Roland PINSKY; Jennie Pinsky and Eileen Fedowitz, Plaintiffs, Brian K. Doehr, Plaintiff-Appellant, v. Robert K. DUNCAN and Joseph Golden Insurance Agency, Defendants, John F. Di Giovanni, Defendant-Appellee.
No. 9, Docket 94-7394.
United States Court of Appeals, Second Circuit.
March 22, 1996
Argued Sept. 21, 1995.
The government‘s proof at trial included evidence that the apartment in which the agents found the three boxes containing approximately 75 kilograms of 82% pure cocaine was leased to Ramirez; that in the master bedroom were Ramirez‘s рassport, two identification cards bearing his photograph, and three beepers (in addition to the two Ramirez was wearing when he was arrested); that after Ramirez left the apartment carrying a box and drove off in his Maxima, he returned, drove past his apartment to use a pay telephone some five blocks away, although there was a cellular telephone in his apartment; that Ramirez then drove past his apartment again, staring at the two of the surveilling agents; and that during the afternoon and evening, Ramirez repeatedly drove past the apartment, changed cars twice, and wore sеveral different outfits.
The government‘s evidence that Ramirez was the sole tenant and sole adult occupant of the apartment, that the cocaine was stacked up in an open room of the apartment, and that Ramirez took evasive actions after becoming aware of the agents’ surveillance was sufficient to permit the jury to infer beyond a reasonable doubt that the cocaine found in the apartment belonged to Ramirez.
Ramirez‘s contention that he countered the government‘s case by testifying that he did not own the cocaine and by offering innocent explanatiоns for his elusive behavior and his possession of beepers goes only to the weight of the evidence. The weight of the evidence is a matter for argument to the jury, not a ground for reversal on appeal. See, e.g., United States v. Roman, 870 F.2d 65, 71 (2d Cir.), cert. denied, 490 U.S. 1109, 109 S.Ct. 3164, 104 L.Ed.2d 1026 (1989). We note also that the jury was entitled to view the improbability of Ramirez‘s explanations as further proof of his guilt. See, e.g., United States v. Stanley, 928 F.2d 575, 577 (2d Cir.) (“the jury [is] entitled to disbelieve [the defendant‘s] testimony, and use its disbelief to supplement the other evidence against him” adduced by the government), cert. denied, 502 U.S. 845, 112 S.Ct. 141, 116 L.Ed.2d 108 (1991). Ramirez‘s disclaimer of ownership, for example, consisted of the claim that the cocaine had been lеft in his apartment on the morning of August 18 by a prospective subtenant, one Osa, whom Ramirez had met recently and whose address Ramirez did not know. Ramirez and Osa had not entered into any lease or other written agreement for Osa‘s proposed tenancy. Taking note of Ramirez‘s statement to Blanco that the current price for one kilogram of cocaine was $18,000, the jury was plainly entitled to disbelieve Ramirez‘s testimony that a bare acquaintance who had no indicia of entitlement to enter the apartment had left him with some 75 kilograms of cocaine worth $1,350,000.
Ramirez‘s other contentions do not warrant discussion.
CONCLUSION
We have considered all of Ramirez‘s arguments on this appeal and have found them to be without merit. The judgment of conviction is affirmed.
Jeremiah S. Gutman, New York City (Jayne F. Monahan, Levy, Gutman, Goldberg & Kaplan, New York City, of counsel), for Defendant-Appellee.
Before: OAKES, MINER and MAHONEY, Circuit Judges.
Judge OAKES concurs in a separate opinion.
MINER, Circuit Judge:
Plaintiff-appellant Brian K. Doehr appeals from a judgment entered in the United States District Court for the District of Connecticut (Eginton, J.), denying his motions for damages and attorney‘s fees in a civil rights action brought pursuant to
BACKGROUND
In March of 1988, Doehr and Di Giovanni engaged in an altercation resulting in personal injuries to Di Giovanni. Shortly after the altercation, Di Giovanni commenced an action аgainst Doehr in the Connecticut Superior Court to recover damages for assault and battery. Sometime later, Di Giovanni amended his complaint in that action to assert a claim in negligence. In 1992, a jury verdict in the sum of $5,600.00 was returned in favor of Di Giovanni on his negligence claim, the jury having apportioned forty percent responsibility against him. Because of the collateral source rule, Di Giovanni actually recovered the sum of $3,422.34 plus costs in his lawsuit.
