Defendant offers no explanation for the inconsistency between the affirmation annexed to her notice of motion and her memorandum of law.

FOOTNOTES

2 Rule 7.1 of the Civil Rules for the United States District Courts for the Southern and Eastern Districts of New York provides:

Except as otherwise permitted by the court, all motions and all oppositions thereto shall be supported by a memorandum of law, setting forth the points and authorities relied upon in support of or in opposition to the motion, and divided, under appropriate headings, into as many parts as there are points to be determined. Willful failure to comply with this rule may be deemed sufficient cause for the denial of a motion or for the granting of a motion by default.




[*17] The inconsistency between defendant's affirmation and memorandum is troubling and ill serves the Court; the mere identification of an issue, without supporting briefing, is singularly unhelpful when the question before the Court is whether defendant is entitled to judgment as a matter of law. Nevertheless, because the issues raised in defendant's affirmation may be dispositive, I shall consider them notwithstanding defendant's failure to brief them in her memorandum of law.

B. Plaintiff's "Stigma Plus" Claim

1. Merits of the Claim 3

FOOTNOTES

3 Pursuant to County of Sacramento v. Lewis, 523 U.S. 833, 841 n.5, 140 L. Ed. 2d 1043, 118 S. Ct. 1708 (1998) and Medeiros v. O'Connell, 150 F.3d 164, 169 (2d Cir. 1998), I consider the merits of this claim before addressing the immunity issue.


Although it is now well settled that damage to an individual's reputation by a state agent coupled with "the termination of some other legal right or status will suffice to constitute a deprivation [*18] of a liberty interest", Greenwood v. State of New York, 163 F.3d 119, 124 (2d Cir. 1998) (inner quotations omitted), it is still not clear what satisfies the additional "plus" factor. See generally Martin A. Schwartz, 'Stigma Plus' Claims, N.Y.L.J., Feb. 15, 2000, at 4 ("Supreme Court decisional law, however, has not resolved whether the plus must be a tangible deprivation, such as loss of a job or inability to pursue a profession, or whether it can be the denial of any right or status recognized by state law.").

Drawing all the inferences in favor of plaintiff, the evidence in this case showed that plaintiff was suspended without pay and subsequently subjected to a criminal prosecution as a result of defendant's causing Rosenberg to make false complaints against plaintiff. After the charges were dismissed, plaintiff was offered reinstatement, but ultimately resigned because the psychological injury he had suffered made it impossible for him to function as a psychologist. The only evidence concerning plaintiff's subsequent efforts to obtain and keep employment as a psychologist showed that one subsequent prospective employer rejected plaintiff when it learned [*19] of the abuse charges and that a second employer terminated plaintiff when he refused to restrain a patient during a fire drill for fear of being charged with inappropriate physical contact.

As a matter of law, however, suspension without pay is not a sufficient "plus" factor to give rise to a protected liberty interest. In Dobosz v. Walsh, 892 F.2d 1135 (2d Cir. 1989), the plaintiff, a Bridgeport, Connecticut police officer, had cooperated in the federal investigation of another police officer, Fitzgerald. Dobosz testified before the grand jury and at trial against Fitzgerald; Dobosz's testimony suggested that Fitzgerald had killed an individual without justification and subsequently "planted" a knife next to the decedent's body in order to fabricate a claim of self defense.

After Fitzgerald was acquitted, Dobosz's employer announced that Dobosz would be suspended and prosecuted for perjury. Although departmental charges were subsequently brought against Dobosz, no criminal proceedings were ever commenced against him. After he was acquitted of the departmental charges, he was reinstated with full back pay and seniority credit.

Dobosz subsequently brought a Section [*20] 1983 claim against the superintendent of the Bridgeport Police Department, asserting, among other things, a "stigma plus" claim. The Court of Appeals affirmed the dismissal of this aspect of Dobosz's claim, stating:

[Board of Regents v. Roth, 408 U.S. 564, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972)] held that two kinds of liberty concerns trigger due process rights in the public employment context: (i) the employee's interest in good name and reputation; and (ii) the employee's interest in being able to seek other employment opportunities. See id. at 573-74, 92 S. Ct. at 2707. Dobosz has alleged that [the Superintendent's] acts and statements were injurious to his reputation. However, under Paul v. Davis, 424 U.S. 693, 96 S. Ct. 1155, 47 L. Ed. 2d 405 (1976), government acts defaming an individual implicate a liberty interest only where the individual suffers a related alteration of his legal status or deprivation of a right recognized under state law. See id. at 710-12, 96 S. Ct. at 1164-65. Dobosz suffered no such alteration. He was reinstated with back pay and seniority credit, and his due process claim thus fails [*21] the Paul "reputation plus" test. See Neu v. Corcoran, 869 F.2d 662, 667 (2d Cir.), cert. denied, 493 U.S. 816, 110 S. Ct. 66, 107 L. Ed. 2d 33 (1989); see also Sparks v. City of Atlanta, 496 F. Supp. 770 774 (N.D. Ga. 1980) ("stigma" suffered by police officer whose suspension was rescinded does not give rise to due process liberty interest).

892 F.2d at 1140.

Plaintiff makes no attempt to distinguish Dobosz or to explain why it is not controlling here. Indeed, plaintiff's post-trial papers do not address Dobosz at all.

Since Dobosz clearly holds that a suspension without pay is insufficient to satisfy the "plus" element of a "stigma plus" claim, defendant is entitled to judgment as a matter of law on that aspect of plaintiff's claim asserting liability based on defendant's interference with his right to pursue a career of his choosing. 4 In light of this disposition, it is unnecessary to reach the other arguments asserted by defendant concerning the merits of this aspect of plaintiff's claim.

FOOTNOTES

4 I assume the jury concluded that defendant's conduct made it substantially more difficult for plaintiff to find employment as a psychologist. That fact, however, does not salvage plaintiff's "sigma plus" claim. Siegert v. Gilley, 500 U.S. 226, 234, 114 L. Ed. 2d 277, 111 S. Ct. 1789 (1991) ("The statements contained in the letter would undoubtedly damage the reputation of one in [the plaintiff's] position, and impair his future employment prospects. . . . But so long as such damage flows from injury caused by the defendant to a plaintiff's reputation, it may be recoverable under state tort law but it is not recoverable in a Bivens action."); Paul v. Davis, 424 U.S. 693, 697, 47 L. Ed. 2d 405, 96 S. Ct. 1155 (1976) (concluding that the plaintiff suffered no violation of a liberty interest, even though his complaint alleged impairment of future employment opportunities).


