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Dunton v. County of Suffolk

decided: February 28, 1984.

EMERSON W. DUNTON, JR., PLAINTIFF-APPELLEE,
v.
COUNTY OF SUFFOLK, STATE OF NEW YORK, SUFFOLK COUNTY POLICE DEPARTMENT, COUNTY OF SUFFOLK, STATE OF NEW YORK, ROBERT PFEIFFER, ANGELA PFEIFFER, "RICHARD ROE," "JAMES DOE" AND "JOHN POE," THE LATTER BEING FICTITIOUS NAMES OF REAL PERSONS, MEMBERS OF THE SUFFOLK COUNTY POLICE DEPARTMENT, DEFENDANTS, ANGELA PFEIFFER, AND ROBERT PFEIFFER, DEFENDANTS-APPELLANTS



Plaintiff brought an action against defendants Robert and Angela Pfeiffer, Suffolk County and the Suffolk County Police Department seeking damages for various federal civil rights and state law violations. A jury of the United States District Court for the Eastern District of New York, Glasser, J., awarded damages against Angela Pfeiffer on a state law malicious prosecution claim and against Robert Pfeiffer on a state law battery claim. Held that the Suffolk County Attorney's representation of the muinicipal entities and Robert Pfeiffer created a conflict of interest which deprived Pfeiffer of a fair trial. Also held that the district court improperly exercised pendent jurisdiction over the malicious prosecution claim against Angela Pfeiffer where federal claims were too insubstantial to support federal subject matter jurisdiction. No. 83-7384: Reversed and remanded with instructions to dismiss the complaint. No. 83-7814: Reversed and remanded for a new trial.

Oakes and Meskill, Circuit Judges, and Neaher,*fn* District Judge.

Author: Meskill

MESKILL, Circuit Judge:

Robert Pfeiffer appeals from a judgment entered against him after a jury trial in the United States District Court for the Eastern District of New York, Glasser, J., awarding Emerson Dunton, Jr. $10,000 compensatory damages and $10,000 punitive damages on a state law battery claim. Angela Pfeiffer appeals from a judgment entered against her in the same trial, awarding Dunton $5,000 compensatory damages and $20,000 punitive damages for malicious prosecution. We reverse the judgment against Robert Pfeiffer and remand for a new trial and reverse the judgment against Angela Pfeiffer and remand to the district court with instructions to dismiss the complaint.

I

Defendant-appellant Angela Pfeiffer attended a retirement party for a fellow employee on the evening of May 20, 1981. As the party broke up, plaintiff-appellee Emerson Dunton, Jr., a co-worker and attendee, accompanied Ms. Pfeiffer to her car. The accounts of the subsequent events differ; Ms. Pfeifer claims that Dunton began making improper advances while they were seated in her car, while Dunton asserts that Ms. Pfeiffer willingly participated in the maneuvers. Defendant-appellant Robert Pfeiffer, Angela's husband and also a Suffolk County police officer, came upon the scene in his patrol car, threw Dunton out of Ms. Pfeiffer's car, struck him repeatedly and left him lying in the parking lot. Dunton suffered non-disabling and non-permanent injuries from the incident.

Dunton was arrested after Angela Pfeiffer filed a criminal complaint on June 18, alleging third degree sexual abuse in violation of N.Y. Penal Law § 130.55 (McKinney 1975). When the matter did not come to trial by November 16, Dunton moved to dismiss on the ground that the sixty day limit for trial, N.Y. Crim. Proc. Law § 30.30 (McKinney 1981 & Supp. 1983), had been exceeded. The motion was denied and Dunton moved for reconsideration. On December 23, the Suffolk County district court concluded that it had erred in computing the sixty day period and that sixty-seven days were actually chargeable to the prosecution. Accordingly, it granted the motion to dismiss. The Appellate Division affirmed. See App. at 1342-47.

On August 17, 1981, Dunton filed this action against Suffolk County, the Suffolk County Police Department and the Pfeiffers seeking $50 million compensatory damages, $50 million punitive damages and reasonable attorney's fees. Dunton alleged violations of 42 U.S.C. § 1983 (Supp. III 1979)*fn1 by Officer Pfeiffer and his patrol car partner for the actions in the parking lot, by a desk sergeant for failing to make a report, and by Officer Pfeiffer and other members of the police department for covering up and conspiring to cover up the incident. He also alleged that the Pfeiffers violated 42 U.S.C. §§ 1983 and 1985 (Supp. II 1978)*fn2 by conspiring to cover up the incident with Angela's malicious prosecution complaint of sexual abuse. Finally, he alleged pendent state claims of assault and battery against Robert Pfeiffer and false arrest and malicious prosecution against Angela Pfeiffer.

By local law, Suffolk County provides for the representation of its employees sued under section 1983. See App. at 1325-28. Robert Pfeiffer and Suffolk County were represented in this action by the office of the Suffolk County Attorney (County Attorney). An indication that this joint representation might create a conflict came in a form letter from the County Attorney to Robert Pfeiffer dated August 25, 1981 suggesting that because "plaintiff has alleged that [Pfeiffer] acted in [his] personal capacity and/or has demanded punitive damages" and because of possible counterclaims, Pfeiffer should contact private counsel "for such additional advice as may be appropriate." App. at 1199-200. Angela Pfeiffer retained her own attorney.

The County Attorney's answer to Dunton's complaint included an affirmative defense that Robert Pfeiffer was acting in good faith pursuant to his official duties and responsibilities. However, it was the last time that the defense contended that Pfeiffer was acting in good faith as a police officer. The County Attorney told the jury in opening statements that Pfeiffer "acted as a husband, not even as an officer," App. at 135. Similarly, he told the jury in closing statements that it was obvious Pfeiffer "was acting as an irate husband rather than a police officer," App. at 989, and that he acted "with the human spirit as a husband, not really as an officer," App. at 995. This was clearly the County Attorney's theory of the case, as he made similar statements to the trial judge. See App. at 98-102, 779-81.

All of Dunton's claims were dismissed by the court as meritless except for the section 1983 claim against Robert Pfeiffer and the state law claims of battery against Robert Pfeiffer and malicious prosecution against Angela Pfeiffer. The jury found Robert Pfeiffer not liable under section 1983, but awarded $10,000 compensatory and $10,000 punitive damages on the battery claim. Angela Pfeiffer was held liable for $5,000 compensatory and $20,000 punitive damages for malicious prosecution.

Robert Pfeiffer then made a series of post-trial motions relating to the County Attorney's conflict of interest. While the district court acknowledged that there was a conflict, it denied the motions on the ground that Pfeiffer was not prejudiced thereby. It stated that even if Pfeiffer had been shown to be acting under color of state law, damages would still have been awarded for the unjustified battery, and that punitive damages would also have been awarded in any event. See App. at 1331-33.

II

Robert Pfeiffer appeals on the ground that the Suffolk County Attorney failed to represent his interest adequately because of the attorney's conflicting representation of Suffolk County. Specifically, Officer Pfeiffer claims that it was in his interest to assert his immunity from section 1983 liability based on good faith actions within the scope of his employment. See Harlow v. Fitzgerald, 457 U.S. 800, 818-19 & n.30, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982); Pierson v. Ray, 386 U.S. 547, 555, 18 L. Ed. 2d 288, 87 S. Ct. 1213 (1967). Pfeiffer contends that the ...


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