At the inception of the action, and prior to the service of process on Doehr, Di Giovanni was granted the right to attach real property owned by Doehr in Meriden, Connecticut for the purpose of securing any judgment he might obtain. It appears that the real property in question was a residential dwelling owned by Doehr and his wife. The Connecticut court allowed the issuance of the attachment without notice, hearing or bond under the provisions of
The court or a judge of the court may allow the prejudgment remedy to be issued by an attorney without hearing as provided in sections 52-278c and 52-278d upon verification by oath of the plaintiff or of some competent affiant, that there is probable cause to sustain the validity of the plaintiff‘s claim and (1) that the prejudgment remedy requested is for an attachment of real property....
In August of 1988, before the conclusion of the action in the Connecticut Superior Court, Doehr and others commenced the action giving rise to this appeal, pursuant to
[e]ach plaintiff has had his or her real property attached, without prior notice and without a prior opportunity to be heard, pursuant to section 52-278e(1), which allows a prejudgment remedy to be issued without bond, and without any showing of extraordinary circumstances ... merely because the proposed defendant owns real property.
The Complaint included allеgations of deprivation of property without due process by Di Giovanni and others, and the state action necessary to sustain a
Viewed as a whole, Section 52-278e(a)(1) comports with due process. The statute provides for judicial supervision of the process in that it requires the prejudgment remedy to be issued by a judge.... A defendant whose property has been attached can require the plaintiff to show probable cause to sustain the prejudgment remedy in a prompt post-seizure hearing.... The temporary and minor pre-hearing impairment of a defendant‘s property, when coupled with the purpose served by such an attachment, suggests that the fact that the statute does not provide for the filing of a bond prior to the attachment is unobjectionable.
Pinsky v. Duncan, 716 F.Supp. 58, 60 (D.Conn.1989).
We reversed on appeal, stating in the principal opinion “that
Despite the highly error-prone nature of Connecticut‘s pre-attachment procedure, Di Giovanni and the state insist that the private interest at stake is so minuscule that a prior hearing is not constitutionally required. We are unpersuaded by this argument. An attachment can hаve a substantial impact on a landowner‘s ability to sell his property, secure a loan, or obtain credit. Given a particularly unlucky set of circumstances, even a temporary attachment can lead to foreclosure proceedings against the homeowner. In any event, the individual‘s interest in a prior hearing certainly outweighs the state‘s interest in postponing the hearing until after attach-
ment, which, in the absence of unusual circumstances, is practically nil.
Id. at 856 (citation omitted).
The Supreme Court granted certiorari, affirmed and remanded to us for further proceedings consistent with its opinion. Connecticut v. Doehr, 501 U.S. 1, 24, 111 S.Ct. 2105, 2119, 115 L.Ed.2d 1 (1991). The Court held that the Due Process Clause of the Fourteenth Amendment was not satisfied by a state statute that permitted prejudgment attachment of real property without prior notice or hearing. Id. Four members of the Court concluded that due process also required that a bond be posted, although a bond would not eliminate the need for a pre-attachment hearing or a showing of exigent circumstances. Id. at 23, 111 S.Ct. at 2118-19. The opinion for the majority stated:
The plaintiff had no existing interest in Doehr‘s real estate when he sought the attachment. His only interest in attaching the property was to ensure the availability of assets to satisfy his judgmеnt if he prevailed on the merits of his action. Yet there was no allegation that Doehr was about to transfer or encumber his real estate or take any other action during the pendency of the action that would render his real estate unavailable to satisfy a judgment. Our cases have recognized such a properly supported claim would be an exigent circumstance permitting postponing any notice or hearing until after the attachment is effected. Absent such allegations, however, the plaintiff‘s interest in attaching the property does not justify the burdening of Doehr‘s ownership rights without a heаring to determine the likelihood of recovery.