[*22] 2. Qualified Immunity

The doctrine of qualified immunity was recently summarized by the Court of Appeals in McCullough v. Wyandanch Union Free School Dist., 187 F.3d 272, 278 (2d Cir. 1999):



A government agent enjoys qualified immunity when he or she performs discretionary functions if either (1) the conduct did not violate clearly established rights of which a reasonable person would have known, or (2) it was objectively reasonable to believe that the conduct did not violate clearly established rights. A right is clearly established if the contours of the right are sufficiently clear that a reasonable official would understand that what he or she is doing violates that right. The question is not what a lawyer would learn or intuit from researching case law, but what a reasonable person in the defendant's position should know about the constitutionality of the conduct. The unlawfulness must be apparent.

See also Anderson v. Creighton, 483 U.S. 635, 638-39, 97 L. Ed. 2d 523, 107 S. Ct. 3034 (1987); Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982); Martinez v. Simonetti, 202 F.3d 625, 633-34 (2d Cir. 2000); [*23] Connell v. Signoracci, 153 F.3d 74, 80 (2d Cir. 1998); Brown v. City of Oneonta, 106 F.3d 1125, 1130-31 (2d Cir. 1997).

The events giving rise to plaintiff's "stigma plus" claim occurred in 1985. However, except in cases involving a wrongful termination of employment, the elements of a stigma plus claim were not clearly established at that time.

In Greenwood v. State of New York, supra, 163 F.3d 119 (2d Cir. 1998), the issue was whether the elements of a non-termination, "stigma plus" claim had been clearly established as of 1982, and the Court of Appeals concluded that the elements of such a claim were not clearly established as of 1982. 163 F.3d at 124. In reaching its conclusion concerning the state of the law in 1982, the Court relied on its 1989 statement that "'"stigma plus" is required to establish a constitutional deprivation, but it is not entirely clear what the plus is.'" 163 F.3d at 124, citing Neu v. Corcoran, 869 F.2d 662, 667 (2d Cir. 1989). Since the contours of the right were not clearly established in 1982, it necessarily follows that they were not clearly established in [*24] 1985.

Thus, defendant is also entitled to judgment as a matter of law on plaintiff's stigma plus claim pursuant to the doctrine of qualified immunity.

C. Malicious Prosecution

1. Merits of the Claim

Defendant attacks the merits of the malicious prosecution aspect of plaintiff's claim on several grounds. Again, I shall examine each issue relating to the merits of the claim before addressing the qualified immunity defense.

a. Color of State Law

Defendant first argues that the verdict cannot stand because there is insufficient proof that she was acting under color of state law. In substance, defendant claims that the evidence established, at most, a personal pursuit by defendant. Since the conduct was personal, says defendant, it is not actionable under Section 1983.

"The Supreme Court has broadly interpreted the color of law requirement, concluding that 'misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, is action taken "under color of" state law.'" United States v. Walsh, 194 F.3d 37, 50 (2d Cir. 1999), quoting United States v. Classic, 313 U.S. 299, 326, 85 L. Ed. 1368, 61 S. Ct. 1031 (1941). 5



[*25]

To constitute state action, "the deprivation must be caused by the exercise of some right or privilege created by the State . . . or by a person for whom the State is responsible," and "the party charged with the deprivation must be a person who may fairly be said to be a state actor." Ibid. "State employment is generally sufficient to render the defendant a state actor." [Lugar v. Edmondson Oil Co., 457 U.S. 922, 936 n.18, 73 L. Ed. 2d 482, 102 S. Ct. 2744 (1982)]. It is firmly established that a defendant in a § 1983 suit acts under color of state law when he abuses the position given to him by the State. See Monroe v. Pape, [365 U.S. 167, 172, 5 L. Ed. 2d 492, 81 S. Ct. 473 (1961), overruled in part on other grounds, Monell v. New York City Dep't of Social Servs., 436 U.S. 658, 695-701, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978)]. Thus, generally, a public employee acts under color of state law while acting in his official capacity or while exercising his responsibilities pursuant to state law. See e.g., Parratt v. Taylor, [451 U.S. 527, 535-536, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1981), overruled in [*26] part on other grounds, Daniels v. Williams, 474 U.S. 327, 330-331, 88 L. Ed. 2d 662, 106 S. Ct. 662 (1986)]; Adickes v. S.H. Kress & Co., 398 U.S. 144, 152, 90 S. Ct. 1598, 1605-1606, 26 L. Ed. 2d 142 (1970). See also Flagg Bros., Inc. v. Brooks, [436 U.S. 149, 157 n.5, 56 L. Ed. 2d 185, 98 S. Ct. 1729 (1978)].

West v. Atkins, 487 U.S. 42, 49-50, 108 S. Ct. 2250, 101 L. Ed. 2d 40 (1988).

FOOTNOTES

5 Although Classic defined "color state of law" in the context of a prosecution under 18 U.S.C. § 241, the definition is equally applicable to a civil action brought under 42 U.S.C. § 1983. West v. Atkins, 487 U.S. 42, 49, 101 L. Ed. 2d 40, 108 S. Ct. 2250 (1988).


There was clearly enough evidence in this case to sustain a finding that defendant acted under color of state law when she caused false charges to be made against plaintiff. Viewing the evidence in the light most favorable to plaintiff and drawing all reasonable [*27] inferences in his favor, the evidence established that defendant had access to Rosenberg by virtue of her employment by the state as a Therapy Aide. There was no evidence that defendant ever had any relationship with Rosenberg outside the WRTC. It was only by virtue of her access to Rosenberg that she was able to coerce him to make a false charge of sexual abuse against plaintiff. Thus, contrary to defendant's argument, this is not a case of purely personal animus that erupted into confrontation while the participants merely happened to be on state property. Rather, this is a case in which plaintiff misused the incidents of her state employment, namely her access to and relationship with Rosenberg, to cause false allegations of misconduct to be made against plaintiff by Rosenberg. In other words, this was a case in which the abuse was "made possible only because the wrongdoer [was] clothed with the authority of state law." United States v. Classic, supra, 313 U.S. at 326. The notion that Rosenberg would have submitted to defendant's directions, absent her position as Therapy Aide, is an assumption that is not supported by either the record or common sense.

