By: Daily Record Staff//June 27, 2012
By: Daily Record Staff//June 27, 2012//
U.S. District Court, WDNY
Malicious Prosecution — Federal & State Actions
Notice of Claim — Failure to State a Claim
Capo v. County of Steuben, et al.
Background: The plaintiff alleged that the assistant district attorney began an investigation of the plaintiff and charged him with stalking in the third degree. The plaintiff’s attorney argued that the DA had used an improperly-filed prosecutor’s information, which was one of four such improper uses of a prosecutor’s information. The stalking charge was dismissed. The plaintiff then commenced an action alleging violations of his Fifth, Sixth and fourteenth Amendment rights, negligence, malicious prosecution and abuse of process. The defendants moved to dismiss the complaint.
Ruling: The District Court granted the motion. The plaintiff had failed to provide notice to the municipality and dismissed the state law actions. The court was unconvinced that the federal claims ought to be dismissed on the ground that the notice of claim requirement applied to state law actions only. The court found, however, that because the charges supported the issuance of a warrant, and that the dismissal of the underlying prosecution was neither on the merits or an acquittal, the plaintiff had failed to adequately state a plausible federal action.
David H. Jacobs and Shawn Michael Sauro for the plaintiff; Bryan J. Maggs of Davidson & O’Mara PC for the defendants