Id. at 16, 111 S.Ct. at 2115 (citations omitted). The Court remanded the case to us for further proceedings consistent with its opinion. Id. at 24, 111 S.Ct. at 2119. By order entered on August 2, 1991, we remanded to the district court for further proceedings consistent with the Supreme Court opinion.
On December 4, 1992, the district court vacated its original judgment, granted summary judgment in favor of plaintiff on the constitutional deprivation issue, and directed the filing of a motion for damages. Doehr subsequently filed the motion as well as a supplemental motion for additional damages. Di Giovanni submitted papers in opposition and also crоss-moved to dismiss Doehr‘s complaint insofar as it sought damages and attorney‘s fees. On August 27, 1993, the parties entered into a stipulation submitting the damages issue for the court‘s determination on the basis of an affidavit that Doehr had submitted in connection with his motions. The stipulation also noted the purchase price of Doehr‘s property, and that Doehr‘s attorney had made three requests for release from the attachment in 1990 and three requests in 1991. The release ultimately was filed on July 30, 1991.
In a Ruling filed on March 1, 1994, the district court denied the motions for damages, holding that
there is no evidence that defendant knew or should have known thаt Connecticut‘s prejudgment attachment statute was unconstitutional, or that he acted with reckless disregard of plaintiff‘s constitutional rights. Plaintiff also seeks damages for defendant‘s alleged wrongful attachment and for defendant‘s tardy release of the attachment. The use or abuse of an ex parte attachment statute does not present a valid cause of action under § 1983.
Doehr moved for reconsideration and the district court, by memorandum endorsement filed on March 11, 1994, adhered to its previous determination. Thereafter, Doehr applied for attorney‘s fees, submitting an affidavit regarding the time sрent by his attorney and her experience in consumer law matters. The district court filed an opinion on August 23, 1994 denying attorney‘s fees. The court first noted that it had granted a motion for interim attorney‘s fees in August of 1990 in the amount of $14,480. The district court ruled that Doehr did not succeed on the issue of damages, however, and was not entitled to be paid for services in that connection. Although Doehr‘s attorney contended that Di Giovanni filed a number of motions that were unreasonable because they urged the district court to violate the Supreme Court mandate, the district court did not see it that way: “Defendant‘s motions primarily
DISCUSSION
I. Damages for the Deprivation
In Wyatt v. Cole, 504 U.S. 158, 112 S.Ct. 1827, 118 L.Ed.2d 504 (1992), the Court answered “no” to the question “[w]hether private persons, who conspire with state officials to violate constitutional rights, have available the good faith immunity applicable to public officials.” Id. at 168-69, 112 S.Ct. at 1834 (quotation omitted). The Court reviewed the policy concerns that require the prоtection of qualified immunity for public officials and found them inapplicable to private citizens. Among these concerns are the encouragement of fearless decision-making, the recruitment of talented public servants, the vigorous exercise of public authority and the avoidance of distractions from governmental duties. Id. at 167, 112 S.Ct. at 1833.
In declining to extend the doctrine of immunity to private citizens because “the nexus between private parties and the historic purposes of qualified immunity is simply too attenuated to justify such an extension,” the Court stated:
In so holding, however, we do not foreclose the pоssibility that private defendants faced with § 1983 liability under Lugar v. Edmondson Oil Co., ... could be entitled to an affirmative defense based on good faith and/or probable cause or that § 1983 suits against private, rather than governmental, parties could require plaintiffs to carry additional burdens. Because those issues are not fairly before us, however, we leave them for another day.
Id. at 168-69, 112 S.Ct. at 1834.
On remand, the Fifth Circuit, addressing the issues left “for another day” by reference to the concurring and dissenting opinions in the Supreme Court, h[e]ld that private defendants sued on the basis of Lugar may be held liable for damages under
[We] think that private defendants, at least those invoking ex parte prejudgment statutes, should not be held liable under
§ 1983 absent a showing of malice and evidence that they either knew or should have known of the statute‘s constitutional infirmity.
Id. at 1120 (emphasis supplied).