In support [*28] of her argument, defendant cites a number of cases in which direct physical assaults by state employees on another were found not to constitute state action. Martinez v. Colon, 54 F.3d 980 (1st Cir. 1995); Hughes v. Halifax Co. School Bd., 855 F.2d 183, 187 (4th Cir. 1988); Segreto v. Kirschner, 977 F. Supp. 553 (D. Conn. 1997); Williams v. Josephs, 1993 U.S. Dist. LEXIS 14079, 91 Civ. 8178 (MBM), 1993 WL 403969 (S.D.N.Y. Oct. 7, 1993). 6 These cases are all distinguishable. In each, although the assault took place on state property, the state employment provided "at most the occasion but not the means for committing the challenged acts." Williams v. Josephs, supra, 1993 U.S. Dist. LEXIS 14079, *8, 1993 WL 403969 at *3. In this case, on the other hand, there was sufficient evidence for the jury to conclude that defendant was able to cause Rosenberg to make the false allegation by virtue of her employment-based relationship with him and that it was defendant's state employment that provided the means for the conduct in issue.

FOOTNOTES

6 In this regard, defendant also cites an unpublished Summary Order of the Court of Appeals for the Second Circuit. Since defendant's citation of this Summary Order violates Rule 0.23 of Second Circuit's Rules, I have not considered it.


[*29] Thus, defendant is not entitled to judgment as a matter of law on the theory that there was insufficient evidence that defendant acted under color of state law.

b. Causation

Because defendant's remaining arguments address the sufficiency of the proof of the malicious prosecution aspect of plaintiff's claim, it is helpful to first identify those elements.

The elements of a Section 1983 claim based on malicious prosecution are borrowed from state tort law. Lee v. Edwards, 101 F.3d 805, 810 n.4 (2d Cir. 1996); Cook v. Sheldon, 41 F.3d 73, 79 (2d Cir. 1994).

In order to state a claim for the tort of malicious prosecution under New York State law, a plaintiff must prove "(1) the initiation or continuation of a criminal proceeding against plaintiff; (2) termination of the proceeding in plaintiff's favor; (3) lack of probable cause for commencing the proceeding; and (4) actual malice as a motivation for defendant's actions." Russell v. Smith, 68 F.3d 33, 36 (2d Cir. 1995); see Broughton v. State, 37 N.Y.2d 451, 458, 373 N.Y.S.2d 87, 95, 335 N.E.2d 310, cert. denied, 423 U.S. 929, 96 S. Ct. 277, 46 L. Ed. 2d 257 (1975). [*30]

Murphy v. Lynn, 118 F.3d 938, 947 (2d Cir. 1997). Defendant's challenges here relate to the first and second elements.

Defendant first argues that she is entitled to judgment as a matter of law because the evidence was insufficient to support a finding that she caused the commencement of the criminal prosecution against plaintiff. Specifically, defendant argues that she cannot be found to have initiated the prosecution because plaintiff's indictment was the product of the intervening and independent acts of the grand jury and the Kings County District Attorney (Defendant's Memorandum of Law in Support of her Rule 50(b) Motion for Judgment as a Matter of Law ("Def. Memo.") at 19-21).

The direct evidence at trial concerning the commencement and termination of the criminal proceeding against plaintiff consisted primarily of the following stipulated facts:

David Rosenberg, a resident at the Williamsburg Residential Training Center accused Mr. Komlosi of having sexually abused him.

An investigation of Mr. Rosenberg's allegation was conducted by the Williamsburg Residential Training Center.

[In March 1985, through May, 1985, David Rosenberg stated to Detective [*31] Catalfumo of the New York City Police Department and prosecutors of the Kings County District Attorney's Office that he and Mark Komlosi had engaged in acts of sexual impropriety which served as their bases for the arrest and indictment of plaintiff Mark Komlosi, up to the date of dismissal, May 29, 1986.]

Mr. Komlosi was arrested by the New York City Police Department.

During the criminal trial against Mr. Komlosi, before Mr. Komlosi was to testify, Mr. Rosenberg recanted, or took back, his accusations against Mr. Komlosi.

As a result of Mr. Rosenberg's recanting his accusation, the criminal charges against Mr. Komlosi were dropped and the criminal case was dismissed.

(Trial Tr. 727-28).

This evidence, in conjunction with Mr. Rosenberg's testimony that defendant forced him to make false allegations of sexual misconduct against plaintiff, supports the conclusion that it was Rosenberg's false statements, made at defendant's instigation, that brought about the commencement of the criminal proceedings against plaintiff. There was no evidence offered at trial that the District Attorney's Office had evidence concerning the alleged incident between Rosenberg and plaintiff from [*32] any other source.

Where, as here, a defendant willfully and maliciously causes false information to be presented to prosecuting officials, the prosecutor's decision, based on the false information, will not shield the source from liability for malicious prosecution.

White v. Frank, 855 F.2d 956 (2d Cir. 1988), involved analogous facts. In that case, the defendants, two police officers, testified falsely before a grand jury, resulting in the plaintiff's indictment. After the perjury was disclosed, plaintiff sued under Section 1983, alleging, inter alia, malicious prosection. In dismissing the defendants' appeal from the District Court's denial of a motion to dismiss, the Court of Appeals squarely held that a witness who intentionally provides false testimony to a grand jury or prosecutor may be liable for malicious prosecution.

Appellants also contend that the role of both the public prosecutor and the grand jury in advancing the prosecution of [plaintiff] necessarily insulated them from liability for malicious prosecution. We disagree. The intervening acts of a grand jury have never been enough to defeat an otherwise viable malicious prosecution claim, [*33] whether or not the grand jury votes a true bill or even returns an indictment ultimately determined to be deficient as a matter of law. . . . And though an indictment by a grand jury is generally considered prima facie evidence of probable cause in a subsequent civil action for malicious prosecution, this presumption may be rebutted by proof that the defendant misrepresented, withheld, or falsified evidence. See Hopkinson v. Lehigh Valley R.R. Co., 249 N.Y. 296, 300, 164 N.E. 104, 106 (1928); Dennis v. Ryan, [65 N.Y. 385, 388-89 (1875)]; W. Prosser, [Law of Torts, (4th ed. 1971)] § 119 at 846; Restatement (Second) of Torts § 664(2) & comment b (1977).

