The opinion of the court was delivered by: MARVIN E. ASPEN
MARVIN E. ASPEN, District Judge:
Individual defendants Frank Saenz, Carson Earnest, Henry Gralak, and Steven Machain (collectively, "individual defendants") have moved to dismiss or strike portions of plaintiff Michael Green's first amended complaint.
As noted below, we grant the motion in part, and deny it in part.
Green's first amended complaint has six counts, all alleged pursuant to 42 U.S.C. § 1983 (1988). Count I maintains that the individual defendants violated the Fourth and Fourteenth Amendments through acts of assault and battery and use of excessive force. Count II asserts that Saenz and Earnest violated the Fourth and Fourteenth Amendments by falsely arresting Green. Count III avers that Saenz and Earnest, in contravention of the Fourth, Fifth, and Fourteenth Amendments, falsely imprisoned Green. Count IV charges malicious prosecution against the individual defendants, infringing Green's Fourth, Fifth, Sixth, and Fourteenth Amendment rights. Finally, Count V claims that the individual defendants conspired together to maliciously prosecute Green.
Two arguments made by the individual defendants are conceded by Green. Accordingly, we strike from PP 2-5 of the first amended complaint the phrase "as well as official," leaving the relevant section of each paragraph as follows: "who is sued in his individual capacity." E.g., First Amended Complaint P 2. We also strike all reference to a Fifth Amendment basis for Green's claims in Counts III and IV.
In Briscoe, the Supreme Court decided that § 1983 does not create a damage remedy against police officers for their in-court testimony as witnesses. Put another way, the Court determined that testifying police officers enjoy an absolute immunity from subsequent civil liability even if those officers lie under oath at the underlying criminal trial. Id.
Briscoe does not generally foreclose bringing a § 1983 claim for malicious prosecution, however. Clearly, such a claim is proper in the right factual situation. See Inada v. Sullivan, 523 F.2d 485, 488 (7th Cir. 1975) (allegation that police officer arrested plaintiff without reason or probable cause and had plaintiff's properly parked car towed without legal justification "would state claims for which relief could be granted under . . . § 1983") (citations omitted); see also Brummett v. Camble, 946 F.2d 1178, 1180 n.2 (5th Cir. 1991) ("malicious prosecution violates § 1983," citing Inada and cases from First, Second, Third, and Fourth Circuits), cert. denied, 60 U.S.L.W. 3814 (1992).
Moreover, there is no absolute immunity for a police officer who "plays a role in initiating a prosecution," a part that must be differentiated from that played by an officer "whose role was limited to providing testimony." White v. Frank, 855 F.2d 956, 958-59 (2d Cir. 1988). An officer in the former role is akin to a complaining witness, and "complaining witnesses were not absolutely immune at common law." Malley v. Briggs, 475 U.S. 335, 340, 106 S. Ct. 1092, 1096, 89 L. Ed. 2d 271 (1986). This distinction between a testifying witness and a complaining witness is critical:
The Supreme Court, recognizing that the common law did not extend immunity to "complaining witnesses," Malley v. Briggs, supra,. . ., has denied immunity to police officers sued under section 1983 for wrongfully initiating the criminal process by applying for arrest warrants. The absence of immunity for such action stands in marked contrast to the availability of immunity where liability is asserted solely because of an officer's role in testifying at a judicial proceeding. Thus, immunity has been recognized against a section 1983 suit based on an officer's trial testimony, Briscoe v. LaHue, supra.. . .
. . . Where, however, the constitutional tort is the action of a police officer in initiating a baseless prosecution, his role as a "complaining witness" renders him liable to the victim under section 1983, just as it did at common law, and the fact that his testimony at a judicial proceeding may have been the means by which he initiated the prosecution does not permit him to transpose the immunity available for defamation as a defense to malicious prosecution.
The individual defendants also contend that Green's allegations in Counts I-III "for violations of his fourteenth amendment due process rights must be dismissed for failure to state a claim because claims of excessive force, false arrest and false imprisonment are governed solely by the fourth amendment as incorporated into the due process clause of the fourteenth amendment." Memo at 7-8 (emphasis added). Following Graham v. Connor, 490 U.S. 386, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989), it is clear that an excessive force claim, at least, is "properly analyzed under the Fourth Amendment's 'objective reasonableness' standard, rather than under a substantive due process standard." Id. at 388, 109 S. Ct. at 1867; see also id. at 395, 109 S. Ct. at 1871 ("all claims that law enforcement officers have used excessive force--deadly or not--in the course of an arrest, investigatory stop, or other 'seizure' of a free citizen should be analyzed under the Fourth Amendment") (emphasis in original); Sheldon H. Nahmod, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 § 3.04, at 149-55 (3d ed. 1991) [hereinafter The Law of Section 1983]. By extension, Green's false arrest and false imprisonment claims would also seem to belong in a Fourth Amendment context. The Law of Section 1983 § ...