The Third Circuit, referring to the second standard set out by the Fifth Circuit, stated:
We are in basic agreement, but we believe “malice” in this context means a creditor‘s subjective appreciation that its act deprives the debtor оf his constitutional right to due process.
Jordan v. Fox, Rothschild, O‘Brien & Frankel, 20 F.3d 1250, 1276 (3d Cir.1994).
The Supreme Court‘s majority opinion in Wyatt did establish that
A more modern text distinguishes malicious prosecution, called “wrongful civil proceedings,” from abuse of process, defining the latter as “misusing, or misapplying process justified in itself for an end other than that which it was designed to accomplish.” W. Page Keeton et al., Prosser and Keeton On the Law of Torts § 121, at 897 (5th ed.1984). This text states that the abuse of рrocess tort has but two elements: “first, an ulterior purpose, and second, a willful act in the use of the process not proper in the regular conduct of the proceeding.” Id. at 898.
As we understand it, Doehr‘s claim here is for damages proximately resulting from Di Giovanni‘s ex parte civil proceeding to attach Doehr‘s real property, a proceeding that ended favorably for Doehr when the attachment statute was declared unconstitutional. Doehr‘s claim therefore falls within the definition of malicious prosecution. See 54 C.J.S. Malicious Prosecution § 2 (1987). We think that malicious prosecution is the most closely analogous tort and look to it for the elements that must be established in order for Doehr to prevail on his
In establishing the requisite element of lack of probable cause, reference must be made to the definition existing at the time of the enactment of
Probable cause—or, as the expression oftener is, reasonable and probаble cause—is any such combination of facts and proofs as may fairly lead the reasonable mind to the belief (and the person relying on it must believe) that, in the absence of hitherto unknown qualifying or rebutting evidence, the prosecution or other suit ought to be successful.
Bishop, supra, § 239, at 95 (footnotes omitted). It is interesting to note that a more modern definition of probable cause to initiate civil proceedings incorporates similar elements:
One who takes an active part in the initiation, continuation or procurement of civil proceedings against another has probable cause for doing so if he reasonably believes in the existence of the facts upon which the claim is based, and either
(a) correctly or reasonably believes that under those facts the claim may be valid under the applicable law, or
(b) believes to this effect in reliance upon the advice of counsel, sought in good faith and given after full disclosure of all relevant facts within his knowledge and information.
The element of malice implicates an evil or unlawful purpose. Bishop, supra, § 232, at 92. It includes “the pursuit of the lawful end by the intentionally unlawful means.” Id. § 233, at 93. Generally, malice
may be shown by proving that the prosecution complained of was undertaken from improper or wrongful motives, or in reckless disregard of the rights of the plaintiff. Impropriety of motive may be established by proof that the defendant instituted the prior proceedings against the plaintiff, for instance, ... for the purpose of obtaining a private advantage against him ...; thus, malice is sufficiently established in an action for malicious prosecution if it appears that the prior suit was commenced in bad faith to vex, annoy, or harass the adverse party.
52 Am.Jur.2d Malicious Prosecution § 152, at 277-78 (1970) (footnotes omitted). Malice may be inferred from the lack of probable cause. Bishop, supra, § 235, at 93; Keeton, supra, § 120, at 895. Reliance upon the advice of an attorney may negаte malice, however. Bishop, supra, § 236, at 93-94.
It seems clear that an action for malicious prosecution or wrongful civil proceeding extends to claims for damages arising from an improper attachment. See Keeton, supra, § 120, at 890. Actual damages that proximately result from the wrongful proceeding are recoverable. Id. at 895. Damages may be sought for interference with property, loss of credit and other tangible and intangible losses arising from the attachment. Id. at 895-96. In connection with the claims in this case, we note that Doehr contends that Di Giovanni failed to release the attachment until sоme time after it was finally determined that the attachment was based upon an unconstitutional statute. We think that the continuation of the attachment under such circumstances may give rise to a claim for damages provided the other elements of malicious prosecution are established in connection with the failure to discontinue. See 52 Am.Jur.2d Malicious Prosecution § 26, at 203 (1970).