The public prosecutor's role in the prosecution likewise does not affect our immunity analysis, though again it may affect appellant's ultimate liability on the merits. No doubt, the availability of the malicious prosecution action has been curtailed with the growth of the office of the public prosecutor. . . . The exercise of independent judgment by the public prosecutor and his active role in initiating criminal prosecutions may decrease the likelihood that a complaining witness will [*34] be considered to have "caused" or "procured" the prosecution, thus defeating grounds for liability under this initial prong of the common law standard. . . .

As with the grand jury, however, the public prosecutor's role in a criminal prosecution will not necessarily shield a complaining witness from subsequent civil liability where the witness's testimony is knowingly and maliciously false. See Hopkinson v. Lehigh Valley R.R. Co., supra, 249 N.Y. at 300-01, 164 N.E. at 106; Dennis v. Ryan, supra, 65 N.Y. at 388-89; see also Russo v. New York, [672 F.2d 1014, 1018 (2d Cir. 1982), mod. on other grounds, 721 F.2d 410 (2d Cir. 1983)] (presumption of probable cause arising from arrest warrant disappears where warrant is issued on the basis of sworn accusations of defendant in malicious prosecution action); W. Prosser, supra, § 119, at 837; Restatement (Second) of Torts, supra, § 653 comment g. "It is quite clear," wrote two English commentators in the early part of this century, "that a defendant who has misled a tribunal by dishonest evidence and thereby caused it to act to the prejudice of the plaintiff is [*35] liable, even though he may not have purported to be the prosecutor," J. Clerk & W. Lindsell, [The Law of Torts] at 639 [(7th ed. 1921)] (citations omitted).

855 F.2d at 961-62. 7 See also Babi-Ali v. City of New York, 979 F. Supp. 268, 276 (S.D.N.Y. 1997); Morillo v. City of New York, 1997 U.S. Dist. LEXIS 1665, 95 Civ. 2176 (JSM), 1997 WL 72155 at *1-*2 (S.D.N.Y. Feb. 20, 1997); Crespo v. New York City Police Comm'r, 930 F. Supp. 109, 117-18 (S.D.N.Y. 1996).

FOOTNOTES

7 I realize that Albright v. Oliver, 510 U.S. 266, 127 L. Ed. 2d 114, 114 S. Ct. 807 (1994) significantly altered the law applicable to Section 1983 actions based on a malicious prosection theory. However, nothing in Albright addressed the causation issue addressed in White, and, therefore, I do not read Albright as affecting the continuing vitality of White.


Since there was sufficient evidence to sustain defendant's liability on the issue of causation, she is not entitled [*36] to judgment as a matter of law on this ground. 8

FOOTNOTES

8 I do not understand defendant to be arguing that she could not have caused plaintiff's prosecution because the evidence showed that it was Rosenberg, and not defendant, who actually provided the false information. If this is defendant's argument it is without merit. As noted above, the evidence was sufficient to support a finding that defendant caused Rosenberg to make the false report. This is sufficient personal involvement to sustain liability under Section 1983. Jeffries v. Harleston, 21 F.3d 1238, 1247 (2d Cir. 1994) ("a plaintiff may establish causation under Section 1983 if he shows that the defendant[] participated in, or [was the] 'moving force[]' behind, the deprivation."), vacated and remanded on other grounds, 513 U.S. 996 (1994).


C. Favorable Termination

Finally, defendant claims that she is entitled to judgment as a matter of law because there was insufficient evidence to sustain a finding that the [*37] criminal proceeding terminated in plaintiff's favor. Defendant claims that the termination of the criminal proceeding against plaintiff was "most analogous," (Def. Memo. at 22) to a dismissal in the interests of justice, and, therefore, not a favorable termination on the merits. See generally Hygh v. Jacobs, 961 F.2d 359, 368 (2d Cir. 1992) ("as a matter of law" a dismissal in the interests of justice "cannot provide the favorable termination required as the basis for a claim of malicious prosecution").

The leading case in this Circuit addressing this issue is Murphy v. Lynn, supra, 118 F.3d 938 (2d Cir. 1997), in which the Court of Appeals stated:

Where the prosecution did not result in an acquittal, it is deemed to have ended in favor of the accused, for these purposes, only when its final disposition is such as to indicate the innocence of the accused. See, e.g., Restatement § 660 comment a; Halberstadt v. New York Life Insurance Co., 194 N.Y. 1, 10-11, 86 N.E. 801, 803-04 (1909) ("Halberstadt"); Hollender v. Trump Village Cooperative, Inc., 58 N.Y.2d 420, 426, 461 N.Y.S.2d 765, 768, 448 N.E.2d 432 (1983) [*38] ("Hollender") (quoting Restatement § 660 comment a); MacFawn v. Kresler, 88 N.Y.2d 859, 860, 644 N.Y.S.2d 486, 486, 666 N.E.2d 1359, (1996)(mem.)(whether "the final disposition of the proceeding involves the merits and indicates the accused's innocence" (citing Hollender)); O'Brien v. Alexander, 101 F.3d 1479, 1486-87 (2d Cir. 1996) (discussing cases); Russell v. Smith, 68 F.3d [33, 36 (2d Cir. 1995)] ("In the absence of a decision on the merits, the plaintiff must show that the final disposition is indicative of innocence.") The answer to whether the termination is indicative of innocence depends on the nature and circumstances of the termination; the dispositive inquiry is whether the failure to proceed "implies a lack of reasonable grounds for the prosecution," Loeb v. Teitelbaum, 77 A.D.2d [92, 101], 432 N.Y.S.2d [487, 494 (2nd Dep't 1980)].

118 F.3d at 948.

In this case, as noted above, the direct evidence concerning the termination of the criminal proceeding against plaintiff consists of several stipulated facts. 9 These stipulated facts show that, during the criminal trial against plaintiff, [*39] Rosenberg recanted his accusations against plaintiff and that, as a result of the recantation, the criminal charges against plaintiff were dropped and the indictment dismissed.

