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Plaintiff-appellant Andrew F. Janetka, Jr., appeals from a judgment entered in the United States District Court for the Eastern District of New York (Wexler, J.), on April 28, 1989, dismissing his complaint 188*188 against defendants-appellees Darrell Dabe and the County of Suffolk. Janetka alleged malicious prosecution of a resisting arrest charge in violation of his constitutional rights, 42 U.S.C. §§ 1983, 1988 (1982), having been acquitted of resisting arrest after a trial which also resulted in his conviction of disorderly conduct. He further alleged that defendant-appellee Darrell Dabe, a Suffolk County Police Officer, used excessive force in arresting him and denied him medical treatment, also in violation of his constitutional rights. Janetka also pleaded pendent state law claims for false arrest, assault, battery, negligence and gross negligence against the County under the common-law doctrine of respondeat superior.

At the close of Janetka's case, the district court directed a verdict for defendants on the malicious prosecution claim on the ground that Janetka's acquittal of resisting arrest was not a "favorable termination," considering his conviction of the lesser offense of disorderly conduct. Janetka v. Dabe, 710 F.Supp. 906, 909 (E.D.N.Y.1989). After ruling that an investigative report concerning Suffolk County's toleration of police conduct was inadmissible, the court also dismissed all claims against the County. The excessive force and denial of medical treatment claims were tried by a jury, which found for Dabe.

On appeal, Janetka asserts that his malicious prosecution claim should have been presented to the jury, because his acquittal was a favorable termination of the underlying charge, despite his conviction of a lesser, related charge. Janetka also contends that the district court erred in excluding the investigative report, and that he was denied a fair trial on his remaining claims because the jury was not allowed to consider his malicious prosecution claim in conjunction with his claim of excessive force. Janetka has not raised any arguments concerning the dismissal of his pendent state law claims against the County.

We hold that Janetka's acquittal of the resisting arrest charge was a favorable termination for purposes of the malicious prosecution claim. We therefore reverse so much of the judgment as dismissed the malicious prosecution claim and remand for further proceedings as to that claim. We also find that the district court properly excluded the investigative report and that Janetka received a fair trial, and therefore affirm the rest of the judgment.


892 F.2d 187 (1989)

Andrew F. JANETKA, Jr., Plaintiff-Appellant,


Darrell DABE, Badge No. 3384, Individually and as a Police Officer of the Suffolk County, New York Police Department and County of Suffolk, Defendants-Appellees.

No. 333, Docket 89-7451.

United States Court of Appeals, Second Circuit.

Argued November 2, 1989.

Decided December 15, 1989.

New York Law School location: File #862, Box #124