We note in this connection our disagreement with the district court‘s rejection of Doehr‘s claim “for defendant‘s alleged wrongful attachment and for defendant‘s tardy release of the attachment” after the declaration of unсonstitutionality by invoking Lugar, 457 U.S. at 942, 102 S.Ct. at 2756, for the proposition that “[t]he use or abuse of an ex parte attachment statute does not present a valid cause of action.” Lugar stated that: “Petitioner did present a valid cause of action under § 1983 insofar as he challenged the constitutionality of the Virginia statute; he did not insofar as he alleged only misuse or abuse of the statute.” Id. (emphasis added). Thus, at a minimum, Lugar does not preclude a
Because we today announce a new rule to govern damage claims for due process violations under
II. Attorney‘s Fees
The district court determined that, since Doehr did not succeed on the issue of dam-
It may be that after the district court has considered the case, Doehr will be entitled to nominal damages, as was the plaintiff in Carey v. Piphus, 435 U.S. 247, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978), a procedural due process case. Such a plaintiff may qualify as a prеvailing party so as to be entitled to attorney‘s fees under Farrar v. Hobby, 506 U.S. 103, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992), and Ruggiero v. Krzeminski, 928 F.2d 558 (2d Cir.1991).
Doehr also contends that the district court erred by denying his claim for attorney‘s fees and costs based on
CONCLUSION
We vacate the judgment of the district court and remand for further proceedings in accordance with the foregoing.
OAKES, Senior Circuit Judge, concurring:
I concur in the judgment of the court but write to express caveats concerning (1) the interpretation of
My first reservation concerns the majority‘s proposition that when interpreting
I am unconvinced, however, that we must define the whole law of constitutional torts by reference to the common law as it existed in 1871. Though the Supreme Cоurt appeared to endorse such an approach in Wyatt when it discussed the torts of malicious prosecution and abuse of process, an alternative reading of Wyatt would limit such historical analysis to the immunity context. Indeed, in Golden State Transit Corp. v. Los Angeles, 493 U.S. 103, 110 S.Ct. 444, 107 L.Ed.2d 420 (1989), the Court, holding that the NLRA creates rights redressable under
My second caveat is shorter and perhaps more to the point. Neither the Court in Wyatt nor the majority here consider the full range of historical common law torts that are analogous to
Some jurisdictions permit an action, either at common law or by statute, for wrongful attachment, apart from the tort of malicious prosecutiоn.... It has been held in such jurisdictions that for ‘actual damages’ sustained as a result of the wrongful attachment there is no requirement that the attachment defendant show impropriety of purpose, lack of probable cause, or termination of the attachment proceedings.
§ 4.8 n. 5 at 4:63-:64 (citing Sherwin-Williams Co. v. Crovetto, 388 So.2d 109 (La.Ct.App.1980); Pourney v. Seabaugh, 604 S.W.2d 646 (Mo.Ct.App.1980); Seay v. Greenwood, 21 Ala. 491 (1852); Donnell v. Jones, 13 Ala. 490 (1848); McLaughlin v. Davis, 14 Kan. 168 (1875); Talbot v. Great Western Plaster Co., 167 Mo.App. 542, 152 S.W. 377 (1912); Reliable Mut. Hail Ins. Co. v. Rogers, 61 Okl. 226, 160 P. 914 (1916); Fred Mercer Dry Goods Co. v. Fikes, 211 S.W. 830 (Tex.Civ.App.1919); Fisher v. Scherer, 169 S.W. 1133 (Tex.Civ.App.1914)).
It seems to me that the case at hand fits at least as well into an unjustifiable ancillary proceeding analysis as into a malicious prosecution analysis, though I realize Wyatt points us toward the latter tort. Were I writing on a clean slate, I would define the instant action in terms of unjustifiable ancillary proceeding and remand accordingly.
ROGER J. MINER
UNITED STATES CIRCUIT JUDGE
Fernando AGUIRRE, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
No. 432, Docket 93-4195.
United States Court of Appeals, Second Circuit.
March 22, 1996
Argued Dec. 13, 1994.