FOOTNOTES

9 Although the parties had a transcript of the proceedings dismissing the criminal charges against plaintiff, (see Trial Tr. 17-24), neither side ever offered the transcript in evidence.


The effect of a dismissal resulting from a witness's recantation was discussed in Russell v. Smith, 68 F.3d 33 (2d Cir. 1995). In that case, a witness, Viust, gave testimony in the grand jury that implicated Russell, Viust's brother and others. Viust's grand jury testimony was corroborated by another witness and by certain physical evidence. After Russell was indicted, but prior to the criminal trial, Viust recanted his testimony and the state criminal court dismissed the charges against Russell "'with leave to represent.'" 68 F.3d at 35. Russell subsequently sued for malicious prosecution, and Viust refused to testify [*40] or to provide an affidavit in support of Russell's malicious prosecution claim. Id. On the basis of the foregoing evidence, the Court of Appeals affirmed the granting of summary judgment in defendant's favor, concluding that Russell had not established a genuine issue that the criminal proceeding had terminated in his favor. 68 F.3d at 38.

Russell does not purport to establish a per se rule that dismissal based on recantation cannot be favorable to the accused. Moreover, several factual differences demonstrate that Russell is not controlling here. First, the dismissal in Russell was "'with leave to represent.'" Thus, there was no legal bar to Russell's subsequent re-indictment and conviction. In contrast, the charges in this case were dismissed after the criminal trial had commenced. Thus, any subsequent attempt to reprosecute plaintiff would be barred by the Double Jeopardy Clause. Second, Viust's grand jury testimony inculpating Russell was corroborated by other testimony and physical evidence. In this case, it appears that there was no corroboration whatsoever of Rosenberg's testimony inculpating plaintiff. Third, the Court of Appeals noted in [*41] Russell that Viust's recantation was suspect because the grand jury testimony he recanted had inculpated his own brother. 68 F.3d at 36. Thus, the recantation in Russell assisted a family member. In this case, Rosenberg's recantation benefitted neither Rosenberg nor a family member. Fourth, Viust was unwilling to testify in support of Russell's malicious prosecution case. Rosenberg, on the other hand, did testify in support of plaintiff's claim and re-affirmed that his prior accusations against plaintiff were false and were instigated by defendant. Finally, the fact that plaintiff here was offered reinstatement and provided with back pay for the full period of his suspension evidences a belief by the state that the charges were groundless. If the state believed that plaintiff was, in fact, a sexual predator, it is inconceivable that it would have offered him reinstatement as a psychologist caring for developmentally disabled patients. In view of these distinctions, Russell is not controlling here.

The evidence discussed in the foregoing paragraph provided a sufficient basis for the jury to conclude that the charges were dismissed for reasons "indicative of [*42] innocence." Thus, defendant is not entitled to judgment as a matter of law on the theory that plaintiff failed to establish a favorable termination.

2. Qualified Immunity

Without citing any authority, defendant claims she is entitled to qualified immunity from plaintiff's malicious prosecution claim because there was no clearly established federal right to be free of malicious prosecutions at the time of her conduct. This argument, however, is clearly incorrect.

In Lennon v. Miller, 66 F.3d 416 (2d Cir. 1995), plaintiff asserted a Section 1983-malicious prosecution claim based on conduct alleged to have occurred in 1991. Although the Court of Appeals ultimately held that the defendants in that case were entitled to qualified immunity because their actions met the standard of objective reasonableness, it noted:

There is no question that the rights at issue in this case -- to be free from false arrest, malicious prosecution, and excessive force --were clearly established at the time of the incident. See e.g., Carroll v. United States, 267 U.S. 132, 45 S. Ct. 280, 69 L. Ed. 543 (1925) (recognizing constitutional right not to be arrested [*43] or prosecuted without probable cause) . . . .

66 F.3d at 423. See also Golino v. City of New Haven, 950 F.2d 864, 870 (2d Cir. 1991) (right to be free of malicious prosecution clearly established as of 1984-87); Walker v. New York City Police Dep't, 94 CV 3608, 1996 WL 391564 at *5 (E.D.N.Y. June 24, 1996) (citing Carroll v. United States, 267 U.S. 132, 69 L. Ed. 543, 45 S. Ct. 280 (1925) for the proposition that the right to be free of malicious prosecution is clearly established); Kampfer v. Pitcher, 1996 U.S. Dist. LEXIS 858, *15, 95- CV-214, 1996 WL 31161 at *5 (N.D.N.Y. Jan. 19, 1996) ("A person's right to be free from . . . malicious prosecution has long been clearly established," citing Carroll v. United States, 267 U.S. 132, 69 L. Ed. 543, 45 S. Ct. 280 (1925)), aff'd mem., 112 F.3d 504 (2d Cir. 1997); Janetka v. Dabe, 1993 U.S. Dist. LEXIS 2797, 89-C V-3721, 1993 WL 72358 at *3 (E.D.N.Y. Feb. 24, 1993) (right to be free of malicious prosecution clearly established at least as of 1986).

The relevant conduct in this case occurred in 1985. In view of the foregoing authorities and the repeated reliance [*44] by Courts in this Circuit on Carroll v. United States -- a case decided in 1925 -- for the proposition that the right to be free of malicious prosecution has long been clearly established, defendant's qualified immunity argument is without merit.

D. Damages

1. Excessiveness of the Compensatory Damages

Although defendant claims that the jury's awards of compensatory and punitive damages are excessive, she has submitted no authorities addressing these issues. Nevertheless, the sheer size of the awards warrants their examination.

As a threshold matter, defendant claims plaintiff is not entitled to recover any damages for the period after the criminal proceedings against plaintiff terminated. Defendant argues that a damages remedy must be tailored to the constitutional injury suffered by plaintiff and that the constitutional injury terminated when the criminal charges against plaintiff were dismissed.

Defendant's argument does not withstand analysis. Although the constitutional violation ended when the charges against plaintiff were dropped, the sequelae of this violation did not. There was evidence at trial that plaintiff suffered substantial psychological injury as a [*45] result of his criminal prosecution. This psychological injury was established not merely by plaintiff's subjective testimony, see generally Annis v. County of Westchester, 136 F.3d 239, 248-49 (2d Cir. 1998), but also by the testimony of his treating psychiatrist, Dr. Gorzynski. In addition, there is circumstantial corroboration of plaintiff's psychological injury in plaintiff's employment history after the termination of the criminal proceedings. Prior to the criminal prosecution plaintiff was able to function as a psychologist; after the termination of the prosecution, concerns about recurring allegations of sexual misconduct limited plaintiff's employment to relatively menial positions. 10 Viewing the evidence in the light most favorable to plaintiff, there was sufficient evidence for the jury to conclude that the baseless and malicious prosecution had consequences that lasted beyond the termination of the violation, and Section 1983 clearly permits recovery for these consequences. Memphis Community School Dist. v. Stachura, 477 U.S. 299, 307, 91 L. Ed. 2d 249, 106 S. Ct. 2537 (1986); Carey v. Piphus, 435 U.S. 247, 264, 55 L. Ed. 2d 252, 98 S. Ct. 1042 (1978) [*46] ("mental and emotional distress . . . is compensable under § 1983"); Burka v. New York City Transit Auth., 747 F. Supp. 214, 224 (S.D.N.Y. 1990) (permitting recovery of wages plaintiffs would have earned prospectively but for the constitutional violation).

FOOTNOTES

10 Although it might be argued that plaintiff intentionally limited his employment to low-paying positions to enhance his recovery at trial, the jury obviously did not reach this conclusion, and there is no basis to disturb its findings in this regard.


The jury here awarded $ 6.6 million in compensatory damages. There was uncontradicted evidence that plaintiff's economic loss resulting from his inability to pursue his career as a psychologist totaled $ 1,372,988, reduced to present value (Trial Tr. 410). Thus, it appears that the jury awarded $ 5,227,012 as compensatory damages for plaintiff's mental anguish, including the loss of enjoyment resulting from his inability to pursue the career of his choice.

Where, as here, the issue is whether [*47] damages awarded on a federal claim are excessive, the jury's verdict is not to be disturbed unless it shocks the conscience.

It is well established in this Circuit that in section 1983 cases "the standard for appellate review of damages awards, whether compensatory or punitive, 'is whether the award is so high as to shock the judicial conscience and constitute a denial of justice.'" O'Neill v. Krzeminski, 839 F.2d 9, 13 (2d Cir. 1988) (quoting Zarcone v. Perry, 572 F.2d 52, 56 (2d Cir. 1978)) . . . .

As we have noted, the determination of whether a damages award exceeds a reasonable range "should not be made in a vacuum," Ismail v. Cohen, 899 F.2d 183, 186 (2d Cir. 1990), but should include consideration of the amounts awarded in other, comparable cases, see, e.g., id. at 186-87; Raucci v. Town of Rotterdam, 902 F.2d 1050, 1058 (2d Cir. 1990); Zarcone, 572 F.2d at 54-55; Hogan v. Franco, 896 F. Supp. 1313, 1326 (N.D.N.Y. 1995) . . . .

Mathie v. Fries, 121 F.3d 808, 813 (2d Cir. 1997). In addition, if the verdict is found to be excessive, [*48] it should be reduced only to the maximum amount that could be upheld. Earl v. Bouchard Transp. Co., 917 F.2d 1320, 1328-29 (2d Cir. 1990); accord Peterson v. County of Nassau, 995 F. Supp. 305, 321 (E.D.N.Y. 1998).

The evidence in this case sustains a substantial verdict for mental anguish. Prior to the assertion of defendant's fabricated charges, plaintiff had had no involvement with the criminal justice system. As a result of defendant's misconduct, plaintiff was arrested on charges that bear an extremely high level of disgrace, namely, the sexual abuse by a mental health professional of a developmentally disabled individual placed in his care. 11 The baseless charges against plaintiff were publicized in the New York Post under the headline "SHRINK HELD IN SEX ATTACKS ON PATIENTS"; there is no evidence that the dismissal of the charges received any publicity whatsoever. Plaintiff was incarcerated for two weeks with sex offenders and murderers as a result of the charge. At the time these events were unfolding, plaintiff had a minor child, and the assertion of the charges adversely affected plaintiff's relationship with this child. Plaintiff required [*49] psychiatric intervention and years of psychotropic medication as a result of the defendant's acts. Before defendant's acts, defendant had the self-confidence and strength to come to a new country, without friends or family, and start a life as a health care professional. After defendant's acts, however, plaintiff was so demoralized and concerned about the possibility of a recurrence of false allegations that he was unable to resume his career as a psychologist and was limited to employment far below his former capabilities.

FOOTNOTES

11 The special opprobrium society has for sex offenders is evidenced by New York Corrections Law § 168-c et seq. which requires the registration of sex offenders and public notice of their presence in a community. No similar requirements are applicable to convicted murderers, contract assassins, bombers, robbers, arsonists, burglars, violent muggers or narcotics traffickers who sell drugs to minors.


Although these tribulations are great, an award of more than $ 5 million is clearly excessive. [*50] Indeed, a review of other malicious prosecution and false arrest cases fails to disclose any verdict that exceeds $ 1 million. 12

King v. Macri, 993 F.2d 294 (2d Cir. 1993) - affirming award of $ 75,000 compensatory damages.

Hygh v. Jacobs, 961 F.2d 359 (2d Cir. 1992) - compensatory damages of $ 65,000 awarded; new trial ordered.

Ismail v. Cohen, 899 F.2d 183 (2d Cir 1990) - malicious prosecution coupled with beating that caused two displaced vertebrae, cracked rib and serious head trauma; compensatory damages of $ 650,000 upheld.

Garner v. Meoli, 19 F. Supp. 2d 378 (E.D. Pa. 1998) - jury awarded compensatory damages against two defendants aggregating $ 153,250.

Martinez v. Gayson, 1998 U.S. Dist. LEXIS 12281, 95-C V-3788 (ILG), 1998 WL 564385 (E.D.N.Y. June 30, 1998) - remitting award of $ 310,000 in compensatory damages to $ 150,000.

Peterson v. County of Nassau, supra, 995 F. Supp. 305 (E.D.N.Y. 1998) - compensatory damages of $ 160,000 reduced to $ 15,000.

Mason v. City of New York, 949 F. Supp. 1068 (S.D.N.Y. 1996) - compensatory damages of $ 100,000 reduced [*51] to $ 10,000.

Vitale v. Hagan, 132 A.D.2d 468, 517 N.Y.S.2d 725 (1st Dep't 1987), modified on other grounds, 71 N.Y.2d 955, 524 N.E.2d 144, 528 N.Y.S.2d 823 (1988) - affirming award of $ 750,000 for malicious prosecution.



FOOTNOTES

12 Obviously, every case is different, and the results in other cases constitute, at best, a rough guide to the range or appropriate verdicts.


One qualitative difference between the foregoing cases and the present case is that none of the foregoing cases involved conduct that either effectively drove plaintiff out of his career or made it extremely difficult for plaintiff to pursue his career. A review of the cases involving such a consequence yields the following results:

Ortiz-Del Valle v. National Basketball Ass'n, 42 F. Supp. 2d 334 (S.D.N.Y. 1999) - Title VII case; female plaintiff barred from career as NBA referee; $ 750,000 in emotional distress damages reduced to $ 20,000.

Davis v. City of New York, 264 A.D.2d 379, 693 N.Y.S.2d 230 [*52] (2d Dep't 1999) - as a result of lead poisoning, infant plaintiff required to undergo remedial instruction to advance in school and likely to have difficulty throughout his life with personal relationships and work - and school-related pursuits; verdict of $ 1 million reduced to $ 150,000 for future pain and suffering, no award for lost earning capacity.

Osiecki v. Olympic Regional Dev. Auth., 256 A.D.2d 998, 682 N.Y.S.2d 312 (3rd Dep't 1998) - plaintiff unable to pursue career as architect as a result of physical injury; award of $ 495,000 for future pain and suffering reduced to $ 243,000.

Gallo v. Supermarkets General Corp., 112 A.D.2d 345, 491 N.Y.S.2d 796 (2d Dep't 1985) - plaintiff suffered severe burning, scarring and disfigurement in an industrial accident; as a result of his physical appearance, plaintiff was unable to work, feared contact with other people, was unable to look at himself in the mirror, was unable to lead normal life and required ten years of psychotherapy; award of $ 1.4 million for pain and suffering affirmed.



Although none of these cases involved facts identical to the facts in this case, they all underscore [*53] the excessiveness of the $ 5.2 million awarded as non-economic compensatory damages in a case where plaintiff suffered no physical injury. See generally Mathie v. Fries, supra, 121 F.3d at 813-14 (surveying range of compensatory damages awarded in cases of rape, sexual assault and police misconduct; awards ranged from $ 80,000 to $ 1.75 million).

Based on the foregoing and giving appropriate weight to the profound impact that defendant's misconduct had on plaintiff's life, I conclude that the appropriate measure of compensatory damages for non-economic loss is $ 500,000.00. Although this figure is at the high end of the range of verdicts awarded in the foregoing cases, it is proper here primarily because the false charge against plaintiff involved the highest level of moral turpitude, implicated his professional fitness in the most serious manner possible and destroyed his ability to practice his profession. Although plaintiff suffered no physical injury, his serious psychological injury was confirmed by his physician, circumstantially corroborated by plaintiff's employment history and may be of longer duration than many physical injuries.

Accordingly, to the extent [*54] defendant seeks a new trial on the issue of compensatory damages, the motion is granted unless plaintiff stipulates within thirty (30) days of the date of this Opinion and Order to remit all compensatory damages awarded by the jury to the extent those compensatory damages exceed a total of $ 1,872,988.00.

2. Excessiveness of the Punitive Damages

The standards relevant to judging the excessiveness of punitive damages in a Section 1983 were comprehensively set forth in Lee v. Edwards, 101 F.3d 805 (2d Cir. 1996). Because the opinion in Lee is such a comprehensive statement of the relevant principles, I quote it at length.

Punitive damages are available in a § 1983 action "when the defendant's conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others." Smith v. Wade, 461 U.S. 30, 56, 103 S. Ct. 1625, 1640, 75 L. Ed. 2d 632 (1983). Although a jury has wide discretion, a district court may refuse to uphold a punitive damage award when the amount is "so high as to shock the judicial conscience and constitute a denial of justice." Hughes v. Patrolmen's Benevolent Ass'n of New York, Inc., 850 F.2d 876, 883 [*55] (2d Cir.) (quoting Zarcone v. Perry, 572 F.2d 52, 56-57 (2d Cir. 1978)), cert. denied, 488 U.S. 967, 109 S. Ct. 495, 102 L. Ed. 2d 532 (1988). "If the district court finds that a verdict is excessive, it may order a new trial, a new trial limited to damages, or, under the practice of remittitur, may condition a denial of a motion for a new trial on the plaintiff's accepting damages in a reduced amount." Tingley Sys., Inc. v. Norse Sys., Inc., 49 F.3d 93, 96 (2d Cir. 1995).

We review for abuse of discretion a district court's ruling that a punitive damage award does not "shock the judicial conscience." Hughes, 850 F.2d at 883. "'We must give the benefit of every doubt to the judgment of the trial judge; but surely there must be an upper limit, and whether that has been surpassed is not a question of fact with respect to which reasonable men may differ, but a question of law.'" Gasperini v. Center for Humanities, [518 U.S. 415, 435], 116 S. Ct. 2211, 2223-24, 135 L. Ed. 2d 659 (1996) (quoting Dagnello v. Long Island R.R. Co., 289 F.2d 797, 806 (2d Cir. 1961)).

In gauging excessiveness, [*56] we must keep in mind the purpose of punitive damages: "to punish the defendant and to deter him and others from similar conduct in the future." Vasbinder v. Scott, 976 F.2d 118, 121 (2d Cir. 1992) (citing Smith, 461 U.S. at 54, 103 S. Ct. at 1639). Thus, our task is "to make 'certain that the punitive damages are reasonable in their amount and rational in light of their purpose to punish what has occurred and to deter its repetition.'" Id. at 121 (quoting Pacific Mut. Life Ins. co. v. Haslip, 499 U.S. 1, 21, 111 S. Ct. 1032, 1045, 113 L. Ed. 2d 1 (1991)); see also BMW of North America, Inc. v. Gore, [517 U.S. 559, 568], 116 S. Ct. 1589, 1595, 134 L. Ed. 2d 809 (1996) (punitive damages vindicate a state's legitimate interests in punishment and deterrence).

The Supreme Court [has] erected three guideposts that should assist us in the application of our standard, by which we deem excessive a punitive damage award that "shocks our judicial conscience," Hughes, 850 F.2d at 883. These guideposts include: (1) the degree of reprehensibility of the tortious conduct; (2) the ratio of [*57] punitive damages to compensatory damages; and (3) the difference between this remedy and the civil penalties authorized or imposed in comparable cases. Gore, [517 U.S. at 575], 116 S. Ct. at 1598-99.

101 F.3d at 808-09. See also Mathies v. Fries, supra, 121 F.3d at 816-17; Fernandez v. North Shore Ortho. Surg. & Sports Med., P.C., supra, 79 F. Supp. 2d at 207; Del Valle v. National Basketball Ass'n, supra, 42 F. Supp. 2d at 344-46; Ettinger v. State University of New York, 1998 U.S. Dist. LEXIS 2289, 95 Civ. 9893 (RWS), 1998 WL 91089 at *10 (S.D.N.Y. March 2, 1998).

Applying the three Gore factors identified in Lee demonstrates that the jury's award of $ 10 million in punitive damages is far beyond the range of reasonableness and shocks the conscience.

Reprehensibility. Reprehensibility is the most important of the Gore factors. Lee v. Edwards, supra, 101 F.3d at 809. The Supreme Court has identified three aggravating sub-factors to be considered in evaluating reprehensibility: "(1) whether a defendant's conduct was violent or presented a threat of violence; (2) whether [*58] a defendant acted with deceit or malice as opposed to acting with mere negligence, and (3) whether a defendant engaged in repeated instances of misconduct." Lee v. Edwards, supra, 101 F.3d at 809. The third sub-factor requires inquiry into whether defendant has engaged in similar conduct aimed at individuals other than plaintiff. Fernandez v. North Shore Ortho. Surg. & Sports Med., P.C., supra, 79 F. Supp. 2d at 207 n. 15; Del Valle v. National Basketball Ass'n, supra, 42 F. Supp. 2d at 345.

Although only one of the aggravating factors identified in Gore is present in this case, to wit, malice, I find that defendant's conduct involved the highest degree of reprehensibility. First, the nature of the charge she caused to be made against plaintiff -- sexual assault on a developmentally disabled patient entrusted to plaintiff's care -- is the most serious charge that can be made against a mental health professional. It not only goes to the heart of plaintiff's profession, it also constitutes an allegation that plaintiff has abused his position of trust with a particularly vulnerable victim to satisfy the basest of desires. A mental [*59] health care professional may engage in a wide range of professional misconduct -- from bill-padding to malpractice. However, a charge of sexual misconduct with a developmentally disabled patient is qualitatively different and carries with it a stigma that is unlike that resulting from any other form of professional misconduct.

Second, the means plaintiff used exhibited not only malice toward plaintiff, but the most callous disregard for her own responsibilities as a Therapy Aide. Defendant did not directly allege that she saw plaintiff engaging in misconduct. Instead, she manipulated a patient into doing her sinister deed for her. Rather than care for the patients who were entrusted to her, defendant instead made them tools to carry out her malicious plan. Thus, in implementing her scheme, plaintiff not only caused plaintiff profound injury, she abused her own position of trust with a vulnerable patient.

Accordingly, defendant's misconduct here was extremely reprehensible.

Ratio of Punitive to Compensatory Damages. Prior to the remittitur determined above, the award of punitive damages was less than twice the jury's award of compensatory damages. If plaintiff accepts the remittitur, [*60] the jury's award of punitive damages is approximately 5.2 times the reduced award. Neither ratio is conscience-shocking.

Comparison with Other Awards. A survey of the punitive damages awards in other malicious prosecution cases clearly demonstrates the excessive nature of the punitive damages awarded against defendant.

Lee v. Edwards, supra, 101 F.3d 805 - reducing verdict of $ 200,000 to $ 75,000.

King v. Macri, supra, 993 F.2d 294 (2d Cir. 1993) - punitive damages awards against two defendants aggregating $ 250,000 reduced to an aggregate of $ 150,000.

Garner v. Meoli, supra, 19 F. Supp. 2d 378 (E.D. Pa. 1998) - declining to reduce punitive damages awards of $ 500,000 and $ 250,000 against two defendants.

Martinez v. Gayson, supra, 1998 U.S. Dist. LEXIS 12281, 95-C V-3788 (I.G.), 1998 WL 564385 (E.D.N.Y. 1998) - jury award of $ 10,000 in punitive damages found appropriate.

As noted in the discussion above concerning compensatory damages, every case involves factual distinctions. The verdicts in other cases are, therefore, probably best viewed as suggesting the dimensions of the range of reasonableness rather [*61] than as establishing any firm rules.

In light of all the foregoing factors, I conclude that the maximum amount of punitive damages that a reasonable jury could have awarded in this case is $ 500,000.00. Again, I believe this amount is toward the upper end of the range of reasonableness, but I find that it is warranted by the high degree of reprehensibility of the defendant's conduct. It is difficult to conceive of a more infernal and hateful scheme for demolishing a life than that hatched and executed by defendant in this case. The outrageous nature of her conduct requires a substantial award of punitive damages.

IV. Conclusion

Accordingly, for all the foregoing reasons, defendant's motion for judgment as a matter of law is granted to the extent that it seeks judgment in defendant's favor on plaintiff's "stigma plus" theory. Defendant's motion is denied to the extent it seeks judgment in defendant's favor on plaintiff's malicious prosecution theory. Defendant's motion addressed to plaintiff's 1983 malicious prosecution claim is granted to the extent that a new trial limited to the issue of damages is granted unless, within thirty (30) days of the date of this Opinion and [*62] Order, plaintiff stipulates to accept a total award of compensatory damages of $ 1,872,988.00 and a total award of punitive damages of $ 500,000.00.

Dated: New York, New York

March 31, 2000

SO ORDERED

HENRY PITMAN

United States Magistrate Judge